That’s a wide-angle framing of the question on which the Supreme Court’s set to hear oral argument this morning in the case of
Kennedy v. Louisiana
Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in
Coker v. Georgia
(1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.