The Supreme Court’s 5-4 decision to overturn a Louisiana statute
imposing the death penalty for child rape has caused quite a bit of
conversation among conservatives.
It shouldn’t. The death penalty is not appropriate for child
rapists and in fact is likely to be counterproductive. Capital
punishment should be reserved for one type or offender only —
murderers, particularly people who commit murders in the course of
another crime.
It’s easy to get emotional and to want to inflict capital
punishment on anyone who commits a heinous act such as child rape.
But that doesn’t accomplish anything or protect anybody. There is
only one reason for imposing capital punishment, and it’s a good
one. That is to draw a bright red line between felonies —
crimes that can earn you long prison time — and felony
murder — killing someone in order to eliminate the
principal witness to the crime.
Child rape falls right square in that category. It’s a heinous
crime but it does not kill the victim. If the penalty for child
rape is death and the penalty for child rape and murdering the
victim is also death, then there’s really no penalty for
killing the victim and eliminating the principal witness to the
crime. All criminals know this. It’s the legislators and
anti-death-penalty crusaders — and even advocates of the death
penalty for lesser crimes — who can’t seem to get it through their
heads.
IN THE EARLY DAYS of criminal reform — say around the 18th century
— people were being hung for crimes as trivial as pickpocketing.
Baron de Montesquieu, the great French legal philosopher, was one
of the great minds who saw the folly of this overzealous
application. In The Spirit of the Laws (1748) he
wrote:
It is a great abuse among us to condemn to the same
punishment a person what only robs on the highway and another who
robs and murders. Surely, for the public security, some difference
should be made in the punishment.
In China, those who add robbery to murder are cut in pieces: but
not so the others; to this difference it is owing that though they
rob in that country they never murder. In Russia, where the
punishment for robbery and murder are the same, they always murder.
The dead, they say, tell no tales.
The great accomplishment of death penalty reformers was to have
capital punishment limited only to murder. That way robbers and
rapists knew the rules — you stick up your victim and get caught,
you go to jail. You stick up your victim and
murder them
in the process, you go to the electric chair.
A comparison of murder rates and executions between 1930 and
1964 shows that this logic was well understood by all. The murder
rate peaked at 9.7 per 10,000 in 1933 and then declined steadily to
4.9 per 10,000 in 1963. Executions followed them down at almost
exactly the same pace, from 170 across the nation in 1934 to only
48 in 1962.
Then death penalty opponents began to hold sway. The Warren
Court began postponing executions on all kinds of trivial
procedural grounds. There were only two in 1965 and none after
1967, even before the Supreme Court overturned all death penalties
in 1971.
Simultaneously, murders began to rise. They turned up sharply to
5.5 in 1965 and climbed steadily until surpassing the old rate at
9.7 in 1973. They remained extraordinarily high, peaking at 107 in
1980 and then back up to 105 in 1991. During this 25-year period,
an additional 500,000 Americans were murdered above the norms
established in the 1950s and re-established after 1991.
In that year, after long, long wrestling with the courts, states
began administering the death penalty again for murder. Executions
climbed from above 30 in 1992 for the first time since 1962 and
reached 98 by 1999. At the same time, the murder rate dropped
precipitously, from 10 per 10,000 in 1992 all the way down to 5.6
in 2001. Since then legal challenges have mounted, however, and
executions dropped back down to 42 in 2007. The murder rate stopped
and is now rising slightly.
FOR SOME REASON, this glaring evidence is completely ignored in
debates over the death penalty, although it is hard to see why. In
the early 1960, murders during the course of other crimes had
decreased to the point where 90 percent of homicides were “crimes
of passion” — lethal arguments between family or friends. In fact,
this was one of the main arguments of opponents to capital
punishment — that murders were “crimes of passion” that couldn’t
be deterred by legal threats.
All that rapidly changed. Without any deterrence to murdering
the victim, “stranger murders” — murders where the killer and the
victim had no connection — rose to more than 50 percent of
homicides. This was a clear indication that such murders actually
were being deterred by the presence of a death penalty but
constituted the bulk of the upsurge in murder once it was
discontinued.
The logic is not hard to follow. During a rape or robbery, the
victim is the principal witness to the crime. The criminal can make
all kinds of threats — “Don’t tell anyone or I’ll kill you,” “I
know who you are, I’ll come and get you” — but they have no real
impact next to the certainty of eliminating the witness
altogether.
Trying to impose the death penalty indiscriminately for
non-capital crimes only confuses the issue and creates more fodder
for death penalty opponents. The clear case for capital punishment
should be to create a bright red line between a crime against the
person — rape or robbery — and murdering that person in order
to try to get away with the crime. Let’s keep it that way.
