I 've blogged about this issue a few times before and made my views pretty clear that I think making child rape a capital crime is a pretty bad idea. At Sentencing Law & Policy, Professor Berman floats two possible ideas for supporting capital punishment in at least some child rape cases. Here is what he had to say:
Here are some initial ruminations:
1. Symbolic value: As regular readers know, almost no murderers get executed outside Texas anymore, and so the odds than many (or even any) repeat child rapists will be executed seems small. But what seems potentially large is the symbolic (and psychic?) benefits that legislators, victims, and general citizens might draw from making the symbolic statement that some cases of repeat child rape can be as horrible as some murders. (I mean here to suggest a value that is beyond the (possible? unlikely?) tangible deterrence benefits that might come from being able to tell first-time child rapists that their next offense could lead to a death sentence).
2. Practical value: Especially because few death sentences lead to executions and even fewer capital indictments lead to a death sentence, I have long believed the real practical consequence of the death penalty is to induce pleas and cooperation. (I am not saying this is the primary or even a proper reason for having the death penalty, but I think it is accurate to say that the Green River Killer and the Unibomber and many others have been been brought to justice more easily because of the threat of the death penalty.) Because child rape cases can be notorious hard to prosecute sometimes, perhaps the possibility of a death sentence for repeat child rapists could have a real practical benefit in inducing valuable pleas and cooperation.
As suggested above, these are just ruminations. But I would be interested in reactions (particularly from folks not categorically opposed to the death penalty).
My own views on the death penalty are not fully in the "categorically opposed" camp as I do think with a better functioning criminal justice system, there are at least some cases that might warrant the death penalty (ie killing a prison guard when you already have a life sentence). However, given the current state of our justice system, I'm pretty close to "categorically opposed." My reasons, however, are mostly utilitarian and symbolic and not based upon some moral absolute. With that being said, I think Berman's points are not persuasive reasons to support capital child rape statutes.
First, Berman raises the "symbol" argument. As I think he quickly realizes, this is very similar to a deterrence argument, but he is trying to emphasize something other than the strict probability/severity calculation usually associated with deterrence. However, I'm not sure which audiences for this symbol on which Berman is focused (he names a few). Certainly, the symbolic effect can "cut both ways" depending upon who the message is sent to. If the audience is families of victims, that can be problematic in most molestation cases. Since most molesters are not strangers, and are often members of the family, the threat of the death penalty can be a "symbol" which discourages families from reporting the crime. It is already hard enough for families to report Uncle Fred (as the statistics show), but if death is a possible consequence, the incentives against reporting are even higher.
If the intended audience is the victim, there are other signals which are problematic. I have argued that elevating non-homicide crimes to capital offenses creates an equivocation between murder and the non-homicide crime. This symbol actually tells victims that they have experienced something worse than death (or at least as bad as death). In such cases, the message to the victim can be that there is no point in living. It also tells the potential victim that they should fight to their dying breath. And if they don't fight back hard enough, it increases the incredible guilt already experienced by most victims who survive their attacks. I based these conclusions upon reviewing the media accounts, statements of legislators, and opinions of judges discussing capital rape statutes.
If the audience is the would-be-attacker, then the message received is that they should kill their victim (since they won't risk a higher level of punishment). Since molestations are most often one-witness crimes, killing the only witness can be a powerful temptation and the application of the death penalty can only increase that risk.
I think the "symbol" argument ultimately supports the arguments against capital rape statutes more than supports it.
The "practical" argument that Berman advances is not one I have addressed before. I think it is an interesting dynamic that certainly plays out in many criminal cases. Certainly, the threat of the death penalty can help induce pleas. And if we accept the premise that child rape cases are very hard to prosecute, the death penalty can be a net positive for justice (although it might catch a few innocent defendants who plea just to avoid the death penalty). I think this argument theoretically has merit, but I have no idea of its empirical support.
However, I think the "practical" plea agreement argument is overwhelmed by the negative effects of capital rape statutes (most of which are described in the "symbol" argument section). Increasing the risks that victims will be killed is usually the argument people can most easily appreciate, but I think the other symbolic arguments are also powerful points as well.
Child rape is always a horrible crime and there are many times the acts are so horrible that the crimes appear to be the worst imaginable. However, I remain convinced that applying the death penalty is not the best way to deal with those crimes.
Edit: Professor Berman has replied to my response in his original post. I have continued the growing debate in the comments at SL&P.