The Class of Death Eligible Defendants Under Kennedy Statute

Doug Berman is wondering about the sheer number of defendants who would be eligible if the Louisiana statute were implemented nationally:

The page got me to thinking about whether there is any good empiricism on the number and type of child rape offenses in the US.  A hasty on-line search led me to these less-than-perfect data sources:

    * This BJS publication, titled "Child Rape Victims, 1992," which provides a data "on the ages of female rape victims" obtained from only 15 States based on reports to police in 1992.

    * This article from the Juvenile Justice Bulletin, titled "Explanations for the Decline in Child Sexual Abuse Cases," which only discusses trends and does not focus only on rape.

    * This fact sheet on child sexual assault from the Crimes Against Children Research Center.

I raise this data issue because the non-homicide crime which got Patrick Kennedy placed on death row ought to be placed in some broader context.  As I have said this prior post, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Kennedy is one of the very few persons sentenced to death for a non-homicide offense.  This reality is even more troubling if, as I suspect, data reveal that there are ten of thousands of crimes each year similar to the one that got Patrick Kennedy sentenced to death.

This brings up one of the biggest problems with the Louisiana statute.  The statute makes child rape a death eligible crime if there are certain aggravating factors.  However, one of those aggravating factors is that the child be under the age of 12.  Without any other aggravating factor, that makes a lot of defendants eligible for the death penalty in the state.  Other states that have implemented similar laws have required an age limitation plus another aggravating factor.  This limits the population of death-eligible defendants more substantially than does the Louisiana statute.

With that being said, Berman's larger concern is about how many people would be covered by a Louisiana-type statute.  The number is certainly large, but like Berman, I don't have an exact number.  This DOJ study from 12 states provides a pretty good discussion of the FBI reporting numbers and distribution of the age of child molestation victims.  I'm not sure if there are tens of thousands a year that are tried and convicted, but ten thousand doesn't strike me as an unreasonable number.  There are certainly many more if we count the unreported molestations (since molestation is among the most underreported of all crimes).  Regardless of the exact numbers (and I'll do more digging after my 2 PM class), if the USSC upholds the Louisiana statute, the number of death eligible defendants in the US may skyrocket.

Update: Based upon the review of this older, more comprehensive examination of FBI reporting numbers, it looks to me that in 1995 (a down year for sexual violence reporting) there were about 5,200 arrests for rapes were the victims were under 12.  I'm not sure how many of those arrests resulted in convictions.  As a result, even my assessment of 10,000 a year is a little high.  As the study notes, 1995 was a particularly low year, but it gives us a pretty good indication of the general number we are looking out for potentially death eligible defendants.