In the case of Kennedy v. Louisiana in 2001, the U.S Supreme Court ruled that sentencing a person to death for crimes against individuals where no one was killed is unconstitutional and violates the Eighth Amendment's prohibition on cruel and unusual punishments. The defendant, Patrick Kennedy, had been sentenced to death by a Louisiana court for raping his eight-year-old stepdaughter. However, this ruling overturned that sentence stating it was disproportionate punishment given there was no loss of life involved in the crime committed by Mr.Kennedy. This decision significantly limited states' discretion over their own criminal justice systems as it set a precedent that capital punishment could only be applied in cases involving murder or crimes against the state such as treason.

The dissenting opinion in the case of Kennedy v. Louisiana argued that the majority's decision to prohibit capital punishment for child rape was an overreach, and it ignored both historical precedent and contemporary standards. The dissenters believed that states should have the right to determine their own punishments for heinous crimes such as child rape, within constitutional limits. They also pointed out that there were only six cases on death row involving non-homicide offenses against individuals, suggesting that juries are already cautious about applying this penalty. Furthermore, they disagreed with the majority's assertion about national consensus against executing child rapists because many states had not addressed this issue due to previous Supreme Court decisions limiting capital punishment application. Therefore, they felt it was premature to declare a consensus on this matter.