During the debate on HB 8, there were several people who valiantly tried to amend the bill to improve it or who spoke eloquently on the floor against the death penalty provision in the bill, either today or last week, including Representatives Dutton, Turner and Hodge. Special thanks to them.

Thank you also to all the 24 members who voted against HB 8, mostly because of the death penalty provision. When the U.S. Supreme Court finds the death penalty in this bill unconstitutional, these members will be able to say “told you so”.

Allen; Bolton; Burnam; Castro; Cohen; Coleman; Davis, Y.; Dukes;
Dutton; Farrar; Giddings; Hernandez; Hodge; Howard, D.; McClendon; Miles;
Moreno; Naishtat; Olivo; Pickett; Puente; Rodriguez; Thompson; Turner.

A few members felt strongly enough to have their written objections recorded in the House Journal. Thank you for taking this extra step.

REASONS FOR VOTE (recorded in Journal)

Rep. Garnet Coleman’s Statement:

Although the amendment to the bill improved the language of HB 8, and the intent of the bill is laudable without dispute, there is a constitutional concern about the use of the death penalty in cases where no life is taken. Though the sanction of the death penalty is available in other states, the constitutionality of using the death penalty in cases that do not include murder has not yet come before the supreme court. Louisiana is the only state to have an individual on death row for a sexual offense against a minor, and that case is currently before the courts. There remains additional concern that if the death penalty is a possible punishment for continuous sexual abuse of a young child or children, the victim may not report the offense for fear of sending a fellow family member to life imprisonment or death.

If this bill goes to a conference committee, and the use of the death penalty is removed, I will vote “yes” on HB 8 or similar legislation. However, in light of the current language and concerns as they exist in the bill s’ current form and in deference to the United States Constitution, I respectfully vote “no” on HB 8.

Rep. Borris Miles’ Statement:

I commend my colleagues ’efforts to protect the youth of the State of Texas from sexual predators, but this effort goes too far. I am voting against HB 8 because I believe that it is unconstitutional to take a life when another life has not been taken. I am not negating the impact that these heinous acts have on individuals but believe that this bill will cause more harm than good. In addition to the constitutional issue, it is my belief that this legislation might prevent some witnesses from coming forward out of concern that their friend, acquaintance, or relative might be put to death.

Rep. Eddie Rodriguez’ Statement:

But for the provision that allows for the death penalty for a non-murder offense, I would support this bill. Child sex offenses are heinous, evil crimes. No one in the Texas House would argue that point. But the punishment of life without the possibility of parole is a tough punishment that provides for the safety of Texas children.

Texas has never been soft on crime, particularly when child sex offenders are concerned. Current Texas law is tough: providing for a life sentence for offenders convicted of sexual assault, aggravated assault, and aggravated kidnapping if the offender has a previous sex crime conviction. These offenders are not eligible for parole until they serve 35 years in prison. Furthermore, convicted sex offenders can be mandated to participate in intense supervision, restrictions on housing, registration, and child safety zones.

That said, there are provisions of HB 8 that I support. Life sentences without
the possibility of parole is not too tough for repeat child sex offenders. I agree
with the provision that extends the statute of limitations for the prosecution of
child sex crimes to 20 years from the 18th birthday of the victim—up from 10 years. I also agree with the provision that enhances tracking of child sex offenders.

The intent of HB 8 is praiseworthy—keeping children safe and severely punishing child sex offenders. However, the implementation of the death penalty should be reserved for murderous crimes, and I believe that the United States Supreme Court would agree with me.

Now that the House has voted to expand the death penalty, it should also take the necessary steps to protect innocent people from being caught up in the expansion of the death penalty, as well of innocent people who may already be on death row, for instance by 1) voting for a moratorium bill to stop executions for two years, 2) by voting for a death penalty study commission bill to conduct a comprehensive review of the Texas death penalty, 3) voting for the creation of an innocence commission to examine cases of innocent people who have been exonerated in order to learn how to prevent future mistakes (the commission should also be empowered to investigate strong claims of innocence from people currently on death row).

The Louisiana Supreme Court heard oral arguments this past week on the constitutionality of the death sentence on the only person in the nation who has been convicted and sentenced to death for child rape. If the Louisiana Supreme Court upholds the sentence, it will of course be appealed all the way up to the U.S. Supreme Court. There is no indication yet, when the Louisiana Supreme Court will announce a decision. Below is an excerpt from an AP story on the hearing.

The only inmate on any U.S. death row for rape contends that his conviction should be thrown out because the Louisiana law allowing the penalty for raping a child is unconstitutional.Chief Justice Pascal Calogero took arguments and briefs under advisement after a hearing Wednesday, and did not say when the high court will rule.

The 42-year-old Harvey man was convicted in 2003 of aggravated rape of his stepdaughter; his name has been withheld from news reports to protect the girl.

She was 8 years old when she told Jefferson Parish sheriff’s deputies in March 1998 that she had been raped by one of two men who had dragged her from her garage to a vacant house. Eighteen months later, she told her mother that it was her stepfather who had raped her.

The man is the only person convicted under the 1995 law, which allows the death penalty for aggravated rape of someone less than 12 years old.

He also is the only person sentenced to death for a crime other than murder since the U.S. Supreme Court ruled in 1977 that murder was the only crime for which the death penalty was constitutional, Nick Trenticosta, a New Orleans attorney who has handled numerous death row appeals, said in 2003.

…

The U.S. Supreme Court has ruled that courts must consider the nation’s “present judgment” toward the death penalty, Stern said. He said the small number of states with the death penalty for child rape shows it is not widely supported.

Stern also said the penalty is disproportionate to the crime. “The crime of child rape is heinous,” he told the justices. “But as horrible as it is, it is not the same as murder.”

Clark said the serious physical, emotional and psychological effects on the victim make child rape comparable to murder. “It’s the murder of a victim’s innocence,” she said.

Jefferson Parish has prosecuted about a dozen people under the law, but either the defendants reached plea bargains or juries did not call for death, she said.

The fact that the Jefferson Parish has sought the death penalty against several other child rapists who did not kill their victim, but was only able in this one case to convince a jury to sentence someone to death, argues in favor of there being a national consensus against the death penalty except in cases where a killing has taken place.

Rep Riddle has claimed that the odds of the U.S. Supreme Court finding the death penalty unconstitutional for repeat offenders who commit sexual assault against children (as proposed in HB 8) to be “one in a million”. This is an absurd and apparently purposefully misleading claim.

She was told by a UT law professor during the committee hearing on HB 8 that there were severe constitutional problems with the bill, but she apparently chose to ignore that testimony.

For a discussion on the constitutional questions, here is a link to an article that lays out the constitutional problems in the issue. Below is a paragraph from the conclusion of the article:

Even without looking to international opinion, capital child-rape statutes are clearly unconstitutional. First, there is a strong national consensus against imposing the death penalty for child rape. In addition, the death penalty is a disproportionate punishment for the crime of rape, regardless of the age of the victim, because it does not cause death. Moreover, imposing the death penalty for child rape would fail to serve, and would likely inhibit, the retribution and deterrence functions of the U.S. penal system.

From the Dallas Morning News’ Capitol Letters Blog

An Agreement on Jessica’s Laws?

Lawmakers have been meeting non-stop today to come to some agreement on the Jessica’s Law sex offender death penalty bill that stalled in the House yesterday.

Jon English, chief of staff for Rep. Debbie Riddle, the Tomball Republican who filed the bill, said the substitute language floating around today would make the death penalty provision incredibly specific, to target only the worst repeat child sex offenders, “cut out all the hypotheticals,” and safeguard against likely constitutional challenges. If the bill passes, Texas will be the sixth state to let prosecutors seek the death penalty for sex offenders.

“We misgauged how much we thought people understood this before,” Mr. English said of yesterday’s vote to delay the bill until Monday. “Obviously it’s really hard to understand.”

* Among the concerns of House members that led to the postponement of the debate on Jessica’s Laws was the realization that the death penalty could apply to Catholic priests who have committed two offenses of sexual abuse.

Another problem was the death sentence for a second conviction for rape of a child. Actually, this created two problems. First, as critics pointed out, the law created an incentive for the predator to kill his victim. As Hartnett said, “I get death either way, whether I let her live or not.” Riddle tried to argue that predators are not sophisticated enough to know this, a transparently weak response. She had obviously worked hard on this bill, and cared deeply about it, but she wasn’t up to debating the legal issues. What apparently impelled Smithee to make his motion to postpone was Riddle’s motion to table an amendment without offering any argument against it.

The second problem with the death penalty was its constitutionality. In 1977, in Coker v. Georgia, the U.S. Supreme Court ruled that capital punishment was a disproportionate sentence for rape and therefore violated the Eighth Amendment’s prohibition of cruel and unusual punishments. Nevertheless, five states have made sexual assault of a child a capital offense: Georgia, Florida, Louisiana, Oklahoma, and Montana. Only one case has resulted in a death sentence, in Louisiana. That state’s Supreme Court found the statute constitutional, distinguishing the case from Coker on the grounds that the latter dealt with rape of an adult victim, and sexual assault of a child was a more heinous offense that justified the death penalty. This is a questionable ruling that awaits scrutiny by the federal courts. Generally, and in Texas, capital punishment applies only to murder, and only then when the murder occurs in specific circumstances, such as during the commission of a felony, or when the victim falls into a protected class, such as a peace officer or a child under the age of six. According to testimony in the Criminal Jurisprudence Committee on Riddle’s bill, however, federal law allows the death penalty for treason, espionage, and trafficking in large quantities of drugs.

We cannot know how the Supreme Court will rule. However, testimony in committee by a Fort Worth prosecutor who spoke in support of the bill indicated that the Supreme Court in recent years has been narrowing, rather than expanding, the application of the death penalty. It has held that it may not be applied to offenders under 18 years of age, or to the mentally retarded, or to the mentally ill, or if there are mitigating circumstances. More significantly, the prosecutor testified that the death penalty “really doesn’t help me” for practical reasons. Death penalty cases require a high quality of evidence and the absence of mitigating evidence. They are difficult and expensive to try and may involve years of appeals, and it is much easier to seek a life sentence without parole. “I have tried hundreds of cases,” the prosecutor said, and I can’t think of a case where I would have used it.” A UT law professor testified that the Supreme Court looks for a broad national consensus in death penalty cases, which does not exist at this time in sexual assault cases. Like the prosecutor, the professor did not speak in opposition to the bill.

The bill will surely pass the House on Monday, but only after it has received the scrutiny it should have received in committee. Criminal Jurisprudence has every appearance of being a talent-poor committee. This bill was rushed to the floor. Smithee, Hartnett, et al are going to need to keep a close eye on the committee’s work for the rest of the session.

The motion to postpone consideration of HB 8 seems to be based on the fear that HB 8 may be unconstitutional. The idea is to seek more input from legal experts, particularly prosecutors and defense attorneys.

They want to do this in the “right way, the constitutional way”.

Motion passes 131 – 10. Consideration of HB 8 is postponed till Monday at 3 PM.

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