Murder one

Melinda Henneberger writes in Slate:

On today's episode of "Hey, a Girl Can Dream", my man Benedict decides that as long as he's in the neighborhood, he should stroll on over to the Supreme Court and spend a couple of minutes protesting the death penalty, by lethal injection or otherwise. The high court is a short walk from the White House, where the president told the pope that Americans "need your message that all of life is sacred.'' And what better way to get that message out?

Maybe Il Papa didn't say anything because he knew the court was discussing capital punishment and child rape, the latter a sore point for the Catholic church. I have to believe ole JP2 would've spoken out, irrespective of the fallout. In a related article, "The Supreme Court jump-starts the machinery of death", Dahlia Lithwick writes:

Fisher says that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it's clear the social consensus is trending away from the death penalty. Then, Roberts jumps in to argue that the "evolving standards of decency" test should not be a one-way ratchet. Does this trend "only work one way?" he asks. "How are you ever supposed to get consensus moving in the opposite direction? … Do 20 states have to get together and do it at the same time?"
[...]
Roberts says the clear trend that matters is not the one Fisher points to but rather that "more and more states are passing statutes imposing the death penalty in situations that do not result in death."
[...]
Roberts continues in this vein: The cases declining to allow capital punishment for minors or the mentally retarded, he says, are "qualitatively different" from the distinction here between child rape and murder, because they focus on the "culpability of the offender" as opposed to the nature of the offense. And Kennedy adds that "even the countries of Europe which have joined the European Convention on human rights" permit the death penalty for treason. He says that on the continent, "You can slaughter your fellow citizens, but if you offend the state, you can be put to death." Then, Scalia asks Fisher if he thinks "treason is worse than child rape." Fisher replies that all the professional sex-assault groups and social workers have lined up against making child rape a capital crime.

Why Kennedy and Scalia decided go down the nonsensical side road of comparing treason with child rape is beyond me. It makes me wonder if it's a gesture of contempt for the plaintiff(and the defense), suggesting their minds were made up. Lithwick's article is 1695 words, and not once does she mention anybody discussing the question of whether or not a mandatory death sentence for child rape makes rapists more likely to kill their victims. My sense is this is in fact the case, and it's a much more important than Scalia's asinine question about child rape and treason.

The court upheld the law regarding lethal injection, and although they discussed allowing child rape to be a capital crime that's not what this past week's decision(Baze v. Rees) was about, at least not principally.

I don't know if the death penalty is wrong in the abstract. Certainly most of the people sentenced to death are probably terrible characters, and there is some evidence it can have a deterrence effect. But I note the series of overturned convictions for capital crimes, and I believe that the death penalty as it's practiced certainly is wrong, and part of that is us. People lie, or hide rather than testify, or forget or conflate or confuse events. Zealous cops and prosecutors make mistakes, evidence gets lost, or even worse, "lost", juries decide based on prejudices, etc. There's no reason to believe that putting together some blue-ribbon panel of experts to "fix" the death penalty will fix human nature. The Dallas Morning News says that there have been 16 overturned cases in Dallas county alone :

The disturbing spate of DNA exonerations of Texas inmates is the most powerful argument for freezing Texas' machinery of death. Dallas County has the distinction of having more discredited cases than any county nationwide. Just this week, a 16th wrongful conviction was announced here. Thomas Clifford McGowan Jr. spent 23 years imprisoned by the state stemming from a rape in Richardson that he didn't commit.

How many people have been wrongly executed without getting that review of evidence after 6 or 10 or 17 years? We'll never know, but we can be pretty sure the number isn't zero.



The same problems exist with child rape convictions, although possibly to a lesser degree. But for a different practical reason, executing child rapists is a terrible idea. I'm flabbergasted that so many people think of it in terms of vengeance and don't seem to be concerned that a child rapist, having raped his victim and knowing he's liable to be executed if he's caught even if he lets her live, now has the perverse incentive to kill his victim and dispose of her to make sure she never talks. When the law encourages this, the law acts to protect the righteousness of the uninvolved.

Why don't people think about this? Do they see it as an irrelevant question?


see also Reuters: "The death penalty in the United States" and

Wall St. Journal Lawblog:"should the death penalty extend to non-homicides?"
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