WASHINGTON ( CNN ) -- The Supreme Court focused Wednesday on whether `` evolving standards of decency '' in the United States forbid a resumption of capital punishment for any felony but murder . But the justices offered no clear indication of how they will rule in the case of a man who is on Louisiana death row for raping a child . Patrick Kennedy , 43 , is on Louisiana 's death row for the rape of his 8-year-old stepdaughter . `` The trend since 1995 has been more and more states are passing statutes imposing the death penalty in situations that do not result in death '' to the victims , said Chief Justice John Roberts , who appeared to support the state 's position . Justices John Paul Stevens , Ruth Bader Ginsburg and Stephen Breyer expressed concern about applying the death penalty fairly . `` It gives tremendous discretion to the prosecutor to pick and choose who should be executed , '' Breyer said , summarizing the position of death penalty opponents . He wondered whether degrees of child abuse could be capital eligible , including molestation not involving intercourse . Patrick Kennedy , 43 , would be the first convicted rapist in 44 years to be executed in a case in which the victim was not killed . He was sentenced to die in 2003 for sexually assaulting his 8-year-old stepdaughter in her bed . In addition to severe emotional trauma , the attack caused internal injuries and bleeding to the child , requiring extensive surgery , Louisiana prosecutors said . Both in 1976 and a year later , the U.S. Supreme Court banned capital punishment for rape -- and , by implication , any other crime except murder . But 19 years later , Louisiana passed a law allowing execution for the sexual violation of a child under 12 . State lawmakers argued that the earlier high court cases pertained only to `` adult women . '' In oral arguments Wednesday , Kennedy 's lawyer , Jeffrey Fisher , faced spirited questioning from several conservative justices . `` Our jurisprudence just requires the narrowing of the death penalty to be [ for ] particularly heinous crimes , '' Justice Antonin Scalia said . `` And one could say the rape is in and of itself particularly heinous , rape of a child of 12 or under . '' But Fisher said Louisiana 's law `` is particularly at odds with national values '' on whether the death penalty should be expanded . The high court has in recent years banned execution for the mentally retarded , underage killers and those receiving an inadequate defense at trial . Those exceptions drew a good deal of interest from the justices in the one-hour argument over what the trend now is . `` What about treason ? '' asked Justice Anthony Kennedy , a possible swing vote . He noted that the European Convention on Human Rights generally opposes the death penalty , except for treason . `` You can slaughter your fellow citizens , but if you offend the state , you can be put to death . '' And Texas Solicitor General Ted Cruz told the high court that `` few evolving standards are more pronounced than the growing understanding in modern society of the unique and irreparable harm caused by violent child rape . '' Florida , Montana , Oklahoma and South Carolina have long had death-penalty laws for rape but have not applied them in decades . Texas enacted a version in June , but no defendant has been designated death-eligible for child rape in any state but Louisiana . Texas and other states have submitted a `` friend of the court '' brief in the case , supporting Louisiana 's position . Kennedy recently was joined on Louisiana 's death row by another child rapist , Richard Davis . Davis ' legal appeals have barely begun . Arguing for the state , Juliet Clark , Jefferson Parish assistant district attorney , described in some detail the injuries suffered by the victim in an attack Clark called `` savage . '' In their appeal , Kennedy 's lawyers repeatedly raised the issue of skin color and whether that has played a factor in the political and legal debate over expanding capital crimes to include rape . Kennedy and the victim are both African-American . Billy Sothern of the Capital Appeals Project cited Department of Justice statistics that all 14 rapists executed by Louisiana in the past 75 years or so were African-American . Nationwide from 1930 to 1964 , nearly 90 percent of executed rapists were black , he said . But race did not come up in court Wednesday . No one in the United States has been executed for rape since 1964 . Other state and federal crimes theoretically eligible for execution include treason , aggravated kidnapping , drug trafficking , aircraft hijacking and espionage . None of these crimes has been prosecuted as a capital offense in decades , if ever . Supporters of Louisiana 's law say that besides murder , no crime is more deserving of the death penalty , and that the punishment would be used only in the most heinous of circumstances . Death penalty opponents contend , among other things , that it could give attackers a reason to murder their victims . A ruling is expected by late June . E-mail to a friend .
Ginsburg man is on death row for the rape of his 8-year-old stepdaughter . Court banned execution for rape in 1930 to 1964 , but Louisiana law differs . Kennedy , Ginsburg and Kennedy express concern about fair application of law . Justice Breyer might be the swing vote .