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.
"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.