Supreme Court Rejects Death Penalty for Child Rape

My evolving view of the death penalty is that there are situations one could envision wherein punishment by execution would be a just outcome but given the realities of the world a "no executions" policy would be the best way to go. At the end of the day, to be haunted by a nagging fear that somewhere there lurks a criminal who deserves death but who is, instead, suffering a lifetime of imprisonment doesn't strike me as especially reasonable. So from that perspective, I both sympathize with any effort to limit the constitutional scope of the death penalty while also thinking that these efforts to draw distinctions -- to tinker with the machinery of death -- are fundamentally misguided.

In the specific case of people who rape children, it's worth saying that the death penalty is bad crime control policy. You want to make it the case that no matter what terrible things a criminal has done, he would get an even worse penalty if he killed the victim/witness. Getting bogged down into a debate over the relative heinousness of various crimes is a bit of a red herring -- there's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty.

The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty.

"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony Kennedy wrote in his majority opinion. His 4 liberal colleagues joined him, while the 4 more conservative justices dissented.

In his dissent, Justice Samuel Alito said that the damage caused to the family and society by child rape is “grave” and argued that the judgment of the legislatures in Louisiana (where the subject case arose) and other states should be observed.

My own view on this case is that there is no obvious reason for the death penalty to be confined to cases of homicide, unless we presuppose that a victim's death is the worst of all possible outcomes (which is not, at least to me, obviously true, when compared to, say, a lingering, vegetative existence).  In other words, the punishment of death may in fact be proportionate to the offence of raping a child.  And, if it is disproportionate (as Justice Kennedy says it is) then it is still not obvious (again, at least to me) whether it is disproportionately severe or lenient.  In other words, it seems just as tenable to say that the death penalty is an insufficient answer to that particular offence (among others) as it is to say that it is an overreaction.  One's views on this really depend, of course, on one's views on life and death.

While I have no moral qualms in the abstract about executing someone who is guilty of a crime that we decide is particularly diabolical (the sexual assault of a child would seem to fit the bill), I have a practical objection to the death penalty, which derives from how we decide that someone is in fact guilty of such a crime.  Because fact-finding is inherently uncertain (since the standard of proof does not require certainty), courts should generally avoid imposing irreversible penalties.