The Supreme Court botched another important case today by disallowing the Louisiana law that allowed the death penalty to be administered to child rapists.
Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.
Justice Kennedy said Wednesday that while the court’s death penalty jurisprudence “remains sound,” it should not be expanded to cover a crime for which no one has been executed in the United States for the past 44 years.
Given the polarization of the court on death penalty issues it’s right that Kennedy author the opinion: effectively he is the Supreme Court on this and other divisive issues. Sadly he wasn’t up to the task of doing justice in this case.
Andy McCarthy responds to Kennedy’s twisted mess of logic with cutting clarity:
I think it’s silly on its face — read the almost unreadable (because it’s so excruciating) account of the rape and ask yourself whether it is really "disproportionate" to administer lethal-objection execution to a man who committed this type of barbaric a sexual assault on a child.
But let’s give him that one for argument’s sake. The Eighth Amendment talks about punishment that is cruel. First, punishment does not become cruel just because it’s disproportionate. And second, are we really striving here for proportionality? If a crime is cruel — as it clearly was in this case — wouldn’t a proportionate punishment also have to be cruel, and thus in violation of the Eighth Amendment?
Wouldn’t it be refreshingly honest if activist justices just bluntly us: "We don’t like the death penalty and we can stop it because there are five of us." Sure, it would be tyrannical, but at least it would be accurate, and not nearly as nauseating as what passes for reasoning in these cases.
What else is there to say?