IS THERE A MOVEMENT TOWARD DEATH ?
KENNEDY IS SWIMMING AGAINST THE CURRENT
Far from being a trendsetter, the decision in Kennedy swims against the current in the U.S. and the world. That trend is generally against the Death Penalty as unevenly applied, unfairly administered and often wrongfully imposed. The decision does not speak to those issues however, and is mainly concerned with an effort to fit Louisiana's statute into Federal Constitutional Law.
The opinion in Kennedy makes hard reading, as it rests on the contention that Louisiana and a handful of other (Southern) states are somehow on the leading edge of trend toward imposing Death as a sentence for child rape. The heavy lifting includes the court literally counting the U.S. Supreme Court's use of the term "adult woman" in Coker as evidence the penalty of death for child rape is Constitutional. Recent cases in which the U. S. Supreme Court has narrowed the death penalty are distinguished as resting on the unique characteristics of the defendant, including Mental Retardation.
Apparently the Court was concerned with defense arguments that any effort to save the Louisiana Statute would be smashed against the rocky jetty of Federal Law, and so the 113 pages of the decision amount to a valiant effort to fit the case into the rationale of Federal Constitutional Law. The unanswered question is whether in fact we are leading a worthy effort by expanding the Death Penalty.
In fact, the Death Penalty is dying and more and more States are taking a second look. Kennedy certainly represents the worst of rape cases, but then again any rape case can be considered horrific, and we now must look into the eyes of some rape victims and say "you weren't worth it", while we can elevate others to a new status of "you were". There is no good policy reason for embracing death in this manner, for spending a fortune to run these cases through the criminal justice system of this State, which is already about broke, and to put Louisiana on the map for pioneering a new death penalty venue. The argument that this statute is a sign of some kind of cultural trend of a maturing society is insupportable.
The Court in Kennedy has set up Louisiana for another appearance in the history books. Win or lose, the State will be seen as a backwater rather than a national standard. Even if the very conservative United States Supreme Court affirms, Louisiana is a loser. The death penalty is already a relic. Wrongful conviction looms over the process in which 200 death row inmates have been proven innocent! Florida is under a moratorium. Other states are narrowing rather than widening the number of death penalty cases. And if the most conservative Supreme Court in recent history slaps down Louisiana (again), as it recently has Texas, it will be another mark of our exceptional reluctance to temper the law with reasonable punishment and rational policy in the criminal justice system. We will be the exception, not the rule.
The politics of death is such that now, every child rape MUST be a Death Case. (and not to mention that forms of oral sexual battery are now defined as Aggravated Rape) How can one child be worth a death sentence and another not? There will be incredible pressure on prosecutors to seek death in many more cases. The very idea is in conflict with legislative findings that child victims need confidentiality to heal their wounds.
This is bad policy for every reason for our State. Hopefully the decision will not stand for long and we will not squander millions of dollars on this newest addition to what may be our States hall of famous laws overturned by the founding fathers writing in the United States Constitution.