Source: sentencing.substack.com 6/9/25
With states enacting new capital child rape laws, whither the Supreme Court’s 2008 ruling Kennedy v. Louisiana?
The U.S. Supreme Court in 2008, by a 5-4 vote in Kennedy v. Louisiana, overturned a state death sentence for a man convicted of child rape. Though rape was commonly a capital offense in the Founding era and for centuries thereafter, the Kennedy opinion said the Eighth Amendment was dynamic: the “Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society, … because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” So, according to the Court’s majority, “a death sentence for one who raped but did not kill a child … is unconstitutional under the Eighth and Fourteenth Amendments.” The Kennedy opinion stated its holding this way: “We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconstitutional.”
Though the Kennedy ruling seemingly declared all then-existing state capital child rape statutes unconstitutional, over the last two years, five states — Florida (2023), Tennessee (2024), Arkansas (2025), Idaho (2025) and Oklahoma (2025) — have enacted new statutes making the crime of rape of a child below a certain age eligible for the death penalty. With at least a half dozen additional states considering similar new capital child rape laws, and with numerous lawmakers and advocates calling for the Supreme Court to reconsider the Kennedy ruling, I have started pondering just how the Eighth Amendment functions as well as to just how a new capital child rape case might possibly come before the Supreme Court. (My initial reflections on these issues may be more academic than practical, and I welcome insights and reactions that can help advance my thinking on these matters.)
Just how does the Eighth Amendment legally function?
The text of the Eighth Amendment provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Arguably this provision does not limit the …
Interesting read overall…with that being said…
…”the Kennedy opinion said the Eighth Amendment was dynamic: the “Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society, … because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.”
Uh huh
With that above being the basis…what about a degenerating society and their decency standards through lack of maturation but more of evolving immaturity (regression) when it comes to punishment and the needs thereof? The opinion above implies society gets better and smarter as time goes on with maturation in decency. But, as we all could agree, it has not and actually appears to be reversing course by devolving its thinking…the registry and its applicability by whatever means elected officials believe society wants (or has suggested). Based upon what was opined in the case noted above, is this country really moving forward in this realm? I think not and believe it is actually becoming more immature in its thinking in ways exhibited by elected officials towards the populace and the punishment towards them at their hands (suggested by the population). The addiction to address punishment only and not preventative measures which could stem the need for punishment prior to actions being taken is huge given it is used in campaigns and vitriol by those in power and who want to be in power. Fear mongering at its best to stir the population into a fervor for votes.
I’d say in the case above, the idyllic espoused was once a nice dream by the founders of this country and those subsequent to them, but it has since then deviated so far that it would take a lot more than one case to get back to what was once thought of. As we’ve said, it will take an elected official to be personally hit in the face with the facts they brought about to understand the damage they’ve done and inflict daily with their votes as well as society being hit more than they are to know the same with their wants.
Years ago I had the opportunity to read an opinion from my states AG to the state legislature regarding a change to sexual battery laws. The legislature had questions on how the changes to the law conflicted with the state constitution establishing an age of consent that ran counter to the statute in question. The AG specifically stated that any law is presumed to be constitutional until a court says otherwise as part of his response to the legislature.
There in lies the problem across this country. Legislators, either state or federal, feel compelled to write laws for their own moral enrichment. These same legislators do not have to pay the legal costs to defend their legislation so they do not care if the law(s) run counter to rulings already made by the courts or the constitution(s) themselves.
I don’t see how this is different than any other law. State laws are presumed to be constitutional. When contested, how could a judge ignore the SCOTUS ruling on the matter? It is quite common for states to create unconstitutional sex offense laws (across multiple states). It doesn’t make them more constitutional because other states are doing it. It’s more like bandwagon legislation which we see prevalent in red states.