Order Code RS22844
March 21, 2008
Capital Punishment: Constitutionality for
Non-Homicide Crimes Such as Child Rape
Alison M. Smith
Legislative Attorney
American Law Division
Summary
The United States has not executed any individual for committing a non-homicide
crime since the United States reinstated the death penalty in 1976. However, this may
change as several federal and state statutes authorize capital punishment for certain non-
homicide offenses such as treason, espionage, aircraft piracy, aggravated kidnapping,
and drug trafficking in large quantities. More recently, some states have authorized the
death penalty for some instances of child rape. The constitutionality of these statutes has
been called into question in light of the U.S. Supreme Court’s capital penalty
jurisprudence. Earlier Supreme Court cases appear to stand for the proposition that the
death penalty in the United States is largely restricted to crimes in which the defendant
caused the death of another human being. During the present term, the Court may
determine whether states may constitutionally impose the death penalty for any crime
other than murder — in particular, whether a death sentence is a disproportionate
penalty, under the Eighth Amendment, for raping a child. The Court will address these
issues in its review of a Louisiana Supreme Court decision in Kennedy v. Louisiana.
Legal Background. The Eighth Amendment, applicable to the federal
government and to the states through the Fourteenth 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 that only “the worst of the worst” may be executed
for their crimes.3 However, the Court has provided minimal guidance for the “worst of
1 U.S. Const. Amend. VIII.
2 Weems v. United States, 217 U.S. 349, 367 (1910) (holding that the Eighth Amendment’s Cruel
and Unusual Clause requires that punishment for a crime be proportional to its severity).
3 See, Kansas v. March, 126 S. Ct. 2516, 2542 (2006) (Souter, J., dissenting) (stating that “within
(continued...)

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the worst” category of offenders and/or offenses. The Court has held in a couple of cases
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
Despite the Court’s narrowing of crimes and offenders who are capital punishment-
eligible, some states and the federal government have sought to expand the scope of
capital offenses. For example, federal law authorizes capital punishment for crimes such
as espionage,6 treason,7 and trafficking of large quantities of drugs.8 In addition, states
such as Florida, Georgia, Louisiana, Montana, Oklahoma, Texas, and South Carolina
authorize the death penalty for child rape.9 The question of whether such non-homicide
statutes, including the capital child rape statutes, are constitutional remains unanswered.
In Coker v. Georgia,10 the Court held that the state may not impose a death sentence
upon a rapist who does not take a human life.11 The Court announced that the standard
under the Eighth 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.”12 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
3 (...continued)
the category of capital crimes, the death penalty must be reserved for “the worst of the worst”
(citing Roper v. Simmons, 543 U.S. 551, 568 (2005)); Roper, 543 U.S. at 568 (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)).
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 18 U.S.C. § 794.
7 18 U.S.C. § 2381.
8 18 U.S.C. § 3591(b).
9 Fla. Stat. Ann. § 794.011; Ga. Code. Ann. §§ 16-6-1(a)(2) and 16-6-1(b); La. Rev. Stat. § 14:42;
Mont. Code Ann. § 45-5-503;10 Ok. Stat. Ann. § 7115(I); TX Penal Code § 12.42(c)(3); S.C.
Code Ann. § 16-3-655(C)(1).
10 433 U.S. 584 (1977).
11 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.
12 Id. at 592.

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attitudes, and the response of juries reflected in their sentencing decisions....”13 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.”14
Although the Court in Coker did not explicitly hold the death penalty unconstitutional for
all crimes not involving homicide,15 many have read the decision as such, since the Court
based its holding largely on the distinction between crimes that cause death and crimes
that do not.16 The Court reasoned that because the crime of rape does not result in death,
punishing rape by death would be unconstitutionally excessive.17
The Court utilized the same type of proportionality analysis in Enmund v. Florida18
by applying its reasoning from Coker to hold that the death penalty is a disproportionate
punishment for the crime of felony/murder,19 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.”20 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.”21 Thus, the Court seemed to say that for a crime to be
proportional to the punishment of death, the crime committed must cause death.
13 Id.
14 Id. at 598.
15 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.”).
16 See, e.g., Annaliese Flynn Fleming, Comment, Louisiana’s Newest Capital Crime: The Death
Penalty for Child Rape, 89 J. CRIM L. & CRIMINOLOGY 717, 727 (1999).
17 See, Coker, 433 U.S. at 598. Even though Coker was under a life sentence at the time of the
rape, if he could not be executed, he was in effect beyond punishment.
18 458 U.S. 782 (1982).
19 Generally, felony-murder occurs when a victim dies accidently or without specific intent during
the course of an applicable felony,
20 Id. at 797 (quoting Coker, 433 U.S. at 598).
21 Id. at 797 (quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976)) (citation omitted).

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Since Coker and Enmund, the Court has refined its proportionality analysis, first
articulated in Weems v. United States,22 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.”23 As such, in
determining what is constitutional under the Eighth Amendment, the Court generally
looks to “evolving standards of decency that mark the progress of a maturing society.”24
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.
Virginia25 and Roper v. Simmons26, 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
“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 Eighth Amendment. In both
cases, the Court first looked for a national consensus as evidenced by the acts of the state
legislatures.27 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.28 Lastly, the Court looked to international opinion
to inform its analysis.29
State Supreme Court Decision. On May 22, 2007, 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 12.30 The defendant was
convicted and sentenced to death for the aggravated rape of his 8-year-old stepdaughter.
22 217 U.S. 349, 367 (1910).
23 Id. at 378.
24 Trop v. Dulles, 356 U.S. 86, 100-01 (1958).
25 536 U.S. 304 (2002).
26 543 U.S. 551 (2005).
27 See, 543 U.S. at 609-11; 536 U.S. at 343-48.
28 See, 543 U.S. at 560-64; 536 U.S. at 311-13.
29 See, 543 U.S. at 575-78; 536 U.S. at 318 n.21.
30 Louisiana v. Kennedy, 957 So. 2d 757 (2007).

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In Louisiana v. Kennedy,31 the Louisiana court explained that capital sentences for rape
of a child were justifiable under the Eighth Amendment. In reaching its conclusion, the
court followed the Eighth Amendment framework set forth by the U.S. Supreme Court
in Atkins v. Virginia32 and Roper v. Simmons,33 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 will examine the
constitutionality of permitting the execution of a child molester who did not kill his
victim.34 The questions presented are as follows: (1) whether the Eighth Amendment’s
Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a
child with the death penalty; and (2) if so, whether Louisiana’s capital rape statute violates
the Eighth Amendment insofar as it genuinely fails to narrow the class of such offenders
eligible for the death penalty. If the Court reverses the Louisiana Supreme Court, its
decision will not only likely affect the state statutes authorizing the death penalty for child
rape, but may also affect all criminal statutes authorizing capital punishment for all non-
homicide crimes. If the Court affirms the Louisiana Supreme Court’s decision, it may
leave the boundaries of cruel and unusual punishment for non-homicide crimes less clear.
One argument for sustaining the Louisiana law pertains to the issue of deterrence.
Arguably, if a defendant can face death for raping a child, there would be less of an
incentive to allow a potential witness to live.
31 No. 05-KA-1981, May 22, 2007.
32 536 U.S. 304 (2002).
33 543 U.S. 551 (2005).
34 128 S. Ct. 829 (2008).

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