Capital Punishment: Constitutionality for Non-Homicide Crimes Such as Child Rape

Capital Punishment: Constitutionality for
Non-Homicide Crimes Such as Child Rape
Alison M. Smith
Legislative Attorney
American Law Division
Summary
In Kennedy v. Louisiana, the United States Supreme Court, by a vote of 5 to 4,^th
held that the 8 Amendment prohibits the death penalty for the rape of a child where the
crime did not result and was not intended to result in the victim’s death. The Court
established a bright-line rule regarding the constitutionality of imposing capital
punishment for a non-homicide crime against an individual. After reviewing the history
of the death penalty for other non-homicide crimes against individuals, state legislative
enactments, and jury practices since 1964, the Court concluded that there was a national
consensus against the imposition of capital punishment for the crime of child rape.
Based on precedent as well as other subjective factors, the Court concluded that the
death penalty is a disproportionate punishment for such a crime. The immediate effect
of this decision is to invalidate statutes authorizing the death penalty for non-homicide
cases of child rape.
Legal Background. The 8^th Amendment, applicable to the federal government
and to the states through the 14^th Amendment, bars the use of “excessive sanctions” in the
criminal justice system. It states specifically that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”¹ Underlying
this provision is the fundamental “precept of justice that punishment for [a] crime should
be graduated and proportioned to [the] offense.”² The U.S. Supreme Court has stated that³
only “the worst of the worst” may be executed for their crimes. However, the Court has
provided minimal guidance for the “worst of the worst” category of offenders and/or

¹ U.S. Const. Amend. VIII.
² Weems v. United States, 217 U.S. 349, 367 (1910) (holding that the 8th Amendment’s Cruel
and Unusual Clause requires that punishment for a crime be proportional to its severity).
³ See, Roper v. Simmons, 543 U.S. 551, 568 (2005) (stating that “capital punishment must be
limited to those offenders who commit ‘a narrow category of the most serious crime’ and whose
extreme culpability makes them ‘the most deserving of execution’”) (quoting Atkins v. Virginia,

536 U.S. 304, 319 (2002)).

offenses. The Court has held that the death penalty is a disproportionate, and therefore
unconstitutional, punishment for some non-homicide crimes.⁴ In more recent cases, the
Court reinforced and refined its proportionality analysis utilizing an “evolving standards
of decency” standard. Using this standard, the Court found that the imposition of the death
penalty on juvenile offenders and the mentally retarded is unconstitutional.⁵
In Coker v. Georgia,⁶ the Court held that the state may not impose a death sentence
upon a rapist who does not take a human life.⁷ The Court announced that the standard
under the 8th Amendment was that punishments are barred when they are “excessive” in
relation to the crime committed. A “punishment is ‘excessive’ and unconstitutional if it:
(1) makes no measurable contribution to acceptable goals of punishment and hence is
nothing more than the purposeless and needless imposition of pain and suffering; or (2)
is grossly out of proportion to the severity of the crime.”⁸ According to the Court, to
ensure that applying these standards not be or appear to be the subjective conclusion of
individual Justices, attention must be given to objective factors, predominantly “to the
public attitudes concerning a particular sentence — history and precedent, legislative
attitudes, and the response of juries reflected in their sentencing decisions....”⁹ While the
Court thought that the death penalty for rape passed the first test, it felt it failed the
second. Georgia was the sole state providing for death for the rape of an adult woman, and
juries in at least nine out of 10 cases refused to impose death for rape. Aside from this
view of public perception, the Court independently concluded that death is an excessive
penalty for an offender who rapes but does not kill, stating that rape cannot compare with
murder “in terms of moral depravity and of injury to the person and the public.”¹⁰
Although the Court in Coker did not explicitly hold the death penalty unconstitutional for
all crimes not involving homicide,¹¹ many have read the decision as such, since the Court
based its holding largely on the distinction between crimes that cause death and crimes

⁴ See, e.g., Coker v. Georgia, 433 U.S. 584 (1977).
⁵ Roper v. Simmons, 543 U.S. 551, 568 (2005); Atkins v. Virginia, 536 U.S. 304, 319 (2002)
⁶ 433 U.S. 584 (1977).
⁷ Although the Court stated the issue in the context of the rape of an adult woman, the opinion
at no point sought to distinguish between adults and children. Justice Powell’s concurrence
expressed the view that death is ordinarily disproportionate for the rape of an adult woman, but
that some rapes might be so brutal or heinous as to justify it. Id. at 601.
⁸ Id. at 592.
⁹ Id.
¹⁰ Id. at 598.
¹¹ See Coker, 433 U.S. at 600 (plurality opinion) (stating that “[I]n Georgia a person commits
murder when he unlawfully and with malice aforethought, either express or implied, causes the
death of another human being. He also commits the crime when in the commission of a felony
he causes the death of another human being, irrespective of malice. But even where the killing
is deliberate, it is not punishable by death absent proof of aggravating circumstances. It is
difficult to accept the notion, and we do not, that the rapist, with or without aggravating
circumstances, should be punished more heavily than the deliberate killer as long as the rapist
does not himself take the life of his victim.”).

that do not.¹² The Court reasoned that because the crime of rape does not result in death,
punishing rape by death would be unconstitutionally excessive.¹³
The Court utilized the same type of proportionality analysis in Enmund v. Florida¹⁴
by applying its reasoning from Coker to hold that the death penalty is a disproportionate
punishment for the crime of felony/murder,¹⁵ imposed on the getaway driver in a robbery
gone wrong, because robbery, like rape, “does not compare with murder, which does
involve the unjustified taking of human life.”¹⁶ The Court stated that “[a]s was said of the
crime of rape in Coker, we have the abiding conviction that the death penalty, which is
‘unique in its severity and irrevocability,’ is an excessive penalty for the robber who, as
such, does not take human life.”¹⁷ Thus, the Court seemed to say that for a crime to be
proportional to the punishment of death, the crime committed must cause death.
Since Coker and Enmund, the Court has refined its proportionality analysis, first
articulated in Weems v. United States,¹⁸ to determine which punishments are
unconstitutionally excessive. In Weems, the Court explained that the cruel and unusual
punishment clause is “progressive, and is not fastened to the obsolete, but may acquire
meaning as public opinion becomes enlightened by a humane justice.”¹⁹ As such, in
determining what is constitutional under the 8th Amendment, the Court generally looks
to “evolving standards of decency that mark the progress of a maturing society.”²⁰
The “evolving standards of decency” principle appears to be a flexible rule of
construction intended to evolve with societal norms as they develop so that the Court may
reflect these norms in its constitutionality review. This principle now appears to be the
primary framework within which the Court reviews constitutional claims challenging the
application of the death penalty. The Court employed this framework in both Atkins v.
Virginia²¹ and Roper v. Simmons,²² cases that narrowed the category of offenders eligible
for capital punishment to exclude the mentally retarded and juvenile offenders. The
Court’s methodology in deciding these cases had a different focus from its prior
jurisprudence regarding the constitutionality of capital statutes. In both Roper and Atkins,
the Court examined objective indicia of national consensus to determine whether the

¹² See, e.g., Annaliese Flynn Fleming, Comment, Louisiana’s Newest Capital Crime: The Death
Penalty for Child Rape, 89 J.C^RI^ML.&C^RI^M^I^NOLOGY 717, 727 (1999).
¹³ See, Coker, 433 U.S. at 598.
¹⁴ 458 U.S. 782 (1982).
¹⁵ Generally, felony-murder occurs when a victim dies accidently or without specific intent during
the course of an applicable felony,
¹⁶ Id. at 797 (quoting Coker, 433 U.S. at 598).
¹⁷ Id. at 797 (quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976)) (citation omitted).
¹⁸ 217 U.S. 349, 367 (1910).
¹⁹ Id. at 378.
²⁰ Trop v. Dulles, 356 U.S. 86, 100-01 (1958).
²¹ 536 U.S. 304 (2002).
²² 543 U.S. 551 (2005).

“evolving standards of decency” demonstrated that the death penalty was unconstitutional
under the circumstances.
In Atkins and Roper, the Court employed a three-part analysis to determine whether,
under “evolving standards of decency,” imposing the death penalty would have been so
disproportionate as to be “cruel and unusual” under the 8th Amendment. In both cases,
the Court first looked for a national consensus as evidenced by the acts of the state
legislatures.²³ The Court then assessed the proportionality of the punishment to the
relevant crimes, considering whether the death penalty was being limited, as required, to
the most serious classes of crimes and offenders, and whether its application would serve
the goals of retribution and deterrence.²⁴ Lastly, the Court looked to international opinion
to inform its analysis.²⁵
State Supreme Court Decision. On May 22, 2007, in Louisiana v. Kennedy,²⁶
the Louisiana Supreme Court held that the U.S. Supreme Court’s decision in Coker
prohibiting the death penalty does not apply when the victim is a child under the age of
12. The defendant was convicted and sentenced to death for the aggravated rape of his
8-year-old stepdaughter. The Louisiana court explained that capital sentences for rape of
a child were justifiable under the 8th Amendment. In reaching its conclusion, the court
followed the 8th Amendment framework set forth by the U.S. Supreme Court in Atkins²⁷²⁸
v. Virginia and Roper v. Simmons, first examining whether there is a national
consensus on the punishment and then considering whether the Court would find the
punishment excessive.
The Louisiana court determined that because five states had adopted similar laws in
the past decade, the national trend was toward capital punishment for child rape.
Moreover, the court held that because children are uniquely vulnerable, permitting the
death penalty for child rape is not unduly harsh, and is proportionate to the crime. On
January 4, 2008, the U.S. Supreme Court announced that it would examine the
constitutionality of permitting the execution of a child molester who did not kill his²⁹
victim.
United States Supreme Court Decision. In Kennedy v. Louisiana,³⁰ a divided
Court held, by a vote of 5 to 4, that capital punishment for a defendant convicted of a
non-homicide child rape is unconstitutional. Writing for the majority,³¹ Justice Kennedy
stated that such a punishment would be excessive, violating the 8^th Amendment’s ban on

²³ See, 543 U.S. at 609-11; 536 U.S. at 343-48.
²⁴ See, 543 U.S. at 560-64; 536 U.S. at 311-13.
²⁵ See, 543 U.S. at 575-78; 536 U.S. at 318 n.21.
²⁶ 957 So. 2d 757 (2007).
²⁷ 536 U.S. 304 (2002).
²⁸ 543 U.S. 551 (2005).
²⁹ 128 S. Ct. 829 (2008).
³⁰ No. 07-343, 2008 WL 2511282 (June 25, 2008).
³¹ The majority consisted of Justices Kennedy, Breyer, Ginsburg, Souter, and Stevens.

cruel and unusual punishment. Following the standard set forth in Atkins and Roper, the
Court rested its decision on several rationales. First, there is a national consensus against
the imposition of the death penalty for child rape. Second, evolving standards of decency
require that the categories of capital offenses not be expanded, but rather be reserved for
the most heinous crimes. Lastly, imposition of capital punishment for the non-homicide
crime of child rape does not fulfill the death penalty’s social purposes of retribution and
deterrence.
In determining objective indicia of national consensus regarding capital punishment
for non-homicide child rape, the Court looked at legislative enactments and state practices
with respect to executions.³² The Court noted that while six states have made child rape
a capital offense, 44 states and the federal government had not. According to the Court,
the relatively small number of states which make child rape a capital offense is analogous
to the activity in Enmund, where the Court found a national consensus against the death
penalty for felony/murder despite eight jurisdictions allowing capital punishment.³³ In
addition, the Court noted that Louisiana was the only state since 1964 to sentence a
defendant to death for child rape.³⁴ The Court rejected Louisiana’s contention that the
Coker decision itself deterred states from adopting capital child rape statutes and thereby
influenced the Court’s view of a developing national consensus. The Court explained that
several state courts recognized that Coker’s holding was limited to the crime of rape
against an adult woman and did not expressly prohibit imposition of capital punishment
for child rape. Moreover, the Court noted that the state failed to cite any reliable data to
support its assertion.³⁵ The Court also concluded that the absence of executions for rape
or any other non-homicide crime since 1964 demonstrated that there is a national
consensus against capital punishment for the crime of child rape.³⁶ As such, the Court
determined that, viewed in its totality, the limited number of states authorizing the death
penalty for child rape, as well as the absence of executions for rape or any other non-
homicide crime since 1964, demonstrates a national consensus against capital punishment
for child rape.
After looking at objective evidence of a national consensus, the Court moved to a
subjective analysis. While the Court acknowledged that rape is a heinous crime causing
traumatic and long-lasting anguish which is exacerbated when the victim is a child, it
“does not follow though, that capital punishment is a proportionate penalty for the crime.”
The Court reasoned that the evolving standards of decency require restraint in the
application of capital punishment. As such, capital punishment should be reserved for a
narrow category of crimes and/or offenses. The Court acknowledged the reprehensibility
of the crime of rape. However, the Court reasoned that child rape cannot be compared to
murder in terms of “severity and irrevocability.”³⁷

³² 2008 WL 2511282 at *11.
³³ Id. at *17.
³⁴ Id. at *18.
³⁵ Id. at *14.
³⁶ Id. at *18.
³⁷ Id. at *21.

The majority found that imposition of the death penalty for non-homicide child rape
would be counterproductive to the goals of rehabilitation, deterrence, and retribution. As
for retribution, the Court questioned whether the death penalty for non-homicide crimes
balances the wrong done to the victim. The Court concluded that there was no evidence
that a child rape victim’s hurt would be diminished when the law allows capital
punishment for the perpetrator. Instead, it reasoned that it is likely there would be
additional harm as minors would be forced to endure the stressors of reliving the
traumatic events repeatedly. In addition, the Court noted systematic concerns in
prosecuting child rape cases, including the problem of “unreliable, induced, and even
imagined child testimony” that may lead to “wrongful execution” in some cases.³⁸ The
majority felt that allowing capital punishment for the crime of child rape had additional
negative implications that are counterproductive to the goal of deterrence. For example,
victims may be “more likely to shield the perpetrator from discovery, thus increasing
underreporting.”³⁹ In addition, punishing child rape with death may remove a strong
incentive for the rapist to spare the victim’s life.⁴⁰
In its analysis, the Court distinguished child rape from other death-eligible crimes
because it is a crime against an individual person. It ruled that the death penalty should
not be permitted when the victim’s life was not taken. However, the Court did not
address, and consequently left open, the possibility of imposing the death penalty for non-
homicide crimes against the state, such as treason, espionage, terrorism, and drug kingpin
activity.⁴¹
Justice Alito, writing for the dissent,⁴² expressed the view that the majority’s
decision conflicts with the original meaning of the 8^th Amendment and ignores the moral
depravity of the crime. In addition, he felt that the small number of states which enacted
child rape statutes was not based on a national consensus against execution of child
rapists, but rather on the broad dicta presented in Coker. Also, he felt that the 8^th
Amendment protects an accused’s right, and does not authorize the majority to strike
down criminal laws on the ground that they are not in the best interest of crime victims
or society at large.

³⁸ Id. at *24.
³⁹ Id. at *25.
⁴⁰ Id. (stating that “assuming the offender behaves in a rational way, as one must to justify the
penalty on grounds of deterrence, the penalty in some respects gives less protection, not more,
to the victim, who is often the sole witness to the crime.”).
⁴¹ Id. at *20.
⁴² Joined by Chief Justice Roberts and Justices Scalia and Thomas.