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March 19, 2008

Is the editorial board of the Denver Post omniscient or just obtuse?

Commenting on a Colorado bill that proposes making a second offense of child rape a capital offense, this Denver Post editorial boldly asserts in its headline that "Death penalty for rape doesn't protect children."  Tellingly, the text of the editorial is a little more nuanced on whether a capital child rape law could protect kids, and it also shows how opposition to the death penalty is a contributing factor to mass incarceration and extremely long prison sentences:

A bill pending in the Colorado Senate that would authorize a death sentence on a second conviction of raping a child could backfire by giving some of society's most vicious criminals a perverse incentive to kill their victims.

Senate Bill 195 by Sen. Steve Ward, R-Littleton, would authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime.  Ward's bill also could discourage victims from reporting abuse by relatives, fearing they'd get the death penalty. The Senate Judiciary Committee amended the bill to allow the death penalty only for rapists previously convicted of a similar attack on a child. It then sent the bill to the Appropriations Committee, where it should receive a quiet burial.

The Post has historically opposed the death penalty. But even supporters of capital punishment have strong reasons to oppose this bill.  First, it endangers the very children it is designed to protect. If the penalty for rape alone is death, then a criminal vicious enough to make such a heinous attack in the first place may reason that he faces no further penalty for killing the victim. Granted, most rapists would not even think that far down the road, but why provide the incentive for those who might?

Whether or not the death penalty deters crime at all is a subject of endless debate.  But what influence the law does have should always be aimed at shielding victims from even worse harm. Colorado law already allows a death penalty for a rapist who kills his victim. By executing for rape alone, Ward's bill strips victims of whatever protection they now receive under that law.

We share Ward's outrage at the kind of sick people who would rape children — but why wait for a second such heinous offense to crack down on these criminals? Current law allows sentencing child rapists to 20 or 30 years, depending on the circumstances of the crime. If the legislature wants to get tough, why not allow a life sentence on the first offense in the worst cases and thus preclude the possibility of a second offense?  That's the best way to protect children.

This editorial, in my view, highlights everything wrong with modern death penalty abolitionist arguments:

This stuff drives me crazy and, as I have tried to explain in some prior posts, may promote the worst of all possible criminal justice worlds for children and everyone else:

March 19, 2008 at 08:29 AM | Permalink


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Prof, your first bullet point misses the mark. It's perfectly reasonable for an abolitionist to express doubt about deterrence but yet make a deterrence-based argument in seeking to persuade others who *do* in fact believe in deterrence.

For example, I might say that I think the Laffer curve is largely bogus & wholly inapplicable at our current tax rates, but yet argue to a tax cut enthusiast that perhaps cutting taxes (and thereby, according to Lafferites, raise revenue eventually) isn't so swell, as the last thing that the behemoth of the federal govt needs is more revenue.

I don't see a whole lot wrong with trying to argue to people on terms they might agree with, but you in fact do not, esp when your position has other bases as well.

Posted by: Reader | Mar 19, 2008 9:30:55 AM

Also, as to your third point, I don't expect a newspaper editorial to come replete with footnotes & citations to evidentiary studies. Sure, I suppose it could reference a study or two, but I'm not sure it's fair to criticize it for lacking evidence. Do editorials in Texas papers that support the death penalty come packed with such support? If not, then isn't the fault here not with an argument *by an abolitionist,* as you claim, but fault with a non-academic argument in a mass-circulation newspaper?

Finally, I fail to see what's wrong with your second bullet point:
"Then, in an effort to save repeat child rapists from even the possibility of capital punishment, the editorial argues that other offenders (first offenders) should be subject to longer terms of imprisonment. "

Yeah, if you rape a child under the age of 12, I really don't see too much wrong with putting you away for a long, long time. Raping an 8 year old is not like selling 8 oz of crack. It's an offense that *should* carry a lengthy sentence. And whereas I would agree that we should have more lenient/flexible sentencing policies in many areas -- that offer the hope of rehabilitation & reentry to society -- bur raping a child is *not* one of those offenses, in my view.

Posted by: Reader | Mar 19, 2008 9:38:40 AM

Dear Professor Berman, I must say that I recognize your complaint that the Newspaper headline seems more provocative than the substance of the editorial seems as an echo of the feeling I've had about many of your own blog entries.

I'm again a bit baffled at the quickness and fervor with which you disparage persons opposed to capital punishment. I'm supposing, and I may be wrong, that you have never faced the task of representing someone charged with a capital offense? If you were charged with conscientiously defending in the brevity of time alloted to even a lengthy capital trial the life of another person (whose background is often itself a study in psychological or physical torture) before twelve jurors -- none of whom will be seated if they had any serious disinclination against the death penalty, and who often are less than forthcoming about their eagerness to put "one 'a those people" to death -- I think you'd be less quick to castigate the sincerity and compassion of those opposed to capital prosecutions.

Posted by: DYN | Mar 19, 2008 10:34:30 AM

In fact, DYN, I have represented a few persons sentenced to death on appeal, including a mentally retarded african american man (Terry Washingtn) executed by the state of Texas in 1997. In fact, if you check out my CV, you will see that in April 1998, I received the "Thurgood Marshall Award from the Association of the Bar of the City of New York," which honors attorneys who "have contributed their invaluable time, resources, and energies to the representation of human beings under a sentence of death across this country."

I have not represented any capital defendants at trial, which is surely a good thing, since I am surely a lousy trial attorney.

That all said, I do not think I have ever questioned the "sincerity and compassion of those opposed to capital prosecutions." Rather, I question the logic and reasoning and suppositions of those opposed to capital prosecutions. Specifically, I think most DP opponents (like most abortion opponents) value human life a lot more than they value human liberty. On this basic issue, I tend to disagree.

Posted by: Doug B. | Mar 19, 2008 10:56:28 AM

any response to my posts?

Posted by: Reader | Mar 19, 2008 11:40:39 AM

In spite of Prof Berman's claims of belief in the death penalty as a deterrence - for which there are no conclusive studies in support of such a theory - he, like most pro-death penalty supporters, actually believes it is an appropriate ultimate punishment of itself. Most death penalty abolitionists on the other hand believe either or both that the death penalty is immoral or that life imprisonment is sufficient to safeguard society today. That abolitionists may, at the same time, argue other lines in an attempt to persuade seems a strategy that he finds unacceptable. The nature of the offense is in a sense "academic" to his argument. Or maybe I've read the professor wrong?

Posted by: peter | Mar 19, 2008 1:29:45 PM


If what you say is true, that individuals chared with capital crimes are tortured psychologically and physically, why don't such individuals murder the person who tortured them. I don't see the connection with an individual who suffered some childhood physical abuse killing a convenience store clerk for a paltry amount of money. Are you saying that if the murderer had been abused less, then he wouldn't have committed capital murder?

Posted by: justice seeker | Mar 19, 2008 2:16:23 PM

I don't know why you think the headline isn't justified, Doug. A headline in Texas that read "Capital punishment fails to protect murder victims" would be 100% correct. We execute more people here than any other state, and our murder rate is significantly higher than most other places. Where is the deterrence?

Your arguments on this seem to boil down to 'it hasn't been disproven that the death penalty is a deterrent.' But first things first. No one's remotely proven the death penalty IS a deterrent, and the empirical evidence (e.g., Texas' example) fails to support that position.

Also, invoking the death penalty for child molesters creates additional pressures on them to remain silent to avoid the death penalty for a family-member molester. A law that increases pressure on children to keep their victimization secret, IMO, "doesn't protect children," just as the paper said.

Finally, child molestation cases are disproportionately represented among the more than 200 recent DNA exonerations, showing that it may be easier to be wrongfully convicted of this than other crimes. If that's true, do you really want the death penalty in play? Just something to consider. I don't think executing innocent people would protect children, either.

Posted by: Gritsforbreakfast | Mar 19, 2008 4:20:17 PM

"No one's remotely proven the death penalty IS a deterrent, and the empirical evidence (e.g., Texas' example) fails to support that position."

Actually, the empirical evidence is fairly strong, as these things go. Among articles published in peer-reviewed journals in the past dozen years, abstracts and citations of which are collected at the CJLF web site, a strong preponderance find a deterrent effect when the death penalty is actually enforced. Absolute proof of the kind you can do in mathematics is not possible in matters such as this, but the evidence for deterrence is substantial and continues to mount.

"We execute more people here than any other state, and our murder rate is significantly higher than most other places."

A simplistic statistic that proves absolutely nothing.

Posted by: Kent Scheidegger | Mar 19, 2008 5:11:31 PM

"a strong preponderance find a deterrent effect when the death penalty is actually enforced."

Although I know that any criticisms of the studies (most of which are produced by people with thinly veiled political agendas or, at best, miscode dockets) the above statement has a few caveats. The biggest one is "actually enforced." There are many reasons that people are not killed by the state. Some prosecutors think that a case is weak. Some prosecutors only want to try have the state kill someone when their crimes are amongst the worse. Some trials are defective resulting in reversals or remands which are an example of not "enforcing" the DP. Some juries decline to "enforce" the death penalty when they think that all the state's witnesses are liars. (Hey, it happens.)

See, the problem is that "enforcement" of laws in this country is tempered by our desire to have processes and policies that uphold other values. We could abandon some of those values -- usually by amending the constitution. However, efforts to do that have been soundly defeated. The closest we have come in recent years to amending the constitution is 1) regulating the salaries of congressmen (succeeded); 2) stopping people from burning flags (failed); and 3) stopping gay people from getting married (failed).

Posted by: S.cotus | Mar 19, 2008 6:31:33 PM

"A simplistic statistic that proves absolutely nothing."

It proves nothing except that in the one state where the death penalty "actually enforced" aggressively, as you would like, murders are MORE common, not less, than where it's not.

As you've said, Kent, deterrence can't be mathematically proven, and in the real world where it's used, the deterrent you so much want to exist simply hasn't shown itself.

How frustrating it can be when facts and reality fail to support our ideological suppositions, isn't it? I feel for ya, I really do.

Posted by: Gritsforbreakfast | Mar 19, 2008 7:59:54 PM

As always, the death penalty creates a great and a distorted debate. Let me articulate some of my thoughts:

1. I think REPEAT rape of a child is so awful that a state's most extreme punishment is fitting. Since Colorado has the death penalty for (first) murders, I think it makes sense also to have it for REPEAT child rape.

2. As I have said repeatedly, I am agnostic about whether capital punishment impact crime rates at all. But we've not really tried the DP for REPEAT child rape, so we do not know. What I do know if a person is MUCH more likely to get sentenced to death if they rape/kill a child than if they just rape a child. Ergo, if we but that rapists think about cost/benefits, there is no basis to suspect it could "backfire" as the Denver Post asserts.

3. I generally view life imprisonment to be MORE "immoral" than the death penalty (in part because we will all die eventually (many before we should), but we won't all be locked in a cage for life).

Posted by: Doug B. | Mar 19, 2008 8:12:03 PM

"there is no basis to suspect it could "backfire" as the Denver Post asserts"

And yet, simultaneously, no basis at all to think it won't.

Support for the death penalty is an ideological position, not an evidence based one.

Posted by: Gritsforbreakfast | Mar 19, 2008 8:37:53 PM

"How frustrating it can be when facts and reality fail to support our ideological suppositions, isn't it?"

I wouldn't know, but I'll take your word for it.

Posted by: Kent Scheidegger | Mar 19, 2008 9:17:55 PM

Or maybe Texans are just more likely to be criminals, because their culture encourages rowdy and illegal behavior. This is why I have advocated building a wall to keep them out of Oklahoma and Mexico.

Posted by: S.cotus | Mar 19, 2008 10:23:39 PM

S.cotus, most Texans, far and away, IMO would prefer a wall between us and Oklahoma than with Mexico. In addition, if there's a potential wall that would keep out Californians, I think many Texans would be quite interested.

Posted by: Gritsforbreakfast | Mar 19, 2008 10:41:49 PM

If only it were as simple as the proper and sufficient punishment. If the death penalty could be as effective as the polio vaccine, even opponents might support it. It is more complicated than that. There appears to be a strong belief in spanking and capital punishment in the U.S., but what if spanking fuels the abuse fire? (Spanking Kids Increases Risk Of Sexual Problems As Adults.) What if that's true? It could be a Soylent Green-like solution where the problem feeds the problem/solution, where punishment is the problem and the supposed solution.

The fact is, we U.S. citizens are not as smart as we thought we were, and may not be as smart as some other countries are when it comes to crime and punishment. Truth is, we don't really understand Dark Nature at all. Least of all do we understand how punishment itself is or can be a coefficient in the Dark Nature equation.

Posted by: George | Mar 20, 2008 2:57:19 PM

If you plot the murder rate per 100,000 persons versus executions per 100,000 persons over the past 40 years the curve is multivalued. For the same execution rate there are two murder rates one high and one low.

Is there a theory of deterrence that explains this result? Note that on average the execution occurs many years after the murder.

Posted by: John Neff | Mar 20, 2008 9:22:24 PM

All these comments and not one points out the biggest flaw in Professor Berman's argument - that there are multiple forms of deterrence and he mixes the two up. The first form of deterrence is whether an increase in punishment will deter crime - this is at best, highly debateable (Kent's politically motivated claims notwithstanding) because that is saying that death will deter crimes that life in prison will not deter. Its entirely possible that a maximum prison sentence of 10 years or even 1 year will deter just as many murders as death or life in prison - but there are no ideological or agenda driven organizations which would promote such research which may show that not only death, but long prison sentences as well may be unnecessary for deterring crime (which may well be impossible to prove one way or another anyway). Of course, its also perfectly rational to believe that life without parole is actually a worse punishment than death, which since you stated you believe this, it should be obvious to you why the deterrence value of the death penalty fails - anyone who values freedom will consider life in prison a worse punishment than death (as Patrick Henry put it only a few miles from where I am typing this "Give me liberty, or give me death.")

The other form of deterrence is when two crimes have the same amount of punishment, and this states that when a more serious crime has the same punishment as a less serious crime, a person who already conducts the less serious crime has no disincentive to not commit the more serious crime as well. Saying that if both repeat molestation and murder or repeat molestation alone are punishable by death, a defendant may rationally conclude that they are better off killing the victim is not the same thing as saying that the death penalty deters more crime than life in prison without the possibility of parole.

Once you see that there are two forms of deterrence, you will see there is nothing inconsistent about saying that the death penalty is not a deterrence, however, if the death penalty exists for lesser crimes, the criminals may be encouraged to murder their victims to eliminate witnesses, since the potential penalty is identical. Now, you are free to believe that repeat child molestation is as bad of a crime as murder, but there is no rational way you can argue that its not as bad of a crime as repeat child molestation and murder together.

Posted by: Zack | Mar 21, 2008 11:36:33 AM

How's this for a twist?

Crime cameras not capturing many crimes

San Francisco's 68 controversial anti-crime cameras haven't deterred criminals from committing assaults, sex offenses or robberies - and they've only moved homicides down the block, according to a new report from UC Berkeley.

Using a complicated method, researchers were able to come up with an average daily crime rate at each location broken out by type of crime and distance from the cameras. They then compared it with the average daily crime rate from the period before the cameras were installed.

They looked at seven types of crime: larcenies, burglaries, motor vehicle theft, assault, robbery, homicide and forcible sex offenses.

The only positive deterrent effect was the reduction of larcenies within 100 feet of the cameras. No other crimes were affected - except for homicides, which had an interesting pattern.

Murders went down within 250 feet of the cameras, but the reduction was completely offset by an increase 250 to 500 feet away, suggesting people moved down the block before killing each other.

Posted by: George | Mar 21, 2008 5:27:48 PM

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