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May 30, 2025
Oklahoma joins growing list of states making child rape a capital crime (despite current SCOTUS prohibition)
As reported in this local article, "Oklahoma is now one of the states with the harshest penalties for child sex offenses after lawmakers paved the way for the death penalty for crimes against children." Here is more:
Gov. Kevin Still signed Senate Bill 599 into law on May 22.
The new law grants prosecutors the authority to pursue the death penalty for individuals convicted of child rape on a first offense. Additionally, it allows judges to sentence individuals found guilty of lewd molestation of a child under the age of 14 to life imprisonment without the possibility of parole.
Delaware and Ottawa County District Attorney Doug Pewitt said a current U.S. Supreme Court ruling prohibits the death penalty in child rape cases. “If the court ruling changes, then we will seek to enforce the law,” said Pewitt.
In May, Idaho lawmakers approved legislation allowing the death penalty in child rape convictions. Tennessee and Florida passed a law in 2024 and 2023, and Alabama is seeking to pass a similar law.
I have noted in some prior posts that it could be quite a long time before the Supreme Court could or would take up a child rape death sentence to give it a chance to perhaps reconsider its Kennedy v. Louisiana ruling from 2008. But having more states passing these laws likely should help speed up the timeline.
A few prior related posts:
- With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?
- Tennessee now second state to allow death penalty for child rape since SCOTUS prohibition
- Two more states moving bills forward to make child rape a capital offense
May 30, 2025 at 10:21 AM | Permalink
Comments
Terrible decision that needs to be revisited.
Posted by: federalist | May 30, 2025 11:44:15 AM
Kent Scheidegger complained recently at the Crime and Consequences Blog that Scotus seems currently focused on ending circuit splits rather than on overturning activist precedents.
But for that should we blame the Justices, or the lack of petitioners?
Since Kavanaugh replaced Kennedy, I don’t know if any petition has asked them to overrule the case that accidently bear his name.
To take an example outside criminal law: Has any petition asked Scotus to overrule Obergefell?
Who would have standing to sue for any of that? Only Scotus can overrule its own cases, but it doesn’t have original jurisdiction to do so. Thus, a litigant would be forced to ask beforehand a lower court to do something that admittedly it cannot….
Posted by: Jackson | May 30, 2025 1:18:39 PM
Pretty much every death penalty adjacent case from the post-war period through Kennedy should be. The "evolving standards of decency that mark the progress of a maturing society
" thing is judicial bullshit of the highest order.
Posted by: Soronel Haetir | May 30, 2025 1:35:45 PM
Jackson, Obergefell is as wrong as wrong could be. Given that millions have organized their lives around it, I'd say that it would not be right for the Court to undo it.
Posted by: federalist | May 30, 2025 3:34:20 PM
It seems pretty clear that the governor and state legislature agreed that the existing penalties were insufficient to deter sworn police officers from committing this type of crime: consider the recent case of Brock England.
https://district4da.org/former-wichita-police-officer-sentenced-for-sexual-assault-of-children/
This development should be good for social cohesion in OK police departments and with local district attorneys; it's now more important than ever to have lots of buddies, and/or lots of dirt on them, so that cops are spared the maximum penalty, or are never charged, or are never even investigated.
It's not what you've done, but who you know.
Or, at the federal level, how much money you're willing to spend on a pardon.
Posted by: Frank Fosdick | May 31, 2025 1:54:29 AM
federalist. In overruling Roe, Scotus argued that such kind of social issues must be decided by the people and their elected representatives. Hard to make an exception for marriage; and overruling a case doesn't need to be retroactive, in this one to nullify previous unions.
That's even more an issue in criminal law with the Ex post facto clause. To return to Kennedy v. Louisiana, the court could have to make a decision that doesn't apply to the nominal litigants.
Posted by: Jackson | May 31, 2025 5:21:56 AM
Roe v. Wade, as a practical matter, could be overruled. It's a fundamentally different issue from SSM. The SSM regime has been in place for a while. Hundreds of thousands of people have organized their lives around the practice. What is to be done about FFC (if some states went back to outlawing it)? In other words, the societal reliance interests on SSM are far more than the societal reliance interests on abortion. Ok, so you don't go retroactive--fine, are you going to grandfather in certain rights? That seems problematic, and you still have FFC issues. SSM isn't ending in NY--so what if the couple moves to Alabama?
I doubt you'd get a single vote to overturn SSM at SCOTUS now. There's a CT concurrence which talks about societal reliance interests.
I think Obergefell was blindingly wrong. But as wrong as it is, I think it would be wrong to undo it given the societal reliance interests that have developed.
Posted by: federalist | Jun 2, 2025 10:24:04 AM
"a single vote" --- At least one, as Thomas said it in his Dobbs concurrence.
I agree that there will not be a single vote to abolish it retroactively.
Social reliance and grand-fathering are two different things. The latter is just the very definition of non-retroactivity, and I don’t know what is the problematic thing in it.
The moving of people changing their law applies to many other issues in a federalist system. Even for marriage that’s already how it worked from 2004 to 2015.
(I assume that by FFC you mean "full faith and credit", but please don’t suppose that I know abbreviations so well).
The FFC issue would have applied even if Obergefell had never been decided. So when you say that it is "blindingly wrong", at best you mean only the legal basis (Equal Protection), but not the result. It is a symbolical condemnation of the ruling, but with no practical interest.
If originalism is so selective, it will be discredited and Roe will be reinstated. Planned Parenthood also. A non-textualist theory of the Constitution relies on much more than social interest or FFC: it relies on "human dignity", which is never negotiable.
That’s why Scalia himself said that he "repudiate"d his statement against judicial flogging, and said instead that it would be "stupid but constitutional". Let's the people decide.
Posted by: Jackson | Jun 2, 2025 2:59:09 PM
CT may vote against retroactive overruling of Obergefell, but then what's the point? Any gay couple in Alabama would be able to travel to get married. Then what? Alabama would have to recognize their marriage under full, faith and credit clause. There would be so many issues that it just isn't worth the damage to the polity to fix this. The genie is out of the bottle. Kinda like the Federal Reserve.
Obergefell was blindingly wrong because, among other things, no one drafting the Constitution would have ever dreamed that it protected SSM.
Posted by: federalist | Jun 2, 2025 3:41:53 PM
What is the harm in same-sex marriage? The US is, or ought to be, a free country, meaning that everything should be legal unless there's some overwhelming reason why it shouldn't be.
It's true that the founders wouldn't have supported it. (Jefferson suggested that buggery should be punished with castration.) But few suggest that drugs can't be banned just because the founders never banned any -- though in that case I side with the founders.
Posted by: Keith Lynch | Jun 2, 2025 4:23:23 PM
Under an originalist theory of the constitution, a state is not forced to recognize other states’ same-sex marriages, nor any congressional act to do so consistent with the 10th amendment.
Your whole argumentation is based on the implicit premise that same-marriage is a good policy, which is debatable and not an originalist consideration, as showed by the very possibility that some states would still ban it if Obergefell is overruled. And also by the fact that it is still prohibited today by most of the world, including some members of the European Union. Even the pseudo-ECHR did not dare imposing such right because that would cause its dislocation.
Let the citizenry decide what is the "social interest" their prefer, or "polity" their want, instead of theorizing cafeteria originalism.
Posted by: Jackson | Jun 2, 2025 4:27:02 PM
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
I don't see any exceptions, Jackson. So I don't know that you're correct that "a state is not forced to recognize other states’ same-sex marriages, nor any congressional act to do so consistent with the 10th amendment."
My argument is an assessment that overruling Obergefell would undercut the settled expectations of at least hundreds of thousands of people and wouldn't do much anyway because a large majority of states aren't going back. Compare, if you will, Gorsuch's BS opinion regarding the status of Tulsa and Indian Country.
I consider myself a textualist. Would you overrule Gideon v. Wainwright? Can you really operate a modern justice system without paid for counsel for the indigent?
Posted by: federalist | Jun 2, 2025 5:35:44 PM
What "they" want of course for "same-sex" marriage.
Also, if no constitutional amendment is passed to require same-sex marriage (as for *any* other policy not currently mandated by the original Constitution) it means that at least 1/4+ of the states or 1/3+ of one congressional house opposes it, which is the very criterion of a debatable policy that must be left to the self-government of the several states.
Posted by: Jackson | Jun 2, 2025 6:12:08 PM
FFC is part of the Constitution too. And I've yet to hear, given the existence of FFC, what the practical benefit of overruling Obergefell is. Seems to me that the Court, as an institution, isn't going to issue a ruling that has no practical effect.
I don't like Obergefell at all. It's the apotheosis of judicial activism. But there are practical limits on the correction of the Supreme Court's errors.
Posted by: federalist | Jun 2, 2025 6:22:38 PM
federalist --
After the fall of Roe, and the dust settled, abortion remained available as a practical matter to virtually anyone who really wanted one. (I think this is a major reason abortion did not work as well in last year's election as many Democrats were thinking it would).
Likewise, my sense is that gay marriage is now so broadly accepted in the culture that it will remain viable and widely practiced even if Obergefell is overruled. Thus I don't think reliance interests are significantly implicated.
Posted by: Bill Otis | Jun 3, 2025 12:20:21 PM
The First amendment also has no explicit exception, but even Scalia recognized some.
Under your FFC theory, a single state could force the 49 others to apply a policy they reject, which would be an unsustainable abrogation of their legislative sovereignty, at least under the original understanding.
Thomas and Gorsuch wrote that they would overrule Gideon. Scalia spoke severely against it in an oral argument where that wasn’t necessary to resolve the case (which was about the erroneous dismissal of a hired defense attorney). If originalism selectivity applies even to this, it can apply to abortion, which is about freedom, human dignity, sex equality, etc., etc. Just have a good reason each time.
If voters can decide if a fetus is human child or a medical garbage, they can also decide if they will recognize or not recognize a future homosexual marriage performed in another state. Ted Cruz also said that the gay marriage ruling must be overruled.
I also reject any claim that abortion is an unconstitutional violation of a right to life, or same-sex marriage of a right of children to parental sex-alterity.
Posted by: Jackson | Jun 3, 2025 2:12:47 PM
Jackson, the First Amendment has different language. It speaks in terms of "freedom"--well, what is the extent of that freedom? So technically, there are no exceptions to that. It is just that the freedom doesn't extend to threats, fighting words, violations of agreements not to disclose government info . . . .
Bill, that's one way to look at it. But if true, then what's the point of the fight? The polity has ratified Obergefell. It never ratified Roe. Cf. Dickerson v. US (discussing public acceptance of Miranda).
Posted by: federalist | Jun 3, 2025 5:28:03 PM
No lawyer should believe that the possibility of arguing for an implicit exception, or for non-application of a language, applies only to the word "freedom", nor to any other language.
If a state creates a sex-worker diploma or a prostitution corporation status, the 49 other states don’t have to allow them to practice prostitution within their borders on the grounds that otherwise it would be a denial of full faith and credits. Again, your whole argumentation is based on the implicit premise that homosexual marriage is good.
Scalia and Thomas dissented in Dickerson, calling it "judicial arrogance". They were literary two against the seven non-originalists.
Scalia "repudiated" his statement against judicial flogging. His lead should be followed by all the people tempted by cafeteria originalism with criteria like "polity has ratified it", which by the way is a nonsense on stilts because declaring something unconstitutional is always denying to the citizenry the right to ratify and de-ratify it; and also by the way is impossible to credibly not apply to abortion, which is widely popular.
It is unfortunate that Ted Cruz wasn’t appointed to Scotus.
Posted by: Jackson | Jun 4, 2025 1:22:38 PM
Jackson, the prostitution thing is inapt.
Posted by: federalist | Jun 4, 2025 2:31:37 PM
It is not more inapt than same-sex marriage was 25 years ago.
But this can be applied to other things that already exist. Another state license to sell weed. Another state judicial ruling changing one gender, and specifying that it applies to bathrooms, locker rooms, incarceration and sport competitions.
Your whole full faith and credits point is based on the unstated idea that homosexual marriage is a thing that the people have no right to question. But they have.
Pardon me for my literally approximative English.
Posted by: Jackson | Jun 5, 2025 2:10:54 PM
