On July 1, 2024, Tennessee enacted a new law authorizing the death penalty for those convicted of aggravated rape of a child. Governor Bill Lee signed the bill into law on May 9, following a similar move by Florida the previous year. This legislation challenges existing Supreme Court rulings that deem the death penalty unconstitutional for non-homicide crimes, including child rape.
The Supreme Court has long held that the death penalty is a disproportionate punishment for non-homicide crimes. In the 1977 case of Coker v. Georgia, the Court ruled that the death penalty for the crime of rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment. This was extended in the 2008 case of Kennedy v. Louisiana, where the Court found that the death penalty for child rape was also unconstitutional. The Court emphasized the psychological trauma inflicted on victims and noted that such punishment was rare and, therefore, unconstitutionally unusual.
Governor Lee’s signing of the bill did not include a public statement, and there has been no recent update on the state’s death penalty moratorium, which has been in place since May 2022. The moratorium was initiated after it was discovered that state officials had failed to properly test execution drugs for bacterial contamination, leading to an independent investigation that found systemic failures in Tennessee’s lethal injection protocols.
Critics argue that the new law could exacerbate the trauma experienced by child rape victims. Maria DeLiberato, Executive Director of Floridians for Alternatives to the Death Penalty, highlighted that a significant percentage of child sex abuse victims know their abusers, often family members or close acquaintances. This dynamic could place additional emotional burdens on victims, who may feel responsible for the death sentence of someone they know.
Furthermore, the risk of wrongful execution is a concern. Research shows that children are particularly susceptible to suggestion or fabrication during law enforcement interviews, increasing the likelihood of wrongful convictions. The National Registry of Exonerations has identified over 300 wrongful convictions involving child sex abuse.
Proponents of the law, including some Tennessee legislators, view it as an opportunity to challenge the Supreme Court’s precedents. They argue that the current composition of the Court may be more amenable to revisiting these rulings. However, Governor Lee has denied that the bill’s purpose is to test its constitutionality in court.
Florida has already begun prosecuting cases under its similar law, and Tennessee is likely to follow suit. These legislative efforts reflect ongoing debates about the “evolving standards of decency” in capital punishment cases. A pending Supreme Court case from Alabama, Hamm v. Smith, is expected to further address these issues, having been relisted multiple times without a decision on certiorari.
