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Thursday, March 30, 2006 

Expanded Death Penalty

A South Carolina bill would allow the execution of violent sexual offenders who commit multiple crimes against children.
The Jessica's Law legislation would allow prosecutors to seek the death penalty if a murder is involved and the defendant was deemed a sexually violent predator.

The bill also would set a minimum prison sentence of 25 years without parole if the victim is younger than 11, require more frequent registrations by those deemed sexual predators and require electronic monitoring once they were released from prison.

Bryant's amendment would allow prosecutors to seek the death penalty for those convicted a second time of criminal sexual conduct with a child younger than 11 years. Those currently convicted of such an offense face up to 30 years in prison.
This would definitely test the Constitutional limits of the death penalty. Offhand, I don't know of any Supreme Court case that addresses the issue of executing criminals in this situation. I remember a case from the late 70's (whose name escapes me) that said it was unconstitutional to execute someone for raping an adult woman. However, I don't know if the child issue has ever come up. If this bill passes, it will definitely make its way to a higher court. If the Supreme Court ends up taking the case, we will see an interesting split in how the various Justices handle Eighth Amendment, Cruel and Unusual Punishment cases.

While I'm for the death penalty in cases of treason and murder, I am not in favor of it for anything else. I speak as one who was molested. 25 mandatory per offense would suffice.

I think that there are enough votes on the Court to strike this law down. Even Scalia and Thomas would end up looking back to the original meaning of the 8th Amendment. I'm not sure if violent child molestation was a capital crime at the Founding.

Well, I'd be willing to bet that "justice" would have been delivered by the childs parent upon the offender via musket.

I really have to plead ignorance on the details of colonial era capital punishment. It would be an interesting topic to research, and it's definitely an area that I'd like to know more about. All I need is the time to do it...

Scalia has argued (and I lack the resources to dispute it) that capital punishment was the ONLY punishment available in the founding era, and that the definition of a felony WAS a capital crime. I would perhaps allow more evolutionary content into the term than would Scalia; I lean towards the view that the only substantive restrictions placed on the use of the death penalty by the Eighth Amendment are a rough proportionality between the punishment and the crime, and that the punishment be not be wanton, capricious, personalized or unduly torturous. That is, as long as the punishment is authorized by statute for specific crimes, and there is some level of congruence between the crime and the punishment (no beheadings for grand larceny, for example), and the punishment itself is as humane as possible (no burnings or electrocutions; hanging is okay, but a side salad of drawing and quartering is not) then the eighth amendment is satisfied, under either the original understanding or a modest view of possible evolutionary content.

I have no moral objection to the death penalty, but I do have qualms about its application. I do think it should be abolished - or at least, suspended - because there is simply too much evidence that it is not applied with due care and attention, and it is inherently more subject to miscarriage of justice than detention. However, were these hurdles surmountable, in cases where guilt is genuinely not in doubt, and provided it can be applied relatively humanely, I would fully support this bill, and moreover, would overrule Coker to allow the death penalty for rape.

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