Three items stand out to me after reading today's ruling in Kennedy v. Louisiana. First, as Justice Kennedy noted in his opinion:
“As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim.”
The Texas Legislature, under some pressure from Lt. Gov. Dewhurst, passed a death penalty provision in spite of the testimony of those who know the problem of child abuse best; sex offender treatment counselors, social workers, others who treat victims of sexual abuse, as well as many prosecutors. The language that Justice Kennedy wrote in today's opinion mirrors the testimony of so many of those experts who testified against this provision in the bill at House and Senate committee hearings.
Lt. Gov Dewhurst had made the death penalty provision a centerpiece of his political platform; it was his highest priority in the session. Texans would have been far better served by allowing the committee process to work as it's designed to, without political interference. In the final analysis legislators discarded the testimony of experts from across the state in favor of a political accommodation. Editorial writers across Texas listened to the experts and urged legislators to drop the death penalty provision, but their voices were also lost on legislators.
Second, it's important to note some numbers. The Court gave great reliance upon our evolving standards of decency in today's ruling, and the passage of state legislation is one measure the Court looks to in assessing that standard.
While various versions of the Jessica's Law proposal have passed in 34 states, only four passed a death penalty provision -- all states with active execution chambers. Texas was the last state to adopt the provision; several states looked at the proposal in 2008 legislative sessions and all rejected it. As the Court noted, 45 jurisdictions do not allow execution for child rape of any kind.
(The Louisiana and Montana laws predated the Jessica's Law model. The original Jessica's Law proposal only called for a death penalty when the child-victim was killed. The other states that passed a non-homicidal death penalty were Georgia, Oklahoma, and South Carolina.)
Finally, Justice Kennedy notes:
"There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a 'special risk of wrongful execution' in some cases."
Given Texas' past record of executions in highly questionable cases, as well as capital and non-capital exonerations, our state should be providing heightened screening to prevent wrongful convictions and executions.
I'd point to several specific posts from the 2007 legislative session:
- Adam Gershowitz on Texas Jessica's Law - May 2, 2007
- Jessica's Law in the Senate Criminal Justice Committee - March 13, 2007
- The House Consideration of HB 8 - March 1, 2007
Complete coverage of Texas and other state legislative consideration is in the Jessica's Law index.
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