Well, the Supreme Court has chosen to strike down Louisiana’s law authorizing the death penalty for the rape of a child. I find myself of two minds on the matter.
On the one hand, I agree with their conclusion that the death penalty is probably wrong for child rapists. I say this on the most pragmatic of reasons; I think it will, in the long run, save more children’s lives than it will kill.
How do I come to that conclusion? Let’s look at a child rapist, standing over his victim. “If I get caught, I’ll get executed for what I’ve already done. If I kill the kid, the penalty won’t be any worse, and the kid won’t be around to help them find me and testify against me.” There is no incentive for the rapist to not take that final step and become a murderer, too.
That being said, I think that the Court was wrong in its striking down the law. While I think that the law was wrong-headed (but I certainly can sympathize with the sentiment behind it), I think that it is the right of the several states to shape its own laws. And that includes deciding which crimes are so heinous that they deserve the ultimate sanction.
The Court (well, at least five of the nine) have decided that “cruel and unusual” is a flexible term, one that changes and evolves and redefines itself with the times. I happen to disagree; the whole point of the Constitution is that it is not capable of changing and evolving and redefining itself. For that, we have the Amendment process.
Further, as others have noted, we already have a metric of what “the people” consider appropriate and in tune with public mores — it’s the law. Laws are passed, amended, and repealed by representatives directly elected by the public as a whole. If the people of Texas, through their duly-elected representatives, have decided that the rape of a child is worthy of the ultimate sanction — death — then that pretty much meets the definition of what the people want. And if the people don’t agree, then they can get their representatives to change things.
Of course, there is a place for the courts in these matters. They not only have the right, but the duty to intervene in cases when the law is just plain abusive, and needs to be struck down. But this level of micromanaging — reaching down into the states to decide which crimes are worthy of life imprisonment, and which are worthy of death.
Simply put, I don’t think that the Supreme Court is the body that should be in charge of deciding which crimes are worthy of the ultimate penalty. That is, in accordance with the 10th Amendment.
And, the last time I checked, the 10th Amendment is still part of the United States Constitution — in theory, the highest law of the land.