The StandDown Texas Project

A Jessica's Law in Mississippi

The Jackson Clarion Ledger reports, "Bill permits death for rape."

The state could seek the death penalty for any person convicted of raping or sexually battering a child under the age of 12, under a bill that cleared the Senate floor Wednesday.

Senate Bill 2596 passed without objection or debate, with supporters saying it could help stop a heinous sex crime from happening.

"There are two reasons this is a good piece of legislation," said Sen. Chris McDaniel, R-Ellisville, who handled the legislation on the Senate floor. "One of them obviously is retribution. The other is simply that this could be a deterrence."

The bill now moves to the House for consideration. A case in Louisiana dealing with the issue is pending before the U.S. Supreme Court.

But some children's rights advocates say although adding the enhanced penalty is appropriate, it could cause problems in prosecuting the cases.

The Senate legislation would change the law to include the death penalty as punishment if the suspect is older than 21 years of age and the victim under 12 years of age.

Under current Mississippi statute, the maximum penalty is imprisonment for life.

And:

Cathy Dixon of the Mississippi Children's Advocacy Center said the center hears up to 600 allegations of child abuse every year.

"That's just in the tri-county area," said Dixon, clinical director for the nonprofit agency that helps coordinate with law enforcement to do forensic interviews in child abuse cases. "And I'm quite sure we don't see all of them."

But, she cautioned, including the death penalty as punishment could make it more difficult to prosecute the cases that do make it to the courtroom.

"First of all, there is this general tendency not to believe children," Dixon said.

"Then, add to that the fact that a lot of district attorneys don't have the resources to effectively prosecute."

The better route for the Legislature would be to dedicate more money for district attorneys and training for law enforcement, she said.

The Jessica's Law index is here.

A Jessica's Law Proposal in Colorado

Vincent Carroll, the editorial page editor of the Rocky Mountain News has a column, "Death penalty folly."

Under the principle, "One unenforced law deserves another," Republican state Sen. Steve Ward is sponsoring a bill to extend the death penalty in Colorado to those who brutally rape children 12 and younger.

Although the Colorado legal system can't seem to impose the death penalty on the most savage murderers, even those who torture their victims first, soon we'll be expected to believe that the most savage rapists will face execution.

An interesting theory, but I'm not buying it.

In the past 41 years, a grand total of one person has been executed in Colorado - and not a single one in this century. Lawmakers might believe we have capital punishment, but juries, prosecutors and judges have overruled them. We don't.

Yet the fantasy must be very important. Why else would Coloradans insist on wasting vast amounts of money pursuing capital cases and their appeals, not to mention hiring the public defenders and experts needed for a competent defense?

We do this, moreover, despite the tiny but real risk that someday, someone will be sent to death row who doesn't actually belong there, much as Tim Masters was sentenced to life in prison in 1999 for a Fort Collins murder and wasn't exonerated until this year.

Colorado's death penalty statute should be repealed, not larded with another provision that will be a dead letter from the moment it appears on the books.

The Jessica's Law index is here.

Legislation in Alabama

AL.com carries the AP dispatch, "Alabama senator to try death penalty moratorium for 8th time."  The legislator is Senator Hank Sanders.

The Selma Democrat announced Tuesday that when the Legislature convenes Feb. 5, he will again sponsor legislation to place a three-year moratorium on executions in Alabama.

Legislative records show Sanders has been introducing the moratorium bill annually since at least 2001, but it has never been approved by the Senate, much less the House.

Sanders was joined at a windy outdoor news conference Tuesday by supporters of his bill. Judy Cumbee, first vice president of the Alabama New South Coalition, said the wind was symbolic.

"These are winds of change," she said as she brushed her hair out of her face.

Cumbee, Sanders and others said there is growing concern in Alabama about the fairness of the death penalty, and that is causing more people to support a moratorium while officials look at how the law is administered.

And:

Sanders' moratorium bill would do more than impose a three-year ban. It would also require changes in the way attorneys are appointed to represent indigent clients and would implement U.S. Supreme Court rulings against executing anyone who was mentally retarded or under 18 years old when their crime occurred.

The Anniston Star carries, "Alabama's legislative session: Our delegations priorities."  State Representative Randy Wood (R-Anniston) announced that he will sponsor what appears to be a bill allowing th edeath penalty for non-homicidal child rape.

A second bill will give judges and district attorneys the option of seeking the death penalty in severe sexual-abuse cases involving children. It is a proven fact that sexual predators cannot be rehabilitated.

Similar legislation failed in last year's Alabama legislative session.

Jessica's Law in California

Last night's News Hour on PBS had a report by Jeffrey Kaye, "Laws Restricting Lives of Sex Offenders Raise Constitutional Questions."

JEFFREY KAYE: It's no surprise that sex offenders are critical of Jessica's Law, but so, too, are many police officials and victims' rights advocates.

SUZANNE BROWN-MCBRIDE, California Sex Offender Management Board: I can tell you that it hasn't resolved the sex offender problem in California.

JEFFREY KAYE: Suzanne Brown-McBride is executive director of the California Coalition Against Sexual Assault, as well as the chairperson of the state board that shapes sex offender policies in California. She fears residency restrictions are backfiring and driving sex offenders off the radar screen.

SUZANNE BROWN-MCBRIDE: So you go from a place where you have an offender where you know where they live, you know where they're sleeping, you can check up on them and monitor them, to they're transient and you have only really a guess of where they're at, that they may be down at some different part of the city, they may be down in an alley somewhere.

So you go from a known quantity to, quite honestly, a fairly unknown one.

JEFFREY KAYE: That was the experience in Iowa, according to Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault. She says that, after Iowa passed its version of Jessica's Law in 2005, many sex offenders disappeared from the system.

ELIZABETH BARNHILL, Iowa Coalition Against Sexual Assault: We found they were living in very unstable situations. So at one point when I reviewed our sex offender registry, I found things like, "I am living in an old truck parked at the abandoned K-Mart." "I'm living in a truck down by the river." "I'm living in the QuikTrip when everybody leaves for the night."

So we know that those are very unstable conditions. And we know that there is a relationship between unstable living conditions and re-offending.

When California voters approved a version of Jessica's Law in November 2006, it did not contain a death penalty provision. 

The JML Foundation says that 33 states have passed some form of Jessica's Law.  Only those in Florida, Oklahoma, South Carolina, and Texas contain a possible death penalty for non-homicidal child rape.  Louisiana and Montana have similar provisions that pre-date the Jessica's Law proposals.  The Supreme Court has agreed to examine the death penalty for non-homicidal child rape through the case of Kennedy v. Louisiana. In addition to Patrick Kennedy, a second man in Louisiana is now on death row for child rape, as noted in this post last month.  The Jessica's Law index is here.

High Court Divide Threatens to Deepen

That's the title of a fascinating article in today's USA Today by Supreme Court reporter Joan Biskupic.  LINK

The Supreme Court began its current term in October with a high-profile caseload certain to help reveal the direction of the emerging Roberts Court. Then it took a raft of new cases and ramped up the intensity.

The justices, who are likely to finish accepting appeals for the 2007-08 session today, have the potential for another riveting term.

From gun rights to voter-identification laws to the death penalty, the cases are destined to play into election year politics and test this ideologically divided bench. Early signals suggest that divisions among the nine could be deepening and that the tensions seen at the end of last term may flare again.

During arguments last week on the nation's strictest voter ID law, liberal-leaning Justice David Souter abandoned his usual Yankee reticence and became downright angry when more conservative justices suggested they might choke off a whole class of voter lawsuits. The question is whether groups — here the Indiana Democratic Party and American Civil Liberties Union — can broadly attack an allegedly discriminatory law before it takes effect, without waiting until individuals have been affected.

And:

The nine-month court term is barely at the midpoint, and with so many consequential cases awaiting decisions, it is impossible to predict where the court will turn. Yet the court raised this term's stakes in adding disputes over Second Amendment gun rights, the military's relinquishing of U.S. citizens to the Iraqis for prosecution and the death penalty for defendants convicted of child rape.

Recent arguments have inflamed old tensions between the ideological camps. On the right are Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. On the left are Justices Souter, Ginsburg, John Paul Stevens and Stephen Breyer. Justice Anthony Kennedy is at the center, leaning to the right.

The heated rhetoric on the bench last term carried over to opinions at the end of the 2006-07 session when the conservative majority dominated and the liberals were relegated to angry dissents. The court curtailed abortion rights, limited schools' racial integration plans and carved out another exception for student speech rights.

"It is not often in the law that so few have so quickly changed so much," Breyer said, delivering a dissenting opinion.

And:

When justices accepted the voting rights and lethal injection cases for review, it looked like a positive development for civil rights groups and death penalty foes. In the former, the justices agreed to review Indiana's law requiring people to present a government-issue photo ID before voting. Challengers said the law particularly hurts poor and minority voters. In the latter case, when the justices took appeals from two Kentucky death row prisoners, they prompted a temporary halt on executions.

The oral arguments in the cases, however, indicated that eventual rulings might be more to conservatives' liking. A majority did not seem ready to re-evaluate lethal injections. Instead, some justices seemed poised to reject the claim that the lethal injection mix is "cruel and unusual punishment," and some seemed eager to end the moratorium on executions.

"I'm very reluctant to send (the case) back to the trial court so we can have a nationwide cessation of all executions," Justice Scalia said.

Only time will tell.

The Death Penalty - Unwise for Child Rape

That's the title of commentary in the upcoming issue of National Law Journal by Columbia law prof Vivian Berger.  LINK

On Jan. 4, the U.S. Supreme Court granted Patrick Kennedy's petition to review his capital sentence for raping his eight-year old step-daughter. Kennedy v. Louisiana, No. 07-343. One of only two people on death row for a nonhomicidal offense (the other is also in Louisiana), he claims that the Eighth Amendment forbids the ultimate penalty to be imposed on the perpetrator of a violent crime in which the victim does not die. As a matter of constitutional law, he has a very strong position. But even if the court rejects his challenge, legislators should spurn calls to expand a punishment that is plainly counter-productive in this setting — not to mention, declining here and moribund in the rest of the world.

Precedent is on Kennedy's side. In Coker v. Georgia, 433 U.S. 584 (1977), Justice Byron R. White, writing for four members of the court, found death to be an excessive sentence for a defendant who raped a 16-year old at knifepoint after tying up her husband, and then abducted her from her home. In his decision (rendered a holding by Justice William J. Brennan Jr.'s and Justice Thurgood Marshall's usual separate statements that capital punishment always violates the Constitution), he conceded the crime's gravity, yet concluded that the death penalty, "unique in its severity and irrevocability," is disproportionate for "the rapist who, as such, does not take human life."

The respondent seeks to limit Coker on the ground, relied on by the Louisiana Supreme Court, that the plurality several times mentioned the victim's status as an "adult woman." Yet Justice F. Lewis Powell Jr. dissented in part because the lead opinion drew "a bright line between murder and all rapes — regardless of the degree of brutality of the rape or the effect upon the victim." As someone privy to the court's discussions, he presumably knew whether his colleagues deemed the victim's survival, or age, to be the crucial factor. Moreover, the plurality's stated view that "[s]hort of homicide," rape — presumably, of any kind — "is the 'ultimate violation of self' " corroborates his interpretation.

And:

A mere five states have statutes that authorize execution for child rape, and all but Louisiana require a prior conviction of a sexual offense. While the court below cited a "trend" toward adoption of such laws since Coker, and recent Supreme Court cases outlawing death for juveniles and the mentally retarded take into account the direction of change, more significant is the fact that jurors have imposed that sentence in only two cases, in a sole jurisdiction. Indeed, Louisiana itself may have little interest in obtaining, as opposed to threatening, this sanction. An amicus brief filed by public defender offices notes that, "in the vast majority" of child rape cases, the prosecutor reduces the charge on the eve of trial. (This maneuver, typical of the gamesmanship pervasive in capital litigation, permits the state to prevail with a nonunanimous jury — after having forced these offices to expend the huge sums needed to prepare a defense against death.)

The court also brings its own judgment to bear on a punishment's acceptability. Should the substantive excessiveness argument alone not persuade the justices, they should consider the practical realities that reinforce it. Child rape prosecutions pose too high a risk of convicting the innocent to comport with the heightened need for reliability in capital cases. Children are very susceptible to adult suggestion; their stories frequently change over time and in response to different questioners. Further, statutes often allow young witnesses to testify under conditions diluting the defendant's right to confront his accuser. In Kennedy itself, the victim recanted her initial account of an attack mounted by two teenagers, and the prosecution introduced critical evidence in the form of a videotaped interview with her.

The Jessica's Law index is here.  SCOTUS Wiki's Kennedy v. Louisiana page is here.

 

Blunt's Death Plan Shows Extremism

That's the title of an editorial in the Kansas City Sun regarding Missouri Gov. Matt Blunt's call for the death penalty for non-homicidal child rape.  LINK

Gov. Matt Blunt’s outrageous call for the death penalty for violent sexual predators shows extremism and desperation as he enters a tough 2008 election against Attorney General Jay Nixon.

Blunt wants to kiss up to voters by putting sexual predators in his sights. Perverts make an easy target. They define “scum of the earth,” especially in the minds of parents and victims. Perverts are reviled universally. But execute them?

Maybe all rapists should be killed, too. But why limit death to violent sex crimes? Why not all violent crimes? Anyone who attempts to murder someone else – death? Armed robbery, battery, road rage? Death, death and more death?

The National Child Traumatic Stress Network, part of the U.S. Department of Health and Human Services, reports one in four girls and one in six boys are abused sexually; about one-third of abusers are under 18; and more than 90 percent of abusers, who often are parents, know victims well. If all such abusers would be executed, Blunt’s plan would bathe Missouri families in blood.

Missouri law requires a mandatory 30-year sentence for those guilty of raping or sodomizing someone 12 or younger. Deviants deserve such harsh treatment and perhaps upping the penalty from 30 to 50 years is justified. But adding 20 more years to the sentence would not grab pre-election headlines in the same way proposing executions has done for Blunt.

And:

Instead of pandering for votes, if Blunt wants to help children, then he should do something meaningful. To give children health insurance, he should restore the Medicaid funds that he cut.

The percentage of low-income Missouri parents who are uninsured soared from 19 percent in 2000 to a new and higher number under Blunt – 30 percent in 2003, based on a report by the Center for Budget and Policy Priorities, Washington. The increase in just three years reflects exactly how much Blunt cares about Missouri’s children, which is not much at all.

Does anyone really buy the idea that the state-sanctioned murder of perverts will do anything to stop crimes against children?

Does anyone really buy the idea that killing perverts will show that Blunt has made the welfare of children a priority?

Does anyone believe the timing of Blunt’s cry of “Death to perverts!” is anything but political?

The Springfield News-Leader has a very brief mention of the proposal in, "'Change is working,' Blunt tells legislators."  Blunt made the comments during his state-of-the state-speech.

Blunt set forth other priorities: the death penalty for child rapists; new protections from large property tax increases; a biodiesel mandate; and a weeklong "Show-Me Green" tax holiday that would suspend sales taxes on energy efficient appliances.

Earlier coverage of the Missouri proposal is here.  Later this spring, the Supreme Court will examine the issue of non-homicidal child rape in Kennedy v. Louisiana.  Coverage is in the Jessica's Law index.

Kennedy v. Louisiana Resource Page

Thanks to Karl Keys for highlighting this resource page at Corey Yung's Sex Crimes blog.  Corey's blog is in the left-column webroll under Essential Law Blogs. 

StandDown's Jessica's Law index, with coverage of the Kennedy case, is here.

Jordan Smith on Kennedy v. Louisiana

Austin Chronicle writer Jordan Smith reports on the Supreme Court's decision to review Kennedy v. Louisiana in its current term.  Her article is, "Child Sexual Assault & the Death Penalty."

The case, Kennedy v. Louisiana, will likely be heard in April. Jelpi Picou Jr., an attorney for condemned inmate Patrick Kennedy, said in a press statement that while "the vast majority of the world's developed countries have moved toward narrowing the use of capital punishment ... Louisiana has chosen to expand it significantly." Indeed, this was the view of the Supreme Court in 1977, which opined execution was an "excessive penalty" for rapists, "who, as such, [do] not take human life." The decision to add child sex assault to the list of death-eligible crimes is frowned upon by several influential groups, including the National Association of Social Work ers, which argue such a law does not protect children – and an offender who knows he or she could face execution regardless of whether his or her victim lives has little motivation to spare the victim's life. The law, the group says, "will likely have exactly the wrong effect."

Coverage of the cert grant is here.

Supreme Court Grants Cert in Kennedy v. Louisiana

The Supreme Court this afternoon announced that it will examine the constitutionality of a Louisiana law that allows the death penalty in non-homicidal child rape.  Though the Louisiana law pre-dates Jessica's Law, four states -- Florida, Oklahoma, Texas and South Carolina have passed versions of Jessica's Law with a death penalty provision even when the victim is not murdered.  The case is Kennedy v. Louisiana, 07-343.

The SCOTUS Wiki page, already loaded with briefs, is here.

Information on Coker v. Georgia, the 1977 Supreme Court ruling that held the death penalty to be unconstitutional in the case of the non-homicidal rape of an adult woman, is here via Oyez.

Linda Greenhouse at the New York Times reports, "Justices to Decide if Rape of a Child Merits Death."

The Supreme Court agreed on Friday to decide whether the Constitution allows the death penalty for the rape of a child.

The justices acted only three days before a scheduled argument in another important death penalty case, on the standard for judging whether chemicals used to administer lethal injections make that method of execution unconstitutionally cruel.

The new case, from Louisiana, is likely to be argued in April, meaning that during the course of its current term, the Supreme Court will be examining both the most common method of execution and a categorical question about which crimes are appropriate for the death penalty.

No one has been executed in the United States for a crime other than murder since 1964. Of some 3,300 inmates of death row today, only two are facing execution for an offense that did not involve a killing. Both are on Louisiana’s death row. The Supreme Court agreed to hear an appeal from one of them, Patrick Kennedy, who was convicted and sentenced to death in 2004 for raping his 8-year-old stepdaughter.

In the Washington Post, Robert Barnes has, "Justices to Consider Death Penalty Issue."

On SCOTUS Blog, Lyle Denniston has, "Court to rule on death penalty for child rape."

"Court Mulls Death Penalty for Child Rape," is AP's dispatch by Mark Sherman.

David Savage reports, "Death penalty for child rapist goes to Supreme Court," in the Los Angeles Times.

Mark Anderson has, "Court Takes Death-Penalty Case Involving Rape of Young Girl," in the Wall Street Journal.

Bloomberg has, "Death Penalty for Child Rape Gets High Court Review," by Greg Stohr

The Jessica's Law index is here.  As I've noted before, even though the Louisiana law pre-dates the Jessica's Law proposals, for convenience, I'm using that tag for the Kennedy case.

Kennedy v. Louisiana

At today's Supreme Court justices' conference several cases of interest will be examined, including Kennedy v. Louisiana. That is the case of Patrick Kennedy, convicted and sentenced to death for the non-homicidal rape of a child. Louisiana's law pre-dates the four states that have passed a version of Jessica's Law with a death penalty provision for non-homicidal child rape.

Until mid-December, Kennedy was the only person on death row in America for a crime that did not involve capital murder. As noted in this post, a second man has been convicted and sentenced to death for child rape in Louisiana.

The Court will decide today whether or not to review the Louisiana law using Kennedy's case. Supreme Court advocate and SCOTUS Blog founder Tom Goldstein believes the Court is likely to grant cert in the case, as noted here.

SCOTUS Blog has coverage in this post on petitions to watch in today's conference, with links to all briefs.

Missouri Governor Calls for Death Penalty for Child Rape

The St. Louis Post-Dispatch carries an AP report, "Blunt proposes death penalty for raping children under 12."

Gov. Matt Blunt on Thursday proposed legislation allowing the death sentence for people convicted of forcibly raping or sodomizing a child younger than 12.

"When somebody rapes a very young child, they should have to pay the ultimate penalty for that terrible crime," Blunt said. "This is not a crime that ever goes away — it leaves permanent scars."

Missouri currently allows the death penalty only for people convicted of first-degree murder. But the state hasn't executed anyone since October 2005 because of a legal challenge to its method of lethal injection.

In recent years, several other states have enacted laws allowing the death penalty for people who rape children. A new Texas law allows executions for people convicted of a second offense of raping a child younger than 14. Oklahoma and South Carolina enacted death penalty laws in 2006 that also apply to repeat child sex offenders, according to the Death Penalty Information Center.

Tim Hoover writes, "Blunt calls for death penalty for child rape," in the Kansas City Star.

If Missouri passed such a law, it would join a handful of other states, including Oklahoma, South Carolina and Louisiana, with similar measures. A man convicted of raping a child under the Louisiana law now sits on death row in that state, and the case may be headed to the U.S. Supreme Court.

But critics of the death-for-child-rape approach say it could lead to tragic unintended consequences.

“I can appreciate why some people are pro-death penalty, but I think one thing they’re not looking at is you’re just encouraging the person to kill the victim,” said Grant Shostak, president of the Missouri Association of Criminal Defense Lawyers.

“If you’re going to get the death penalty for doing something, why would you leave any live witnesses? You’re placing the children you’re trying to protect at more risk.”

Sean O’Brien, an associate professor of law at the University of Missouri-Kansas City, agreed, and said Blunt’s proposal was a bad idea. Death-penalty cases are extremely expensive to prosecute, he said, and the resources would be better spent on law enforcement.

While the rape of a child is a serious crime, imposing the death penalty seems disproportionate to the offense, O’Brien said.

In 1977, the U.S. Supreme Court struck down the sentence of death in a Georgia case for a man convicted of raping an adult woman. The court said the death sentence was “grossly disproportionate” to the crime and was thus cruel and unusual punishment.

The Jessica's Law index is here.  According to the Jessica Marie Lunsford Foundation, 33 states have adopted some form of Jessica's Law.  Only Florida, Oklahoma, South Carolina, and Texas have imposed a death penalty provision in their state laws.

A Second Louisiana Death Sentence for Non-Homicidal Child Rape

Prior to yesterday, Louisiana was the only state with a death row inmate facing execution for a capital crime that did not involve a murder.  Today a second Louisiana man is under sentence of death for the rape of a five year old child.  The Shreveport Times has, "Death for rapist: Jury says man should die for assaulting 5-year-old."

A man proscutors say used a 5-year-old girl as a sex toy for him and his girlfriend made history Wednesday by being sentenced to die.

Richard Davis, a 35-year-old Ohio native, listened but did not make eye contact as each Caddo juror verbally confirmed his sentence.

It was only two days ago that the same group of nine women and three men spent 1½ hours deliberating before convicting Davis of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005.

AP has, "Jury sentences Ohio man to death for raping 5-year-old girl," via KATC-TV.

Davis is the first person in Caddo Parish and the second in Louisiana to be sentenced to death for raping a child. He was convicted Monday under a 1995 law that allows capital punishment for raping a child less than 12 years old.

Judge Scott Crichton must formally sentence Davis before he is transferred to the Louisiana State Penitentiary at Angola.

The verdict will be automatically appealed to the Louisiana Supreme Court and it will be years before all appeals are exhausted and Davis could be executed.

Earlier this year, the Louisiana Supreme Court upheld the death sentence given to Patrick Kennedy, 42, of Harvey, for raping an 8-year-old girl in 1998.

Defense attorneys said he was then the only person on a U.S. death row for rape without murder, and would be the test case for whether the U.S. Supreme Court will uphold the death penalty for someone who rapes a child.
The U.S. Supreme Court ruled in 1977 that Georgia's death penalty for rape violated the Eighth Amendment protection against cruel and unusual punishment. But the high court said repeatedly that its ruling applied only to adult victims.

More on the Patrick Kennedy case is here.  Lawyers for Kennedy have asked the U.S. Supreme Court to examine the Louisiana state law that provides the death penalty for non-homicidal child rape.  The Court has not yet decided whether or not it will accept the case for review. Tom Goldstein, in this SCOTUS Blog post, believes the Court is likely to grant cert in the case.

An indexing note.  This carries the Jessica's Law tag even though the Louisiana statute pre-dates the Jessica's Law proposal and its death penalty provision enacted by Florida, Oklahoma, Texas, and South Carolina.  Montana has a similar provision, again passed prior to the Jessica's Law campaign.  The Jessica's Law index is here.

The Latest on Michael Blair

Thanks to Rick Halperin for distributing the Dallas Morning News' Friday report, "New DNA tests fail to link Blair to Ashley Estell's slaying."

More DNA tests have failed to connect the man convicted of killing 7-year-old Ashley Estell to the 1993 crime. Michael Blair was not the source of forensic evidence found on the Plano girl's shoes, court records show.

Tests were inconclusive on DNA material found on a stuffed rabbit toy and the shirt Ashley was wearing at the time of her death. One legal expert said the repeated negative results of DNA tests may strengthen Mr. Blair's bid for an appeal.

Mr. Blair is waiting to hear from the Texas Criminal Court of Appeals on whether he'll be granted a new trial and an opportunity to get off death row.

Previous forensic tests showed that Mr. Blair's DNA did not match tissue samples found under Ashley's fingernails and that hair found on Ashley did not come from Mr. Blair, according to court records.

And:

Even if Mr. Blair were cleared of Ashley's death, he won't be freed. In 2004, Mr. Blair confessed to aggravated sexual assault in crimes involving three children in the early 1990s and is serving three consecutive life sentences.

This last round of testing was conducted in May and placed in the court file this summer. Investigators looked at Ashley's shoes, her shirt and a stuffed rabbit.

A different male DNA profile was found on each of her shoes. The two profiles did not match Mr. Blair or other suspects that have been previously considered, according to the court record.

There is a great deal of earlier coverage of the Blair case beginning here and threading through earlier posts.

I'm adding the Jessica's Law category tab to Blair stories.  Ashley's Law was written and named for the victim in this crime, and this crime achieved the degree of notoriety and outrage that has led to wrongful convictions in the past -- the urgent, hasty desire to find a guilty party at all costs.

The Patrick Kennedy Case in Louisiana

Doug Berman has, "A strong argument Patrick Kennedy's death sentence," at his Sentencing Law and Policy blog.  Here's an excerpt:

I have now had a chance to read closely the effective petition for writ of certiorari in Kennedy v. Louisiana (available here), which calls upon the Supreme Court to review and reverse the Louisiana Supreme Court's decision to uphold the death sentence given to Patrick Kennedy for the crime of child rape.  Because the petition is so strong and effective, I have decided that the case ought to get "resolved" before the Supreme Court even has a chance to consider it. Specifically, I now think the Governor of Louisiana ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's death sentence.

As I have explained in this post, I believe states could reasonably garner symbolic and practical benefits from making certain repeat child rape a capital offense. Consequently, as I read the Kennedy cert petition, I am troubled greatly by arguments asserting that it is always unconstitutional to make any extreme non-homicide offenses subject to the death penalty.  And yet, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Patrick Kennedy is the only person sentenced to death for a non-homicide offense.

Of particular note, Patrick Kennedy has no significant criminal history, he may be mentally retarded, he has "insisted on his innocence," and there does not seem to be any distinctive aggravating factors surrounding his crime.  See petition at pp. 4-8.  In other words, Patrick Kennedy does not fit the image of a monstrous predator sex offender perhaps deserving of a death sentence.  Indeed, anyone considering the distinctive facts of the Kennedy case could readily conclude that it is "cruel and unusual" for Patrick Kennedy to be the only rapist sentenced to death in the modern capital era.  Consequently, because the Governor of Louisiana has an obligation to uphold the Constitution, I think the Governor ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's constitutionally-suspect death sentence.

The irony of Patrick Kennedy being the potential test defendant for the capital child rape issue is evident when one considers the crimes of Ehrlich Anthony Coker, the defendant at the center of the Supreme Court's 1977 decision declaring the death an unconstitutional punishment for the crime of adult rape.

Earlier coverage of the case is here.  As I have wrtitten previously, even though the Louisiana law predates Jessica's Law, the coverage is in that category.  More on Coker v. Georgia is here.

Death Penalty for Child Rape Challenged

That's the title of Lyle Denniston's must-read post at SCOTUS Blog concerning the Patrick Kennedy case from Louisiana.  LINK

For three decades, the Supreme Court has permitted the death penalty only for the crime of murder. On Tuesday, a Louisiana man under death sentence filed a new appeal asking the Court to maintain that limit, barring his execution for the crime of rape of a child. The Louisiana Supreme Court, however, ruled on May 22 that the Supreme Court's 1977 decision barring capital punishment for rape (Coker v. Georgia) does not apply when the victim is a child under age 12.

The petition in Kennedy v. Louisiana can be downloaded here. The lengthy opinion of the state Supreme Court can be found in the petition's appendix here.

The case could provide the first opportunity for the Court under Chief Justice John G. Roberts, Jr., to indicate whether it will continue to interpret the constitutionality of death penalty laws in the U.S. partly on the basis of what other countries do on the question. In the Court's most recent rulings against application of the death penalty, barring it for juveniles and for mentally retarded individuals, it relied in part upon international as well as national trends. According to Amnesty International, more than half the nations that still have the death penalty do not impose it for child rape. (Inside the U.S., five states including Louisiana allow the penalty for child rape; the Kennedy petition says that prosecutors in the other states refuse to seek it.)

And:

His lawyers posed two questions:
"1. Whether the Eighth Amendment's Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
"2. If so, whether Louisiana's capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty."

The Louisiana law predates Jessica's Law, but I am adding that category because Florida, Oklahoma, and Texas added non-homicidal death penalties through Jessica's Law proposals.  Earlier coverage of the Kennedy case is here.  The Jessica's Law index is here.

Officials Mixed on Relapse Prediction Tests

That's the title of an article by Adam Holland in the Longview News-Journal on Jessica's Law.  LINK

"When and whether to seek the death penalty is a complex issue," he said [Gregg County District Attorney Bill Jennings]. "Such a decision involves input from a number of sources, including the victim, the victim's family and the investigating agency to name a few."

Jennings said his office recently prosecuted a sex offender who would have been eligible for the death penalty under the new law.

"That person received an automatic life sentence (30 years before parole eligible) which was the harshest sentence the Legislature allowed at that time," he said.

The new law also extends the statute of limitations for sexual assault, continuous sexual abuse of a young child and indecency with a child to 20 years beyond the victim's 18th birthday. Previously, there was a 10-year window during which accused offenders could be indicted.

Along with most other laws passed during the 80th Legislature, Jessica's Law goes into effect Sept. 1.

More on Jessica's Law is here.

Governor Perry Signs Jessica's Law

The Greenville Herald Banner, the home paper of Senator Bob Deuell, has coverage here.

Although he was unable to attend the ceremony in Austin, State Sen. Bob Deuell (R-Greenville) said he was gratified that his Jessica’s Law bill has officially become law.

Gov. Rick Perry signed the bill, which will enact some of the harshest punishments in the nation for child molesters, Monday. House Bill 8, also known as Jessica's Law, will go into effect on Sept. 1. The bill is named for Jessica Lunsford, a 9-year-old Florida girl who was kidnapped, raped and killed by a convicted sex offender.

Deuell authored the Jessica's Law bill in the Texas Senate and was the Senate sponsor of the bill.

"In February 2006, I made a commitment to my constituents that I would file Jessica's Law and do everything I could to protect our most vulnerable citizens," Deuell said in a statement issued Tuesday. "With the signing of House Bill 8, we have sent a clear message that we will not tolerate these heinous crimes in Texas."

Joining Perry at the ceremony were Lt. Governor David Dewhurst, as well as representatives from several Texas law enforcement groups and victim's rights groups. Also attending was Jessica Lunsford's father, Mark Lunsford.

Earlier coverage is here.

State to Change Sex Offender Classification

That's the headline of an AP report in today's Houston Chronicle.  LINK

The Texas Council on Sex Offender Treatment is expected to adopt a new system this week for classifying sex offenders that officials say will more accurately gauge their risk to the community.

The system will include multiple tests, such as psychological evaluations, to gauge sex offenders' risk for further sexual crimes and other types of crimes, as well as determining which offenders need supervision.

It will replace the state's current risk test, which is used to determine which sex offenders must publicly declare their crime. The current test uses a point system based on factors such as age, marital status, previous offenses and the victim's gender.

Critics say the current test can be misleading and tends to overpenalize young, low-level offenders while overlooking more dangerous offenders, including some women abusers or pedophiles convicted of non-contact child pornography.

For juveniles, women and child pornography offenders, "there's no research to show (the current test) is valid," said Allison Taylor, executive director of the treatment council. "It's easy to see a 48-year-old pedophile who comes out as low-risk — we see that all the time."

The new test will apply to sex offenders being released from prison, but it will not apply to the thousands of registered offenders living in society. Some have complained that they should have a chance to have their risk status re-evaluated.

State Rep. Jerry Madden, R-Richardson, said it would be nearly impossible to re-evaluate all of the state's 45,000 registered sex offenders, although it would be good to do so.

Death to Child Rapists?

That's the title of an editorial in today's Los Angeles Times addressing the Louisiana case of Patrick Kennedy.  LINK

THE UNITED STATES is virtually alone among advanced democracies in permitting capital punishment. But widespread ambivalence about imposing the ultimate penalty has produced a minor industry of litigation that has had the effect of postponing executions for years and even decades. This state of affairs, which frustrates supporters and opponents of capital punishment, exists even though the death penalty has been imposed for more than a generation only in murder cases. Now imagine how clogged the courts would become if states were allowed to execute individuals for other crimes.

Just that scenario has arisen with a decision by the Louisiana Supreme Court. In upholding a death sentence for Patrick Kennedy, who raped his 8-year-old stepdaughter and then told her to implicate someone else, the majority noted that the U.S. Supreme Court "has characterized rape as a crime second only to homicide in the harm that it causes." That observation actually came in a decision that invalidated the death sentence of a convicted rapist. But the Louisiana court held out the hope that the current U.S. Supreme Court would regard this case differently. Unfortunately, it's not an idle hope.

In a 1977 ruling, only four justices signed an opinion saying that capital punishment for rape was always unconstitutional. Justice Lewis Powell voted to vacate the sentence on the narrower rationale that "death is disproportionate punishment for the crime of raping an adult woman," leaving open the possibility that rape of a child might qualify as a capital crime. A majority of the current court might be willing to seize on the distinction Powell drew by upholding the death penalty for Kennedy. And the justices might be influenced by the argument that Louisiana's law, which capitalizes the crime of aggravated rape of a child under 12, reflects "evolving standards of decency." As the Louisiana court noted, four other states have followed Louisiana's lead. Texas will join the list if, as expected, the governor signs a bill recently approved by the Legislature.

More on the Kennedy case is here.

A National Look at Jessica's Law

Cardozo Law prof Marci Hamilton has, "States Move to Enact Laws Allowing the Death Penalty for Pedophiles: A Good Sign with Respect to Public Dedication to Protecting Children, But Potentially Not the Most Effective Way to Do So," at FindLaw.com.

Some have expressed concern that if the penalty for pedophilia is raised to death, children may be deterred from reporting abuse, especially when it is committed by a relative. Yet such a small percentage of child sex abuse victims report their abuse at this point - estimates run about 10% -- that one has to wonder about the marginal effect of the death penalty. Kids already are terrified to report, usually because they are threatened by their abusers, so this shift in the law would seem to make little difference.

My concern, however, is that pedophile-death-penalty laws are, in the end, a distraction from what needs to be done to truly protect the most children possible, the most effectively. It's important to remember that the difference between a pedophile in jail and one put to death, from a child's perspective, is negligible - in either case, children are safe from that perpetrator.

Moreover, the main problem we currently have when it comes to pedophilia (and this is an element in the huge and powerful response to Jessica Lunsford's death) is that we are not succeeding in identifying many of the perpetrators that are out there.

And:

Before investing any more effort in choosing between prison and death for known pedophiles, as a society we really need to focus on identifying the silent and secret society of child predators that is now enjoying the existing statutes of limitations. Revealing these existing predators is the most effective way of protecting our children right now - before further abuse occurs.

More on Louisiana Court Ruling

The New York Times has, "Louisiana Court Backs Death in Child Rape."

The Louisiana Supreme Court yesterday upheld the death sentence of a man convicted of raping an 8-year-old girl. Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing.

“Looming over this case,” Justice Jeffrey P. Victory wrote for the majority in the 6-to-1 decision, “is the potential for the defendant to be the first person executed for committing an aggravated rape in which the victim survived” since the enactment of a 1995 state law that allows capital punishment for the rape of a child under 12.

In 1977, the United States Supreme Court ruled that the death penalty could not be imposed for the rape of an adult woman. The justices said the penalty would be disproportionate to the crime and was therefore forbidden as cruel and unusual punishment under the Eighth Amendment. But they left open the question of whether child rapists might be sentenced to death.

There has not been an execution for rape in the United States since 1964, and no one has been executed for a crime that did not involve a killing since the Supreme Court reinstated the death penalty in 1976. Before the Supreme Court suspended the death penalty in 1972, 16 states and the federal government authorized it for rape.

Yesterday's post, with a link to the opinion, is here.

Louisiana Supreme Court Rules Non-Homicidal Death Penalty Constitutional

The Louisiana State Supreme Court has ruled that state's non-homicidal death penalty for rape of a child is constitutional in the case of Patrick Kennedy.  The ruling is here.

AP has this report, via the New Orleans Times-Picayune and NOLALive.com.

Louisiana may execute a man convicted of raping an 8-year-old girl, the state Supreme Court said Tuesday — the first time it has upheld such a death sentence under a 1995 law allowing execution of child rapists.

Patrick Kennedy, 42, of Harvey, could become the first person executed under that law, which allows the death penalty for the aggravated rape of someone less than 12 years old.

"Our state Legislature and this court have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving," Justice Jeffrey Victory wrote in the 62-page opinion.

The case was argued on February 28.  Coverage is here.

Jessica's Law Heads to Governor

The Austin American-Statesman has, "House passes child predator legislation."

House members signed off Friday on a proposal that would enable Texas to execute predators convicted of repeatedly sexually assaulting children.

Following the lead of the Senate, the House approved the final version of House Bill 8 on a vote of 122-17. The day before, the upper chamber approved the measure 30-1, with Sen. Rodney Ellis, D-Houston, voting no. The measure now awaits the signature of Gov. Rick Perry, who declared the topic an emergency this year.

The Dallas Morning News has, "Death for child rapists: House likes it, prosecutors don't."

Prosecutors and victims' rights groups throughout the state oppose making child rape punishable by death. They say a bill that received final approval in the House on Friday and is expected to be signed into law will leave child rapists with no reason to spare their victims' lives.

Ultimately, however, the U.S. Supreme Court will decide whether child        rape is punishable by death.    

Critics include Dallas County District Attorney Craig Watkins. Mr. Watkins said lawmakers are counting on voters who hear brief explanations of the measure on television and immediately support it.

"The death penalty should be reserved for the most heinous of crimes," Mr. Watkins said. "This is a heinous crime but not a death penalty crime."

Williamson County District Attorney John Bradley said he knows of no prosecutor in the state who strongly supports the death penalty for child rapists.

The Fort Worth Star-Telegram carries an AP report, "Texas lawmakers OK death for child rape."

Texas sex offenders who are twice convicted of raping children under 14 could get the death penalty under a bill state lawmakers approved Friday.

The state House passed Texas' version of "Jessica's Law," a crackdown on sex offenders who prey on children, a day after the Senate approved it.

The bill is named for Jessica Lunsford, a Florida girl who was abducted and killed. More than a dozen states have passed versions of Jessica's Law.

Gov. Rick Perry has said he was open to the idea of the death penalty in child sex cases and that passage of a child sex offender bill is a legislative emergency. Perry spokeswoman Katherine Cesinger said the governor will wait to read the final version of the bill before deciding whether to sign it into law.

The Houston Chronicle has, "Jessica's Law headed to Perry."

Yet, as lawmakers passed the final version of the bill, Sen. Rodney Ellis, D-Houston, and Rep. Lon Burnam, D-Fort Worth, raised objections to expanding the death penalty in Texas, which leads the nation in executions.

"I rise to speak against this bill," said Burnam. "It's just one more example here in the Texas Legislature where we think we have some sort of God-given right to intercede and kill another human being. That is flawed thinking."

Several legal scholars have predicted the U.S. Supreme Court will strike down the death penalty as unconstitutional for crimes other than murder.

The court banned the death penalty in the rape of a 16-year-old, ruling in 1977 that executions should only apply to crimes that end life.

Texas Senate Approves Jessica's Law

Polly Ross Hughes has, "Senate OK's bill allowing death penalty in child rapes," in today's Houston Chronicle.

Several legal scholars also have raised doubts, pointing to the high court's recent restrictions barring the execution of the mentally retarded and those who were minors when a crime was committed.

The compromise version adopted Senate language that would give prosecutors the option of seeking the death penalty when the law takes effect in September.

Deuell and Dewhurst said it would count the first child rape with aggravating circumstances, even if it occurred before the law's passage.

The Texas bill reserves death for those who twice rape children under age six or younger than 14 if the crime also involves the use of a deadly weapon, alcohol or drugs, death threats, bodily injury, kidnapping or gang rape.

It also creates a new offense, urged by prosecutors but decried as unfair by defense lawyers, for "continual sexual abuse of a child or children" over a period of 31 days or more.

The compromise includes a "Romeo" clause, making it an affirmative defense against prosecution for "continual sexual abuse" if the defendant is not more than five years older than the victim.

Forcing a child into prostitution would be a first degree felony carrying a maximum sentence of 99 years. Using a child for pornography would be a second-degree felony with a maximum 20-years sentence.

The statute of limitations would be lifted for sex crimes against children under age 17.

Deal Reached on Jessica's Law

Emily Ramshaw of the Dallas Morning News reports that a conference committee of House and Senate lawmakers have settled differences between two versions of HB 8.  LINK

Key lawmakers in both chambers said Friday that they have reached a compromise on the Jessica's Law sex offender bills passed by the House and Senate, nearly ensuring that Texas will be the sixth U.S. state to allow capital punishment for certain sex crimes against children.

Under the version approved in conference committee late this week, the death penalty would be reserved for offenders who have been convicted twice of raping a child.

A first conviction for raping a child under 6 would come with a mandatory 25-year minimum sentence, as would cases against youths between age 7 and 14 that involve a weapon, bodily harm or kidnapping.

The legislation also creates a new charge – continuous sexual abuse of a child – to punish habitual child-sex offenders. Though the House version of the bill would've made that crime eligible for capital punishment on a second conviction, under the compromise, it would carry a 25-year minimum sentence.

Both chambers will have to ratify the conference committee's recommendation.  That could happen this week, the bill would then go to the governor for his signature.  Because it was designated as emergency legislation HB 8 will become law once it is signed by Governor Perry.  Earlier coverage is here.

Death Penalty for Child Molesters?

That's the title of an article in the current issue of Time magazine written by veteran Austin journalist Hilary Hylton.  LINK

In the state that is the nation's undisputed death penalty leader, Texas, you might think there is no such thing as a punishment considered too harsh. But as legislators there consider joining the small but growing number of states making certain convicted pedophiles eligible for the death penalty, a surprisingly vocal group of critics has emerged, arguing that the measure is shortsighted, counterproductive and probably unconstitutional.

"There's tough. And then there's Texas tough," Republican Lt. Gov. David Dewhurst declared at his January inauguration as he pledged to press for mandatory 25-year sentences and a two-strikes death-penalty provision for convicted child predators. The proposal is a more extreme version of the so-called " Jessica's Law " passed by the Florida legislature in the wake of the February 2005 rape and murder of nine-year-old Jessica Lunsford. That landmark statute imposed mandatory 25-year prison terms and life electronic monitoring for sex offenders, and since its passage in May 2005 42 states and Congress have implemented or are considering their own very similar laws.

Dewhurst's stance made headlines and has won him kudos from national backers of Jessica's Law such as Fox News's Bill O'Reilly and John Walsh, producer of America's Most Wanted. But it also sparked the formation of an unexpected coalition of opponents, featuring some of the state's toughest prosecutors as well as victims' rights groups, both of whom worry that the measure could backfire and result in fewer convictions.

"We saw the tsunami wave coming to Texas," said Shannon Edmonds, state lobbyist for the Texas District and County Attorneys Association. Last year, South Carolina adopted the death penalty for the second offense of raping a child under age 11. Oklahoma followed, passing Jessica's Law with a death penalty provision for raping a child under age 14. Texas already had some of the toughest child predator laws on the books with its two-strikes rule that sends child predators to jail for life. But the push for even harsher punishment was coming from the state leadership, rather than from the grass roots, as tightening of criminal laws often does. "Prosecutors will tell you these are the most difficult cases to get a guilty verdict on," Edmonds said. "Prosecutors lose more of these cases than any other."

The Texas Association Against Sexual Assault also voiced its concerns about "unintended consequences" of Jessica's Laws. The mandatory sentences can backfire, said TAASA spokeswoman Karen Amacher, as prosecutors lose the flexibility to seek lesser sentences in cases where a jury trial may prove too taxing for a child witness, or a jury or judge may not feel a 25-year sentence is warranted. Since an estimated 80% of child sexual assaults are committed by family members, groups like Amacher's are concerned that mandatory sentence laws, not to mention the death penalty, might dissuade certain people from reporting abuse to authorities. "With sex offenders we want to say let's lock them up and throw away the key — these folks are just awful, after all — but it's just not realistic," Amacher said.

Even avowed supporters of the death penalty in murder cases think the Texas proposal would be a bad idea. "If you give the same sentence for molesting a little girl as for molesting and killing a little girl, it seems an incentive to go ahead and kill her," said Michael Rushford, head of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif.

Earlier coverage of Jessica's Law is here.  More information on the two versions of HB 8 is here.  House and Senate conferees have been named to the conference committee that will resolve differences between the two versions. 

Senate Conferees Named for HB 8

The Senate has named the conferees for HB 8.  They are Bob Deuell, Kim Brimer, Florence Shapiro, Juan Hinojosa, and Steve Ogden.  No word yet on when the conference committee will meet.

House conferees are posted here.

Adam Gershowitz on Texas Jessica's Law

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.

HB 8 Will Go to Conference Committee

Earlier today the Texas House of Representatives refused to concur with the Senate version of HB 8.  After Senate members to a conference committee are named, the committee will resolve differences between the two versions of a Jessica's Law.  Gardner Selby has a post on the Statesman Postcards from the Lege blog, "Jessica's law awaits House-Senate negotiations."

Rep. Debbie Riddle, R-Tomball, asked the House today not to concur in Senate amendments to the so-called Jessica’s law. Members agreed.

Riddle said she wants to work with senators on a conflict between the House and Senate over whether to impose the death penalty on offenders upon first offense or upon a second offense broken up by a long prison term.

She said she also wants to explore whether a Senate tweak would subject a teen-ager in a consenting relationship with a younger teen-ager to dire consequences.

“We’ve still got time,” Riddle said. “It makes more sense to correct these concerns now while we are able to do so rather than wait until next session… We need to polish it.”

Rep. Ellen Cohen, D-Houston, urged Riddle to keep in mind the expertise of professionals who work with children required to testify in such cases. Cohen said imposing the death penalty could jeopardize the safety of children; their attackers might kill them to prevent witness testimony.

House members appointed to the conference committee are Debbie Riddle, Dan Gattis, Aaron Pena, Jerry Madden, and Joe Deshotel

Earlier coverage of Jessica's Law is here.  More information on the two versions of HB 8 is here.

More on Jessica's Law

Texas Lawyer has the story, "Death Penalty an Option Sooner in Senate Version of Jessica's Law," in its Monday edition.

Under a bill passed by the Texas Senate, the death penalty could be on the table after Sept. 1 for some previously convicted child molesters who commit another aggravated sexual assault against a child younger than 14.

On April 24, the Senate voted 30-to-1 to pass its version of H.B. 8, "Jessica's Law," named the Jessica Lunsford Act for a Florida girl whom John Couey, a previously convicted sex offender, abducted from her home, raped and killed in February 2005. A Florida jury convicted Couey in connection with Lunsford's death in March and recommended that he be put to death.

The bill originated in the Texas House, which passed H.B. 8 in March.

Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association, says the biggest difference between the two versions of the bill is the timing of when a defendant could face the possibility of the death penalty. Under the House version, it would be 25 years before a death sentence could be imposed, Edmonds says. The House bill creates a new offense to which it attached the possibility of a death sentence. So, a defendant would have to be convicted of the new offense, serve the prescribed 25 year sentence, be released from prison and re-offend to be eligible for the death penalty. But under the Senate version, which ties the death penalty option to an existing offense, prosecutors could seek the death penalty for certain previously convicted child sex offenders who re-offend after the bill's Sept. 1 effective date, he says.

"They wouldn't have to wait 25 years," Edmonds says.

Legislative observers do not expect the House to concur with the Senate version of HB 8.  That would force a conference committee to resolve differences between House and Senate version.  A conference committee report would have to be approved by both chambers.

A hat tip to Scott Henson at Grits for Breakfast for picking up on Patricia Kilday Hart's post earlier this week at BurkaBlog about the Senate action.  Both Grits and BurkaBlog are listed in the weblog in the left hand column for good reason.

Luckily for the state of Texas, Dewhurst has been forced to significantly change the bill in order to get enough votes to pass it out of the Texas Senate. At the urging of many outspoken senators and prosecutors, a revised proposal calls for a minimum 25-year sentence only for enhanced cases of aggravated sexual assault, when the crime includes particularly egregious circumstances like kidnapping or use of a weapon or violence.

This change was critical to win support of prosecutors. Since approximately 80 percent of child sex abuse involves family members, an automatic 25-year prison term would dissuade families from seeking prosecution. "If a child knows that Uncle Harry is going to prison for 25 years, she's not likely to testify," a lawmaker explained to me.

Likewise, prosecutors did not want an automatic death penalty, and even questioned its constitutionality. The latest draft of the bill, sponsored by Bob Deuell, gives prosecutors the option of life without parole or the death penalty upon the second conviction for an enhanced aggravated sexual assault.

The Senate is expected to pass the bill tomorrow, with support "an inch deep," according to one lawmaker. Dewhurst has paid hard currency in political capital to get this far. He still has not announced his budget conferees, and many lawmakers believe he won't make the announcement until Jessica's law wins passage. After fighting Dewhurst for weeks, the Senate is ready to move on. Some lawmakers privately hope the House will "lock down" on its version, which prosecutors still prefer.

Good lawmakers evaluate compromise by asking themselves, "Is this the hill I want to die on?" Basically, is this fight worth the effort? A fair question for Dewhurst would be, "Why are you choosing to die on this hill?" Prosecutors haven't asked for Jessica's Law; in fact, they've been called in for damage control. Meanwhile, the state faces real intractable problems requiring leadership, from college affordability to transportation to electric industry issues. Those are hills a good leader might choose to die on.

I'm glad he's agreed to the changes insisted upon by the prosecutors. But in the process, he's lost credibility during a session in which he was well-placed to make a real difference. Gov. Perry's popularity is at a low ebb; Dewhurst's old nemesis, Tom Craddick, barely survived a speaker's race. But like the eyewitness unswayed by contrary physical evidence, Dewhurst is clinging to a false issue.

More on Jessica's Law is here.

More News Coverage of Senate Action

Both the House and the Senate have now passed versions of Jessica's Law with a death penalty.  Because the two bills vary slightly, the Senate version, passed yesterday, will go to the House.  Unless House members concur with the Senate version, the two bills will go to a conference committee composed of House and Senate members to settle differences.  The conference committee agreement would have to be approved by both houses.

As of 12:10 p.m., CDT, the Texas Legislature Online website has not posted the language in the bill as passed yesterday.  It will be available at this link, possibly later today.

The Austin American-Statesman has, "Senate passes bill to allow death penalty in some molestation cases."

The Senate on Tuesday passed a bill that stiffens penalties for a variety of sex offenses against children, including the death penalty for offenders who commit a second serious sex crime.

House Bill 8, passed by a vote of 30-1, will now head back to the House for a review of the amended bill and may be considered in a conference committee of Senate and House members before final votes are cast.

Emily Ramshaw has written extensively on the proposal in the Dallas Morning News.  She has, "Jessica's Law approved in Senate."

The legislation reserves the death penalty for sex offenders who have been convicted twice of raping a child.    

A first conviction for raping a child under 6 would come with a mandatory 25-year minimum sentence, as would particularly violent or egregious cases against youths between ages 7 and 14.

And it creates a new charge – continuous sexual abuse of a child – to punish habitual child-sex offenders, particularly in cases where children are too young to recall dates and times. Those convictions also would carry a 25-year minimum sentence.

Despite similarities in the Senate and House versions of the bill, lawmakers still have to work out sticky details. Among the differences: The House, like the Senate, included the charge of continuous abuse of a child – defined as at least two offenses over at least 30 days – but made that crime eligible for capital punishment on a second conviction.

The Fort Worth Star-Telegram's John Moritz has, "Senate passes measure targeting sex offenders."

Sen. Rodney Ellis, D-Houston, who cast the lone dissenting vote, said he has qualms about executing nonmurderers. But Sen. Robert Deuell, the Senate sponsor of House Bill 8, said permitting prosecutors to seek capital punishment for child sex offenders is a small component of the legislation.

"It is very possible that there will never be a death penalty [case] with this bill, and yet we would permanently keep people off the streets with life without parole," said Deuell, R-Greenville.

Polly Ross Hughes of the Houston Chronicle, who has been following the legislation since it's first hearing, has, "Senate OK's 'Jessica's Law' with limits on death penalty."

Deuell explained that the bill creates new categories of "super" aggravated assaults against children under age 14 that involve the use of a deadly weapon, alcohol or drugs, death threats, bodily injury, kidnapping or gang rape. The highest penalties are also reserved for raping a child under age 6.

A first conviction for any of the above would carry a minimum sentence of 25 years. A second conviction would result in life in prison without parole or death.

Dewhurst, who said he's "almost gotten tired of hearing all this talk about the death penalty," predicted that most prosecutors will opt for life without parole instead.

And:

Like the House version of "Jessica's Law," the Senate created a new offense called "continuous sexual abuse" of a child under age 14. It applies to those who sexually abuse a child at least twice over a period of 30 days or more.

A first offense under both bills carries a minimum 25-year sentence without parole. A second offense would get life without parole in the Senate bill, but the House version could also result in the death penalty.

Earlier coverage is here.

AP Report on Senate Action

"Senate passes version of Jessica's Law,"is the title of the initial AP report via DallasNews.com.

Texas' version would make it the sixth state to allow some child sex offenders to be sentenced to death.

Critics have questioned whether the death penalty is constitutional in cases where the victim does not die. In 1977, the U.S. Supreme Court threw out the death penalty in a Georgia rape case. Louisiana has one inmate on death row in a child sex crime, but the case is still subject to appeals in state and federal courts.

Sen. Rodney Ellis, D-Houston, the only dissenter in the 30-1 vote, questioned whether the state should expand death row at a time when post-conviction DNA testing has exonerated people who went to prison for crimes they did not commit.

Just two weeks ago, the Senate hosted two men who served 27 years in prison for sexual assault but were later cleared by DNA testing.

And:

Victim advocates have warned that the death penalty could do more harm than good if they lead perpetrators to kill victims who may be the only witness to the crime.

They also warn that long minimum sentences could make it harder for prosecutors to get victims to cooperate if the perpetrator is a family member. Most sex crimes against children are committed by family members or friends, victim advocates say.

A statement issued by the Texas Association Against Sexual Assault said the longer sentences are unlikely to serve as a deterrent against sex crimes.

"In reality, sex offenders are some of the most manipulative, intelligent and predatory of all violent criminals. Harsher punishments will not prevent Texas children, men or women from falling victim to sexual violence," the group said, adding that lawmakers should spend more money on victims' services. "The Legislature's work on sexual violence is not complete."

Differences between the House and Senate versions will be resolved in a conference committee.  Earlier coverage of Jessica's Law is here.

Texas Senate Debating Jessica's Law Live - UPDATED

The Senate has just passed a version of Jessica's Law.  I'll post a link to the language adopted as soon as it becomes available.  It will next move to a conference committee to work out differences between the House version.

The Texas Senate has brought the Committee Substitute for HB 8 to the floor for consideration.  You can watch streaming video using Real Player, here.

Jessica's Law Politics in the Senate

The Texas Senate can be a very unusual place.  With only 31 members, it has its own clubby culture.  While the statewide elected Lt. Gov. is the presiding officer, there are limits to his or her power. 

And of course there is the two-thirds rule.  While the Senate publishes a calendar each day, it's not worth picking up.  Every bill that comes to the floor is called up out-of-order from the daily calendar, thus requiring a suspension of the rules and the need for two-thirds of the members to agree to suspend that rule; if everyone's present, 21 of the 31 senators.  It ensures that senators do not waste their time debating legislation with no chance of passage. 

It means that once a bill is approved by a committee the author must buttonhole his or her colleagues to gauge their support.  The first step is posting the bill on the intent calendar, meaning the senator intends to attempt to bring the bill to the floor.  Then, the author finds out who will vote to allow the bill to move forward.  When a senator has the support of at least 20 colleagues, he or she goes to the President of the Senate (aka, the Lt. Gov.) and the Senator is recognized.  If the vote to suspend the rules is successful, and it almost always is, the bill is generally passed on second reading.  Then, ususally, there is a second motion to suspend the rule that bills be read on three separate occasions (the first being when the bill was introduced.)  Unless something dramatic is going on, the rule is suspended and there is a vote on final passage of the bill.  In the House, bills are considered on separate days, and the power of the Calendars Committee, which schedules all legislation for floor consideration, rules.

That means legislation can pass the Senate very quickly, sometimes in little more than the blink of an eye, and be on the way to the House, a conference committee, or the governor.

And that has observers wondering what is the hangup with Jessica's Law, Lt.Gov. David Dewhurst's priority legislation from the general election campaign; legislation that some believe would be the foundation of a 2010 race for governor - and you only thought the 2008 presidential race was starting early.

It was posted for the intent calendar last Thursday, and the Lt. Gov. assured some it would be passed that day, but Senator Deuell, the sponsor of SB 5, did not have his votes lined up.  The bill was back on today's intent calendar, but was not called.

Some observers believe that Dewhurst does not want to simply pass HB 8, the House version.  He apparently wants something distinctly different.  That may be a symptom on House -Senate politics (as noted earlier here.)  Senators, however, may only be willing to give the Lt. Gov. so much lead.  Some are reportedly uncomfortable with some of the Senate bill provisions, and they are hearing from local prosecutors, sex abuse therapists, victims' and children's advocates who are also displeased with the Senate provisions.

The bill may be considered in the Senate on Tuesday ... or it may not.  Stay tuned.

Earlier coverage is here.

Texas Senate Reaches Deal on Jessica's Law

Polly Ross Hughes, who has reported extensively on the Texas Legislature's consideration of Jessica's Law proposals this session, reports today on a deal between senators to move a version of the bill in that chamber.  It's in both a Houston Chronicle version and the a San Antonio Express-News version, both Hearst papers with a single Capitol bureau.

While the newly worded bill remains tougher than current law, requiring many child predators to serve 75 percent of their sentences, its penalties are generally less than Dewhurst and Deuell originally proposed.

"The only thing we impose the death penalty for is two (penetration) aggravated sexual assaults of a child," Deuell told the San Antonio Express-News on Tuesday just before distributing copies of the compromise language to other senators.

"There's a trigger in there that if the U.S. Supreme Court rules that the death penalty for nonmurder is unconstitutional, then everything will revert back to life without parole."

The compromise no longer would require 25-year mandatory sentences for all child sex crimes, but it would enhance penalties in current law.

Crimes including sexual assault of a child, or inducing or employing a child to sexually perform, would go from second-degree to first-degree felonies, with minimum sentences increasing from two years to 10 years. A second conviction could result in life without parole.

Indecency with a child including touching — even through clothing — would increase from a second-degree to a first-degree felony, with the minimum sentence increasing from two to five years.

Possession of child pornography would remain a second-degree felony, punishable by two to 20 years in prison. But it would be a first-degree felony for those convicted of possessing more than 600 images.

Earlier coverage is here.

Alabama Considers a Jessica's Law

The Birmingham News has, "Bill seeks death for molestation."

Alabama could join a handful of states that allow the death penalty for some child molesters even when the victim is not killed, under a bill before the state House of Representatives.

HB335 focuses on sexual attacks on children under 12, sexual torture of children under 16 or sexual attacks on anyone incapable of giving consent.

Those crimes would be capital offenses if the defendant already has been convicted of rape, sodomy, sexual torture or sexual abuse in the first or second degree. The punishment in those cases would be life without parole or death by lethal injection.

"I want it to be a deterrent," state Rep. Jeremy Oden, R-Vinemont, said of the bill, which he submitted for the state attorney general's office. "I want them to know they can be put to death for these actions."

Louisiana, Florida, South Carolina, Montana and Oklahoma already allow the death penalty in some cases of non-fatal child molestation. Texas and Utah are considering similar laws.

Louisiana inmate Patrick Kennedy is the only person on Death Row nationally for a non-fatal child molestation, said Richard Dieter, executive director of the Death Penalty Information Center in Washington.

Alabama currently allows the death penalty only for intentional murders that fit at least one of 18 special circumstances, such as a killing during a rape or while fleeing the police.

Another Editorial Against Jessica's Law Death Penalty

The Waco Tribune-Herald has, "Jessica's law could make matters worse."

The House version of this bill has passed. The Senate version has been approved by committee.

This legislation would allow the death penalty option for repeat child predators. It calls for minimum sentences of 25 years to life for first-time violent sex offenses against children, younger than 14. It would double the statute of limitations on sexual crimes against children from 10 to 20 years. And it would mandate lifetime monitoring of convicted child sex offenders by employing global-positioning technology.

So, why do many ardent proponents of laws protecting children from sex offenders oppose the Texas version of Jessica’s Law? It’s because they believe the death-penalty provision is so harsh that it could be counterproductive. It could become a reason for a victim not to report sexual abuse cases to authorities, they say.

Many, if not most, of these cases happen within homes in which the perpetrator is a relative, guardian or family friend. The thought that the relative might face the death penalty might cause relatives not to report their suspicions to authorities.

Another reason to oppose the Texas version of Jessica’s Law, named for 9-year-old Jessica Lunsford, abused and murdered in Florida, was expressed by John Walsh, host of “America’s Most Wanted.” He believes that a two-time predator might be more likely to kill his victim because if caught, the offense would trigger the death penalty.

Since there would be no additional penalty for killing their victims, child predators could be motivated to kill witnesses as well.

Lawmakers should drop the death penalty provision.

More on Jessica's Law proposals is here.

How Far Will the Death Penalty Reach?

That's the title of the latest post at ACS Blog, one of the Essential Law Blogs in the left-column weblog, reporting on Jessica's Law proposals in Texas.  LINK  One minor correction; Texas has executed 390 men and women to date.

Texas uses the death penalty more often than any other state in the union; since 1976, it has executed 389 people. At the same time, though, alarming questions have been raised about the accuracy of its criminal adjudications. In Dallas, for instance, the district attorney's office is allowing the Innocence Project to review 350 cases for claims of factual innocence.

The Texas legislature may nonetheless expand the reach of its death penalty, as it is currently considering a bill that would make second-offense child molesters death-eligible. The bill, authored by Rep. Debbie Riddle, passed through the house on March 6. It still needs to go through the senate and governor's office before it becomes law. Ms. Riddle noted that the law's passage would ensure “that the worst of the worst will suffer serious consequences for the abuse of any child.”

The editorial board of the Austin American-Statesmen contends that this bill is an appeal to the electorate and will not make children safer:

It hardly matters to supporters of the bill . . . that [its use of] the death penalty is probably unconstitutional. Nor did they heed advice that the threat of execution might well lead molesters to kill their victims. Texas legislators easily could have kept repeat sexual abusers of children off the streets with a penalty of life without parole on second conviction. Apparently, it was much more satisfying to assign the ultimate punishment of death for that category of crime. Plus, it is a tailor-made campaign issue for the next election.

The editorial board implicitly refers to Coker v. Georgia, in which the United States Supreme Court held that the death penalty must be proportional and thus cannot be used to punish the rape of an adult. In Coker, the Court seemed to suggest that the death penalty can only be imposed where the defendant has been convicted of murder:

Death Penalty in Jessica's Law Would Be a Mistake

That's the message in an editorial in today's San Antonio Express-News.  LINK

Given some of the heinous crimes committed against children — such as the kidnapping, sexual assault and murder of 9-year-old Jessica Lunsford in Florida — it's understandable that Texas lawmakers would stiffen punishment, restrict parole and enhance supervision of child sex offenders.

Recognizing the powerful emotions reprehensible crimes against children elicit, the gut reaction to put child sex offenders to death is understandable. But as a matter of public policy, it would be a mistake.

Five states have death penalty provisions for individuals who repeat sex crimes against children. Since the Supreme Court reinstated the death penalty in the United States in 1976, however, no one has been put to death for a crime that did not involve the taking of another life.

Only one person, in Louisiana, has been sentenced to death for sex crimes against children. That case is on appeal. It would be wise for Texas to watch that case wind through the legal system before putting a law on the books.

Meanwhile, there's plenty the Legislature can do that passes constitutional muster to protect children, punish child sex offenders and keep them off the streets. Until the Louisiana case is resolved, lawmakers should leave the emotional debate about a death penalty provision for another day.

The House has passed HB 8, a version of Jessica's Law with a death penalty.  The Senate Criminal Justice Committee has passed SB 5 and SB 78, one with and the other without a death penalty.  The full Senate has yet to consider any of the bills.

Satisfaction Denied

That's the title of an editorial in today's Dallas Morning News urging the Texas Legislature to drop the death penalty from Jessica's Law proposals.

The "give 'em the needle" provision embedded in Jessica's Law – inspired by a convicted sex offender's horrendous abduction and murder of a 9-year-old Florida girl, Jessica Lunsford – might be satisfying to say, but it's constitutionally unsupportable. You don't have to tolerate child rape to see that.

For one thing, the death provision requires skipping past a whole class of crime, the vast majority of murders in Texas that are punished by something less than death.

Wherever you stand on the death penalty, we hope you would agree that it should be applied fairly and consistently and reserved for the absolute worst crimes. Child killers. Police officer killers. Multiple killers. Armed robbery killers.    

For another, what leads you to believe a death penalty for a child sex abuser who does not kill will survive U.S. Supreme Court review?

If anything, the high court has been narrowing the window on capital punishment. In 2002, it ruled against the death penalty for the mentally retarded. Three years later, it voted down death for those who killed as minors.

And in the 1977 Coker v. Georgia case, the Supreme Court ruled that death was a disproportionate punishment – i.e., unconstitutional – for the rape of a 16-year-old.

That's why Texas should not join the five states that allow death penalties for child rape, although HB 8 has cleared the House and companion SB 68 is headed to the Senate floor.

State Rep. Craig Eiland on HB 8

State Rep. Craig Eiland raises several valid concerns in on OpEd in his hometown paper, the Galveston Daily News.  It's titled, "Death penalty law must be correct."

I didn’t vote for this version of the bill, but hope the Senate will send it back in a version I can support.

I have several concerns.

First, there are six felonies that could trigger this new capital offense. One of them is “indecency with a child,” which is defined as “engaging in sexual contact with a child (under 14) or causing a child to engage in sexual contact.”

The problem comes in the definition of “sexual contact.”

It is defined as “... with the intent to arouse or gratify the sexual desire  of any person, including touching through the clothing, the anus, breast or genitals…”

Second, “members of the jury are not required to agree unanimously on which  (of the six) specific offenses… were committed by the defendant or when those offenses were committed.” This causes me concern that this language will cause the statute to fail the constitutional test.

Third, the minimum sentence for these crimes is 25 to 99 years with no   possibility for parole until at least 25 years have been served.

I just am not sure that a person who commits multiple offenses of touching breasts over the sweater or the rear end over the jeans should have a mandatory minimum sentence of 25 years without possibility of parole. Punishment sure; we all want to be tough on crime.

Fourth, at present, a person making these allegations must come forward and  make them by his or her 28th birthday. The crime has to be committed before the victim has reached age 14.

The original bill extended the time limit for reporting the crime to age 38.   This final House version of the bill allowed the claim to come forward anytime in the victims life. That caused a concern as well.

Finally, the bill was completely rewritten in one weekend by a few people.   Even though I have great respect for these individuals, this was a new death-penalty offense, which did not receive any public testimony or consideration.

The recent furor over Gov. Rick Perry ordering the HPV vaccine without public debate, consideration or input is enough to cause one to pause for the moment.

News Coverage of Senate Committee Hearing

The Austin American-Statesman has, "Attorney general testifies for death penalty for violent child sex abusers."

The death penalty for violent child sex offenders, even those who don't commit capital murder, would probably be upheld by the U.S. Supreme Court, Texas Attorney General Greg Abbott told lawmakers Tuesday.

Abbott, who joined Lt. Gov. David Dewhurst in urging the Senate Criminal Justice Committee to approve the death penalty in violent child sexual offenderss, said he would go to the Supreme Court himself to defend the issue.

Abbott, a Republican, also dismissed critics who suggested the death penalty could lead some offenders to kill their victims, who might be the only witness to the crime.

"I cannot recall a time when a sex offender, after having committed a crime, pulls out the Code of Criminal Procedure or penal code to figure out what's going to happen," Abbott said.

However, John Bradley, Williamson County district attorney, said he has no doubt the death penalty would encourage sex offenders to kill their victims.

"I can't support a bill that will make it any more likely that a child would die," Bradley said.

The Dallas Morning News has, "2 views of predator plan given."

Lt. Gov. David Dewhurst made a rare appearance before a Senate committee Tuesday to push a proposal he championed on the campaign trail: the death penalty for repeat sexual offenders.

But a number of district attorneys also testified Tuesday that the mandatory 25-year sentences and the death penalty aspects of the bill would cause the exact opposite of the intended effects: It would restrict prosecution and set more predators free.

The Senate Criminal Justice Committee voted to send two versions of the bill to the full Senate. But the panel's chairman, Houston Democrat John Whitmire, said much work remains to be done on the measure, a priority for Mr. Dewhurst, Gov. Rick Perry and other state leaders. Both bills advanced on 5-1 votes, and a similar bill, named for child victim Jessica Lunsford of Florida, already has passed the House.

The hearing showed a disconnect between a politically popular get-tough-on-sex-predators bill and the reality painted by prosecutors that it would, in the words of one, "handcuff district attorneys."

The Houston Chronicle has, "Senate panel OKs death penalty for repeat child sex offenders."

A Senate panel approved a bill allowing the death penalty for repeat child sex offenders Tuesday but said major work remains on the proposal.

Senate Bill 5, the "Jessica's Law" urged by Lt. Gov. David Dewhurst, now advances to the full Senate. The law is named for Jessica Lunsford of Florida, a 9-year-old girl who was abducted, raped and killed.

The Senate Criminal Justice Committee vote was 5-1 with one member abstaining.

Jessica's Law in the Senate Criminal Justice Committee

After nearly six hours of testimony, the Senate Criminal Justice Committee earlier tonight voted the Committee Substitute for SB 5 and HB 8 favorably out of the Committee.  Chairman John Whitmire noted that he had significant reservations about the proposal, but allowed the bill to proceed on the basis of assurances from Lt. Governor David Dewhurst, who testified for the bill at today's hearing, and the bill's sponsor, Robert Deuell, a member of the committee, that CSSB 5 is a work in process and that all senators and stakeholders will continue discussions on further altering the bill.

CSSB 5 and HB 8 are Jessica's Law proposals with a death penalty component.

The text of  CSSB 5 was made available during the hearing,and there was considerable confusion during the hearing as to the exact details in the revised proposal.

Senator Rodney Ellis voted no on the motion to approve the proposal, and Senator Juan Hinojosa voted present and not voting.  The other five members of the Committee voted for the motion to approve the bill.  It's expected that significant changes may be drafted before senators agree to bring the measure to the Senate floor.

I expect that we will see a good deal of press coverage of the hearing tomorrow, and I will link to the that as quickly as possible in the morning.  You can view the hearing at this LINK.

SB 5

SB 5, a Jessica's Law proposal with a death penalty provision, will be heard by the Senate Criminal Justice Committee.  You can watch the hearing at this LINK on streaming video channel 5.  It's expected that a committee substitute will be presented.

Letter of the Law

That's the title of an editorial in today's Houston Chronicle, with the subhead, "Legislation to protect children from sexual crimes cannot offer one-size-fits-all justice."

In the case of Jessica's Laws, a complaint against a parent offender could, with conviction, engender an automatic 25-year prison sentence. The effect of harsh mandatory sentencing has been to drive families with these issues further underground. With the Adam Walsh Act, a convicted 14-year-old offender who may have coerced a younger child into sexual contact of any kind has to register for life along with the serial pedophile.

Maintaining the distinction between these two types of offenders is critical to sound public policy in this treacherous arena. While those who work with serial offenders acknowledge that treatment is rarely successful, this is not the case with juvenile offenders and for opportunistic offenders who know their victims. For youths 10 to 17 with only one victim, there is a 3 percent rate of recidivism among those who complete specialized treatment.

Coping with the complexity of the range of sexual crimes and the very different circumstances that give rise to them requires laws that recognize the likelihood of recidivism, the responsiveness to treatment, and the circumstances of a family, in which 90 percent of sexual crimes take place.

As the Legislature debates bills that respond to these national campaigns, it should take a step back and consider the serious objections raised by treatment professionals, victims' rights groups and tough-on-crime prosecutors. These groups are as concerned about safety for children as any, but they recognize that criminal justice in this arena depends on supporting victims and families in coming forward.

Death Penalty for Sex Offenders May Be a Tough Sell

That's the title of an article in today's Houston Chronicle by Polly Ross Hughes.  It's a slightly different version from the report carried in the San Antonio Express-News, noted here yesterday. LINK

Rep. Debbie Riddle's declaration that there's a "one in a million" chance her bill expanding the death penalty for repeat child sex offenders is unconstitutional might be optimistic, according to legal scholars and death penalty experts who have reviewed the measure.

They point to previous rulings by the U.S. Supreme Court barring the death penalty for adult rape that does not end a life and banning its use for offenders who are mentally retarded or younger than 18 at the time of the crime.

"One could think rather confidently that this would not be upheld," said Lino Graglia, a constitutional law expert at the University of Texas known for his conservative views, citing precedent on the issue and recent decisions limiting the scope of the death penalty even for convicted killers.

Death penalty experts, moreover, note that of the five states allowing the death penalty for child rape, only one handed that sentence down. And it is the case of pedophile Patrick Kennedy, making its way through Louisiana state courts, that could render the issue moot before Texas ever sends a child rapist to death row.

And:

Heinous crimes like the Lunsford case commonly prompt lawmakers to take dramatic action to expand the death penalty, said University of Texas Law professor Jordan M. Steiker, former law clerk to U.S. Supreme Court Justice Thurgood Marshall and co-director of the law school's Capital Punishment Center.

"It strikes me that the debate is not being driven by careful concerns about constitutionality but by raw politics and emotions," said Steiker, who personally opposes the death penalty and has represented inmates on death row.

Steiker and fellow UT law professors Robert C. Owen and Graglia share the view that the U.S. Supreme Court is unlikely to expand the death penalty for child rape or other sexual crimes against the young.

"I don't know who is advising them or what their theory is," Graglia said of Texas lawmakers.

"Nobody is asking me about it," he said. "The court has indicated that it will permit capital punishment only for murder."

The Supreme Court held in the 1977 case Coker v. Georgia that the death penalty was disproportionate punishment for the crime of raping a 16-year-old and therefore was unconstitutional.

"We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist, who, as such, does not take human life," the court's 7-2 opinion said.

Since the United States reinstituted the death penalty in 1976, no one has been executed for a crime that did not result in death.

Graglia pointed out that in the past few years, the court has also embraced "general academic liberal thought" and narrowed who can be put to death by the state.

In 2002, the court ruled out the death penalty for the mentally retarded and in 2005 for those who killed as minors.

More Jessica's Law Coverage

Former Bexar County District Attorney Sam Millsap has an OpEd in the San Antonio Express-News, "Child sex abuse bill is wrong solution."

If House Bill 8 becomes law, the clock would be turned back to the bad old days when it was impossible to persuade a child victim or witness to testify against Dad, Uncle Bill or Mom's boyfriend.

By way of background, I am not some wild-eyed, pointy-headed liberal who is soft on crime; I am a former elected Bexar County district attorney. I was considered a national leader in the effort to develop a model for the prosecution of cases involving child sexual abuse in the mid-1980s.

With the support of the Commissioners Court, a special unit, considered at the time a model by DAs throughout the country, was created for the prosecution of those cases. Our focused effort, led by specially trained prosecutors and advocates for child victims, produced measurable — but limited — success.

What quickly became clear was that, because of their understandable fears and vulnerabilities, victims and witnesses were still reluctant to testify against perpetrators; special laws were required for the trial of cases involving child victims. For that reason, my office authored legislation that made it easier to prosecute these loathsome crimes.

As a result of the efforts of then-Sen. Cyndi Krier and Reps. Frank Tejeda and Dan Morales, that legislation, passed in 1985, has been the law in Texas for many years, eliminating some of the most serious barriers to the prosecution of these cases.

And:

If the death penalty is added to the range of punishments, perpetrators might be encouraged to murder their child victims to prevent them from reporting or testifying. At the very least, the number of legitimate child sex abuse complaints would plummet, producing a result obviously not intended by supporters of this legislation.

This bill, if passed, would be the focus of a successful appeal the first time its application produces a death sentence. There is little, if any, chance that an appellate court would sustain a statute that permits the death penalty for an offense that does not involve a murder. The U.S. Supreme Court, in Coker v. Georgia, ruled in 1977 that a death sentence for the rape of an adult woman was grossly disproportionate and excessive punishment and barred by the Eighth Amendment.

Because this legislation is so clearly unconstitutional, it is possible that even trial judges in Texas would refuse to apply it.

House Bill 8 is a blunt instrument being applied to circumstances that require sensitivity and delicacy. Good intentions often produce bad results; this is one of those situations.

The San Antonio Express-News also carries a story reported by Polly Ross Hughes, "Bill would expand death penalty."

Rep. Debbie Riddle, R-Tomball, declared last week there's just a "one in a million" chance that her bill expanding the death penalty to include repeat child sex offenders is unconstitutional.

"The attorneys we have consulted have said that they believe that this bill is constitutionally sound," Riddle said during floor debate. "They do not believe that the Supreme Court would, under any circumstance, overrule this death penalty part of it."

That opinion is not widely shared.    

Constitutional law scholars and death penalty experts say the U.S. Supreme Court is unlikely to uphold the death penalty for child rape and even less likely for far broader categories of child sex crimes now under consideration in Texas.

They point to previous rulings by the high court barring the death penalty for adult rape that does not end a life and banning its use for offenders who are mentally retarded or under age 18 at the time of their crime.

The Dallas Morning News has, "Predator penalties criticized."

A coach pats a freshman cheerleader on the behind in the hall; an uncle touches his teenage niece; a baby sitter plays doctor with the young boy she's watching.

Bills moving through the House and Senate would allow for these crimes, under some circumstances, to be punished by death.

Under one version, sex offenders who have already served time – either in prison or on probation – and whose victims were younger than 14 would be eligible for life in prison without parole or execution the next time they're found guilty of inappropriately touching a child. In another version, a few repeated instances of touching could lead to such punishment.

The package of "Jessica's Laws" being championed by state leaders and moving swiftly through the Legislature is intended to deal harsh consequences to sexually violent predators. But the bills also cover indecency with a child, defined in the bill as any type of sexual touching over or under the clothing.

While that's a serious crime, many prosecutors, victims advocates and even lawmakers pushing the bills generally agree that someone convicted of groping a child shouldn't be sentenced to death. Some suggest that the legislation be changed to provide more punishment options, but the bill's authors are nonetheless pressing on with the legislation as written, saying they trust district attorneys, juries, and judges to apply the law only to the worst cases.

And:

And "outrageous results" are not new to Texas, certainly. The case of        Tyrone Brown made national headlines after The Dallas Morning News reported that he was sentenced to life in prison after testing positive for marijuana while on probation for a $2 armed robbery in which the victim was unhurt.

SB 5 to Receive Senate Hearing

That would be Senator Bob Deuell's version of a Jessica's Law proposal with a death penalty provision.  It will be heard Tuesday afternoon in the Senate Criminal Justice Committee.  The hearing announcement is here.  More on SB 5, including the text, is here.

More on HB 8

And this time from the inside.  State Representative Senfronia Thompson Little Dog blog has a post on the bill.  LINK  Here's an excerpt of the must-read post:

I voted against H.B. 8 because of its reckless and likely unconstitutional expansion of the death penalty. Given recent Supreme Court decisions that have limited the use of the death penalty, this law would not likely past the test of constitutionality. Moreover, recent studies have opened all of our eyes to the grave consequences of our imperfect usage of the death penalty. Given the amount of people who have been exonerated after being placed on death row and the amount of people who have actually been put to death in Texas, I have little doubt that innocent people have died at the hands of our state.

Also at the heart of the matter is the fact that H.B. 8 will not likely deter child predators from threatening the wellbeing of our children. In some cases, the law may create an incentive for sex offenders to murder their victims instead of letting them go. This is because H.B. 8 allows for the death penalty to be used against sex offenders who do not kill their victim. Since the victim is often the only witness to the crime, a sex offender could plausibly better his chances of not getting caught by killing his victim. This horrible scenario is created by this bad piece of legislation.

Another problem with punishing sex offenders with death is the likelihood that the knowledge of such a penalty would deter victims of child sex crimes from stepping forward and reporting their abusers. It is disturbing but true that a great percentage of child sexual abuse happens inside the family. Knowing that reporting a family member could lead to that relative's execution, creates reason for victims to keep their abuse hidden from law enforcement.

Thanks to the loyal reader who forwarded this.