Posted by
Ed Lilly on Sunday, April 20, 2008 5:39:57 PM
Ann Woolner's most recent column on Bloomberg.com discusses an appeal before the Supreme Court involving Louisiana’s death penalty statute. Under Louisiana law, a criminal convicted of raping a child can be sentenced to death, even if the victim was not killed during the commission of the rape.
Woolner provides the basic facts of the particular case involved in the Supreme Court appeal, and acknowledges that on an emotional and visceral level, the death sentence is a satisfying and enticing option. But she then goes on to argue that the death penalty should not be imposed in such cases, citing various arguments to support her position.
Interestingly, there is apparently a friend of the court brief on file in the case from the National Association of Social Workers and other similar organizations that argues the imposition of the death penalty is more harmful to the child victims than not imposing the death penalty. A key argument they make is that the possibility of the death penalty means there is an incentive for the child rapist to kill the victim so that there is no surviving witness. And even if the child is not killed, the social workers’ brief argues that there is greater potential for future harm and trauma to the child victim as they have to participate in greater pre- and post-trial hearings, appeals, etc., reliving the trauma more than they would have without the death penalty.
It’s an interesting argument, and a logically presented one. But it doesn’t seem to answer a lot of questions for me.
Such as, should we really be assuming that child rapists are rational actors who assess their options vis a vis whether to kill their victim based on whether or not they may get the death penalty? I understand that Ann Woolner and the National Association of Social Workers are rational people who can figure out the role of incentives and consequences in arriving at a decision.
But are child rapists that rational and calculating? I doubt it. Even in the example Woolner provides in outlining the facts of the case involved in the appeal, we get pretty clear evidence of what you hear from law enforcement and defense lawyers all the time - criminals generally do stupid things. So in the case at issue, the rapist stepfather’s first act following the commission of his brutal crime (which apparently resulted in his step-daughter needing emergency surgery) was to call his boss to say he would be in late, and to ask how to get blood stains out of white carpet.
The rapist's next move? He called a carpet cleaning company to schedule an emergency cleanup.
Over an hour an a half after making these phone calls, the guy finally calls 911 to report his stepdaughter’s rape.
Do we expect a monstrous child rapist who is so incompetent that he left this trail of evidence to be sharp enough to think about potential sentencing ramifications? I just don’t see it.
And while the issue of greater pre-trial publicity and hearings in a death penalty case may be a consideration, I am not so sure the extended appeals argument is quite as strong as Woolner makes out. Typically, the appellate courts are not re-hearing the entire trial, so there is no need for a rape victim, or any other crime victim, to keep having to tell their story repeatedly as the appeals keep making their way through the system. The appeals usually involve procedural and, as in this case, constitutional arguments that would limit or negate the long-term involvement of the child victim.
Another nagging issue for me was the lack of any kind of quantification that would support the argument Woolner and the social workers are making. If there are some states that have the death penalty for child rapists, and others that do not, there should be comparative data available that either confirms or discredits the argument. It may in fact be true that in Louisiana, a child rapist is more likely to kill his victim than in another state where there is no death penalty. But Woolner cites no such data, which makes me believe that the social workers similarly have not provided any such data. So if it is simply a theoretical argument based on logic, I am still skeptical.