Jan. 4 (Bloomberg) -- The U.S. Supreme Court agreed to decide whether a Louisiana man can be executed for raping his 8- year-old stepdaughter in a case that tests the constitutionality of the death penalty for crimes other than murder.

The justices today said they will hear an appeal by Patrick Kennedy, who contends his execution would violate the constitutional ban on ``cruel and unusual punishment.'' The Louisiana Supreme Court in May said Kennedy's death sentence could be carried out.

Kennedy, 44, would be the first person executed in the U.S. for rape since 1964. Of the 36 states that have the death penalty, Louisiana is one of five that explicitly permit execution of people convicted of raping a child.

The lower court decision ``flouts the overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape,'' Kennedy's appeal argued.

The Supreme Court in 1977 said the Constitution barred execution for the rape of a 16-year-old. Writing for four members of the court, Justice Byron White said death was ``grossly disproportionate and excessive punishment'' for that crime.

The Louisiana Supreme Court said that reasoning wasn't binding in the case of child rape. ``Children are a class of people that need special protection,'' the majority said. The court called child rape ``the most heinous of all non-homicide crimes.''

Second Case

Kennedy has been the nation's only death-row inmate who wasn't convicted of murder. A Louisiana jury last month recommended death for a second man, convicted of repeatedly raping a 5-year-old.

A ruling lifting Kennedy's death sentence would mark the third time in six years the court has shielded a category of defendants from execution. The justices barred executions of retarded people in 2002, then took the same step in 2005 for killers who were under age 18 at the time of the crime.

In each of the earlier two cases, the majority said a ``national consensus'' had emerged against those executions, noting that a number of states had barred them in recent years.

With child rape, the trend has been in the opposite direction. Three states -- Oklahoma, South Carolina and Texas -- have adopted capital punishment for child rape in the last two years, and Montana did so in 1997.

Treason and Espionage

The Louisiana Supreme Court also pointed to state and federal laws that permit the death penalty for such crimes as treason, espionage, air piracy and drug trafficking. Louisiana prosecutors say 15 jurisdictions, including the federal government, authorize capital punishment for offenses other than murder.

``The legislative enactments of these additional jurisdictions demonstrate that there is not a national consensus that the death penalty is disproportionate for non-homicide crimes,'' prosecutors argued.

Kennedy's appeal contends that execution is especially inappropriate in the child rape context because of the high risk of wrongful conviction. His stepdaughter originally said she had been raped by two teenaged boys from the neighborhood. Prosecutors eventually concluded that Kennedy had been the perpetrator and had told her to lie.

Kennedy, who is black, also argues that historically the death penalty for rape is a punishment that has been imposed almost exclusively on blacks.

Racism Alleged

``This court should pause before condoning a practice so heavily tinged with racism,'' he argued.

His appeal has the support of the National Association of Social Workers and organizations representing sexual assault crisis centers. They argued in court papers that the death penalty would worsen the problem of underreporting, encourage abusers to kill their victims and magnify the trauma victims experience.

The outcome of the case may depend on Justice Anthony Kennedy, often the court's swing vote on social issues. He joined the majority in the 2002 case about retarded killers and wrote the court's 2005 opinion shielding juveniles from execution.

Conservatives criticized his 2005 opinion for pointing to foreign practices and laws. He wrote that ``the United States now stands alone in a world that has turned its face against the juvenile death penalty.''

The court will hear arguments in the child rape case and probably rule by the end of June. The case is Kennedy v. Louisiana, 07-343.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: January 4, 2008 19:02 EST