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Analysis: Limit May Be Imposed On Death Penalty For Child Rape

Publication Date: 
April 16, 2008
Lyle Denniston

Professor Jeffrey Fisher is quoted in a SCOTUSblog analysis of the arguments in Kennedy v. Louisiana about the constitutionality of capital punishment in child rape. The case was argued in front of the Supreme Court on April 16:

At the opening of the argument by Stanford law professor Jeffrey L. Fisher, representing death-row inmate Patrick Kennedy, he summarized his two points: first, that there is a “national consensus” against executing those who commit child rape, and, second, Louisiana alone does not limit who among child rapists would actually be eligible for the death penalty — that is, that state’s law lacks a narrowing factor.

His second point immediately became the focus of the questioning, as the Justices explored how to define crimes that are serious enough to justify capital punishment, yet do not sweep so broadly that anyone committing the crime, no matter what the specific circumstances, would be eligible for execution. When Fisher sought to make his point by using the situation that existed in the case that led to the Court’s 1977 Coker decision, striking down the death penalty for rape, that opened up the other layer of emphasis: just what does Coker stand for?


In a brief rebuttal, Fisher melded his two main arguments, suggesting that there was no trend toward enactment of death sentencing laws for child rapists when the perpetrator had not committed prior crimes. Other states have passed laws in the child rape context, but those laws are “all about recidivism,” Fisher said. “Louisiana is not part of that trend. Louisiana stands alone.”