Based on a quick skim of the briefs in Kennedy v. Louisiana, the forthcoming Supreme Court case on whether the Eighth Amendment prohibits the death penalty for the rape of a child, my impressions are prettty similar to those that Mike Mannheimer made in a post a week ago over at CrimProf Blog:

The thing that struck me most after reading the briefs . . . was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons. Kennedy is almost the mirror image of those cases in several respects.

First, in Kennedy, it is the State that is relying heavily on social science data to prove the irrevocable harm to the victim of child rape, to distinguish the case from Coker v. Georgia, which holds that the death penalty is unconstitutionally disproportionate for the rape of an adult woman. One section of the Respondent's brief is replete with references to articles from social science journals discussing all the harms caused by child rape, many manifesting themselves later in life. This is reminiscent of the social science data relied upon so heavily by the defendants in Atkins and Roper to support the proposition that the mentally retarded and juveniles, respectively, are, as a class, less culpable and deterrable than other offenders.

Second, only six States capitalize child rape, a number that ordinarily would greatly help the defendant in showing that there is a national consensus against the death penalty for child rape. But, as the Respondent points out, Atkins and Roper both emphasize not simply the raw numbers in determining whether there is a national consensus, but "the consistency of the direction of change." In Atkins and Roper, the defendants both successfully argued that, even though only 30 of the 50 States -- and only 18 of the then-38 death penalty States -- banned the death penalty for the mentally retarded and juveniles, respectively, "the consistency of the direction of change" showed an emerging national consensus because a number of States had recently enacted such bans.

In Kennedy, the State is able to flip this logic to their advantage by showing that all six States that capitalize child rape have done so within the last dozen years or so. Thus, "the consistency of the direction of change" in this context shows the lack of any national consensus because more States continue to capitalize child rape, breaking down whatever national consensus might otherwise exist. Moreover, while the defendants in Atkins and Roper were able to emphasize that the numbers of States enacting such bans were even more significant given the relative unpopularity of legislation that could be seen as "soft on crime," the State here can argue that the number of States capitalizing child rape is all the more significant in the face of the fact that many State legislators likely read Coker as banning the death penalty for all rape.

  Of course, whether any of this matters depends on whether Eighth Amendment doctrine should be taken seriously -- something that unfortunately is always an open question when it comes to the Supreme Court's Eighth Amendment decisions.

  For results of a VC reader poll on attitudes toward the desirability and constitutionality of a state law imposing the death penalty for rape of a child, see here.