CULLIVAN_FINAL 4/19/2010 10:39:15 AM

COMMENTS
WHY THE KENNEDY V. LOUISIANA
HOLDING DOES NOT AFFORD
MISSOURI A VOICE

Jessica Cullivan
Abstract: A dramatic increase in the prevalence of child sexual abuse
recently prompted the State of Missouri to impose harsher sanctions against
such predators. In an attempt to protect these young victims, the Missouri
Legislature enacted some of the toughest laws in the country. In addition to
requiring sex offender registries and imposing Global Positioning System
(GPS) tracking and mandatory life sentences for the most serious offenders,
the state also had a bill pending that would make the crime of rape of a child
a capital offense.

Unfortunately, on its way to a seemingly zero-tolerance policy, Missouris

momentum was stopped in its tracks when the Supreme Court decided
Kennedy v. Louisiana. Without acknowledging the increasing prevalence of
child sexual abuse, or the severe impact that such crimes have on their young
victims, the Kennedy Court held definitively that capital punishment for the
crime of child rape was a violation of the Eighth Amendment. This
Comment argues that in so deciding, the Supreme Court disregarded a clear
trend towards harsher penalties for sex offenders, and that federalism
concerns required the Court to defer to the states on the issue.

Candidate for Juris Doctor, New England School of Law (2010). B.A., Criminal Justice,
magna cum laude, University of Massachusetts (2006). I would like to thank Sean OBrien,
and my parents, Dan and Dianne Cullivan, for their constant love and support.

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INTRODUCTION
Up to 80,000 instances of child sexual abuse are reported each year,1
and the majority of sex offenders who target children are repeat offenders.2
One study found that among those imprisoned for a sex crime against a
minor, seventy-four percent had at least one prior conviction for the same,
or a similar offense.3 It is estimated that the average offender commits 282
illegal acts with 150 different victims.4 As a result of these staggering
statistics, the State of Missouri has been taking action to hold those
offenders responsible and to protect the children of Missouri.5 The
Missouri State Legislature has not only passed some of the toughest laws in
the country with regard to sex crimes against children, but it also has a
number of prospective bills that it plans to soon enact.6 The Supreme Court
recently thwarted these efforts by the Missouri Legislature, when a five to
four majority determined that imposition of the death penalty for the crime
of rape of a child constituted cruel and unusual punishment in violation of
the Eighth Amendment.7
In June 2008, the Supreme Court heard the case of Kennedy v.
Louisiana.8 A unanimous jury sentenced the defendant, Patrick Kennedy,
to death for the aggravated rape of his eight-year-old stepdaughter.9 On
appeal, the Supreme Court held that societys standards of decency
prohibited a state from imposing the death penalty in a case where the
perpetrator raped, but did not kill, the child, regardless of other aggravating
circumstances that may be present.10 In deciding against the imposition of

1. Facts for Families: Child Sexual Abuse, AM. ACAD. OF CHILD & ADOLESCENT
PSYCHIATRY, May 2008, http://www.aacap.org/galleries/FactsForFamilies/09_child_sexual_
abuse.pdf.
2. H.R. REP. NO. 103-392, at 4 (1993).
3. Id.
4. Melissa Meister, Murdering Innocence: The Constitutionality of Capital Rape
Statutes, 45 ARIZ. L. REV. 197, 213 (2003) (internal quotations omitted) (quoting Michael G.
Planty & Louise van der Does, Megans Laws Arent Enough, WALL ST. J., July 17, 1997, at
A22).
5. See infra Part I.A.
6. Missouri is not the only state that has recently taken a strong stance against
perpetrators of sexual violence on children. All fifty states have passed some version of
Megans Law requiring sex offender registration systems, and thirty-three states have passed
a version of Jessicas Law imposing harsher punishments for sex offenders. See Megans
Law, Sex Offenders Nationwide: Registered Sex Offenders, http://www.megans-law.net/
(last visited Feb. 1, 2010).
7. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2650-51 (2008).
8. Id. at 2641.
9. Id. at 2648.
10. See id. at 2665.
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2010] KENNEDY V. LOUISIANA 455

the death penalty, the Supreme Court disregarded the clear trend towards
harsher penalties for sex offenders.11 The Court also disregarded the fact
that a number of states, including Missouri, had pending legislation that
would make rape of a child a capital offense in certain circumstances.12
This Comment will analyze the impact of the Supreme Courts
decision in Kennedy on the State of Missouri.13 Part I looks at both the
background of several Missouri sex offender statutes and the background
surrounding the Supreme Courts consideration of the death penalty in the
years preceding the Kennedy decision. Part II discusses the Courts holding
in Kennedy that capital punishment for the crime of rape of a child is
unconstitutional as it violates the Eighth Amendments ban on cruel and
unusual punishment. Part III criticizes the Kennedy holding by alleging that
the Court held incorrectly, as federalism concerns require the Supreme
Court to defer to the states where societys standards are at issue.
Further, by holding definitively that capital punishment for child rape
violates the Eighth Amendment, the Court has precluded society from
raising the issue again in the future.

I. Background of Sex Offender Legislation

A. Recent Missouri Sex Offender Legislation

In response to the growing number of sex crimes against children, the
Missouri Legislature enacted a number of statutes that provided for harsher
punishments for sex offenders.14 A clear trend toward harsher punishments
and more accountability on the part of offenders has been in place for some
time, as illustrated by the following discussion.15
The state first adopted the Jacob Wetterling Crimes Against Children
and Sexually Violent Offender Registration Act in accordance with a 1994

11. See infra Part III.B.

12. See Kennedy, 128 S. Ct. at 2651.
13. Missouri was not the only state negatively impacted by the Courts ruling in
Kennedy v. Louisiana. Four other states (Colorado, Mississippi, Alabama, and Tennessee)
also had legislation pending that would make rape of a child a capital offense. Each of those
states is likely to be affected similarly, and thus the issues addressed in this Comment are
likely pertinent to those states as well. See Brief of Amici Curiae Missouri Governor Matt
Blunt and Members of the Missouri General Assembly in Support of Respondent, Kennedy
v. Louisiana, 128 S. Ct. 2641 (2008) (No. 07-343), 2008 WL 742922 [hereinafter Brief of
Amici Curiae].
14. See Mo. State Highway Patrol, Mo. Sex Offender Registry, Facts Sheet,
http://www.mshp.dps.missouri.gov/MSHPWeb/PatrolDivisions/CRID/SOR/factsheet.html
(last visited Feb. 1, 2010).
15. See infra text accompanying notes 17-28.
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456 NEW ENGLAND LAW REVIEW [Vol. 44:453

federal law requiring states to put into place a sex offender registry.16 This
was subsequently amended by Megans Law, which requires convicted sex
offenders to register with the chief law enforcement officer in the county
where he or she resides within ten days of conviction, release from
incarceration, or placement on probation.17 In 2008, Missouri reduced the
time to register from ten days to three.18 The offender must also submit a
photograph and provide the county official with the specifics of the crime
for which he or she was convicted.19 Registered sex offenders must report
back semiannually to confirm the continued accuracy of the information
the registry has on file.20 In order to keep adults informed and children out
of harms way, any member of the public may obtain a copy of the
complete list of names, addresses, and crimes for which offenders are
registered upon request to a law enforcement official.21
Missouri also adopted Jessicas Law, which imposes lifetime Global
Positioning System (GPS) monitoring of sex offenders and a mandatory
life sentence for serious sex crimes against young children, with a
minimum thirty years served in jail.22 The Missouri version of the law also
allows law enforcement to pursue sex offenders on the Internet and states
that offenders will be punished even if they are communicating online to
law enforcement with the belief that they are conversing with a child.23
This version of Jessicas Law is one of the toughest in the nation, as the
Missouri State Legislature continues to combat sex crimes against
children.24
Then, in 1996, the State passed the Pam Lychner Sexual Offender
Tracking Law, which allows law enforcement to track sex offenders from
one location to another.25 Prior to the passage of this law, there was no
system in place to enable police in different communities to inform one

16. Mo. State Highway Patrol, supra note 14.

17. MO. ANN. STAT. 589.400 (West 2003).
18. 2008 Mo. Legis. Serv. 758 (West) (codified as amended at MO. ANN. STAT.
589.400 (Supp. 2009)).
19. MO. ANN. STAT. 589.407.
20. Id. 589.414.
21. Id. 589.402.
22. Press Release, Gov. Matt Blunt, R-Mo., Gov. Blunt Renews Call for Death Penalty
for Child Rapists, U.S. STATE NEWS, Apr. 21, 2008, available at 2008 WLNR 7456659
[hereinafter Press Release]; Matt Blunt, Jessicas Law Means Greater Safety for Missouri
Children, June 13, 2006, http://www.mattblunt.com/news/Read.aspx?ID=178 [hereinafter
Matt Blunt].
23. Matt Blunt, supra note 22.
24. See Press Release, supra note 22.
25. Mo. State Highway Patrol, supra note 14.
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2010] KENNEDY V. LOUISIANA 457

another of the location of sex offenders.26 This law increased the amount of
time for which sex offenders were required to register; before the Pam
Lychner Law, offenders were only required to register for ten years.27 Now,
most convicted sex offenders are subject to a lifetime registration.28
Additionally, at the time that Kennedy v. Louisiana was decided, a
number of bills were pending in the Missouri General Assembly that would
further monitor convicted sex offenders and keep children safe from
predators.29 All of these changes were moving Missouri toward a policy of
zero-tolerance for sex offenders who target children, concluding with
Senate Bill 1194, which would have increase[d] the punishment for
forcible rape or sodomy of a child under the age of twelve to be either
death or life imprisonment without probation or parole.30

B. Supreme Court Treatment of Capital Rape Statutes

The Eighth Amendment to the United States Constitution states that
[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.31 The Supreme Court has had
many occasions to interpret this Amendment. In 1958, the Court ruled that
[t]he Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society, and concluded that
what constitutes cruel and unusual punishment will change over time.32 In
assessing what the current society views as moral, the Court looked to
objective indicia that reflect the public attitude toward a given sanction,33
relying on state legislatures as the clearest and most reliable objective

26. Id.
27. Id.
28. Id.
29. See generally H.B. 1536, 94th Gen. Assem., 2d Reg. Sess. (Mo. 2007) (prohibiting
sex offenders from being within 500 feet of a playground or a public pool); H.B. 1397, 94th
Gen. Assem., 2d Reg. Sess. (Mo. 2007) (prohibiting sex offenders from being within 500
feet of a child care facility); H.B. 1396, 94th Gen. Assem., 2d Reg. Sess. (Mo. 2007)
(proposing that a unique code be placed on the drivers license of a sex offender); H.B.
1379, 94th Gen. Assem., 2d Reg. Sess. (Mo. 2007) (withdrawn 2007) (proposing that sex
offenders must notify a park ranger before camping in a state park); H.B. 1352, 94th Gen.
Assem., 2d Reg. Sess. (Mo. 2007) (proposing no student housing for sex offenders).
30. S.B. 1194, 94th Gen. Assem., 2d Reg. Sess. (Mo. 2008). The proposed bill would
divide the trial into two parts: the first would determine guilt or innocence, and the second
stage would submit the question of punishment to the trier of fact. Id. The second stage
would include an introduction of aggravating and mitigating circumstances. Id.
31. U.S. CONST. amend. VIII.
32. Trop v. Dulles, 356 U.S. 86, 101 (1958).
33. Gregg v. Georgia, 428 U.S. 153, 173 (1976).
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evidence of contemporary values.34 Other objective indicia that the Court

has looked to include: historical development of the punishment at
issue . . . , international opinion, and jury sentencing determinations.35
The Court addressed the constitutionality of capital punishment in
Furman v. Georgia.36 In that consolidated case, two men had been
convicted of rape and one of murder.37 The sentencing for each was left to
the discretion of the respective juries, and each of the juries returned a
death sentence.38 In vacating each of the sentences, the Court declared that
capital punishment itself was not necessarily cruel and unusual39 but that
the method of choosing whom to impose the sentence against was unusual
as the statutes were written at the time, since they afforded juries too much
discretion.40 The Court therefore held that the death penalty statutes at issue
violated the Eighth Amendment because the sentence was being imposed in
a discriminatory manner.41 In a concurring opinion, Justice William O.
Douglas stated:
[W]e know that the discretion of judges and juries in imposing
the death penalty enables the penalty to be selectively applied,
feeding prejudices against the accused if he is poor and despised,
and lacking political clout, or if he is a member of a suspect or
unpopular minority, and saving those who by social position may
be in a more protected position.42
As a result of that decision, most state statutes authorizing the death penalty
for the crime of rape were invalidated; however, a few were reenacted at a
later date.43 To remedy the discrimination that the Furman decision
centered around, new legislation either specified the factors to be

34. Atkins v. Virginia, 536 U.S. 304, 312 (2002) (internal quotations omitted) (quoting
Penry v. Lynaugh, 492 U.S. 302, 311 (1989)); see also Roper v. Simmons, 543 U.S. 551,
564 (2005) (relying on recent legislative history to establish a consensus against imposition
of the death penalty against juveniles).
35. Enmund v. Florida, 458 U.S. 782, 788 (1982).
36. Furman v. Georgia, 408 U.S. 238, 240 (1972) (Douglas, J., concurring).
37. Id.
38. See id.
39. Id. at 241.
40. Id. at 242. Prior to the decision in Furman, discretion regarding when to apply
capital punishment, and for what particular crimes, was left to the trier of fact. See Gregg v.
Georgia, 428 U.S. 153, 156 (1976).
41. Furman, 408 U.S. at 242 (Douglas, J., concurring).
42. Id. at 255.
43. Kennedy v. Louisiana, 128 S. Ct. 2641, 2651 (2008).
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considered and the procedures to be followed when imposing a capital

sentence, or the statute made the death penalty mandatory for certain
crimes.44
One such state that re-enacted its capital rape provision was
Georgia.45 Georgias capital rape statute 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 [twenty] years.46 The
issue of whether that particular imposition of capital punishment
constituted cruel and unusual punishment was addressed in Coker v.
Georgia.47 The case involved an escaped felon who entered the home of a
young couple, Allen and Elnita Carver.48 The defendant tied up Mr. Carver,
stealing his keys and money.49 He raped Mrs. Carver and fled in the family
car, taking her with him.50
The jury returned a guilty verdict and a sentencing hearing ensued.51
The jurys verdict on sentencing was death by electrocution.52 The
defendant appealed and the Supreme Court declared unconstitutional the
death penalty for the rape of an adult woman, holding that death was
grossly disproportionate and excessive.53 However, the issue of whether
the same was true with respect to the rape of a child was not addressed in
the opinion.54

II. Kennedy v. Louisiana55

More than thirty years after Coker was decided, the Supreme Court
finally addressed the issue of capital punishment for the crime of child
rape.56 In June 2008, the Court declared that the death penalty is excessive
and therefore in violation of the Eighth Amendment not only for the rape of
an adult woman but also for the rape of a child.57

44. Gregg, 428 U.S. at 221-22.

45. Kennedy, 128 S. Ct. at 2651.
46. Coker v. Georgia, 433 U.S. 584, 586 (1977) (citing GA. CODE ANN. 26-2001
(1972) (current version at GA. CODE ANN. 16-6-1 (West 2009))).
47. See id. at 592.
48. Id. at 587.
49. Id.
50. Id.
51. Id.
52. Coker, 433 U.S. at 591.
53. Id. at 592.
54. See id.
55. Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).
56. See id.
57. Id. at 2660.
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A. Facts and Procedural History

On March 2, 1998, Patrick Kennedy called 911 to report that his
eight-year-old stepdaughter, referred to in the Supreme Court opinion as
L.H., had been raped.58 Kennedy reported that while he was in the house he
heard L.H. scream and ran outside to check on her.59 He claimed that as he
approached his stepdaughter, he saw a neighborhood boy riding away on a
bicycle, and that L.H. identified him as one of the two boys who had
dragged her from the garage to the yard, pushed her down, placed a hand
over her mouth, and raped her.60
Police responded to Kennedys home where they found L.H. on her
bed, bleeding heavily from the vaginal area, and wrapped in a bloody
blanket.61 Kennedy explained to police that after he discovered his
stepdaughter in the yard, he carried her to the bath tub and then to her
bed.62 He had wiped blood from L.H. with a basin of water and a cloth,
which prevented medical personnel from collecting a reliable DNA
sample.63 L.H. was then transported to the hospital where an expert in
forensic medicine declared that L.H.s injuries were the worst he had ever
seen from a sexual assault.64 L.H.s extensive injuries required emergency
surgery.65
Although L.H. continued to maintain that two neighborhood boys had
been the perpetrators, the police did not believe that the story presented by
she and Kennedy was plausible.66 The area in the yard where the rape was
alleged to have taken place was undisturbed, and the descriptions of the
bicycle that Kennedy was alleged to have seen were inconsistent.67 Further
compounding the unlikelihood of the story was the fact that blood was
found on the underside of L.H.s mattress.68 Police also discovered that
Kennedy had left a message for his employer that he would not be able to
work that day and subsequently contacted a colleague to ask how to get
blood out of a white carpet.69 As a result of these findings, the police

58. Id. at 2646.

59. Id.
60. Id.
61. Kennedy, 128 S. Ct. at 2646.
62. Id.
63. Id.
64. Id.
65. Id.
66. Id. at 2647.
67. Kennedy, 128 S. Ct. at 2647.
68. Id.
69. Id.
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arrested Patrick Kennedy for the crime.70 Several months later, L.H. told
her mother that Kennedy had raped her.71
Kennedy was charged with aggravated rape.72 The rape statute in
Louisiana permitted capital punishment if the victim was under the age of
twelve.73 At the trial, L.H. testified that on the morning of the rape she
woke up with Patrick Kennedy on top of her.74 The jury found Kennedy
guilty of aggravated rape and unanimously determined that he should be
sentenced to death.75 The decision of the trial court was later affirmed by
the Supreme Court of Louisiana, which rejected Kennedys argument that
the death penalty for rape of a child under twelve years old was
disproportionate.76 The Supreme Court of the United States granted
certiorari to consider the issue.77

B. The Supreme Courts Decision

While the Supreme Court acknowledged that the death penalty is not
invariably unconstitutional, the majority opinion held that in the instance
of an individual who rapes but does not kill a child, capital punishment is
excessive, and therefore unconstitutional.78 In so deciding, the Court was
guided by objective indicia of societys standards, as expressed in
legislative enactments and state practice with respect to executions.79
The Court began its discussion by looking at the states that have
recently reintroduced capital punishment for the crime of child rape.80 The
Court stated that because only six states authorize the use of the death
penalty for the crime of child rape, it can be inferred that society is against
its imposition.81 It then analogized this situation to precedent where the
Court has held that capital punishment is excessive for crimes committed
by juveniles or mentally retarded persons; it determined that in all of those

70. Id. at 2650-51.

71. Id.
72. Id. at 2647.
73. LA. REV. STAT. ANN. 14:42 (1997).
74. Kennedy, 128 S. Ct. at 2648.
75. Id.
76. See id.
77. Id. at 2649.
78. Id. at 2650-51.
79. Id. at 2650 (internal quotations omitted) (quoting Roper v. Simmons, 543 U.S. 551,
552 (2005)).
80. See Kennedy, 128 S. Ct. at 2651-52.
81. Id. at 2653.
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situations, the small number of states allowing capital punishment was

indicative of the fact that society as a whole was opposed.82
Finally, the Court looked to the number of executions that had taken
place for the crime of child rape.83 The Court said that those statistics could
help to inform the consideration of whether society accepted the
punishment.84 It cited statistics indicating that no individual had been
executed since 1964 for rape of an adult or a child.85 The Court used that
information in determining that there is a national consensus against
capital punishment for the crime of child rape.86
Citing to the decision in Coker, the majority decided that since the
crime of rape cannot be compared to murder in its severity and
irrevocability, the punishment is excessive in the case of child rape.87 The
majority further reasoned that the death penalty serves no deterrent or
retributive function.88 Finding that society did not approve of the practice,
and that the punishment was excessive in comparison to the harm done, the
Supreme Court reversed the judgment of the Supreme Court of Louisiana.89
The dissenting opinion, on the other hand, disagreed with the
majoritys contention that there is a national consensus against
imposition of the death penalty for the crime of child rape.90 The dissent
relied on the confusion surrounding the Coker decision regarding what was
constitutionally permissible.91 Justice Samuel Alito explained that many
state legislatures in the past have incorrectly read Coker to stand for the
proposition that the death penalty is never appropriate for the crime of rape,
regardless of the victim or the circumstances.92 He further stated that this
confusion has prevented states that otherwise would have passed similar
legislation from doing so.93

82. See id.

83. See id. at 2651.
84. Id. at 2657.
85. Id.
86. Kennedy, 128 S. Ct. at 2657-58.
87. Id. at 2660.
88. Id. at 2662.
89. See id. at 2665.
90. Id. (Alito, J., dissenting). Chief Justice John G. Roberts, Justice Antonin Scalia, and
Justice Clarence Thomas joined Justice Samuel Alito in his dissent of Kennedy, which
argued that the majoritys justification was unsound. See id.
91. Id. at 2666.
92. Kennedy, 128 S. Ct. at 2667.
93. Id. at 2665.
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III. Kennedy Holding Undermines Missouris Progress

All of the steps that Missouri has taken toward implementing harsher
penalties for child sex crimes were effectively belittled by the majority
opinion in Kennedy.94 For more than a decade, the State imposed harsher
penalties proportionally with societys increased outrage at sex offenses
against children.95 The ultimate conclusion was inevitably to impose the
most serious penalty for the most heinous offenses; Kennedy incorrectly
took this decision away from the people.96

A. Federalism Concerns Necessitate Leaving Determinations of

Societys Standards of Decency to the Individual States.
In past decisions, the Supreme Court has acknowledged that the
primary responsibility for defining crimes against state law, fixing
punishments for the commission of these crimes, and establishing
procedures for criminal trials rests with the States.97 Further, laws enacted
by state legislatures are presumptively constitutional.98 Six states allowed
capital punishment for the crime of child rape at the time that this issue was
decided.99 Federalism and separation of powers issues would require an
opponent of any of those statutes to overcome a heavy burden in order to
determine that they do not pass constitutional muster, since the
punishments were selected by a democratically elected legislature.100
The Supreme Court has previously held that the scope of the Eighth
Amendment is not static, but that [t]he Amendment must draw its
meaning from the evolving standards of decency that mark the progress of
a maturing society.101 This means that what is considered to be cruel and
unusual will change over time with the changing society.102 The key to the
Courts holding is that society should determine what they consider to be
decent and moral.103 It is necessarily the job of our democratic society, and
not the judiciary, to make these determinations and to reach a moral
consensus.104 The Supreme Court is not in a position to decide such issues

94. See supra Part I.A.

95. See supra Part I.A.
96. See infra Part III.A-B.
97. Payne v. Tennessee, 501 U.S. 808, 824 (1991).
98. See Gregg v. Georgia, 428 U.S. 153, 175 (1976).
99. See Brief of Amici Curiae, supra note 13, at 14.
100. See Gregg, 428 U.S. at 175.
101. Trop v. Dulles, 356 U.S. 86, 100-01 (1958).
102. See id. at 100.
103. See id.
104. See Gregg, 428 U.S. at 186-87.
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since [c]ourts are not representative bodies. . . . [and] are not designed to
be a good reflex of a democratic society.105
Instead, courts should look to our democratic society, including juries
representing a random cross section of the population, in deciding where
the consensus lies.106 By coming to a unanimous decision that Kennedys
actions deserved capital punishment, the jury explicitly expressed their
approval of the practice.107 Jury sentencing maintain[s] a link between
contemporary community values and the penal system a link without which
the determination of punishment could hardly reflect the evolving
standards of decency that mark the progress of a maturing society.108 If
the Court then overlooks the jurys determination of what is appropriate in
a particular case, contemporary community values are not addressed.
Similarly, state legislatures provide a good indication of where
society stands on an issue. It has been a common practice for the Supreme
Court to rely on state legislatures to determine what the societal consensus
is.109 Indeed, it is possible that evolving standards may necessitate an
increase in a punishment for a particular crime as society learns more about
the nature of the offense and, in this case, the effects that the crime has on
its young victim.110 Not only did six states already have laws similar to
Louisianas capital child rape statute, but five othersincluding
Missourihad similar legislation pending.111

B. Recent Increases in Prevalence of Child Sex Abuse and Societys

Awareness of the Severity of the Issue Have Prompted States to
Move Toward Harsher Punishments, Which Would Culminate in
More Capital Statutes in Time.
Missouri Governor Matt Blunt asserted that there is a clear trend . . .
in favor of such punishment.112 Given the substantial change in sex
offender laws and awareness that has occurred in the last fifteen years,

105. Id. at 175 (internal quotations omitted) (quoting Dennis v. United States, 341 U.S.
494, 525 (1951) (Frankfurter, J., concurring)).
106. See id. at 186-87, 190.
107. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2648 (2008).
108. Gregg, 428 U.S. at 190 (internal quotations omitted) (quoting Witherspoon v.
Illinois, 391 U.S. 510, 515 n.15 (1968)).
109. See Roper v. Simmons, 543 U.S. 551, 564 (2005); Atkins v. Virginia, 536 U.S. 304,
312 (2002).
110. See Ashley M. Kearns, South Carolinas Evolving Standards of Decency: Capital
Child Rape Statute Provides a Reminder that Societal Progression Continues Through
Action, Not Idleness, 58 S.C. L. REV. 509, 526 (2007).
111. See Brief of Amici Curiae, supra note 13, at 11.
112. Id. at 14.
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Governor Blunts statement holds considerable weight.113 It was not until

1994 when the government began implementing stricter laws against sex
offenders.114 Before that time, society was unaware of the detrimental
effects of child sex abuse, which include depression, insomnia, sleep
disturbances, nightmares, and loss of toilet training.115 Sexual abuse against
children was not as prevalent prior to that time either.116 In only five years,
from 1986 until 1991, the instances of child sex abuse increased by
227%.117
It was this change in both awareness and prevalence that prompted
Missouri to enact a capital rape statute, and that would result in other states
following suit given the opportunity to do so.118 Louisiana was the first
state to pass a capital child rape statute in 1995.119 By 2003, Louisiana was
one of two states with such statutes.120 However, in the five years that
followed, an additional four states enacted such legislation; this tripled the
total number of states with capital child rape statutes in only five years.121
In the absence of the Kennedy decision, it is likely that many more states
would have enacted capital rape statutes once they were given an
opportunity to examine the effects that the punishment was having on
deterrence of child rape.122
The Supreme Court has previously stated that [i]t is not so much the
number of . . . States that is significant, but the consistency of the direction
of change.123 It is evident that the direction of change nationwide is toward

113. See supra text accompanying notes 16-30.

114. See United States Department of Justice, Bureau of Justice Assistance, Overview
and History of the Jacob Wetterling Act, http://www.ojp.usdoj.gov/BJA/what/
2a1jwacthistory.html (last visited Feb. 1, 2010).
115. Meister, supra note 4, at 209.
116. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2669-70 (2008) (Alito, J., dissenting).
117. Arthur J. Lurigio et al., Child Sexual Abuse: Its Causes, Consequences, and
Implications for Probation Practice, 59 FED. PROBATION 69, 69 (1995).
118. See Meister, supra note 4, at 198.
119. See Kearns, supra note 110, at 519.
120. See Meister, supra note 4, at 216-17.
121. See Kennedy, 128 S. Ct. at 2651. At the time Kennedy was decided, Louisiana,
Georgia, Montana, Oklahoma, South Carolina, and Texas had capital child rape statutes in
place. Id. Another consideration that was disregarded by the Court in the Kennedy case was
the fact that currently only five states authorize capital punishment for the crime of treason;
those statutes continue to pass constitutional muster despite the lack of endorsement. See id.
at 2659; United States Department of Justice, Bureau of Justice Statistics, Capital
Punishment, 2006 - Statistical Tables, http://www.ojp.usdoj.gov/bjs/pub/html/cp/2006/
tables/cp06st01.htm (last visited Feb. 1, 2010).
122. Meister, supra note 4, at 217-18.
123. Atkins v. Virginia, 536 U.S. 304, 315 (2002).
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466 NEW ENGLAND LAW REVIEW [Vol. 44:453

harsher punishments and more accountability for sex offenders, especially

those who target children.124 The Court should not decide that a consensus
has been reached when the discussion is just beginning to get underway.125
This is especially true when the implications of the holding are so
drastic.126 The decision that capital punishment for rape of a child violates
the Eighth Amendments proscription against cruel and unusual
punishment cannot be reversed without an amendment to the Constitution;
therefore, [t]he ability of the people to express their preference through
the normal democratic processes, as well as through ballot referenda, is
shut off.127
The Supreme Court in Kennedy stated that capital punishment should
be reserved for the worst of crimes.128 The Missouri Legislature would
undoubtedly agree with the Courts assertion.129 However, the fact that
even the majority opinion acknowledged the permanent psychological,
emotional, and sometimes physical impact on a minor who is a victim of
rape130 leads to the logical conclusion that child rape is such a crime.
Capital punishment is an expression of societys moral outrage at
particularly offensive conduct.131 Every state in the nation now requires
sex offenders to register, and a substantial majority of states have been
moving toward harsher punishments for sex crimes against children.132 This
is indicative of societys increasing condemnation for these particular types
of offenses, putting child sex crimes in the category of the most extreme
of crimes for which the death penalty is suitable.133

124. See supra note 6.

125. See Brief of Amici Curiae, supra note 13, at 4 (By definition, there cannot be a
consensus before there has been a debate.).
126. See Gregg v. Georgia, 428 U.S. 153, 176 (1976).
127. Id.
128. Kennedy v. Louisiana, 128 S. Ct. 2641, 2665 (2008).
129. See Meister, supra note 4, at 211.
130. Kennedy, 128 S. Ct. at 2658.
131. Gregg, 428 U.S. at 183.
132. See Meister, supra note 4, at 214-15.
133. Gregg, 428 U.S. at 187. The Court in Kennedy relied in part on the lack of
executions for rape in its decision that society does not approve of the practice. See
Kennedy, 128 S. Ct. at 2651. That reliance was misplaced however, as the statistics are
deceiving. See United States Department of Justice, Bureau of Justice Statistics, Key Facts
at a Glance, Executions, http://bjs.ojp.usdoj.gov/content/glance/tables/exetab.cfm (last
visited Feb. 1, 2010). In a span of two decades, from 1964 until 1983, only thirty-six
individuals were executed in total. See id. Furthermore, the states that have adopted
legislation that would allow them to impose capital punishment on child rapists have only
begun to do so. See supra text accompanying notes 119-21.
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2010] KENNEDY V. LOUISIANA 467

CONCLUSION
The Supreme Court decision in Kennedy v. Louisiana was made
prematurely and without consideration for the gravity of the crime or the
implications on its young victims. It was made at a time when new
information regarding the severe impact of child rape was just coming to
light. It was made at a time when the crime was becoming increasingly
prevalent. And it was made at a time when society wanted those who take
away the innocence of young children to pay for their crimes. Missouri,
and other states like it, were just beginning to express those desires by
holding offenders to a higher level of accountability. Now they will never
have that opportunity.
It is up to the states, not the judiciary, to determine what punishment
is appropriate. The Court stripped the people of that privilege by deciding
that capital rape statutes are unconstitutional without taking into account
their opinions, as voiced in their respective legislatures.