Child Rape and Devolving Standards of Decency

For those of you who haven't seen it yet, the Kennedy decision came out today. It is available here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

Justice Kennedy wrote the opinion. Justice Alito wrote a dissent, joined by Justices Roberts, Scalia, and Thomas.

I don't have time to comment on this extensively at the moment, and we've discussed many of these issues already on this blog. I will say that if we're going to have the death penalty in this country at all, it's puzzling to me that we don't apply it to child rape. I suppose some people feel that murder is substantially worse than child rape, so as to excuse killing the perpetrator of one but not the other. I just don't see it. It's difficult to compare such egregious acts, but to my mind at least SOME murders that are still constitutionally eligible for the death penalty are less morally bankrupt than child rape. The protection of children is, after all, a universally recognized moral precept. In fact, while many of us can probably imagine being driven to murder by extraordinary circumstances, I suspect the vast majority of people cannot imagine being driven to commit the type of atrocity seen in Kennedy.

Of course, it is always possible that the next step will be to prevent the execution of criminals convicted of only one homicide, without aggravating factors. This is already effectively the law in many jurisdictions. I would argue that this is essentially a matter of efficiency--we simply can't afford to match our murder rate with our execution rate. But someone, right now, is writing a brief arguing that it's because we've evolved past killing murderers. Will the Court take their rationale so far? I wouldn't have thought so before this morning.

The majority commits many of the errors Mr. Pollard and I discussed in our previous posts. They use the "evolving standards of decency" argument, based at least in part on a state law "consensus" that is largely of their own creation. And they completely ignore the fact that "evolving standards of decency" can create more, rather than less punishment, see, e.g., Sexual Harrassment. Thus, they continue the one-way ratchett of 8th Amendment Jurisprudence.

Justice Roberts voiced this concern at Oral Arguments, and the other Justices make a half-hearted attempt at arguing the point. But it's hard not to think that the Majority Justices are just substituting their own standards of decency for those of the rest of the citizenry. Do we really imagine that the majority of citizens in this country are against executing child rapists? If not, where are these "evolving standards" coming from? I submit that they are largely the product of the Court itself.

But perhaps I am not giving the Court enough credit. Maybe our laws have become so complicated that they have actually come to life, and are evolving on their own.