The South Texas College of Law prof has commentary today at Jurist.com, "The Death Penalty for Child Rape: Why Texas May Help Louisiana."
As posted yesterday, the Texas House of Representatives refused to concur with the Senate version of HB 8 and House members were named for the conference committee that will resolve differences between the House and Senate versions. The Senate has yet to name its conferees, but that could happen today.
Texas is on the cusp of becoming the sixth state to authorize the death penalty for child rape. Both the House and Senate have passed similar bills, and once the legislation is reconciled the Governor will surely sign it. Despite the enormous publicity, one question that remains unanswered is who will benefit from the new Texas statute.
Defense attorneys are certainly not the beneficiaries, as they now have to contend not just with reviled clients but with the added pressure that comes with the possibility of a death sentence. And prosecutors, many of whom opposed the legislation, do not fare much better because it is possible (though disputed) that the availability of the death penalty will decrease reporting in family rape cases and will lead some perpetrators to kill their victims. Nor are the citizens of Texas the winners, because the new law makes death a possibility only for second-time offenders, with first offenders getting minimum sentences of 25 years in prison. Thus, it will likely be decades before the public sees someone sentenced to death (no less executed) for child rape in Texas.
So who really wins from Texas's largely symbolic law (other, of course, than the politicians who enacted it)? The answer may well be the State of Louisiana. Although Texas will become the sixth state to authorize the death penalty for child rape, Louisiana (which, in 1995, became the first state to enact such a statute in modern times) is the only jurisdiction in the country that actually has sent a child rapist to death row.
And:
At the end of the day, the new Texas law probably will not make Texas citizens any safer. It will bring no satisfaction to the vast majority of prosecutors across the state. And it may even raise the risk of homicide for child victims while decreasing the reporting of serious intra-family sex offenses. The benefit of the Texas statute, if there is one, will likely be for the State of Louisiana. Through no action of its own, Louisiana may sees its child rape statute transformed from an unconstitutional outlier to a constitutional model for the rest of the country. And while that may raise serious concerns about the soundness of the Supreme Court’s jurisprudence, it should certainly require Louisiana to say thank you to Texas.
Earlier coverage of Jessica's Law is here. More information on the two versions of HB 8 is here.
One additional note about the Gershowitz commentary. He states that Alabama and Utah are also considering similar legislation with death penalty provisions. It's my understanding that Utah legislators refused to adopt the non-homicidal version. Under legislation passed in March the death penalty is only available in Utah when the child-victim is killed. In Alabama, the legislation is HB 355. It is awaiting consideration in the House Judiciary Committee.
Comments