TN Senate OKs death penalty for child rapists despite constitutional questions

NASHVILLE, Tenn. (WKRN) — Tennessee is one step closer to allowing prosecutors to seek the death penalty for those convicted of rape of a child following a vote by the Senate.

Tuesday afternoon saw lawmakers advocate for and against the measure, brought in the Senate by Majority Leader Jack Johnson (R-Franklin). As originally filed, SB1834 would authorize the death penalty as a punishment for rape of a child, aggravated rape of a child, or especially aggravated rape of a child.

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The bill stipulates since the crimes are Class A felonies, they are eligible for the death penalty as a punishment as well as life imprisonment with or without parole. Additionally, if the perpetrator was a juvenile at the time of the offense, the bill states the sentencing must come from within Range III, per state law.

Range III sentences for Class A felonies carry a 40- to 60-year prison sentence, per the Tennessee Code Annotated.

During debate on the floor, the bill was amended to change the sentencing requirements for juvenile offenders to at least Range II, or 25 to 40 years in prison. The amendment stipulates “the sentence imposed may, if appropriate, be within Range III, but in no case shall it be lower than Range II.”

The measure faced resistance from both sides of the aisle, however, as lawmakers questioned the constitutionality of the bill as written and amended.

Some TN Republicans wary of bill allowing the death penalty for child rapists

According to the Coker v. Georgia ruling in 1977, the Supreme Court ruled death as punishment for rape was cruel and unusual punishment as defined in the Eighth Amendment. The ruling was cited in a 2008 case brought to the floor debate by Sen. Kerry Roberts (R-Springfield), Kennedy v. Louisiana.

That case saw a Louisiana man rape his 8-year-old stepdaughter and be sentenced to death for it, Roberts said, but he appealed the ruling and won, with the Supreme Court stating the death penalty would be cruel and unusual punishment in violation of the Eighth Amendment.

The complexities of the issue warranted his amendment, Roberts said.

“Here we are today contemplating a bill to give the death penalty to someone who rapes a child, and I want to be perfectly clear—I’m not against the death penalty, and I’m not against the death penalty for the rape of a child,” he said. “If we don’t get the words right, then a judge is going to interpret those words as they see fit.”

Roberts said he also offered his amendment in Judiciary, but he “did a very poor job” of explaining it. It failed in that committee by one vote, he said, but he wanted to explain what he was trying to accomplish.

“If we think for one minute that the bill before us can overturn Kennedy, the greater danger is that the bill in front of us will reaffirm Kennedy,” he said.

Read the latest from the TN State Capitol Newsroom

He added Tennessee has “an extremely broad” definition of rape and child rape, and his amendment sought to include both “biological evidence” from the defendant and “serious bodily injury” to the victim into the determining requirements for sentencing. Having those items would keep the bill in line with previous case law and the Supreme Court ruling.

“In order for this bill to accomplish its intended purpose, we need to contemplate the fact that the definition of rape in Tennessee is as broad as just about any state in the nation,” he said.

Sen. Ken Yager (R-Kingston), however, said Roberts’ amendment “would gut the bill” as intended and called for it to be tabled.

“What we have done here is we have sought, in addition to giving prosecutors an additional tool the death penalty, but we have also stipulated aggravating circumstances, one of which must be met before the death penalty could be used,” he said.

Those aggravating circumstances would put Tennessee in compliance with the Kennedy decision, Yager said on the Senate floor Tuesday.

“What we are doing here, is number one we are protecting the children using a constitutional approach that will meet constitutional judicial scrutiny,” he said. “I would not stand here and argue for this bill if I didn’t believe that with my whole heart.”

Yager also said Roberts’ amendment “ties the judge and the jury’s hands [and] ability to protect children.”

Roberts’ amendment was tabled in a 23-8 vote, with four Republicans joining Democrats in opposing the tabling motion.

Democrats also spoke out against the bill, saying the Kennedy ruling alone made the bill unconstitutional.

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Sen. Heidi Campbell (D-Nashville) asked if the goal of the legislation was to intentionally pass unconstitutional legislation to challenge that ruling in an effort to overturn the previous Supreme Court ruling, but Yager disputed that assertion.

“We think that this bill will meet constitutional muster,” he said.

Campbell said the bill could incentivize perpetrators to murder a child in an effort not to be caught, and the vast majority of children are abused by people they know, love and trust.

“We’re putting kids in a position where they could be told that they can’t say anything to somebody, because if they do they will be turning in someone they know, love, or trust to be put on death row. That’s an incredible burden to put on a child,” she said.

If the law were to actually result in perpetrators receiving larger sentences for a crime committed, she would be more favorable, but as the bill was written, it may achieve the opposite, Campbell added.

“Obviously, we don’t want to make things harder for children who have been raped,” she said. “I think, if we really think about it, it might not be achieving the intent that was stated.”

Sen. Jeff Yarbro (D-Nashville) also said the clear holding of Kennedy v. Louisiana determined the death penalty was not acceptable punishment for non-homicide offenses.

“This unquestionably flies in the face of that rule,” he said. “Most of the time that would just stop the debate. We have a bill that is unquestionably unconstitutional. We are bound here to uphold the Constitution, but this is not seeking to pass a law that is currently allowed by the Constitution. This is seeking to change the interpretation of the Constitution.”

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Yarbro also pointed out Tennessee has not executed someone for an offense other than murder since the Eisenhower administration, meaning the state stopped executing for non-homicide prior to the Kennedy and even the Coker rulings.

“We haven’t done this. We don’t do this. We don’t have laws that require or authorize it. The Supreme Court didn’t interfere with our rights. We made this decision before the Supreme Court acted,” he said.

None of the arguments ultimately swayed the Senate, however, and the bill passed 24-5, with Sen. Todd Gardenhire joining the Democrats in opposition. Roberts was not recorded as voting on the bill.

The House version of the bill has been placed behind the budget, meaning it won’t see further debate until all appropriations have been approved. But House Majority Leader William Lamberth (R-Portland) has publicly supported the bill, calling it “a good bill.”

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