Child Rapists Live To See Another Day

Attorney Shirley Huang, a former student of Birdsong’s, has recently had her article Child Rapists Live To See Another Day published in the American University Washington College of Law Criminal Law Brief.  The Criminal Law Brief is a law journal where students, practitioners and academics may discuss, debate and explore various elements of  criminal law.   In her article she analyzes the Supreme Court’s decision in the  2008 case of  Kennedy v. Louisiana which held that the death penalty for child rape is unconstitutional. Attorney Huang’s article grew out of very excellent research she did while a student  in Birdsong’s Criminal Justice Administration Seminar.  Attorney  Huang won the book award in that seminar for writing the most outstanding paper of the class.

Read and Learn…

Child Rapists Live To See Another Day

Shirley Huang, Esq.[1]

 I.                   Introduction

The human capacity for good and for compassion make the death penalty tragic; the human capacity for evil and depraved behavior make the death penalty necessary.[2]

Rape has been described as a “fate worse than death”[3] and “one of the most egregiously brutal acts one human being can inflict upon another.”[4]  Child rape is perhaps the worst crime one can commit, debatably second only to murder.[5]  It was not until the mid 1980s that child sexual abuse was brought to the nation’s attention by the media as a serious issue.[6]

This article explores the constitutionality of the death penalty for the crime of child rape, focusing specifically on Louisiana’s capital child rape statute.[7]  In 1976, the Supreme Court decided that the death penalty for the crime of rape is a grossly disproportionate and excessive punishment, and thus violates the Eighth Amendment.[8]  For over thirty years, the constitutionality of making child rape a capital crime was questioned.  The Court ended the ambiguity of the issue by recently determining that the death penalty is inappropriate for the commission of child rape where the victim is left alive.[9] 


II.                Prepping the United States Supreme Court for Judicial Review of Capital Punishment for Child Rapists

A.                Capital Punishment in Adult Rape Held By U.S. Supreme Court To Be Disproportionate

1.                  Pre-Coker v. Georgia

In 1925, eighteen States, the District of Columbia, and the Federal Government authorized capital punishment for the rape of an adult woman.[10]  Almost fifty years later, that number was reduced to sixteen States, plus the Federal Government.[11]  The decision in Furman v. Georgia[12] forced states with capital rape statutes to reconsider their statutes and revise them accordingly.[13]  Gregg v. Georgia[14] soon thereafter reinstated the death penalty.  Only Georgia, North Carolina, and Louisiana retained the death penalty as a punishment for rape.[15] 

2.                  Coker v. Georgia 

In 1974, Ehrlich Coker was convicted of the rape of a sixteen-year-old married woman and was sentenced to death.  Section 26-2001, Official Code of Georgia (1972) provided that “(a) person convicted of rape shall be punished by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years.”[16]

Defendant Coker argued that the state statute violated the Eighth Amendment’s cruel and unusual punishment clause, which both the state courts and federal courts must respect.[17]  The Coker Court held that capital punishment for the rape of an adult woman was cruel and unusual punishment, in violation of the Eighth Amendment.[18]

Between 1989 and 1995, no jurisdiction in the United States had the death penalty as a punishment for the crime of rape;[19]  but that all changed when Louisiana enacted its capital rape statute and sentenced Anthony Wilson and Patrick Bethley to death for raping a child under the age of twelve.[20]  Section 14:42(D)(2)(a), Louisiana Revised Statutes, makes the death penalty a possible punishment for the aggravated rape of a child under the age of thirteen.[21]

B.                 Capital Child Rape in Louisiana Courts

State v. Wilson[22] was the first case that really challenged a child rape statute since Coker.  In 1995, Anthony Wilson was indicted by a grand jury with the aggravated rape of a five year old girl.[23]  Patrick Dewayne Bethley was charged with raping three girls under the age of ten, one of which was his daughter.[24]  Defense counsels moved to quash the indictments, arguing that the crime of rape could not be punished by the death penalty as it would violate the Cruel and Unusual Punishments Clause of the United States Constitution.[25]  The trial court in Wilson’s and Bethley’s case quashed the indictment because the death penalty for the crime of rape was excessive and because the class of eligible defendants was not sufficiently limited, such that it violated the federal and state Constitution.[26]

The State of Louisiana appealed their cases to the state supreme court.[27]  The Louisiana Supreme Court held that “in the case of the rape of a child under the age of twelve, the death penalty is not an excessive punishment nor is it susceptible of being applied arbitrarily and capriciously.”[28]  The United States Supreme Court opted not to review the case because Bethley had not been convicted nor or sentenced to death when the challenges were made.[29]  In denying certiorari, the Supreme Court claimed want of jurisdiction in that it may only consider state decisions which constitute final judgments.[30]

In 1998, Patrick Kennedy was charged with the aggravated rape of a victim under the age of 12, his eight-year-old stepdaughter.[31]  The State of Louisiana sought the death penalty and the jury subsequently found the defendant guilty of aggravated rape.[32]  In the penalty sentencing phase, the jury was unanimous in its recommendation of a death sentence.[33]


III.             Was the Decision in Kennedy The Right One?

Could it merely have been a coincidence that the more liberal justices made up the majority that found the Louisiana statute unconstitutional?[34]  Coker noted the importance of the Justices looking beyond their own opinions, such as “public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions.”[35]  Gov. Bobby Jindal proclaimed the five liberal justices who voted the statute unconstitutional as “not shar[ing] the same ‘standards of decency’ as the people of Louisiana.”[36]  Naturally, the Justices’ own opinions will affect their ultimate decision.[37]  The dicta of the majority suggests a trend toward abolishing the death penalty. [38]  Justice Breyer declared that he did not want to make the judgment based on his emotions and instead, focused on the law.[39]

A.                Is The Death Penalty Proportionate to The Crime of Child Rape?

The Coker Court seemed to approach the death penalty with the theory of “an eye for an eye,” finding that the death penalty for murder is appropriate, but not for rape.[40]  In several past decisions of non-homicide cases, the death penalty was sought but was subsequently set aside as being unconstitutional.[41]

1.                  Is the United States Evolving Towards Putting Child Rapists To Death?

The words “cruel and unusual” “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[42]  Is society’s “evolving standards of decency” leading states which allow capital punishment to extend it to non-homicide child rape cases?  In order to answer that question, the Supreme Court had to look to objective factors such as legislative enactments, public attitudes concerning a particular sentence, history and precedent, and the response of juries as reflected in their sentencing decisions.[43]  The Court stressed that the Louisiana statute should be judged by “the evolving standards of decency that mark the progress of a maturing society,”[44] and not the standards that existed when the Eighth Amendment was adopted.[45]

a)                  Legislative Enactments

The Court concluded that “there is a national consensus against capital punishment for the crime of child rape.”[46]  Since 1995, several states have attempted to pass legislation providing for the death penalty for child rape,[47] but only Texas,[48] Florida,[49] Georgia, Louisiana, Oklahoma,[50] and South Carolina[51] have been successful.  The Court found no use in giving credit to States that have proposed capital child rape statutes which failed to pass.[52]  South Carolina recently passed a statute in which first-time child rapists are not eligible for the death penal\ty.[53]  If the United States Supreme Court had reviewed a capital child rape case from South Carolina, the statute would have had a higher chance of being found constitutional because it avoids the substantial risk of imposing the death penalty arbitrarily and capriciously.[54]

Recent Supreme Court death penalty decisions have looked to foreign countries in determining evolving standards of decency.[55]  Rape is punishable by death in China, Egypt, Iran, Iraq, Kuwait, Morocco, Pakistan, Saudi Arabia, Somalia, South Korea, Syria, Taiwan, Uganda, United Arab Emirates, and the former USSR.[56]  As for child rape, China, Iran, Jordan, Mongolia, the Philippines, Uganda, and Uzbekistan are the only foreign countries that still punish the crime with the death penalty.[57]  If one was to make a list of the most civilized countries in the world, it is unlikely that many of the countries previously listed would rank in the top 25% of the list.  The Court in Kennedy omitted any discussion of international opinion.  Had they done so, the result of the case would have been the same:  the death penalty is excessive for the crime of child rape.

The Court thought it had rid its hands of the issue of capital child rape in June 2008, until the New York Times pointed out that on the weekend after the decision, Col. Dwight Sullivan, a Marine Corps Reserve, blogged about the absence of the military penalty for rape in the Uniform Code of Military Justice[58] in the Court’s discussion.[59]  Once notified of the omission, Louisiana petitioned the Court for a rehearing to consider the law enacted by Congress and approved by former President George W. Bush.[60]  On October 1, 2008, the Court denied the state of Louisiana a rehearing on the matter.[61]

  Justice Kennedy seems to suggest that military law has no place in the Court’s discussion of sentencing civilians to death as the military world and civilian world are two discrete spheres.[62]  Justice Antonin Scalia questions how a soldier could be sentenced to death for raping a child, yet a civilian could not.[63]  Acting Solicitor General Gregory Garre interpreted the actions by Congress and the President as “the emerging ‘national consensus’ supporting – not opposing – capital punishment in cases of child rape.”[64]

Scalia believes that states that prohibit the death penalty in all cases should not be counted when determining a national consensus as to whether the death penalty should be imposed for a certain crime.[65]  Fourteen states punish twenty-one different crimes with the death penalty.[66]  If the Court had counted the non-homicide death penalty jurisdictions with the child rape death penalty jurisdictions, then Louisiana’s statute would have had a better chance at surviving constitutional muster.  But again, even though those jurisdictions have such statutes, they have not been enforced.[67]

b)                 History and Precedent

         Since 1964, the United States has not executed anyone for a crime which did not result in the death of the victim.[68]  The Supreme Court harped on the fact that since then, only two individuals have been sentenced to death for child rape.[69]  In the case of convicted child rapist Rodolfo Lopez Velazquez, the prosecutor failed to seek the death penalty because he was under the assumption that Coker controlled and that there was no point in seeking the death penalty.[70]  When Coker struck down the death penalty as a punishment for rape, the main rationale behind the ruling was that the survival of the victim does not justify killing the rapist.[71]  The Court in Kennedy v. Louisiana chose not to address the death penalty for crimes against the State such as treason or terrorism.[72]  The Court mentioned that it has held that “the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim.”[73]

         The Court repeatedly mentioned the distinction that defendants in state courts have attempted to argue:  although Coker found that the death penalty for raping an (adult) woman is unconstitutional, that does not necessarily exclude the death penalty for child rape.[74]  Justice Samuel Alito speculated in his dissent as to why states may have held off on passing laws to make child rape a capital crime,[75] whereas the majority found it unnecessary to do so.[76]  The Court admitted that some states have in recent years moved toward using such a punishment; however, the change has not been sufficiently significant.[77]  The Court compared the 45 jurisdictions that prohibit the death penalty for child rape to “the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.”[78]  In citing Atkins, the Court recognizes that “[c]onsistent change [in support of the death penalty for rape] might counterbalance an otherwise weak demonstration of consensus,”[79] however, the Court found no such consistent change.[80]

c)                  Public Attitudes

Public attitudes toward imposition of the death penalty is “an expression of society’s outrage at particularly offensive conduct”.[81]  The response of juries also reflects what society considers acceptable.[82]  However, the mere fact that a jury does not recommend a death sentence for a defendant does not mean that the jury believes that the crime the defendant committed should not be punishable by death.[83]  Instead, juries reserve the death penalty for those most deserving.[84]  In doing so, jurors must evaluate the convicted rapist and determine “whether, in this instance, society is justified in killing him.”[85]  There is an argument that “the national trend of treating sex offenders as mentally ill and civilly committing them for mandatory medical treatment would be far more informative than reviewing how states punish crimes like treason and air piracy.”[86]  This argument is somewhat flawed:  states may be increasingly tougher on those who rape children but that does not necessarily mean that the constituents of those states approve of the death penalty for child rape.

2.                  Considering the Severity of the Death Penalty as a Punishment for Child Rape

A punishment is excessive and therefore unconstitutional under the Eighth Amendment if “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more that the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.”[87]  A punishment is also excessive when it “serves no penal purpose more effectively than a less severe punishment.”[88]  If a juror believes that death is too severe of a sentence and that the court is likely to impose such a sentence if the defendant is found guilty, then the juror may decide to vote not guilty in order to avoid the defendant’s execution.[89]

3.                  Would the Death Penalty Deter Would-Be Child Rapists?

A sentence is cruel and unusual punishment, even if it “may measurably serve the legitimate ends of punishment.”[90]  However that same sentence cannot be invalidated for the failure to do so.[91]  The majority in Kennedy pointed out that there was no significant proof that the death penalty would deter individuals from committing child rape.[92]  The death penalty may deter many individuals from committing child rape, the actual number of which we will never know.[93]  Yet it could also the effect of deterring would-be rapists as well as minimal or no effect at all.[94]  Some individuals are more prone to commit violent crimes than others, “given the same objective motives and equal prospects of punishment.”[95]

            The existence of the death penalty for child rape gives rapists no incentive to leave their victims alive since they could easily dispose of the best and often the sole witness to the crime.[96]  The Louisiana Supreme Court rejected Patrick Kennedy’s policy argument that upholding the statute would “encourage a rapist to murder his victim.”[97]  Child rapists would therefore have to make the conscious effort to kill their victim.[98]  By imposing the death penalty on a child rapist, the courts would essentially be punishing the rapist for making the decision not to kill the child.[99]  It sends a mixed message:  “We will kill you if you rape a child” and “Kill the child if you wish because you will receive the death penalty either way.”  Therefore, without the death penalty, child rapists may be more inclined to kill the victim.

The National Association of Social Workers et al. (NASW), having filed an amici curiae brief in support of Petitioner Patrick Kennedy, believes that Louisiana’s aggravated rape law undermines “the scourge of sexual violence against children and aiding its victims”[100] because “rather than protecting children, this statute will increase the number of victimized children, encourage offenders to kill their victims, and interfere with victims’ healing process.”[101] 

            If a punishment less severe than death would serve the same purpose, then the death penalty is not necessary to achieve the deterrent objective.[102]  Life without parole could still be an effective sentence.[103]  Some fear that the guilty will plead to the charges simply to avoid the death penalty, while the innocent will go to trial, “[risking] death to defend themselves at trial.”[104]  However, this would not pose a serious problem because although the public may wish to see the rapist dead, life without parole is still an acceptable alternative.  The rapist is removed from society such that he or she will no longer pose a threat to children.

4.                  Are Child Rapists Part of the “Most Deserving”

Capital punishment is only to be sentenced upon “those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.”[105]  The Supreme Court in Coker v. Georgia, in holding unconstitutional the death penalty for those who commit child rape, compared the impact of a rape on a victim with the impact of a murder on a victim.[106]  While any existing physical wounds may heal, the psychological effects of childhood sexual abuse will last a lifetime.[107]  While the rape of a victim certainly is not as final as the murder of a victim, it is certainly an atrocious crime that outrages society.  Justice Kennedy referred to morality, stating that “there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death.”[108]  Justice Alito implied that the majority in Kennedy misplaced its focus in applying the Eighth Amendment, stating that the amendment is meant to protect an accused’s rights, not to determine whether the punishment in question is “in the best interests of crime victims or the broader society.”[109]


B.                 Louisiana’s Capital Child Rape Statute As Written Was Arbitrary and Capricious

A capital statute must distinguish between those deserving the death penalty and those who are not.[110]  A bright-line rule for the death penalty would not be rational in child rape cases.[111]  Justice Powell referenced Snider v. Peyton,[112] which discussed the “degree of culpability of rapists.”[113]  In fact, in some cases, a rapist may be more vicious than a murderer.[114]  Justice Powell emphasizes the distinction between aggravated rapes from usual rapes.[115]

A death penalty statute may “not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.”[116]  First, sentencers must have adequate aggravating and mitigating circumstances as guidelines.[117]  Second, the statute must sufficiently narrow the class of defendants eligible for the death penalty.[118]  This may be accomplished in two ways:  (1) it may narrow the definition of capital offenses or, (2) it may broaden definition of capital offenses and narrow jury findings of aggravating circumstances at the penalty phase.[119]  The death penalty may not be “exacted with great infrequency”[120] leading to “no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”[121]

The capital crime of child rape in Louisiana has two aggravating circumstances:[122]  the victim’s age and the fact that the offense was rape or attempted rape.[123]  The Louisiana statute failed to narrow sufficiently the class of individuals whom are death-eligible.  Justice Roberts believed that the law was narrow enough in limiting death penalty to those who rape victims under the age of twelve.[124]  Some proponents of the death penalty for child rape are not in total agreement, such as President-Elect Barack Obama.[125]  Obama believes that “if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution.”[126]  In a separate opinion in Coker, Justice Powell suggested that the death penalty would be proportionate for rape if the offense was “committed with excessive brutality or that the victim sustained serious or lasting injury.”[127]


IV.             On The Horizon:  The Aftermath of Kennedy

Kennedy v. Louisiana implied that no crime but murder will be punished.  With the issues in Coker and Kennedy already having been decided by the Supreme Court, there is no longer a question as to whether the death penalty for child rape is constitutional.  Others do not see the Kennedy decision as an end to the crusade.[128]  If proponents of the death penalty for child rape do wish to continue the battle, they will have to help create statutes that will withstand the scrutiny of the Supreme Court.  This can be done by adding aggravating and mitigating circumstances and developing techniques to help reduce or even eliminate innocent executions.

A.                Aggravating Circumstances State Legislatures Should Consider

The extremely broad Louisiana child rape statute had no provisions for requirements such as corroboration or prior convictions of sexual assault.

1.                  Rapist is Carrying a Life Threatening Disease

Faced with HIV-positive/AIDS defendants, would opponents of the death penalty for the crime of child rape, would they accept death as disproportionate to the crime if the child contracts the fatal disease from the rapist?  Although the death may not be immediate, the rapist will undoubtedly be the proximate cause of the child.[129]  Louisiana does not allow the death penalty under a felony-murder theory,[130] but it would be interesting to see if it would accept the HIV-positive status of a defendant as an aggravating circumstance which would virtually be a felony-murder.[131]

2.                  Prior Record of Conviction of Sexual Offense

Capital punishment would deter others from committing rapes after being convicted the first time.[132]  Chief Justice Burger in Coker called to attention the fact that the defendant was already serving a lengthy prison sentence[133]such that additional prison time would have “no incremental punitive effect”, Coker has a life pattern such that he “presents a particular danger to the safety, welfare, and chastity of women . . . [such that] the likelihood is therefore great that he will repeat his crime at the first opportunity.”[134]

B.                 Mitigating Circumstances Legislatures Should Consider

1.                  A Mental Disease/Illness

Should we punish a person by death if he or she is committing child rape because of a mental illness?  Several states provide for involuntary civil commitment of sexually violent predators whereby the State confines individuals who are determined to be a threat to society if they are released after imprisonment.[135]  If the condition is treatable or curable, should we treat those defendants like the mentally incompetent, stay the execution until they regain competency?

2.                  Prior Victimization

A sex offender is often found to have been a sexual assault victim prior to offending.[136]  Offenders who have a history of being sexually abused as a child have a low degree of culpability.[137]  Being a past victim of sexual abuse, though mitigating, would not constitute absolute protection from prosecution.  The victim-turned-offender is still responsible for his or her actions because his or her victim nevertheless deserves justice.

3.                  The Rapist is a Family Member

When it comes to juvenile victims, a little over thirty-four percent of child rapists are family members, and approximately fifty-nine percent are acquaintances.[138]  Allowing the death penalty for child rape may make already reluctant children less likely to report sexual assaults.[139]  Even if a child does report the assault, the child may be easily persuaded to recant the allegation by family members.[140]  Opponents argue that sentencing a rapist that is related to the victim by blood or marriage, would be “undeniably counterproductive and will not serve any legitimate penal purpose for the State of Louisiana.”[141]

C.                Protecting the Innocent

One reason that juries generally might decide not to impose the death penalty is the lack of irrefutable guilt.[142]  There is a need for heightened reliability in capital cases “to guard against the risk that an innocent defendant might be put to death.”[143]  The testimony of children may be unreliable because they are susceptible to suggestion,[144] may confuse fantasy with reality,[145] and often recant their allegations.[146]

The National Association of Criminal Defense Lawyers (NACDL), as amici curiae in Kennedy v. Louisiana, stresses the lack of reliability of children as witnesses because of factors such as their susceptibility to suggestion and the recantation of their allegations.[147]  NACDL bases its argument on its concern of executing the innocent.  Although this is a valid point to consider, it should not be given much weight because juries also undoubtedly weigh the credibility of the testifying child victim against the accused.[148]  Children are not only difficult to manage as testifying witnesses, but their credibility is always questioned because they may be unable to distinguish between fantasy and reality[149] and defense attorneys pounce on that.  As much as juries would like to believe children, they tend not to lend credence to children over adults,[150]despite the fact that the alleged sex offender has the most to gain by falsifying his or her testimony.  Justice Alito addressed the reliability concerns regarding child witnesses and suggests a corroboration requirement as there is precedent for it.[151]

1.                  Innocence Review Commission

As with any person charged with a crime, there is always a possibility that the person is innocent.[152]  Society relies on juries to find guilt correctly in capital cases so as not to execute an innocent person.[153]  In order to decrease the likelihood of executing an innocent person, states may adopt an innocence review commission similar to North Carolina’s.[154]  However, the existence of an innocence review commission may cause jurors to use a standard lower than beyond a reasonable doubt if they believe that there is a system that can catch jurors’ mistakes.[155]


V.                Conclusion

The death penalty has the potential to be proportionate for child rape just in the manner for which Louisiana provides.  If a state chooses to rebel against the Kennedy ruling and pass a capital child rape statute, then the statute must be narrowed such that those who truly deserve it will receive the death penalty.  [156]

The Court’s decision in Kennedy begs the question:  if the death penalty is not acceptable for any type of rape, a crime against a person, then is there any justification for sentencing someone to death for a crime against the State?   With the crime of child rape being seen as second to murder as the most heinous crime,[157] then such a ruling would essentially invalidate all capital non-homicide statutes.  Unless states start passing such legislation and sentence criminals to death, those statutes will suffer the same fate as the one that originally sentenced Patrick Kennedy to the death penalty and force the Supreme Court to announce clearly that only murderers will be executed.  The United States may be on its way toward joining the large majority of nations that have abolished the death penalty.


[1] J.D., 2008, Barry University Dwayne O. Andreas School of Law, Orlando, Florida; B.A. Psychology and International Relations, 2004, University of California, Davis.

[2]Frank G. Carrington, Neither Cruel Nor Unusual:  The Case For Capital Punishment 11 (1978) (quoting Robert L. Shevin, Attorney General of the State of Florida).

[3]Melissa Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197, 208 (2003) (quoting Marcia J. Walker & Stanley L. Brodsky, Sexual Assault: The Victim and the Rapist 135 (1976)).

[4] Id. (quoting Coker v. Georgia, 433 U.S. 584, 607-08 (1977) (Burger, C.J., dissenting)).

[5] Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 2646 (2008) (“Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society.”).

[6] Bridgette M. Palmer, Note, Death as a Proportionate Penalty for the Rape of a Child: Considering One State’s Current Law, 15 Ga. St. U. L. Rev. 843, 844 (1999) (citing Douglas W. Pryor, Unspeakable Acts:  Why Men Sexually Abuse Children 2 (1996)); see alsoChildhelp, National Child Abuse Statistics, (compiled from the National Institute on Drug Abuse 2000 Report  and a Child Abuse & Neglect Study conducted by Arthur Becker-Weidman PhD) (last visited Nov. 5, 2008) (finding that children who have been sexually abused are 2.5 times more likely to abuse alcohol, and 3.8 times more likely to become addicted to drugs).

[7] See La. Rev. Stat. Ann. § 14:42(D) (West 2007).

[8] See Coker, 433 U.S. 584; see also U.S. Const. amend. VIII.

[9] Kennedy, 128 S.Ct. at 2650-51 (2008) (holding that “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”).

[10] Coker, 433 U.S. at 593.

[11] Id.

[12] 408 U.S. 238 (1972) (holding that the death penalty as imposed in the cases before the Court constituted cruel and unusual punishment).

[13] Coker, 433 U.S. at 594.

[14] 428 U.S. 153 (1976).

[15] Coker, 433 U.S. at 594.  Louisiana and North Carolina’s statutes made the death penalty mandatory in rape cases and were therefore subsequently invalidated by Roberts v. Louisiana, 428 U.S. 325 (1976), and Woodson v. North Carolina, 428 U.S. 280 (1976).  Aggravated rape was punishable by death in Louisiana until 1976, determined by the United States Supreme Court to “constitute[] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”  Selman v. Louisiana, 428 U.S. 906 (1976), remanded to 340 So. 2d 260 (La. 1976) (“[T]he appropriate sentence to be imposed upon a valid conviction for aggravated rape is the most severe constitutional penalty established by the legislature for a lesser included offense at the time the crime was committed . . . [which is] twenty years at hard labor.”).

[16] Ga. Code Ann. § 26-2001 (1972).

[17] Coker, 433 U.S. at 586.

[18] Id. at 593.

[19]Pamela J. Lormand, Proportionate Sentencing for Rape of a Minor:  The Death Penalty Dilemma, 73 Tul. L. Rev. 981, 1014 (1999).

[20] See State v. Wilson, 685 So. 2d 1063 (La. 1996).

[21] See La. Rev. Stat. Ann. § 14:42(D) (West Supp. 2007) (“(D)(1) Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.  (2) However, if the victim was under the age of thirteen years . . . :  (a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury . . . .”).

[22] 685 So. 2d 1063 (consolidating Bethley’s case with Wilson’s).

[23] Id. at 1064.

[24] 1065.  Bethley also knew that he was HIV positive at the time of the rapes.  Id.

[25] Id. at 1064-65 (“The thrust of both defendants’ arguments is that the imposition of the death penalty for a crime not resulting in a death is ‘cruel and unusual punishment’ and therefore unconstitutional under the Eight [sic] Amendment to the United States Constitution . . . .”); see alsoU.S. Const. amend. VIII.

[26] Wilson, 685 So. 2d at 1065.

[27] Id. at 1063.

[28] Id. at 1073.

[29] Rhonda Bell, Rape Suspect Ot [sic] Ready For Trial Mentally Retarded Man Faces Death If Convicted Of Rape Of 6-Year-Old, New Orleans Times-Picayune, Dec. 16, 1999, at B1.  As of 1999, Wilson was determined to be mentally retarded and incompetent to stand trial.  Id.  Bethley pled guilty and received a life sentence for a single count of aggravated rape to avoid prosecutors seeking the death penalty.  Id.  Prosecutors predicted Bethley would not live through the automatic appeals process if he was given the death sentence because he was HIV positive.  Id.

[30]Bethley v. Louisiana, 520 U.S. 1259, 1259 (1997) (statement by Stevens, J.).  In cases involving a criminal defendant, “finality is normally defined by the imposition of the sentence.”  Id. (quoting Flynt v. Ohio, 451 U.S. 619, 620 (1981)).

[31] Kennedy, 128 S.Ct. at 2645-46.  The injuries described as suffered by the victim were extremely severe.  Id. at 2646.

[32] Id. at 2646.

[33] State v. Kennedy, 957 So. 2d 757, 761 (La. 2007).

[34]The Burger Court, which decided Coker, was quite liberal.  Paula Berg, Toward A First Amendment Theory Of Doctor-Patient Discourse And The Right To Receive Unbiased Medical Advice, 74 B.U. L. Rev. 201, 205 n.18 (1994) (characterizing the Court as “liberal”).

[35] Coker, 433 U.S. at 593.

[36] Mark Sherman, Court Bans Death Penalty for Child Rape, Associated Press State & Local Wire, June 26, 2008

[37]Brian Z. Tamanaha, A Socio-Legal Methodology For The Internal/External Distinction: Jurisprudential Implications, 75 Fordham L. Rev. 1255, 1256 (2006) (“Justices in some instances consciously decide cases on political grounds, regardless of what they say, and all Justices subconsciously see the law through the lens of their ideological beliefs, which shape their legal interpretations.”).

[38] Kennedy, 128 S.Ct. at 2650 (“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”).

[39]Pete Yost, Seemingly Divided Court Closely Questions Death Penalty in Child Rape Case from Louisiana, Associated Press Worldstream, Apr. 17, 2008

[40] See Coker, 433 U.S. at 598 (“[T]he death penalty . . . is an excessive penalty for the rapist who, as such, does not take human life.”).

[41] See, e.g., Enmund v. Florida, 458 U.S. 782 (1982) (a robber who does not take a human life); Eberheart v. Georgia, 433 U.S. 917 (1977) (aggravated kidnapping); U.S. v. Jackson, 390 U.S. 570 (1968) (the Federal Kidnapping Act)).

[42]Trop v. Dulles, 356 U.S. 86, 101 (1958).

[43] Coker, 433 U.S. at 592.  Scalia singles out legislative enactments and jury responses as the only relevant factors.  Stanford v. Kentucky, 492 U.S. 361, 379 (1989) (plurality opinion), overruled by Roper v. Simmons, 543 U.S. 551 (2005).

[44] Kennedy, 128 S.Ct. at 2649 (quoting Trop, 356 U.S. at 101).

[45] Id.

[46] Id. at 2657-58.  The Louisiana Supreme Court, on the other hand, disagreed by considering the number of jurisdictions which have capital non-homicide crimes and therefore, concluded that “there is not a national consensus that the death penalty is disproportionate for non-homicide crimes.”  Brief in Opposition to Petition for Certiorari, Kennedy v. Louisiana, 2007 WL 4104370, at *17.

[47] Massachusetts, California, Pennsylvania, Virginia and Alabama have all considered bills.  Colin Garrett, Death Watch, Champion, June 2006, at 46.

[48] Tex. Pen. Code § 12.42 (2007 Supp.).

[49] Fla. Stat. Ann. § 794.011(2)(a) (West 2000).  It should be noted that although the Florida Supreme Court overruled the statute and deemed it unconstitutional in 1981, the law is still on the books.  Kennedy, 128 S.Ct. at 2652 (citing Buford v. State, 403 So.2d 943, 951 (Fla. 1981)).

[50]10 Okl. St. Ann. § 7115(I) (2006 Supp).

[51] S.C. Code Ann. § 16-3-655(C)(I) (2006 Supp).

[52] Kennedy, 128 S.Ct. at 2656 (“It is not our practice, nor is it sound, to find contemporary norms based upon state legislation that has been proposed but not yet enacted.”).

[53] S.C. Code Ann. § 16-3-655(C)(I) (2006 Supp)..; Garrett, supra note 47.

[54]See Carli J. Wilcox, Is South Carolina’s New Capital Child Rape Statute Unconstitutional As Cruel And Unusual Under The Eighth Amendment?, 1 Charleston L. Rev. 315 (2007), for an in-depth discussion of South Carolina’s capital child rape statute.

[55] Roper, 543 U.S. at 578 (“[W]e acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . .”).  However, Roper also makes it clear that international opinions are not determinative.  See id. (“The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”).

[56] Roger Hood, The Death Penalty:  A World-wide Perspective 77 (3d ed. 2002).

[57]Joanna H. D’Avella, Note, Death Row for Child Rape? Cruel and Unusual Punishment Under the Roper-Atkins “Evolving Standards of Decency” Framework, 92 Cornell L. Rev. 129, 154 (2006) (citing Hood, supra note 56, at 84-85.

[58] 10 U.S.C. §§ 856, 920; Manual for Courts-Martial, United States, Part IV, ¶ 45.f(1) (2008).

[59] Col. Dwight Sullivan, The Supremes Dis The Military Justice System, CAAFlog, June 28, 2008,

[60] Pub L. 109-163; Exec. Order No. 13447 (2007).

[61] Kennedy v. Louisiana , — S.Ct. —-, 2008 WL 4414670 (U.S. 2008).

[62] See Kennedy, at 1 (“In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context.”).

[63] Kennedy,  2008 WL 4414670, at *3 (Scalia, J., dissenting).

[64]Warren Richey, Despite Gaffe, Supreme Court Won’t Revisit Landmark Child-Rape Ruling, Christian Science Monitor, pg 25, Oct. 2, 2008.

[65]Linda E. Carter & Ellen Kreitzberg, Understanding Capital Punishment Law 79 (2004).

[66]Matthew Silversten, Comment, Sentencing Coker v. Georgia to Death: Capital Child Rape Statutes Provide the Supreme Court an Opportunity to Return Meaning to the Eighth Amendment, 37 Gonz. L. Rev. 121, 162 n.339 (2002).

[67] See infra Part III.A.1.b.

[68]Petition for a Writ of Certiorari, Kennedy v. Louisiana, No. 07-343, 2007 WL 2688267, at *11 n.2 (citing Executions in the U.S. 1608-2002:  The Epsy File Executions by Date 381 (2007)) (James Coburn was executed for robbery).  In 2003, Brian Regan, a former U.S. Air Force sergeant was convicted of two counts of attempted espionage, but the jury did not find him eligible for the death penalty under the Federal Death Penalty Act.  CARTER & KREITZBERG, supra note 65, at 90-91.

[69] Patrick Kennedy and Richard Davis also happen to be the only ones on death row in the United States for a non-homicide crime.  Kennedy, 128 S.Ct. at 2657.

[70] Divided Court Says Rape Convict Can’t Receive Life Without Parole, Associated Press State & Local Wire, Feb. 25, 2008.  The Georgia Supreme Court refused to accept the State’s argument and upheld the Court of Appeals decision that the trial judge did not have the authority to sentence the defendant to life without parole without first seeking the death penalty.  Id.

[71] See Coker, 433 U.S. at 598 (“We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.” (quoting Gregg, 428 U.S. at 187)).

[72] See Kennedy, 128 S.Ct. at 2659.

[73] Kennedy, 128 S.Ct. at 2650; see also Coker, 433 U.S. at 599; Emily Marie Moeller, Comment, Devolving Standards of Decency: Using the Death Penalty to Punish Child Rapists, 102 Dick. L. Rev. 621, 648 (1998) (“Because the death penalty is the ultimate sanction our criminal justice system provides, it should be reserved for those whose crime involves the unjustified taking of a human life, not child rape.”). 

[74] See Kennedy, 128 S.Ct. at 2654-56.

[75] See id. at 2668 (Alito, J., dissenting) (mentioning reasons such as respecting the Coker decision and fear of wasting state resources if their statute is found unconstitutional).  In the Coker dissent, Chief Justice Burger suggested that other states may be inclined to adopt the death penalty if they see a strong decrease in Georgia’s incidence of rape.  Coker, 433 U.S. at 618 (Burger, C.J., dissenting).

[76] Kennedy, 128 S.Ct. at 2655 (“In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.”).

[77] See id. at 2656.

[78] Id. at 2653.

[79] Id. at 2656.

[80] Id.

[81] Gregg, 428 U.S. at 183.  One public poll revealed that sixty-five percent of those surveyed were in favor of executing child molesters.  Corey Rayburn, Better Dead Than Raped?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119, 1138 (2004) (citing John Q. Barrett, Death for Child Rapists May Not Save Children, Nat’l L.J., Aug. 18, 1997, at A21).

[82]Darrel K. Harris was convicted of “brutally murdering the three people in a Brooklyn social club in the first capital trial since the death penalty returned to New York.”  Robert Jay Lifton & Greg Mitchell, Who Owns Death? Capital Punishment, the American Conscience, and the End of the Death Penalty 143 (2000).  Most of the panel was disgusted by these murders, but two jurors “held out for a life sentence, believing the man could be spiritually redeemed in prison.”  Id. at 144.

[83] Gregg, 428 U.S. at 182 (“The relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se.”).

[84] Id. at 182 (“Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases.”).

[85]Lifton & Mitchell, supra note 82, at 139 (referring to murderers).

[86]Petition for a Writ of Certiorari, supranote 68, at *16 n.5 (citing Kansas v. Crane, 534 U.S. 407, 414 (2002); Seling v. Young, 531 U.S. 250, 264 (2001)).

[87] Coker, 433 U.S. at 592 (citing Gregg, 428 U.S. 153 (1976)).

[88] Furman, 408 U.S. at 279-80 (Brennan, J., concurring).

[89]Brief Amici Curiae of the ACLU et al., Coker v. Georgia, 433 U.S. 584 (1977) (No. 75-5444), 1976 WL 181482, at *28 n.* (quoting Harry Kalven, Jr. & Hans Zeisel, The American Jury 311 n.8 (1966)).

[90] Coker, 433 U.S. at 593 n.4.

[91] Id.

[92] Kennedy, 128 S.Ct. at 2655 (“Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation.”).

[93] “The death penalty is a warning, just like a lighthouse throwing its beams out to sea.  We hear about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way.  We do not have proof of the number of ships it saves, but we do not tear the lighthouse down.”  Ken Vernon, Reflecting Society, Gold Coast Bull., Nov. 21, 2005, at 37 (quoting poet Hyman Barshay).

[94] Coker, 433 U.S. at 617 (Burger, C.J., dissenting).

[95] Hood, supra note 56, at 205(quoting Isaac Ehrlich, Capital Punishment and Deterrence:  Some Further Thoughts and Additional Evidence, 85 J. Pol. Econ. 714, 742-43 (1977)).

[96]Yale Glazer, Child Rapists Beware!  The Death Penalty and Louisiana’s Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 105 (1997) (citing Original Brief of Appellee Patrick Dewayne Bethley at 20, State v. Bethley, consolidated with State v. Wilson, 685 So. 2d 1063 (La. 1996) (No. 96-F0-460)); see also SeeBrief of the National Association of Criminal Defense Lawyers (NACDL) as Amici Curiae in Support of Petitioner, Patrick Kennedy v. Louisiana, 2007 WL 4104371, at *3 (Nov. 14, 2007) (No. 07-343) (“Child sexual abuse convictions are often ‘based primarily, if not solely, on the word of the victims involved.’” (quoting Dana A. Anderson, Assessing the Reliability of Child Testimony in Sexual Abuse Cases, 69 S. Cal. L. Rev. 2117, 2118 (1996))).

[97] State v. Kennedy, 957 So. 2d at 789 n.38.

[98]Glazer, supra note 96, at 106.

[99] Id. at 107 (“Those who oppose the imposition of the death penalty for the rape of a child under twelve argue that if the defendant did not intend to kill the victim, the defendant should not be punished as if such an intent existed.”).

[100]Brief of the National Association of Social Workers (NASW) et al. as Amici Curiae in Support of Petitioner, Kennedy v. Louisiana, 2007 WL 3444963, at *2 (Nov. 14, 2007) (No. 07-343).

[101] Id. at *3.  An estimated number of 83,000 to 217,000 children a year are sexual abuse victims.  Id. at *6 (citing U.S. Department of Health and Human Services, Child Maltreatment 2005 41 tbl. 3-6 (2007); Andrea J. Sedlak & Diane D. Broadhurst, Third National Incidence Study of Child Abuse and Neglect 2-1 through 2-3, 3-3 tbl. 3-1 (1996)).

[102] CARTER & KREITZBERG, supra note 65, at 8.

[103] Furman, 408 U.S. at 356 (Marshall, J. concurring) (“[L]ife imprisonment remains a severe sanction which can be used as leverage for bargaining for pleas or confessions in exchange either for charges of lesser offenses or recommendations of leniency.”).

[104] Brief of the NACDL, supranote 96, at *10 (citing Joseph L. Hoffmann et al., Plea Bargaining in the Shadow of Death, 69 Fordham L. Rev. 2313, 2359 (2001)); Petition for a Writ of Certiorari, supranote 68, at *22 (“[D]efendants charged with child rape are more likely to plead guilty than before [Louisiana’s capital rape law] was enacted.” (citing Angela D. West, Death as Deterrent or Prosecutorial Tool?  Examining the Impact of Louisiana’s Child Rape Law, 13 Crim. Just. Pol’y Rev. 156 (2002))).

[105] Roper, 543 U.S. 551, 568 (2005) (quoting Atkins, 536 U.S. 304, 319) (2002)). 

[106] Coker, 433 U.S. at 598 (“Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.”).

[107]Glazer, supra note 96, at 86 (“Rape often induces a cycle of behavioral problems that extend well beyond the time when the physical damage from the assault has healed.”); see also Brief of NASW, supranote 100, at *11 (“[Sexual] abuse increases the likelihood that the victim will subsequently engage in crime, become pregnant while a minor, drop out of school, abuse alcohol or drugs, and suffer from psychological disorders, such as depression, anxiety disorders, and posttraumatic stress disorder.” (citing e.g., Barbara Tatem Kelly, U.S. Department of Justice, In the Wake of Childhood Maltreatment 2 (Aug. 1997))).

[108] Kennedy, 128 S.Ct. at 2658; see also id. at 2649 (“The standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment.”) (quoting Furman, 408 U.S. at 382 (Burger, C.J., dissenting).

[109] Id. at 2673 (Alito, J., dissenting).

[110]The Louisiana Supreme Court noted that the United States Supreme Court in Lowenfield v. Phelps, 484 U.S. 231 (1988) held “a death sentence does not violate the Eighth Amendment merely because the single statutory ‘aggravating circumstance’ found by the jury duplicates an element of the underlying offense.” Kennedy, 957 So. 2d at 791.

[111] Justice Powell in his opinion concurring in part and dissenting in part, does not believe that it is so simple to have a bright-line-rule.  Coker, 433 U.S. at 603 (Powell, J., concurring in part, dissenting in part).

[112] 356 F.2d 626, 627 (4th Cir. 1966).

[113] Coker, 433 U.S. at 603 (Powell, J., concurring in part, dissenting in part) (citing Snider, 356 F.2d at 627 (“There is extreme variation in the degree of culpability of rapists.  If one were sentenced to death upon conviction of rape of an adult under circumstances lacking great aggravation, the Supreme Court might well find it an appropriate case to consider the constitutional question tendered to us.”)).

[114] Id.

[115] Id. (“Some victims are so grievously injured physically or psychologically that life is beyond repair.”).

[116] Gregg, 428 U.S. at 188 (referring to the holding of Furman).

[117]Lormand, supra note 19, at 987 (citing Gregg, 428 U.S. at 188); see also Woodson, 428 U.S. 280 (requiring statutes to have some mitigating circumstances in order to avoid being determined an arbitrary and capricious punishment).

[118] 988 (citing Zant v. Stephens, 462 U.S. 862, 877 (1983)).

[119]Lormand, supra note 19, at 987 (citing Lowenfield, 484 U.S. at 246).  Louisiana has decided to narrowly define its capital offenses, thereby allowing the jury to narrow its findings at the guilt phase.  Brief in Opposition to Petition for Certiorari, supra note 46, at *23.

[120]Lormand, supra note 19, at 988 (citing Gregg, 428 U.S. at 188 (quoting Furman, 408 U.S. at 313 (White, J., concurring)).

[121] Id. (citing Gregg, 428 U.S. at 188 (quoting Furman, 408 U.S. at 313 (White, J., concurring)).

[122]Louisiana requires that a jury find “beyond a reasonable doubt that at least one statutory aggravating circumstance exists” before sentencing a defendant to death.  La. Code Crim. Proc. Ann. art. 905.3 (West 1997).

[123] Id. art. 905.4.

[124] Bill Walsh, Justices Consider Death Penalty For Child Rapists, Newhouse News Service, Apr. 16, 2008.

[125] See Linda Greenhouse, Justices Bar Death Penalty For the Rape of a Child, NY Times, A1, June 21, 2008 (noting that Obama disagrees with the Court’s unwillingness to make an exception based on the brutality of the attack).

[126] See Robert Barnes, High Court Rejects Death for Child Rape, Wash. Post, A1, June 26, 2008.

[127] See Coker, 433 U.S. at 601 (Powell, J., concurring in part, dissenting in part).

[128] Texas Rep. Lamar Smith proposed an amendment to the U.S. Constitution to overrule the Kennedy decision.  Rep. Smith Introduces Constitutional Amendment to Protect Child Victims of Forcible Rape, US Fed News, June 26, 2008.  The resolution does not mandate the death penalty, but it certainly makes the option available for the justice system.  Id.

[129] SeePeople v. Dekens, 695 N.E.2d 474, 475 (Ill. 1998) (“Under [the proximate cause] theory, liability attaches ‘for any death proximately resulting from the unlawful activity-notwithstanding the fact that the killing was by one resisting the crime.’” (quoting People v. Lowery, 687 N.E.2d 973, 975-76 (1997))).  See People v. Boand, 838 N.E.2d 367 (Ill. App. Ct. 2005) for an application of the proximate cause theory of liability to a rape case.

[130]See La. Code Crim. Proc. Ann. art. 905.

[131]Angelyn L. Miller, Comment, Constitutional Law:  Can a Convicted Rapist Be Sentenced to Death for Raping a Child Under Twelve Years of Age?, 37 Washburn L.J. 187, 202 (1997)) (suggesting that the death penalty should be offered only when the rapist has AIDS and is aware of that fact).

[132] See Coker, 433 U.S. at 605-66 (Burger, C.J., dissenting) (“[O]thers in his position will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.”).

[133]On September 2, 1974, Coker escaped from the Ware Correctional Institution after which he entered the house of Allen and Elnita Carver and raped Mrs. Carver.  Id. at 587.

[134] Id. at 606-07 (Burger, C.J., dissenting).

[135] See, e.g., Fla. stat. Ann. §§ 394.910-.930 (West 2008).

[136] The National Center for Victims of Crime, Child Sexual Abuse, (“One expert estimates that forty percent of sexual abusers were sexually abused as children.”) (citing Vanderbilt, 1992) (last visited Nov. 5, 2008).

[137] SeeSuzanne Meiners-Levy, Challenging The Prosecution Of Young “Sex Offenders”: How Developmental Psychology And The Lessons Of Roper Should Inform Daily Practice, 79 Temp. L. Rev. 499, 507 (2006) (“[A]s prior victims of abuse, they are less likely to realize the inappropriateness or illegality of their sexual behavior.”) (citing Larry K. Brown et al., Impact of Sexual Abuse on the HIV-Risk-Related Behavior of Adolescents in Intensive Psychiatric Treatment, 157 Am. J. Psychiatry 1413, 1414-15 (2000))).

[138] National Center for Juvenile Justice, Sexual Assault of Young Children as Reported to Law Enforcement:  Victim, Incident, and Offender, Characteristics, 2000, (last visited Nov. 5, 2008).

[139] William G. Austin, Assessing Credibility In Allegations Of Marital Violence In The High-Conflict Child Custody Case, 38 Fam. & Conciliation Courts Rev. 462, 468 (2000) (“Sometimes the children will report on incidents, but they may be reluctant to report because of a loyalty conflict in their attachment to the parents or being aligned with a parent who is a perpetrator of abuse.”); Thomas D. Lyon, The New Wave In Children’s Suggestibility Research: A Critique, 84 Cornell L. Rev. 1004, 1048 (1999) (“Children may fail to report abuse due to their fear of the potential negative consequences to themselves and their loved ones (including, in some cases, the perpetrator).  If the offender is someone close to the child or is a member of the child’s family, loyalty to the offender makes the child particularly reluctant to report her abuse.  Finally, abused children worry that others will blame them for the abuse, causing feelings of both embarrassment and shame.”); Brief of the NASW, supra note 100, at *8 (finding that there is a high rate of reluctance of children to report sexual abuse by family members) (citing Tina B. Goodman-Brown et al., Why Children Tell: A Model of Children’s Disclosure of Sexual Abuse, 27 CHILD ABUSE & NEGLECT 525, 537 (2003)).

[140] See Brief of NACDL, supranote 96, at *6 (citing Lindsay Malloy et al., Filial Dependency & Recantation of Child Sexual Abuse Allegations, 46 J. Am. Acad. Child & Adolesc. Psychiatry 162, 167 (Feb. 2007)); see also infra Part IV.E.

[141]Glazer, supranote 96, at 112 (quoting Brief in Support of Appellees of Amicus Curiae Louisiana Foundation Against Sexual Assault, Inc., et al. at 4, State v. Bethley, consolidated with State v. Wilson, 685 So. 2d 1063 (La. 1996) (No. 96-F0-460)).

[142]Bill Rankin, et al., Death Still Arbitrary, Atlanta Journal-Constitution, (last visited Nov. 5, 2008); see also Margery Malkin Koosed, Averting Mistaken Executions By Adopting The Model Penal Code’s Exclusion Of Death In The Presence Of Lingering Doubt, 21 N. Ill. U. L. Rev. 41, 67 (2001) (“Pro-death jurors may fear that a subsequent jury may not convict, and pro-life jurors may fear that a subsequent jury will acquit on all charges or sentence the possibly innocent defendant to death.” (citing William J. Bowers et al., Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decisionmaking, 83 Cornell L. Rev. 1476, 1527 (1998))).

[143] Brief of the NACDL, supra note 96, at *2 (citing Johnson v. Mississippi, 486 U.S. 578, 584 (1988)).

[144] Id. at *4.

[145] Id.

[146] *6 (stating that a number of studies “have found more than 20% of children recant their allegations of sexual abuse”) (citing Malloy et al., supra note 109, at 165).

[147] Id. at *2.  A number of studies have shown that more than twenty percent of children recant their allegations of sexual abuse.  Id. (citing Malloy et al., supra note 109, at 165; Kamala London et al., Children Tell?, 11 Psych., Pub. Pol’y. & L. 194, 216 (2005)).

[148] Brief of the NACDL, supranote 50, at *3 (citing Ex parte Thompson, 153 S. W. 3d 416, 422 (Tex. Crim. App. 2005) (Cochran, J., concurring)).

[149] Daniel E. Monnat & Paige A. Nicholas, The Kid Gloves Are Off: Child Hearsay After Crawford V. Washington, 30 FEB Champion 18, 20 (2006) (citing Maryland v. Craig, 497 U.S. 836, 868 (1990) (Scalia, J., dissenting)).

[150] David McCord, Expert Psychological Testimony About Child Complainants In Sexual Abuse Prosecutions: A Foray Into The Admissibility Of Novel Psychological Evidence, 77 J. Crim. L. & Criminology 1, 47 (1986) (“With respect to the moral ability to tell the truth, jurors may believe that children are more likely to lie than are adults.”).

[151] Kennedy,128 S.Ct. at 2675 (Alito, J., dissenting).

[152] Professor Hugo Adam Bedau admitted that some innocent persons have, undoubtedly, been executed, “even if it cannot be proved.”  Hood, supra note 56, at 104 (citing Michael L. Radelet, Hugo Adam Bedau & Constance E. Putnam, In Spite of Innocence (1992)). 

[153] Brief of the NACDL, supra note 96, at *3 (citing Herrera v. Collins, 506 U.S. 390, 407 n.5 (1993)).

[154] See generally Erik Lillquist, Improving Accuracy In Criminal Cases, 41 U. Rich. L. Rev. 897, 906-11 (2007); Jerome M. Maiatico, All Eyes On Us: A Comparative Critique Of The North Carolina Innocence Inquiry Commission, 56 Duke L.J. 1345 (2007).

[155] Id. at 908.  There is also the possibility of exonerating a guilty person.  Id.

[156] See David W. Schaaf, Note:  What If The Victim Is A Child? Examining The Constitutionality Of Louisiana’s Challenge To Coker v. Georgia, 2000 U. Ill. L. Rev. 347, 375 (2000) (“[I]f Louisiana’s death-penalty law for child rape is struck down, the future proliferation of the death penalty could be severely limited.  For the current nonhomicide, nonrape death-penalty laws to survive, states will have to prove that the crime they are punishing with death is worse than rape.”).

[157] State v. Kennedy, 957 So. 2d at 785 (“For in our view, and evidently the view of the United States Supreme Court, child rape is the most heinous of all non-homicide crimes.”).

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