Direct test of constitutionality of the death penalty for child rape

As detailed in this AP report, this past week the Louisiana Supreme Court heard oral argument on the constitutionality of the only death sentence that has to date actually been imposed for child rape.  Here are some details:

The only inmate on any U.S. death row for rape contends that his conviction should be thrown out because the Louisiana law allowing the penalty for raping a child is unconstitutional.  Chief Justice Pascal Calogero took arguments and briefs under advisement after a hearing Wednesday, and did not say when the high court will rule.

The 42-year-old Harvey man was convicted in 2003 of aggravated rape of his stepdaughter; his name has been withheld from news reports to protect the girl. She was 8 years old when she told Jefferson Parish sheriff’s deputies in March 1998 that she had been raped by one of two men who had dragged her from her garage to a vacant house.  Eighteen months later, she told her mother that it was her stepfather who had raped her. 

The man is the only person convicted under the 1995 law, which allows the death penalty for aggravated rape of someone less than 12 years old. He also is the only person sentenced to death for a crime other than murder since the U.S. Supreme Court ruled in 1977 that murder was the only crime for which the death penalty was constitutional, Nick Trenticosta, a New Orleans attorney who has handled numerous death row appeals, said in 2003. Only three other states — Montana, Oklahoma and South Carolina — have passed laws allowing the death penalty for child rape, Martin Stern of the New Orleans law firm Adams & Reese, now representing the man, told the Louisiana Supreme court at a hearing Wednesday. The other states require “aggravating” circumstances, such as a prior rape conviction, for the death penalty to be invoked, but Louisiana does not, he said.

Jefferson Parish Assistant District Attorney Juliet Clark argued that the child’s age is an aggravating factor.  The appeal contends both that the law is unconstitutional and that the conviction should be tossed because during the trial and penalty phases, District Judge Ross LaDart and Jefferson Parish prosecutors committed numerous “harmful” errors.

As some may know, Louisiana over a decade ago upheld the facial constitutionality of the death penalty for child rapists in State v. Wilson, 685 So. 2d 1063 (1996).  The Supreme Court denied cert, 520 U.S. 1259 (1997), but did so essentially on procedural grounds with Justices Stevens, Breyer and Ginsburg specifically noting that the denial did “not in any way constitute a ruling on the merits.”