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July 16, 2008

Can too many child rapes be a constitutional argument against making this crime death-eligible?

I am intrigued but troubled by the arguments developed by John J. Donohue III and Daniel Schuker over at Balkanization, in this post titled "Dodging the Death Penalty Bullet for Child Rape." The post asserts that Supreme Court's decision in the Kennedy child capital rape case "managed to reach the correct result of saving the state and the country from a major, and almost certainly harmful, expansion in the use of capital punishment."

After discussing the military law error that might be the hook for the state of Louisiana to seek rehearing in Kennedy, this post runs some numbers and makes these interesting assertions:

Coupling [a Department of Justice victim-age] estimate to findings in the 2005 National Crime Victimization Survey implies that roughly 36,500 children under 12 were victims of rape.  By comparison, 16,740 murders took place that year.

If we include both reported and unreported incidents, the annual number of child rapes may thus exceed Justice Kennedy’s estimate by at least a factor of six.  The Court’s decision, consequently, forestalls the costly and ultimately ineffectual legal haggling that would take place over an immense new body of death-eligible cases.

Even if we executed as many child rapists as we did murderers — there were 98 executions in 1999, the most in any year in more than half a century — narrowing down some 36,000 incidents of child rape to the 100 most egregious would prove a taxing and largely ineffective gesture....

Conceivably, the concerns about discrimination, arbitrariness, and the waste of scarce judicial resources could be overcome if the death penalty lessened the incidence of child rape, but there is no reason to believe that capital punishment will be any more successful in reducing child rapes than it is in deterring murder....

Untold resources are spent deciding which vile crimes merit the death penalty, when equally serious crimes avoid this sanction.  A wiser choice could be to invest those resources in providing aid to victims and working to prevent repetitions of these awful crimes.

Having avoided the legal mayhem of adding a new realm of death penalty prosecutions, the country can now focus its efforts on solving, instead of creating, vexing social problems.  The Court’s ruling should encourage legislators to take serious steps to address the abuse of children in all its many tragic and damaging forms, rather than to grandstand with death penalty laws whose implementation will certainly be highly unusual if not cruel.

Though there are a lot of logical steps in this argument that might be subject to debate, I have a hard time at the outset understanding if the authors are really claiming that the Kennedy decision reached a "the correct result" as a constitutional matter or just a proper policy outcome.  The final sentence of this long post almost concedes that it may not be cruel to execute certain child rapists.  If the authors come to that conclusion, how exactly they defendant the constitutional conclusion that the policy choice by the Louisiana legislature is precluded by an amendment that only prohibits cruel and unusual punishments?  (Notable, some state constitutions prohibit cruel or unusual punishments, but the Eighth Amendment uses the conjunctive.)

As a voter and a taxpayer, I share the authors' instinct as a policy matter that it is a poor use of limited state resources to apply the death penalty to child rape rather than to use these funds for other crime-prevention purposes. But, of course, the same argument can (and likely should) be made against almost all long prison sentences and many other aspects of the modern criminal justice system.  I do not think most folks (even most anti-punishment scholars) seriously contend that the US Supreme Court ought to actively use the Eighth Amendment to regulate the efficacy of how states allocate their crime-fighting dollars.  And yet, apparently when it comes to the death penalty, the authors of this post (and perhaps the Justices in the Kennedy majority) believe this is an appropriate way to apply the Constitution.

I have a lot more criticisms of this post --- e.g., the failure to recognize that all states but Louisiana had limited capital child rape to the smaller population of repeat rapists, the failure to acknowledge that deterrence realities for child rape may be VERY different than for murder, the failure to appreciate that the development of degrees of rape through the death penalty might produce collateral legal benefits (as it has in the context of the history of the death penalty) --- but it is the post's fundamental failure to distinguish (or desire to conflate?) policy arguments and constitutional claims that gets my legal-process goat more than anything else.

July 16, 2008 at 06:24 PM | Permalink


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Is what they're getting at, though, summarized in this syllogism:
(a) The Death Penaly is a "two wrongs _almost_ never make a right" punishment.
(b) Looking at our contemporary understanding of it, the "almost" should be paramount and the death penalty limited to the most socially outrageous and morally apprehensive crimes.
(c) There were 36,500 reported child rapes and many more unreported in 2005.
(d) This act is an act being performed by potentially hundreds of thousands of Americans. (Or at least being performed hundreds of thousands of times.)
(e) Therefore, it cannot be so socially outrageous and morally apprehensive.
(f) Therefore, it is cruel and unusual to apply the death penalty for that crime.

I'm not defending the logic, but that's the logic, right? If too many people do it, then it can't be so outside the mainstream as to require captial punishment for it?

Posted by: (Former) District Clerk Battling Booker | Jul 16, 2008 6:44:41 PM

(F)DCBB, I'm not sure that (a) is the reason for premise (b), but the rest is about right.

I'm not sure what the philosophical reason is for the idea that the death penalty should be extremely rare, but that idea is widely accepted, and it's probably sufficient to start at (b).

Posted by: | Jul 16, 2008 7:31:44 PM

"I do not think most folks (even most anti-punishment scholars) seriously contend that the US Supreme Court ought to actively use the Eighth Amendment to regulate the efficacy of how states allocate their crime-fighting dollars."

A reasonable objection, but I wonder what percentage of the state dollars are actually federal dollars allocated through different federal crime bills to fight crime.

Posted by: George | Jul 16, 2008 11:36:21 PM

Doug wrote: "...but it is the post's fundamental failure to distinguish (or desire to conflate?) policy arguments and constitutional claims that gets my legal-process goat more than anything else."

How would you determine what's "cruel and unusual"? And how do you pretend that how you answer that question is not rooted in policy considerations? If we're going to be honest, let's be honest. Besides, the Supreme Court has long applied policy tests to constitutional text. That's why it often weighs State interests against individual interests. The text of the First Amendment certainly does not contain an exception for yelling fire in a crowded theater.

Posted by: DK | Jul 17, 2008 12:12:57 AM

Fair point, DK, and I agree that some measure of "policy" is always influencing constitutional rulings (and certainly there will always be subjective judgments integral to constitutional claims). But, especially in the context of the Eighth Amendment and claims raised by individual defendants, I think the policy judgments can/should/must focus on case-specific factors rather than on system-wide factors.

Consequently, I could understand an argument that says in the Kennedy case is the C&U to seek to execute Patrick Kennedy because the process for selecting him as the first child rapist to be executed fails to ensure he truly is among the most horrific child rapists deserving death and it is constitutionally problematic to subject a person to the punishment of death as a result of a rigged lottery in which he is the only one to have been given a death ticket. But to say it will cost the system a lot of money and will likely not produce benefits worth the costs to allow this use of the death penalty seems to turn the Eighth Amendment from a constitutional claim that can be brought by defendants claiming they were wronged into a mechanism enabling courts to be super-regulators of the general operation of criminal justice systems.

That all said, I might really prefer a legal universe in which courts use the Eighth Amendment as a means to super-regulate the operation of criminal justice systems. But what gets my goat is the willingness of so many to embrace the Justices' super-regulatory efforts in the death penalty context and then to resist these efforts in non-capital settings. In other words, I guess what really gets my goat is the tendency of courts and scholars and others to approve polcy-based methodology in capital contexts but in so few others.

Posted by: Doug B. | Jul 17, 2008 7:56:04 AM

"36,500 reported child rapes"

I haven't had time to look into this figure, but it strikes me as suspicious... not because of the number, but how the number was calculated. After all, it's widely agreed that most of these crimes go under-reported.

Posted by: Steve | Jul 17, 2008 8:43:38 AM

Sorry, that should be "unreported"

Posted by: Steve | Jul 17, 2008 8:44:28 AM


Just two points.

First, if you go through Justice Kennedy's description of the rape, I think you'll see that it was extremely aggravated and brutal. The anatomical details are painful to read, apart from being disgusting.

Second, to whatever extent various policy considerations belong in Eighth Amendment analysis, cost factors must be at the very bottom of the list. Cost per se has absolutely nothing to do with whether the DP for child rape comports with the famous "evolving standards of decency." Even more to the point, cost is something over which the elected branches, not judges, have and ought to have a full measure of control.

In other words, the budgetary question whether we want to invest tax dollars in capital prosecutions is quintessentially one to be decided by those who'll be called upon to pick up the tab -- namely, the taxpayers. There is no earthly reason courts should have a say in it.

For that reason, the article is wide of the mark. One of its principal points is that, with so many thousands of child rapes out there, a system that provides the possibility of capital punishment for them is too expensive. But the authors seem to overlook the obvious fact that, just as with capital prosecutions for murder, capital prosecutions for child rape will be only a miniscule percentage of the overall universe. And if the expense of doing even this very small number of child rape capital prosecutions gets too high, the answer is not for the courts to find that the death penalty for child rape is an Eighth Amendment violation -- which would be the non sequitor to end all non sequitors -- but for the executive branch to do fewer of them.

Cost considerations are perfectly valid in deciding whether to seek the DP in any particular case, but they do not even arguably establish that the DP ought to be taken off the table for all time and AS A MATTER OF CONSTITUTIONAL LAW, no matter what the circumstances.

Posted by: Bill Otis | Jul 17, 2008 9:36:37 AM


I believe you are correct in stating that executions of child rapists would have constituted a "miniscule percentage" of the overall universe. Indeed, that was the case pre-Kennedy. The Louisiana law (which allowed the death penalty for essentially any child rape, no matter what the circumstances) had been on the books for over 10 years, but led to only two death penalty convictions. The other jurisdictions had much narrower statutes that never led to any death sentence.

But . . . isn't this even more problematic from an 8th amendment perspective? If the death penalty is only imposed for a "miniscule portion" of child rapes, what is the purpose of having it at all? How, for example, could it have a deterrant effect if it was almost never used? Imposing the penalty in these circumstances is arguably cruel - and certainly "unusual".

This, indeed, was exactly the logic adopted by the more conservative judges (Stewart and White) who joined the majority in Furman, which briefly struck down the death penalty for murder.

Posted by: rn | Jul 17, 2008 2:22:17 PM


You are quite right in saying that the DP is not imposed often enough to have the deterrent effect it could. But it does have a deterrent effect even being carried out in the very small percentage of murder cases in which it could apply. That, at least, is the finding of each of a dozen studies over the last few years. The studies are collected in Kent Scheidegger's C&C website, and Kent discussed them in his testimony in California earlier this year. I believe he also mentioned them in the debate he and I did together last month on the Federalist Society website.

You are also correct in noting that the death penalty is, to say the least, rarely imposed for child rape. I believe the last such case in this country was over 40 years ago. But that does not make it "unusual" in the sense used in the Eighth Amendment. (If it did, executions for murder could not have resumed in 1977, there having been not a single one for the preceding ten years). "Unusual" in the Eighth Amendment sense means "bizarre" or "freakish," not "occurring very infrequently."

In addition, Eighth Amendment jurisprudence has changed in the 32 years since Gregg was decided. The whole idea of trends in public acceptance of the death penalty has grown up since then. This is an idea of which I am a great deal less than fond, but there it is, whether I like it or not.

Under this notion of trend-spotting, that which is infrequent might still not count as "unusual" in the Eighth Amendment sense, if growing public acceptance of it (exemplified, for example, by an increasing number of states that adopt it) can be shown.

Posted by: Bill Otis | Jul 17, 2008 3:11:38 PM


I would not conclude that a punishment is "unusual" simply because it has not been used for a long time. That said, I don't why the frequency of a punishment's use would not have some bearing on whether it is "cruel and unusual".

The Louisiana law, which made essentially any child rape a death penalty offense, was passed over 10 years ago. Presumably hundreds of cases filed since then have qualified for the DP. Until Kennedy, prosecutors had sought the death penalty in a total of 4 cases, and obtained it in 2. This frequency of capital sentences seems to me to be "unusual," or even (to borrow your language) "freakish." To borrow Potter Stewart's phrase, getting a death sentence for a child rape in Louisiana was like being "struck by lightning."

As for "trend-spotting", only 6 states had allowed the death penalty for child-rape - and 4 of those states confined capital punishment to repeat offenders (a 5th, Georgia, required additional aggravating circumstances), a requirement that drastically limits the number of death-eligible cases. Indeed, Louisiana may have been the only place in the country where Kennedy's offense was death penalty eligible.

Whatever one may think of the Kennedy opinion (and I agree with the result, although for different reasons than those stated by the majority) it was correct to strike down the Louisiana law, which was (a)unique in expanding the death penalty to all child rapes, and (b) not being applied in any sort of reliable or consistent fashion.

Posted by: rn | Jul 17, 2008 5:26:55 PM


Child rape is a vague term that can include all sorts of things and really shouldn't be used in a substantive conversation about law or policy. It's a media term, and that is it.


I am not taken with the SC's 8th amendment logic primarily because it's circular. It has left us with a penal system that remains stuck in the 1800s. Anything novel is by definition unusual and therefore out of line. The death penalty for rapists is neither cruel (unless you believe all death is cruel) nor can it be said to be unusual (unless you believe that there is no death penalty in America.) I disagree with it from a policy standpoint, but I don't agree it's unconstitutional.

Oh wait. It is unconstitutional because the court has now said so. I need to keep repeating that to myself.

Posted by: Daniel | Jul 17, 2008 6:15:21 PM

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