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January 15, 2008

Resource page on Kennedy and the opaqueness of child rape statistics

Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana, the case to be heard by SCOTUS later this Term concerning the constitutionality of child rape as a capital offense.  The page got me to thinking about whether there is any good empiricism on the number and type of child rape offenses in the US.  A hasty on-line search led me to these less-than-perfect data sources:

  • This BJS publication, titled "Child Rape Victims, 1992," which provides a data "on the ages of female rape victims" obtained from only 15 States based on reports to police in 1992.
  • This fact sheet on child sexual assault from the Crimes Against Children Research Center.

I raise this data issue because the non-homicide crime which got Patrick Kennedy placed on death row ought to be placed in some broader context.  As I have said this prior post, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Kennedy is one of the very few persons sentenced to death for a non-homicide offense.  This reality is even more troubling if, as I suspect, data reveal that there are ten of thousands of crimes each year similar to the one that got Patrick Kennedy sentenced to death.

January 15, 2008 at 08:13 AM | Permalink

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» The Class of Death Eligible Defendants Under Kennedy Statute from Sex Crimes
Doug Berman is wondering about the sheer number of defendants who would be eligible if the Louisiana statute were implemented nationally:The page got me to thinking about whether there is any good empiricism on the number and type of child [Read More]

Tracked on Jan 15, 2008 2:39:26 PM

Comments

"This reality is even more troubling if, as I suspect, data reveal that there are ten of thousands of crimes each year similar to the one that got Patrick Kennedy sentenced to death."

Not only is that an issue but the simple fact that the crime in another state could only be 5 to 10 years in prison. One state 10 years next state death penalty? Technically, if someone wanted to push it a 18 year old could get the death penalty for having sex with a 15 year old or something to that effect. I know its highly unlikely but anything 'for the children' brings out the worse in people.

Posted by: Mark | Jan 15, 2008 9:40:50 AM

Not only is that an issue but the simple fact that the crime in another state could only be 5 to 10 years in prison. One state 10 years next state death penalty?

Sounds like the problem is with the other state.

Posted by: | Jan 15, 2008 11:16:05 AM

Doug, Mark, this was a vicious crime, an absolutely vicious crime (I don't think I need to recite the details of the physical trauma here.) Now, it is one thing to say that death is not warranted or that the death penalty does not make sense because of the incentive to kill the child-witness, it is quite another to say that executing this person (i.e., something that would have happened in most societies throughout human history) is such a horrible thing. And really, Doug, are you that "troubled". If this guy gets executed, are you really going to lose sleep? Do you really think, deep down, that this is some horrible injustice because the facts of this heinous crime are "not extremely aggravating". I suspect not. The fact is that if and when Patrick Kennedy is dispatched, he will be getting what he deserves, and the world will be a better place without him.

Of course, on policy grounds, I do not support the execution of Patrick Kennedy. If I didn't have that reservation about the incentive to kill the child witness, I would support his execution.

Posted by: federalist | Jan 15, 2008 11:22:02 AM

Also, there's this concept called federalism that allows different states to make different laws and to do different things with their money.

If you've been to more than one state, you might notice disparities in such things as taxes, potholes in the roads, availability of liquor, motor vehicle registration and insurance requirements, etc. Hard to believe, but states are allowed to make their own criminal laws too! Some states take some crimes more seriously than others, and some states have different ideas about how best to punish crimes.

State-to-state disparities in the law are a consequence of having states.

Posted by: | Jan 15, 2008 11:29:34 AM

Now, it is one thing to say that death is not warranted or that the death penalty does not make sense because of the incentive to kill the child-witness, it is quite another to say that executing this person (i.e., something that would have happened in most societies throughout human history) is such a horrible thing. And really, Doug, are you that "troubled". If this guy gets executed, are you really going to lose sleep? Do you really think, deep down, that this is some horrible injustice because the facts of this heinous crime are "not extremely aggravating". I suspect not.

This is silly. Prof. Berman's concern, I suspect, is that although Patrick Kennedy has sentenced to death for child rape, there are tens of thousands of child rapists out there who get much lighter punishments, and it doesn't appear that Kennedy has done anything to show that he's the worst of the worst of all the child rapists out there. Regardless of whether he deserves it (he does), it undermines the legitimacy of the death penalty if the reasons for imposing it instead of imprisonment don't have any logical relation to the accepted goals of punishment.

Do we execute the worst of the worst, or do we merely execute the sufficiently bad who have the bad luck of ending up with a particular combination of defense counsel, prosecutor, judge and jury that happens to result in the death penalty?

Some people may be fine with the dp as long as those who get it deserve it (regardless of what may distinguish those people from those who deserve the dp but don't get it), but executing the worst of the worst is at least preferable.

Posted by: | Jan 15, 2008 11:37:49 AM

Given the Byzantine nature of death penalty "jurisprudence", the a requirement that only the worst of the worst get it would be the death knell for the death penalty. There are lots of really bad people who don't get death. To be "troubled" by the supposed cosmic unfairness of one guy getting death when many others do not is to make a fetish of some idea of fairness. If you don't want to be the one guy who gets executed for raping an eight year old, there is a simple way to avoid it . . . . Criminals are simply not entitled to point to another crime and say "It's not fair". Well, whoever said life was fair.

Posted by: federalist | Jan 15, 2008 1:27:43 PM

If you don't want to be the one guy who gets executed for raping an eight year old, there is a simple way to avoid it . . . . Criminals are simply not entitled to point to another crime and say "It's not fair". Well, whoever said life was fair.

That's a great argument if you're sending a 4-year-old to his room, but no answer to the argument that there should be at least a loose correlation between the "worst of the worst" people who commit a certain crime and and those who get the death penalty for it.

Perhaps the Supreme Court and the habeas bar have fouled it up beyond coherence, so that any aspiration of giving the death penalty to the worst of the worst is futile, but that doesn't mean that no one should be troubled by it.

Posted by: | Jan 15, 2008 1:38:53 PM

Well, an argument that only the "worst of the worst" should be executed is an argument that boils down to one of fairness. And given all the other competing issues, due process, autonomy of juries, autonomy of prosecutors etc. etc., fairness in terms of results seems, necessarily, low on the totem pole.

Don't violently rape 8 year olds, and you won't have to worry about cosmic fairness. And don't be so troubled over outliers. Putting aside the incentives issue, who really cares if we executed a child rapist?

Posted by: federalist | Jan 15, 2008 1:53:32 PM

Don't violently rape 8 year olds, and you won't have to worry about cosmic fairness. And don't be so troubled over outliers. Putting aside the incentives issue, who really cares if we executed a child rapist?

This is beside the point. People who violently rape 8-yr-olds deserve worse that the Eighth Amendment or human rights law allows society to impose.

Well, an argument that only the "worst of the worst" should be executed is an argument that boils down to one of fairness. And given all the other competing issues, due process, autonomy of juries, autonomy of prosecutors etc. etc., fairness in terms of results seems, necessarily, low on the totem pole.

I take it then, that you agree that fairness should have some place in the calculus. For whatever reason, most people think that the incremental step of executing someone rather than giving them lwop is significant, and more so than the incremental step of, say, increasing someone's prison sentence by a year. If you accept this, then there must be some justification not only in the abstract for imposing the dp, but for imposing the dp over life without parole. If the answer is just that the randomness inherent in any complex system will sometimes churn out different results for similarly situated people, then that is probably the best argument I've ever heard for abolishing the death penalty.

Posted by: | Jan 15, 2008 2:35:31 PM

Well, given that we have a jury system, which will produce random results for any number of reasons (one of which, dear to abolitionists' hearts, is the requirement of unanimity), you're asking for the impossible.

There is no moral imperative for equality of outcomes for criminals for reasons that are surpassing obvious. This handwringing over some notion of cosmic fairness is, to be blunt, ridiculous. If you don't like the death penalty, say so, that's fine, but hiding behind some ridiculous fairness objection is merely moral preening and unworthy of serious debate. The "fairness" that the courts have imposed is that the crimes eligible for death must be, from a factual standpoint narrowed in some meaningful way, and after that everyone who commits a death eligible offense gets a pretty good shot at avoiding death. Asking for some consistency in such a regime is well-nigh impossible.

Posted by: federalist | Jan 15, 2008 3:00:55 PM

The Juvenile Justice Bulletin report that the incidence of juvenile sexual assault is down 40%, something that coincides with the larger serious crime trend, suggests that the two trends have a common cause.

Some of the leading theories explaning that trend are (1) greater aggregate incarceration + inpatient mental health treatment, (2) less lead poisoning impacts, and (3) greater abortion rates. All three of those theories, in turn, basically argue that there are fewer crimes because there are fewer criminals in the greater population.

This suggests that children growing up without a father due to incarceration or mere absence may receive benefits as well as harms from that situation. The kinds of fathers who end up absent due to long prison terms are also the kinds of fathers who are at highest risk of victimizing members of their own household.

Posted by: ohwilleke | Jan 16, 2008 1:30:15 AM

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