Harvard Law Review's latest issue is now available online. The issue includes a nice case note on Kennedy v. Louisiana. From the summary:
... Writing for the Court, Justice Kennedy held "that a death sentence
for one who raped but did not kill a child, and who did not intend to
assist another in killing the child, is unconstitutional under the
Eighth" Amendment's proscription of cruel and unusual punishment,
basing the ruling "both on consensus and the Court's own independent
judgment." ... The Court also rejected Louisiana's broader argument
that the few states that had capital rape statutes better represented
the current standards of society because they represented "a consistent
direction of change in support of the death penalty for child rape,"
saying that consistent change had not been proven and might not make a
difference anyway. ... The Kennedy Court held that capital punishment
is disproportionate for the crime of child rape, even though the victim
" must endure years of long anguish" - no matter how terrible a rape,
it is not murder. ... "These interpretations," said Justice Alito,
"have posed a very high hurdle for state legislatures considering the
passage of new laws permitting the death penalty for the rape of a
child." ... It is troubling that this second part of the Court's Eighth
Amendment test rests on even less rigorous methods to define evolving
standards of decency than the statute-counting rubric used to determine
the national consensus. ... A presumption of constitutionality would
allow states to continue to change their statutes during periods of
apparent disagreement as to a national consensus, and require the Court
to wait to see if a consensus truly emerges before declaring a standard
of decency to exist by forcing it into existence.
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