(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

KENNEDY v. LOUISIANA 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA 

No. 07–343. Argued April 16, 2008—Decided June 25, 2008 

Louisiana charged petitioner with the aggravated rape of his then-8-

year-old stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a

child under 12. The State Supreme Court affirmed, rejecting petitioner’s reliance on Coker v. Georgia, 433 U. S. 584, which barred the 

use of the death penalty as punishment for the rape of an adult 

woman but left open the question which, if any, other nonhomicide 

crimes can be punished by death consistent with the Eighth Amendment. Reasoning that children are a class in need of special protection, the state court held child rape to be unique in terms of the harm

it inflicts upon the victim and society and concluded that, short of

first-degree murder, there is no crime more deserving of death. The 

court acknowledged that petitioner would be the first person executed

since the state law was amended to authorize the death penalty for 

child rape in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for that crime. However, emphasizing that 

four more States had capitalized child rape since 1995 and at least 

eight others had authorized death for other nonhomicide crimes, as

well as that, under Roper v. Simmons, 543 U. S. 551, and Atkins v. 

Virginia, 536 U. S. 304, it is the direction of change rather than the 

numerical count that is significant, the court held petitioner’s death 

sentence to be constitutional. 

Held: The Eighth Amendment bars Louisiana from imposing the death

penalty for the rape of a child where the crime did not result, and 

was not intended to result, in the victim’s death. Pp. 8–36.

1. The Amendment’s Cruel and Unusual Punishment Clause 

“draw[s] its meaning from the evolving standards of decency that

mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 

86, 101. The standard for extreme cruelty “itself remains the same, 
 

 

 

2 KENNEDY v. LOUISIANA 

Syllabus 

but its applicability must change as the basic mores of society 

change.” Furman v. Georgia, 408 U. S. 238, 382. Under the precept 

of justice that punishment is to be graduated and proportioned to the

crime, informed by evolving standards, capital punishment must “be 

limited to those offenders who commit ‘a narrow category of the most

serious crimes’ and whose extreme culpability makes them ‘the most

deserving of execution.’ ” Roper, supra, at 568. Applying this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the Eighth Amendment 

because the offender has a diminished personal responsibility for the

crime. The Court also has found the death penalty disproportionate 

to the crime itself where the crime did not result, or was not intended 

to result, in the victim’s death. See, e.g., Coker, supra; Enmund v. 

Florida, 458 U. S. 782. In making its determination, the Court is

guided by “objective indicia of society’s standards, as expressed in

legislative enactments and state practice with respect to executions.” 

Roper, supra, at 563. Consensus is not dispositive, however. 

Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on

the Court’s own understanding and interpretation of the Eighth

Amendment’s text, history, meaning, and purpose. Pp. 8–10. 

2. A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the 

number of executions since 1964, demonstrates a national consensus 

against capital punishment for the crime of child rape. Pp. 11–23. 

(a) The Court follows the approach of cases in which objective indicia of consensus demonstrated an opinion against the death penalty

for juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. 

Thirty-seven jurisdictions—36 States plus the Federal Government—

currently impose capital punishment, but only six States authorize it 

for child rape. In 45 jurisdictions, by contrast, petitioner could not be

executed for child rape of any kind. That number surpasses the 30 

States in Atkins and Roper and the 42 in Enmund that prohibited the

death penalty under the circumstances those cases considered. 

Pp. 11–15. 

(b) Respondent’s argument that Coker’s general discussion contrasting murder and rape, 433 U. S., at 598, has been interpreted too

expansively, leading some States to conclude that Coker applies to

child rape when in fact it does not, is unsound. Coker’s holding was

narrower than some of its language read in isolation indicates. The 

Coker plurality framed the question as whether, “with respect to rape

of an adult woman,” the death penalty is disproportionate punish-
 

 

 

Cite as: 554 U. S. ____ (2008) 3 

Syllabus 

ment, id., at 592, and it repeated the phrase “adult woman” or “adult

female” eight times in discussing the crime or the victim. The distinction between adult and child rape was not merely rhetorical; it 

was central to Coker’s reasoning, including its analysis of legislative 

consensus. See, e.g., id., at 595–596. There is little evidence to support respondent’s contention that state legislatures have understood 

Coker to state a broad rule that covers minor victims, and state 

courts have uniformly concluded that Coker did not address that 

crime. Accordingly, the small number of States that have enacted

the death penalty for child rape is relevant to determining whether 

there is a consensus against capital punishment for the rape of a 

child. Pp. 15–20. 

(c) A consistent direction of change in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U. S., at 315, but no showing of consistent change has been made here. That five States may

have had pending legislation authorizing death for child rape is not 

dispositive because it is not this Court’s practice, nor is it sound, to 

find contemporary norms based on legislation proposed but not yet

enacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five States has failed. Further, evidence 

that, in the last 13 years, six new death penalty statutes have been

enacted, three in the last two years, is not as significant as the data

in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See 

id., at 314–315. Respondent argues that this case is like Roper because, there, only five States had shifted their positions between

1989 and 2005, one less State than here. See 543 U. S., at 565. But 

the Roper Court emphasized that the slow pace of abolition was counterbalanced by the total number of States that had recognized the 

impropriety of executing juvenile offenders. See id., at 566–567. 

Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction comparable 

to the one in Roper. The evidence bears a closer resemblance to that 

in Enmund, where the Court found a national consensus against

death for vicarious felony murder despite eight jurisdictions having 

authorized it. See 458 U. S., at 789, 792. Pp. 20–22. 

(d) Execution statistics also confirm that there is a social consensus against the death penalty for child rape. Nine States have permitted capital punishment for adult or child rape for some length of 

time between the Court’s 1972 Furman decision and today; yet no individual has been executed for the rape of an adult or child since

1964, and no execution for any other nonhomicide offense has been

conducted since 1963. Louisiana is the only State since 1964 that has 
 

 

 

4 KENNEDY v. LOUISIANA 

Syllabus 

sentenced an individual to death for child rape, and petitioner and 

another man so sentenced are the only individuals now on death row

in the United States for nonhomicide offenses. Pp. 22–23. 

3. Informed by its own precedents and its understanding of the

Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional

punishment for the crime of child rape. Pp. 23–35.

(a) The Court’s own judgment should be brought to bear on the 

death penalty’s acceptability under the Eighth Amendment. See, 

e.g., Coker, supra, at 597. Rape’s permanent and devastating impact

on a child suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim’s death, but it does not follow that death is a proportionate penalty for child rape. The constitutional prohibition against excessive

or cruel and unusual punishments mandates that punishment “be 

exercised within the limits of civilized standards.” Trop, 356 U. S., at 

99–100. Evolving standards of decency counsel the Court to be most 

hesitant before allowing extension of the death penalty, especially

where no life was taken in the commission of the crime. See, e.g., 

Coker, 433 U. S., at 597–598; Enmund, 458 U. S., at 797. Consistent 

with those evolving standards and the teachings of its precedents, the 

Court concludes that there is a distinction between intentional firstdegree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes 

may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” they cannot 

compare to murder in their “severity and irrevocability,” id, at 598. 

The Court finds significant the substantial number of executions that

would be allowed for child rape under respondent’s approach. Although narrowing aggravators might be used to ensure the death 

penalty’s restrained application in this context, as they are in the

context of capital murder, all such standards have the potential to result in some inconsistency of application. The Court, for example,

has acknowledged that the requirement of general rules to ensure 

consistency of treatment, see, e.g., Godfrey v. Georgia, 446 U. S. 420, 

and the insistence that capital sentencing be individualized, see, e.g., 

Woodson v. North Carolina, 428 U. S. 280, have resulted in tension 

and imprecision. This approach might be sound with respect to capital murder but it should not be introduced into the justice system

where death has not occurred. The Court has spent more than 32

years developing a foundational jurisprudence for capital murder to 

guide the States and juries in imposing the death penalty. Beginning

the same process for crimes for which no one has been executed in 

more than 40 years would require experimentation in an area where 
 

Cite as: 554 U. S. ____ (2008) 5 

Syllabus 

a failed experiment would result in the execution of individuals undeserving of death. Pp. 24–30.

(b) The Court’s decision is consistent with the justifications offered for the death penalty, retribution and deterrence, see, e.g., 

Gregg v. Georgia, 428 U. S. 153, 183. Among the factors for determining whether retribution is served, the Court must look to whether

the death penalty balances the wrong to the victim in nonhomicide 

cases. Cf. Roper, supra, at 571. It is not at all evident that the child 

rape victim’s hurt is lessened when the law permits the perpetrator’s 

death, given that capital cases require a long-term commitment by

those testifying for the prosecution. Society’s desire to inflict death

for child rape by enlisting the child victim to assist it over the course 

of years in asking for capital punishment forces a moral choice on the 

child, who is not of mature age to make that choice. There are also 

relevant systemic concerns in prosecuting child rape, including the 

documented problem of unreliable, induced, and even imagined child

testimony, which creates a “special risk of wrongful execution” in 

some cases. Cf. Atkins, supra, at 321. As to deterrence, the evidence 

suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out 

of fear of negative consequences for the perpetrator, especially if he is

a family member. And, by in effect making the punishment for child

rape and murder equivalent, a State may remove a strong incentive 

for the rapist not to kill his victim. Pp. 30–35.

4. The concern that the Court’s holding will effectively block further development of a consensus favoring the death penalty for child 

rape overlooks the principle that the Eighth Amendment is defined

by “the evolving standards of decency that mark the progress of a 

maturing society,” Trop, 356 U. S., at 101. Confirmed by the Court’s 

repeated, consistent rulings, this principle requires that resort to

capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of 

crimes against individuals, take the victim’s life. P. 36. 

957 So. 2d 757, reversed and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, 

SOUTER, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed a dissenting 

opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 554 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 07–343 

PATRICK KENNEDY, PETITIONER v. LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
 

LOUISIANA
 

[June 25, 2008] 

JUSTICE KENNEDY delivered the opinion of the Court. 

The National Government and, beyond it, the separate

States are bound by the proscriptive mandates of the 

Eighth Amendment to the Constitution of the United

States, and all persons within those respective jurisdictions may invoke its protection. See Amdts. 8 and 14, §1; 

Robinson v. California, 370 U. S. 660 (1962). Patrick 

Kennedy, the petitioner here, seeks to set aside his death 

sentence under the Eighth Amendment. He was charged 

by the respondent, the State of Louisiana, with the aggravated rape of his then-8-year-old stepdaughter. After a 

jury trial petitioner was convicted and sentenced to death

under a state statute authorizing capital punishment for 

the rape of a child under 12 years of age. See La. Stat. 

Ann. §14:42 (West 1997 and Supp. 1998). This case presents the question whether the Constitution bars respondent from imposing the death penalty for the rape of a

child where the crime did not result, and was not intended 

to result, in death of the victim. We hold the Eighth

Amendment prohibits the death penalty for this offense. 

The Louisiana statute is unconstitutional. 
 

 

 

2 KENNEDY v. LOUISIANA 

Opinion of the Court 

I 

Petitioner’s crime was one that cannot be recounted in 

these pages in a way sufficient to capture in full the hurt

and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to

express by sentencing petitioner to death. At 9:18 a.m. on 

March 2, 1998, petitioner called 911 to report that his

stepdaughter, referred to here as L. H., had been raped.

He told the 911 operator that L. H. had been in the garage

while he readied his son for school. Upon hearing loud 

screaming, petitioner said, he ran outside and found L. H.

in the side yard. Two neighborhood boys, petitioner told

the operator, had dragged L. H. from the garage to the

yard, pushed her down, and raped her. Petitioner claimed 

he saw one of the boys riding away on a blue 10-speed 

bicycle.

When police arrived at petitioner’s home between 9:20 

and 9:30 a.m., they found L. H. on her bed, wearing a

T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police

he had carried her from the yard to the bathtub and then

to the bed. Consistent with this explanation, police found

a thin line of blood drops in the garage on the way to the 

house and then up the stairs. Once in the bedroom, petitioner had used a basin of water and a cloth to wipe blood 

from the victim. This later prevented medical personnel

from collecting a reliable DNA sample. 

L. H. was transported to the Children’s Hospital. An 

expert in pediatric forensic medicine testified that L. H.’s 

injuries were the most severe he had seen from a sexual

assault in his four years of practice. A laceration to the 

left wall of the vagina had separated her cervix from the 

back of her vagina, causing her rectum to protrude into

the vaginal structure. Her entire perineum was torn from

the posterior fourchette to the anus. The injuries required 

emergency surgery. 
 

 

 

Cite as: 554 U. S. ____ (2008) 3 

Opinion of the Court 

At the scene of the crime, at the hospital, and in the first 

weeks that followed, both L. H. and petitioner maintained

in their accounts to investigators that L. H. had been 

raped by two neighborhood boys. One of L. H.’s doctors 

testified at trial that L. H. told all hospital personnel the 

same version of the rape, although she reportedly told one

family member that petitioner raped her. L. H. was interviewed several days after the rape by a psychologist. The 

interview was videotaped, lasted three hours over two

days, and was introduced into evidence at trial. On the 

tape one can see that L. H. had difficulty discussing the 

subject of the rape. She spoke haltingly and with long 

pauses and frequent movement. Early in the interview,

L. H. expressed reservations about the questions being 

asked: 

“I’m going to tell the same story. They just want me

to change it. . . . They want me to say my Dad did 

it. . . . I don’t want to say it. . . . I tell them the same,

same story.” Def. Exh. D–7, 01:29:07–:36. 

She told the psychologist that she had been playing in

the garage when a boy came over and asked her about Girl

Scout cookies she was selling; and that the boy “pulled 

[her by the legs to] the backyard,” id., at 01:47:41–:52, 

where he placed his hand over her mouth, “pulled down

[her] shorts,” Def. Exh. D–8, 00:03:11–:12, and raped her, 

id., at 00:14:39–:40. 

Eight days after the crime, and despite L. H.’s insistence 

that petitioner was not the offender, petitioner was arrested for the rape. The State’s investigation had drawn

the accuracy of petitioner and L. H.’s story into question.

Though the defense at trial proffered alternative explanations, the case for the prosecution, credited by the jury,

was based upon the following evidence: An inspection of 

the side yard immediately after the assault was inconsistent with a rape having occurred there, the grass having 
 

4 KENNEDY v. LOUISIANA 

Opinion of the Court 

been found mostly undisturbed but for a small patch of 

coagulated blood. Petitioner said that one of the perpetrators fled the crime scene on a blue 10-speed bicycle but

gave inconsistent descriptions of the bicycle’s features,

such as its handlebars. Investigators found a bicycle

matching petitioner and L. H.’s description in tall grass 

behind a nearby apartment, and petitioner identified it as

the bicycle one of the perpetrators was riding. Yet its tires 

were flat, it did not have gears, and it was covered in

spider webs. In addition police found blood on the underside of L. H.’s mattress. This convinced them the rape

took place in her bedroom, not outside the house. 

Police also found that petitioner made two telephone 

calls on the morning of the rape. Sometime before 6:15 

a.m., petitioner called his employer and left a message 

that he was unavailable to work that day. Petitioner 

called back between 6:30 and 7:30 a.m. to ask a colleague 

how to get blood out of a white carpet because his daughter had “‘just become a young lady.’” Brief for Respondent

12. At 7:37 a.m., petitioner called B & B Carpet Cleaning 

and requested urgent assistance in removing bloodstains

from a carpet. Petitioner did not call 911 until about an 

hour and a half later. 

About a month after petitioner’s arrest L. H. was removed from the custody of her mother, who had maintained until that point that petitioner was not involved in 

the rape. On June 22, 1998, L. H. was returned home and 

told her mother for the first time that petitioner had raped 

her. And on December 16, 1999, about 21 months after 

the rape, L. H. recorded her accusation in a videotaped

interview with the Child Advocacy Center. 

The State charged petitioner with aggravated rape of a

child under La. Stat. Ann. §14:42 (West 1997 and Supp.

1998) and sought the death penalty. At all times relevant 

to petitioner’s case, the statute provided: 
 

 

 

Cite as: 554 U. S. ____ (2008) 5 

Opinion of the Court 

“A. Aggravated rape is a rape committed . . . where

the anal or vaginal sexual intercourse is deemed to be

without lawful consent of the victim because it is 

committed under any one or more of the following circumstances: 

. . . . . 

“(4) When the victim is under the age of twelve 

years. Lack of knowledge of the victim’s age shall not 

be a defense. 

. . . . . 

“D. Whoever commits the crime of aggravated rape 

shall be punished by life imprisonment at hard labor 

without benefit of parole, probation, or suspension of 

sentence. 

“(1) However, if the victim was under the age of

twelve years, as provided by Paragraph A(4) of this

Section: 

“(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life 

imprisonment at hard labor without benefit of parole,

probation, or suspension of sentence, in accordance

with the determination of the jury.” 

(Since petitioner was convicted and sentenced, the statute 

has been amended to include oral intercourse within the 

definition of aggravated rape and to increase the age of the 

victim from 12 to 13. See La. Stat. Ann. §14:42 (West 

Supp. 2007).)

Aggravating circumstances are set forth in La. Code

Crim. Proc. Ann., Art. 905.4 (West 1997 Supp.). In pertinent part and at all times relevant to petitioner’s case, the

provision stated: 

“A. The following shall be considered aggravating 

circumstances: 

“(1) The offender was engaged in the perpetration or 

attempted perpetration of aggravated rape, forcible 
 

 

 

 

6 KENNEDY v. LOUISIANA 

Opinion of the Court 

rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault by drive-by shooting, armed 

robbery, first degree robbery, or simple robbery. 

. . . . . 

“(10) The victim was under the age of twelve years 

or sixty-five years of age or older.” 

The trial began in August 2003. L. H. was then 13 

years old. She testified that she “‘woke up one morning 

and Patrick was on top of [her].’” She remembered petitioner bringing her “[a] cup of orange juice and pills

chopped up in it” after the rape and overhearing him on 

the telephone saying she had become a “young lady.”

2005–1981, pp. 12, 15, 16 (La. 5/22/07), 957 So. 2d 757, 

767, 769, 770. L. H. acknowledged that she had accused 

two neighborhood boys but testified petitioner told her to

say this and that it was untrue. Id., at 769. 

The jury having found petitioner guilty of aggravated

rape, the penalty phase ensued. The State presented the 

testimony of S. L., who is the cousin and goddaughter of 

petitioner’s ex-wife. S. L. testified that petitioner sexually

abused her three times when she was eight years old and 

that the last time involved sexual intercourse. Id., at 772. 

She did not tell anyone until two years later and did not 

pursue legal action.

The jury unanimously determined that petitioner should 

be sentenced to death. The Supreme Court of Louisiana 

affirmed. See id., at 779–789, 793; see also State v. Wilson, 96–1392, 96–2076 (La. 12/13/96), 685 So. 2d 1063

(upholding the constitutionality of the death penalty for 

child rape). The court rejected petitioner’s reliance on 

Coker v. Georgia, 433 U. S. 584 (1977), noting that, while 

Coker bars the use of the death penalty as punishment for 

the rape of an adult woman, it left open the question

which, if any, other nonhomicide crimes can be punished 
 

Cite as: 554 U. S. ____ (2008) 7 

Opinion of the Court 

by death consistent with the Eighth Amendment. Because 

“‘children are a class that need special protection,’” the

state court reasoned, the rape of a child is unique in terms 

of the harm it inflicts upon the victim and our society. 957 

So. 2d, at 781. 

The court acknowledged that petitioner would be the 

first person executed for committing child rape since La.

Stat. Ann. §14:42 was amended in 1995 and that Louisiana is in the minority of jurisdictions that authorize the 

death penalty for the crime of child rape. But following

the approach of Roper v. Simmons, 543 U. S. 551 (2005), 

and Atkins v. Virginia, 536 U. S. 304 (2002), it found 

significant not the “numerical counting of which [S]tates

. . . stand for or against a particular capital prosecution,”

but “the direction of change.” 957 So. 2d, at 783 (emphasis 

deleted). Since 1993, the court explained, four more 

States—Oklahoma, South Carolina, Montana, and Georgia—had capitalized the crime of child rape and at least

eight States had authorized capital punishment for other 

nonhomicide crimes. By its count, 14 of the then-38 States

permitting capital punishment, plus the Federal Government, allowed the death penalty for nonhomicide crimes

and 5 allowed the death penalty for the crime of child 

rape. See id., at 785–786. 

The state court next asked whether “child rapists rank

among the worst offenders.” Id., at 788. It noted the 

severity of the crime; that the execution of child rapists 

would serve the goals of deterrence and retribution; and

that, unlike in Atkins and Roper, there were no characteristics of petitioner that tended to mitigate his moral culpability. Id., at 788–789. It concluded: “[S]hort of firstdegree murder, we can think of no other non-homicide 

crime more deserving [of capital punishment].” Id., at 

789. 

On this reasoning the Supreme Court of Louisiana 

rejected petitioner’s argument that the death penalty for 
 

 

 

8 KENNEDY v. LOUISIANA 

Opinion of the Court 

the rape of a child under 12 years is disproportionate and

upheld the constitutionality of the statute. Chief Justice 

Calogero dissented. Coker, supra, and Eberheart v. Georgia, 433 U. S. 917 (1977), in his view, “set out a bright-line 

and easily administered rule” that the Eighth Amendment 

precludes capital punishment for any offense that does not 

involve the death of the victim. 957 So. 2d, at 794. 

We granted certiorari. See 552 U. S. ___ (2008). 

II 

The Eighth Amendment, applicable to the States 

through the Fourteenth Amendment, provides that 

“[e]xcessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.” 

The Amendment proscribes “all excessive punishments, as 

well as cruel and unusual punishments that may or may 

not be excessive.” Atkins, 536 U. S., at 311, n. 7. The 

Court explained in Atkins, id., at 311, and Roper, supra, at 

560, that the Eighth Amendment’s protection against 

excessive or cruel and unusual punishments flows from

the basic “precept of justice that punishment for [a] crime 

should be graduated and proportioned to [the] offense.” 

Weems v. United States, 217 U. S. 349, 367 (1910).

Whether this requirement has been fulfilled is determined 

not by the standards that prevailed when the Eighth 

Amendment was adopted in 1791 but by the norms that 

“currently prevail.” Atkins, supra, at 311. The Amendment “draw[s] its meaning from the evolving standards of 

decency that mark the progress of a maturing society.” 

Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion).

This is because “[t]he standard of extreme cruelty is not 

merely descriptive, but necessarily embodies a moral 

judgment. The standard itself remains the same, but its 

applicability must change as the basic mores of society 

change.” Furman v. Georgia, 408 U. S. 238, 382 (1972) 

(Burger, C. J., dissenting). 
 

 

Cite as: 554 U. S. ____ (2008) 9 

Opinion of the Court 

Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule. See Trop, 

supra, at 100 (plurality opinion). As we shall discuss, 

punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.

See Harmelin v. Michigan, 501 U. S. 957, 999 (1991) 

(KENNEDY, J., concurring in part and concurring in judgment); see also Part IV–B, infra. It is the last of these, 

retribution, that most often can contradict the law’s own 

ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital 

cases. When the law punishes by death, it risks its own 

sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

For these reasons we have explained that capital punishment must “be limited to those offenders who commit ‘a 

narrow category of the most serious crimes’ and whose 

extreme culpability makes them ‘the most deserving of 

execution.’” Roper, supra, at 568 (quoting Atkins, supra, 

at 319). Though the death penalty is not invariably unconstitutional, see Gregg v. Georgia, 428 U. S. 153 (1976),

the Court insists upon confining the instances in which 

the punishment can be imposed.

Applying this principle, we held in Roper and Atkins 

that the execution of juveniles and mentally retarded

persons are punishments violative of the Eighth Amendment because the offender had a diminished personal

responsibility for the crime. See Roper, supra, at 571–573; 

Atkins, supra, at 318, 320. The Court further has held 

that the death penalty can be disproportionate to the

crime itself where the crime did not result, or was not 

intended to result, in death of the victim. In Coker, 433 

U. S. 584, for instance, the Court held it would be unconstitutional to execute an offender who had raped an adult 

woman. See also Eberheart, supra (holding unconstitu-
 

 

10 KENNEDY v. LOUISIANA 

Opinion of the Court 

tional in light of Coker a sentence of death for the kidnaping and rape of an adult woman). And in Enmund v. 

Florida, 458 U. S. 782 (1982), the Court overturned the 

capital sentence of a defendant who aided and abetted a

robbery during which a murder was committed but did not 

himself kill, attempt to kill, or intend that a killing would 

take place. On the other hand, in Tison v. Arizona, 481 

U. S. 137 (1987), the Court allowed the defendants’ death

sentences to stand where they did not themselves kill 

the victims but their involvement in the events leading

up to the murders was active, recklessly indifferent, and

substantial. 

In these cases the Court has been guided by “objective

indicia of society’s standards, as expressed in legislative

enactments and state practice with respect to executions.” 

Roper, 543 U. S., at 563; see also Coker, supra, at 593–597 

(plurality opinion) (finding that both legislatures and 

juries had firmly rejected the penalty of death for the rape

of an adult woman); Enmund, supra, at 788 (looking to

“historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made”). The inquiry does not end 

there, however. Consensus is not dispositive. Whether 

the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by 

controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text,

history, meaning, and purpose. See id., at 797–801; 

Gregg, supra, at 182–183 (joint opinion of Stewart, Powell, 

and STEVENS, JJ.); Coker, supra, at 597–600 (plurality 

opinion).

Based both on consensus and our own independent 

judgment, our holding is 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. 
 

Cite as: 554 U. S. ____ (2008) 11 

Opinion of the Court 

III 

A 

The existence of objective indicia of consensus against 

making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow 

the approach of those cases here. The history of the death

penalty for the crime of rape is an instructive beginning 

point.

In 1925, 18 States, the District of Columbia, and the 

Federal Government had statutes that authorized the 

death penalty for the rape of a child or an adult. See 

Coker, supra, at 593 (plurality opinion). Between 1930 

and 1964, 455 people were executed for those crimes. See 

5 Historical Statistics of the United States: Earliest Times 

to the Present, pp. 5–262 to 5–263 (S. Carter et al. eds. 

2006) (Table Ec343–357). To our knowledge the last

individual executed for the rape of a child was Ronald 

Wolfe in 1964. See H. Frazier, Death Sentences in Missouri, 1803–2005: A History and Comprehensive Registry 

of Legal Executions, Pardons, and Commutations 143

(2006).

 In 1972, Furman invalidated most of the state statutes 

authorizing the death penalty for the crime of rape; and in 

Furman’s aftermath only six States reenacted their capital 

rape provisions. Three States—Georgia, North Carolina,

and Louisiana—did so with respect to all rape offenses. 

Three States—Florida, Mississippi, and Tennessee—did so

with respect only to child rape. See Coker, supra, at 594– 

595 (plurality opinion). All six statutes were later invalidated under state or federal law. See Coker, supra (striking down Georgia’s capital rape statute); Woodson v. North 

Carolina, 428 U. S. 280, 287, n. 6, 301–305 (1976) (plurality opinion) (striking down North Carolina’s mandatory 

death penalty statute); Roberts v. Louisiana, 428 U. S. 325 

(1976) (striking down Louisiana’s mandatory death penalty statute); Collins v. State, 550 S. W. 2d 643, 646 (Tenn. 
 

12 KENNEDY v. LOUISIANA 

Opinion of the Court 

1977) (striking down Tennessee’s mandatory death penalty statute); Buford v. State, 403 So. 2d 943, 951 (Fla.

1981) (holding unconstitutional the imposition of death for 

child rape); Leatherwood v. State, 548 So. 2d 389, 402–403 

(Miss. 1989) (striking down the death penalty for child 

rape on state-law grounds).

Louisiana reintroduced the death penalty for rape of a

child in 1995. See La. Stat. Ann. §14:42 (West Supp. 

1996). Under the current statute, any anal, vaginal, or

oral intercourse with a child under the age of 13 constitutes aggravated rape and is punishable by death. See La. 

Stat. Ann. §14:42 (West Supp. 2007). Mistake of age is not 

a defense, so the statute imposes strict liability in this

regard. Five States have since followed Louisiana’s lead: 

Georgia, see Ga. Code Ann. §16–6–1 (2007) (enacted 1999);

Montana, see Mont. Code Ann. §45–5–503 (2007) (enacted

1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K) (West 

2007 Supp.) (enacted 2006); South Carolina, see S. C. Code 

Ann. §16–3–655(C)(1) (Supp. 2007) (enacted 2006); and 

Texas, see Tex. Penal Code Ann. §12.42(c)(3) (West Supp.

2007) (enacted 2007); see also Tex. Penal Code Ann. 

§22.021(a) (West Supp. 2007). Four of these States’ statutes are more narrow than Louisiana’s in that only offenders with a previous rape conviction are death eligible.

See Mont. Code Ann. §45–5–503(3)(c); Okla. Stat., Tit. 10,

§7115(K); S. C. Code Ann. §16–3–655(C)(1); Tex. Penal

Code Ann. §12.42(c)(3). Georgia’s statute makes child 

rape a capital offense only when aggravating circumstances are present, including but not limited to a prior 

conviction. See Ga. Code Ann. §17–10–30 (Supp. 2007).

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal 

Death Penalty Act of 1994 expanded the number of federal 

crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did

not do the same for child rape or abuse. See 108 Stat. 
 

 

 

Cite as: 554 U. S. ____ (2008) 13 

Opinion of the Court 

1972 (codified as amended in scattered sections of 18

U. S. C.). Under 18 U. S. C. §2245, an offender is death

eligible only when the sexual abuse or exploitation results

in the victim’s death. 

Petitioner claims the death penalty for child rape is not

authorized in Georgia, pointing to a 1979 decision in

which the Supreme Court of Georgia stated that 

“[s]tatutory rape is not a capital crime in Georgia.” Presnell v. State, 243 Ga. 131, 132–133, 252 S. E. 2d 625, 626. 

But it appears Presnell was referring to the separate crime 

of statutory rape, which is not a capital offense in Georgia,

see Ga. Code Ann. §26–2018 (1969); cf. Ga. Code. Ann.

§16–6–3 (2007). The State’s current capital rape statute, 

by contrast, is explicit that the rape of “[a] female who is

less than ten years of age” is punishable “by death.” Ga. 

Code Ann. §§16–6–1(a)(2), (b) (2007). Based on a recent 

statement by the Supreme Court of Georgia it must be

assumed that this law is still in force: “Neither the United 

States Supreme Court, nor this Court, has yet addressed

whether the death penalty is unconstitutionally disproportionate for the crime of raping a child.” State v. Velazquez, 

283 Ga. 206, 208, 657 S. E. 2d 838, 840 (2008).

Respondent would include Florida among those States

that permit the death penalty for child rape. The state 

statute does authorize, by its terms, the death penalty for 

“sexual battery upon . . . a person less than 12 years of 

age.” Fla. Stat. §794.011(2) (2007); see also §921.141(5) 

(2007). In 1981, however, the Supreme Court of Florida 

held the death penalty for child sexual assault to be unconstitutional. See Buford, supra. It acknowledged that 

Coker addressed only the constitutionality of the death

penalty for rape of an adult woman, 403 So. 2d, at 950, but 

held that “[t]he reasoning of the justices in Coker . . . 

compels [the conclusion] that a sentence of death is grossly

disproportionate and excessive punishment for the crime 

of sexual assault and is therefore forbidden by the Eighth 
 

14 KENNEDY v. LOUISIANA 

Opinion of the Court 

Amendment as cruel and unusual punishment,” id., at 

951. Respondent points out that the state statute has not 

since been amended. Pursuant to Fla. Stat. §775.082(2)

(2007), however, Florida state courts have understood 

Buford to bind their sentencing discretion in child rape 

cases. See, e.g., Gibson v. State, 721 So. 2d 363, 367, and 

n. 2 (Fla. App. 1998) (deeming it irrelevant that “the Florida Legislature never changed the wording of the sexual 

battery statute”); Cooper v. State, 453 So. 2d 67 (Fla. App. 

1984) (“After Buford, death was no longer a possible penalty in Florida for sexual battery”); see also Fla. Stat. 

§775.082(2) (“In the event the death penalty in a capital

felony is held to be unconstitutional by the Florida Supreme Court . . . the court having jurisdiction over a person previously sentenced to death for a capital felony . . . 

shall sentence such person to life imprisonment”).

Definitive resolution of state-law issues is for the States’ 

own courts, and there may be disagreement over the 

statistics. It is further true that some States, including

States that have addressed the issue in just the last few 

years, have made child rape a capital offense. The summary recited here, however, does allow us to make certain

comparisons with the data cited in the Atkins, Roper, and 

Enmund cases. 

When Atkins was decided in 2002, 30 States, including 

12 noncapital jurisdictions, prohibited the death penalty

for mentally retarded offenders; 20 permitted it. See 536 

U. S., at 313–315. When Roper was decided in 2005, the 

numbers disclosed a similar division among the States: 30

States prohibited the death penalty for juveniles, 18 of 

which permitted the death penalty for other offenders; and 

20 States authorized it. See 543 U. S., at 564. Both in 

Atkins and in Roper, we noted that the practice of executing mentally retarded and juvenile offenders was infrequent. Only five States had executed an offender known 

to have an IQ below 70 between 1989 and 2002, see At-
 

 

Cite as: 554 U. S. ____ (2008) 15 

Opinion of the Court 

kins, supra, at 316; and only three States had executed a

juvenile offender between 1995 and 2005, see Roper, supra, at 564–565. 

The statistics in Enmund bear an even greater similarity to the instant case. There eight jurisdictions had 

authorized imposition of the death penalty solely for participation in a robbery during which an accomplice committed murder, see 458 U. S., at 789, and six defendants 

between 1954 and 1982 had been sentenced to death for 

felony murder where the defendant did not personally 

commit the homicidal assault, id., at 794. These facts, the 

Court concluded, “weigh[ed] on the side of rejecting capital 

punishment for the crime.” Id., at 793. 

The evidence of a national consensus with respect to the

death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony

murderers, shows divided opinion but, on balance, an 

opinion against it. Thirty-seven jurisdictions—36 States

plus the Federal Government—have the death penalty.

As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our

review of national consensus is not confined to tallying the 

number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner 

could not be executed for child rape of any kind. That 

number surpasses the 30 States in Atkins and Roper and 

the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered. 

B 

At least one difference between this case and our Eighth

Amendment proportionality precedents must be addressed. Respondent and its amici suggest that some 

States have an “erroneous understanding of this Court’s 

Eighth Amendment jurisprudence.” Brief for Missouri 

Governor Matt Blunt et al. as Amici Curiae 10. They 
 

16 KENNEDY v. LOUISIANA 

Opinion of the Court 

submit that the general propositions set out in Coker, 

contrasting murder and rape, have been interpreted in too 

expansive a way, leading some state legislatures to conclude that Coker applies to child rape when in fact its

reasoning does not, or ought not, apply to that specific 

crime. 

This argument seems logical at first, but in the end it is 

unsound. In Coker, a four-Member plurality of the Court,

plus Justice Brennan and Justice Marshall in concurrence,

held that a sentence of death for the rape of a 16-year-old 

woman, who was a minor under Georgia law, see Ga. Code 

Ann. §74–104 (1973), yet was characterized by the Court 

as an adult, was disproportionate and excessive under the

Eighth Amendment. See 433 U. S., at 593–600; see also 

id., at 600 (Brennan, J., concurring in judgment); ibid. 

(Marshall, J., concurring in judgment). (The Court did not 

explain why the 16-year-old victim qualified as an adult,

but it may be of some significance that she was married, 

had a home of her own, and had given birth to a son three 

weeks prior to the rape. See Brief for Petitioner in Coker 

v. Georgia, O. T. 1976, No. 75–5444, pp. 14–15.) 

The plurality noted that only one State had a valid

statute authorizing the death penalty for adult rape and 

that “in the vast majority of cases, at least 9 out of 10,

juries ha[d] not imposed the death sentence.” Coker, 433 

U. S., at 597; see also id., at 594 (“Of the 16 States in

which rape had been a capital offense, only three provided 

the death penalty for rape of an adult woman in their 

revised statutes—Georgia, North Carolina, and Louisiana. 

In the latter two States, the death penalty was mandatory

for those found guilty, and those laws were invalidated by 

Woodson and Roberts”). This “history and . . . objective 

evidence of the country’s present judgment concerning the

acceptability of death as a penalty for rape of an adult 

woman,” id., at 593, confirmed the Court’s independent 

judgment that punishing adult rape by death was not 
 

 

Cite as: 554 U. S. ____ (2008) 17 

Opinion of the Court 

proportional: 

“Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the 

injury to the person and to the public, it does not compare with murder, which does involve the unjustified 

taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of . . . another person. The murderer 

kills; the rapist, if no more than that, does not. . . . We 

have the abiding conviction that the death penalty, 

which ‘is unique in its severity and irrevocability,’ 

Gregg v. Georgia, 428 U. S., at 187, is an excessive 

penalty for the rapist who, as such, does not take human life.” Id., at 598 (footnote omitted). 

Confined to this passage, Coker’s analysis of the Eighth

Amendment is susceptible of a reading that would prohibit

making child rape a capital offense. In context, however, 

Coker’s holding was narrower than some of its language 

read in isolation. The Coker plurality framed the question

as whether, “with respect to rape of an adult woman,” the 

death penalty is disproportionate punishment. Id., at 592. 

And it repeated the phrase “an adult woman” or “an adult

female” in discussing the act of rape or the victim of rape

eight times in its opinion. See Coker, supra. The distinction between adult and child rape was not merely rhetorical; it was central to the Court’s reasoning. The opinion

does not speak to the constitutionality of the death penalty

for child rape, an issue not then before the Court. In 

discussing the legislative background, for example, the 

Court noted: 

“Florida, Mississippi, and Tennessee also authorized 

the death penalty in some rape cases, but only where

the victim was a child and the rapist an adult. The 

Tennessee statute has since been invalidated because 

the death sentence was mandatory. The upshot is 
 

18 KENNEDY v. LOUISIANA 

Opinion of the Court 

that Georgia is the sole jurisdiction in the United 

States at the present time that authorizes a sentence 

of death when the rape victim is an adult woman, and 

only two other jurisdictions provide capital punishment when the victim is a child. . . . [This] obviously 

weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an

adult woman.” Id., at 595–596 (citation and footnote

omitted). 

Still, respondent contends, it is possible that state legislatures have understood Coker to state a broad rule that 

covers the situation of the minor victim as well. We see 

little evidence of this. Respondent cites no reliable data to

indicate that state legislatures have read Coker to bar 

capital punishment for child rape and, for this reason, 

have been deterred from passing applicable death penalty 

legislation. In the absence of evidence from those States 

where legislation has been proposed but not enacted we 

refuse to speculate about the motivations and concerns of

particular state legislators. 

The position of the state courts, furthermore, to which 

state legislators look for guidance on these matters, indicates that Coker has not blocked the emergence of legislative consensus. The state courts that have confronted the 

precise question before us have been uniform in concluding that Coker did not address the constitutionality of the

death penalty for the crime of child rape. See, e.g., Wilson, 

685 So. 2d, at 1066 (upholding the constitutionality of the 

death penalty for rape of a child and noting that “[t]he

plurality [in Coker] took great pains in referring only to

the rape of adult women throughout their opinion” (emphasis deleted)); Upshaw v. State, 350 So. 2d 1358, 1360 

(Miss. 1977) (“In Coker the Court took great pains to limit

its decision to the applicability of the death penalty for the 

rape of an adult woman. . . . As we view Coker the Court 
 

 

Cite as: 554 U. S. ____ (2008) 19 

Opinion of the Court 

carefully refrained from deciding whether the death penalty for the rape of a female child under the age of twelve 

years is grossly disproportionate to the crime”). See also 

Simpson v. Owens, 207 Ariz. 261, 268, n. 8, 85 P. 3d 478, 

485, n. 8 (App. 2004) (addressing the denial of bail for 

sexual offenses against children and noting that 

“[a]lthough the death penalty was declared in a plurality 

opinion of the United States Supreme Court to be a disproportionate punishment for the rape of an adult woman

. . . the rape of a child remains a capital offense in some

states”); People v. Hernandez, 30 Cal. 4th 835, 869, 69 

P. 3d 446, 466 (2003) (addressing the death penalty for 

conspiracy to commit murder and noting that “the constitutionality of laws imposing the death penalty for crimes 

not necessarily resulting in death is unresolved”). 

There is, to be sure, some contrary authority contained 

in various state-court opinions. But it is either dicta, see 

State v. Barnum, 921 So. 2d 513, 526 (Fla. 2005) (addressing the retroactivity of Thompson v. State, 695 So. 2d 691 

(Fla. 1997)); State v. Coleman, 185 Mont. 299, 327, 605 

P. 2d 1000, 1017 (1979) (upholding the defendant’s death

sentence for aggravated kidnaping); State v. Gardner, 947 

P. 2d 630, 653 (Utah 1997) (addressing the constitutionality of the death penalty for prison assaults); equivocal in 

its conclusion, see People v. Huddleston, 212 Ill. 2d 107, 

141, 816 N. E. 2d 322, 341–342 (2004) (citing law review 

articles for the proposition that the constitutionality of the 

death penalty for nonhomicide crimes “is the subject of

debate”); or from a decision of a state intermediate court 

that has been superseded by a more specific statement of 

the law by the State’s supreme court, compare, e.g., Parker 

v. State, 216 Ga. App. 649, 650, n. 1, 455 S. E. 2d 360, 361, 

n. 1 (1995) (characterizing Coker as holding that the death 

penalty “is no longer permitted for rape where the victim 

is not killed”), with Velazquez, 283 Ga., at 208, 657 S. E. 

2d, at 840 (“[T]he United States Supreme Court . . . has 
 

20 KENNEDY v. LOUISIANA 

Opinion of the Court 

yet [to] addres[s] whether the death penalty is unconstitutionally disproportionate for the crime of raping a child”).

The Supreme Court of Florida’s opinion in Buford could 

be read to support respondent’s argument. But even there 

the state court recognized that “[t]he [Supreme] Court has

yet to decide whether [Coker’s rationale] holds true for the 

rape of a child” and made explicit that it was extending 

the reasoning but not the holding of Coker in striking 

down the death penalty for child rape. 403 So. 2d, at 950, 

951. The same is true of the Supreme Court of California’s 

opinion in Hernandez, supra, at 867, 69 P. 3d, at 464. 

We conclude on the basis of this review that there is no 

clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape

is unconstitutional. The small number of States that have 

enacted this penalty, then, is relevant to determining

whether there is a consensus against capital punishment 

for this crime. 

C 

Respondent insists that the six States where child rape

is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of 

the death penalty for child rape. Consistent change might

counterbalance an otherwise weak demonstration of consensus. See Atkins, 536 U. S., at 315 (“It is not so much 

the number of these States that is significant, but the

consistency of the direction of change”); Roper, 543 U. S., 

at 565 (“Impressive in Atkins was the rate of abolition of 

the death penalty for the mentally retarded”). But whatever the significance of consistent change where it is cited 

to show emerging support for expanding the scope of the

death penalty, no showing of consistent change has been

made in this case. 

Respondent and its amici identify five States where, in 
 

Cite as: 554 U. S. ____ (2008) 21 

Opinion of the Court 

their view, legislation authorizing capital punishment for 

child rape is pending. See Brief for Missouri Governor 

Matt Blunt et al. as Amici Curiae 2, 14. It is not our 

practice, nor is it sound, to find contemporary norms based

upon state legislation that has been proposed but not yet 

enacted. There are compelling reasons not to do so here. 

Since the briefs were submitted by the parties, legislation

in two of the five States has failed. See, e.g., S. 195, 66th 

Gen. Assembly, 2d Reg. Sess. (Colo. 2008) (rejected by 

Senate Appropriations Committee on Apr. 11, 2008);

S. 2596, 2008 Leg., Reg. Sess. (Miss. 2008) (rejected by 

House Committee on Mar. 18, 2008). In Tennessee, the 

house bills were rejected almost a year ago, and the senate 

bills appear to have died in committee. See H. R. 601, 

105th Gen. Assembly, 1st Reg. Sess. (2007) (taken off 

Subcommittee Calendar on Apr. 4, 2007); H. R. 662, ibid. 

(failed for lack of second on Mar. 21, 2007); H. R. 1099, 

ibid. (taken off notice for Judiciary Committee calendar on 

May 16, 2007); S. 22, ibid. (referred to General Subcommittee of Senate Finance, Ways, and Means Committee on

June 11, 2007); S. 157, ibid. (referred to Senate Judiciary

Committee on Feb. 7, 2007; action deferred until Jan. 

2008); S. 841, ibid. (referred to General Subcommittee of

Senate Judiciary Committee on Mar. 27, 2007). In Alabama, the recent legislation is similar to a bill that failed

in 2007. Compare H. R. 456, 2008 Leg., Reg. Sess. (2008),

with H. R. 335, 2007 Leg., Reg. Sess. (2007). And in Missouri, the 2008 legislative session has ended, tabling the 

pending legislation. See Mo. Const., Art. III, §20(a). 

Aside from pending legislation, it is true that in the last 

13 years there has been change towards making child rape 

a capital offense. This is evidenced by six new death 

penalty statutes, three enacted in the last two years. But 

this showing is not as significant as the data in Atkins, 

where 18 States between 1986 and 2001 had enacted 

legislation prohibiting the execution of mentally retarded 
 

22 KENNEDY v. LOUISIANA 

Opinion of the Court 

persons. See Atkins, supra, at 313–315. Respondent

argues the instant case is like Roper because, there, only

five States had shifted their positions between 1989 and 

2005, one less State than here. See Roper, supra, at 565. 

But in Roper, we emphasized that, though the pace of 

abolition was not as great as in Atkins, it was counterbalanced by the total number of States that had recognized 

the impropriety of executing juvenile offenders. See 543 

U. S., at 566–567. When we decided Stanford v. Kentucky, 

492 U. S. 361 (1989), 12 death penalty States already 

prohibited the execution of any juvenile under 18, and 15

prohibited the execution of any juvenile under 17. See 

Roper, supra, at 566–567 (“If anything, this shows that the

impropriety of executing juveniles between 16 and 18

years of age gained wide recognition earlier”). Here, the 

total number of States to have made child rape a capital

offense after Furman is six. This is not an indication of a 

trend or change in direction comparable to the one supported by data in Roper. The evidence here bears a closer 

resemblance to the evidence of state activity in Enmund, 

where we found a national consensus against the death

penalty for vicarious felony murder despite eight jurisdictions having authorized the practice. See 458 U. S., at 

789, 792. 

D 

There are measures of consensus other than legislation. 

Statistics about the number of executions may inform the 

consideration whether capital punishment for the crime of

child rape is regarded as unacceptable in our society. See, 

e.g., id., at 794–795; Roper, supra, at 564–565; Atkins, 

supra, at 316; Cf. Coker, 433 U. S., at 596–597 (plurality 

opinion). These statistics confirm our determination from 

our review of state statutes that there is a social consensus against the death penalty for the crime of child rape. 

Nine States—Florida, Georgia, Louisiana, Mississippi, 
 

Cite as: 554 U. S. ____ (2008) 23 

Opinion of the Court 

Montana, Oklahoma, South Carolina, Tennessee, and 

Texas—have permitted capital punishment for adult or

child rape for some length of time between the Court’s

1972 decision in Furman and today. See supra, at 12; 

Coker, supra, at 595 (plurality opinion). Yet no individual 

has been executed for the rape of an adult or child since

1964, and no execution for any other nonhomicide offense

has been conducted since 1963. See Historical Statistics of 

the United States, at 5–262 to 5–263 (Table Ec343–357). 

Cf. Thompson v. Oklahoma, 487 U. S. 815, 852–853 (1988) 

(O’Connor, J., concurring in judgment) (that “four decades

have gone by since the last execution of a defendant who 

was younger than 16 at the time of the offense . . . support[s] the inference of a national consensus opposing the 

death penalty for 15-year-olds”). 

Louisiana is the only State since 1964 that has sentenced an individual to death for the crime of child rape; 

and petitioner and Richard Davis, who was convicted and 

sentenced to death for the aggravated rape of a 5-year-old 

child by a Louisiana jury in December 2007, see State v. 

Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish, 

La.) (cited in Brief for Respondent 42, and n. 38), are the

only two individuals now on death row in the United

States for a nonhomicide offense. 

After reviewing the authorities informed by contemporary norms, including the history of the death penalty for 

this and other nonhomicide crimes, current state statutes 

and new enactments, and the number of executions since 

1964, we conclude there is a national consensus against 

capital punishment for the crime of child rape. 

IV 

A 

As we have said in other Eighth Amendment cases, 

objective evidence of contemporary values as it relates to

punishment for child rape is entitled to great weight, but 
 

24 KENNEDY v. LOUISIANA 

Opinion of the Court 

it does not end our inquiry. “[T]he Constitution contemplates that in the end our own judgment will be brought to 

bear on the question of the acceptability of the death 

penalty under the Eighth Amendment.” Coker, supra, at 

597 (plurality opinion); see also Roper, supra, at 563; 

Enmund, supra, at 797 (“[I]t is for us ultimately to judge 

whether the Eighth Amendment permits imposition of the 

death penalty”). We turn, then, to the resolution of the 

question before us, which is informed by our precedents

and our own understanding of the Constitution and the 

rights it secures. 

It must be acknowledged that there are moral grounds

to question a rule barring capital punishment for a crime 

against an individual that did not result in death. These 

facts illustrate the point. Here the victim’s fright, the

sense of betrayal, and the nature of her injuries caused 

more prolonged physical and mental suffering than, say, a

sudden killing by an unseen assassin. The attack was not 

just on her but on her childhood. For this reason, we 

should be most reluctant to rely upon the language of the 

plurality in Coker, which posited that, for the victim of 

rape, “life may not be nearly so happy as it was” but it is

not beyond repair. 433 U. S., at 598. Rape has a permanent psychological, emotional, and sometimes physical 

impact on the child. See C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2–24, 111–112 (1990); 

Finkelhor & Browne, Assessing the Long-Term Impact of 

Child Sexual Abuse: A Review and Conceptualization in 

Handbook on Sexual Abuse of Children 55–60 (L. Walker

ed. 1988). We cannot dismiss the years of long anguish

that must be endured by the victim of child rape. 

It does not follow, though, that capital punishment is a

proportionate penalty for the crime. The constitutional 

prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish “be 

exercised within the limits of civilized standards.” Trop, 
 

Cite as: 554 U. S. ____ (2008) 25 

Opinion of the Court 

356 U. S., at 99, 100 (plurality opinion). Evolving standards of decency that mark the progress of a maturing

society counsel us to be most hesitant before interpreting

the Eighth Amendment to allow the extension of the death 

penalty, a hesitation that has special force where no life 

was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes

respect for the individual and thus moderation or restraint 

in the application of capital punishment. See id., at 100. 

To date the Court has sought to define and implement 

this principle, for the most part, in cases involving capital 

murder. One approach has been to insist upon general

rules that ensure consistency in determining who receives

a death sentence. See California v. Brown, 479 U. S. 538, 

541 (1987) (“[D]eath penalty statutes [must] be structured 

so as to prevent the penalty from being administered in an

arbitrary and unpredictable fashion” (citing Gregg, 428 

U. S. 153; Furman, 408 U. S. 238)); Godfrey v. Georgia, 

446 U. S. 420, 428 (1980) (plurality opinion) (requiring a 

State to give narrow and precise definition to the aggravating factors that warrant its imposition). At the same 

time the Court has insisted, to ensure restraint and moderation in use of capital punishment, on judging the 

“character and record of the individual offender and the 

circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the 

penalty of death.” Woodson, 428 U. S., at 304 (plurality 

opinion); Lockett v. Ohio, 438 U. S. 586, 604–605 (1978) 

(plurality opinion).

The tension between general rules and case-specific

circumstances has produced results not all together satisfactory. See Tuilaepa v. California, 512 U. S. 967, 973 

(1994) (“The objectives of these two inquiries can be in

some tension, at least when the inquiries occur at the 

same time”); Walton v. Arizona, 497 U. S. 639, 664–665 

(1990) (SCALIA, J., concurring in part and concurring in 
 

26 KENNEDY v. LOUISIANA 

Opinion of the Court 

judgment) (“The latter requirement quite obviously destroys whatever rationality and predictability the former

requirement was designed to achieve”). This has led some 

Members of the Court to say we should cease efforts to

resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. See id., at 667– 

673 (advocating that the Court adhere to the Furman line 

of cases and abandon the Woodson-Lockett line of cases).

For others the failure to limit these same imprecisions by

stricter enforcement of narrowing rules has raised doubts

concerning the constitutionality of capital punishment 

itself. See Baze v. Rees, 553 U. S. ___, ___–___ (2008) (slip 

op., at 13–17) (STEVENS, J., concurring in judgment); 

Furman, supra, at 310–314 (White, J., concurring); Callins 

v. Collins, 510 U. S. 1141, 1144–1145 (1994) (Blackmun,

J., dissenting from denial of certiorari).

Our response to this case law, which is still in search of 

a unifying principle, has been to insist upon confining the 

instances in which capital punishment may be imposed. 

See Gregg, supra, at 187, 184 (joint opinion of Stewart, 

Powell, and STEVENS, JJ.) (because “death as a punishment is unique in its severity and irrevocability,” capital

punishment must be reserved for those crimes that are “so

grievous an affront to humanity that the only adequate

response may be the penalty of death” (citing in part 

Furman, 408 U. S., at 286–291 (Brennan, J., concurring); 

id., at 306 (Stewart, J., concurring))); see also Roper, 543 

U. S., at 569 (the Eighth Amendment requires that “the 

death penalty is reserved for a narrow category of crimes 

and offenders”).

Our concern here is limited to crimes against individual 

persons. We do not address, for example, crimes defining 

and punishing treason, espionage, terrorism, and drug

kingpin activity, which are offenses against the State. As 

it relates to crimes against individuals, though, the death

penalty should not be expanded to instances where the 
 

Cite as: 554 U. S. ____ (2008) 27 

Opinion of the Court 

victim’s life was not taken. We said in Coker of adult rape: 

“We do not discount the seriousness of rape as a 

crime. It is highly reprehensible, both in a moral 

sense and in its almost total contempt for the personal 

integrity and autonomy of the female victim . . . . 

Short of homicide, it is the ‘ultimate violation of 

self.’ . . . [But] [t]he murderer kills; the rapist, if no 

more than that, does not. . . . We have the abiding

conviction that the death penalty, which ‘is unique in

its severity and irrevocability,’ is an excessive penalty 

for the rapist who, as such, does not take human life.” 

433 U. S., at 597–598 (plurality opinion) (citation 

omitted). 

The same distinction between homicide and other serious violent offenses against the individual informed the

Court’s analysis in Enmund, 458 U. S. 782, where the 

Court held that the death penalty for the crime of vicarious felony murder is disproportionate to the offense. The 

Court repeated there the fundamental, moral distinction 

between a “murderer” and a “robber,” noting that while 

“robbery is a serious crime deserving serious punishment,” 

it is not like death in its “severity and irrevocability.” Id., 

at 797 (internal quotation marks omitted).

Consistent with evolving standards of decency and the

teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a

distinction between intentional first-degree murder on the

one hand and nonhomicide crimes against individual

persons, even including child rape, on the other. The 

latter crimes may be devastating in their harm, as here,

but “in terms of moral depravity and of the injury to the

person and to the public,” Coker, 433 U. S., at 598 (plurality opinion), they cannot be compared to murder in their 

“severity and irrevocability.” Ibid. 

In reaching our conclusion we find significant the num-
 

28 KENNEDY v. LOUISIANA 

Opinion of the Court 

ber of executions that would be allowed under respondent’s approach. The crime of child rape, considering its 

reported incidents, occurs more often than first-degree

murder. Approximately 5,702 incidents of vaginal, anal, 

or oral rape of a child under the age of 12 were reported 

nationwide in 2005; this is almost twice the total incidents 

of intentional murder for victims of all ages (3,405) reported during the same period. See Inter-University

Consortium for Political and Social Research, National 

Incident-Based Reporting System, 2005, Study No. 4720,

http://www.icpsr.umich.edu (as visited June 12, 2008, and 

available in Clerk of Court’s case file). Although we have

no reliable statistics on convictions for child rape, we can 

surmise that, each year, there are hundreds, or more, of 

these convictions just in jurisdictions that permit capital 

punishment. Cf. Brief for Louisiana Association of Criminal Defense Lawyers et al. as Amici Curiae 1–2, and n. 2 

(noting that there are now at least 70 capital rape indictments pending in Louisiana and estimating the actual 

number to be over 100). As a result of existing rules, see 

generally Godfrey, 446 U. S., at 428–433 (plurality opinion), only 2.2% of convicted first-degree murderers are 

sentenced to death, see Blume, Eisenberg, & Wells, Explaining Death Row’s Population and Racial Composition, 

1 J. of Empirical Legal Studies 165, 171 (2004). But under 

respondent’s approach, the 36 States that permit the

death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This 

could not be reconciled with our evolving standards of 

decency and the necessity to constrain the use of the death 

penalty.

It might be said that narrowing aggravators could be 

used in this context, as with murder offenses, to ensure 

the death penalty’s restrained application. We find it 

difficult to identify standards that would guide the decisionmaker so the penalty is reserved for the most severe 
 

Cite as: 554 U. S. ____ (2008) 29 

Opinion of the Court 

cases of child rape and yet not imposed in an arbitrary 

way. Even were we to forbid, say, the execution of firsttime child rapists, see supra at 12, or require as an aggravating factor a finding that the perpetrator’s instant rape

offense involved multiple victims, the jury still must balance, in its discretion, those aggravating factors against 

mitigating circumstances. In this context, which involves 

a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition

of the death penalty would not be so arbitrary as to be

“freakis[h],” Furman, 408 U. S., at 310 (Stewart, J., concurring). We cannot sanction this result when the harm to 

the victim, though grave, cannot be quantified in the same

way as death of the victim.

It is not a solution simply to apply to this context the

aggravating factors developed for capital murder. The 

Court has said that a State may carry out its obligation to 

ensure individualized sentencing in capital murder cases 

by adopting sentencing processes that rely upon the jury

to exercise wide discretion so long as there are narrowing 

factors that have some “‘common-sense core of meaning 

. . . that criminal juries should be capable of understanding.’” Tuilaepa, 512 U. S., at 975 (quoting Jurek v. Texas, 

428 U. S. 262, 279 (1976) (White, J., concurring in judgment)). The Court, accordingly, has upheld the constitutionality of aggravating factors ranging from whether the 

defendant was a “‘cold-blooded, pitiless slayer,’” Arave v. 

Creech, 507 U. S. 463, 471–474 (1993), to whether the 

“perpetrator inflict[ed] mental anguish or physical abuse

before the victim’s death,” Walton, 497 U. S., at 654, to 

whether the defendant “‘would commit criminal acts of 

violence that would constitute a continuing threat to 

society,’” Jurek, supra, at 269-270, 274–276 (joint opinion

of Stewart, Powell, and STEVENS, JJ.). All of these standards have the potential to result in some inconsistency of 

application. 
 

 

 

30 KENNEDY v. LOUISIANA 

Opinion of the Court 

As noted above, the resulting imprecision and the tension between evaluating the individual circumstances and

consistency of treatment have been tolerated where the

victim dies. It should not be introduced into our justice

system, though, where death has not occurred.

Our concerns are all the more pronounced where, as 

here, the death penalty for this crime has been most infrequent. See Part III–D, supra. We have developed a foundational jurisprudence in the case of capital murder to 

guide the States and juries in imposing the death penalty.

Starting with Gregg, 428 U. S. 153, we have spent more

than 32 years articulating limiting factors that channel 

the jury’s discretion to avoid the death penalty’s arbitrary

imposition in the case of capital murder. Though that

practice remains sound, beginning the same process for 

crimes for which no one has been executed in more than 

40 years would require experimentation in an area where 

a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime

that seeks to expand the death penalty to an area where

standards to confine its use are indefinite and obscure. 

B 

Our decision is consistent with the justifications offered 

for the death penalty. Gregg instructs that capital punishment is excessive when it is grossly out of proportion to 

the crime or it does not fulfill the two distinct social purposes served by the death penalty: retribution and deterrence of capital crimes. See id., at 173, 183, 187 (joint

opinion of Stewart, Powell, and STEVENS, JJ.); see also 

Coker, 433 U. S., at 592 (plurality opinion) (“A punishment 

might fail the test on either ground”).

 As in Coker, here it cannot be said with any certainty

that the death penalty for child rape serves no deterrent

or retributive function. See id., at 593, n. 4 (concluding 
 

Cite as: 554 U. S. ____ (2008) 31 

Opinion of the Court 

that the death penalty for rape might serve “legitimate

ends of punishment” but nevertheless is disproportionate

to the crime). Cf. Gregg, supra, at 185–186 (joint opinion 

of Stewart, Powell, and STEVENS, JJ.) (“[T]here is no 

convincing empirical evidence either supporting or refuting th[e] view [that the death penalty serves as a significantly greater deterrent than lesser penalties]. We may

nevertheless assume safely that there are murderers . . . 

for whom . . . the death penalty undoubtedly is a significant deterrent”); id., at 186 (the value of capital punishment, and its contribution to acceptable penological goals,

typically is a “complex factual issue the resolution of

which properly rests with the legislatures”). This argument does not overcome other objections, however. The 

incongruity between the crime of child rape and the 

harshness of the death penalty poses risks of overpunishment and counsels against a constitutional ruling that the 

death penalty can be expanded to include this offense.

The goal of retribution, which reflects society’s and the

victim’s interests in seeing that the offender is repaid for 

the hurt he caused, see Atkins, 536 U. S., at 319; Furman, 

supra, at 308 (Stewart, J., concurring), does not justify the 

harshness of the death penalty here. In measuring retribution, as well as other objectives of criminal law, it is

appropriate to distinguish between a particularly depraved murder that merits death as a form of retribution

and the crime of child rape. See Part IV–A, supra; Coker, 

supra, at 597–598 (plurality opinion). 

There is an additional reason for our conclusion that 

imposing the death penalty for child rape would not further retributive purposes. In considering whether retribution is served, among other factors we have looked to

whether capital punishment “has the potential . . . to allow 

the community as a whole, including the surviving family

and friends of the victim, to affirm its own judgment that 

the culpability of the prisoner is so serious that the ulti-
 

 

32 KENNEDY v. LOUISIANA 

Opinion of the Court 

mate penalty must be sought and imposed.” Panetti v. 

Quarterman, 551 U. S. ___, ____ (2007) (slip op., at 26). In 

considering the death penalty for nonhomicide offenses

this inquiry necessarily also must include the question

whether the death penalty balances the wrong to the 

victim. Cf. Roper, 543 U. S., at 571. 

It is not at all evident that the child rape victim’s hurt is

lessened when the law permits the death of the perpetrator. Capital cases require a long-term commitment by

those who testify for the prosecution, especially when guilt 

and sentencing determinations are in multiple proceedings. In cases like this the key testimony is not just from 

the family but from the victim herself. During formative 

years of her adolescence, made all the more daunting for

having to come to terms with the brutality of her experience, L. H. was required to discuss the case at length with

law enforcement personnel. In a public trial she was 

required to recount once more all the details of the crime

to a jury as the State pursued the death of her stepfather. 

Cf. G. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 50, 62, 72 

(1992); Brief for National Association of Social Workers

et al. as Amici Curiae 17–21. And in the end the State 

made L. H. a central figure in its decision to seek the 

death penalty, telling the jury in closing statements: “[L.

H.] is asking you, asking you to set up a time and place 

when he dies.” Tr. 121 (Aug. 26, 2003).

Society’s desire to inflict the death penalty for child rape

by enlisting the child victim to assist it over the course of

years in asking for capital punishment forces a moral 

choice on the child, who is not of mature age to make that

choice. The way the death penalty here involves the child 

victim in its enforcement can compromise a decent legal

system; and this is but a subset of fundamental difficulties 

capital punishment can cause in the administration and 

enforcement of laws proscribing child rape. 
 

Cite as: 554 U. S. ____ (2008) 33 

Opinion of the Court 

There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the

constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” 

in some child rape cases. Atkins, supra, at 321. See also 

Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 5–17. This undermines, at 

least to some degree, the meaningful contribution of the 

death penalty to legitimate goals of punishment. Studies 

conclude that children are highly susceptible to suggestive

questioning techniques like repetition, guided imagery,

and selective reinforcement. See Ceci & Friedman, The 

Suggestibility of Children: Scientific Research and Legal 

Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is

“strong evidence that children, especially young children, 

are suggestible to a significant degree—even on abuserelated questions”); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 

Through 2003, 95 J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care 

Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and 

False Reports of Body Touch, 12 Child Maltreatment 60, 

61–66 (2007) (finding that 4- to 7-year-olds “were able to

maintain [a] lie about body touch fairly effectively when

asked repeated, direct questions during a mock forensic 

interview”).

Similar criticisms pertain to other cases involving child

witnesses; but child rape cases present heightened concerns because the central narrative and account of the 

crime often comes from the child herself. She and the 

accused are, in most instances, the only ones present when 

the crime was committed. See Pennsylvania v. Ritchie, 

480 U. S. 39, 60 (1987). Cf. Goodman, Testifying in 

Criminal Court, at 118. And the question in a capital case 
 

34 KENNEDY v. LOUISIANA 

Opinion of the Court 

is not just the fact of the crime, including, say, proof of 

rape as distinct from abuse short of rape, but details bearing upon brutality in its commission. These matters are 

subject to fabrication or exaggeration, or both. See Ceci 

and Friedman, supra; Quas, supra. Although capital 

punishment does bring retribution, and the legislature

here has chosen to use it for this end, its judgment must

be weighed, in deciding the constitutional question,

against the special risks of unreliable testimony with

respect to this crime. 

With respect to deterrence, if the death penalty adds to

the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem 

with respect to child sexual abuse. See Hanson, Resnick, 

Saunders, Kilpatrick, & Best, Factors Related to the Reporting of Childhood Rape, 23 Child Abuse & Neglect 559,

564 (1999) (finding that about 88% of female rape victims 

under the age of 18 did not disclose their abuse to authorities); Smith et al., Delay in Disclosure of Childhood Rape: 

Results From A National Survey, 24 Child Abuse & Neglect 273, 278–279 (2000) (finding that 72% of women 

raped as children disclosed their abuse to someone, but 

that only 12% of the victims reported the rape to authorities). Although we know little about what differentiates 

those who report from those who do not report, see Hanson, supra, at 561, one of the most commonly cited reasons 

for nondisclosure is fear of negative consequences for the 

perpetrator, a concern that has special force where the

abuser is a family member, see Goodman-Brown, Edelstein, Goodman, Jones, & Gordon, Why Children Tell: A 

Model of Children’s Disclosure of Sexual Abuse, 27 Child 

Abuse & Neglect 525, 527–528 (2003); Smith, supra, at 

283–284 (finding that, where there was a relationship 

between perpetrator and victim, the victim was likely to

keep the abuse a secret for a longer period of time, perhaps because of a “greater sense of loyalty or emotional 
 

Cite as: 554 U. S. ____ (2008) 35 

Opinion of the Court 

bond”); Hanson, supra, at 565–566, and Table 3 (finding

that a “significantly greater proportion of reported than

nonreported cases involved a stranger”); see also Ritchie, 

supra, at 60. The experience of the amici who work with 

child victims indicates that, when the punishment is

death, both the victim and the victim’s family members 

may be more likely to shield the perpetrator from discovery, thus increasing underreporting. See Brief for National Association of Social Workers et al. as Amici Curiae 

11–13. As a result, punishment by death may not result 

in more deterrence or more effective enforcement. 

In addition, by in effect making the punishment for 

child rape and murder equivalent, a State that punishes

child rape by death may remove a strong incentive for the

rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty 

on grounds of deterrence, the penalty in some respects

gives less protection, not more, to the victim, who is often 

the sole witness to the crime. See Rayburn, Better Dead

Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital

Rape Statutes, 78 St. John’s L. Rev. 1119, 1159–1160

(2004). It might be argued that, even if the death penalty 

results in a marginal increase in the incentive to kill, this

is counterbalanced by a marginally increased deterrent to 

commit the crime at all. Whatever balance the legislature

strikes, however, uncertainty on the point makes the 

argument for the penalty less compelling than for homicide crimes. 

Each of these propositions, standing alone, might not 

establish the unconstitutionality of the death penalty for 

the crime of child rape. Taken in sum, however, they

demonstrate the serious negative consequences of making

child rape a capital offense. These considerations lead us 

to conclude, in our independent judgment, that the death

penalty is not a proportional punishment for the rape of a 

child. 
 

36 KENNEDY v. LOUISIANA 

Opinion of the Court 

V 

Our determination that there is a consensus against the

death penalty for child rape raises the question whether 

the Court’s own institutional position and its holding will

have the effect of blocking further or later consensus in 

favor of the penalty from developing. The Court, it will be 

argued, by the act of addressing the constitutionality of

the death penalty, intrudes upon the consensus-making 

process. By imposing a negative restraint, the argument

runs, the Court makes it more difficult for consensus to 

change or emerge. The Court, according to the criticism, 

itself becomes enmeshed in the process, part judge and 

part the maker of that which it judges. 

These concerns overlook the meaning and full substance

of the established proposition that the Eighth Amendment

is defined by “the evolving standards of decency that mark

the progress of a maturing society.” Trop, 356 U. S., at 

101 (plurality opinion). Confirmed by repeated, consistent 

rulings of this Court, this principle requires that use of the 

death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full 

progress and mature judgment means that resort to the 

penalty must be reserved for the worst of crimes and 

limited in its instances of application. In most cases justice is not better served by terminating the life of the 

perpetrator rather than confining him and preserving the 

possibility that he and the system will find ways to allow

him to understand the enormity of his offense. Difficulties 

in administering the penalty to ensure against its arbitrary and capricious application require adherence to a

rule reserving its use, at this stage of evolving standards 

and in cases of crimes against individuals, for crimes that 

take the life of the victim. 

The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. This case is 

remanded for further proceedings not inconsistent with

this opinion. 

It is so ordered. 
_________________ 

_________________ 

 

Cite as: 554 U. S. ____ (2008) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–343 

PATRICK KENNEDY, PETITIONER v. LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
 

LOUISIANA
 

[June 25, 2008] 

JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE 

SCALIA, and JUSTICE THOMAS join, dissenting. 

The Court today holds that the Eighth Amendment 

categorically prohibits the imposition of the death penalty

for the crime of raping a child. This is so, according to the

Court, no matter how young the child, no matter how 

many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the

crime, no matter how much physical or psychological 

trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides

two reasons for this sweeping conclusion: First, the Court

claims to have identified “a national consensus” that the 

death penalty is never acceptable for the rape of a child;

second, the Court concludes, based on its “independent 

judgment,” that imposing the death penalty for child rape 

is inconsistent with “‘the evolving standards of decency 

that mark the progress of a maturing society.’” Ante, at 8, 

15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent. 

I 

A 

I turn first to the Court’s claim that there is “a national 

consensus” that it is never acceptable to impose the death 

penalty for the rape of a child. The Eighth Amendment’s 
 

 

2 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

requirements, the Court writes, are “determined not by

the standards that prevailed” when the Amendment was 

adopted but “by the norms that ‘currently prevail.’” Ante, 

at 8 (quoting Atkins v. Virginia, 536 U. S. 304, 311 

(2002)). In assessing current norms, the Court relies

primarily on the fact that only 6 of the 50 States now have

statutes that permit the death penalty for this offense.

But this statistic is a highly unreliable indicator of the

views of state lawmakers and their constituents. As I will 

explain, dicta in this Court’s decision in Coker v. Georgia, 

433 U. S. 584 (1977), has stunted legislative consideration 

of the question whether the death penalty for the targeted

offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state 

legislators and others good reason to fear that any law 

permitting the imposition of the death penalty for this 

crime would meet precisely the fate that has now befallen

the Louisiana statute that is currently before us, and this 

threat strongly discouraged state legislators—regardless

of their own values and those of their constituents—from 

supporting the enactment of such legislation. 

As the Court correctly concludes, the holding in Coker 

was that the Eighth Amendment prohibits the death 

penalty for the rape of an “‘adult woman,’” and thus Coker 

does not control our decision here. See ante, at 17. But 

the reasoning of the Justices in the majority had broader 

implications.

Two Members of the Coker majority, Justices Brennan

and Marshall, took the position that the death penalty is 

always unconstitutional. 433 U. S., at 600 (Brennan, J.,

concurring in judgment) and (Marshall, J., concurring in

judgment). Four other Justices, who joined the controlling 

plurality opinion, suggested that the Georgia capital rape

statute was unconstitutional for the simple reason that 

the impact of a rape, no matter how heinous, is not grievous enough to justify capital punishment. In the words of 
 

Cite as: 554 U. S. ____ (2008) 3 

ALITO, J., dissenting 

the plurality: “Life is over for the victim of the murderer; 

for the rape victim, life may not be nearly so happy as it 

was, but it is not over and normally is not beyond repair.” 

Id., at 598. The plurality summarized its position as

follows: “We have the abiding conviction that the death

penalty . . . is an excessive penalty for the rapist who, as

such, does not take human life.” Ibid. 

The implications of the Coker plurality opinion were

plain. Justice Powell, who concurred in the judgment 

overturning the death sentence in the case at hand, did 

not join the plurality opinion because he understood it to 

draw “a bright line between murder and all rapes—

regardless of the degree of brutality of the rape or the

effect upon the victim.” Id., at 603. If Justice Powell read 

Coker that way, it was reasonable for state legislatures to

do the same. 

Understandably, state courts have frequently read 

Coker in precisely this way. The Court is correct that 

state courts have generally understood the limited scope of 

the holding in Coker, ante, at 18, but lower courts and 

legislators also take into account—and I presume that this

Court wishes them to continue to take into account—the 

Court’s dicta. And that is just what happened in the wake 

of Coker. Four years after Coker, when Florida’s capital

child rape statute was challenged, the Florida Supreme 

Court, while correctly noting that this Court had not held 

that the Eighth Amendment bars the death penalty for 

child rape, concluded that “[t]he reasoning of the justices

in Coker v. Georgia compels us to hold that a sentence of 

death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual 

punishment.” Buford v. State, 403 So. 2d 943, 951 (1981). 

Numerous other state courts have interpreted the Coker 

dicta similarly. See State v. Barnum, 921 So. 2d 513, 526 

(Fla. 2005) (citing Coker as holding that “‘a sentence of 
 

4 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

death is grossly disproportionate and excessive punishment for the crime of rape,’” not merely the rape of an

adult woman); People v. Huddleston, 212 Ill. 2d. 107, 141, 

816 N. E. 2d 322, 341 (2004) (recognizing that “the constitutionality of state statutes that impose the death penalty 

for nonhomicide crimes is the subject of debate” after 

Coker); People v. Hernandez, 30 Cal. 4th 835, 867, 69 P. 3d 

446, 464–467 (2003) (Coker “rais[ed] serious doubts that

the federal Constitution permitted the death penalty for 

any offense not requiring the actual taking of human life” 

because “[a]lthough the high court did not expressly hold 

[in Coker] that the Eighth Amendment prohibits capital 

punishment for all crimes not resulting in death, the

plurality stressed that the crucial difference between rape

and murder is that a rapist ‘does not take human life’”); 

State v. Gardner, 947 P. 2d 630, 653 (Utah 1997) (“The 

Coker holding leaves no room for the conclusion that any 

rape, even an ‘inhuman’ one involving torture and aggravated battery but not resulting in death, would constitutionally sustain imposition of the death penalty”); Parker 

v. State, 216 Ga. App. 649, n. 1, 455 S. E. 2d 360, 361, n. 1 

(1995) (citing Coker for the proposition that the death

penalty “is no longer permitted for rape where the victim 

is not killed”); Leatherwood v. State, 548 So. 2d 389, 406 

(Miss. 1989) (Robertson, J., concurring) (“There is as much 

chance of the Supreme Court sanctioning death as a penalty for any non-fatal rape as the proverbial snowball

enjoys in the nether regions”); State v. Coleman, 185 Mont. 

299, 327–328, 605 P. 2d 1000, 1017 (1979) (stating that 

“[t]he decision of the Court in Coker v. Georgia is relevant 

only to crimes for which the penalty has been imposed

which did not result in the loss of a life” (citations omitted)); Boyer v. State, 240 Ga. 170, 240 S. E. 2d 68 (1977) 

(per curiam) (stating that “[s]ince death to the victim did 

not result . . . the death penalty for rape must be set 

aside”); see also 2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 
 

 

Cite as: 554 U. S. ____ (2008) 5 

ALITO, J., dissenting 

2d 757, 794 (case below) (Calogero, C. J., dissenting) (citing the comments of the Coker plurality and concluding

that the Louisiana child rape law cannot pass constitutional muster).1 

For the past three decades, these interpretations have

posed a very high hurdle for state legislatures considering 

the passage of new laws permitting the death penalty for

the rape of a child. The enactment and implementation of 

any new state death penalty statute—and particularly a 

new type of statute such as one that specifically targets

the rape of young children—imposes many costs. There is 

—————— 

1Commentators have expressed similar views. See Fleming, Louisiana’s Newest Capital Crime: The Death Penalty for Child Rape, 89 J.

Crim. L. & C. 717, 727 (1999) (the Coker Court drew a line between 

“crimes which result in loss of life, and crimes which do not”); Baily, 

Death is Different, Even on the Bayou: The Disproportionality of 

Crime, 55 Wash. & Lee L. Rev. 1335, 1357 (1998) (noting that “[m]any

post-Coker cases interpreting the breadth of Coker’s holding suggest

that the Mississippi Supreme Court’s narrow reading of Coker in 

Upshaw is a minority position”); Matura, When Will It Stop? The Use of

the Death Penalty for Non-homicide Crimes, 24 J. Legis. 249, 255

(1998) (stating that the Coker Court did not “draw a distinction between the rape of an adult woman and the rape of a minor”); Garvey,

“As the Gentle Rain from Heaven”: Mercy in Capital Sentencing, 81

Cornell L. Rev. 989, 1009, n. 74 (1996) (stating that courts generally

understand Coker to prohibit death sentences for crimes other than 

murder); Nanda, Recent Developments in the United States and 

Internationally Regarding Capital Punishment—An Appraisal, 67 St. 

John’s L. Rev. 523, 532 (1993) (finding that Coker stands for the proposition that a death sentence is excessive when the victim is not killed);

Ellis, Guilty but Mentally Ill and the Death Penalty: Punishment Full

of Sound and Fury, Signifying Nothing, 43 Duke L. J. 87, 94 (1994)

(referencing Coker to require capital offenses to be defined by unjustified human death); Dingerson, Reclaiming the Gavel: Making Sense out 

of the Death Penalty Debate in State Legislatures, 18 N. Y. U. Rev. L.

& Soc. Change 873, 878 (1991) (stating that Coker “ruled that the 

imposition of the death penalty for crimes from which no death results 

violates the cruel and unusual punishment provision of the eighth 

amendment” and that “[n]o subsequent Supreme Court decision has 

challenged this precedent”). 
 

6 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

the burden of drafting an innovative law that must take

into account this Court’s exceedingly complex Eighth

Amendment jurisprudence. Securing passage of controversial legislation may interfere in a variety of ways with 

the enactment of other bills on the legislative agenda. 

Once the statute is enacted, there is the burden of training

and coordinating the efforts of those who must implement

the new law. Capital prosecutions are qualitatively more

difficult than noncapital prosecutions and impose special 

emotional burdens on all involved. When a capital sentence is imposed under the new law, there is the burden of

keeping the prisoner on death row and the lengthy and 

costly project of defending the constitutionality of the

statute on appeal and in collateral proceedings. And if the 

law is eventually overturned, there is the burden of new 

proceedings on remand. Moreover, conscientious state 

lawmakers, whatever their personal views about the 

morality of imposing the death penalty for child rape, may

defer to this Court’s dicta, either because they respect our

authority and expertise in interpreting the Constitution or 

merely because they do not relish the prospect of being

held to have violated the Constitution and contravened 

prevailing “standards of decency.” Accordingly, the Coker 

dicta gave state legislators a strong incentive not to push 

for the enactment of new capital child-rape laws even 

though these legislators and their constituents may have 

believed that the laws would be appropriate and desirable. 

B 

The Court expresses doubt that the Coker dicta had this 

effect, but the skepticism is unwarranted. It would be 

quite remarkable if state legislators were not influenced 

by the considerations noted above. And although state

legislatures typically do not create legislative materials 

like those produced by Congress, there is evidence that 

proposals to permit the imposition of the death penalty for 
Cite as: 554 U. S. ____ (2008) 7 

ALITO, J., dissenting 

child rape were opposed on the ground that enactment 

would be futile and costly. 

In Oklahoma, the opposition to the State’s capital childrape statute argued that Coker had already ruled the

death penalty unconstitutional as applied to cases of 

rape. See Oklahoma Senate News Release, Senator 

Nichols Targets Child Predators with Death Penalty,

Child Abuse Response Team, May 26, 2006, on line at 

http://www.oksenate.gov/news/press_releases/press_releases_ 

2006/pr20060526d.htm (all Internet materials as visited 

June 23, 2008, and available in Clerk of Court’s case file). 

Likewise, opponents of South Carolina’s capital child-rape

law contended that the statute would waste state resources because it would undoubtedly be held unconstitutional. See The State, Death Penalty Plan in Spotlight:

Attorney General to Advise Senate Panel on Proposal for 

Repeat Child Rapists, Mar. 28, 2006 (quoting Laura Hudson, spokeswoman for the S. C. Victim Assistance Network, as stating that “‘[w]e don’t need to be wasting state 

money to have an appeal to the [United States] Supreme

Court, knowing we are going to lose it’”). Representative

Fletcher Smith of the South Carolina House of Representatives forecast that the bill would not meet constitutional 

standards because “death isn’t involved.” See Davenport,

Emotion Drives Child Rape Death Penalty Debate in

South Carolina, Associated Press, Apr. 4, 2006. 

In Texas, opponents of that State’s capital child-rape

law argued that Coker’s reasoning doomed the proposal.

House Research Organization Bill Analysis, Mar. 5, 2007 

(stating that “the law would impose an excessive punishment and fail to pass the proportionality test established 

by the U. S. Supreme Court” and arguing that “Texas 

should not enact a law of questionable constitutionality simply because it is politically popular, especially

given clues by the U. S. Supreme Court that death penalty 

laws that would be rarely imposed or that are not sup-
 

8 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

ported by a broad national consensus would be ruled 

unconstitutional”). 

C 

Because of the effect of the Coker dicta, the Court is 

plainly wrong in comparing the situation here to that in 

Atkins or Roper v. Simmons, 543 U. S. 551 (2005). See 

ante, at 14–15. Atkins concerned the constitutionality of

imposing the death penalty on a mentally retarded defendant. Thirteen years earlier, in Penry v. Lynaugh, 492 

U. S. 302 (1989), the Court had held that this was permitted by the Eighth Amendment, and therefore, during the

time between Penry and Atkins, state legislators had

reason to believe that this Court would follow its prior

precedent and uphold statutes allowing such punishment.

The situation in Roper was similar. Roper concerned a 

challenge to the constitutionality of imposing the death

penalty on a defendant who had not reached the age of 18

at the time of the crime. Sixteen years earlier in Stanford 

v. Kentucky, 492 U. S. 361 (1989), the Court had rejected a

similar challenge, and therefore state lawmakers had 

cause to believe that laws allowing such punishment 

would be sustained. 

When state lawmakers believe that their decision will 

prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators’ resolution of the issue can be interpreted as an expression of their own judgment, informed by whatever

weight they attach to the values of their constituents. But 

when state legislators think that the enactment of a new

death penalty law is likely to be futile, inaction cannot 

reasonably be interpreted as an expression of their understanding of prevailing societal values. In that atmosphere,

legislative inaction is more likely to evidence acquiescence. 
 

Cite as: 554 U. S. ____ (2008) 9 

ALITO, J., dissenting 

D 

If anything can be inferred from state legislative developments, the message is very different from the one that 

the Court perceives. In just the past few years, despite 

the shadow cast by the Coker dicta, five States have 

enacted targeted capital child-rape laws. See Ga. Code 

Ann. §16–6–1 (1999); Mont. Code Ann. §45–5–503 (1997);

Okla. Stat., Tit. 10, §7115(K) (West Supp. 2008); S. C. 

Code Ann. §16–3–655(C)(1) (Supp. 2007); Tex. Penal Code

Ann. §§22.021(a), 12.42(c)(3) (West Supp. 2007). If, as the 

Court seems to think, our society is “[e]volving” toward

ever higher “standards of decency,” ante, at 36, these 

enactments might represent the beginning of a new evolutionary line.

Such a development would not be out of step with

changes in our society’s thinking since Coker was decided. 

During that time, reported instances of child abuse have

increased dramatically;2 and there are many indications of

growing alarm about the sexual abuse of children. In 

1994, Congress enacted the Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registration Program, 42 U. S. C. §14071 (2000 ed. and Supp. V), 

—————— 

2From 1976 to 1986, the number of reported cases of child sexual

abuse grew from 6,000 to 132,000, an increase of 2,100%. A. Lurigio,

M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, 

and Implications for Probation Practice, 59 Sep Fed. Probation 69

(1995). By 1991, the number of cases totaled 432,000, an increase of 

another 227%. Ibid. In 1995, local child protection services agencies

identified 126,000 children who were victims of either substantiated or 

indicated sexual abuse. Nearly 30% of those child victims were between the age of four and seven. Rape, Abuse & Incest National

Network Statistics, online at http://www.rainn.org/get-information/ 

statistics/sexual-assault-victims. There were an estimated 90,000 

substantiated cases of child sexual abuse in 2003. Crimes Against

Children Research Center, Reports from the States to the National

Child Abuse and Neglect Data System, available at www.unh.edu/ccrc/ 

sexual-abuse/Child%20Sexual%20Abuse.pdf. 
 

 

10 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

which requires States receiving certain federal funds to

establish registration systems for convicted sex offenders 

and to notify the public about persons convicted of the 

sexual abuse of minors. All 50 States have now enacted 

such statutes.3 In addition, at least 21 States and the 

—————— 

3Ala. Code §§13A–11–200 to 13A–11–203, 1181 (1994); Alaska Stat

§§1.56.840, 12.63.010–100, 18.65.087, 28.05.048, 33.30.035 (1994, 1995,

and 1995 Cum. Supp.); Ariz. Rev. Stat. Ann. §§13–3821 to –3825 (1989

and Supp. 1995); Ark. Code Ann. §§12–12–901 to –909 (1995); Cal.

Penal Code Ann. §§290 to 290.4 (West Supp. 1996); Colo. Rev. Stat.

Ann. §18–3–412.5 (Supp. 1996); Conn. Gen. Stat. Ann. §§54–102a to

54–102r (Supp. 1995); Del. Code Ann. Tit. 11, §4120 (1995); Fla. Stat.

Ann. §§775.13, 775.22 (1992 and Supp. 1994); Ga. Code Ann. §42–9–

44.1 (1994); 1995 Haw. Sess. Laws No. 160 (enacted June 14, 1995); 

Idaho Code §§9–340(11)(f), 18–8301 to 18–8311 (Supp. 1995); Ill. Comp.

Stat. Ann., ch. 730, §§150/1 to 150/10 (2002); Ind. Code §§5–2–12–1 to

5–2–12–13 (West Supp. 1995); 1995 Iowa Legis. Serv. 146 (enacted May

3, 1995); Kan. Stat. Ann. §§22–4901 to 22–4910 (1995); Ky. Rev. Stat.

Ann. §§17.500 to 17.540 (West Supp. 1994); La. Stat. Ann. §§15:540 to

15:549 (West Supp. 1995); Me. Rev. Stat. Ann., Tit. 34–A, §§11001 to

11004 (West Supp. 1995); 1995 Md. Laws p. 142 (enacted May 9, 1995);

Mass. Gen. Laws Ann., ch. 6, §178D; 1994 Mich. Pub. Acts p. 295

(enacted July 13, 1994); Minn. Stat. §243.166 (1992 and Supp. 1995); 

Miss. Code Ann. §§45–33–1 to 45–33–19 (Supp. 1995); Mo. Rev. Stat.

§§566.600 to 566.625 (Supp. 1996); Mont. Code Ann. §§46–23–501 to

46–23–507 (1994); Neb. Rev. Stat. §§4001 to 4014; Nev. Rev. Stat. 

§§207.080, 207.151 to 207.157 (1992 and Supp. 1995); N. H. Rev. Stat.

Ann. §§632–A:11 to 632–A:19 (Supp. 1995); N. J. Stat. Ann. §§2c:7–1 to

2c:7–11 (1995); N. M. Stat. Ann. §§29–11A–1 to 29–11A–8 (Supp. 1995);

N. Y. Correct. Law Ann. §§168 to 168–V (West Supp. 1996); N. C. Gen. 

Stat. Ann. §§14–208.5–10 (Lexis Supp. 1995); N. D. Cent. Code §12.1–

32–15 (Lexis Supp. 1995); Ohio Rev. Code Ann. §§2950.01–.08 (Baldwin

1997); Okla. Stat., Tit. 57, §§582–584 (2003 Supp.); Ore. Rev. Stat. 

§§181.507 to 181.519 (1993); 1995 Pa. Laws p. 24 (enacted Oct. 24, 

1995); R. I. Gen. Laws §11–37–16 (1994); S. C. Code Ann. §23–3–430;

S. D. Codified Laws §§22–22–30 to 22–22–41 (Supp. 1995) Tenn. Code

Ann. §§40–39–101 to 40–39–108 (2003); Tex. Rev. Civ. Stat. Ann., Art.

6252–13c.1 (Vernon Supp. 1996); Utah Code Ann. §§53–5–212.5, 77–

27–21.5 (Lexis Supp. 1995); Vt. Stat. Ann., Tit. 13, §5402; Va. Code

Ann. §§19.2–298.1 to 19.2–390.1 (Lexis 1995); Wash. Rev. Code 

§§4.24.550, 9A.44.130, 9A.44.140, 10.01.200, 70.48.470, 72.09.330 (1992 
 

 

Cite as: 554 U. S. ____ (2008) 11 

ALITO, J., dissenting 

District of Columbia now have statutes permitting

the involuntary commitment of sexual predators,4 and at 

least 12 States have enacted residency restrictions for sex

offenders.5 

—————— 

and Supp. 1996); W. Va. Code §§61–8F–1 to 61–8F–8 (Lexis Supp. 

1995); Wis. Stat. §175.45 (Supp. 1995); Wyo. Stat. Ann. §§7–19–301 to

7–19–306 (1995). 4Those States are Arizona, California, Connecticut, the District of 

Columbia, Florida, Illinois, Iowa, Kansas, Kentucky, Massachusetts,

Minnesota, Missouri, Nebraska, New Jersey, North Dakota, Oregon,

Pennsylvania, South Carolina, Texas, Virginia, Washington, and 

Wisconsin. See Ariz. Rev. Stat. §§36–3701 to 36–3713 (West 2003 and

Supp. 2007); Cal. Welf. & Inst. Code Ann. §§6600 to 6609.3 (West 1998

and Supp. 2008); Conn. Gen. Stat. §17a–566 (1998); D. C. Code §§22–

3803 to 22–3811 (2001); Fla. Stat. §§394.910 to 394.931 (West 2002 and

Supp. 2005); Ill. Comp. Stat., ch. 725, §§207/1 to 207/99 (2002); Iowa

Code §§229A.1–.16 (Supp. 2005); Kan. Stat. Ann. §59–29a02 (2004 and

Supp. 2005); Ky. Rev. Stat. Ann. §202A.051 (West ___); Mass. Gen. 

Laws, ch. 123A (1989); Minn. Stat. §253B.02 (1992); Mo. Ann. Stat.

§§632.480 to 632.513 (West 2000 and Supp. 2006); Neb. Rev. Stat. 

§§83–174 to 83–174.05 (2007); N. J. Stat. Ann. §§30:4–27.24 to 30:4–

27.38 (West Supp. 2004); N. D. Cent. Code Ann. §25–03.3 (Lexis 2002); 

Ore. Rev. Stat. §426.005 (1998); Pa. Stat. Ann., Tit. 42, §§9791 to

9799.9 (2007); S. C. Code Ann. §§44–48–10 to 44–48–170 (2002 and 

Supp. 2007); Tex. Health & Safety Code Ann. §§841.001 to 841.147

(West 2003); Va. Code Ann. §§37.2–900 to 37.2–920 (2006 and Supp. 

2007); Wash. Rev. Code §71.09.010 (West 1992 and Supp. 2002); Wis.

Stat. §980.01–13 (2005). 5See Ala. Code §15–20–26 (Supp. 2000) (restricts sex offenders from

residing or accepting employment within 2,000 feet of school or childcare facility); Ark. Code Ann. §5–14–128 (Supp. 2007) (unlawful for 

level three or four sex offenders to reside within 2,000 feet of school or 

daycare center); Cal. Penal Code Ann. §3003 (West Supp. 2008) (parolees may not live within 35 miles of victim or witnesses, and certain sex

offenders on parole may not live within a quarter mile from a primary

school); Fla. Stat. §947.1405(7)(a)(2) (2001) (released sex offender with

victim under 18 prohibited from living within 1,000 feet of a school, 

daycare center, park, playground, or other place where children regularly congregate); Ga. Code Ann. §42–1–13 (Supp. 2007) (sex offenders

required to register shall not reside within 1,000 feet of any childcare

facility, school, or area where minors congregate); Ill. Comp. Stat., ch. 

720, §5/11–9.3(b–5) (Supp. 2008) (child sex offenders prohibited from 
 

 

12 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

Seeking to counter the significance of the new capital 

child-rape laws enacted during the past two years, the 

Court points out that in recent months efforts to enact

similar laws in five other States have stalled. Ante, at 21. 

These developments, however, all took place after our 

decision to grant certiorari in this case, see 552 U. S. ___

(2008), which gave state legislators reason to delay the 

enactment of new legislation until the constitutionality of 

such laws was clarified. And there is no evidence of which 

I am aware that these legislative initiatives failed because 

the proposed laws were viewed as inconsistent with our 

society’s standards of decency.

On the contrary, the available evidence suggests otherwise. For example, in Colorado, the Senate Appropriations Committee in April voted 6 to 4 against Senate Bill

195, reportedly because it “would have cost about 

$616,000 next year for trials, appeals, public defenders, 

and prison costs.” Associated Press, Lawmakers Reject

Death Penalty for Child Sex Abusers, Denver Post, Apr.

11, 2008. Likewise, in Tennessee, the capital child-rape

bill was withdrawn in committee “because of the high

associated costs.” The bill’s sponsor stated that “‘[b]ecause of the state’s budget situation, we thought to with-

—————— 

knowingly residing within 500 feet of schools); Ky. Rev. Stat. Ann. 

§17.495 (West 2000) (registered sex offenders on supervised release 

shall not reside within 1,000 feet of school or childcare facility); La. 

Rev. Stat. Ann. §14:91.1 (West Supp. 2004) (sexually violent predators

shall not reside within 1,000 feet of schools unless permission is given

by school superintendent); Ohio Rev. Code Ann. §2950.031 (Lexis 2003)

(sex offenders prohibited from residing within 1,000 feet of school); 

Okla. Stat., Tit. 57, §590 (West 2003) (prohibits sex offenders from

residing within 2,000 feet of schools or educational institutions); Ore.

Rev. Stat. §§144.642, 144.643 (1999) (incorporates general prohibition

on supervised sex offenders living near places where children reside); 

Tenn. Code Ann. §40–39–111 (2006) (repealed by Acts 2004, ch. 921, §4, 

effective Aug. 1, 2004) (sex offenders prohibited from establishing 

residence within 1,000 feet of school, childcare facility, or victim). 
 

Cite as: 554 U. S. ____ (2008) 13 

ALITO, J., dissenting 

draw that bill. . . . We’ll revisit it next year to see if we

can reduce the cost of the fiscal note.’” Green, Small 

Victory in Big Fight for Tougher Sex Abuse Laws, The

Leaf-Chronicle, May 8, 2008, p. 1A. Thus, the failure to 

enact capital child-rape laws cannot be viewed as evidence

of a moral consensus against such punishment. 

E 

Aside from its misleading tally of current state laws, the

Court points to two additional “objective indicia” of a

“national consensus,” ante, at 11, but these arguments are 

patent makeweights. The Court notes that Congress has 

not enacted a law permitting the death penalty for the 

rape of a child, ante, at 12–13, but due to the territorial 

limits of the relevant federal statutes, very few rape cases,

not to mention child-rape cases, are prosecuted in federal 

court. See 18 U. S. C. §§2241, 2242 (2000 ed. and Supp.

V); United States Sentencing Commission, Report to 

Congress: Analysis of Penalties for Federal Rape Cases, 

p. 10, Table 1. Congress’ failure to enact a death penalty 

statute for this tiny set of cases is hardly evidence of Congress’ assessment of our society’s values. 

Finally, the Court argues that statistics about the number of executions in rape cases support its perception of a

“national consensus,” but here too the statistics do not 

support the Court’s position. The Court notes that the last 

execution for the rape of a child occurred in 1964, ante, at 

23, but the Court fails to mention that litigation regarding 

the constitutionality of the death penalty brought executions to a halt across the board in the late 1960’s. In 1965 

and 1966, there were a total of eight executions for all 

offenses, and from 1968 until 1977, the year when Coker 

was decided, there were no executions for any crimes.6 

—————— 

6Department of Justice, Bureau of Justice Statistics, online at 

http://www.ojp.usdoj.gov/bjs/glance/tables/exetab.htm; see also Death 

Penalty Information Center, Executions in the U. S. 1608–2002: 
 

 

 

14 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

The Court also fails to mention that in Louisiana, since 

the state law was amended in 1995 to make child rape a

capital offense, prosecutors have asked juries to return

death verdicts in four cases. See State v. Dickerson, 01– 

1287 (La. App. 6/26/02), 822 So. 2d 849 (2002); State v. 

LeBlanc, 01–1322 (La. App. 5/13/01), 788 So. 2d 1255;

2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757; State v. 

Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish, 

La.) (cited in Brief for Respondent 42, and n. 38). In two of 

those cases, Louisiana juries imposed the death penalty.

See 2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757; 

Davis, supra. This 50% record is hardly evidence that

juries share the Court’s view that the death penalty for 

the rape of a young child is unacceptable under even the

most aggravated circumstances.7 

F 

In light of the points discussed above, I believe that the

“objective indicia” of our society’s “evolving standards of 

decency” can be fairly summarized as follows. Neither 

Congress nor juries have done anything that can plausibly 

be interpreted as evidencing the “national consensus” that

the Court perceives. State legislatures, for more than 30

years, have operated under the ominous shadow of the 

Coker dicta and thus have not been free to express their 

own understanding of our society’s standards of decency.

And in the months following our grant of certiorari in this 

case, state legislatures have had an additional reason to 

pause. Yet despite the inhibiting legal atmosphere that 

has prevailed since 1977, six States have recently enacted 

new, targeted child-rape laws. 

I do not suggest that six new state laws necessarily 

—————— 

The ESPY File Executions by Date (2007), online at http://www.death

penaltyinfo.org/ESPYyear.pdf. 7Of course, the other five capital child rape statutes are too recent for

any individual to have been sentenced to death under them. 
Cite as: 554 U. S. ____ (2008) 15 

ALITO, J., dissenting 

establish a “national consensus” or even that they are sure

evidence of an ineluctable trend. In terms of the Court’s 

metaphor of moral evolution, these enactments might 

have turned out to be an evolutionary dead end. But they 

might also have been the beginning of a strong new evolutionary line. We will never know, because the Court today 

snuffs out the line in its incipient stage. 

II 

A 

The Court is willing to block the potential emergence of 

a national consensus in favor of permitting the death

penalty for child rape because, in the end, what matters is 

the Court’s “own judgment” regarding “the acceptability of 

the death penalty.” Ante, at 24. Although the Court has

much to say on this issue, most of the Court’s discussion is

not pertinent to the Eighth Amendment question at hand. 

And once all of the Court’s irrelevant arguments are put 

aside, it is apparent that the Court has provided no coherent explanation for today’s decision.

In the next section of this opinion, I will attempt to weed 

out the arguments that are not germane to the Eighth

Amendment inquiry, and in the final section, I will address what remains. 

B 

A major theme of the Court’s opinion is that permitting

the death penalty in child-rape cases is not in the best 

interests of the victims of these crimes and society at 

large. In this vein, the Court suggests that it is more

painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court 

also argues that “a State that punishes child rape by 

death may remove a strong incentive for the rapist not to

kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35. 
 

 

16 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

These policy arguments, whatever their merits, are

simply not pertinent to the question whether the death 

penalty is “cruel and unusual” punishment. The Eighth

Amendment protects the right of an accused. It does not 

authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s 

policy arguments concern matters that legislators 

should—and presumably do—take into account in deciding

whether to enact a capital child-rape statute, but these 

arguments are irrelevant to the question that is before us 

in this case. Our cases have cautioned against using “‘the 

aegis of the Cruel and Unusual Punishment Clause’ to cut

off the normal democratic processes,” Atkins v. Virginia, 

536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in

turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), 

(joint opinion of Stewart, Powell, and STEVENS, JJ.), but 

the Court forgets that warning here. 

The Court also contends that laws permitting the death

penalty for the rape of a child create serious procedural

problems. Specifically, the Court maintains that it is not 

feasible to channel the exercise of sentencing discretion in 

child-rape cases, ante, at 28–29, and that the unreliability 

of the testimony of child victims creates a danger that

innocent defendants will be convicted and executed, ante, 

at 33–34. Neither of these contentions provides a basis for 

striking down all capital child-rape laws no matter how 

carefully and narrowly they are crafted. 

The Court’s argument regarding the structuring of

sentencing discretion is hard to comprehend. The Court 

finds it “difficult to identify standards that would guide 

the decisionmaker so the penalty is reserved for the most

severe cases of child rape and yet not imposed in an arbitrary way.” Ante, at 28–29. Even assuming that the age

of a child is not alone a sufficient factor for limiting sentencing discretion, the Court need only examine the child-
Cite as: 554 U. S. ____ (2008) 17 

ALITO, J., dissenting 

rape laws recently enacted in Texas, Oklahoma, Montana, 

and South Carolina, all of which use a concrete factor to 

limit quite drastically the number of cases in which the

death penalty may be imposed. In those States, a defendant convicted of the rape of a child may be sentenced to

death only if the defendant has a prior conviction for a

specified felony sex offense. See Mont. Code Ann. §45–5–

503(3)(c) (2007) (“If the offender was previously convicted 

of [a felony sexual offense] . . . the offender shall be . . . 

punished by death . . .”); Okla. Stat., Tit. 10, §7115(K) 

(West Supp. 2008) (“Notwithstanding any other provision

of law, any parent or other person convicted of forcible 

anal or oral sodomy, rape, rape by instrumentation, or 

lewd molestation of a child under fourteen (14) years of

age subsequent to a previous conviction for any offense of 

forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) 

years of age shall be punished by death”); S. C. Code Ann.

§16–3–655(C)(1) (Supp. 2007) (“If the [defendant] has 

previously been convicted of, pled guilty or nolo contendere

to, or adjudicated delinquent for first degree criminal 

sexual conduct with a minor who is less than eleven years

of age . . . he must be punished by death or by imprisonment for life”); Tex. Penal Code Ann. §12.42(c)(3) (2007 

Supp.); (“[A] defendant shall be punished for a capital

felony if it is shown on the trial of an offense under Section

22.021 . . . that the defendant has previously been finally 

convicted of [a felony sexual offense against a victim 

younger than fourteen years of age]”).

Moreover, it takes little imagination to envision other 

limiting factors that a State could use to structure sentencing discretion in child rape cases. Some of these 

might be: whether the victim was kidnapped, whether the 

defendant inflicted severe physical injury on the victim,

whether the victim was raped multiple times, whether the 

rapes occurred over a specified extended period, and 
 

 

18 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

whether there were multiple victims. 

The Court refers to limiting standards that are “indefinite and obscure,” ante, at 30, but there is nothing indefinite or obscure about any of the above-listed aggravating

factors. Indeed, they are far more definite and clear-cut

than aggravating factors that we have found to be adequate in murder cases. See, e.g., Arave v. Creech, 507 

U. S. 463, 471 (1993) (whether the defendant was a “‘coldblooded, pitiless slayer’”); Walton v. Arizona, 497 U. S. 

639, 646 (1990) (whether the “‘perpetrator inflict[ed]

mental anguish or physical abuse before the victim’s 

death’”); Jurek v. Texas, 428 U. S. 262, 269 (1976) (joint 

opinion of Stewart, Powell, and STEVENS, JJ.) (whether 

the defendant “‘would commit criminal acts of violence 

that would constitute a continuing threat to society’”). For 

these reasons, concerns about limiting sentencing discretion provide no support for the Court’s blanket condemnation of all capital child-rape statutes. 

That sweeping holding is also not justified by the

Court’s concerns about the reliability of the testimony of

child victims. First, the Eighth Amendment provides a

poor vehicle for addressing problems regarding the admissibility or reliability of evidence, and problems presented 

by the testimony of child victims are not unique to capital 

cases. Second, concerns about the reliability of the testimony of child witnesses are not present in every child-rape 

case. In the case before us, for example, there was undisputed medical evidence that the victim was brutally raped,

as well as strong independent evidence that petitioner was 

the perpetrator. Third, if the Court’s evidentiary concerns

have Eighth Amendment relevance, they could be addressed by allowing the death penalty in only those childrape cases in which the independent evidence is sufficient

to prove all the elements needed for conviction and imposition of a death sentence. There is precedent for requiring

special corroboration in certain criminal cases. For exam-
Cite as: 554 U. S. ____ (2008) 19 

ALITO, J., dissenting 

ple, some jurisdictions do not allow a conviction based on 

the uncorroborated testimony of an accomplice. See, e.g., 

Ala. Code 12–21–222 (1986); Alaska Stat. §12.45.020 

(1984); Ark. Code Ann. §16–89–111(e)(1) (1977); Cal.

Penal Code Ann. §1111 (West 1985); Ga. Code Ann. §24–

4–8 (1995); Idaho Code §19–2117 (Lexis 1979); Minn. Stat.

§634.04 (1983); Mont. Code Ann. §46–16–213 (1985); Nev. 

Rev. Stat. §175.291 (1985); N. D. Cent. Code Ann. §29–21–

14 (1974); Okla. St., Tit. 22, §742 (West 1969); Ore. Rev.

Stat. §136.440 (1984); S. D. Codified Laws §23A–22–8

(1979). A State wishing to permit the death penalty in

child-rape cases could impose an analogous corroboration

requirement. 

C 

After all the arguments noted above are put aside, what

is left? What remaining grounds does the Court provide to 

justify its independent judgment that the death penalty 

for child rape is categorically unacceptable? I see two. 

1 

The first is the proposition that we should be “most 

hesitant before interpreting the Eighth Amendment to

allow the extension of the death penalty.” Ante, at 25 

(emphasis added); see also ante, at 27, 30 (referring to 

expansion of the death penalty). But holding that the 

Eighth Amendment does not categorically prohibit the

death penalty for the rape of a young child would not 

“extend” or “expand” the death penalty. Laws enacted by 

the state legislatures are presumptively constitutional, 

Gregg, 428 U. S., at 175 (joint opinion of Stewart, Powell, 

and STEVENS, JJ.) (“[I]n assessing a punishment selected

by a democratically elected legislature against the constitutional measure, we presume its validity”), and until

today, this Court has not held that capital child rape laws

are unconstitutional, see ante, at 17 (Coker “does not 
 

 

20 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

speak to the constitutionality of the death penalty for child 

rape, an issue not then before the Court”). Consequently,

upholding the constitutionality of such a law would not 

“extend” or “expand” the death penalty; rather, it would 

confirm the status of presumptive constitutionality that 

such laws have enjoyed up to this point. And in any event,

this Court has previously made it clear that “[t]he Eighth

Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed 

social conditions.” Harmelin v. Michigan, 501 U. S. 957, 

990 (1991) (principal opinion); see also Gregg, supra, at 

176 (joint opinion of Stewart, Powell, and STEVENS, JJ.). 

2 

The Court’s final—and, it appears, principal—

justification for its holding is that murder, the only crime

for which defendants have been executed since this 

Court’s 1976 death penalty decisions,8 is unique in

its moral depravity and in the severity of the injury that

it inflicts on the victim and the public. See ante, at 

27–28. But the Court makes little attempt to defend these 

conclusions. 

With respect to the question of moral depravity, is it

really true that every person who is convicted of capital

murder and sentenced to death is more morally depraved

than every child rapist? Consider the following two cases.

In the first, a defendant robs a convenience store and 

watches as his accomplice shoots the store owner. The 

defendant acts recklessly, but was not the triggerman and 

did not intend the killing. See, e.g., Tison v. Arizona, 481 

—————— 

8 Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 

242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North 

Carolina, 428 U. S. 280 (1976); Roberts v. Louisiana, 428 U. S. 325 

(1976). 
 

Cite as: 554 U. S. ____ (2008) 21 

ALITO, J., dissenting 

U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures 

multiple child victims. Is it clear that the first defendant 

is more morally depraved than the second? 

The Court’s decision here stands in stark contrast to 

Atkins and Roper, in which the Court concluded that 

characteristics of the affected defendants—mental retardation in Atkins and youth in Roper—diminished their 

culpability. See Atkins, 536 U. S., at 305; Roper, 543 U. S., 

at 571. Nor is this case comparable to Enmund v. Florida, 

458 U. S. 782 (1982), in which the Court held that the

Eighth Amendment prohibits the death penalty where the 

defendant participated in a robbery during which a murder was committed but did not personally intend for lethal 

force to be used. I have no doubt that, under the prevailing standards of our society, robbery, the crime that the 

petitioner in Enmund intended to commit, does not evidence the same degree of moral depravity as the brutal

rape of a young child. Indeed, I have little doubt that, in 

the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical 

and emotional injury on defenseless young children—are 

the epitome of moral depravity. 

With respect to the question of the harm caused by the

rape of child in relation to the harm caused by murder, it

is certainly true that the loss of human life represents a 

unique harm, but that does not explain why other grievous

harms are insufficient to permit a death sentence. And 

the Court does not take the position that no harm other

than the loss of life is sufficient. The Court takes pains to 

limit its holding to “crimes against individual persons” 

and to exclude “offenses against the State,” a category that 

the Court stretches—without explanation—to include 

“drug kingpin activity.” Ante, at 26. But the Court makes 

no effort to explain why the harm caused by such crimes is 

necessarily greater than the harm caused by the rape of 
 

22 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

young children. This is puzzling in light of the Court’s 

acknowledgment that “[r]ape has a permanent psychological, emotional, and sometimes physical impact on the

child.” Ante, at 24. As the Court aptly recognizes, “[w]e

cannot dismiss the years of long anguish that must be 

endured by the victim of child rape.” Ibid. 

The rape of any victim inflicts great injury, and “[s]ome

victims are so grievously injured physically or psychologically that life is beyond repair.” Coker, 433 U. S., at 603 

(opinion of Powell, J.). “The immaturity and vulnerability 

of a child, both physically and psychologically, adds a

devastating dimension to rape that is not present when an

adult is raped.” Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L.

Rev. 197, 208–209 (2003). See also State v. Wilson, 96– 

1392, p. 6 (La. Sup. Ct. 12/13/96),685 So. 2d 1063, 1067; 

Broughton, “On Horror’s Head Horrors Accumulate”: A

Reflective Comment on Capital Child Rape Legislation, 39

Duquesne L. Rev. 1, 38 (2000). Long-term studies show

that sexual abuse is “grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or

humane society can tolerate.” C. Bagley & K. King, Child 

Sexual Abuse: The Search for Healing 2 (1990). 

It has been estimated that as many as 40% of 7- to 13-

year-old sexual assault victims are considered “seriously

disturbed.” A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for 

Probation Practice, 59 Sep Fed. Probation 69, 70 (1995). 

Psychological problems include sudden school failure, 

unprovoked crying, dissociation, depression, insomnia, 

sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide. Meister, supra, at 209; 

Broughton, supra, at 38; Glazer, Child Rapists Beware! 

The Death Penalty and Louisiana’s Amended Aggravated 
Cite as: 554 U. S. ____ (2008) 23 

ALITO, J., dissenting 

Rape Statute, 25 Am. J. Crim. L. 79, 88 (1997). 

The deep problems that afflict child-rape victims often

become society’s problems as well. Commentators have 

noted correlations between childhood sexual abuse and 

later problems such as substance abuse, dangerous sexual 

behaviors or dysfunction, inability to relate to others on an

interpersonal level, and psychiatric illness. Broughton, 

supra, at 38; Glazer, supra, at 89; Handbook on Sexual 

Abuse of Children 7 (L. Walker ed. 1988). Victims of child 

rape are nearly 5 times more likely than nonvictims to be

arrested for sex crimes and nearly 30 times more likely to 

be arrested for prostitution. Ibid. 

The harm that is caused to the victims and to society at 

large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the

death penalty. The Court provides no cogent explanation

why this legislative judgment should be overridden. Conclusory references to “decency,” “moderation,” “restraint,” 

“full progress,” and “moral judgment” are not enough. 

III 

In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the 

most extreme cases of child rape even though: (1) This 

holding is not supported by the original meaning of the

Eighth Amendment; (2) neither Coker nor any other prior 

precedent commands this result; (3) there are no reliable

“objective indicia” of a “national consensus” in support of

the Court’s position; (4) sustaining the constitutionality of

the state law before us would not “extend” or “expand” the 

death penalty; (5) this Court has previously rejected the 

proposition that the Eighth Amendment is a one-way 

ratchet that prohibits legislatures from adopting new 

capital punishment statutes to meet new problems; (6) the

worst child rapists exhibit the epitome of moral depravity; 
 

24 KENNEDY v. LOUISIANA 

ALITO, J., dissenting 

and (7) child rape inflicts grievous injury on victims and

on society in general. 

The party attacking the constitutionality of a state

statute bears the “heavy burden” of establishing that the 

law is unconstitutional. Gregg, 428 U. S., at 175 (joint 

opinion of Stewart, Powell, and STEVENS, JJ.). That burden has not been discharged here, and I would therefore 

affirm the decision of the Louisiana Supreme Court.