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.