In a sentencing opinion, U.S. District Judge Joshua Divine of the Eastern District of Missouri imposed the statutory maximum on a man who pleaded guilty to receiving child sexual abuse material, then went further: he argued that Supreme Court precedent does not actually bar capital punishment for nonhomicide sexual offenses against children. The opinion is unusual because it functions as an advisory argument on the death penalty, not just a sentence.
Divine's reasoning rests on the Eighth Amendment's "evolving standards of decency" doctrine from Trop v. Dulles and applied in Kennedy v. Louisiana, which struck down the death penalty for child rape. Kennedy assumed society's moral evolution would move toward restraint. Divine counters that since then, at least six states have passed laws permitting capital punishment for child rape, and he points to rising crimes against children and technological changes as evidence that society's standards have evolved in a more punitive direction.
The SCOTUSblog analysis notes the broader implication: if "decency" is the measure, a more punitive public mood could weaken Eighth Amendment protections. The author observes that executions rose last year, some jurisdictions are adopting firing squads and nitrogen gas, and politicians have proposed the death penalty for drug dealers and other harsh measures. Conservative justices have long criticized the evolving standards test as too malleable, but if Divine's approach gains traction, that same doctrine could justify harsher punishments without formally overruling precedent.
The piece leaves open whether Divine's view will be accepted, but it highlights a reversal: a standard once embraced by progressives as a floor against cruelty could become a ceiling that ratifies increasingly severe penalties.