Wednesday, November 29, 2006

Unintended consequences: Why the death penalty for repeat child molesters would harm children's safety

Here's another prime example of how "tuff on crime" laws sometimes make us less safe. Charles Kuffner emailed to ask what I thought of legislation by Rep. Debbie Riddle and Sen. Bob Deuell to authorize the death penalty for child molesters on the second offense, even if the victim lives.

I've not had time to go through this or other Texas' sex offender legislation in detail, and I still want to read this report on the subject before doing so, but this one is a no-brainer: It's a terrible bill because it will make child molesters LESS likely to be prosecuted and children LESS safe.

Riddle and Deuell's legislation would harm abused children by encouraging families to conceal what's already a too-often-concealed crime. Most child molesters aren't strangers - they're Daddy, Uncle, Granddad ... part of the family.

Think about it. Will parents of child victims come forward if it means the death sentence for a close relative? When Mom finds Grandad fondling the young'un, will she turn in her own father if it would mean lethal injection? Some would, but fewer than if the penalty were only prison time.

UPDATE: More from Corey Yung at the Sex Crimes Blog, who wrote a law review article on this topic a few years back. Setting aside legal questions, Yung finds four policy arguments against the death penalty for sex crimes: It "creates an incentive for the criminal to kill the victim," "decrease[s] reporting of an already underreported crime," "increases the jury incentive not to convict," and "may be unconstitutional." Thanks, Corey, for that great instant analysis.

NUTHER UPDATE: Doc Berman rounds up links on the subject and points to this law review note that concludes a death sentence for child rape would be "clearly unconstitutional" under the "evolving standards of decency" outlined by the Supreme Court in the Roper and Atkins cases. A Louisiana case currently making its way through the appellate process will likely be the case of first impression for them to make that call, if the Supreme Court chooses to hear it.


Anonymous said...

Sadly I'll have to agree. As well as offer this, I believe more offenders will take the life of their victims to avoid punishment. What do they have to lose???

Some times the old ways were the best solution. In the early 70's when I worked maximum security chomo's ( child molesters ) went through 11 days of testing to see where they could be used in our system. Then they went in to general population, and seldom did they last a week or more. Because in Arizona you got less time for child molestation than you did raping a full grown woman??? The average if memory serves me correctly was 3 years!

Now put yourself in the shoes of a person doing 10 years and you know this POS is going to get out way before you do. Are you going to let him walk out in to the world where your babies are??? How is the only way to protect yours from this maggot? PROBLEM SOLVED! Until we started building them their own seperate prisons, right or wrong THERE ALREADY WAS A DEATH PENALTY!

Writer said...

I'm asking out of ignorance, isn't there a greater burden of proof for death penalty cases?

Gritsforbreakfast said...

No, Shaine, "beyond a reasonable doubt" is the standard of proof required for all criminal cases. I've seen arguments that for DP cases it should be beyond any doubt, but that's not the law now. Best,

Anonymous said...

Scott and Rusty are both correct. Rusty's more correct when it comes to rape by strangers, and Scott's more correct when it comes to family members.

Not to mention the fact that rape (of a woman, at least, and I believe of a child as well) is not a crime to which the punishment of execution is proportional. Coker v. GA (US 1977). This law, as well as laws like it in other states (LA was the first, I believe) violate the Eighth Amendment prohibition on cruel and unusual punishments in that it is not proportional to the crime and is therefore arbitrary and capricious.

John D. McLauchlan said...

Loathesome as these kinds of crimes are, the victims survive. I don't know that execution can be morally justified. I don't know what the Supreme Court will do with these laws, but if I were on the court, I'd view them as disproportionate responses.

Anonymous said...

Pedophilia is a sickness, a personality disorder. Killing someone because they're ill isn't just unconstitutional, it's sick and wrong.

Anonymous said...


Ok for arguments sake lets say it is an illness, can it be cured??? Do you have any evidence that it has ever been??? If they can't be cured what do we do with them?? What is your solution??

I believe after a proper trial and all the evidence has proven beyond any doubt they are guilty. Then the judge should be able to turn to the parents and ask, WHAT DO YOU WANT TO DO WITH THEM!!! If they had to face the justice decided by the parents there would be less of it, would there not???

Anonymous said...

We can't cure Alzheimer patients either. What should we do with them, seat them in Old Sparky?

How about terminal cancer? There are kids with leukemia we're going to lose anyway, so should we cut things short and kill them?

Anonymous said...


You didn't offer a solution??? Alzheimer and those with cancer as a norm DON'T RAPE CHILDREN, DO THEY!!! If one has an illness and that illness DOES NOT cause harm to others, then of course we all know to help. But just like a rabid animal if ones illness REGARDLESS of why, harms others then we have two choices. The goal being to keep them from harming others. Therefore we have to keep them away from those they hurt, or END THEIR LIVES.

And as always it comes down to money and beliefs! So the question is are our beliefs worth the price it will cost to lock them up for ever, or do we take the cheap road and kill them at the expense of our faith????

There is no easy answer to this one! But the bottom line is those with this illness as you call it. Created the situation that cost us all, either monetarily or morally!!! Welcome to the Human Race!

Now again I as do you have a solution???

Gritsforbreakfast said...

Rusty I think the solution begins with being smarter and less emotional about what's admittedly a highly emotional subject.

This is a crime that's under-enforced and over-punished. Most people who commit the crime aren't caught, and the few that are often get decades in the penitentiary as punishment. It's also a crime with a relatively low recidivism rate.

What's needed then, IMO, isn't harsher punisment of the few, but more enforcement out in the world in order to make punishment a real deterrent. I'd also like to see more funding for in-prison and outpatient sex offender treatment, and most especially more resources for the kids' counseling and care. Like you say, none of it's easy, but it's what there is that might help. Juries already can and do give extraordinarily long sentences to true child predators. Further hiking penalties indiscriminately is a feel good maneuver that looks good on a TV campaign commercial but doesn't make anyone safer in the vast majority of cases.

Anonymous said...

This is a highly emotional subject and the offenders are NOT over punished. If anything, they are under-punished. Child molestation is all too common nowadays. There are way too many people that hav experienced this, much less have also experienced adult rape!

The answer to a lot of this is to lock them up for the rest of their life without a chance for parole. Rehabilitation does not work. The nation needs to sit up and take notice, and not just slap the hands of sex offenders anymore. How many times do you think sex offenders commit their heinous acts before they are caught? Once? Twice? I dont think so. One time anyone is raped or molested is too much, much less a child.

I have personally seen someone found guilty of incest and given 10 years probation. This is not a sentence, this is a joke.

We need to pass new laws making it tougher on punishment for the first time child molester, much less a repeat offender.

Anonymous said...

There is one very important point you are all missing--child sex cases are frequently hard to prove in court. This affects the sentence like this: defendant weighs his odds of going to trial versus pleading guilty to 10 yrs probation. Since it is often risky for the prosecutor to go to trial too with a child victim that may not hold up well on the stand...the prosecutor would rather get a conviction where probation can be revoked if the defendant fails to follow his conditions, after which defendant goes to prison. I'm told many of these cases are hard to prove due to the age of victims and the dynamics of family members where sex abuse occurs.

And, cases that are hard to prove, often require longer, more thorough investigations. Tax payers do not want to pay for this. Just look at CPS trying to investigate millions of child abuse cases on shoe-string budgets. We will fund police deparments, and we should,but there's another agency, not well funded to work these difficult investigations. CPS can investigate a family for years without finding anything they can take to court. Ofcourse they don't have too much time to spend on any one case. And finally, these cases may also be more likely to contain errors which surface after the defendant has been sentenced which cannot be corrected if the defendant has been PUT TO DEATH.

Sure, I'm thinking the guy deserves to die right along with you Rusty. But, the death penalty does not allow for mistakes and mistakes do occur. We need to be protected from these predators
...lock them up. And give CPS the resources and the investigators they need to do their job. Justice is not measured by the number of drug cases a prosecutor gets convictions on. This is the joke to me.