POLEMICHE SU ESECUZIONE PER REATI DIVERSI DAL OMICIDIO

 WASHINGTON, - La condanna a morte per uno stupro nella Lousiana ha riaperto il dibattito negli Stati Uniti sulla pena capitale.

E' la prima volta da quando la Corte Suprema riammise la pena di morte nel 1976 che il patibolo viene invocata per un delitto che non sia un omicidio. L'ultima esecuzione per uno stupro risale al 1964.

Il caso di Patrick Kennedy, lo stupratore della Louisiana, e' destinato a essere passato al setaccio dai giudici dei tribunali superiori dello stato, fino ad arrivare alla Corte suprema degli Stati Uniti, prima che la pena venga eseguita.

La legge della Louisiana che prevede la pena di morte per lo stupro di un minorenne sotto i 12 anni fu adottata, tra molte polemiche, nel 1995. Molti stati d'America hanno leggi che prevedono la massima punizione per reati non mortali, tra cui tradimento, spionaggio, sequestro di persona, dirottamento e narcotraffico. La California permette alle giurie di invocare la pena di morte per sabotaggio ai treni e spergiuro in casi in cui la testimonianza falsa era stata decisiva nella esecuzione dell'imputato.

Nel 1977 la Corte Suprema decreto' che la condanna a morte non puo' essere applicata nei casi di stupro a danni di un adulto, ritenendo la pena capitale sproporzionata alla gravita' del delitto e quindi vietata dall'ottavo emendamento della costituzione, che esclude punizioni eccessivamente ''crudeli e inusuali''.

Il problema dello stupro di minori e' complicato da vari fattori oltre a quelli morali. Secondo gli oppositori della legge della Louisiana, la minaccia delle pena di morte porterebbe i violentatori a uccidere piu' spesso la vittima: non avrebbero nulla da perdere se catturati.

Inoltre, la maggior parte di stupri di un minorenne sono commessi da un parente della vittima. Difficilmente una bambina denuncerebbe il padre o lo zio, se sapesse che questi affronterebbero la morte come punizione.

La bimba stuprata da Kennedy e' un suo parente. Subi' lesioni talmente grave da richiedere un intervento chirurgico. La ragazza, oggi tredicenne, ha testimoniato al processo. Anche la figlioccia dell'imputato, oggi ventenne, ha testimoniato, accusando Kennedy di averla violentato due volte quando aveva 8-9 anni.

Nel 1997 la Corte suprema rifiuto' di esaminare la costituzionalita' della legge della Louisana. Ma tre giudici generalmente contrari alla pena di morte - John Paul Stevens, Ruth Bader Ginsburg e Stephen Bryer - rilasciarono un'insolta dichiarazione, affermando che la decisione di non esaminare il caso ''non costituisce un giudizio di merito''. Questa sottolineatura fu considerata come un'indicazione che i tre giudici nutrivano forti riserve sulla legge in questione. 

Tra il 1930 e il 1964, 455 uomini furono messi a morte per uno strupro, quasi tutti negli stati del profondo sud: 405 furono neri e quasi tutti furono accusati di aver violentato una donna bianca.

 Louisiana Sentence Renews Debate on the Death Penalty

 The sentencing to death of a Louisiana man this week for raping an 8-year-old girl has reopened a debate about whether crimes that do not involve killings may ever be punished by death.

There has not been an execution for rape in the United States since 1964, and no one has been executed for any crime that did not involve a killing since the Supreme Court reinstated the death penalty in 1976.

The Louisiana law under which the man, Patrick O. Kennedy, was convicted allows the death penalty for the rape of a child under 12. It was enacted in 1995.

Graham da Ponte, one of Mr. Kennedy's lawyers, said the punishment was disproportionate to the crime.

A number of states and the federal government have laws on the books that allow the death penalty for crimes not involving killing. Among them are treason, espionage, kidnapping, aircraft hijacking and large-scale drug trafficking. California allows executions for train wrecking and for perjury that leads to another's execution.

Florida and Montana have broad capital rape laws on the books that do not distinguish by the victim's age, though the Florida Supreme Court has ruled that the Florida law is unconstitutional.

In 1977, the Supreme Court ruled that the death penalty may not be imposed for the rape of an adult woman. The penalty was, the court ruled, disproportionate to the crime and therefore forbidden as cruel and unusual punishment under the Eighth Amendment.

"Life is over for the victim of the murderer," Justice Byron White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."

The defendant in that case, Ehrlich Coker, escaped from a state prison in Georgia where he was serving time for a murder and two rapes, one of them of a 16-year-old. He promptly raped another 16-year-old in front of her husband. He was sentenced to death for that last crime.

Dissenting from the majority's decision to overturn his death sentence, Chief Justice Warren Burger wrote that the ruling "prevents the state from imposing any effective punishment upon Coker for his latest rape."

Legal experts differed on whether the reasoning of that case would also forbid executions in cases involving the rape of a child.

When Louisiana enacted its law in 1995, a few legislators argued against it based on concerns about its constitutionality. Others wondered whether it would encourage child rapists to kill their victims on the theory that they would have nothing to lose.

"I don't know how a family member winding up with the death penalty makes a child more likely to report a rape," Ms. da Ponte said, referring to the fact that many rapes of children are committed by relatives.

In 1996, the Louisiana Supreme Court, in a 5-to-2 decision, ruled that the law was constitutional.

3 justices of the United States Supreme Court - John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer - issued an unusual statement when that court declined to hear the case in 1997. They noted that the decision not to hear the case "does not in any way constitute a ruling on the merits." That is a legal truism that does not ordinarily need saying, and legal experts said the statement suggests that at least those 3 justices had reservations about the Louisiana law.

The case ended in a plea bargain for a life sentence. Louisiana prosecutors have pursued other cases under the child rape law, but Mr. Kennedy's is the 1st case in which the jury returned a death sentence.

"I know of 8 or 9 indictments under the statute," said Nick Trenticosta of the Center for Equal Justice in New Orleans, a group that represents people on death row in appeals. "Each time the defendant pleaded guilty and received a life sentence. In most of them, the victim was the defendant's child and could not stomach putting her father to death."

Legal experts say the United States Supreme Court is likely to hear Mr. Kennedy's case if the Louisiana courts uphold his death sentence.

Before the Supreme Court suspended the death penalty in 1972, 16 states and the federal government authorized it for rape.

Between 1930 and 1964, 455 men were executed for rape in America, almost all in the South; 405 of them were black, and almost all were charged with raping white women.

Mr. Kennedy was accused of raping an 8-year-old relative, injuring her so badly that she required surgery. The girl, who is now 13, testified against him. His goddaughter also testified, at the penalty phase of the trial. Now in her 20's, the woman said that Mr. Kennedy had raped her on 3 occasions when she was 8 or 9.

Assistant District Attorney Donnie Rowan told the jury in Gretna, La., that these acts warranted execution.

"He made the choice to take the innocence of those 2 girls and throw it into the dirt," Mr. Rowan said.

Times-Picayune

LOUISIANA: Penalty for rape may not stand----Louisiana law may be unconstitutional

 She could have been anyone's 8-year-old daughter.

The image of the Harvey youngster sorting Girl Scout cookies in the family garage when two men grabbed her and dragged her to a vacant lot where she was raped was recounted repeatedly by the girl and her stepfather.

Then the story fell apart. The stepfather was charged with the crime and then convicted this week by a Jefferson Parish jury that also decided he should pay the ultimate price for the crime: his life.

The 21�2-week trial reached a historic climax Tuesday night, when the 38-year-old Harvey man became the 1st person in the nation in more than 25 years to be sentenced to death for rape.

But whether the sentence will stand is in doubt. Some legal experts said the U.S. Supreme Court will never allow an execution for a crime other than murder after the nation's high court outlawed the death penalty for rape of adults in 1977.

Jefferson prosecutors used a 1995 Louisiana statute, the only such law in the nation, that allows the death penalty for aggravated rape in cases where the victim is younger than 12 years old.

"That's an issue that's never been argued before the Supreme Court," Jefferson Parish District Attorney Paul Connick Jr. said.

"We stand alone in that regard," attorney Nick Trenticosta, director of the Center for Equal Justice, a New Orleans group that represents inmates on death row, said of the Louisiana law.

Connick said that he believes the brutality of the attack, the man's effort to cover his tracks and the testimony of a woman subjected to similar abuse as a child were key factors in the jury's decision.

The man's name is being withheld by The Times-Picayune to protect the victims.

Society is understandably outraged at sexual attacks upon children, because of their innocence and inability to defend themselves, Connick said.

"If I had been a member of that jury, I could easily have voted for the death penalty," he said.

No executions since '64

Executions for rape were common in the early 20th century, but no one has been executed for a sex crime in the United States since May 8, 1964, when Ronald Wolfe was put to death in Missouri, Trenticosta said.

In 1977, the U.S. Supreme Court ruled in a Georgia case that the death penalty was unconstitutional in rape cases because the sentence was disproportionate to the crime.

The Louisiana Legislature debated the merits of a 1995 measure providing the death penalty in cases where the victims were young children. The Senate and House overwhelmingly passed the bill, although some legislators questioned its constitutionality and others said it could encourage child rapists to kill their victims because they would have nothing to lose.

In 1996, child rape cases in New Orleans and Monroe initiated a challenge of the law, which had been ruled unconstitutional in lower courts. But by a 5-2 decision, the state Supreme Court upheld the statute. Voting in favor were Justices Joe Bleich, Walter Marcus Jr., Harry Lemmon, Jeffrey Victory and Catherine Kimball. Dissenting were Chief Justice Pascal Calogero Jr. and Jack Watson.

Since its inception, several capital rape cases have been tried in Louisiana, but the Jefferson case is the 1st one resulting in a death penalty, Trenticosta said.

Although the issue of child victims is new to federal courts, Trenticosta said he "is certain" the U.S. high court will reject the Louisiana law.

Paul Martinek, a Boston attorney and editor of Lawyer's Weekly USA, said previous U.S. Supreme Court rulings "strongly suggest the death penalty is applicable only in cases in which a life is taken."

Approving the Louisiana child rape law "would give the green light to other states to apply the death penalty to different crimes, and I believe the justices will be reluctant to expand" such efforts, he said.

Martinek said that if he were assigned to argue the prosecution's case, he would contend that the nature of crimes against children, particularly sex crimes, are of such a brutal nature that they are, in effect, the murder of childhood innocence.

The biggest factor in a possible successful argument for the state has been a movement toward tougher laws to protect children from criminals, he said.

The March 2, 1998, incident galvanized authorities and neighbors in the hunt for the two men. Sheriff Harry Lee offered a $5,000 reward and assigned 30 deputies to the case. The girl underwent surgery at Children's Hospital, and a trial witness said her injuries were some of the most traumatic he'd ever seen.

The stepfather's story quickly fell apart after he failed 2 lie detector tests and a co-worker reported to authorities that the man had called to ask how to get blood out of a white carpet. A week after the rape, the stepfather was arrested.

A long road ahead

Making the sentence stand will be a long and difficult process, with numerous legal hurdles, Connick acknowledged.

Any death penalty case takes years to resolve, with lengthy appeals 1st going through state courts and then to federal courts, Connick said. Most condemned inmates spend 10 or more years on death row before their sentences are carried out.

Many of the arguments, attorneys say, will center around the 8th Amendment, which forbids cruel and unusual punishment. The 1977 Supreme Court ruling in the Georgia case addressed the cruelty aspect, Trenticosta said, and the fact that only Louisiana allows the death penalty for child rape will address the "unusual" prohibition.

The fact that Louisiana's law is unique, "it goes against the prevailing standard of decency and that offends the 8th Amendment," he said.

Neal Walker, a New Orleans attorney who will handle the Harvey man's appeals and the director of the Capital Appeals Project, said that when the Louisiana Supreme Court upheld the state law, the majority decision addressed the unusual aspect of the statute, but mistakenly thought Louisiana would be in the vanguard of passing tougher child rape laws nationwide.

"That was plainly wrong, because the trend has been to more restrictive laws on the death penalty," Walker said.