I often speak of June 26, 2008, the day that District of Columbia v. Heller was decided. Yet, I still clearly remember the day before when the Court decided Kennedy v. Louisiana. Justice Kennedy declared that there was a “national consensus” against executing child rapists, and accordingly, the Eighth Amendment prohibits such punishment. Two decades later, I am still appalled by that decision. It has to be wrong as an originalist matter, as the meaning of the Eighth Amendment cannot change based on what states do. And Kennedy offered no objective basis to determine what the “national consensus” even was.
Maybe now is the time to reconsider this precedent. Judge Josh Devine (EDMO) takes Kennedy as a starting point, and suggests that the facts on the ground have changed.
Kennedy itself said that the question of constitutionality changes over time and is based on the social “norms that ‘currently prevail.'” 554 U.S. at 419 (emphasis added; citation omitted). And Kennedy made clear that those standards can change in as few as 15 years, leading to different bottom-line outcomes. Id. at 432.
Today’s standards look quite different from those in 2008. In the last three years, at least six States enacted new legislation permitting capital punishment for the crime of child rape. And following recent changes in technology, the rate of sexual offenses against children has skyrocketed. These crimes cannot accurately be described solely as crimes against individual victims. The images and videos too often produced from these crimes persist on the internet for decades—if not forever—so they harm not just the individual victims, but society as a whole. The Supreme Court in 2008 found a national consensus against capital punishment for child rape and concluded that the most decent thing was to take capital punishment off the table. But in the face of extraordinary increases in crimes against children, plus paradigm changes in the legal and technological landscape, policymakers and prosecutors may determine that the most decent thing is to impose the most serious penalty on those who harm the most innocent. Kennedy does not prohibit that development. Unless a criminal offender satisfies an extraordinarily demanding evidentiary burden, Supreme Court precedent permits imposing capital punishment on those who commit nonhomicide sexual offenses against children.
I appreciate this approach. Justice Kennedy made up a nonsense standard, and lower courts are well within their right to follow it. Let the Supreme Court clean up this mess.
There is some angst that Devine offered an advisory opinion. I don’t see it. There is a live case-or-controversy: what is the punishment for this offense. The judge is offering his view of how the sentencing process will proceed. It is not uncommon for judges to talk to attorneys in advance of a sentencing, or any other proceeding. Indeed, at presentencing conferences, Judges routinely articulate their understanding of the relevant sentencing guidelines, and offer the parties a chance to respond. Lawyers steeped in appellate practice may be unfamiliar with such mundane processes at the trial court.
