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)

Introduction

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)
 

STATESOFFENSESENACTEDDEATH SENTENCES/​EXECUTIONSNOTES
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)		20060/​0
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

STATESOFFENSESENACTEDEXISTING DEATH SENTENCES/​EXECUTIONSNOTES
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))