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January 17, 2008

Debating the policy arguments around capital child rape

The upcoming issue of the National Law Journal has this commentary by Vivian Berger, headlined "The Death Penalty — Unwise for Child Rape."  Though the title of the piece suggests it concerns policy arguments, nearly the entire piece is focused on arguments in the Kennedy case surrounding the constitutionality of capital child rape.  That said, the commentary ends with this paragraph:

Finally, even if constitutional — and despite the heinous nature of the crime — statutes like Louisiana's represent bad social policy.  Child rape is generally committed by close family members or friends.  By raising the stakes to life or death, such laws will likely augment the existing problem of underreporting.  Moreover, protracted capital proceedings will worsen the youthful witness's trauma.  For these reasons, even death penalty advocates should resist it in this context.

I have seen these arguments before, but I am eager to explore them with a bit more sophistication.

First, as for the underreporting claim, I share the instinct that making child rape a capital offense could augment the existing problem of underreporting.  But do we know this is true?  Isn't it possible that all the attention that the Kennedy case is bringing to the issue of child rape might actually lead to increased reporting of this terrible crime.  Notably, this research article discussing the underreporting of violent crimes against juveniles urges authorities to take "steps to emphasize the criminal seriousness of such offenses."  What emphasizes the seriousness of an offense more than making it potentially subject to the death penalty?

Second, as to the concern for "youthful witness's trauma," this assumes that most capital child rape charges will go to trial.  But I suspect that the majority of capital child rape indictments, just like the majority of capital homicide indictments, will lead to a plea deal to a lesser charge and thereby avoid the need for protracted capital proceedings.   As I have suggested in a number of prior posts (see here and here and here), the biggest impact of having the death penalty may be its impact on prosecutorial charging and plea bargaining practices.

I make these points not in an effort to make an affirmative case for capital child rape, but just to reiterate my concern that many policy arguments made against capital child rape tend to be based on supposition and assumptions, rather than on hard evidence.

January 17, 2008 at 03:42 PM | Permalink

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» Berman on the Death Penalty for Child Rape from Sex Crimes
At Sentencing Law Policy, Doug Berman has some interesting arguments about making child rape a capital offense. He was replying to a National Law Journal article by Vivian Berger on the Kennedy case (which I recommend checking out). I've disagreed [Read More]

Tracked on Jan 17, 2008 8:57:37 PM

Comments

I wonder if the absolute brutality visited upon so-called "baby rapers" in prison acts as an incentive to killing the child rape victim. If so, yet another reason for prison authorities to deal with violence in prison.

My guess is that the less than certain capital consequences would be lower on the concerns of a "baby raper" than the brutality that the baby raper will almost certainly endure.

Posted by: federalist | Jan 17, 2008 4:09:39 PM

When rape of a woman was considered by the Court, I recollect that the amicus briefs for women's groups, opposing capital punishment, pointed out the incentive the law would give for the criminal to kill the rape victim. What about that? Seems an even more likely result here -- easier to commit the murder, etc. Hardly a desirable result.

Posted by: David in NY | Jan 17, 2008 4:41:22 PM

But, David, don't most folks dispute that the death penalty deters by saying people who commit terrible crimes do not engage in cost-benefit analysis? Moreover, as I have noted before, 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.

Posted by: Doug B. | Jan 17, 2008 4:45:14 PM

"But, David, don't most folks dispute that the death penalty deters by saying people who commit terrible crimes do not engage in cost-benefit analysis?"

Most? Some people say that, to be sure, but "most"? Where is your sample drawn from? The Politically Correct halls of academe?

"Cost-benefit analysis," in a basic sense and not in the sense of a sophisticated mathematical calculation, is something nearly everybody does every day. We decide to do or not do actions based on the upside and downside of doing them. It does not require a high level of cognitive functioning. People generally respond to incentives. That is the basis of much of psychology and all of economics. Anyone who wants to claim that crime is different from everything else we know about human behavior has a heavy burden of proof.

There is nothing irrational about a rapist believing he has a better chance of beating the rap if he kills the child. A body buried far out in the woods where it will not be found for a long time, if ever, may rationally be considered less dangerous to the perpetrator than a living child pointing the finger and saying, "He did it!"

Posted by: Kent Scheidegger | Jan 17, 2008 5:17:11 PM

IMO the death penalty is wrong for ANY human, why, because God said it was wrong. Also, if we must keep the death penalty, which I disagree with, it should be reserved for murderers only.

If we extend it here, who will be given the death penalty next. What about a 8 year old raping another child? Are you going to kill that child?

They should be punished, don't get me wrong, but not put to death.

Posted by: ZMan | Jan 17, 2008 5:22:09 PM

David writes:

When rape of a woman was considered by the Court, I recollect that the amicus briefs for women's groups, opposing capital punishment, pointed out the incentive the law would give for the criminal to kill the rape victim. What about that?

The unassailable "someone else said it" argument is probably not what Prof. Berman's after here.

Posted by: anonymous | Jan 17, 2008 7:28:23 PM

Doug wrote: "I make these points not in an effort to make an affirmative case for capital child rape, but just to reiterate my concern that many policy arguments made against capital child rape tend to be based on supposition and assumptions, rather than on hard evidence."

You mean just like all the deterrence studies you tout here?

Doug wrote: "As I have suggested in a number of prior posts (see here and here and here), the biggest impact of having the death penalty may be its impact on prosecutorial charging and plea bargaining practices."

And why should those practices be encouraged? So more innocent poor people can plead guilty to avoid the threat of being killed by an anonymous state executioner? Law is law. It's only meant to be coercive prospectively. If you are proved to have broken a law, you pay the stated penalty. If you are alleged to have broken a law, why should we allow an authority to coerce you into confessing to it (wrongly or rightly) by threatening to kill you if you don't?

To restore sanity to our criminal justice system, the death penalty must be abolished. This is pretty elementary, and that there are lawyers (let alone professors) who don't get it means we set the bar way too low to obtain JDs.

Posted by: DK | Jan 17, 2008 10:14:59 PM

I don't think the incentive to murder the victim makes much sense given the fact that most of these crimes involve family members. The real issue for me is our recent past (1980s day care sex scandals) where innocent people were convicted of child rape based upon the most flimsy evidence. Plus, while child rape is obviously morally repugnant, the often made argument that the victim will invariably suffer lifelong psychological damage just doesn't stand-up to the empirical evidence (despite even bone in my body saying it should).

Posted by: Steve | Jan 17, 2008 11:42:33 PM

To restore sanity to our criminal justice system, the death penalty must be abolished. This is pretty elementary, and that there are lawyers (let alone professors) who don't get it means we set the bar way too low to obtain JDs.

And now the "people who disagree with me are so obviously stupid that I can't be bothered to make an argument" argument. That's probably not the answer to the question either.

In response to your quasi-substantive point, Prof. Berman used the word "impact," not "value." I didn't see him say that the death penalty should be used to coerce people into guilty pleas. Rather, I understand the comment to mean that if we're going to determine whether the death penalty is good policy, we should give some serious thought to what its effects actually are instead of assuming that the only effects it has are: (1) marginally deterring people from committing certain crimes at all, and (2) marginally inducing people who commit certain crimes to take the further step of killing witnesses.

It's a provocative question, but I'm surprised that people are unable to have a rational discussion on even a narrowly focused aspect of the death penalty.

Posted by: anonymous | Jan 18, 2008 1:45:32 AM

Don't forget the fact that a number of child rape prosecutions and convictions are of very questionable validity. Also, there is a great deal of sloppy lawyering in general. Beyond the moral issues related to the death penalty, these two facts should be enough to justify taking a position against the DP for child rape convictions.

Posted by: Tim Holloway | Jan 18, 2008 7:53:32 AM

Doug, you ask, "Isn't it possible that all the attention that the Kennedy case is bringing to the issue of child rape might actually lead to increased reporting of this terrible crime"?

No, it is not, and you should know better! Who do you think pays attention to SCOTUS cases besides lawyers? I dare you to leave the ivory tower, walk down the street to the nearest bar - perhaps this Sunday during a playoff football game - and survey the people there on their opinion of the Kennedy case. I doubt anyone has even heard of it, so where's "all the attention"?

On your second point, you tell us the biggest impact will be on charging and pleas but don't say what you think that impact is or whether it's positive or negative. Mr. Holloway's point about the "questionable validity" of many child rape allegations is quite accurate (look how many of the DNA exonerations have been those types of cases), and on its face argues against enhancing prosecutors' ability to force pleas by threatening execution. So yes, that is probably the biggest "impact," but it is detrimental to the interests of justice.

Posted by: Gritsforbreakfast | Jan 18, 2008 9:16:49 AM

Somehow I doubt that death will be sought all that often in these types of cases. The scenario where the uncle is molesting the nieces just isn't going to get death on an often enough basis to justify a prosecutor seeking the death penalty. Perhaps, I am wrong and that prosecutors will use it so that they can coerce guilty pleas, but I doubt that would be a widespread problem.

If we are going to have the death penalty for child rape, Kennedy's case is probably one of the least bad ones. Situations where mothers sell their young kids to johns or the manufacturing of kiddie porn for mass distribution would seem to be situations where death can be justified.

People here make valid points about overzealous prosecutions. Janet Reno is an examplar of an out-of-control prosecutor. Given that the Supreme Court has stated that the likelihood of a false positive is a factor in whether death is a cruel and unusual punishment (in Atkins), the concern about false positives is germane to this debate. Of course, the Supreme Court was flat-out wrong to do so, but they get to be wrong.

Posted by: federalist | Jan 18, 2008 3:45:32 PM

Steve and Tim have the same worry I do. It doesn't take much to convict a person of rape/child rape. All they need is the 'victim' to point a finger and thats it, case closed. Combine that with public hysteria and you have a full fledge sequel to the Spanish Inquisition.

Posted by: Mark | Jan 18, 2008 11:28:09 PM

anonymous wrote: "And now the 'people who disagree with me are so obviously stupid that I can't be bothered to make an argument' argument. That's probably not the answer to the question either."

Oh, snark. That proves your point. In reality, it does answer the question. Do scientists who won't deign to debate creationists also not answer any questions for you as to what to believe about evolution? Would I debate a plantation owner about the propriety of owning slaves? A Nazi about the propriety of killing Jews? To do so only gives credence to the notion that there is a legitimate debate to be had about the subject of discussion. Nonetheless, I admit to sometimes giving in to temptation, hence the "quasi-substance."

anonymous wrote: "In response to your quasi-substantive point, Prof. Berman used the word 'impact,' not 'value.' I didn't see him say that the death penalty should be used to coerce people into guilty pleas. Rather, I understand the comment to mean that if we're going to determine whether the death penalty is good policy, we should give some serious thought to what its effects actually are instead of assuming that the only effects it has are: (1) marginally deterring people from committing certain crimes at all, and (2) marginally inducing people who commit certain crimes to take the further step of killing witnesses."

You take me for someone much more naive than I am. Maybe if you had read the good Professor's posts to which he expressly linked, you would have noticed that one of them is entitled, "Another example of the death penalty as an effective plea bargaining tool." But you didn't bother. The death penalty--or its "effectiveness" as a plea bargaining tool--is not subject to debate among rational and educated people. And you didn't at all address my "quasi-substantive point." You just made your own entirely insubstantial one.

Posted by: DK | Jan 19, 2008 4:25:41 AM

There has been a great deal of skepticism regarding past child abuse cases. A professor at the University of Michigan has done a great deal of work regarding the susceptibility of children to suggestion, the memory of children and related problems with some of these cases. Google his name, "Melvin Guyer." For instance, that Google search produced a number of matters including the the following which provides an example of the problems with some of these prosecutions. http://csicop.org/list/listarchive/msg00337.html

Posted by: Tim Holloway | Jan 19, 2008 7:05:55 AM

Oh yes, DK, the death penalty is so obviously wrong, like Nazis killing Jews. You're a twit.

Posted by: federalist | Jan 20, 2008 10:43:03 AM

Deterrence can mean different things. Most people agree that, at least in theory, criminal, punishments can deter crimes. Most people also agree that more severe crimes require more severe punishments as part of this deterrence. The necessary result from that theory is that if an additional crime has no additional punishment, there will be no disincentive to commit additional crimes. Of course, being economic based theories, they depend upon assuming that a criminal defendant is a rational person.

Saying that because criminals are irrational, deterrence based on severity of punishment does not work is not a challenge to the theory of punishment, but instead is a real world argument. It is saying that while in theory, the death penalty might deter someone committing a murder, in the real world it doesn't because murderers are either 1) irrational 2) rationally willing to die (most obviously, this is the case with any sort of politically motivated suicide attack, which means that terrorism is probably the crime least likely to be deterred by the death penalty) or 3) believe that they will not be caught and convicted (which could actually be the same thing as irrational). However, this real world argument is not aimed at the notion that if there are no additional consequences for committing an additional crime, there will be no deterrence against committing the additional crime. While its true that the irrational will not be encouraged to commit more crimes, they were not deterred by the punishment of the first crime, so deterrence has already been eliminated as influencing their behavior. Thus, it is only the people who are more rational (those who know the penalty and are willing to take the risk or those who think they can get away with it) who are going to respond to the motivation - and being more rational people, they are going to see that there is no additional consequence for the additional crime, there might be a benefit for the crime. No rational person should see creating a benefit (or even a potential or preceived benefit) with no additional risk for committing a crime as being a good thing.

Of course, rational people can argue whether death provides any more disincentive for murders than life without parole or a long fixed sentence. That is as much a values judgment as much as anything - my guess (and its only a guess) is that anyone who truly values freedom would find life in prison more intolerable than (or at least as intolerable as) death and thus would argue that the death penalty provides no deterrence beyond that provided by LWOP. Those who value security more, probably would find death more intolerable than life in prison and thus, would argue that death does provide an additional disincentive.

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Posted by: David | May 18, 2008 9:47:16 PM

I agree with federalist on his comments regarding deterrence, or criminal punishments, and the lack of a disincentive to committ crimes. Criminals committ crimes and then get a slap on the wrist or probation. Criminals have no incentive to not commit their crime again and again.

In my opinion, the general public needs to be a little less naive and stop thinking "the government will protect me" and take some measures to protect themselves from crime.

I'm not suggesting some vigilante group or citizen militia, but something much more simple like carrying pepper spray, a stun gun, Taser or personal alarm.

A criminal that gets zapped with a Taser or pepper spray in the face will certainly think twice about committing that same crime a second time. The criminal starts to wonder, "What if the next guy is prepared like the last guy was?"

Posted by: Steve Lane | Oct 7, 2008 6:15:22 PM

I agree with Kent. I don't think a life should be taken on any occasion. God said don't do it. It doesn't matter if it is done by the government or by someone on the streets. Taking a life is taking a life. As a society we need to concentrate less on the punishment and more on the prevention of child rape through child safety courses and the education to the public of child safety products.

Posted by: Donald the child safety guy | Aug 17, 2010 1:46:33 PM

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