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Supreme Court Agrees to Weigh Death Penalty For Child Rapist

Publication Date: 
January 07, 2008
Daily Journal
Brent Kendall

Professor Jeffrey L. Fisher and the Stanford Litigation Clinic are representing a Louisiana death row inmate whose case is currently in front of the Supreme Court. Professor Fisher is quoted:

Stanford Law School's Supreme Court Litigation Clinic landed one of its most important cases ever on Friday when the high court agreed to decide if the Constitution's ban on cruel and unusual punishment bars Louisiana from executing an inmate convicted of raping a child.

"It is a wonderful opportunity to have such an interesting and important case in the clinic," said Stanford law professor Jeffrey L. Fisher, who petitioned the Supreme Court on behalf of Louisiana inmate Patrick Kennedy, the only person in the United States on death row for a non-homicide offense.


Fisher argued in his high court petition that the Eighth Amendment should impose an absolute bar on the death penalty for child rape.

As a secondary position, Fisher argued that, even if the Constitution were to allow executions for child rape in some circumstances, the Louisiana law does not guide juries to distinguish between which crimes should be punishable by death and which ones should not.

Numerous offenders convicted of "far more vile rapes" and of child murders have received lesser sentences than Kennedy, Fisher said.

Fisher said he took on the case at the invitation of lawyers with the Louisiana Capital Appeals Project after they lost at the state Supreme Court.

The petition for Supreme Court review had to be written over the summer, so the timing meant that Stanford's students did not assist him at the initial stages, he said.

"But it is a clinic case and the students will be involved in the merits," Fisher said.

"The importance of the case," he added, "will make it different from other clinic cases because there will be so many people involved. But it will still provide a great platform for students to learn."

The school's Supreme Court clinic is entering its fifth year of existence. Stanford launched it in 2004 to teach law students the basics of Supreme Court litigation and give them experience writing briefs and preparing for cases. It was the first such clinic at any law school.

Responding to Fisher's petition, Louisiana prosecutors argued that the death penalty was not an excessive punishment for child rape.