A Louisiana court found Patrick Kennedy guilty of raping his
eight-year-old stepdaughter. Louisiana law allows the district attorney
to seek the death penalty for defendants found guilty of raping
children under the age of twelve. The prosecutor sought, and the jury
awarded, such a sentence; Kennedy appealed.

The Louisiana
Supreme Court affirmed the imposition of the death sentence, noting
that although the U.S. Supreme Court had struck down capital punishment
for rape of an adult woman in Coker v. Georgia, that ruling did
not apply when the victim was a child. Rather the Louisiana high court
applied a balancing test set out by the Court in Atkins v. Virginia and Roper v. Simmons,
first examining whether there is a national consensus on the punishment
and then considering whether the court would find the punishment
excessive. In this case, the Louisiana Supreme Court felt that the
adoption of similar laws in five other states, coupled with the unique
vulnerability of children, justified imposing the death penalty.

In
seeking certiorari, Kennedy argued that five states do not constitute a
"national consensus" for the purposes of Eighth Amendment analysis,
that Coker v. Georgia should apply to all rapes regardless of
the age of the victim, and that the law was unfair in its application,
singling out black child rapists for death at a significantly higher
rate than whites.