I am not quite sure how this august panel of nine judges decides what constitutes a cruel and unusual punishment, unless it is by simply following the precedent rather than considering whether the punishment was properly enacted and in conformity with the severity of the crime. The majority’s opinion in Kennedy v. Louisiana relies on Coker v. Georgia, which held that sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and so decides that the death penalty is also excessive here.

While the opinion protests the utter cruelty of the acts in the present case, I suspect that the Court has allowed themselves to be guided too much by care for recent precedent and not considered fully the disparity between the crime and the punishment. Justice Kennedy, writing for the majority, finds “evolving standards of decency” allow the rapist to live because few states passed legislation prescribing death for the crime of rape. As well, because of various institutional features in our system of justice, the prosecution of cases seeking the death penalty for rape might further harm the victim.

In my opinion, the Louisiana statute was not cruel enough. The simple death of modern executions is quick and relatively painless. Better would be if the criminal were hung, drawn, and quartered, with his head impaled on a stake on the city walls to warn others. J. Kennedy would disagree, When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. And yet, the Court explicitly exempts crimes against the State:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.

If the State can punish crimes against itself, then why cannot a rape victim choose the punishment for her assailant?

I fear that our Law has backed itself into a corner over time. By removing all punishments other than fines or length of imprisonment, we find ourselves unable to respond proportionately to crimes. How long should we imprison a rapist? Ten years? One might as well fail to file one’s taxes.

If the State is not willing to act in retribution, then the more humane punishments of confining the criminal to the general population of a prison, while widely publishing the crimes committed, or of declaring the criminal an outlaw, should suffice. In either case, public opinion will devise its own suitable punishment.