I don't see why the death penalty can't be on the table for all violent felonies. If a prosecutor + jury + judge all agree a criminal deserves to die for a particularly heinous crime, why deny justice just because he didn't happen to commit a homicide?

I was under the impression that the remaining credible reason the death penalty was struck down in Furman was discriminatory application... Or are we still laboring under the dubious premise that rape isn't a serious injury? That part of Furman always irritated me.

For the life of me, I can't think of a good reason for letting a child rapist live. I am more supportive of the death penalty for child rape than I am for many murders. While killing can often be provoked and even understandable if not justifiable or excusable, there never is a good reason other than pure evil for child rape.

Of course, in my view, for the death penalty to apply, one should be extra certain that the accused committed the crime. But once on is absolutely certain that the accused is in fact guilty of child rape, I believe they should be executed forthwith.

How old would the child have to be, and should consent be an issue? How much violence would have to go with the rape?

Snarkiness aside, would you be in favor of executing the guy who got Britney's sister pregnant?

"Snarkiness aside, would you be in favor of executing the guy who got Britney's sister pregnant?"

No. But for the news editors who decided this was a "Top Story"? My resistance to the death penalty might be wavering on this one.

Or was that snarky?

If so, a non-snarky answer: I hope we aren't talking about capital punishment for statutory rape here. Are we?

The death penalty is bad policy for crimes less than murder because it encourages the criminal to kill the victim...

Bad policy, or unconstitutional? Or does it matter with the Court anymore? (Probably not)

Fortunately, my sample size is small, but I don't know a single person who was raped or severely sexually abused as a child (definitely under age 12) who hasn't suffered as an adult from a severe mental illness such as bipolar disorder or the like.

I am generally opposed to the death penalty for moral and practical (cost &administration) reasons, but I somewhat inconsistently believe that if the death penalty for murder exists, it might as well be extended to cover the rape of a child.

Sigh.

Let's just list the arguments for and against and close this thread before it turns into a shouting match, shall we?

Reasons why the death penalty for child rape is unconstitutional and bad policy:

1) Most states don't have the death penalty for child rape. Even if you count states that allow the death penalty for certain nonhomicide crimes like treason and air piracy, no one is sentenced to death under those statutes. "Evolving standards of decency" in the United States are thus against the death penalty for child rape.

2) The death penalty for child rape is disproportionate. The death penalty for murder is proportionate because the murderer kills his victim. The death penalty for child rape is disproportionate because the rape victim lives. Thus, it's unconstitutional under a proportionality analysis.

3) The death penalty for child rape isn't an effective deterrent. Child rape most often occurs between relatives and is not premeditated. If anything, the death penalty for child rape encourages the rapist to kill his victim and discourages children raped by relatives from reporting the abuse for fear that dad/uncle/grandpa, etc. will be killed.

4) Children are generally unreliable witnesses, making false convictions for child rape more likely than for other types of crime. The death penalty is a serious enough punishment that it should be reserved for crimes where evidence is generally more likely to be reliable. (In fact, rape is one of the crimes for which false convictions--even absent the involvement of children--are particularly high.)

5) Most countries don't impose the death penalty for child rape, even among countries that allow the death penalty. Thus, evolving standards of decency globally are against it.

Reasons why the death penalty for child rape is constitutional and good policy:

1) The death penalty for child rape was allowed at the framing and for a long time afterwards. Thus, from an originalist perspective, it's constitutional. The evolving standards of decency test is not the proper inquiry for Eighth Amendment analysis.

2) Even though most states don't have the death penalty for child rape, the wind is blowing in that direction. Six states now allow the death penalty for child rape (Louisiana, Texas, Florida, Montana, Oklahoma, and South Carolina) and similar child rape bills are pending in other states. The "evolving standards of decency" test shouldn't be used as a one-way ratchet to squash this movement, which may be late in coming only because states had previously been too broad in their reading of Coker.

3) The death penalty for child rape is not disproportionate. Short of murder, rape--especially of a child--is one of the most psychologically damaging crimes one can commit. Some would say that it is "worse than death." (Rejoinder: equating child rape victims with murder victims is demeaning, implying that they can never get over their trauma and enjoy happy, productive lives.)

4) The death penalty would deter child rape. Even if the data is unclear on deterrence, that's all the more reason states should be allowed to experiment to see if their child rape rates decline.

5) The death penalty for child rape reflects an appropriate level of retribution. Society does not want to tolerate child rape, and the clearest way for society to express its disapproval is by imposing the death penalty for child rape. (Rejoinder: retribution via death may not be the most appropriate punishment for child rapists, the majority of whom were themselves sexually abused as children and more predisposed to this crime than the rest of the population.)

6) What most countries think about child rape is irrelevant. Even if one believes in the evolving standards of decency test, it shouldn't encompass the practices of other countries.

------

I'm sure I've missed an argument or two, but I think that about covers it.

Aslett writes: (Rejoinder: retribution via death may not be the most appropriate punishment for child rapists, the majority of whom were themselves sexually abused as children and more predisposed to this crime than the rest of the population.)

First, thanks for the comment. Most dp threads devolve into shouting matches, but hopefully that'll help.

On this "rejoinder," though, aren't most crimes are committed by people who are more "predisposed" in some way than the rest of the population?

Many thieves and murderers and drug dealers grow up around theft, murder and drugs. Many people who steal don't have a lot of money. Many people who kill were victims of violence at some point in their lives or have something in their past that makes them not very well adjusted.

Your rejoinder to #5 for the dp actually provides further support to your #3 argument in favor of the dp.

stephen: how about these additional ones based on level of generality

Capital punishment for non-homicide crimes is unusual, therefore unconstitutional.

vs.

Capital punishment for the most serious of crimes is not unusual, therefore it is constitutional.

As one of the few people here who have actually sat -- and come to a decision -- on a jury deliberating child rape, I'd like to come down on the side of "I would be against it as a matter of policy and I do not know if it is constitutional." I simply don't have the knowledge of constitutional law to speak to the constitutionality of executing child rapists.

On the other hand, I have also had the experience of sitting on a jury deliberating the guilt of somebody accused of such a crime. For those wondering, it was most certainly not a "fun" experience, and was in fact an extremely difficult trial to sit through. We had to make an extraordinarily tough decision based almost entirely on the credibility and memory of a nine-year-old who was only five years old at the time of the alleged acts by her father.

As a jury we did our job and deliberated, considering every possible angle. The difficulty was that there was no corroborating evidence and there simply could not possibly be any given the facts. Either you believed the girl or you didn't. In the end, I decided that if these facts weren't enough to convict, anybody who committed a similar crime would get away with it each and every time.

In other words, I sent somebody to prison for at least twenty years based almost solely on the word of a sobbing nine year old.

For the purposes of this case, I'm happy with the result. After attending the sentencing and listening to some facts not permitted into evidence during the trial, most of my remaining doubt went away. But coming out of that jury room and saying "guilty" to that man's face, I *did* in fact have some lingering doubt (although not beyond a reasonable doubt).

I was willing to send a man to prison for at least 20 years based on that evidence. Having to consider the death penalty would have made the experience even more stressful, and I'm not sure I would have been willing to find him guilty if the next step was a death penalty deliberation. Nor do I think (given the facts) that the death penalty would have deterred the guy.

I have told some friends that my week-long jury experience was probably worse than almost any other possible jury experience, including a murder trial.

Yes, he was (and is) a despicable human being who committed horrendous acts against another human being. But the issue is whether changing the trial into a death penalty trial would have affected my vote. I think it might have. I'm comfortable knowing that I might have made a mistake by sending the rapist to jail for most of his remaining life. In the balance of things, the lingering doubt just wasn't worth the risk to letting him potentially do this to another kid. However, I don't think that I could have ever considered those facts in the same rational way if the death penalty had been on the table.

Let's not neglect the economically oriented marginal deterrence argument: If a criminal faces the death penalty for a victim crime of less than murder (say armed robbery or rape), he may as well murder the victim--why leave a living witness?

Or as the old English saying about the "bloody code" (where about 200 different offenses were death-eligible) had it, "as well hang for a sheep as for a lamb" (it was considered a greater offense to steal or kill female livestock).

I vote: I do not know whether I support such a law as a matter of policy, but I think it is constitutional.

I think that the death penalty should be available as a penalty in cases of child rape with special circumstances, in much the same way that it is available in cases of first-degree murder with special circumstances.

That is, there would be a separate penalty phase, in which any scintilla of residual doubt would be a mitigating factor. There would be a long list of possible mitigating factors, and a relatively short and specific list of aggravating factors. Testimony from other victims, which might not be admissible during the guilt phase, could be admissible here, especially if there were convictions in the earlier cases.

My one experience with this matter was as a juror in a case in which the defendant was convicted of kidnapping (from her bed), raping, and murdering his 11-year-old niece. Testimony from the women he had previously raped, and beaten brutally, was very convincing. The jury recommended the death penalty, and the judge agreed. The defendant will presumably sit on death row until he dies of old age. (When I checked after the trial, more death row inmates in my state had been killed by other inmates or died of natural causes than executed by the state.)

I think that the death penalty should be available as a penalty in cases of child rape with special circumstances, in much the same way that it is available in cases of first-degree murder with special circumstances.

Like it is in murder cases? In some states with the death penalty, it's really hard to commit murder without at least arguably committing a death-eligible murder. When a case arises that doesn't meet the definition, the prosecutors run to the legislature to "close the loophole."

As to child sex cases, given that suicide is a major risk when these guys are caught, the death penalty is unlikely to be a deterrent. Many of these guys are already willing to self-impose the death penalty, so the threat of having the state do it doesn't add a whole bunch.

Finally, for those who stay alive, the beauty of sentences of life without parole (or prison terms that are the functional equivalent), is that these guys get an appeal or two. If they lose, they pretty much drop off the radar screen forever.

By contrast, people sentenced to death have a lot more hearings and appeals. Attentive victims have to attend a lot more hearings. More sentences and convictions are reversed. More cases are retried.

A dirty little secret about the death penalty is that it can inflict a lot more pain on victims than locking someone up forever. The upside is that legislators get good publicity when they pass they law and prosecutors get good publicity when they seek the penalty.

Give child rapists a fair trial. If convicted, lock them up forever out of sight.

Why is the death penalty (for any kind of rape) "clearly constitutional" after Coker?

I'm a man. Are the people who believe that the death penalty for child rapists is good policy suggesting that if a female teacher (think Mary Kay Le Torneau) had seduced me when I was 11, it would be appropriate to put her to death? Or would that case be "different" because it involves a boy being abused rather than a girl, and a female abuser rather than a male one?

Child rape is obviously a horrific crime, but I do not believe that it is in any way comparable to murder, even if it does screw the victims up terribly. If I was given a choice - either be sexually abused once as a child, or be put on death row and count down the days until my execution - I would choose the former without a second thought. I suspect most people would do the same. How the punishment fits the crime is beyond me.

And TechieLaw, I hate to say it, but your post makes a very good case against the death penalty for child rapists - because it appears that you voted to convict a man of an incredibly serious crime based only on the word of a child. If that was the only significant evidence against the defendant, then surely that didn't constitute proof beyond a reasonable doubt, because children often make up stories of abuse. I could never be comfortable with children being given the option of sending the person of their choice to execution simply by making up a story of abuse.

'The death penalty may deter the rape in the first place.'

It would sure as hell deter the second one.

But what I'm not getting is how a {method of punishment} can be cruel and unusual based on the crime for which it is imposed.

What's the connection?

Harry, I'm sure you'll find out when just before you're beheaded the next time you're caught speeding.

"I sent somebody to prison for at least twenty years based almost solely on the word of a sobbing nine year old. . . . But coming out of that jury room and saying "guilty" to that man's face, I *did* in fact have some lingering doubt (although not beyond a reasonable doubt)."

Sounds like a (very) reasonable doubt to me. I sounds like you're saying you'll convict in every case the prosecution decides to charge this crime.

There is an issue here that has not been discussed so far, and that is severity. Everyone agrees that if one crime is more severe than another, that crime should be punished more severely, although in a specific case there may be mitigating circumstances that may lead the more severe crime to be punished with the same severity or lesser severity than in another case involving a less severe crime. The issue of severity applies whether or not you believe in the death penalty. In terms of this discussion it would have to be viewed as a matter of policy.

The problem is that severity is a vague concept, but it has a profound effect on everyone's thinking even if it is not so often admitted. People feel that rape, especially of a child, is extremely severe and assault is less so. The basis for severity seems to be the harmful effect on the victim. Personally, I do not think that sexual offenses are as severe as most people seem to think and this is what determined my vote.

Jake437:

You weren't in the room, you didn't see what the child said, and you didn't see how she said it. The child sat through almost a day of direct examination and then cross examination. And having taken a trial advocacy course only two weeks beforehand, which included a full day of practicing on child witnesses, I fully realized how difficult a job the defense attorney had in doing his cross-examination. In fact, I was searching for ways to give him the benefit of the doubt simply because I understood how tough it was for him to impeach the witness without looking like an asshole. (Whether this is an argument for or against allowing law students on juries is a totally different question.)

Yes, I convicted somebody *almost* solely based on the word of a child. There were other witnesses who testified about her behavior during the time period in question, about what was possible to infer from a medical exam years later, and about age appropriate behavior, but *only* she actually testified about what had happened to her. In such graphic detail that either (1) she had been fed the information by somebody else or (2) she had been raped. Although the defense attorney used words like "implanted memories," tried to show that she was an inaccurate witness, or possibly even that she was a liar, he failed. The only discrepancies that he could show were the types of things that I would have expected from a young child.

Are you implying that somebody should not be convicted almost solely based on the word of a child? If not, think of the policy implications: since most child rapists don't usually perform their acts in the presence of other people, and the victims may not come forward for years, you would feel comfortable letting many of them get away with their acts. Is that correct?

And you seem to have glossed over my main point: I'm was willing to send somebody to jail based on that evidence. I think the death penalty would have made me more likely to view the evidence differently.

And, on a completely different note, the very act of testifying was clearly traumatizing to the child. I hope that she never has to testify -- or even think about -- those facts again. As another poster stated above, would a death penalty decision have made it more likely that she would have to relive those moments again and again? Or does the better finality of throwing him in prison better allow her to move on with her life?

"It is far too expensive to go through a capital phase trial to make it worth it. That money would be more effective used for prevention than for deterrence."

Not sure what you are referring to, could you please elaborate?

Lastly, from a purely amoral utilitarian viewpoint, even assuming that the rapist will murder the child, the child's life is already ruined as a result of the rape

with this logic, we might as well just shoot the raped children and spare them a horrible future.

in all seriousness, being raped/abused as a child is not a death sentence. it is horrible and takes a while to get past...but with proper therapy many (most?) are able to lead normal lives. they grow up, get married and have kids of their own. being abused as a child is a risk factor for many psychological issues. it is only a risk factor, it is not a guarantee. and most of these psychological problems are manageable with medication and/or therapy.

if the death penalty for child rape does indeed cause more rapists to murder the victim, then it is bad policy regardless of its constitutionality. a rape victim will eventually learn to cope, but a dead rape victim never will.

I believe that it's better for a hundred guilty men to go free than for one innocent man to face the death penalty.

Why just a hundred? Why not a hundred and fifteen or four thousand three hundred seventy two? Exactly how many child rapes would you let occur before you are willing to risk an innocent person going to jail or getting executed?

If a small child is raped, a medical exam taken shortly afterward would almost certainly indicate that they were raped.

Except that in many, if not most cases, the child is terrified to come forward right away because the abuser is a relative or mom's boyfriend. And adults often do not believe or want to believe kids right away or do not want to face the consequences of reporting the abuse. Even in some cases where there is undeniable physical evidence such as a young child contracting a STD the parties involved do not want to believe or fix the problem because the legal consequences can send the breadwinner to jail or cause him to leave, send a sibling to jail, cause great embaressment etc.

If the death penalty is allowed for child rape in the vast majority of the cases it will not lead to the murder of the child for the simple reason that most abusers are relatives or mom's boyfriend. They think they can get away with it without any punishment and that no one beside the victim will ever find out. If you murder the child then people will know for sure that something happened and the police will definitely get involved. Stranger rapes of children are not the norm in child abuse cases.

I base these statements off of conversations I had with my wife and her coworkers (including lawyers, social workers, doctors etc.) who worked at a non-profit agency that dealt with children who made sexual abuse allegations. Child abuse allegations are on the whole handled a lot better than they were 20 years ago with much less leading questions from investigators.

Jake437:

Because humans are not flawless, I agree that our system of justice requires us to err on the side of presuming innocence and potentially letting the guilty go free. This is why I was willing to convict based on less than perfect evidence (and "beyond a reasonable doubt" permits less than perfect evidence simply because the standard is *not* "beyond *any* doubt"), and why I am far more hesitant to send a man to his death based on that standard.

I am far more willing to be personally responsible for mistakenly sending somebody to jail than sending somebody to his death. Also, as a juror, I had no control over how the rules of evidence and the constitutional rights of the accused were handled by the judge. As far too many recent cases have shown (e.g. Martin Tankleff on Long Island), new evidence may come out decades later. You can't give a life back to somebody executed for the wrong reasons, but you can make some type of amends to a person falsely imprisoned.

For what it's worth, I'm not completely opposed to the death penalty in all cases -- I want it on the books as a theoretical option, but I only want to see it applied in the rarest of cases. The case I sat on wasn't one of them.

With that being said, you still haven't answered the question: Given the (unfortunately) extremely common situation where a child rape victim may not come forward for years, where that child victim may be the only witness to the crime, and where there's frequently never any physical evidence (there wasn't any in my case, and an expert convincingly explained why), what would *you* need to vote "guilty"?

It isn't a theoretical question. I haven't looked at statistics, but based on the expert witnesses who testified, it seems that this situation is all-too-common. A terrified little girl discussing the obscene things done to her body is about the best you'll get in most situations.

Public Defender - I'm curious, is there no DNA or other physical evidence in these cases?

DNA is the exception, not the rule. First, many child rape cases are brought years after the rapes allegedly occurred. It is common for indictments to say, "Between January 1, 2003 and December 31, 2003," defendant . . . ."

Second, even if the alleged victim were examined immediately after the alleged event, many kinds of rape don't leave DNA evidence. Often in these cases, the State will put on an expert just to say that no physical evidence doesn't mean no rape.

Wouldn't murky cases be the least likely for someone to go for the death penalty, though? It's a very high standard of doubt, and it's not like you're going to get a second chance if the jury doesn't believe your side of the 'he-said she-said'.

The standard of proof is high. And I did say that juries probably get it right the "vast majority" of the times. But many of the cases in which DNA evidence exonerates someone years after a conviction were he-said-she-said's where the jury got it wrong.

People think they can tell a lie better than they really can. Plus, jurors are loath to let someone free when they think he probably did it, even when they have serious, nagging doubts.

One thing I never want to be is a juror in a child sex case (not that a prosecutor would let me on a jury). I know my job as a criminal defense lawyer--give the defendant the benefit of the doubt.

I would hate to be the one making the final decision. If you wrongly convict, you condemn an innocent man to leading what's left of his life treated as one of society's lowest forms of scum. If you wrongly acquit, you let a predator loose. Tough job. Really, really tough job.

I would hate to be the one making the final decision. If you wrongly convict, you condemn an innocent man to leading what's left of his life treated as one of society's lowest forms of scum. If you wrongly acquit, you let a predator loose. Tough job. Really, really tough job.

I would be more than happy to sit on another jury. However, if I'm asked to sit on another one of these types of cases, I may answer in all honesty, "Your honor, I feel that I have already completed my civic duty." I've told friends that a murder trial would have been an easier ordeal.