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March 14, 2007

Death for child molesters moves forward in Texas

As detailed in this article, the Texas legislature continues to move forward on a bill to make some child sex offenders subect to the death penalty.  Here are specifics:

Senate panel approved a bill allowing the death penalty for repeat child sex offenders Tuesday but said major work remains on the proposal.  Senate Bill 5, the "Jessica's Law" urged by Lt. Gov. David Dewhurst, now advances to the full Senate. The law is named for Jessica Lunsford of Florida, a 9-year-old girl who was abducted, raped and killed.

The Senate Criminal Justice Committee vote was 5-1 with one member abstaining.  Texas Attorney General Greg Abbott joined Dewhurst at the hearing in supporting the bill, which calls for a minimum 25-year sentence for violent child sex offenses and life without parole or death for second offenses.

Abbott brushed off concerns that the U.S. Supreme Court might find the death penalty unconstitutional for crimes that do not end in death.  Noting that the court barred the death penalty in a rape case 30 years ago, Abbott said he sees a "greater chance" the high court may allow the death penalty for repeat, felony sexual assault against children.  "I would proudly and personally go up to the United States Supreme Court and defend the constitutionality of this case, this legislation, which I think is the right legislation for the state of Texas,"said Abbott....

Prosecutors and others who testified against the measure fear that families will be reluctant to turn in friends or relatives, who reportedly commit nine out of 10 sexual offenses against children.

Some recent related posts:

UPDATE:  There are lots of posts on this topic at StandDown Texas Project.

March 14, 2007 at 08:18 AM | Permalink


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Tracked on Mar 14, 2007 8:24:48 AM


Good idea: no, constitutional: yes.

Posted by: federalist | Mar 14, 2007 12:05:02 PM

Federalist raises an interesting argument regarding the constitutional of this proposed statute. Unfortunately, because he lacks cites for his reasoning, much of it is awaits a future post in which he outlines his reasoning. Indeed, some might conclude that a lack a citation indicates that the opposite proposition is true, but I won’t go that far.

Abbott is a little silly, however, because he says “I would proudly and personally go up to the United States Supreme Court and defend the constitutionality of this case,” without providing his reasoning as to why he would prevail. Perhaps if he wasn’t trying to act like a martyr and vogue for the cameras his argument might be more convincing.

Anyway, while I appreciate the desire of people to put as many people as possible to death, I would like to see an argument as to why it is constitutional to execute these folks. Thank you.

Posted by: S.couts | Mar 14, 2007 12:12:15 PM

It's constitutional because the Coker judges dead, right? That's gotta be it, because by that case it's surely not legal.

Posted by: rothmatisseko | Mar 14, 2007 12:32:14 PM

Seems to me that it's backwards. Good idea = yes. Constitutional = no.

Posted by: Anon | Mar 14, 2007 12:51:43 PM

"That question, with respect to rape of an adult woman, is now before us. We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." Coker v. Georgia, 433 U.S. 584, 592 (1977). Seems pretty clear to me that the question with respect to rape of a child was reserved and not decided.

I concur that it is a very bad idea.

Posted by: Kent Scheidegger | Mar 14, 2007 2:22:49 PM

Also, the direction of the change standard, which was so persuasive in Atkins, argues in favor of the law's constitutionality, given that states are imposing this ill-advised punishment. Of course, that would be in a rational system of capital punishment jurisprudence. Given the fact that Stevens, Ginsburg, Breyer and Souter will simply announce that the death penalty for child molesters is bad and vote against it and that no one knows what Kennedy will do, the constitutionality of such legislation, while not open to serious doubt under any rational review of precedent, is in doubt. In capital punishment "jurisprudence" WILL, not JUDGMENT often prevails, and usually without so much as a "sorry about that".

Posted by: federalist | Mar 14, 2007 3:18:38 PM

Kent, I think you accurately state the law as it stands. Policy-wise, I really have no clue whether it is a good idea or not. The views of prosecutors are, indeed, worthy of some consideration. On the other hand, prosecutors are thinking inside their boxes (as lawyers), which maybe are too “cramped.” But, I am subject to persuasion on the policy issue.

Federalist, Your last post made absolutely no sense. If you are so sure of the way a given justice will vote, you probably need to provide specifics – in the form of citations. (Kent can do it, you can, too.)

Posted by: S.couts | Mar 14, 2007 3:33:07 PM

I think it makes sense. There's just no citation. To get a sense of how the four will vote, I think the fact that they all joined the silly dissent in Kansas v. Marsh tips their hand.

Posted by: federalist | Mar 14, 2007 4:42:10 PM

I see. A dissent in a Supreme Court case, by multiple Supreme Court justices, in which there was substantial difference of opinion, combined with a grant of cert is silly. In fact, the very issue in Kansas v. Marsh dealt with “closeness” of issues.

You really have a high mountain to climb to show that a Supreme Court justice’s dissenting opinion is objectively wrong. But, because you have not even started to explain why it is wrong, beyond calling it “silly” I suspect you are just reciting from talking points for non-lawyers.

Posted by: S.couts | Mar 14, 2007 4:45:09 PM

yep, it's silly

arguing that the Court should worry about "errors" in guilt/innocence phase when dealing with a question of death-eligibility is not just silly--it also displays (or betrays) a certain lawlessness, a certain contempt for our right to govern ourselves and a willingness to exercise WILL vice JUDGMENT. Fortunately, in Kansas v. Marsh, there was only a four-headed Caesar.

Posted by: federalist | Mar 14, 2007 7:01:05 PM

At first I was going to ask you to provide specifics. But, then I remembered that you don’t really read cases. Instead you read what blogs or newspapers tell you to. So, it is useless to ask you a second time for specifics. This is why other people win cases. Anyway, the dissent in Kansas v. Marsh argued that allowing “ties” to go to the state’s desire to execute people was unconstitutional because experience was beginning to show that states’ policies of sending too many people to their deaths based on faulty tries or defective evidence might militate in favor of a more cautious approach. In no way did they argue that doubts as to the specific defendant’s guilt requires resolution in favor of the defendant, thereby giving him the privilege of rotting in jail for the rest of his live. The relevant text is thus:

"While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness."

If you think this is incorrect, explain why. Vague answers, or general insults will be deemed to be showing of support of all things bad.

Posted by: S.cotus | Mar 14, 2007 8:11:20 PM

Oh, Kent, you only had six more pages to go!

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.FN13 The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’ Gregg v. Georgia, 428 U.S., at 187, 96 S.Ct., at 2931, is an excessive penalty for the rapist who, as such, does not take human life.

By the way, FN13 refers to the definition of "rape" as requiring "penetration." The TX statute doesn't even require that.

Posted by: rothmatisseko | Mar 14, 2007 9:10:05 PM

Yes, I am aware of that language, but the fact that Justice White went out of his way to define the question before the Court as limited to adults is controlling on the scope of the precedent, IMHO.

Posted by: Kent Scheidegger | Mar 14, 2007 9:29:49 PM

Ok, how many dead kids are you willing to put up with. the repeat offender who molests a kid may feel he has no choice but to kill the child to silence the victim. What does he have to lose? If caught he's dead anyway. I never want my child to be molested but if he is, I sure as hell would rather he surivive than be killed by someone who panics.

Posted by: Nick Ames | Mar 14, 2007 10:14:24 PM

Nick, I think that's why thoughtful observers have serious reservations about the benefits of this proposal.

It's interesting though that anti-DP advocates have seized on this (of course to show that DP advocates are trogolodytes), yet the argument presupposes that death is a deterrent in that the child sex offender will kill the child to escape the penalty. How is that any different from the idea that some murderers will spare a victim to avoid the penalty.

Not to get off point, but I would think that the deterrence effect would be greatest for felony murderers. If all participants are eligible for death, aren't they incentivized to rein in a triggerhappy cohort.

Posted by: federalist | Mar 14, 2007 10:33:34 PM

Of course, many child molesters may deserve the death penalty--that goes without saying. The issue is whether it is wise to provide no "delta" between the punishment for murdering a child and molesting one.

Posted by: federalist | Mar 14, 2007 10:38:10 PM

Nick, who exactly is the "you" in your comment addressed to? Other than the brief anonymous comment, everyone in this thread agrees the bill is bad policy. I agree for precisely the reason you state.

Posted by: Kent Scheidegger | Mar 15, 2007 12:30:27 AM

I continue to be amazed that you all engage in "debate" with federalist. One thing can be said about him: he is consistent, he has never met an offense for which the death penalty would not be an appropriate [tho not necessarily constitutional] punishment. But, as Emerson once said: A foolish consistency is the hobgoblin of little minds.
Then again, I believe New England poets are also on the list of those meriting termination with extreme prejudice.
And, I believe, looking over the board, that is checkmate.

Posted by: BernieK | Mar 15, 2007 10:06:22 AM

Bernie--I don't understand. I think that the death penalty for child molesters is a bad idea. If you're going to spout invective and declare checkmate, know what you're talking about. But you don't--like most true believers and their fellow-travelers. I think Frost overrated, as well as Thoreau (haven't read much Emerson)--but I certainly don't advocate retroactive capital punishment.

If you are going to quote poets, try Alexander Pope--"A little learning is a dangerous thing;
Drink deep or taste not the Pierian Spring;
These shallow draughts intoxicate the brain;
And drinking largely sobers us again."

Posted by: federalist | Mar 15, 2007 10:18:29 AM

Of all poets, you quote Pope - an over-rated politically inastute writer. And, Walpole's nemesis, so I am doubly surprised at your reliance upon him. I mean you choose someone who's hero was that Jacobean Bolingbroke?? Clearly out of character! While yes, Frost is over-rated, you clearly miss the point of Thoreau, tho, I am sure you favored our imperialist venture into Mexico. Indeed, had we listened to him Texas would possibly not be a part of this country and we would have been spared Bush, Gonzalez, Miers and that empty suit Rick Perry.

Posted by: BernieK | Mar 15, 2007 10:57:11 AM

You're slipping Bernie--isn't it ChimpyMcBusHitlerHalliburtonco?

Posted by: federalist | Mar 15, 2007 11:00:32 AM

This is why people want to execute sex offenders . . . .


How depressing. How sad. Can you imagine being poor, having kids, and having to leave near one of these animals?

Posted by: federalist | Mar 16, 2007 12:33:35 AM

Federalist, what would be worse would be living near right-wing ideologues, who speak of the law but have not seen the inside of a courtroom in 20 years save fighting their own traffic summons. [And, btw, watching "Law and Order" does NOT count!]
One other item: "animals"?? Hmm, methinks PETA should begin targeting you also.

Posted by: BernieK | Mar 16, 2007 9:16:07 AM

Bernie, a new low. A new low. Have you no sense of decency? To make light of a child's death is utterly repulsive.

And Bernie, not all lawyers practice in a courtroom. We just all can't get that street cred and cachet representing thugs who enjoy victimizing other people. Enjoy your blood money.

Posted by: | Mar 16, 2007 10:22:38 AM

Anon, Your above invective directed at Bernie didn’t seem to address his points. Are you conceding them?

While not all lawyers practice in courtrooms, all of us are able to produce authority for our assertions.

“Victimization” is a matter of perspective. You seem to be arguing that invocation of constitutional rights by someone in the course of a criminal procedure victimizes anyone that might be touched by such an invocation.

Posted by: S.couts | Mar 16, 2007 1:48:34 PM

I've never seen federalist contend that he's a lawyer. And in truth, one not need to be a lawyer at all to discuss the issues that occupy this board.

S.couts, are you S.cotus?

Posted by: rothmatisseko | Mar 17, 2007 2:27:28 PM

Federalist is a lawyer. At least the bar authorities consider me one. I suspect even S.cotus will concede that.

Posted by: federalist | Mar 18, 2007 10:17:04 PM

"How depressing. How sad. Can you imagine being poor, having kids, and having to leave near one of these animals? "

The child's father is also a registered sex offender. The child's death is already being pushed as a reason to further restrict and banish offenders--which would include the father of the murdered child.

Posted by: Ilah | Mar 20, 2007 1:08:08 AM

I think its crazy to give the death penalty to

a child molester. it would be different if he

commited murder. then the child molester should

be put to death. but there are millions of child

molesters to creat a law that would put them to

death would be mass murder on the us scale.

putting someone to death just because he touched

a child is insane. and americans need to rise up

against texas and any other state that is trying

to creat that messed up law. the latest pole is

that 1 out of every 5 houses has a child molestor

in it. the government have gotten out of hand by

creating a law like that. there are just too many

child molesters out there for them to creat a law

like that.

Posted by: jason | Apr 5, 2007 5:52:35 PM

I am the mother of a convicted "sex offender" His crime having consenual sex with his girlfriend and now wife--and he is serving 20 years for this--he is not a sex offender--where do these guys go--to the chair for having consenual sex at this moment they are grouped and named and treated the same--I agree the "real" offenders should be punished to the end of the law but we first need to differentiate how the law should read and who should be punished. There is a very big difference between a "preditor" and a "boyfriend" that a parent happens not to like at the time and in Texas it does not matter they are treated the same! and this needs to end! I have a son in prison who has a son who is now 4 and misses and has to visit him through glass--and you ask why or should ask why? because at the time the mother of his now "wife" did not like him and wanted him out of the picture--boy isn't that something we now can use the law to get rid of boyfriends but guess what folks? There is no law that will allow me to get rid of a daughter-in-law who cheats on her husband and has children by other men while her husband rotts! We scream equal rights--but is there really a such thing? I think not! A broken mom in Texas--thanks for listening

Posted by: Donna | Apr 20, 2007 12:06:58 PM

In general response, I have waded through the posts above and was left shaking my head in disbelief. There is a real difference in predators and child molesters vs. under aged lovers. the comment that raping a child doesn't end their life is appalling to me, who among you have ever been molested as a child, I suspect none or you may have a different perspective to this. I was and I can only speak from my own experience that no my life was spared but the life as a child died that day and was never to be revived again. It is a form of murder though not in the physical sense, but a death none the less worthy of notice. What legal recourse do those that have experienced this grotesque act really have, most get a slap on the wrist and told not to do it again. Their life goes on while the victim struggles to not fall into a brink of insanity and depression, suicidal thoughts run rampart and guilt is carried for a very long time. The legal system lets the victims down over and over again in the ever present attempt to not step on the rights of the offender, why is it when they showed so little regard for the rights of their victims do we tip toe around them as if they were made of glass. Victims rights are a joke, the only right you end up having is knowing that if they get caught, and convicted they will most assuredly serve a lesser sentence than they receive what with good behavior. I do not mean to offend anyone with my statements they come from a former victim that carries a sentence of reliving a traumatic event that stole her childhood with her for the rest of her life, which is more than the man got that molested me.

Posted by: Tina | Sep 4, 2007 11:44:51 AM

I agree molesting or even hurting a child is a terrible thing to even think about. But Texas asking for the death penalty is just another reason to satisfy legal vengeance, It's bad enough that in 2007 they have executed 27 inmates. The death penalty has proven that it has failed, there are more murders today than there was when it was first implemented. And they think it will decrease the child molesters highly unlikely,so who is the death penalty satisfying,I believe it is cruel and unusual punishment. (student)

Posted by: s. irvin | Jan 28, 2008 6:57:35 PM

I believe the person or persons that is against the death penalty for child molesters obviously do not have children. My stepfather was a molester. I cannot imagine a parent getting that ugly phone call "Come to the hospital your child was raped", would not want the child molester to live. This law should have been passed a long time ago. The child that was raped lives with the pain forever, the molester right after the rape is only thinking on one thing and, one thing only. "Now that I have enjoyed this one, where do I find the next one?" Never once taking into consideration the pain that child has to live with for the rest of their lives. At least give them life in prison and, let the prisoners have their way with them, why not make them suffer the rest of their lives like the victim suffers...? For the people that are against the law, how would you like a molester living right across the street from you? How about teaching in the schools you children go to? If he was your neighbor knowing what he is or what he did to your child, would you want him living there, or just shove him out of your neigborhood to another innocent victim, yes that s the way to do it.....maybe invite him over to dinner????

Posted by: | Mar 25, 2008 11:30:40 AM

Raping a child is just as bad as murder because you have to live with it for the rest of your life. To be so insensitive to say that this bill is not a good idea scares me. Maybe that is why so many children don't get justice for abuse and grow up doing the same thing to others.

I disagree with the fact that someone having consensual sex with another person who may be a few years younger than them but not at the legal age of consent, gets thrown in jail but this is not meant for these individuals. The laws need to change in all but I am for harsh punishment for repeat offenders.

They do need to make the people who are doing things such as what was done to Jessica or Christopher Barrios pay severly for the crimes. The point of this law is to prevent this situation from happening too often. The molester doesn't stop when they get out, instead they molest again and kill the victim in hopes not to get caught and thrown in jail again. This law is to stop the repeat offenders from victimizing more individuals after being caught more than once.

Why should they live and continue to kill others souls or even bodies? Why are people defending people who would molest you if you were a child or your children? Why isn't anyone protecting the victims? Why should someone who proved that they are not rehabilitated and will do the crime again not be punished severely? Would you let them live in your home and molest your kids or you and not want them to be punished severely?

Posted by: Miss Joe | Apr 26, 2008 5:38:24 PM

This is a touchy subject. But I do agree, the death penalty is not over stepping it. Not for a crime such as this one, with the ones who don't kill the kids, staying behind bars for life. It leaves an everlasting mark on a child. (Me) And till I pas away, that bad part of me, will never go away. So I continue to fight off those feelings, so that I have no chance of passing that on anyone.
It's not fun to deal with, and I feel no need to put another kid go through, what I went through....
Got to rap this up, it's storming,...

Posted by: Dennis E Strausser Jr | Jun 27, 2008 5:21:42 PM

In some of the previous posts, I noticed that there are people out there that are looking out for the kids.
Here is a story for you, I was molested by my uncle, I was molested from the time I was 3 until I was 7 we arent talking about once a year, it was everyday, and although it happened while I was very young I told him to leave me alone, so instead of molestation I call it rape, I was threatened. That he would kill me, or the rest of my family if I told anyone. Knowing that the person has weapons in the room in which me does his evil deeds is horrifying. When I was about 10 years old and when I had moved in with my mom, and finally began to trust her, Itold her what happened.
TEXAS law enforcement and government had already known for 2 years before I had told, My uncle had molested my sister, my cousins (3 altogether). One of them had finally told someone about it. Do you know what they did NOTHING, a slap on the wrist, because he was "sick" he had seizures. They let him go and nothing happened about it, he wasnt allowed near the family again. If I was in the government I would make the death penalty law pass, especially for the repeat offenders, (not the ones that were 19 and the girlfriend was 16) but for the ones that take someones child hood aways by victimizing them repeatedly, and then doing it to multiple children. You never get your life back after become victimized, it is hard to trust people. They might as well have killed the child, cause repeat molestation slowly kills a child. It is always in the back of a persons mind that is sexually abused, why me, and then trying to stop that person from becoming the molestor. It never goes away.

Posted by: KimberlyB | Aug 29, 2010 3:45:37 AM

Booker's holding applies to the jury trial rights of organizations.

Posted by: red ugg boots | Oct 18, 2010 7:33:04 AM

This is sad. Where is forgiveness and help your fellow man? There are more ways to abuse a child than molestation and should not be viewed differently in the god fearing public. Physical and mental abuse are just as bad to a child. So lets lock up all those you yell at their children or loose their temper and spank or belittle their child. It is all the same. Mental damage. Wake up world it is no different. Public opinion makes sexual abuse criminal and physical and mental abuse acceptable? Why?

Posted by: Dhogan | Apr 10, 2013 4:25:04 PM

The previous comment was meant to show how wrong the punishment is for some of these child molestation cases. Harsh and barbaric treatment for centuries and now the USA is leader in the number of prisoners. And we dare to call ourselves Land of the Free. It is the Land of the Imprisoned. They cannot all be grouped into one category. Lets not condemn all these people. Some just need guidance and better coping skills just as a distraught parent who yells and screams at their child belittling them with demeaning words: an angry parent who looses their temper and physically spanks their child too aggressively. Should they be put in prison? This is a form of abuse. What about the child should they have some say? Anyone who is so closed minded to categorize and group people need to follow the lead sheep who jumped off the cliff and safe the world from Capitalism.

Posted by: Dhogan | Apr 10, 2013 4:49:31 PM

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