As a citizen who generally distrusts the death penalty, I must admit I am not comfortable with the recent Supreme Court ruling restraining states from imposing the death penalty for the rape of a child. The first question in constitutional law is not "should those who rape one or more children be executed?" The first question is, does the plain language of the federal constitution prohibit states from imposing a death penalty for this crime? Constitutional law deals with whether a branch of government, at some level, federal or state, has the power to pass a law at all. If it does, then it is indeed up to the legislative branch whether to pass one or not, and what to put into the law if one is adopted.
The constitutional provision at issue is the Eighth Amendment, which prohibits "cruel and unusual punishment."
That is a hard phrase to interpret. Nothing would seem more appropriate for interpretation in light of the "evolving standards" of a civilized nation. There have been human cultures in which a father had the legal authority to kill a disobedient child. Most of us wouldn't stand for that now. At the time the federal constitution was ratified, some states still used the ducking stool and the whipping post. That would be considered cruel and unusual now.
But it is parsing things rather finely to say that "the evolving standards of society" accept the death penalty for some crimes, but not for others. A ruling that any execution is unacceptably cruel would make more sense. Death is or is not cruel, death is or is not a just and acceptable penalty. On the other hand, if a state legislature adopted a statute providing for execution of habitual traffic offenders, most of us would expect the federal courts to overturn the law as providing for cruel and unusual punishment. It is simply out of all proportion for the crime.
I distrust the death penalty because our government is imperfect. Our legal system makes honest errors, and is subject to all kinds of corruption and manipulation. Not anywhere close to 100% of the time, but often enough to worry about. If someone has been wrongly imprisoned, we can release them, offer official apologies, compensate them with money. Once they are dead, no amends are possible, except to clear their name for the history books.
On the other hand, I admit to some admiration for John Grisham's perspective on the death penalty in his early novel, A Time to Kill. Grisham's protagonist observes "Carl Lee Hailey does not deserve to die, but the men who raped his daughter certainly did." (Hailey, a hard working family man with a dark complexion, took killing the men - the lowest predatory characters who ever justified the stereotype “poor white trash” - into his own hands. Hailey is therefore on trial for capital murder himself.) Grisham also observes, in a back-handed critique of the NAACP Legal Defense Fund Inc., that “Most Southern blacks along with most Southern whites who faced the gas chamber deserved the gas chamber."
There is a certain pragmatic accuracy to both observations. There is also a long history of southern courts executing twelve year old boys with dark skin for shooting the white man raping their mother, and executing the mother as an accessory. One hopes that if such a clear cut injustice occurred today in any state court, the federal courts would firmly overturn the guilty verdict as well as the sentence. Because it is “cruel and unusual punishment”? No, because there is no evidence that a crime has been committed. There is no more obvious case of justifiable homicide than killing a man in the very act of raping your mother.
Because the government is imperfect WOULD BE a sound reason to constitutionally ban all executions. There is a fundamental question, is the government competent to hold such power at all? However, no such provision exists in the constitution. It would have to be added. “We the People of the United States, who generally do not trust our government at any level, have concluded that our distrust of government is greater than our desire to see certain depraved criminals die for their crimes, and therefore enact that the penalty of death shall not be inflicted by any legal process in the United States.” That is not in the constitution at present. The Fourteenth Amendment, which provides that no person shall be deprived of “life, liberty or property without due process of law” strongly suggests that a person may constitutionally be deprived of life BY due process of law.
Who "deserves" to die is really not an appropriate question for constitutional law at all. The constitution deals with what powers the government has, not how it should use those powers that "We The People" have delegated to it. IF the government may impose a death penalty at all, then it is up to the legislative branch what crimes a convicted defendant should be executed for. Except if some state enacts a death penalty for third offense drunk driving. That would be so over the top that we would expect the courts to strike it down. Oh, maybe not. Maybe Mothers Against Drunk Driving would file an amicus curiae brief supporting the law. And armed robbery would be sort of in a gray zone, wouldn’t it? In England, a child could at one time be hanged for stealing anything worth twelve pennies or more.
If any crime is punishable by death, it would seem that rape of a child under the age of puberty by an adult over the age of eighteen would qualify. Many murders are less depraved. Murder can be very cold blooded, but it is often an act of desperation, without much thought at all. Rape requires a depravity that may also be present in murder, but not always. And a child? As Grisham also observes, that can inspire pure undiluted rage, and an overwhelming desire to put the perpetrator out of this world, Carl Lee Hailey’s way or by state law, but gone forever, one way or the other. The problem with vigilante justice is not so much that a guilty person dies sooner, but that often an innocent party is murdered, without considering the evidence, or a mob exacts death for a crime that has a much less severe legal penalty.
Somehow, the Supreme Court needs to do better than this. There is plenty of cause to severely limit the powers of government to make private acts a crime, or to intrude into personal and family lives. But a vague reference to “the evolving standards of society” with regard to defining the exact penalty that is commensurate with the rape of a child does not do much credit to the principle of judicial review. Maybe its excessive, maybe its not, but as Justice Antonin Scalia said on one of his better days, the constitution does not mean what we would like it to mean, it means what it says. We need judicial reasoning that rests firmly on what the actual language of the document really says.
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