The Continuing Unevolving Model of Decency, Kennedy v. Louisiana in Peril

Fourteen years after "Death and Texas," Metze returns to the one capital offense in his 2011 inventory that requires no death: section 12.42(c)(3) of the Texas Penal Code, added in 2007, which makes a repeat aggravated sexual assault of a child a capital felony, with sentencing under article 37.072 of the Code of Criminal Procedure. Kennedy v. Louisiana (2008) held, 5–4, that the Eighth Amendment bars death for child rape that neither caused nor was intended to cause death. Texas has nonetheless kept both provisions through every legislative session since, hedged only by article 44.251(d), which directs the Court of Criminal Appeals to reform such a sentence to life without parole if the Supreme Court strikes the statute down. The method is a citation census. Nine decisions have cited Kennedy—Graham, Comstock, Miller, Kebodeaux, Hall, Glossip, Arthur, Bucklew, and Briggs—and Metze reads each for what the Kennedy dissenters, now joined by Justices Gorsuch, Kavanaugh, and Barrett, say about Trop's "evolving standards of decency." The trajectory he finds runs from Thomas's originalist attack on proportionality in Graham, through Alito's complaint in Miller that Eighth Amendment law had become "entirely inward looking," to method-of-execution cases that never reach evolving standards at all, and Alito's gratuitous originalist aside in Briggs. Read against Dobbs and the new child-rape capital statutes in Florida and Tennessee, the census yields a prediction: the Court will not extend Kennedy to Texas and will likely declare it wrongly decided, adopting Alito's "new evolutionary line." Metze calls that an unevolving, a digression into persecution of "the other," and answers it structurally: Supreme Court reform.

Texas defenders, take note. Section 12.42(c)(3) of the Penal Code, added in 2007, makes aggravated sexual assault of a young child a capital felony when the defendant has a qualifying prior conviction, and article 37.072 of the Code of Criminal Procedure supplies a separate sentencing proceeding with special issues on future dangerousness and mitigation. Kennedy v. Louisiana held, 5 to 4 in 2008, that the Eighth Amendment bars the death penalty for child rape that neither results in nor is intended to result in death. Texas has never repealed either provision. Instead, article 44.251(d) directs the Court of Criminal Appeals to reform a 12.42(c)(3) death sentence to life without parole if the Supreme Court holds the statute unconstitutional. Metze reads that hedge as doubt, then argues the doubt is no longer warranted. Every Justice in the Kennedy majority has left the Court, and the four dissenters are now the core of a six-member conservative majority. He also flags language the State may use: Justice Kennedy noted that every state but Louisiana had "narrowed" its statute to repeat offenders, which Metze calls a possible opening for narrower non-homicide capital statutes like Texas's. His survey of the nine decisions citing Kennedy finds the conservative Justices hostile to the evolving standards test, and Glossip, Arthur, and Bucklew turning the Court away from review of execution methods. Florida and Tennessee have since passed child-rape death statutes, and a Florida prosecutor has announced the first case under that state's law. His prediction: the Court will not extend Kennedy to Texas and will likely find it wrongly decided. His remedy is Supreme Court reform.

In 2008, in Kennedy v. Louisiana, the U.S. Supreme Court ruled 5 to 4 that a state cannot execute someone for raping a child when the child did not die and the attacker did not intend a death. Texas never took its own child-rape death penalty law off the books. Professor Patrick S. Metze, who directed the Capital Punishment Clinic at Texas Tech University School of Law, argues the ruling may not survive. Not one Justice from the Kennedy majority is still on the Court. The four dissenters were Chief Justice Roberts and Justices Scalia, Thomas and Alito. With Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett added, Metze writes, the old minority is now the majority. He traces the nine Supreme Court decisions that cited Kennedy. In them he finds conservative Justices attacking the idea that the Eighth Amendment's ban on cruel and unusual punishment tracks society's "evolving standards of decency." Since October 2018, he counts eight rulings in favor of a person facing execution. Five came in 2019. The three since made no sweeping changes. States have read the signal. Florida passed a child-rape death penalty law in 2023, and a prosecutor there announced a first case under it. Tennessee followed in 2024. Pointing to Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, Metze expects the Court to discard this precedent too, and he calls the motive political. His answer is to reform the Supreme Court, by balancing it, resizing it or adding seats. That, he concedes, requires new Senate rules and liberal control of Congress and the White House.

Here's a question most people never have to think about. Can a state execute someone for a crime where nobody died? Back in 2008 the U.S. Supreme Court said no, at least for the rape of a child. The case was Kennedy v. Louisiana, and the vote was 5 to 4. Professor Metze thinks that answer is in danger. Texas has a law that allows the death penalty for a repeat offender who sexually assaults a young child. After the 2008 ruling, lawmakers could've repealed it. They didn't, and it's still there. Why keep a law the Supreme Court says you can't use? Metze's answer: they're betting the Court will change its mind. And he thinks they're probably right. Every justice who voted with the majority in 2008 is gone now. The four who disagreed are the heart of a six-justice conservative majority. He walks through every case since then that's mentioned Kennedy, and he watches the conservative justices chip away at an old idea: that what counts as "cruel and unusual" punishment should change as society grows up. Some states aren't waiting. Florida and Tennessee have passed new laws allowing death sentences for child rape. Metze points to the Dobbs decision, which threw out half a century of abortion law, as proof this Court will toss its own precedent when politics calls for it. He calls the death penalty a barbaric practice, and he calls what's happening going backward, not forward. His fix is blunt: reform the Supreme Court itself.

In 2008 the Supreme Court drew a line: a state can't execute someone for raping a child if the child didn't die and wasn't meant to. Five justices backed that line and four didn't. Texas kept its own law allowing death for repeat child sexual assault anyway, and it's still there. Professor Metze wants you to see why. All five justices in that majority are gone. The four who disagreed now anchor a six-justice conservative majority. Metze tracked every Supreme Court case that's cited the 2008 ruling, and he found the conservatives pushing back on the idea that "cruel and unusual" should be judged by society's growing sense of decency. They'd rather ask what the Framers meant back in 1791. You've seen this move before. In Dobbs, the Court overturned Roe v. Wade and threw out half a century of law. Metze thinks limits on the death penalty are next, and he says that's politics, not progress. He calls it going backward. His fix is big: reform the Supreme Court.