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.
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.”