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Court considers constitutionality of death penalty for child rape
Apr. 17, 2008
Brendan McKenna - The Dallas Morning NewsIssue date: 4/17/08 Section: MCT News
WASHINGTON _ States need to be able to use the death penalty to punish and deter offenders from committing crimes as heinous as repeat child sex assault, even when the victim isn't killed, a top Texas legal official told the Supreme Court on Wednesday.
"In modern times, we're seeing crimes that 20, 30, 40 years ago, people wouldn't imagine," said Ted Cruz, the state's solicitor general. "We're seeing predators that seek out young children and do unspeakable things to them. And that's why legislatures are acting."
The court was hearing arguments on whether it's constitutional to execute the man convicted of one such "unspeakable" crime, Patrick Kennedy of Louisiana, who was convicted of raping his 8-year-old stepdaughter.
The ruling could call into question Texas' version of "Jessica's Law" which allows the execution of certain repeat child sex offenders.
Several sexual assault victims' advocacy groups, including the Texas Association Against Sexual Assault, argued that the Supreme Court shouldn't allow the death penalty for rape of children if the victim isn't killed. The court ruled in 1977 that for adults the death penalty is unconstitutional, even in aggravated cases.
The victims' groups believe that some child sex offenders could use the threat of the death penalty to pressure victims into not reporting their abuse. In other cases, the fact that the penalties are equal could lead sex offenders to kill victims to prevent them from testifying, some victims' advocates fear.
When asked to address those points by Justice Stephen Breyer, Cruz said the courts shouldn't be the ones to decide that "difficult policy question."
"(We) are not here advocating that _ that capital punishment for child rape is or isn't a terrific idea," he said. "What we are advocating is that there is an evolving understanding of the enormous, unique, irreparable harms to children, and it's elected legislatures that can sit and listen to those advocates from the groups, listen to the empirical data, consider the deterrence effect _ consider all of these and decide one way or the other."
Even if the Court strikes down the Louisiana law, Texas' version, enacted last year, may survive because it more narrowly restricts who can be executed for raping a child.
Justice Anthony Kennedy alluded to that possibility when he asked Cruz how he would draft a law to allow the death penalty in certain cases.
Cruz suggested states could apply the death penalty only for those with prior convictions, only in "especially heinous or vile rapes," or only in cases with multiple victims.
"Some of the worst of these child rapists rape more than one child," he said.
Cruz also took issue with a filing by British legal scholars arguing that under the principles of international law, "nations may not extend the death penalty to crimes to which it did not previously apply."
"Ultimately the Constitution and the people of this country determine what is permissible and what is lawful," Cruz said.
"In modern times, we're seeing crimes that 20, 30, 40 years ago, people wouldn't imagine," said Ted Cruz, the state's solicitor general. "We're seeing predators that seek out young children and do unspeakable things to them. And that's why legislatures are acting."
The court was hearing arguments on whether it's constitutional to execute the man convicted of one such "unspeakable" crime, Patrick Kennedy of Louisiana, who was convicted of raping his 8-year-old stepdaughter.
The ruling could call into question Texas' version of "Jessica's Law" which allows the execution of certain repeat child sex offenders.
Several sexual assault victims' advocacy groups, including the Texas Association Against Sexual Assault, argued that the Supreme Court shouldn't allow the death penalty for rape of children if the victim isn't killed. The court ruled in 1977 that for adults the death penalty is unconstitutional, even in aggravated cases.
The victims' groups believe that some child sex offenders could use the threat of the death penalty to pressure victims into not reporting their abuse. In other cases, the fact that the penalties are equal could lead sex offenders to kill victims to prevent them from testifying, some victims' advocates fear.
When asked to address those points by Justice Stephen Breyer, Cruz said the courts shouldn't be the ones to decide that "difficult policy question."
"(We) are not here advocating that _ that capital punishment for child rape is or isn't a terrific idea," he said. "What we are advocating is that there is an evolving understanding of the enormous, unique, irreparable harms to children, and it's elected legislatures that can sit and listen to those advocates from the groups, listen to the empirical data, consider the deterrence effect _ consider all of these and decide one way or the other."
Even if the Court strikes down the Louisiana law, Texas' version, enacted last year, may survive because it more narrowly restricts who can be executed for raping a child.
Justice Anthony Kennedy alluded to that possibility when he asked Cruz how he would draft a law to allow the death penalty in certain cases.
Cruz suggested states could apply the death penalty only for those with prior convictions, only in "especially heinous or vile rapes," or only in cases with multiple victims.
"Some of the worst of these child rapists rape more than one child," he said.
Cruz also took issue with a filing by British legal scholars arguing that under the principles of international law, "nations may not extend the death penalty to crimes to which it did not previously apply."
"Ultimately the Constitution and the people of this country determine what is permissible and what is lawful," Cruz said.
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