KENNEDY v. LOUISIANA

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407 OCTOBER TERM, 2007
Syllabus
KENNEDY v. LOUISIANA
certiorari to the supreme court of louisiana
No. 07–343. Argued April 16, 2008—Decided June 25, 2008;
modified October 1, 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 re
liance 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 pun
ished 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 capital
ized 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. 419–447.
1. The Amendment’s Cruel and Unusual Punishment Clause “draw[s]
its meaning from the evolving standards of decency that mark the prog
ress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101. The
standard for extreme cruelty “itself remains the same, but its applicabil
ity must change as the basic mores of society change.” Furman v.
Georgia, 408 U. S. 238, 382. Under the precept of justice that punish
ment is to be graduated and proportioned to the crime, informed by
evolving standards, capital punishment must “be limited to those offend
ers who commit ‘a narrow category of the most serious crimes’ and
whose extreme culpability makes them ‘the most deserving of execu

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408 KENNEDY v. LOUISIANA
Syllabus
tion.’ ” Roper, supra, at 568. Applying this principle, the Court held
in Roper and Atkins that the execution of juveniles and mentally re
tarded 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 dispropor
tionate to the crime also depends on the standards elaborated by con
trolling precedents and on the Court’s own understanding and interpre
tation of the Eighth Amendment’s text, history, meaning, and purpose.
Pp. 419–421.
2. A review of the authorities informed by contemporary norms, in
cluding 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. 422–434.
(a) The Court follows the approach of cases in which objective indi
cia 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 6 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. 422–426.
(b) Respondent’s argument that Coker’s general discussion con
trasting 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 plural
ity 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 “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 rea
soning, 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

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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. 426–431.
(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 con
sistent 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 contempo
rary 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. Re
spondent 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 of
fenders. 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 juris
dictions having authorized it. See 458 U. S., at 789, 792. Pp. 431–433.
(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 be
tween 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 sentenced an indi
vidual to death for child rape, and petitioner and another man so sen
tenced are the only individuals now on death row in the United States
for nonhomicide offenses. Pp. 433–434.
3. Informed by its own precedents and its understanding of the Con
stitution and the rights it secures, the Court concludes, in its independ
ent judgment, that the death penalty is not a proportional punishment
for the crime of child rape. Pp. 434–446.

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410 KENNEDY v. LOUISIANA
Syllabus
(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 pun
ishment 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 un
usual 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 allow
ing extension of the death penalty, especially where no life was taken in
the commission of the crime. See, e. g., Coker, supra, at 597–598; En
mund, supra, at 797. Consistent with those evolving standards and the
teachings of its precedents, the Court concludes that there is a distinc
tion between intentional first-degree murder on the one hand and non
homicide 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,” 433 U. S., at 598. The Court finds significant the sub
stantial 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 devel
oping 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 a failed ex
periment would result in the execution of individuals undeserving of
death. Pp. 434–441.
(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.

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Syllabus
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 testi
fying 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 sys
temic 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. 441–446.
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, supra, at 101. Confirmed by the Court’s repeated, con
sistent 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. Pp. 446–447.
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,
post, p. 447.
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were Pamela S. Karlan, Jelpi P. Picou,
G. Ben Cohen, and Martin A. Stern.
Juliet L. Clark argued the cause for respondent. With
her on the brief were Paul D. Connick, Jr., and Terry M.
Boudreaux.
R. Ted Cruz, Solicitor General of Texas, argued the cause
for the State of Texas et al. as amici curiae in support of

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412 KENNEDY v. LOUISIANA
Opinion of the Court
respondent. With him on the brief were Greg Abbott, Attor
ney General of Texas, Kent C. Sullivan, First Assistant At
torney General, Eric J. R. Nichols, Deputy Attorney Gen
eral for Criminal Justice, Philip A. Lionberger, Assistant
Solicitor General, Troy King, Attorney General of Alabama,
Jim Davis and Will Parker, Assistant Attorneys General,
and by the Attorneys General for their respective States as
follows: John W. Suthers of Colorado, Lawrence G. Wasden
of Idaho, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon
of Missouri, W. A. Drew Edmondson of Oklahoma, Henry
D. McMaster of South Carolina, and Robert M. McKenna
of Washington.*
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. Califor
nia, 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
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by John Holdridge, Theodore M. Shaw, Jacque
line A. Berrien, Christina Swarns, Steven R. Shapiro, and Dennis D.
Parker; for the Louisiana Association of Criminal Defense Lawyers et al.
by Paul R. Baier; for the National Association of Criminal Defense Law
yers et al. by Stuart F. Delery and Barbara E. Bergman; and for the
National Association of Social Workers et al. by David M. Gossett, Car
olyn I. Polowy, and Joseph Thai.
Christopher Landau and Nathan Mammen filed a brief for Missouri
Governor Matt Blunt et al. as amici curiae urging affirmance.
Sandra L. Babcock filed a brief for Leading British Law Associations
et al. as amici curiae.

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Opinion of the Court
and sentenced to death under a state statute authorizing cap
ital 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 re
spondent 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.
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 soci
ety, 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. Con
sistent 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.

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Opinion of the Court
L. H. was transported to the Children’s Hospital. An ex
pert in pediatric forensic medicine testified that L. H.’s inju
ries 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.
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 intro
duced 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 move
ment. 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

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Opinion of the Court
for the rape. The State’s investigation had drawn the accu
racy 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 been found mostly
undisturbed but for a small patch of coagulated blood. Peti
tioner 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. Investiga
tors found a bicycle matching petitioner and L. H.’s descrip
tion 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 cov
ered 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 four telephone calls
on the morning of the rape. Sometime before 6:15 a.m., peti
tioner called his employer and left a message that he was
unavailable to work that day. Petitioner called back be
tween 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 ur
gent 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 De
cember 16, 1999, about 21 months after the rape, L. H. re
corded her accusation in a videotaped interview with the
Child Advocacy Center.

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416 KENNEDY v. LOUISIANA
Opinion of the Court
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 peti
tioner’s case, the statute provided:
“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 ver
dict, the offender shall be punished by death or life im
prisonment at hard labor without benefit of parole, pro
bation, 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:

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“A. The following shall be considered aggravating
circumstances:
“(1) The offender was engaged in the perpetration or
attempted perpetration of aggravated rape, forcible
rape, aggravated kidnapping, second degree kidnapping,
aggravated burglary, aggravated arson, aggravated es
cape, 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 Pat
rick 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.’ ” 05–1981, pp. 12,
15, 16 (La. 5/22/07), 957 So. 2d 757, 767, 769, 770. L. H. ac
knowledged 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 peti
tioner’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 af
firmed. 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

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Opinion of the Court
the death penalty as punishment for the rape of an adult
woman, it left open the question which, if any, other nonhom
icide crimes can be punished 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. Vir
ginia, 536 U. S. 304 (2002), it found significant not the “nu
merical 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 punish
ment for other nonhomicide crimes. By its count, 14 of the
then-38 States permitting capital punishment, plus the Fed
eral 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 se
verity of the crime; that the execution of child rapists would
serve the goals of deterrence and retribution; and that, un
like in Atkins and Roper, there were no characteristics of
petitioner that tended to mitigate his moral culpability. 957
So. 2d, at 788–789. It concluded: “[S]hort of first-degree
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 re
jected petitioner’s argument that the death penalty for the

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Opinion of the Court
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. 552 U. S. 1087 (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 pro
scribes “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 At
kins, id., at 311, and Roper, supra, at 560, that the Eighth
Amendment’s protection against excessive or cruel and un
usual punishments flows from the basic “precept of justice
that punishment for [a] crime should be graduated and pro
portioned 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 ap
plicability must change as the basic mores of society change.”
Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J.,
dissenting).

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420 KENNEDY v. LOUISIANA
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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: re
habilitation, 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 con
cern 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, trans
gressing the constitutional commitment to decency and
restraint.
For these reasons we have explained that capital punish
ment must “be limited to those offenders who commit ‘a nar
row 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 vic
tim. 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

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unconstitutional 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 capi
tal 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 en
actments 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, 458 U. S., at 788 (looking to “histori
cal development of the punishment at issue, legislative judg
ments, international opinion, and the sentencing decisions ju
ries 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 judg
ment, our holding is that a death sentence for one who raped
but did not kill a child, and who did not intend to assist an
other in killing the child, is unconstitutional under the
Eighth and Fourteenth Amendments.

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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 pen
alty for the crime of rape is an instructive beginning point.
In 1925, 18 States, the District of Columbia, and the Fed
eral Government had statutes that authorized the death pen
alty for the rape of a child or an adult. See Coker, supra,
at 593 (plurality opinion). Between 1930 and 1964, 455 peo
ple were executed for those crimes. See 5 Historical Statis
tics 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 Com
prehensive Registry of Legal Executions, Pardons, and Com
mutations 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 invali
dated under state or federal law. See Coker, supra (striking
down Georgia’s capital rape statute); Woodson v. North Car
olina, 428 U. S. 280, 287, n. 6, 301–305 (1976) (plurality opin
ion) (striking down North Carolina’s mandatory death pen
alty 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. 1977) (striking
down Tennessee’s mandatory death penalty statute); Buford

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v. State, 403 So. 2d 943, 951 (Fla. 1981) (holding unconstitu
tional 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 inter
course with a child under the age of 13 constitutes aggra
vated rape and is punishable by death. See § 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
§ 22.021(a). 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 aggra
vating 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, includ
ing certain nonhomicide offenses; but it did not do the same
for child rape or abuse. See 108 Stat. 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.

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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. § 16–6–3 (2007). The State’s current capital
rape statute, by contrast, is explicit that the rape of “[a] fe
male who is less than ten years of age” is punishable “by
death.” §§ 16–6–1(a)(2), (b). 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 stat
ute does authorize, by its terms, the death penalty for “sex
ual 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 sen
tence of death is grossly disproportionate and excessive pun
ishment for the crime of sexual assault and is therefore for
bidden by the Eighth 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,

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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 statis
tics. 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 pro
hibited the death penalty for juveniles, 18 of which permitted
the death penalty for other offenders; and 20 States author
ized 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 Atkins, 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

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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 Gov
ernment—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 juris
dictions, 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 Amend
ment jurisprudence.” Brief for Missouri Governor Matt
Blunt et al. as Amici Curiae 10. They submit that the gen
eral propositions set out in Coker, contrasting murder and
*When issued and announced on June 25, 2008, the Court’s decision nei
ther noted nor discussed the military penalty for rape under the Uniform
Code of Military Justice. See 10 U. S. C. §§ 856 (2000 ed.), 920 (2000 ed.
and Supp. V); Manual for Courts-Martial, United States, Part IV, Art. 120,
¶ 45.f(1), p. IV–78 (2008). In a petition for rehearing respondent argues
that the military penalty bears on our consideration of the question in this
case. For the reasons set forth in the statement respecting the denial of
rehearing, post, p. 946, we find that the military penalty does not affect
our reasoning or conclusions.

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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 proportional:
“Rape is without doubt deserving of serious punish
ment; but in terms of moral depravity and of the injury

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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. Geor
gia, 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 Tennes
see statute has since been invalidated because the death
sentence was mandatory. The upshot is 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 juris
dictions provide capital punishment when the victim is

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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 legisla
tures have understood Coker to state a broad rule that cov
ers the situation of the minor victim as well. We see little
evidence of this. Respondent cites no reliable data to indi
cate 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 legisla
tion has been proposed but not enacted we refuse to specu
late 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 con
sensus. 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 applica
bility of the death penalty for the rape of an adult woman. . . .
As we view Coker the Court carefully refrained from decid
ing 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

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opinion of the United States Supreme Court to be a dispro
portionate 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 com
mit murder and noting that “the constitutionality of laws
imposing the death penalty for crimes not necessarily result
ing 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 ag
gravated 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 nonhomi
cide 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 Su
preme Court . . . has 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

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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 uncon
stitutional. 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, re
flect a consistent direction of change in support of the death
penalty for child rape. Consistent change might counterbal
ance 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
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. As
sembly, 2d Reg. Sess. (Colo. 2008) (rejected by Senate Appro

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priations 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 Com
mittee 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 Ala
bama, 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 toward making child rape a
capital offense. This is evidenced by six new death penalty
statutes, three enacted in the last two years. But this show
ing is not as significant as the data in Atkins, where 18
States between 1986 and 2001 had enacted legislation prohib
iting the execution of mentally retarded persons. See At
kins, 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 empha
sized 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 ju
venile offenders. See 543 U. S., at 566–567. When we de
cided Stanford v. Kentucky, 492 U. S. 361 (1989), 12 death

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penalty States already prohibited the execution of any juve
nile 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 indica
tion 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 En
mund, where we found a national consensus against the
death penalty for vicarious felony murder despite eight juris
dictions 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,
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 422–423; 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. Okla
homa, 487 U. S. 815, 852–853 (1988) (O’Connor, J., concurring

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434 KENNEDY v. LOUISIANA
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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 peti
tioner 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 punish
ment for the crime of child rape.
IV
A
As we have said in other Eighth Amendment cases, objec
tive evidence of contemporary values as it relates to punish
ment for child rape is entitled to great weight, but 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 opin
ion); 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.

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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 pro
longed physical and mental suffering than, say, a sudden kill
ing 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, emo
tional, and sometimes physical impact on the child. See C.
Bagley & K. King, Child Sexual Abuse: The Search for Heal
ing 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 pro
portionate penalty for the crime. The constitutional prohi
bition against excessive or cruel and unusual punishments
mandates that the State’s power to punish “be exercised
within the limits of civilized standards.” Trop, 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 punish
ment. See id., at 100.

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To date the Court has sought to define and implement this
principle, for the most part, in cases involving capital mur
der. 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 pre
vent 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 pre
cise definition to the aggravating factors that warrant its im
position). At the same time the Court has insisted, to en
sure restraint and moderation in use of capital punishment,
on judging the “character and record of the individual of
fender 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) (plu
rality opinion).
The tension between general rules and case-specific cir
cumstances has produced results not altogether 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., concur
ring in part and concurring in judgment) (“The latter re
quirement 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 lat
itude. 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

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rules has raised doubts concerning the constitutionality of
capital punishment itself. See Baze v. Rees, 553 U. S. 35,
82–86 (2008) (Stevens, J., concurring in judgment); Fur
man, supra, at 310–314 (White, J., concurring); Callins v.
Collins, 510 U. S. 1141, 1144–1145 (1994) (Blackmun, J., dis
senting 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 in
stances 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 pen
alty of death” (citing in part Furman, 408 U. S., at 286–291
(Brennan, J., concurring); id., at 306 (Stewart, J., concur
ring))); see also Roper, 543 U. S., at 569 (the Eighth Amend
ment requires that “the death penalty is reserved for a nar
row 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 king
pin activity, which are offenses against the State. As it re
lates to crimes against individuals, though, the death penalty
should not be expanded to instances where the 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 integ
rity 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 irrevo

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cability,’ 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 “se
verity 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 includ
ing child rape, on the other. The latter crimes may be dev
astating in their harm, as here, but “in terms of moral de
pravity 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 number
of executions that would be allowed under respondent’s ap
proach. The crime of child rape, considering its reported
incidents, occurs more often than first-degree murder. Ap
proximately 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 pe
riod. See Inter-University Consortium for Political and So
cial Research, National Incident-Based Reporting System,
2005, Study No. 4720, online at http://www.icpsr.umich.edu
(as visited June 12, 2008, and available in Clerk of Court’s

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case file). Although we have no reliable statistics on convic
tions for child rape, we can surmise that, each year, there
are hundreds, or more, of these convictions just in jurisdic
tions that permit capital punishment. Cf. Brief for Louisi
ana 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, Explain
ing Death Row’s Population and Racial Composition, 1 J. of
Empirical Legal Studies 165, 171 (2004). But under re
spondent’s approach, the 36 States that permit the death
penalty could sentence to death all persons convicted of rap
ing 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 iden
tify 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. Even were we to
forbid, say, the execution of first-time child rapists, see
supra, at 422–423, or require as an aggravating factor a find
ing that the perpetrator’s instant rape offense involved mul
tiple 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 con
fidence that the imposition of the death penalty would not be
so arbitrary as to be “freakis[h],” Furman, supra, at 310
(Stewart, J., concurring). We cannot sanction this result
when the harm to the victim, though grave, cannot be quanti
fied in the same way as death of the victim.

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It is not a solution simply to apply to this context the ag
gravating 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 adopt
ing 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, accord
ingly, 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 an
guish 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.
As noted above, the resulting imprecision and the tension
between evaluating the individual circumstances and consist
ency 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, be
ginning the same process for crimes for which no one has

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been executed in more than 40 years would require experi
mentation in an area where a failed experiment would result
in the execution of individuals undeserving of the death pen
alty. 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 re
tributive function. See id., at 593, n. 4 (concluding that the
death penalty for rape might serve “legitimate ends of pun
ishment” but nevertheless is disproportionate to the crime).
Cf. Gregg, 428 U. S., at 185–186 ( joint opinion of Stewart,
Powell, and Stevens, JJ.) (“[T]here is no convincing empiri
cal 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 pe
nological goals, typically is a “complex factual issue the reso
lution 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 overpunish

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ment 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 harsh
ness 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 (plu
rality opinion).
There is an additional reason for our conclusion that im
posing 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 capi
tal 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 ultimate penalty must be
sought and imposed.” Panetti v. Quarterman, 551 U. S.
930, 958 (2007). In considering the death penalty for non
homicide 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 sen
tencing 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 re
quired to discuss the case at length with law enforcement
personnel. In a public trial she was required to recount

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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 punish
ment can cause in the administration and enforcement of
laws proscribing child rape.
There are, moreover, serious systemic concerns in prose
cuting the crime of child rape that are relevant to the con
stitutionality 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 re
inforcement. See Ceci & Friedman, The Suggestibility of
Children: Scientific Research and Legal Implications, 86 Cor
nell L. Rev. 33, 47 (2000) (there is “strong evidence that chil
dren, especially young children, are suggestible to a signifi
cant degree—even on abuse-related questions”); Gross,
Jacoby, Matheson, Montgomery, & Patil, Exonerations in the

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United States 1989 Through 2003, 95 J. Crim. L. & C. 523,
539 (2005) (discussing allegations of abuse at the Little Ras
cals 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, supra, at 118. And the question in a
capital case 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 & 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 nonreporting, that, too, diminishes the penalty’s
objectives. Underreporting is a common problem with re
spect 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 Na
tional Survey, 24 Child Abuse & Neglect 273, 278–279 (2000)

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(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 conse
quences 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 bond”); Hanson,
supra, at 565–566, and Table 3 (finding that a “significantly
greater proportion of reported than nonreported cases in
volved a stranger”); see also Ritchie, supra, at 60. The ex
perience 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 de
terrence, 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 ar

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gued 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, uncer
tainty on the point makes the argument for the penalty less
compelling than for homicide crimes.
Each of these propositions, standing alone, might not es
tablish the unconstitutionality of the death penalty for the
crime of child rape. Taken in sum, however, they demon
strate the serious negative consequences of making child
rape a capital offense. These considerations lead us to con
clude, in our independent judgment, that the death penalty
is not a proportional punishment for the rape of a child.
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 en
meshed 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 (plu
rality 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 de
cency with specific marks on the way to full progress and
mature judgment means that resort to the penalty must be

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Alito, J., dissenting
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 ad
herence 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 uphold
ing the capital sentence is reversed. This case is remanded
for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Alito, with whom The Chief Justice, Justice
Scalia, and Justice Thomas join, dissenting.
The Court today holds that the Eighth Amendment cate
gorically 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 in
flicted, 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 im
posing the death penalty for child rape is inconsistent with
“ ‘the evolving standards of decency that mark the prog
ress of a maturing society.’ ” Ante, at 419, 426, 427. Be
cause neither of these justifications is sound, I respectfully
dissent.

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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
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 419
(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 per
mit 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 pen
alty 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 constit
uents—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 428. 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 ibid. (Marshall, J., concurring in judg

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449 Cite as: 554 U. S. 407 (2008)
Alito, J., dissenting
ment). Four other Justices, who joined the controlling plu
rality opinion, suggested that the Georgia capital rape stat
ute 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 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 plu
rality 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 reason
able 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 429–430, 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 Amend
ment 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

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450 KENNEDY v. LOUISIANA
Alito, J., dissenting
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 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. Her
nandez, 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 dif
ference 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 consti
tutionally 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 pen
alty “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

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Alito, J., dissenting
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 05–1981 (La. 5/22/07),
957 So. 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
1 Commentators have expressed similar views. See Fleming, Louisi
ana’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”); Bailey,
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 Missis
sippi 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”).

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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 the bur
den of drafting an innovative law that must take into account
this Court’s exceedingly complex Eighth Amendment juris
prudence. 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 in
volved. 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 constitu
tionality of the statute on appeal and in collateral proceed
ings. And if the law is eventually overturned, there is the
burden of new proceedings on remand. Moreover, conscien
tious 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 pre
vailing “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 legisla
tures typically do not create legislative materials like those

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453 Cite as: 554 U. S. 407 (2008)
Alito, J., dissenting
produced by Congress, there is evidence that proposals to
permit the imposition of the death penalty for child rape
were opposed on the ground that enactment would be futile
and costly.
In Oklahoma, the opposition to the State’s capital child
rape statute argued that Coker had already ruled the death
penalty unconstitutional as applied to cases of rape. See
Oklahoma State Senate News Release, Senator Nichols
Targets Child Predators With Death Penalty, Child Abuse
Response Team, May 26, 2006, online at http://www.oksenate.
gov/news/press_releases/press_releases_2006/pr20060526dpv.
html (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, p. 10 (stat
ing 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. Su

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454 KENNEDY v. LOUISIANA
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preme Court that death penalty laws that would be rarely
imposed or that are not supported by a broad national con
sensus 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 At
kins or Roper v. Simmons, 543 U. S. 551 (2005). See ante,
at 425. Atkins concerned the constitutionality of imposing
the death penalty on a mentally retarded defendant. Thir
teen 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 pen
alty 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 pre
vail 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 at
tach to the values of their constituents. But when state leg
islators think that the enactment of a new death penalty law
is likely to be futile, inaction cannot reasonably be inter
preted as an expression of their understanding of prevailing
societal values. In that atmosphere, legislative inaction is
more likely to evidence acquiescence.

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455 Cite as: 554 U. S. 407 (2008)
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D
If anything can be inferred from state legislative develop
ments, 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 “evolving” toward ever higher “stand
ards of decency,” ante, at 446, these enactments might repre
sent 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), which requires States receiv
ing certain federal funds to establish registration systems
2 From 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 Fed. Probation 69 (Sept. 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 ages 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 http://www.unh.edu/ccrc/sexual-abuse/Child%20Sexual%20Abuse.pdf.

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456 KENNEDY v. LOUISIANA
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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
3 Ala. Code §§ 13A–11–200 to 13A–11–202, 13A–11–1181 (2006); Alaska
Stat. §§ 11.56.840, 12.63.010 to 12.63.100, 18.65.087, 28.05.048, 33.30.035
(2006); Ariz. Rev. Stat. Ann. §§ 13–3821 to 13–3825 (2001 and Supp. 2007);
Ark. Code Ann. §§ 12–12–901 to 12–12–909 (2003 and Supp. 2007); Cal.
Penal Code Ann. §§ 290 to 290.4 (2008); Colo. Rev. Stat. Ann. §§ 16–22–103
to 16–22–104, 18–3–412.5 (2007); Conn. Gen. Stat. §§ 54–251 to 54–254
(2008 Supp.); Del. Code Ann., Tit. 11, § 4120 (2007); Fla. Stat. Ann.
§§ 775.13, 775.21 (2007); Ga. Code Ann. § 42–1–12 (Supp. 2007); Haw. Rev.
Stat. §§ 846E–1, 846E–2 (2006 Cum. Supp.); Idaho Code §§ 18–8304 to 18–
8311 (Supp. 2008); Ill. Comp. Stat. Ann., ch. 730, §§ 150/1 to 150/10, 152/
101 to 152/121 (2006); Ind. Code §§ 11–8–8–1 to 11–8–8–7 (Supp. 2007);
Iowa Code Ann. §§ 692A.1 to 692A.16 (2003 and Supp. 2008); Kan. Stat.
Ann. §§ 22–4901 to 22–4910 (1995); Ky. Rev. Stat. Ann. §§ 17.500 to 17.540
(Lexis 2003 and Supp. 2007); La. Stat. Ann. §§ 15:540 to 15:549 (2005 and
Supp. 2008); Me. Rev. Stat. Ann., Tit. 34–A, §§ 11201 to 11204, 11221 to
11228 (2007 Supp. Pamphlet); Md. Crim. Proc. Code Ann. §§ 11–701 to 11–
721 (Lexis 2001 and Supp. 2007); Mass. Gen. Laws Ann., ch. 6, §§ 178D to
178J (West 2006 and Supp. 2008); Mich. Comp. Laws §§ 28.721 to 28.731
(West 2004 and Supp. 2008); Minn. Stat. Ann. § 243.166 (West 2003 and
Supp. 2008); Miss. Code Ann. §§ 45–33–21 to 45–33–59 (West 1999 and
Supp. 2007); Mo. Rev. Stat. Ann. §§ 589.400 to 589.425 (2003 and Supp.
2008), § 211.45 (2004); Mont. Code Ann. §§ 46–23–501 to 46–23–507 (2007);
Neb. Rev. Stat. §§ 29–4001 to 29–4013 (2003 and Supp. 2007); Nev. Rev.
Stat. §§ 179B.010 to 179B.250 (2007); N. H. Rev. Stat. Ann. §§ 651–B:1 to
651–B:7 (2007 and Supp. 2007); N. J. Stat. Ann. §§ 2C:7–1 to 2C:7–20 (West
2005 and Supp. 2008); N. M. Stat. Ann. §§ 29–11A–1 to 29–11A–8 (2004 and
Supp. 2008); N. Y. Correc. Law Ann., Art. 6–C, §§ 168 to 168–V (West 2003
and Supp. 2008); N. C. Gen. Stat. Ann. §§ 14–208.5 to 14–208.26 (Lexis
2007); N. D. Cent. Code Ann. § 12.1–32–15 (Lexis 1997 and Supp. 2007);
Ohio Rev. Code Ann. §§ 2950.01 to 2950.11 (West 2006 and Supp. 2008);
Okla. Stat., Tit. 57, §§ 581 to 585 (West 2001), Tit. 57, §§ 591 to 594 (West
2007 Supp.); Ore. Rev. Stat. §§ 181.585 to 181.606, 181.826 (2007); 42 Pa.
Cons. Stat. §§ 9791 to 9799.9 (2006); R. I. Gen. Laws §§ 11–37.1–1 to 11–
37.1–12 (2002 and Supp. 2007); S. C. Code Ann. §§ 23–3–430 to 23–3–490
(2007 and Supp. 2007); S. D. Codified Laws §§ 22–24B–1 to 22–24B–15 (2006
and Supp. 2008); Tenn. Code Ann. §§ 40–39–201 to 40–39–212 (2006
and Supp. 2007); Tex. Code Crim. Proc. Ann., Arts. 62.001 to 62.002,
62.051 to 62.059 (Vernon 2006 and Supp. 2008); Utah Code Ann. § 77–27–

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least 21 States and the District of Columbia now have stat
utes permitting the involuntary commitment of sexual preda
tors,4 and at least 12 States have enacted residency restric
tions for sex offenders.5
21.5 (2003 and 2008 Supp.); Vt. Stat. Ann., Tit. 13, §§ 5401 to 5414 (1998
and Supp. 2007); Va. Code Ann. §§ 9.1–900 to 9.1–921 (2006 and Supp. 2007);
Wash. Rev. Code §§ 4.24.550, 9A.44.130, 9A.44.140, 10.01.200, 70.48.470,
72.09.330 (2006); W. Va. Code Ann. §§ 15–12–1 to 15–12–10 (Lexis 2004 and
Supp. 2007); Wis. Stat. §§ 301.45 to 301.48 (2005 and Supp. 2007); Wyo. Stat.
Ann. §§ 7–19–301 to 7–19–307 (2005).
4 Those States are Arizona, California, Connecticut, the District of Co
lumbia, Florida, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Minne
sota, Missouri, Nebraska, New Jersey, North Dakota, Oregon, Pennsylva
nia, South Carolina, Texas, Virginia, Washington, and Wisconsin. See
Ariz. Rev. Stat. Ann. §§ 36–3701 to 36–3717 (West 2003 and Supp. 2007);
Cal. Welf. & Inst. Code Ann. §§ 6600 to 6609.3 (West 1998 and Supp. 2008);
Conn. Gen. Stat. § 17a–566 (2006); D. C. Code §§ 22–3803 to 22–3811 (2001);
Fla. Stat. Ann. §§ 394.910 to 394.932 (West 2006 and Supp. 2008); Ill. Comp.
Stat., ch. 725, §§ 207/1 to 207/99 (2006); Iowa Code Ann. §§ 229A.1 to
229A.16 (West 2006 and Supp. 2008); Kan. Stat. Ann. §§ 59–29a01 to 59–
29a21 (2005 and 2007 Cum. Supp.); Ky. Rev. Stat. Ann. § 202A.051 (West
2006); Mass. Ann. Laws, ch. 123A et seq. (2003 and Supp. 2008); Minn. Stat.
Ann. §§ 253B.01 to 253B.23 (2003 and Supp. 2007); Mo. Ann. Stat. §§ 632.480
to 632.513 (West 2006 and Supp. 2008); Neb. Rev. Stat. Ann. §§ 83–174 to
83–174.05 (Lexis 2007); N. J. Stat. Ann. §§ 30:4–27.24 to 30:4–27.38 (West
2008); N. D. Cent. Code Ann. §§ 25–03.3–01 to 25–03.3–23 (Lexis 2002 and
Supp. 2007); Ore. Rev. Stat. §§ 426.005 to 426.070, 426.510 to 426.680
(2007); Pa. Stat. Ann., Tit. 42, §§ 9791 to 9799.9 (Purdon 2007 and Supp.
2008); S. C. Code Ann. §§ 44–48–10 to 44–48–170 (2002 and Supp. 2007);
Tex. Health & Safety Code Ann. §§ 841.001 to 841.150 (West 2003 and Supp.
2007); Va. Code Ann. §§ 37.2–900 to 37.2–920 (Lexis 2005 and Supp. 2007);
Wash. Rev. Code Ann. §§ 71.09.010 to 71.09.902 (West 2002 and Supp. 2008);
Wis. Stat. Ann. §§ 980.01 to 980.14 (West 2007).
5 See Ala. Code § 15–20–26 (Supp. 2007) (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 one-half mile 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 one-half mile from a primary school); Fla. Stat.
Ann. § 947.1405(7)(a)(2) (West Supp. 2008) (released sex offender with vic

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458 KENNEDY v. LOUISIANA
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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 431–432. These
developments, however, all took place after our decision to
grant certiorari in this case, see 552 U. S. 1087 (2008), which
gave state legislators reason to delay the enactment of new
legislation until the constitutionality of such laws was clari
fied. 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 other
wise. For example, in Colorado, the Senate Appropriations
Committee in April voted 6 to 4 against Senate Bill 195, re
portedly 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
tim under 18 prohibited from living within 1,000 feet of a school, daycare
center, park, playground, or other place where children regularly congre
gate); Ga. Code Ann. §§ 42–1–13, 42–1–15 (Supp. 2007) (sex offenders re
quired 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) (West 2006) (child sex offenders prohibited from knowingly
residing within 500 feet of schools); Ky. Rev. Stat. Ann. § 17.545 (West
Supp. 2007) (registered sex offenders on supervised release shall not re
side within 1,000 feet of school or childcare facility); La. Stat. Ann.
§ 14:91.1 (West Supp. 2008) (sexually violent predators shall not reside
within 1,000 feet of schools unless permission is given by school superin
tendent); Ohio Rev. Code Ann. § 2950.034 (Lexis Supp. 2008) (sex offenders
prohibited from residing within 1,000 feet of school); Okla. Stat., Tit. 57,
§ 590 (West Supp. 2008) (prohibits sex offenders from residing within 2,000
feet of schools or educational institutions); Ore. Rev. Stat. § 144.642 (2007)
(incorporates general prohibition on supervised sex offenders living near
places where children reside); Tenn. Code Ann. § 40–39–111 (2006) (re
pealed by Acts 2004, ch. 921, § 4, effective Aug. 1, 2004) (sex offenders
prohibited from establishing residence within 1,000 feet of school, child
care facility, or victim).

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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 situa
tion, we thought to withdraw 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 na
tional “consensus,” ante, at 422, but these arguments are pat
ent makeweights. The Court notes that Congress has not
enacted a law permitting a federal district court to impose
the death penalty for the rape of a child, ante, at 423, 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 Commis
sion, 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 evi
dence of Congress’ assessment of our society’s values.6
Finally, the Court argues that statistics about the number
of executions in rape cases support its perception of a “na
tional consensus,” but here too the statistics do not support
the Court’s position. The Court notes that the last execu
tion for the rape of a child occurred in 1964, ante, at 433,
but the Court fails to mention that litigation regarding the
6 Moreover, as noted in the petition for rehearing, the Uniform Code of
Military Justice permits such a sentence. See 10 U. S. C. § 856 (2000 ed.);
Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9),
p. II–131 (2008); id., Part IV, Art. 120, ¶ 45.f(1), p. IV–78.

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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.7 The Court also fails
to mention that in Louisiana, since the state law was
amended in 1995 to make child rape a capital offense, prose
cutors 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; State v. LeBlanc, 00–1322 (La. App. 5/13/01),
788 So. 2d 1255; 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, Louisi
ana juries imposed the death penalty. See 957 So. 2d 757;
Davis, supra. This 50% record is hardly evidence that ju
ries share the Court’s view that the death penalty for the
rape of a young child is unacceptable under even the most
aggravated circumstances.8
F
In light of the points discussed above, I believe that the
“objective indicia” of our society’s “evolving standards of de
cency” can be fairly summarized as follows. Neither Con
gress 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 under
standing of our society’s standards of decency. And in the
months following our grant of certiorari in this case, state
7 Department 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: The ESPY File
Executions by Date (2007), online at http://www.deathpenaltyinfo.org/
ESPYyear.pdf.
8 Of course, the other five capital child-rape statutes are too recent for
any individual to have been sentenced to death under them.

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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 estab
lish a “national consensus” or even that they are sure evi
dence of an ineluctable trend. In terms of the Court’s meta
phor 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 434 (internal quotation marks
omitted). 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 inter
ests 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

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the death penalty. Ante, at 442–443. The Court also ar
gues that “a State that punishes child rape by death may
remove a strong incentive for the rapist not to kill the vic
tim,” ante, at 445, and may discourage the reporting of child
rape, ante, at 444–445.
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 vic
tims 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 cau
tioned against using “ ‘the aegis of the Cruel and Unusual
Punishment Clause’ to cut off the normal democratic proc
esses,” Atkins v. Virginia, 536 U. S., at 323 (Rehnquist, C. J.,
dissenting) (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 439–440, and that the unreliability
of the testimony of child victims creates a danger that inno
cent defendants will be convicted and executed, ante, at 443–
444. Neither of these contentions provides a basis for strik
ing down all capital child-rape laws no matter how carefully
and narrowly they are crafted.
The Court’s argument regarding the structuring of sen
tencing discretion is hard to comprehend. The Court finds
it “difficult to identify standards that would guide the deci
sionmaker so the penalty is reserved for the most severe

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cases of child rape and yet not imposed in an arbitrary way.”
Ante, at 439. 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-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 im
posed. 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 of
fender 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 adju
dicated 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) (West Supp. 2007) (“[A] defend
ant 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 of
fense against a victim younger than fourteen years of age]”).
Moreover, it takes little imagination to envision other lim
iting factors that a State could use to structure sentencing
discretion in child-rape cases. Some of these might be:
whether the victim was kidnaped, whether the defendant in
flicted severe physical injury on the victim, whether the vic

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tim was raped multiple times, whether the rapes occurred
over a specified extended period, and whether there were
multiple victims.
The Court refers to limiting standards that are “indefinite
and obscure,” ante, at 441, 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 aggra
vating 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 “ ‘cold-blooded, 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 lim
iting 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 vic
tims. First, the Eighth Amendment provides a poor vehicle
for addressing problems regarding the admissibility or relia
bility of evidence, and problems presented by the testimony
of child victims are not unique to capital cases. Second, con
cerns 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 rele
vance, they could be addressed by allowing the death penalty
in only those child-rape cases in which the independent evi
dence is sufficient to prove all the elements needed for con
viction and imposition of a death sentence. There is prece
dent for requiring special corroboration in certain criminal

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cases. For example, some jurisdictions do not allow a con
viction based on the uncorroborated testimony of an accom
plice. 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
(Lexis 1974); Okla. Stat., 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 hesi
tant before interpreting the Eighth Amendment to allow the
extension of the death penalty.” Ante, at 435 (emphasis
added); see also ante, at 437, 441 (referring to expansion of
the death penalty). But holding that the Eighth Amend
ment 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 428
(Coker “does not speak to the constitutionality of the death
penalty for child rape, an issue not then before the Court”).

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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 per
manent constitutional maximum, disabling the 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 de
fendants have been executed since this Court’s 1976 death
penalty decisions,9 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 437–438. 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 U. S. 137 (1987).
In the second case, a previously convicted child rapist kid
naps, repeatedly rapes, and tortures multiple child victims.
Is it clear that the first defendant is more morally depraved
than the second?
9 Gregg v. Georgia, 428 U. S. 153; Proffitt v. Florida, 428 U. S. 242; Jurek
v. Texas, 428 U. S. 262; Woodson v. North Carolina, 428 U. S. 280; Roberts
v. Louisiana, 428 U. S. 325.

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The Court’s decision here stands in stark contrast to At
kins and Roper, in which the Court concluded that character
istics of the affected defendants—mental retardation in At
kins 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 de
pravity 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 seri
ous physical and emotional injury on defenseless young chil
dren—are the epitome of moral depravity.
With respect to the question of the harm caused by the
rape of a 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 437. 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 young children.
This is puzzling in light of the Court’s acknowledgment that
“[r]ape has a permanent psychological, emotional, and some
times physical impact on the child.” Ante, at 435. As the
Court aptly recognizes, “[w]e cannot dismiss the years of

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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 psychologi
cally 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 devas
tating dimension to rape that is not present when an adult
is raped.” Meister, Murdering Innocence: The Constitution
ality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197,
208–209 (2003). See also State v. Wilson, 96–1392, p. 6 (La.
12/13/96), 685 So. 2d 1063, 1067; Broughton, “On Horror’s
Head Horrors Accumulate”: A Reflective Comment on Capi
tal Child Rape Legislation, 39 Duquesne L. Rev. 1, 38 (2000).
Long-term studies show that sexual abuse is “grossly intru
sive 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 dis
turbed.” A. Lurigio, M. Jones, & B. Smith, Child Sexual
Abuse: Its Causes, Consequences, and Implications for Pro
bation Practice, 59 Fed. Probation 69, 70 (Sept. 1995). Psy
chological problems include sudden school failure, unpro
voked crying, dissociation, depression, insomnia, sleep
disturbances, nightmares, feelings of guilt and inferiority,
and self-destructive behavior, including an increased inci
dence of suicide. Meister, supra, at 209; Broughton, supra,
at 38; Glazer, Child Rapists Beware! The Death Penalty and
Louisiana’s Amended Aggravated Rape Statute, 25 Am. J.
Crim. L. 79, 88 (1997).
The deep problems that afflict child-rape victims often be
come society’s problems as well. Commentators have noted

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correlations between childhood sexual abuse and later prob
lems 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 num
ber of other States that these harms justify the death pen
alty. The Court provides no cogent explanation why this
legislative judgment should be overridden. Conclusory ref
erences to “decency,” “moderation,” “restraint,” “full prog
ress,” 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 Amend
ment; (2) neither Coker nor any other prior precedent com
mands 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 legis
latures from adopting new capital punishment statutes to
meet new problems; (6) the worst child rapists exhibit the
epitome of moral depravity; and (7) child rape inflicts griev
ous injury on victims and on society in general.

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The party attacking the constitutionality of a state statute
bears the “heavy burden” of establishing that the law is un
constitutional. 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 deci
sion of the Louisiana Supreme Court.