Death Penalty for Non-Homicide Sex Crimes: Law & Policy

Introduction

The last execution of an individual found guilty of committing a non-homicide sex crime occurred more than 50 years ago. The use of the death penalty against such offenders was halted partly because of claims that such execution was not only cruel but also in violation of the Constitution. In Coker v. Georgia (1977), the Court ruled that executions for rape were not only cruel but also constituted unusual punishment that infringed the Eighth Amendment of the Constitution. In its ruling, the U.S. Supreme Court prohibited the death penalty for rape in an offense where the victim had the legal status of an adult — she was 16 years old and married. In the years since, there have been attempts and efforts to reinstate capital punishment for committing a non-homicide sex crime, primarily centered on the use of the death penalty for sexual violence where the victim was not killed.

Abolition of Execution for Non-Homicide Sex Crimes

The history of the death penalty as a punishment for offenders who commit a non-homicide sex crime can be traced back more than 50 years. The last person to be executed for such a crime was Patrick Kennedy. Generally, the use of the death penalty as a means of punishing offenders of serious crimes is an issue that has attracted significant controversy. In the past 30 years, the United States Supreme Court has tilted toward conservatism, though capital punishment cases have largely remained irregular (Stanglin, 2008). During this period, the Court has prohibited the execution of mentally disabled individuals and juveniles on the premise that such executions violate the Eighth Amendment's ban against cruel and unusual punishment.

In relation to prohibiting execution for non-homicide sex crimes, the Court has made landmark rulings that have become monumental precedents. In Kennedy v. Louisiana, the Court ruled that states cannot execute an offender found guilty of raping a child, holding that such executions constitute cruel and unusual punishment in violation of the Eighth Amendment. This ruling was partly influenced by the earlier decision in Coker v. Georgia (1977). The decision in Kennedy v. Louisiana not only prevented the impending execution of an individual guilty of an offense that did not result in the victim's death but also prevented legislatures from enacting regulations that support the death penalty for other non-homicide crimes. As a result, the Supreme Court's rulings collectively imply that the death penalty is constitutionally permitted only for murder offenses.

History of the Movement to Reinstate Capital Punishment

There have been numerous efforts to revive the death penalty for sexual violence where the victim was not killed. These initiatives have been fueled by various considerations, including the dissenting opinion of Justice Samuel A. Alito Jr. in the review of Kennedy v. Louisiana. He argued that state legislatures have continuously functioned under an ominous shadow because many judges and attorneys have interpreted the decision in Coker v. Georgia (1977) as prohibiting the death penalty for any rape offense. As a result, state legislatures have not been given the freedom to express their own understanding of the standards of decency in contemporary society (Greenhouse, 2008).

The efforts to revive the death penalty for such offenses have also been fueled by the enactment of relevant statutes by six states, which may represent the beginning of a new legislative trend. Justice Alito argued that these measures reflect changes in modern society's thinking since the ruling in Coker v. Georgia. The enactment of these statutes also signals that society is becoming increasingly aware of, and concerned about, sexual offenses against children. Texas and Georgia are examples of states that have passed statutes in recent years supporting the use of capital punishment for individuals found guilty of sexual violence crimes where the victim was not killed.

Another major factor fueling reinstatement efforts is the increase in sexual violence crimes against children. In 2005, there were more than 5,000 reported rapes of children below 12 years of age, a figure that has strained the United States criminal justice system. Recent years have been characterized by heightened awareness of children's vulnerability to rape and sexual assault. Moreover, such incidents have profound and lasting consequences for child victims (Masci, 2008). Proponents of reinstating capital punishment for these crimes argue that doing so would help deter sexual violence against children and ensure that perpetrators receive appropriate punishment.

References

Greenhouse, L. (2008, June 26). Supreme Court rejects death penalty for child rape. The New York Times. Retrieved February 7, 2015, from http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html

Harris, T. (2006, March 30). Making sex crimes against kids a capital offense. ABC News. Retrieved February 7, 2015, from http://abcnews.go.com/U.S./story?id=1786632

Masci, D. (2008, April 4). The Supreme Court considers new case on capital punishment. Pew Forum. Retrieved February 7, 2015, from http://www.pewforum.org/2008/04/04/the-supreme-court-considers-new-case-on-capital-punishment/

Stanglin, J. (2008, July 3). Commentary: Supreme Court averts danger by disallowing the death penalty for child rape. Retrieved February 7, 2015, from http://public.getlegal.com/legal-info-center/commentary-supreme-court-averts-danger-by-disallowing-the-death-penalty-for-child-rape/

Totenberg, N. (2008, April 16). Justices weigh death penalty for child rape. NPR. Retrieved February 7, 2015, from http://www.npr.org/templates/story/story.php?storyId=89660806

Wright, R. C. (2014). Sex offender laws: Failed policies, new directions (2nd ed.). Springer Publishing Company.