A Stitch in Haste

There is a myth in pop law that the Supreme Court has ruled that the death penalty is unconstitutional for any crime except murder and treason.

It's a little more complicated than that. What the Court held, in Coker v. Georgia, 433 U.S. 584 (1977), was that rape without a resulting death is not heinous enough to warrant the death penalty. Since rape is — so the logic goes — the worst possible crime short of murder, Coker must by deductive reasoning proscribe capital punishment for any offense other than murder (or treason).

Well, South Carolina is trying to throw a monkey wrench into that reasoning:

The state Senate on Tuesday endorsed making repeat child rapists eligible for the death penalty, setting aside arguments the move might be unconstitutional.
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The proposal allows prosecutors to seek the death penalty for sex offenders who are convicted twice of raping a child younger than 11.

Currently in South Carolina, murder is the only crime eligible for the death penalty.

So the question, in two parts, becomes:

1. Is repeat child molestation a "worse" crime than rape?

2. If so, then is it sufficiently "worse" to meet the Court's other tests for constitutionality of the death penalty?

Personally, I think the answer to Question #1 is "yes" but the answer to Question #2 is "no." The South Carolina law is, therefore, unconstitutional in my opinion and should serve as an opportunity for the courts to make explicit Coker's heretofore implicit dictate that the death penalty is impermissible for any offense other than murder or treason.

An adult can, at least in some circumstances, put up some defense to a rapist. A child presumptively cannot. Also, the trauma of adult rape, although of course severe, is arguably less damaging than the psychological scar of having been molested as a child. The damage is, I submit, worse for a child victim than for an adult victim. Hence the crime of child molestation is worse than the crime of adult rape.

Also (and I admit that I'm walking on dangerous ground), I submit that society's outrage toward child molesters is, correctly, greater when it comes to child molestation than for adult rape. It is not an endorsement of rape to believe that child molestation is simply a worse crime that warrants a worse punishment.

Nevertheless, given the principle that punishment should be proportional to the crime and that naked bloodlust is not a legitimate societal interest, I believe that child molestation, although worse than rape, is not so much worse to elevate it to a capital offense.

I can see no way to argue that execution is "proportional" for anything other than murder. Imprisonment, even for life without the possibility of parole, can be defended as a reasonable societal response to a sufficiently terrible crime. But execution sits on an entirely differently sphere, one that cannot be reached without the taking of human life by the convicted.

Personally, I think that the death penalty is proper in one and only one domestic circumstance (I have no opinion on treason as a capital offense): the premeditated murder of a law enforcement official — a police officer, corrections officer, judge, prosecutor, FBI agent, etc. There is something especially damnable about those who would not only kill, but also kill those who defend others from being killed. Those who strike at the institutions that (in theory at least) exist to protect individual rights have forfeited all such rights for themselves and have no legitimate claim for mercy from even the most humane and forgiving society. We should not be required to waste our resources attempting, or even contemplating attempting, the rehabilitation of such criminals. Fry 'em and move on.

Comments are wide open: Should repeat child molesters get the death penalty?

More thoughts from Sentencing Law & Policy.

UPDATE: Oklahoma has also passed a similar law, bringing the number to five.

The decision was a pure 4+1 to 4 partisan split, with Justice Kennedy again positioning himself into the controlling vote and thereby serving as the opinion's author.

My previous post on the subject here. My thoughts on Justice Kennedy as the "swing vote" here.

Some highlights:

--The "evolving standards of decency" rule for capital punishment analysis continues to guide.

--The death penalty is still not per se unconstitutional.

--The distinction between capital punishment in this case (rape of a child) and Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman) remains robust; today's holding does not flow automatically from Coker, but rather from general Eighth Amendment and capital offense jurisprudence.

--Money quote:

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood.
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It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards." Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.

Wouldn't it be nice, meanwhile, if "respect for the individual" moderated or restrained the application of all criminal law and not just capital punishment? (Compare, e.g., Lawrence v. Texas with the War on Drugs.)

--Interesting:

We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

Putting aside the precedent question of whether anything can ever truly be an "offense against the State," I am utterly dumbfounded as to how "drug kingpin activity" ranks on a par with "treason, espionage [and] terrorism." (Note: Justice Alito shares my befuddlement in his dissent.)

--As I and others noted, elevating child rape to a capital offense makes it far more likely that the perpetrator will kill the victim, since there is no logical reason not to. The Court embraced that reasoning:

Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes. [Citations omitted.]

--The Alito dissent basically rejects the assertion that there is a national consensus on the issue and blames Coker for instead creating a national confusion on the issue -- one that caused state legislators to give up trying to enact capital punishment for child rape in the first place. He rejects the "they may kill the child argument" as irrelevant to the underlying question of, "Is it cruel or unusual punishment?" He points out that the majority is not "declining to extend the death penalty" but rather "choosing to curtail the death penalty" (i.e., since such a capital crime statute as this had never been found unconstitutional before). Finally:

With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient.

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Bottom line, we still have the death penalty and we still don't have a bright-line rule that it can only be applied to first-degree murder, or even only to homicide generally. I guess we'll have to wait for our national standards of decency to evolve some more.

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The case is Kennedy v. Louisiana, No. 07–343 (June 25, 2008) (PDF - 65 pages)