Drawing the line on the death penalty

What happened

The Supreme Court, in a 5-4 vote, ruled that the death penalty is an unconstitutional punishment for child rapists. The ruling struck down laws in Louisiana and five other states, on the grounds that the death penalty is a disproportionately harsh punishment for a non-lethal crime against an individual. The two Louisiana men on death row for child rape will now be in prison for life. (The New York Times, free registration)

What the commentators said

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The high court’s ruling rests on America’s “evolving standards of decency,” said The New York Sun in an editorial, but this just shows that the court is “utterly unequal to the task” of divining that standard. A person can “coherently oppose capital punishment in all cases,” but once you acknowledge that “some crimes are so awful as to warrant the death penalty,” as the court’s majority did, how can you say that “the rape of a small child can never, under any circumstances, fall in that category”?

There’s nothing wrong with preventing “further expansion of a penalty that is already imposed freakishly and in a discriminatory way,” said the Los Angeles Times in an editorial. Had the decision gone the other way, other states might have made child rape—and other “nonfatal assaults”—subject to the death penalty. Now, at least, the court has closed the door on that “grim possibility,” and contained “the reach of this abhorrent punishment.”

Yes, the death penalty is “a noxious stain on our national character,” said Stephen Henderson in the Detroit Free Press, but the legal rationale for this ruling “is dead wrong.” As a constitutional matter, the Supreme Court has already decided that capital punishment itself is permissible. It shouldn’t now “define squishy, moralistic restraints” on executions, as the court’s majority is doing. That’s the job of elected state legislatures.

Setting aside the constitutional argument, said Steve Chapman in the Chicago Tribune’s Minority of One blog, “using capital punishment for rape is a bad idea.” If the penalty is the same for murder and rape, regardless of the rape victim's age, the criminal may well find scant reason for “leaving a witness alive to identify him.” In effect, the death penalty in rape cases “is more likely to encourage murder than to deter rape.”