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A Cruel and Unusual Punishment | The Nation

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A Cruel and Unusual Punishment

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Editor's Note: Nation contributor Billy Sothern, is a New Orleans lawyer and member of the legal team that represented Patrick Kennedy in a landmark Supreme Court decision June 25, in which Kennedy, convicted of child rape, was spared the death penalty. In this 2007 article, he explained the case and its significance for death penalty foes.

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Billy Sothern
Billy Sothern, a New Orleans anti-death penalty lawyer and a Soros Justice Media Fellow, is a frequent contributor to...

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As executions resume in the wake of a Supreme Court decision, we are reminded that a life cannot be willfully ended without violence.

The most devastated neighborhood in America makes an ideal backdrop for a morally ambiguous play about abandonment.

On March 2, 1998, an 8-year-old girl was raped in Harvey, Louisiana, across the river from New Orleans. At the trial of Patrick Kennedy, five years later, a jury credited the state's version of the facts--that the little girl was awakened early in the morning to find her 300-pound stepfather on top of her, undressing her, with his hand over her mouth to keep her quiet before forcing himself inside her, causing internal injuries and heavy bleeding. The jury heard that for the initial eighteen months after the rape, the girl had insisted that she was raped by two teenage boys outside her house; they heard that she did not assert that her stepfather had raped her until after she was removed from her mother's care, placed in foster care and told that her stepfather was the person responsible.

They heard that, following the rape, Patrick Kennedy called his place of work to tell them that he would not be coming in because his little girl had "become a lady" and then called a cleaning company to have blood removed from his carpets, all before calling 911 to report that his stepdaughter had been raped and requesting an ambulance. With no DNA establishing the offender, with conflicting stories--a genuine "he said, she said" trial--the jury credited the emotional testimony of the young victim as she testified at trial and found Kennedy guilty as charged.

At the penalty-phase of the trial, the jury heard Kennedy's goddaughter testify that she had been raped by him twenty years earlier when she was 8 or 9 years old, though Kennedy was never charged with that offense. On the basis of this evidence, and empowered with a unique Louisiana statute, the jury sentenced Kennedy to death, making him the only person on America's death row for a crime less than murder. For that matter, his sentence made him the only person on death row in any Western democracy for the crime of child rape.

When the case appeared before the Louisiana Supreme Court in late February following an appeal on the legality of Kennedy's conviction and death sentence, the graphic facts of the crime were the focus of the state's oral argument, since any discussion of the law would unearth the manifest unconstitutionality of the sanction of death for rape, even the unimaginably awful rape of a child, a legal landscape made clear by the 1977 United States Supreme Court case Coker v. Georgia.

Ehrlich Anthony Coker was eighteen months into a prison term of three life sentences, two twenty-year sentences and an eight-year sentence for a string of crimes, including the rape and murder of a 16-year-old woman and the rape and battery of another 16-year-old woman, when he escaped from Wade Correctional Institute in Georgia in 1974. He found his way to the home of Allen and Elnita Carver, broke in, threatened the couple, tied Allen up in his bathroom and raped his 16-year-old wife, Elnita, before being apprehended in the couple's car with the kidnapped Elnita. Following a trial, Coker was sentenced to death by electrocution under a Georgia rape statute that provided as punishment either death, life or a sentence of no more than twenty years (but no less than one year). In striking down Coker's death sentence three years later, the Supreme Court found that "a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." In assessing the unusual punishment, the Court looked to the history of the use of capital punishment as a sanction for rape. It found that there had never been a majority of states that had the death penalty for rape, that as of 1925 eighteen states had the punishment, down only by two to sixteen states in 1971, but then plummeting to three states by 1977, after each state had been required to rewrite its death penalty statute following the Supreme Court's 1972 decision in Furman v. Georgia, which declared all state death-penalty statutes unconstitutional. Getting to the heart of the matter, Justice Byron White, writing for the Court, opined, "Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.... The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability'...is an excessive penalty for the rapist who, as such, does not take human life."

Disregarding this history, the Louisiana legislature passed a law in 1995 allowing the death penalty for the rape of a child under 12 years old, despite the opposition of the Catholic Church, lawyers concerned with the constitutionality of the statute in light of Coker and advocates worried that such a statute could give rapists an incentive to murder their victims. Review of the statute moved forward in 1996, when the state sought the death penalty against Anthony Wilson, charged with the rape of a 5-year-old girl, leading to a pretrial challenge of the statute that made its way up to the Louisiana Supreme Court. A majority of the elected court upheld the statute, distinguishing Coker on the grounds that it involved an "adult woman." Although the court noted that Louisiana was the only state in the union permitting the death penalty for the rape of a child, it did not take this as a sign that the rest of the country did not approve of the practice but instead as a suggestion that Louisiana was at the forefront of newly evolving standards of decency that would, in time, be embraced by other states in the form of statutes providing for the death penalty for child rapists. The court explained, "While Louisiana is the only state that permits the death penalty for the rape of a child less than twelve, it is difficult to believe that it will remain alone in punishing rape by death if the years ahead demonstrate a drastic reduction in the incidence of child rape, an increase in cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the role of law on the part of the people." The court did not address the troubling way in which the death penalty as a punishment for rape had been used along racial lines--given mostly to black men accused of raping white women--reflected in the fact that 405 of the 455 men executed for rape in the previous five decades had been black.

The case was appealed to the US Supreme Court, which denied review but with three Justices explaining, in rare and unusual form, that "our decision to deny a petition for writ of certiorari does not in any sense constitute a ruling on the merits of the case," and that review was simply premature given that the statute had not yet resulted in a conviction or "final judgment." Because there was not a death sentence under the statute until Patrick Kennedy's case, the statute effectively evaded review while providing prosecutors with the strongest imaginable tool, the unconstitutional threat of death, to get defendants in aggravated rape cases to trade away their right to trial for life sentences.

Up in the elegantly restored fourth-floor courtroom of the Louisiana Supreme Court, located in the middle of the French Quarter, workmen could be seen through the windows hammering and repairing hurricane damage on the roofs of neighboring nineteenth-century buildings when the argument in Kennedy's case commenced, re-engaging the court in an issue that it had heard little about for the previous eleven years.

Martin Stern, pro bono counsel for Kennedy from the Louisiana law firm Adams and Reese, and Ben Cohen, my friend and colleague at the Capital Appeals Project, argued the case to the court. Stern told the court that, despite its prediction eleven years earlier that Louisiana would be at the fore of a groundswell, only three other states had statutes permitting the death penalty for child rape and that no one had been sentenced to death under any of those statutes in either state. He explained that even in Louisiana it appears that juries disapprove of the punishment, as it has resulted in only a single death sentence in more than a decade. Stern explained the empirical data suggesting that accusations of child rape are nearly always a matter of conflicting stories, with victims who are highly susceptible to external pressures, making the risk of wrongful conviction in these cases very high. He reviewed the social science data suggesting that because these cases very often involve victims and perpetrators in the same family, victims may be less willing to come forward against family members when reports of sexual violence could lead to their execution. In sum, he methodically rebutted the court's argument eleven years earlier that this statute could withstand scrutiny under the Eighth Amendment's prohibition of cruel and unusual punishment.

Sadly, despite these concerns, and the evident waste of public funds in prosecuting child rape as a capital crime without a reasonable prospect that such punishment will ever be meted out, prosecutors across the state still seek the death penalty. These prosecutions trigger additional and costly measures, however anemic, for defendants requiring the preparation of a penalty phase and mitigating evidence as well as other constitutional protections. Even in New Orleans--where, even more than in the rest of the state, the criminal justice system is crumbling in light of chronically underfunded indigent defense and district attorney's offices knocked from their meager foundations by Hurricane Katrina--the state is seeking the death penalty against several men accused of child rape, including a case in which I was appointed to represent the defendant. Indeed, a couple of days after the Kennedy argument, I drove to the Orleans Parish Criminal Court--dodging sinkhole-sized potholes, passing tilting and abandoned apartment buildings, houses, community centers and schools that the city can't afford to restore--and, after parking next to the flooded-out and looted police headquarters, walked toward the court to file a raft of motions, including a Demand for Notice Whether the State Intends to Seeks the Death Penalty, the first step in what is likely to be a long-fought and expensive challenge to the state's right to seek the death penalty.

As I walked toward the courthouse, I thought back to the words of Ben Cohen, who offered the final remarks to the Court on Patrick Kennedy's behalf. Cohen had explained, in a grief-stricken voice marked with the seriousness of someone who has seen something truly awful, the inescapable truth of Louisiana's experiment with capital punishment for rape as well as the individual tragedies that have been swept up in it. "These are tough cases without the death penalty, without the tilting of scales, without the appeal to emotion," he said, and then he asked the Court to vacate Kennedy's death sentence. I ascended the high stone stairs before the dark, Gothic courthouse rising above the flood-ravaged neighborhood and filed my motions, steeled for a fight unlike any in thousands of courthouses in the other forty-nine states.

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