The United States Supreme Court Wednesday in a very close 5-4 decision in the case Kennedy v. Louisiana, ruled to outlaw executions of people convicted of raping children.  Justice Anthony Kennedy writing the majority opinion wrote, “We cannont dismiss the years of long anguish that must be endured by the victim of child rape.  It does not follow though, that capital punishment is a proportionate penalty for the crime.  By in effect, making the punishment for child rape and murder equivalent, a state that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.”

Justice Samuel Alito writing the dissenting opinion wrote: “The harm that is caused to the victims and to society at large by the worst child rapists is grave.  It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.  The court suggest that it is more painful for child rape victims to testify when the prosecution is seeking the death penalty…The court also argues that a state that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim…These policy arguments whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual punishment”.

This case originated from a Louisiana defendant who was sentenced to death for the rape of his 8-year old stepdaughter.  This decision also effected another case which involved another defendant who was accused of raping a 5-year old girl multiple times.  I usually have a whitty quip about the “liberal activist judges” on the court in decisions in which I feel the Justices’ are wrong, but all I can say about this is that this decision is the fundamental difference in certain judicial philosophy.

The court looked at certain precedents of the past in dealing with death sentencing in the cases of rape, to justify eliminating a law in which the Louisiana Legislature obviously felt was vital for deterrence and punishment of these type of crimes.  I think the death penalty should be used in certain situations, and should be a punishment option for certain criminals.  It should be and generally is used for only extreme cases in our justice system.  I do not see how the use of the death penalty for individuals who take a child’s innocence and violates them in the worst way is cruel and unusual punishment.

First the legislature should be allowed to determine what punishments are acceptable for their own states interest.  Next, civilizations have been using the death penalty for centuries, so I doubt the founding fathers of the Constitution deemed the death penalty as cruel and unusual punishment.  Finally, both the state’s and society’s interest in deterring these crimes is greatly lost because of this decision.

On an interesting note even Democratic Presidential Candidate Senator Barack Obama disagreed with the courts ruling, which suprised me, but then again even he can see the flaw of this decision.  So, say what you want about so called conservative judges, but the one thing you won’t say is that they are creating new laws from the text within the Constitution or dismissing the laws that legislators create for the good of society.

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