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July 6, 2008

A (silly?) Kennedy technicality: can prosecutors still pursue capital child rape charges?

Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state to seek to execute a defendant for the crime of child rape.  But here is a (silly?) technical question in the wake of Kennedy: is it clearly unconstitutional and/or unjust for a state prosecutor to pursue a capital charge against a terrible child rapist? 

Of course, this question only arises in the handful of states that statutorily authorize capital child rape.  But the question may not be merely an academic's fanciful concern for a few reasons:

1.  As the Kennedy opinion indicates, there may be 100 pending capital rape cases in Louisiana (and perhaps a few in some other states).  Does the Kennedy opinion require re-indictments in all these cases, or might a prosecutor opt to continue with these cases under existing state capital law?  One justification for continuing with capital prosecutions could be a genuine hope that an evolving national consensus (or a constitutional amendment) might eventually make execution of terrible child rapists permissible.

2.  Even if a state prosecutor believes a rapist can and never will be executed for a terrible child rape, he or she might still want to seek a death sentence for symbolic or emotional reasons.  Perhaps the victim is eager for the rapist to be condemned to death even if everyone knows the sentence will never be carried out.  Or perhaps a prosecutor believes that securing a death sentence for child rape might facilitate later securing a death sentence against the same defendant for some other capital crime scheduled to be prosecuted at a later time or in another jurisdiction.

3.  And what is a prosecutor concludes that still pursuing capital charges for a terrible child rape makes it easier under state law to secure an life sentence (or to secure a plea agreement to avoid the costs and harms of a trial)?  Indeed, one could even imagine a defense-oriented spin to these issues: perhaps a capital indictment enables a child rape defendant to get extra resources for his defense and/or a death sentence might enable a child rape defendant to be housed under special prison conditions that are preferable to being in the general prison population.

Of course, whether permitted or not, it seems highly unlikely that many (or any) state prosecutors will want to expend time and energy seeking death sentences that likely can never be carried out.  (Then again, prosecutors in California and other states that rarely execute still continue pursuing capital charges even though they must know that a death sentence against any particular murderer is unlikely ever to be carried out.)  But I still find it intriguing, and maybe not totally academic, to think about whether Kennedy precludes only certain types of executions or more broadly preculdes certain types of indictments and prosecutions.

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July 6, 2008 at 04:35 PM | Permalink


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Doug Berman raises the interesting question after the decision in Kennedy v. Louisiana:Unless the Supreme Court reconsiders its Kennedy ruling (which seems doubtful, despite good cause), it is now unconstitutional (and thus surely unjust) for a state t... [Read More]

Tracked on Jul 8, 2008 11:30:46 PM


What the hell is a "terrible child rapist" versus someone accused and/or convicted of child rape?

Surely all child rape is terrible, so you're not just speaking about "worst of the worst" cases, because any child rape will be described to sound like the worst of the worst, and anyone who even implies that it's not a terrible crime will be flamed.

As I've said before, most children today are so worthless that being used as a rape toy by a violent pedophile will probably be the most useful they ever are towards another human being in their lifetimes. But surely evidence that the child is a worthless, whiny, spoiled brat who spends more time whining about cellphones and mp3 players than studying in school and spends his/her weekends spraypainting and vandalizing things will not be allowed to be introduced by the defendant. Nor would most juries even consider it as mitigating evidence (I would... but I probably wouldn't get on such a jury to begin with... yeah yeah I know, you're glad...yay for voir dire).

So... how do you separate child rape that should not be punished with death from "terrible" child rape that ostensibly should?

Also, why is the fact that executing people for rape encourages them to kill the victim not worthy of more than 2 sentences in the entire Kennedy decision? The way I see it, anyone who wants to execute child rapists is pro-child murder.

Is child murder not as bad as child rape? I ask this seriously - most people are so stupid and emotional and squeamish that they probably DO consider a child being raped worse than a child being murdered with a gunshot to the back of the head.

If I were to rape a child in a jurisdiction that executes such criminals, I'd sure as hell kill the victim so he/she would not be able to testify against me or identify me. The punishment would be the same - so it would be irrational not to do so. All you "execute child rapists" idiots are not only encouraging violent criminals to murder their child victims, you're making it logically irrational for them NOT to do so. IDIOTS.

THINK. Use LOGIC. Not emotion. LOGIC. Use your fucking heads, not your cholesterol-clogged, fat-infested hearts.

Posted by: bruce | Jul 6, 2008 6:08:54 PM

Doug, first of all the comment above is not from me.

Second, I think your suggestion that a defendant can be tried for an offense which carries with it a sentence that he is not exposed to carries Apprendi, due process and ex post facto implications.

In Apprendi et al. the Court is settling in on the notion that crimes are defined in terms of what sentence a def is exposed to. Both Scalia and Thomas talk about any facts which entitle a prosecutor to ask for a certain level of punishment to be elements of a crime.

I believe that your notion that a def can be tried for a crime which carries a punishment that he cannot be exposed to violates due process because he is being tried for a greater crime than he has been charged with or , for that matter, exists at the current time. To say that the punishment may later rise from the ashes like a phoenix is also, in my opinion, violative of the ex post facto clause.

I will say your notion is intriguing, particularly as it highlights that the now 6 to 3 "happy band" of Apprendi believers(with Roberts coming on board in Cunningham v California) view crimes in terms of the available punishment. In other words, there is no such thing as capital child rape any more since under no set of facts is a prosecutor entitled to ask for a sentence of death.

Thanks for keeping us thinking.

bruce cunningham

Posted by: bruce cunningham | Jul 6, 2008 7:02:25 PM

In other words, "now that the death penalty for child rapists is illegal, can prosecutors continue to ask courts for an illegal punishment?"

No. Only a legal academic could come up with something so absurd.

Posted by: Tan | Jul 6, 2008 7:26:03 PM

bruce, according to your tortured logic, after someone commits a death-eligible murder, he/she ought to murder every single witness/cop/official who might help prosecute the murder since he cannot get a worse punishment. This ridiculous notion is no crazier than your nuts "LOGIC" that every rapist can/will kill his victim if child rape is a death eligible crime. And, speaking of logic, a truly smart rapist will know that many kids will not report a rape, whereas few child murders go unnoticed.

Similarly, that you fail to appreciate the possibility that child rapes can/should be distinguished as to degrees of seriousness also suggests an obtuseness given that we readily think murders can be distinguished. (E.g., multiple killings/rapes are worse than single instances, etc.) Indeed, the Supreme Court demands distinguishing murders, even though killings are more severe than some rapes.

Finally, Tan, federal prosecutors often ask for (and obtain) punishment based on acquitted conduct, and all the circuit courts have blessed this practice. Within such a world, I sadly do not think my academic musings about the meaning and import of the Kennedy rule are more absurd than what we see in criminal courts all the time.

UPDATE: I fixed the glitch in this comment that had its author listed as "bruce." Sorry for any confusion.

Posted by: Doug B. | Jul 6, 2008 9:42:10 PM

Doug, apparently posting under the strange moniker of 'bruce' (which I presume is a technical glitch of some kind?), wrote: "Within such a world, I sadly do not think my academic musings about the meaning and import of the Kennedy rule are more absurd than what we see in criminal courts all the time."

And that's the story. We live in a world where Bill Otis and Co.'s inane and seriously detrimental ideological views prevail (often, regardless of the law itself). So I agree with your quoted statement. But, maybe you could use your privileged position as a law professor to help us out instead of encouraging the crazies?

Posted by: DK | Jul 6, 2008 11:35:48 PM

i've always used 'bruce' here, for whatever it's worth.

other bruce: I certainly do appreciate that child rapes can and should be distinguised into degrees of seriousness - but by what objective criteria would we use to determine which ones are the 'terrible' child rapes, i.e. the one worthy of capital punishment? Nobody is going to say "this particular child rape is not that serious" - quite the contrary - a prosecutor will say it's the worst one he's ever heard about, and then go down the hall to the next courtroom and say the same exact thing about another child rape case. And in each case there will be whining victims, wearing big "kill him" buttons and tshirts and waving their victim flags demanding the most serious punishment permissible. Whine whine whine. So if "terrible" child rape is to be separated from "non-terrible child rape" I again ask - by what objective criteria do we make the distinction.

after someone commits a death-eligible murder, he/she ought to murder every single witness/cop/official who might help prosecute the murder since he cannot get a worse punishment.

Not necessarily, it depends on the facts. And in most cases the criminal doesn't have the option of doing what you describe. How could they kill every cop and witness and gov't official who might help identify and prosecute them? That could be dozens of people. If raping the victim and leaving him/her alive results in the same punishment as raping and then killing the victim, it makes sense to kill the victim. Most rapes take place with no witnesses - the victim is the only witness. Why leave the victim alive to ID you, point you out in court, sob on the stand, and cry about how you've ruined his/her life, when killing the victim causes no increase in punishment? It makes sense to kill the victim. You're created and supported a law that induces rapists to become murders.

But again, I think many people are so emotionally guided and stupid that they actually do think child rape is a worse crime than child murder.

Posted by: bruce | Jul 6, 2008 11:43:05 PM

"So if "terrible" child rape is to be separated from "non-terrible child rape" I again ask - by what objective criteria do we make the distinction."

*Graphic Descriptions Follow*

I will make a clear distinction for you. The first, is where the minor is sadistically and brutally, vaginally/anally raped and needs reconstructive surgery, or even dies (obviously Capital).

The second is, where the offender rubs the head of his penis, between the minor's vaginal lips, as she sleeps.

In our country (I cannot recall your laws), oral sex on/by a minor, under 13, is also 'rape', so, same again above, for oral acts.

I avoid any issues of consent.

The first 'may' be discussed as a capital crime, the others, unacceptable, but hardly warranting death.

I do subscribe to the 'what have I got to lose?' theory.


Posted by: Dr Nigel Leigh Oldfield | Jul 7, 2008 3:48:37 AM

I view Doug's musings as often a catalyst for useful thoughts that possibly may not have been considered and this discussion about "terrible" child rape does, in my view, have real world implications.

Which is whether the capital aggravating factor of "the killing was especially heinous, atrocious and cruel" can withstand due process vagueness scrutiny in the post Ring world? I believe it cannot if it is the sole aggravating factor elevating what Justice Scalia in Sattazahn v Penn calls "murder simpliciter" to the greater offense of "murder with one or more aggravating factors."

Before Ring, the notion that the killing was especially heinous atrocious and cruel, which is subjective in the same sense "terrible" is subjective, was a sentencing factor which increased the punishment for First Degree Murder. After Ring, assuming the aggravator is the only aggravator in the case, the "fact" is an element of a greater offense of capital first degree murder. (I am using NC nomenclature. I understand in Louisiana their Second Degree Murder is NC's first degree murder)

Amanda Zimmer, Heather Rattelade and I have written an article on Ring's application to capital litigation in North Carolina which will appear in an upcoming issue of NC Central Univ. Law Review. We argue that, again in Justice Scalia's terminology in Brown v Sanders, the former sentencing factor of heinous atrocious and cruel killing can serve as a "death selection fact" but not a "death eligibility fact."

In other words, if the subjective "fact" of the killing being especially heinous is the only aggravating factor, the defendant may not be exposed to a death sentence.

Bruce Cunningham

Posted by: bruce cunningham | Jul 7, 2008 8:09:19 AM

I agree with the idea that "most people are stupid," but coming from some people it's more than a little rich.

To respond to "bruce" (moldovan, not cunningham)'s arguments on their own terms,

1. One way to separate "worst of the worst" child rapists are the violent ones. Nonviolent child rape is still "terrible," but it's probably less "terrible" and the effect on the victim is probably not as bad as what happened to the victim in Kennedy.

2. If you want to debate the "value" of children in coldly logical terms, perhaps lies largely in their potential to be productive members of society later in life. Most children don't produce anything and just mooch off of either their parents or society, but that state needn't persist forever. If I thought that the average child was more likely than not to grow into someone like bruce, then I'd agree wholeheartedly with the first sentence of the third paragraph of his initial comment. However, I don't, so I disagree. Violently raping a child decreases the child's potential to do useful things later in life, so it's worthy of punishment... perhaps even worthy of death.

3. Prof. Berman has already addressed the ridiculous "LOGIC" that leads to the proposition that "I left a potential witness alive" should suffice to spare someone from the death penalty. Anyone who disagrees is pro-potential-witness-murder, so don't bother responding.

Posted by: | Jul 7, 2008 8:40:38 AM

Doug, another wrinkle in your idea that Kennedy only prohibits the actual execution of a defendant convicted of child rape, rather than a prosecutor symbolically asking the jury to return a sentence of death is the death qualification of the jury that must precede the trial.

Death qualification, or the culling of all jurors whose death penalty views would substantially impair their ability to serve, results, in my opinion, in a jury more prone to convict the def of any crime. Such culling of the venire, with no legitimate reason, would violate a defendant's Sixth Amendment right to a jury composed of a fair cross section of his peers.

Doug, your idea would be out of hand rejected by Justice Scalia since it "operates on the spinal column of our democracy."

Bruce Cunningham

Posted by: bruce cunningham | Jul 7, 2008 9:00:42 AM

Professor Berman:

The third reason you suggest for seeking death sentences after Kennedy would be unethical on the part of the prosecutor. Death penalties, if they are sought at all, should only be sought if a prosecutor believes that the death penalty is legally and morally appropriate for a given crime. Using the death penalty simply as leverage in plea negotiations (or to get a death-qualified jury, as bruce notes) is an abuse of power.

As for the first two reasons - look, nobody likes child molesters, and Kennedy is not the best-reasoned decision in the history of the Supreme Court. But once this has settled down, I hope that most people will realize that expanding the death penalty to non-homicide crimes was simply bad policy (which is why few states other than Louisiana were willing to pursue it). In my experience as a defense attorney, the automatic life sentences handed down for child sex offenses already discourages the reporting of some sex crimes; the death penalty would only act as a further incentive to hide these offenses - a result that nobody wants.

More fundamentally, there are enough problems with the application of the death penalty in homicide crimes. Expanding the penalty to the larger number of non-homicide crimes would create a disaster for the criminal justice system in every conceivable way - expense for the state, inadaquete counsel, actual innocence claims, etc. etc.

Posted by: rn | Jul 7, 2008 2:49:48 PM

One way to separate "worst of the worst" child rapists are the violent ones. Nonviolent child rape is still "terrible," but it's probably less "terrible" and the effect on the victim is probably not as bad as what happened to the victim in Kennedy.

Yeah that sounds good and reasonable, and it's precisely what I'd suggest as an objective criteria. But in reality every prosecutor would say his case is a "terrible" one. No prosecutor would ever concede that the child rape case he was handling was not terrible. Every criminal is always the worst one. Every crime is always the worst one. And then you get the "victims rights" jackasses screaming at the notion that the rape of their cute, precious child was not "terrible" - by gosh that's siding with the rapist!

The 'impetus to kill the victim' logic has most certainly not been addressed, at least not satisfactorily. I explained in my previous post why what Prof. Berman wrote was (most respectfully) not applicable. What defendant ever has the opportunity to kill all the witnesses and cops and officials involved in identifying and/or prosecuting him? None. Well, maybe a mad bomber on an airplane (who actually has a working bomb). That's about it. The point is, once you've already raped someone, it doesn't take much more to kill them - they might already be close to death as it is. So, why not go the extra mile and make sure they die - it will guarantee the victim won't appear/testify as against you, and won't identify you after the crime. Might just take one more punch to the face to get it done. The Kennedy majority addressed and recognized this principal, but only in two or three sentences towards the end. I think it's much more important than that. Then again, deciding constitutional issues on public policy grounds is always disfavored.

Posted by: bruce | Jul 7, 2008 7:35:07 PM

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