Former Bexar County District Attorney Sam Milsap published an Op-Ed in the San Antonio Express News March 7 opposing HB 8 because of its death penalty provision. Milsap  will be speaking in Austin this Monday, March 12, on the day before “Day of Innocence” and Death Penalty Issues Lobby Day. His talk is 6-7 PM in Waggener Hall on the campus of UT-Austin.

A senate version of “Jessica’s Law” (SB 5 by Deuell) that also contains a death penalty provision will be heard in the Senate Criminal Justice Committee this Tuesday, March 13.

From Milsap’s Op-Ed:

If House Bill 8 becomes law, the clock would be turned back to the bad old days when it was impossible to persuade a child victim or witness to testify against Dad, Uncle Bill or Mom’s boyfriend.

By way of background, I am not some wild-eyed, pointy-headed liberal who is soft on crime; I am a former elected Bexar County district attorney. I was considered a national leader in the effort to develop a model for the prosecution of cases involving child sexual abuse in the mid-1980s.

With the support of the Commissioners Court, a special unit, considered at the time a model by DAs throughout the country, was created for the prosecution of those cases. Our focused effort, led by specially trained prosecutors and advocates for child victims, produced measurable – but limited – success.

What quickly became clear was that, because of their understandable fears and vulnerabilities, victims and witnesses were still reluctant to testify against perpetrators; special laws were required for the trial of cases involving child victims. For that reason, my office authored legislation that made it easier to prosecute these loathsome crimes.

As a result of the efforts of then-Sen. Cyndi Krier and Reps. Frank Tejeda and Dan Morales, that legislation, passed in 1985, has been the law in Texas for many years, eliminating some of the most serious barriers to the prosecution of these cases.

Under the best circumstances, I can tell you from experience that it is very difficult to successfully prosecute any form of child abuse. The very nature of child sex abuse makes it even more problematic.

The stigma of this odious crime subjects victims and witnesses to pressures from family members not to report or to refuse to testify. The mere fact that Dad or Uncle Bill will be convicted of a felony and may go to prison is enough to persuade most victims and witnesses not to report or testify.

If the death penalty is added to the range of punishments, perpetrators might be encouraged to murder their child victims to prevent them from reporting or testifying. At the very least, the number of legitimate child sex abuse complaints would plummet, producing a result obviously not intended by supporters of this legislation.

This bill, if passed, would be the focus of a successful appeal the first time its application produces a death sentence. There is little, if any, chance that an appellate court would sustain a statute that permits the death penalty for an offense that does not involve a murder. The U.S. Supreme Court, in Coker v. Georgia, ruled in 1977 that a death sentence for the rape of an adult woman was grossly disproportionate and excessive punishment and barred by the Eighth Amendment.

Because this legislation is so clearly unconstitutional, it is possible that even trial judges in Texas would refuse to apply it.

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