Specifically with respect to rape, in Coker v. Georgia, the US Supreme Court ruled in essence:
We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.
Coker was an amazing case: Coker had "raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead." Then, after breaking out of prison for those crimes, "[h]e promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm." For this last crime, a Georgia jury sentenced Coker to death.
Justice Powell, usually portrayed as an enlightened old Virginia gentleman, breathtakingly stated of Coker's crime:
there is no indication that petitioner's offense was committed with excessive brutality or that the victim sustained serious or lasting injury.Seriously. As if rape by definition were not a crime involving brutality and lasting injury. And therefore, Powell concluded, death was a disproportionate sentence and therefore violative of the Eighth Amendment's prohibition against cruel and unusual punishment. Et viola, the belief of the citizens of a third of the states which authorized death for the crime of rape (before Furman v. Georgia effectively negated all existing capital statutes: Georgia, North Carolina, and Louisiana had re-enacted death for rape statutes in the post-Furman era), and who disagreed with Powell that rape wasn't really that serious, were suddenly declared unconstitutional because Justice Powell could not imagine how rape could be considered so brutal and serious a crime as to justify death!
Turn the page now to Louisiana, which in 1995 enacted a statute authorizing death for the crime of aggravated rape, a narrow species of rape with specific elements of aggravation, among which are a rape in which the victim is under the age of thirteen.
According the Louisiana Supreme Court's summary in Louisiana v. Kennedy, the victim, an eight year old girl, was brutally raped by her stepfather while preparing to sell girl scout cookies in the family garage; "the victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina."
The issue in the case was the identity of the peretrator. The jury concluded that the defendant had coached his stepdaughter to claim that two black males had dragged her from her garage to the yard, where they raped her. At trial, the victim testified that the defendant raped her in her room, which was consistent with the physical evidence, and that he told her to make up the story about the black men raping her.
The usual suspects in the sex offender's cheering section predict that the SCOTUS will grant cert. I agree, and, given the mushy and sorry state of Eighth Amendment jurisprudence, the robed wonders might well issue an opinion along the line of this comment on Berman's blog:
No more than seven states have the death penalty for child rape, or put another way, well over 40 jurisdictions do not. No one has been executed for child rape in at least 40 years. International consensus -- save for those countries where radical fundamentalism the rage -- is strongly opposed to the death penalty.Amazingly, this type of drivel is what now passes for "jurisprudence" in the context of the Eighth Amendment: to be constitutional, a statute must enjoy widespread state legislative agreement, and, of course, we now look to even what the "international community" thinks is just punishment.
The good news is, on the narrow issue of compliance with Coker, Georgia's statute, dealing with rape of a very discrete and vulnerable class of victims, is clearly distinguishable from the statute nullified in Coker, which "only" protected adult females.