The structure of the majority opinion resembles the methodology of other recent 8th Amendment challenges. As the opinion states:
The existence of objective indicia of consensus against making a crime punishable by death was a relevant concern in Roper, Atkins, Coker, and Enmund, and we follow the approach of those cases here. The history of the death penalty for the crime of rape is an instructive beginning point.
The court continued to use its "bean-counting" approach to determine if there was some sort of consensus or trend in favor of applying the death penalty in these cases. As I thought would happen, the Court continues to count states without any death penalty as part of those that are for any limitation on the death penalty:
By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse....
The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.
The Court then rejects the state's attempts to argue that Coker deterred states from adopting the child rape statutes (and thus, the count of states in favor of capital rape statutes is inherently too low):
Still, respondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.
This was always a tricky point for the state. On the one hand, the state wanted to argue that Coker is distinguishable and not controlling. On the other hand, they wanted to argue that the states felt Coker was controlling (even though it wasn't) and thus, more states really should be counted as being in favor of capital child rape statutes. Here, the Court uses the state's arguments against each other.
The Court moved beyond the legislative bean-counting and found that other objective indicators supported striking down the Louisiana statute:
There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society.... These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape.
I think the key factors here were the limited number of persons on death row (2) and the number of persons actually executed (0).
The Court then moved beyond the objective indicators to a subjective analysis. The Court looks at analogies to other death penalty crimes which don't involve murder. This is one of the key points in determining the scope of today's opinion. Here the court distinguishes child rape from other death-eligible crimes because rape is a crime against an individual person:
Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.
The Court was also quite concerned at the number of potential defendants who would be eligible for the death penalty under statutes like the Louisiana one.
The opinion then turns to a discussing of whether the death penalty in this case supports the goals of punishment. The Court found that the punishment was excessive to achieve the goals of retribution. Then, like me, the Court found that the statute might serve counter-productive deterrence functions. In fact, on this point, I was quite humbled to see that the Court cited a law review article of mine in its discussion:
In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. See Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119, 1159–1160 (2004).
After all of this analysis, the Court concluded:
Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim. The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed.