Supremes Say No Death Penalty for Child Rape

Wednesday, June 25th, 2008

From a strictly utilitarian standpoint, it’s a good outcome. I’m not so sure about the legal reasoning.

In a perfect criminal justice system, I wouldn’t lose much sleep over a repeat child rapist being put to death, any more than I’d lose sleep over a repeat killer getting the same punishment. If it’s not consider cruel or unusual to execute people for heinous murders, I’m not sure why it would be for heinous sex crimes against children.

But in practical terms, the decision is a good one for the same reason any limitation on the death penalty right now is generally a good idea: We’re miles away from a perfect criminal justice system.

From my own experience, I’ve seen far too many cases involving Dr. Hayne alone where he has found evidence of rape or sexual assault where other, more reputable doctors didn’t–and the defendant was convicted, anyway.

And let’s not forget, we have a troubling history in this country of convicting people of child sex abuse charges that later turned out to be false.

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27 Responses to “Supremes Say No Death Penalty for Child Rape”

  1. #1 |  Wayne | 

    I’m not really sure about the legal reasoning either, and I don’t practice criminal law. But when sitting through my criminal law class in law school 10+ years ago, I remember us kicking around the notion that you cannot put someone to death for a crime that results in less than death to the victim. The logic behind this is: If someone perpetrating a crime knows the likely result of him/her being caught is death, then he/she would be more likely to kill the victim during the commission of the crime. It’s probably a lot more difficult to solve crimes and to get a conviction when the victim is dead.

  2. #2 |  Nando | 

    I agree with this decision because I think the punishment should always fit the crime. I’m actually against the death penalty all together.

    As for the reasoning they (and Wayne) used that a rapist would be more apt to kill his victim if he knows that the death penalty is a possibility, I have to disagree. It’s not like these people are rationally thinking about the consequences of their actions.

  3. #3 |  Sam | 

    “It’s not like these people are rationally thinking”

    Some of them aren’t, some of them are, and some of them aren’t being rational in only one way. Classifying someone that commits a crime you don’t understand as irrational may be simple and allow you to suggest any number of actions without justification. In this case, suggesting that being irrational in one manner (raping children) is sufficient for being irrational in another (expecting execution if a witness testifies and not wanting to be executed but leaving the witness alive anyway) is invalid. There are other reasons why a person might kill or not kill a victim, but the death penalty offers an additional motivation to do so for those who are cold enough to consider it.

    Personally, I agree with the idea that non-lethal crimes should not result in non-lethal punishments. I might agree that a crime such as child rape that might result in life-long impairment (don’t necessarily agree with that statement either) would justify a life sentence, but that’s another argument.

  4. #4 |  Aaron | 

    Wayne: that justification is a policy justification, not a constitutional law justification. Just because a law is likely to lead to bad outcomes is not enough for judges to overrule it.

  5. #5 |  Nando | 

    #3 Sam

    Some of them aren’t, some of them are, and some of them aren’t being rational in only one way. Classifying someone that commits a crime you don’t understand as irrational may be simple and allow you to suggest any number of actions without justification. In this case, suggesting that being irrational in one manner (raping children) is sufficient for being irrational in another (expecting execution if a witness testifies and not wanting to be executed but leaving the witness alive anyway) is invalid. There are other reasons why a person might kill or not kill a victim, but the death penalty offers an additional motivation to do so for those who are cold enough to consider it.

    While there might be a minority that actually considers the consequences before deciding to rape someone, most experts agree that their premeditation doesn’t go as far as to think about what would happen IF they get caught. It’s the same for homicide/murder where the states with the death penalty actually have higher homicide rates per capita than those that don’t have the death penalty (in 1999, the rate among death penalty states was 5.5 and among non-death penalty states was 3.6).

  6. #6 |  Stormy Dragon | 

    Of course, spending life in prison for a crime you didn’t commit is nearly as bad as getting executed for a crime you didn’t commit. Eliminating the death penalty doesn’t do anything to fix the problems in the law enforcement system, it just makes people more comfortable about ignoring them.

  7. #7 |  RainierWheat | 

    This is good news, because killing the killing of child rapists would almost certainly have opened the door to the killing of non-violent convicted sex offenders and innocuous, responsible pedophiles. Studies have shown that children who have sexual contact (with anyone) that they perceive as consensual are unlikely to experience adverse emotional effects, but you cannot trust a jury to understand that this type of thing is not as serious as mass murder. Those who have violently raped males or females of any age should be stuffed away for a long time, but certainly not killed, because contrary to popular opinion, rape is not as serious a crime as murder. I have met many people who have lived through terrible bloodshed and war as well as personal abuse, and while they may have suffered immensely, they have still led meaningful lives. People who are murdered don’t get a chance to live any life at all.

  8. #8 |  Rob | 

    Radley,

    couldn’t you agree that this is in enough of a morality grey area that it should be decided by the people living in the state, rather than by the supreme court for the whole of the country?

    personally i’m against the death penalty in all cases – but i don’t think it is clearly cruel and unusual punishment to kill a man who rapes a 8 yr old..seems to be something that should be decided by voters of a state.

    disclaimer: i’m not a lawyer, but live with two and have been known to have sex with law students.

  9. #9 |  Highway | 

    As a general crank who would love to see the human race culled of people who violate the inherent rights of others, I’m in hypothetical support of the death penalty. But as others have stated earlier, there is just no way that this country, or really any country on earth, can reliably determine the guilt or innocence of people in cases.

    That being the case, it’s impossible to really support the death penalty as a tool used by the government as ‘punishment’ or justice, in any case. In that vein, this is a welcome result of a case, although I couldn’t really make a decision on whether it’s good legal argument or not.

  10. #10 |  Jim Collins | 

    I would like to nominate the phrase “responsible pedophiles” for the Oxymoron of the Year Award.

  11. #11 |  Tokin42 | 

    I’ve always thought rapists in general, regardless of the age of their victim, should be removed permanently from this planet in a manner as horrible and terror inducing as their victim suffered. The problem with actually being able to do it has been pointed out by everyone, how do you trust the actual verdict?

  12. #12 |  Edintally | 

    If I’m the only person who can decide who gets executed for a crime, I’m all for the death penalty. If anyone else is in charge of that, I’m against the death penalty.

    Vote Edintally for Emperor in ’08!!

  13. #13 |  Dave Krueger | 

    I don’t believe in the death penalty simply because the justice system, so-called, is very often defective, imprecise, and driven by a lot of factors that have nothing to do with justice. In fact, justice sometimes doesn’t even play a part.

    As for the idea of executing child rapists, I don’t see any point in giving a child rapist a reason to kill the main witness to his crime simply because he has nothing to lose by doing so. In fact, no such a law cannot be written with the child in mind. But, alas, as is the case with nearly all laws that invoke the “save the children” theme, it makes for nice political theater, appeases public outrage, and only hurts the people it claims to help.

  14. #14 |  TGGP | 

    Speaking of the death penalty, Cass Sunstein says that it is obligatory for liberals to support it.

    I’m also skeptical of the legal reasoning. And the imperfections of the justice system taint all the sentences it hands out, not just the emotionally salient one of death.

  15. #15 |  supercat | 

    As for the idea of executing child rapists, I don’t see any point in giving a child rapist a reason to kill the main witness to his crime simply because he has nothing to lose by doing so.

    Why would killing the child reduce the likelihood of his getting caught and prosecuted? I would think that forensic evidence would be more relevant than the child’s testimony in such cases. I would expect jurors would probably examine the forensic evidence with a less critical eye in cases where the child was killed than in cases where a child performed badly under cross-examination.

    A bigger question would be how many yearly visits the victim would have to make to the parole board to ensure that the attacker was never released to seek vengeance. Today’s sentence might be life-without-parole, but there’s no guarantee that some future people in government wouldn’t reduce it.

    I do think the death-penalty trial procedures need some revamping, but if anything that would at most justify a remand in this case. IMHO, the death penalty is only appropriate in cases where a jury, knowing anything and everything that might reasonably incline them against a death sentence–including things that would not be admissible in the guilt phase–would agree that there is no question as to guilt or the appropriateness of the punishment. Of course, the government generally doesn’t want juries to know everything since that would make it too hard to get convictions, but securing a death sentence isn’t supposed to be easy.

  16. #16 |  MikeT | 

    I’ve always thought rapists in general, regardless of the age of their victim, should be removed permanently from this planet in a manner as horrible and terror inducing as their victim suffered. The problem with actually being able to do it has been pointed out by everyone, how do you trust the actual verdict?

    You really can’t today because most reports of rape are false, and there is no real penalty for a woman making a false report. It’s one of the reasons why I think that prosecution should be partially privatized, so that men can hire prosecutors to send women to prison for such things when the state won’t do it.

  17. #17 |  Judi | 

    I am a victim/survivor of years of both sexual child abuse and rape. I know the horror, shame, pain and indelible scars it inflicts. I live it everyday of my life.

    Although I choose NOT to dwell on it, there is hardly a day that goes by that something doesn’t trigger the memories.

    However, I am an opponent of the death penalty.

    I will admit there have been times when, as an adult, I wished I could be given 5 minutes with my assailants to do with as I please. But even that would not solve a thing.

    Their deaths would not change what happened nor would it erase the memories.

    I am a firm believer in KARMA and I have no doubt that they will ‘get theirs’ either in this life or the hereafter.

    I am aware that there are hundreds of GUILTY people on death row but there are just too many innocent people there as well. Exonerations are happening more often now, thanks to DNA.

    I would rather see a GUILTY man go free than to see an INNOCENT man executed.

  18. #18 |  Dave Krueger | 

    #15 supercat
    Why would killing the child reduce the likelihood of his getting caught and prosecuted? I would think that forensic evidence would be more relevant than the child’s testimony in such cases.

    True, assuming there’s a body to get forensic evidence from.

  19. #19 |  claude | 

    Often child rape cases r incest cases and knowing that a family member could be executed may stop the victims from coming forward at all.

  20. #20 |  Andrew Williams | 

    I tend to lose sleep over anyone being put to death over anything. I guess it’s because I’m not God and don’t play him on TV.

  21. #21 |  Andrew Williams | 

    Incidentally, I think we should stop calling it the Supreme Court, as the name has obviously gone to some justices’ heads. any suggestions? How about:
    –the not-so Supreme Court
    –the bloody average Court
    –the William Rehnquist Home for Tired Legal Eagles
    –the big building downtown where the men and women dress in black robes
    –Justice Stops Here

    You get the idea, I’m sure.

  22. #22 |  Nothing Left to Lose § Unqualified Offerings | 

    […] Legal reasoning aside, imposing the death penalty for child rape is a terrible idea. For any crime, you want to avoid incentives for the criminal to murder a victim who would otherwise survive. In states with the death penalty, if you rape and murder a child, you’re risking execution. If you also risk execution for raping the child even if you don’t murder him or her, then you have a powerful temptation to kill your victim anyway. Your legal jeopardy is no worse and you eliminate the potential witness. At the margins, the death penalty for child rape incrementally increases the danger to children from sexual predators. Posted by Jim Henley @ 7:24 am, Filed under: Main « « Animania | Main | […]

  23. #23 |  ParatrooperJJ | 

    Anyone remember the McMartin preschool case? That’s why you don’t have the death penalty for child rape.

  24. #24 |  Dave Krueger | 

    #23 ParatrooperJJ
    Anyone remember the McMartin preschool case? That’s why you don’t have the death penalty for child rape.

    Aside from the innocence of the defendants, the preschool cases (McMartin was only one of many) are particularly relevant to this discussion because virtually all the charges and convictions were based purely on the testimony of the child “victims” in the absence of any supporting forensic evidence.

    Those cases are also a testament to America’s obsession with child sex crimes at the expense of justice and rationality. Even now, there is absolutely no public concern for those who still languish in prison, not to mention the many who merely had their lives destroyed. That’s just the price “we” have to pay to protect our children. Lawmakers love any law they can tie to child safety because it instantly turns the public into a mindless lynch mob. Like throwing meat to a starving lion. There’s no such thing as too much government when it comes to our children.

  25. #25 |  pam | 

    the thing that really annoys me is the lawmakers claiming to care about children being raped and exclaiming that children MUST be protected from horrible rapists who deserve death as punishment.

    If lawmakers really careed so much about children being raped, why do they pass laws that subject children/juveniles charged as adults as young as 10 years old to adult prison facilities, county jails and adult detention centers where guess what, they are raped? Maybe they get some sort of twisted glee out of a 13 year old boy being raped in an adult prison facility? So unless I’m misunderstanding the “lawmakers” kids need to be protected from rape, unless they are accused of a crime, then screw em, they’re on their own, hardy har har. They write laws that pretty much put children in harms way of getting raped, and then they want to execute child rapists because children need to be protected. Children are at 5x higher risk of being raped in adult facilities. . I just don’t get it. Lawmakers say whatever serves them best, cause we see what these laws mean for children in adult jails, they mean rape within the first 48 hours, and the “lawmakers” have paved the way for it to happen.

    And what really pisses me off is Obama basically saying he doesn’t see anything wrong with this law if States want to do it, such as LA. I mean, in his home state of Illinois some 26 death row inmates have been exonerated on DNA and he was on the special commission that Ryan started and voted for the moratorium. I guess he’s turning into just another political hack speaking out of both sides of his mouth.

  26. #26 |  Neo | 

    This begs the question ..

    What do Al Gore and raped children have in common ?

    Answer

  27. #27 |  Tanya | 

    Go Pam, Go!

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