The SCOTUS ruling this week on the death penalty for the rape of a child has set off some heated reaction in the blogosphere. (Then again, changing the flavor of ice cream sets off the blogosphere…)
In a 5-4 decision, the Supreme Court decided that the death penalty is unconstitutional in cases of child rape… unless the child dies. In fact, death of the victim is the bar set for any application of capital punishment (NY Times):
The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.
The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”
This blog was created as an outlet for my outrage over the rape of a child. It’s not a subject on which I’m neutral — nor even particularly moderate.
And I’m long-since on record with my thoughts on this.
There are absolutely crimes that call for the death penalty, and I disagree strongly with those who say we’re a more civilized society if we lock animals in cages for the rest of their pathetic lives. And using the 8th Amendment prohibition against cruel and unusual punishment is, imo, an obfuscation:
As a matter of constitutional analysis, the question in the case was whether the death penalty was so disproportionate to the offense as to amount to cruel and unusual punishment, in violation of the Eighth Amendment. The court’s modern precedents interpret the Eighth Amendment according to “the evolving standards of decency that mark the progress of a maturing society.”
They’re muddying the water there. “Cruel and unusual”, in my view, is not the sanction, but how it’s applied.
You could sentence someone to twenty years, but that does not define cruel and unusual. If the crime for which that person was sentenced was, say, shoplifting, then it would be disproprotionate to the offense. Conversely, if the twenty years were spent locked to the walls of a small room with sewage on the floor and guards coming to whip the prisoner daily, that would be cruel and unusual. But these concepts are not interchangeable.
Likewise, the death penalty in and of itself is not cruel and unusual… though there are applications that could be.
Having said all that, though, there is a serious problem with seeking the death penalty against a brutal beast who raped a small child: the child would likely have to testify.
I care less than nothing about the feelings of the vicious perpetrator, but the risk of causing even more damage to the young victim is enormous.
That is not an insignificant consideration, and thus — like so many things — this issue is a tough one. On the whole, though, I agree with Obama’s position on the ruling.
I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for most egregious of crimes. I think that the rape of a small child, six or eight years old is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable. That does not violate our constitution.
There are crimes so heinous that the death penalty is appropriate. There is a collective societal outrage that can, and should, be expressed. Within the law. With great care for the individual’s rights within the framework of our constitution.
Whether a crime in which the victim survived — like child rape — meets my particular, personal threshold for the death penalty is not the question. The question is whether it’s a violation of our constitution.