Loaded Question

Orin Kerr at Volokh Conspiracy asks a very loaded question: Imagine that your state is considering a law to impose the death penalty for the rape of a child. Would you be in favor of or against such a law, as a matter of policy, and what do you think of the law from a Constitutional perspective?

I voted in the second-largest category of respondents -- such a law would be bad policy, but would be Constitutional. The largest category that that it would be Constitutional and good legal policy.

To begin with, understand that lots of states define "child rape" as any sex act with a person under a specific age; often that age is twelve. I understand the desire to both give prosecutors sufficient leverage to seek justice in particular cases and the desire to classify certain kinds of crimes as more heinous than others. Now, statutory rape might sometimes be understood (but not excused) if the defendant mistakes the victim's age. There could be no such possibility of such a doubt with a twelve-year-old. But the phrase "child rape" does not necessarily mean holding a knife to a kid's throat or otherwise using overt violence to perform a sex act with the victim. This obviously doesn't excuse the act, legally or morally, but we should understand what we are dealing with.

Consider the issue of the Constitution first, because that's easier. The Constitution requires that a capital crime be presented to a court only after a grand jury indictment; that due process be given to the accused; that an impartial jury of the same vicinage as the alleged crime be empanelled; that he have a speedy and public trial in which he has the ability to issue subpoenas in his favor; that he not be required to testify against himself; that he have the right to confront witnesses testifying against him; and that if convicted, the punishment not be "cruel and unusual." There are no limitations in the Constitution about the kinds of crimes that can be met with capital punishment.

I don't see anything in the Constitution that specifically states that capital punishment is "cruel and unusual," and indeed Article III, section 3 overtly contemplates capital punishment for the crime of treason. Traditionally, capital punishment has only ever been imposed for murder, but we have executed traitors also. I see no particular reason why a state could not impose this kind of punishment on whatever crime it thought appropriate.

That doesn't mean, though, that it's a good idea. The argument in favor of such a law is that it fits three of the five reasons why we punish people for committing crimes in the first place. Those reasons are:

• General deterrence -- imposing a punishment on a prohibited activity to discourage people from engaging in it.
• Specific deterrence -- removing a particular person from circumstances where he has the opportunity to engage in a prohibited activity.
• Retribution -- exacting revenge on a person for outraging our moral sensibilities by doing a prohibited act; punishment for its own sake.
• Rehabilitation -- placing someone in an environment which will alter his future behavior in such a way that he will not do a prohibited act.
• Welfare of last resort -- taking someone out of a society where he cannot or will not provide for himself so that his minimal survival needs are met in a controlled environment.

The welfare of a child rapist is clearly not a matter of concern to lawmakers contemplating making a crime a capital offense; and obviously killing someone is the opposite of rehabilitating him.

General deterrence, perhaps the most seductive of all the arguments, is in my opinion a chimera. There are powerful psychological forces at play incentivizing this behavior for the perpetrators. Warped and abnormal psychological forces, to be sure, but very powerful ones. Consider some more innocuous behavior -- adult homosexuality. In Saudi Arabia, the crime of sodomy is a capital offense, and there are dozens of highly public and gruesome executions annually for people found guilty of that crime. Yet there is a thriving gay subculture in Saudi Arabia. So even the actual enforcement of draconian laws does not discourage people from committing crimes.

Specific deterrence is perhaps more interesting to consider. Killing someone is an excellent way of ensuring that this person does not commit the crime again. The fear, and it is a significant one, is that a false conviction will yield the death of an actually innocent defendant. False convictions happen, there is little use in denying it. Juries become outraged at the fact that a heinous crime has been committed, and they punish someone who seems to be guilty. Sadly, race sometimes serves as a factor, which only aggravates the issue. These days, advanced forensic science is catching more wrongful convictions, but it's likely that our states have indeed executed innocent people.

And child sex crimes are fraught with evidentiary problems. Children, especially young children, can easily be persuaded to tell adults what they want to hear, and that can include accusing other adults of touching them in inappropriate places or making them do inappropriate things. The kinds of forensic evidence in other kinds of rapes is less likely to be found with child victims because the perpetrators, sadly, are often the caregivers of the child victims, who are in a particularly good position to suppress such evidence.

If the goal of a law criminalizing sex acts with young children is to prevent people from committing those acts after they demonstrate propensity to engage in them, a high conviction rate is what is needed. In a capital case, the need for stringent analysis of evidence is heightened, and as a result, it can be much more difficult for a prosecutor to obtain a conviction that includes the death penalty in such a case. So imposing capital punishment for such an act could easily tend to reduce the number of people correctly convicted of the crime.

Revenge as a justification for punishment of a crime is an unappealing, but undeniable, motivation for much of our criminal law. In many ways, it is the only motivation, since criminals often continue to commit crimes while incarcerated or spend their time of imprisonment learning new and better ways to commit crimes from their fellow prisoners, often by way of joining organizations of other criminals. I can't argue with the ugly emotional desire for revenge; if it were my child I would feel that desire. Hell, it isn't my child and I feel that desire. But life in prison for a child molester is a pretty severe punishment all by itself (especially if his fellow prisoners learn what he has been convicted for), which satisfies my thirst for vengeance on such a criminal.

So while I can see the desire to punish child rapists -- a very serious and morally offensive class of criminal, one that some defense attorneys have a harder time defending than murders -- I don't think that the ostensible goal of such a law would ever be realized. That goal -- the prevention of sex acts on children -- won't happen. There's also the possibility that a criminal would kill his victims after the fact in order to prevent the evidence from being obtained, although such a monster could then be prosecuted for murder and again executed.

And it's just possible that someone might do this thing, get convicted, and then after being paroled go on to live a life free from recidivism. Unlikely, but possible, and there should be the opportunity for a criminal who has served a prison sentence to live his life correctly thereafter. So I think life without parole would be justified for repeat child rapists.