Academic journal article Journal of Criminal Law and Criminology

Louisiana's Newest Capital Crime: The Death Penalty for Child Rape

Academic journal article Journal of Criminal Law and Criminology

Louisiana's Newest Capital Crime: The Death Penalty for Child Rape

Article excerpt


In Louisiana, prosecutors are currently seeking the death penalty against two men accused of raping children in the case of State v. Wilson.(2) In 1995, Louisiana passed a state law making it a capital offense to rape a child under twelve. Louisiana Revised Statute 14:42 (C) reads in pertinent part:

   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. However, if the victim was under the age of twelve
   years ... 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.(3)

Prosecutors indicted two defendants, Anthony Wilson and Patrick Dewayne Bethley, under the new law. Prior to conviction, both moved to quash the indictments, challenging the statute's constitutionality on its face.(4) The respective trial courts granted both motions to quash, and the State then appealed to the Louisiana Supreme Court, which consolidated the cases for review.(5) On appeal, both defendants argued that the law is unconstitutional because imposing the death penalty for raping a child is cruel and unusual punishment.(6) Although the Louisiana Supreme Court found the law constitutional, the question bears further examination: is the law constitutional? Or is the imposition of the death penalty for a non-homicide crime cruel and unusual punishment?

This Comment proposes that imposing the death penalty for child rape is unconstitutional because the Eighth Amendment prohibits punishments that are disproportionate to the crimes for which they are imposed. Part II reviews the background law involving the Eighth Amendment and relevant Supreme Court case law. Part III analyzes the issues presented by the decision in State v. Wilson and discusses four hurdles for the Louisiana statute: (1) a procedural hurdle which insures against arbitrary and capricious imposition of the death penalty;(7) (2) that the punishment must not be excessive in relation to the crime;(8) (3) that the punishment must serve a legitimate goal beyond the needless imposition of pain and suffering;(9) and (4) that a punishment must not be so severe as to be unacceptable to contemporary society.(10) Part IV concludes that the Louisiana statute will likely be struck down when it reaches the Supreme Court of the United States because it is excessive punishment for the crime of rape.



The Eighth Amendment to the Federal Constitution, ratified on December 1.5, 1791, prohibits the infliction of cruel and unusual punishments.(11) The Framers took the language of this amendment from the English Bill of Rights, adopted by Parliament in 1688, after the English Civil War.(12) The English Bill of Rights contained the same language: "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."(13) The prohibition against cruel and unusual punishment was absent from the original body of the United States Constitution, an exclusion that was hotly debated at the time of enactment. At the Massachusetts Convention, this exclusion was protested: "Congress shall have to ascertain ... and determine what kind of punishments shall be inflicted on persons convicted of crimes. They are nowhere restrained from inventing the most cruel and unheard of punishments."(14) At the Virginia Convention, Patrick Henry echoed this fear: "Congress.... may define crimes and prescribe punishments .... [W]hen we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. [Without a prohibition on cruel and unusual punishment], [y]ou let them loose; you do more--you depart from the genius of your country."(15) Clearly, participants at the Conventions were voicing a desire to enact a ban on cruel and unusual punishment to act as a restraint on the laws enacted by the legislatures. …

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