Hat tip to Doug Berman at Sentencing Law & Policy for noting this Washington Post column by Charles Lane, a WaPo editorial writer who previously had the Post's Supreme Court beat.
Lane wonders whether the Court would do well to reconsider Its opinion in Kennedy v. Louisiana in the aftermath of the publicaiton of Jaycee Dugard's story of her 18 year-long sexual torture and rape, starting at age 11. Readers will remember that, in Kennedy, a bare majority concluded that the death penalty could not be imposed for child rape, no matter how aggravated.
As Mr. Lane notes:
Kennedy's bottom line was that the death penalty is simply too "harsh" for a non-lethal crime: "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."
This sweeping ipse dixit was barely plausible in Kennedy v. Louisiana, which involved a single violent rape of an 8-year-old; it's more dubious with respect to a case like Dugard's.
As Justice Samuel A. Alito wrote in a dissenting opinion that now reads like prophecy, Kennedy's ban applies "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be."
There is much to say about the majority opinion in Kennedy, none of it good. The main thing I would note for now is that the majority's discernment of a national consensus against the death penalty for child rape was astounding in its disingenuity. It is also, and not coincidentally, false.
Lane's whole column is worth the read.