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March 18, 2010

Oklahoma legislature moving forward with capital child rape bill

As detailed in this article in Tulsa World, an Oklahoma Senate panel "on Wednesday passed a measure calling for the death penalty for certain sex offenders despite concerns that the legislation runs afoul of a recent U.S. Supreme Court ruling." Here's more:

House Bill 2965 would allow for the death penalty for someone convicted of raping a child age 6 or younger if the perpetrator had been convicted of a felony previously for which the punishment included a term of 10 years or more in prison.

The measure would not apply to a parent, guardian or someone who has custody of a child. Rep. Rex Duncan, R-Sand Springs, the measure's House sponsor, said that in child-custody cases, all sorts of things can be alleged.  The exclusion was designed to prevent people involved in custody cases from facing the death penalty based on possibly false accusations.

Sen. Richard Lerblance, D-Hartshorne, said the measure runs counter to a U.S. Supreme Court decision that struck down a Kentucky law that imposed the death penalty for the rape of a child. In that 2008 decision — in Kennedy v. Louisiana — the court held that a death sentence for someone who raped but did not kill a child and who did not intend to assist another in killing the child was unconstitutional.

Lerblance said that although raping a child is "dastardly," the nation's high court has ruled on the issue.  He said the bill is plainly unconstitutional and that lawmakers have sworn to uphold the U.S. Constitution.  "How in good conscience can you ask us to vote on a bill like this?" he asked.

Sen. Anthony Sykes, R-Moore, the measure's Senate sponsor, said the makeup of the court has changed since the 2008 decision.  Duncan added that the measure is more narrowly written than a 2006 Oklahoma law that also was struck down by the 2008 high-court ruling.

I have no problem with the Oklahoma legislature or any other elected body continuing to try make certain forms of child rape subject to the death penalty despite the Supreme Court's ruling in its 2008 Kennedy v. Louisiana decision.  I do not think the changed composition of the Supreme Court since the 2008 fully justifies such action; rather, the fact that the Supreme Court has persistently asserted that the Eighth Amendment is responsive to "evolving standards of decency" supports and justifies elected bodies expressing through legislation and other means their current view of these constitutionally significant standards.

Indeed, I think the passage by Oklahoma and a number of other states of focused capital child rape legislation ought to prompt the Supreme Court to reconsider its Kennedy ruling.  After all, the Supreme Court has repeatedly reversed prior precedent to narrow the reach of the death penalty when more state legislatures have enacted laws that narrow their own capital statutes.  Both logic and sound constitutional jurisprudence suggests that the Court should be prepared to reverse prior precedent to expand the reach of the death penalty when more state legislatures have enacted laws that expand their own capital statutes.

March 18, 2010 at 10:13 AM | Permalink

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Comments

Recently, a Delaware physician was charged with 400 odd counts of child sexual abuse. The idea that the Constitution forbids the death penalty in such a case is nothing short of ridiculous.

Posted by: federalist | Mar 18, 2010 10:29:21 AM

An obvious problem with the watch the state legislatures approach to defining the evolving standards of decency is that some legislatures will care more about trying to convince the supreme court that they are right and everyone else is wrong, or this kind of stuff which seems calculated in part at least to enable pointing fingers across the aisle and saying "the guys who like child rapists sit on that side" will pass.
Responsible legislators will not, instead focusing on their states real problems. ----
Oh yeah, there aren't any responsible legislators left, are there

Posted by: KRG def attny | Mar 18, 2010 11:38:09 AM

Like federalist, I think that the death penalty for child sex abuse is a sound idea. Of course that would wipe out a signifcant percentage of the priesthood of the Catholic church.

Posted by: anon 12 | Mar 18, 2010 12:50:14 PM

Doug. To me your position is proof positive as to how perverse our system of constitutional republicanism has become. I don't have any problem with federalist thinking that child rapist should be killed. I don't agree with that but I don't have a problem with him thinking that.

The grand irony is that if people want to change the constitution the Constitution itself offers the perfect mechanism to do that...it's called an amendment. There is something deeply offensive to basic republican principles for a state court to pass a law to "persuade" the US Supreme Court of anything. If they don't like what the SC does they have, in alliance with their sister states, the the power to *dictate* to the SC what the Constitution says. That is the mature and democratically responsible way to handle this situation. In fact, in my opinion it is the only position to which the wise and honorable can repair. Any other position is turning the "United States" into a group of prostitutes competing for the pleasures and baubles of their true master, the judges.

Posted by: Daniel | Mar 18, 2010 1:16:00 PM

i have to agree daniel. from where i sit it is nothing more than forum shopping or out and out WHINING hoping if they bug the supreme court enough it will go along just to get the retards to SHUT UP!

Now ME i think they are nothing more than trators to their oath of office....and deserve DEATH themselves.

Posted by: rodsmith | Mar 18, 2010 3:12:37 PM

Is a law that could increase the murder rate of children really consistent with the "evolving standards of decency"?

Posted by: George | Mar 18, 2010 3:26:43 PM

The main reason Kennedy v. Louisiana should be re-visited is that it was wrong to begin with. It relied principally on two things: the supposed national consensus against the DP for child rape; and the Court's own view of what is acceptable punishment.

The first prong was cobbled together with legerdemain and is contrary to the best evidence. If you want to find out what the public consensus is, ask the public. One poll did (Quinipac, I think, although I'm not sure). It found that the public FAVORED the DP for child rape by 55-39. So the Court's finding about the public consensus was just flat-out made up. (The abolitionist extremists admit this in a back-handed way, arguing that the public is too stupid, retrograde or barbaric to be trusted with the decision).

The second prong -- the Justices' own sense of what punishment is acceptable -- finds no home in the text of the Constitution and, obviously, makes constitutional rules ENTIRELY dependent of the current make-up of the Court. Does the constitutional permissibility of the DP for child rape flash red now, but green with a new Justice, and then red again with the Justice after that, and then green............

You see the problem. For the Justices to make the permissibility of Punishment X depend on THEIR personal beliefs is arrogant beyond words and, more importantly, makes a joke of the notion that we should be a nation of laws, not men.

Posted by: Bill Otis | Mar 18, 2010 4:16:47 PM

Oddly enough, I find myself agreeing with Bill again, but for a more radical reason--I think the "evolving standards of decency" argument needs to be revisited. The central problem is that one's view of the standards of decency often depends on one's vantage point. As Bill pointed out, though it is true that very few states have child rape laws on the books, that doesn't mean the public opposes it. Though Kennedy only looked at the former, why should the latter not receive careful consideration as well?

The other problem I see--and one that Justice Scalia trumpeted in his Kennedy dissent (nice double-entendre, no?)--is that the evolving standards can only move one way. Even presuming that Americans generally disfavored the death penalty for child rape now, that does not mean that we couldn't change our minds later. The Supreme Court's evolving standards of decency position, however, prevents a change of opinion by ossifying a snapshot in time for all of time--a highly dubious move in the criminal justice arena especially.

Posted by: Res ipsa | Mar 18, 2010 5:07:40 PM

bill: "the Justices' own sense of what punishment is acceptable -- finds no home in the text of the Constitution"

me: so you'd consider it constitutional if a state passed a law requiring castration for those convicted of child rape? how about castration for beign an icky perv in the possession of child pron? do you also think it would be constitutional for a law requiring theives to have their hands chopped off? or maybe sitting for a while in the stocks or a public whipping for speeding? or does the constitution only prohibit "cruel and unusual" punishments that are not popular?

Posted by: virginia | Mar 18, 2010 5:43:22 PM

Ginny --

1. Nice set of questions, but they elide my point, which was that using the Justices' own sense of what punishment is acceptable as a barometer of the objective meaning of the Eighth Amendment is a standard that finds no home in the text of the Constitution.

2. It was precisely my point that MY view, or anyone's personal view, of such things as castration cannot tell you what the Constitution requires or forbids. Accordingly, my opinion is irrelevant.

3. But since you asked, I won't do they fancy dance done by abolitionists, and will give you a direct answer. I do not approve of mutilation in any form as a punishment for crime. It's barbaric. The Framers agreed, since if you go back in history, you'll find that the Eighth Amendment was adopted principally to forbid mutilation-type punishments then enforced by the Crown, such as drawing-and-quartering.

Posted by: Bill Otis | Mar 18, 2010 6:03:33 PM

Bill,

So as I understand it, you agree with Res Ipsa: The standard itself is the problem. Or at least, the measures used by the justices to determine the consensus is the problem, and some other method (like snapshot polling) would be more effective and sound?

Posted by: Alec | Mar 18, 2010 6:50:06 PM

Well, SOMEONE's point of view has to tell us what the Constitution forbids. The framers didn't list what individual punishments were or were not acceptable. They just said "cruel and unusual." That term being vague, it's up to judges to define what that means. And what was cruel and unusual in 1789 or 1889 or 1989 might not be what's cruel and unusual today.

I think adultery was a capital offense in some colonies. Depending on your point of view, we've progressed since then.

Posted by: arx | Mar 18, 2010 7:41:25 PM

George--Glib responses like "Is a law that could increase the murder rate of children really consistent with the "evolving standards of decency"?" serve only to show how little background and understanding you have on this issue. There is no research to back up your claim nor is it logical. If you are trying to imply that a rapist would be somehow encouraged to kill his/her victim because the penalty would be the same is overly simplistic. If anything, the rapist would stand a much greater chance of receiving the death penalty for what would amount to Felony Murder than simply child rape. Often a rapist, specifically one that victimizes children, is in no way concerned about getting caught. That is why it is so often a family member or close family friend that does the victimizing. It is the power of coercing a child into remaining silent that often perpetuates the crime. Remember, rapists in most cases do not rape for pleasure, pain, or rage; rather the criminal offends because of immaturity (due to a victimization of themself at a young age) or psychological proclivity. I worked with Professor Berman on a paper prior to the decision in Kennedy which analyzed many of these issues further. In fact, I think Doug may have a blog post about the "rapist incentivized to murder" fallacy.

Posted by: Jordan W | Mar 18, 2010 10:46:13 PM

Alec --

First, I note that you do not disagree with my point that there is, in fact, no consensus that the DP ought not to be employed for child rape, and that the only poll done on the question (so far as I know or you suggest) indicates the opposite.

Second, I think the Supreme Court standard is incorrect. The determination of what the public wants and believes is the quintessential job of the political branches, not the judiciary. Popular will is just that. The Court's job is to say what the Constituion means, not what the public wants (again, that is the job of elections), and certainly not what the Justices want. I don't care what they want. Their job is to decide cases and controversies under established law, not under some solipsistic and self-absorbed microscope.

Posted by: Bill Otis | Mar 19, 2010 12:34:27 AM

hey bill! loved this!

"If you want to find out what the public consensus is, ask the public. One poll did (Quinipac, I think, although I'm not sure). It found that the public FAVORED the DP for child rape by 55-39"


CONSIDERING our govt right now has what a 25-35% approval rating does that mean we can KILL EM ALL and get new ones?

sorry DP for someting that DOES NOT TAKE A LIFE has basically ben UNCONSTITUTION since the FOUNDING OF THE COUNTRY....that HASN'T CHANGED....no matter how many people want to change it.

Posted by: rodsmith | Mar 19, 2010 3:08:36 AM

rodsmith --

"CONSIDERING our govt right now has what a 25-35% approval rating does that mean we can KILL EM ALL and get new ones?"

It means we can hold an election and get new ones, which is what's going to happen in less than eight months.

BTW, the rating of the Harry, Barry and Scary Congress is lower than 25-35%.

"sorry DP for someting that DOES NOT TAKE A LIFE has basically ben UNCONSTITUTION since the FOUNDING OF THE COUNTRY....that HASN'T CHANGED....no matter how many people want to change it."

With the probable exception of the four years between Furman and Gregg, espionage in war time has been and is subject to capital punishment whether or not it results in death.

Posted by: Bill Otis | Mar 19, 2010 3:48:23 PM

how true and that would be one of those 2 or 3 things SPECIFICALLY stated in the constitutin as calling for the death penalty woudln't it?

Posted by: rodsmith | Mar 19, 2010 8:33:45 PM

@Bill- That does not change the fact that jusdges DO take their own personal feelings into consideration, and go against the constitution all the time. If this did not happen, 26,000 people in my state of Ohio would not have been re-classified and re-punished for crimes they already served time for. If going from lowest registration/notification requirements to highest without even reviewing the case is not punishment, then I do not know what is.. however, several judges in Ohio agreed that those particulars of AWA were remedial. (Tell that to people being harrassed by their neighbors who now have to do community notification who previously did not.)

Its pretty easy to say something like that when you do not face the additional penalties, including not being able to find a job or place to live, when you COULD during the original registration requirements. So, I agree with you that Judges should be confirming or denying laws based on what the constitution said.. however, given today's activist climate, they conveniently ignore any law that might not get them re elected or reappointed, or protested.

Posted by: tbucket | Mar 21, 2010 5:34:08 PM

It just does not matter what is legal anymore, it is all about not championing unpopular causes because they are illegal. This country makes me want to throw up.. we change the rules every time we feel someone was not punished enough in our eyes.

Posted by: tbucket | Mar 21, 2010 5:35:43 PM

"@Bill- That does not change the fact that jusdges DO take their own personal feelings into consideration, and go against the constitution all the time. If this did not happen, 26,000 people in my state of Ohio would not have been re-classified and re-punished for crimes they already served time for. If going from lowest registration/notification requirements to highest without even reviewing the case is not punishment, then I do not know what is.. however, several judges in Ohio agreed that those particulars of AWA were remedial. (Tell that to people being harrassed by their neighbors who now have to do community notification who previously did not.)"

HOW true and let's not forget the 1,000's who went from NOTHING no registry NO NOTHING for DECADES to the worse of the worse with LIFETIME registration every 2-3 months with nothing more than a LETTER.! no hearing no trial no new charge

NO NOTHING

including their rights!

Posted by: rodsmith | Mar 22, 2010 2:19:24 AM

The Constitution is not against the death penalty for rapists. I don't care what the U.S. Supreme Court has said.

Posted by: Steven | Sep 24, 2010 5:49:29 PM

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