Could there be symbolic and practical value in making repeat child rape a capital offense?
As discussed here and here, the “hot new thing” in death penalty legislation is to make some forms of child rape a death penalty offense. This local article discusses an Alabama bill in the works and also provides useful background on these issues:
HB335 focuses on sexual attacks on children under 12, sexual torture of children under 16 or sexual attacks on anyone incapable of giving consent. Those crimes would be capital offenses if the defendant already has been convicted of rape, sodomy, sexual torture or sexual abuse in the first or second degree. The punishment in those cases would be life without parole or death by lethal injection….
Louisiana, Florida, South Carolina, Montana and Oklahoma already allow the death penalty in some cases of non-fatal child molestation. Texas and Utah are considering similar laws. Louisiana inmate Patrick Kennedy is the only person on Death Row nationally for a non-fatal child molestation, said Richard Dieter, executive director of the Death Penalty Information Center in Washington.
Unsurprisingly, folks who categorically oppose the death penalty are categorically against these laws, and there are serious constitutional questions in light of the Supreme Court’s declaration 30 years ago in Coker that the death penalty for adult rape violates the Eighth Amendment. But, because we are discussing these laws in my death penalty class this week (details here), I have been giving more and more thought to some of the potential values of these new laws. Here are some initial ruminations:
1. Symbolic value: As regular readers know, almost no murderers get executed outside Texas anymore, and so the odds that many (or even any) repeat child rapists will be executed seems small. But what seems potentially large is the symbolic (and psychic?) benefits that legislators, victims, and general citizens might draw from making the symbolic statement that some cases of repeat child rape can be as horrible as some murders. (I mean here to suggest a value that is beyond the (possible? unlikely?) tangible deterrence benefits that might come from being able to tell first-time child rapists that their next offense could lead to a death sentence).
2. Practical value: Especially because few death sentences lead to executions and even fewer capital indictments lead to a death sentence, I have long believed the real practical consequence of the death penalty is to induce pleas and cooperation. (I am not saying this is the primary or even a proper reason for having the death penalty, but I think it is accurate to say that the Green River Killer and the Unibomber and many others have been been brought to justice more easily because of the threat of the death penalty.) Because child rape cases can be notorious hard to prosecute sometimes, perhaps the possibility of a death sentence for repeat child rapists could have a real practical benefit in inducing valuable pleas and cooperation.
As suggested above, these are just ruminations. But I would be interested in reactions (particularly from folks not categorically opposed to the death penalty).
UPDATE: In addition to a lot of great comments already, Corey Yung at Sex Crimes weighs in here. Notably, Corey (and federalist in the comments) asserts that these statutes “increase the risks that victims will be killed.” I hear that claim a lot, but do not quite understand it. Do we think that the death penalty for certain felony-murder killings increases the chances that witnesses who see the robbery will be killed. Also, as Crunk highlights, any truly “rational” child rapist must know he has a much better chance of escaping conviction altogether on a child rape charge than of escaping a rape+murder charge. Further, all of these statutes would no doubt have killing (or even harming) the victim as an aggravator at the punishment stage.
I have never seen any empirical support for the notion that these statutes increase the instances of killing the victim. (Someone should be able to study this, since the Louisiana child rape statute’s been operational for more than a decade.) Until I see some support for this “kill the victim” assertion, I am suspect of this argument against these statutes.