By Randy Evans – It is difficult to determine which is more shocking – the United States Supreme Court’s decision to shield child rapists from the death penalty or its rationale for unilaterally amending the United States Constitution to do so.

In Kennedy v. Louisiana, as described by Justice Alito in his dissent, the Supreme Court held that “the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, 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.”

Stop for one moment and think about it. No matter how young the child. No matter how many times the child was raped. No matter how many children the perpetrator has raped. No matter how cruel and sadistic the crime. No matter how much physical or psychological trauma is inflicted. No matter how many times the perpetrator has done it before – the perpetrator will never face even the prospect of the death penalty.

To reach its decision, Justice Anthony Kennedy, on behalf of the Court, actually invoked “evolving standards of decency that mark the progress of a maturing society” to justify its greater protection for child rapists.

No one should overlook the facts of the case before the Court. Patrick Kennedy raped his eight year old stepdaughter so severely that the treating doctor testified that the girl’s “injuries were the most severe he had seen from a sexual assault in his four years of practice.” To quote the Court, “her entire perineum was torn from the posterior fourchette to the anus.” When police arrived, she was bleeding profusely. It was so bad, she required emergency surgery.

So, how does the Court determine this “evolving standard of decency” that shields such child rapists from capital punishment? It looked for a “national consensus” among state governments and then to its own “independent judgment.”

According to the Court, “[u]nder the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.” Most might believe that the rape of an eight year old girl should be considered among the narrow category of the most serious crimes that when combined with extreme culpability makes the perpetrator deserving of execution. Not this Court.

In fact, the Court concluded that the perpetrator had not committed a crime within the narrow category of the most serious crimes, nor did his level of culpability make him deserving of execution. Worse yet, the Court held that no child rapist, regardless of the circumstances surrounding the crime, who did not intentionally kill their victim, would merit capital punishment.

According to the Court, the death penalty in such a case would be disproportionate to the crime itself because the rape of a child did not result, and was not intended to result in the victim’s death.

Why? Because according the Court, the Constitutional standard for limiting the circumstances for the imposition of the death penalty “must change as the basic mores of society change” even when the Constitution has not been changed. And so, the Court changed the Constitution.

Never mind the formal procedure outlined in the Constitution for the amendment of the Constitution. The Court’s approach was simply to overlay its reading of the national consensus of state legislatures with its own judgment of the boundaries of acceptable punishment for heinous crimes.

From here, the Court concludes that since 1964, there appears to be “a national consensus against capital punishment for the crime of child rape.” Candidly, God help the United States if there is a national consensus that the rape of a child regardless of its circumstances is not as bad or morally depraved as murder.

And so, just like that, no Constitutional Convention; no two-thirds of the Congress; no ratification by three-fourths of the states – just a survey by Court and its own judgment and that is enough.

In the words of the Court, “[i]nformed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape.”

They do not have a clue. God help this Court.