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Reader Opinion on State Laws Permitting the Death Penalty for Rape of a Child:
There have now been 1,650 responses to Friday's poll on state laws allowing the imposition of the death penalty for rape of a child. Let's look at the numbers.

  First, as a matter of policy, a majority of readers oppose such a law. The vote was relatively close, though: 62% oppose the new law and 38% support it. Of course, these numbers are meaningless without a sense of the political views of VC readers. In light of that, here's an earlier poll on the political orientation of VC readers (indicating that VC readers mostly self-identify as moderates on the left or right or as libertarians).

  Second, as a matter of constitutional law, a majority of readers think such a law is constitutional. Specifically, 54% of readers think such laws are constitutional, 20% thinks they are unconstitutional, and 25% doesn't know. Of course, it's not quite clear what this measures, as I didn't specify if I was asking for views on constitutionality that are normative (what the Justices should do), descriptive (what existing law requires), or predictive (what the Justices will do). Still, given the tendency of people to match their view of the constitution to their policy views, the numbers here are pretty interesting.

  Along those lines, it's interesting that the great majority of people who would support the law think it is constitutional, whereas only a minority of those who would oppose the law on policy grounds think it is unconstitutional. It's also noteworthy that 75% of readers who took the poll had a view as to whether the law violated the Eighth Amendment. Only one in four readers didn't have views on whether such a law would violate the Eighth Amendment.
alias:
Very interesting. On this observation, It's also noteworthy that 75% of readers who took the poll had a view as to whether the law violated the Eighth Amendment. Only one in four readers didn't have views on whether such a law would violate the Eighth Amendment., I thought about posting to ask what, exactly, you meant by unconstitutional.

When you ask "is the law constitutional," do you mean...

(1) what will the Court decide in Kennedy?

(2) what would you write on a con law exam if you took one tomorrow? (i.e. what is the best answer in light of current 8th Amendment doctrine and cases that bind all American courts but the Supremes)

or is it...

(3) what the answer should be based on one's philosophical views of how the Constitution should be interpreted.

If it's 3, I'd say that it's constitutional. If it's 2, I'd say that it's constitutional, but with a bit less confidence given that there are 2 plausible interpretations of Coker, and I'm not supremely confident in my view that the narrow reading is more plausible. If it's 1, I don't know... 60% chance of reversal, I'd guess [*straining to bite my tongue re: what I think will decide the Kennedy case*]
1.7.2008 1:45am
EricMess:
I guess that it really depends on whether you think that if you give someone life w/o parole based on the testimony of a kid, can you really give them the chair? That's it to me.
1.7.2008 2:26am
OrinKerr:
EricMess,

I'm curious: Under your rationale, isn't the case against the death penalty for murder even harder than for rape of children? Children may be unreliable witnesses, but so are people who happen to be dead. In my experience, dead people cannot testify at all; the idea is therefore for the government to develop proof beyond a reasonable doubt using testimony other than that of the victim.
1.7.2008 3:08am
OrinKerr:
Er, make that, "isn't the case in favor of the death penalty for murder even harder than for rape of children
1.7.2008 3:10am
jim47:
The fact that dead people can't testify does keep them from being unreliable witnesses.
1.7.2008 3:43am
Public_Defender (mail):
Professor Kerr writes:


Under your rationale, isn't the case against the death penalty for murder even harder than for rape of children? . . . .


No. As someone who has reviewed a ton a murder and child rape cases, the evidence tends to be a lot clearer (or less murky) in murder cases. Murder cases are much, much more likely to have reliable forensic evidence. They are also much, much more likely to have adult eyewitnesses.

In child rape cases, it all too frequently comes down to the testimony of a young child versus the accused. All too often, the kid has been unprofessionally interviewed, and their memories contaminated. I've also seen cases where kids recant once they are adults. What do you say then if you have executed the defendant, "Oops, I'm sorry"?

Child rape cases often depend entirely on eyewitness testimony, which is surprisingly unreliable. Look at a case in which DNA has exonerated a long-serving defendant, and you can bet that the conviction was based on either eyewitness or snitch testimony.

When I read a child rape transcript, I tend to have far more nagging doubts about my client's guilt than in any other type of case. I would suspect that the vast majority of trials come out the right way, but "vast majority" isn't good enough when death is the penalty.
1.7.2008 4:39am
Scote (mail):
On a mere practical level I'm wary of the death penalty for child rape--not because child rapists don't deserve it but because of our tendency to let the severity of the crime reduce our presumption of innocence in inverse proportion. We can see this taken to the greatest degree with the extra constitutional designation "Enemy Combatant," where the accusation is so severe that the government suspends any presumption of innocence.
1.7.2008 7:34am
Stormy Dragon (mail) (www):
I'm curious: of the 62% of the people who oppose the law, how many oppose it due to a general opposition to the death penalty, and how many are okay with the death penalty as a punishment for certain other crimes, but are against its use in this case.
1.7.2008 8:38am
Pyrrhus (mail) (www):
Kerr said -

"it's interesting that the great majority of people who would support the law think it is constitutional, whereas only a minority of those who would oppose the law on policy grounds think it is unconstitutional"

It is interesting, but I think predictable. No one wants to believe that laws they think are necessary or at least valuable are forbidden (especially not by an amendment which uses "cruelty" as a measure).

Those of us who oppose the death penalty for child rape have more wiggle room. If either legislatures or the constitution forbids execution, we get our way.
1.7.2008 10:13am
Ted Frank (www):
I'm okay with the death penalty most days of the week, but I would oppose the death penalty for child rape: it would provide no distinction between a criminal who raped a child and one who raped and killed a child, and thus no marginal incentive not to murder the rape victim.
1.7.2008 10:16am
alkali (mail):
I'm curious: of the 62% of the people who oppose the law, how many oppose it due to a general opposition to the death penalty, and how many are okay with the death penalty as a punishment for certain other crimes, but are against its use in this case.

There is a third possibility here, i.e., persons who oppose the death penalty for certain other crimes also oppose the death penalty for child rape, but for different reasons. I think the death penalty for child rape is bad policy for the reason Ted Frank articulated, but that's obviously not the reason I oppose the death penalty for murder.(*)

(* If anyone cares, I don't think the death penalty for murder is a good idea because (i) it tends to be applied against mentally ill and disabled persons, who I don't think should be subject to the death penalty, (ii) it tends to be applied against indigent defendants, and I don't think it's feasible to expect that states will properly fund counsel in death cases, and (iii) I have a sense that capital cases, perhaps because of the pressure to obtain convictions for heinous crimes, have disproportionately relied on iffy evidence like testimony elicited under hypnosis and hair matching. If you could promise me that the death penalty would only be applied against the likes of Ted Bundy and Aldrich Ames it probably wouldn't keep me up at night.)
1.7.2008 10:35am
GV_:
To support what Public_Defender said, here's a quote from a fairly recent Texas Court of Criminal Appeals case in a child-rape case, although the issue was guilt/innocence of the defendant:

The upshot of these and other evidentiary hydraulics is that child rape prosecutions "are 'he said, she said' cases that ultimately rely on the jury's assessment of the relative credibility of opposing witnesses" and "it is virtually impos-sible for the jury not to make an occasional credibility mistake."

Ex Parte Thompson, 153 S.W.3d 416, 422 (Tex. Crim. 2005) (Cochran, J., concurring).
1.7.2008 10:48am
pete (mail) (www):
If you want to do a specific poll you should ask how many people are opposed to the death penatly for child rapists for the following reasons:

1. the death penalty is always immoral

2. the death penalty is unconstitutional or unconstitutional in this case

3. the death penalty is too extreme a penalty for this crime

4. the death penalty would not be a deterrent because child rapists do not think they will caught or that they did anything wrong anyways

5. the death penalty would encourage child murder to prevent the child's accusations of rape

6. the chance of a false conviction is too high a risk when it comes to child testimony and the death penalty

7. our current justice system is too broken to trust with the death penalty

8. the costs in time, energy, and money in our current justice system are too expensive for the death penalty to be worth the benefits it might provide

9. the death penalty might hinder victims coming forward because they or their family members do not want the rapist, who is often a relative, killed

I do not agree with reasons 1, 2, 3, &5, could be convinced of reasons 6 &7, and agree with 4, 8 &9. I have no moral or constitutional problem with child rapists dying for their crime, doubt the death penalty would have much of a positive or negative effect on the number of child rapes, and think it probably would not be worth the money and effort with our current justice system to use the death penalty in most child rape cases.

There may be more reasons, but I think that covers most of the reasonable objections.
1.7.2008 11:57am
AK (mail):
Ted Frank:

it would provide no distinction between a criminal who raped a child and one who raped and killed a child, and thus no marginal incentive not to murder the rape victim.

There are three problems with the "marginal incentive" rationale:

First, a child rapist (or murderer, for that matter) can only rarely be certain that he'll face the death penalty. There are a lot of child rapes, but the state rarely seeks the death penalty. The probability goes up when the rape is combined with murder, or one murder becomes multiple murders. The state seeks the death penalty in such a tiny percentage of cases that it's smart to stop committing rapes or murders after your first one.

But even if we agree that in some cases the defendant will have nothing to lose, the "marginal incentive not to murder" vanishes at some point no matter what. Someone who commits first-degree murder, thus making himself eligible for the death penalty, might as well attempt to kill all the witnesses. Someone on death row (or doing life without parole in a state without the death penalty) has no marginal incentive not to murder fellow inmates or guards.
1.7.2008 1:34pm
hattio1:
I'm not sure that's going to give us much realistic information, Pete. For example, I agree with every reason except 2, 3, and 4.
1.7.2008 1:40pm
Ratel (mail):
I think such a penalty would be in violation of the Eighth Amendment because it is disproportional to the underlying crime. As horrific as the underlying crime of child rape is, the victim remains alive and therefore it would be cruel and unusual to kill the offender. It is my, admittedly limited, understanding that current Eighth Amendment precedent requires that a punishment not be grossly disproportionate to the crime, and it seems that killing someone who has not themselves killed anyone is disproportionate.

I personally feel that the death penalty is immoral, but constitutional. The Fifth and Fourteenth Amendments both explicitly recognize the government's ability to take life, therefore the death penalty is theoretically constitutional. However, it is morally wrong for the government to kill people in order to show that killing is wrong.
1.7.2008 1:43pm
ellisz (mail):
Public Defender - I'm curious, is there no DNA or other physical evidence in these cases?
1.7.2008 2:16pm
Respondent:
"It's also noteworthy that 75% of readers who took the poll had a view as to whether the law violated the Eighth Amendment. Only one in four readers didn't have views on whether such a law would violate the Eighth Amendment."

OK,

I object to your recharacterization of the question of whether the law is unconstitutional as specifically an eighth amendment one. That may be the question presented to the supreme court, but that's not the question you asked in the poll. I voted both to say that I oppose the law and believe it's unconstitutional, but the "unconstitutional" part of my vote was on 14th amendment due process grounds, not an incorporated 8th amendment. In tend to agree with Scalia and Thomas that the eighth amendment ought not be read to bar imposition of duly enacted punishments, but would void the Louisiana law on the grounds that a defendant can't get fair shake in the current political climate. Death sentences always carried with them a fair chance of a commutation, which was a very likely outcome (other than for discriminated against racial minorites) when it came to non-murder capital crimes. In light of the total breakdown of the pardon and commutation system on both the federal and state levels, and the lack of any rigorous substitute in the legislative and judicial branch to make sure a pedophiliac defendant gets a fair shake, I would void capital child rape laws on due process grounds.
1.7.2008 2:37pm
gattsuru (mail) (www):
As someone who has reviewed a ton a murder and child rape cases, the evidence tends to be a lot clearer (or less murky) in murder cases. Murder cases are much, much more likely to have reliable forensic evidence. They are also much, much more likely to have adult eyewitnesses.


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'.

However, it is morally wrong for the government to kill people in order to show that killing is wrong.


That's not what the purpose of the death penalty is, though. We explicitly recognize that killing itself isn't wrong : there are several dozen circumstances under which it is legal to kill someone, and in some situations many different moral systems recognize it as not only acceptable but advisable (the general circumstance would be killing a mass murdered before he or she really got into things).

The distinction is that there are legitimate and illegitimate reasons to kill someone, just as their are legitimate and illegitimate reasons to take morphine or go over the speed limit.
1.7.2008 2:40pm
Steve2:

I'm okay with the death penalty most days of the week, but I would oppose the death penalty for child rape: it would provide no distinction between a criminal who raped a child and one who raped and killed a child, and thus no marginal incentive not to murder the rape victim.


Sure it does. The one who just rapes the child dies by firing squad, the one who rapes and murders the child dies on the rack. Execution by torture is a perfectly proportional punishment for certain crimes.
1.7.2008 7:11pm
pete (mail) (www):

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


From talking with people who investigate these claims it depends on the case and how soon it is reported. If you are talking about someone coming forward with an acquataince/family rape then the accusation does not always happen right away and the DNA evidence will not be there in those cases. One of the most depressing sorts of physical evidence is when the child contracts a STD from the rape, which is sadly not that uncommon of an occurance in these cases.
1.7.2008 8:41pm
Rich Rostrom (mail):
If only actual taking of life can incur the death penalty, what about extreme and irreparable mutilation? Missing body parts don't grow back. Ruined joints will never work right again.

Or extreme and irreparable psychological trauma. A victim who has been kidnapped, tortured, and sexually violated for several days is alive - but will never again have a good night's sleep.
1.8.2008 1:34am
Steve2:
Rich, I may be alone in this, but I think extreme and irreparable mutilation and extreme and irreparable psychological trauma are both far more grievous injuries to someone than murdering them. Someone with trauma continues to suffer, potentially for decades. Someone who's murdered, well, their suffering ends at death.
1.8.2008 7:03pm
Jack K:
As I understand it in the Kennedy case, there was no DNA linking the defendant to the offense, and for the first eighteen months after the rape -- which was unquestiably violent -- the victim insisted that she was raped by two teenage boys from her neighborhood, and not her step father. The opinions and briefs indicate that the victim was taken from her mother's custody because the mother was not telling the victim to identify Kennedy as the culprit, and the victim was only returned to her mother's custody after the mother agreed with the police that Kennedy had done it.

The problem with these cases is that we -- all of us, police officers, prosecutors, defense lawyers, judges and juries -- just want to punish someone when a child is hurt. And so we don't worry too much about getting the right person.
1.15.2008 4:17pm