Patrick Kennedy was almost the first person since the Supreme Court reinstated the death penalty to be executed for a crime that wasn’t a murder. But if Washington State Attorney General Rob Mckenna had had his way, Kennedy would have died. Mckenna joined nine states in a friend of the court brief in support of the State of Louisiana, which wanted to execute Kennedy for raping his 8-year-old stepdaughter in 2003. The girl received severe trauma, but wasn’t killed. The other states to support Louisiana were Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma and South Carolina.
Only Texas, Oklahoma, South Carolina, Montana and Louisiana allowed the death penalty for the sexual assault of a child. Mckenna’s brief is not necessarily a commentary on the death penalty in child sexual assault cases, but it does ensure the legal flexibility that would allow states to apply the death penalty in such cases, says AG spokesman Dan Sytman.Nevertheless, the divided Supreme Court sided with Kennedy, ruling 5-4 that there is a distinction between homicides and those where the victim isn’t killed – no matter how devastating it is. As such, capital punishment is now unconstitutional as a punishment in child rape cases. Justice Anthony Kennedy, writing for the majority, noted that although the victim did not die, the crime was extraordinarily heinous: “Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted upon his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.” The justices siding with Kennedy were Stevens, Souter, Ginsburg and Breyer. Justices Alito, Roberts, Scalia and Thomas dissented, noting somewhat sarcastically that the court had prohibited the death penalty for child rapists, “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”
In a statement, Mckenna reacted to the decision: “I regret that the Supreme Court today issued an opinion that disagrees with our view, which we submitted to the court in March, that the death penalty is an appropriate, constitutionally sound punishment for a gruesome crime like the one committed by Patrick Kennedy. This decision is a disappointment for those of us who believe that states should retain the option of the death penalty in some cases of non-homicide rape – especially the rape of a child.”