Conservative states are capitalizing on the Supreme Court’s reversal of Roe v. Wade to broaden the application of the death penalty

Even though public support for the death penalty is declining nationwide, Republican governors, spearheaded by Florida’s Ron DeSantis, are enacting laws that broaden the scope of the death penalty.

Earlier this month, Tennessee Governor Bill Lee took a significant step by signing a bill that grants the death penalty for aggravated rape of a child. This groundbreaking law is set to come into effect on July 1. Following Florida’s lead, Tennessee has become the second state to apply capital punishment in cases where no one loses their life. Notably, Idaho, another conservative state, is now also contemplating similar legislation.

According to the Death Penalty Information Center, these laws go against the long-standing Supreme Court precedent that deems the death penalty unconstitutional for non-homicide crimes. Their purpose is to set the stage for a case that would enable the conservative, activist majority in the Supreme Court to overturn established precedent, similar to what has been observed in other prominent cases.

Supporters of the new legislation are optimistic that the court will broaden the scope of capital punishment. Additionally, they aim to challenge opponents of the death penalty by portraying them as advocates for criminals, particularly those who commit heinous crimes like child rape.

Opponents of the death penalty should make a concerted effort to avoid succumbing to this trap. Instead of mounting an all-out campaign to argue against why child rapists should not be executed, their most effective political strategy, even if it may not be a successful legal strategy, would be to emphasize the importance of respecting the court’s own precedent.

Before delving into the Tennessee law and its political strategy, let’s revisit the Supreme Court’s stance on employing the death penalty for non-homicide offenses such as rape. In a 1977 ruling, the court, with a 7-2 majority, deemed capital punishment as “grossly disproportionate” for the crime of rape. Justice Bryon White, authoring the majority opinion in Coker v. Georgia, drew upon historical context to elucidate the rationale behind this judgment.

White stated that over the past 50 years, the majority of states have not authorized the death penalty for rape. He explained that in 1925, 18 states, the District of Columbia, and the Federal Government allowed capital punishment for the rape of an adult female. However, by 1971, this number had only slightly decreased to 16 states plus the Federal Government.

After the Supreme Court’s 1972 ruling in Furman v. Georgia, which declared the death penalty unconstitutional in its then-applied form, the landscape changed significantly. As a result, over 30 states chose to reintroduce their death penalty laws, but only a few opted to reinstate it as a punishment for rape.

According to White, it is important to note that the public’s perception of rape, as reflected in the laws governing its punishment, has been significantly different. When death penalty laws were reinstated to meet the requirements set by Furman, none of the states that had not previously allowed death penalty for rape decided to include it as a capital offense.

White understood the gravity of rape as a crime, acknowledging its severe moral implications and its complete disregard for the personal autonomy and integrity of the female victim. According to him, rape represents the most extreme violation of a person’s self, second only to homicide.

White, however, maintains that rape cannot be equated to murder in terms of moral depravity and harm inflicted on the victim and society. He argues that while murder involves the unjustified taking of a human life, rape does not. According to White, the act of rape, in and of itself, does not result in the loss of life. Therefore, he strongly believes that the death penalty, which is uniquely severe and irreversible, is an excessive punishment for rapists who do not take human life.

Chief Justice Warren Burger and Justice William Rehnquist strongly disagreed with the majority in the Coker case. They criticized the majority for imposing their own views on public policy instead of respecting the legislative decisions made by the States. The dissenting justices found the decision to prohibit the death penalty for rape cases deeply troubling.

In a case known as Kennedy v. Louisiana, the Supreme Court reasserted and expanded upon the ruling made in Coker three decades earlier. Justice Anthony Kennedy, speaking on behalf of a majority of five justices, acknowledged the heinous nature of the crime committed by the petitioner, stating that it is impossible to fully describe the pain and horror inflicted upon the victim or convey the revulsion felt by society.

According to his argument, there is a clear distinction to be made between intentional first-degree murder and nonhomicide crimes against individuals, even including child rape. While the latter crimes can cause significant harm, they cannot be equated to murder in terms of moral depravity, injury to the person, and impact on society.

In a scathing dissent, Justice Samuel Alito expressed incredulity at the notion that death could never be an appropriate punishment, regardless of the age of the child or the severity of the crime. He argued that this perspective fails to consider the profound impact of heinous acts of rape on the victims, as well as the potential for repeated offenses by the perpetrator. Additionally, Justice Alito emphasized that the prior criminal record of the offender and the extent of physical and psychological trauma inflicted should be taken into account when determining the appropriate punishment.

In 2008, both major party presidential candidates, Democrat Barack Obama and Republican John McCain, condemned the court’s decision, recognizing the political risks associated with supporting it. Obama stated that he believed the rape of a young child, aged 6 or 8, was an abhorrent crime. He acknowledged that if a state determined that the death penalty could potentially be applicable in such cases, it would not violate the Constitution.

We now find ourselves back in the present.

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It is worth noting that the individuals who are currently disregarding the rulings of Coker and Kennedy, wherein Kennedy and the other justices in the majority are no longer serving on the Supreme Court (while Alito and two of the other dissenters continue to serve), are well aware of this fact. Their actions are further fueled by the court’s growing disregard for its own precedents. Furthermore, the potential political consequences that Obama acknowledged for those who openly oppose the death penalty for child rapists have not gone unnoticed.

State Senator Jack Johnson, the sponsor of the bill, emphasized the importance of the legislation in an op-ed he penned for The Tennessean last month. Reflecting on the matter, he provocatively questioned, “Should the life of a rapist hold greater value than that of an innocent child who will bear lifelong scars? In Tennessee, we firmly answer no.”

He further emphasized the severity of the issue by stating, “Child rape is an abhorrent and unforgivable crime that inflicts deep emotional and psychological scars on its victims. As a legislator and as a compassionate individual, our foremost duty is to safeguard those who are most vulnerable.”

Johnson stated that critics of this legislation argue against the death penalty, claiming that it is both an unjustifiable punishment and ineffective. However, he emphasized that in cases where a rapist is targeting and causing permanent harm to a child, a severe form of justice is the necessary consequence they must confront.

Johnson openly discussed the potential impact that the composition of the Supreme Court could have on the outcome of a challenge to the Tennessee law.

It is worth noting that the composition of the U.S. Supreme Court has significantly changed since the 2008 opinion was issued. Out of the five justices who supported the opinion at that time, none of them are currently serving on the Court. This includes Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer. On the other hand, three out of the four justices who authored the dissenting opinion are still sitting justices today. These include Chief Justice Roberts, Justice Alito, and Justice Thomas. Given the current makeup of the Court, there is a strong possibility that the precedent set by Kennedy v. Louisiana could potentially be overturned.

Johnson expressed confidence in the Supreme Court’s belief that safeguarding children is a paramount state interest. He firmly believes that the Court will stand behind Tennessee’s initiatives in this regard.

Perhaps he has a point.

The Supreme Court’s decision to overturn its own precedents and permit states to ban abortion has had a significant impact. It has not only sent a clear message but has also emboldened states like Tennessee, Florida, and possibly Idaho to challenge long-standing precedents in the realm of capital punishment. These states are placing their bets on the notion that the court will now be more receptive to allowing death penalty states to broaden the scope of capital punishment.

Eliminating the death penalty would not only be a regressive measure in the continuous pursuit to abolish capital punishment in the nation, but it would also serve as further evidence that the current Court’s decision-making is driven more by power than by reason, as aptly observed by former Justice Thurgood Marshall.

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