ORDER by accinent

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									                Case No. 07-9999



                      In the

SUPREME COURT OF THE UNITED STATES

               October Term 2007




             PATRICK KENNEDY,

                    Petitioner

                        v.

                 LOUISIANA,

                   Respondent


     ON PETITION FOR A WRIT OF CERTIORARI
       TO THE LOUISIANA SUPREME COURT



               Brief for Petitioner




                                            Team #24
                             QUESTIONS PRESENTED

1.   Whether the Eighth Amendment's Cruel and Unusual Punishment clause permits a
     state to impose the death penalty — a punishment usually reserved for those convicted
     of murder — for child rape?


2.   If so, does Louisiana's capital rape statute violate the Eighth Amendment insofar as it
     fails to establish meaningful criteria that genuinely narrow the class of death eligible
     offenders?




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                                                     TABLE OF CONTENTS

Questions Presented ........................................................................................................................... i
Table of Contents      ..........................................................................................................................ii
Jurisdiction………………………………………………………………………………………..iii
Constitutional Provisions Involved ………………………………………………………...…...iii
Table of Authorities ......................................................................................................................... iv
Statement of the Case …….............. .................................................................................................. 1
Summary of the Argument …….............. .......................................................................................... 3
Argument …….............. ...................................................................................................................... 5

I.         THE EIGHTH AMENDMENT’S CRUEL AND UNUSUAL PUNISHMENT CLAUSE
           PROHIBITS ALL STATES, INCLUDING LOUISIANA, FROM EXECUTING AN
           INDIVIDUAL FOR CHILD RAPE ........................................................................................ 5

           A. The Death Sentence for Child Rape, a Non-Homicide Crime, is Grossly
              Disproportionate and Excessive Punishment……………….........................................6

           B. The Objective Indicia of the National Consensus Support the Prohibition of an
                Execution for Child Rape…….……………………………………..............................8

           C. The Death Penalty for Child Rape Fails to Serve the Goals of Retribution or
                Deterrence……………………………………………………………………………10

II.        ALTERNATIVELY, THE FAILURE OF LOUISIANA’S CAPITAL RAPE STATUTE
           TO ESTABLISH MEANINGFUL CRITERIA THAT GENUINELY NARRNOW THE
           CLASS OF DEATH ELIGIBLE OFFENDERS VIOLATES THE EIGHTH
           AMENDMENT ...................................................................................................................... 11

           A. Louisiana’s Capital Rape Statute Promotes Arbitrary and Capricious Death Sentences
              Because It Fails to Objectively Identify a Subclass of Offenders……………….......13

           B. Louisiana’s Inappropriate Attempt to Merge the Separate Requirements of Death
              Eligibility and Death Selection Violates the Eighth Amendment. ………….............16

Conclusion ……........... ..................................................................................................................... 20




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                                      JURISDICTION

The Louisiana Supreme Court upheld the constitutionality of the Louisiana Child Rape Statute
and sentenced Patrick Kennedy to death. This Court has jurisdiction under 28 U.S.C. § 1257(a).

                     CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment, made applicable by the Fourteenth Amendment, provides:
―Nor shall cruel and unusual punishments be inflicted.‖




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                                               TABLE OF AUTHORITIES

                                                 United States Constitution
U.S. Const. amend. VIII ..................................................................................................................5
                                          United States Supreme Court Cases
Arave v. Creech, 507 U.S. 463 (1993) ……………………………………………………11,13,14
Atkins v. Virginia, 536 U.S. 304 (2002) ……………………………………………………….9,10
Blystone v. Pennsylvannia, 494 U.S. 299 (1990) ………………………………………………..17
Coker v. Georgia, 433 U.S. 584 (1977) …………………………………………………...5,6,7,17
Enmund v. Florida, 458 U.S. 782 (1982) ………………………………………………………...6
Furman v. Georgia, 408 U.S. 238 (1972) …………………………………………….11,12,13,16
Godfrey v. Georgia, 446 U.S. 420 (1980) ………………………………………………..12,13,14
Gregg v. Georgia, 428 U.S. 153 (1976) ………………………………………………………5,16
Johnson v. Texas, 509 U.S. 350 (1993) …………………………………………………………17
Lewis v. Jeffers, 497 U.S. 764 (1990) …………………………………………………………...13
Lowenfield v. Phelps, 484 U.S. 231 (1988) ………………………………………………13,17,18
Profitt v. Florida, 428 U.S. 242 (1976) ……………………………………………………...12,13
Pulley v. Harris, 465 U.S. 37 (1984) ……………………………………………………………12
Roper v. Simmons, 543 U.S. 551 (2005) …………………………………………………….8,9,10
Tison v. Arizona, 481 U.S. 137 (1987) …………………………………………………………...6
Trop v. Dulles, 356 U.S. 86 (1958) ……………………………………………………………...12
Tuilaepa v. California, 512 U.S. 967 (1994) ……………………………………………………17
U.S. v. Salerno, 481 U.S. 739 (1987) …………………………………………………………….5
Woodson v. North Carolina, 428 U.S. 280 (1976) ……………………………………….12,13,17
Zant v. Stephens, 462 U.S. 862 (1983) ………………………………………………………13,17

                                          State Cases
Buford v. State, 403 So.2d 943 (Fla. 2003) ……………………………………………………..6,7
State v. Kennedy, 957 So.2d 757 (La. 2007) ……………………………………………………1,2
State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992) ……………………………………….16,18
McConnell v. State, 102 P.3d 606 (Nev. 2004) …………………………………………………18
Welsh v. State, 850 So.2d 467 (Fla. 2003) ………………………………………………………..7

                                           Statutes
Mont. Code Ann. § 45-5-303(c) (1997) …………………………………………………………14
Okla. Stat. 10 § 7115(K) (2006) ………………………………………………………………...14
S.C. Code Ann. § 16-3-655(c)(1) (2006) ………………………………………………………..14
Tex. Pen. Code § 12.42 (2007 Supp.) …………………………………………………………...14
La. Rev. Stat. Ann. § 14:30 (2006) …………………………………………………………..14,15
La. Rev. Stat. Ann. § 14:42 (2007) …………………………………………………………..15,18
La.Code Crim. Proc. Ann. art. 905.4(A)(10) (2006) …………………………………...........15,18




                                                                                                                                        iv
                                STATEMENT OF THE CASE

       The appellant, Patrick Kennedy, is one of only two people on death row for a non-

homicide offense in the United States. Despite the fact that no state has executed a person for

any form of rape in this country in over four decades, the Louisiana Supreme Court upheld Mr.

Kennedy’s death sentence. State v. Kennedy, 957 So.2d 757, 789 (La. 2007).

       On the morning of March 2, 1998 Mr. Kennedy, called 911 to report the rape of his

stepdaughter, L.H. Id. at 761. Mr. Kennedy explained to the operator that he ran to the side yard

of his home after hearing loud screams and found L.H. lying at in the side yard between their

house and the empty lot next door. Id. He stated L.H. told him two teenage boys from the

neighborhood grabbed her, pushed her down, pulled her over there, and raped her. Id. Mr.

Kennedy reached the scene quickly enough to see one of the boys whom he described as about

18 years old and riding a blue ten-speed bicycle. Id.

       As soon as the police arrived, Mr. Kennedy guided the officers to L.H.. Emergency

personnel rushed L.H. to the hospital where she underwent surgery that successfully repaired her

physical damages. Id.

       In the many following months, L.H. steadfastly conveyed to the numerous people who

interviewed her that two neighborhood boys raped her. Id. at 764. She delivered a meticulous

account of the rape to a psychologist and a social worker during a three-hour interview. Id.

Within days of the ordeal, the police also located a blue bicycle and a black shirt that matched

the descriptions given by Mr. Kennedy and L.H. respectively at a nearby apartment. Id. The

police connected both items to Devon Oatis, a large, tall black teenager who lived in the

neighborhood. Id. In spite of the fact that Oatis matched the general physical description given

by L.H, that he lied to police about his whereabouts on March 2, and he failed to produce an




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alibi, the police dismissed Oaits as a suspect. Id. The police reasoned that Oatis appeared

―heavy set‖ rather than ―muscular‖ as described by L.H., and the bike appeared run down. Id.

Oatis did not appear at Mr. Kennedy’s trial because he had apparently fled to California. Id.

       The police’s heightened interest in Mr. Kennedy failed to uncover any direct evidence

linking him to the crime. Id. at 766. The police instead relied on circumstantial evidence to

support his arrest in mid-March. Id. The police asserted Mr. Kennedy flipped L.H.’s mattress to

hide evidence the rape occurred in her bedroom, although forensic analysis of the blood stains on

the mattress as well as medical tests on L.H. did not implicate Mr. Kennedy. Id. In addition, a

Mr. Kennedy’s employer sounded nervous on the morning of the rape when Mr. Kennedy called

in sick to work. Id. at 761. Finally, the owner of a carpet cleaning service stated Mr. Kennedy

scheduled an urgent carpet cleaning job. Id.

       The State removed L.H. from her mother’s (Mrs. Kennedy’s) home. Id. at 767. Twenty

months after L.H. was raped, and soon after she was returned to her mother’s custody, L.H.

announced for the first time that Mr. Kennedy raped her. Id. L.H. provided scant details of the

event, asserting she fainted immediately after the rape occurred in her room. Id. at 767-68.

       A jury convicted Mr. Kennedy of rape and sentenced him to death on the basis of two

Louisiana statutory aggravating factors. Id. at 760. The Louisiana Supreme Court affirmed Mr.

Kennedy’s conviction and death sentence. Id. at 793. Mr. Kennedy as maintained his innocence

throughout these proceedings. Id. at 771-72.




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                              SUMMARY OF THE ARGUMENT

       The Louisiana Supreme Court erred in upholding the Constitutionality of the capital rape

statute and Mr. Kennedy’s death sentence. Once a state administers the death penalty, the state

cannot reverse it. Allowing any state to inflict a death sentence on a person for child rape is

incompatible with the Eighth Amendment. Rape is the same definition for an adult woman and a

child. All states should reserve this form of punishment for the most heinous of crimes, murder.

Rape, when the child is still living, is not murder. Therefore, the death sentence for child rape, a

non-homicide crime, is grossly disproportionate and excessive punishment.

       The majority of the current society rejects the death penalty for child rape. At least forty-

four states have declined to create such a gruesome statute permitting the execution for child

rape. The evolving standards of decency establish that the death penalty for child rape violates

the Eight Amendment. Additionally, the death penalty for child rape does not serve the goals of

retribution or deterrence, because no state can with reliability classify a child rapist among the

worst offenders.

       Moreover, Louisiana’s capital rape statute promotes the arbitrary and capricious use of

the death penalty by failing to establish meaningful criteria that narrow the class of death eligible

offenders. Capital sentencing schemes must enable the evenhanded imposition and rational

review of death sentences. As such, legislatures must outline criteria for death eligibility that do

not apply to an entire class of offenders, nor are unconstitutionally vague. However, rather than

narrowing the class of death eligible offenders, the Louisiana statute commands juries accept that

every convicted individual, regardless of any circumstances surrounding the crime, is the same.

Louisiana further aggravates this constitutional error by attempting to narrow the class of death

eligible offenders after conviction. The capital rape statute therefore fails to meet the distinct



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requirements that a death sentencing scheme separately narrow the class of death eligible

offenders and allow the introduction of all mitigating circumstances.

       Patrick Kennedy did not take a life or attempt to take a life, yet he is in danger of losing

his life. His death sentence is not only cruel and unusual punishment, but also immoral. Mr.

Kennedy was convicted and sentenced to death based on one fact that fails to distinguish

anything concrete about his character or his state of mind. At a minimum, Mr. Kennedy’s death

sentence should be vacated.




                                                                                                 4
                                          ARGUMENT

        The Appellant, Mr. Patrick Kennedy brings a facial challenge to the Louisiana capital

rape statue showing that ―no set of circumstances exists under which (the) act is valid.‖ U.S. v.

Salerno, 481 U.S. 739, 745 (1987). The Eighth Amendment’s cruel and unusual punishment

clause prohibits the state from imposing the death penalty for child rape. In addition, the

Louisiana capital rape statute violates the Eighth Amendment because it fails to establish

meaningful criteria that genuinely narrow the class of death eligible offenders. Mr. Kennedy

therefore respectfully requests the Court hold the Louisiana capital rape statute unconstitutional,

or alternatively reverse Mr. Kennedy’s death sentence.

I.      The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits all
        States, including Louisiana, from executing an individual for child rape.

     The death penalty, which is unique in its severity and irrevocability, is an excessive penalty

for the rapist who does not take a human life. Coker v. Georgia, 433 U.S. 584, 598 (1977). A

punishment is excessive and unconstitutional under the Eighth Amendment if it (1) is grossly out

of proportion to the severity of the crime and (2) makes no measurable contribution to acceptable

goals of punishment and hence is nothing more than the purposeful and needless imposition of

pain and suffering. Gregg v. Georgia, 428 U.S. 153 (1976) (affirming the death sentence for

first-degree murder). A punishment might fail the test on either ground.          Id. The Eighth

Amendment explicitly prohibits the infliction of ―cruel and unusual punishments.‖ U.S. Const.

amend. VIII. The Eighth Amendment forbids Louisiana and all other states from executing

individuals for child rape, because the execution does not serve the goals of retribution or

deterrence, and the objective indicia of the national concensus support the prohibition of such

execution. Thus, the death penalty for all forms of rape, including child rape, violates the Eighth




                                                                                                 5
Amendment. Therefore, this Court should hold that the Eighth Amendments’ cruel and unusual

punishment clause prohibits all states from executing an individual for child rape.


       A.      The death sentence for child rape, a non-homicide crime, is grossly
               disproportionate and excessive punishment.

       An execution by a state is the harshest of sanctions. All states should reserve this form of

punishment for the most heinous of crimes, murder. Rape, when the child is still living, is not

murder. Therefore, allowing a state to take a life when no life has been taken is grossly

disproportionate and excessive.

       In order for a state to execute an individual, a conviction for a homicide crime must exist;

otherwise the execution is grossly out of proportion to the severity of the crime.        Tison v.

Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982); Coker, 433 U.S. at 598.

―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…the murderer kills;

the rapist, if no more than that, does not.‖ Coker, 433 U.S. at 598. Although robbery is a serious

crime, it is not ―so grievous an affront to humanity that the only adequate response may be the

penalty of death‖, when the robber does not cause the death of another. Enmund, 458 U.S. at

797.   Although the death penalty may be justified for a defendant who had a substa ntial

participation in a murder, but does not actually commit the murder, there must be a loss of

human life for the justification. Tison, 481 U.S. at 154-55. All three decisions concluded that a

murder must be committed before a state considers the death penalty. Thus, rape of a child does

not merit the ultimate punishment of death.

       Additionally, the Florida Supreme Court considered the constitutionality of a death

sentence imposed for the rape of a child. Buford v. State, 403 So.2d 943 (Fla. 2003). The court

held that, ―the reasoning of the justices in Coker v. Georgia compels us to hold that a sentence of


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death is grossly disproportionate and excessive punishment for the crime of sexual assault and is

therefore forbidden by the Eighth Amendment as cruel and unusual punishment." Id. The

Buford holding is consistent with Coker because, life is over for the victim of the murderer;

however for the rape victim, life may not be nearly as happy as it was, but it is not over and

normally is not beyond repair. See Coker, 433 U.S. at 598. The Florida Supreme Court recently

reaffirmed this view, making it clear that Buford's Eighth Amendment holding rendered child

rape no longer a capital offense in Florida. Welsh v. State, 850 So.2d 467, 468 (Fla. 2003).

        Mr. Kennedy should not face his demise, because the death penalty for child rape, unlike

capital punishment for murder, is grossly disproportionate and excessive punishment. Louisiana

convicted Mr. Kennedy of child rape, a non-homicide crime, not murder. Mr. Kennedy did not

take another’s life nor did he commit a felony that resulted in the death of another, yet Louisiana

has incorrectly characterized Mr. Kennedy’s actions as worse than murder. There exists finality

with the loss of life that rape of any kind, including child rape, can never compare with, equate

to, or surpass.

        Here, the child not only continues living, but doctors also successfully repaired the

child’s injuries. While many may speculate about a child rape victim’s future and the impact of

the rape, the only thing certain is that each rape is different and each victim will respond

differently.

        The thought that a child rape victim could possibly live a fulfilling life after or even

before a state executes her offender, is awfully disturbing. Even if a child rape victim never fully

recovers, she would at the very least have many forms of treatment available to her during her

life. A life for a life can at times be justifiable, but a life for something less than a life is

unjustifiable, and nothing more than a crime itself.




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       Additionally, for Louisiana to state that child rape is more heinous than murder, thus the

crime deserves the death penalty, is irresponsible and frightening. If this Court holds that the

Louisiana statute does not violate the Eighth Amendment, then where would this end? Child

rape is a non-homicide crime, therefore the floodgates would open. If we are trying to protect

children, why not the death penalty for beating a child or for a drug using pregnant woman who

caused harm to her newborn? Society cherishes and protects equality, why not the death penalty

for a hate crime that does not involve the loss of a human life? The domino effect of an outcome

allowing the death penalty for child rape is potentially catastrophic.

       The death penalty for child rape, a non-homicide crime, is not only grossly

disproportionate and excessive punishment, but also inhumane. Child rape is not murder, nor are

the two closely related.

       B. The objective indicia of the national consensus support the prohibition of an
          execution for child rape.

       The majority of our current society rejects the death penalty for child rape. Five states

allowing the death penalty for child rape does not speak for all fifty states or for the thirty-eight

states that allow the death penalty. Further, five states allowing the death penalty for child rape

is not a significant trend toward the acceptance of the execution for child rape.

       The Eighth Amendment requires the Court to refer to the evolving standards of decency

that mark the progress of a maturing society to determine which punishments are so

disproportionate as to be cruel and unusual. Roper v. Simmons, 543 U.S. 551, 561 (2005). This

Court considers objective criteria indicating whether imposing the death penalty is cruel and

unusual. Id. This Court held that courts should look to (1) the number of states that have

statutes allowing the death penalty for the offense at issue; (2) the frequency of its use even

where it remains on the books; and (3) the direction of any change on the issue. Roper, 543 U.S.



                                                                                                   8
at 567 (2005); Atkins v. Virginia, 536 U.S. 304, 313-16 (2002). In Roper and Atkins, this Court

held that the Eighth Amendment barred executing juvenile and mentally retarded offenders,

respectively, where only a minority of states allowed such punishment; those laws were rarely

enforced; and the consistency in the trend toward abolition of the practice. Roper, 543 U.S. at

564-67; Atkins, 536 U.S. at 314-17.

       Our evolving standards of decency confirm that our society rejects the death penalty for

child rape, because the punishment for the act is cruel and unusual.            A mere five states,

Louisiana, South Carolina, Oklahoma, Montana, and Texas have statutes allowing the death

penalty to be imposed for child rape; and no state since Coker – indeed, no state for over forty

years – has executed a single person for any form of rape. In 2006, Georgia's legislature revoked

its general capital rape statute, but it is unclear whether capital punishment is permitted for the

rape of a child. The number of states that allow the death penalty for child rape is the minority,

and the minority does not rule.

       These statutes have been on the books for as many as twelve years, yet only two people,

including Mr. Kennedy, have actually received a death sentence for child rape. Louisiana

convicted both men. These facts show that a national consensus for the execution for child rape

is non-existent.

       Although, five states allow the death penalty for child rape, at least forty-four states reject

the death penalty for child rape.     Additionally, thirty-three of the states that allow capital

punishment also reject this form of punishment for child rape.

       The objective indicia of the national consensus support the prohibition of the execution

for the crime of child rape. A trend does not exist when there are only two men on death row for




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child rape, and only one state, out of only five, has implemented its child rape statute. This

Court should easily find a national consensus against the death penalty for child rape.

       C.      The death penalty for child rape fails to serve the goals of retribution or
               deterrence.

       The execution for child rape does not serve the goals of deterrence and retribution

because the sentence is inconsistent with the theories of punishment. First, the deterrent effect of

the death penalty for child rape is non-existent. Second, retribution is often associated with the

ancient concept of lex talionis or "eye for an eye"; however allowing a state to execute an

individual for child rape exceeds this limit.

       This Court exercises ―independent judgment‖ concerning ―whether the death penalty is a

disproportionate punishment‖ under the circumstances at issue. Roper, 543 U.S. at 563-564.

Additionally this Court considers whether capital punishment serves the twin social goals of

deterrence and retribution. Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319).

       Although intentional murders unquestionably fall into the category of the most serious

crimes, Atkins and Roper concluded that neither the mentally retarded nor juvenile offenders

under the age of 18 years when they commit the crime can ―with reliability be classified among

the worst offenders.‖ Roper, 543 U.S. at 569.

       The death penalty for child rape will deter no one, because those who rape children on a

regular basis will take measures to make sure they get away with the crime. A person convicted

for child rape is usually someone who did not plan to rape the child in the first place. These

individuals act irrationally and do not weigh the cost and benefit of the risk. Therefore, the death

penalty for child rape will not have a deterrent affect.

       The death penalty for child rape does not serve the goal of retribution. Retribution is not

only a justification for punishment, but it also serves as a limitation on punishment. Regardless



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of why a state chooses to punish a person, the state should not give a punishment which is not

proportionate to the crime. The execution of an individual for child rape is not punishment;

rather taking a human life for the crime is nothing more than an extreme form of vengeance.

         Neither retribution nor deterrence is a valid argument for the execution for child rape,

because no state can with reliability classify a child rapist among the worst offenders. Murder is

the most deserving crime of the death penalty, yet the death penalty for mentally retarded and

juvenile murderers is unconstitutional because the punishment does not serve the goals of

retribution and deterrence. Therefore, unlike a murder but like a mentally retarded and juvenile

murderer, the child rapist who does not take a human life lacks the requisite moral culpability,

like to justify the application of the death penalty.

         The Eighth Amendment forbids all states from executing individuals for child rape. First,

the death sentence for child rape, a non-homicide crime, is grossly disproportionate and

excessive punishment. Second, the objective indicia of the national consensus support the

prohibition of the execution for the crime of child rape. Third, the death penalty for child rape

does not serve the goals of retribution or deterrence. Thus, the death penalty for child rape is

cruel and unusual punishment under the Eighth Amendment because the punishment is (1)

grossly out of proportion to the severity of the crime and (2) makes no measurable contribution

to acceptable goals of punishment.

    I.      Alternatively, the Failure of Louisiana’s Capital Rape Statute to Establish
            Meaningful Criteria that Genuinely Narrow the Class of Death Eligible
            Offenders Violates the Eighth Amendment.

         For more than three decades, the Supreme Court has repeatedly recognized the intrinsic

value of human life by restricting the imposition of the death penalty to a narrowly tailored set of

extreme crimes. Arave v. Creech, 507 U.S. 463 (1993); Furman v. Georgia, 408 U.S. 238




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(1972).     The Court strictly forbids the imposition of the death penalty based on arbitrary

characteristics of the crime or of the offender. Furman v. Georgia, 408 U.S. 238, 310 (1972).

To preserve the ―the dignity of man,‖ legislatures must therefore enable juries to make rational

decisions regarding life and death. Woodson v. North Carolina, 428 U.S. 280, 303 (1976); Trop

v. Dulles, 356 U.S. 86, 100 (1958)1. Because capital jurists generally have no experience with

the complexity of deciding whether to end another person’s life, capital statues must provide

―specific and detailed guidance‖ to ensure a jury will use ―meaningful‖ criteria when inflicting

the death penalty. Godfrey v. Georgia, 446 U.S. 420, 427 (1980); Profitt v. Florida, 428 U.S.

242, 253 (1976); Furman v. Georgia, 408 U.S. 238, 290 (1972).

          Due to its severe consequences, the Court designates the death penalty as a fundamentally

―different kind of punishment,‖ that demands a different kind of review. Pulley v. Harris, 465

U.S. 37 (1984); Furman v. Georgia, 408 U.S. 238, 306 (1972). Capital statues therefore must

also establish a basis for an appellate body to rationally review the reason a jury sentenced a

particular defendant to death. Woodson v. North Carolina, 428 U.S. 280, 303 (1976).

          The Louisiana capital rape statute fails to establish meaningful criteria that will allow a

jury to distinguish which child rapists the State should execute, and tangentially, a standard an

appellate body can use to rationally review the jury’s decision.                 Louisiana aggravates this

violation by confusing the separate requirements of death eligibility and death selection by

relying on the introduction of mitigating circumstances to narrow the class of death eligible

offenders after conviction. The Supreme Court should therefore vacate Mr. Kennedy’s sentence

because the standardless discretion afforded to juries by the capital rape statute violates the

Eighth Amendment.


1
 ―The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.‖ Trop v. Dulles,
356 U.S. 86, 100 (1958).


                                                                                                                12
   A. Louisiana’s Capital Rape Statute Promotes Arbitrary and Capricious Death Sentences
      Because It Fails to Objectively Identify a Subclass of Offenders.

       Louisiana’s capital rape statute fails to establish meaningful criteria that narrow the class

of offenders in manner that promotes the evenhanded imposition and rational review of the death

penalty. Woodson v. North Carolina, 428 U.S. 280, 303 (1976); Furman v. Georgia, 408 U.S.

238, 310 (1972).      Constitutional sentencing schemes provide a ―meaningful basis for

distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is

not.‖ Furman v. Georgia, 408 U.S. 238, 313 (1972). emphasis added. However, death eligibility

only requires the trier of fact find one aggravating circumstance at either the guilt or penalty

phase. Lowenfield v. Phelps, 484 U.S. 231, 244 – 246 (1988). Therefore, to guard against the

―wanton and freakish‖ use of the penalty, this aggravating circumstance must provide ―specific

and detailed‖ criteria that objectively distinguish a subclass of offenders. Zant v. Stephens, 462

U.S. 862 (1983); Proffitt v. Florida, 428 U.S. 242, 253 (1976); Furman v. Georgia, 408 U.S.

238, 313 (1972).

       A legislature cannot establish death eligibility by simply drawing a circle around a finite

group of offenders because the Constitution forbids death sentencing schemes founded on

circumstances that apply to an entire class of offenders, or are unconstitutionally vague. Arave v.

Creech, 507 U.S. 463, 474 (1993); Lewis v. Jeffers, 497 U.S. 764, 784 (1990); Godfrey v.

Georgia, 446 U.S. 420, 428 (1980). In Arave, the Court upheld the defendant’s first degree

murder conviction under the limiting construction that described him as a ―cold-blooded, pitiless

slayer‖ because ―cold-blooded‖ only applied to a subclass of murderers who acted with a

particular ―attitude toward (their) conduct and (their) victim(s).‖ Arave, 507 U.S. at 473. The

Court found that by singling out a subset of murderers who acted in an objectively different

manner than every other murderer, this aggravator provided meaningful criteria that could



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distinguish offenders who deserve execution. Arave, 507 U.S. at 473. In contrast, the Court held

an aggravating circumstance that used the terms ―outrageously or wantonly vile, horrible and

inhuman‖ unconstitutional because a reasonable person could apply this vague definition to

almost every murder. Godfrey v. Georgia, 446 U.S. 420, 428-429 (1980). These cases solidify

that an aggravating circumstance is only constitutional if a reasonable person could honestly

conclude the circumstance does not apply to every individual convicted of committing the same

capital offense. Arave, 507 U.S. at 474; Godfrey, 446 U.S. at 428-429.

       Four of the five other states that authorize the death penalty for child sexual assault

recognize that, standing alone, the victim’s age cannot objectively guide a jury to a subclass of

offenders whose offenses warrant execution. Tex. Pen. Code § 12.42 (2007 Supp.); Okla. Stat.

10 § 7115(K) (2006); S.C. Code Ann. § 16-3-655(c)(1) (2006); Mont. Code Ann. § 45-5-303(c)

(1997). Montana, Oklahoma, South Carolina and Texas all only allow use of the death penalty

for a second offense. Id. Montana further narrowed the class of offenders by requiring an age

gap of three or more years between the victim and the offender, or requiring that ―the offender

inflicts bodily injury upon anyone in the course of committing sexual intercourse without

consent.‖ Mont. Code Ann. § 45-5-303(c) (1997). By narrowing the class of child sexual assault

offenders in the plain language of their statutes, these four states acknowledge the reality that the

circumstances surrounding each child sexual assault, including the offender’s state of mind, may

significantly vary.

       Moreover, even Louisiana’s own homicide statute narrows the pool of death eligible

homicide offenders along a spectrum of ever increasing culpability matched by penalties of

increasing severity. La. Rev. Stat. Ann. § 14:30 (2006). For instance, to seek the death penalty

against an offender who caused the death of a child, the State must show the offender had the




                                                                                                  14
―specific intent to kill or inflict great bodily harm upon a victim who is under the age of twelve.‖

La. Rev. Stat. Ann. § 14:30 (A)(5) (2006).

        Rather than narrowing the class offenders, the Louisiana statute commands juries accept

that every individual convicted under the capital rape statute, regardless of any circumstances

surrounding the crime, is the same. 2 Unlike Arave, the Louisiana statute does not guide juries to

look for a particular state of mind, and more problematically, the statute prohibits offenders from

using lack of knowledge of the victim’s age as a defense. Lacking any clear mens rea, the plain

language of the statute establishes a strict liability crime against offenders whose victims

happened to be under the age of twelve. Unlike Louisiana’s first degree murder statute and the

four above sexual assault statutes, Louisiana’s capital rape statute indicates that there is no

meaningful distinction between the convicted individuals who intended to commit the harm the

legislature sought to prevent and those that did not.

        Despite the illustration by the aforementioned states that objective criteria might exist to

distinguish which child sexual assault offenders deserve execution, the disparity between their

statutory trigger ages reaffirms the arbitrariness inherent in using the victim’s age to distinguish

death eligibility. The current construction of the Louisiana statute allows conviction where the

victim was between 12 years to 12 years and 364 days old. 3 However, the State cannot execute

this offender because the state arbitrarily chose to leave the aggravating age at 12 years after it

elevated the statute’s trigger age to 13 years. Moreover, the trigger ages in the four above capital

2
  ―Aggravated rape is … (when) vaginal sexual intercourse is deemed to be without lawful consent of the victim
because it is committed … When the victim is under the age of 12 years. Lack of knowledge of the victim’s age
shall not be a defense.‖ La. Rev. Stat. Ann. § 14:42(A)(4) (2007). ―However, if the victim was under the age of 12
years … the offender shall be punished by death … in accordance with the determination of the jury. La. Rev. Stat.
Ann. § 14:42(D)(2) (2007). La. Code Crim. Proc. Ann. art. 905.4(A)(10) (2006) lists the aggravating age at under
12 years.
3
  In 2003, the Louisiana legislature amended La. Rev. Stat. Ann. § 14:42(A)(4) (2006), substituting 13 years for 12
years. In 2006, La. Rev. Stat. Ann. § 14:42(D)(2) (2006) was also amended substituting 13 years for 12 years so
that the penalty provisions match the definition of the crime. La. Code Crim. Proc. Ann. art. 905.4(A)(10) (2006)
continues to list the aggravating age at under 12 years.


                                                                                                                 15
states range from 11 to less than 16.4 This slick slope is quickly approaching the age at which

the Court forbids the use of the death penalty to punish rapists – 16 years. Although it is well

within the prerogative of the legislature to draws lines between distinct populations of people,

the Court is also well within its authority to erase lines that arbitrarily subject individuals to the

death penalty.

        The Louisiana capital rape statute established death eligibility by drawing an arbitrary

line around sexual offenders whose victims were under the age of twelve. The capital rape

statute fails to provide meaningful criteria that would enable a jury to determine whether an

offender acted with a particular state of mind toward any component of the offense. The

standardless discretion afforded to juries will prevent the rational review of any death sentences

imposed pursuant to the statute. Therefore, the statute violates the Eighth Amendment by failing

to genuinely narrow the class of death eligible offenders.

    B. Louisiana’s Inappropriate Attempt to Merge the Separate Requirements of Death
       Eligibility and Death Selection Violates the Eighth Amendment.

        Louisiana violates the Eighth Amendment by confusing the separate requirements of

individualized determination and narrowing by relying on the introduction of mitigating

circumstances to narrow the class of death eligible offenders after conviction. The goal of the

death penalty is not to execute every person who commits a heinous crime. Furman v. Georgia,

408 U.S. 238 (1972). To the contrary, the irreversibility of the death penalty mandates reliable

narrowing mechanisms error on the side of under-inclusiveness to prevent juries from erratically

inflicting the death penalty. Gregg v. Georgia, 428 U.S. 153, 190 (1976); State v. Middlebrooks,

840 S.W.2d 317, 344 (1992). As such, capital jurors must have the opportunity and the sense of



4
 Tex. Pen. Code § 12.42 (2007 Supp.); Okla. Stat. 10 § 7115(K) (2006); S.C. Code Ann. § 16-3-655(c)(1) (2006);
Mont. Code Ann. § 45-5-303(c) (1997).


                                                                                                             16
freedom to separately decide whether the offender committed the crime and whether the offender

deserves execution. Woodson v. North Carolina, 428 U.S. 280, 302-303 (1976).

       Capital punishment cases discuss two distinct features of the sentencing process: the

eligibility and selection decisions. Tuilaepa v. California, 512 U.S. 967, 971 (1994). The

eligibility decision places the crime committed within a distinct category of crimes for which the

death penalty is proportionate. Tuilaepa, 512 U.S. at 973; Coker v. Georgia, 433 U.S. 584

(1977). The selection decision encompasses the jury’s determination as to whether a particular

offender, whose actions fall within a narrow category of death eligible crimes, should receive the

death penalty. Tuilaepa, 512 U.S. at 972. The cornerstone of the selection process is the

offender’s receipt of an individualized determination based on the circumstances of the crime

and the individual’s character. Zant v. Stephens, 462 U.S. 862, 879 (1983). An individualized

determination is achieved where the jury is permitted to consider all relevant mitigating

circumstances. Johnson v. Texas, 509 U.S. 350 (1993); Blystone v. Pennsylvannia, 494 U.S.

299, 307 (1990).

       Legislatures may constitutionally narrow the class of death eligible offenders in one of

two ways. Lowenfield v. Phelps, 484 U.S. 231, 232 (1988). First, legislatures may funnel the

class of offenders at the guilt phase by narrowly tailoring the definition of the capital offense.

Lowenfield, 484 U.S. at 232. Second, legislatures may ―broadly define‖ capital offenses and

fulfill the narrowing requirement by asking juries to find an aggravating circumstance at the

penalty phase.     Id. The Louisiana legislature chose to narrow the class of death eligible

offenders at the guilt phase by attempting to narrowly define the capital offense. This narrowing

method highlights that the aggravating circumstance requirement is distinct from the

constitutionality of the narrowing process.    Lowenfield, 484 U.S. at 244, 246. As such, the




                                                                                               17
aggravating circumstance may duplicate an element of the underlying crime if the definition of

the crime provides enough guidance for a jury to objectively distinguish death eligible cases at

the guilt phase. Lowenfield, 484 U.S. at 232, 246.

        In Lowenfield, the aggravating circumstance found by the jury paralleled one of the

underlying elements of the defendant’s first degree murder conviction. Lowenfield, 484 U.S. at

243- 244. The Court permitted this duplication because a reasonable person would conclude the

underlying offense only applied to the subclass of first degree murderers who intended to harm

more than one person. Lowenfield, 484 U.S. at 246. In comparison, two state courts of last

resort used the Lowenfield limitation to find duplicative aggravating circumstances

unconstitutional because the felony-murder statutes of which they were a part did not require

anything like a specific mens rea that would distinguish the few death eligible felony-murderers

from all the rest. McConnell v. State, 102 P.3d 606 (Nev. 2004); State v. Middlebrooks, 840

S.W.2d 317, 345 (Tenn. 1992).

        Similar to the Lowenfield statute, the aggravating circumstance applied in the capital rape

statute duplicates an element of the underlying crime. 5                 However, the capital rape statute

produces the risk of more arbitrary death penalty decisions than the statutes reviewed in

McConnell and Middlebrooks by not only failing to provide specific guidance regarding the

objective criteria a jury should use to distinguish death eligible offenders, but also denying

pertinent information about the offender’s state of mind. 6 In effect, the capital rape statute

authorizes the execution of individuals for consensual acts. Because the underlying element of



5
  ―Aggravated rape is … (when) vaginal sexual intercourse is deemed to be without lawful consent of the victim
because it is committed … When the victim is under the age of 12 years. Lack of knowledge of the victim’s age
shall not be a defense.‖ La. Rev. Stat. § 14:42(A)(4) (2007). ―However, if the victim was under the age of 12 years
… the offender shall be punished by death … in accordance with the determination of the jury. La. Rev.Stat. §
14:42(D)(2) (2007). La. Code Crim. Proc. Ann. art. 905.4(A)(10) (2006) lists the aggravating age at under 12 years.
6
  ―Lack of knowledge of the victim’s age shall not be a defense.‖ La. Rev. Stat. § 14:42(A)(4) (2007).


                                                                                                                18
the crime broadly applies to every individual convicted of having intercourse with a child under

12 without legal consent, the aggravating factor needed to offer the jury additional information

about the meaningful facts that distinguish death eligible cases to be constitutional. Therefore,

the Louisiana statute fails to narrow the class of offenders at either the guilt or penalty phase of

the trial because it relies on a factor that establishes a characteristic of the victim rather than

anything concretely distinct about the offender’s state of mind.

       Although an individualized determination is critical to the constitutionality of a death

sentencing scheme, the requirements to objectively narrow the class of death eligible offenders

and to allow the introduction of all mitigating circumstances are distinct. This means Louisiana

cannot cure the capital rape statute’s failure to narrow the class of death eligible offenders

through the use of mitigating circumstances that are separately required by the Constitution.

Therefore, Louisiana’s narrowing mechanism is unconstitutional because it fails to provide

principled guidance that will enable a jury to objectively identify a subclass of offenders before

the jury is authorized to sentence an offender to death.

       In sum, the Louisiana capital rape statue violates the Eighth Amendment because it fails

to establish objective criteria that will enable juries to evenhandedly impose and appellate bodies

to rationally review death sentences. Moreover, the statute conflates the distinct requirements set

out for death eligibility and death selection.     Therefore, Mr. Kennedy’s death sentence is

unconstitutional and should be vacated.




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                                             CONCLUSION

       The judgment of the Louisiana Supreme Court should be dismissed.       The Eighth

Amendment’s cruel and unusual punishment clause prohibits all States, including Louisiana,

from executing an individual for child rape. At a minimum, Mr. Kenney’s death sentence

violates the Eighth Amendment because the Louisiana statute fails to establish meaningful

criteria that genuinely narrow the class of death eligible offenders.




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