All eyes were on perrenial swing vote, Justice Kennedy.
Justice Anthony M. Kennedy, perhaps once again holding the decisive vote, spent considerable effort looking for ways to allow a death sentence for child rape, but only in narrow, strictly confined circumstances.
This would suggest that the Louisianna statute, which is among the broadest, might be struck down, but that other child rape death penalty statutes might be upheld if limited in some way.
Justice Kennedy asked him to discuss how the Louisiana death law for child rape could be narrowed. It could be narrowed, the Justice said, by imposing death only for a repeat offender (as other states with the death penalty for child rape do), but are there any other ways to narrow it? Fisher said it could be limited to situations that were “particularly heinous…something like torture or extraordinarily serious harm.”
Louisiana’s lawyer, assistant district attorney Juliet L. Clark of Gretna, opened by a graphic description of the severe injuries done to the child rape victim in Patrick Kennedy’s case — an indication that the state’s argument was going to be focused mainly on how deserving Kennedy was of capital punishment.
Justice Stephen G. Breyer soon brought up a “slippery slope” point, suggesting that, if the Court were to uphold a death penalty for a crime in which the victim was not killed, “I can think of horrible things all over the place” that the states would begin to make capital crimes. Legislatures all over the country, Breyer said, would take up the seeming invitation. The Justice also discussed a variety of molesting instances which, if committed against a child, would qualify the perpetrator for punishment, as a rapist, with death.
Somewhat surprisingly, Justice Scalia suggested to Clark that, while he did not agree with the Court’s past precedents on the need to narrow those who would be eligible for capital punishment, that requirement was there as a limiting factor on jury discretion. With some help from the Chief Justice, Clark said that Louisiana’s death for child rape law did provide for sufficient narrowing, because it limited it to children victims of a young age.
The full transcript is here.