A strong argument for commuting Patrick Kennedy’s death sentence
I have now had a chance to read closely the effective petition for writ of certiorari in Kennedy v. Louisiana (available here), which calls upon the Supreme Court to review and reverse the Louisiana Supreme Court’s decision to uphold the death sentence given to Patrick Kennedy for the crime of child rape. Because the petition is so strong and effective, I have decided that the case ought to get “resolved” before the Supreme Court even has a chance to consider it. Specifically, I now think the Governor of Louisiana ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy’s death sentence.
As I have explained in this post, I believe states could reasonably garner symbolic and practical benefits from making certain repeat child rape a capital offense. Consequently, as I read the Kennedy cert petition, I am troubled greatly by arguments suggesting that it is always unconstitutional to make any extreme non-homicide offenses subject to the death penalty. And yet, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Patrick Kennedy is the only person sentenced to death for a non-homicide offense.
Of particular note, Patrick Kennedy has no significant criminal history, he may be mentally retarded, he has “insisted on his innocence,” and there does not seem to be any distinctive aggravating factors surrounding his crime. See petition at pp. 4-8. In other words, Patrick Kennedy does not fit the image of a monstrous predator sex offender perhaps deserving of a death sentence. Indeed, anyone considering the distinctive facts of the Kennedy case could readily conclude that it is “cruel and unusual” for Patrick Kennedy to be the only rapist sentenced to death in the modern capital era. Consequently, because the Governor of Louisiana has an obligation to uphold the Constitution, I think the Governor ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy’s constitutionally-suspect death sentence.
The irony of Patrick Kennedy being the potential test defendant for the capital child rape issue is evident when one considers the crimes of Ehrlich Anthony Coker, the defendant at the center of the Supreme Court’s 1977 decision declaring the death an unconstitutional punishment for the crime of adult rape. As I have suggested elsewhere, Coker would seem to be a poster boy for the death penalty given this description of his life and crimes from Chief Justice Burger’s opinion in Coker:
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently. Approximately 1-1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.
Since the state of Georgia was constitutionally barred from executing Ehrlich Anthony Coker, I have a very hard time seeing how Louisiana’s executive officials can feel constitutionally certain about moving forward with the execution of Patrick Kennedy.
UPDATE: A helpful reader sensibly suggested that I highlight that the Kennedy petition stresses the distinctive nature of “person-on-person” violent crime and further explains in a footnote that this particular phrasing “leaves aside ‘sui generis’ crimes such as treason and espionage, as well as offenses such as air piracy and the federal ‘drug kingpin’ law that inherently involve a reckless disregard for human life on a large scale.”