Striking Down the Death Penalty Again: PATRICK KENNEDY, PETITIONER v. LOUISIANA

Today the Supreme Court struck down the death penalty of child rape. Alito's response can be found here. The biggest problem with the Court's reasoning is that you could never adopt a new use for the death penalty because even if it were very popular, it would take some years to get the new law adopted. From Kennedy's decision:

Evolving standards of decency must embrace and express respect for the dignity of the person … When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. . . .

The "commitment to decency"? What about the commitment to stopping brutality? What about the commitment to decency for what would otherwise be future victims?

From Alito's dissent:

Finally, the Court argues that statistics about the number of executions in rape cases support its perception of a “national consensus,” but here too the statistics do not support the Court’s position. The Court notes that the last execution for the rape of a child occurred in 1964, ante, at 23, but the Court fails to mention that litigation regarding the constitutionality of the death penalty brought executions to a halt across the board in the late 1960’s. In 1965 and 1966, there were a total of eight executions for all offenses, and from 1968 until 1977, the year when Coker was decided, there were no executions for any crimes.6 The Court also fails to mention that in Louisiana, since the state law was amended in 1995 to make child rape a capital offense, prosecutors have asked juries to return death verdicts in four cases. . . .

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.

These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. . . .

In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment ; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable “objective indicia” of a “national consensus” in support of the Court’s position; (4) sustaining the constitutionality of the state law before us would not “extend” or “expand” the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general.

I can come up with nonconstitutional reasons for not having the death penalty for rape, but the death penalty itself is explicitly mentioned in the constitution. That is the reason the majority in this case has to rely on a living constitution that includes "Evolving standards" of decency.