Even if a genuine nationwide agreement existed in 2008 opposing the death penalty for child rape, the current landscape has shifted.
I frequently reference June 26, 2008, the date on which District of Columbia v. Heller was resolved. I also vividly recall the day before, when the Court issued its ruling in Kennedy v. Louisiana. Justice Kennedy proclaimed a “national consensus” against executing individuals who rape children, and therefore, he held that the Eighth Amendment bars such punishment. Now, two decades later, I remain startled by that ruling. It seems flawed from an originalist standpoint because the constitutional meaning of the Eighth Amendment should not pivot on what states do. Moreover, Kennedy furnished no objective method for determining what that so‑called “national consensus” actually consisted of.
Perhaps this is an occasion to reexamine the precedent. Judge Josh Devine (EDMO) treats Kennedy as a starting point and contends that the on-the-ground circumstances have evolved.
Kennedy itself asserted that the question of constitutionality shifts over time and rests on the social “norms that ‘currently prevail.'” 554 U.S. at 419 (emphasis added; citation omitted). And Kennedy also indicated that those standards can change in as little as 15 years, producing different outcomes. Id. at 432.
Today’s standards bear little resemblance to those of 2008. In the past three years, at least six states have enacted laws reinstating capital punishment for the offense of child rape. Moreover, technological advancements have driven a sharp uptick in sexual offenses against children. These crimes cannot be fairly described as mere offenses against individual victims. The images and videos tied to these crimes often persist on the internet for decades—if not forever—causing harm not only to the victims but to society as a whole. The Supreme Court in 2008 identified a national consensus against capital punishment for child rape and concluded that the most appropriate course was to remove it from consideration. Yet in light of significant increases in such crimes and substantial shifts in the legal and technological environment, policymakers and prosecutors may decide that the harshest penalty is warranted for those who harm the most vulnerable. Kennedy does not preclude that evolution. Unless a defendant can meet an exceptionally demanding evidentiary standard, existing Supreme Court precedent permits imposing capital punishment on individuals who commit nonlethal sexual offenses against children.
I appreciate this perspective. Justice Kennedy constructed a questionable standard, and lower courts are within their rights to apply it. The Supreme Court may ultimately need to resolve the resulting confusion.
There is some concern that Devine’s remarks constitute an advisory opinion. I do not share that view. A live case or controversy exists: what sentence should accompany this offense? The judge is outlining his expectations for how the sentencing process will unfold. It is not unusual for judges to confer with attorneys before a sentencing or any other proceeding. In fact, at presentencing conferences, judges routinely convey their understanding of the applicable sentencing guidelines and invite responses from the parties. Lawyers who spend much of their careers on appellate work may be unfamiliar with these routine, everyday procedures at the trial level.
