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On Jan. 4, the U.S. Supreme Court granted Patrick Kennedy’s petition to review his capital sentence for raping his 8-year-old stepdaughter. Kennedy v. Louisiana, No. 07-343. One of only two people on death row for a nonhomicidal offense (the other is also in Louisiana), he claims that the Eighth Amendment forbids the ultimate penalty to be imposed on the perpetrator of a violent crime in which the victim does not die. As a matter of constitutional law, he has a very strong position. But even if the court rejects his challenge, legislators should spurn calls to expand a punishment that is plainly counterproductive in this setting � not to mention that it is declining here and moribund in the rest of the world. Precedent is on Kennedy’s side. In Coker v. Georgia, 433 U.S. 584 (1977), Justice Byron R. White, writing for four members of the court, found death to be an excessive sentence for a defendant who raped a 16-year-old at knifepoint after tying up her husband, and then abducted her from her home. In his decision (rendered a holding by Justice William J. Brennan Jr.’s and Justice Thurgood Marshall’s usual separate statements that capital punishment always violates the Constitution), he conceded the crime’s gravity, yet concluded that the death penalty, “unique in its severity and irrevocability,” is disproportionate for “the rapist who, as such, does not take human life.” The respondent seeks to limit Coker on the ground, relied on by the Louisiana Supreme Court, that the plurality several times mentioned the victim’s status as an “adult woman.” Yet Justice F. Lewis Powell Jr. dissented in part because the lead opinion drew “a bright line between murder and all rapes � regardless of the degree of brutality of the rape or the effect upon the victim.” As someone privy to the court’s discussions, he presumably knew whether his colleagues deemed the victim’s survival, or age, to be the crucial factor. Moreover, the plurality’s stated view that “[s]hort of homicide,” rape � presumably, of any kind � “is the ‘ultimate violation of self’ ” corroborates his interpretation. A disproportionate penalty Apart from Coker, independent constitutional analysis supports the petitioner’s bid to overturn his sentence. Under the governing “evolving standards of decency” test, the Eighth Amendment bars a penalty that is grossly out of proportion to the severity of the crime. For objective indicia of prevailing standards, the court looks mainly to legislative action; it also considers actual practice, as embodied in jury verdicts. A mere five states have statutes that authorize execution for child rape, and all but Louisiana require a prior conviction of a sexual offense. While the court below cited a “trend” toward adoption of such laws since Coker, and recent Supreme Court cases outlawing death for juveniles and the mentally retarded take into account the direction of change, more significant is the fact that jurors have imposed that sentence in only two cases, in a sole jurisdiction. Indeed, Louisiana itself may have little interest in obtaining, as opposed to threatening, this sanction. An amicus brief filed by public defender offices notes that, “in the vast majority” of child rape cases, the prosecutor reduces the charge on the eve of trial. (This maneuver, typical of the gamesmanship pervasive in capital litigation, permits the state to prevail with a nonunanimous jury � after having forced these offices to expend the huge sums needed to prepare a defense against death.) The court also brings its own judgment to bear on a punishment’s acceptability. Should the substantive excessiveness argument alone not persuade the justices, they should consider the practical realities that reinforce it. Child rape prosecutions pose too high a risk of convicting the innocent to comport with the heightened need for reliability in capital cases. Children are very susceptible to adult suggestion; their stories frequently change over time and in response to different questioners. Further, statutes often allow young witnesses to testify under conditions diluting the defendant’s right to confront his accuser. In Kennedy itself, the victim recanted her initial account of an attack mounted by two teenagers, and the prosecution introduced critical evidence in the form of a videotaped interview with her. Finally, even if constitutional � and despite the heinous nature of the crime � statutes like Louisiana’s represent bad social policy. Child rape is generally committed by close family members or friends. By raising the stakes to life or death, such laws will likely augment the existing problem of underreporting. Moreover, protracted capital proceedings will worsen the youthful witness’s trauma. For these reasons, even death penalty advocates should resist it in this context. Vivian Berger, an NLJ columnist, is professor emerita at Columbia Law School.

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