Crimes Punishable By Death

Death Penalty for Offenses Other Than Murder

As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.

– Former U.S. Supreme Court Justice Anthony Kennedy, writ­ing for the major­i­ty in Kennedy v. Louisiana (2008)


The death penalty in the United States is used almost exclusively for the crime of murder. Although state and federal statutes contain various capital crimes other than those involving the death of the victim, only two people were on death row for a non-murder offense (Patrick Kennedy and Richard Davis in Louisiana) when the U.S. Supreme Court addressed this issue in 2008. No one has been executed for such a crime since the death penalty was re-instated in 1976.

In 1977, the U.S. Supreme Court in Coker v. Georgia, 433 U.S. 584, held that the death penalty for the rape of an adult was “grossly disproportionate” and an “excessive punishment,” and hence was unconstitutional under the Eighth Amendment. The Court looked at the relatively few states that allowed the death penalty for rape and the few death sentences that had been handed down.

Some states passed new laws allowing the death penalty for the rape of a child. In 2007, the Louisiana Supreme Court upheld the death sentence for Patrick Kennedy for the rape of his step-daughter, LOUISIANA v. KENNEDY (No. 05-KA-1981, May 22, 2007). Kennedy was convicted in 2003. However, Louisiana’s law was struck down by the U.S. Supreme Court on June 25, 2008. See Kennedy v. Louisiana for more information. This decision also held that the death penalty would be disproportionate for any offense against an individual that did not involve death of the victim.

Note: The following information applies to state laws that existed when Kennedy v. Louisiana was decided.

Death Penalty Statutes for the Rape of a Child (before Kennedy v. Louisiana)

TexasSecond conviction for rape of a child under 14; first offense could have occurred prior to law’s passage; Bill HB 820070/0Passed by legislature; signed by governor on July 16, 2007
OklahomaRape or forcible sodomy of a victim under 14 where the defendant had a prior conviction of sexual abuse of a person under 14; 10 Okl. St. Ann. § 7115(I)20060/0 
South CarolinaRepeat offenders of criminal sexual conduct with a minor under 11;
S.C. Code Ann. § 16-3-655(C)(I)
MontanaSecond conviction for sexual intercourse without consent accompanied by serious bodily injury;
Mont. Code Ann. sec. 45-5-503
19970/0Statute covers all ages of victims, but has specific provisions if the victim is 12 or under.
LouisianaAggravated rape of a child under 13;
La. Rev. Stat. Ann. sec. 14:42(D)(2)
19952/0Statute upheld in State v. Kennedy on May 22, 2007; similar statute upheld in State v. Wilson, 685 So.2d 1063, 1073 (La. 1996) but defendant did not receive a death sentence. Victim under age 13, rather than 12, was added more recently (Acts 2003, 2006). Sentences overturned by U.S. Sup. Ct. in Kennedy v. La.
GeorgiaCarnal knowledge of a female who is less than 10 presumes force;
Ga. Code Ann. sec. 16-6-1
19990/0In 2006, Georgia’s legislature revoked its general capital rape statute, but it is unclear whether the rape of a minor could be pursued as a capital crime.
U.S. Military10 U. S. C. §856; Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1).Modified 20060/0Although the impact of Congress’ modification of the military law is unclear, the U.S. Supreme Court concluded that military law does not impact the evaluation of the national consensus regarding the death penalty for child rape under civilian law.

Unclear Death Penalty Statutes for the Rape of a Child

FloridaSexual battery or attempted sexual battery with injury of a child under 12;
Fla. Stat. Ann. sec. 794.011
19740/0Buford v. State, 403 So. 2d 943, 951 (Fla. 1981), held that Fla.’s rape statute was unconstitutional, but upheld defendant’s death sentence because victim had also been murdered. Statute has not been repealed but appears unconstitutional. See Welsh v. State, 850 So. 2d 467, 468 n.1 (Fla. 2003) (reference to capital crime only “historical”).

Other State Statutes allowing the death penalty for non-murder crimes

Although no one is on death row for the following crimes, capital offenses exist in state law for various other crimes:

Treason (Arkansas, California, Colorado*, Georgia, Illinois*, Louisiana, Mississippi, Missouri, Washington*)
Aggravated kidnapping (Colorado*, Idaho, Illinois, Missouri, Montana)
Drug trafficking (Florida, Missouri)
Aircraft hijacking (Georgia, Missouri)
Placing a bomb near a bus terminal (Missouri)
Espionage (New Mexico*)
Aggravated assault by incarcerated, persistent felons, or murderers (Montana)
*These states abolished the death penalty after Kennedy v. Louisiana was decided.

Federal capital statutes for non-murder crimes (no one on death row for such offenses)

Espionage (18 U.S.C. 794)
Treason (18 U.S.C. 2381)
Trafficking in large quantities of drugs (18 U.S.C. 3591(b))
Attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs (18 U.S.C. 3591(b)(2))


Jeffrey Kirchmeier, Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States,” 34 Pepperdine Law Review 1, 16 – 17 and n.86 (2006).

STATE OF LOUISIANA v. PATRICK KENNEDY (La. Sup. Ct., No. 05-KA-1981, May 22, 2007), at 37 – 56 (review­ing laws allow­ing the death penal­ty for crimes that do not involve murder).

Marion Quirk, Memo: Death Penalty — Sexual Crimes (June 132006).