On March 2,1998 Patrick Kennedy brutally raped his 8-year old step daughter, causing her severe physical damage in addition to the obvious psychological harm. Louisiana, where the heinous assault occurred, is one of only six states where rape of a child is a capital crime. Kennedy was accordingly sentenced to death. In June of this year, the U.S. Supreme Court delivered a 5-4 decision holding that the death penalty in this case violated the Eight Amendment prohibition against cruel and unusual punishment. That decision demonstrates again that we need new blood in the federal judiciary, especially the Supreme Court.
The majority of the justices based their opinion on Supreme court precedents holding that the cruel and unusual punishment clause “draws its meaning from the evolving standards of decency that mark the progress of a maturing society.” They determined the degree of “progress” by looking at the number of states that had passed legislation allowing the death penalty for the rape of a child.
A minority opinion written by Justice Alito shredded the majority’s determination that American public opinion now does not favor use of the death penalty in such cases. Alito pointed out that a previous Supreme Court opinion striking down the death penalty for the rape of an adult woman had discouraged state legislators from trying to pass a death penalty law for rape of a minor. Apart from state legislative action, I would be shocked to find that a poll of American public opinion would not come out heavily in favor of the death penalty for rape of an 8-year-old.
I applaud the minority’s efforts, but I don’t believe they struck on the real weak point of the decision. What does the evolving public opinion have to do with whether a law is constitutional? The role of public opinion is to influence legislators through the electoral process. If the public wants to outlaw the death penalty for certain types of crimes, they will elect representatives who will pass laws accordingly.
Federal judges are given lifetime tenure specifically to insulate them from the pressure of public opinion. Use of public opinion to decide the constitutionality of a law is dangerous. What if public opinion “evolved” to the point where a majority thought that disembowelment followed by burning at the stake is a proper punishment for some crimes? Would that make it constitutional under the Eighth Amendment? No, because that punishment is objectively cruel and unusual regardless of the state of public opinion or any “evolving standards of decency.” Using the Supreme Court’s approach, however, cruel and unusual punishments would have to be allowed if favored by the public.
The majority opinion also made some noise about trying to keep the punishment proportional to the crime. that sounds great but is impossible to apply in many cases. For example, any punishment that is proportional to rape would by definition be inhumane. The punishment that Kennedy will most likely receive, being incarcerated with men who will brutalize him for the rest of his life, is far more cruel than execution, even though it might be called more “proportional” to his crime.
The Court got onto this path by following precedents set by previous courts. When they saw that a previous decision was based on the idea that evolving standards of decency were the deciding factor, they should have rejected and overturned the precedent. Instead, they took that flimsy house of cards and piled more cards on top of it. Presidents and the Senate must look for new federal judges who are willing to accept the obvious meanings of the provisions of the Constitution and Bill of Rights rather than twisting them to suit public opinion or any other agenda; and who have the boldness to reject bad precedents.