The issue in Kennedy vs. Louisiana was whether it was unconstitutional to execute someone for raping, but not killing, a child. My opinion? Hmmmm.
I have a variety of thoughts on this topic. I'm a defense attorney, and a former social worker for abused and neglected children, and did an internship with incarcerated youth, and worked with kids in an educational setting. I've done a variety of jobs with kids, and with law, and some with both. When I was a social worker, I remember a coworker of mine saying, "Why put kids in foster care? They'd be better off if we took them out back and shot them." I was appalled, as a newly minted Bachelor of Social Work, and regarded my coworker's comment with disgust. How dare she say such a thing! It didn't take long for me to see that, although hyperbolic, she might be on to something. Kids were being abused in foster care, or being put into facilities or foster homes that weren't providing these kids any sort of nurturing or care. The fact was, ripping them from the only dysfunctional household they knew and putting them in a new dysfunctional setting with strangers was not the solution to the problem. Hell, putting them into a functional relationship with strangers wasn't always the solution, either. (Who saw "Gone Baby Gone"?)
But what I also saw was the type of impact and the long term effects of abuse and neglect on a child's development. The most severe behaviors were often present in children who had been sexually abused or exposed to inappropriate sexual behavior. When I fled social work for law school, I left with the impression that there could be no greater harm to a child than sexual abuse. It messed them up so bad that I thought that maybe my coworker's seemingly appalling comment was true in more ways than one.
That's not to say that kids can't recover, that kids can't cope, that they're all doomed. There are strong, functional human beings out there who are survivors of child sexual abuse. But I can't shake the impression that the children who were most troubled were the ones who had been sexually abused. So that's my feeling about child sexual abuse.
With respect to the death penalty: I am against the death penalty. There are a variety of reasons. My opinions began to form in high school, when I was assigned to write a report on the death penalty. When I started the report, I was for it - when I finished the report, I was against it. I was most influenced by the estimated percentage of people on death row or executed who were at some point later exonerated. Then in college I began learning about social stratification, and the influence of race and class on punishment, and the gaping disparities in "justice." Then in the real world, I realized that I wouldn't trust my government to do any damned thing right that actually mattered, and I don't think my government has any business killing its citizens. So my opposition to the death penalty is based on the likelihood of error, the likelihood that marginalized groups of people are more likely to receive the penalty, and my utter distrust of government and bureaucracy.
Understanding from whence I come, let's turn now to the issue at hand - is the death penalty an appropriate penalty for the crime of child sexual assault? I read a few amici briefs, and when it was released I read the opinion of the US Supreme Court. Social workers submitted a brief, indicating that it was generally in a child's best interest that child sexual abuse NOT be punishable by rape. The social workers pointed out that it provides perpetrators with an incentive to kill - if you're going to be executed for raping, why not go ahead and kill the only witness against you? It'll be the same sentence. The brief also discussed the continuing victimization of a child witness who has to testify, probably more than once, against a person who is probably related to them, and faces execution. I don't really believe that the death penalty acts as a deterrent; however, I was most interested in the discussions in that brief. I'm pleased to see that the Louisiana public defenders put in a simple brief - simply put, they absolutely would not have the resources to provide effective assistance of counsel if every child rape was death-eligible.
The opinion itself was not a good one, in my opinion. It reminded me of Kennedy's opinion in Lawrence v. Texas, and more recently, Kennedy's opinion on abortion restrictions. Not so much law, mostly just talking about feelings. In the TX sodomy case and in the abortion case, there was potential to use and strengthen an existing legal framework, and Kennedy did not. The Louisiana child rape case was an equally unhelpful opinion, but what makes it different is that Eighth Amendment jurisprudence is like jello. What kind of 'legal standard' is "evolving standards of decency?" Or "proportionate sentencing"? These are hardly standards. So really, what else can Kennedy do except talk about "How do we feel about this?" When Kennedy is talking about feelings about the Eighth Amendment, it seems to be precisely what the law demands.
In the end, the Supreme Court decides that our feelings as a nation say this isn't a good punishment for that crime. I don't think that's really what the Supreme Court said. I think the Supreme Court said that we don't like the death penalty very much at all, so there isn't much reason to keep it in a case like that. I suppose they were being narrowly tailored to only decide the case in front of them, but I wish they had just done what they said - strike it all down because we don't like it so much anymore. I don't like when the Supreme Court takes on the role of deciding what we want or what's best for us - I think it's patronizing, and if I can't trust my government to kill someone I don't know if I trust my government to decide when it's capable of killing someone - unfortunately, that's precisely the type of decision that Eighth Amendment jurisprudence demands with respect to the "evolving standards of decency" decision.
But what about whether it is proportionate? Is murder worse than rape of a child? I can't say that I believe that. I don't really recall how the Supreme Court decided that issue. I'm sure that everyone would prefer to have their child alive instead of dead. However, the consequences of living through trauma like that can be staggering and irreversible, as I saw in my time as a social worker. With respect to whether the punishment is proportionate to the crime, I don't know that the Supreme Court got it right.
For all that the opinion said and didn't say, I didn't like it. However, I can't say that I think the Supreme Court, legally, got it wrong. Or right. I just don't know that there was an easy way to answer the question. I respect the Court for not punting, and finding some procedural appellate error that could have been used to avoid the death penalty issue. It's a hard question, and I don't think there's a good legal answer to it. Maybe that means it shouldn't be a legal question, but a legislative one. Nevertheless, the Eighth Amendment makes it a legal question, albeit with not so much law to lead the way.
Those are my thoughts and reflections. What do you think? I'd love to hear your opinion.
5 comments:
From a pro death penalty guy, you got it right.
It was clear to me that there was no national consensus or evolving standard against executing child rapists.
SCOTUS' evolving standards doctrine and the national consensus "standards" are both prone to this type of constitutional perversion - the alchemy of highly strained legal arguments derived from personal opinion.
See Jim Lindgren's, A “National Consensus” in Favor of the Death Penalty for Child Rapists"
http://volokh.com/posts/1214447764.shtml
And a July, 2008 National Poll
By a 55 - 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.
http://www.quinnipiac.edu/x1295.xml?ReleaseID=1194
Another excellent example of this type of phony consensus invented by SCOTUS is this,
A phony 'consensus' on youthful killers
by Jeff Jacoby in a Boston Globe op/ed
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/a_phony_consensus_on_youthful_killers/
As a firm adherent to the reality that incentives matter to most people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims.
Regarding innocents and deterrence:
The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below
Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
Although this is, obviously a truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses, find for death penalty deterrence.
A surprise? No.
Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.
What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital??murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher,are a fraud, easily discoverable by fact checking.
6 inmates have been released from death row because of DNA evidence. An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.
The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times, has recognized that deception.
To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.
There is no proof of an innocent executed in the US, at least since 1900.
If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Unlikely.
Full report -All Innocence Issues: The Death Penalty, upon request.
Full report - The Death Penalty as a Deterrent, upon request
(1) The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times
Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
WotL, I just wanted to say that was beautifully written. Thoughtful, yet also from the heart. Very nice.
I too thought "Gone Baby Gone" was a great documentary.
Blogger dudleysharp said...
By a 55 - 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.
Voters would like free money and free meals too. These simple minded 'surveys' tell us nothing except what people will say. The DP is applied to those with the worst lawyers, not those with the worst crimes. Most people wouldn't murder if they were paid to do it. Those who will murder will do it for trivial reasons. Those who would do it but are deterred by the penalty are a very tiny fraction - exemplified by such as Radovan Karadžić perhaps. Are such as these to be the basis of lawmaking?
cheers!
magnetic rings
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