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Does 18 U.S.C. § 242 Permit the Death Penalty for Child Rape?:
After reading about the Supreme Court's order seeking briefing on rehearing in Kennedy v. Louisiana, a reader e-mails in with a question: Is 18 U.S.C. § 242 another federal law that also permits the death penalty for child rape? I did some quick research into the matter. To my surprise, my tentative answer is "yes."

  [UPDATE: Ah, the beauty of tentative answers is how easy they are to change! In the comment thread, Kent Scheidegger points out 18 U.S.C.A. § 3591, a statute that (as I presently understand it) appears to trump the language § 242. Under § 3591, the death penalty cannot be charged unless death results in a federal criminal case even if the statute itself appears to authorize it. So as I understand things, § 242 on its face appears to authorize the death penalty for crimes including child rape, for the reasons explored below, but such a prosecution could not be brought under § 3591. I apologize for the confusion, and thank Kent for the comment.]
huh342:
Orin:

Nice find by the reader and nice post by you.

It is amazing to me that this issue wasn't raised in briefs or at bar, given that an online search of the U.S. Code (available publicly at http://www4.law.cornell.edu/search/) for the term "sentenced to death" brings up the 1994 statute as one of the first hits.

In a case hinging on this kind of thing, it seems like significantly negligence on the part of the legal team, no?
9.11.2008 6:50pm
Kent Scheidegger (mail) (www):
I believe that in a prosecution under the section in question, death of the victim is a prerequisite to the death penalty. See 18 U.S.C. § 3591(a)(2).
9.11.2008 6:53pm
OrinKerr:
Kent, now that's interesting -- thanks for the tip. Here's the text:
(a) A defendant who has been found guilty of . . . any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593--

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or

(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act,

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.
How does that section interact with the statutory max punishments? Is the idea that no matter what the statutes say, they have to clear 3591 independently?
9.11.2008 6:58pm
trad and anon:
If that's correct, that would mean that the parties, the Solicitor General, the amici, the Justices' clerks, and the Justices themselves all missed not one but two federal statutes providing for the death penalty for child rape.
9.11.2008 7:04pm
Sasha Volokh (mail) (www):
Kent Scheidegger: I don't know the case law regarding the statute you cite. But here's my purely textual reading:

The statute goes like this:


(a) A defendant who has been found guilty of - . . .

(2) any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593 -

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or

(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act,

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

So (approximately) defendants who committed death-worthy crimes, if the victims died as a result, shall be sentenced to death (if it's determined that this is justified). The important word here seems to be that "shall" -- it seems to remove some discretion from the judge.

But this doesn't say what happens to other people who commit death-worthy crimes, say if the victim doesn't die. Perhaps then the death penalty remains on the table, but it's no longer mandatory (if it's determined that it's justified)?
9.11.2008 7:05pm
Kent Scheidegger (mail) (www):
"Is the idea that no matter what the statutes say, they have to clear 3591 independently?"

I believe so. See Jones v. United States, 527 U.S. 373, 376 (1999).
9.11.2008 7:06pm
Dilan Esper (mail) (www):
It really is amazing that one of the most watched Supreme Court cases in recent years, a case in which the vaunted Supreme Court bar authored numerous amicus briefs, doesn't seem to have come close to playing out all the permutations of the death penalty statutes.

I am starting to form a working hypothesis as to why-- perhaps the lawyers were focused on two things, state practice (because so many previous cases had been decided by "counting up the states") and the federal treason and espionage laws (because that is the most obvious counterexample to the claim that the death penalty should be limited to murder). So, federal non-treason, non-espionage potential death penalties, for the most part, slipped through everyone's fingers.

That said, my preferred approach to the cruel and unusual punishment clause (throw out the state counting and just have the Court openly and honestly determine what they think is cruel and unusual, just as they determine what is "reasonable" in other contexts) would get us out of this mess.
9.11.2008 7:10pm
Kent Scheidegger (mail) (www):
Sasha, the discretion is normally with the jury, not the judge, but it is discretion and not a mandatory statute. The Supreme Court had thrown out mandatory capital sentencing statutes long before 1994. "Shall ... if justified" may sound mandatory, but it's not really. Sort of like saying, "I order you to do X, unless you don't want to."

The statute's requirement that the defendant shall be sentenced to death if all the requirements are met implies that he will not if they are not. An awkward way to say it, to be sure, but that's how it's understood.

What punishment is appropriate for the person who drafted this strange law? Nominate him for Vice-President!
9.11.2008 7:12pm
_quodlibet_:

The statute's requirement that the defendant shall be sentenced to death if all the requirements are met implies that he will not if they are not. An awkward way to say it, to be sure, but that's how it's understood.

O RLY? "If P then Q" certainly does not logically imply "if not P then not Q". One may argue that the "if" should be interpreted as "if and only if" based on the principle of inclusio unius exclusio alterius, but I don't think that helps. The language of "shall" does create a conditional mandatory penalty of death, in theory, even though in practice a judge would be able to get away with ignoring the command if he so chooses.
9.11.2008 8:01pm
ohwilleke:
Without a lenient reading, the 1994 act would have directly defied U.S. Supreme Court precedent that prohibts the death penalty for rape of an adult woman. Interpretation of statutes is to be done in a matter that avoids constitutional issues that would invalidate them.

Moreover, as Kent notes, there is an additional condition for imposition of the death penalty.

In short, no there isn't a second federal child rape death penalty. Both sides in the U.S. Supreme Court briefing clearly recognized this fact and chose not to brief it so that their briefs wouldn't be wasted on this peculiarity.
9.11.2008 8:08pm
OrinKerr:
okwilleke,

Yup, I agree, and have amended the post accordingly.
9.11.2008 8:14pm
Thomas_Holsinger:
Interesting. Kent appears to be correct. IMO there are such graat policy differences between the UCMJ and normal criminal statutes that the unreferenced UCMJ death penalty could be upheld even after the Kennedy decision, and so does not merit a rehearing.

But, if there is any regular criminal death penalty offense not noted in the Kennedy decision, as Professor Kerr first suspected 18 USC 242 did, that would merit a rehearing.
9.11.2008 8:15pm
Soronel Haetir (mail):
In response to KS' assertion that the amended statute would violate existing precident, I could see action under color of authority to be such a special circumstance that Coker could be distinuished.
9.11.2008 8:54pm
Edmund Unneland (mail):
Not to beat a dead horse, but could the text of 242 be thought of as expressing Congress's aspiration to have the death penalty for aggravated sexual abuse under color of law? One could view 3591 as a severable provision that could be repealed if the Supreme Court ever changed its mind on the death penalty for crimes other than murder. Perhaps a bit of a stretch, though.
9.11.2008 11:14pm
Jay Myers:
It appears to me that we have the statement "any other offense for which a sentence of death is provided" followed by a list of specific offenses. The question to ask is whether the list was intended to be a few examples or an exhaustive listing of all members of the class referred to above, namely offenses for which death is a legal punishment.

Would a practitioner be surprised if courts disregarded every prior law passed by congress stating what crimes are eligible for the death penalty and only relied upon this and subsequent laws? If so then the list in 18 U.S.C. § 3591(a)(2) probably consists merely of examples and does not enumerate the only federal crimes for which death can be meted out.
9.11.2008 11:53pm
EIDE_Interface (mail):
Lost in all this legalese is the simple truth - raping a child should mean death.
9.12.2008 12:08am
Malvolio:
In the comment thread, Kent Scheidegger points out 18 U.S.C.A. § 3591, a statute that (as I presently understand it) appears to trump the language § 242. Under § 3591, the death penalty cannot be charged unless death results in a federal criminal case even if the statute itself appears to authorize it.
If you say so, I believe it, but I'm not sure it's relevant. The question isn't whether a particular Federal prisoner can be sentenced to death, but whether the death-sentence of a particular state prisoner is Constitutional.

One of the reasons given for believing that the sentence was that cruel and/or unusual is the purported fact that there are no Federal statute authorizing the death penalty for non-fatal sex crimes. However, there are two such statutes (242 and the one in the UCMJ).

Apparently, 242 isn't operative (being "trumped" by 3591), but that doesn't affect (much) its value in supporting the proposition that the Louisiana law is not cruel, and adds weight to the claim that Kennedy should be reconsidered.

If the discovery of these two Federal laws does in fact result in a rehearing and reverse of Kennedy (unlikely, I know), the "evolving standards" people have no one to blame but themselves.
9.12.2008 12:08am
Richard S:
What about Lincoln's argument about the Dred Scott decision: the ruiling applies to Scott, but is not the final word, and does not bind the other branches. Admittedly, that mode of constitutional reasoning, however robust it once was, is seldom invoked today. Perhaps, it's time for it to be rediscovered. For an originalist, it's a return to basics--all the founding generation believed that each branch had the obligation to interpret the constitution for itself. For those who believe in a living constution, current circumstances make it just and necessary to reason that way.
9.12.2008 4:25am
Bama 1L:
Richard, how would that work in a criminal justice context?
9.12.2008 11:34am