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By declaring that a man should die for raping an 8-year-old girl, a Louisiana jury has added a sharp twist to the legal debate over the death penalty: Is execution appropriate for a crime less than murder? The case is an anomaly, since only Montana and Louisiana have viable capital child rape laws. But the sentence last month against Patrick Kennedy in Jefferson Parish, La., is being watched by legal experts across the country. State v. Kennedy, No. 98-1425. If the case works its way to the U.S. Supreme Court, the court will face the question of whether the death penalty should be confined to crimes that kill. The debate could spill over to the federal death penalty, including the list of federal capital crimes for nonlethal offenses, such as espionage, treason and certain large-scale drug offenses. Graham da Ponte, one of Kennedy’s defense attorneys and a New Orleans solo practitioner, said that “the trend now is so much toward narrowing the death penalty. “I’m pretty hopeful that this law is not going to stand up before the U.S. Supreme Court,” she said. Kennedy’s lawyers will move for a new trial before his Oct. 2 sentencing date. If that fails, the case will go to the Louisiana Supreme Court, said da Ponte. A Louisiana first Kennedy’s death sentence is the state’s first under a 1995 Louisiana law naming rape of a child under 12 a capital crime. The sentence stems from a March 2, 1998, crime against a relative of his. “This state’s law may never get federal review because there is a good chance that the state Supreme Court may reverse on other grounds that have nothing to do with the law itself,” da Ponte said. Jefferson Parish District Attorney Paul D. Connick Jr., who brought the prosecution against Kennedy, did not return calls seeking comment. If Kennedy’s case survives review before the Louisiana Supreme Court, “it’s very likely to be taken up by the U.S. Supreme Court,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, a nonprofit research and analysis organization that does not formally support or oppose capital punishment. The Louisiana case also focuses attention on the U.S. Supreme Court’s 1997 ruling in Coker v. Georgia, which barred the death penalty for rape of an adult. The court ruled that the death penalty for such an offense is barred by the Eighth Amendment as cruel and unusual punishment. “The shoe finally drops . . . .The Coker court did not foreclose a nonlethal rape death penalty for children,” said Franklin Zimring, a professor at the University of California, Berkeley School of Law. “Which crimes are bad enough-how do we decide what they are?” said Harvard Law School Professor Carol Steiker. That is one of the questions the U.S. Supreme Court will tackle over the next five to 10 years, said Steiker, who teaches a course on the death penalty. Cases like Kennedy can shape the high court’s “evolving standards of decency” standard used to judge the propriety of executions in various contexts, Steiker said. The “evolving standards of decency” issue played a role in the Supreme Court’s June 2002 decision in Atkins v. Virginia, which banned the execution of mentally retarded convicts on the ground that imposition of the death penalty would constitute cruel and unusual punishment forbidden by the Eighth Amendment. According to data from the Death Penalty Information Center, only Florida and Montana name child rape as a capital crime. The Montana statute requires repeat convictions, and the Florida Supreme Court has declared that execution is an unconstitutional penalty for the offense. One capital punishment advocate is concerned that the case may muddy the death penalty question. “I think it’s a bad precedent to apply capital punishment to crimes other than murder,” said Michael Rushford of the Criminal Justice Legal Foundation, a Sacramento, Calif., group that supports capital punishment. Society has enough trouble, Rushford said, exacting the death penalty “for the worst murders.” Stansky’s e-mail address is [email protected].

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