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Friday, May 18, 2007

The Death Penalty for Child Rape: Why Louisiana Should Thank Texas

As the Houston Chronicle reports here, Texas is poised to become the sixth state to authorize capital punishment for child rape.  Given that Texas is, shall we say, fond of the death penalty, this is not a particularly surprising development.  However, because the proposed Texas statute is geared toward second-time offenders, it might be decades before anyone is sentenced to death under this new law.  So will the new statute be insignificant?  I don't think so.  In its very confused Eighth Amendment capital jurisprudence, the Supreme Court has looked,  inter alia, to the raw number of states authorizing a punishment and whether there is a one-directional trend.   

Based on that approach, the Court forbid the death penalty for the mentally retarded and juveniles in large part by head-counting state legislatures and concluding that they were moving in the direction of abolishing those practices.   From the perspective of death-penalty abolitionists, the danger of that approach is now becoming evident.  If there can be a one-directional trend to limit the death penalty, why can't there also be a one-directional trend toward expanding it?  With respect to rape, the Court has forbid capital punishment for those who commit the crime against adults (Coker v. Georgia, 433 U.S. 584 (1977)), but it has never addressed whether the death penalty for child rapists is permissible.  To answer the child rape question, the Court will likely turn to national trends again.  And by enacting the nation's sixth statute authorizing capital punishment for child rape, Texas is helping to continue a one-directional trend.  As I explain in more detail here, the real beneficiary of the proposed Texas statute may actually be Louisiana, which is the only state that has a child rapist on death row.  Once the Texas statute is enacted, the likelihood that Louisiana will be permitted to execute that child rapist will rise.  In my mind, that raises serious concerns about the soundness of the Supreme Court's Eighth Amendment jurisprudence.  In any event though, Louisiana might want to say thank you to Texas.

Posted by Adam Gershowitz on May 18, 2007 at 11:56 AM in Criminal Law | Permalink

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Tracked on May 18, 2007 2:20:25 PM

» Texas, Louisiana, and Death from Sex Crimes
Last week, Professor Adam Gershowitz posted at Prawfsblawg about the death penalty for child rape in Texas. This is what he had to say:As the Houston Chronicle reports here, Texas is poised to become the sixth state to authorize capital [Read More]

Tracked on May 21, 2007 4:53:58 PM

Comments

"In my mind, that raises serious concerns about the soundness of the Supreme Court's Eighth Amendment jurisprudence."

Perhaps, but does it raise any serious concerns that aren't also raised when states become more restrictive rather than less? And of course, this assumes that judges really do care about the raw numbers, which seems open to question.

Posted by: Orin Kerr | May 18, 2007 5:58:48 PM

I wonder what effect it has upon a child to have someone put to death in their name?

Is anyone really thinking that far ahead?

A child can be convinced 'it's the right thing to do' at a young age. Perhaps, like parental alienation cases, abortion, or killing in the name of God and Country,they continue to believe it forever.

But what happens when the child looks back with regret?

Posted by: All | May 24, 2007 12:51:07 AM

My son was molested and I have been to the nut ward for homacidal reasons. I have been through therapy but the facts are that I would not be able to control myself if that man ever crosses my path. The only reason the man that did it to my son is still alive is I am a single parent and my sons welfare if I was caught. Any normal parent of a child would feel the same. The only regret would be that I didn't kill him myself.

Lethal injection is not punishment. He needs "child rapist" tatooed on his forehead and life without parole in general population. They have a real appreciation for them kind in prison.

Posted by: Parents thoughts | Jun 9, 2008 7:04:04 PM

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