At Sentencing Law & Policy, Doug Berman has some interesting arguments about making child rape a capital offense. He was replying to a National Law Journal article by Vivian Berger on the Kennedy case (which I recommend checking out). I've disagreed with Berman before about the Louisiana law and I have some differences with him again. Still, after thinking through our differences, I think we aren't that far apart.
To start, Berman raises this point about whether capital punishment would decrease reporting:
... as for the underreporting claim, I share the instinct that making child rape a capital offense could augment the existing problem of underreporting. But do we know this is true? Isn't it possible that all the attention that the Kennedy case is bringing to the issue of child rape might actually lead to increased reporting of this terrible crime. Notably, this research article discussing the underreporting of violent crimes against juveniles urges authorities to take "steps to emphasize the criminal seriousness of such offenses." What emphasizes the seriousness of an offense more than making it potentially subject to the death penalty?
I think the key reason that underreporting might increase is because most defendants are family or friends. Families often struggle with the decision to report child molestation when it is someone close to them. Death would seem to complicate this decision further. This is certainly an empirical question and I wouldn't be surprised if the effect wasn't real. Still, I think it is something to be concerned about.
As to the worry that death penalty procedures will only add to the trauma of the victim, Berman offers these thoughts:
... as to the concern for "youthful witness's trauma," this assumes that most capital child rape charges will go to trial. But I suspect that the majority of capital child rape indictments, just like the majority of capital homicide indictments, will lead to a plea deal to a lesser charge and thereby avoid the need for protracted capital proceedings. As I have suggested in a number of prior posts (see here and here and here), the biggest impact of having the death penalty may be its impact on prosecutorial charging and plea bargaining practices.
I think Berman is quite right on this argument. If a case goes to trial, the trauma on the child will most likely increase. However, the net effect of making death an option is likely to be that fewer cases go to trial. This would tend to decrease overall victim trauma.
In the comments, Berman repeats his concern with the argument that the death penalty will increase the incentive of a molester to kill his or her victim:
But, David, don't most folks dispute that the death penalty deters by saying people who commit terrible crimes do not engage in cost-benefit analysis? Moreover, as I have noted before, any truly "rational" child rapist must know he has a much better chance of escaping conviction altogether on a child rape charge than of escaping a rape+murder charge.
I thought about this a bit more after Berman and I last posted on this issue. I think both us approach the debate from slightly idiosyncratic views about the death penalty. For my part, I'm not convinced on the death penalty deterrence debate either way. I think whether capital punishment deters is an empirical question that we haven't fully resolved. I'm not like the "folks" Berman identifies (and I think he is speaking primarily of death opponents here to clarify against Kent's subsequent response in the comments). As a result, I think there is a reasonable marginal deterrence argument that the death penalty would encourage molesters to kill victims. I believe this because, unlike Berman, most supporters of the Louisiana statute seem to support the law on both deterrence AND retribution grounds. Those supporters can't make a deterrence argument without acknowledging the potential backfire of marginal deterrence incentives created by capital punishment. I think Berman (and he can certainly correct me if I'm wrong) thinks the death penalty for child rape can be supported wholly on non-deterrence (probably retribution) grounds. If that's the case, he doesn't open himself to the same marginal deterrence attack. I think that is reasonable, but like my own views, I think Berman's are idiosyncratic in this larger debate. And as a result, I don't think we are too far apart - one of us just focuses a bit more on deterrence as the central focus of this discussion.
When some is speaking about death penalty for rape, some scenes from "Life of David Gale" movie comes into my mind..
Posted by: rohypnol | January 18, 2008 at 12:00 AM