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February 16, 2009

In Alabama, the Kennedy case did not end talk of the death penalty for child rape

Apparently, it takes a while for a SCOTUS decision about constitutional limits on the death penalty to make its way down to Alabama.  That conclusion is the only way I can fully make sense of this local Alabama story, headlined "Capital Punishment for Certain Pedophiles?".  Here are excerpts from the piece:

Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.  State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.

The death penalty is a punishment that — so far — has been reserved only for murderers. Should child molesters now be included?

With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger. “You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst....

Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start. “You’ve got to keep knocking at the door, or you can’t never get in.“ Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.

Of course, last summer in the Kennedy case, the Supreme Court declared unconstitutional a Louisiana law making child rape a death-eligible crime.  This Alabama story does not even mention the Kennedy case, and I cannot help but wonder if Representative Hurst and his staff realize that the Justices have already declared unconstitutional the bill he has proposed.  

Then again, maybe Representative Hurst knows all about the Kennedy case and seeks to be at the forefront of a constitutional vanguard here.  In the absence of a constitutional amendment, only way for capital child rape to become constitutional would be through a new evolving national consensus in favor of such a punishment.  If Representative Hurst can get his bill passed in Alabama and then encourage a few dozen other states to pass similar bills, he might lay a foundation for the Supreme Court to revise its interpretation of the "evolving standards of decency" that serve as its jurisprudential touchstone for the Eighth Amendment.

February 16, 2009 at 07:48 AM | Permalink


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I am the executive director of Project Hope to Abolish the Death Penalty, a death row organization founded on death row in Alabama in 1989. I appreciate your above comment and will share it with our email list.

Many thanks!
Esther Brown

Posted by: Esther Brown | Feb 16, 2009 8:44:23 AM

Just like to point out that the "sub-banner" says "Accuracy Matters."

Posted by: . | Feb 16, 2009 9:11:55 AM

I'm not in the legal profession, but ever since I first heard of the proposal of the death sentence, just using my common sense, I wondered: There are so many, many accused sex offenders, and a lot of degrees of offenses. A lot of these men are unstable. What if there were a death penalty for sex offenses, and, say one committed something, fondling, or even rape, but was scared of the death penalty for murder? I expect a lot of offenses are kept to something that doesn't hurt the child as much as death would hurt. But, if this death penalty goes wild like other sex laws, if the guy isn't too bright, his best bet would be to kill the child after an impulsive act that didn't do much harm. Be careful what you wish for. This is to "protect the children".

Posted by: Donna | Feb 16, 2009 4:15:55 PM

Legislators routinely propose legislation that they know to be unconstitutional under existing precedent. There are dozens of bills every year, for example, to repeal Roe v. Wade, establish an official religion, and so on.

Indeed, one of my pet theories of life, which I call the sovereignty of the group, holds that the larger a group is, the less capabable it is of limiting group decisions to any form of outside boundaries or limitations.

Alabama, in particular, is so bad in this regard that all efforts to expunge unconstitutional provisions from its 1901 constitution have failed and there is now an effort underway to have the 1901 constitution, in its entirety, invalided for lack of proper adoption. There is not enough of a bipartisan consensus there to repeal even clearly unconstitutional provisions.

Posted by: ohwilleke | Feb 18, 2009 3:07:33 PM

i was convicted in 1984,1985 for second degree theft.put on probation and paid all my restituion payments.in 1998 alabama state pardon and and parole board granted me a pardon,in 2005 i was granted a pardon by the alabama state pardon and parole board,in 2009 i was granted a full pardon by the alabama state pardon and parole board. i have live an normal life ever sense.please help if you can alabama does not have a expungement law.time are ruff in you have a felony record.

Posted by: westley lewis | May 7, 2009 6:59:18 PM

How can one of my veterans apply for a pardon? I assist veterans in Morgan County, alabama in obtaining jobs, training and benefits. Can you tell me if there was ever a bill enacted that would enable a convicted felon (of a non-violent, non sex-related crime) who has completed his sentence to be able to petition to get his/her record expunged? I know there have been several bills brought up but don’t know if they were passed/enacted.

Posted by: Janine Jordan | Mar 1, 2011 11:09:05 AM

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