That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of Kennedy v. Louisiana .
The narrower question is whether execution for rape of a child is constitutional. The state's brief stresses the age of the victim . No surprise there. For on matters such as possession of pornography, the court's allowed criminal punishment for conduct that the Constitution would protect if only consenting adults were involved . Such a narrow emphasis, however, obscures the question of proportionality that underpins any system of criminal justice.
Is a sentence of death grossly disproportionate and excessive punishment for the crime of rape, and therefore forbidden by the Eighth Amendment as cruel and unusual punishment?
Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.
Concerns about crime have not, however, fully displaced the concerns that animated the court in Coker . The concern that capital punishment for nonlethal crime evades proportionality was shared with jurists in other common law countries , briefing indicates. And there was another concern, too. Before Coker capital rape cases were brought overwhelmingly against African-American defendants, as Stuart Banner demonstrated in his The Death Penalty . Outlawing such cases thus eliminated a prime source of racially disparate sentencing. One sees no reason now for revival.
Diversity Won’t Help the GOP Its problems with minority voters go much deeper than its candidates.
Safeway Almost Made a Massive Deal With Theranos. Now It’s Teaming Up With Theranos’ Biggest Rival.
Cards Against Humanity Asked People to Give It $5 on Black Friday for Nothing in Return. The Stunt Worked.
Girl, Uninterruptible Prudie advises a letter writer upset over a college freshman daughter’s lack of contact.
A New Statue in Edinburgh Honors a Bear Named Wojtek That Served in the Polish Military During World War II
Attacks on Abortion Clinics Should Be Prosecuted as Terrorism It’s the right thing, both practically and philosophically.
A Radical Experiment in Democracy Is Happening in Northern Syria. Americans Need to Start Paying Attention.
Help! I Can’t Get Enough Dear Prudence. Prudie answers more of your questions, only for Slate Plus members.
The Best (and Only) Nigerien Remake of Purple Rain: “Rain the Color of Blue With a Little Red in It”
Internet-Connected Toys Are Getting Hacked, and It’s As Creepy As We Feared It Would Be
The Fossil of the Day Award Is the Best Part of the Paris Climate Summit Activists name and shame, with humor.
Warrior Kings Golden State is currently playing better than any basketball team in history. You might want to watch them.