Federal Judge Issues Opinion on Capital Punishment for Child Sexual Abuse

Why it matters locally: While Montana does not have the death penalty, this national discussion on capital punishment for specific crimes against children could influence future legislative debates or federal policy that might indirectly affect the state's judicial landscape.

U.S. District Court Judge Joshua Divine for the Eastern District of Missouri issued a sentencing opinion this summer that addressed the death penalty for non-homicide sexual offenses against children. The opinion accompanied his sentencing of a defendant who pleaded guilty to receiving child sexual abuse material. Judge Divine sentenced the defendant to the statutory maximum of 20 years’ imprisonment. In his opinion, Judge Divine explored whether Supreme Court precedent prohibits capital punishment for non-homicide sexual offenses against children. He referenced the Eighth Amendment, which protects against “cruel and unusual punishments,” and its interpretation through the concept of “evolving standards of decency.” The Supreme Court first articulated the “evolving standards of decency” in the 1958 case *Trop v. Dulles*, where Chief Justice Earl Warren stated that the constitutional clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In 2008, the Supreme Court’s decision in *Kennedy v. Louisiana* applied this standard to consider if the Eighth Amendment prohibits the death penalty for the rape of a child when the crime did not result, and was not intended to result, in the victim’s death. The *Kennedy* court concluded that the Eighth Amendment does forbid the death penalty for such an offense, citing a “national consensus against capital punishment” for that crime at the time. The court noted that no individual had been executed for the rape of an adult or child since 1964, and no execution for any other non-homicide offense had occurred since 1963. Judge Divine’s recent opinion suggests that circumstances have changed since the *Kennedy* decision. He noted that in the past three years, at least six states have enacted legislation permitting capital punishment for child rape. This number represents approximately one-quarter of all states that allow capital punishment. Judge Divine also cited “extraordinary increases in crimes against children” and changes in the legal and technological landscape. Judge Divine concluded that policymakers and prosecutors might determine that imposing the most severe penalty on those who harm children could be seen as the most decent action. This perspective indicates a potential shift in societal norms regarding capital punishment for these offenses. Legal scholars have observed a broader trend in punitive measures. For example, the United States saw more executions last year than in any year in nearly two decades. Some states and the federal government have considered or returned to methods such as firing squads and nitrogen gas for executions. Discussions have also emerged regarding the death penalty for drug dealers and other criminal justice reforms. For decades, some conservative justices have expressed concerns about the “evolving standards of decency” test, viewing it as too adaptable and potentially allowing judges’ personal views to influence constitutional interpretation. If Judge Divine's interpretation of evolving decency gains traction, it could lead to more punitive outcomes without requiring formal overturning of established precedent.