The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.
I do oppose the death penalty, but a ruling that would declare the death penalty for child rape unconstitutional would seem to be an exercise in legislating from the bench more than an exercise in constitutional review. The 8th Amendment reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Given the constitutionality of the death penalty, which the defendant’s lawyers don’t seem to be contesting, I find it hard to believe that the crime of sexually molesting a child is not deserving of a harsh sentence. (Especially in this case where the victim was the perpetrator’s stepdaughter. I can’t imagine the trauma a young girl being raped by a father figure would go through.)
The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.
I wasn’t aware of this, but without having read the original decision, I find it difficult to believe that this isn’t a case of judicial overreach. We may not like executing someone for rape, but it’s certainly a severe crime where the desire to execute someone for it is understandable. Given that, it seems that under our Constitution, that’s a legislative question more than a judicial matter. Matters relating to the application of moral questions, to the extent they belong to the government at all, are properly reserved to the Legislature, rather than the judiciary.