NASHVILLE, Tenn. — Tennessee’s GOP-controlled Senate advanced legislation on Tuesday allowing the death penalty in child rape convictions as critics raised concerns that the U.S. Supreme Court has banned capital punishment in such cases.
Republicans approved the bill on a 24-5 vote. It must still clear the similarly conservatively dominant House chamber before it can go to Gov. Bill Lee’s desk for his signature.
If enacted, the Tennessee bill would authorize the state to pursue capital punishment when an adult is convicted of aggravated rape of a child. Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.
Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago. Supporters in both states argue that the goal is to get the currently conservative-controlled U.S. Supreme Court to reconsider a 2008 ruling that found it unconstitutional to use capital punishment in child sexual battery cases.
Republican Sen. Ken Yager argued during Tuesday’s debate that his bill was not unconstitutional because it only gave district attorneys the option of pursuing the death penalty for those convicted of child rape.
“We are protecting the children using a constitutional approach,” Yager said. “I would not stand here and argue for this bill if I didn’t believe that with my whole heart.”
Yager’s argument differs from the supporters inside the Tennessee Legislature, where Republican House Majority Leader William Lamberth has conceded that even though Tennessee previously allowed convicted child rapists to face the death penalty, the Supreme Court ultimately nullified that law with its 2008 decision.
Other lawmakers compared their goal to the decades long effort that it took overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.
“Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling. “We’re simply challenging a ruling.”
Democrats countered that the bill would instill more fear into child rape victims about whether to speak out knowing that doing so could potentially result in an execution. Others warned that predators could be incentivized to kill their victims in order to avoid a harsher punishment.
Execution law in the U.S. dictates that crimes must involve a victim’s death or treason against the government to be eligible for the death penalty. The Supreme Court ruled nearly 40 years ago that execution is too harsh a punishment for sexual assault, and justices made a similar decision in 2008 in a case involving the rape of a child.
Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process. Gov. Lee issued the pause after a blistering 2022 report detailed multiple flaws in how Tennessee inmates were put to death.
No timeline has been provided on when those changes will be completed. And while the state Supreme Court is free to issue death warrants for death row inmates, it has so far not done so.