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April 11, 2007

Could there be symbolic and practical value in making repeat child rape a capital offense?

As discussed here and here, the "hot new thing" in death penalty legislation is to make some forms of child rape a death penalty offense.  This local article discusses an Alabama bill in the works and also provides useful background on these issues:

HB335 focuses on sexual attacks on children under 12, sexual torture of children under 16 or sexual attacks on anyone incapable of giving consent.  Those crimes would be capital offenses if the defendant already has been convicted of rape, sodomy, sexual torture or sexual abuse in the first or second degree.  The punishment in those cases would be life without parole or death by lethal injection....

Louisiana, Florida, South Carolina, Montana and Oklahoma already allow the death penalty in some cases of non-fatal child molestation.  Texas and Utah are considering similar laws.  Louisiana inmate Patrick Kennedy is the only person on Death Row nationally for a non-fatal child molestation, said Richard Dieter, executive director of the Death Penalty Information Center in Washington.

Unsurprisingly, folks who categorically oppose the death penalty are categorically against these laws, and there are serious constitutional questions in light of the Supreme Court's declaration 30 years ago in Coker that the death penalty for adult rape violates the Eighth Amendment.  But, because we are discussing these laws in my death penalty class this week (details here), I have been giving more and more thought to some of the potential values of these new laws.  Here are some initial ruminations:

1.  Symbolic value:  As regular readers know, almost no murderers get executed outside Texas anymore, and so the odds that many (or even any) repeat child rapists will be executed seems small.  But what seems potentially large is the symbolic (and psychic?) benefits that legislators, victims, and general citizens might draw from making the symbolic statement that some cases of repeat child rape can be as horrible as some murders.  (I mean here to suggest a value that is beyond the (possible? unlikely?) tangible deterrence benefits that might come from being able to tell first-time child rapists that their next offense could lead to a death sentence).

2.  Practical value:  Especially because few death sentences lead to executions and even fewer capital indictments lead to a death sentence, I have long believed the real practical consequence of the death penalty is to induce pleas and cooperation.  (I am not saying this is the primary or even a proper reason for having the death penalty, but I think it is accurate to say that the Green River Killer and the Unibomber and many others have been been brought to justice more easily because of the threat of the death penalty.)  Because child rape cases can be notorious hard to prosecute sometimes, perhaps the possibility of a death sentence for repeat child rapists could have a real practical benefit in inducing valuable pleas and cooperation.

As suggested above, these are just ruminations.  But I would be interested in reactions (particularly from folks not categorically opposed to the death penalty).

UPDATE:  In addition to a lot of great comments already, Corey Yung at Sex Crimes weighs in here.  Notably, Corey (and federalist in the comments) asserts that these statutes "increase the risks that victims will be killed."  I hear that claim a lot, but do not quite understand it.  Do we think that the death penalty for certain felony-murder killings increases the chances that witnesses who see the robbery will be killed.  Also, as Crunk highlights, any truly "rational" child rapist must know he has a much better chance of escaping conviction altogether on a child rape charge than of escaping a rape+murder charge.  Further, all of these statutes would no doubt have killing (or even harming) the victim as an aggravator at the punishment stage. 

I have never seen any empirical support for the notion that these statutes increase the instances of killing the victim.  (Someone should be able to study this, since the Louisiana child rape statute's been operational for more than a decade.)  Until I see some support for this "kill the victim" assertion, I am suspect of this argument against these statutes.

April 11, 2007 at 01:58 PM | Permalink

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» The Death Penalty for Child Rape Revisited from Sex Crimes
I 've blogged about this issue a few times before and made my views pretty clear that I think making child rape a capital crime is a pretty bad idea. At Sentencing Law Policy, Professor Berman floats two possible ideas [Read More]

Tracked on Apr 11, 2007 3:07:52 PM

Comments

The Texas version of Jessica's Law doesn't require rape. Fondling of the breasts on two "seperate" occasions can be the basis for the death penalty.

Even under a view of Coker that focuses on "rape of an adult woman" the Texas statute is unconstitutional.

Posted by: rothmatisseko | Apr 11, 2007 2:10:13 PM

A couple of things:

1) This incentivizes the killing of children--no witnesses. Also, it may make families reluctant to dime out uncle so and so. But . . . . . the knowing penetration of young children is a crime where death is appropriate. In any event, we shouldn't set up our criminal punishment scheme to incentivize the killing of victims.

2) I've often wondered why these people kill the kids so often. One would think that pedophilia and violence may not be linked necessarily. Perhaps, the goings-on in the joint with respect to child molesters convince them that the killing the kid is a good idea given what these guys face in prison.

There is symbolic value here. No doubt. But i don't think that it's a good idea

Posted by: federalist | Apr 11, 2007 2:11:34 PM

You believe that because there are so few executions outside of Texas that these laws will be mostly symbolic and practical only in the sense of inducing please, but judging by the extreme outrage over certain repeat child rape and molestation cases I wonder if it will become easier to obtain an execution of a defendant who raped a five year old rather than for one who killed someone? I just wonder if there are others who might believe that a child rapist would get executed quicker than a murder case? Not that I believe this would be a bad thing.

Posted by: Crunk | Apr 11, 2007 2:15:42 PM

quick thought to federalist

Would it really incentivize killing the child?

My point is this, any child molester willing to think this through enough to come to the "logical" conclusion to kill the witness might also go the extra step and think that a dead child will be investigated instantly (and much more vigorously) than a molestation that might never come out.

Posted by: Crunk | Apr 11, 2007 2:28:32 PM

Prof B -- I'd agree that these types of laws would be a tremendous "symbolic" victory for proponents, but I'd also see a huge downside for the proponents. If these laws are found constitutional, that throws the timetable into magical death penalty land where no date is every really "set." We see all the time about how horrible it is for the families of victims when executions are stayed last minute. How much more horrible would that be if the crime victim himself/herself has to endure that?

I think there are legitimate arguments that child victims are different -- doubt these pass constitutional muster though -- but would be favor of the Buckeye state drafting a law like this as well.

Posted by: LonesomeClerk | Apr 11, 2007 2:59:34 PM

From the post: "Because child rape cases can be notorious hard to prosecute sometimes, perhaps the possibility of a death sentence for repeat child rapists could have a real practical benefit in inducing valuable pleas and cooperation."

If some child rape cases are difficult to prosecute, then presumably capital defenders on those cases will be aware of this and less likely to urge their clients to accept a plea. Admittedly, a sure shot at life looks great when compared to a possible death sentence, even if the risk of death is small. But the "encouragement to plea" rational, though a perfectly legitimate one, works better when the crime is easy to prosecute, not harder. As such, if someone wants to use that rational to justify the death penalty for repeat child rapists, then the new death penalty laws should be accompanied with changes in evidentiary laws (or any other area making it more difficult to prosecute the crimes). The problem with changing these other laws is that I think those changes would reduce the accuracy of trials, an outcome unacceptable to me even if the "encouragement to plea" rational becomes stronger.

Posted by: Adam | Apr 11, 2007 3:10:25 PM

Adam -- I think you miss the mark in the above post. Yes, the difficulty of prosecuting a crime correlates indirectly with the likelihood of a plea -- increased difficulty, decreased likelihood of a plea. However, here we're talking about the same crime - child rape - with two distinct penalties. Faced with death, the likelihood of a plea is greater. The difficulty in trying the substance of the case hasn't changed - child rape cases are difficult with or without the death penalty component.

Posted by: LonesomeClerk | Apr 11, 2007 3:35:30 PM

The kill-the-victim argument works in the context of crimes where the offender is in control of the victim (as opposed to killing a witness after the fact). The primary instances of this are in the context of rape, child molestation, and kidnapping. In my article on this, I did a very superficial review of empirical evidence concerning rape. The problem is sample sizes. There are so few jurisdictions which have had capital rape statutes for any period of time. There are also a limited number of rape-murders in those jurisdictions. Measuring small increases in that number is hard without more information (controlling for crime increases is hard enough in more robust data sets). Maybe someone with greater empirical analysis skills than I could take a crack at it, but looking at the DOJ numbers, I just didn't have any confidence that there was enough data out there to make a case either way.

However, it was my understanding (and it has been a while since I looked at the evidence) that there was better evidence in the kidnapping context. Kidnapping was a capital crime in some jurisdictions in the pre-Coker era. However, policymakers abandoned the death penalty for kidnapping largely because of the kill-the-victim argument. I believe, but am not sure, that there was better empirical data in those cases. I think that evidence would apply in the child rape case as well.

Ultimately, though, I'm not sure you need great empirical data to make the argument. Because supporters of these laws have universally (as far as I know) justified them on the basis of deterrence, they can't have the argument both ways. If the added degree of punishment for child molestation actually deters, then the marginal deterrence argument that a defendant would kill the victim makes perfect sense in the utilitarian deterrence model. You get to kill the only witness without a perceived increase in punishment.

Posted by: Corey Rayburn Yung | Apr 11, 2007 3:59:27 PM

LonesomeClerk,

I diasagree.

Professor Berman wrote that these cases are notoriously hard to prosecute. This changes things a bit.

If we're talking about ordinary crimes with easy to prove elements, then faced with two distinct penalties, death will produce a greater likelihood of a plea . But here, and I'm going on the original post with nothing more, if the crime is notoriously hard to prosecute, then where does the encouragement to plea come from?

If the difficulty of prosecuting a crime correlates indirectly with the likelihood of a plea, then a crime that is natoriously difficult to prosecute should have a likelihood of a plea approaching 0, regardless of the punishment. Why plea when you can walk free?

The only way to fix this is to make the crime easier to prosecute.

That said, maybe I'm overestimating how difficult it is to prosecute a child rapist.


Posted by: Adam | Apr 11, 2007 4:16:58 PM

Prof. Berman,
In your update you attempt to rebut federalist's point by arguing that the felony-murder rule doesn't increase the likelihood that someone will kill during a robbery. This comparison doesn't work for the reason that with the felony-murder rule, the penalty is increased if a victim is killed. With legislation making child molestation a capital crime, their is no increased penalty if the victim is killed (because death is the ultimate punishment, you can't increase beyond that). With that said, I agree that there are no empirical studies and would be interested in seeing one done.

Posted by: da_2_b | Apr 11, 2007 4:35:14 PM

Prof. Berman,
In your update you attempt to rebut federalist's point by arguing that the felony-murder rule doesn't increase the likelihood that someone will kill during a robbery. This comparison doesn't work for the reason that with the felony-murder rule, the penalty is increased if a victim is killed. With legislation making child molestation a capital crime, their is no increased penalty if the victim is killed (because death is the ultimate punishment, you can't increase beyond that). With that said, I agree that there are no empirical studies and would be interested in seeing one done.

Posted by: da_2_b | Apr 11, 2007 4:35:44 PM

da_2_b is correct--the issue to be concerned with here is marginal deterrence. I believe Judge Posner addresses this squarely in his book Economic Analysis of Law. If a criminal faces the same penalty--death--whether he rapes a child and then kills that child or whether he simply rapes the child, he may be more inclined to go ahead and kill the child. Of course it may be that the risk of getting caught is higher if the child is actually murdered, but the fact that the principal witness to the rape would then be dead seems to be to indicate that there is a lower risk of getting caught if the child rapist simply kills his victim.

Posted by: Law Clerk | Apr 11, 2007 4:47:52 PM

Death for felony murder is a great thing. It incentivizes cohorts to rein in the other cohorts. No one wants to be on the hook for another person's murder.

As for the "incentivizes killing", when you have the same penalty for killing a kid as you do for molesting one, I think it clear that there is an incentive to kill the kid, or, better put, a lack of incentive not to kill the kid. Maybe this is my personal viewpoint, but I think that incentives work in the criminal justice system on a macro level. If we make burglary of a dwelling that is unoccupied at the time a relatively minor offense, but bring down the hammer on burglaries when people are home, criminals will be incentivized not to break into homes when people are there. Also, if you make the punishment draconian (e.g., rape during burglary LWOP, which I support), you will get less of it.

Posted by: federalist | Apr 11, 2007 6:06:48 PM

In states without the death penalty for statutory rape girls sometimes get killed to prevent them from talking. There was at least one case in Connecticut in the 1990s. Here's a "where are they now" roundup from last year, nine years after the crime:
http://www.registercitizen.com/site/news.cfm?newsid=16424938&BRD=1652&PAG=461&dept_id=12530&rfi=6
Note the parts about pleading guilty for a lesser sentence. I think the murder was a capital crime. The rape was not.

I remember a second case around the same time where the men killed a girl after learning she was underage. That could be from reading a different account of the same case.

Posted by: John Carr | Apr 11, 2007 7:02:43 PM

"The “intentional” category is the most varied. It includes sex offenders who kill their victims to avoid detection (probably the largest category of sexual homicides of children). . . ."

Child Molesters Who Abduct: Summary of the Case in Point Series (PDF, p 28)

That does not ensure the murder rate would rise, of course, and intuition says it would not. Most would not even consider murder which is why it is so rare already. However, a surviving child would carry the extra burden of knowing he/she contributed to someone's death and they already too often feel guilty and ashamed. What we need is a nationwide survey of victims to ask them what they want. The majority may or may not be so punitive or may or may not be less likely to report the crime and follow through. Why not ask them?

Posted by: George | Apr 11, 2007 7:21:31 PM

Arguments claiming that this incentivizes the rapist to kill the victim seems to treat the death penalty as being mandatory. As Louisiana and Florida have shown, sentencing child rapists to death is incredibly rare (Patrick Kennedy being the lone death row inmate). If anything, the statutes suggest that there must be something else present for there to be a death sentence. For example, Montana requires both a prior conviction and physical harm for a death sentence. The point here is that if a child rapist wants to almost guarantee himself a death sentence, he should kill the victim or attempt to do so, resulting in physical injury. Short of something extra (Prior conviction, physical harm, extreme youth of victim) the rapist will not be sentenced to death. It is much easier to attack this punishment by bringing the “incentive” argument. The fact is that in light of SCOTUS jurisprudence from the mid-1970’s (See Woodson v North Carolina), this argument does not hold up. Let me know.

Posted by: Jordan W | Apr 11, 2007 7:25:52 PM

I still would not only need to see empirical evidence to believe that the law would incentivize murder, but also a rational theory. The theory behind my argument is extremely simple. I understand that the punishment for murdering the child would be the same as for molesting said child. This would seem to indicate that the child molester has nothing to lose by killing the child, and I used to believe this theory. BUT upon further reflection I believe we would miss three main criteria. First is that most people cannot bring themselves to kill a child, even child molesters. Second kidnapping an adult is completely different than molesting a child. And finally is that while the punishment is the same (death penalty) the risk of being caught is not. Some psychiatrists and sociologists estimate that as many as 80% of all molested children say nothing (if not more). That means that at best only 20% of molestations even get investigated. I am pretty sure that 100% of all dead children get investigated. I would be open to any study done, but as has been posted earlier this seems to be highly unlikely because of the samples.

Posted by: Crunk | Apr 11, 2007 10:17:57 PM

I am open to convincing given my view that such crimes merit death.

Some brutal murders of children (i.e., the murder of the 6 year old in Georgia) lay bare the utter illegitimacy of Woodson.

Posted by: federalist | Apr 12, 2007 5:47:51 AM

After giving this some more thought, it is possible that if the murder rate of children is going rise it probably already would be. Why? Recent laws already amount to lifelong public ostracism and even banishment - often from family, friends, employment, even church and everything else the offender holds of value. If someone is inclined to kill this might be enough motive to do so. It is unlikely, though unproven, that the death penalty would deter them. There are some studies on this such as The Vilification of Sex Offenders: Do Laws Targeting Sex Offenders Increase Recidivism and Sexual Violence? (PDF found at Niki Delson's No On Jessica's Law site. Ms Delson is guest blogging at sexcrimes and has some interesting "from the trenches" comments.)

Posted by: George | Apr 12, 2007 4:46:02 PM

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