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In a 5-4 decision, the U.S. Supreme Court recently struck down a Louisiana law that allowed capital punishment for an adult convicted of raping a child under the age of 12 (Kennedy v Louisiana). The Court mistakenly held that Louisiana law violates the "Cruel and Unusual Punishment Clause" of the Eighth Amendment, and also voiced a reluctance to impose the death penalty onto non-lethal convictions, or for convictions for which capital punishment has not yet been sentenced-irrespective of its moral or societal opprobrium.

In this case, the victim was an eight-year-old girl who was raped by her step-father at their home and whose injuries were severe enough to require emergency surgery.

Justice Kennedy's majority opinion stated: "The Court would not now begin the same process for crimes for which no one has been executed in more than 40 years." That, he said, would "require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure."

In the opinion, Justice Kennedy rests upon, in part, two key premises.

First, that the Eighth Amendment's Cruel and Unusual Punishment Clause prohibits a state to punish by death a crime which does not result in the death or intent of death of the victim; and second, the purported development of a "national consensus," or judicial trend, of reluctance to impose the death penalty for such crimes, including child rape. It is a sad day when the High Court uses moral ambiguities to justify judicial phenomena opposed to policies crafted by elected representatives.

Few crimes exist that are more morally reprehensible than the rape of a child. Yet the Court ruled under the pretense that child rape is less deserving of capital punishment than murder, irrespective of how young the child, whether it is a recidivist offense, how much physical or psychological trauma is inflicted upon the child, etc.

Let us for argument's sake put aside the immense personal and social trauma that follows pursuant of child rape-trauma not only to the victim and the victim's family, but also to the victim's extended community-and instead consider that the Court's decision is contingent on a morally ambiguous premise. While it is certainly within the Court's discretion to discern a moral thread underlying judicial precedent, it is expected that the Court not parse a moral argument which directly contradicts the intent of state legislation that addresses penalties for convicted sex offenders. It should not be left to an activist Judiciary to delineate a moral imperative; rather, it must be left to state legislatures to pass laws that reflect the contemporary moral consensus.

In addition, the Court majority's argument that a "national consensus," moves according to "evolving standards of decency" away from the imposition of capital punishment is, in fact, unfounded, as in the past two decades states have enacted stricter penalties for convicted child sex offenders.

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