In “Kennedy v. Louisiana and the Future of the Eighth Amendment” in the Pepperdine Law Review, Washington and Lee University assistant law Professor Alexandra L. Klein notes that the U.S. Supreme Court’s decision in Kennedy v. Louisiana (2008), which held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s prohibition on cruel and unusual punishment, is being challenged on several fronts. As a result, “While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy.” Klein points to a law passed in Florida in 2023 that allows the death penalty for the rape of a child under 12 and a similar law passed in Tennessee one year later. Governors of both states are clearly betting on the makeup of the Supreme Court now. Three of the four dissenters in Kennedy, Samuel Alito, John Roberts, and Clarence Thomas, are still on the Court and have been joined by conservative justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch. “It may be tempting to dismiss the consequences of overruling Kennedy—people convicted of sexually assaulting children are targets of universal revulsion. But changing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment,” Klein writes.
In her piece “This Trump Judge Sure Sounds Like He Wants to Help the White House Start Executing People Again,” in Balls & Strikes, Madiba K. Dennie notes that in December, shortly before he left office, President Biden, commuted the sentences of 37 of the 40 people on federal death to life without the possibility of parole. Not surprisingly, the commutations enraged Donald Trump, whose interim U.S. attorney in Washington, D.C., has been writing to former Biden aides, demanding information about Biden’s competency to issue “so many pardons across so many fields.” She reports that he’s getting support from Fifth Circuit Court of Appeals Judge Andrew Oldham (appointed by Trump), who “authored a concurring opinion in United States v. Sanders that both treated Trump’s dubious claims as credible and also provided Trump with new specious legal arguments to deploy in defense of his killing campaign.” Sanders is one of the 37 on federal death row whose sentence was commuted. Oldham maintains, “It is hard to see how the Biden Administration’s midnight pardon of Sanders—or any of the other 36 pardoned murderers—fits with the history and tradition of the pardon power.” Dennie argues, “Oldham is signaling to the Trump administration exactly what they should put in their briefs when they come before him, so that it can get back to the business of killing.”
