April 15 (Bloomberg) -- It has been 44 years since the last execution in the U.S. for rape or any other crime except murder. Whether that hiatus continues is now up to the Supreme Court.

The justices will hear arguments tomorrow on behalf of Patrick Kennedy, who was sentenced to death in Louisiana for raping his 8-year-old stepdaughter. Kennedy's lawyers contend that his execution would violate the constitutional ban on ``cruel and unusual'' punishment.

Louisiana is one of five states that explicitly permit the execution of people who rape a child. Kennedy, 44, and another Louisiana man convicted of child rape are the only people in the nation on death row for a non-homicide crime.

``There's an overwhelming national consensus that the death penalty is inappropriate for any kind of rape,'' said Jeffrey Fisher, a Stanford Law School professor who will argue Kennedy's case before the justices.

In upholding Kennedy's death sentence, the Louisiana Supreme Court called child rape ``the most heinous of all non-homicide crimes'' and said execution was an appropriate penalty.

The outcome of the case will probably turn on whether the U.S. Supreme Court sees that view as sufficiently widespread. In previous disputes over cruel and unusual punishment, the court has asked whether a ``national consensus'' exists against the death penalty in certain circumstances.

Consensus Found

The justices found that consensus in 2002 when they barred executions of retarded people and again in 2005 when they outlawed the death penalty for killers who were juveniles at the time of the crime. In each case, the high court noted that only about 20 of the 50 states allowed those executions and that a number of jurisdictions had prohibited them in recent years.

With child rape, the death penalty is in place in only five or six states. Louisiana, Oklahoma, South Carolina, Texas and Montana explicitly make the offense a capital crime, while Georgia's law is a matter of dispute. Florida's child-rape death- penalty law was declared unconstitutional by the state's highest court in 1981.

Louisiana officials say those numbers don't resolve the case, pointing to the Supreme Court's 2002 statement that ``it is not so much the number of these states that is significant, but the consistency of the direction of change.'' Prosecutors note that Oklahoma, South Carolina and Texas adopted capital punishment for child rape in the last two years.

`Significant Trend'

``There is currently a significant trend to provide the death penalty as punishment for at least some rapes where the victim is a child,'' Louisiana prosecutor Juliet L. Clark argued in a court filing. Clark is an assistant district attorney in Louisiana's Jefferson Parish, where Kennedy was convicted.

Louisiana and its allies also say more states might enact child-rape death-penalty laws should the high court declare them constitutional. The Supreme Court called such laws into question in 1977, when the justices ruled that the Constitution barred execution for a man who raped a 16-year-old. That case, Coker v. Georgia, didn't address attacks on younger children.

```The worst thing the Supreme Court can do is prematurely announce a national consensus that may or may not exist and take the issue off the table,'' said Christopher Landau, a Washington lawyer who filed a brief backing Louisiana on behalf of Missouri Governor Matt Blunt, a Republican, and members of that state's legislature.

Fisher counters that, even before the 1977 ruling, only three states allowed the death penalty for rape. ``In the span of 31 years we've gone from three to five, which doesn't seem to be a dramatic change,'' he said.

Proposals Rejected

Fisher also says that legislatures in seven states have rejected proposals to make child rape a capital crime and that legislation in number of other states died in committee.

The last U.S. execution for rape was in 1964, when Missouri put Ronald Wolfe to death. The last for any non-homicide crime took place later that same year, when Alabama executed convicted robber James Coburn.

Kennedy was convicted of having intercourse with his stepdaughter at their house in 1998. Afterward, he called 911 and said she been raped by two boys from the neighborhood. Although at first the girl corroborated that story, she testified at the 2003 trial that Kennedy was the perpetrator.

Victims'-rights groups, including the Washington-based National Association of Social Workers, are backing Kennedy's appeal. They said in a court filing that the death penalty would worsen the problem of underreporting, encourage abusers to kill their victims and magnify the trauma that victims experience.

Kennedy, who is black, also has the support of the American Civil Liberties Union, based in New York, and the NAACP Legal Defense and Educational Fund. Those groups argued that, historically, ``the use of the death penalty for rape, far more than any other crime, has been driven by obvious racial discrimination.''

Missouri is one of nine states urging the Supreme Court to back Louisiana. Texas Solicitor General Ted Cruz said in a court filing that Kennedy's crime ``allows him to be classified as among the worst type of criminal offenders.''

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: April 15, 2008 00:01 EDT