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USA - Mississippi. Death penalty approved for the rape of a child under 12

May 11, 2026:

May 11, 2026 - Mississippi. Death penalty approved for the rape of a child under 12

SB 2821 directly conflicts with the case law of the U.S. Supreme Court

On April 8, 2026, the Mississippi Legislature enacted Senate Bill 2821, creating the new offense of “capital sexual battery” and authorizing the death penalty for the sexual abuse, or attempted sexual abuse of a child under 12 years of age that results in “injury to the child’s sexual organs.” The governor of Mississippi, Tate Reaves, has ratified the law, which will come into force on July 1, 2026, acknowledging that the new law was "inspired" by President Trump, who is convinced that today the Supreme Court would vote differently than it did in 2008. With its passage, Mississippi joins Florida (2023), Tennessee (2024), Idaho (2025), Oklahoma (2025), Arkansas (2025), and Alabama (2026) as the 7th state to authorize the death penalty for a non-homicide offense — evidence of an explicit effort to force reconsideration of the U.S. Supreme Court’s ruling in Kennedy v. Louisiana (2008).

The new bill had passed the Senate on March 31 on a 33/14 vote, and the House on March 31 on a 104/1 vote.

The new law contains language which directs that a death sentence may be imposed “notwithstanding existing case law” holding such a sentence unconstitutional and expressly references Kennedy, instructing the court to apply the death penalty. The language adds that if the U.S. Supreme Court does not overturn its precedent, a prisoner sentenced to death would be automatically resentenced to life without parole. State Representative Jansen Owen (R – Lamar, Pearl River) told WDAM that this legislation was introduced at the suggestion of the White House as part of a coordinated national effort to create circumstances for the Supreme Court to revisit Kennedy.

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Justice Anthony Kennedy writing for the majority in Kennedy v. Louisiana (2008)

The Court in Kennedy held by a 5 – 4 vote that the Eighth Amendment’s prohibition on cruel and unusual punishment bars the imposition of the death penalty for the rape of a child where the crime did not result, and did not intend to result, in the victim’s death. Writing for the majority, Justice Anthony Kennedy concluded that “a death sentence for one who raped but did not kill a child and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.” Mississippi’s law is a direct challenge to that decision.

Senate Bill 2821 amends Mississippi Code Section 97 – 3-101 to create the crime of “capital sexual battery.” The legislation states that a person who commits sexual battery upon a child under twelve, or who injures the sexual organs of a child in the attempt to do so, “carries a great risk of death and danger to vulnerable members of this state” and that “such crimes destroy the innocence of young child and violate all standards of decency held by civilized society.” The House modified the Senate’s original bill, rewriting the legislation to apply the death penalty only when a child sustains an injury to their sexual organs, not for all instances of child sexual battery. Just eight jurors must agree to impose the death sentence. If the death penalty is not imposed, the statute mandates life imprisonment without the possibility of parole. The non-unanimity sentencing element of the bill is unique in Mississippi’s death penalty laws; every other capital crime in Mississippi requires a unanimous jury recommendation for death.

What is often lost from the political framing of these laws is that the Supreme Court’s carefully considered decision in Kennedy was informed by the testimony and experience of child welfare advocates, social workers, anti-sexual assault organizations, and clinical researchers — all of whom agreed that imposition of a death sentence for child rape would increase the dangers for the child victims the legislation purported to protect.

The Kennedy majority relied in part on an amicus brief filed by the National Association of Social Workers, the Louisiana Foundation Against Sexual Assault, the Texas Association Against Sexual Assault, the National Alliance to End Sexual Violence, and allied organizations. The amici identified 3 primary dangers: capital punishment worsens underreporting; equating child rape with murder gives perpetrators a lethal incentive to kill their victims and eliminate the only witness to their crime; and capital proceedings retraumatize child victims over years and decades. The Court’s decision acknowledged each of these concerns.

Child sexual abuse is already deeply underreported — research cited both by the Court and the amici found that approximately 88% of female rape victims under the age of 18 did not disclose their abuse to authorities. One of the most commonly documented reasons for nondisclosure is fear of negative consequences for the perpetrator, an especially acute fear when the abuser is a family member or close family friend, as many abusers are. The social worker organizations told the Court that when the potential consequence is a death sentence, both the child and the family are more likely to shield the perpetrator from discovery and prosecution. The Kennedy majority accepted this analysis, finding the death penalty “may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member.” Experts and advocates confirm that child sexual abuse is often at the hands of someone known to the child — parents, stepparents, or other family members and close friends.

The Court also recognized, drawing again from the experiences of the amici, that making child rape a capital offense effectively equates its punishment with 1st-degree murder. The Kennedy majority stated that by doing so, “a State may remove a strong incentive for the rapist not to kill his victim.”

The Court also addressed at length what it described as the moral and psychological burden that capital prosecution places on the child victim. A capital case requires the child to participate actively in prolonged legal proceedings that can stretch on for a decade or more. The Kennedy majority observed that pursuing the death penalty “forces a moral choice on a child, who is not of mature age to make that choice” and that it is “not at all evident that the child rape victim’s hurt is lessened when the law permits the perpetrator’s death, given that capital cases require a long-term commitment by those testifying for the prosecution.” The very process of seeking the death penalty on behalf of a child may compound the original harm: requiring the survivor to relive the assault repeatedly in public, legal, and adversarial settings, knowing that their testimony may determine whether another human being lives or dies. Victims’ groups filing amici in Kennedy specifically cited “the extended appeals process that inevitably follows a death sentence” as a concrete harm the law would impose.

The serious concerns addressed by the Kennedy Court equally apply to Mississippi’s new legislation. While the state law specifically states if someone is sentenced to death under this statute, the conviction and death sentence shall be subject to automatic review by the state Supreme Court within 2 years of filing a notice of appeal, the entire constitutionally afforded appellate process may take decades.

https://deathpenaltyinfo.org/at-suggestion-of-the-trump-administration-mississippi-enacts-new-capital-sexual-battery-law-openly-defying-u-s-supreme-court-precedent