It comes as a shock to many people that the United States remains one of the few countries in the world that still applies the death penalty. What makes sense here does not make sense elsewhere. The death penalty is final, and final means final. You can't bring him back if we discover later on that he didn't commit the crime, and the newspapers have been reporting for two decades now about innocent men released from death row because DNA evidence proved beyond any doubt that the guy simply didn't do it.

The death penalty debate is a strange one, however. Many people profess to oppose the death penalty, but they can be persuaded that this punishment is appropriate for the most brutal and vicious crimes. In that case, then, these people actually do support the death penalty. But what about one of the most unconscionable crimes of them all, say, child rape?

The child rapist has no defenders. He will not survive in prison, and not because of the death penalty. The child rapist is at the bottom of the totem pole in the strange hierarchy that inmates devise to judge each other. Murder is one thing. Crimes against children are something else.

Many Americans still support the death penalty. Many judges and executioners do not. That's because they see death up close, and they know two things: innocent people can be put to death, and even the killer may in his own way not deserve that punishment. There are better ways to punish, and no one suggests these men should go free. The question before the Supreme Court this year was a difficult one: if we all hate child rapists, and if the courts have not specifically limited the death penalty for murder, should child rapists be put to death?

The Supreme Court, by a 5-4 vote, said no. Child rapists cannot be put to death. Why did the Court do this? The Court does not just exercise its judgement in deciding its cases based on the judges' own values. It has to follow precedent. The case law in this area requires the Court to consider evolving social standards in determining whether certain punishments violate the Cruel and Inhuman Punishment Clause of the Constitution. In that light, the national consensus has tilted away from death for child rapists, and few states recognize that punishment. In addition, the punishment is disproportionate to the crime, however vile it is. Death is only proper for the most serious crimes, which at this point is murder and murder alone. Even then, death is not appropriate for the mentally retarded and juveniles, as they do not have full mental responsibility for their criminal acts. Accordingly, the Court tells us:

Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.

. . .

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” they cannot be compared to murder in their “severity and irrevocability.”

A quick scan of the news this evening shows that the usual gang of pro-death penalty supporters are outraged by the Supreme Court's decision. There is nothing more emotional than the death penalty debate. The pro-death crowd wants to fry 'em all, fry' em now. Since I believe emotion has no place in public policy, these concerns are easily responded to with the following logic: the government should not be killing anyone, and the financial costs of ensuring the right guy committed the crime make the process prohibitive. Innocent people have walked off death row, and the killer or child rapist still gets life in prison, or something close to it. the death penalty solves nothing.

Note that this court decision was decided by a vote of 5-4. One vote made the difference. Think about that when you vote in this year's presidential elections (the president picks the Supreme Court justices). For those of us who oppose the death penalty, it is a good sign that the Court over the past few years has made it harder and harder for the states to enforce the death penalty, a curious trend in light of the conservative modern Supreme Court. As one commentator notes, "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."