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In Kennedy v. Louisiana, the United States Supreme Court held unconstitutional a state law that provided for the imposition of death upon one convicted of raping, but not killing or attempting to kill, a child. Justice Anthony Kennedy wrote the opinion for the Court, in which the majority, employing various analytical tools, brought its “own judgment” to bear on the excessiveness, and therefore the constitutionality, of the death sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause. In emphasizing the Court’s use of its own judgment in making the determination of excessiveness or disproportionality, Justice Kennedy and the majority …

In recent Eighth Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor …