Some disappointing legal positioning from the Obama campaign in the past few days, as Obama put out a statement disagreeing with a 5-4 decision on the Supreme Court's decision to bar the execution of child rapists (if Obama's position were adopted, it would be the first time since the 60s that criminals have been put to death for crimes that don't include murder) and his campaign flipped its position on the constitutionality of the DC handgun ban (were they once said Obama believed the ban unconstitutional, now they say he has no position on it). As it happens, I actually don't have a position on the constitutionality of the DC gun ban, don't much care about Obamas position on it. He's going to get hit for opportunism, but this is more the campaign being inartful than illiberal. At the same time, thought it's not hard to see why Obama would want to take a maximally punitive stance against child rapists, he's placing himself on the right of Breyer, Stevens, Ginsberg, Souter, and Kennedy and fighting their attempts to rollback capital punishment. Given the immense problems and injustices that infect capital punishment in this country, it's would really be better if presidential candidates weren't arguing that its purview should be expanded to crimes beyond murder. Child rape is horrendous, but it's actually particularly tricky from a prosecution standpoint, as the evidence is often from unreliable witnesses, pressured children. and decades-old statements, but juries are (rightly!) appalled by the very thought and tend to want to apply the maximum punishment. Meanwhile, the issue here is not whether or not child rape is monstrous, but the expansion of execution as a legal remedy. Obama could have condemned the crime in the strongest terms (As a father, I'd want to personally gut anyone who harmed a child...") but still opposed the constitutionality and wisdom of the state widening the circumstances under which they're willing to take life. The political wisdom of his statement may be obvious, but it's another capitulation to the decades-long, rightward shift of the Court, and that has consequences.
