« Australia province to start utilizing community-based "sentencing councils" | Main | Noting some great successes in Texas justice »

February 9, 2010

Oklahoma legislature still eager to make child rape a death penalty offense

This new local article, whcih is headlined "Okla. panel OKs death sentence for child rapists," spotlights that some legislators continue to want to resist the Supreme Court's 2008 Kennedy ruling declaring unconstitutional Louisiana's capital child rape law.  Here are the basics:

Repeat sex offenders convicted of raping a child 6 years old or younger would be eligible for the death penalty under a bill approved Monday by a House committee, despite a 2008 U.S. Supreme Court ruling that a similar law was unconstitutional.  The bill by Rep. Rex Duncan, R-Sand Springs, was among a host of measures overwhelmingly approved by the House Judiciary Committee that either create new felony crimes or enhance existing criminal penalties.

Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court. "I think they did get it wrong," Duncan said of the Supreme Court's 5-4 decision, "and I would not be surprised if other states revisit their statutes on this issue."... Duncan said the intent of his bill is to target child rapists who already have a previous conviction for a violent sex offense.

"If that's what the bill says, the bill is facially unconstitutional," said Randall Coyne, a constitutional law professor at the University of Oklahoma.  "The court can change its mind, and it often does ... but I doubt the court would overturn so recent a decision."

State Rep. Ryan Kiesel, the lone opposing vote against the measure, said he agrees child rapists should be handed harsh penalties but questioned the wisdom of a measure that clearly violate a Supreme Court ruling.

February 9, 2010 at 01:06 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Oklahoma legislature still eager to make child rape a death penalty offense:


hmm can you say DUMB POLITICIAN! or is that an oxymoron! Sorry considering how many times the u.s. supreme court has said NO i think this should result in a criminal charge against this idiot for the waste of govt time and funds.

Posted by: rodsmith3510 | Feb 9, 2010 1:50:17 AM

especially loved this part!

"Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court."

sounds to me like either forum shopping or a whiney little pissant!

hoping if you whine long enough they give you what you want to SHUT YOU UP!

i think they should give him a nice little stay in the nearest prison to show him that "when we say no! we MEAN NO!"

Posted by: rodsmith3510 | Feb 9, 2010 1:52:30 AM

Who knows, Sotomayor may think differently?

Posted by: federalist | Feb 9, 2010 6:51:27 AM

Hey, it happened with Gonzales v. Carhart...why not give it a try after a prosecutor joins the nine?

Of course, this law begs the question: how frequently will it even be applicable? If I recall correctly, no witnesses testifying in support of Megan's Law or the Adam Walsh Act were repeat offenders, because such offenders are so rare that they are difficult to find in the first place.

Posted by: Res ipsa | Feb 9, 2010 8:52:10 AM

Oklahoma lawmakers aim to judge sentencings
Published: February 9, 2010

Read more: http://newsok.com/oklahoma-lawmakers-aim-to-judge-sentencings/article/3438030#ixzz0f2yqyLi2

In a move one attorney called "scary,” lawmakers are trying to get power to remove judges and review and change their criminal sentencings.

Republican Reps. Mike Ritze and Mike Reynolds introduced a resolution to remove District Judge Thomas Bartheld for "gross neglect of duty.” Bartheld garnered national attention when he approved a plea bargain in May of one year imprisonment for David Harold Earls in the rape and sodomy of a 4-year-old girl in Pittsburg County.

"I can’t imagine why anybody would object to that. It’s part of the statutes,” said Reynolds, of Oklahoma City.

"Our problem was he should have been investigated a long time ago, but we weren’t in session.”

That resolution is tied to two bills. Ritze’s first would give the Legislature power to impeach district judges and associate district judges.

"We feel like the most innocent in our society, the children, need more protection. If the courts aren’t going to protect them, we think the Legislature, which makes the laws, should step back in,” Ritze, of Broken Arrow, said. "It’s not that I don’t trust the judiciary but I don’t think they’re doing the job they should do.”

Ritze’s second bill would let the Legislature review and change criminal sentences. Both bills are in committee and would need voters’ approval because they would change the state constitution.

Defense attorney Irven Box said: "Oh my gosh! That, to me, is scary that as legislators they are going to try to control the criminal justice system.

"Separation of powers keeps everybody honest.”

Reynolds said the Legislature already has the power to impeach Supreme Court judges. He contends it should also be able to impeach district judges, a power Ritze said the Legislature had until 1986.

"It’s utter nonsense to claim separation of power issues,” Reynolds said.

The Council on Judicial Complaints investigates allegations of judicial misconduct. If the council recommends removal, the governor, attorney general, Oklahoma Supreme Court, the Oklahoma House of Representatives or the Oklahoma Bar Association will the next move. Finally, the Oklahoma Court of the Judiciary can conduct a trial to remove the judge.

Council on Judicial Complaints Director Eric Mitts said the constitution provides a process to remove judges.

Ritze said after the Legislature lost the ability to impeach district judges, 2-year-old Ryan Luke died in 1995 in Pittsburg County. Bartheld placed the boy with his grandfather who let Ryan’s mother have him. Ryan died from injuries suffered while in her care.

"If we have problems ... we should be able to remedy them quickly,” Ritze said.

The legislators said they also were spurred by the Dec. 3 first-degree murder case of toddler Jason Joseph Hall. The jury recommended a life sentence for Larry Neely but Tulsa County District Judge William Kellough sentenced him to 12 years in prison.

Bartheld and Pittsburg County District Attorney Jim Bob Miller didn’t return calls for comment.

Posted by: Michael Connelly | Feb 9, 2010 8:59:06 AM

Haven't we seen this movie?

Posted by: Gritsforbreakfast | Feb 9, 2010 11:05:22 AM

Evidently a weaker judicial branch is what Republicans mean by a "smaller government."

Posted by: George | Feb 9, 2010 12:25:29 PM

it's utter criminal stupidity like this!

"Ritze’s second bill would let the Legislature review and change criminal sentences. Both bills are in committee and would need voters’ approval because they would change the state constitution."

that make me want to make it LEGAL to shoot politicians ANYWHERE you can find them.

Sorry last time i looked a Constitution trumps law. You cant' pass a law that goes AGAINST that constitution it is in fact according to the U.S SUPREME COURT NO LAW AT ALL!

Posted by: rodsmith3510 | Feb 9, 2010 1:25:59 PM

Between Rod's proposal to shoot all legislators and SC's proposal to execute all judges (after summary trials, of course), we'd only have the executive branch left...

Posted by: Res ipsa | Feb 9, 2010 1:35:51 PM

George --

"Evidently a weaker judicial branch is what Republicans mean by a 'smaller government.'"

Evidently a sleazier judicial branch is what Democrats mean by "smarter government."

To wit: Of the four federal judges impeached in the last 25 years, three were appointed by Democrats (the fourth, Samuel Kent, was appointed by GWB and resigned before he was convicted by the Senate). The three were Harry Claiborne (appointed by Carter); Alcee Hastings (also appointed by Carter); and Walter Nixon (appointed by Johnson). All three refused to resign and were overwhelmingly convicted by the Senate.

If you think the impeachment of these characters was inconsistent with the Constitution, take if up with the Framers. If you think any of these impeachments was unjustified on its individual merits, I'll be eager to hear your reasons.

Impeachment is and, IMO should be, a rare remedy, but to say that the legislature should be altogether denied impeachment power is preposterous. How else are we to be rid of corrupt, venal or senile judges?

Posted by: Bill Otis | Feb 10, 2010 4:05:16 AM

Mr. Bill, Are you really suggesting the Kennedy majority should be impeached? If the Oklahoma judges, then why not the majority of the SCOTUS because a ruling is too controversial?

It's not that Oklahoma lawmakers should not have the power to impeach, it's the game of politics behind it. Judges and justices are political pawns in the game. It doesn't look like the Oklahoma lawmakers would consider it "a rare remedy" and let's not pretend Republicans (or Democrats in response) do not have an agenda to pack the courts. In other words, the stated motive for change and the actual motive are likely two different motives. It is the Naomi Klein's The Shock Doctrine in action: find a crisis the use it to enact the real agenda.

Posted by: George | Feb 10, 2010 3:02:45 PM

i agree with you george. As for only have an executive branch left. GOOD turn the sucker into a useless powerless figure head like the queen of england.

Posted by: rodsmith3510 | Feb 10, 2010 4:18:57 PM

Dr. George --

I think the Kennedy v. Lousiana majority should meet a fate worse than impeachment: They should have to listen to a Joe Biden speech, all five hours of it.

More seriously, sort of, I have no clue what the state legislature intends. As a general matter, I think the people, through their elected representatives or directly, should decide for themselves how to deal with the judges under whose rulings they have to live. This always leads to anguished cries about the "tyranny of the majority" -- inevitably voiced by those in the minority who'd prefer to impose their own tyranny, just without any democratic legitimacy.

Posted by: Bill Otis | Feb 12, 2010 3:21:53 AM

I think more states should legislate the death penalty for rape into law especially in light of how much emphasis the court put on national trend and number of states that had the laws. Good for them.

Posted by: J Winner | Feb 20, 2010 10:49:27 PM

I wonder if it has occured to anyone rushing to get child rapers executed that in over 90% of cases they will end up executing the childs father, mother, brother, grandfather, uncle, or another close and trusted family friend. Out of every 100 executions for these crimes only around 7 to 10 executions will be someone that was not known and trusted by the child.

Posted by: Brit | Jun 10, 2010 6:19:37 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB