One of These Statutes Is Not Like the Others

Of the six states that currently have capital child rape statutes, Louisiana's is perhaps the most unusual of the group. In evaluating an "emerging standard of decency" under the Eighth Amendment, it seems to make sense to treat the six states as part of a national trend.

However, there is one very important difference between the Louisiana statute and the other five. The Louisiana statute is the only one that applies to first time sex offenders.  Each of the other states requires that a person have committed and been convicted for some prior sex offense (and some of the states have very stringent limits on what the prior conviction must have been for). For this reason, Louisiana's statute applies to a much larger population of defendants. Thus, it shouldn't be surprising that Louisiana is the only state with persons on death row for child rape.

What do we make of this difference?  Is it constitutionally significant?  Is the national trend or consensus toward the death penalty for repeat child rapists? If so, is Louisiana's statute not an example of the trend? I'm wondering if this is the reason the state of Texas asked to argue before the Court today. Maybe Texas wants to argue that some of the concerns raised by the Louisiana statute don't apply to the other five states.

Related Posts: Kennedy v. Louisiana Resource Page