However, users who register will have free access to supplementary research materials. In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. 56214 (2007); Manual for Courts-Martial, United States, Part IV, ¶ 45.f(1) (2008). Patrick Kennedy, Petitioner: v. Louisiana: Docketed: September 13, 2007: Lower Ct: Supreme Court of Louisiana: Case Nos. Patrick KENNEDY, Petitioner,

The footnote is as follows: The dissenting opinion is modified as follows: (1) By the addition of the words "a federal district court to impose" at page 13 between the words "a law permitting" and the words "the death penalty" in the first paragraph of Part I-E; (2) By the addition of footnote 6 after the word "values" in said paragraph.

120, ¶ 45.f(1), p. IV-78 (2008). See 10 U.S.C. But the law did more than that; it specifically established (as it would have to do) the penalty for the new offense of child rape — and that penalty was death: "For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."

Pending the President's setting the maximum penalty for adult rape and child rape, Congress included a temporary provision applying the existing maximum punishment of death for rape as the "interim maximum punishmen[t]" for those crimes. Louisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. Kennedy v. Louisiana. § 818, which allows imposition of the death penalty only "when specifically authorized by this chapter.". He was sentenced to the death penalty and appealed based on the Eighth Amendment. June 25, 2008. Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read "no criminal penalty shall be imposed which the Supreme Court deems unacceptable." v. LOUISIANA (CAPITAL CASE) ON WRIT OF CERTIORARI TO THE SUPREME COURT OF LOUISIANA. § 856.

See Art. Also in that bill, Congress revised the military's sexual-assault statutes, in part by reclassifying the UCMJ's offense of rape as two separate crimes: adult rape and child rape. Justice KENNEDY's statement posits two reasons why this Act by Congress proves nothing about the national consensus regarding permissible penalties for child rape. Listed below are the cases that are cited in this Featured Case. Ante, at 2. By a vote of 5-4, the Court concluded that the application of the death penalty would constitute cruel and unusual punishment. 3263 (emphasis added). In reaching its decision … § 2381, but one can imagine it.) Exec. Second, Justice KENNEDY speculates that the Eighth Amendment may permit subjecting a member of the military to a means of punishment that would be cruel and unusual if inflicted upon a civilian for the same crime. In a 5-4 decision, the Court agreed that a rape that did not end, or intend to end, in murder of the child was considered “cruel and unusual.”. It is unclear what effect, if any, that reclassification worked on the availability of the military death penalty. See R. Paternoster, R. Brame, & S. Bacon, The Death Penalty: America's Experience with Capital Punishment 69 (2008). Victim advocates have long been concerned that the death penalty for child sexual assault cases could backfire and result in fewer … The more relevant federal benchmark is federal criminal law that applies to civilians, and that law does not permit the death penalty for child rape. Argued April 16, 2008—Decided June 25, 2008; modified October 1, 2008 . This case, too, involves the application of the Eighth Amendment to civilian law; and so we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Exec. L. 109-163, § 552(b)(1), 119 Stat. The opinion of the Court is modified by the addition of a footnote at page 15, after the word "considered" in the last paragraph of Part II-A. L. 109-163. v. 2861 (plurality opinion) (not including the military as a "jurisdiction in the United States" that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman but citing only the nonmilitary provision). After considering the petition as well as supplemental briefs from the parties and the United States, the Court has determined that rehearing is not warranted. Click on the case name to see the full text of the citing case. (That is not the social judgment our society has made, see 18 U.S.C. Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions. Loving v. United States, 517 U.S. 748, 755, 116 S.Ct. Although the Louisiana Supreme Court continued the sentencing of the death penalty, agreeing with five other states that the vulnerability of children made this a necessary sentence, it was once again appealed to the United States Supreme Court. See Pub. It is difficult to imagine, however, how rape of a child could sometimes be deserving of death for a soldier but never for a civilian. 13447, 72 Fed.Reg. See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional. By separate executive order, the President later expressly reauthorized the death penalty as a punishment for child rape.

The same is true of more recent Eighth Amendment cases in the civilian context. LaFASA Statement on Kennedy v. Louisiana Decision. There are six individuals now subject to a final sentence of death under the UCMJ, see NAACP Legal Defense and Educational Fund, Inc., Death Row U.S.A. 66 (Winter 2008), all of whom committed offenses that involved the death of a victim. First, it claims the statute merely "reclassif[ied]" the offense of child rape. Based on these acts, there is infinitely more reason to think that Congress and the President made a judgment regarding the appropriateness of the death penalty for child rape than there is to think that the many non-enacting state legislatures upon which the majority relies did so — especially since it was widely believed that Coker took the capital-punishment option off the table. 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.

Statement of Justice KENNEDY, with whom Justice STEVENS, Justice SOUTER, Justice GINSBURG, and Justice BREYER join, respecting the denial of rehearing.

But Congress also removed from the text of the statute itself, § 920, the specific authorization of "death" as a punishment; the new statute provides only that adult rape and child rape shall be punished "as a court-martial may direct." But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts. Is it considered cruel and unusual punishment to enact the death penalty on someone convicted of raping a child that did not result in the child’s death? In 2006, Congress passed the National Defense Authorization Act, which authorized that year's appropriations for military and national-security activities. PATRICK KENNEDY, PETITIONER. MOTION FOR LEAVE TO FILE BRIEF AND BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITION FOR REHEARING .