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?

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 imposition of any sentences other than fines given that the text asserts that excessive fines shall not be “imposed,” while stating only that cruel and unusual punishments shall not be “inflicted.” In the context of capital punishment, perhaps this connotes that the Eighth Amendment only prohibits the infliction of certain death sentences – that is, prohibits the state from executing certain persons for certain crimes – but does not actually prohibit the formal imposition of any death sentence.

But to assert that the Eighth Amendment only prohibits certain executions and not any death sentences seems pedantic to a fault. Indeed, as noted above, the Court’s statement of its holding in Kennedy speaks in terms of “a death sentence” being “unconstitutional under the Eighth and Fourteenth Amendments.” Indeed, the Kennedy ruling, like many other Supreme Court rulings restricting the application of the death penalty, speaks of the Eighth Amendment limiting when “capital punishment may be imposed.” (In Roper v. Simmons, for example, the Supreme Court’s holding was that “the death penalty cannot be imposed upon juvenile offenders.”) Even more broadly, the Kennedy opinion stated that the Louisiana statute authorizing imposition of a death sentence for child rape “is unconstitutional.”

But if not only the death sentence imposed in Kennedy was unconstitutional but also the statute that authorized it, does that entail that the new capital rape statutes enacted in five states are, legally speaking, unconstitutional? Raising the stakes, might someone complain that the state legislators and Governors who enacted and signed these statutes into law have violated their oath to support the U.S. Constitution? (Readers surely recall that Article VI of the Constitution provides that “the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”)

Despite expansive language in Kennedy, state legislators and Governors might defend their capital child rape activity by noting that they have not actually “inflicted” punishment on anyone. Or, embracing doctrinal themes in Kennedy, they might assert that they believe “the basic mores of society” have changed so that the “evolving standards of decency that mark” the boundaries of the Eighth Amendment have changed. A jurisprudence that emphasizes “evolving standards,” and that provides that the Eighth Amendment’s “applicability must change as the basic mores of society change,” arguably entails that older decisions must have little or no precedential significance given how rapidly our society’s moral views change. (In a recent law review article, William Berry makes an extended argument that “the Eighth Amendment has its own unique stare decisis doctrine.)

Of course, what has significantly changed since the 2008 Kennedy ruling is the composition of the U.S. Supreme Court. Only three Justices who were involved that decision are still on the Court: Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Justice Alito authored a lengthy dissent in Kennedy, which both the Chief Justice and Justice Thomas joined. Among the six new members of the Court, at least three, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, embrace originalist methodologies for constitutional interpretation. Originalism seems unlikely to support the Kennedy ruling, and the Court has hardly shied away from overturning significant prior precedents that a majority considers jurisprudentially misguided.

In short, it is reasonable to expect that the current Supreme Court, if presented with the opportunity, would overturn Kennedy ruling and declare that capital rape statutes are generally consistent with the U.S. Constitution. But that jurisprudential possibility raises the question of just how might the Justices be presented the opportunity to reconsider the constitutionality of making child rape a capital offense.

Just how might a capital rape prosecution get to the Supreme Court?

If, as the Kennedy opinion states, imposition of a death sentence for child rape is unconstitutional (as is any statute that authorizes this punishment), then it must be constitutionally questionable for any local prosecutor to pursue a capital charge against any child rapists. Likewise, if presented with a capital child rape indictment, a state judge would seemingly have a constitutional obligation to grant a motion to quash that indictment in order to faithfully comply with the Kennedy ruling. In other words, given that state prosecutors and judges also take oaths to support the U.S. Constitution, one has to wonder whether a capital child rape case can ever responsibly get started under the new state laws.

To my knowledge, in only two cases have prosecutors so far pursued capital charges for child rape, both in Florida. The first case was brought only a few months after Florida’s capital sexual battery statute became law in October 2023, though it was resolved through a plea and a sentence of life without parole a few months thereafter. The second case just emerged a few months ago, and I have not yet seen any reporting about any litigation over the pursuit of capital child rape charges. Obviously, at least a few Florida prosecutors do not believe their constitutional oath precludes starting a capital child rape case, and we still await an indication of how Florida judges may respond to constitutional arguments against new capital child rape charges in the face of Kennedy.

Intriguingly, Florida’s legislature somewhat anticipated possible constitutional conundrums created by its capital sexual battery statute. Specifically, the capital child rape legislation expressly provided that “a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the State Constitution and the United States Constitution.” But can state actors in Florida, consistent with their constitutional obligations, comply with a statutory command to ignore constitutional case law? Could a state by statute succeed in ordering local officials to establish a state church or racially segregate all public schools or deny all indigent defendants counsel “notwithstanding existing case law”?

That said, it is hard to know just how state actors who sincerely believe Kennedy was wrongly decided and should be reconsidered by the Supreme Court can soundly advance the effort. Perhaps a trial court’s decision to quash a capital child rape indictment based on Kennedy could be appealed through state courts to tee up the issue for U.S. Supreme Court review. But prior to the Kennedy case, the Supreme Court in Bethley v. Louisiana denied certiorari in a case involving a capital child rape indictment, and a statement from Justice Stevens suggested the Court might be jurisdictionally barred from reviewing a state court ruling absent a final judgment which, “in the context of a criminal prosecution, ... is normally defined by the imposition of the sentence." Serious jurisdiction questions aside, some Justices might have profound prudential concerns about granting review in a criminal case prior to any trial and sentencing proceedings (in part because many thousands of criminal defendants would surely be eager to seek appeal of indictments based on speculative claims regarding possible sentencing outcomes).

Further still, if a state court were to allow a state capital child rape case to move forward into capital guilt and punishment stages, many novel capital procedure questions would arise. For starters, in capital cases, jurors must be “death qualified” to ensure they are able to exercise their discretion to recommend a death sentence with an open mind. In a post-Kennedy capital child rape trial, would jurors need to be asked about whether they are prepared to vote to recommend a death sentence that current Eighth Amendment caselaw deems unconstitutional? Similarly, would defense attorneys be allowed during the guilt and punishment phases of a capital trial to emphasize constitutional questions about the proceedings in order to argue to jurors that everyone’s established constitutional rights were on trial?

Last but certainly not least, what role might the federal government play in any state court cases and possible Supreme Court litigation regarding the constitutionality of capital child rape? As highlighted by a recent Supreme Court ruling regarding statutes of limitation, the Uniform Code of Military Justice still formally provides for death as a possible punishment for rape. That provision alone creates a federal interest in many questions of capital constitutional jurisprudence and procedure. In addition, on this first day back in the Oval Office in January 2025, President Donald Trump issued a broad executive order asserting that “my Administration will not tolerate efforts to stymie and eviscerate the laws that authorize capital punishment against those who commit horrible acts of violence against American citizens.” More specifically, this order stated, inter alia, that the “Attorney General shall take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.” Representatives of the U.S. Department of Justice may now feel duty bound to help states get a case to the Supreme Court for the potential reconsideration of Kennedy.

Experienced litigators surely realize that I am just scratching the surface here when ruminating about the logistics and questions surrounding possible new state capital child rape prosecutions. And as interesting and hard legal questions mount --- eg, could lower federal courts intervene if a state capital child rape casewere proceeding; what Ex Post Facto and Due Process claims might be available when a state pursues a punishment already held to be unconstitutional --- so to would appellate issues and complications. Anyone eager to see Kennedy reconsidered should expect capital child rape defendants would seek to make litigation mountains out of every possible legal molehill. And, of course, the modern death penalty landscape has been largely defined by the constitutional mountains that the capital bar has been able to move over the last half century.