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NEW YORK — 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. If the case, State v. Kennedy, 98-1425, 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. 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. 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 Boalt Hall School of Law. Lisa Stansky wrote this article for The National Law Journal , a Recorder affiliate based in New York City.

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