Two more states moving bills forward to make child rape a capital offense

In spring 2023, as detailed in this post, Florida became the first state to authorize the death penalty for the crime of child rape since the Supreme Court’s ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008).  (In Kennedy, the Court decided, by a 5-4 vote, that the US Constitution’s Eighth Amendment prohibits a state from imposing a death sentence for the crime of child rape.)  In spring 2024, as detailed in this post, Tennessee became the second state to enact legislation allowing the death penalty for certain child rape convictions since Kennedy.

Now, as spring 2025 approaches, local press stories detail that two more states seem to be on track to put similar new capital punishment laws on their books:

From Alabama, “Committee approves bill expanding death penalty for child sexual assault“

From Idaho, “Idaho House unanimously passes child sex abuse death penalty bill“

Especially because Idaho barely ever uses its existing death penalty laws even against murderers (basics here from DPIC), the state’s possible expansion of the death penalty to child rape seems unlikley to produce a lot more death sentences.  And yet, as one legislator in Idaho noted, legislative enactments matters in modern Eighth Amendment analysis:    

Rep. John Shirts, R-Weiser, a prosecutor in the Air Force Reserve, said “there are things that are so horrific that people do to children there’s nothing more than ultimate punishment that is just.”  And he suggested Idaho’s bill would help the court re-evaluate the issue. “Some people might argue that this doesn’t have any binding on the court. It really does,” Shirt said.  “It shows what our will, what the state’s will, in these types of cases, are. It goes to that national consensus analysis under the Eight Amendment.”

There were six states with capital child rape statutes on the books when Kennedy was handed down, so it seems unlikley that even four states with new capital child rape statutes woud alter the “national consensus analysis under the Eight Amendment.” But it is unclear whether the current Supreme Court would continue to embrace and apply this jurisprudential approach to the Eighth Amendment. And, notably, the only three Justices still on the Court since the 2008 Kennedy decision, namely the Chief Justice and Justices Thomas and Alito, were all part of the dissent in that case.

That all said, I am unaware of any a capital child rape case going to trial in Florida’s since its capital child rape statute was enacted in 2023.  So, it likely will take (many more?) years before a child rape death sentence is actually imposed and appealed in any jurisdiction to provide the Supreme Court an opportunity to reconsider its Kennedy ruling.