Cruel & Unusual?

The Supreme Court has ruled that the State of Louisiana has no right to execute a man for child rape. By a 5-4 majority, the justices state that execution is disproportionate to the offense and doesn't reflect a national consensus on the appropriate punishment. This case is considered a liberal victory, with the conservative justices united in dissent. The dissent looks predictable enough; Justice Alito complains that the court is again usurping a legislative prerogative. Kennedy v. Louisiana ought to raise questions that rise above partisanship or ideology, whether you agree with the verdict or not. The majority seems to find the fact that the Louisiana law was unusual, if not cruel, sufficient cause to strike it down, unless we also assume that imposing a disproportionate penalty is itself a form of cruelty. They contend that the law violates an existing consensus defined by the fact that only five states have similar laws on the books, but is that a consensus the same way a national referendum might be? How many states have actually voted on the question, and how many have voted against the death penalty for child rape? Can we say that a consensus exists if most of the states, or most of the voters, haven't even been consulted on the question?

I'm no jurist, but my first-glance interpretation of the Constitution tells me that an unconstitutional punishment would have to be both unusual and cruel, and on first reflection I don't buy the interpretation that an unusual punishment is implicitly cruel. To make my own position clear, I'm philosophically opposed to capital punishment because, in ideal circumstances, no one has the right to tell anyone else that they don't deserve to live. At the same time, I concede that ideal conditions don't exist, and that establishing them may require revolutionary violence. Practically speaking, while no one deserves to die, some people may have to be killed under certain circumstances. That may be hair-splitting, but I'm sticking with it.

I take no position on the immediate issue of punishing rapists of children, because that's Louisiana's business under the federal system, as regulated by the "cruel and unusual" clause. The supreme question for this occasion is: who gets to define cruelty? You might automatically answer that it's up to the Supreme Court, but I'm not sure if the Founders anticipated a time when the definition of cruelty would be as disputed as it is now. My hunch is that they assumed a more self-evident and universally held notion of cruelty that would cover extreme punishments like drawing-and-quartering or burning at the stake, or non-capital punishments like flogging or mutilation. Most of them probably never anticipated having to debate whether killing a criminal at all was cruel. If that's the case, then strict construction would never have allowed the Court to strike down any death penalty merely for being one. But this is one issue where everyone seems to agree that the Court should interpret the Constitution in light of changing moral standards. I don't necessarily oppose that idea, but I don't know if that gives the Supreme Court the power to define cruelty and impose their definition on the states.

The Court itself claims to follow an already-established consensus, but it's a dubious looking consensus in this case. Probably nothing short of a national referendum, in which the people could vote to authorize the states to execute rapists of children (leaving the states the prerogative not to do so), would clarify things, but that sort of thing isn't done in this country. This is what you get when you opt for representative democracy over direct democracy, but this looks like the sort of question that only the people as a whole can decide, for good or ill.

Update: During the afternoon, Senators McCain and Obama both denounced the decision. McCain simply affirmed that raping children was heinous enough to merit death. Obama also emphasized the heinousness of the crime, and stressed that the majority's reasoning was insufficient, in his mind, to overrule the Louisiana legislature. He allowed, however, that a death penalty for such cases might be overturned if there was proof that it couldn't be administered justly or fairly. This has been a popular way to delegitimize capital punishments in general in several states, and seems to depend more on the Constitution's requirement of "equal protection" rather than on disputed standards of cruelty. In any event, it looks like this ruling won't become a political issue at the national level.