Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, June 14, 2008

The death penalty for child rape

By Rick Garnett

In response to Michael's question:  First, and contra Bob Abernethy, there is next-to-no chance that the Court is going to "expand the death penalty" in the Louisiana child-rape case.  The trend in the Court's death-penalty case-law is clearly in a narrowing, not an expanding, direction.  Second, in the transcript which Michael posted, several speakers fail -- as so many do, unfortunately -- to distinguish between "retribution", properly understood, and "revenge" or "vengeance."  "Retribution" is an important -- indeed, the crucial -- purpose and justification (and limiting consideration) of punishment; "revenge" has no place in criminal justice.  That "vengeance is mine, saith the Lord" has little to do, it seems to me, with the question whether or not "retributive" punishments are justified.

The question, it seems to me, is not whether the death-penalty for child-rapists is "retribution" -- all justified punishment is "retribution" -- but whether, all things considered, it is justifiable (and if so, whether it is wise policy) to execute child-rapists.  In my view, it isn't.  That said, I do agree with those who criticize the Court's decision in Coker for failing to take seriously the harm that rape causes (re-read Justice White's opinion, and cringe), and I also have no doubt that many who rape are animated by a more blameworthy state of mind than many who commit homicide.

Capital Punishment, Child Rape, and Retribution: Where Do You Stand?

By Michael Perry

Religion & Ethics Newsweekly (PBS)
June 13, 2008

BOB ABERNETHY, anchor: The Supreme Court ruled this week that all 270 foreign terrorism suspects at Guantanamo have the right under the U.S. Constitution to challenge their detention in federal court. Another High Court decision excepted soon could expand the death penalty. Right now, 36 states permit capital punishment for murder. Should that penalty be extended to those who rape children? Criminologists say people are punished to prevent them from committing another crime, as a deterrent to others, to rehabilitate them and as retribution -- revenge. Does revenge for child rape justify execution? Tim O'Brien begins his report from New Orleans, and his story contains some material that may be disturbing.

VOICE OF FEMALE ANCHOR (ABC 26 News 1998 file footage): Today, safety shattered in a quiet neighborhood. A child raped. The teens who did it: on the run.

VOICE OF MALE ANCHOR (ABC 26 News 1998 file footage): An eight-year-old Girl Scout raped in her Harvey neighborhood is recovering from surgery tonight.

VOICE OF MALE REPORTER (ABC 26 News 1998 file footage): People who live in the Woodmere subdivision are hoping for peace of mind. The thought -- a rapist is on the loose...

TIM O'BRIEN: The brutal rape of a small child galvanized this normally tranquil community just outside New Orleans and horrified the neighbors.

UNIDENTIFIED MAN #1: There's got to be some maniac running around out here.

UNIDENTIFIED WOMAN: I wouldn't have never thought that someone would live on my street and do something like this.

Sheriff HARRY LEE (Jefferson Parish, Louisiana, during 1998 press conference): I'm in my 18th year as sheriff and I've seen a lot of bad things happen, and this is probably the worst.

O'BRIEN: So bad that Jefferson Parish Sheriff Harry Lee put up $5,000 of his own money for information leading to an arrest. In addition to the psychological trauma, the eight-year old girl also suffered severe physical injuries. The city of New Orleans rallied to help, including the New Orleans Saints football team, which launched a fundraising drive to help defray the child's mounting medical expenses.

KAREN TOWNSEND (Reporter, ABC News 26, from 1998 file footage): Sheriff Lee says the prime suspects in this case are two black teens.

O'BRIEN: The manhunt became so intense sheriff's deputies began stopping all young black males in the neighborhood.

UNIDENTIFIED MAN #2: They made me take my shirt off, and, you know, it's cold out here, you know?

VOICE OF FEMALE REPORTER: What were they looking for?

UNIDENTIFIED MAN #2: Just tattoos, any little marks.

O'BRIEN: The victim had told police her attackers were two black teenagers. But the story fell apart, and suspicion began to shift to the child's stepfather, Patrick Kennedy, who had called co-workers on the morning of the rape seeking advice on how to remove blood from a white carpet. It turned out Kennedy also had been accused, although never convicted, of sexually molesting four foster children in his care. They were removed. His eight-year-old stepdaughter eventually said that it was Kennedy -- six-feet-four, 375 pounds -- who had raped her and then told her to blame it on the teenagers.

CHILD VICTIM :  First, he told me that he was going to make up a story and I better say it.   

O'BRIEN: And, she said, it wasn't the first time Kennedy had sexually molested her.

FEMALE INTERVIEWER: Did Patrick Kennedy do something to you just that one day, or did he did he do anything any other times? 

CHILD VICTIM : He did more than once. I think five (holds up five fingers). 

PROSECUTOR : More than once? You think five?   

CHILD VICTIM : Um-hmmm.

PROSECUTOR : Okay. Do you remember how old you were the very first time he did something? 

CHILD VICTIM : (shakes her head "no")

O'BRIEN: Three years earlier the Louisiana legislature overwhelmingly passed a law authorizing the death penalty for anyone who rapes a child under the age of 12. The jury agreed unanimously: Patrick Kennedy deserved nothing less. The law was introduced by then state representative Pete Schneider

(to Rep. Pete Schneider): Is this the kind of guy you had in mind when you passed this law?

Representative PETE SCHNEIDER (Former Louisiana State Representative): Absolutely. Someone who would brutally rape a child -- and rape is wrong no matter whom it is done to, but in a situation like this I believe the death penalty is the appropriate punishment for the crime.

O'BRIEN: Kennedy's court appointed lawyers disagree and have taken their case to the U.S. Supreme Court, arguing if the death penalty for rape isn't cruel, it certainly is unusual, violating the Eighth Amendment to the U.S. Constitution.

BILLY SOTHERN (Capital Appeals Project): Mr. Kennedy is one of only two men on death row in the state of Louisiana for the crime of child rape. Indeed, Mr. Kennedy and this other individual are the only two men in the United States for the crime of child rape who've been sentenced to death.

O'BRIEN: The U.S. Supreme Court, more than 30-years ago, found the death penalty unconstitutional for rape -- that death is disproportionate to the crime.

BARBARA WALTERS (Anchor, ABC Evening News, from 1977 file footage): Good evening. Our top stories: The Supreme Court says the crime of rape should not be punishable by death.

O'BRIEN: But that case involved a 16-year-old married woman. Louisiana contends the rape of a child is much worse and that the Court's earlier opinion shouldn't apply when the victim is so young.

Rep. SCHNEIDER: Twenty-nine percent of the rape cases in this country -- and it's probably underreported -- are committed on 11-year-olds and younger. Twenty-nine percent! And they're horrendous crimes. You steal their childhood. You steal their soul. You hurt the world when you do something like that to a child.

O'BRIEN: We may never know to what extent, if any, the death penalty actually deters, but there's clearly another theory behind this Louisiana law. Call it revenge, or retribution, or a thirst for simple justice which, if left unfulfilled, may encourage others, loved ones, to go out and find it on their own. Sex offenders may be the least likely to be deterred, and their crimes are the most likely to bring retribution. Jeffrey Doucet: suspected of kidnapping and molesting an 11-year-old Baton Rouge boy. When sheriff's deputies brought Doucet back to Louisiana, the boy's father, Gary Plauche, was waiting at the Baton Rouge airport with a gun. Believing they could never get a conviction, prosecutors allowed Plauche to plead guilty to manslaughter with a suspended sentence. The state's attorney general, Buddy Caldwell, says it's the state that must exact the retribution, not loved ones, and that the Louisiana law makes it less likely they''ll try.

(to Louisiana Attorney General Buddy Caldwell): Even if it doesn't deter others -- that's an open debate. Bu even if it doesn't, you say the death penalty in cases like this is justified?

BUDDY CALDWELL (State Attorney General, Louisiana): I believe it absolutely is. 

O'BRIEN: Retribution alone is enough? 

Mr. CALDWELL : Retribution alone is enough. 

O'BRIEN: Some of your opposition, including the Catholic Church, will quote the Bible and say "vengeance is mine, so sayeth the Lord."

Mr. CALDWELL : Well, we see a lot of people that don't have a clue. But I think most people understand, even liberals have children that if they're raped and mutilated, like in a lot of these cases, they would be for the death penalty, whether they say so or not. It's always the other guy.

O'BRIEN: It's a retributive function of the law?

Mr. CALDWELL : I think so.

O'BRIEN: Ironically, a number of child advocacy groups are siding with the defendant in this case, telling the Supreme Court the death penalty for child molesters is counterproductive. Judy Benitez, who heads the Louisiana Foundation against Sexual Assault, says Louisiana's law may discourage children from coming forward and give the molester an incentive to kill his victim.

JUDY BENITEZ: If they're not facing any harsher punishment for killing the child and raping them, then they are for -- and I say this sort of facetiously -- for just raping them, you know, the state can't kill them but once. So what are they going to do? And this way they don't leave a living witness.

O'BRIEN: Patrick Kennedy's lawyer says if retribution is the goal, life in prison is retribution enough.

Mr. SOTHERN: The alternative punishment here in Louisiana for the crime of child rape is life without the possibility of parole at Angola penitentiary. It's "you die at Angola." So it's not like the alternative punishment for this is somehow lenient. The alternative punishment in this instance is extraordinarily harsh.

O'BRIEN: Both sides agree the law does make it easier for prosecutors to negotiate a plea agreement with the defendant for life in prison, sparing the child the trauma of having to testify at a trial. The question for the Supreme Court, however, is not whether this is a wise law or even a good law, or whether it even makes any sense at all, only whether it's such a bad law as to violate the standards of decency of a civilized nation as embodied in the U.S. Bill of Rights.

Response to Tom Berg

By Michael Perry

In response to Tom (here):

My only point, Tom, was that it is no more "statist" for the state, acting against traditional cultural/social prejudices, to allow for same-sex marriage than it is for the state, acting against traditional social/cultural prejudices, to allow for interracial marriage.  I do agree that if the state does allow for same-sex marriage, it should not go further and compromise anyone's religious liberty to live out an oppositional stance in relation to same-sex marriage.

Race, Sexual Orientation, and Religious Liberty

By Thomas Berg

I'm a little confused by aspects of the Vischer-Perry exchange.  Rob, when you express concern about "state efforts to overcome ... obstacles to same-sex marriage," are you talking primarily about the state imposing nondiscrimination rules on those who (for religious or other reasons) conscientiously oppose SSM?  Michael, in your response appealing to the parallel to Loving, are you generally equating sexual-orientation discrimination with racial discrimination?   If the two are equated, then that is likely to do away with most religious liberty claims against the imposition of SSM or sexual-orientation discrimination laws, e.g. employment or employment-benefits decisions by religious schools or social services.  See, e.g., Bob Jones (withdrawal of tax exemption because of policy against interracial dating).  But I thought, Michael, that you viewed it as consistent to have both SSM and a strong religious liberty/exemptions scheme.  Even if SSM is determined to be warranted on constitutional or policy grounds, I think that preserving religious liberty in that context will depend on seeing some differences between SSM and interracial marriage.

Tom

Tim Russert, R.I.P.

By Rick Garnett

Here is a link to his commencement talk at Notre Dame, in 2002.  A good man.  God bless him.

Judith Warner is insane

By Rick Garnett

Read this.  And worry.  Nutshell version:  Evangelical dads who would rather their daughters not be sexually promiscuous are kinda -- just kinda, mind you -- like dads who imprison their daughters in dungeons and rape them for decades.  Words fail.

Friday, June 13, 2008

Interracial Marriage, Same-Sex Unions, and Statism

By Michael Perry

In the immediately preceding post, Rob writes:

Same-sex marriage, because it largely lacks the social, cultural, religious, and biological reinforcements, must rely more on legal reinforcements.  As I said, that is not, in my view, a compelling reason to oppose same-sex marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, religious, and biological obstacles to same-sex marriage that are not as formidable in the case of heterosexual marriage.

Consider the following, and imagine its being said circa 1967, when Loving v. Virginia was decided:

Interracial marriage, because it largely lacks the social, cultural, and religious reinforcements, must rely more on legal reinforcements.  As I said, that is not, in my view, a compelling reason to oppose interracial marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, and religious obstacles to interracial marriage that are not as formidable in the case of same-race marriage.

SSM's "statist orientation"

By Rob Vischer

My awkward phrasing alone is enough to justify Michael's skepticism about my assertion of the "more statist orientation" of same-sex marriage, but I'll try to briefly explain what I meant.  I'm not sure that marriage as a legal category is fully distinct from marriage as a non-legal category.  As Don Browning puts it, marriage "builds on natural inclinations but requires additional powerful social, legal, cultural, and religious reinforcements."  Same-sex marriage, because it largely lacks the social, cultural, religious, and biological reinforcements, must rely more on legal reinforcements.  As I said, that is not, in my view, a compelling reason to oppose same-sex marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, religious, and biological obstacles to same-sex marriage that are not as formidable in the case of heterosexual marriage.

Robert Miller's response

By Rob Vischer

Robert Miller responds to Michael Perry's critique of his testimony on SSM as follows:

I thank Michael Perry for his comments on my testimony before the Pennsylvania Senate re S.B. 1250, a proposed amendment to the state constitution that would limit marriages to unions of one man and one woman.

First, I agree with Professor Perry that, given my arguments in the testimony, the best solution would be an amendment that strips the courts of the power to decide the same-sex marriage issue and leaves the issue to the normal legislative process. I would happily vote for such an amendment. In fact, however, the political realities in Pennsylvania are such that if the legislature approves any amendment to the Pennsylvania constitution, it’s very likely to be in the form of S.B. 1250. Hence, for practical purposes, it’s S.B. 1250 or nothing. Since, as I argued in the testimony, the issue is very likely to be constitutionalized one way or another by the courts, if there is to be a genuine public debate on this issue and a democratic resolution, the only practical option is S.B. 1250.

Second, when I said that a decision by the Pennsylvania Supreme Court that the state constitution does not require same-sex marriages or civil unions would “for all practical purposes” have “roughly” the same effect as the passage of the proposed amendment, every word there counts. I was not speaking of *legal* purposes. Professor Perry is obviously right that S.B. 1250, but not a decision of the supreme court, would disable the legislature from creating same-sex marriages or civil unions in future. I said as much myself about S.B. 1250. But, as I expressly said, in the language Professor Perry quotes, I was speaking not about legal effects but “practical purposes.” I meant, that is, that given such a decision from the Pennsylvania supreme court and given too the political realities in Pennsylvania, there would be little chance in the foreseeable future of the state changing its laws from the status quo, i.e., no same-sex marriages and no civil unions. That statement, I still think, is correct.

SSM: Framing the Debate

By Michael Scaperlanda

Thanks Rob for posting Prof. Miller's testimony on SSM.  I offer another excerpt, which I think frames the SSM debate clearly and fairly.  In addition to its contribution to this particular debate, it serves as a model for civil dialogue over hotly contested issues. 

On the one hand, people who believe that marriage ought to be reserved to unions of one man and one woman tend to think that the biological connection between heterosexual sexual activity and procreation is morally significant; that heterosexual relationships, because they tend naturally to produce children, are morally different from homosexual ones, which do not; that, everything else being equal, children are best raised in families with their biological mother and biological father; that the state, because it looks to the common good of society not just in the present but as an intergenerational project, has a vital interest in the procreation of children and their rearing and education; that the state thus has a moral obligation to provide legal status and regularity to heterosexual relationships of the kind that tend to produce children—that is to say, to marriages; and that other kinds of relationships, whether sexual or otherwise, are morally different and, although deserving of respect and many kinds of legal protection, are not in all relevant respects like marriages and so ought not legally be treated as marriages.

On the other hand, people who believe that the state should recognize same-sex marriages tend to believe that human sexuality functions primarily in the building of intimate personal relationships between the sexual partners and that its connection to procreation in the heterosexual case is not morally significant; that since gay men and lesbians undeniably fall in love, form relationships and have families, it follows that for all morally significant purposes, homosexual relationships are equivalent to heterosexual ones; that respect for the dignity of human persons demands that the state recognize this fact and not treat heterosexual relationships better than homosexual ones; that doing otherwise amounts to devaluing the intimate relationships of gay men and lesbians and brands them as second-class citizens; that the state has a legitimate interest in promoting stable, loving homosexual relationships just as it has a legitimate interest in promoting stable, loving heterosexual ones; and that the undeniable fact that gay men and lesbians have children, whether adopted or otherwise, means that such children deserve to have married parents just like the children of heterosexual couples.

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