Wednesday, June 25, 2008

Death penalty in Texas' 'Jessica's Law' not viable after SCOTUS' Kennedy decision

SCOTUSBlog reports that the US Supreme Court's ruling in the Kennedy case out of Lousiana bars states from legislating the death penalty for the crime of child rape "when the victim does not die and death was not intended." The 5-4 ruling written by swing-man Justice Anthony Kennedy will invalidate a portion of Texas' new "Jessica's Law" statute, which included the death penalty for the second offense.

Though the ruling will disallow a portion of Texas' statute and the state participated in an amici brief to support Louisiana's position, the ruling will affect no pending Texas cases. That's because, cleverly, the House members involved with Texas' 2007 Jessica's Law - notably Jerry Madden and Dan Gattis along with Rep. Debbie Riddle who accepted their amendments on the House floor - found a way to put off the real-world application of the death penalty with a bit of legislative sleight of hand.

They created a new statute - "continuous sexual abuse of a child" - which did not previously exist in the world, so no one had ever violated it before. Since the first conviction for this new crime gets a mandatory 25 year sentence before parole could even be considered, the first possible Texas death sentence for this crime could have come sometime around 2033.

I didn't support the final product and still think it has other problems, but I've gotta give Gattis, Madden and Riddle credit for a nifty piece of law-writing, performed in a highly politicized environment with lots of pressure from the leadership to pass a bill including a death sentence. Thanks to their prudence, Texas avoided having DAs pursue high-profile, emotion-filled death-penalty cases based on what turned to be an unconstitutional premise. For once we didn't actually step in the cow patty before having to clean it up.

See the SCOTUSWiki page on Kennedy, a roundup from the Stand Down blog, and related coverage from Doc Berman at Sentencing Law & Policy. Here's the intial New York Times coverage.

UPDATE: See the statement on Kennedy from the Texas Association Against Sexual Assault in support of the SCOTUS opinion, as well as intitial reactions from Corey Yung at the Sex Crimes blog.

NUTHER UPDATE: Shannon Edmonds from the Texas District and County Attorneys Association emails to say I'm remembering the House version of "Jessica's Law," that the version that cleared the Senate did include the death penalty for near-term offenses. Writes Edmonds:
First, most prosecutors did not support the death penalty provision; in fact, several elected prosecutors (including John Bradley) publicly testified against that provision during committee hearings on the bill, and even after its passage, no prosecutor has sought death in any such case, so I think your fears about Texas leaping before it looked are misplaced.

Second, the death penalty provisions of Jessica's Law applied to the repeat commission of certain "super"-aggravated sexual assaults against children. It did not apply to continuous sexual assault of a child. (Earlier House versions of the bill did so, but that was changed in the Senate).

Third, due to the particular wording of the statute, the death penalty was very much on the table for those repeat "super"-aggravated offenders as of September 1, 2007.

Fourth, at the urging of prosecutors, the law included a savings provision that ensured a sentence of life without parole for those "super"-aggravated offenders would survive an adverse ruling from SCOTUS.
In any event, in whatever form the death penalty made it into Texas' Jessica's Law and similar statutes in other states, it's now been defenestrated by the Kennedy ruling. Thanks Shannon for the clarification on Texas' statute.


Anonymous said...

So the feds tell us how to run our state. Gosh I wish we had won the big one.

Anonymous said...

I imagine that it was mostly Madden and Gattis. Riddle can barely tie her shoes without help

Anonymous said...

"So the feds tell us how to run our state. Gosh I wish we had won the big one."

No, the feds tell us how to treat citizens of the United States of America. This bill stops the vote pandering legislators from putting another unconstitutional law in the books. As we are seeing, emotions run high, but the Constitution Reigns Supreme.

And what big one is that? The Civil War? Thanks to decisions just like this one, you are capable of making subversive statements like that without being hauled off to jail.

Anonymous said...

"Gosh I wish we had won the big one."

I'm betting that you wouldn't have been worth a damn to the planter class back then. Probably would have been fighting for slavery, when you didn't own a slave. Probably couldn't have even afforded shoes, and wouldn't have known how to read.

That's what most people were like who fought for the big one.

Anonymous said...

"So the feds tell us how to run our state....."

Damn, let us be glad we have the feds to tell this state how to do something! It isn't as if our "killing machine" in Huntsville collects dust. It seems that each time we crank up machine the right wing do-gooders in this state are almost in orgasmic delight at the thought of killing another one.

I do wish we were as excited about punishing anyone related to law enforcement when they murder a shackled prisoner, or the sleazy politicians that sit around and make up these TEXAS laws. You know folks...Don't Mess With Texas...killing you would be their delight.

Gritsforbreakfast said...

RE: "That's what most people were like who fought for the big one."

Hey, wait a minute - I'm guessing that judged by modern standards, the grunts who fought for the Union were no bed of roses, either!

My family on both sides fought in "the big one" on behalf of the Confederate cause. Piss on somebody else's ancestors!

Re: Debbie Riddle, 10:44, I'll tell you the truth. When she got to the Lege she knew nothing about this stuff, but I've been impressed with her learning curve and her willingness to accept direction from folks like Madden and Gattis (and Terry Keel before them) who have more gravitas. I often don't agree with her, but neither do I agree she's just a ditzy blonde. She's a lot more knowledgeable now than when she first arrived, and sometimes asks questions that identify the elephant in the room nobody else will talk about. That's a useful contribution to the debate, even if I don't always like her agenda.

Anonymous said...

"Killing machine?" More innocent children die at the hands of abortion doctors every day than the "killing machine" has executed convicted criminals in our State's history. Thanks to the left, criminals and terrorists have more legal rights than our children.

Anonymous said...

kb Texas...I agree that the abortionist kill more children than Huntsville does prisoners. That argument is for another blog entry. I find it interesting that you disagree with abortion but don't seem to mind legal murder at the hands of a so-called justice system. Killing is killing no matter what banner you fly over it.

Criminals and terrorist have rights under the laws of our land just like you and I do. Unfortunately, rarely do these criminals and terrorist get to exercise their rights, especially in Texas. Anyone accused of a sex crime against a child is considered guilty until proven innocent in this state. You might be surprised the lack of evidence needed to convict a person of a sex crime in Texas. If someone...anyone accuses a person, whether they are truthful or not, they are deemed guilty and sent to the TDCJ hell for God knows how many years. This law that would allow executing them should terrify everyone, especially men across this state. If we execute even one man for a crime he didn't commit then there is blood on the hands of a judicial system gone nuts.

One only need look at the recent number of exonerations to determine that something is clearly flawed with the system. Can you imagine if we had murdered one of these exonerated men only to find he was innocent all along?

The next question is what if it was you or someone you loved sitting on death row for a crime he didn't commit? I would imagine you would be screaming for those rights you think criminals and terrorists have.

Anonymous said...

1. I didn't say I was in favor of the death penalty for rapists.

2. I am not opposed to criminals and terrorists having rights.

3. I personally know people who have been wrongly accused of crimes against children, and whole-heartedly support the innocent until proven guilty philosophy.

4. This IS the time and place to talk about abortion. After all, we're talking about crimes against children. Unborn children STILL have fewer rights in this country than rapists and terrorists.

Abortion should not be a political football. Abortion should NEVER be used as a form of birth control. As a nation, we should be ashamed of the way we treat our children.

Anonymous said...

kbtexan ~ so would you include abortionists in the 'child abuser' group and would you be able to convince fellow jurors that 'child abuse' did not equate to 'child sex abuse' in order to make that distinction and not see the accused taken off to DR?

The more complicated you make a law, the less likely it will be to do the job it was intended to do in the first place, because jurors are (generally) not legal students.

Anonymous said...

My family on both sides fought in "the big one" on behalf of the Confederate cause. Piss on somebody else's ancestors!

Easy big fella' mine did too.

But it's a fact that the planter class was tiny, and that the majority of those fighting for the South had no slaves at all. In other words, they were fighting to support an institution that was adverse to their own interests, because the average farmer had to compete against slave labor, which can't be done.

Just because we're related to them doesn't mean they don't deserve to get pissed on.

Gritsforbreakfast said...

@8:20 - You sweepingly assume that the Civil War was solely about slavery and that all contemporary claims about other causes (on both sides) were mendacious. Lincoln, for example, would have bitterly disagreed in 1861 with the assessment that a northern desire to free the slaves was the war's proximate cause.

Your comments are sorta like the liberal critique in "What's the matter with Kansas," the book that argues that the religious right is deluded or tricked by their leaders into supporting an agenda against their interest. In the real world that's rarely the case, and when applied to the Civil War the argument promotes a myopic and historically incorrect view, one based on modern mores rather than an honest assessment of the past.

I think slavery was one of a half-dozen important causes of the Civil War, and the North and South had quite a few major differences (e.g., on tariffs, between ag vs. industrial interests) that played pivotal roles in fashioning a distinct southern ideology. To be fair, that view was shaped by a semester-long history course in college on the causes of the Civil War taught by UT-Austin's George Forgie - from his account, most of the contemporary debate may have been driven by but was not directly about slavery, at least on the most immediate flashpoints. In the 20th Century the term "State's Rights" got lumped in with "pro-segregation" in the political lexicon, but folks like John Calhoun or Jefferson Davis saw the term much more broadly than that, and the decimation of states' rights had more sweeping implications than just abolishing slavery - e.g., allowing the feds to usurp immigration policy.

The ignorant Southern footsoldiers you mention (and are you assuming the Union soldiers were all literate and well read?) believed in the Confederate cause, and for reasons that included but went well beyond white supremacy. Ignoring that truth risks missing some of the important lessons available to be drawn from what my great-grandfather called "The War of Northern Aggression" that would better inform a lot of the culture war divisions we face today. best,

TxBluesMan said...


You better be careful with using the "War of Northern Aggression" term - dem Yankees think that means you are a Klukker...

Anonymous said...

Unborn "children" as you call them, aren't children. They are merely a collection of cells that subsist on a host. More like parasite or a "cancer" (reproducing cells) if you care to get into the actual scientific facts.

Gritsforbreakfast said...

I know, Bluesy. I get in trouble every time I open my mouth on these topics. That is, when I'm not getting in trouble for being a "liberal." :)

OTOH, during Reconstruction the most radical, crazy-ass, Union-can-go-to-hell ex-rebels all migrated to Texas and their descendants formed the state's biggest population base for generations. To deny that history or fail to understand it because the truth is confusing or repugnant condemns us to repeat old mistakes.

Texas is the only state to fight two wars over slavery, abolition of which WAS indeed the proximate cause of the 1836 Texian revolution. I don't downplay the role of white supremacy in southern/Texas history; I just think there was/is more to post-Confederate ideology than racism and lynching. To understand southern ideology - why Nixon's "Southern Strategy" worked, etc. - requires a deeper understanding of states' rights than just saying those espousing it are all a bunch of ignorant racists.

OTOH, maybe I'm just being defensive. The handle ain't "Grits" for nothing!

Anonymous said...

I am a Texan who has long believed in the death penalty for certain very specific capital crimes. That said, I am a proud citizen of the United States, as well, and I am damn glad we have a nation that for the most part follows the Constitution rather than whims and emotional feelings when it comes to dispensing justice.

I believe that there is a place for the death penalty, and I believe the prohibition that "Thou Shall Not Kill," which we have taken from Mosiac law, does not prohibit the death penalty. In fact, if you study the Law of Moses (Yep, right from the pages of that terrible "religious right" manual for liviing, commonly referred to as the Bible) you find that there were many instances where the death penalty was REQUIRED by God. From those roots we have our present day death penalty laws, applied state to state.

In a perfect world, there would be no need for a death penalty because we would not have people killing other people during the commission of a crime. But it is not a perfect world, so there is murder. Unfortunately, there is misapplication and unequal application of the death penalty.

As you can see, I support the death penalty for those traditional offenses such as murder during the commission of a felony, murder of a police officer, and murder of a prison guard, as primary examples.

The rape of a child as one of the most terrible acts of I can think of. Most people would find a child rapist to be morally repulsive and disgusting. But as terrible and sick and disgusting as the rape of a child is, it is not one of those crimes for which we, as a nation, have traditionally demanded that the offender pay with his/her life.

The Supreme Court was right in its ruling concerning the death penalty for child rapists. There are many instances in which children report rape, but the only evidence is the child's statement, and the suspected offender's denial. No matter how much society would like to believe the young victims, where there is reasonable doubt, there should not be a conviction.

I understand that at least three percent of capital cases in Texas which were reviewed as to DNA evidence have resulted in exoneration of the convicted person. In many of these cases, there were witnesses to the crime, circumstancial evidence, and other indications of the person's guilt. With most cases of child rape having significantly less evidence on which to base a trial and conviction, the possiblity of a wrongful conviction is much higher. The possibility of executing an innocent person would be much higher as well.

Why keep the death penalty at all? For one thing, if a murderer is already serving life without parole, and he kills a prison guard or another inmate, and is convicted, what do you do? Do you assess another life term?

The death penalty doesn't deter criminals for the most part, but certainly eliminates the possibilty that the executed criminal will ever kill again. That is my reason for wanting the death penalty to remain available.

As a citizen, I demand that the state protect me from murderers. If that means that convicted murderers are executed, than so be it. If I should someday find myself at the wrong end of a murder trial, God forbid, and I am convicted and sentenced to death, shame on me. I know that it is wrong to murder, that "Thou Shall Not Kill."

Anonymous said...

"When she got to the Lege she knew nothing about this stuff, but I've been impressed with her learning curve and her willingness to accept direction from folks like Madden and Gattis (and Terry Keel before them) who have more gravitas."
I'm sorry but she is about as intelligent as a bag of hammers and is everything that is wrong with the GOP. I saw her stammer and stumble her way through HB 8, Jessica's Law, last session and it most certainly would have died had it not been for other repubs like Gattis that saved her. I love your blog and agree with most of your opinions, but I can't follow your argument on this.

Anonymous said...

Yeah you're being defensive.

And, I do believe that many Republicans have been hoodwinked into voting against their own interests.

We could do this all day, I guess, but the fact is that there is so much room for interpretation as to the cause that we could rage at each other over the internet and never change the others' mind. I think you're giving too much credit to the other causes, you think I put too much emphasis on slavery. No big deal. I respect my grandfather as well, but I'm not afraid to call a spade a spade, either.

And I'm sure you'll forgive that turn of phrase, being such a slavery loving revisionist historian as you apparently are.

Anonymous said...

What about the argument that the child rapist might go ahead and kill the potentially only witness fearing the death penalty and/or the argument that the child is traumatized twice - once for the rape, then another time for the execution of their "loved" one (assuming that the rapist is a family member or friend). It is well documented that child victims know their perpetrator.