St. Louis-based U.S. District Judge Joshua Divine, who was appointed to the bench only last year by Republican President Donald Trump, delivered his views in an unusual court opinion issued on the same day he was set to sentence a Missouri man who faced a maximum prison term of 20 years.
That man, Anthony Moore, had pleaded guilty in March to receiving child pornography. Prosecutors said Moore during his plea admitted to engaging in sex acts with a 13-year-old and that he had sought nude photos of the girl, images of whom were found on his phone.
"Anthony Moore repeatedly raped a child and created images of child pornography," Divine wrote in a 23-page opinion. "Historically, offenders like him could have faced capital punishment."
He said that prosecutors and legislators had not until recently sought capital punishment for such crimes due to what he called a "wrong" but common perception that such punishments were forever barred by the U.S. Supreme Court's 2008 ruling in Kennedy v. Louisiana.
That landmark, 5-4 decision held that the ban on cruel and unusual punishment contained in the U.S. Constitution's Eighth Amendment bars the death penalty for the crime of raping a child where the offense did not result in the victim's death.
That was a different Supreme Court than the one that exists today: None of the members of the majority serve today, while three of the dissenters — Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas — are part of its current 6-3 conservative majority.
Divine noted that now-retired Justice Anthony Kennedy's majority opinion had been based on the premise that in 2008 there existed "a national consensus against capital punishment for the crime of child rape."
But the judge said that factual finding by the high court in 2008 "does not foreclose a court from finding, two decades later, that any national consensus is long gone and that those who harm children may now be executed."
"Today’s standards look quite different from those in 2008," he wrote. "In the last three years, at least six states enacted new legislation permitting capital punishment for the crime of child rape. And following recent changes in technology, the rate of sexual offenses against children has skyrocketed."
The six Republican-led states he referenced include Florida, Tennessee, Idaho, Arkansas, Oklahoma, and Alabama.
Divine said that based on his reading of the Supreme Court's decision, "a person who commits sexual offenses against a child can obtain relief under the Eighth Amendment from capital punishment only if he can prove that 'there is a national consensus against capital punishment for [that] crime.'"
"Society can 'evolve' in ways that take crime more seriously and give children greater protection," Divine wrote. "A court need not reflexively conclude today that the Constitution prohibits historically authorized penalties like capital punishment against those who commit sexual offenses against children."
The case is United States v. Moore, U.S. District Court for the Eastern District of Missouri, No. 4:25-cr-00103
Source: Reuters, Nate Raymond, June 24, 2026
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but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde
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