Executing child-rapists

Constitutional doctrine relating to capital punishment is (in)famously tangled.  That said, one proposition that, I suspect, most who litigate, teach, or write in the area have long thought -- since Coker v. Georgia (1977), anyway -- one could take to the bank is that the death penalty is an unconstitutional punishment for non-homicide crimes.  The New York Times is reporting, though, that the Louisiana Supreme Court has "upheld the death sentence of a man convicted of raping an 8-year-old girl.  Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing."

It is quite likely that the Supreme Court will review the Louisiana court's decision.  In Coker, the Justices ruled that the death penalty for "the rape of an adult woman" is "grossly disproportionate and excessive punishment" and "therefore forbidden by the Eighth Amendment as cruel and unusual punishment."  Can the same be said -- should the same be said -- of the death penalty for the rape of a child?

Put aside, for now, the Court's caselaw.  And assume, for the sake of argument, that capital punishment is, as a categorical matter, neither unjustifiable nor unconstitutional.  Is there something about the capital sanction that makes it, always and everywhere, an inappropriate or unjustifiable response to child-rape (but not to, say, the non-triggerman accomplice in a homicide case)?  If so, what is that something?  Is there anything other than (in Chief Justice Burger's words) "primitive simplicity" on the side of the argument that the death penalty is always and necessarily an excessive penalty for rape?

Coming at the question another way, is there any reason to think that capital punishment for child-rape is less likely to yield deterrence benefits than capital punishment for homicide?  It could be, in fact, that the availability of the death penalty more effectively deters child rape than it does murder and so is more justifiable in the child-rape context than in the homicide context.  And, what of Chief Justice Burger's contention, dissenting in Coker, that "[i]t is not . . . irrational . . . for a legislature to make the penalty more severe than the criminal act it punishes in the hope that it [will] deter wrongdoing."

Stay tuned . . .. 

Comments

[cfw]

If this is ok, why not death for child molesting of the sort engaged in by Mr. Klaudt in North Dakota?

Why not death for aggravated insider trading (Nacchio is up for life)?

Why not stone to death for dating outside the faith? There must be at least 4 cultural groups that support that, and it seems to be getting more popular.

Punishment inflation needs to be controlled. It is costly in the extreme to confine for the numbers of years bandied around these days.

For crimes with 8-10 year sentences in the past (such as child molestations), the debate is now more like 20 to 40 years or life.

Drug issues are inflating sentences, I suspect.

In the punishment context, I think it is not offensive to compare other countries and US from the past to US now.

The opinion writer talks about "capitalizing" certain crimes. Why not say it clearly - with words like "kill" or at least "death"? The opinion writer makes it look like he is talking about investments. Shame on his blood-thirsty soul.

How is this helpful for the poor 8 year old who gets haunted by this case for 20 years, while it winds its way through the courts?

Who was imposing death for non-death in or around 1787 in the US?

I would rather see creative ways of financing the victims (compensating them with government money if necessary) as opposed to putting billions more into the prison system.

CA now spends more on its prison system than on higher education.

Other than that, I like DP for child rape fine. Death does not turn back the clock - if it did, I cold say yes to death for child rape. But we have no time machine, so we need to do something more sophisticated.

[C.]

One of the consistent complaints about the death penalty in murder cases is the demonstrated risk of executing an innocent man or woman. Is that same risk aggravated or minimized by child rape cases? Given that rape is a crime that requires physical contact, one could probably expect that in severe rape cases there is much more convincing physical evidence of the crime available than occurs in a murder case. On the other hand, the commonly held disgust at child rape seems like a strong societal bias that would lead juries to more likely convict defendants and seek the most severe punishments possible.

I think that it is worthwhile to consider how Megan's Law demonstrates society's view of sex crimes toward children. We generally don't have public databases available that allow one to see what former murderers are lurking in the neighborhood, but we can easily see in many states what child sex offenders live nearby. Therefore, with child sex crimes we have a high concern over recidivism that is not carried to the same level with murder or other crimes. One might even argue that Megan's Law demonstrates a societal view that perpetrators of child sex crimes are incurable. This all would seem to demonstrate that the risk of a biased jury is quite high, but also that society may be much more morally in favor of the death penalty for child rape than it would be for murder.

[Political Umpire]

If the death penalty were a deterrent, then in countries where the death penalty has been abolished, the murder rate would rise dramatically. There is no evidence of that, hence the deterrent aspect is invalid. America's murder rate compared with countries culturally and economically similar also suggests that the death penalty has no significant deterrence effect (for example Canada, Australia, the United Kingdom, New Zealand).

One can readily see the reasons for this. Murderers in particular are often fundamentally irrational - desperate crack dependents, psychopathic delusionals such as several well-known serial killers, jilted husbands, and so forth. And the key to deterrence is not the scale of future punishment (though there has to be a threat of some punishment), but rather the _threat of being caught_.

From a pure economic point of view having prisoners on death row is in fact more expensive (extra security & facilities, more appeals) than life imprisonment so it would make sense to keep them in "normal" prison.

There is of course a practical problem in that the death penalty presumes there will never be a wrongful conviction; these, however, can and do occur and obviously a dead person cannot be released and compensated.

I don't believe that the state should take someone's life, even by apparently humane methods. It would be stooping to the murderer's level. A civilised society doesn't deal with people in an uncivilised way, however deserving they might be. A self-inflicted middle class drug addict or gambler isn't left to starve, however much he might have brought on his own problems. And a murderer isn't killed in turn just because he has broken the ultimate of society's taboos.

Finally, I think it is a cop-out. As we have seen, some religious types think it is perfectly acceptable to kill themselves in certain circumstances. Far better to let them rot in jail.

All of these points apply just as strongly in the case of a child rapist, if not more so. What is a 'child'? Just defined by age or with regard to the stage of development of the particular victim? Inclusive of educationally subnormal people? There are many non-fatal crimes which one's imagine could conjure up that are just as offensive as child rape - prolonged detention and sadistic rape of an adult, for example and so any attempt to justify child rape as a special category of non-lethal crimes is bound to fail.

[Roach]

I do think it interesting that we assume "evolving standards of decency" means that we must make our criminal punishments more and more lenient over time. One of the legal developments of the last 30 years is a greater recognition of the rights of children to bodily integrity. This is why we have better developed child protection services, criminalization of child pornography, and increased penalties and monitoring of child sex offenders. This is an undeniable trend in America's social and moral life. So, if this is the case, why can't those evolving standards of decency embrace harsher punishment for sex crimes against children, crimes which do undeniable mental and physical harm, just as we may recognize that the death penalty for something like robbery or consenual sodomy is no longer appropriate.

To the extent the Eighth Amendment demands the Court take recognition of various evolving trends, the trend towards harsher punishment of child sex crimes and the treatment of such offenders as uniquely evil is one that the Court should take cognizance of.

I thought the libs were in favor of a "Living Constitution." I suppose that only goes when Tookie Williams and partial birth abortionists are involved.

[penalpolis]

Compliments for this legal blog! I am an italian legal blogger (criminal law):
www.penalpolis.splinder.com

[Political Umpire]

Roach asks:

" why can't those evolving standards of decency embrace harsher punishment for sex crimes against children, crimes which do undeniable mental and physical harm,"

Because the death penalty as opposed to imprisonment does not do anything to protect children. Nor does it operate as a deterrent.

[Roach]

Did I miss a meeting where criminal *punishment* was only acceptable if it protects victims or deters criminals? I thought it was also supposed to be a form of retributive justice that imposed pain and hurt and discomfort and all the rest on perpetrators to rebalance the scales, show society's seriousness towards offenders, express community outrage, create disincentives for private revenge and enforcement, etc. No doubt, it's also a good thing if it protects victims and deters offenders, but I don't think anywhere other than in the liberal imagination are these things the sine qua non of whether a particular punishment regime is warranted.

Further, as for deterrence, we live in a world where the death penalty is rare and woefully prolonged from the date of the offense. Imagine a world where 75% or more of murderers were hanged within months of their conviction. Might this have an impact on crime? Can't know unless we try, but judging by murder rates and hanging rates in years past, it suggests as much. We can't take this broken down system made up by the union of ordinary punishment and the machinations of the Warren Court and then blame it for its ultimately modest and probably unmeasurable impact on crime in comparison to life imprisonment. That all said, I don't think the death penalty's justification should rise and fall based on whether a social scientist tells us it deters crime or not for individuals and groups. We know, if nothing else, the criminal in question who is executed won't hurt anyone ever again.

[Political umpire]

If you read my first post you will see a lot more arguments than simply protection/deterrence.

"We know, if nothing else, the criminal in question who is executed won't hurt anyone ever again."

Nor will Timothy Evans, one of the last people to be hanged in the UK - wrongly convicted, as it turned out. In New Zealand a very famous case of a person convicted of five murders has just won a retrial after 13 years - in the US he'd already be dead.

[Bukama]

From the standpoint of retributive justice, I think the death penalty for child rapists is defensible. Child rapists are often targeted in prison by the other denizens who often are the victims of such abuse in their own life, so the administration of a painless death may not be that great a leap.

From the standpoint of deterence, I see two arguments. As pointed out above, the death penalty may not be a particularly effective deterrent because many murderers are not rational or act in the heat of pasion. Is this equally true of child rapists? On the other hand, a child rapist, if he is rational, seeing that death is the penalty for the rape, might actually be encouraged to kill his victim if the penalty is the same (thereby eliminating a witness without exposing himself to any greater possible punishment).

In Colorado this week, a burgler will be put to death for killing his cellmate. He killed his cellmate, by his own admission, because his cellmate kept quiting chess games to avoid losing. The existence of this level of depravity convinces me that the death penalty must be available if only for retributive justice for individuals who have demonstrated the capacity for such evil. Whether Louisiana will apply such punishment to child rapists should be up to Louisianians to decide, and should not violate the federal constitution.

[Roach]

Political umpire, that's all fine and good, but there is something on the other side of the equation: all the people released murderers and released child rapists kill, such as Jessica Lunsford in FL murdered by a registered sex offender. So if there are costs on both sides of the ledger, you don't exactly prove your case by pointing to one example on the other side. I have no doubt innocent people are doing 5, 10, 40, and life sentences right now. Does that mean we shouldn't have prisons?

I suppose you could say those things are revocable, and this is true in theory, but they're not really. Hardly anyone gets released from jail for any reason, particularly in what are perceived to be low stakes settings such as incarceration.

If there is a net saving of life from a generous use of the death penalty, then that should matter quite a bit in terms of whether we're in favor or against it, particularly in this age of DNA evidence.

[Garth]

Assuming, as the author of this article requests, that we assume the death penalty is justifiable and constitutional, you've already given the game away.

We have punishment to;

deter future crime.
punish the offender.
give the victims what justice is possible.

If capital punishment is acceptable for murder, why not child rape?

Both are heinous crimes. In fact, it is easy to imagine scenarios in which child rape may be more heinous than murder!

The problem, of course, is that capital punishment is unjustifiable.

Murder is murder.

[Roach]

Slavery is slavery too. And kidnapping is kidnapping. But hard labor and arrests for criminals are perfectly justifiable. It matters quite a bit who is doing something and why before we can say it is wrong.

[Phil]

"Is there something about the capital sanction that makes it, always and everywhere, an inappropriate or unjustifiable response to child-rape (but not to, say, the non-triggerman accomplice in a homicide case)?"

No.

There are any number of problems with the death penalty, many of which trouble me deeply, but if the Supremes upheld the application of the death penalty to child-rapists in the State of Louisiana, the list of things troubling me would not be lengthened or rearranged. If anything -- systemic and philosophical problems well to one side -- a capital sanction seems entirely appropriate for such cold and depraved predation.

[Political Umpire]

Roach, indeed there are examples of released offenders going on to commit crimes but the answer is surely not to kill them but to keep them incacerated. It sounds as though the Parole Boards concerned need a shake-up, and prisons could look at what they are doing by way of reform rather than just incaceration. Otherwise we will be executing a lot more people.

"Hardly anyone gets released from jail for any reason, particularly in what are perceived to be low stakes settings such as incarceration."

You have argued that too many get released and go on to become repeat offenders, next you suggest hardly anyone gets released. It is true not many get released from jail from being found not guilty after all, but that's because most people in jail are in fact guilty - and it would be a disaster if that were not so. But there are innocent people who do get released eventually, and I'm not attracted by utilitarian calculations that it would be ok to sacrifice them in favour of an unknown number of innocent victims that executed murderers might otherwise have reoffended against.

On the empirical side of things, as I pointed out, countries similiar economically and socially to the US, but which lack the death penalty (and, within the US, the states which don't have the death penalty) do not have significantly higher crime rates than the states with the death penalty, indeed many are lower. And those states and countries that have abolished the death penalty have not seen a sudden increase in crime. Therefore, the idea that people are being protected by it lacks evidential support.

[Ed the Roman]

Overlooked is that executions in the US have historically been a leading contrary indicator for the murder rate.

And vice versa, actually. More murders has historically led to more executions, which were followed by fewer murders.

The 30s had LOTS of executions, and less murder than we have now. Much, much less, if you consider the number of incidents that are now considered merely attempted murder or assault because EMS has advanced so far in 75 years, and the victim didn't die.

[Mark Andrews]

What if your 8 year old child were raped? What is an appropriate reaction or range of reactions to being assaulted?

Or, more to the point, what if you were the 8 year old in question. Retributive justice, where, for heaven's sake, do you begin returning the innocence taken from a child in an act like this?

The law focuses on principal to avoid being swayed by emotion. I find the lack of emotion here startling.

There is a minority interpretation of some fairy tales - I'm thinking of "Little Red Riding Hood" - that holds they were a euphemistic way of telling children about how dangerous a place the world can be, and what awaits those who prey on children.

I follow Pope John Paul II's teaching about the death penalty, that, while the state has an actual right to impose the death penalty, surely there is a more Christian approach to judgment, punishment, and justice than a state-sanctioned death. Since I'm against the death penalty, I can't agree with killing even a child rapist.

I can agree with putting this ill-socialized, sick excuse for a human being in prison for life.

[Garth]

its been noted that most child molestors have, in fact been molested themselves.

its sad.

but killing them only adds to the sadness.

you will never be able to convincingly state that murder is wrong if you allow the state to murder.

whether its for deterrence, punishment or justice.

[Political umpire]

1930s America bears very little relation to that of the present day. More relevant would be the statistics for states with the death penalty v states without, and even then you would have to take into account crime statistics relating to non-death penalty offences. You might find that burglaries, rape etc in the 1930s were much lower as well, though they didn't attract the death penalty then or now. Similarly, states with more murders, irrespective of the death penalty, might also have many more less serious crimes as well.

[Clarence]

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

______________________

Hmmm. Seems pretty clear the death penalty is blaringly constitutional. Don't give me can't-see-the-forest responses. Period.

[gloria]

so... child rapist should be given the death penalty?? AGREE or DISAGREE??

if you agree, why?
if you disagree, why?

[nlebourgeois]

Rape of a child is the best reason I can think of for the death penalty. If a child is raped and DNA proves who the rapist was he should be put to death immediately period.