Doug Berman raises the interesting question after the decision in Kennedy v. Louisiana:
Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state to seek to execute a defendant for the crime of child rape. But here is a (silly?) technical question in the wake of Kennedy: is it clearly unconstitutional and/or unjust for a state prosecutor to pursue a capital charge against a terrible child rapist?
Of course, this question only arises in the handful of states that statutorily authorize capital child rape. But the question may not be merely an academic's fanciful concern for a few reasons:
1. As the Kennedy opinion indicates, there may be 100 pending capital rape cases in Louisiana (and perhaps a few in some other states). Does the Kennedy opinion require re-indictments in all these cases, or might a prosecutor opt to continue with these cases under existing state capital law? One justification for continuing with capital prosecutions could be a genuine hope that an evolving national consensus (or a constitutional amendment) might eventually make execution of terrible child rapists permissible.
2. Even if a state prosecutor believes a rapist can and never will be executed for a terrible child rape, he or she might still want to seek a death sentence for symbolic or emotional reasons. Perhaps the victim is eager for the rapist to be condemned to death even if everyone knows the sentence will never be carried out. Or perhaps a prosecutor believes that securing a death sentence for child rape might facilitate later securing a death sentence against the same defendant for some other capital crime scheduled to be prosecuted at a later time or in another jurisdiction.
3. And what is a prosecutor concludes that still pursuing capital charges for a terrible child rape makes it easier under state law to secure an life sentence (or to secure a plea agreement to avoid the costs and harms of a trial)? Indeed, one could even imagine a defense-oriented spin to these issues: perhaps a capital indictment enables a child rape defendant to get extra resources for his defense and/or a death sentence might enable a child rape defendant to be housed under special prison conditions that are preferable to being in the general prison population.
I think Berman makes clear that this is entirely a hypothetical and unlikely scenario. However, I think it attests to how the USSC often disposes of a singular case and leaves it to lower courts to figure out the implications. There is no clear instruction in the Kennedy opinion concerning the disposition of those capital cases which are currently pending. To me, Berman's point illustrates that the USSC could clean up its messes a little better (and here, thankfully, there probably won't be much of a mess).