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August 19, 2009

Oklahoma legislator pushing death penalty for repeat sex offender

Though I read the 2008 Supreme Court decision in Kennedy as suggesting that the death penalty is always constitutionally disproportionate for non-murder personal crimes, it seems that some state legislators still view capital punishment for certain sex offenders as a possibility.  Specifically, as detailed in this local piece, which is headlined "Debate Continues Over Death For Sex Offenders," at least one Oklahoma legislator is not willing to give up on death as a possible punishment for repeat sex offenders:

The debate over whether the death penalty should be an option for repeat sex offenders is heating up. One state lawmaker says yes and that he plans to introduce a bill to make it happen. But, not everyone is on board.

The move comes after the recent arrest of Marcus Berry, a twice-convicted sex offender who is now being held in the Tulsa County Jail on a million dollars bond for allegedly abducting a two-year-old girl from her front yard.

Many people are asking how can a man who has two convictions for lewd molestation still be out on the streets? Being taken away in handcuffs isn't something new for the 56-year-old, who was convicted of lewd or indecent acts or proposals to a child in 1986 and lewd molestation in 1993. On that 1993 conviction, Berry served less than 13 years of a 30-year sentence before being released.

Just last week, Berry was arrested after police found his truck in a field. Inside, police say Berry was found with his pants down. Next to him -- a partially dressed two-year-old girl he allegedly kidnapped from her home.

State Representative Rex Duncan wants to make sure that never happens again. "As a father of daughters, this just screams out for some change, something different," Duncan says. "This guy is the Willy Horton of child rapists, child molesters.  And, it should never have happened."

Duncan wants to make it tougher for sex offenders. His legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction.  "They need to die in prison so that Oklahoma families and parents will have the peace of mind and confidence to know that a Marcus Berry will never walk the streets again," Duncan says.

A similar bill passed in Oklahoma in 2006, but was shot down by the Supreme Court a year later. Duncan says his bill would be much more specific than that bill and thinks it would be upheld by the Supreme Court.

When the Supreme Court took up the Kennedy case, I was disappointed that the Justices were to consider the constitutionality of capital punishment for child rape in the context of a first offender rather than a repeat child rapist.  Though I do not read the majority opinion in Kennedy as allowing different constitutional treatment of recidivist offenders, other Eighth Amendment rulings clearly support the concept that a punishment which would be unconstitutional for a first offender might be permissible for a repeat offender.  Thus, perhaps what is being debated in Oklahoma is not so constitutionally crazy.

August 19, 2009 at 10:43 AM | Permalink


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"As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken."

Anthony Kennedy wrote that on his own initiative, even though he could have restricted it to just a single instance of rape. I find it hard to believe he'd go back and carve out an exception for multiple offenders.

"On that 1993 conviction, Berry served less than 13 years of a 30-year sentence before being released."

Sounds like OK screwed up by not allowing a life sentence as an option to begin with for repeat offenders.

Posted by: . | Aug 19, 2009 11:03:27 AM

"His legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction."

Most. Illogical. Legislation. Ever.

Posted by: . | Aug 19, 2009 11:06:16 AM

Most. Illogical. Legislation. Ever.


What about those brought up on charges against multiple victims? Or a case where a second victim is found after the conviction for the first?

I believe that Kennedy (and even Roper) was wrongly decided, but I don't see the court going for this. I doubt they would even revisit their evolving standards examination if every state were to enact such a law. Mostly because I see their evolving standards test as a pretextual way to find what they were going to say regardless.

Posted by: Soronel Haetir | Aug 19, 2009 11:49:39 AM

One problem is treating vastly different cases alike. This guy kidnaps two year olds!! That is scary. But, if the Oklahoma law goes through, then it will be applied to, for instance, a man who is accused, by an angry divorcing wife, of "touching her 12 yr old daughter in the wrong place, then the prosecutor is able to find that he was accused of touching a peer when he was a kid, so he is a repeat offender. In Kansas, juvenile adjudications count on criminal history just as much as a record of a 56 year old man who molested a two year old. In Kansas, until June 2009, this same man could be called a persistant sexual offender, and his sentence doubled, due to the juvenile adjudication. If the death penalty gains favor, it is likely that many men who are poor and unable to defend themselves, may be accused of touching, by an angry wife (which is so very common), and it will be found that when he was 12 he was accused of touching another 12 year old, and it was so long ago, back in the 70's when juvenile court wasn't taken that seriously by anybody, and it was informal, with no jury trial. Then, the prosecutor can execute somebody who is NOWHERE similar to this scary 56 year old who has the nasty habit of kidnapping and raping two year olds.

I think that molestation combined with kidnapping should be a different thing than an accusation by a divorcing spouse of a "touch" of a 12 or 13 year old. And, I think that raping a two year old is somewhat different than touching a 12 or 13 year old, even if the guy actually did it. Why can't there be better definitions of "sex offenders". Nancy Grace and John Walsh say "kill all the scum bags." They don't care if they were guilty or innocent, just kill them all just in case. And, Mark Lundsford got Jessica's law passed, and then he didn't like that law when his son did something to a peer, and his son was never prosecuted under Jessica's law. Anybody else's son would have gotten 25 years.

Posted by: DLJ | Aug 19, 2009 12:15:02 PM


Given that I believe any felony conviction should open someone to the possibility of a death sentence your example doesn't really bother me that much.

Posted by: Soronel Haetir | Aug 19, 2009 12:36:18 PM

Talk about over-reaction. Instead of setting "the penalty for a first-time sex offender at life without parole" regardless of the circumstances of a crime, why not fix the fact that a 2nd time offender "served less than 13 years of a 30-year sentence." That's the rationale response.

Posted by: DEJ | Aug 19, 2009 1:42:32 PM

The legislator is riding the feminist hysteria horse assailing male sexuality.

The more proper proposal is 123 violent offenses of any kind, D.

Posted by: Supremacy Claus | Aug 19, 2009 1:43:48 PM

Soronel Haetir. The real problem that I have when you take positions like this is that I think they reflect a real naivety of the legislative process. It would be nice if laws could be written so that they would extract justice in every conceivable case. But that's not going to happen. Legislatures tend to make broad strokes because it's easy for people to understand and because it's easier to get legislation passed this way. It's not about justice at all.

Posted by: Daniel | Aug 19, 2009 5:38:51 PM

Soronel: "Given that I believe any felony conviction should open someone to the possibility of a death sentence...."

And suppose some legislature passes a law making it a felony to post comments like yours? It is not all that far fetched for we don't know what loyalty oath you may be required to sign in the future. Maybe it will be similar to our anticommunist laws or maybe similar to Germany's contemporary laws. Your hate speech against felons should be against the law and I'm writing my congressperson to request a law against your bullying. It should be a felony for no bullying is more severe than promoting death. You may stick to your guns because you know such a law is ludicrous and will never get passed but laws just as ludicrous have passed.

Posted by: George | Aug 20, 2009 11:00:38 AM


'Given that I believe any felony conviction should open someone to the possibility of a death sentence your example doesn't really bother me that much."

Hitler, Stalin, and Mao shared your views. That must make you happy.

Posted by: anon | Aug 20, 2009 1:29:18 PM

Hitler, Stalin, Mao violated the writings in their laws, and executed people for political reasons. They were adherents of legal realism, to the extreme. In the case of the Nazi judiciary, the confiscations and the eradication of the Jews required that they believe in a living constitution or an invisible constitution. (Naturally, Tribe who is Jewish, cannot see the similarity of German and American legal realism. He can only see the rent, since only judges can see the invisible constitution.)

Before getting huffy and uppity about the morality of these tyrants. Look in our national mirror. All American judges are legal realists. All judges have sworn to continue to write the death warrants of viable babies. These are not even on any ethnic kill list. They are not even the subject of any intense hatred. They are just inconvenient. The mass murder of these viable babies have the same number of numbers of targeted and eradicated populations as those of the three tyrants. You and I are good Germans doing nothing about it.

Posted by: Supremacy Claus | Aug 20, 2009 6:11:41 PM

I was accused of 1st degree rape of a 4 year old ( which I can not prove I do not do because of judicial decression) but I would back a law that if DNA proves a person guilty of a second sex offence against a child is done AFTER the first conviction, that it have a mandatoty death penility.

Posted by: ken | Dec 18, 2012 12:34:00 AM

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