Patterico's Pontifications

1/7/2008

Is It Unconstitutional to Execute Someone for Raping a Child?

Filed under: Crime — Patterico @ 12:29 am



Is it unconstitutional to execute someone for raping a child? The Supreme Court has agreed to decide that issue.

I’m not sure it’s the wisest idea. I’ve seen firsthand cases where draconian laws have caused criminals to kill people, where they would not have otherwise. If you know that you face death for raping a child, what’s the incentive to leave the child alive?

Whether it’s unconstitutional is another question. Feel free to weigh in.

50 Responses to “Is It Unconstitutional to Execute Someone for Raping a Child?”

  1. This one’s simple for me, as a matter of constitutional law. (I agree with you that it’s not necessarily so simple as a matter of public policy, and that it may be constitutional but unwise for states to so permit.)

    For centuries before the Constitution and Bill of Rights were enacted, and for almost all of the many decades since then, it was unquestioned and routinely accepted that states could prescribe capital punishment for non-homicide crimes. Within the last few years (in 1994), our present Congress — representing the modern-day conscience of our national community — has made the death penalty available for certain extreme non-homicide crimes. Nobody’s amended the Constitution in the meantime in any significant respect.

    So unless you fully buy into the “living, breathing Constitution” argument — a/k/a that is, the “Which Side of the Bed Did Mr. Justice Anthony ‘Sweet Mysteries of Life’ Kennedy Get Up On Today?” Constitution — then it’s constitutional.

    Or it should be so held. Whether this Term’s Court will so hold or not, I have no idea.

    Beldar (759113)

  2. Hear, hear, Beldar!

    Christoph (92b8f7)

  3. Beldar, you think because congress enacted a law in 1994 and it has been unchallenged that it is therefore constitutional?

    Didn’t Coker hold that, generally, a life must be taken for a death penalty to be proportional? I know some claim that Coker just said DP for rape is bad, but the underlying justification clearly says that proportionality requires a crime of taking life.

    The trend among states is indeed leaning towards permitting the DP for child-rape, but that’s not a hgue trend.

    Jem (9e390b)

  4. From CJ Burger’s dissent in Coker v. Georgia:

    “On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. [n1] Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently. Approximately 1 1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.

    The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court’s holding, moreover, bars Georgia from guaranteeing its citizens that they [p606] will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court’s holding assures that petitioner — as well as others in his position — will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself. To what extent we have left States “elbowroom” to protect innocent persons from depraved human beings like Coker remains in doubt.”

    nk (4bb3c1)

  5. I must have missed “proportional” in the Constitution. Or is that another case of penumbra and new life?

    Dan S (175938)

  6. The opinion of the Louisiana Supreme Court, affirming Kennedy’s death sentence is here. It’s horrific. Read at your own risk. The rape of the eight-year old was brutal. Kennedy also did his best to frame a teenager for it.

    nk (4bb3c1)

  7. Didn’t Coker hold that, generally, a life must be taken for a death penalty to be proportional

    If you think a normal, unaffected life is possible when you’re violently, brutally raped at the age of 8 is possible, you’re of sterner stuff than I.

    Kill them. Hang them high, and hang them long.

    Scott Jacobs (425810)

  8. Ooo! I like this line: “Execute this man. Justice has a sword and this sword needs to swing today.”

    tired (6a7a53)

  9. I’m not sure it’s the wisest idea. I’ve seen firsthand cases where draconian laws have caused criminals to kill people, where they would not have otherwise. If you know that you face death for raping a child, what’s the incentive to leave the child alive?

    I asked that question in a previous thread and was criticized for my naivete.

    aunursa (090908)

  10. Criminals kill their victims all the time during the commission of non-capital crimes in order to keep them from identifying them, from pure sadistic pleasure or from weasel-like bloodlust. Let’s just take it one step backward, what’s the incentive for not raping the child? We can argue endlessly about deterrence theories and statistics but the better question is: How much does society disapprove of this type of crime?

    nk (4bb3c1)

  11. I believe most people who murder are just looking for the excuse to do so. The robberies/rapes/witness problems are just incidental. It’s a different mindset than ours. Don’t expect to understand it.

    tired (6a7a53)

  12. Why shouldn’t a kidnapper rape and mutilate his victim? It’s not like he wouldn’t be going to jail anyway.

    This can be taken to it’s ridiculous extreme.

    Techie (ed20d9)

  13. “If you know that you face death for raping a child, what’s the incentive to leave the child alive?”

    I’m not buying that one who is so utterly depraved and reprobate would be influenced in their perverse acting out by incentives other than momentarily sating their rage by harming a child.

    If there was any crime deserving of the death penalty…

    Dana (149e06)

  14. There was a case where I use to work. In the middle of the night, a guy pried open a window, reached in and removed the 11 month old sleeping in her crib below. He repeatedly raped her and then just dumped her in a field. She ended up in intensive care, was in the hospital for months and had to have numerous surgeries. It was by the grace of God that she was found before she died of exposure and her massive injuries. So, why should this guy live?

    tired (6a7a53)

  15. Why should he not be skinned alive slowly with all life-sustaining measures?

    nk (4bb3c1)

  16. There are worse things you can do to people than kill them. If we choose to execute people for killing, what about crimes that are worse. I think tired just gave a grime example. And I oppose the death penalty – until I hear cases like this. Sweet inconsistency, where is thy sting?

    quasimodo (edc74e)

  17. If f-word proportianality is the f-word test, skinning the animal alive is kind although unusual punishment.

    nk (4bb3c1)

  18. I like how you think, nk… 🙂

    Scott Jacobs (425810)

  19. “If you know that you face death for raping a child, what’s the incentive to leave the child alive?”

    At most, this is an argument against mandatory death sentences.

    LarryD (feb78b)

  20. I wasn’t always like this Scott. Until a woman I knew for twelve years, and also represented in some minor business disputes, was murdered in a robbery of her fast-food restaurant. The murder was totally pointless. There were three of them and she was a small woman. They took the money out of the till and then they picked up kitchen knives and hacked her to death. She worked a minimum of twelve hours a day, Monday through Saturday, on some days fifteen hours.

    nk (4bb3c1)

  21. Too bad this isn’t a Muslim country. Then we could solve the problem by murdering the eight year old for dishonoring her family.

    JayHub (0a6237)

  22. That might be one of the most cynical things I’ve seen in years, Jay…

    Scott Jacobs (425810)

  23. I had a gf who was an RN who worked in the children’s sexual assault unit. There was a case at the time of a 6 y/o with her grandfather in downtown SF. The little girl went missing in the crowd and he reported her as kidnapped. They found her later and my gf told me how grossed out she was by seeing all this semen running down the girl’s leg and filling up her little shoe. She had never seen anything like it and it haunted her. Turned out that grandpa rented the little girl out to one of his friends for a day.

    It’s these awful little details that only the victims, cops, medical personal, and the jury hear about.

    tired (6a7a53)

  24. nk, were the three sentenced to death, or just life in prison?

    Scott Jacobs (425810)

  25. Tired,

    Holy. God.

    I couldn’t dream up enough horrible things to do to that grandfather to even the scales.

    And I dream pretty dark.

    Scott Jacobs (425810)

  26. That might be one of the most cynical things I’ve seen in years, Jay…

    I vaguely remember a case with those facts happening in the West Bank. The little girl was molested and then later murdered by her family.

    tired (6a7a53)

  27. Unfortunately, Scott. I have read a case where the mother sold her 8 year old for $50. She held her in her lap with her legs spread so the buyer could rape her. How do you not want to kill your mother after having that done to you?

    One good things these days, is though a kid may be to traumatized or afraid to tell anyone, they almost all eventually will tell a friend who will go to a teacher or parent.

    tired (6a7a53)

  28. Scott #24,

    One pleaded guilty and was sentenced to 45 years in prison of which she will have to serve 85%. The other two’s cases are still pending because they have been charged with capital murder. Death penalty cases can take a very long time to go to trial.

    nk (4bb3c1)

  29. Death penalty cases can take a very long time to go to trial.

    Not in Texas!

    tired (6a7a53)

  30. Here’s to hoping the state is actually willing to put them to death, nk.

    And tired, I think I recall that case as well.

    Scott Jacobs (425810)

  31. If the Eight Amendment’s ban on Cruel and Unusual Punishment referred to cruelty toward the victim of a crime, rather than cruelty toward the criminal who commits the crime, then there might be an argument against the death penalty for criminals who rape children, because that penalty could cause the rapist to kill the child. But, in reality, the Eight Amendment obviously refers to punishments that are cruel to the criminal, not cruel to the criminal’s victim.

    The plurality opinion in Coker contains this: “Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.” I wonder if the framers also felt that rape does not inflict serious injury. That seems very doubtful.

    Andrew (08ba2c)

  32. From Loisiana v. Kennedy: “Her entire perineum was torn and her rectum protruded into her vagina.”

    nk (4bb3c1)

  33. From Loisiana v. Kennedy: “Her entire perineum was torn and her rectum protruded into her vagina.”

    Good point, nk. I say have a team of doctors on call to make sure the child rapist doesn’t die and torture the convict in every imaginable way several times a day for years and decades with the goal of making the person’s life the most hellish existence of any person which has ever lived on the planet.

    But certainly I don’t support the death penalty for child rapists. That’s barbaric.

    Christoph (92b8f7)

  34. There was a case in Kansas in the late 70’s where a sympathetic jailer notified the family of a rape victim when and where the rapist was being released. After the jail bus left the rapist disappeared. Several weeks later he was found floating face down in the river. It appeared he had been tortured, then his testicles were punctured and ripped and he had bad burns on his back and legs. Police suspected that he had had his testicles nailed to a wooden door or wall and then the wood was set on fire.

    It seems to me that this was way too lenient of a punishment.

    Jay Curtis (8f6541)

  35. Sounds like the worst case of suicide I’ve ever heard of…

    Scott Jacobs (425810)

  36. I think the “rapists might commit murder now” idea is more credible than people are giving it credit for here.

    child-rape is a very unique crime. The vast majority, more than 90%, of criminals never are caught. Why? because they are not reported. Virtually all the time someone goes to jail for this stuff, it’s because someone reported them. Thus, if you kill your victim, you are actually making a significant different in your likelihood of being reported and convicted.

    Also, these crimes are committed by people who think about what they are doing and take many measures to prevent being caught, such as scaring the crap out of a kid with threats. These people might just be thoughtful enough to change their crimes accordingly. It’s not as though they care about these kids. I honestly believe that a significant number of them are aware of and fear teh death penalty and adjust their actions accordingly. IF they knew that they could increase their chances of getting away with the crime by killing, but the penalty was the same, I think some of these people would in fact kill.

    And that’s not to mention how the death penalty makes jurors more hesitant to convict, takes much longer to adjudicate, costs far more money, and makes testimony against a relative much harder. Life in prison with no parole is cheaper and more effective because it frees time and resources for getting more convictions from other rapists while boosting conviction rates. And maintaining the distinction between raping, and raping+killing.

    And I believe Coker did not kill his victim specifically in order to avoid the death penalty. In some sense, I think it’s so obvious that deterrence works re:killing in a way it doesn’t work re: rape.

    People jump all over eachother trying to be the most vicious defender of children, proving their awesomeness by demanding more and more severe penalties and laughing at things like the vigilante killing noted just above. That’s very stupid. These rapists were often raped themselves. They are ruined and broken. They cause unspeakable harm and must be stopped, but studies seem to indicate they are unable to control themselves. Thus: a death penalty is unlikely to keep them from raping though it may keep them from killing. So it makes sense to focus on catching as many as possible and keeping them locked up indefinitely. Executing them is just a waste of resources. It doesn’t do any good, and it probably does some harm.

    What is cruel? I think proportionality is involved there. Personally, I view child rape as proportional to death penalties, so I have no problem with it, but when the court considers that the death penalty is only for the very most extreme, and there is a categorical difference between child rape and child rape + murder, they will note that the government is punishing at the most extreme for crimes that aren’t. Kennedy will vote that this is unconstitutional. I’d bet a lot on that. Me, I think this is a very stupid law, but perfectly constitutional.

    Jem (9e390b)

  37. child-rape is a very unique crime. The vast majority, more than 90%, of criminals never are caught. Why? because they are not reported. Virtually all the time someone goes to jail for this stuff, it’s because someone reported them. Thus, if you kill your victim, you are actually making a significant different in your likelihood of being reported and convicted.

    Jem, this paragraph argues against your position. The vast majority of child rapes are not reported…which means they are not detected. If the rapist then murders his victim, that increases the likelihood that the crime will be detected, because now there’s a body. Further, the parents will report the child as missing, and there will be a search for the victim. In all, a child rapist who depends on the child’s silence in order to escape detection would be more likely to be caught if he killed the child.

    Steverino (e00589)

  38. Coker had raped another 8 year old girl who was a relation. She told her mother but the family convinced her to keep quiet about it. You would think they would have at least warned the woman he later married and was the victim in this case. It probably would not have done much to dissuade her. After Coker was arrested he would call the house and allow him to speak to the girl.

    tired (6a7a53)

  39. steverino,

    Yeah, i realize that point. I think it goes both ways. In one sense, a murder produces physical evidence, guarantees an investigation, etc. On the other hand, the rapist might destroy the physical evidence or hide the body, etc.

    It’s tough to parse out either way, but the fact that so few of these cases ever result in convictions with testimony has to provide some incentive to get rid of the witness.

    Jem (9e390b)

  40. I say kill them.

    If they are dead, the chance of them being able to refrain from attacking another child is 100%.

    Scott Jacobs (425810)

  41. I’ll say it again, Jem: if you want the crime to go unreported, the last thing you should do is kill the victim. A missing or dead child is the subject of nightly news. You might not get caught, but your chances of getting caught from an unreported crime are a whole lot less.

    Let’s look at it another way. In states where there is no death penalty, the maximum sentence — no matter how many witnesses you kill — is life without parole. How often do criminals kill witnesses in those states? After all, it’s not like they’re going to spend any more time in prison over and above the sentence for the initial crimes. (For argument’s sake, suppose the criminal has committed enough crimes to warrant 50 or more years.) I don’t know this number, but I’ve got a feeling it’s small.

    If criminals don’t kill witnesses even when their sentences won’t be extended, then why would they kill witnesses when they might be executed?

    Steverino (e00589)

  42. steve, I acknowledged your point, already. You’re basically just agreeing with me.

    Also, child-rape is dramatically different from the rest of criminal law. These people often have great difficulty controlling their sexual impulses, so I don’t think your comparison makes any sense.

    Fact is, I agree that this is the weaker part of the argument because it’s so open to speculation, though it’s probably the case that more children would be killed by their rapists if the death penalty covered both the same. These rapes usually go on and on for years. If the child started talking, or indicating that she/he will talk, the rapist will have an incentive to kill because they believe an investigation is imminent. They have an incentive not to kill because it guarantees an investigation. There is an incentive not to kill because of the death penalty, and the criminal may have much more ability to control this urge than they had over their rape act. In other words, I an arguing that deterrence from a death penalty is much more powerful towards preventing murder than preventing the initial rapes that the rapist may have a psychological compulsion towards.

    Again, you’re right, the rapist should avoid murder to avoid an investigation, but that’s just one of many considerations the rapist is dealing with. I really don’t know exactly how it would play out, but I insist that there would be some cases where the rapist kills the victim when he would otherwise not kill the victim if he felt that made the crime more punishable. That’s probably not a ‘most of the time’ situation, and again, usually the would be killer will avoid killing to avoid investigation. But it would still happen, at least a few times.

    That’s not to say we shouldn’t execute though. Mine is a bit of a slippery slop argument. I think this is surely the weakest argument for banning the death penalty for child-rape, which is why it gets so much attention. The other arguments, dealing with victim testimony and jurors resulting in more convictions for imprisonment than executions, time and resources used to execute fewer rather than imprison more, are much more persuasive.

    It’s really a difference in opinion re: priorities. I would rather protect as many children as possible. Some would rather impose maximum retribution and send the most loud statement of outrage. I think we have to choose. the increases in resources needed to get a death penalty is not trivial. It means fewer people get fully prosecuted. Though, it also means prosecutors have a powerful bargaining chip, the mere fact that death penalty is legally possible hampers jurors and testimony somewhat.

    Jem (9e390b)

  43. I would rather protect as many children as possible. Some would rather impose maximum retribution and send the most loud statement of outrage. I think we have to choose.

    You sound as if you think those two goals are mutually exclusive. I don’t accept that premise.

    Also, child-rape is dramatically different from the rest of criminal law. These people often have great difficulty controlling their sexual impulses, so I don’t think your comparison makes any sense.

    Not sure why you think my comparison doesn’t make sense. I was speaking only about killing a witness to a crime, not avoiding the crime completely.

    I really don’t know exactly how it would play out, but I insist that there would be some cases where the rapist kills the victim when he would otherwise not kill the victim if he felt that made the crime more punishable. That’s probably not a ‘most of the time’ situation, and again, usually the would be killer will avoid killing to avoid investigation. But it would still happen, at least a few times.

    It can happen absent the death penalty; my point is that it won’t be more likely with the threat of execution than it already is.

    Steverino (e00589)

  44. Perhaps we can just supply these rapists with an abundance of hot dogs.

    navyvet (fbe0ce)

  45. It’s not about Cruel. It’s not about Unusual. It’s not about whether or not they will kill a witness (6:5 & pick it!).
    It is about breaking the social contract of the living. When you deliberately take a life, you have broken the contract; the penalty for which is forfeiture.

    Another Drew (8018ee)

  46. heh… Tried to remove the hotdog… By pushing it further down…

    Scott Jacobs (a1de9d)

  47. Allow the court the possibility of the death sentence. Do not further bind the hands of Justice. I doubt that it will be used a hundredth as much as I would in those cases.

    I would gladly give up my life to save my granddaughter from being raped. This means that I hold the rape to be worse than my own demise. Why should the state look differently on this crime, especially such an extreme example as this one?

    Looking pragmatically, it is well known that pedophiles will keep abusing children whenever they can. The recividism rate is incredibly high. Why let these people out to inflict more evil on innocents, why even stockpile them in hopes of a cure that we have no clue even exists? The only known cure is a religious experience, a miracle if you will, which is both rare and easily faked. They have no chance of hurting another child if they are dead.

    These folks are an inordinate drain on prison resources as well, for they must be protected from their fellow inmates as well as the citizens outside. If you wish pedophiles to die horribly, just put them in the normal inmate population. I do not want that, but do not think that mistakes of this sort have not been deliberate. Prisoners exacting justice when the criminal justice system abdicates the responsibility hurts all parties. Don’t think that pedophiles don’t know about their possible treatment in prison, either.

    So, there is already an unofficial death penalty possible, either in prison or by vengeful family. This negates the ‘unwise’ objection to the death penalty IMO. What the present situation does is diminish respect for the law, and giving the judge/jury access to the ultimate punishment will help fix that.

    tweell (88e59d)

  48. Saw this case at Volokh, and I have the same comment. I’m an absolutist against the death penalty. But if we have it, the defendant in this case deserves it more than many murderers.

    Andrew J. Lazarus (56276a)

  49. Murder and rape are state offenses, and anything equally or more “humane” than being choked to death (old style hanging) or shot by 5 guys with crappy old smooth-bore muskets cannot be cruel nor unusual.

    Legalities aside, children that are molested are some of the most damaged members of our society, anyone doing that should be shot by 5 drunk guys with black powder rifles.

    martin (d3fe32)

  50. Individuals should be able or have the right to protect themselves ,families and their property. For that reason a criminal that attack a victim should not expect to be treated well. (see article here:http://www.zurlick-security.com/blog/

    Jimmy (f0b2ef)


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