[Congressional Record Volume 155, Number 1 (Tuesday, January 6, 2009)]
[Senate]
[Page S148]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S148]]
   SENATE RESOLUTION 4--EXPRESSING THE SENSE OF THE SENATE THAT THE 
   SUPREME COURT OF THE UNITED STATES ERRONEOUSLY DECIDED KENNEDY V. 
  LOUISIANA, NO. 07-343 (2008), AND THAT THE EIGHTH AMENDMENT TO THE 
 CONSTITUTION OF THE UNITED STATES ALLOWS THE IMPOSITION OF THE DEATH 
                    PENALTY FOR THE RAPE OF A CHILD

  Mr. VITTER submitted the following resolution; which was referred to 
the Committee on the Judiciary:

                               S. Res. 4

       Whereas 1 out of 3 sexual assault victims is under 12 years 
     of age;
       Whereas raping a child is a particularly depraved, 
     perverted, and heinous act;
       Whereas child rape is among the most morally reprehensible 
     crimes;
       Whereas child rape is a gross defilement of innocence that 
     should be severely punished;
       Whereas a raped child suffers immeasurable physical, 
     psychological, and emotional harm from which the child may 
     never recover;
       Whereas the Federal Government and State governments have a 
     right and a duty to combat, prevent, and punish child rape;
       Whereas the popularly elected representatives of Louisiana 
     modified the rape laws of the State in 1995, making the 
     aggravated rape of a child 11 years of age or younger 
     punishable by death, life imprisonment without parole, 
     probation, or suspension of sentence, as determined by a 
     jury;
       Whereas on March 2, 1998, Patrick Kennedy, a resident of 
     Louisiana, brutally raped his 8-year-old stepdaughter;
       Whereas the injuries inflicted on the child victim by her 
     stepfather were described by an expert in pediatric forensic 
     medicine as ``the most severe he had seen from a sexual 
     assault'';
       Whereas the cataclysmic injuries to her 8-year-old body 
     required emergency surgery;
       Whereas a jury of 12 Louisiana citizens convicted Patrick 
     Kennedy of this depraved crime, and unanimously sentenced him 
     to death;
       Whereas the Supreme Court of Louisiana upheld this 
     sentence, holding that the death penalty was not an excessive 
     punishment for Kennedy's crime;
       Whereas the Supreme Court of Louisiana relied on precedent 
     interpreting the eighth amendment to the Constitution of the 
     United States;
       Whereas on June 25, 2008, the Supreme Court of the United 
     States held in Kennedy v. Louisiana, No. 07-343 (2008), that 
     executing Patrick Kennedy for the rape of his stepdaughter 
     would be ``cruel and unusual punishment'';
       Whereas the Supreme Court, in the 5-4 decision, overturned 
     the judgment of Louisiana's elected officials, the citizens 
     who sat on the jury, and the Louisiana Supreme Court;
       Whereas this decision marked the first time that the 
     Supreme Court held that the death penalty for child rape was 
     unconstitutional;
       Whereas, as Justice Alito observed in his dissent, the 
     opinion of the majority was so broad that it precludes the 
     Federal Government and State governments from authorizing the 
     death penalty for child rape ``no matter how young the child, 
     no matter how many times the child is raped, no matter how 
     many children the perpetrator rapes, no matter how sadistic 
     the crime, no matter how much physical or psychological 
     trauma is inflicted, and no matter how heinous the 
     perpetrator's prior criminal record may be'';
       Whereas, in the United States, the people, not the 
     Government, are sovereign;
       Whereas the Constitution of the United States is supreme 
     and deserving of the people's allegiance;
       Whereas the framers of the eighth amendment did not intend 
     to prohibit the death penalty for child rape;
       Whereas the imposition of the death penalty for child rape 
     has never been within the plain and ordinary meaning of 
     ``cruel and unusual punishment'', neither now nor at the 
     adoption of the eighth amendment;
       Whereas instead of construing the eighth amendment's 
     prohibition of ``cruel and unusual punishment'' according to 
     its original meaning or its plain and ordinary meaning, the 
     Court followed a two-step approach of first attempting to 
     discern a national consensus regarding the appropriateness of 
     the death penalty for child rape and then applying the 
     Justices' own independent judgment in light of their 
     interpretation of a national consensus and evolving standards 
     of decency;
       Whereas, to the extent that a national consensus is 
     relevant to the meaning of the eighth amendment, there is 
     national consensus in favor of the death penalty for child 
     rape, as evidenced by the adoption of that penalty by the 
     elected branches of the Federal Government only 2 years ago, 
     and by the swift denunciations of the Kennedy v. Louisiana 
     decision by the presumptive nominees for President of both 
     major political parties;
       Whereas the evolving standards of decency is an arbitrary 
     construct without foundation in the Constitution of the 
     United States and should have no bearing on Justices who are 
     bound to interpret the laws of the United States;
       Whereas the standards of decency in the United States have 
     evolved toward approval of the death penalty for child rape, 
     as evidenced by 6 States and the Federal Government adopting 
     that penalty in the past 13 years;
       Whereas the Supreme Court rendered its opinion without 
     knowledge of a Federal law authorizing the death penalty for 
     child rapists;
       Whereas the Federal law authorizing the death penalty for 
     child rapists was passed by Congress and signed by the 
     President 2 years before the Supreme Court released the 
     decision; and
       Whereas the Court presumably would have deferred to the 
     elected branches of government in determining a national 
     consensus regarding evolving standards of decency had it been 
     aware of the Federal law authorizing the death penalty for 
     child rapists at the time that it made the decision: Now, 
     therefore, be it
       Resolved, That it is the sense of the Senate that--
       (1) the depraved conduct of the worst child rapists merits 
     the death penalty;
       (2) standards of decency allow, and sometimes compel, the 
     death penalty for child rape;
       (3) the eighth amendment to the Constitution of the United 
     States allows the death penalty for the rape of a child where 
     the crime did not result, and was not intended to result, in 
     death of the victim;
       (4) the Louisiana statute making child rape punishable by 
     death is constitutional;
       (5) the Supreme Court of the United States should grant any 
     petition for rehearing of Kennedy v. Louisiana, No. 07-343 
     (2008), because the case was decided under a mistaken view of 
     Federal law;
       (6) the portions of the Kennedy v. Louisiana decision 
     regarding the national consensus or evolving standards of 
     decency with respect to the imposition of the death penalty 
     for child rape should not be viewed by Federal or State 
     courts as binding precedent, because the Supreme Court was 
     operating under a mistaken view of Federal law; and
       (7) the Supreme Court should reverse its decision in 
     Kennedy v. Louisiana, on rehearing or in a future case, 
     because the decision was supported by neither commonly held 
     beliefs about ``cruel and unusual punishment'', nor by the 
     text, structure, or history of the Constitution of the United 
     States.

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