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Death penalty for sex offenders may be hard sell
Copyright 2007 Houston Chronicle Austin Bureau
DEATH ROW AND CHILD RAPE
• 38: States with death penalty
13: States allowing capital punishment for non-homicide crimes
5: States authorizing death for child rape (Florida, Louisiana, Montana, Oklahoma and South Carolina)
1: Inmate on death row (Louisiana) for child rape
Source: Joanna H. D'Avella, Death Row for Child Rape? Volume 92 , Cornell Law Review, November 2006.
AUSTIN — Rep. Debbie Riddle's declaration that there's a "one in a million" chance her bill expanding the death penalty for repeat child sex offenders is unconstitutional might be optimistic, according to legal scholars and death penalty experts who have reviewed the measure.
They point to previous rulings by the U.S. Supreme Court barring the death penalty for adult rape that does not end a life and banning its use for offenders who are mentally retarded or younger than 18 at the time of the crime.
"One could think rather confidently that this would not be upheld," said Lino Graglia, a constitutional law expert at the University of Texas known for his conservative views, citing precedent on the issue and recent decisions limiting the scope of the death penalty even for convicted killers.
Death penalty experts, moreover, note that of the five states allowing the death penalty for child rape, only one handed that sentence down. And it is the case of pedophile Patrick Kennedy, making its way through Louisiana state courts, that could render the issue moot before Texas ever sends a child rapist to death row.
Yet Gov. Rick Perry, Lt. Gov. David Dewhurst and lawmakers in both chambers are talking tough this spring and rallying around "Jessica's Laws" they say will protect Texas children from the horrible fate of 9-year-old Jessica Lunsford of Florida.
Jessica was kidnapped two years ago from her mobile home, raped and buried alive in a shallow grave. This week, a Florida jury found registered sex offender John Couey guilty of the crime. His sentencing, possibly to death, awaits.
Couey also would be eligible for death in Texas under current law. But Texas legislators have reacted to political pressure over the tragedy by seeking new death penalty laws for repeat sex offenders who target children younger than 14.
The Texas proposal would allow lethal injection for second offenders guilty of crimes ranging from indecency with a child by contact to aggravated sexual assault of a child to burglary or kidnapping with the intent of sexually hurting a child.
"The attorneys we have consulted have said that they believe that this bill is constitutionally sound," Riddle, R-Tomball, said during floor debate.
"They do not believe that the Supreme Court would, under any circumstance, overrule this death penalty part of it," she said.
'Raw politics and emotions'
Heinous crimes like the Lunsford case commonly prompt lawmakers to take dramatic action to expand the death penalty, said University of Texas Law professor Jordan M. Steiker, former law clerk to U.S. Supreme Court Justice Thurgood Marshall and co-director of the law school's Capital Punishment Center."It strikes me that the debate is not being driven by careful concerns about constitutionality but by raw politics and emotions," said Steiker, who personally opposes the death penalty and has represented inmates on death row.
Steiker and fellow UT law professors Robert C. Owen and Graglia share the view that the U.S. Supreme Court is unlikely to expand the death penalty for child rape or other sexual crimes against the young.
"I don't know who is advising them or what their theory is," Graglia said of Texas lawmakers.
"Nobody is asking me about it," he said. "The court has indicated that it will permit capital punishment only for murder."
The Supreme Court held in the 1977 case Coker v. Georgia that the death penalty was disproportionate punishment for the crime of raping a 16-year-old and therefore was unconstitutional.
"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," the court's 7-2 opinion said.
Since the United States reinstituted the death penalty in 1976, no one has been executed for a crime that did not result in death.
Graglia pointed out that in the past few years, the court has also embraced "general academic liberal thought" and narrowed who can be put to death by the state.
In 2002, the court ruled out the death penalty for the mentally retarded and in 2005 for those who killed as minors.
The five states that have approved the death penalty for child rape and states such as Texas, which would also extend it to other child sex crimes, are closely watching Louisiana.
There, Patrick Kennedy is on death row for the rape of an 8-year-old girl. He is the only person in the United States sentenced to death since the Coker decision for a crime other than homicide.
Many legal experts expect Kennedy's case could be the high court test on whether executions should be allowed for those who rape children.
Law professor Adam M. Gershowitz, a capital punishment expert at the South Texas College of Law in Houston, said he's not so sure the Supreme Court will ban the death penalty for child rape.
Despite the court's Coker wording about reserving the death penalty for the taking of life, he said, "they clearly left the door open for the possibility of executing someone for the rape of a nonadult woman, which we assume is a child."
Others have their doubts.
Richard Dieter of the Death Penalty Information Center, which opposes capital punishment, said it would only take five votes to prevent expansion of the death penalty, and four of those appear solid. Plus, he notes Chief Justice John Roberts and Associate Justice Samuel Alito "have a high respect" for precedent.
"I would think that they would say the precedent the court has set here is that the death penalty is allowable for murder," he said. "You make a quantum leap when you start opening the door, as the Texas debate shows."
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