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.”

From Paul Burka at Texas Monthly

I thought I’d share with readers some of the talk I picked up in the Capitol today:

* 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.

Also from Paul Burka at Texas Monthly

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.

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