[split] Death penalty for child molestors?

[MKSheppard]

I'm more upset over Kennedy v. Louisiana: The Court 5-4 holds that the death penalty for child rape is unconstitutional on Eighth Amendment grounds.

Kennedy wrote the opinion, and his opinion rests in part on "evolving standards of decency" and "the Court's own judgment" on the "death penalty’s acceptability under the Eighth Amendment."

And the case in question was pretty bad from what I've read -- the victim's entire perineum was torn and her rectum protruded into her vagina; and due to the pain, the victim had to be fed gallons of stool softener through a tube to permit her to begin defecating again.

So tell me, why is applying the death penalty to such scumbags unconstitutional?

[MKSheppard]

Link

Supreme Court Rejects Death Penalty for Child Rape
By LINDA GREENHOUSE

WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.

The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.

The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”

Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

Nonetheless, despite this trend toward narrowing the application of the death penalty, there was no suggestion from the majority that the court was moving toward the abolition of capital punishment, which Justice John Paul Stevens called for in an opinion two months ago that no other justice joined.

Justice Kennedy said Wednesday that while the court’s death penalty jurisprudence “remains sound,” it should not be expanded to cover a crime for which no one has been executed in the United States for the past 44 years.

The case, Kennedy v. Louisiana, No. 07-343, was an appeal by one of the two Louisiana inmates, Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Mr. Kennedy’s conviction and rejected his challenge to the constitutionality of his sentence.

The United States Supreme Court prohibited capital punishment for rape in a 1977 case, Coker v. Georgia, in which the victim, while only 16 years old, was married and had the legal status of an adult. It was not clear at the time whether that decision was limited to the rape of an adult woman, or whether it barred the death penalty for any rape. The court on Wednesday treated the issue of capital punishment for child rape as a fresh question, not governed by any existing precedent. As a matter of constitutional analysis, the question in the case was whether the death penalty was so disproportionate to the offense as to amount to cruel and unusual punishment, in violation of the Eighth Amendment. The court’s modern precedents interpret the Eighth Amendment according to “the evolving standards of decency that mark the progress of a maturing society.”

Using that benchmark, Justice Kennedy said the majority had reached its conclusion based on “our own independent judgment” about the implications of extending the death penalty to child rape as well as on the fact that the great majority of states have declined to do so.

The Louisiana law extending the death penalty to the rape of children under the age of 12 dates to 1995. The states that followed were Georgia, Montana, Oklahoma, South Carolina, and Texas. Unlike Louisiana, those states all require that a defendant have a previous rape conviction or some other aggravating factor in order to be subject to the death penalty, and no one has yet been sentenced to death under any of the laws.

Justice Kennedy said there was thus a national consensus against applying capital punishment for the crime.

In a dissenting opinion, Justice Samuel A. Alito Jr. sharply disputed this conclusion. He said that because many judges and lawyers had interpreted the 1977 Coker decision as barring capital punishment for any rape, state legislatures “have operated under the ominous shadow” of that decision “and thus have not been free to express their own understanding of our society’s standards of decency.”

The fact that six states in modern times have nonetheless enacted such laws, Justice Alito said, “might represent the beginning of a new evolutionary line” that “would not be out of step with changes in our society’s thinking since Coker was decided.” He said there were abundant indications that society had become more aware of and concerned about sex crimes against children.

Those who voted with Justice Kennedy in the majority were Justice Stevens and Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Chief Justice John G. Roberts Jr. joined the dissent, along with Justices Antonin Scalia and Clarence Thomas.

Addressing the separate question of the court’s “own judgment,” Justice Kennedy suggested that the flow of death penalty cases for child rape could overwhelm the country’s criminal justice system. He noted that in 2005 there were 5,702 reported rapes of children under the age of 12.

“In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment,” Justice Kennedy said, “we have no confidence that the imposition of the death penalty would not be so arbitrary as to be freakish.”

He continued: “We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim.”

Justice Kennedy also said capital punishment for child rape presented specific problems, including the “special risks of unreliable testimony” by children and the fact that the crime often occurs within families. Families might be inclined to “shield the perpetrator from discovery” when the penalty is death, he said, leading to an increase in the problem of under-reporting of these crimes.

Justice Alito, in his dissenting opinion, said these concerns were “policy arguments” that were “simply not pertinent to the question whether the death penalty is ‘cruel and unusual’ punishment.” He said the Eighth Amendment “does not authorize this court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society.”

Both presidential candidates criticized the death penalty decision. Senator John McCain, the presumptive Republican nominee, said: “That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing” He called the decision “an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime.”

Senator Barack Obama, the presumptive Democratic nominee, said, “I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision under narrow, limited, well-defined circumstances, that the death penalty is at least potentially applicable, that does not violate our Constitution.” He added that the Supreme Court should have set conditions for imposing the death penalty for the crime, “but it basically had a blanket prohibition, and I disagree with the decision.”

In a second decision on Wednesday, the court ruled that the introduction at trial of statements that a murder victim had made to the police violated the constitutional rights of the man who was on trial for killing her.

Before her death, the victim had summoned the police to complain that Dwayne Giles, later charged with her murder, had threatened to kill her. Writing for the court, Justice Scalia said that use of the statement violated Mr. Giles’s Sixth Amendment right to cross-examine the witnesses against him, unless the prosecution could first prove that he deliberately killed a witness was to make her unavailable to testify. Mr. Giles claimed self-defense in the killing.

The vote in the case, Giles v. California, No. 07-6053, was 6 to 3. Justices Breyer, Stevens, and Kennedy dissented. The decision overturned a ruling by the California Supreme Court, which had affirmed Mr. Giles’s murder conviction, but left the state free to try and prove the necessary intent.

[K. A. Pital]

Families might be inclined to “shield the perpetrator from discovery” when the penalty is death, he said, leading to an increase in the problem of under-reporting of these crimes.

I felt sick when reading this, but even moreso since it is true. I must have a human-hating mood today.

[FireNexus]

It was always my impression that putting someone in prison for such ghastly crimes against a child was akin to the death penalty, although that may be sort of an urban myth.

[[R_H]]

It was always my impression that putting someone in prison for such ghastly crimes against a child was akin to the death penalty, although that may be sort of an urban myth.

Aren't they usually kept seperate from the general population though?

[phongn]

The text (PDF) of the ruling, for anyone interested.

[Darth Fanboy]

Families might be inclined to “shield the perpetrator from discovery” when the penalty is death, he said, leading to an increase in the problem of under-reporting of these crimes.

I felt sick when reading this, but even moreso since it is true. I must have a human-hating mood today.

I would like to know if this is just speculation, or an actual common occurence in Death Penalty states for fugitives facing a potential execution.

[Zed Snardbody]

I'm personally in favor of expanding the death penalty to all violent sexual crime.

[Rogue 9]

I'm personally in favor of expanding the death penalty to all violent sexual crime.

So am I, on principle; it certainly wouldn't be cruel and unusual. But there's the practical side to consider; it gives rapists strong incentive to kill their victims in order to eliminate the witnesses.

[Zed Snardbody]

I'm personally in favor of expanding the death penalty to all violent sexual crime.

So am I, on principle; it certainly wouldn't be cruel and unusual. But there's the practical side to consider; it gives rapists strong incentive to kill their victims in order to eliminate the witnesses.

Good point. I'd at least like to have the option on the table though when it came to sentencing.

[Coyote]

The victim has only a lifetime of psychological issues to look forward to for the rest of their existence. That is certainly a "cruel and unusual" "life sentence", IMO. Someone who takes advantage of a helpless kid in such a brutal way should have to consider death as a possible repercussion.

[Rahvin]

Don't forget the possibility of false convictions - that's my biggest gripe about the death penalty in general, and we all know that there have been quote a few false convictions in sexual assault cases even recently that were later overturned from DNA evidence. I don't know about you, but I'd feel pretty fucking shitty if I supported executing all perpetrators of violent sexual crimes and then found out some guy who was executed a month ago was actually innocent. You can let people out of jail, you can't bring people back to life.

There's also the question of "why only sexual violent crime?" There's certainly a significant difference emotionally and mentally for both the perpetrator and victim in sexual crimes, but I don't really understand supporting execution of a rapist and not someone who beats the shit out of someone with a baseball bat. Both can leave lifelong scars physically and mentally - what justifies execution for the sexual offender and not for the violent thug?

And then you get into the question of "what violent sexual crime is violent enough?" Technically, you could argue that forced touching is a "violent" sexual crime - would that be worthy of the death penalty? Do you only mean violent (meaning non-statutory) rape? That would be more reasonable I suppose, but the statement "I'm personally in favor of expanding the death penalty to all violent sexual crime" makes no such distinctions.

The reasons for imprisonment are punishment for an offense, a deterrent, and removal from society for the safety of potential victims. It should be obvious that as a punishment the death penalty in such cases is unbalanced when the victim is still alive and yet the perpetrator has his life taken. As a deterrent, it also fails - as was stated earlier, it would encourage rapists to kill their victims to prevent witnesses, and what the hell - if convicted you're already getting the long nap and they can't do any worse. So the only reasonable justification I can see for the death penalty in non-murder sexual crimes is as a permanent separation from society so that the rapist can never rape again. The argument for this is strengthened by the rate sexual predators re-commit crimes after release, but the rate is not 100%. I don't see how one can justify as permanent a solution as execution on the basis that an offender might re-commit his crimes if released. I particularly don't see how it can be argued that such a person must be permanently removed from society when public safety is clearly not at equal risk to letting a murderer free (despite emotional revulsion, being raped is not as bad as being killed, after all).

[Coyote]

Well I for one am not saying the Death Penalty should be applied universally and in a blanket fashion-- but let's face it, in a violent sexual crime, chances are pretty damn high that there's going to be a definite DNA link established. There tend to be a lot of bodily fluids involved.

[General Zod]

There's also the question of "why only sexual violent crime?" There's certainly a significant difference emotionally and mentally for both the perpetrator and victim in sexual crimes, but I don't really understand supporting execution of a rapist and not someone who beats the shit out of someone with a baseball bat. Both can leave lifelong scars physically and mentally - what justifies execution for the sexual offender and not for the violent thug?

This is really my only beef with supporting the death penalty for child-rape, aside from the obvious problems with false convictions. I have no issues with life imprisonment for pedophiles in a Supermax pen, but can anyone explain why child-rape is more deserving of the death penalty than idiots who actually wind up killing their children by things like refusing blood transfusions or other forms of willful negligence?

[Plekhanov]

Well I for one am not saying the Death Penalty should be applied universally and in a blanket fashion-- but let's face it, in a violent sexual crime, chances are pretty damn high that there's going to be a definite DNA link established. There tend to be a lot of bodily fluids involved.

And the incentive that would give rapists to kill their victims doesn't concern you?

[Coyote]

Well I for one am not saying the Death Penalty should be applied universally and in a blanket fashion-- but let's face it, in a violent sexual crime, chances are pretty damn high that there's going to be a definite DNA link established. There tend to be a lot of bodily fluids involved.

And the incentive that would give rapists to kill their victims doesn't concern you?

Again, I'm not saying it should be automatic, guaranteed, and all-encompasing-- just that the option should not be closed off.

And please don't put words in my mouth about such things, or "creatively interpret" on my behalf. Had you read my post, you'll see where I said it would not be "applied universally and in a blanket fashion", dumbass.

[Plekhanov]

Well I for one am not saying the Death Penalty should be applied universally and in a blanket fashion-- but let's face it, in a violent sexual crime, chances are pretty damn high that there's going to be a definite DNA link established. There tend to be a lot of bodily fluids involved.

And the incentive that would give rapists to kill their victims doesn't concern you?

Again, I'm not saying it should be automatic, guaranteed, and all-encompasing-- just that the option should not be closed off.

And please don't put words in my mouth about such things, or "creatively interpret" on my behalf. Had you read my post, you'll see where I said it would not be "applied universally and in a blanket fashion", dumbass.

And the death penalty for rape not being "applied universally and in a blanket fashion" will stop the death penalty for rape providing a motive for rapist to kill their victims why exactly?

[Hawkwings]

It may not do that, but it might deter the rape from happening in the first place.

[General Zod]

It may not do that, but it might deter the rape from happening in the first place.

Based on. . .what, exactly? States without a death penalty in place typically have lower rates of homicide than states with a death penalty, making it a questionable deterrent at best. What makes you think the amount of pedophiles would decrease as a result?

[Coyote]

And the death penalty for rape not being "applied universally and in a blanket fashion" will stop the death penalty for rape providing a motive for rapist to kill their victims why exactly?

Look, if the death penalty is guaranteed for child rape, then sure, there's no reason not to kill the witness/victim and put her in a wood chipper. But if the death penalty is not guaranteed, then it has the same potential deterrent effect as it does on any other perpatrator: anywhere from "a lot" to admittedly "none at all" for true sociopaths.

If a child rapist is about to wrap his hands around some kid and realizes that he's not facing a few years in jail and public ostracism, but he could potentially be facing the end of his life, it may provide a bit more incentive not to do the deed. As it stands, the recidivism rate of child molesters is quite high, and since society treats them (rightfully) like dog shit after they get out of prison, they have little reason not to do it again. As it is a child molesters faces the following:
Jail. ("I can deal with it for a few years, so long as I get some yummy kid tuchus now")
More Jail. (see above rationale)
A whole lot of jail. (ditto.)

If the death penalty is possible but not necessarily guaranteed, they have another menu of options facing them:
Jail. Or being fucking DEAD.
More Jail. Maybe being DEAD.
A whole lot of Jail. Or a whole lot of DEAD.

"Fucking DEAD? Shit. I'll stay home and read Lolita and whack off instead."

If they choose to RAPE and then KILL the victims, again, we're right back at potential death penalty anyway. They already have a motivation not to kill their victims because of that.

Now if you're one of those people who believe the death penalty is wrong and evil under any circumstances, then sure, there's not going to be any convincing otherwise. I, however, don't have a problem with the death penalty provided there is absolute and definitive proof of guilt (such as DNA evidence that links a perpetrator beyond a shadow of a doubt).

[General Zod]

Look, if the death penalty is guaranteed for child rape, then sure, there's no reason not to kill the witness/victim and put her in a wood chipper. But if the death penalty is not guaranteed, then it has the same potential deterrent effect as it does on any other perpatrator: anywhere from "a lot" to admittedly "none at all" for true sociopaths.

Is there any proof at all that the death penalty is an effective deterrent? The problem here is you think people who commit these acts will be concerned with the consequences at all in the first place. I'm not against the death penalty if the crime is heinous enough, but I have to really question how useful it is as a form of deterrence when crime trends seem to suggest otherwise.

[Knife]

And the death penalty for rape not being "applied universally and in a blanket fashion" will stop the death penalty for rape providing a motive for rapist to kill their victims why exactly?

Lets not be cute, death penalty, life in prison and other fines and punishments don't deter all people from committing violent crime. Your post seems to be lining up a black/white situation and it doesn't need to be that way. Besides committing a baby raper to general population can be a death sentence in and of itself, not to mention the recidivism rates of pedophiles. If the sick fuck gets out, he's at a higher risk of re offending, death pretty much stops that.

On the flip side, I'm more than happy to make sure solid physical evidence is a prerequisite for any death penalty case. An even higher burden of proof, if you will.

[Master of Ossus]

Look, if the death penalty is guaranteed for child rape, then sure, there's no reason not to kill the witness/victim and put her in a wood chipper. But if the death penalty is not guaranteed, then it has the same potential deterrent effect as it does on any other perpatrator: anywhere from "a lot" to admittedly "none at all" for true sociopaths.

Is there any proof at all that the death penalty is an effective deterrent? The problem here is you think people who commit these acts will be concerned with the consequences at all in the first place. I'm not against the death penalty if the crime is heinous enough, but I have to really question how useful it is as a form of deterrence when crime trends seem to suggest otherwise.

If the death penalty isn't a deterrent in the first place, then the question Coyote is responding to is moot.

Moreover, punishment serves a retributive function in society as well as a deterrent one, and the studies on the efficacy of the death penalty as a deterrent are IMO pretty conclusive that it does function as a deterrent.

Comparing states with death penalty to states without death penalty is inaccurate and (at least when cited by serious researchers) is dishonest because it assumes that the states are equally situated with respect to death penalty, where the opposite is true: states that face high levels of violent crime are more likely to use death penalty than states that don't.

As for the idea that the SCOTUS should have responded to the argument that death penalty for child rapists eliminates the incentive for offenders to leave their victims alive, isn't that obviously a legislative problem? Why not let the states make a determination on that argument?

[Teebs]

In the end there is almost always the possibility of a false conviction, however small, and life imprisonment without parole makes for a perfectly good (and no more expensive if I recall correctly) alternative to the death penalty. Lock them up for life, that way if a mistake is discovered to have been made you can at least try to make amends.

[Knife]

In the end there is almost always the possibility of a false conviction, however small, and life imprisonment without parole makes for a perfectly good (and no more expensive if I recall correctly) alternative to the death penalty. Lock them up for life, that way if a mistake is discovered to have been made you can at least try to make amends.

Which is why I added that bit about a higher burden of proof. I have no problem with that, concrete physical proof for a death penalty case.