SCOTUS Rules Death Penalty For Child Rapists Unconstitutional

The Associated Press reports that "the Supreme Court declared Wednesday that executions are too severe a punishment for child rape, despite the "years of long anguish" for victims, in a ruling that restricts the death penalty to murder and crimes against the state. The court's 5-4 decision struck down a Louisiana law that allows capital punishment for people convicted of raping children under 12. It spares the only people in the U.S. under sentence of death for that crime — two Louisiana men convicted of raping girls 5 and 8... Justice Anthony Kennedy wrote in his majority opinion, 'the death penalty is not a proportional punishment for the rape of a child.' His four liberal colleagues joined him, while the four more conservative justices dissented."

I personally am not opposed to the idea of capital punishment being a punishment only for murder. On principle I agree with Justice Kennedy that execution should be a unique punishment only for those that take another's life. The famous philosopher John Locke (1632-1704) whose ideas were a precursor to the likes of James Madison, wrote about the death penalty in his "Second Treatise On Government." This excerpt from the treatise is a must-read for those interested in an eloquent and philosophical perspective on the death penalty and proportional punishment:

"Every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tyger, one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, Whoso sheddeth man's blood, by man shall his blood be shed. And Cain was so fully convinced, that every one had a right to destroy such a criminal, that after the murder of his brother, he cries out, Every one that findeth me, shall slay me; so plain was it writ in the hearts of all mankind.
"By the same reason may a man in the state of nature punish the lesser breaches of that law. It will perhaps be demanded, with death? I answer, each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. Every offence, that can be committed in the state of nature, may in the state of nature be also punished equally, and as far forth as it may, in a commonwealth."

John Locke himself only supported the death penalty in cases of murder, as is implied by the treatise. Only murder is a crime for which truly "no reparation can compensate." Murder in society should stand in a category of its own and alone recieve the harshet punishment.

All that being said, I in no way inted to shortchange the depravity and cruelty of child rape. I also understand that because raping a child is such a despicable crime there are those, like the State of Louisiana, that believe it should warrant the death penalty. I have no sympathy for the child rapist or any intention to protect him.

Even though I agree with Justice Kennedy's position politically, that does not mean I believe he is legally right in his majority ruling. This is not the first time I have held this position. I agreed with the liberal majority politically in the infamous Lawrence v. Texas case which ordered that all bans on sodomy be lifted. It is not because I believe people should be engaging in sodomy. Rather I felt that sodomy laws were impossible to enforce and in reality the government is not going to end homosexuality through the force of law. If the sodomy is behind close doors then the state should not be involved. Even so, it was an especially disastrous decision. The court ruling basically implied that when it came to sexuality it was unconstitutional to pass a law. It was patently ridiculous. There have always been laws concerning sexual relationships. Polygamy is illegal in our country and I have not seen the Court devote a ruling to claiming that banning those unions were unconstitutional. Incest is illegal as well and remains illegal. There was little reason why sodomy laws could not be on the books, there were only reasons why they should not be on the books. Furthermore, it laid the foundation for later courts, such as the ones in California and Massuchesetts, to declare that not allowing gays to wed was unconstitutional, which is also ludicrous.

I believe that legally and constitutionally the four conservative justices are correct in their dissent. I do not think the Eighth Amendment which prohibits "cruel and unusual punishment" categorically bans the punishment of death in the case of child rape. I agree with Samuel Alito conclusion in his dissent when he writes the following:

"In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of theEighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable 'objective indicia' of a 'national consensus' in support ofthe Court’s position; (4) sustaining the constitutionality ofthe state law before us would not 'extend' or 'expand' the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims andon society in general." Tweet