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.

Justice Kennedy’s opinion had a proper and welcome skepticism about the death penalty in general, warning that “when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” We hope the court will one day declare the death penalty unconstitutional in all cases. Until it does, the increasing limits it is placing on capital punishment is an encouraging development.

Source: The New York Times