Non-Homicide Offenses and Death Penalty

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Supreme Court has considered whether, based on the nature of the underlying offense, imposing capital punishment may be inappropriate. In Kennedy v. Louisiana, the Court stated:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.’ Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that ‘currently prevail.’ The Amendment ‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.'1

However, in a dissenting opinion, Justice Samuel Alito opined that the “Court has . . . made it clear that '[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.’” 2

In Coker v. Georgia,3 the Court held that the state may not impose a death sentence upon a rapist who did not take a human life. In Kennedy v. Louisiana,4 the Court held that this was true even when the rape victim was a child.5 In Coker, the Court announced that the standard under the Eighth Amendment was that punishments are barred when they “are ‘excessive’ in relation to the crime committed.” 6 The Court stated:

Under Gregg v. Georgia, a punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. To this end, attention must be given to public attitudes concerning a particular sentence—history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted.7

Although the Coker Court thought that the death penalty for rape passed the first test ( “it may measurably serve the legitimate ends of punishment” ),8 it found that it failed the second test (proportionality).9 Georgia was the sole state providing for death for the rape of an adult woman, and juries in at least nine out of ten cases refused to impose death for rape. Aside from this view of public perception, the Court independently concluded that death is an excessive penalty for an offender who rapes but does not kill; rape cannot compare with murder “in terms of moral depravity and of the injury to the person and to the public.” 10

In Kennedy v. Louisiana, the Court concluded on the basis of the “teaching of [its] precedents” and the “evolving standards of decency,” evidenced by legislative activity on the issue and the want of related executions, that the Eighth Amendment precludes the death penalty for a person who rapes a child.11

1: Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)).
2: 554 U.S. at 406 (Alito, J., dissenting) (quoting Harmelin v. Michigan, 501 U.S. 957, 990 (1991)).
3: 433 U.S. 584 (1977). Justice Byron White’s opinion was joined only by Justices Potter Stewart, Harry Blackmun, and John Paul Stevens. Justices William Brennan and Thurgood Marshall concurred on their view that the death penalty is per se invalid, id. at 600, and Justice Lewis Powell concurred on a more limited basis than Justice White’s opinion. Id. at 601. Chief Justice Warren Burger and Justice William Rehnquist dissented. Id. at 604.
4: 554 U.S. 407. Justice Anthony Kennedy’s opinion was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice Samuel Alito filed a dissenting opinion, in which Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas joined.
5: The Court noted, however, that “[o]ur concern here is limited to crimes against individual persons [where a victim’s life is not taken]. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.” 554 U.S. at 437.
6: Coker v. Georgia, 433 U.S. 584, 592 (1976).
7: Id.
8: 433 U.S. at 593 n.4.
9: Id. at 597.
10: Id. at 598.
11: 554 U.S. 407, 438 (2008). The Court noted that since Gregg, it had “spent more than 32 years articulating limiting factors that channel the jury’s discretion to avoid the death penalty’s arbitrary imposition in the case of murder. Though that practice remains sound, beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.” Id. at 440–41.