In some states, it is.
Five states: Florida, Louisiana, Montana, Oklahoma and South Carolina as of 2006-JUN. Source
I thought Texas would be on that list, but I suppose Texans are satisfied with giving out those comically long sentences for such a crime: 742 3/4 years in prison at hard labor, less 15 months served.
By the late 1970s, three states -- Florida, Mississippi, and Tennessee -- had laws on the books permitting the death penalty for the crime of child rape. All three laws were later declared unconstitutional by their state courts.
A growing number of states have recently created laws allowing the execution of convicted child molesters. Louisiana was the first in 1995-JUN-17. 1 It allowed the death penalty for aggravated rape of a victim under the age of twelve years. This triggered debates in other state legislatures.
On 2006-JUN-08, Gov. Mark Sanford of South Carolina signed a bill to allow the death penalty for repeat sexual offenders who are convicted of raping children under the age of 11. The new law is named for 9-year-old Jessica Lunsford. During 2005, she was kidnapped, raped and suffocated by a registered sex offender. Sanford said:
"Jessie's Law is about sending a very clear message that there are some lines you do not cross, and that if those lines are crossed the penalties will be severe." 5
Jay Paul Gumm (D-Durant) wrote bill SB 1747 early in 2006 to stiffen penalties for repeat child molesters. He introduced it to the Oklahoma Senate. It passed without difficulty. But a House committee chairperson refused to hear the bill. It died in the House of Representatives. 3 Senator Jonathan Nichols (R-Norman) and Senator Gumm then introduced a different bill, SB 1800. It creates a state Child Abuse Response Team (CART). Additional text was appended to the original bill to stiffen penalties for perpetrators of child abuse. The Oklahoma Senate passed the bill by a vote of 40 to 7. The house passed it 88 to 8.
On 2006-JUN-09, one day after the South Carolina bill became law, Governor Brad Henry of Oklahoma signed SB 1800. 8 It permits a sentence of life in prison without the opportunity of parole or the death penalty for a repeat child molester convicted of harming a child under the age of 14: 4,5 The text reads:
"Section 7115 I: Notwithstanding any other provision of law, any parent or other person convicted of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age subsequent to a previous conviction for any offense of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age shall be punished by death or by imprisonment for life without parole." 9
Some observers have suggested that these laws are a response to belief by the public that child molesters cannot be cured, and that legislators and courts should get tougher on crime.
No person convicted of child molestation has been executed since the U.S. Supreme Court reinstated capital punishment in 1976. However one inmate was convicted in 2003 of raping an 8-year-old girl in Louisiana. He is currently on death row.
Reactions to the Oklahoma law were mixed:
"I'm not saying that raping a child is not a horrible crime, but no one has died."
Her comment echoes the Coker v. Georgia decision by the U.S. Supreme Court in 1977 which overturned the death penalty of a man convicted of raping an adult woman in Georgia. Their ruling said that execution was:
"...an excessive penalty for the rapist who, as such, does not take human life."
However, they were referring to an adult victim. With the recent shift to the right of the Court, they may well render the opposite view for child victims.
"I feel like this is the message we need to send to anyone who is considering harming a child. These are the people who are going to continue to prey upon children until they are stopped. They're in the same ball park with murderers as far as I'm concerned."
Earlier, during debate on the bill, he said:
"Those who repeatedly prey on our children in this unspeakable manner should face the most severe penalties allowed under our justice system....There are too many stories of child molesters who are set free only to shatter the life of another innocent child. I want to make certain that in Oklahoma we are doing everything we can to ensure that never happens here in our state....We allow the death penalty for those who kill the body. Why wouldn’t we have the same penalty for someone who kills a soul?...By sending a message to those who repeatedly prey on our children that Oklahoma will not tolerate this sort of horrible crime, we are doing our part to create a safer Oklahoma for all our citizens." 6
"The last message you want to give an offender who has the life of a child in his hands is you might as well kill the child because he's already got the death penalty. This is a very stupid message."
"There is a political push to appear tough and on the victim's side. It's hard to say no."
"The public, the voters, everybody's fed up with child predators." During debate in the legislature, he referred to child molesters as "monsters" and "less than human."
"I would be a little bit surprised if the Supreme Court approves of that [law], but I have been wrong before. Nobody around here has any sympathy for child molesters."
He said that would gladly enforce such a law if it were declared constitutional by the U.S. Supreme Court.
"In some states, it is"
That list of states needs to expand