Is the death penalty cruel and unusual?

State v. Wilson

685 So.2d 1063 (La. 1996)

Anthony Wilson was charged by a grand jury indictment with aggravated rape of a five-year-old girl. He moved to quash [dismiss] the indictment. The Criminal District Court, Parish of Orleans, quashed defendant's indictment for aggravated rape of a five-year-old. The Fourth Judicial District Court, Parish of Ouachita, quashed indictment of another defendant, Patrick Dewayne Bethley charged with raping three girls under the age of 12. The cases were consolidated. The Supreme Court of Louisiana reversed and vacated; remanded.

BLEICH, Justice


On December 21, 1995, Anthony Wilson was charged by grand jury indictment with the aggravated rape of a five year old girl. He moved to quash the indictment, alleging that the crime of rape could never be punished with the death penalty. The trial court granted Wilson's motion to quash, resulting in this appeal by the state. Patrick Dewayne Bethley was charged with raping three girls, one of whom was his daughter, between December 1, 1995, and January 10, 1996. The ages of the little girls at the time of the rape were five, seven, and nine. Furthermore, the State alleges that at the time of the alleged crimes, Bethley knew that he was HIV positive. Bethley filed a motion to quash urging the unconstitutionality of La. R.S. 14:42(C). The trial court granted Bethley's motion to quash. Although finding La. R.S. 14:42(C) would pass constitutional muster under the Eighth Amendment and the Equal Protection clause of the United States Constitution and Article I, 20 of the Louisiana Constitution, the trial court held La. R.S. 14:42(C) unconstitutional because the class of death eligible defendants was not sufficiently limited. That ruling resulted in an appeal.


The thrust of both defendants' arguments is that the imposition of the death penalty for a crime not resulting in a death is "cruel and unusual punishment" and therefore unconstitutional under the Eighth Amendment to the United States Constitution and Article I, 20 of the Louisiana Constitution of 1974. The phrase "cruel and unusual punishment" found in the Eighth Amendment and in Article I, 20 takes its roots from the English Bill of Rights of 1689. The English version of the phrase appears to prohibit punishments unauthorized by statute and beyond the jurisdiction of the court, as well as those disproportionate to the offense committed. However, the American drafters of the Eighth Amendment were primarily concerned with proscribing "tortures" and other "barbarous" methods of punishment such as pillorying, decapitation, and drawing and quartering. Therefore, the American courts virtually ignored the Eighth Amendment since the barbaric practices proscribed had become obsolete.

Not until the nineteenth century did the Supreme Court recognize that the scope of the Eighth Amendment might be broader that originally thought and include the prohibition of disproportionately excessive sentences. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). The years since Weems have seen a development of the Eighth Amendment's "cruel and unusual punishment" clause. As Chief Justice Warren said, "(t)he Amendment must draw its meaning from the evolving standards of decency that mark the maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Therefore, the Eighth Amendment bars not only those punishments that are barbaric but also those that are excessive.

A punishment is excessive and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more that the purposeful and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Excessive Punishment Argument

The defendants' primary argument is that death is a disproportionate penalty for the crime of rape. The defendants' contention is based on Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) decided by the Supreme Court in a plurality opinion. The Coker court rejected capital punishment as a penalty for the rape of an adult woman saying: "Although rape deserves serious punishment, the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such and as opposed to the murderer, does not take human life." Coker, supra at 585, 97 S.Ct. at 2862. The plurality took great pains in referring only to the rape of adult women throughout their opinion, leaving open the question of the rape of a child. The defendants argue that the Coker findings cannot be limited to the rape of an adult. They contend the following words used by the Court would apply with equal force to the crime of statutory rape when no life is taken:

"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 or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. 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. 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." Coker, supra at 598, 97 S.Ct. at 2869.

The contention that the harm caused by a rapist is less serious than that caused by a murderer is apparently not subscribed to by all rape victims. In some cases women have preferred death to being raped or have preferred not to continue living after being raped.

La. R.S. 14:42(C) was amended by Acts 1995, No. 397, 1 to allow for the death penalty when the victim of rape is under the age of twelve. Rape of a child less than twelve years of age is like no other crime. Since children cannot protect themselves, the State is given the responsibility to protect them. Children are a class of people that need special protection; they are particularly vulnerable since they are not mature enough nor capable of defending themselves. A "maturing society", through its legislature has recognized the degradation and devastation of child rape, and the permeation of harm resulting to victims of rape in this age category. The damage a child suffers as a result of rape is devastating to the child as well as to the community. As noted previously, in determining whether a penalty is excessive, the Supreme Court has declared that we should take into account the "evolving standards of decency", and in making this determination, the courts should not look to their own subjective conceptions, but should look instead to the conceptions of modern American society as reflected by objective evidence. As evidence of society's attitudes, we look to the judgment of the state legislators who are representatives of society.

Louisiana's legislature determined a "standard of decency" by amending La. R.S. 14:42(C) to permit the death penalty in cases of aggravated rape when the victim is less than twelve, and deference must be given to that decision. The legislature alone determines what are punishable as crimes and the proscribed penalties. The legislature is not required to select the least severe penalty for the crime as long as the selected penalty is not cruelly inhumane or disproportionate to the offense. Furthermore, legislative enactments are presumed constitutional under both the Federal and the State Constitutions. The party challenging the constitutionality of a statute bears a heavy burden in proving the statute to be unconstitutional. This is true in part because the constitutional test is intertwined with an assessment of contemporary standards, and the decisions of the legislature are indicative of such standards. "In a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." The courts must exercise caution in asserting their views over those of the people as announced through their elected representatives.

Crime without Death

It has been argued that the death penalty should not be an option when the crime committed produces no death. The Supreme Court has held that the death penalty is an excessive penalty for a robber who does not take a human life. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In Enmund, the defendant was the driver of the getaway car. His accomplices had robbed and shot two people. The shooter and Enmund were convicted of first degree murder and sentenced to death. The Supreme Court overturned Enmund's sentence of death holding that the Eight Amendment does not permit the imposition of the death penalty of a defendant who aids and abets a felony in course of which murder is committed by others but who does not himself kill, attempt to kill, or intend that killing take place or that lethal force will be employed. The Court goes on to say that "we have no doubt that robbery is a serious crime deserving serious punishment. It is not, however, a crime 'so grievous an affront to humanity that the only adequate response may be the penalty of death.' The Court focused on Enmund's conduct in determining the appropriateness of the death penalty. In Enmund, the defendant simply aided and abetted a robbery which, as the Court holds, is not deserving of the death penalty. However, La. R.S. 14:42(C) contemplates a defendant who rapes a child. The legislature has determined that this crime is deserving of the death penalty because of its deplorable nature, being a "grievous affront to humanity."

While the Eighth Amendment bars the death penalty for minor crimes under the concept of disproportionality, the crime of rape when the victim is under the age of twelve is certainly not a minor crime. The Coker Court recognized the possibility that the degree of harm caused by an offense could be measured not only by the injury to a particular victim but also by the resulting public injury. This implies that some offenses, in particular the rape of a child, might be so injurious to the public that death would not be disproportionate in relation to the crime for which it is imposed. "In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs."

Thus, we conclude that given the appalling nature of the crime, the severity of the harm inflicted upon the victim, and the harm imposed on society, the death penalty is not an excessive penalty for the crime of rape when the victim is a child under the age of twelve years old.

Arbitrary and Capricious

Much has been made of why eleven year old children are protected by such severe penalties but not twelve year olds. This is not a decision for this Court to make. The legislature is given the power to make the laws and they determined where the line should be drawn, and they drew it between the ages of eleven and twelve. La. R.S. 14:30, first degree murder, as well as La.C.Cr.P. art. 905.4(10) use the same line. Distinctions must be drawn and the legislature is in the best position to make these distinctions.

Goals of Punishment

Two legitimate goals of punishment are retribution and deterrence. The defendants argue that the death sentence in the case of child rape fails to meet either of these goals. They say the imposition of the death penalty will have a chilling effect on the already inadequate reporting of this crime. Since arguably, most child abusers are family members, the victims and other family members are concerned about the legal, financial and emotional consequences of coming forward. According to defendants, permitting the death penalty for the crime will further decrease the reporting since no child wants to be responsible for the death of a family member. But what defendants fail to understand is that the child is not the one responsible. The child is the innocent victim. The offender is responsible for his own actions. The subject punishment is for the legislature to determine, not this Court.

Self-help is not permitted in our society, so there is a need for retribution in our criminal sanctions. The death penalty for rape of a child less than twelve years old would be deterrence to the commission of that crime. There are a range of possible penalties for such a crime, but as Justice Burger notes in his dissent in Coker: "We cannot know which among this range of possibilities is correct, but today's holding (finding the death penalty for rape of an adult woman to be unconstitutional) forecloses the very exploration we have said federalism was intended to offer."

While Louisiana is the only state that permits the death penalty for the rape of a child less than twelve, it is difficult to believe that it will remain alone in punishing rape by death if the years ahead demonstrate a drastic reduction in the incidence of child rape, an increase in cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the role of law on the part of the people. This experience will be a consideration for this and other states' legislatures.

Our holding today permits the death penalty without a death actually occurring. In reaching this conclusion, we give great deference to our legislature's determination of the appropriateness of the penalty. This is not to say, however, that the legislature has free reign in proscribing penalties. They must still conform to the mandates of the Eighth Amendment and Article I, 20 of the Louisiana Constitution, and they are still subject to judicial review by the courts. We hold only that in the case of the rape of a child under the age of twelve, the death penalty is not an excessive punishment nor is it susceptible of being applied arbitrarily and capriciously.

For the reasons stated above, we find La. R.S. 14:42(C) to be constitutional. The motion to quash in each case is reversed and vacated. These cases are remanded to the respective trial courts.


CALOGERO, Chief Justice, dissenting.

No other State in the union imposes the death penalty for the aggravated rape of a child under twelve years of age. The reason for this, in my view, is that the statute fails constitutional scrutiny under the decisions of the United States Supreme Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). I therefore dissent and would hold R.S. 14:42(C) facially unconstitutional under the Eighth Amendment to the United States Constitution.


  1. According to the court, why is death a proportionate penalty for child rape? Do you agree? Explain your reasons
  2. Who should make the decision as to what is the appropriate penalty for crimes? Courts? Legislatures? Juries? Defend your answer.
  3. In deciding whether a the death penalty for child rape is cruel and unusual, is it relevant that Louisiana is the only state that punishes child rape with death?
  4. According to the court, some crimes are worse than death. Do you agree? Is child rape one of them? Why? Why not?