Bench Memos

Kennedy v. Louisiana

Given previous rulings like Roper v. Simmons (see This Week for March 1, 2005), Justice Kennedy’s opinion in Kennedy v. Louisiana was entirely predictable, but that doesn’t make it any less appalling as a matter of supposed constitutional law.

 

Kennedy’s 36 pages of insufferable blather amount to little more than a declaration that the majority doesn’t think that capital punishment is ever a fair penalty for the rape of a child—“no matter,” as Justice Alito puts it in his dissent, “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.”  And, Alito might have added, no matter even whether the rape victim died, so long as the rapist did not intend the death.  [Update:  On this last sentence, 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.]

 

If I find time, I may focus more attention on Kennedy’s string of assertions.  For now, I’ll just call attention to the facts that occasioned Kennedy’s pronouncement that “[e]volving standards of decency must embrace and express respect for the dignity of the person”—the person whose dignity is the object of his concern being the rapist, not the victim and not other future victims.

 

Warning:  The facts are graphic and awful.  Kennedy (not the justice) was charged with the aggravated rape of L.H., his then-8-year-old stepdaughter.  When police found L.H. some two hours after the attack, she was bleeding profusely from the vaginal area.  She was transported to the hospital, where she was discovered to have a laceration to the left wall of the vagina that “separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure.  Her entire perineum was torn from the posterior fourchette to the anus.  The injuries required emergency surgery.”  Shortly after he committed the rape, Kennedy called a colleague to ask “how to get blood out of a white carpet because his daughter had ‘just become a lady.’”

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