Limiting capital punishment

Judging The Supreme Court

June 27, 2008

It may sound strange to describe this week's Supreme Court decision barring the execution of a child rapist on constitutional grounds as humane. Few crimes are more heinous than rape; the rape of an 8-year-old child by her adult caretaker - the circumstances in the case before the court - is particularly ignominious.

Yet in insisting that punishment fit the crime, the court upheld a fundamental principle of decency and restraint by ruling that the ultimate penalty cannot be imposed - even for "devastating" crimes such as the rape of a child - unless it involves the victim's death. The decision was based in part on the Eighth Amendment's admonition that penalties be "graduated and proportioned" and that punishments accord with "the evolving standards of decency that mark the progress of a maturing society."

In the majority opinion, Justice Anthony M. Kennedy said a distinction must be drawn between first-degree murder and crimes against the state, which remain punishable by death, and other offenses that society views with similar revulsion. He noted most states do not permit a death sentence in cases of child rape and even those that do bar it in the absence of aggravating circumstances.

The United States is the only Western country that still permits capital punishment, though there is no evidence that it deters crime. Efforts to move away from this ultimate penalty, of which Wednesday's ruling is an example, offer hope that "evolving standards of decency" eventually will do away with it altogether in the progress toward a more humane society.

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