The Supreme Court Is Wrong On the Death Penalty

Laurence Tribe is a Harvard law professor. He makes interesting points.

there was a problem with the court's understanding of the basic facts. It failed to take into account -- because nobody involved in the case had noticed -- that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.

Whatever one's view of the death penalty -- and I have long expressed misgivings on both its wisdom and its constitutionality -- it's important that the inequities and inequalities in its administration be minimized. Commitment to that principle, not a rush to the center, lay behind Barack Obama's disagreement with the court's ruling in this case even before the 2006 federal death penalty provision came to public attention.

His politics would seem rather clear.

If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire. In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.

he Eighth Amendment's cruel and unusual punishment clause should not be construed in a manner that puts it on a collision course with the 14th Amendment's equal protection clause. The Supreme Court would do well to take that overriding consideration into account as it decides whether to revisit its seriously misinformed as well as morally misguided ruling.