Court mulls death penalty for child rape

Court mulls death penalty for child rape – Yahoo! News

The Supreme Court agreed Friday to decide whether a state can execute someone convicted of raping a child, one of the few remaining crimes that does not require the death of the victim to result in capital punishment.

I do oppose the death penalty, but a ruling that would declare the death penalty for child rape unconstitutional would seem to be an exercise in legislating from the bench more than an exercise in constitutional review. The 8th Amendment reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Given the constitutionality of the death penalty, which the defendant’s lawyers don’t seem to be contesting, I find it hard to believe that the crime of sexually molesting a child is not deserving of a harsh sentence. (Especially in this case where the victim was the perpetrator’s stepdaughter. I can’t imagine the trauma a young girl being raped by a father figure would go through.)

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman.

I wasn’t aware of this, but without having read the original decision, I find it difficult to believe that this isn’t a case of judicial overreach. We may not like executing someone for rape, but it’s certainly a severe crime where the desire to execute someone for it is understandable. Given that, it seems that under our Constitution, that’s a legislative question more than a judicial matter. Matters relating to the application of moral questions, to the extent they belong to the government at all, are properly reserved to the Legislature, rather than the judiciary.

Comment Rescue: Texas and the Death Penalty

On my recent post against the death penalty, commenter Patrick made the following point which I found interesting:

A lot of people don’t understand why we have so many executions in Texas. It’s isn’t a brutal “law and order” mentality.

Here’s the problem: Texas law does not allow for a “true” life sentence. Juries can sentence someone to life; but they are also instructed that the killer may be paroled anyway, based on what a state board decides.

So jurors sentence many people to death not because they want them dead, but because it is the only way to be sure they stay locked up forever. If we had a life w/o parole option, I think the trend here would match that in other states.

I hadn’t known that about Texas law. I wonder why they don’t fix that.

States Debate Use and Expense of Capital Punishment

States Debate Use and Expense of Capital Punishment – National Constitution Center

The Nebraska Legislature last month came within one vote of repealing its death penalty law. The new governor of Maryland called for the outright repeal of capital punishment. Most of Georgia’s 72 capital cases have been stopped because the state’s public defender system has run out of money. New Jersey lawmakers are drafting a bill to repeal that state’s death penalty. And last month the governor of Virginia, a state whose 96 executions since 1976 are exceeded only by those in Texas, vetoed five bills that would have expanded the use of capital punishment.

The legal system’s delivery of death sentences has dramatically slowed. During the 1990s the nation’s courts would customarily issue about 300 death sentences annually.

Those numbers have plummeted in the last seven years, to 128 in 2005 and 102 last year, according to the Death Penalty Information Center, a Washington, D.C.-based advocacy group that lobbies against capital punishment.

Capital punishment is one of the issues where I stray from views that are typically associated with conservatives, although I believe that opposition to the death penalty is the true conservative position. First, and foremost, if conservatives are to oppose intrusive government, how can we support the ultimate intrusion, the ability to end someone’s life? Second, conservatives, being primarily concerned with culture over politics, must admit that the death penalty brings with it a certain hardening of the hearts of our culture. It encourages people to view others as expendable and not worthy of life. That can only have a negative impact on our view of the importance of life over all.

In addition, as a Christian, and a Catholic, I agree with the statement of in the Catechism of the Catholic Church (#2267):

Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.”

It would seem axiomatic that all decisions must be made on the side of saving lives, allowing for the taking of a life when there is no other way to save other lives. So, it would be permissible for a woman to seek an abortion in the case of a tubal pregnancy, where the embryo lodges in the Fallopian tube rather then the uterus. Since the object in this case is to save the woman’s life with the destruction of the child as an unavoidable consequence, an abortion would be permitted in such a case. Similarly, capital punishment would be permissible when there is no other way to protect society from the dangers posed by the criminal in question. (I think this is a good summary of the ethical principle of “double effect.”)So, for this reason, if Bin Laden were still alive (which is in doubt given his three year absence) and we were to catch him, I think it would be permissible to execute him since there would be no other way to protect innocent lives given his obvious determination to kill as many Westerners as possible. So, given this caveat, I would be against an effort to permanently ban capital punishment in America. While it’s not currently needed, given the peace prevalent in our society, should that order no longer exist, situations may arise where the good of society demands it.

But, in any situation, the burden of proof should weigh strongly against execution given the importance of every human life. In addition, if someone has committed crimes worthy of execution, don’t we, as Christians, want to try to save their souls? Don’t we want to gain them a conversion of heart and the forgiveness of God before we send them to meet their eternal end? Wouldn’t God want us to take every opportunity to save the person’s soul rather than rid ourselves of them at the first opportunity? Which is the more Christian approach: working to bring them to God, no matter how long it takes, or to execute them as son as we can?

That said, I am obviously pleased with the decline in executions and death sentences being handed out, but am less sanguine about the long term outlook. I can’t shake the feeling that given the decline in crime over the past decade or so, that people are feeling less threatened by crime and so are less likely to strike out at criminals. If (when?) crime increases to higher levels, we will likely see an increase in support for the death penalty again.

So, despite the decline in public support for the death penalty, there’s still much work to be done if we’re to prevent the tide from turning back in the future.

Benedict’s ‘Well Done’

The National Catholic Register ran a good editorial recently explaining the Church’s opposition to the death penalty.

Some Catholics has dismissed this opposition saying it is a break with traditional Catholic teaching and therefore the personal opinions of John Paul II and Benedict XVI. The Register rightly points out that “It’s not a break, but a further development of a longstanding moral precept in the Church: You must never kill if you don’t have to.”

Capital punishment, while unfortunately necessary in some cases (Osama Bin Laden, I’m looking at you), should be restricted only to those cases where absolutely necessary. Unnecessary killing hardens the souls of both those who do it and those who support it. God’s mercy is available to all and all should be allowed to receive it. Who are we to deny them that mercy?

On a political level, as a conservative, I don’t want the government deciding to end life. The right to life is the underpinning of all other rights; if we’re not allowed to live, what do freedom of speech or property rights matter? Given government’s inherent tendency to grow in power, do we really want to grant them this power, the power to take our lives?

Plus, with today’s technology, we can much more successfully than in the past keep society safe from the most hardened criminals. The answer isn’t in killing more people, but in makiing sure the worst ciminal elements are kept off the streets.

The death penalty is not needed in today’s society and therefore should not be used.