azathoth777
10-07-2006, 02:06 PM
Lt. Gov. David Dewhurst's Tuesday announcement of a proposal to add the death penalty as a sentencing option for repeat child sex offenders no doubt appeals to many Texans on an emotional level. The very idea of an adult preying on a child should evoke not only righteous anger but legislation that will attempt to prevent it from happening and will severely penalize those who are caught after the fact.
But Dewhurst's timing smacks of outright political pandering, and his proposal is troubling on several levels.
It is, quite possibly, unconstitutional.
The U.S. Supreme Court historically has weighed the proportionality of the sentence when it comes to the use of the death penalty. The punishment must fit the crime.
Justice Byron White, writing the court's opinion in Coker vs. Georgia, which rejected the death penalty for the rape of an adult woman, articulated the concern about the disproportionate use of capital punishment.
"Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life," White wrote in the 1977 decision. "Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' is an excessive penalty for the rapist who, as such, does not take human life."
Granted, state legislatures and even Congress have established harsher penalties for some crimes against children. That doesn't remove the question of whether that should be done with this category of crime.
Is the rape of a child depraved enough in society's mind to warrant the death penalty? If you're that child's parents, probably so. But as a general proposition, do Americans want to expand the use of capital punishment? As a society, do we believe that the problem of sex offenders can be eliminated by killing them off?
What about crimes against the elderly? Should the sexual offense of someone equally as vulnerable as a child also be subject to the death penalty?
It is difficult to dismiss the concerns of those who say that this proposal, if enacted into law, takes away the disincentive for the offender not to kill the victim and eliminate the main witness to the crime.
And would this proposal deter witnesses from stepping forward to report a family member who may be a repeat offender? It's hard enough to get relatives to report these crimes now, no matter how awful.
Should the Legislature commit more funds to prosecute those involved in crimes against children? Sure. Should the Texas attorney general's office aggressively go after cyberspace prowlers who contact potential underage victims over the Internet? Absolutely.
What Texas doesn't need is an expansion of capital punishment to cases that do not involve the death of another human being.
The nation's highest court also considers evolving standards of decency when it comes to determining whether a particular use of capital punishment is constitutional. The justices look to how many states have gone one way or the other on the use of capital punishment. Witness Atkins vs. Virginia, which exempted the execution of the mentally retarded, and Roper vs. Simmons, which removed the death penalty from cases in which a juvenile committed the murder.
Evolving standards of decency are not the only consideration in deciding such cases for the Supreme Court, but they do constitute one criterion. Thus far, only a few states have extended the death penalty to those who rape children.
Dewhurst apparently wants to start changing that balance. Even if it were to turn out to be constitutional, that doesn't make it good policy.
But Dewhurst's timing smacks of outright political pandering, and his proposal is troubling on several levels.
It is, quite possibly, unconstitutional.
The U.S. Supreme Court historically has weighed the proportionality of the sentence when it comes to the use of the death penalty. The punishment must fit the crime.
Justice Byron White, writing the court's opinion in Coker vs. Georgia, which rejected the death penalty for the rape of an adult woman, articulated the concern about the disproportionate use of capital punishment.
"Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life," White wrote in the 1977 decision. "Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' is an excessive penalty for the rapist who, as such, does not take human life."
Granted, state legislatures and even Congress have established harsher penalties for some crimes against children. That doesn't remove the question of whether that should be done with this category of crime.
Is the rape of a child depraved enough in society's mind to warrant the death penalty? If you're that child's parents, probably so. But as a general proposition, do Americans want to expand the use of capital punishment? As a society, do we believe that the problem of sex offenders can be eliminated by killing them off?
What about crimes against the elderly? Should the sexual offense of someone equally as vulnerable as a child also be subject to the death penalty?
It is difficult to dismiss the concerns of those who say that this proposal, if enacted into law, takes away the disincentive for the offender not to kill the victim and eliminate the main witness to the crime.
And would this proposal deter witnesses from stepping forward to report a family member who may be a repeat offender? It's hard enough to get relatives to report these crimes now, no matter how awful.
Should the Legislature commit more funds to prosecute those involved in crimes against children? Sure. Should the Texas attorney general's office aggressively go after cyberspace prowlers who contact potential underage victims over the Internet? Absolutely.
What Texas doesn't need is an expansion of capital punishment to cases that do not involve the death of another human being.
The nation's highest court also considers evolving standards of decency when it comes to determining whether a particular use of capital punishment is constitutional. The justices look to how many states have gone one way or the other on the use of capital punishment. Witness Atkins vs. Virginia, which exempted the execution of the mentally retarded, and Roper vs. Simmons, which removed the death penalty from cases in which a juvenile committed the murder.
Evolving standards of decency are not the only consideration in deciding such cases for the Supreme Court, but they do constitute one criterion. Thus far, only a few states have extended the death penalty to those who rape children.
Dewhurst apparently wants to start changing that balance. Even if it were to turn out to be constitutional, that doesn't make it good policy.