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					                  No. 07-9999

                     IN THE
SUPREME COURT OF THE UNITED STATES

                       

               Patrick Kennedy,

                                Petitioner,

                       v.

               State of Louisiana,

                                Respondent.

                       
             On Writ of Certiorari to
         the Supreme Court of Louisiana
                       

          BRIEF FOR PETITIONER

                       



                    Team 13




                        i
                                QUESTIONS PRESENTED


1.   Does the Eighth Amendment’s Cruel and Unusual Punishment Clause permit a state to

     punish the crime of child rape with the death penalty in light of clear precedent and

     current national consensus that death is a disproportionate and excessive punishment for

     the crime of rape?


2    If so, does Louisiana’s capital rape statute genuinely narrow the class of such offenders

     eligible for the death penalty with a single aggravating circumstance based solely on the

     age of the victim, such that the statute satisfies the strict protections of the Eighth

     Amendment against arbitrary and capricious imposition of the death penalty?




                                                ii
                                                  TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................................ ii
TABLE OF CONTENTS ............................................................................................................ iii
TABLE OF AUTHORITIES ..................................................................................................... iiv
OPINION BELOW ....................................................................................................................... 1
STATEMENT OF THE CASE .................................................................................................... 1
SUMMARY OF ARGUMENT .................................................................................................... 2
ARGUMENT ................................................................................................................................. 3
  I. THE EIGHTH AMENDMENT'S CRUEL AND UNUSUAL PUNISHMENT
  CLAUSE DOES NOT PERMIT A STATE TO PUNISH THE CRIME OF RAPE OF A
  CHILD WITH THE DEATH PENALTY. ............................................................................. 3
     A. PUNISHMENT OF DEATH FOR CHILD RAPE VIOLATES THE EIGHTH
     AMENDMENT UNDER THIS COURT’S CLEAR AND UNAMBIGUOUS STANDARD
     ESTABLISHED IN COKER v. GEORGIA…………………………………………. .......... 4
       1. As in Coker, an Objective Analysis of Current Public Attitude Against the Death
           Penalty for Child Rape Supports the Conclusion that the Punishment is Cruel and
           Unusual…………………………………………………………………………… ..... 5
       2. A Subjective Analysis of the Death Penalty for Child Rape Clearly Shows That the
           Penalty is Disproportionate and Excessive, and Therefore Unconstitutional………. .. 7
       3. Coker's Reasoning Applies to All Rape Crimes, Not Just Rape of an "Adult Woman".9
     B. PUNISHMENT OF DEATH CHILD RAPE VIOLATES THE EIGHTH
     AMENDMENT AS CRUEL AND UNUSUAL UNDER THIS COURT'S ANALYSIS IN
     ATKINS v. VIRGINIA AND ROPER v. SIMMONS………………………………. ........ 10
       1. An Objective Analysis Under the Atkins/Roper Approach Shows That the Direction of
           Change is Against the Death Penalty for the Crime of Child Rape……………… .... 11
       2. Subjective Penalogical Evidence Proves That Capitalizing the Crime of Rape Makes
           No Measurable Contribution to Acceptable Goals of Punishment and Therefore is an
           Excessive and Unconstitutional Penalty………………………………………. ........ 17
  II. LOUISIANA'S CAPITAL RAPE STATUTE VIOLATES THE EIGHTH
  AMENDMENT BECAUSE IT FAILS TO GENUINELY NARROW THE CLASS OF
  SUCH OFFENDERS ELIGIBLE FOR THE DEATH PENALTY. .................................. 20
       1. The Eighth Amendment Requires Louisiana's Capital Rape Law To Genuinely
           Narrow A Death-Eligible Class Of Offenders……………………………………… 20
       2. The Constitutionally Required Narrowing Must Occur Either In The Capital Rape
           Statute Or In The Sentencing Statute, However, The Narrowing Must Be Genuine
           And It Must Have A Meaningful And Non-Arbitrary
           Basis………………………………………………………………………….. .......... 21
       3. Louisiana’s Capital Rape Law Is Unconstitutional Because It Provides For Absolutely
           No Narrowing Of The Death-Eligible Class Offenders…………………………….. 21
       4. Even If Louisiana's Capital Rape Law Serves Some Sort Of Narrowing Function, the
           Narrowing Is Not Genuine, Because It Has No Meaningful Basis……………......... 24
CONCLUSION ........................................................................................................................... 26




                                                                    iii
                                                 TABLE OF AUTHORITIES
Cases
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ......................... passim
Buford v. State, 403 So.2d 943, 951-54 (Fla. 1981) ....................................................................... 6
Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) .............................. passim
Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d. 1140 (1982) ................................ 7
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)......................... 5, 20, 21
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ........................... 3, 4, 20
Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) ............................ 18
Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 555, 98 L.Ed.2d 568 (1988) ........ passim
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ................................ 14
Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ............................ passim
Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989)........................... 15
State v. Gardner, 947 P.2d 630, 651 (Utah 1997) ......................................................................... 19
State v. Kennedy, 957 So. 2d 757 (La. 2007) ........................................................................ passim
State v. Wilson, 685 So.2d 1063, 1066 (1997) ......................................................................... 9, 24
Trop v. Dulles, 356 US 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) .................................................... 3
Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) ........................ 21, 22, 24
Statutes

Ga. Code Ann. § 16-6-1 (Supp. 2006) ............................................................................................ 6
La. C.Cr.P. art 905.4(Supp. 2006) .......................................................................................... 22, 23
La. R.S. 14:42 (Supp. 1995) .................................................................................................. passim
La. R.S. S. 14.30 (Supp. 1988) ..................................................................................................... 23
Mont. Code Ann. §§ 46-18-301 and 45-5-503 (1997) .................................................................... 6
Okl. St. Ann. § 7115(I) (Supp. 2007) ............................................................................................. 6
S.C.Code Ann. § 16-3-655(C)(I) (Supp. 2006) .............................................................................. 6
Texas V.T.C.A. Penal Code Sec. 22.021 (Supp. 2007) .................................................................. 6
West’s F.S.A. § 775.082 (Supp. 1995) ........................................................................................... 6
Other Authorities
Adrien Wing, et al., Rape, Ethnicity, And Culture, 25 Colum. Hum. Rts. L. Rev. 1 (1993) ....... 25
American Psychiatric Profession, Diagnostic and Statistical Manual of Mental Disorders, at 566
   (4th ed. 2000) ............................................................................................................................ 17
David W. Schaaf, Louisiana’s Challenge to Coker, 2000 U. Ill. L. Rev. 347, 353 (2000) ............ 9
Death Penalty Information Center, Facts About the Death Penalty (2007) .................................. 15
Federal Rules of Evidence Sec. 413-415 ...................................................................................... 19
J. Chandler Bailey, Death is Different, Even on the Bayou: The Disproportionality of Crime and
   Punishment in Louisiana's Capital Rape Statute, 55 Wash. & Lee L. Rev. 1335, 1357 (1998)10
Jennifer B. Wriggins, Rape, Racism, And The Law, 6 Harv. Women's L.J. 103 (1983) ............. 25
Joanna D'Avella, Death Row for Child Rape?, 92 Cornell L. Rev. 129, 154 (2006) ................... 16
Nathan K. Bays, A Rush to Punishment, 82 Tul. L. Rev. 339, 368-69 (2007)............................. 18
Samuel R. Gross, Exonerations in the US, 95 J. Crim. K. & Criminology 523, 529 (2005) ....... 19
Stephen J. Ceci, et al., The Suggestibility of Children: Scientific Research and Legal
   Implications, 86 Cornell L. Rev. 33, 53-54 (2000) ................................................................... 19


                                                                       iv
                                      OPINION BELOW

       On writ of certiorari to the Louisiana Supreme Court. The opinion of the Louisiana

Supreme Court is reported at State v. Kennedy, 957 So. 2d 757 (La. 2007)

                                STATEMENT OF THE CASE

       Sentenced to death, Petitioner Patrick Kennedy [hereinafter “Kennedy”] appeals from the

May 22, 2007 judgment of the Louisiana Supreme Court in State v. Kennedy, 957 So. 2d 757

(La. 2007) [hereinafter record “R”], affirming the August 25, 2003 conviction of aggravated rape

in violation of La. R.S. 14:42 (Supp. 1995) by the Twenty-Fourth Judicial District Court, Parish

of Jefferson, Honorable Ross LaDart presiding. R. at 757.

       Kennedy was convicted of aggravated rape for raping his eight-year-old stepdaughter, a

capital offense. R. at 760. A jury unanimously decided recommended a sentence of death. Id.

On October 2, 2003, the district court denied Kennedy’s motion for a new trial, in which

Kennedy contended that sentencing a defendant to death for aggravated rape in which the victim

does not die is unconstitutional, and sentenced Kennedy to death. Id. Kennedy appealed to the

Louisiana Supreme Court, assigning 69 errors in both his conviction and punishment. Id.

       Kennedy argued inter alia to the Louisiana Supreme Court that the United States

Supreme Court interpretation of the Eighth Amendment prohibits the death penalty as cruel and

unusual punishment, because death is a disproportionate punishment for the crime of rape. R. at

779. Kennedy also argued that in the unlikely event the penalty survived constitutional scrutiny,

Louisiana’s capital child rape statute still violated the Eighth Amendment inasmuch as it failed to

genuinely narrow the class of offenders eligible for the death penalty. R. at 789-90. The

Louisiana Supreme Court held inter alia that imposing the death penalty for the rape of a child

under the age of twelve is not a disproportionate punishment, R. at 789, and that Kennedy’s




                                                1
assignment of error regarding the failure to genuinely narrow the eligible class of offenders

lacked merit. R. at 791. Kennedy petitioned for writ of certiorari and this Court granted.

                                 SUMMARY OF ARGUMENT

       The Eighth Amendment mandates that punishments shall not be cruel and unusual.

Whether a punishment is cruel and unusual is determined by objectively looking at the “evolving

standards of decency that mark the progress of a maturing society,” as indicated by national

consensus and legislative enactments. Furthermore, this Court must independently and

subjectively determine whether a punishment (1) makes no measurable contribution to

acceptable goals of punishment, or (2) is disproportionate to the severity of the crime. If either

determination is made, then the punishment is excessive and unconstitutional.

       Under Coker v. Georgia, this Court determined that a sentence of death is a grossly

disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by

the Eighth Amendment as cruel and unusual punishment. The Coker court analyzed the public

attitude towards the death penalty for child rape by looking to the number of states and

legislative enactments that authorized or forbade the punishment at issue. The Coker court then

subjectively determined that the death penalty is an excessive penalty for the rapist, who does not

take a human life. Under this analysis, it is clear that Louisiana’s capital child rape statute is not

accepted by the current public attitude, and because all death penalty for rape is excessive, the

punishment cannot withstand constitutional scrutiny.

       Under the more recent decisions of Atkins v. Georgia and Roper v. Simmons, this Court

objectively looked to the “direction of change” in determining the evolving standards of decency

regarding a particular capital punishment. Atkins and Roper also looked to the two goals of

retribution and deterrence to subjectively determine if a punishment makes a measurable




                                                  2
contribution to acceptable goals of punishment. Under this analysis, the direction of change is

indubitably against the death penalty for child rape. Furthermore, punishment of the death

penalty for child rape does not serve either goal of retribution or deterrence.

       Moreover, even if the death penalty for child rape was considered constitutional,

Louisiana’s capital child rape statute still violates the Eighth Amendment’s protection against

arbitrary and capricious application because the statute fails to genuinely narrow the class of

child rape offenders eligible for the death penalty.

                                           ARGUMENT

I. THE EIGHTH AMENDMENT'S CRUEL AND UNUSUAL PUNISHMENT CLAUSE
DOES NOT PERMIT A STATE TO PUNISH THE CRIME OF RAPE OF A CHILD
WITH THE DEATH PENALTY.

       Eighth Amendment jurisprudence makes it veritably clear that Kennedy's sentence of

death for the crime of rape is unconstitutional. Like all other United States citizens, Kennedy is

explicitly afforded the fundamental protection under the Eighth Amendment that cruel and

unusual punishments shall not be inflicted. See U.S. Const. Amend. VIII. “There is no question

that death as a punishment is unique in its severity and irrevocability." Gregg v. Georgia, 428

U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976). The death penalty is "an extreme

sanction, suitable to the most extreme of crimes," Id. at 187. Thus, this Court has the duty and

authority to carefully examine any meritoriously asserted challenge to a statute’s authority to

condemn a man to death.

       Whether a punishment is "cruel and unusual" must be interpreted using the "evolving

standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 US 86,

101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Additionally, the Eighth Amendment "demands

more than that a challenged punishment be acceptable to contemporary society." Gregg, 428




                                                  3
U.S. at 182. Courts must also ask whether it "comports with the basic concept of human dignity

at the core of the Amendment." Id. This means that the punishment must not be "excessive."

Id. A sanction is excessive when it makes no “measurable contribution to acceptable goals of

punishment” and is merely a senseless imposition of pain and suffering, or is "grossly out of

proportion to the severity of the crime." Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53

L.Ed.2d 982 (1977), citing Gregg, 428 U.S. at 173 (emphasis added).

       Over time, this Court has drawn tangential conclusions in how this analysis is interpreted

and applied. See e.g. Coker, 433 U.S. 584; but see Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.

2242, 153 L.Ed.2d 335 (2002), Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1

(2005). Kennedy maintains, however, that under any standard, punishment of death for the

crime of rape is unequivocally cruel and unusual, and therefore unconstitutional.

       A. PUNISHMENT OF DEATH FOR CHILD RAPE VIOLATES THE EIGHTH
       AMENDMENT UNDER THIS COURT’S CLEAR AND UNAMBIGUOUS
       STANDARD ESTABLISHED IN COKER v. GEORGIA.

       The Louisiana Supreme Court's decision to uphold Kennedy's sentence of death for the

crime of rape disregards this Court's explicit ruling 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." Coker, 433 U.S. at 592. This Court

should apply the analysis and framework of Coker, as it precisely pertains to the issue presented.

       In Coker, this Court addressed whether the death sentence is a cruel and unusual

punishment for a defendant who had been convicted of the rape of an "adult woman." Coker,

433 U.S. at 592. Coker explained that the analysis involves considering (1) ". . .the public

attitudes concerning a particular sentence history and precedent [and] legislative attitudes. . .”

Id. at 592, and (2) whether a punishment is "excessive." Id. at 597. The Coker plurality




                                                  4
concluded that "in light of the legislative decisions in almost all of the [United States] and in

most of the countries around the world," and because the "death sentence is a disproportionate

punishment for rape," Id. at 592 n.4, the sentence of death for the crime of rape is cruel and

unusual punishment.

       1. As in Coker, an Objective Analysis of Current Public Attitude Against the Death
       Penalty for Child Rape Supports the Conclusion that the Punishment is Cruel and
       Unusual.

       In reaching the conclusion that the death sentence for rape is cruel and unusual

punishment, the Coker court stressed that the judgment "should be informed by objective factors

to the maximum possible extent." Coker, 433 U.S. at 592. Accordingly, the Coker court first

sought guidance in "history and from the objective evidence of the country's present judgment

concerning the acceptability of death as a penalty for rape of an adult woman." Id. at 593. The

Coker court looked at the behavior of states after Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972), which effectively invalidated most of the capital punishment

statutes in the country due to the manner in which the death penalty was imposed.

       Specifically, the Coker court looked to the historical development of the punishment at

issue and legislative judgments. The Coker plurality observed that "at no time in the last 50

years have a majority of the States authorized death as a punishment for rape." Id. at 593. More

importantly, in reenacting death penalty laws in order to satisfy the criteria of Furman, only three

States provided the death penalty for the rape of an adult woman in their revised statutes, and of

these three, two had their statutes invalidated because of Woodson and Roberts violations.

Coker, 433 U.S. at 594. After these statutes were invalidated, these two States chose not remedy

the problem and did not reenact the death penalty for rape. Id. In sum, at the time of Coker only

one State authorized a sentence of death when the rape victim was an adult woman, and two




                                                  5
other jurisdictions provided capital punishment only when the victim was a child. Id. The Coker

court concluded that based on the legislative response to Furman, the "current judgment with

respect to the death penalty for rape is not wholly unanimous among state legislatures, but it

obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty

for raping an adult woman." Id. at 596.

       Likewise, in the instant case objective factors clearly indicate that the public attitude is

against the death penalty for child rape. Of the current thirty-eight states and jurisdictions that

allow for the death penalty, only seven provide it for child rape. See La. R.S. 14:42 (Supp.

1995); Mont. Code Ann. §§ 46-18-301 and 45-5-503 (1997); Ga. Code Ann. § 16-6-1 (Supp.

2006); Okl. St. Ann. § 7115(I) (Supp. 2007); S.C.Code Ann. § 16-3-655(C)(I) (Supp. 2006);

Texas V.T.C.A. Penal Code Sec. 22.021 (Supp. 2007); West’s F.S.A. § 775.082 (Supp. 1995).

Florida has retained capital rape as a matter of statutory law but has not enforced it since 1981,

following a Florida Supreme Court decision in Buford v. State, 403 So.2d 943, 951-54 (Fla.

1981), which struck down the law in light of Coker. Therefore, although the current legislative

judgment is not "wholly unanimous among state legislatures," Coker, 433 U.S. at 596, it

nevertheless weighs on the side of rejecting capital punishment for the crime of child rape.

       Additionally, the Louisiana Supreme Court erred in the opinion below when the court

addressed other non-homicide statutes in their objective analysis of public attitude towards the

death penalty for child rape. R. at 785 ( reasoning that "[t]his analysis should look beyond the

child rape penalty provisions of other states and instead should consider all non-homicide capital

statutes to determine the national consensus. . . ."). Coker clearly indicates that, in assessing the

objective factors of public attitude, they must look only to the specific crime and question of law

that the court is addressing. Specifically, the Coker analysis involves considering "the public




                                                  6
attitudes concerning a particular sentence history and precedent. . . ." Coker, 433 U.S. at 592

(emphasis added). The Supreme Court has reaffirmed this view in Enmund v. Florida, 458 U.S.

782, 788-89, 102 S.Ct. 3368, 3372, 73 L.Ed.2d. 1140 (1982), where the court, in describing the

objective analysis of Coker, stated that ". . . the [Coker] court looked to the historical

development of the punishment at issue. . . ." (emphasis added). This specificity is also reflected

in the general scope of Coker’s analysis, of which the court stated that "we seek guidance . . .

[regarding] the acceptability of death as a penalty for rape of an adult woman," Coker, 433 U.S.

at 593 (emphasis added), thus recognizing that the analysis is limited to the specific crime at

issue (rape) not all non-homicide crimes in general.

       Furthermore, the Louisiana Supreme Court’s analysis of whether a capital non-homicide

crime such as treason or espionage is accepted as a matter of national consensus, R. at 785-86, is

irrelevant to the issue at hand. The question of law in the instant case is specifically whether the

death penalty is an unconstitutional penalty for the crime of child rape, not for all non-homicide

crimes in general. Moreover, even if these non-homicide crimes were considered in the

objective analysis, the Louisiana Supreme Court found in its own "stark analysis" that only 15 of

39 jurisdictions (including federal) authorize some form of non-homicide capital punishment, see

R. at 788, thus evidencing a clear lack of majority consensus on the issue. The Louisiana

Supreme Court itself conceded that "there may be no consensus one way or the other on whether

death is an appropriate punishment for any crime which does not result in the death of the

victim." R. at 788. Thus, looking to non-homicide capital crimes offers no objective support for

punishing child rape with the death penalty.

       2. A Subjective Analysis of the Death Penalty for Child Rape Clearly Shows That the
       Penalty is Disproportionate and Excessive, and Therefore Unconstitutional.




                                                  7
       In Coker, this Court held that objective evidence does not "wholly determine [the]

controversy, for the Constitution contemplates that in the end our own judgment will be brought

to bear on the question of the acceptability of the death penalty under the Eighth Amendment."

Coker, 433 U.S. at 597. The Coker court determined that based on their own judgment, death

was a disproportionate penalty for the crime of raping an adult woman.

       The Coker court did not "discount the seriousness of rape as a crime," finding it "highly

reprehensible" and, short of homicide, the "ultimate violation of self." Coker, 433 U.S. at 597-

98. Nevertheless, the Coker court held that

       in terms of moral depravity and of the injury to the person and to the public, [rape] does
       not compare with murder, which does involve the unjustified taking of human life. . .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 . . . does not take human life."

Id. (citations and quotation marks omitted). This reasoning is just as pertinent today. Following

the logic of Coker, there is little or no room to argue that a court should allow the death penalty

for the rape of a child, as a child rapist does not take a human life. Because there is no question

that death as a punishment is "unique in its severity and irrevocability, Coker at 584 (citation

omitted), this Court should hold in its own subjective analysis that rape is not deserving of the

death penalty.

       Attempts to distinguish the subjective reasoning of Coker to the instant case are without

merit. A comparison of child rape to other non-homicide crimes such as treason and espionage is

simply unfeasible as these crimes are totally unrelated in terms of damage done to the public and

the victim. This Court has yet to pass on the constitutionality of capital treason and espionage

statutes, however, whether or not the death penalty is acceptable for these crimes is irrelevant to

the reasoning of this case. Coker drew the line for the crime of rape: if the defendant does not

kill someone while committing a rape, he is not deserving of the death penalty, as the crime of



                                                 8
rape does not approach the moral culpability of murder. Whether treason, espionage, or some

other non-homicide crime approaches the culpability of murder is not necessary to be decided or

debated by this Court to resolve the instant issue.

       In sum, the Louisiana Supreme Court offers no concrete subjective evidence in support of

the proposition that child rape is such an extreme and repugnant offense that it is equal in gravity

to the offense of murder, and as such is deserving of the death penalty as well. Child rape does

not result in death, does not approach the extreme level of gravity as the crime of murder, and

thus does not qualify for the most extreme of sanctions, the death penalty.

       3. Coker's Reasoning Applies to All Rape Crimes, Not Just Rape of an "Adult Woman".

       The Louisiana Supreme Court's argument that Coker is only limited to "rape of an adult

woman," R. at 781, citing State v. Wilson, 685 So.2d 1063, 1066 (1997), is without merit and is

not supported by the clear language of Coker and subsequent interpretations of Coker's holding.

     Although the Coker court did use the term "rape of an adult woman" fourteen times, as

meticulously counted by the Louisiana Supreme Court, the Coker plurality used the word "rape"

without the modifier "adult woman" almost as frequently as it used the word "rape" with the

modifier. See David W. Schaaf, Examining Constitutionality of Louisiana’s Challenge to Coker

v. Georgia, 2000 U. Ill. L. Rev. 347, 353 (2000). Moreover, this empirical analysis ignores the

true meaning and context of Coker's reasoning. The Coker court concluded 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." Coker, 433 U.S. at 592

(emphasis added). The Coker court further explained that "rape by definition does not include

the death of or even the serious injury to another person," and therefore "the death penalty . . . is

an excessive penalty for the rapist who . . . does not take human life." Id. at 598. Coker went on




                                                  9
to hold that even under a finding of more severe aggravating circumstances, it would not change

the conclusion that imposing the death sentence is a disproportionate crime for rape. Id. at 599.

Coker thus draws a clear line: that rape, in and of itself, is a crime not deserving of the death

penalty, under any circumstance.

       The concurring and dissenting opinions in Coker contribute to the general understanding

of Coker's holding that the death penalty is not a constitutional punishment for rape of any sort.

Justice Powell argued that the plurality "holds that capital punishment always regardless of the

circumstances is a disproportionate penalty for the crime of rape," and failed to distinguish

among types of rape. Coker, 433 U.S. at 601 (Powell, J., concurring and dissenting). Chief

Justice Burger disagreed with Coker's "breadth" in that it concerned the generic crime of rape

instead of a narrow inquiry into the actual facts and circumstances of the crime at issue. Id. at

606-607 (Burger, C.J., dissenting).

       Many courts commentators also agree with this proposition. See, e.g., J. Chandler

Bailey, Death is Different, Even on the Bayou: The Disproportionality of Crime and Punishment

in Louisiana's Capital Rape Statute, 55 Wash. & Lee L. Rev. 1335, 1357 (1998) (discussing

courts and commentators that have understood Coker to prevent application of the death penalty

when the victim is not killed). Thus, it is readily apparent from the language in Coker and from

subsequent interpretations that the court was not simply barring the imposition of the death

penalty for the crime of rape of an adult woman, but rather was barring the death penalty for any

form of rape so long as no death had occurred.

       B. PUNISHMENT OF DEATH FOR CHILD RAPE VIOLATES THE EIGHTH
       AMENDMENT AS CRUEL AND UNUSUAL UNDER THIS COURT'S
       ANALYSIS IN ATKINS v. VIRGINIA AND ROPER v. SIMMONS.




                                                 10
        Although Coker v. Georgia bears directly on the issue of whether the offense of child

rape is eligible for the death penalty, the Louisiana Supreme Court also chose to apply the

framework of this Court's more recent analysis of the culpability of mentally infirm and juvenile

defendants in the capital context. See R. at 782-84. In Atkins v. Virginia, 536 U.S. 304, this

Court exempted mentally retarded persons from the death penalty, and in Roper v. Simmons, 543

U.S. 551, this Court exempted all defendants under the age of 18 from capital punishment as

well.

        Both Atkins and Roper reaffirm past jurisprudence that the core of the Eighth

Amendment requires to this Court to look at the "evolving standards of decency that mark the

progress of a maturing society," Roper, 543 U.S. at 561 (internal quotation marks and citation

omitted), and that the court must also look to its own subjective judgment of whether the penalty

is disproportionate and excessive to the crime. Atkins, 536 U.S. at 312.

        The Louisiana Supreme Court undoubtedly erred, however, in concluding that under

Atkins and Roper, punishment of the death penalty for child rape is constitutional. R. at 788.

Under this analysis, the result remains the same: imposing the death penalty for child rape is not

acceptable under contemporary society's evolved standards of decency, and is so

disproportionate and excessive as to be cruel and unusual, and therefore unconstitutional.

        1. An Objective Analysis Under the Atkins/Roper Approach Shows That the Direction of
        Change is Against the Death Penalty for the Crime of Child Rape.

        As the Louisiana Supreme Court noted, this Court in Atkins supplemented the empirical

methodology used in Coker by also taking into account the "direction of change." R. at 783,

citing Atkins, 536 U.S. at 315 ("It is not so much the number of these States that is significant,

but the consistency of the direction of change."). Thus, in addition to a numerical counting of

jurisdictions that permit a capital punishment for or against a particular crime, the direction of



                                                 11
change can provide strong objective evidence of the "evolving standards of decency in a mature

society" regarding a particular punishment.1

         In Atkins, this Court addressed the issue of whether mentally retarded defendants can be

subject to the death penalty. The Atkins court looked to the number of states that had abandoned

capital punishment for the mentally retarded following a decision in Penry v. Lynaugh, 492 U.S.

302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), which held that the Eighth Amendment does not

bar execution of the mentally retarded. The Atkins court noted that fewer than half of the states

were against imposing the death penalty on the mentally retarded, and also noted the failure of

any state legislature to adopt the death penalty for the mentally retarded following the decision in

Penry. Atkins, 536 U.S. at 314-16. The Atkins court reasoned that

         given the well-known fact that anticrime legislation is far more popular than legislation
         providing protections for persons guilty of violent crime, the large number of States
         prohibiting the execution of mentally retarded persons. . . provides powerful evidence
         that today our society views mentally retarded offenders as categorically less culpable
         than the average criminal.

Id. at 315-16. Moreover, "even in those States that allow the execution of mentally retarded

offenders, the practice is uncommon." Id. (emphasis added). At the time of Atkins, for example,

some states continued to authorize executions of mentally retarded offenders, but had not carried

out an execution in decades. Id. Therefore, the Atkins court concluded that the practice of

executing the mentally retarded had become "truly unusual," and that a "national consensus [had]

developed against it." Id.

         In Roper v. Simmons, this Court addressed whether the execution of juveniles was

constitutional following Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306

(1989) (concluding that the eighth amendment did not prevent the execution of juvenile

1
  The empirical analysis of evolving standards of decency in the Atkins / Roper context for capital child rape
statutes is identical to the analysis done under Coker’s interpretation, and thus is referenced supra in the interests of
brevity and clarity


                                                           12
offenders over 15 but under 18). "[Reinforcing] the importance of the direction of change to its

analysis," R. at 783, the Roper court reviewed objective indicia of consensus, as expressed "in

particular by the enactments of legislatures that have addressed the question." Roper, 543 U.S. at

564. The Roper court stated that "evidence of national consensus against the death penalty for

juveniles [was] similar, and in some respects parallel, to the evidence Atkins held sufficient to

demonstrate a national consensus against the death penalty for the mentally retarded." Id. at 564.

In Roper, the court noted that eighteen states that allow for the death penalty exclude juveniles

from its reach, by express provision or judicial interpretation. Id. at 564. Furthermore, five

states that had allowed the death penalty for juveniles prior to Stanford prohibited it at the time

of Roper. Id. at 565. The Roper court concluded that

         [a]s in Atkins, the objective indicia of consensus in this case -- the rejection of the
         juvenile death penalty in the majority of States; the infrequency of its use even where it
         remains on the books; and the consistency in the trend toward abolition of the practice --
         provide sufficient evidence that today our society views juveniles [as not deserving of the
         death penalty].

Roper, 543 U.S. at 567.

         The Louisiana Supreme Court applied this Atkins / Roper objective test but incorrectly

concluded that the direction of change is towards the death penalty for child rape. R. at 788. The

Louisiana Supreme Court noted that since State v. Wilson, which upheld the constitutionality of

the capital child rape statute, “[five] 2 states have enacted laws which capitalize child rape.” R. at

788. The Louisiana Supreme Court reasoned that "looked at another way, even after the

Supreme Court decided in Coker that the death penalty for rape of an adult woman was

unconstitutional, [six]3 states [including Louisiana] nevertheless have capitalized child rape since


2
  At the time of the opinion of the lower court, four states had enacted capital child rape legislation after Wilson.
Since the decision, Texas has additionally enacted a capital child rape law. Therefore, Kennedy will assume that the
Louisiana Court would likely have incorporated Texas’ statute as part of their analysis.
3
  See supra note 2.


                                                         13
then, a number which the Supreme Court held in Roper was sufficient to indicate a new

consensus regarding society's standards of decency towards the juvenile death penalty." R. at

788.

       This reasoning neglects the true context behind legislative enactments of capital child

rape statutes. After Furman, which required states to redraft their death penalty statutes or

abandoned them altogether, Louisiana inexplicably waited a period of twenty-three years to

enact its child rape statute. Additionally, in the thirty-one years since Coker, only Georgia has

consistently reenacted its capital rape provisions, as conceded by the Kennedy court. R. at 784 .

Florida has retained the statutory capital punishment for child rape as a matter of law since 1981,

but has not enforced it since it was invalidated in State v. Buford. The other four states

only recently enacted their child rape capital punishment statutes (Montana in 1997; Oklahoma

and South Carolina in 2006; Texas in 2007). Thus, over a period of thirty-six years since

Furman, there has been a consistent national consensus in the direction of abandoning the death

penalty for child rape altogether. If anything, it seems to argue against the existence of a trend.

A sudden and recent spurt of a select minority of states in enacting legislation hardly establishes

a consensus of direction. The only logical conclusion that can be drawn is that the national

consensus and direction of change has been consistently against enacting the death penalty for

child rape.

       The Louisiana Supreme Court's survey of other non-homicide crimes to support the

court's direction of change argument is also unpersuasive. Although the court noted that "most

commentators agree that the number of jurisdictions allowing the death-penalty for non-

homicide crimes at least doubled between 1993 and 1997," R. at 786, the Louisiana Supreme

Court ignores the fact that of the 3300 people on death row in 2007, only Kennedy had




                                                 14
committed a non-homicide crime. Death Penalty Information Center, Facts About the Death

Penalty (2007).4 Furthermore, no one has been executed for a non-homicide crime since 1964.

Id. The direction of change test is not limited to just legislative action; both Atkins and Roper

recognize that the inaction of states to prosecute and sentence defendants to death in crimes even

when it is available is evidence of a national census against the capital punishment. See

Atkins, 536 U.S. at 315-16 (holding that in states, even where the execution of mentally retarded

offenders is allowed, if the practice is uncommon then that weighs against a national consensus

for the penalty); Roper, 543 U.S. at 567 (holding that "the infrequency of [a capital punishment]

even where it remains on the books" is evidence against a national consensus for accepting that

punishment) (emphasis added). Thus, it must be concluded that the practice of executing

defendants for non-homicide crimes has become "truly unusual," See Atkins, 536 U.S. at 316,

and that a national consensus has developed against it. Id.

        Furthermore, the Kennedy court contravened the logic of this Court in its determination

that the trend in the instant case

        is more compelling then in Roper, given the Roper court's reliance on five states
        abolishing the death penalty for juveniles after Stanford held that the death penalty
        for juveniles was constitutional. Here, we have five states enacting the death penalty for
        child rape in spite of Coker, which held that the death penalty for rape of an adult was
        unconstitutional."

R. at 788 (emphasis added). This reasoning defies the holding of this Court in Atkins, which

explicitly stated that "[g]iven the well-known fact that anticrime legislation is far more popular

than legislation providing protections for persons guilty of violent crime. . . [states that protect

defendants by prohibiting the death penalty] provides powerful evidence that [society views the

punishment as unacceptable]. " Atkins, 536 U.S. at 315-16. Therefore, in the instant case

4
  Available at http://www.deathpenaltyinfo.org (last accessed February 20, 2008). At the time of writing, one other
person is now on death row for child rape. Richard Davis was convicted of aggravated child rape in Louisiana in
December of 2007 and sentenced to death. His case is currently on appeal.


                                                        15
evidence of states that enact anti-crime legislation, specifically states that enact legislation to

punish child rapists, is not as objectively persuasive or "compelling" as the evidence in Roper or

Atkins.

          Finally, the Louisiana Supreme Court ignored the weight of international opinion that

Roper placed in an objective analysis of evolving standards of decency. The Roper court

buttressed its conclusion that death was disproportionate to the particular class of offender under

consideration by taking into account the overwhelming weight of international opinion

disapproving of the death penalty for juvenile offenders. Roper, 543 U.S. at 575. Current

international opinion as to the acceptability of child rape is very similar. The vast majority of the

countries that retain the death penalty do not have capital child rape laws. Joanna D'Avella,

Death Row for Child Rape? Cruel and Unusual Punishment Under The Roper-Atkins “Evolving

Standards of Decency” Framework, 92 Cornell L. Rev. 129, 154 (2006). Only China, Iran,

Jordan, Mongolia, the Philippines, Uganda, and Uzbekistan still retain the death penalty for child

rape. Id. In addition, because forty countries have abandoned the death penalty as a whole since

1990, Id. (citing Amnesty International surveys), international opinion remains a limiting factor

on the acceptability of the death penalty for all crimes, including child rape, and indicates that

the direction of change is towards the rejection of death penalty for child rape. See id.

          In sum, the Louisiana Supreme Court cannot offer any strong objective evidence that

supports the direction of change concept in favor of the death penalty for child rape. The minor

trend of a few states that have recently adopted capital child rape statutes is far outweighed by

the clear national consensus in legislation and in actual practice against the death penalty for

child rape and non-homicide crimes in general. Therefore, the direction of change indicates that

the evolving standards of decency of society are against capitalizing the crime of child rape.




                                                  16
       2. Subjective Penalogical Evidence Proves That Capitalizing the Crime of Rape Makes
       No Measurable Contribution to Acceptable Goals of Punishment and Therefore is an
       Excessive and Unconstitutional Penalty.

       The Louisiana Supreme Court held that the "second stage of the Atkins / Roper analysis

[is] relevant" in a subjective analysis of child rape statutes, as the court should "bring its own

independent judgment on the Eighth Amendment question." R. at 788. Under this analysis, the

court must consider whether capital punishment for a particular class of offenders serves the twin

social purposes of "retribution and deterrence," see Atkins, 536 U.S. at 319; Roper, 543 U.S. at

571, to see if it makes a "measurable contribution to acceptable goals of punishment." The

Atkins / Roper subjective analysis also asks whether the defendant faces a special risk of

wrongful execution.

       The Louisiana Supreme Court wrongly determined that "execution of child rapists will

serve the goals of deterrence and retribution just as well as execution of first-degree murderers

would." R. at 789. The goal of retribution requires the punishment to be directly related to the

defendant's individual culpability. See Atkins, 536 U.S. at 319. Atkins reasoned that “if the

culpability of the average murderer is insufficient to justify the most extreme sanction available

to the State, the lesser culpability of the mentally retarded offender does not merit that form of

retribution." Id. Roper also held that the "vulnerability and comparative lack of control over

their immediate surroundings" and the "susceptibility of juveniles to [irresponsible] behavior"

means that juveniles cannot be classified among the worst offenders. Roper, 543 U.S. at 569-

70. Similarly, the child rapist could be considered less culpable than the "worst offenders" or the

"average murderer." It is generally accepted in the psychiatric profession that "pedophilia" is a

mental disorder of which many of the afflicted are unable to control their actions. American

Psychiatric Profession, Diagnostic and Statistical Manual of Mental Disorders, at 566 (4th ed.




                                                  17
2000). This Court has also recognized that classification of pedophilia as a "mental abnormality"

that prevents the afflicted from exercising adequate control over their behavior is acceptable for

purposes of civil commitment. See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138

L.Ed.2d 501 (1997) (holding that involuntary civil commitment of pedophiles on a finding of

"mental abnormality" satisfies due process requirements). Thus, the child rapist cannot generally

be held to approach the moral culpability of the average murderer or be classified among the

worst offenders deserving of the death penalty, and punishment of the death penalty for all

convicted child rapists would not serve the goal of retribution.

       Likewise, capital child rape statutes do not serve the goal of deterrence as it fails to meet

the "interest in preventing capital crimes by prospective offenders." See Atkins, 536 U.S. at 319.

Contrary to the Louisiana Supreme Court's reasoning, the capital child-rape statute may not only

fail to deter child rape, but could result in more child murders, fewer reported rapes, and fewer

rape convictions. See Nathan K. Bays, A Rush to Punishment: The Louisiana Supreme Court

Upholds the Death Penalty for Child Rape in State v. Kennedy, 82 Tul. L. Rev. 339, 368-69

(2007). The theory of deterrence in capital sentencing is "predicated upon the notion that the

increased severity of the punishment will inhibit criminal actors from carrying out murderous

conduct." Atkins, 536 U.S. at 320. Here, imposing the death penalty on child rapists eliminates

any incentive for the rapist to let the child live, as he could receive no harsher penalty for the

murder of the child than for the rape. By killing the child, the rapist would probably eliminate

the only likely witness to the crime. Furthermore, because many child sexual abuse cases

involve family members or close acquaintances, see Bays, 82 Tul. L. Rev. at 368 (citing U.S.

Dept. of Justice Surveys), the victims of child rape may be less likely to report the abuse if they

knew that reporting could lead to a family member's execution. Thus, the child rapist is not




                                                  18
deterred from the crime if the chance of being reported is low. Finally, because the penalty of

death for child rape is so disproportionate, this may "make prosecutors and [triers of fact]

reluctant to seek or impose penalties they see as unjust." See State v. Gardner, 947 P.2d 630,

651 (Utah 1997). As a result, juries will be less likely to convict and prosecutors will be more

likely to charge a lesser crime when such an extreme sanction is at issue, reducing the amount of

child rape convictions and undermining the goals of deterrence.

       Additionally, the Atkins court expressed concern for mentally ill defendants who face a

special risk of wrongful execution. Atkins, 536 U.S. at 321. Child rapists also are highly

susceptible to wrongful execution. The rate of wrongful convictions is greater for rape than for

any other non-homicide crime. See Samuel R. Gross et al., Exonerations in the United States,

1989 through 2003, 95 J. Crim. K. & Criminology 523, 529 (2005). Young children are easily

pressured by overzealous prosecutors and social workers, and can be coerced by family members

in the context of bitter family disputes or custody battles. See Stephen J. Ceci, et al., The

Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33,

53-54 (2000). Defendants in child rape prosecutions are also disadvantaged by the Federal Rules

of Evidence , as propensity evidence is uniquely admissible in both civil and criminal trials

against sex offenders of children. See Fed. R. Evid. 413-415. The risk of wrongful execution

therefore subjectively weighs against the constitutionality of capital child rape statutes and

provides a "second justification for a categorical rule making such offenders ineligible for the

death penalty." See Atkins, 536 U.S. at 320.

       In conclusion, capital punishment for child rape does not serve the goals of either

retribution or deterrence. Because a punishment is excessive if it does not make a "measurable

contribution to acceptable goals of punishment," it does not comport with "the basic concept of




                                                 19
human dignity at the core of the amendment" and therefore must be considered unconstitutional.

See Gregg, 428 U.S. at 182.

II. LOUISIANA'S CAPITAL RAPE STATUTE VIOLATES THE EIGHTH
AMENDMENT BECAUSE IT FAILS TO GENUINELY NARROW THE CLASS OF
SUCH OFFENDERS ELIGIBLE FOR THE DEATH PENALTY.

       Even if this Court accepts Respondent's contention that death could be a proportionate

punishment for child rape under some conceivable circumstance, Louisiana's capital rape law

still violates the Eighth Amendment because it fails to genuinely narrow the class of death-

eligible offenders. Namely, Louisiana's capital rape law unconstitutionally permits the

imposition of the death penalty on an overbroad class of offenders based solely, arbitrarily, and

capriciously on a victim's age. Furthermore, Louisiana's capital rape law gives

juries no guidance to differentiate between offenders who are deserving of the death penalty

from offenders who are undeserving of the death penalty.

       1. The Eighth Amendment Requires Louisiana's Capital Rape Law To Genuinely
       Narrow A Death-Eligible Class Of Offenders

       It is well settled that the Eighth Amendment's cruel and unusual punishments clause

forbids a state from killing "an arbitrary handful" of criminals. See Furman, 408 U.S. at 305.

Furthermore, "[W]here discretion is afforded a sentencing body on a matter so grave as the

determination of whether a human life should be taken or spared, that discretion must be suitably

directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg,

428 U.S. at 189. This Court clarified this principle in Zant v. Stephens, 462 U.S. 862, 877, 103

S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), stating that, in order to avoid being unconstitutionally

arbitrary and capricious, a capital sentencing scheme must "[g]enuinely narrow the class of

persons eligible for the death penalty and must reasonably justify the imposition of a more severe

sentence on the defendant compared to others found guilty of [the same crime]."     The Eighth



                                                20
Amendment clearly demands "genuine narrowing" in capital sentencing schemes, and

Louisiana's capital rape law is no exception.

       2. The Constitutionally Required Narrowing Must Occur Either In The Capital Rape
       Statute Or In The Sentencing Statute, However, The Narrowing Must Be Genuine And
       It Must Have A Meaningful And Non-Arbitrary Basis.

       This Court has established that a capital sentencing scheme may genuinely narrow a

death-eligible class in one of two ways. First, “[t]he legislature may itself [genuinely] narrow

the definition of capital offenses[.]” Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546,

555, 98 L.Ed.2d 568 (1988). Second, “[t]he legislature may more broadly define capital offenses

and provide for [genuine] narrowing by jury findings of aggravating circumstances[.]” Id.

Therefore, as applied here, the constitutionally required narrowing must occur either in

Louisiana’s capital rape statute or in the Louisiana’s capital sentencing statute.

       Regardless of the method chosen, however, the narrowing must be genuine. Lowenfield,

484 U.S. at 244. This Court’s long-followed precedent in capital cases indicates that genuine

narrowing requires the instruction of a “meaningful basis for distinguishing the few cases in

which [the death penalty] is imposed from the many cases in which it is not imposed.” Zant, 462

U.S. at 907-908, citing Furman, 408 U.S. at 313 (White, J. concurring) (emphasis added).

Whether a narrowing function has a “meaningful basis” involves determining if it provides an

“[o]bjective, evenhanded, and substantively rational” means of judging a defendant on the basis

of the “character of the individual and the circumstances of the crime.” See Zant, 462 U.S. at 879

(citations omitted).

       3. Louisiana’s Capital Rape Law Is Unconstitutional Because It Provides For Absolutely
       No Narrowing Of The Death-Eligible Class Offenders.

       Louisiana's capital rape statute identifies, but fails to narrow, a broad death-eligible class

of child rape offenders. Louisiana's capital rape statute authorizes the death penalty for those



                                                 21
offenders who rape a "victim [who] is under the age of twelve years." La. R.S.

14:42(A)(4)&(D)(2) (Supp. 1995)5 Under La. R.S. 14:42, there are other forms of "aggravated

rape," but none of those offenses are capitalized. Thus, in order for a person to be convicted of

capital aggravated rape in Louisiana, the victim must be under the age of twelve; otherwise a

person commits a completely different offense. Louisiana's capital rape statute therefore

identifies one broad class of death-eligible offenders, but it provides for no narrowing of this

class.

         Louisiana's capital sentencing statute provides numerous "aggravating factors" for the

presumed purpose of empowering the jury to narrow the death-eligible class of offenders. See

La. C.Cr.P. art 905.4(A) (Supp. 2006). However, the sentencing statute completely fails its

narrowing purpose. Namely, a jury need only find two allegedly "aggravating" factors to impose

the death penalty on a child rape offender: (1) that "the offender was engaged in the perpetration

or attempted perpetration of aggravated rape," and (2) that "the victim was under the age of

twelve years." La. C.Cr.P. art 905.4(A)(1)&(10) (Supp. 1985 and Supp. 2006). These jury

findings simply restate the crime and an element of the crime, as defined in La. R.S. 14:42(A)(4)

(Supp. 1995). Therefore, Louisiana's capital sentencing statute also provides for no narrowing of

the death-eligible class whatsoever. 6

         The Louisiana Supreme Court's error stems from its misapplication of this Court's

decision in Lowenfield. The Louisiana Supreme Court first correctly concluded that the lack of

narrowing in Louisiana's capital sentencing statute does not, in and of itself, invalidate

Louisiana's capital rape law. R. at 791. However, the court made an illogical leap when


5
  The capital rape statute has since been twice amended by the Louisiana legislature : (1) Act 2003, No. 795, § 1
substituted "thirteen years" for "twelve years" in par. (A)(4) and (2) Act 2006, No. 178, § 1, substituted "thirteen"
for "twelve” in the introductory paragraph of par. (D)(2).
6
  The Louisiana Supreme Court has conceded this point. See R. at 791.


                                                          22
it concluded that Louisiana's capital rape statute itself provides for the required narrowing. The

Louisiana Supreme Court incorrectly reasoned that Louisiana's capital rape statute narrows a

death-eligible class in the exact same way as the Lowenfield murder statute does. Id. In fact, the

narrowing that occurred in Lowenfield is fundamentally different than the alleged narrowing

that occurs in the instant case.

        Like Louisiana's capital rape statute, which identifies one broad class of death-eligible

rapists (all child rapists), the first-degree murder statute in Lowenfield identifies one broad class

of death-eligible homicide offenders (all first-degree murderers). However, in stark contrast to

Louisiana's capital rape statute, the Lowenfield murder statute goes one significant step further.

Namely, the Lowenfield murder statute identifies several narrow "subclasses" within the broad

death-eligible class, and it assigns objective factors to each of these subclasses. La. R.S. S.

14.30.A(1)-(5) (Supp. 1988). For example, the third "subclass" includes those murderers who

had both a "specific intent to kill" and "knowingly created a risk of death or great bodily harm to

more than one person" La. R.S. S. 14.30.A(3) (Supp. 1988). Thus, the Lowenfield murder

statute allows some basis for a fact-finder to differentiate between and among death-eligible

offenders, such that the law discriminates in an “objective, evenhanded, and substantively

rational way.” See Zant, 462 U.S. at 879.

        Louisiana's capital rape statute provides for no such narrowing. To the contrary, under

Louisiana's capital rape statute, all child rape offenders are death-eligible and no objective

factors are circumscribed to categorize them. Therefore, there is no similarity between the

alleged narrowing here, and the narrowing this Court recognized in Lowenfield. Unlike

Lowenfield, a jury is given complete, unguided discretion to put any capital rape offender to




                                                 23
death on any basis they so choose. This is precisely the sort of "arbitrary and capricious" scheme

that this Court contemplated as unconstitutional in Furman and Gregg.

       The clear difference between the narrowing achieved in Lowenfield, and the failure

to narrow here, underscores how the Louisiana legislature could correct the constitutional

infirmity in its child rape law. For example, the legislature could create "subclasses" of child

rapists based on objective indicators of culpability, similar to the first-degree murder

"subclasses" created in Lowenfield. The legislature could achieve this in any number of ways,

such as by requiring a jury to find an additional aggravating factor. The Louisiana Supreme

Court itself acknowledged the wisdom of such a solution in Wilson, when it stated that it "[m]ay

have been more prudent for the legislature to enact additional circumstances which would relate

to the crime of aggravated rape." Wilson, 685 So.2d at 1071. Further support can be found in

the capital rape laws of other states. For example, South Carolina’s child rape law requires an

additional finding that the rapist was a “repeat offender.” S.C. Code Ann. § 16-3-655(C)(I)

(Supp. 2006). However, until and if the Louisiana legislature implements these changes, the

Louisiana capital rape law is unconstitutional.

       4. Even If Louisiana's Capital Rape Law Serves Some Sort Of Narrowing Function,
       The Narrowing Is Not Genuine, Because It Has No Meaningful Basis.

       Even if this Court could conclude that Louisiana's capital rape law serves some sort of

narrowing function, it still violates the Eighth Amendment because the alleged narrowing is not

genuine. Louisiana's capital rape law unconstitutionally fails to provide any meaningful basis to

justify the imposition of the death penalty for capital rape offenders.

       Instead of basing a capital rape offender's death-eligibility on objective, meaningful

indicators of culpability, Louisiana's capital rape law bases death-eligibility solely, arbitrarily,

and capriciously, on a victim's age. Under Louisiana's capital rape statute, any person who rapes



                                                  24
a "victim [who] is under the age of twelve years" is death-eligible. La. R.S. 14:42(A)(4) (Supp.

1995). Therefore, the one and only factor that Louisiana's capital rape law offers as an allegedly

"meaningful" basis to justify the punishment of death is a victim's age.

       Without something more, however, the age of the victim is not a "meaningful" enough

basis to justify the death penalty. The Louisiana capital rape statute's reliance on age as a sole

measure of culpability is unconstitutionally overbroad because it allows any and all child rape

offenders to be put to death, without channeling the jury’s discretion as to the circumstances of

the crime or the unique characteristics of the offender. As a result, Louisiana's capital rape

statute fails to "genuinely narrow" a death eligible class, and it fails to "meaningfully" control

sentencing discretion in imposing the punishment of death.

       Furthermore, under Louisiana's capital rape law, there is absolutely no protection against

prejudicial, discriminatory, arbitrary, or capricious death sentencing of capital rape offenders. A

jury is permitted, for example, to sentence a man to death on the basis of his race, ethnicity,

appearance, or demeanor. As many legal scholars have recognized, the danger of such

discrimination is particularly pronounced for rape crimes, because "how rape is viewed in any

society is inextricably linked to the respective ethnic and cultural characteristics of both the

perpetrator and the victim." Adrien Katherine Wing, et al., Rape, Ethnicity, And Culture: Spirit

Injury From Bosnia To Black America, 25 Colum. Hum. Rts. L. Rev. 1 (1993). Furthermore, in

America, minorities have historically have faced a special threat of being prosecuted or

convicted for rape crimes. See Jennifer B. Wriggins, Rape, Racism, And The Law, 6 Harv.

Women's L.J. 103 (1983). This is not to suggest that genuine narrowing would completely

eliminate discrimination or prejudice. Rather, it is to emphasize the point that narrowing based

on objective, meaningful factors are especially vital for capital rape sentencing.




                                                 25
                                       CONCLUSION

       Based on the foregoing reasons, Kennedy respectfully requests this Court to reverse the

Louisiana Supreme Court’s affirmance of the district court’s sentence of death for Kennedy on

both issues and remand for resentencing in accordance therewith

                                                                        Respectfully Submitted,



                                                         ___________TEAM 13___________
                                                      Counsel for Petitioner Patrick Kennedy




                                              26

				
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