Here's argument against death penalty for rape

One section of the U.S. Supreme Court's ruling outlawing the death penalty for rapists of children is a reminder of an observation by Justice Oliver Wendell Holmes: The life of the law has not been logic but experience. The differing ways the justices interpret that observation leads to sharply divergent opinions in cases such as this one.

Justice Anthony Kennedy, writing for the majority, observed that few states have extended the death penalty to include child rapes and suggested that, if it were allowed, death penalty cases involving that crime could overwhelm the nation's courts. In 2005 alone, he wrote, there were 5,702 reported rapes of children under age 12.

He cited the “special risks of unreliable testimony” by children and noted that since many such rapes occur within families, the threat of the death penalty might discourage reporting of the crime. Those factors might lead to selective imposition of the death penalty by standards that would “be so arbitrary as to be freakish.”

To see how that reasoning comes into play, consider the court's history with death penalty cases. Some critics argue that if the Founding Fathers accepted broad use of the death penalty, they clearly did not consider it to be a “cruel and unusual” punishment prohibited by the 8th Amendment to the Constitution.

But Chief Justice Earl Warren wrote in 1958 that, essentially, that was then, and this is now. The amendment, he wrote, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

American society certainly has evolved on the issue. In the early days, various colonies made death the penalty for not only homicide but also for arson, burglary, sodomy, bestiality, blasphemy and adultery.

Today, the Supreme Court's disagreements don't center so much on whether “evolving standards of decency” should affect the death penalty, but whether judges or the nation's legislators should determine how the nation has evolved.

In last week's 5-4 ruling, the dissenting justices said the majority is wrong to conclude that because only five states apply the death penalty for rape of a child, there's a national consensus against it. More states might have adopted such a penalty, they say, if it weren't for an earlier Supreme Court ruling strongly suggesting a ban on the death penalty for any rape. They also say the court's majority is engaging in policy arguments that should be the responsibility of legislators, not judges.

Who's right? It's a matter of opinion. The dissenters have some good arguments, but not enough votes.

As to the death penalty, the late Justice Harry Blackmun was right. He concluded after 24 years of wrestling with death penalty cases that our nation has failed to develop rules and practices that would ensure fairness and justice in the death penalty system.

The freeing of many prisoners from death rows across the country because of new evidence supports his conclusion. Before any state executes another person, it should make sure its handling of death penalty cases meets the most stringent demands of justice.