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July 15, 2011

Might horrific Jaycee Lee Dugard case have led SCOTUS to permit death penalty for child rape?

The question in the title of this post is prompted by this new commentary by Charles Lane for the Washington Post, which is headlined "The justices and Jaycee Dugard." Here is how the piece starts and ends:

A Stolen Life, Jaycee Lee Dugard’s harrowing memoir of sexual torture and confinement at the hands of Phillip Garrido, has hit the top of Amazon’s best-seller list. I read it, astonished at her courage and her eloquence — and disgusted at the crimes Garrido, on parole for a previous rape, committed against Dugard for years, starting when she was 11.

I also wondered how history might have been different if Dugard had escaped from her 18-year hell before the Supreme Court’s 2008 decision in Kennedy v. Louisiana, instead of a year after it.  This was the case in which the court voted 5-4 to ban the death penalty for raping a child.  No future Phillip Garrido need ever fear execution, though many who read Dugard’s book will agree with me that he would richly deserve it.

At the time, the majority opinion by Justice Anthony M. Kennedy struck me as a mixed salad of moralizing and debatable assertions.  Post-Dugard, it’s even less persuasive. ...

To be sure, Phillip Garrido, now sentenced to 431 years, would never have faced capital punishment in California even prior to Kennedy v. Louisiana, because the state didn’t allow it except for murder.  (His accomplice wife, Nancy Garrido, is also in prison).

And Justice Kennedy — joined by Justices John Paul Stevens, Stephen A. Breyer, David H. Souter and Ruth Bader Ginsburg — was not wrong to worry about allowing capital punishment for any rape, given this country’s sorry history of racially-biased sex-crime prosecutions.  The court has rightly ruled that the death penalty should be limited to the “worst of the worst”; reasonable people can debate whether non-lethal crime belongs in that category.

But that’s the point: These are as much policy issues as constitutional ones, and the court was wrong to trump the people’s representatives, especially on such a flimsy factual foundation.

If anything, there’s a “national consensus” in favor of the death penalty for raping a child. A poll after the court’s ruling showed that only 38 percent of the public agreed with it, while 55 percent disagreed.

A major presidential candidate said that “the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution."

Barack Obama was exactly right.

July 15, 2011 at 04:10 PM | Permalink


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Doubtful, Justice Kennedy and the liberals on the court ignored the constitution, precedent and numerous horrible rape cases. I doubt even a horrifying case like this would have swayed them.

Posted by: MikeinCT | Jul 15, 2011 6:53:27 PM

The various horrors of child rape don't matter. What matters is getting a gushing welcome by the gaggle of defense lawyers at ABA banquets. And that's why Kennedy v. Louisiana won't change while the Court has its present composition.

Posted by: Bill Otis | Jul 15, 2011 7:12:47 PM

No Bill, there you go again...that 100% pure baloney..where is your supporting proof as you frequently say about others you disagree with...

Posted by: Steve Prof | Jul 15, 2011 7:29:23 PM

Great insight..ABA, criminal defense lawyer, and Supreme Court Justice conspiracy???? Ohhh Bill you have outdone yourself with this outrageous unsupported declaration. But it is so entertaining please expand.

Posted by: Steve Prof | Jul 15, 2011 7:32:05 PM

@Steve Prof
He never alleged a conspiracy. Maybe you need to read the post a few times to get it.

Posted by: MikeinCT | Jul 15, 2011 7:38:07 PM

Aside from the legal issue here, remember he was sentenced in Ca.; not La.. He would probably be buried now if he were in La.. In Ca. He's more likely to cost the taxpayers four times what an average inmate would and still die of natural causes before they executed him. Ca. has spent 4 billion to execute 13 inmates since 1978.

Posted by: Mike | Jul 15, 2011 7:58:28 PM

The cost isn't that far apart. Studies that put the cost of LWOP so low never take into account costs like hazard pay for guards, medical care or appeals lawyers. As for $4 billion, that's the cost of 800+ death sentences, not just 13 executions.

Posted by: MikeinCT | Jul 15, 2011 8:38:39 PM

Okay, goofy semantics aside. My point is more to the effect that he will most likely die of old age at a greater cost to the tax payer had he been placed on death row.
I think blood thirsty citizens like the drama of a death penalty case, but in Ca. it's just another poorly scripted TV show.

Posted by: Mike | Jul 15, 2011 9:56:33 PM

Steve Prof --

Why should I "expand" when, as MikeinCT notes, you don't bother to read what I write to begin with.

Either that or you read it and intentionally mischaracterize it.

Wanna tell us which?

Posted by: Bill Otis | Jul 15, 2011 10:50:48 PM

Mike --

"I think blood thirsty citizens like the drama of a death penalty case..."

Absent any documentation for that smear -- and none is offered -- do you think it's OK for people supporting the DP for aggravated cases of child rape to say, following the mold you created, "I think perverted citizens like the sexual amusement of a child rape case"?

No? Don't care for that?

Me neither.

So can it.

As the Quinnipac poll found out, a healthy majority (55% to 38%) supports the DP for child rape. And as Mr. Lane points out in his piece, Barack Obama is in that majority. If you aren't, perhaps modesty rather than smearing is the better response.

Posted by: Bill Otis | Jul 16, 2011 6:29:42 AM

I lived about 1 mile from where 2 year old Amy Sue Seitz was abducted in 1978. She was later found raped, tortured, and murdered. I never heard anyone in the community debate whether Theodore Frank deserved the death penalty he was awarded. Theodore Frank died of natural causes in San Quentin 23 years later.
I believe in the death penalty as much as I believe in the tooth fairy.

Posted by: Mike | Jul 16, 2011 10:48:18 AM

Dugard should have been executed before age 18. His behavior is likely to have started in childhood. We probably know about him at age 3. However, he is such a rainmaker for government workers, that he had their full protection.

Posted by: Supremacy Claus | Jul 16, 2011 10:50:49 AM

Garrido is the sex offender, Dugard the victim. Sorry about the error.

Now even the victim, Dugar,d has an economic conflict of interest, making $millions off her story, which is mostly about the offender's sexual perversion. I am going to bet, she opposes the death penalty for Garrido.

The public pays for Garrido, whether in taxes, or book prices, or drops in real estate values.

The other non-homicide crime warranting the death penalty is treason or insurrection against the constitution. That death penalty should apply to the Justices, after an hour's fair trial, during which, the sole evidence will be readings from their decisions.

Posted by: Supremacy Claus | Jul 16, 2011 11:03:17 AM

Mike --

The fact that you personally believe in the DP as much as you believe in the tooth fairy neither justifies nor documents your smear that those who disagree with you are bloodthirsty or that they simply "enjoy the drama" of a capital case.

Your internal beliefs do not create external reality about the views or temperaments of other people. I'm sure you already know this.

Posted by: Bill Otis | Jul 16, 2011 11:26:39 AM

I added my take on your comment with I believe is a very fair inference. If the Justices are not influenced by the gushing defense lawyers at the ABA meeting the what is the p[possible significance of your post. Yes. "conspiracy" was a obvious rhetorical flurish ( you have been knwn to write a few)because there was no "agreement" but as you know agreements can be implied. You observation is ridiculous and you offer not a shred of support that Justices could be improperly influenced by attending a ABA meeting. That is preposterous and quite partisan of you... I suppose Justice Scalia was less likely influenced by hunting with V.P. Cheney then voting on a case where he was a party.?

Posted by: Steve Prof | Jul 16, 2011 1:04:38 PM

Steve Prof --

"I added my take on your comment with I believe is a very fair inference."

Translation: By splicing in your pejorative "take," you attributed to me a belief I didn't state and don't have. That's just so wonderfully honest of you.

"If the Justices are not influenced by the gushing defense lawyers at the ABA meeting the what is the p[possible significance of your post[?]"

To point out that Justices, like other human beings, are influenced by the surrounding environment. The ABA and its banquets are part of the surrounding environment for SCOUTS Justices, plus other prominent jurists and lawyers. You didn't know this?

"Yes. 'conspiracy' was a obvious rhetorical flurish..."

Rhetorical flourish my foot. It was your whole point.

"...( you have been knwn to write a few)because there was no 'agreement' but as you know agreements can be implied."

Sure they can be implied -- if there is a reasonable factual basis for doing so, which there was not, and which you now conspicuously, if quite understandably, fail to supply.

"You observation is ridiculous and you offer not a shred of support that Justices could be improperly influenced by attending a ABA meeting. That is preposterous and quite partisan of you..."

Gosh, Steve, is it partisan? Well that's really surprising, since Justice Kennedy is a Republican, as am I, and was recommended to President Reagan by Ed Meese -- two men I greatly admire. But since you say I'm being partisan about it, I'm sure it must be so. Another one of your "fair inferences," I guess.

Posted by: Bill Otis | Jul 16, 2011 3:20:51 PM

Murder and kidnapping are crimes that receive some of the harshest sentences. In many cases of child rape the crimes of murder and kidnapping are part of the criminal act. Why is it neccessary to have a death penalty for rape?

Posted by: anon2 | Jul 16, 2011 3:36:35 PM

How about addressing my comment that you don't have a scintilla of proof that Justice Kennedy is influenced by the ABA? Your view is rank speculation and a totally unreasonable inference unless you can back it up withs omething other than your uniformed opinion.

Posted by: Steve Prof | Jul 16, 2011 5:50:18 PM

Steve Prof --

How about admitting that your claim -- that you were engaging in a mere "rhetorical flourish" in claiming that I alleged a "conspiracy" among the ABA, defense lawyers and Justice Kennedy -- was an outright lie? It was your whole point, not a "rhetorical" anything, as we both know.

I am disinclined to respond to people who lie about my position and then lie again about what they were actually doing when they attributed to me beliefs I don't have.

Posted by: Bill Otis | Jul 16, 2011 6:34:05 PM

Bill's point, if i will be forgiven for trying to make another's point for him, is that Kennedy likes to fancy himself enlightened and the adulation of the glitterati (not a conspiracy) is a driver for decisions like these.

From the standpoint of Constitutional law (as opposed to fiat), Kennedy v. Louisiana is a joke. An absolute joke. And the five Justices should be ashamed of themselves and should be held up to ridicule.

Posted by: federalist | Jul 16, 2011 7:01:25 PM

Bill, I take that as a concession your just shooting off again without a single fact to support your non-sense opinion..

Posted by: Steve Prof | Jul 16, 2011 7:32:19 PM

Bill ....you did allege a conspiracy of defense lawyers and the ABA ....as you well know it's two or more....Justice Kennedy was the object of the conspiracy

Posted by: Steve Prof | Jul 16, 2011 7:44:13 PM

Before you allege a Supreme Court Justice was improperly biased by attending an ABA meeting how about one, just one scintilla of evidence to support your claim. Not admissible evidence, mind you , but anything other your your naked opinion. Your failure to support your opinion with anything speaks volumes and undermines your credibility on this subject.

Posted by: Steve Prof | Jul 16, 2011 7:48:59 PM

Steve Prof:

I have not commented on this blog recently because maybe, just maybe, I have failed to comprehend the consistent honesty of Bill's, MikeinCt's and federalist's desire to seek real justice and strong commitment to conform to the Constitution.

Nope, I was wrong.

Do not ask for real evidence from fools!

Posted by: albeed | Jul 16, 2011 10:43:56 PM

@albeed and Steve Prof
Comments like Bill's and yours are opinions, I find it hard to imagine what evidence could exist of their screwed up priorities and motivations or what would convince you. Maybe you should just tell us what you would consider believable.

Posted by: MikeinCT | Jul 16, 2011 11:08:26 PM


Do not make us accept all comments from "government authorities" as being more than worthless. You did not see anything wrong in the potential framing of the French IMF Official's perp walk based on prosecutor's and LE's lies (deliberately misleading public statements) because you needed to know if your neighbor was a rapist or not.

Good Luck

Posted by: albeed | Jul 16, 2011 11:27:20 PM

federalist --

"Bill's point, if i will be forgiven for trying to make another's point for him, is that Kennedy likes to fancy himself enlightened and the adulation of the glitterati (not a conspiracy) is a driver for decisions like these."


Posted by: Bill Otis | Jul 17, 2011 12:31:54 AM

Do me a favor and find a post where I said anything about DSK.

As for the other part of the argument, I argued that I should know if one of neighbors is on trial for rape and that there should be a free press. I stand by that.

Your response was that the press should be free so long as you approved of what they said and that judges never let dangerous offenders out on bail. To that I say that any press you can censor is not free and you place laughable amounts of faith in our judicial system.

And while we're on the subject of slander and accusations, you might want to apologize to numerous DA's as well as Bill and myself for the assertions you've made about us with no more evidence than we have for our arguments.

Posted by: MikeinCT | Jul 17, 2011 12:44:32 AM

Steve Prof --

First you admit (Steve Prof | Jul 16, 2011 1:04:38 PM)
that the allegation of a "conspiracy" was nowhere in my post, but instead was your "rhetorical flourish." Now, backed into a corner by your equally phony (and undefended) claim that I'm a "partisan," you reverse field and tell me that I "did allege a conspiracy of defense lawyers and the ABA" to improperly influence a Justice.

Let's put your self-contradiction to one side. If in fact you're a lawyer, you would know that a conspiracy is an AGREEMENT to accomplish an ILLEGAL OBJECTIVE. The ABA and the defense bar have overlapping memberships and largely similar views and interests on criminal law, but I never alleged that there is some deep, dark AGREEMENT they've undertaken to influence any particular Justice, and still less that influencing a Justice is "improper."

People with views of criminal law and of specific issues ALL THE TIME attempt to influence the outcome of Supreme Court cases by op-eds, letters to the editor, blogs, demonstrations, conventions, letter writing campaigns, gatherings on the Supreme Court steps, etc., etc. Your nonsense to the contrary, I never claimed that any of this is improper, and neither I nor any other rational person believes it is.

Since that sort of attempting to influence the Court is not improper, much less illegal, it cannot be the object of a conspiracy. You don't have to be a lawyer to know this. So if it's credibility you're concerned about, you might start with your own, by refraining from such absurd allegations.

You also cannot help knowing that human beings are influenced by those around them, and by flattery and adulation. No citation is needed for a point anyone is aware of by the time he's 12.

Posted by: Bill Otis | Jul 17, 2011 8:33:46 AM

I am attorney who has both defended people accused of sexual assault and represented victims. There are three major arguments against the death penalty for child rape:

First, most child rape cases are not like Jaycee Dugard's case. While child rape is traumatic to every child, many victims move on to have a "normal" life. Many victims know their abuser. Disclosures of sexual abuse often divide a family and cause the victim more pain. A victim often feels guilty for putting a relative or family friend in prison. Imagine the victim's anguish if she felt her disclosures were putting a relative or family friend to death.

Second, most rape cases start with a child making a disclosure that cannot be proven and may be ambiguous. There is a high risk that an innocent person may be put to death.

Third, if child rape were punishable by the death penalty, there would be more guilty people who escaped a conviction with more opportunity to rape another child. Less people would plead guilty and would choose to go to trial instead. Sexual assault cases have the highest percentage of "not guilty" verdicts. Children are often viewed as "not credible" and juries acquit. Prosecutors knowing that the penalty of a conviction is death, would only bring cases against those they consider to be the worst offenders.


Posted by: Dawn E. Worsley, Esq. | Jul 17, 2011 12:10:37 PM

You are obviously a very bright fellow but you take statements way too literally. No one with a pulse and a IQ in double digits would have taken my "conspiracy" comment to have alleged an illegal conspiracy - I was using it in the lay sense that two or more people reached an agreement to do accomplish an objective. But more importantly, for you to allege that a Supreme Court Justice let a ABA meeting and the adulation influence a judicial opinion is, with all due respect, not very professional or believable. Nor would it be professional or believable for anyone to allege that you altered a brief you wrote or edited to change the result because of any awards, recognition, or adulation you received as a AUSA in charge to the criminal appellate division in your district. Your retort that any 12 year old knows otherwise is less than compelling don't ya think?

Posted by: Steve Prof | Jul 17, 2011 1:30:00 PM

"What matters is getting a gushing welcome by the gaggle of defense lawyers at ABA banquets. And that's why Kennedy v. Louisiana won't change while the Court has its present composition." Bill, this is what YOU wrote. any fair reading of this implies exactly what I have said you claimed!!!!!! That the Justices and influenced by "the gaggle of defense lawyers at ABA banquets." That is , with due respect, not yet supported in any of your posts. I am simply asking that you live by your own rules -- of asking others to support their opinions. Best

Steve Prof

Posted by: Steve Prof | Jul 17, 2011 1:36:15 PM

Dawn --

Your post makes a good argument that the death penalty should not routinely be sought for child rape. Nor have I heard of any serious person who thinks that it SHOULD be used in that way.

As you observe, "...most child rape cases are not like Jaycee Dugard's case." This is a negative pregnant; some ARE like it, and your argument does not address those at all.

Nothing in what you say shows that the DP should be categorically barred for all child rape cases no matter what. There will be dozens if not hundreds of cases in which the rapist is a stranger, the victim credible, other evidence incontrovertible, and the offense particularly cruel or protracted (Elizabeth Smart comes to mind). Your arguments do not demonstrate any reason that the DP should always be unavailable AS A MATTER OF LAW in these many cases.

Posted by: Bill Otis | Jul 17, 2011 2:27:08 PM

Why is it wrong to get a gushing welcome at an ABA dinner when items like this are plentiful?
"Every year MADD holds a ceremony for who they believe is the top prosecutor of DUI’s in the whole nation. This year one of Virginia Beach’s finest was honored with a nomination to this honorable award. Hundreds of prosecutors across the country are nominated at a chance to win this prestigious award."
You can't tell me there aren't awards like this for prosecutors who go after other types of crimes.

Posted by: anon2 | Jul 17, 2011 4:34:53 PM


You comparison has little merit.

Sure a prosecutor could theoretically look to prosecute every case that comes his way, even the weakest ones, in order to get an award from MADD. However, the prosecutor is not the final arbiter, the jury is. When SCOTUS makes a decision, there is no check to ensure the decision was based on merit rather than the prestige of colleagues. Nor, to my knowledge, is there anyone with the title "prosecutor for life."

Posted by: TarlsQtr | Jul 17, 2011 5:02:23 PM

Bill, what if anything, should guide state legislators in defining what crimes should be punishable by death--other than the 8th Amendment? Thanks

Posted by: Steve Prof | Jul 17, 2011 5:04:03 PM

I am afraid to buy this book, especially to download it as a Kindle book. The feminist lawyer might get me.

What is the legal status of written depictions of child porn with no pictures or drawings, including that involving sexual torture of little children?

Posted by: Supremacy Claus | Jul 17, 2011 5:15:59 PM

Steve Prof --

When Eighth Amendment and other Constitutional constraints are honored, state legislatures are free to impose punishments as they see fit. They will most often see fit to impose punishment according to the views of the majority of their constituents.

That's called D-E-M-O-C-R-A-C-Y. We fought a Revolution to achieve it. And no, I have no wish to see it replaced with the tyranny of the minority. That's exactly what we got rid of starting in 1776.

Posted by: Bill Otis | Jul 17, 2011 5:58:01 PM

My point is that prosecutors are given awards for prosecuting higher numbers and longer sentences as evidenced by the news article I copied from.
The sad truth is that with Mandatry Minimums the prosecutor has become more than just one part of the Criminal Justice System. They have become the Judge and the Jury too.
No, I don't know if there are any prosecutors given the title "Prosecutor for Life" but how many former prosecutors are on the Supreme Court?

Posted by: anon2 | Jul 17, 2011 6:16:47 PM

Bill, state legislators in deciding far reaching questions of punishment should be guided by nothing more than the Constitution and the views of the majority? Why do we need the legislative branch? We could legislate by computer voting. They may be" free to impose punishments as they see fit" as you write but are there no principles of justice, crime and punishment, etc that should guide their discretion? We did not fight a revolution to substitute legislative judgment wth popular will.

Posted by: Steve Prof | Jul 17, 2011 9:03:40 PM


Be prepared for a lambasting of your post of July 17, 2011 at 12:44AM. It is late at night, I am mentally preparing for a serious 6:45 AM tee time. I will apologize to LE, TSA and the Fed's WHEN THEY DESERVE IT. When I reply to each of your comments, I will expect a complete and accurate reply from you. Because of my schedule, expect it at 8:00 PM tomorrow. I am waiting with baited breath for your responses.

As for my apologies to DA's, an absolute NO! They are employed by my tax dollars to protect me from crime AND defend civil liberties. They are doing a p_ss poor job on both.

But they found out how to manipulate the system and steal its wealth.

Bill: We are broke because you cannot tell sh_t from Shin-ola in your precious justice system.

Bill-PS: Can I audit your classes in September with free commentary, but not be a pain like I am now?

Posted by: albeed | Jul 17, 2011 11:48:11 PM

I see, for some reason, Bill Otis cited by Scotusblog. Congrats.

What is the point of this article? The justices realized the horrors of the crime. This book changes this, how? Are there no other accounts about the nature of the crime? The opinion, rightly or wrongly, also cited how executions can be counterproductive solely focusing on the interests of the children. How does this book change this fact? There are many eloquent accounts by crime victims and their families. This doesn't suddenly make such and such penalty valid.

Citing this account is a rather cheap means of argument. If the ruling was wrong, it was wrong. This doesn't change anything an iota.

Posted by: Joe | Jul 18, 2011 10:05:05 AM

And so you are guilty of what you accuse others. You claim that the way DSK was treated should be outlawed. Why should you be allowed to make serious claims with just as little evidence about prosecutors and other civil servants? Why would you have the freedom to claim DA's have violated the law when you claim the free press should be censored?

When the free press can be punished for reporting DSK has been accused of rape, you can expect cops at your door too.

Posted by: MikeinCT | Jul 19, 2011 1:20:15 AM

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