Here we go again -- a 4-4 tie, so Kennedy gets to write the majority opinion:
The U.S. Supreme Court ruled 5-4 Wednesday that child rapists cannot be executed, concluding capital punishment is reserved for murderers.
The ruling stemmed from the case of Patrick Kennedy, who has been on Louisiana's death row since 2003, when he was sentenced to be executed for raping his 8-year-old stepdaughter.
Justice Anthony Kennedy wrote in the majority opinion that "evolving standards of decency" in the United States forbid capital punishment for any crime other than murder. Execution of Patrick Kennedy, the justices ruled, would be unconstitutional.
I'm not a big fan of finding rights in the Constitution that aren't there, based on the justices' interpretation of society's evolving needs. The Constitution should be our foundational bedrock, not a "living document." But I think Kennedy is on pretty firm ground here. Where the Constitution forbids something, such as cruel and unusual punishment, but doesn't define it, all we can do is define it ourselves using contemporary standards. The Constitution does recognize capital punishment, but all it says, really (in the Eighth Amendment), is that somebody can't be held on a capital charge (except in wartime) without a grand jury indictment. What deserves capital punishment isn't specified, so that has to be determined outside the text of the Constitution.
That doesn't mean I think Kennedy and the other four are right about "decency" forbidding the execution of child rapers. I kind of like Harl's solution, in a comment on another post: Fund the construction of large Osterizers, and sentence the perps to 60 seconds on "frappe."
