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1 1 (June 27, 2008)

handle is hein.crs/crsajty0001 and id is 1 raw text is: Order Code RS22844 Updated June 27, 2008 Capital Punishment: Constitutionality for Non-Homicide Crimes Such as Child Rape Alison M. Smith Legislative Attorney American Law Division Summary In Kennedy v. Louisiana, the United States Supreme Court, by a vote of 5 to 4, held that the 8' Amendment prohibits the death penalty for the rape of a child where the crime did not result and was not intended to result in the victim's death. The Court established a bright-line rule regarding the constitutionality of imposing capital punishment for a non-homicide crime against an individual. After reviewing the history of the death penalty for other non-homicide crimes against individuals, state legislative enactments, and jury practices since 1964, the Court concluded that there was a national consensus against the imposition of capital punishment for the crime of child rape. Based on precedent as well as other subjective factors, the Court concluded that the death penalty is a disproportionate punishment for such a crime. The immediate effect of this decision is to invalidate statutes authorizing the death penalty for non-homicide cases of child rape. Legal Background. The 8th Amendment, applicable to the federal government and to the states through the 14' Amendment, bars the use of excessive sanctions in the criminal justice system. It states specifically that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Underlying this provision is the fundamental precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.2 The U.S. Supreme Court has stated that only the worst of the worst may be executed for their crimes.3 However, the Court has provided minimal guidance for the worst of the worst category of offenders and/or 1 U.S. Const. Amend. VIII. 2 Weems v. United States, 217 U.S. 349, 367 (1910) (holding that the 8th Amendment's Cruel and Unusual Clause requires that punishment for a crime be proportional to its severity). 3 See, Roper v. Simmons, 543 U.S. 551, 568 (2005) (stating that capital punishment must be limited to those offenders who commit 'a narrow category of the most serious crime' and whose extreme culpability makes them 'the most deserving of execution') (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)).