DPI Analysis: Use of the Death Penalty for Killing a Child Victim
About half of all death penalty states include the murder of a child as an aggravating circumstance that can subject a defendant to the death penalty
Overview
All of the prisoners currently on death row and all of those executed in the modern era of the death penalty were convicted of murder. Historically, the death penalty was widely used for rape, particularly against black defendants with white victims. When the death penalty was reinstated in 1976, the Supreme Court left open the possibility of imposing the death penalty for offenses other than murder, such as rape or even armed robbery. However, the Court soon ruled that the death penalty would be unconstitutional for the rape of an adult where no death had occurred. That ban was later extended to any non-homicidal rape by the U.S. Supreme Court decision Kennedy v. Louisiana, and the Court commented that the death penalty could no longer be applied for any crime against an individual where no death occurred. The question of whether the death penalty might be used for crimes against the government, such as treason or espionage, remains unsettled.
At Issue
Many states allow all those who participated in a felony in which a death occurred to be charged with murder and possibly face the death penalty, even though they may not have directly killed anyone. The case of unarmed accomplices in a bank robbery in which an employee is killed is a typical example of felony murder. Since the death penalty is supposed to be reserved for the “worst of the worst” cases, legislatures or the courts could restrict its use only to those who directly participated in killing the victim. Prisoners have also raised claims that the aggravating circumstances that make a crime eligible for the death penalty are too broad, with some state death-penalty laws encompassing nearly all murders, rather than reserving the death penalty for a small subset of murders.
What DPI Offers
Compilations of state laws are available, along with notable court decisions regarding this issue.
News & Developments
News
Feb 19, 2025
Alabama House Joins Florida and Tennessee to Advance Unconstitutional Expansion of Death Penalty that Advocates Say Would Harm Children
Alabama State…
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Jul 12, 2024
Articles of Interest: Op-ed says new Tennessee law that expands the death penalty to child rape “creates more problems than it solves.”
A July 7, 2024 op-ed in the Tennessean argues that the recent enaction of SB 1834, which makes the rape of a child punishable by death,“does more harm than good.” Sarah McGee (pictured), coordinator for Tennesseans for Alternatives to the Death Penalty, explains that during her work as a victim-witness coordinator for Davidson County District Attorney’s Office, probation officer, and assistant public defender, she “learned that when child service providers and…
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News
May 17, 2024
Tennessee Authorizes Death Penalty for Child Sexual Assault in Direct Challenge to Supreme Court Precedent
On May 9, Governor Bill Lee of Tennessee signed a bill authorizing the death penalty for aggravated rape of a child, following Florida’s passage of a similar law last year. Both laws contradict longstanding Supreme Court precedent holding the death penalty unconstitutional for non-homicide crimes. Tennessee’s law takes effect on July 1. The state has had a death penalty moratorium in place since May 2022 after Governor Lee learned that state officials had failed to…
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News
Dec 18, 2023
Florida Prosecutors Seek First Death Sentence Under New Child Sex Abuse Law
On December 14, 2023, Lake County, Florida prosecutors announced they are seeking the death penalty for a man accused of committing the sexual battery of a minor under the age of twelve. A statement from the office of State Attorney William Gladson said the decision reflects the“severity of the crime and its impact on the community.” Earlier this year, Governor Ron DeSantis signed legislation that expands death penalty eligibility to those convicted of sex crimes…
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News
Apr 25, 2023
Law Reviews — Racial Bias in Felony Murder and Accomplice Liability
A forthcoming article in the Denver Law Review discusses two theories of homicide law, the felony murder rule and accomplice liability, that create group liability for the actions of an individual. The article, written by Professors G. Ben Cohen (pictured), Justin D. Levinson, and Koichi Hioki states that“Research suggests that the administration of accomplice liability [and] felony murder doctrines disproportionately impact Black and minority…
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