Over at Grits for Breakfast, there is a post about the discussion in Texas about whether to apply the death penalty to child molesters. I wrote an article on the subject a couple years ago in response to the effort of Louisiana and other states to apply capital punishment to aggravated molestation cases. Thus far,
though, no one has been sentenced to death under these statutes in the United States one person has been sentenced to death in Louisiana under the statute (thanks to karl at capitaldefenseweekly.com for the correction). According to my last count, six states had these laws. I had many arguments against the application of the death penalty in child molestation cases. My main policy objections were:
1) By decreasing the difference in punishment between killing a child and molesting a child, the government creates an incentive for the criminal to kill the victim. If murder is a "freebie" in terms of assuming the risk of greater punishment, then the marginal deterrence incentive is to kill the victim if there is a risk of discovery. This is especially true in the context of child molestation cases because those crimes usually only have one witness: the victim. Being able to kill the only witness to a crime is not normally something the government wants to encourage. This is a primary reason the death penalty is no longer applied to kidnapping.
2) The death penalty is likely to further decrease the reporting of an already underreported crime. Since most molesters are family members or friends, a lot of molestation cases get swept under the rug. If "Uncle Frank's" life is in jeopardy by reporting what he did, the incentive to not report is increased.
3) There is some evidence that applying the death penalty to non-homicide crimes increases the jury incentive not to convict. If that evidence applies in the child molestation case, you could expect an increase in not guilty verdicts.
4) It may be unconstitutional. The U.S. Supreme Court, in Coker v. Georgia, held that the death penalty as applied to a rape was an 8th Amendment violation. The case was about the rape of an adult woman. For that reason, the Louisiana Supreme Court, in State v. Wilson, distinguished that state's statute applying to child molestation cases. There are reasons to think that distinction won't be supported if a child molestation statute reached the federal level of judicial review.
My article also spends a lot of time examining the rhetoric underlying capital rape and child molestation statutes. Often these laws are supported with the Victorian notion that a person is "better dead than raped." This rhetoric carries a lot of baggage that I think problematizes these statutes even more.