Creaton of rape-dealth penalty statute was bad politics
By BOBBY G. FREDERICK
For the Spartanburg Herald-Journal
Published: Sunday, July 20, 2008 at 3:15 a.m.
Last Modified: Sunday, July 20, 2008 at 9:59 a.m.
Only six states, including South Carolina, have statutes providing for the death penalty in child rape cases. The enactment of South Carolina’s statute was a perfect example of bad politics controlling legislation. In the wake of some horrific and high-profile child rape cases followed by the media, some legislator decides that it will be great PR to campaign for the death penalty for these monsters. Once the legislation has been introduced, no politician wants to vote against it because, hey, it is pretty good PR, and you are either for it or you are in favor of the child rapists, which certainly does not win you any votes.
Although the politicians and some victim advocates speak out about how they want the death penalty for child rapists, and it makes a good sound byte during election time, the Supreme Court of the United States points out that there is a national consensus against the death penalty for child rape.
Since the court’s 1972 decision in Furman v. Georgia, nine states have permitted capital punishment for adult or child rape, and yet no person has been executed for any non-homicide offense since 1963. Louisiana is the only state that has sentenced a person to death for child rape, resulting in the opinion in Kennedy: Despite rape’s permanent and devastating impact on a child, “in terms of moral depravity and of the injury to the person and to the public, (non-homicide crimes including child rape) cannot compare to murder in their severity and irrevocability.”
The court looks at whether the death penalty for child rape would serve the purposes of retribution and deterrence. Looking at retribution, the death penalty will not lessen a rape victim’s hurt, given that capital cases require a long-term commitment to testify for the prosecution over a period of many years. By enlisting a child victim to assist in seeking the death penalty over the course of years “forces a moral choice on the child, who is not of mature age to make that choice.”
The goal of deterrence is not furthered because “evidence suggests that the death penalty may not result in more effective enforcement but may add to the risk of non-reporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member.” Also, by making the punishment for murder the same as the punishment for rape, it gives the rapist an incentive to kill the victim.
The court takes note of the “relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced and even imagined child testimony, which creates a special risk of wrongful execution in some cases.”
There are many problems with cases involving child testimony. Child molestation cases often arise in the context of divorces and custody disputes, and there are often problems with the testimony. One problem that arises quite often is the problem of suggestive interviewing techniques with children and the problem of repeated interviews.
I have seen cases where the interviewer asks the child leading questions (suggestive of the answer), the child denies the allegations, and the interviewer continues asking the same leading question in different ways or keeps coming back to the question, until the child gives the answer the interviewer is looking for.
This can be compounded by the effect of multiple suggestive interviews, often beginning with a family member who may be suspicious or have an ax to grind, followed possibly by other family members, followed by an officer and then one or more interviews by a child advocate.
The effect of suggestive interviews on a very young child, particularly when they are repeated, is that the child may begin to believe the allegations, even if they were not true to begin with. The state then has a very credible and believable witness with which to prosecute its case. In South Carolina and other states, laws have been passed that would allow the presentation of videotaped testimony by the child in court - without the opportunity to cross-examine and in violation of the right to confront witnesses.
The dangers of a prosecution for child rape, particularly when there is no corroborating evidence, should be clear. Juries do not want to take any chance on releasing a person who might then hurt more children. Due to the prejudicial nature of the accusations, defendants are often presumed guilty as soon as they are accused, and it is an uphill battle to demonstrate the flaws in the case and to get beyond the preconceived notions of the jury.
The court made the right decision in Kennedy, but it is still disturbing that four of nine justices voted to allow states to kill defendants under these circumstances.
Bobby G. Frederick of Myrtle Beach is a criminal defense attorney
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[...] Sen. Kevin Bryant | equal time to the left…very far left [...]
The particular Kennedy case in Louisiana was a brutal, savage rape against someone under 12 years of age who would have died had not she received medical and surgical help.
Treason carries a constitutional death penalty prescription in the United States, so there seems to be a conflict of legal opinion in this Supreme Court Kennedy case.
Did George W Bush commit treason when he thunk to Satan?—Satan telling him to go to war against Iraq and kill millions of civilians and patriotic Iraqis in the name of the fatherland Israel
Maybe, we should have another Supreme Court case to challenge this unjust Supreme Court Kennedy case.
On every Common Form College application, the Semite race is ignored. Is this gross discrimination against the Arabs, the Egyptians, The Phoneticians, and the Hebrews in the colleges and universities of South Carolina and the nation. Where is it in our Constitution that say that a Middle Eastern race of citizens should be ignored and abandoned or enshrined, worshiped, adored as the Supremest religious race in this land?
Is America a Constitutional republic or a theocratic nation under Satan and Shrub?
http://www.mytvisonfire.com/couchpotato/wp-content/uploads/2007/06/chrisangel.jpg
A gypsy magician wearing a Prussian cross and a pair of treason handcuffs walking on water. This son of a gypsy is a lot closer to being the son of God that the Jews and the Republicans and Democrats in the Senate are going to make George W Bush to be during a treason trial.
Off with their heads!–The Queen of Hearts, Alice in Wonderland
And we see the response of the far right above. Somebody please get a net!
How does agreeing with and explaining the reasoning behind a decision endorsed by a majority of a very conservative supreme court bench constitute ‘the left…the very far left’? Which planet are you from, man? Have you no respect for American institutions of law? It’s a shame that a person who is so unamerican, so hateful toward our country and her rule of law, is elected to public office.
Here’s the definition of “the left…the very far left:” Those who would rather spend $15,000 per year to house, clothe and feed someone who rapes a child versus those who would rather spend $50, or whatever it costs for the injection (I still prefer the .50 bullet approach), to put us all out of their misery.
I don’t know what set of black robes you’re looking at, but while there are four decent conservatives on the court, the other five clearly favor the rights of the pedophile over the victim.
The bottom line is that Kevin Bryant puts victimized children above the sensitivities of the leftists who use the courts to advance the agenda no one will vote for. In this case it’s the protection of pedophiles whom they believe simply need therapy and understanding.
FariQuestion, you’re free to choose that side, but at least have the guts to stand up for it instead of calling others names.
PC
By that definition there is no “far left”. No one supports pedophiles or wants them to go unpunished. I agree with Kevin that crimes against children deserve harsh punishment. But, anyone who has been exposed to much family court will tell you that in more than a few cases, a child has been coached in his or her testimony by interested parties. Another issue is the trauma to the child in facing the perp in court and testifying in general. I want what’s best for the victims, not what satisfies the rowdy mob mentality.
It is also well documented that the cost of executing is much greater than incarceration. If you want swift execution, it is available in most dictatorships.
My biggest problem with this opinion is that it claims that there is not crime other than on that takes the life of another that can result in the death penalty. For example, two different people can take all the same set of actions (shooting the gun, intending to kill the victim for instance), but it rests on the resiliance of the victim’s life as to whether or not the shooter - both of whom did the exact same thing - will be liable for the death penalty. However, some one who ends up killing another while not intending too can, under this twisted Supreme Court rubric, recieve the death penalty.
Furhtermore, the columnist here writes “Looking at retribution, the death penalty will not lessen a rape victim’s hurt,” The retributive aspect of criminal justice is concerned with the actual punishment of the perpetrtor - while the writer makes OTHER arguments against the death penalty, some compelling, some not, death is about as much retribute you can place on anyone person bar none. This writer intnetially conflates the terms to confuse that issue.
Also, the problems with child testimony and confrontation which he addresses are resultant issues from OTHER poor Supreme court decisions on which he and I probably agree, that Supreme Court rulings not allowing for confrontation against childern accusors is in direct violation with the explicit wording of the constituion.
Whether Mr. Frederick is right or not about the motivations of the politicians who intorduced this legislation - his belief in a Supreme Court opinion predicated in part on the basis that a “majority of Americans” believe it to be right or wrong is not good legal reasoning or a strong pillar of jurisprudential philosiphy to live by. Furthemore, if he were correct in this opinion, then why would Senators and other politicains be able to ’score points’ by intorducing such types of legislation. It would appear that is antitheitical to his argument.
Lastly, death sentencing by states has NOTHING to do with the 8th Amendment and is a clear violation of federal authority into the realm of criminal law enforcements left primarily to the states under the bill of rights. If this was a federal child rape statue - then the Supreme Court justices can “have at it,” but it is not, it is violation of federalism.
I have to admit, and I think Sen. Bryant can attest (if he reads his comments much), I disagree with him on about everthing, yet I am intellectually honest enought admit when I think some one is right.
Futhermore, I think too often politicians want to get ‘tough’ on crime and not ’smart’ on crime. I actually did not agree with the child rape law as written. But as adamantly as I possibly can, I disagree with this very poorly legally reasoned Supreme Court opinion, primarly on the fact that is purports to say that there can be no death penalty without the death of the victim. Basis for this idea…well we’ll just have to take a gander at the breakfast menu at the Supreme Court I guess.
DT
The SC statute provides for the death penalty upon a second conviction. That would have to be one unlucky fellow to be victimized by a team of wiley prosecutors and psychiatrists twice.
The reason it currently costs more to execute than imprison is that lefties like you support the extension ad infinitum of meaningless appeals.
Be proud of being on the left. Don’t try to camoflage it. That only confuses you as you try to debate.
Palmetto, you are (unsurprisingly) sadly uninformed about the costs of the death penalty. In Texas, for example, where they love to kill people (even as they thump their bible, which you probably do as well) it is estimated that every death penalty costs taxpayers $2.3 million. If only things were as simple as your SC educated thinking…
Oh, and I doubt that the 218 people who have been exonerated while on death row would consider their appeals meaningless. Sorry to confuse you with the facts.
Mark
I didn’t say it was cheaper to fight the liberals in the courts. I said it was cheaper to execute pedophiles.
Thanks, however, for the supoprting evidence of the scourge of the left. $2.3m spent on lawyers and delays and appeals–courtesy of the same justice system that doesn’t think those who rape children should be put to death.
Oh, and was one of those 218 people convicted twice of raping a child? I doubt it.
You’re not confusing anyone. You just want to house and feed pedophiles for the rest of their lives. That’s crystal clear.
PC
I am sorry you think so little of the rights we have under our Constitution. Like due process, the right to an attorney, a jury trial, innocent until proven guilty, freedom from unreasonable searches and seizures, etc. Since you have the answers, tell us which rights you would do away with. It sounds like you want to prejudge and punish minutes after arrest. Heck, why bother with an arrest. Just empower the vigilantes.
It sounds good to your buddies to talk so tough, I’m sure. Unfortunately, your ideas aren’t “conservative”, they are straight from the communist dictator manual. Everyone who disagrees with you is a “lefty”. How original! How do you know I’m not a Rino?
Nice comeback, Potsie. Your net full of red herrings attempts a pivot from your defense of lifetime room and board for pedophiles, but we’re not fooled.
Look, if you believe that someone convicted twice of raping a child has somehow been denied their rights, then light a candle for them, go to law school or hold a vigil outside the supreme court, but until then just admit that you believe that the taxpayers should support pedophiles for the rest of their lives. Or maybe you don’t even think they should stay in jail. Do you?
P. S. Lefty = RINO; so I do know.
I did go to law school. That’s one reason I know you know nothing about the Constitution. You also want to insult and name call, rather than debate or discuss. I decline to participate further.
And then he ran away…
to everyone worried about how much the death penalty costs,
why not just take em out and shoot em?!
BUT since that isn’t reality, money isn’t everything.
what happened to doing what’s right???
Cool post I will continue to look out for anymore of your future posts.