(July 2, 2008) On June 25, the Supreme Court ruled that the ban on cruel and unusual punishment in the U.S. Constitution bars the death penalty for child rape.
The case involved a man who was sentenced to death by a Louisiana court for raping his 8-year-old stepdaughter. A 1977 Supreme Court case declared that the death penalty for rape of an adult woman was unconstitutional, but left open whether there were other crimes other than homicide that can be punished by death consistent with the Constitution.
The Court considered the death penalty for child rape from the standpoint of both a national consensus, and its own independent judgment informed by the Court's precedents and understanding of the Constitution. With respect to a national consensus, the Court found that in most jurisdictions in the U.S., capital punishment is not available for child rape, and Louisiana is the only state since 1964 that has placed anyone on death row for a non-homicide offense. Exercising the Court's own independent judgment, it concluded that the death penalty is not a proportional punishment for child rape, and that capital punishment should be restricted, as to crimes against individuals, to those that take the victim's life. (Kennedy v. Louisiana, No. 07-343 (June 25, 2008), available at http://www.supremecourtus.gov/opinions/07pdf/07-343.pdf.)