Constitutional doctrine relating to capital punishment is (in)famously tangled. That said, one proposition that, I suspect, most who litigate, teach, or write in the area have long thought -- since Coker v. Georgia (1977), anyway -- one could take to the bank is that the death penalty is an unconstitutional punishment for non-homicide crimes. The New York Times is reporting, though, that the Louisiana Supreme Court has "upheld the death sentence of a man convicted of raping an 8-year-old girl. Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing."
It is quite likely that the Supreme Court will review the Louisiana court's decision. In Coker, the Justices ruled that the death penalty for "the rape of an adult woman" is "grossly disproportionate and excessive punishment" and "therefore forbidden by the Eighth Amendment as cruel and unusual punishment." Can the same be said -- should the same be said -- of the death penalty for the rape of a child?
Put aside, for now, the Court's caselaw. And assume, for the sake of argument, that capital punishment is, as a categorical matter, neither unjustifiable nor unconstitutional. Is there something about the capital sanction that makes it, always and everywhere, an inappropriate or unjustifiable response to child-rape (but not to, say, the non-triggerman accomplice in a homicide case)? If so, what is that something? Is there anything other than (in Chief Justice Burger's words) "primitive simplicity" on the side of the argument that the death penalty is always and necessarily an excessive penalty for rape?
Coming at the question another way, is there any reason to think that capital punishment for child-rape is less likely to yield deterrence benefits than capital punishment for homicide? It could be, in fact, that the availability of the death penalty more effectively deters child rape than it does murder and so is more justifiable in the child-rape context than in the homicide context. And, what of Chief Justice Burger's contention, dissenting in Coker, that "[i]t is not . . . irrational . . . for a legislature to make the penalty more severe than the criminal act it punishes in the hope that it [will] deter wrongdoing."
Stay tuned . . ..