The Court today held that imposing the death penalty for child rape was unconstitutional. I haven’t read the opinion yet, so this post is subject to change. But as grotesquely heinous as child rape is, I think it’s the right call. I’ll talk about doctrine in more detail later, but I think death (i.e., the victim’s death) is an appropriate bright-line rule for determining when to apply capital punishment.
If humans were omniscient, then I’d have less of an issue. But they’re not. And once you open the door to allowing people to be executed for actions short of death, it introduces an enormous amount of uncertainty and unfairness into the system. For instance, if an 18 year-old has sex with a 15-year old, could that be “child rape”? More to the point, would a racist prosecutor in say Georgia have a pretext to seek capital punishment? And even if that example is flawed, the general point still stands.
Anyway, more later after I actually read the opinion.
[UPDATE: I'm almost finished with the opinion, and I'm changing my mind. I obviously like the result and I think the policy argument above is important. But the Court's methodology is extremely sloppy, and it's very expansive. But I'll elaborate on this later tonight -- this case deserves more than one post].