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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
There are about 3,300 people in this country who are on death row right now. But Patrick Kennedy is different from the others: both he and the state of Louisiana agree that he didn’t kill anyone. Instead, Patrick Kennedy is on death row because he was convicted of raping his 8-year-old stepdaughter. Now, after the Louisiana Supreme Court upheld his death sentence in a lengthy opinion, he has made a plea to the U.S. Supreme Court to hear his case and find his sentence unconstitutionally cruel and unusual under the Eighth Amendment. Kennedy argues in his petition for certiorari that such a punishment for child rape is “not only cruel and unusual,” but is something even worse: “cruel and unique.” The justices will consider whether to hear the appeal at their private conference Jan. 4. (The petition is No. 07-343, Kennedy v. Louisiana.) After refusing to plead guilty to a lesser charge in exchange for the state’s taking the death penalty off the table, Kennedy was convicted of aggravated rape in 2003; a jury then unanimously decided that he ought to be sentenced to death. The jury had this option because, in 1995, the Louisiana Legislature modified its rape laws so that aggravated rape of a child younger than 12 is punishable by “death or life imprisonment…without parole.” It is one of five states that allow juries to sentence convicted rapists to death. According to Kennedy, who is represented by Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic, Louisiana’s statute conflicts directly with the Supreme Court’s 30-year-old holding in Coker v. Georgia that “a sentence of death is grossly disproportionate and excessive punishment for the crime of rape.” Although both sides acknowledge that standards of cruelty can change as decades pass and society reshapes its views, Kennedy sees the fact that he is the only person on death row for rape as a definitive sign that Coker controls the outcome of his case. Indeed, as he states in his petition, even before Coker, the death penalty for rape had all but disappeared: it has been more than 40 years since anyone has been executed in this country for a crime other than homicide. Characterizing his sentence as an “extreme anomaly,” Kennedy claims that the Louisiana Supreme Court’s decision allowing his sentence to stand must be overturned. The state, for its part, claims that answering the question of what is cruel and unusual punishment is not as simple as counting the number of people on death row for a particular crime. With Assistant District Attorney Terry Boudreaux as counsel of record, the state’s brief argues that the Supreme Court’s decision in Coker made clear that the holding was limited to the rape of an “adult woman.” Distinguishing the gravity of the brutal rape of such a young child from that of an adult, the state quotes the Louisiana Supreme Court’s opinion in Kennedy’s case that “[r]ape of a child under the age of twelve is like no other crime. …A �maturing society,’ through its legislature has recognized the degradation and devastation of child rape.” Thus, the state claims, it is not merely a difference of degree between the rape of a child and the rape of an adult, but a fundamental difference in kind. Responding to Kennedy’s argument that the punishment is unconstitutionally unusual, the state counters that the states which have re-enacted the death penalty for child rape since the Coker decision have all done so within the last 12 years. Because, the state explains, capital trials take such a long time (Kennedy was sentenced to death more than five years after his indictment), the dearth of rapists like Kennedy on death row “does not indicate that juries are unwilling to return death sentences for convicted child rapists.” And, while the state concedes that these five states certainly do not indicate a national consensus, such recent enactments do constitute a “trend,” which ought to be given more weight than a straightforward tally. Kennedy rejects the state’s comparisons as inapt, noting that his only prior convictions were for writing bad checks; by contrast, the other four states that permit capital punishment for child rapists do so only when the defendant has previously been convicted of rape. Offering the justices an alternative way out of what may be an Eighth Amendment quagmire, Kennedy asserts that “[e]ven if it were permissible under some circumstances to punish child rape by death,” the law in Louisiana doesn’t distinguish “between child rapes that are deserving of capital punishment and those that are not.” According to Kennedy, whatever one’s views on the ultimate constitutionality of executing a man convicted of raping a child, the sentence must still be overturned because Louisiana’s statute is unfairly vague. On Jan. 7, the Supreme Court is slated to hear a high-profile case on the constitutionality of the current protocol for lethal injections, and the Court may release an order the same day announcing whether it will add another landmark Eighth Amendment case to its docket this term. — Jason Harrow
Other cases up for review include the following: • 06-1188, Teck Cominco Metals v. Pakootas (9th Circuit) Whether, under CERCLA, parties can be held liable for disposing hazardous materials abroad that subsequently enter the United States, or for having “arranged” for such disposal if no other party was involved. [Disclosure: Akin Gump represents amici Canadian Chamber of Commerce.] • 07-61, Mathias v. United States (4th Circuit) Whether an escape conviction following a failure to return to a work release program is a violent felony for purposes of the Armed Career Criminal Act. • 07-189, Kahle v. Mukasey (9th Circuit) Whether, under Eldred v. Ashcroft (2003), Congress altered the “traditional contours of copyright protection” by permitting automatic extension of copyrights. • 07-210, John Bridge v. Phoenix Bond & Indemnity Co., et al. (7th Circuit) Whether plaintiffs who did not rely on but were nonetheless harmed by false statements made to third parties can establish proximate cause in a civil RICO action. • 07-241, McFarling v. Monsanto (Federal Circuit) Whether patent law permits companies that produce genetically modified seeds to limit their use to one planting season and, if so, whether a jury may punish violation of such an agreement by awarding a “hypothetical” royalty based on the savings gained by the planter. • 07-421, WKB Associates v. Fair Housing Council (6th Circuit) Whether pre-litigation expenses incurred while investigating potential Fair Housing Act violations satisfy the injury component of Article III standing, and whether the statute of limitations under the Act runs from the sale date of each unit or the final unit in a housing development. • 07-452, Schriro v. Lambright (9th Circuit) Whether, under Tennard v. Dretke (2001), a court may consider the lack of any causal connection between potential mitigating evidence and the crime in determining whether the failure to introduce the evidence prejudiced the defendant. • 07-478, Hartmann v. Burris (3rd Circuit) Whether seeking discretionary state court review of a criminal conviction tolls the one-year filing requirement under AEDPA. • 07-552, Sprint Communications Company, et al. v. APCC Services (D.C. Circuit) Whether a plaintiff assigned the right to pursue a legal claim, but which stands to gain no proceeds from the outcome of the litigation, has established standing under Article III. [Disclosure: Akin Gump represents the petitioner.] • 07-587, Covenant Media of South Carolina LLC v. City of North Charleston (S.C.) (4th Circuit) Whether a restricting billboard ordinance without a judicial review mechanism violates the First Amendment.

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