Louisiana's newest capital crime: the death penalty for child rape.

• Author: Fleming, Annaliese Flynn

1. INTRODUCTION

   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.

2. BACKGROUND LAW

   1. THE ADOPTION OF THE EIGHTH AMENDMENT

      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. Eventually, this view carried the day, and the Eighth Amendment was enacted as part of the Bill of Rights. After the Eighth Amendment became effective, it served as a restraint on the courts and a warning not to abuse the discretion with which the courts had been entrusted.(16) At this time, the debate surrounding cruel and unusual punishment shifted from whether to have a prohibition to what the prohibition actually meant.

   2. THE MEANING OF CRUEL AND UNUSUAL PUNISHMENT

      1. The Historical Debate

         The debate surrounding the meaning of cruel and unusual punishment began after the adoption of the Cruel and Unusual Punishment Clause and continues today. Scholars and jurists disagree over the original meaning of the Clause, as well as its present meaning. The Framers included the Eighth Amendment in the Bill of Rights to limit legislative power to prescribe punishments for crimes, but we have little evidence of how they defined "cruel and unusual punishment." Certainly the ban reached torture and other barbaric punishments, as early cases demonstrate.(17) In Pervear v. Massachusetts,(18) the United States Supreme Court referred to the Clause for the first time, nearly eighty years after the Eighth Amendment's ratification. Ordinarily, the terms of the Clause applied to something inhuman and barbarous, such as torture.(19) Examples of cruel and unusual punishments included being disemboweled alive, burned alive, beheaded, or drawn and quartered.(20) However, none of the early cases called for an exhaustive definition. In Wilkerson v. Utah, the Court held that the Eighth Amendment prohibits torture and like punishments of "unnecessary cruelty."(21) Several years later, the Court declared:

         [D]ifficulty would attend the effort to define with exactness the extent of the constitutional provision, which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that "punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden" by that amendment to the Constitution.... Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies ... something more than the mere extinguishment of life.(22) The first hint that the Clause prohibited more than torture and other barbaric punishments occurred in 1892. In O'Neil v. Vermont, the punishment at issue was imprisonment at hard labor for violating the Vermont liquor laws.(23) Justice Field, dissenting, interpreted the Clause to prohibit not only punishments which inflict torture, but also "all punishments which, by their excessive length or severity, are greatly disproportioned to, the offenses charged."(24) This was the first appearance of any discussion of proportionality.

         In 1910, in Weems v. United States, the Court firmly rejected the notion that the Cruel and Unusual Punishment Clause prohibited only torturous and barbaric punishments.(25) At issue was punishment of imprisonment at "hard and painful labor" for up to twenty years, loss of all political rights, and surveillance by authorities for life, all for falsifying an official public document.(26) Examining the works of various legal scholars, as well as the debates surrounding the enactment of the Cruel and Unusual Punishment Clause, the Court concluded that the Framers must have intended that the ban on cruel and unusual punishment include penalties disproportionate to the offenses for which they are imposed.(27) Describing Patrick Henry and others who championed the enactment of the Clause, the opinion noted:

         They were men of action, practical and sagacious, not beset with vain imaging, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.... [W]e cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked.(28) The Court in Weems expanded the definition of cruel and unusual punishment, recognizing that its vitality depended on its ability to expand in application.(29)

         Examining the English definition of cruel and unusual punishment, the Weems Court observed:

         [T]he earliest application of the provision in England was in 1689 ... to avoid an excessive pecuniary fine imposed upon Lord Devonshire by the court of the King's Bench.... [T]he House of Lords ... decided that the fine `was excessive and exorbitant, against the Magna Carta, the common right of the subject, and the law of the land.'(30) Therefore, the English definition explicitly embraced the concept that punishments (in this case fines) can be excessive with respect to the offenses for which they are imposed. Undoubtedly the Framers knew of this English definition when they chose to copy the language of the English Bill of Rights, which suggests their intent that the Eighth Amendment include a ban on excessive punishments.

         Weems was also the first case to note the flexibility of the Clause prohibiting cruel and unusual punishment.(31) After examining several state cases and works by commentators, the Court concluded that "[t]he clause of the Constitution ... may therefore be progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice."(32)

      2. The Death Penalty in Recent Years: The Road to Coker v. Georgia

         The Supreme Court, per Chief Justice Warren, reiterated the flexibility of the Clause in 1958:

         The exact scope of the Constitutional phrase `cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice.... The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to...