Supreme Court, in 5-4 decision, strikes down law imposing death for child rape.

Notice only a national consensus test was used by the majority. No mention of international standards (which Kennedy has been known to use in decisions outside the eight amendment – i.e. Lawrence v. Texas).

Other than believing that the death penalty in general is cruel and unusual punishment (think Justices Brennan, Souter, Breyer, and Marshall’s previous decisions), I have to agree that under established Eighth Amendment jurisprudence the majority’s opinion is not well-reasoned and extremely broad.

Though when it comes to Cruel and Unusual punishment–more than any legal test regarding national consensus or trends — I really believe that most Justices are inclined to apply the “gut test.” For a deeply Catholic man like Justice Kennedy, I think he has reservations of permitting executions period. In this case, I think he is stretching the facts concerning the national consensus to reach an outcome where he is not sanctioning an expansion of death. Legally, he probably knows he is wrong. Morally, he probably feels he is right. I know I would feel quite torn if I had to make this decision.


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