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 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.