Death Is Different, Even on the Bayou:The Disproportionality of Crimeand Punishment in Louisiana'sCapital Child Rape Statute

I. Introduction A guiding principle of this nation's criminal justice system, deriving its roots from age old notions of fairness, is that the punishment should fit the crime. The United States Supreme Court has adopted this principle through its conclusion that the Eighth Amendment contains a proportionality guarantee.2 The Court has used this guarantee to bar punishments that it finds "grossly disproportionate" to the object crimes.3 Twenty years ago, the Supreme Court used this proportionality doctrine to support its finding that the death penalty was an unconstitutionally excessive punishment for the rape of an adult woman.4 Recently, Louisiana challenged the limits of this decision by enacting a law authorizing the death penalty for the rape of a child under the age of twelve.5 The Louisiana Supreme Court recently upheld this law in the face of a constitutional challenge based on the proportionality doctrine.6 This Note examines whether, in light of Supreme Court precedent, Louisiana's capital child rape statute does, in fact, pass constitutional muster. Part II of this Note outlines the development of the proportionality doctrine in the United States.' This historical survey includes a brief discussion of the rationale of early cases employing proportionality review. Part II also identifies some general factors from these early cases that guide the Supreme Court's decisions in this area.8 Part III of this Note specifically addresses the role of proportionality review in capital sentencing.9 In addition, Part III discusses two important Supreme Court decisions based on the proportionality doctrine.'o This discussion focuses on basic constitutional requirements for proportionality review of capital punishment." Part IV analyzes the Supreme Court's decision finding the death penalty unconstitutionally excessive for the rape of an adult woman.'2 This discussion addresses the reasoning underlying the Court's decision and includes selected state reactions to the Court's decision.13 Part V of this Note details Louisiana's capital child rape statute and discusses the reasoning the Louisiana Supreme Court employed when it upheld the statute in the face of a proportionality attack.'4 Finally, Part VI of this Note critiques the Louisiana court's analysis and concludes that the death penalty for child rape is an unconstitutionally excessive punishment based on United States Supreme Court precedent or a properly conducted proportionality review." II. The History of Proportionality Review in American Jurisprudence Philosophy professor Burton Leiser once wrote that "there must be some principles that can be applied to determine which penalties are appropriate and which are not, which penalties are too light and which are excessive."'6 The proportionality doctrine, embodied within the Eighth Amendment's prohibition against "cruel and unusual punishments,"" establishes these principles in American jurisprudence.ls The United States Supreme Court has long debated the exact meaning of the Eighth Amendment's requirement of proportionality between crime and punishment.'9 However, the definitions and requirements that the Court has provided often have done more to confuse the issue than to provide any meaningful standards.20 Chief Justice Burger described the Court's Eighth Amendment decisions as "less than lucid."2' This sentiment exists due to the Supreme Court's attempts to expand or contract the breadth of the proportionality doctrine in order to adapt to the constantly changing attitudes of our nation's society.' A. Early Doctrine Until the beginning of the twentieth century, the Supreme Court applied the Cruel and Unusual Punishments Clause only to cases of torture and barbaric cruelty.23 Throughout this century, the Court has gradually broadened its interpretation of the Eighth Amendment to include a prohibition against punishments that are greatly disproportionate to the crimes for which they are imposed. …