Thursday, February 22, 2007

Death Penalty Provision in HB 8 is probably unconstitutional

The Texas House Committee on Criminal Jurisprudence approved HB 8 on a 5-0 vote with four members of the committee absent. Four absent members? Hey people, recess is over, back to work. You were elected to be there to vote on bills and to help the committee reach informed decisions by articulating your position on issues before the committee. The absent members were Representatives Escobar; Hodge; Mallory Caraway; and Paul Moreno.

The bill passed with the provision for the death penalty for repeat child molesters intact. What a waste of time. That provision will most likely be found to be unconstitutional as a violation of the 8th Amendment's prohibition of cruel and unusual punishment. The committee heard expert testimony to that effect, but chose to ignore it. At least those members who were present when the testimony was given chose to ignore it. The absent members just ignored the whole thing. Hmm, it would be nice to think that they also thought that the committee was wasting time with this issue, but we don't know what they thought, since they weren't there to tell anyone.

It is frightening to think that this death penalty provision may result in the death of a child who otherwise would not be killed, if the criminal thinks he has to murder the victim in order to eliminate the only witness to the crime. If the punishment for raping a child is the same as the punishment for raping and murdering a child, then a child may one day be murdered who otherwise would not be murdered because some nut is going to reason that he might as well get rid of the only witness since the punishment is the same anyhow.

In 1977, the U.S. Supreme Court ruled in Coker v. Georgia that the death penalty for people who commit rape of an adult is unconstitutional, because the punishment is disproportionate to the crime. The Court has not ruled on whether they would also consider the death penalty for a person who rapes a child as disproportionate, but it is highly likely that it would. There has not been an execution in the United States for non-homicide crime since 1964. There are provisions for the death penalty for some crimes that do not involve murder, such as treason, but treason is eligible for the death penalty because the assumption is that treason can result in the deaths of people. For example, Robert Hanssen, who is the subject of the current movie "Breach" could have been given the death penalty for his treason, which caused the deaths of at least three people, who were executed by the KGB after Hanssen told the Russians that they were working for the U.S. Hanssen received a sentence of life in prison without parole, instead of the death penalty for which he was eligible, because he cooperated with prosecutors.

Only five states allow the death penalty for child rapists and only one person (in Louisiana) has been convicted of such a crime and sentenced to death. Several juries in Louisiana have been asked by prosecutors to sentence child rapists to death, but only one jury has so far chosen death.

The Supreme Court has been limiting the use of the death penalty lately, not allowing it to expand. There seems to be a national consensus that the death penalty is not appropriate unless the crime results in a killing. The Supreme Court banned executions of juvenile offenders and people with mental retardation in recent years, because they concluded that a national consensus existed against such executions. At the time of both of those Supreme Court rulings only 18 of the 38 death penalty states had banned executions of either juvenile offenders and people with mental retardation. Today, only five of the 38 death penalty states allow the death penalty for child rapists, so 45 states do not allow it. That looks a lot like a national consensus against such a severe punishment in these cases.

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