Implications of Kennedy v. Louisiana?

Thompson v. State (Unpublished Memo): As the United States Supreme Court was holding that the death penalty for child rape is cruel and unusual punishment, the Tyler court was deciding its own, much lower profile, cruel-and-unusual case.

Thompson pled guilty to aggravated robbery.  A trial on punishment resulted in a forty year sentence.   The statutory punishment range for aggravated robbery is 5 to 99 years, or life.  Although Thompson did not object on cruel-and-unusual grounds at trial, the Tyler court nonetheless considers the issue.  Since the punishment is within the statutory range, and in light of Rummel v. Estelle, the Tyler court upholds the sentence.

In 1980, in Rummel, the United States Supreme Court considered the habitual offender aka “three time loser” law.  The Supreme Court upheld a life sentence for the three successive crimes of fraudulent use of a credit card to obtain $80.00 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses.

But an interesting twist to the Kennedy v. Louisiana case is that it doesn’t mention Rummel.  It’s not because the Supreme Court’s memory doesn’t go back that far.  The opinion in Kennedy contains this bit:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367 (1910).

So what does it mean, if anything, that the Supreme Court reached all the way back to 1910, but didn’t mention anything about a 1980 case?  Should Kennedy be put into a special category because it was a death penalty case?  Or does it signal that Rummel would be decided differently today?  And what of the broad “5 to life” statutory range?

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