Yesterday the Governor of Missouri, Matt Blunt, urged the Missouri legislature to pass legislation making child rape a capital crime. Over at the Sex Crimes blog, Corey Rayburn Yung comments:

It doesn't make sense . . . for Missouri to actually work on a statute now since the decision in Kennedy could well strike it down in the next couple of months. But in the interim, talking about executing child rapists always makes for good politics.

  I look at this differently. I think now is the ideal time for a legislature to pass such legislation, as the Justices would surely take note of it. If the Justices really mean it when they say they look to evolving views and what states have done, then a state enactment of such a law when Kennedy is still pending would be a pretty strong expression of popular will.

  Indeed, there may be a sort of constitutional laches principle at work here. A legislature that declines to pass such legislation now may find that its failure to act now means that it can never act. So a legislature that may someday want to make child rape a capital offense should probably do so now.

  To be clear, I'm not endorsing such statutes as a matter of policy. But if states want to retain the discretion to have such statutes in the future, it's sensible as a matter of constitutional law to pass those statutes while the Kennedy case is still pending.