Comments on: Death penalty for child rape challenged

By: Daniel Jackson

Daniel Jackson — Thu, 11 Oct 2007 15:54:25 +0000

Really, Kent? Punishing violent crime by long prison sentence is a “bad idea”? Given that the death penalty can be argued to be barbaric, so we’ll take that out of the equation, what else would you do with violent offenders? I haven’t seen a “differential” incentive yet that makes any sense. Another facet is, of course, that violent offenders need to be removed from society to protect the innocent. While there are rare rehabilitatable exceptions, there’s no better way to remove them yet, in a general sense, than long incarceration or execution.

By: Roger Friedman

Roger Friedman — Mon, 17 Sep 2007 16:09:33 +0000

Perversity of digital systems

By: Kent Scheidegger

Kent Scheidegger — Sun, 16 Sep 2007 00:19:57 +0000

Roger, I waited a day to give you a chance to explain sua sponte, but now I’ll ask. Why did you post the same comment again?

By: Roger Friedman

Roger Friedman — Fri, 14 Sep 2007 16:35:42 +0000

Kent --

I thought that might get a rise out of you. But I didn't think you'd want to join issue over evil. I thought everyone in the legal arena accepted the fact that the lawful/unlawful dimension is not congruent with the good/evil dimension. Even in the penalty phase of a death case, we are looking at a redeemable/irredeemable dimension, or in the commitment phase of a Kansas-style sex offender proceeding, we are looking at a treated/untreatable dimension.

Sex is very powerful juju, it accumulates a lot of social and personal overlays before emergeing as a person's sexuality. Sometimes these overlays are so powerfully twisted that they express themselves as child rape. (Here as in my previous comment I am talking about forcible penile penetration, I am not talking about crimes based on age of consent or some juiced-up definition of sexual conduct.) That this urge can be so powerful as to overcome all conditioning to the contrary indicates to me that the decison over whether to kill the child as well comes from the content of the belief structure rather than any external factor.

So in the spirit of the High Holy Days, let us all atone for our sins, pray to be delivered from evil, and then get on with representing our clients.

By: Kent Scheidegger

Kent Scheidegger — Fri, 14 Sep 2007 16:28:17 +0000

Roger, a single word seems to have sent you off on a tangent. The question was whether people who commit child rape are so far gone mentally as to be undeterrable, i.e., “beyond the realm of logic.” Although a few might be, for the most part, they are not. While a person who would want to do that may have a mental disorder of some kind, it does not follow that he lacks free will and the capacity to refrain. Hence, deterrence remains a valid purpose of punishment.

While “unlawful” and “evil” are not the same, they do have a lot of overlap, particularly in the malum in se crimes that are the main concern of my organization.

By: Roger Friedman

Roger Friedman — Fri, 14 Sep 2007 14:17:31 +0000

Kent --

So in the spirit of the High Holy Days, let us all atone for our sins, pray to be delivered from evil, and then get on with representing our clients.

By: Kent Scheidegger

Kent Scheidegger — Thu, 13 Sep 2007 23:24:57 +0000

No, Roger, many very evil people are quite rational. Peter is correct. Punishing both rape and rape/murder by death is a bad idea, just as punishing them both by a long prison sentence is a bad idea. A differential is needed to provide an incentive not to kill the victim.

The folks at DPIC fully endorse this logic in the first case but deny exactly the same principle in the second case.

By: Dwight Doskey

Dwight Doskey — Thu, 13 Sep 2007 16:17:27 +0000

When we first argued the unconstitutionality of death as a penalty for child rape in 1996 before the Louisiana Supreme Court, our most fervent supporters were children’s rights and women’s rights advocates. They filed amicus briefs asking that the death penalty be held unconstitutional. Given the Louisiana Supreme Court’s prediction in 1996 that our state would lead the nation to a reassessment of the penalty for child rape, it may be significant that most of the other states which have enacted laws allowing the death penalty for child rape allow that penalty only when the defendant previously has been convicted of a similar crime. While I hope the Supreme Court will grant writs and hold the Louisiana law unconstitutional (rape is also defined as including oral sex when the victim is under twelve), I fear that the Court’s comments might leave the laws standing in other states.

By: Roger Friedman

Roger Friedman — Thu, 13 Sep 2007 15:52:10 +0000

If you are raping young children, you are already beyond the realm of logic, nazi or otherwise.

By: logicnazi

logicnazi — Wed, 12 Sep 2007 18:35:21 +0000

Whatever the constitutional status of applying the death penalty for child rape practically it is surely a bad idea.

I mean this makes sure that if you rape a child you have every incentive to kill them and get rid of the evidence so you will be less likely to be caught and if so you can claim it was only murder 2.

–Peter Gerdes

By: Kent Scheidegger

Kent Scheidegger — Wed, 12 Sep 2007 15:40:22 +0000

Andrew, as this is a substantive limitation on the death penalty and not a procedural requirement, the Teague rule would not prevent its being made and applied on habeas corpus. See Penry v. Lynaugh, 492 U.S. 302, 329-330 (1989). Whether this "first exception" to Teague (more recently characterized as a limitation on the scope of the Teague rule) applies to the deference standard of 28 USC 2254(d)(1) remains undetermined. If it does not, then I think the answer to your question would be no. Although the Louisiana Supreme Court's interpretation of Coker differs from Simon's, above, it would be quite a stretch to call that interpretation unreasonable.

By: Simon Dodd

Simon Dodd — Wed, 12 Sep 2007 13:30:11 +0000

I had a post about Coker and its relation to the instant case here back when the LASC decided it, concluding that "[w]hile the Coker plurality may have spoken in terms of an 'adult woman,' the principles enunciated in that case apply with no less force to all rape everywhere, regardless of the characteristics of the victim," that no fewer than three and perhaps as many as eight members of the Coker court so understood the case, and thus "the Supreme Court cannot distinguish Coker in any meaningful sense, and must therefore either reverse the Louisiana Supreme Court, or grasp the nettle and overrule Coker."

By: Andrew Oh-Willeke

Andrew Oh-Willeke — Tue, 11 Sep 2007 20:24:27 +0000

Suppose that SCOTUS denies cert in this case. Would review of these issues be available for collateral attack? It certainly isn’t clear to me that it would be under prevailing habeas law.