Today's New York Times carries the editorial, "Anger and Restraint."
For the law to be just, it must temper society’s anger over even the most horrible acts with decency and restraint. The Supreme Court exemplified that principle on Wednesday, striking down the death penalty for the rape of a child. While acknowledging the horror of the crime, Justice Anthony Kennedy’s majority opinion drew on widely shared standards of decency, constitutional law and real-world impact to explain why the Constitution forbids punishing it with death.
The 5-to-4 ruling also laid down a critical standard: in cases of crimes against individuals (which excludes treason and espionage) the death penalty can be applied only when the victim’s life is taken. That rule should deter efforts to extend the use of capital punishment.
Justice Kennedy wrote that defendant Patrick Kennedy’s rape of his 8-year-old stepdaughter was an act “that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted.” But the Eighth Amendment, he noted, requires that a penalty be a “graduated and proportioned” response.
One way the court assesses proportionality is by looking at how society treats particular crimes. For child rape, he argued, there is a consensus: Forty-four states do not make it a capital crime. Louisiana is the only state that has sentenced anyone to death for child rape since 1964.
The court must also use its own judgment, based on its reading of the Constitution and of its own precedents. Justice Kennedy argued that morally, the state’s taking of a life is unique in its severity and irreparability. It should, he concluded, be limited to homicide, an act that is in its own category of moral depravity.
The ruling also argued that it was not in the interest of a child victim to be dragged into a capital case as the complaining witness, and to compel that child to spend years trying to help the state put someone to death.
USA Today has the editorial, "Child rapist escapes death, but not tough justice."
The Supreme Court's latest death penalty ruling, issued Wednesday in a child-rape case from Louisiana, reinforces two closely linked trends.
Most obviously, the ruling continues the court's steady narrowing of capital punishment's reach. Less noticed is the fact the court has done so at about the same pace that states have created an alternative that makes the death penalty pointless, along with the controversy that it generates. Life in prison without the possibility of parole, which barely existed when the court reinstated executions in 1976, is now an option in 35 of the 36 death-penalty states.
And:
The decision overturns laws in six states that permit executions for child rape. And it appropriately moves the USA a step further from an irreversible practice that has proved to be problematic, discriminatory, out of step with most of the developed world, and no more a deterrent than the prospect of being locked in a tiny cell for decades.
My commentary on the ruling is here; coverage of the ruling -- and earlier coverage, here.
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