Earlier this month, Alabama Gov. Kay Ivey signed into law a bill, HB 41, https://tinyurl.com/ykz97mmd that allows prosecutors to seek the death penalty for adults convicted of the rape or sexual assault of a child under the age of 12, even if the crime does not include murder.
Alabama is the sixth state to enact a law making the rape or sexual assault of a minor a capital crime. Florida, Tennessee, Idaho, Arkansas, and Oklahoma have enacted similar laws in the past three years. The laws are unconstitutional under the U.S.Supreme Court’s decision in Kennedy v. Louisiana (2008). That decision, written by Justice Anthony Kennedy for the 5-4 majority, found that “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments,” which ban cruel and unusual punishment.
All six governors appear to be betting that the current right-wing Supreme Court will overturn Kennedy. Florida Gov. DeSantis said as much when he signed that state’s bill, declaring at a news conference that Kennedy “was wrong. We do not believe the Supreme Court in its current iteration would uphold it.”
Three of the four dissenters in Kennedy, Samuel Alito, John Roberts, and Clarence Thomas, are still on the Court and have been joined by conservative justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch.
But it’s possible the Supreme Court could see how the new laws could cause more harm than good. As Sarah McGee, a victim-witness coordinator in the Davidson County DA’s office, who has also served as an assistant public defender for youth and adults, writes in a 2024 op-ed in the Tennessean, https://tinyurl.com/4fhd2x8h laws allowing a death sentence for anyone convicted of the rape of a minor “may actually encourage abusers to kill their child victims in order to eliminate any witnesses because the punishment is now the same whether or not they kill their victims.”