If you were in front of a TV today at around 8:45 AM, you might have seen TMN’s Scott Cobb commenting on a proposal by Texas Lt Governor David Dewhurst to make people who repeat the offense of child sexual assault eligible for the death penalty. Scott appeared on the program along with Rusty Hubbarth of Justice for All.

Another live interview is scheduled for around 10:45 AM today.

The main reason for not expanding the death penalty to apply to repeat child rapists is that it will make child victims less safe from sexual predators. If the punishment is the same for raping a child as it is for raping and killing a child, then it creates a perverse incentive for sexual predators to kill the child in order to eliminate what is often the only witness to the crime. If we pass a law making the death penalty apply in these cases, even when there is no homicide involved, then we create the possibility that a child will be killed by the predator instead of surviving the attack.

The death penalty for repeat child rapists also may decrease the likelihood that these heinous crimes will go unreported. The vast majority of these type crimes involve predators who are known by their victims. A child could be pressured not to report an assault by a family member if the other members of the family know that the person may be subject to the death penalty.

Another reason is that juries are less likely to convict people if they think that the punishment is too harsh.

A final reason is that the death penalty for rape of a child may be unconstitutional as a violation of the 8th Amendment’s prohibition of cruel and unusual punishment. In 1977, the U.S. Supreme Court ruled in Coker v. Georgia that the death penalty for people who commit rape of an adult is unconstitutional, because the punishment is disproportionate to the crime. The Court has not ruled on whether they would also consider the death penalty for a person who rapes a child as disproportionate, but it is highly likely that it would. There has not been an execution in the United States for non-homicide crime since 1964. Only five states allow the death penalty for child rapists and only one person has been convicted of such a crime and sentenced to death. There seems to be a national consensus that the death penalty is not appropriate unless the crime results in a killing. The Supreme Court banned executions of juvenile offenders and people with mental retardation, because they concluded that a national consensus existed against such executions. At the time of both of those Supreme Court rulings only 18 of the 38 death penalty states had banned executions of either juvenile offenders and people with mental retardation. Today, only five of the 38 death penalty states allow the death penalty for child rapists, so 45 states do not allow it. That seems like a national consensus against such a severe punishment in these cases.

A better approach in these cases, one that will protect children from being killed by their predators, is to allow judges and juries to sentence people to long terms in prison, including life in prison. We should leave it up to juries to decide on the appropriate punishment from a range of such punishments. Currently the range for first time offenders is 5-99 years or life in prison and the punishment for a second offense is an automatic life sentence. That seems like a just system and one that is incredibly tough already.

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