I have not highlighted posts from the Sentencing Matters Substack in a little while in part because I am waiting for my co-substacker to wrap up a five-part series(!) on the US Sentencing Commission’s latest guideline amendments (part four was posted here recently). I will blog about the full series in coming weeks. In the meantime, I have penned this new mini-essay about Eighth Amendment issues titled “After Kennedy: pondering Eighth Amendment functioning and litigating; With states enacting new capital child rape laws, whither the Supreme Court’s 2008 ruling Kennedy v. Louisiana?”. Here is how the piece gets started:
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.)