The Denver Post today has an editorial opposing the bill to allow the death penalty for defendants convicted of sexual assault on a child if they have a prior conviction for the same offense. The Post is opposed to the death penalty, but says that’s not the primary reason for its opposition. It says death penalty proponents should also oppose the bill because it may create more of a likelihood the young victim will be killed in addition to being raped. That’s probably true. As one law professor put it in discussing a similar law in Oklahoma,
David Brook, a law professor at Washington and Lee University in Lexington, Va., said the measure might actually put a child rape victim’s life at risk. “The last message you want to give an offender who has the life of a child in his hands is you might as well kill the child because he’s already got the death penalty,” said Brook, who runs the Virginia Capital Case Clearing House, which assists lawyers in death penalty cases. “This is a very stupid message.”
In addition, the Post makes the argument that family members won’t turn in one of their own who raped a child if they think the offender can get the death penalty, leaving the child at risk for repeat assaults. I take issue with another reason provided by the Post: that the law violates the Judeo-Christian ethic of imposing more punishment than “an eye for an eye.” As Mahatma Ghandi said, “an eye for an eye leaves the whole world blind.” More importantly, let’s leave the bible and religion out of our criminal justice system. Can we just have the debate on a constitutional basis — whether the death penalty for an offense that does not result in death is disproportionate to the crime and contravenes the evolving standards of decency in a civilized society, in violation of the 8th Amendment’s ban against cruel and unusual punishment? As another law professor writes in this law review article (pdf),
First, there is a strong national consensus against imposing the death penalty for child rape. In addition, the death penalty is a disproportionate punishment for the crime of rape, regardless of the age of the victim, because it does not cause death. Moreover, imposing the death penalty for child rape would fail to serve, and would likely inhibit, the retribution and deterrence functions of the U.S. penal system.
One other note: I disagree with the Post that we need to increase punishment for first time child sex offenders. The penalty already is a maximum of life in prison, with the Parole Board and the Sex Offender Treatment Board, not the judge, making the decision as to whether an offender is released. According to a 2006 Colorado Department of Corrections report, since 1998, 976 sex offenders have received indeterminate sentences. Only three have been granted parole, according to the report. That said, I agree with the Post that this bill should be soundly defeated.