The No Good, Very Bad Death Penalty
We've got two speeds in this country, and if you don't like this one you aren't going to like the other one.
We seem to be in the midst of a somewhat worrying trend as a country. Despite crime being down, and noted reforms like the First Step Act producing promising results, punitive sentiment has been selected as a winning issue for politicians in this country. Right now as legislatures are in session across the country, a spate of bills are being proposed that seek to cater to our seeming collective addiction to punishment. Relevant to this post, a number of states (Tennessee and Florida off the top of my head, I believe there’s half a dozen or so others where bills have been introduced) have or are planning to introduce legislation green lighting the death penalty for certain child sex crimes. Child sexual abuse is a scourge, and the desire to end it is a laudable one. Though there seems to be more going on here, and I’m less certain that these bills are emanating from a concern about child wellbeing, leaving aside the unintended effects of such a proposal that I’ll discuss here.
So, some background: In 2008, during my first year in law school, the Supreme Court ruled in a 5-4 decision — Kennedy v. Louisiana — that a Louisiana law that imposed death for rape of a child under 12 was unconstitutional under the Eighth Amendment.
So even if these laws are technically unconstitutional in light of Kennedy, astute Supreme Court watchers might note that the New Court has been on something of a campaign of jettisoning precedent that have long been thorns in the side of primarily conservatives (e.g., Dobbs, and next up, the administrative state). Stare decisis, the legal term referring to precedent and often invoked to describe its importance, matters far less to the current Court than perhaps any in American history. So, buckle up, baby.
That being said, the Court is radically different now than it was in 2008 when Kennedy was decided. All of the conservatives in 2008 dissented, and now conservatives have a supermajority on the Court. So it doesn’t take a legal scholar to figure out that politicians are working on a scheme to get the Court to reconsider Kennedy.
As I wrote above, several states have introduced this legislation but Florida is perhaps the furthest along having already nominated a defendant to put to death under the law. But Florida is far from the only one, but Florida serves as a useful case study in this instance.
It seems…strange to me that this issue, out of all the issues, has apparently become a pet conservative project. Ever the masters at rhetoric, it seems hard to argue against the death penalty for child rape. What, you want more child rape? My sense is that these proposals are really a modern form of political indulgence — that politicians can say of course we care about children because look how severe we make our punishments! Meanwhile, Florida (for example) is also leading the nation in rolling back child labor protections. Similar phenomena are occurring in many states, including states that are simultaneously proposing the death penalty for child rape.
Stated differently, if we conceptualize all childhood harm in the language of sexual harm, we can ignore more pernicious threats to the health and wellbeing of children in favor of focusing all our ire on only one. Adam Conover has an informative video exploring the ongoing push to make children objects of economic exploitation. If I ever have time, I would love to do some kind of a study comparing, for example, the educational, health and mortality outcomes of children in states that have the most punitive laws related to child sexual abuse, such as registries, or criminal punishments (e.g., generally going to be southern states). I would be willing to wager that there’s a correlation.
But leaving aside the question of why, would it work? Would it reduce the number of children who are raped? I don’t think that it would, given the unique nature of the realities of child sexual abuse in our country. I am opposed to the death penalty on a philosophical level, over and above the undeniable fact that we have executed innocent people in the past (and may continue to do so) — but what if, by authorizing the death penalty for only some child sex offenses, we can reduce the harm that befalls children?
I suspect that there’s reason to conclude that it may make the problem worse.
There’s three traditional supposed aims of our criminal legal system: retribution, deterrence, and incapacitation. The death penalty in this context, complicates each of them.
Retribution. There’s two kinds, really: the retribution that’s for society-at-large, and the retribution that’s for the individual. The message that this kind of retribution — that we’re going to kill this person for what they did to you — is that it tells a child survivor is that you may as well be dead. What happened to you is as bad (or some would say worse) than murder. You are forever damaged goods, beyond repair. What happened to you can never be fixed.
That is, unsurprisingly, not as helpful a message as some might imagine, to insist that one can never heal from the things that were done to them. Plus, even if at one time a survivor might like very much to kill their abuser, feelings change over time. Indeed, mine did, as I’ve written about elsewhere. There’s no undoing killing someone. In my experience, if I were to have, or had someone else, killed my abuser, I feel that would be another burden that I would have to shoulder. Another wound, and another scar. The relationship that exists between a child and their abuser is sometimes, quite complicated. It can be a family member, or another trusted, loved adult. In my case, it was an older boy, who I came to understand much later was likely abused by his father. Did he deserve to die, for what he did to me?
Often in our system, however, the individual aspect of retribution is seen as less important than the collective notion of retribution. It is often true in death penalty cases, for example, that prosecutors will press ahead for killing even when victims and their families plead with them not to. In one case I recall quite fondly, our client was charged with the murder of his best friend stemming from a car crash. Once the prosecutors found out the victim’s family forgave our client and did not want him punished, they ceased all communication with them, and no longer provided them with victim support services. But, they still pressed ahead with the prosecution (and lost). There’s a lot more to be said about the interaction and sometimes conflict between these two kinds of retributive goals, but I think everything I said in the first section complicates the collective notion of it as well — we, collectively, harm our children in profound ways. The environment, healthcare, education, so on and so forth. By presenting our rage in this domain, we can collectively absolve ourselves of sin, even if our desires for absolution conflict with and harm the person we presume to act on behalf of.
Deterrence, then: the idea that the death penalty — or the threat of it at least — is sufficient to cause people to not sexually abuse children. I’ve also done a lot of writing about the interaction of sexual violence and carceral politics — specifically, the false hope that increasing punishment and punitivity means less harm.
The short version is this: what is known about deterrence is that it is not the severity of punishment that matters so much as the likelihood of it. In order for there to be any likelihood of punishment at all, the crime must first be reported to authorities. As is well-known, child sexual abuse is underreported, and the realities give some indication as to why. It is most often perpetrated by someone known to the child, typically a family member. There are often complicated social, emotional, and often economic ties between a perpetrator and a survivor. Providing that we are going to kill your abuser if they are found out complicates that relationship further, and gives perpetrators powerful leverage to guilt victims and others into silence. As is sometimes mentioned by other critics of this approach, it also provides incentive for a stranger-abuser (which is a rare occurrence) to kill their victims, given the cost-benefit analysis the death penalty brings into play.
So stated differently, there’s good reasons to think that the death penalty might further decrease reporting, and thus increasing the likelihood that child rape generally will be undetected, unpunished, and undeterred. If you want to increase deterrence, you have to increase reporting, detection, and prosecution. Those are much more difficult levers to adjust, especially for politicians.
Lastly, incapacitation. This post is already longer than I meant for it to be so I won’t go into a lot of detail here except to say tht while it’s true that killing anyone means they can’t commit additional crimes, 95.6% of all sex offenses that are reported to police and cleared by arrest are attributable to first-time offenders. Most people who are convicted of child sexual abuse and released do not commit another offense, and most are not diagnostic for pedophilia.
The problem of child sexual abuse is a much broader problem than one of a few bad actors that we can just take out of circulation. So while I think the death penalty proposals at least play on a good impulse to protect children, I think they ultimately fail at that task and perhaps make the problem somewhat worse, or at least more complicated.