Last week, Professor Adam Gershowitz posted at Prawfsblawg about the death penalty for child rape in Texas. This is what he had to say:
As the Houston Chronicle reports here, Texas is poised to become the sixth state to authorize capital punishment for child rape. Given that Texas is, shall we say, fond of the death penalty, this is not a particularly surprising development. However, because the proposed Texas statute is geared toward second-time offenders, it might be decades before anyone is sentenced to death under this new law. So will the new statute be insignificant? I don't think so. In its very confused Eighth Amendment capital jurisprudence, the Supreme Court has looked, inter alia, to the raw number of states authorizing a punishment and whether there is a one-directional trend.
Based on that approach, the Court forbid the death penalty for the mentally retarded and juveniles in large part by head-counting state legislatures and concluding that they were moving in the direction of abolishing those practices. From the perspective of death-penalty abolitionists, the danger of that approach is now becoming evident. If there can be a one-directional trend to limit the death penalty, why can't there also be a one-directional trend toward expanding it? With respect to rape, the Court has forbid capital punishment for those who commit the crime against adults (Coker v. Georgia, 433 U.S. 584 (1977)), but it has never addressed whether the death penalty for child rapists is permissible. To answer the child rape question, the Court will likely turn to national trends again. And by enacting the nation's sixth statute authorizing capital punishment for child rape, Texas is helping to continue a one-directional trend. As I explain in more detail here, the real beneficiary of the proposed Texas statute may actually be Louisiana, which is the only state that has a child rapist on death row. Once the Texas statute is enacted, the likelihood that Louisiana will be permitted to execute that child rapist will rise. In my mind, that raises serious concerns about the soundness of the Supreme Court's Eighth Amendment jurisprudence. In any event though, Louisiana might want to say thank you to Texas.
I'm not sure that Louisiana will thank Texas alone as there are several other states that allow capital punishment for certain child rapes. However, I think the overall focus of the post is right. In Coker, the Court used an odd "legislative bean-counting," technique to determine whether capital punishment for rape was cruel and unusual punishment. It should be noted, though, that the bean-counting was but one factor in Coker and that this Court could abandon the bean-counting methodology all together. In the comments at Prawfsblawg, Professor Orin Kerr writes:
"In my mind, that raises serious concerns about the soundness of the Supreme Court's Eighth Amendment jurisprudence."
Perhaps, but does it raise any serious concerns that aren't also raised when states become more restrictive rather than less? And of course, this assumes that judges really do care about the raw numbers, which seems open to question.
I agree with Kerr's first point that this whole bean-counting idea is troublesome in both directions. I'm not a big fan of the idea that what legislatures are doing on a given day really is an important pivot point in Eighth Amendment cases. This was an especially problematic technique in Coker because most states were in the midst of re-drafting their death penalty statutes after a series of Supreme Court decisions fundamentally altered death penalty law. That many states had not included rape right after a series of landmark decisions was not really indicative of anything about the national norm of the morality of executing rapists.
I'm not sure, however, that I agree with or understand what Kerr is getting at with his second question. It seems to me that in Coker the Court really DID care about raw numbers. But maybe I'm missing his point here.
Recent Comments