Wednesday, July 16, 2008

Dodging the Death Penalty Bullet On Child Rape

Guest Blogger

John J. Donohue III

Daniel Schuker

The recent Supreme Court decision striking down the Louisiana death sentence of a man convicted of raping an eight-year-old girl was marred by at least two factual errors. Nonetheless, the ruling managed to reach the correct result of saving the state and the country from a major, and almost certainly harmful, expansion in the use of capital punishment.

The first error, relatively minor but still embarrassing, was revealed in a New York Times report just seven days after the decision’s release. The article identified an incorrect statement about federal death penalty law.

In his opinion declaring the death penalty an unconstitutional punishment for child rape, Justice Anthony M. Kennedy observed that only six states allowed executions for this heinous crime. The Court asserted, erroneously, that no such punishment was permitted under federal law.

In fact, Congress in 2006 had added child rape to the crimes eligible for the military death penalty, and President Bush later incorporated the changes into this year’s edition of the Manual for Courts-Martial.

Lawyers unhappy with the Court’s decision might hope that this legal error will provide a basis for reversing the decision. Justice Kennedy’s finding of a “national consensus” among state and federal jurisdictions provided a foundation for his conclusion that permitting the death penalty for child rape is inconsistent with the “evolving standards of decency” by which the Court interprets the Eighth Amendment. The error on federal law is taken to suggest that electoral rejection of such statutes is not as comprehensive as Justice Kennedy believed. But the fact that even the Court and the Solicitor General did not know of this arcane aspect of military justice suggests that the recent legislative and executive changes are closer to stealth lobbyist insertions into the tax code than an important expression of the public’s support for a widening application of this extreme sanction.

One can begin to grasp why the Court was reluctant to broaden the reach of capital punishment beyond cases involving murder by looking at the recent operation of the death penalty in the United States.

Over the last three decades, about 600,000 Americans have been murdered and roughly 1,100 have been executed. The Court has emphasized that the Eighth Amendment’s prohibition of cruel and unusual punishment requires that the death penalty be limited to the most egregious cases, but it is readily apparent that a tremendous number of egregious murders do not lead to executions.

Those in favor of adding child rape to the list of capital crimes probably were unaware of how pervasive the crime is, which brings us to the second and far more serious factual oversight in the Court’s June 25 opinion in Kennedy v. Louisiana. While the U.S. spends tens or hundreds of millions trying to select the handful of murderers who will receive death sentences, a contrary decision in Kennedy would have vastly complicated the task of death penalty administration. Anyone who raped and murdered a child could still be put to death, but the justice system would now have to sift through the much larger number of child rapes that did not result in death—isolating the handful thought to be worse than all but the very worst murders. The Court implicitly recognized that the added millions of dollars invested in such a fruitless effort might well be spent on measures that could reduce the numbers of these horrible crimes or ease the pain of their victims.

But while Justice Kennedy’s intuitions were correct on this point, the numbers were far more compelling than those he presented. Kennedy cited a survey finding that approximately 5,702 instances of rape of a child under age 12 had been reported nationwide in 2005. In all likelihood, he considerably understated the true numbers.

Based on a survey of a dozen states, the Department of Justice has calculated that some 16 percent of rape victims are younger than 12. (The department does not routinely collect statistics for victims under 12, chiefly because children at such ages “cannot be reliably interviewed,” but the states in the survey reported in sufficient detail to distinguish juvenile from adult rape victims.) Coupling that estimate to findings in the 2005 National Crime Victimization Survey implies that roughly 36,500 children under 12 were victims of rape. By comparison, 16,740 murders took place that year.

If we include both reported and unreported incidents, the annual number of child rapes may thus exceed Justice Kennedy’s estimate by at least a factor of six.

The Court’s decision, consequently, forestalls the costly and ultimately ineffectual legal haggling that would take place over an immense new body of death-eligible cases.

Since 1976, when the death penalty was revived after a four-year moratorium, the U.S. has averaged roughly 20,000 homicides per year. In whittling down to the 50 to 100 of that group who will be executed—a process that entails years and perhaps decades of legal wrangling—prosecutors and juries engage in highly discretionary decision-making, and there is much evidence that the process is marred by arbitrariness and racial discrimination.

Louisiana’s previous history with executing rapists bears such markings of discrimination. Between 1930 and 1967, Louisiana put 14 rapists to death. All 14 were black. (Before last month’s Supreme Court ruling, Louisiana was the only state since 1964 to have issued a death sentence for the rape of a child.)

While the opponents of the Supreme Court decision in Kennedy are heartened by the 2006 change in the military code concerning child rape, the case of the last person to die for this crime by military execution is not encouraging. Pvt. John Arthur Bennett, a black man, had raped a white girl in Austria, which had all but outlawed the death penalty. Despite pleas from the victim and her family to spare his life, Bennett was hanged in 1961. His case stands as the only military execution for rape during peacetime. During his six years on military death row, ten others were also awaiting military execution: all six black soldiers were hanged; all four of the white men, some of whom had committed multiple murders, were spared the death penalty.

When thousands of criminals who rape and murder—or those who commit multiple killings—do not receive the death penalty, how can rape alone, as terrible and unconscionable as it is, constitute the worst of the worst? Should severe cases of violence toward children be included among death-eligible cases as well? (As Justice Samuel A. Alito Jr. noted in his dissenting opinion, there were approximately 90,000 substantiated cases of child sexual abuse in 2003.) In the early 1980s, a Wisconsin father repeatedly beat his young son so brutally that the boy suffered severe brain damage, partial paralysis, and profound mental retardation. (The lax supervision of the state’s social workers in the face of this abuse led to a civil suit eventually by the Supreme Court.) The father, Randy DeShaney, was sentenced to two to four years in prison and is now a free man. The son, Joshua, is still alive and is confined to an adult care facility. The disparity between Randy DeShaney’s brief prison stay and the death sentence leveled in Kennedy v. Louisiana is, to say the least, striking.

More than four decades have passed since the last U.S. execution for rape or any other non-homicide offense, and cultural attitudes toward race and toward the death penalty have no doubt changed. But arbitrariness and racial discrimination continue to dog the administration of capital punishment. Small wonder that the Court majority was not enthusiastic about creating an even larger class of death-eligible cases.

Even if we executed as many child rapists as we did murderers—there were 98 executions in 1999, the most in any year in more than half a century—narrowing down some 36,000 incidents of child rape to the 100 most egregious would prove a taxing and largely ineffective gesture. The number of death-eligible cases would conceivably grow even larger if legislators in states such as Louisiana moved to expand the reach of their rape statutes beyond age 12 (as Louisiana did in 2006 when it raised the age ceiling to 13). If the death penalty is not reserved strictly for the very worst murders, where else might demagoguing state legislatures ultimately decide to extend it? Defining such a vast array of crimes as death eligible will in practice be little more than a costly, standardless, and highly unusual exercise in lethal sentencing.

Conceivably, the concerns about discrimination, arbitrariness, and the waste of scarce judicial resources could be overcome if the death penalty lessened the incidence of child rape, but there is no reason to believe that capital punishment will be any more successful in reducing child rapes than it is in deterring murder. As Justice John Paul Stevens noted earlier this year in his concurrence to Baze v. Rees, “Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital pun­ishment in fact deters potential offenders.” Sadly, Justice Antonin Scalia, who seems to value empirical claims not according to their foundation in credible social science but rather by their conformity to his ideological beliefs, disputed Justice Stevens’s unquestionably accurate statement, mis-citing a paper by Cass R. Sunstein and Adrian Vermeule. Sunstein has now responded, in an article co-authored with Justin Wolfers, that “the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.”

In last month’s opinion, Justice Kennedy raised an additional concern about the Louisiana statute that, again, proves still more troubling once we consider the problem’s full statistical extent. He worried that enlisting a child victim in a years-long capital punishment prosecution “forces a moral choice on the child, who is not of mature age to make that choice.” The dilemma may often be even more pressing than Justice Kennedy imagines:roughly 20 percent of child rape victims under age 12 are raped by their own father. Do we want these poor young victims to carry the weight not only of their traumatic experiences, but also of their legal involvement with the death of a parent? Untold resources are spent deciding which vile crimes merit the death penalty, when equally serious crimes avoid this sanction. A wiser choice could be to invest those resources in providing aid to victims and working to prevent repetitions of these awful crimes.

Having avoided the legal mayhem of adding a new realm of death penalty prosecutions, the country can now focus its efforts on solving, instead of creating, vexing social problems. The Court’s ruling should encourage legislators to take serious steps to address the abuse of children in all its many tragic and damaging forms, rather than to grandstand with death penalty laws whose implementation will certainly be highly unusual if not cruel.

John J. Donohue III is the Leighton Homer Surbeck Professor of Law at Yale Law School and a research associate at the National Bureau of Economic Research. Daniel Schuker is a researcher at Yale Law School.


"Over the last three decades, about 600,000 Americans have been murdered and roughly 1,100 have been executed. "

That might actually have some evidentiary value as to societal views on the subject, if it weren't the Supreme court's own efforts which caused the death penalty to be so infrequently applied.

For the record, I'm against the death penalty in these cases on a policy standpoint. But I don't think it's proper for the Supreme court to make that policy choice for everybody else, and pretend that they're just upholding the Constitution in doing so.

Since we have judicial review pursuant to Marbury, however, the 8th amendment is essentially a commitment of this question (the question being: what constitutes cruel and unusual punishment?) to the judicial branch.

I'm not sure they're the best arbiters of this question either (and Supreme Court jurisprudence on this topic sure has been murky)--but it's not clear to me that the Supreme Court is doing anything out of bounds by trying to settle the policy question the constitution asks.

Speaking of overlooking, those pointing out the fact that the Court overlooked the sentences in the defense bill seem to have overlooked the fact that the defense appropriations bill in question actually makes death the maximum sentence for all forms of rape, not just child rape.

Like Brett, I am opposed 100% to the death penalty on policy and moral grounds. And like Brett, I think the Court is just pretending that the death penalty for child rape is unconstitutional. The constitution does not prevent it. And the blog post misses the mark by focusing on the denominator instead of the numerator, for 8th amendment analysis. The issue is not whether the 99% of similarly situated criminal defendants DID NOT get the death penalty, so therefore this defendant's deaht penalty violates the constitution. The issue is whether this defendant's deaht penalty is cruel and unusual based on what this defendant was convicted of doing.

Also, you cannot seriously think that the factual error in the supreme court's opinion is a no biggie. It is a huge error, and if the tables were turned and the court had struck down child rape executions and the minority opinion contained a factual error about the status of federal law, of course us anti-death penalty folks would be jumping up and down. How can Kennedy make such a mistake? He has a fleet of highly paid law clerks. He authors what, 10 opinions a year at the most? Seriously, anyone else would be fired for such a colossal screw up, given the amount of resources at his disposal and his extremely light work load, and tons of time to do the work with no distractions of any kind to keep him from doing the work. It's incompetence and carelessness. It's a huge mistake and, rightfully so, the dissenting opinion and its author are getting bashed for making it.

As to the fourth comment.

Arbitrary application of a penalty to a select few, while others equally guilty escape, IS a constitutional problem.

Likewise, if the state and federal gov't (with interest in upholding the law) didn't raise the point, nor did the dissent, why blame Kennedy in particular? Actually, judicial opinions are known to make bigger mistakes than this apparently obscure issue.

I second the second comment as to the "policy" issue not somehow different when the 8A is involved. Likewise, long before now, only a small number of murdererers were executed. True in 1920, true now.

I posted on this over at the California NOW blog (, because although I agree that the death penalty is unfairly applied, and terrible in the first place, I just don't see how one can use the prevalence of child rape as a reason not to give it a harsher punishment, and it seems like that's part of your reasoning here.

If one carefully reads the dissenting opinion by Justice Alito in KENNEDY v. LOUISIANA, 2008, they will notice that it answers all of the majors concerns raised in this particular blog post. I will highlight some of them below:

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Ante, at 24. Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.

The Court’s final–and, it appears, principal–justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. See ante, at 27-28. But the Court makes little attempt to defend these conclusions.

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?
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. The Court takes pains to limit its holding to “crimes against individual persons” and to exclude “offenses against the State,” a category that the Court stretches–without explanation–to include “drug kingpin activity.” Ante, at 26. But the Court makes no effort to explain why the harm caused by such crimes is necessarily greater than the harm caused by the rape of young children. This is puzzling in light of the Court’s acknowledgment that “[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child.” Ante, at 24. As the Court aptly recognizes, “[w]e cannot dismiss the years of long anguish that must be endured by the victim of child rape.” Ibid.

The rape of any victim inflicts great injury, and “[s]ome victims are so grievously injured physically or psychologically that life is beyond repair.” Coker, 433 U. S., at 603 (opinion of Powell, J.). “The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped.” Meister, Murdering Innocence: The Constitutionality of Capital Child Rape Statutes, 45 Ariz. L. Rev. 197, 208-209 (2003). See also State v. Wilson, 96-1392, p. 6 (La. Sup. Ct. 12/13/96),685 So. 2d 1063, 1067; Broughton, “On Horror’s Head Horrors Accumulate”: A Reflective Comment on Capital Child Rape Legislation, 39 Duquesne L. Rev. 1, 38 (2000). Long-term studies show that sexual abuse is “grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.” C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990).

It has been estimated that as many as 40% of 7- to 13-year-old sexual assault victims are considered “seriously disturbed.” A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69, 70 (1995). Psychological problems include sudden school failure, unprovoked crying, dissociation, depression, insomnia, sleep disturbances, nightmares, feelings of guilt and inferiority, and self-destructive behavior, including an increased incidence of suicide. Meister, supra, at 209; Broughton, supra, at 38; Glazer, Child Rapists Beware! The Death Penalty and Louisiana’s Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 88 (1997).

Abu Hamza questions our focus on the ratio of the exceedingly small number of cases to receive the death penalty to the large number of child rapes that are committed. But the Supreme Court has consistently said for over 35 years that it is "cruel and unusual" to sentence someone to death when most similarly situated individuals would not receive a sentence of death--that is, it is highly unusual. This explains why a large denominator of death-eligible crimes (coupled with a very small numerator of executions) is precisely relevant to the constitutional question. As Potter Stewart wrote in 1972 in Furman v. Georgia: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual--they are capriciously, freakishly and wantonly imposed."

We agree with Hamza that the mistake about the 2006 revisions to federal law was embarrassing, but the error would only be relevant to Kennedy's decision to the extent that the revisions represent an expression of society's sense of the appropriate punishment for child rape. In thinking about this question, one might ponder over how many members of Congress were even aware that the revisions were in the bill they voted for. The National Defense Authorization Act of Fiscal Year 2006 is a sprawling 423-page document ( that authorized appropriations for military and defense programs conducted by the Department of Defense and the Department of Energy, established new military detainee policies, improved pay and benefits in the military, and made numerous other revisions to existing statues. Even the detailed House summary ( of the act omits explicit discussion of the death penalty, but rather notes that the act "provides interim maximum punishments" regarding 13 sexual offenses, one of which is child rape. If one combs through section 552(b), however, the act does indeed hold that punishment for rape of an adult or rape of a child "may not exceed...death or such other punishment as a court-martial may direct" (119 STAT. 3257, 3263). (Note that the apparent attempt to authorize the death penalty for rape of an adult clearly violated the Supreme Court's 1977 decision in Coker v. Georgia--unless one deems military justice to be inapposite to normal criminal prosecutions, in which case the Kennedy oversight was appropriate.)

In the Times story, Linda Greenhouse noted that the Solicitor General's Office, which represents the federal government before the Court, "did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana's death penalty for child rape was constitutional." The mistake--made by all the Supreme Court Justices and their clerks, the Solicitor General's Office with all their fine lawyers, and all the attorneys supporting the Louisiana statute--becomes more understandable when one considers the real possibility that virtually no one in Congress had the slightest idea that the federal statute contained this provision.

In fairness, the status quo is that about 40% of murders are never caught, and the percentage of unsolved murders has never been less than 10% in modern history. So, the number of prosecuted murders is somewhere in the 360,000-540,000 range.

Also, in all likelihood:

(1) those numbers are actually for homicides, and many homicides involve crimes other than those for which a death penalty may even be considered;
(2) many of these homicides occur in states without a death penalty;
(3) many of these homicides are committed by juveniles, mentally retarded people, or mentally ill people who are legally ineligible for the death penalty;
(4) a significant percentage of murders (particularly those death penalty worthy) involve multiple murder for which there can be at most one execution, or involve a murder who dies in a suicide by cop or suicide situation, or die in prison while awaiting execution.

No one disputes that only a small percentage (in Colorado it is less than one percent) of people convicted of a capital murder for which a death penalty could be imposed are either not sentenced to death in the first plce, or have their death sentences finally commuted prior to their death. But, the numbers aren't quite as dramatic as a comparison of murders to executions would suggest.

The murder to execution rate may be relevant to deterrence, one supposes, but standing alone, it isn't relevant to arbitrariness evaluations.

Child rapists don't deserve the mercy of Death Row and a state execution, they deserve Life in Prison without parole and special protections. This way the other inmates will have many chances to gang-rape the scum every day, and then torture the vermin to death when they are sick of him.
Finally the Supremes got one right with the DC Gun Ban issue. Hopefully, knowing that more homes may have guns, more raping and home-invading monkeys will cease in this behavior or be blown away as they well deserve. The world will be MUCH better with more of this scum dead.
absurd thought -
God of the Universe feels
sorry for child rapists

when they are murdered
in cold blood by other thugs

absurd thought -
God of the Universe says
KILL the raping monkeys

even if they prefer death
over life in prison

absurd thought -
God of the Universe says
you may not defend yourself

guns are for criminals
just hope police show in time

absurd thought -
God of the Universe says
prosecute citizens

when they kill home invaders
threatening their families

absurd thought -
God of the Universe thinks
women shouldn’t carry guns

their attackers and rapists
don’t deserve their brains blown out

Philosophy of Liberty Cartoon
Child Rapists Deserve Violent Death in Prison
Help Halt Terrorism Today!


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