May 23, 2005

So Much for Coker

by PG

Horror aside, my first reaction to this story about widespread sexual abuse of children was to challenge the accuracy of this statement: "They are charged with aggravated rape of a child under 13 -- a charge which, if convicted, can carry a death sentence in Louisiana, authorities said." I thought I remembered from criminal law that Coker v. Georgia had said that the death penalty for rape was unconstitutional.

It did -- when the rape was of an adult woman. The U.S. Supreme Court has not ruled on the constitutionality of execution for raping children, and Louisiana continues to make it a capital offense at the discretion of the prosecutor: " if the victim was under the age of twelve years [...] And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole." The law was upheld by the Louisiana Supreme Court in State v. Wilson (685 So. 2d 1063, 1996), and SCOTUS refused cert in Bethley v. Louisiana.

Recent U.S. Supreme Court death penalty jurisprudence has focused on the characteristics of the criminal. Having what is considered to be a child-like mind due to mental retardation, or being under the age of 18, now excuse defendants from execution. Special status of victims, on the other hand, has not been much discussed. The Louisiana aggravated rape statute, like the Texas aggravated assault statute noted in this post, perceives the crime to be more serious if committed against an elderly, disabled or underage person.

Aside from tossing capital punishment completely, proportionality might be the renewed frontier in limiting execution. The U.S. Supreme Court may end up going to back to the issue of what crimes merit the death penalty, granting cert to challenges made on the grounds of insufficient aggravating circumstances. The Indian Supreme Court has declared that execution should be given only in "the rarest of rare cases," though what that means has been difficult to determine. Concerns about the large number of death row inmates, particularly considering how expensive they can be, could provide political rationales for making capital sentences less routine in America.

(Though in the Lots o' Executions Sweepstakes, even Texas falls behind Thailand, which has installed death row webcams.)

May 23, 2005 04:57 AM | TrackBack

It's not quite parallel, but the status of the victim as a police officer seems to be well established as a permissible aggravating factor elevating murder to capital murder. I don't know if there are any states that make murder of a child a specifically capital crime, but it wouldn't surprise me.

Obviously, it's a different question as applied to rape. I seem to recall that there have been studies suggesting that pedophiles are among the most hopelessly recidivist of criminals, so the state might have an empirical argument that the death penalty is appropriate for aggravated child rape, at least in cases that are not a first offense.

Posted by: Tom T. at May 23, 2005 08:48 PM

Your comment that proportionalty might become a new touchstone intrigues me. The cases upon which criminal defendants file their briefs en masse seem to have been mostly discredited. As recently as two years ago - in a 1st year moot court competition - proportionality was viewed as a potential check on harsh punishment.

Yet the case law has failed to develop as some anticipated. It seems that the current court is extremely focused on process, as in Crawford and the Apprendi line of cases, yet is generally unwilling to inquire into the results of cases in which the process is correct, even if the substantive results seem inequitable.

If recidivist statutes involving the imprisonment of an individual for decades are constitutional (though evidently not writing a bad check)...could one really conclude that the current court is likely to find that the death penalty is disproportionate for a person who rapes a child (or anybody, really...but that avenue is foreclosed by precedent).

Posted by: MJM at May 24, 2005 05:09 AM

I posted this on Conglomerate, but figured I would post it here as well:

Last year, I published an article dealing with the Louisiana statute and other attempts to apply the death penalty to rape and child molestation. I concluded that the application of the death penalty in such cases is a bad idea for a few reasons.

First, from an entirely policy perspective, the end result of using capital punishment in such cases would be an increase in dead kids. Because child molestation is almost always a one witness crime and punishment is not increased by killing the kid, the incentive to kill the victim is stronger than in other non-homocide crimes. There is very limited empirical evidence pertaining to adult rape to support the risk of rapists killing their victims when their is no increased risk of punishment.

Second, the incentives to report are diminished under a capital punishment regime. Child rape victims are more often raped by family members or friends. Because of this, reporting rates are very low compared to other crimes. Adding the risk of executing "Crazy Uncle Frank" can dissaude families from reporting the crimes. This can actually decrease deterrence substantially.

Third, from a rhetorical perspective, I argued that equivocating rape with death (as capital punishment and surrounding justifications often do) creates some pernicious effects. It supports the notion that rape victims are "better off dead" and since they have suffered already, suicide becomes a "rational" option. Given the rates of suicide among survivors, any rhetorical support should be resisted.

Fourth, I argued even in the case of children, capital punishment for rape is fundamentally anti-feminist. The Victorian idea that a victim should die rather than be violated (as personified by Saint Maria Goretti) is bound up in equivocating death with rape.

Anyway, my article is on SSRN if you are interested. The abstract and download are at:

Corey Rayburn

Posted by: Corey Rayburn at May 24, 2005 04:29 PM

I guess you need to look up the word "equivocate". And the cutoff age for ag. rape in Louisiana is thirteen, not twelve.

The worst part for me, as a juvenile public defender, is that there is no age limit for the perpetrator. The Louisiana legislature, or as I call them, the Laliban, thinks it's fine for a twelve-year-old kid to get ajuvenile life sentence (to age twenty-one) for having sex with another twelve-year-old kid.

Posted by: michael Idoyaga at July 19, 2006 08:35 AM
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