Kennedy v. Louisiana: Eighth Amendment Restrictions on the Death Penalty

In Kennedy v. Louisiana, the majority specifically ruled that the Eighth Amendment barred the State of Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

Patrick Kennedy was convicted of the aggravated rape of his then-8-year-old stepdaughter and sentenced to death under a Louisiana statute authorizing capital punishment for the rape of a child under 12. The State Supreme Court affirmed, rejecting Kennedy’s reliance on Coker v. Georgia, which barred the use of the death penalty as punishment for the rape of an adult woman but did not address which, if any, other nonhomicide crimes could be punished by death under the Eighth Amendment.

In affirming the death sentence, the Louisiana Supreme Court applied the balancing test set forth in the Supreme Court’s decisions in Atkins v. Virginia and Roper v. Simmons. In considering whether there was a national consensus on the punishment as well as whether the court would find the punishment excessive, the court noted that four other states had capitalized child rape since 1995, and that child rape was unique in terms of the harm it inflicts upon the victim and society.

By a vote of 5-4, the Court concluded that the application of the death penalty would constitute cruel and unusual punishment. Justice Anthony Kennedy delivered the majority opinion of the Court on Kennedy v. Louisiana, which was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.

In reaching its decision, the majority highlighted that constitutional prohibition against excessive or cruel and unusual punishments mandates that punishment “be exercised within the limits of civilized standards.” Further noting that standards of decency evolve over time, the majority concluded that there was a national consensus against capital punishment for the crime of child rape.

The Court also found that the death penalty was not a proportional punishment for the rape of a child. As Justice Kennedy explained:

The court concludes that there is a distinction between intentional first–degree murder, on the one hand, and non–homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.

In addition to the rape of a child, the majority further held that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.” However, it did leave the door open for capital punishment for crimes against the State, such as treason, espionage and terrorism.

Justice Samuel Alito authored a dissenting opinion, which was joined by Chief Justice John G. Roberts and Justices Clarence Thomas and Antonin Scalia. In his dissent, Justice Scalia criticized the majority for usurping the role of Congress in determining the prevailing standards of decency. “The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society,” he wrote.