Kennedy v. Louisiana - Oral Argument - April 16, 2008

Kennedy v. Louisiana

Media for Kennedy v. Louisiana

Audio Transcription for Opinion Announcement - June 25, 2008 in Kennedy v. Louisiana

Audio Transcription for Oral Argument - April 16, 2008 in Kennedy v. Louisiana

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 07-343, Kennedy versus Louisiana.

Mr. Fisher.

Jeffrey L. Fisher:

Thank you.

Mr. Chief Justice, and may it please the Court: This country has not executed anyone for a rape of any kind in over 43 years.

Louisiana's attempt to reintroduce this practice into American society violates the Eighth Amendment for two distinct reasons.

First, a long-standing national consensus exists against it.

Indeed, Louisiana's capital rape law is particularly at odds with national values because Louisiana is the only State in which Petitioner, as a non-recidivist, could be subject to the death penalty.

Second, Louisiana's law violates this Court's Eighth Amendment-narrowing jurisprudence.

It gives juries unfettered discretion to choose who, among the vast class of offenders convicted of child rape, may be subject to the death penalty.

Now, this is in stark contrast to the handful of other States that have capital rape laws that they've recently enacted.

Texas, for example, requires an offender to have served a prior sentence for the same crime of 25 years before--

Antonin Scalia:

Our jurisprudence just requires the narrowing of the death penalty to be... to particularly heinous crimes.

And one could say that rape is in and of itself particularly heinous, rape of a child of 12 or under.

Jeffrey L. Fisher:

--It's no doubt a serious crime, Justice Scalia, but I believe this Court's narrowing jurisprudence requires narrowing beyond a particularly heinous crime.

Of course, in Godfrey and Gregg against Georgia, this Court said that deliberate murder is not on its own enough to subject an offender to the death penalty.

So there's two problems that arise with Louisiana's statute in the context of this Court's narrowing jurisprudence.

Antonin Scalia:

How would you describe a particularly heinous rape of a child under 12?

What would make it particularly heinous?

Jeffrey L. Fisher:

Well, there could be several aggravating facts that would make a rape of a child, or indeed of any person, a particularly egregious crime, but in Coker against Georgia, this Court did not simply hold that the Eighth Amendment prohibited imposing the death penalty for the crime of rape; it held that this Court... that the Eighth Amendment prohibited imposing the death penalty for rape with aggravating circumstances.

Remember in Coker against Georgia, there were two aggravating circumstances in that case.

First, the offender was a recidivist.

He had been convicted of rape three times, was a convicted murder who had escaped from prison.

Second, he committed the rape in the course of committing other very serious felonies, including kidnapping and robbery.

And so, at the very minimum, the State stands here with the burden today to say that an average child rape is worse than the crime in Coker, that this Court held was not sufficiently superior--

Antonin Scalia:

Suppose... suppose the State says that all recidivist rapists of children under 12 will suffer the death penalty.

Does it have to narrow that class further?

I mean, the need for narrowing depends upon how narrow the class is described in the first place.


Jeffrey L. Fisher:


Antonin Scalia:

I mean, if the law says you have to be a recidivist, you have to have all the other factors that you just mentioned, if the law said that, would you come in and say,