Bench Memos

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Clarification on Kennedy v. Louisiana


Some early commentators attributed to the Kennedy majority opinion the broader rule that the death penalty can be imposed only for crimes that take the victim’s life.  In fact, Justice Kennedy distinguishes between “crimes against individual persons” and “offenses against the State” (such as “treason, espionage, terrorism, and drug kingpin activity”), and applies his rule, for the time being at least, only to the former category.  (In dissent, Justice Alito, beyond finding curious Kennedy’s classification of “drug kingpin activity,” notes that Kennedy “makes no effort to explain why the harm caused by such crimes [against the State] is necessarily greater than the harm caused by the rape of young children.”)


On the crime of child rape itself, Kennedy’s opinion bars the death penalty “where the crime did not result, and was not intended to result, in death of the victim.”  (Emphasis added.)  So even if the rape of a child results in the child’s death, no rape of a child, no matter how sordid, can be punished by the death penalty unless the rapist “intended” the death.  [Update:  Thanks to comments from a couple readers, I now think that I misread Kennedy’s syntax.  I now think that Kennedy’s opinion does not address whether the death penalty could be imposed for the rape of a child that unintentionally results in the child’s death, so I withdraw this point.]

Tags: Whelan


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