Kennedy v. Louisiana

We were frankly amazed yesterday when the Supreme Court ruled, in a 5-4 decision on the case of Patrick Kennedy v. Louisiana, that the Eighth Amendment prohibits the death penalty for the crime of raping a small child. The majority opinion, written by Justice Kennedy, with Justices Stevens, Souter, Ginsburg, and Breyer joining, runs 38 pages, but its central argument can be summarized as follows:

"Cruel and unusual punishment," which is prohibited by the Eighth Amendment, derives its meaning from "the evolving standards of decency that mark the progress of a maturing society." These evolved standards, according to Justice Kennedy, require a distinction, "between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other." Citing precedents, Justice Kennedy claims this distinction shows that the "severity and irrevocability" of child rape cannot be compared to murder "in terms of moral depravity and of the injury to the person and to the public."

It strikes us that one can coherently oppose capital punishment in all cases. But if one acknowledges, as the majority opinion did, that some crimes are so awful as to warrant the death penalty, then it is outrageous to hold, in the same breath, that the rape of a small child can never, under any circumstances, fall in that category.

As for the evolving standards of decency, it strikes us that a legislature would be better than a court. Certainly in this ruling the Court has demonstrated itself utterly unequal to the task of conceiving America's "evolved sense of decency." It's a comfort to see that the next president will be closer to the mark. Senators Obama and McCain both came out strongly against the ruling.