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 test execution drugs for bacterial contamination; he ordered a subsequent independent investigation which found that the state had systematically failed to follow lethal injection protocols. Governor Lee did not release a statement upon signing the bill and has issued no recent updates on the status of the moratorium.  

The Supreme Court held in Coker v. Georgia (1977) that the use of the death penalty is disproportionate to the crime of rape, violating the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court extended that ruling to child rape in Kennedy v. Louisiana (2008). While the Court emphasized the “hurt and horror inflicted” by perpetrators of child rape and the “years of long anguish” endured by the victim, the Court noted that only a handful of states authorized the death penalty for child rape and only two men in the entire country were on death row as a result, making the punishment unconstitutionally “unusual” for the crime. The Court further noted the disproportionate nature of the punishment of death on a person who had not caused death, raising concerns about the “incongruity” between child sexual abuse and the “harshness” of the death penalty. “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint,” the justices wrote.   

Critics have argued that such laws could further traumatize victims. Maria DeLiberato, Executive Director of Floridians for Alternatives to the Death Penalty, pointed out that 30% of child sex abuse victims are abused by family members and 90% of victims know their abuser. “You’ve got this whole dynamic where a child is going to bear the weight of a possible death sentence to a neighbor, an uncle, a grandfather,” she said. Similarly, the Court noted in Kennedy that it “is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator,” as death penalty cases “require a long-term commitment by those who testify for the prosecution” and victims would have to relive their trauma through law enforcement interviews and testimony for decades. The practice “forces a moral choice on the child, who is not of mature age to make that choice,” the Court wrote.  

There is also evidence that such laws increase the risk of wrongful execution. The Kennedy Court discussed research showing children have a heightened susceptibility to suggestion or fabrication in law enforcement interviews. The National Registry of Exonerations has identified over 300 wrongful convictions involving child sex abuse.  

Governor DeSantis and Florida legislators designed their bill as an opportunity for the Supreme Court to overturn Kennedy. “This bill sets up a procedure to be able to challenge that precedent,” DeSantis said. Florida prosecutors announced their first case under the law in December. Some Tennessee legislators made the same argument; state Senator Janice Bowling suggested that “the atmosphere is different on the Supreme Court” and the bill’s sponsors were “simply challenging a ruling.” (Governor Lee denied signing the bill to “test” it in court.) These efforts come amidst challenges at the Supreme Court to the “evolving standards of decency” test used in Kennedy and numerous landmark capital punishment cases. A pending death penalty case from Alabama challenging the test, Hamm v. Smith, has been relisted by the Court fourteen times without a certiorari decision, and advocates recently appeared to sidestep a nearly-identical challenge to the test in a case argued before the Court in April.