The death penalty continues to be a hot button issue in American politics, and an issue that can sway voters as they choose their presidential candidate. Witness the reaction when the Supreme Court Justices Bar Death Penalty for the Rape of a Child as repoted on 26 June 2008 in The New York Times. “Both major presidential candidates criticized the decision.” America which loves its personal freedoms does tend to believe that vengeful punishment is appropriate for heinous crimes. Though it is not clear that such laws actually protect victims by deterring crime, they do impose maximum responsibility on those who commit such crimes. As can be inferred from the response of both Senators McCain and Obama, they believe Americans want capital punishment for some violent crimes. In this they are following American popular opinion.
The Supreme Court however has been moving in the direction of limiting capital punishment. “The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.” In the most recent ruling, “Justice Kennedy said, ‘we have no confidence that the imposition of the death penalty would not be so arbitrary as to be freakish.’ … He continued, ‘We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.'” The ruling has broad implications as there were in the U.S. in 2005 alone, 5,702 reported cases of rape of children under 12. Advocates dealing with these incidents note that often they involve family members, and that having the death penalty as a punishment might actually deter families from reporting such rapes rather than detering men from committing such crimes.
In the 26 June 2008 National Public Radio news report, High Court Bans Death Penalty for Raping Children, Justice Kennedy opined: “The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.”
His opinion for the majority is in line with what The New York Times editorial, Anger and Restraint, says: “For the law to be just, it must temper society’s anger over even the most horrible acts with decency and restraint. …Justice Kennedy’s opinion had a proper and welcome skepticism about the death penalty in general, warning that ‘when the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.'”
For Christians who support the Sanctity of Human Life, further limitations on the death penalty and on society and government sanctioned violence is welcomed.
Old Testament Law which does allow the death penalty for certain crimes also says “When a man causes a disfigurement in his neighbor, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; as he has disfigured a man, he shall be disfigured” (Leviticus 24:19-20). This would not allow the death penalty for a rapist, but might permit some form of severe physical punishment for the person convicted of rape. Deuteronomy 19:21 makes such a punishment almost mandatory: “Your eye shall not pity; it shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”. The Law is clear about not turning the rapist into some kind of victim by showing pity for them. On the other hand, it clearly limits the amount of punishment which can be imposed on someone who does wrong. Thus God Himself imposes restraint on justice. And Christians follow a Lord who advocates mercy, which no doubt is what is influencing the Justices of the Supreme Court as they interpret the Eighth Amendment which addresses the issue of cruel and unusual punishment.
Of interest in their judgment is also this line reported in The New York Times: “The court’s modern precedents interpret the Eighth Amendment according to ‘the evolving standards of decency that mark the progress of a maturing society.'” In other words, the Supreme Court recognizes in law that the moral standards of a society can and do change and the court takes this into account when rendering its decisions. Such flexibility in the law, and even “re-interpretation” of the law has brought about some deep and good changes in the U.S. – take the issue of slavery or women’s suffrage. It also can put conservatives on edge as they wonder if there are any fixed standards. But as the nation lives and deals with new contingencies – the terrorist attacks of 9/11 for example – it is healthy for the court to be able to consider evolving standards to meet the challenges before us.
2 thoughts on “Limiting Capital Punishment for Those Who Disrespect Limits”
As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims.
It was clear to me that there was no consensus or evolving standard against executing child rapists.
Houdini judges can pick any lock.
SCOTUS’ evolving standards doctrine and the national consensus “standards” are both prone to this type of constitutional perversion – the alchemy of highly strained legal arguments derived from personal opinion.
Another excellent example of this was presented by Jeff Jacoby in a Boston Globe op/ed
A phony ‘consensus’ on youthful killers
Which shows the nonsense of the courts decision, very much like Jim Lindgren’s, A “National Consensus” in Favor of the Death Penalty for Child Rapists”
sincerely, dudley sharp
For many, it is not revenge, but justice which defines the use of the death penalty.
Regarding Christian support for the death penalty, there is nearly 2000 years of solid bibilical, theological and historical support for the death penalty, from the Christian community.
(1)”The Death Penalty”, Chapter XXVI, 187. The death penalty, from the book Iota Unum, by Romano Amerio,
Thoughtful deconstruction of current Roman Catholic teaching on capital punishment by a faithful Catholic Vatican insider.
in a blog
titled “Amerio on capital punishment “Friday, May 25, 2007
(2) “Catholic and other Christian References: Support for the Death Penalty”, at http://www.homicidesurvivors.com/2006/10/12/catholic-and-other-christian-references-support-for-the-death-penalty.aspx
(3) “Capital Punishment: A Catholic Perspective”, by Emmanuel Valenza (Br. Augustine) at
(4) “The Purpose of Punishment (in the Catholic tradition)”, by R. Michael Dunningan, J.D., J.C.L., CHRISTIFIDELIS, Vol.21,No.4, sept 14, 200
(5) “MOST CATHOLICS OPPOSE CAPITAL PUNISHMENT?”, KARL KEATING’S E-LETTER, Catholic Answers, March 2, 2004
(6) “THOUGHTS ON THE BISHOPS’ MEETING: NOWADAYS, VOTERS IGNORE BISHOPS” , KARL KEATING’S E-LETTER, Catholic Answers,, Nov. 22, 2005
(7) “God’s Justice and Ours” by Antonin Scalia, First Things, 5/2002
(8) “A Seamless Garment In a Sinful World” by John R. Connery, S. J., America, 7/14/84, p 5-8).
(9) “The Death Penalty”, by Solange Strong Hertz at
(10) “Capital Punishment: What the Bible Says”, Dr. Lloyd R. Bailey, Abingdon Press, 1987. The definitive biblical review of the death penalty.