Criminal Law Newsletter

Barring the Execution of Rapists Under the Eighth Amendment

The U.S. Supreme Court considers the constitutionality of the death penalty under the Eighth Amendment, which prohibits “cruel and unusual” punishments. The death sentence is a cruel and unusual penalty, in violation of the Eighth Amendment, when it is “excessive” in relation to the crime committed. The Court has held that capital punishment is an excessive penalty for crimes that do not cause a victim’s death, including rape and some instances of felony murder.

Excessive Punishments

There are two ways that a punishment can be characterized as excessive under the Eighth Amendment:

1. If the punishment makes no measurable contribution to acceptable goals of punishment (e.g., retribution and deterrence); or


2. If the punishment is grossly disproportionate to the severity of the crime.

If a punishment fails the test on either ground, it will be deemed excessive and unconstitutional.

Modern National Consensus

In analyzing the constitutionality of capital punishment under these two tests, the Court gives serious weight to the modern national consensus concerning a particular sentence. Specifically, the Court determines whether the public attitude is for or against the death penalty by weighing several objective factors, including:

• History and precedent


• Legislative attitudes


• The response of juries reflected in their sentencing decisions

In addition to determining the public consensus on a particular sentence, the Court also makes its own independent conclusions as to the acceptability of the death penalty under the Eighth Amendment.

Capital Punishment for Rape That Does Not End in Murder

In 1977, the Court held in Coker v. Georgia that the death penalty for rape was unconstitutional under the second test for excessive punishment. Namely, the Court concluded that capital punishment is grossly disproportionate to the crime of rape when the offender does not kill (reasoning that the modern consensus is against the death penalty for rapists). Further, the Court independently concluded that rape does not compare with murder “in terms of moral depravity and of the injury to the person and to the public.”

It is important to note, however, that the Coker holding is limited to the crime of rape of an adult woman. As such, the Court’s holding leaves open the question of whether the death penalty is unconstitutional for the rape of children. In fact, some states have since imposed the death penalty for the rape of a child. In 2003, a Louisiana state court sentenced a man to death for the rape of an eight-year-old child under a state law that permits the death penalty for the rape of a child under 12.

Capital Punishment in Felony Murder Cases

In 1982, the Court applied the Coker analysis to assess the constitutionality of the death penalty for felony murder in Enmund v. Florida, holding that capital punishment is unconstitutional for a robber who does not take a human life. In that case, a Florida court had sentenced a man to death for aiding and abetting in a felony that ended in murder. As the man was merely the driver of the getaway car and did not kill or intend that the victims be killed, the U.S. Supreme Court held that the sentence of death was an excessive penalty under the Eighth Amendment. As in Coker, the Court considered the current public attitude toward capital punishment for the crime at issue and concluded that it weighed heavily on the side against it.

However, the Court later relaxed the Enmund culpability requirement, holding that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the [intent to kill] requirement.”

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