FARAI CHIDEYA, host:

And now, we're going to turn to the case of a Louisiana man who was sentenced to death but not for murder. Patrick Kennedy is on death row at Louisiana's Angola Prison, awaiting capital punishment for brutally raping his eight-year-old stepdaughter. The last person executed for rape was in 1964, and Kennedy's case could change how the death penalty is applied.

But does executing someone for child rape violate the Eighth Amendment that bars cruel and unusual punishment? For more, we have Ted Cruz, the former solicitor general of Texas, who also participated in Patrick Kennedy's Supreme Court appeal, and Judy Benitez, the executive director of the Louisiana Foundation Against Sexual Assault. Thanks for coming on.

Ms. JUDY BENITEZ (Executive Director, Louisiana Foundation Against Sexual Assault): Thank you.

Mr. TED CRUZ (Former Solicitor General, Texas): Good to be with you, Farai.

CHIDEYA: So, we were just speaking with Richard Dieter from the Death Penalty Information Center, and we talked about what crimes warrant capital punishment. So I'm going to ask each of you, Ted first. What do you think is fair game for the death penalty, the ultimate punishment, the irreversible punishment?

Mr. CRUZ: Well, that's precisely the question that's before the Supreme Court in the Kennedy case, and in particular, the question is whether the constitution permits elected state legislatures to determine that the most egregious child rapist should be eligible for the most serious punishment. Seven elected legislatures in different states have determined that the answer to that is yes, and the question before the court is whether the constitution permits those legislatures to make that determination.

CHIDEYA: How do you think this is going to play out?

Mr. CRUZ: Well, this is a case that, I think, the court is wrestling. It is a case that the court has never considered before. Some three decades ago, the court concluded that capital punishment was unconstitutional, with respect to the rape of an adult woman. But that opinion repeatedly and explicitly limited its reach to the rape of an adult woman.

And it left open the question before the court today in Kennedy, which is whether the rape of a young child, in the Kennedy case, where it was an eight-year-old girl who was brutally and violently raped, whether that is different and whether that crime is so serious, is so grave, that is permissible for state legislatures to determine that the jury should have the option to provide the most serious punishment for the most egregious offenders.

CHIDEYA: Judy, it sounds, at least on the surface, like it might be a good idea to hold someone to the strictest accountability for a crime like this, but you seem to have some reservations about the death penalty as a punishment. What would those be?

Ms. BENITEZ: Well, our main concern is not the impact of the death penalty on the offender, but the impact on the victim, the potential impact, because of the fact that most child rapists are someone that the child knows and cares about. It's a family member, a caretaker of some sort, someone that has access to that child, and has a relationship with the child, as was the case in the Kennedy case.

And our concern comes from the fact that we know that child sexual abuse is already very underreported. We know that from adults who come forward and say, you know, this had happened to me, and I never told anyone. There's a lot of research around this. And our concern is that if the possibility of the death penalty is out there, which the offenders will make sure that their child victims know, that that will increase underreporting.

Because you have to have not just the child be willing to come forward and possibly expose this person that they have ambivalent feelings toward - they want the abuse to stop, but they care about the person. They have to be willing to expose them to the possibility of the death penalty, and whatever adult, to whom they disclose, also has to be willing to take that chance.

CHIDEYA: Do you think that these crimes, crimes like child assault, or crimes of opportunity, or crimes that require a lot of premeditation - not that those are exclusive, but what you're talking is really people changing their patterns of criminal behavior, because they know the law.

Ms. BENITEZ: Well, I think that, absolutely, they are things that are pre - crimes that premeditated. There's a grooming process that goes on most of the time, not all the time, but most of the time with child sexual abuse. There is a grooming process in which the offender is sort of testing the waters to see if this child is - you know, how they're going to react if he attempts to perpetrate an assault. He may, you know, start out with something that's not quite as severe, and then move on to a rape, or a molestation of some sort. So yeah, there is a process that goes on, absolutely.

CHIDEYA: Ted, when you think about how the death penalty should be applied, there's obviously a lot of different people involved in how law evolves, there's juries, there's judges, there's prosecutors. But where do you think we should be heading? This is, obviously, extremely - it's just incontrovertible. Once you kill someone, they're dead. So, what's the standard we should follow?

Mr. CRUZ: Well, you know, I think questions like that are ultimately policy questions. I mean, the concerns that Judy is raising, I think, are all fair and serious concerns that should be considered, but the question before the Supreme Court is, what is the proper forum to evaluate these policy concerns? Is it a federal court? Is it unelected, lifetime-appointed federal judges? Or is it the elected legislatures of the 50 states and the United States Congress?

And the position of the state of Texas - I argued on behalf of Texas and a total of nine states that were supporting the state of Louisiana, and the position of the amici states, was that it is elected legislatures that are best situated to hear all the evidence, to listen to the arguments and the advocates, to listen to the concerns Judy's raising, and also to consider the arguments on the other side.

A number of legislatures have looked to the data, for example. Recent economic studies indicate, for example, the deterrent effect of capital punishment, that each individual who is executed for murder, the economic data suggests, prevents up to 18 future murders. That deterrent effect is potentially quite significant, and it was the position of the amici states that federal courts are not well situated to evaluate those competing policy claims. Rather, it's elected legislatures that are ultimately accountable to the people.

CHIDEYA: When you say amici states, those are states that signed on to, essentially, the argument of the court?

Mr. CRUZ: That's exactly right. The particular case concerned this one individual in Louisiana, Patrick Kennedy, who is a 300-pound man, who violently raped an eight-year-old girl, and did so, so savagely that it required reconstructive surgery to repair the damage he did to this little girl.

Nine other states supported the state of Louisiana, because those states believed that the question of what the permissible punishment should be for the most egregious child rapist is a question that should be decided by elected legislatures. And I would note that, if the question is left to legislatures, the answer, I expect, would be different in different states. Some state legislatures would assess it, and conclude it is an appropriate punishment, and others would conclude it's not an appropriate punishment.

CHIDEYA: Judy, just quickly, you know, what do you think - who do you think should weigh in on this? Obviously, you're speaking in part because of the victims' perspective. Who should speak up in terms of having their voices heard as these decisions are being made?

Ms. BENITEZ: Well, I agree that it is probably a better process in terms of public policy for advocates for victims and for survivors who do feel comfortable coming forward to speak out when the issue is being considered by state legislatures. And I should point out that there are five state legislatures this term only who have looked at this and rejected the idea, including three southern states.

Missouri, Colorado, Alabama, Mississippi and Tennessee have all rejected the idea. But that did not happen in this case, and so I would say, you know, the concerns of victims need to be considered at whatever point we are looking at in the criminal justice process, particularly in sexual assault cases and particularly in child cases, because children and sexual assault victims do not like to come forward, and talk about what has happened to them. It's very traumatic.

CHIDEYA: All right, Judy and Ted, thank you.

Mr. CRUZ: Thank you very much. Good to be with you.

Ms. BENITEZ: Thank you.

CHIDEYA: Ted Cruz is the former solicitor general of Texas, and Judy Benitez is the executive director of the Louisiana Foundation Against Sexual Assault, and she spoke to us from WRFK in Baton Rouge, Louisiana.

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