The Liberty Papers

Today, the Supreme Court ruled in a 5-4 decision that a Louisiana law allowing the death penalty for rape of a child even when it doesn’t result in death is unconstitutional:

A divided Supreme Court ruled today that it is unconstitutional to execute someone who rapes a child but does not kill the victim.

In a 5 to 4 decision, the court struck down a Louisiana law that had authorized the death penalty for anyone who rapes a child under the age of 12. Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana’s law, the broadest in the land. There has not been an execution for rape in the United States since 1964.

Justice Anthony M. Kennedy joined the court’s more liberal members in continuing the court’s trend of narrowing the number of criminals eligible for death. He wrote that the harm caused a child who is raped is “grave,” but “cannot be quantified in the same way as death of the victim.”

Says who ? Well, apparently, 5 of the 9 unelected men and women in black robes say so.

And that, I think, is what’s really wrong with this decision.

Make no mistakes, the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder, but that’s a question for a legislator, not a judge. Unfortunately, the legislator-as-judge is something that is far too common and it’s something we see on both sides of the political spectrum notwithstanding the right’s continual repetition of the phrase “judicial restraint.

As Orin Kerr points out, Justice Alito does a fairly good job of pointing out the real problem with today’s decision in his dissent:

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

Alito, I think, get’s it 100% right. It isn’t the Supreme Court’s job to second guess a particular state’s determination that raping an 8 year old girl, in this case your 8 year old stepdaughter, is not a sufficiently heinous crime to justify the death penalty. That decision belongs to the people, acting through their legislators.

Far more clearly than most may realize, this decision lays bare what has gone so terribly wrong with Constitutional jurisprudence in this country over the past 50 years or so.

Originally posted at Below The Beltway