NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.3 Death Penalty For Crimes Other Than Murder

In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that capital punishment is inherently disproportionate, as opposed to comparatively disproportionate, and thus unconstitutionally excessive for the crime of rape of an adult woman. The broad application of this principle to cases such as rape of minors, treason, and terrorism, however, has not been tested since the Court has heard only a few non-homicide cases since Coker in which a court has sentenced a defendant to death.  

At least one jurisdiction has held that a statute which allows a defendant who is convicted of a rape of a child under the age of twelve to be sentenced to death is not invalid on its face. In State v. Wilson, 685 So.2d 1063 (La. 1996), the Louisiana Supreme Court refused to hold as a mater of law that such a statute violated the Eighth Amendment prohibition against cruel and unusual punishment. The Wilson court found the age factor sufficient to potentially distinguish such a sentence from the result prohibited by Coker.

Enmund v. Florida, 458 U.S. 782 (1982) (holding death penalty unconstitutional for one who aids and abets a felony involving a murder but does not himself kill, attempt to kill, intend to kill, or to use lethal force; objective societal evidence, disproportionality, and lack of deterrent or retributive effect indicates death penalty is excessive punishment for “nontriggerman” who lacks intent).

Hooks v. Georgia, 433 U.S. 917 (1977) (following Coker, reversing state death sentence for rape conviction).

Eberheart v. Georgia, 433 U.S. 917 (1977) (holding death penalty disproportionate for kidnapping and rape in which victim not killed).

Coker v. Georgia, 433 U.S. 584 (1977) (holding death penalty excessive and disproportionate for rape of adult woman where rape victim not killed).

State v. Wilson, 685 So.2d 1063 (La. 1996) (holding statute allowing death penalty for rape of child under age of twelve is not cruel and unusual punishment), cert. denied, 520 U.S. 1259 (1997).

Jennifer L. Cordle, State v. Wilson: Social Discontent, Retribution and the Constitutionality of Capital Punishment for Raping a Child, 27 Cap. U. L. Rev. 135 (1998) (discussing State v. Wilson, 685 So.2d 1063 (La. 1996).

David J. Karp, Note, Coker v. Georgia: Disproportionate Punishment and the Death Penalty for Rape, 78 Colum. L. Rev. 1714 (1978) (reviewing Coker, disagreeing with rationale, and arguing for constitutionality of death penalty for rape and certain other non-homicide crimes).

Pamela J. Lormand, Proportionate Sentencing for the Rape of a Minor: The Death Penalty Dilemma, 73 Tul. L. Rev. 981 (1999) (analyzing the constitutionality of Louisiana’s death penalty statute for rape of a minor under the age of twelve, and the Louisiana Supreme Court’s decision in light of U.S. Supreme Court precedent).

Debra C. Moss, Is Death Penalty for Killers Only?, 73 A.B.A. J. 54 (Jan. 1987) (discussing Enmund and possibility of death penalty being extended beyond murder cases, mentioning failed death penalty for espionage bill).

Project, Twenty-First Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1990-1991, 80 Geo. L.J. 939, 1530-33 (1992) (providing brief summary of capital punishment proportionality law).

Supreme Court Review, 68 J. Crim. L. & Criminology 601 (1977) (summarizing holding, rationale, and arguments of justices in Coker opinion).

Rape–Even the Rape of a Child, 39 Santa Clara L. Rev. 1267 (1999) (discussing the appropriateness of the 1995 amendment to the Louisiana Criminal Code providing a death sentence for a person convicted of the rape of a minor under the age of twelve).