In Kennedy v. Louisiana, The Supreme Court recently held that the Eighth Amendment bars states from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death.
This sweeping holding in Kennedy discounts the distinct possibility that the rape of some children is so brutal, so frequent, and so sadistic that a state has sufficient interest in protecting its children that it would permit the application of the death penalty for those crimes.
Adding to the physical injury, the stepfather, after raping the child victim, intimidated her into creating an elaborate lie to cover his guilt. Although law enforcement seriously doubted the veracity of the story, it took almost two years until the victim was able to record the truth of the matter on video during an interview with the Child Advocacy Center. Though her courage to tell the truth is amazing, the psychological trauma from such a brutal rape could last a lifetime.
The Eighth Amendment gives the Court the task of interpreting whether punishments are so grossly disproportionate to committed crimes that they should be considered both cruel and unusual.
As can be expected, state opinions on the utility or appropriateness of the death penalty vary widely. In a move that could only be described as jurisprudential mysticism, the liberal Justices in Kennedy contrived a "national consensus" in order to support their own policy judgments. That "national consensus" presents as a hollow front for these five unelected liberal Justices to substitute their predispositions against the death penalty for the democratic process set forth by the founding fathers and the will of the people through their elected representatives.
The framers of the Constitution recognized that from time to time the basic policies of our country mentioned in the Constitution would need to adapt and change. To achieve that end, they included Article Five, which provides a mechanism to amend the Constitution.
To promulgate less fundamental policies, the framers enumerated specific powers to federal legislative bodies and left the bulk of the policy decisions to the States. Nowhere in the Constitution can we find provisions for the Supreme Court to make policy decisions adapted to changing societal norms.
We need look no farther than the four corners of the Constitution itself to recognize that the five current liberal Justices on the Court continue to regularly overstep their bounds by generating policy derived from their own conceptualizations of justice rather than strictly interpreting the Constitution and applying the laws set forth by the people.
While I tend to agree that the death penalty may be too harsh a punishment for an offense such as statutory rape, some cases clearly exist where the states have a sufficient interest in protecting children from being sexually brutalized to make those crimes eligible for the death penalty.
The death penalty is our highest punishment, and we must ensure that it is only applied to the most egregious of crimes. But I submit that it is not a mark of progress for a maturing society to categorically exempt those who viciously violate the bodies and deaden the souls of our children from the jeopardy of our highest penalty.