Last month, the Alabama House of Representatives overwhelmingly voted in favor of a bill that would expand the availability of the death penalty to people convicted of rape of a child under the age of 12. The bill will next head to the Alabama Senate, and if it passes, to the desk of Republican Governor Kay Ivey for her signature.
One of several problems with this bill is that the U.S. Supreme Court has repeatedly held that laws which punish people with death for crimes that did not result in death violate the Constitution’s prohibition on excessive or cruel and unusual punishments. But the bill’s sponsor, Representative Matt Simpson, told the Alabama Political Reporter he hopes to change that: If other states “passed laws like this,” he reasoned, “it wouldn’t be unusual.”
Other states are indeed pushing similarly unconstitutional legislation. In the past two years, eight additional states have introduced bills that directly conflict with the Court’s precedents by allowing prosecutors to seek the death penalty in cases of child sexual abuse that do not result in death. And in two of those states, the bills beecame law: Florida passed a law making sexual battery of a child under the age of 12 a capital offense in 2023, and Tennessee authorized the death penalty for aggravated rape of a child convictions in 2024.
So far, no one convicted of these crimes in either state has been sentenced to death, so there have been no constitutional challenges to the laws. (Florida prosecutors announced they were seeking the death penalty in a child sexual abuse case in December 2023, but the defendant pled guilty and was sentenced to life in prison without the possibility of parole a few months later.) But that may soon change. A few weeks ago, a Tennessee district attorney currently prosecuting child sexual abuse cases told reporters that she “would love almost nothing more in this office than to seek death for an aggravated child rapist.”
The unconstitutionality of the laws is not debateable—and it’s deliberate. Just as red state legislatures once passed statutes that directly conflicted with Roe v. Wade in order to erode the Fourteenth Amendment’s protection for abortion care, they are now passing statutes that directly conflict with Coker v. Georgia and Kennedy v. Louisiana in order to erode the Eighth Amendment’s protections against cruel and unusual punishment. The prospect of executing unsympathetic child predators is how they get you to open the door; more executions for more people convicted of less serious crimes invariably await on the other side.
Erlich Coker escaped from a Georgia prison on September 2, 1974, and that same evening, he broke into the home of a young married couple, raped the wife, and stole the family car. He was convicted of rape and sentenced to death. But in Coker v. Georgia, the Court reversed the death sentence; writing for a four-justice plurality, Justice Byron White characterized rape as the “ultimate violation of self” short of homicide, but emphasized that the death penalty is “unique in its severity and irrevocability” and is therefore “an excessive penalty for the rapist who, as such, does not take human life.” The Court also pointed out that Georgia was the only jurisdiction in the country that authorized the sentence of death for the rape of an adult.
Justices William Brennan, Thurgood Marshall, and Justice Lewis Powell all concurred in the judgment, but came to that conclusion for different reasons: Brennan and Marshall argued that the death penalty is always unconstitutional, and Powell thought death was a disproportionate punishment for the rape of an adult who didn’t sustain lasting injury.
The Court built on Coker in 2008 in Kennedy v. Louisiana, a case regarding the sentence of Patrick Kennedy, who was sentenced to death under a statute authorizing prosecutors to seek the death penalty for the rape of a child under the age of 12. After reviewing the history of the death penalty for non-homicide offenses, current statutes, and the rate of executions, the Court concluded that there was “a national consensus against capital punishment for the crime of child rape,” and stressed that proportionality must be determined “not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail.”
The Court also questioned whether there is any place for the death penalty in a modern society. “Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime,” wrote Justice Anthony Kennedy for the five-justice majority.
Kennedy v. Louisiana extended the “evolving standards of decency” principle, which factored into other Eighth Amendment decisions prohibiting the execution of mentally disabled people in 2002, and blocking the execution of minors in 2005. But this principle sharply conflicts with the current conservative supermajority’s insistence that the Constitution’s meaning is “fixed according to its historical understanding,” as Justice Clarence Thomas wrote in 2022. By enacting laws that undoubtedly conflict with the way the conservative justices interpret the Constitution, Republican lawmakers are teeing up legal challenges to change how courts understand the Eighth Amendment. And undermining “evolving standards of decency” in favor of “history and tradition” would allow for a dramatic expansion of people and offenses eligible for the death penalty.
When Tennessee Governor Bill Lee signed his state’s law last year, he told reporters he did so because he believes the crime is “heinous,” and denied that he was setting up a test case. But Florida Governor Ron DeSantis was not so close-mouthed about his aims. “We do not believe the Supreme Court in its current iteration would uphold it,” DeSantis said at a news conference. “And so, we are going to be exploring ways to facilitate some capital trials.” Over in Alabama, Simpson is crossing his fingers that his bill can be of some assistance to the cause. “I’d love Florida to be able to say, ‘Look at what Alabama has done as well,’ to help them strengthen their case,” Simpson said.
The despicableness of the offense makes people convicted of child sex abuse a convenient target for state-sponsored execution enthusiasts. Legislators want to be seen as children’s defenders, not predator sympathizers. But conservatives’ slew of attacks on all sorts of once-protected constitutional rights should make clear that extending the death penalty to people who abuse children will be the beginning—not the end.
