Executing Rapists? As Much as it Pains Me, I Have to Vote No.

A piece of human trash named Patrick Kennedy was sentenced to death in Louisiana for the extremely brutal rape of his 8-year-old stepdaughter, pursuant to a Louisiana statute permitting the death penalty in cases where the victim is under 12 years of age.  The U.S. Supreme Court in 1977 banned the death penalty in rape cases, on the grounds that it violates the 8th Amendment (i.e., it’s “cruel and unusual”).  Last month, however, the Louisiana Supreme Court upheld Kennedy’s death sentence because the U.S. Supreme Court restricted its ruling to cases with adult victims.

First of all, the 8th Amendment should not present an obstacle to the execution of a child rapist.  The Supreme Court’s “evolving standards of decency” test is nothing but another tool for activist judges to reject social policies they find distasteful, and I fail to see how it is “cruel and unusual” to exterminate someone who purposely destroys the body, mind, and soul of a child for their own evil gratification.

That is, as long as you’re 100% positive the person is guilty.  But 100% certainty is far from the standard prosecutors have to hit in order to convict someone of rape, and therein lies the problem.  The burden of proof, as I’m sure you’re all aware, is “proof beyond a reasonable doubt” as subjectively determined by a jury (a jury finding must be radically irrational and unfounded to be overturned, and it rarely, rarely happens).  And as much as we would all prefer to think that justice is blind and accurate, it is not.  For that reason, I strongly oppose the imposition of the death penalty for child rape, at least under the existing burden of proof.

Some crimes are by their very nature highly inflammatory, and the rape of a child certainly qualifies.  I think there is something wrong with a person, let alone a jury, who does not want to impose the harshest penalty at their disposal for such a crime.  But aside from the completely justified desire to make the punishment fit the crime, there’s still the matter of whether or not the person on trial actually did it.  And in the case of rape, we know for a fact—that is, with 100% certainty—that many people have been imprisoned and even condemned to death for crimes they flat-out did not commit in any way, shape, or form.  The majority of those cases were rape cases.  As of today, right now at this very second, we know that an innocent person can be convicted of rape, even murder, with frightening ease and the scantiest of evidence, in states across the nation (vs. just one rogue state).  My question is, in light of this knowledge, can we say that the “beyond a reasonable doubt” standard provides sufficient Due Process under the Constitution for depriving someone of his or her life?

Of course, the Constitution cannot be read to guarantee a correct result for each individual defendant.  But when all the Constitutional requirements are met for a fair trial (speedy trial, representation, no self-incrimination, etc.), yet those substantial safeguards are so easily rendered meaningless by police or prosecutorial misconduct, jury bias, or flawed/missing/inadequate evidence, has Due Process really been provided?  After all, the weighing of evidence under a clearly defined burden of proof is part of the procedural fairness guaranteed by the Due Process Clause of the 14th Amendment.

There are cases where we can be certain of a defendant’s guilt; for example, John Wayne Gacy, who had over 30 bodies buried under his house.  Or Derrick Todd Lee, the Baton Rouge serial killer whose DNA was found deep in the horribly broken bodies of his victims.  Or even Patrick Kennedy.  But those cases are not the norm.  The problem comes when the laws and standards allowing us to gas the obviously guilty also catch completely innocent people in the net on a regular basis.  I’m not comfortable executing one innocent person (like my friend Kirk Bloodsworth) in order to feel the satisfaction of seeing a Ted Bundy or a Patrick Kennedy ride the lightning.

I can certainly understand why the loved ones of a murder or rape victim would disagree with me.  If it were my loved one, I freely admit that I would be out for blood and damn the consequences to anyone else.  But the law must not be based on personal motivations.  The Constitution must not be bent merely to assuage the grief of individuals, no matter how justified that grief is; no matter how deep and understandable our desire to see someone pay.  My opinion is that if we know—as we do—that the procedural safeguards in our system today do not protect innocent people from being convicted of the most heinous crimes in society, we should not be executing people for those crimes because there is a priori no Due Process sufficient for the State to take a citizen’s life.  And if we don’t do it for murder, we sure as heck shouldn’t do it for rape.

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~ by lewdandlascivious on June 4, 2007.

2 Responses to “Executing Rapists? As Much as it Pains Me, I Have to Vote No.”

  1. Oddly, I vote the opposite way: I have no problem with the death penalty for child rape, because it’s nearly impossible to be falsely accused. Mitt Romney tried to reinstate the death penalty in Massachusetts. One aspect of it was DNA evidence: a jury and a judge could convict of first degree murder without DNA, but if you want to give them the death penalty, DNA is needed.

    If Louisiana would have such a requirement, I would be 100% behind them. Statutory rape is a strict liability crime. Not to be crude, but if your semen is found inside of an eleven-year-old girl, you’re committed statutory rape.

    OTOH, murder requires a mens rea to be capital (or other issues, such as felony murder or multiple counts of murder). It is impossible to probe the brains of people (therefore, error) and is certainly difficult to determine if the person committed the murder. (With rape, the question is consent: there’s almost always DNA.)

  2. Theo, my overall position is against the death penalty because of the unreliability of the system–from the starting point (cops) to the trial (prosecutors and evidence issues). I’ve always said, if you could be 100% sure of guilt, go ahead and execute ’em. I just happen to think that will not happen, and I’m not willing to break the eggs in order to make a serial killer omelette.

    In other words, the actual innocence issue is my only reservation with the death penalty–but it’s a big one. Like you, if there was a heightened burden of proof for child rape, i.e. strict DNA standards with failsafes, very regulated and foolproof, I would support Lousiana’s statute. But we’re a long way from that.

    Contrary to your position, it is not “nearly impossible” to be falsely accused of child rape. For one thing, rape is not always defined as penile penetration with seminal discharge, and far more sexual assaults on children involve other types of penetration or physical contact. This leaves the proof at trial to mainly testimony, and the testimony of children is notoriously vulnerable to manipulation.

    More generally, people get convicted of rape all the time without DNA evidence, and consent is not always the evidentiary battleground: with stranger rape, the issue is “did the defendant do it or not.” DNA is often not available for a variety of reasons: the rapist wore a condom, the victim waited too long before reporting the rape, the evidence was lost or compromised (which can happen in a lot of ways), the accused was a “friend” of the victim and his DNA is hopelessly mixed with that of other “contributors”, etc. Life ain’t CSI: DNA is the dream of prosecutors, but most cases are not slam-dunk. It is VERY possible, even after the “DNA revolution,” to be convicted of rape falsely–even child rape.

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