The ruling in Kennedy v. Louisiana isn't really surprising; Baze v. Rees revealed a growing discomfort, among certain justices, with the death penalty in any case. But it's still disappointing to see it categorically barred in the case of the rape of a child.

Perhaps this case—in which a man raped his eight-year-old stepdaughter—was not so heinous as to warrant death. I happen to think any rape of a child qualifies, but, for argument's sake, let's say this wasn't bad enough. Is that to say there will never be a case bad enough?

Justice Alito nailed it in the opening lines of his dissent:

The Court today holds 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.

This echoes Justice O'Connor's dissent in Roper v. Simmons, which barred the capital punishment for minors:

The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense... Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case.

I think it's foolish to remove a punitive option from the table. You never know who is going to come before the court, what level of cruelty and evil will present itself.

Of course, the reality is that this opinion is not only about capital punishment for rapists. It's a strike against the death penalty full stop. Justice Kennedy makes that plain:

When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

This is just a scholarly retooling of the classic position: if we kill the killer, then we are no better than the killer. It doesn't take a leap—though it does require a little critical reasoning—to recognize that there is a difference between murder and execution. But nevermind that. Kennedy goes on to write:

For these reasons we have explained that 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.’ ”

That's a fair limitation and a wise guideline to follow. I am simply failing to see how raping a child doesn't qualify.