SCOTUS holds that the states may not execute those who rape children

In Kennedy v. Louisiana, the Supreme Court decided whether the Constitution bars a state from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. The Court held that the Eighth Amendment does prohibit the death penalty for this offense. In its opinion, the Court stressed that the Eighth Amendment’s prohibition against cruel and unusual punishment is not determined by the standards that prevailed in 1791 when the amendment was adopted, but rather the norms of society that currently prevail. The Eighth Amendment, according to the Court, draws its meaning from the evolving standards of decency that mark the progress of a maturing society.

In coming to its decision, the Court based its reasoning on a consensus and its own independent judgment that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments. The consensus referred to by the Court is that in the thirty-seven jurisdictions that have the death penalty, only six of those jurisdictions authorize the death penalty for rape of a child. The Court also made note that no person has been executed for the rape of an adult or child since 1964.

The Courts ruling is best summed up in this paragraph:

"Consistent with evolving standards of decency and the teachings of our precedents, we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons, even including child rape, on the other. The latter claims may be devastating in their harm, as here, but in terms of moral depravity of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability."