The U.S. Supreme Court case Kennedy v. Louisiana in 2007 revolved around the constitutionality of imposing capital punishment for crimes that did not result in death, specifically child rape. Patrick Kennedy was sentenced to death by a Louisiana court for raping his eight-year-old stepdaughter, under a state law allowing the death penalty for such an offense. The Supreme Court ruled 5-4 that this sentence violated the Eighth Amendment's prohibition on cruel and unusual punishments as it was disproportionate to the crime committed since no life had been taken away directly due to it. This landmark decision established that capital punishment is unconstitutional unless applied in cases involving murder or crimes against the state like treason or espionage.

In the dissenting opinion for Kennedy v. Louisiana, Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Thomas, argued that the majority's decision to categorically rule out capital punishment for child rape under all circumstances was incorrect. The dissenters believed that this ruling did not take into account "evolving standards of decency," as there may be extreme cases where society would deem death penalty appropriate. They also disagreed with the majority's interpretation of national consensus against executing child rapists based on legislative enactments and jury decisions in a few states. Furthermore, they criticized the majority’s reliance on independent judgment about cruelty of punishment without considering its proportionality to crime severity or offender culpability. Lastly, they expressed concern over international trends influencing U.S constitutional law interpretations.