Death penalty isn’t too severe for child rapists (Greenville News)
By Sen. Kevin Bryant • July 12, 2008

 

The United States Supreme Court ruled recently that the imposition of the death penalty upon individuals who rape children is “cruel and unusual punishment.” The ruling, a 5-4 decision, initially stuns regular folks who cannot understand why the death penalty would apply to someone who shoots a person versus someone who uses an innocent child for sexual prey.

 

In 2006, the South Carolina General Assembly stood up for children when it passed legislation providing for the death penalty in cases where someone rapes a child. I led the fight for the inclusion of the death penalty sentencing in South Carolina’s version of Jessica’s Law, then making its way through the General Assembly.

 

Justice Anthony Kennedy, the author of the United States Supreme Court opinion, rationalizes the rape of a child as a lesser offense by saying that, “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…” Kennedy’s definitions of “severe” and “irrevocable” apparently do not apply to the rape of a child.

 

Kennedy frets in his decision over the inability to assign aggravating factors to individual cases so that someone who rapes a child might be spared the death penalty. This reflects the height of arrogance, as Kennedy actually tells us that certain rapists of children are better than others. Only in the chambers of the elite wise men could those who brutalize children have some redeeming qualities.

 

Some argue that capital punishment must be reserved only for instances when a life is taken. Consider this argument for a moment. Imagine what is taken from the heart and soul of a child who has been a victim of the horrific crimes. I and my colleagues agree that their life is taken away, if not in its physical sense then to a great degree in its spiritual and emotional sense. Indeed, over 10 percent of all rape victims eventually attempt suicide.

 

Kennedy then repeats the old saw of death penalty opponents: “… punishment by death may not result in more deterrence or more effective enforcement.” Law school apparently failed to teach Mr. Kennedy that death is 100 percent effective in deterring the rapist of a child from raping again.

 

Justice Samuel Alito, a George W. Bush appointee, wrote the dissent, which was co-signed by Justices Roberts, Scalia and Thomas. The rejoinder to Kennedy clearly illustrates not only the illogic but also the true aim of the majority.

 

Alito notes that, “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.” He continues that, “These policy arguments … are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Court’s policy arguments concern matters that legislators should — and presumably do — take into account … but these arguments are irrelevant to the question that is before us in this case. Our (precedents) have cautioned against using ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes, but the Court forgets that warning here.”

 

Alito tells us here what many already know. Kennedy and his liberal brethren are legislating from the bench. The policy preferences of Kennedy and his four allies simply trump the will of citizens acting democratically through their state legislatures.

 

The key in this case remains that Kennedy and his liberal colleagues agree that the death penalty is constitutional but that they disapprove of the way we in South Carolina use it. Five unelected judges have usurped the will of the voters of South Carolina. They now serve as our Legislature.

 

Thomas Jefferson warned us of this when he noted that, “The germ of destruction is in the power of the judiciary, an irresponsible body … advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated.”

 

I did not seek office to take orders from unelected men and women who offer their prescriptions for society from behind a black robe, and I think that the vast majority of my constituents elected me to represent them, not do the bidding of the judiciary.

 

Our only protection against an encroaching judiciary lies in our ability to select the president who appoints its members. Please remember that in November.