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.