Saturday, June 10, 2006

...But not if you are from Oklahoma or South Carolina.

Politicians in South Carolina and Oklahoma also made news this week. They became the fourth and fifth states (the first three are Louisiana, Montana and Florida) to pass laws calling for the death penalty for people convicted of certain particularly heinous sex crimes.

OKLAHOMA CITY, Oklahoma (AP) -- Oklahoma on Friday became the fifth state to allow the death penalty for certain sex crimes, although legal scholars questioned the constitutionality of the new state law.

Under the measure signed by Gov. Brad Henry, anyone convicted twice for rape, sodomy or lewd molestation involving children under 14 can face the death penalty.

Right now, there is one person on death row for a sex crime, a man on death row in Louisiana for raping an eight year old girl in 2003.

What could be more pleasing and more just, than to execute child molesters, right? Well, no actually. I know, it's tough to make any argument against doing something to a child molester, but I will make it here.

Begin with the gut reaction. Yes, what child molesters have done is horrible. And we have to protect our children ahead of any other consideration (one reason I recently added the Code Amber Alert ticker at the top of my screen). But is executing them the answer? It is true, after all, that child molesters are that way by nature, and that they can't be truly 'cured,' even if they want to be (there is ample scientific as well as criminal evidence to back that up.) However, let me make some points why executing them is not the answer.

Start with a bald fact that I have to state anyway and which overshadows the rest of the discussion: It won't hold up in court. That is pretty much conceded by nearly all legal scholars. No one has been executed for a crime other than murder in the U.S. since the Rosenbergs were executed for a 1950 conviction for treason, for giving nuclear secrets to the Soviet Union. No one has been executed for a sex crime in the U.S. since the early part of the last century (and then child molestation wasn't even an issue, and the people executed were invariably black men convicted rightly or wrongly or raping white women.) So the courts will virtually certainly strike this down as 'cruel and unusual punishment' not proportional to the crime, and what is really infuriating is that the politicians know it better than anyone, but they are doing this to be popular. It will certainly cost millions in legal fees for their states before the courts throw this one out. Further, the death penalty itself is something of a home for political demogogues; even if every person on death row today were lined up and shot tomorrow morning, it would scarcely make a dent in the prison population, which would be back at today's level within a few weeks.

A second reason this is a bad idea is because of the number of people who have gone to death row for murder but have since been exonerated (I'm not talking about the thousands who have been taken off due to technicalities here either, but of the 123 in 25 states who have been actually exonerated and found to have not committed the crime they went to death row for.) Given the significantly high number of people already sent to death row for murder and who then are exonerated, to expand the number of people without fixing the system first is like discovering you have a natural gas leak and then immediately turning the furnace up.

A third reason this is a bad idea is that given that sexual predators don't seem able to change their sexual orientation, it opens up the door to when anyone with what (who decides?) is an 'abnormal' sexual orientation could face the same thing. I know, someone will say I'm being paranoid, but with people like Michael Savage on the radio publically advocating the death of homosexuals, am I really all that paranoid? What about people who are found guilty of raping an adult? OK, what about people who are found guilty of attempted rape or molestation? OK, what about peole who are found guilty of exposing themselves or flashing other people? What about people found guilty of prostitution (or of soliciting prostitutes, or of pimping?) Not that I would advocate any of these things, but I certainly don't see how the death penalty applies, or where 100% of people would agree to draw the line.

A fourth reason is given in the article:

David Brook, a law professor at Washington and Lee University in Lexington, Virginia, said the measure might actually put a child rape victim's life at risk.

"The last message you want to give an offender who has the life of a child in his hands is you might as well kill the child because he's already got the death penalty," said Brook, who runs the Virginia Capital Case Clearing House, which assists lawyers in death penalty cases. "This is a very stupid message."
Some child molesters already kill their victims in order to minimize their chances of being caught. But most do not. Do we really want to increase the percentage who do kill them? The only way one could argue against this is if you don't believe that the death penalty would ever be a deterrent, and if you believe that, then what exactly is it good for?

'nuff said about that.

So what should we do, given the need to protect our children from these monsters?

I wrote a post about that a few months ago. The main cogent points I made then (and still propose) are:

1. People convicted of child molestation or rape should serve their full term in prison.

2. Ideally, if we are serious about keeping them away from children, we should create an institution (similar to the old mental institutions but more humane) which would offer more freedom than a prison (freedom on the grounds, freedom to have visits from family members regularly, and perhaps some supervised group activities on the outside) but would remain secure (of course, it being better than a prison, prison would still remain as the place to send someone who committed a crime inside.)

3. Until we can implement such a plan, put on tracking devices similar to the one Martha Stewart wore (which of course she never should have had to wear, but it does make sense for sex offenders.)

But one thing we don't need is spineless politicians who give mobs what they want even when they know very well that it won't fly in court, and will accomplish nothing.

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