Judge Joshua Divine of the U.S. District Court for the Eastern District of Missouri recently issued a sentencing opinion arguing that Supreme Court precedent does not prohibit the death penalty for nonhomicide sexual offenses against children. The opinion accompanied a 20-year prison sentence for a defendant who pleaded guilty to receiving child sexual abuse material involving a 13-year-old victim.
The legal argument centers on the Eighth Amendment, which prohibits "cruel and unusual punishments." Under the 1958 case Trop v. Dulles, the Supreme Court held that this protection is defined by "evolving standards of decency that mark the progress of a maturing society." In the 2008 case Kennedy v. Louisiana, the court applied this standard to rule that the Eighth Amendment forbids the death penalty for child rape when the crime does not result in death, citing a "national consensus" against the practice at that time.
Judge Divine argued that societal standards have changed since the 2008 ruling. He noted that in the past three years, at least six states—representing nearly a quarter of states that allow capital punishment—have passed legislation permitting the death penalty for child rape. Divine cited "extraordinary increases in crimes against children" and technological changes as evidence that policymakers may now view the most serious penalties as consistent with contemporary decency.
For the public, this signals a potential change in the application of constitutional rights. According to the sources, 2025 saw more executions in the U.S. than any year in close to two decades, and various jurisdictions are considering methods like firing squads and nitrogen gas. A person currently serving a statutory maximum, like the 20-year sentence in this case, would not be retroactively affected, but future defendants in participating states could face capital charges for non-fatal crimes.
The knock-on effects extend to broader Eighth Amendment jurisprudence, including debates over chemical castration for sex offenders and medical care standards for incarcerated transgender individuals. Professor Meghan J. Ryan suggests that if the Supreme Court shifts toward originalism it could end current bans on executing juveniles or people with intellectual disabilities. The next steps depend on whether a state attempts to carry out a death sentence for child rape, which would likely trigger a direct challenge to the Kennedy v. Louisiana precedent in the Supreme Court.