When dealing with truly heinous crimes, especially those dealing with children, it’s difficult to separate emotional reactions from constitutional standards. That is, however, what the judicial branch is for, and what the Supreme Court attempted to do yesterday.
The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled on Wednesday.
The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.
The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” like treason or espionage — “where the victim’s life was not taken.”
Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons,” even “devastating” crimes like the rape of a child, on the other.
In a political and cultural context, Supreme Court rulings are often boiled down into an unhelpful shorthand. In a case like this, the justices can be, and are, accused of somehow protecting child rapists, which makes the ruling deeply unpopular. There’s obviously more to it than that — the high court had to consider where to draw lines regarding state executions. The majority decided that Louisiana’s line went too far.
Did they make the right call? By some measures, the court ended up in the right place, but took the wrong directions to get there. Dahlia Lithwick supported the outcome, but rejected the reasoning: “I happen to agree with the majority that ‘in most cases justice is not better served by terminating the life of the perpetrator rather than confining him’ and that Louisiana did not demonstrate a growing national consensus that nonlethal child rape should be punished by death. But when Kennedy arrives at the correct decision by way of a pit stop at Substitute Moral Judgments for the Weak and Infirm, I can’t quite bring myself to celebrate.”
Publius, who initially endorsed the outcome of the case, was less impressed when he read the ruling, calling it “a sloppy opinion,” and “a bad opinion.”
And then, of course, there’s Barack Obama and John McCain.
In a purely political context, a presidential candidate has practically nothing to lose by criticizing a ruling like this one. A president would have almost no power or influence over these kinds of decisions in office anyway. In this sense, it’s a freebie.
For Obama, that calculation led him to criticize the ruling, and MSNBC immediately made the obvious observation.
Michael Dukakis, Obama is not.
On the death penalty today, Obama sidestepped a potential political land mine. Opponents could have had something recent and tangible to tag him anew as a hard-left liberal had he answered any differently than he did on the issue.
When asked about the Supreme Court ruling against the use of the death penalty in instances of child rape today at a news conference in Chicago, Obama answered, “I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for most egregious of crimes. I think that the rape of a small child, six or eight years old is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable. That does not violate our constitution.”
He continued, “Had the Supreme Court said, ‘We want to constrain ability of states to do this to make sure that it’s done in a careful and appropriate way,’ that would’ve been one thing, but it basically had a blanket prohibition and I disagree with that decision.”
When I first heard that Obama had denounced the ruling, I was pretty annoyed, assuming he was just pandering. And in all likelihood, he probably was. But Obama’s perspective here is largely coherent, and apparently based on a states’ rights argument. I think he’s probably wrong about this, but given the Supreme Court’s flawed reasoning, it may not be completely ridiculous for Obama to come down on the side of the court’s minority.
McCain preferred a more generic attack.
“Today’s Supreme Court ruling is an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime,” he said in a statement, “That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.”
I’d much prefer McCain at least pretend to care about the substance and legal reasoning of what happens at the Supreme Court, but I supposed I should lower my expectations.