Sentence First, Verdict Afterwards

There’s quite a bit of outrage, at least in the Right Blogosphere, about the Supreme Court’s ruling striking down the use of death penalty in cases of the rape of a child. SCOTUSBlog characterizes the decision this way:

On Wednesday, in Kennedy v. Louisiana (07-343), the Court’s five-Justice majority said at one point: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” For a Court not yet ready to end the long-running constitutional experiment with the death penalty, it was a revealing utterance of near-revulsion at the process.

Back on April 16, in a separate opinion in Baze v. Rees (07-5439), Justice John Paul Stevens wrote that he had reached “the conclusion that the imposition of the death penalty represents ‘the pointless and needless extraction of life with only marginal contributions to any discernible social or political purposes. A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ “ With that, a fourth Justice in the nation’s history — after William J. Brennan, Jr., Thurgood Marshall and Harry A. Blackmun — converted to the abolitionist side on capital punishment.

The first of those two statements is clear evidence that the Court, at least as presently constituted, is determined not to “extend” or “expand” the reach of the death penalty (the use of the words “extend” and “expand” prompted some of the dissenting Justices’ most critical responses Wednesday). And the second of those statements suggests, once more, that the longer a Justice stays on the Court and watches capital cases come and go, the greater the prospect that capital punishment will lose another vote and there will be an internal voice reinforcing any other Justice’s hesitancy.

I’m not in a position to comment on the legalistics of the decision but from a pragmatic one I think the decision further demonstrates that, probably, at least four of the justices on the present Supreme Court oppose the death penalty and are willing to go to some lengths to strike down its application where they can.

If you’re curious as to what my opinion of the death penalty is, I’m not philosophically opposed to it nor do I believe that it’s ipso facto morally wrong. Indeed, at some point proportionality requires it. However, I think that in the United States generally and certain states in particular it’s very much over-applied. Basically, I support the teaching in Evangelium Vitae.

As to this particular case, I’m not sure that death is the worst penalty. Prison is sufficiently awful that spending the rest of one’s life in it isn’t a rosy prospect.

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