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A (silly?) Kennedy technicality: can prosecutors still pursue capital child rape charges?

By Douglas A. Berman

Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state to seek to execute a defendant for the crime of child rape.  But here is a (silly?) technical question in the wake of Kennedy: is it clearly unconstitutional and/or unjust for a state prosecutor to pursue a capital charge against a terrible child rapist?  Of course, this question only arises in the handful of states that statutorily authorize capital child rape.  But the question may not be merely an academic's fanciful concern for a few reasons: 1.  As the Kennedy opinion indicates, there may be 100 pending capital rape cases in Louisiana (and perhaps a few in some other states)...continue to full post

Full post as published by Sentencing Law and Policy on July 06, 2008 (boomark / email).