In Kennedy v Louisiana, SCOTUS makes this blunder: “the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.”
The state laws imposing the death penalty option on child rape cases were relatively new and a number of states were actively considering passing such laws in their states, as well.
In other words, we were seeing a new trend to pass such laws, instead of a trend away from them.
By outlawing such new laws, it was SCOTUS that was, wrongly and intentionally, stopping a new trend. This is a horrible precedent – SCOTUS was, knowingly, stopping new laws which may become the evolving standard and, quite possibly, preventing a national consensus towards having the death penalty for child rapists.
Is the newest “constitutional” guide for SCOTUS preemptive trend stopping? Maybe.
SCOTUS’ evolving standards doctrine and the national consensus “standards” are both prone to this type of constitutional perversion – the alchemy of highly strained legal arguments derived from personal opinion.
In fact, the national consensus was for the death penalty for child rape cases.
See Jim Lindgren’s, A National Consensus in Favor of the Death Penalty for Child Rapists”
And a July, 2008 National Poll
By a 55 – 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support. http://www.quinnipiac.edu/x1295.xml?ReleaseID=1194
A phony ‘consensus’ on youthful killers
by Jeff Jacoby in a Boston Globe op/ed
As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims. Therefore, I was not a proponent of the death penalty for child rape.