OPINION OF THE COURT KENNEDY V. LOUISIANA 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-343 PATRICK KENNEDY, PETITIONER v. LOUISIANA

															on writ of certiorari to the supreme court of
louisiana

															[June 25, 2008]

															   Justice Kennedy delivered the
opinion of the Court. The National Government
and, beyond it, the separate States are bound by the proscriptive
mandates of the Eighth Amendment to the Constitution of the United
States, and all persons within those respective jurisdictions may
invoke its protection. See Amdts. 8 and 14, §1; Robinson v. California , 370 U. S. 660 (1962).
Patrick Kennedy, the petitioner here, seeks to set aside his death
sentence under the Eighth Amendment. He was charged by the
respondent, the State of Louisiana, with the aggravated rape of his
then-8-year-old stepdaughter. After a jury trial petitioner was
convicted and sentenced to death under a state statute authorizing
capital punishment for the rape of a child under 12 years of age.
See La. Stat. Ann. §14:42 (West 1997 and Supp. 1998). This case
presents the question whether the Constitution bars respondent from
imposing the death penalty for the rape of a child where the crime
did not result, and was not intended to result, in death of the
victim. We hold the Eighth Amendment prohibits the death penalty
for this offense. The Louisiana statute is unconstitutional.

															I

															   Petitioner’s crime was one that
cannot be recounted in these pages in a way sufficient to capture
in full the hurt and horror inflicted on his victim or to convey
the revulsion society, and the jury that represents it, sought to
express by sentencing petitioner to death. At 9:18 a.m. on March 2,
1998, petitioner called 911 to report that his stepdaughter,
referred to here as L. H., had been raped. He told the 911
operator that L. H. had been in the garage while he readied his son
for school. Upon hearing loud screaming, petitioner said, he ran
outside and found L. H. in the side yard. Two neighborhood boys,
petitioner told the operator, had dragged L. H. from the
garage to the yard, pushed her down, and raped her. Petitioner
claimed he saw one of the boys riding away on a blue 10-speed
bicycle.

															   When police arrived at
petitioner’s home between 9:20 and 9:30 a.m., they found L. H.
on her bed, wearing a T-shirt and wrapped in a bloody blanket. She
was bleeding profusely from the vaginal area. Petitioner told
police he had carried her from the yard to the bathtub and then to
the bed. Consistent with this explanation, police found a thin line
of blood drops in the garage on the way to the house and then up
the stairs. Once in the bedroom, petitioner had used a basin of
water and a cloth to wipe blood from the victim. This later
prevented medical personnel from collecting a reliable DNA
sample.

															   L. H. was transported to the Children’s
Hospital. An expert in pediatric forensic medicine testified that
L. H.’s injuries were the most severe he had seen from a
sexual assault in his four years of practice. A laceration to the
left wall of the vagina had separated her cervix from the back of
her vagina, causing her rectum to protrude into the vaginal
structure. Her entire perineum was torn from the posterior
fourchette to the anus. The injuries required emergency
surgery.

															   At the scene of the crime, at the hospital,
and in the first weeks that followed, both L. H. and
petitioner maintained in their accounts to investigators that
L. H. had been raped by two neighborhood boys. One of
L. H.’s doctors testified at trial that L. H. told all
hospital personnel the same version of the rape, although she
reportedly told one family member that petitioner raped her.
L. H. was interviewed several days after the rape by a
psychologist. The interview was videotaped, lasted three hours over
two days, and was introduced into evidence at trial. On the tape
one can see that L. H. had difficulty discussing the subject
of the rape. She spoke haltingly and with long pauses and frequent
movement. Early in the interview, L. H. expressed reservations
about the questions being asked:

															“I’m going to tell the same story. They just want
me to change it… . They want me to say my Dad did it… . I
don’t want to say it… . I tell them the same, same story.”
Def. Exh. D–7, 01:29:07–:36.

															   She told the psychologist that
she had been playing in the garage when a boy came over and asked
her about Girl Scout cookies she was selling; and that the boy
“pulled [her by the legs to] the backyard,” id., at
01:47:41–:52, where he placed his hand over her mouth, “pulled down
[her] shorts,” Def. Exh. D–8, 00:03:11–:12, and raped her, id., at 00:14:39–:40.

															   Eight days after the crime, and despite
L. H.’s insistence that petitioner was not the offender,
petitioner was arrested for the rape. The State’s investigation had
drawn the accuracy of petitioner and L. H.’s story into
question. Though the defense at trial proffered alternative
explanations, the case for the prosecution, credited by the jury,
was based upon the following evidence: An inspection of the side
yard immediately after the assault was inconsistent with a rape
having occurred there, the grass having been found mostly
undisturbed but for a small patch of coagulated blood. Petitioner
said that one of the perpetrators fled the crime scene on a blue
10-speed bicycle but gave inconsistent descriptions of the
bicycle’s features, such as its handlebars. Investigators found a
bicycle matching petitioner and L. H.’s description in tall
grass behind a nearby apartment, and petitioner identified it as
the bicycle one of the perpetrators was riding. Yet its tires were
flat, it did not have gears, and it was covered in spider webs. In
addition police found blood on the underside of L. H.’s
mattress. This convinced them the rape took place in her bedroom,
not outside the house.

															   Police also found that petitioner made two
telephone calls on the morning of the rape. Sometime before 6:15
a.m., petitioner called his employer and left a message that he was
unavailable to work that day. Petitioner called back between 6:30
and 7:30 a.m. to ask a colleague how to get blood out of a white
carpet because his daughter had “ ‘just become a young
lady.’ ” Brief for Respondent 12. At 7:37 a.m., petitioner
called B & B Carpet Cleaning and requested urgent assistance in
removing bloodstains from a carpet. Petitioner did not call 911
until about an hour and a half later.

															   About a month after petitioner’s arrest
L. H. was removed from the custody of her mother, who had
maintained until that point that petitioner was not involved in the
rape. On June 22, 1998, L. H. was returned home and told her
mother for the first time that petitioner had raped her. And on
December 16, 1999, about 21 months after the rape, L. H.
recorded her accusation in a videotaped interview with the Child
Advocacy Center.

															   The State charged petitioner with aggravated
rape of a child under La. Stat. Ann. §14:42 (West 1997 and Supp.
1998) and sought the death penalty. At all times relevant to
petitioner’s case, the statute provided:

															   “A. Aggravated rape is a rape
committed … where the anal or vaginal sexual intercourse is deemed
to be without lawful consent of the victim because it is committed
under any one or more of the following circumstances:

															.     .     .     .     .

															   “(4) When the victim is under the age of
twelve years. Lack of knowledge of the victim’s age shall not be a
defense.

															.     .     .     .     .

															   “D. Whoever commits the crime of
aggravated rape shall be punished by life imprisonment at hard
labor without benefit of parole, probation, or suspension of
sentence.

															   “(1) However, if the victim was under the
age of twelve years, as provided by Paragraph A(4) of this
Section:

															   “(a) And if the district attorney seeks a
capital verdict, the offender shall be punished by death or life
imprisonment at hard labor without benefit of parole, probation, or
suspension of sentence, in accordance with the determination of the
jury.”

															(Since petitioner was convicted and sentenced, the
statute has been amended to include oral intercourse within the
definition of aggravated rape and to increase the age of the victim
from 12 to 13. See La. Stat. Ann. §14:42 (West Supp. 2007).)

															   Aggravating circumstances are set forth in La.
Code Crim. Proc. Ann., Art. 905.4 (West 1997 Supp.). In pertinent
part and at all times relevant to petitioner’s case, the provision
stated:

															   “A. The following shall be
considered aggravating circumstances:

															   “(1) The offender was engaged in the
perpetration or attempted perpetration of aggravated rape, forcible
rape, aggravated kidnapping, second degree kidnapping, aggravated
burglary, aggravated arson, aggravated escape, assault by drive-by
shooting, armed robbery, first degree robbery, or simple
robbery.

															.     .     .     .     .

															   “(10) The victim was under the age of
twelve years or sixty-five years of age or older.”

															   The trial began in August 2003.
L. H. was then 13 years old. She testified that she
“ ‘woke up one morning and Patrick was on top of
[her].’ ” She remembered petitioner bringing her “[a] cup of
orange juice and pills chopped up in it” after the rape and
overhearing him on the telephone saying she had become a “young
lady.” 2005–1981, pp. 12, 15, 16 (La. 5/22/07), 957
So. 2d 757, 767, 769, 770. L. H. acknowledged that she
had accused two neighborhood boys but testified petitioner told her
to say this and that it was untrue. Id., at 769.

															   The jury having found petitioner guilty of
aggravated rape, the penalty phase ensued. The State presented the
testimony of S. L., who is the cousin and goddaughter of
petitioner’s ex-wife. S. L. testified that petitioner sexually
abused her three times when she was eight years old and that the
last time involved sexual intercourse. Id., at 772. She
did not tell anyone until two years later and did not pursue legal
action.

															   The jury unanimously determined that
petitioner should be sentenced to death. The Supreme Court of
Louisiana affirmed. See id., at 779–789, 793; see also State v. Wilson , 96–1392, 96–2076 (La. 12/13/96),
685 So. 2d 1063 (upholding the constitutionality of the death
penalty for child rape). The court rejected petitioner’s reliance
on Coker v. Georgia , 433 U. S. 584 (1977), noting that,
while Coker bars the use of the death penalty as
punishment for the rape of an adult woman, it left open the
question which, if any, other nonhomicide crimes can be punished by
death consistent with the Eighth Amendment. Because
“ ‘children are a class that need special protection,’ ”
the state court reasoned, the rape of a child is unique in terms of
the harm it inflicts upon the victim and our society. 957
So. 2d, at 781.

															   The court acknowledged that petitioner would
be the first person executed for committing child rape since La.
Stat. Ann. §14:42 was amended in 1995 and that Louisiana is in the
minority of jurisdictions that authorize the death penalty for the
crime of child rape. But following the approach of Roper v. Simmons , 543 U. S. 551 (2005),
and Atkins v. Virginia , 536 U. S. 304 (2002), it
found significant not the “numerical counting of which [S]tates …
stand for or against a particular capital prosecution,” but “the
direction of change.” 957 So. 2d, at 783 (emphasis deleted). Since
1993, the court explained, four more States—Oklahoma, South
Carolina, Montana, and Georgia—had capitalized the crime of child
rape and at least eight States had authorized capital punishment
for other nonhomicide crimes. By its count, 14 of the then-38
States permitting capital punishment, plus the Federal Government,
allowed the death penalty for nonhomicide crimes and 5 allowed the
death penalty for the crime of child rape. See id., at
785–786.

															   The state court next asked whether “child
rapists rank among the worst offenders.” Id., at 788. It
noted the severity of the crime; that the execution of child
rapists would serve the goals of deterrence and retribution; and
that, unlike in Atkins and Roper , there were no
characteristics of petitioner that tended to mitigate his moral
culpability. Id., at 788–789. It concluded: “[S]hort of
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 rejected petitioner’s argument that the death penalty for
the rape of a child under 12 years is disproportionate and upheld
the constitutionality of the statute. Chief Justice Calogero
dissented. Coker , supra, and Eberheart v. Georgia , 433 U. S. 917 (1977), in
his view, “set out a bright-line and easily administered rule” that
the Eighth Amendment precludes capital punishment for any offense
that does not involve the death of the victim. 957 So. 2d, at
794.

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

															II

															   The Eighth Amendment, applicable
to the States through the Fourteenth Amendment, provides that
“[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” The
Amendment proscribes “all excessive punishments, as well as cruel
and unusual punishments that may or may not be excessive.” Atkins , 536 U. S., at 311, n. 7. The Court explained
in Atkins , id., at 311, and Roper,
supra , at 560, that the Eighth Amendment’s protection against
excessive or cruel and unusual punishments flows from the basic
“precept of justice that punishment for [a] crime should be
graduated and proportioned to [the] offense.” Weems v. United States , 217 U. S. 349 , 367
(1910). Whether this requirement has been fulfilled is determined
not by the standards that prevailed when the Eighth Amendment was
adopted in 1791 but by the norms that “currently prevail.” Atkins , supra, at 311. The Amendment “draw[s] its
meaning from the evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles , 356 U. S. 86 , 101
(1958) (plurality opinion). This is because “[t]he standard of
extreme cruelty is not merely descriptive, but necessarily embodies
a moral judgment. The standard itself remains the same, but its
applicability must change as the basic mores of society change.” Furman v. Georgia , 408 U. S. 238 , 382 (1972) (Burger,
C. J., dissenting).

															   Evolving standards of decency
must embrace and express respect for the dignity of the person, and
the punishment of criminals must conform to that rule. See Trop, supra, at 100 (plurality opinion). As we shall
discuss, punishment is justified under one or more of three
principal rationales: rehabilitation, deterrence, and retribution.
See Harmelin v. Michigan , 501 U. S. 957 , 999
(1991) (Kennedy, J., concurring in part and concurring in
judgment); see also Part IV–B, infra . It is the last of
these, retribution, that most often can contradict the law’s own
ends. This is of particular concern when the Court interprets the
meaning of the Eighth Amendment in capital cases. When the law
punishes by death, it risks its own sudden descent into brutality,
transgressing the constitutional commitment to decency and
restraint.

															   For these reasons we have explained that
capital punishment must “be limited to those offenders who commit
‘a narrow category of the most serious crimes’ and whose extreme
culpability makes them ‘the most deserving of execution.’ ” Roper, supra, at 568 (quoting Atkins , supra , at 319). Though the death penalty is not invariably
unconstitutional, see Gregg v. Georgia , 428
U. S. 153 (1976), the Court insists upon confining the
instances in which the punishment can be imposed.

															   Applying this principle, we held in Roper and Atkins that the execution of juveniles
and mentally retarded persons are punishments violative of the
Eighth Amendment because the offender had a diminished personal
responsibility for the crime. See Roper, supra, at
571–573; Atkins, supra , at 318, 320. The Court further has
held that the death penalty can be disproportionate to the crime
itself where the crime did not result, or was not intended to
result, in death of the victim. In Coker, 433 U. S. 584 , for instance, the Court
held it would be unconstitutional to execute an offender who had
raped an adult woman. See also Eberheart, supra (holding
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 capital sentence of a defendant who aided and
abetted a robbery during which a murder was committed but did not
himself kill, attempt to kill, or intend that a killing would take
place. On the other hand, in Tison v. Arizona , 481 U. S. 137 (1987), the Court allowed the defendants’ death sentences to stand
where they did not themselves kill the victims but their
involvement in the events leading up to the murders was active,
recklessly indifferent, and substantial.

															   In these cases the Court has been guided by
“objective indicia of society’s standards, as expressed in
legislative enactments and state practice with respect to
executions.” Roper , 543 U. S., at 563; see also Coker , supra , at 593–597 (plurality opinion)
(finding that both legislatures and juries had firmly rejected the
penalty of death for the rape of an adult woman); Enmund , supra, at 788 (looking to “historical development of the
punishment at issue, legislative judgments, international opinion,
and the sentencing decisions juries have made”). The inquiry does
not end there, however. Consensus is not dispositive. Whether the
death penalty is disproportionate to the crime committed depends as
well upon the standards elaborated by controlling precedents and by
the Court’s own understanding and interpretation of the Eighth
Amendment’s text, history, meaning, and purpose. See id., at 797–801; Gregg , supra, at 182–183 (joint
opinion of Stewart, Powell, and Stevens, JJ.); Coker , supra , at 597–600 (plurality opinion).

															   Based both on consensus and our own
independent judgment, our holding is that a death sentence for one
who raped but did not kill a child, and who did not intend to
assist another in killing the child, is unconstitutional under the
Eighth and Fourteenth Amendments.

															III

															A

															   The existence of objective
indicia of consensus against making a crime punishable by death was
a relevant concern in Roper , Atkins , Coker , and Enmund , and we follow the approach of
those cases here. The history of the death penalty for the crime of
rape is an instructive beginning point.

															   In 1925, 18 States, the District
of Columbia, and the Federal Government had statutes that
authorized the death penalty for the rape of a child or an adult.
See Coker, supra, at 593 (plurality opinion). Between 1930
and 1964, 455 people were executed for those crimes. See 5
Historical Statistics of the United States: Earliest Times to the
Present, pp. 5–262 to 5–263 (S. Carter et al. eds. 2006)
(Table Ec343–357). To our knowledge the last individual executed
for the rape of a child was Ronald Wolfe in 1964. See H. Frazier,
Death Sentences in Missouri, 1803–2005: A History and Comprehensive
Registry of Legal Executions, Pardons, and Commutations 143
(2006).

															   In 1972, Furman invalidated most of
the state statutes authorizing the death penalty for the crime of
rape; and in Furman ’s aftermath only six States reenacted
their capital rape provisions. Three States—Georgia, North
Carolina, and Louisiana—did so with respect to all rape offenses.
Three States—Florida, Mississippi, and Tennessee—did so with
respect only to child rape. See Coker, supra, at 594–595
(plurality opinion). All six statutes were later invalidated under
state or federal law. See Coker , supra (striking
down Georgia’s capital rape statute); Woodson v. North
Carolina , 428
U. S. 280 , 287, n. 6, 301–305 (1976) (plurality opinion)
(striking down North Carolina’s mandatory death penalty statute); Roberts v. Louisiana , 428 U. S. 325 (1976)
(striking down Louisiana’s mandatory death penalty statute); Collins v. State , 550 S. W. 2d 643, 646
(Tenn. 1977) (striking down Tennessee’s mandatory death penalty
statute); Buford v. State , 403 So. 2d 943,
951 (Fla. 1981) (holding unconstitutional the imposition of death
for child rape); Leatherwood v. State , 548
So. 2d 389, 402–403 (Miss. 1989) (striking down the death
penalty for child rape on state-law grounds).

															   Louisiana reintroduced the death penalty for
rape of a child in 1995. See La. Stat. Ann. §14:42 (West Supp.
1996). Under the current statute, any anal, vaginal, or oral
intercourse with a child under the age of 13 constitutes aggravated
rape and is punishable by death. See La. Stat. Ann. §14:42 (West
Supp. 2007). Mistake of age is not a defense, so the statute
imposes strict liability in this regard. Five States have since
followed Louisiana’s lead: Georgia, see Ga. Code Ann. §16–6–1
(2007) (enacted 1999); Montana, see Mont. Code Ann. §45–5–503
(2007) (enacted 1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K)
(West 2007 Supp.) (enacted 2006); South Carolina, see S. C.
Code Ann. §16–3–655(C)(1) (Supp. 2007) (enacted 2006); and Texas,
see Tex. Penal Code Ann. §12.42(c)(3) (West Supp. 2007) (enacted
2007); see also Tex. Penal Code Ann. §22.021(a) (West Supp. 2007).
Four of these States’ statutes are more narrow than Louisiana’s in
that only offenders with a previous rape conviction are death
eligible. See Mont. Code Ann. §45–5–503(3)(c); Okla. Stat., Tit.
10, §7115(K); S. C. Code Ann. §16–3–655(C)(1); Tex. Penal Code
Ann. §12.42(c)(3). Georgia’s statute makes child rape a capital
offense only when aggravating circumstances are present, including
but not limited to a prior conviction. See Ga. Code Ann. §17–10–30
(Supp. 2007).

															   By contrast, 44 States have not made child
rape a capital offense. As for federal law, Congress in the Federal
Death Penalty Act of 1994 expanded the number of federal crimes for
which the death penalty is a permissible sentence, including
certain nonhomicide offenses; but it did not do the same for child
rape or abuse. See 108 Stat. 1972 (codified as amended in scattered
sections of 18 U. S. C.). Under 18 U. S. C. §2245, an
offender is death eligible only when the sexual abuse or
exploitation results in the victim’s death.

															   Petitioner claims the death penalty for child
rape is not authorized in Georgia, pointing to a 1979 decision in
which the Supreme Court of Georgia stated that “[s]tatutory rape is
not a capital crime in Georgia.” Presnell v. State , 243 Ga. 131, 132–133, 252 S. E. 2d 625, 626.
But it appears Presnell was referring to the separate
crime of statutory rape, which is not a capital offense in Georgia,
see Ga. Code Ann. §26–2018 (1969); cf. Ga. Code. Ann. §16–6–3
(2007). The State’s current capital rape statute, by contrast, is
explicit that the rape of “[a] female who is less than ten years of
age” is punishable “by death.” Ga. Code Ann. §§16–6–1(a)(2), (b)
(2007). Based on a recent statement by the Supreme Court of Georgia
it must be assumed that this law is still in force: “Neither the
United States Supreme Court, nor this Court, has yet addressed
whether the death penalty is unconstitutionally disproportionate
for the crime of raping a child.” State v. Velazquez , 283 Ga. 206, 208, 657 S. E. 2d 838, 840
(2008).

															   Respondent would include Florida among those
States that permit the death penalty for child rape. The state
statute does authorize, by its terms, the death penalty for “sexual
battery upon … a person less than 12 years of age.” Fla. Stat.
§794.011(2) (2007); see also §921.141(5) (2007). In 1981, however,
the Supreme Court of Florida held the death penalty for child
sexual assault to be unconstitutional. See Buford, supra .
It acknowledged that Coker addressed only the
constitutionality of the death penalty for rape of an adult woman,
403 So. 2d, at 950, but held that “[t]he reasoning of the
justices in Coker … compels [the conclusion] that a
sentence of death is grossly disproportionate and excessive
punishment for the crime of sexual assault and is therefore
forbidden by the Eighth Amendment as cruel and unusual punishment,” id., at 951. Respondent points out that the state statute
has not since been amended. Pursuant to Fla. Stat. §775.082(2)
(2007), however, Florida state courts have understood Buford to bind their sentencing discretion in child rape
cases. See, e.g., Gibson v. State , 721
So. 2d 363, 367, and n. 2 (Fla. App. 1998) (deeming it
irrelevant that “the Florida Legislature never changed the wording
of the sexual battery statute”); Cooper v. State ,
453 So. 2d 67 (Fla. App. 1984) (“After Buford , death
was no longer a possible penalty in Florida for sexual battery”);
see also Fla. Stat. §775.082(2) (“In the event the death penalty in
a capital felony is held to be unconstitutional by the Florida
Supreme Court … the court having jurisdiction over a person
previously sentenced to death for a capital felony … shall sentence
such person to life imprisonment”).

															   Definitive resolution of state-law issues is
for the States’ own courts, and there may be disagreement over the
statistics. It is further true that some States, including States
that have addressed the issue in just the last few years, have made
child rape a capital offense. The summary recited here, however,
does allow us to make certain comparisons with the data cited in
the Atkins , Roper, and Enmund cases.

															   When Atkins was decided in 2002, 30
States, including 12 noncapital jurisdictions, prohibited the death
penalty for mentally retarded offenders; 20 permitted it. See 536
U. S., at 313–315. When Roper was decided in 2005, the
numbers disclosed a similar division among the States: 30 States
prohibited the death penalty for juveniles, 18 of which permitted
the death penalty for other offenders; and 20 States authorized it.
See 543 U. S., at 564. Both in Atkins and in Roper , we noted that the practice of executing mentally
retarded and juvenile offenders was infrequent. Only five States
had executed an offender known to have an IQ below 70 between 1989
and 2002, see 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 had been sentenced to death for felony murder where the
defendant did not personally commit the homicidal assault, id., at 794. These facts, the Court concluded, “weigh[ed]
on the side of rejecting capital punishment for the crime.” Id., at 793.

															   The evidence of a national consensus with
respect to the death penalty for child rapists, as with respect to
juveniles, mentally retarded offenders, and vicarious felony
murderers, shows divided opinion but, on balance, an opinion
against it. Thirty-seven jurisdictions—36 States plus the Federal
Government—have the death penalty. As mentioned above, only six of
those jurisdictions authorize the death penalty for rape of a
child. Though our review of national consensus is not confined to
tallying the number of States with applicable death penalty
legislation, it is of significance that, in 45 jurisdictions,
petitioner could not be executed for child rape of any kind. That
number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited
the death penalty under the circumstances those cases
considered.

															B

															   At least one difference between
this case and our Eighth Amendment proportionality precedents must
be addressed. Respondent and its amici suggest that some
States have an “erroneous understanding of this Court’s Eighth
Amendment jurisprudence.” Brief for Missouri Governor Matt Blunt
et al. as Amici Curiae 10. They submit that the
general propositions set out in Coker, contrasting murder
and rape, have been interpreted in too expansive a way, leading
some state legislatures to conclude that Coker applies to
child rape when in fact its reasoning does not, or ought not, apply
to that specific crime.

															   This argument seems logical at
first, but in the end it is unsound. In Coker, a
four-Member plurality of the Court, plus Justice Brennan and
Justice Marshall in concurrence, held that a sentence of death for
the rape of a 16-year-old woman, who was a minor under Georgia law,
see Ga. Code Ann. §74–104 (1973), yet was characterized by the
Court as an adult, was disproportionate and excessive under the
Eighth Amendment. See 433 U. S., at 593–600; see also id., at 600 (Brennan, J., concurring in judgment); ibid. (Marshall, J., concurring in judgment). (The Court did not explain
why the 16-year-old victim qualified as an adult, but it may be of
some significance that she was married, had a home of her own, and
had given birth to a son three weeks prior to the rape. See Brief
for Petitioner in Coker v. Georgia , O. T.
1976, No. 75–5444, pp. 14–15.)

															   The plurality noted that only one State had a
valid statute authorizing the death penalty for adult rape and that
“in the vast majority of cases, at least 9 out of 10, juries ha[d]
not imposed the death sentence.” Coker , 433 U. S., at 597;
see also id., at 594 (“Of the 16 States in which rape had
been a capital offense, only three provided the death penalty for
rape of an adult woman in their revised statutes—Georgia, North
Carolina, and Louisiana. In the latter two States, the death
penalty was mandatory for those found guilty, and those laws were
invalidated by Woodson and Roberts ”). This
“history and … objective evidence of the country’s present judgment
concerning the acceptability of death as a penalty for rape of an
adult woman,” id., at 593, confirmed the Court’s
independent judgment that punishing adult rape by death was not
proportional:

															   “Rape is without doubt deserving
of serious punishment; but in terms of moral depravity and of the
injury to the person and to the public, it does not compare with
murder, which does involve the unjustified taking of human life.
Although it may be accompanied by another crime, rape by definition
does not include the death of … another person. The
murderer kills; the rapist, if no more than that, does
not… . We have the abiding conviction that the death
penalty, which ‘is unique in its severity and irrevocability,’ Gregg v. Georgia , 428 U. S., at 187, is an
excessive penalty for the rapist who, as such, does not take human
life.” Id., at 598 (footnote omitted).

															   Confined to this passage, Coker ’s analysis of the Eighth Amendment is susceptible of
a reading that would prohibit making child rape a capital offense.
In context, however, Coker ’s holding was narrower than
some of its language read in isolation. The Coker plurality framed the question as whether, “with respect to rape of
an adult woman,” the death penalty is disproportionate punishment. Id., at 592. And it repeated the phrase “an adult woman”
or “an adult female” in discussing the act of rape or the victim of
rape eight times in its opinion. See Coker, supra . The
distinction between adult and child rape was not merely rhetorical;
it was central to the Court’s reasoning. The opinion does not speak
to the constitutionality of the death penalty for child rape, an
issue not then before the Court. In discussing the legislative
background, for example, the Court noted:

															“Florida, Mississippi, and Tennessee also
authorized the death penalty in some rape cases, but only where the
victim was a child and the rapist an adult. The Tennessee statute
has since been invalidated because the death sentence was
mandatory. The upshot is that Georgia is the sole jurisdiction in
the United States at the present time that authorizes a sentence of
death when the rape victim is an adult woman, and only two other
jurisdictions provide capital punishment when the victim is a
child… . [This] obviously weighs very heavily on the side
of rejecting capi- tal punishment as a suitable penalty for raping
an adult woman.” Id ., at 595–596 (citation and footnote
omitted).

															   Still, respondent contends, it is
possible that state legislatures have understood Coker to
state a broad rule that covers the situation of the minor victim as
well. We see little evidence of this. Respondent cites no reliable
data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have
been deterred from passing applicable death penalty legislation. In
the absence of evidence from those States where legislation has
been proposed but not enacted we refuse to speculate about the
motivations and concerns of particular state legislators.

															   The position of the state courts, furthermore,
to which state legislators look for guidance on these matters,
indicates that Coker has not blocked the emergence of
legislative consensus. The state courts that have confronted the
precise question before us have been uniform in concluding that Coker did not address the constitutionality of the death
penalty for the crime of child rape. See, e.g., Wilson , 685 So. 2d, at 1066 (upholding the
constitutionality of the death penalty for rape of a child and
noting that “[t]he plurality [in Coker ] took great pains
in referring only to the rape of adult women throughout their
opinion” (emphasis deleted)); Upshaw v. State ,
350 So. 2d 1358, 1360 (Miss. 1977) (“In Coker the
Court took great pains to limit its decision to the applicability
of the death penalty for the rape of an adult woman… . As we
view Coker the Court carefully refrained from deciding
whether the death penalty for the rape of a female child under the
age of twelve years is grossly disproportionate to the crime”). See
also Simpson v. Owens , 207 Ariz. 261, 268,
n. 8, 85 P. 3d 478, 485, n. 8 (App. 2004)
(addressing the denial of bail for sexual offenses against children
and noting that “[a]lthough the death penalty was declared in a
plurality opinion of the United States Supreme Court to be a
disproportionate punishment for the rape of an adult woman … the
rape of a child remains a capital offense in some states”); People v. Hernandez , 30 Cal. 4th 835, 869, 69
P. 3d 446, 466 (2003) (addressing the death penalty for
conspiracy to commit murder and noting that “the constitutionality
of laws imposing the death penalty for crimes not necessarily
resulting in death is unresolved”).

															   There is, to be sure, some contrary authority
contained in various state-court opinions. But it is either dicta,
see State v. Barnum , 921 So. 2d 513, 526
(Fla. 2005) (addressing the retroactivity of Thompson v. State , 695 So. 2d 691 (Fla. 1997)); State v. Coleman , 185 Mont. 299, 327, 605 P. 2d 1000, 1017
(1979) (upholding the defendant’s death sentence for aggravated
kidnaping); State v. Gardner , 947 P. 2d 630,
653 (Utah 1997) (addressing the constitutionality of the death
penalty for prison assaults); equivocal in its conclusion, see People v. Huddleston , 212 Ill. 2d 107, 141, 816
N. E. 2d 322, 341–342 (2004) (citing law review articles for
the proposition that the constitutionality of the death penalty for
nonhomicide crimes “is the subject of debate”); or from a decision
of a state intermediate court that has been superseded by a more
specific statement of the law by the State’s supreme court,
compare, e.g., Parker v. State , 216 Ga.
App. 649, 650, n. 1, 455 S. E. 2d 360, 361, n. 1 (1995)
(characterizing Coker as holding that the death penalty
“is no longer permitted for rape where the victim is not killed”),
with Velazquez , 283 Ga., at 208, 657 S. E. 2d, at 840
(“[T]he United States Supreme Court … has yet [to] addres[s]
whether the death penalty is unconstitutionally disproportionate
for the crime of raping a child”).

															   The Supreme Court of Florida’s opinion in Buford could be read to support respondent’s argument. But
even there the state court recognized that “[t]he [Supreme] Court
has yet to decide whether [ Coker’ s rationale] holds true
for the rape of a child” and made explicit that it was extending
the reasoning but not the holding of Coker in striking
down the death penalty for child rape. 403 So. 2d, at 950,
951. The same is true of the Supreme Court of California’s opinion
in Hernandez , supra, at 867, 69 P. 3d, at
464.

															   We conclude on the basis of this review that
there is no clear indication that state legislatures have
misinterpreted Coker to hold that the death penalty for
child rape is unconstitutional. The small number of States that
have enacted this penalty, then, is relevant to determining whether
there is a consensus against capital punishment for this crime.

															C

															   Respondent insists that the six
States where child rape is a capital offense, along with the States
that have proposed but not yet enacted applicable death penalty
legislation, reflect a consistent direction of change in support of
the death penalty for child rape. Consistent change might
counterbalance an otherwise weak demonstration of consensus. See Atkins , 536 U. S., at 315 (“It is not so much the number
of these States that is significant, but the consistency of the
direction of change”); Roper, 543 U. S., at 565
(“Impressive in Atkins was the rate of abolition of the
death penalty for the mentally retarded”). But whatever the
significance of consistent change where it is cited to show
emerging support for expanding the scope of the death penalty, no
showing of consistent change has been made in this case.

															   Respondent and its amici identify five States where, in their view, legislation authorizing
capital punishment for child rape is pending. See Brief for
Missouri Governor Matt Blunt et al. as Amici Curiae 2, 14. It is not our practice, nor is it sound, to find
contemporary norms based upon state legislation that has been
proposed but not yet enacted. There are compelling reasons not to
do so here. Since the briefs were submitted by the parties,
legislation in two of the five States has failed. See, e.g., S. 195, 66th Gen. Assembly, 2d Reg. Sess.
(Colo. 2008) (rejected by Senate Appropriations Committee on Apr.
11, 2008); S. 2596, 2008 Leg., Reg. Sess. (Miss. 2008)
(rejected by House Committee on Mar. 18, 2008). In Tennessee, the
house bills were rejected almost a year ago, and the senate bills
appear to have died in committee. See H. R. 601, 105th Gen.
Assembly, 1st Reg. Sess. (2007) (taken off Subcommittee Calendar on
Apr. 4, 2007); H. R. 662, ibid. (failed for lack of
second on Mar. 21, 2007); H. R. 1099, ibid. (taken
off notice for Judiciary Committee calendar on May 16, 2007);
S. 22, ibid. (referred to General Subcommittee of
Senate Finance, Ways, and Means Committee on June 11, 2007);
S. 157, ibid. (referred to Senate Judiciary Committee
on Feb. 7, 2007; action deferred until Jan. 2008); S. 841, ibid. (referred to General Subcommittee of Senate
Judiciary Committee on Mar. 27, 2007). In Alabama, the recent
legislation is similar to a bill that failed in 2007. Compare
H. R. 456, 2008 Leg., Reg. Sess. (2008), with H. R. 335,
2007 Leg., Reg. Sess. (2007). And in Missouri, the 2008 legislative
session has ended, tabling the pending legislation. See Mo. Const.,
Art. III, §20(a).

															   Aside from pending legislation, it is true
that in the last 13 years there has been change towards making
child rape a capital offense. This is evidenced by six new death
penalty statutes, three enacted in the last two years. But this
showing is not as significant as the data in Atkins , where
18 States between 1986 and 2001 had enacted legislation prohibiting
the execution of mentally retarded persons. See Atkins,
supra, at 313–315. Respondent argues the instant case is like Roper because, there, only five States had shifted their
positions between 1989 and 2005, one less State than here. See Roper, supra, at 565. But in Roper , we emphasized
that, though the pace of abolition was not as great as in Atkins , it was counterbalanced by the total number of
States that had recognized the impropriety of executing juvenile
offenders. See 543 U. S., at 566–567. When we decided Stanford v. Kentucky , 492 U. S. 361 (1989), 12
death penalty States already prohibited the execution of any
juvenile under 18, and 15 prohibited the execution of any juvenile
under 17. See Roper , supra, at 566–567 (“If
anything, this shows that the impropriety of executing juveniles
between 16 and 18 years of age gained wide recognition earlier”).
Here, the total number of States to have made child rape a capital
offense after Furman is six. This is not an indication of
a trend or change in direction comparable to the one supported by
data in Roper. The evidence here bears a closer
resemblance to the evidence of state activity in Enmund ,
where we found a national consensus against the death penalty for
vicarious felony murder despite eight jurisdictions having
authorized the practice. See 458 U. S., at 789, 792.

															D

															   There are measures of consensus
other than legislation. Statistics about the number of executions
may inform the consideration whether capital punishment for the
crime of child rape is regarded as unacceptable in our society.
See, e.g., id. , at 794–795; Roper , supra , at 564–565; Atkins , supra , at
316; Cf. Coker , 433 U. S., at 596–597 (plurality opinion).
These statistics confirm our determination from our review of state
statutes that there is a social consensus against the death penalty
for the crime of child rape.

															   Nine States—Florida, Georgia,
Louisiana, Mississippi, Montana, Oklahoma, South Carolina,
Tennessee, and Texas—have permitted capital punishment for adult or
child rape for some length of time between the Court’s 1972
decision in Furman and today. See supra, at 12; Coker , supra , at 595 (plurality opinion). Yet no
individual has been executed for the rape of an adult or child
since 1964, and no execution for any other nonhomicide offense has
been conducted since 1963. See Historical Statistics of the United
States, at 5–262 to 5–263 (Table Ec343–357). Cf. Thompson v. Oklahoma , 487 U. S. 815 , 852–853
(1988) (O’Connor, J., concurring in judgment) (that “four decades
have gone by since the last execution of a defendant who was
younger than 16 at the time of the offense … support[s] the
inference of a national consensus opposing the death penalty for
15-year-olds”).

															   Louisiana is the only State since 1964 that
has sentenced an individual to death for the crime of child rape;
and petitioner and Richard Davis, who was convicted and sentenced
to death for the aggravated rape of a 5-year-old child by a
Louisiana jury in December 2007, see State v. Davis, Case No. 262,971 (1st Jud. Dist., Caddo Parish,
La.) (cited in Brief for Respondent 42, and n. 38), are the only
two individuals now on death row in the United States for a
nonhomicide offense.

															   After reviewing the authorities informed by
contemporary norms, including the history of the death penalty for
this and other nonhomicide crimes, current state statutes and new
enactments, and the number of executions since 1964, we conclude
there is a national consensus against capital punishment for the
crime of child rape.

															IV

															A

															   As we have said in other Eighth
Amendment cases, objective evidence of contemporary values as it
relates to punishment for child rape is entitled to great weight,
but it does not end our inquiry. “[T]he Constitution contemplates
that in the end our own judgment will be brought to bear on the
question of the acceptability of the death penalty under the Eighth
Amendment.” Coker , supra, at 597 (plurality
opinion); see also Roper , supra , at 563; Enmund , supra , at 797 (“[I]t is for us ultimately
to judge whether the Eighth Amendment permits imposition of the
death penalty”). We turn, then, to the resolution of the question
before us, which is informed by our precedents and our own
understanding of the Constitution and the rights it secures.

															   It must be acknowledged that
there are moral grounds to question a rule barring capital
punishment for a crime against an individual that did not result in
death. These facts illustrate the point. Here the victim’s fright,
the sense of betrayal, and the nature of her injuries caused more
prolonged physical and mental suffering than, say, a sudden killing
by an unseen assassin. The attack was not just on her but on her
childhood. For this reason, we should be most reluctant to rely
upon the language of the plurality in Coker , which posited
that, for the victim of rape, “life may not be nearly so happy as
it was” but it is not beyond repair. 433 U. S., at 598. Rape has a
permanent psychological, emotional, and sometimes physical impact
on the child. See C. Bagley & K. King, Child Sexual Abuse: The
Search for Healing 2–24, 111–112 (1990); Finkelhor & Browne,
Assessing the Long-Term Impact of Child Sexual Abuse: A Review and
Conceptualization in Handbook on Sexual Abuse of Children 55–60 (L.
Walker ed. 1988). We cannot dismiss the years of long anguish that
must be endured by the victim of child rape.

															   It does not follow, though, that capital
punishment is a proportionate penalty for the crime. The
constitutional prohibition against excessive or cruel and unusual
punishments mandates that the State’s power to punish “be exercised
within the limits of civilized standards.” Trop , 356 U.
S., at 99, 100 (plurality opinion). Evolving standards of decency
that mark the progress of a maturing society counsel us to be most
hesitant before interpreting the Eighth Amendment to allow the
extension of the death penalty, a hesitation that has special force
where no life was taken in the commission of the crime. It is an
established principle that decency, in its essence, presumes
respect for the individual and thus moderation or restraint in the
application of capital punishment. See id., at 100.

															   To date the Court has sought to define and
implement this principle, for the most part, in cases involving
capital murder. One approach has been to insist upon general rules
that ensure consistency in determining who receives a death
sentence. See California v. Brown , 479 U. S. 538 , 541
(1987) (“[D]eath penalty statutes [must] be structured so as to
prevent the penalty from being administered in an arbitrary and
unpredictable fashion” (citing Gregg, 428
U. S. 153 ; Furman, 408 U. S. 238 )); Godfrey v. Georgia , 446 U. S. 420 , 428
(1980) (plurality opinion) (requiring a State to give narrow and
precise definition to the aggravating factors that warrant its
imposition). At the same time the Court has insisted, to ensure
restraint and moderation in use of capital punishment, on judging
the “character and record of the individual offender and the
circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of
death.” Woodson , 428 U. S., at 304 (plurality opinion); Lockett v. Ohio , 438 U. S. 586 , 604–605
(1978) (plurality opinion).

															   The tension between general rules and
case-specific circumstances has produced results not all together
satisfactory. See Tuilaepa v. California , 512 U. S. 967 ,
973 (1994) (“The objectives of these two inquiries can be in some
tension, at least when the inquiries occur at the same time”); Walton v. Arizona , 497 U. S. 639 , 664–665
(1990) (Scalia, J., concurring in part and concurring in judgment)
(“The latter requirement quite obviously destroys whatever
rationality and predictability the former requirement was designed
to achieve”). This has led some Members of the Court to say we
should cease efforts to resolve the tension and simply allow
legislatures, prosecutors, courts, and juries greater latitude. See id., at 667–673 (advocating that the Court adhere to the Furman line of cases and abandon the Woodson - Lockett line of cases). For others the
failure to limit these same imprecisions by stricter enforcement of
narrowing rules has raised doubts concerning the constitutionality
of capital punishment itself. See Baze v. Rees ,
553 U. S. ___, ___–___ (2008) (slip op., at 13–17) (Stevens, J.,
concurring in judgment); Furman , supra , at
310–314 (White, J., concurring); Callins v. Collins , 510 U. S. 1141 ,
1144–1145 (1994) (Blackmun, J., dissenting from denial of
certiorari).

															   Our response to this case law, which is still
in search of a unifying principle, has been to insist upon
confining the instances in which capital punishment may be imposed.
See Gregg , supra , at 187, 184 (joint opinion of
Stewart, Powell, and Stevens, JJ.) (because “death as a
punishment is unique in its severity and irrevocability,” capital
punishment must be reserved for those crimes that are “so grievous
an affront to humanity that the only adequate response may be the
penalty of death” (citing in part Furman , 408 U. S., at
286–291 (Brennan, J., concurring); id., at 306 (Stewart,
J., concurring))); see also Roper , 543 U. S., at 569 (the
Eighth Amendment requires that “the death penalty is reserved for a
narrow category of crimes and offenders”).

															   Our concern here is limited to crimes against
individual persons. We do not address, for example, crimes defining
and punishing treason, espionage, terrorism, and drug kingpin
activity, which are offenses against the State. As it relates to
crimes against individuals, though, the death penalty should not be
expanded to instances where the victim’s life was not taken. We
said in Coker of adult rape:

															   “We do not discount the
seriousness of rape as a crime. It is highly reprehensible, both in
a moral sense and in its almost total contempt for the personal
integrity and autonomy of the female victim … . Short of
homicide, it is the ‘ultimate violation of self.’ …
[But] [t]he murderer kills; the rapist, if no more than that, does
not… .  We have the abiding conviction that the death
penalty, which ‘is unique in its severity and irrevocability,’ is
an excessive penalty for the rapist who, as such, does not take
human life.” 433 U. S., at 597–598 (plurality opinion) (citation
omitted).

															   The same distinction between
homicide and other serious violent offenses against the individual
informed the Court’s analysis in Enmund , 458 U. S. 782 , where the Court held
that the death penalty for the crime of vicarious felony murder is
disproportionate to the offense. The Court repeated there the
fundamental, moral distinction between a “murderer” and a “robber,”
noting that while “robbery is a serious crime deserving serious
punishment,” it is not like death in its “severity and
irrevocability.” Id., at 797 (internal quotation marks
omitted).

															   Consistent with evolving standards of decency
and the teachings of our precedents we conclude that, in
determining whether the death penalty is excessive, there is a
distinction between intentional first-degree murder on the one hand
and nonhomicide crimes against individual persons, even including
child rape, on the other. The latter crimes may be devastating in
their harm, as here, but “in terms of moral depravity and of the
injury to the person and to the public,” Coker, 433 U. S.,
at 598 (plurality opinion), they cannot be compared to murder in
their “severity and irrevocability.” Ibid. In reaching our conclusion we find significant
the number of executions that would be allowed under respondent’s
approach. The crime of child rape, considering its reported
incidents, occurs more often than first-degree murder.
Approximately 5,702 incidents of vaginal, anal, or oral rape of a
child under the age of 12 were reported nationwide in 2005; this is
almost twice the total incidents of intentional murder for victims
of all ages (3,405) reported during the same period. See
Inter-University Consortium for Political and Social Research,
National Incident-Based Reporting System, 2005, Study No. 4720,
http://www.icpsr.umich.edu (as visited June 12, 2008, and available
in Clerk of Court’s case file). Although we have no reliable
statistics on convictions for child rape, we can surmise that, each
year, there are hundreds, or more, of these convictions just in
jurisdictions that permit capital punishment. Cf. Brief for
Louisiana Association of Criminal Defense Lawyers et al. as Amici Curiae 1–2, and n. 2 (noting that there are now
at least 70 capital rape indictments pending in Louisiana and
estimating the actual number to be over 100). As a result of
existing rules, see generally Godfrey , 446 U. S., at
428–433 (plurality opinion), only 2.2% of convicted first-degree
murderers are sentenced to death, see Blume, Eisenberg, &
Wells, Explaining Death Row’s Population and Racial Composition, 1
J. of Empirical Legal Studies 165, 171 (2004). But under
respondent’s approach, the 36 States that permit the death penalty
could sentence to death all persons convicted of raping a child
less than 12 years of age. This could not be reconciled with our
evolving standards of decency and the necessity to constrain the
use of the death penalty.

															   It might be said that narrowing aggravators
could be used in this context, as with murder offenses, to ensure
the death penalty’s restrained application. We find it difficult to
identify standards that would guide the decisionmaker so the
penalty is reserved for the most severe 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 12, or
require as an aggravating factor a finding that the perpetrator’s
instant rape offense involved multiple victims, the jury still must
balance, in its discretion, those aggravating factors against
mitigating circumstances. In this context, which involves a crime
that in many cases will overwhelm a decent person’s judgment, we
have no confidence that the imposition of the death penalty would
not be so arbitrary as to be “freakis[h],” Furman, 408 U.
S., at 310 (Stewart, J., concurring). We cannot sanction this
result when the harm to the victim, though grave, cannot be
quantified in the same way as death of the victim.

															   It is not a solution simply to apply to this
context the aggravating factors developed for capital murder. The
Court has said that a State may carry out its obligation to ensure
individualized sentencing in capital murder cases by adopting
sentencing processes that rely upon the jury to exercise wide
discretion so long as there are narrowing factors that have some
“ ‘common-sense core of meaning … that criminal juries should
be capable of understanding.’ ” Tuilaepa , 512 U. S.,
at 975 (quoting Jurek v. Texas , 428 U. S. 262 , 279
(1976) (White, J., concurring in judgment)). The Court,
accordingly, has upheld the constitutionality of aggravating
factors ranging from whether the defendant was a
“ ‘cold-blooded, pitiless slayer,’ ” Arave v. Creech , 507
U. S. 463 , 471–474 (1993), to whether the “perpetrator
inflict[ed] mental anguish or physical abuse before the victim’s
death,” Walton , 497 U. S., at 654, to whether the
defendant “ ‘would commit criminal acts of violence that would
constitute a continuing threat to society,’ ” Jurek , supra , at 269-270, 274–276 (joint opinion of Stewart,
Powell, and Stevens, JJ.). All of these standards have the
potential to result in some inconsistency of application.

															   As noted above, the resulting imprecision and
the tension between evaluating the individual circumstances and
consistency of treatment have been tolerated where the victim dies.
It should not be introduced into our justice system, though, where
death has not occurred.

															   Our concerns are all the more pronounced
where, as here, the death penalty for this crime has been most
infrequent. See Part III–D, supra. We have developed a
foundational jurisprudence in the case of capital murder to guide
the States and juries in imposing the death penalty. Starting with Gregg , 428
U. S. 153 , we have spent more than 32 years articulating
limiting factors that channel the jury’s discretion to avoid the
death penalty’s arbitrary imposition in the case of capital murder.
Though that practice remains sound, beginning the same process for
crimes for which no one has been executed in more than 40 years
would require experimentation in an area where a failed experiment
would result in the execution of individuals undeserving of the
death penalty. Evolving standards of decency are difficult to
reconcile with a regime that seeks to expand the death penalty to
an area where standards to confine its use are indefinite and
obscure.

															B

															   Our decision is consistent with
the justifications offered for the death penalty. Gregg instructs that capital punishment is excessive when it is grossly
out of proportion to the crime or it does not fulfill the two
distinct social purposes served by the death penalty: retribution
and deterrence of capital crimes. See id. , at 173, 183,
187 (joint opinion of Stewart, Powell, and Stevens, JJ.); see
also Coker, 433 U. S., at 592 (plurality opinion) (“A
punishment might fail the test on either ground”).

															   As in Coker , here it
cannot be said with any certainty that the death penalty for child
rape serves no deterrent or retributive function. See id. ,
at 593, n. 4 (concluding that the death penalty for rape might
serve “legitimate ends of punishment” but nevertheless is
disproportionate to the crime). Cf. Gregg , supra ,
at 185–186 (joint opinion of Stewart, Powell, and
Stevens, JJ.) (“[T]here is no convincing empirical evidence
either supporting or refuting th[e] view [that the death penalty
serves as a significantly greater deterrent than lesser penalties].
We may nevertheless assume safely that there are murderers … for
whom . . . the death penalty undoubtedly is a significant
deterrent”); id., at 186 (the value of capital punishment,
and its contribution to acceptable penological goals, typically is
a “complex factual issue the resolution of which properly rests
with the legislatures”). This argument does not overcome other
objections, however. The incongruity between the crime of child
rape and the harshness of the death penalty poses risks of
overpunishment and counsels against a constitutional ruling that
the death penalty can be expanded to include this offense.

															   The goal of retribution, which reflects
society’s and the victim’s interests in seeing that the offender is
repaid for the hurt he caused, see Atkins , 536 U. S., at
319; Furman , supra , at 308 (Stewart, J.,
concurring), does not justify the harshness of the death penalty
here. In measuring retribution, as well as other objectives of
criminal law, it is appropriate to distinguish between a
particularly depraved murder that merits death as a form of
retribution and the crime of child rape. See Part IV–A, supra ; Coker, supra, at 597–598 (plurality
opinion).

															   There is an additional reason for our
conclusion that imposing the death penalty for child rape would not
further retributive purposes. In considering whether retribution is
served, among other factors we have looked to whether capital
punishment “has the potential … to allow the community as a
whole, including the surviving family and friends of the victim, to
affirm its own judgment that the culpability of the prisoner is so
serious that the ultimate penalty must be sought and imposed.” Panetti v. Quarterman , 551 U. S. ___, ____ (2007)
(slip op., at 26). In considering the death penalty for nonhomicide
offenses this inquiry necessarily also must include the question
whether the death penalty balances the wrong to the victim. Cf. Roper, 543 U. S., at 571.

															   It is not at all evident that the child rape
victim’s hurt is lessened when the law permits the death of the
perpetrator. Capital cases require a long-term commitment by those
who testify for the prosecution, especially when guilt and
sentencing determinations are in multiple proceedings. In cases
like this the key testimony is not just from the family but from
the victim herself. During formative years of her adolescence, made
all the more daunting for having to come to terms with the
brutality of her experience, L. H. was required to discuss the case
at length with law enforcement personnel. In a public trial she was
required to recount once more all the details of the crime to a
jury as the State pursued the death of her stepfather. Cf. G.
Goodman et al., Testifying in Criminal Court: Emotional
Effects on Child Sexual Assault Victims 50, 62, 72 (1992); Brief
for National Association of Social Workers et al. as Amici
Curiae 17–21. And in the end the State made L. H. a central
figure in its decision to seek the death penalty, telling the jury
in closing statements: “[L. H.] is asking you, asking you to set up
a time and place when he dies.” Tr. 121 (Aug. 26, 2003).

															   Society’s desire to inflict the death penalty
for child rape by enlisting the child victim to assist it over the
course of years in asking for capital punishment forces a moral
choice on the child, who is not of mature age to make that choice.
The way the death penalty here involves the child victim in its
enforcement can compromise a decent legal system; and this is but a
subset of fundamental difficulties capital punishment can cause in
the administration and enforcement of laws proscribing child
rape.

															   There are, moreover, serious systemic concerns
in prosecuting the crime of child rape that are relevant to the
constitutionality of making it a capital offense. The problem of
unreliable, induced, and even imagined child testimony means there
is a “special risk of wrongful execution” in some child rape cases. Atkins , supra , at 321. See also Brief for
National Association of Criminal Defense Lawyers et al. as Amici Curiae 5–17. This undermines, at least to some
degree, the meaningful contribution of the death penalty to
legitimate goals of punishment. Studies conclude that children are
highly susceptible to suggestive questioning techniques like
repetition, guided imagery, and selective reinforcement. See Ceci
& Friedman, The Suggestibility of Children: Scientific Research
and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000)
(there is “strong evidence that children, especially young
children, are suggestible to a significant degree—even on
abuse-related questions”); Gross, Jacoby, Matheson, Montgomery,
& Patil, Exonerations in the United States 1989 Through 2003,
95 J. Crim. L. & C. 523, 539 (2005) (discussing allegations of
abuse at the Little Rascals Day Care Center); see also Quas, Davis,
Goodman, & Myers, Repeated Questions, Deception, and Children’s
True and False Reports of Body Touch, 12 Child Maltreatment 60,
61–66 (2007) (finding that 4- to 7-year-olds “were able to maintain
[a] lie about body touch fairly effectively when asked repeated,
direct questions during a mock forensic interview”).

															   Similar criticisms pertain to other cases
involving child witnesses; but child rape cases present heightened
concerns because the central narrative and account of the crime
often comes from the child herself. She and the accused are, in
most instances, the only ones present when the crime was committed.
See Pennsylvania v. Ritchie , 480 U. S. 39 , 60 (1987).
Cf. Goodman, Testifying in Criminal Court, at 118. And the question
in a capital case is not just the fact of the crime, including,
say, proof of rape as distinct from abuse short of rape, but
details bearing upon brutality in its commission. These matters are
subject to fabrication or exaggeration, or both. See Ceci and
Friedman, supra; Quas, supra. Although capital
punishment does bring retribution, and the legislature here has
chosen to use it for this end, its judgment must be weighed, in
deciding the constitutional question, against the special risks of
unreliable testimony with respect to this crime.

															   With respect to deterrence, if the death
penalty adds to the risk of non-reporting, that, too, diminishes
the penalty’s objectives. Underreporting is a common problem with
respect to child sexual abuse. See Hanson, Resnick, Saunders,
Kilpatrick, & Best, Factors Related to the Reporting of
Childhood Rape, 23 Child Abuse & Neglect 559, 564 (1999)
(finding that about 88% of female rape victims under the age of 18
did not disclose their abuse to authorities); Smith et al.,
Delay in Disclosure of Childhood Rape: Results From A National
Survey, 24 Child Abuse & Neglect 273, 278–279 (2000) (finding
that 72% of women raped as children disclosed their abuse to
someone, but that only 12% of the victims reported the rape to
authorities). Although we know little about what differentiates
those who report from those who do not report, see Hanson, supra , at 561, one of the most commonly cited reasons for
nondisclosure is fear of negative consequences for the perpetrator,
a concern that has special force where the abuser is a family
member, see Goodman-Brown, Edelstein, Goodman, Jones, & Gordon,
Why Children Tell: A Model of Children’s Disclosure of Sexual
Abuse, 27 Child Abuse & Neglect 525, 527–528 (2003); Smith, supra, at 283–284 (finding that, where there was a
relationship between perpetrator and victim, the victim was likely
to keep the abuse a secret for a longer period of time, perhaps
because of a “greater sense of loyalty or emotional bond”); Hanson, supra , at 565–566, and Table 3 (finding that a
“significantly greater proportion of reported than nonreported
cases involved a stranger”); see also Ritchie , supra, at 60. The experience of the amici who
work with child victims indicates that, when the punishment is
death, both the victim and the victim’s family members may be more
likely to shield the perpetrator from discovery, thus increasing
underreporting. See Brief for National Association of Social
Workers et al. as Amici Curiae 11–13. As a result,
punishment by death may not result in more deterrence or more
effective enforcement.

															   In addition, by in effect making the
punishment for child rape and murder equivalent, a State that
punishes child rape by death may remove a strong incentive for the
rapist not to kill the victim. Assuming the offender behaves in a
rational way, as one must to justify the penalty on grounds of
deterrence, the penalty in some respects gives less protection, not
more, to the victim, who is often the sole witness to the crime.
See Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric
Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119,
1159–1160 (2004). It might be argued that, even if the death
penalty results in a marginal increase in the incentive to kill,
this is counterbalanced by a marginally increased deterrent to
commit the crime at all. Whatever balance the legislature strikes,
however, uncertainty on the point makes the argument for the
penalty less compelling than for homicide crimes.

															   Each of these propositions, standing alone,
might not establish the unconstitutionality of the death penalty
for the crime of child rape. Taken in sum, however, they
demonstrate the serious negative consequences of making child rape
a capital offense. These considerations lead us to conclude, in our
independent judgment, that the death penalty is not a proportional
punishment for the rape of a child.

															V

															   Our determination that there is a
consensus against the death penalty for child rape raises the
question whether the Court’s own institutional position and its
holding will have the effect of blocking further or later consensus
in favor of the penalty from developing. The Court, it will be
argued, by the act of addressing the constitutionality of the death
penalty, intrudes upon the consensus-making process. By imposing a
negative restraint, the argument runs, the Court makes it more
difficult for consensus to change or emerge. The Court, according
to the criticism, itself becomes enmeshed in the process, part
judge and part the maker of that which it judges.

															   These concerns overlook the
meaning and full substance of the established proposition that the
Eighth Amendment is defined by “the evolving standards of decency
that mark the progress of a maturing society.” Trop , 356
U. S., at 101 (plurality opinion). Confirmed by repeated,
consistent rulings of this Court, this principle requires that use
of the death penalty be restrained. The rule of evolving standards
of decency with specific marks on the way to full progress and
mature judgment means that resort to the penalty must be reserved
for the worst of crimes and limited in its instances of
application. In most cases justice is not better served by
terminating the life of the perpetrator rather than confining him
and preserving the possibility that he and the system will find
ways to allow him to understand the enormity of his offense.
Difficulties in administering the penalty to ensure against its
arbitrary and capricious application require adherence to a rule
reserving its use, at this stage of evolving standards and in cases
of crimes against individuals, for crimes that take the life of the
victim.

															   The judgment of the Supreme Court of Louisiana
upholding the capital sentence is reversed. This case is remanded
for further proceedings not inconsistent with this opinion.

															It is so ordered. ALITO, J., DISSENTING KENNEDY V. LOUISIANA 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-343 PATRICK KENNEDY, PETITIONER v. LOUISIANA

															on writ of certiorari to the supreme court of
louisiana

															[June 25, 2008]

															   Justice Alito, with whom The
Chief Justice, Justice Scalia, and Justice Thomas join,
dissenting.

															   The Court today holds that the
Eighth Amendment categorically prohibits the imposition of the
death penalty for the crime of raping a child. This is so,
according to the Court, no matter how young the child, no matter
how many times the child is raped, no matter how many children the
perpetrator rapes, no matter how sadistic the crime, no matter how
much physical or psychological trauma is inflicted, and no matter
how heinous the perpetrator’s prior criminal record may be. The
Court provides two reasons for this sweeping conclusion: First, the
Court claims to have identified “a national consensus” that the
death penalty is never acceptable for the rape of a child; second,
the Court concludes, based on its “independent judgment,” that
imposing the death penalty for child rape is inconsistent with
“ ‘the evolving standards of decency that mark the progress of
a maturing society.’ ” Ante , at 8, 15, 16 (citation
omitted). Because neither of these justifications is sound, I
respectfully dissent.

															I

															A

															   I turn first to the Court’s claim
that there is “a national consensus” that it is never acceptable to
impose the death penalty for the rape of a child. The Eighth
Amendment’s requirements, the Court writes, are “determined not by
the standards that prevailed” when the Amendment was adopted but
“by the norms that ‘currently prevail.’ ” Ante , at 8
(quoting Atkins v. Virginia , 536 U. S. 304 , 311 (2002)). In
assessing current norms, the Court relies primarily on the fact
that only 6 of the 50 States now have statutes that permit the
death penalty for this offense. But this statistic is a highly
unreliable indicator of the views of state lawmakers and their
constituents. As I will explain, dicta in this Court’s decision in Coker v. Georgia , 433 U. S. 584 (1977),
has stunted legislative consideration of the question whether the
death penalty for the targeted offense of raping a young child is
consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that
any law permitting the imposition of the death penalty for this
crime would meet precisely the fate that has now befallen the
Louisiana statute that is currently before us, and this threat
strongly discouraged state legislators—regardless of their own
values and those of their constituents—from supporting the
enactment of such legislation.

															   As the Court correctly concludes,
the holding in Coker was that the Eighth
Amendment prohibits the death penalty for the rape of an
“ ‘adult woman,’ ” and thus Coker does not
control our decision here. See ante, at 17. But the
reasoning of the Justices in the majority had broader
implications.

															   Two Members of the Coker majority,
Justices Brennan and Marshall, took the position that the death
penalty is always unconstitutional. 433 U. S., at 600 (Brennan, J.,
concurring in judgment) and (Marshall, J., concurring in judgment).
Four other Justices, who joined the controlling plurality opinion,
suggested that the Georgia capital rape statute was
unconstitutional for the simple reason that the impact of a rape,
no matter how heinous, is not grievous enough to justify capital
punishment. In the words of the plurality: “Life is over for the
victim of the murderer; for the rape victim, life may not be nearly
so happy as it was, but it is not over and normally is not beyond
repair.” Id., at 598. The plurality summarized its
position as follows: “We have the abiding conviction that the death
penalty . . . is an excessive penalty for the rapist who, as such,
does not take human life.” Ibid .

															   The implications of the Coker plurality opinion were plain. Justice Powell, who concurred in the
judgment overturning the death sentence in the case at hand, did
not join the plurality opinion because he understood it to draw “a
bright line between murder and all rapes—regardless of the degree
of brutality of the rape or the effect upon the victim.” Id ., at 603. If Justice Powell read Coker that
way, it was reasonable for state legislatures to do the same.

															   Understandably, state courts have frequently
read Coker in precisely this way. The Court is correct
that state courts have generally understood the limited scope of
the holding in Coker , ante, at 18, but
lower courts and legislators also take into account—and I presume
that this Court wishes them to continue to take into account—the
Court’s dicta. And that is just what happened in the wake of Coker . Four years after Coker, when Florida’s
capital child rape statute was challenged, the Florida Supreme
Court, while correctly noting that this Court had not held that the Eighth Amendment bars the death penalty for child rape,
concluded that “[t]he reasoning of the justices in Coker v.
Georgia compels us to hold that a sentence of death is grossly
disproportionate and excessive punishment for the crime of sexual
assault and is therefore forbidden by the Eighth Amendment as cruel
and unusual punishment.” Buford v. State , 403
So. 2d 943, 951 (1981).

															   Numerous other state courts have interpreted
the Coker dicta similarly. See State v. Barnum , 921 So. 2d 513, 526 (Fla. 2005) (citing Coker as holding that “ ‘a sentence of death is
grossly disproportionate and excessive punishment for the crime of
rape,’ ” not merely the rape of an adult woman); People v. Huddleston , 212 Ill. 2d. 107, 141, 816
N. E. 2d 322, 341 (2004) (recognizing that “the
constitutionality of state statutes that impose the death penalty
for nonhomicide crimes is the subject of debate” after Coker ); People v. Hernandez , 30 Cal. 4th
835, 867, 69 P. 3d 446, 464–467 (2003) ( Coker “rais[ed] serious doubts that the federal Constitution permitted
the death penalty for any offense not requiring the actual taking
of human life” because “[a]lthough the high court did not expressly
hold [in Coker ] that the Eighth Amendment prohibits
capital punishment for all crimes not resulting in death,
the plurality stressed that the crucial difference between rape and
murder is that a rapist ‘does not take human life’ ”); State v. Gardner , 947 P. 2d 630, 653 (Utah
1997) (“The Coker holding leaves no room for the
conclusion that any rape, even an ‘inhuman’ one involving torture
and aggravated battery but not resulting in death, would
constitutionally sustain imposition of the death penalty”); Parker v. State , 216 Ga. App. 649, n. 1, 455
S. E. 2d 360, 361, n. 1 (1995) (citing Coker for
the proposition that the death penalty “is no longer permitted for
rape where the victim is not killed”); Leatherwood v. State , 548 So. 2d 389, 406 (Miss. 1989) (Robertson,
J., concurring) (“There is as much chance of the Supreme Court
sanctioning death as a penalty for any non-fatal rape as
the proverbial snowball enjoys in the nether regions”); State v. Coleman , 185 Mont. 299, 327–328, 605
P. 2d 1000, 1017 (1979) (stating that “[t]he decision of the
Court in Coker v. Georgia is relevant only to
crimes for which the penalty has been imposed which did not result in the loss of a life” (citations omitted)); Boyer v. State , 240 Ga. 170, 240 S. E. 2d 68
(1977) (per curiam) (stating that “[s]ince death to the
victim did not result … the death penalty for rape must be set
aside”); see also 2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 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).[ Footnote 1 ]

															   For the past three decades, these
interpretations have posed a very high hurdle for state
legislatures considering the passage of new laws permitting the
death penalty for the rape of a child. The enactment and
implementation of any new state death penalty statute—and
particularly a new type of statute such as one that specifically
targets the rape of young children—imposes many costs. There is the
burden of drafting an innovative law that must take into account
this Court’s exceedingly complex Eighth Amendment jurisprudence.
Securing passage of controversial legislation may interfere in a
variety of ways with the enactment of other bills on the
legislative agenda. Once the statute is enacted, there is the
burden of training and coordinating the efforts of those who must
implement the new law. Capital prosecutions are qualitatively more
difficult than noncapital prosecutions and impose special emotional
burdens on all involved. When a capital sentence is imposed under
the new law, there is the burden of keeping the prisoner on death
row and the lengthy and costly project of defending the
constitutionality of the statute on appeal and in collateral
proceedings. And if the law is eventually overturned, there is the
burden of new proceedings on remand. Moreover, conscientious state
lawmakers, whatever their personal views about the morality of
imposing the death penalty for child rape, may defer to this
Court’s dicta, either because they respect our authority and
expertise in interpreting the Constitution or merely because they
do not relish the prospect of being held to have violated the
Constitution and contravened prevailing “standards of decency.”
Accordingly, the Coker dicta gave state legislators a
strong incentive not to push for the enactment of new capital
child-rape laws even though these legislators and their
constituents may have believed that the laws would be appropriate
and desirable.

															B

															   The Court expresses doubt that
the Coker dicta had this effect, but the skepticism is
unwarranted. It would be quite remarkable if state legislators were
not influenced by the considerations noted above. And although
state legislatures typically do not create legislative materials
like those produced by Congress, there is evidence that proposals
to permit the imposition of the death penalty for 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 Senate News Release, Senator Nichols
Targets Child Predators with Death Penalty, Child Abuse Response
Team, May 26, 2006, on line at
http://www.oksenate.gov/news/press_releases/press_releases_
2006/pr20060526d.htm (all Internet materials as visited June 23,
2008, and available in Clerk of Court’s case file). Likewise,
opponents of South Carolina’s capital child-rape law contended that
the statute would waste state resources because it would
undoubtedly be held unconstitutional. See The State, Death Penalty
Plan in Spotlight: Attorney General to Advise Senate Panel on
Proposal for Repeat Child Rapists, Mar. 28, 2006 (quoting Laura
Hudson, spokeswoman for the S. C. Victim Assistance Network,
as stating that “ ‘[w]e don’t need to be wasting state money
to have an appeal to the [United States] Supreme Court, knowing we
are going to lose it’ ”). Representative Fletcher Smith of the
South Carolina House of Representatives forecast that the bill
would not meet constitutional standards because “death isn’t
involved.” See Davenport, Emotion Drives Child Rape Death Penalty
Debate in South Carolina, Associated Press, Apr. 4, 2006.

															   In Texas, opponents of that State’s capital
child-rape law argued that Coker ’s reasoning doomed the
proposal. House Research Organization Bill Analysis, Mar. 5, 2007
(stating that “the law would impose an excessive punishment and
fail to pass the proportionality test established by the U. S.
Supreme Court” and arguing that “Texas should not enact a law of
questionable constitution- ality simply because it is politically
popular, especially given clues by the U. S. Supreme Court that
death penalty laws that would be rarely imposed or that are not
supported by a broad national consensus would be ruled
unconstitutional”).

															C

															   Because of the effect of the Coker dicta, the Court is plainly wrong in comparing the
situation here to that in Atkins or Roper v. Simmons , 543 U. S. 551 (2005).
See ante , at 14–15. Atkins concerned the
constitutionality of imposing the death penalty on a mentally
retarded defendant. Thirteen years earlier, in Penry v. Lynaugh , 492 U. S. 302 (1989),
the Court had held that this was permitted by the Eighth Amendment,
and therefore, during the time between Penry and Atkins, state legislators had reason to believe that this
Court would follow its prior precedent and uphold statutes allowing
such punishment.

															   The situation in Roper was similar. Roper concerned a challenge to the
constitutionality of imposing the death penalty on a defendant who
had not reached the age of 18 at the time of the crime. Sixteen
years earlier in Stanford v. Kentucky , 492 U. S. 361 (1989),
the Court had rejected a similar challenge, and therefore state
lawmakers had cause to believe that laws allowing such punishment
would be sustained.

															   When state lawmakers believe that their
decision will prevail on the question whether to permit the death
penalty for a particular crime or class of offender, the
legislators’ resolution of the issue can be interpreted as an
expression of their own judgment, informed by whatever weight they
attach to the values of their constituents. But when state
legislators think that the enactment of a new death penalty law is
likely to be futile, inaction cannot reasonably be interpreted as
an expression of their understanding of prevailing societal values.
In that atmosphere, legislative inaction is more likely to evidence
acquiescence.

															D

															   If anything can be inferred from
state legislative developments, the message is very different from
the one that the Court perceives. In just the past few years,
despite the shadow cast by the Coker dicta, five States
have enacted targeted capital child-rape laws. See Ga. Code Ann.
§16–6–1 (1999); Mont. Code Ann. §45–5–503 (1997); Okla. Stat., Tit.
10, §7115(K) (West Supp. 2008); S. C. Code Ann.
§16–3–655(C)(1) (Supp. 2007); Tex. Penal Code Ann. §§22.021(a),
12.42(c)(3) (West Supp. 2007). If, as the Court seems to think, our
society is “[e]volving” toward ever higher “standards of decency,” ante , at 36, these enactments might represent the
beginning of a new evolutionary line.

															   Such a development would not be
out of step with changes in our society’s thinking since Coker was decided. During that time, reported instances of
child abuse have increased dramatically;[ Footnote 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 receiving certain federal funds
to establish registration systems for convicted sex offenders and
to notify the public about persons convicted of the sexual abuse of
minors. All 50 States have now enacted such statutes.[ Footnote 3 ] In addition, at least 21 States
and the District of Columbia now have statutes permitting the
involuntary commitment of sexual predators,[ Footnote 4 ] and at least 12 States have enacted
residency restrictions for sex offenders.[ Footnote 5 ]

															   Seeking to counter the significance of the new
capital child-rape laws enacted during the past two years, the
Court points out that in recent months efforts to enact similar
laws in five other States have stalled. Ante , at 21. These
developments, however, all took place after our decision to grant
certiorari in this case, see 552 U. S. ___ (2008), which gave state
legislators reason to delay the enactment of new legislation until
the constitutionality of such laws was clarified. And there is no
evidence of which I am aware that these legislative initiatives
failed because the proposed laws were viewed as inconsistent with
our society’s standards of decency.

															   On the contrary, the available evidence
suggests otherwise. For example, in Colorado, the Senate
Appropriations Committee in April voted 6 to 4 against Senate Bill
195, reportedly because it “would have cost about $616,000 next
year for trials, appeals, public defenders, and prison costs.”
Associated Press, Lawmakers Reject Death Penalty for Child Sex
Abusers, Denver Post, Apr. 11, 2008. Likewise, in Tennessee, the
capital child-rape bill was withdrawn in committee “because of the
high associated costs.” The bill’s sponsor stated that
“ ‘[b]e-cause of the state’s budget situation, 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 “national consensus,” ante, at
11, but these arguments are patent makeweights. The Court notes
that Congress has not enacted a law permitting the death penalty
for the rape of a child, ante , at 12–13, but due to the
territorial limits of the relevant federal statutes, very few rape
cases, not to mention child-rape cases, are prosecuted in federal
court. See 18 U. S. C. §§2241, 2242 (2000 ed. and Supp. V);
United States Sentencing Commission, Report to Congress: Analysis
of Penalties for Federal Rape Cases, p. 10, Table 1. Congress’
failure to enact a death penalty statute for this tiny set of cases
is hardly evidence of Congress’ assessment of our society’s
values.

															   Finally, the Court argues that
statistics about the number of executions in rape cases support its
perception of a “national consensus,” but here too the statistics
do not support the Court’s position. The Court notes that the last
execution for the rape of a child occurred in 1964, ante ,
at 23, but the Court fails to mention that litigation regarding the
constitutionality of the death penalty brought executions to a halt
across the board in the late 1960’s. In 1965 and 1966, there were a
total of eight executions for all offenses, and from 1968 until
1977, the year when Coker was decided, there were no
executions for any crimes.[ Footnote
6 ] The Court also fails to mention that in Louisiana, since the
state law was amended in 1995 to make child rape a capital offense,
prosecutors have asked juries to return death verdicts in four
cases. See State v. Dickerson , 01–1287 (La. App.
6/26/02), 822 So. 2d 849 (2002); State v. LeBlanc , 01–1322 (La. App. 5/13/01), 788 So. 2d 1255;
2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757; State v. Davis, Case No. 262,971 (1st Jud. Dist.,
Caddo Parish, La.) (cited in Brief for Respondent 42, and n. 38).
In two of those cases, Louisiana juries imposed the death penalty.
See 2005–1981 (La. Sup. Ct. 5/22/07), 957 So. 2d 757; Davis, supra. This 50% record is hardly evidence that
juries share the Court’s view that the death penalty for the rape
of a young child is unacceptable under even the most aggravated
circumstances.[ Footnote 7 ]

															F

															   In light of the points discussed
above, I believe that the “objective indicia” of our society’s
“evolving standards of decency” can be fairly summarized as
follows. Neither Congress nor juries have done anything that can
plausibly be interpreted as evidencing the “national consensus”
that the Court perceives. State legislatures, for more than 30
years, have operated under the ominous shadow of the Coker dicta and thus have not been free to express their own
understanding of our society’s standards of decency. And in the
months following our grant of certiorari in this case, state
legislatures have had an additional reason to pause. Yet despite
the inhibiting legal atmosphere that has prevailed since 1977, six
States have recently enacted new, targeted child-rape laws.

															   I do not suggest that six new
state laws necessarily establish a “national consensus” or even
that they are sure evidence of an ineluctable trend. In terms of
the Court’s metaphor of moral evolution, these enactments might
have turned out to be an evolutionary dead end. But they might also
have been the beginning of a strong new evolutionary line. We will
never know, because the Court today snuffs out the line in its
incipient stage.

															II

															A

															   The Court is willing to block the
potential emergence of a national consensus in favor of permitting
the death penalty for child rape because, in the end, what matters
is the Court’s “own judgment” regarding “the acceptability of the
death penalty.” Ante , at 24. Although the Court has much
to say on this issue, most of the Court’s discussion is not
pertinent to the Eighth Amendment question at hand. And once all of
the Court’s irrelevant arguments are put aside, it is apparent that
the Court has provided no coherent explanation for today’s
decision.

															   In the next section of this
opinion, I will attempt to weed out the arguments that are not
germane to the Eighth Amendment inquiry, and in the final section,
I will address what remains.

															B

															   A major theme of the Court’s
opinion is that permitting the death penalty in child-rape cases is
not in the best interests of the victims of these crimes and
society at large. In this vein, the Court suggests that it is more
painful for child-rape victims to testify when the prosecution is
seeking the death penalty. Ante, at 32. The Court also
argues that “a State that punishes child rape by death may remove a
strong incentive for the rapist not to kill the victim,” ante , at 35, and may discourage the reporting of child
rape, ante , at 34–35.

															   These policy arguments, whatever
their merits, are simply not pertinent to the question whether the
death penalty is “cruel and unusual” punishment. The Eighth
Amendment protects the right of an accused. It does not authorize
this Court to strike down federal or state criminal laws on the
ground that they are not in the best interests of crime victims or
the broader society. The Court’s policy arguments concern matters
that legislators should—and presumably do—take into account in
deciding whether to enact a capital child-rape statute, but these
arguments are irrelevant to the question that is before us in this
case. Our cases have cautioned against using “ ‘the aegis of
the Cruel and Unusual Punishment Clause’ to cut off the normal
democratic processes,” Atkins v. Virginia , 536 U. S. 304 , 323 (2002) (Rehnquist,
C. J., dissenting), in turn quoting Gregg v. Georgia , 428 U. S. 153 , 176 (1976), (joint
opinion of Stewart, Powell, and Stevens, JJ.), but the Court
forgets that warning here.

															   The Court also contends that laws permitting
the death penalty for the rape of a child create serious procedural
problems. Specifically, the Court maintains that it is not feasible
to channel the exercise of sentencing discretion in child-rape
cases, ante , at 28–29, and that the unreliability of the
testimony of child victims creates a danger that innocent
defendants will be convicted and executed, ante, at 33–34.
Neither of these contentions provides a basis for striking down all
capital child-rape laws no matter how carefully and narrowly they
are crafted.

															   The Court’s argument regarding the structuring
of sentencing discretion is hard to comprehend. The Court finds it
“difficult to identify standards that would guide the decisionmaker
so the penalty is reserved for the most severe cases of child rape
and yet not imposed in an arbitrary way.” Ante , at 28–29.
Even assuming that the age of a child is not alone a sufficient
factor for limiting sentencing discretion, the Court need only
examine the child-rape laws recently enacted in Texas, Oklahoma,
Montana, and South Carolina, all of which use a concrete factor to
limit quite drastically the number of cases in which the death
penalty may be imposed. In those States, a defendant convicted of
the rape of a child may be sentenced to death only if the defendant
has a prior conviction for a specified felony sex offense. See
Mont. Code Ann. §45–5–503(3)(c) (2007) (“If the offender was
previously convicted of [a felony sexual offense] . . . the
offender shall be … punished by death . . .”); Okla. Stat., Tit.
10, §7115(K) (West Supp. 2008) (“Notwithstanding any other
provision of law, any parent or other person convicted of forcible
anal or oral sodomy, rape, rape by instrumentation, or lewd
molestation of a child under fourteen (14) years of age subsequent
to a previous conviction for any offense of forcible anal or oral
sodomy, rape, rape by instrumentation, or lewd molestation of a
child under fourteen (14) years of age shall be punished by
death”); S. C. Code Ann. §16–3–655(C)(1) (Supp. 2007) (“If the
[defendant] has previously been convicted of, pled guilty or nolo
contendere to, or adjudicated delinquent for first degree criminal
sexual conduct with a minor who is less than eleven years of age …
he must be punished by death or by imprisonment for life”); Tex.
Penal Code Ann. §12.42(c)(3) (2007 Supp.); (“[A] defendant shall be
punished for a capital felony if it is shown on the trial of an
offense under Section 22.021 … that the defendant has previously
been finally convicted of [a felony sexual offense against a victim
younger than fourteen years of age]”).

															   Moreover, it takes little imagination to
envision other limiting factors that a State could use to structure
sentencing discretion in child rape cases. Some of these might be:
whether the victim was kidnapped, whether the defendant inflicted
severe physical injury on the victim, whether the victim was raped
multiple times, whether the rapes occurred over a specified
extended period, and whether there were multiple victims.

															   The Court refers to limiting standards that
are “indefinite and obscure,” ante , at 30, but there is
nothing indefinite or obscure about any of the above-listed
aggravating factors. Indeed, they are far more definite and
clear-cut than aggravating factors that we have found to be
adequate in murder cases. See, e.g. , Arave v. Creech , 507
U. S. 463 , 471 (1993) (whether the defendant was a
“ ‘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 limiting sentencing discretion provide no
support for the Court’s blanket condemnation of all capital
child-rape statutes.

															   That sweeping holding is also not justified by
the Court’s concerns about the reliability of the testimony of
child victims. First, the Eighth Amendment provides a poor vehicle
for addressing problems regarding the admissibility or reliability
of evidence, and problems presented by the testimony of child
victims are not unique to capital cases. Second, concerns about the
reliability of the testimony of child witnesses are not present in
every child-rape case. In the case before us, for example, there
was undisputed medical evidence that the victim was brutally raped,
as well as strong independent evidence that petitioner was the
perpetrator. Third, if the Court’s evidentiary concerns have Eighth
Amendment relevance, they could be addressed by allowing the death
penalty in only those child-rape cases in which the independent
evidence is sufficient to prove all the elements needed for
conviction and imposition of a death sentence. There is precedent
for requiring special corroboration in certain criminal cases. For
example, some jurisdictions do not allow a conviction based on the
uncorroborated testimony of an accomplice. See, e.g. , Ala.
Code 12–21–222 (1986); Alaska Stat. §12.45.020 (1984); Ark. Code
Ann. §16–89–111(e)(1) (1977); Cal. Penal Code Ann. §1111 (West
1985); Ga. Code Ann. §24–4–8 (1995); Idaho Code §19–2117 (Lexis
1979); Minn. Stat. §634.04 (1983); Mont. Code Ann. §46–16–213
(1985); Nev. Rev. Stat. §175.291 (1985); N. D. Cent. Code Ann.
§29–21–14 (1974); Okla. St., Tit. 22, §742 (West 1969); Ore. Rev.
Stat. §136.440 (1984); S. D. Codified Laws §23A–22–8 (1979). A
State wishing to permit the death penalty in child-rape cases could
impose an analogous corroboration requirement.

															C

															   After all the arguments noted
above are put aside, what is left? What remaining grounds does the
Court provide to justify its independent judgment that the death
penalty for child rape is categorically unacceptable? I see
two.

															1 The first is the
proposition that we should be “most hesitant before interpreting
the Eighth Amendment to allow the extension of the death
penalty.” Ante, at 25 (emphasis added); see also ante, at 27, 30 (referring to expansion of the death
penalty). But holding that the Eighth Amendment does not
categorically prohibit the death penalty for the rape of a young
child would not “extend” or “expand” the death penalty. Laws
enacted by the state legislatures are presumptively constitutional, Gregg , 428 U. S., at 175 (joint opinion of Stewart,
Powell, and Stevens, JJ.) (“[I]n assessing a punishment
selected by a democratically elected legislature against the
constitutional measure, we presume its validity”), and
until today, this Court has not held that capital child rape laws
are unconstitutional, see ante , at 17 ( Coker “does not speak to the constitutionality of the death penalty for
child rape, an issue not then before the Court”). Consequently,
upholding the constitutionality of such a law would not “extend” or
“expand” the death penalty; rather, it would confirm the status of
presumptive constitutionality that such laws have enjoyed up to
this point. And in any event, this Court has previously made it
clear that “[t]he Eighth Amendment is not a ratchet, whereby a
temporary consensus on leniency for a particular crime fixes a
permanent constitutional maximum, disabling States from giving
effect to altered beliefs and responding to changed social
conditions.” Harmelin v. Michigan , 501 U. S. 957 , 990
(1991) (principal opinion); see also Gregg , supra , at 176 (joint opinion of Stewart, Powell, and
Stevens, JJ.). 2 The Court’s
final—and, it appears, principal—justification for its holding is
that murder, the only crime for which defendants have been executed
since this Court’s 1976 death penalty decisions,[ Footnote 8 ] is unique in its moral depravity and
in the severity of the injury that it inflicts on the victim and
the public. See ante , at 27–28. But the Court makes little
attempt to defend these conclusions. With respect to the
question of moral depravity, is it really true that every person
who is convicted of capital murder and sentenced to death is more
morally depraved than every child rapist? Consider the following
two cases. In the first, a defendant robs a convenience store and
watches as his accomplice shoots the store owner. The defendant
acts recklessly, but was not the triggerman and did not intend the
killing. See, e.g. , Tison v. Arizona , 481 U. S. 137 (1987). In the second case, a previously convicted child rapist
kidnaps, repeatedly rapes, and tortures multiple child victims. Is
it clear that the first defendant is more morally depraved than the
second? The Court’s decision here stands
in stark contrast to Atkins and Roper , in which
the Court concluded that characteristics of the affected
defendants—mental retardation in Atkins and youth in Roper —diminished their culpability. See Atkins ,
536 U. S., at 305; Roper , 543 U. S., at 571. Nor is this
case comparable to Enmund v. Florida , 458 U. S. 782 (1982), in
which the Court held that the Eighth Amendment prohibits the death
penalty where the defendant participated in a robbery during which
a murder was committed but did not personally intend for lethal
force to be used. I have no doubt that, under the prevailing
standards of our society, robbery, the crime that the petitioner in Enmund intended to commit, does not evidence the same
degree of moral depravity as the brutal rape of a young child.
Indeed, I have little doubt that, in the eyes of ordinary
Americans, the very worst child rapists—predators who seek out and
inflict serious physical and emotional injury on defenseless young
children—are the epitome of moral depravity. With respect to the question of
the harm caused by the rape of child in relation to the harm caused
by murder, it is certainly true that the loss of human life
represents a unique harm, but that does not explain why other
grievous harms are insufficient to permit a death sentence. And the
Court does not take the position that no harm other than the loss
of life is sufficient. The Court takes pains to limit its holding
to “crimes against individual persons” and to exclude “offenses
against the State,” a category that the Court stretches—without
explanation—to include “drug kingpin activity.” Ante , at
26. But the Court makes no effort to explain why the harm caused by
such crimes is necessarily greater than the harm caused by the rape
of young children. This is puzzling in light of the Court’s
acknowledgment that “[r]ape has a permanent psychological,
emotional, and sometimes physical impact on the child.” Ante, at 24. As the Court aptly recognizes, “[w]e cannot
dismiss the years of long anguish that must be endured by the
victim of child rape.” Ibid. The rape of any victim inflicts
great injury, and “[s]ome victims are so grievously injured
physically or psychologically that life is beyond repair.” Coker , 433 U. S., at 603 (opinion of Powell, J.). “The
immaturity and vulnerability of a child, both physically and
psychologically, adds a devastating dimension to rape that is not
present when an adult is raped.” Meister, Murdering Innocence: The
Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev.
197, 208–209 (2003). See also State v. Wilson, 96–1392, p. 6 (La. Sup. Ct. 12/13/96),685 So. 2d 1063,
1067; Broughton, “On Horror’s Head Horrors Accumulate”: A
Reflective Comment on Capital Child Rape Legislation, 39 Duquesne
L. Rev. 1, 38 (2000). Long-term studies show that sexual abuse
is “grossly intrusive in the lives of children and is harmful to
their normal psychological, emotional and sexual development in
ways which no just or humane society can tolerate.” C. Bagley &
K. King, Child Sexual Abuse: The Search for Healing 2
(1990). It has been estimated that as many
as 40% of 7- to 13-year-old sexual assault victims are considered
“seriously disturbed.” A. Lurigio, M. Jones, & B. Smith, Child
Sexual Abuse: Its Causes, Consequences, and Implications for
Probation Practice, 59 Sep Fed. Probation 69, 70 (1995).
Psychological problems include sudden school failure, unprovoked
crying, dissociation, depression, insomnia, sleep disturbances,
nightmares, feelings of guilt and inferiority, and self-destructive
behavior, including an increased incidence of suicide. Meister, supra , at 209; Broughton, supra , at 38; Glazer,
Child Rapists Beware! The Death Penalty and Louisiana’s Amended
Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 88
(1997). The deep problems that afflict
child-rape victims often become society’s problems as well.
Commentators have noted correlations between childhood sexual abuse
and later problems such as substance abuse, dangerous sexual
behaviors or dysfunction, inability to relate to others on an
interpersonal level, and psychiatric illness. Broughton, supra , at 38; Glazer, supra, at 89; Handbook on
Sexual Abuse of Children 7 (L. Walker ed. 1988). Victims of child
rape are nearly 5 times more likely than nonvictims to be arrested
for sex crimes and nearly 30 times more likely to be arrested for
prostitution. Ibid . The harm that is caused to the
victims and to society at large by the worst child rapists is
grave. It is the judgment of the Louisiana lawmakers and those in
an increasing number of other States that these harms justify the
death penalty. The Court provides no cogent explanation why this
legislative judgment should be overridden. Conclusory references to
“decency,” “moderation,” “restraint,” “full progress,” and “moral
judgment” are not enough. III In summary, the Court
holds that the Eighth Amendment categorically rules out the death
penalty in even the most extreme cases of child rape even though:
(1) This holding is not supported by the original meaning of the
Eighth Amendment; (2) neither Coker nor any other prior
precedent commands this result; (3) there are no reliable
“objective indicia” of a “national consensus” in support of the
Court’s position; (4) sustaining the constitutionality of the state
law before us would not “extend” or “expand” the death penalty; (5)
this Court has previously rejected the proposition that the Eighth
Amendment is a one-way ratchet that prohibits legislatures from
adopting new capital punishment statutes to meet new problems; (6)
the worst child rapists exhibit the epitome of moral depravity; and
(7) child rape inflicts grievous injury on victims and on society
in general. The party attacking
the constitutionality of a state statute bears the “heavy burden”
of establishing that the law is unconstitutional. Gregg ,
428 U. S., at 175 (joint opinion of Stewart, Powell, and
Stevens, JJ.). That burden has not been discharged here, and I
would therefore affirm the decision of the Louisiana Supreme
Court. Footnote 1 Commentators have expressed
similar views. See Fleming, Louisiana’s Newest Capital Crime: The
Death Penalty for Child Rape, 89 J. Crim. L. & C. 717, 727
(1999) (the Coker Court drew a line between “crimes which
result in loss of life, and crimes which do not”); Baily, Death is
Different, Even on the Bayou: The Disproportionality of Crime, 55
Wash. & Lee L. Rev. 1335, 1357 (1998) (noting that “[m]any
post-Coker cases interpreting the breadth of Coker ’s
holding suggest that the Mississippi Supreme Court’s narrow reading
of Coker in Upshaw is a minority position”); Matura, When
Will It Stop? The Use of the Death Penalty for Non-homicide Crimes,
24 J. Legis. 249, 255 (1998) (stating that the Coker Court
did not “draw a distinction between the rape of an adult woman and
the rape of a minor”); Garvey, “As the Gentle Rain from Heaven”:
Mercy in Capital Sentencing, 81 Cornell L. Rev. 989, 1009, n.
74 (1996) (stating that courts generally understand Coker to prohibit death sentences for crimes other than murder); Nanda,
Recent Developments in the United States and Internationally
Regarding Capital Punishment—An Appraisal, 67 St. John’s
L. Rev. 523, 532 (1993) (finding that Coker stands
for the proposition that a death sentence is excessive when the
victim is not killed); Ellis, Guilty but Mentally Ill and the Death
Penalty: Punishment Full of Sound and Fury, Signifying Nothing, 43
Duke L. J. 87, 94 (1994) (referencing Coker to
require capital offenses to be defined by unjustified human death);
Dingerson, Reclaiming the Gavel: Making Sense out of the Death
Penalty Debate in State Legislatures, 18 N. Y. U. Rev. L.
& Soc. Change 873, 878 (1991) (stating that Coker “ruled that the imposition of the death penalty for crimes from
which no death results violates the cruel and unusual punishment
provision of the eighth amendment” and that “[n]o subsequent
Supreme Court decision has challenged this precedent”). Footnote 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 Sep Fed. Probation 69 (1995). By 1991, the
number of cases totaled 432,000, an increase of another 227%. Ibid . In 1995, local child protection services agencies
identified 126,000 children who were victims of either
substantiated or indicated sexual abuse. Nearly 30% of those child
victims were between the age of four and seven. Rape, Abuse &
Incest National Network Statistics, online at
http://www.rainn.org/get-information/
statistics/sexual-assault-victims. There were an estimated 90,000
substantiated cases of child sexual abuse in 2003. Crimes Against
Children Research Center, Reports from the States to the National
Child Abuse and Neglect Data System, available at www.unh.edu/ccrc/
sexual-abuse/Child%20Sexual%20Abuse.pdf. Footnote 3 Ala. Code §§13A–11–200 to
13A–11–203, 1181 (1994); Alaska Stat §§1.56.840, 12.63.010–100,
18.65.087, 28.05.048, 33.30.035 (1994, 1995, and 1995 Cum. Supp.);
Ariz. Rev. Stat. Ann. §§13–3821 to –3825 (1989 and Supp. 1995);
Ark. Code Ann. §§12–12–901 to –909 (1995); Cal. Penal Code Ann.
§§290 to 290.4 (West Supp. 1996); Colo. Rev. Stat. Ann. §18–3–412.5
(Supp. 1996); Conn. Gen. Stat. Ann. §§54–102a to 54–102r (Supp.
1995); Del. Code Ann. Tit. 11, §4120 (1995); Fla. Stat. Ann.
§§775.13, 775.22 (1992 and Supp. 1994); Ga. Code Ann. §42–9–44.1
(1994); 1995 Haw. Sess. Laws No. 160 (enacted June 14, 1995); Idaho
Code §§9–340(11)(f), 18–8301 to 18–8311 (Supp. 1995); Ill. Comp.
Stat. Ann., ch. 730, §§150/1 to 150/10 (2002); Ind. Code §§5–2–12–1
to 5–2–12–13 (West Supp. 1995); 1995 Iowa Legis. Serv. 146 (enacted
May 3, 1995); Kan. Stat. Ann. §§22–4901 to 22–4910 (1995); Ky. Rev.
Stat. Ann. §§17.500 to 17.540 (West Supp. 1994); La. Stat. Ann.
§§15:540 to 15:549 (West Supp. 1995); Me. Rev. Stat. Ann., Tit.
34–A, §§11001 to 11004 (West Supp. 1995); 1995 Md. Laws p. 142
(enacted May 9, 1995); Mass. Gen. Laws Ann., ch. 6, §178D; 1994
Mich. Pub. Acts p. 295 (enacted July 13, 1994); Minn. Stat.
§243.166 (1992 and Supp. 1995); Miss. Code Ann. §§45–33–1 to
45–33–19 (Supp. 1995); Mo. Rev. Stat. §§566.600 to 566.625 (Supp.
1996); Mont. Code Ann. §§46–23–501 to 46–23–507 (1994); Neb. Rev.
Stat. §§4001 to 4014; Nev. Rev. Stat. §§207.080, 207.151 to 207.157
(1992 and Supp. 1995); N. H. Rev. Stat. Ann. §§632–A:11 to
632–A:19 (Supp. 1995); N. J. Stat. Ann. §§2c:7–1 to 2c:7–11
(1995); N. M. Stat. Ann. §§29–11A–1 to 29–11A–8 (Supp. 1995);
N. Y. Correct. Law Ann. §§168 to 168–V (West Supp. 1996);
N. C. Gen. Stat. Ann. §§14–208.5–10 (Lexis Supp. 1995);
N. D. Cent. Code §12.1–32–15 (Lexis Supp. 1995); Ohio Rev.
Code Ann. §§2950.01–.08 (Baldwin 1997); Okla. Stat., Tit. 57,
§§582–584 (2003 Supp.); Ore. Rev. Stat. §§181.507 to 181.519
(1993); 1995 Pa. Laws p. 24 (enacted Oct. 24, 1995);
R. I. Gen. Laws §11–37–16 (1994); S. C. Code Ann.
§23–3–430; S. D. Codified Laws §§22–22–30 to 22–22–41 (Supp.
1995) Tenn. Code Ann. §§40–39–101 to 40–39–108 (2003); Tex. Rev.
Civ. Stat. Ann., Art. 6252–13c.1 (Vernon Supp. 1996); Utah Code
Ann. §§53–5–212.5, 77–27–21.5 (Lexis Supp. 1995); Vt. Stat. Ann.,
Tit. 13, §5402; Va. Code Ann. §§19.2–298.1 to 19.2–390.1 (Lexis
1995); Wash. Rev. Code §§4.24.550, 9A.44.130, 9A.44.140, 10.01.200,
70.48.470, 72.09.330 (1992 and Supp. 1996); W. Va. Code
§§61–8F–1 to 61–8F–8 (Lexis Supp. 1995); Wis. Stat. §175.45 (Supp.
1995); Wyo. Stat. Ann. §§7–19–301 to 7–19–306 (1995). Footnote 4 Those States are Arizona,
California, Connecticut, the District of Columbia, Florida,
Illinois, Iowa, Kansas, Kentucky, Massachusetts, Minnesota,
Missouri, Nebraska, New Jersey, North Dakota, Oregon, Pennsylvania,
South Carolina, Texas, Virginia, Washington, and Wisconsin. See
Ariz. Rev. Stat. §§36–3701 to 36–3713 (West 2003 and Supp. 2007);
Cal. Welf. & Inst. Code Ann. §§6600 to 6609.3 (West 1998 and
Supp. 2008); Conn. Gen. Stat. §17a–566 (1998); D. C. Code
§§22–3803 to 22–3811 (2001); Fla. Stat. §§394.910 to 394.931 (West
2002 and Supp. 2005); Ill. Comp. Stat., ch. 725, §§207/1 to 207/99
(2002); Iowa Code §§229A.1–.16 (Supp. 2005); Kan. Stat. Ann.
§59–29a02 (2004 and Supp. 2005); Ky. Rev. Stat. Ann. §202A.051
(West ___); Mass. Gen. Laws, ch. 123A (1989); Minn. Stat. §253B.02
(1992); Mo. Ann. Stat. §§632.480 to 632.513 (West 2000 and Supp.
2006); Neb. Rev. Stat. §§83–174 to 83–174.05 (2007); N. J.
Stat. Ann. §§30:4–27.24 to 30:4–27.38 (West Supp. 2004); N. D.
Cent. Code Ann. §25–03.3 (Lexis 2002); Ore. Rev. Stat. §426.005
(1998); Pa. Stat. Ann., Tit. 42, §§9791 to 9799.9 (2007);
S. C. Code Ann. §§44–48–10 to 44–48–170 (2002 and Supp. 2007);
Tex. Health & Safety Code Ann. §§841.001 to 841.147 (West
2003); Va. Code Ann. §§37.2–900 to 37.2–920 (2006 and Supp. 2007);
Wash. Rev. Code §71.09.010 (West 1992 and Supp. 2002); Wis. Stat.
§980.01–13 (2005). Footnote 5 See Ala. Code §15–20–26 (Supp.
2000) (restricts sex offenders from residing or accepting
employment within 2,000 feet of school or child-care facility);
Ark. Code Ann. §5–14–128 (Supp. 2007) (unlawful for level three or
four sex offenders to reside within 2,000 feet of school or daycare
center); Cal. Penal Code Ann. §3003 (West Supp. 2008) (parolees may
not live within 35 miles of victim or witnesses, and certain sex
offenders on parole may not live within a quarter mile from a
primary school); Fla. Stat. §947.1405(7)(a)(2) (2001) (released sex
offender with victim under 18 prohibited from living within 1,000
feet of a school, daycare center, park, playground, or other place
where children regularly congregate); Ga. Code Ann. §42–1–13 (Supp.
2007) (sex offenders required to register shall not reside within
1,000 feet of any childcare facility, school, or area where minors
congregate); Ill. Comp. Stat., ch. 720, §5/11–9.3(b–5) (Supp. 2008)
(child sex offenders prohibited from knowingly residing within 500
feet of schools); Ky. Rev. Stat. Ann. §17.495 (West 2000)
(registered sex offenders on supervised release shall not reside
within 1,000 feet of school or childcare facility); La. Rev. Stat.
Ann. §14:91.1 (West Supp. 2004) (sexually violent predators shall
not reside within 1,000 feet of schools unless permission is given
by school superintendent); Ohio Rev. Code Ann. §2950.031 (Lexis
2003) (sex offenders prohibited from residing within 1,000 feet of
school); Okla. Stat., Tit. 57, §590 (West 2003) (prohibits sex
offenders from residing within 2,000 feet of schools or educational
institutions); Ore. Rev. Stat. §§144.642, 144.643 (1999)
(incorporates general prohibition on supervised sex offenders
living near places where children reside); Tenn. Code Ann.
§40–39–111 (2006) (repealed by Acts 2004, ch. 921, §4, effective
Aug. 1, 2004) (sex offenders prohibited from establishing residence
within 1,000 feet of school, childcare facility, or
victim). Footnote 6 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.death penaltyinfo.org/ESPYyear.pdf. Footnote 7 Of course, the other five capital
child rape statutes are too recent for any individual to have been
sentenced to death under them. Footnote 8 Gregg v. Georgia , 428 U. S. 153 (1976); Proffitt v. Florida , 428 U. S. 242 (1976); Jurek v. Texas , 428 U. S. 262 (1976); Woodson v. North Carolina , 428 U. S. 280 (1976); Roberts v. Louisiana , 428 U. S. 325 (1976).