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June 6, 2007

LA Times opposes death penalty for child rape for intriguing reason

Yesterday's Los Angeles Times had this interesting editorial, entitled "Death to child rapists?  The Louisiana Supreme Court thinks child rapists should be executed.  Might the U.S. Supreme Court agree?".  Here are snippets:

The United States is virtually alone among advanced democracies in permitting capital punishment. But widespread ambivalence about imposing the ultimate penalty has produced a minor industry of litigation that has had the effect of postponing executions for years and even decades.  This state of affairs, which frustrates supporters and opponents of capital punishment, exists even though the death penalty has been imposed for more than a generation only in murder cases.  Now imagine how clogged the courts would become if states were allowed to execute individuals for other crimes....

The rape of a child is an unspeakable crime.  In its decision, the Louisiana court wrote that "short of first-degree murder, we can think of no other non-homicide crime more deserving" of the death penalty.  But imaginative state legislators might easily discover other offenses worthy of the ultimate punishment: terrorism, major drug dealing (a capital offense under federal law) or violent hate crimes.  Capital punishment has proved dysfunctional and divisive as a sanction for murder.  The U.S. Supreme Court shouldn't compound the error — and increase its own workload — by allowing states to execute criminals who do not take a human life.

I find quite interesting and compelling the notion that allowing the death penalty for non-homicide crimes is a recipe for lots and lots and lots and lots of litigation (especially in the Ninth Circuit).  But is this sound pragmatic concern a valid constitutional consideration for the Supreme Court interpreting the Eighth Amendment? 

In other words, I think the LA Times has a winning argument here, but its pragmatic advocacy against any new non-homicide capital offenses ought to be directed to Congress and state legislators, not to the US Supreme Court.

June 6, 2007 at 01:03 PM | Permalink


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Tracked on Jun 6, 2007 6:28:18 PM

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Tracked on Jun 6, 2007 11:16:08 PM


There's a circularity to the LA Times's thesis. They argue we should not expand the death penalty, because capital cases are too expensive and time-consuming to litigate.

But the reason this happened, is because the abolitionists have been so successful in the Supreme Court over the last 40 years. Every time the justices rule in favor of a capital defendant, it creates another exception that the abolitionists use in the next round of cases. The Court's aggravating/mitigating circumstances jurisprudence is a complete fabrication, minted out of whole cloth without any constitutional underpinning. The Court has been entirely unable to fashion a clear rule, meaning that almost every death sentence presents a colorable argument for appellate reversal.

And because "death is different," the justices spend a disproportionate amount of their time on capital cases. Much of the Court's death-penalty docket seems to involve highly fact-bound inquiries that have little application beyond the specific cases decided.

So the abolitionists were successful at making capital cases insanely expensive and time-consuming to litigate. And having done that, the heavy workload that they themselves helped to create is now marshalled as a further argument against the death penalty.

Posted by: Marc Shepherd | Jun 6, 2007 4:14:06 PM

Can something be minted from cloth?

Posted by: | Jun 6, 2007 4:16:49 PM

yes. it's a little like welding a house of cards or weaving an ivory tower.

I agree with Prof. Berman that the Times's argument is better directed at the legislatures than at the Court.

Posted by: | Jun 6, 2007 5:04:50 PM

The Times's argument ignores the reason we learned and debated in first semester Criminal Law: that capital punishment for rape would remove any remaining incentive for the rapist not to kill the victim/witness.

One can certainly argue that whether the death penalty is available is unlikely to affect the rapist/potential killer's decisionmaking. But that argument undercuts the entire deterrent rationale for the death penalty. (Leaving only retribution, which is not insignificant--it's right there in the Old Testament.)

Posted by: Def. Atty. | Jun 6, 2007 7:06:13 PM

Def. Atty, while I agree that a death penalty for child rape is a bad idea, for the exact reason you state, the deterrence argument is not wrong either. You take as a given a child rapist, but that's not the only part of the decision tree. A child rapist has to decide to rape first, and the possibility of death would, theoretically anyway, deter.

Personally, I think that rapists like Kennedy certainly deserve death for their crimes. Hell, I think violent repeat rapists do too, and there are plenty more crimes that I personally would add to the list. I also have zero problems with major drug kingpins getting death for their crimes as well. But, we on the capital punishment side should think about whether death incentivizes further crime, and in the case of child rape, it probably does.

While on the subject of incentivizing child killing after child rape, I would think that legislatures would consider doing a better job preventing the absolute brutality that "baby-rapers" get in the joint. That certainly incentivizes these animals to kill the children that they victimize. While I have zero sympathy for the plight of child molesters in the can (although I believe as a matter of civilization that we absolutely should not tolerate their victimization in prison), certainly the brutality that they face likely comes into the calculus of whether they kill the child victim.

In any event, off topic--Texas extracted final justice today for a murderer making the world a better place. If Kennedy ultimately suffers the same fate, the world will be better for him having left it.

Posted by: federalist | Jun 7, 2007 1:11:32 AM

I recently posted a entry in my blog about this subject: http://brucem.livejournal.com/#entry_71149. I'm a cynical criminal defense lawyer in Texas, as such, I focused on how this will (once passed) work in practice.

Posted by: BruceM | Jun 7, 2007 2:55:08 PM

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