Death Penalty for Child Molesters?

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Pat Sullivan / AP

The Texas death chamber, in Huntsville, Texas.

In the state that is the nation's undisputed death penalty leader, Texas, you might think there is no such thing as a punishment considered too harsh. But as legislators there consider joining the small but growing number of states making certain convicted pedophiles eligible for the death penalty, a surprisingly vocal group of critics has emerged, arguing that the measure is shortsighted, counterproductive and probably unconstitutional.

"There's tough. And then there's Texas tough," Republican Lt. Gov. David Dewhurst declared at his January inauguration as he pledged to press for mandatory 25-year sentences and a two-strikes death-penalty provision for convicted child predators. The proposal is a more extreme version of the so-called " Jessica's Law " passed by the Florida legislature in the wake of the February 2005 rape and murder of nine-year-old Jessica Lunsford. That landmark statute imposed mandatory 25-year prison terms and life electronic monitoring for sex offenders, and since its passage in May 2005 42 states and Congress have implemented or are considering their own very similar laws.

Dewhurst's stance made headlines and has won him kudos from national backers of Jessica's Law such as Fox News's Bill O'Reilly and John Walsh, producer of America's Most Wanted. But it also sparked the formation of an unexpected coalition of opponents, featuring some of the state's toughest prosecutors as well as victims' rights groups, both of whom worry that the measure could backfire and result in fewer convictions.

"We saw the tsunami wave coming to Texas," said Shannon Edmonds, state lobbyist for the Texas District and County Attorneys Association. Last year, South Carolina adopted the death penalty for the second offense of raping a child under age 11. Oklahoma followed, passing Jessica's Law with a death penalty provision for raping a child under age 14. Texas already had some of the toughest child predator laws on the books with its two-strikes rule that sends child predators to jail for life. But the push for even harsher punishment was coming from the state leadership, rather than from the grass roots, as tightening of criminal laws often does. "Prosecutors will tell you these are the most difficult cases to get a guilty verdict on," Edmonds said. "Prosecutors lose more of these cases than any other."

The Texas Association Against Sexual Assault also voiced its concerns about "unintended consequences" of Jessica's Laws. The mandatory sentences can backfire, said TAASA spokeswoman Karen Amacher, as prosecutors lose the flexibility to seek lesser sentences in cases where a jury trial may prove too taxing for a child witness, or a jury or judge may not feel a 25-year sentence is warranted. Since an estimated 80% of child sexual assaults are committed by family members, groups like Amacher's are concerned that mandatory sentence laws, not to mention the death penalty, might dissuade certain people from reporting abuse to authorities. "With sex offenders we want to say let's lock them up and throw away the key — these folks are just awful, after all — but it's just not realistic," Amacher said.

Even avowed supporters of the death penalty in murder cases think the Texas proposal would be a bad idea. "If you give the same sentence for molesting a little girl as for molesting and killing a little girl, it seems an incentive to go ahead and kill her," said Michael Rushford, head of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif.

Legal scholars from both sides of the political spectrum have warned Texas legislators the death penalty for repeat sex offenders would likely be declared unconstitutional. In 1977 the Supreme Court ruled in Coker vs. Georgia that the death penalty in rape cases was cruel and unusual punishment. Nevertheless, several states have retained old laws providing the death penalty for rape of minors — including Florida, Montana and Louisiana. Only one state, Louisiana, currently has someone on death row charged with raping a child: Patrick O. Kennedy, who faces the death penalty after being convicted in 2003 of raping an eight-year-old. His case is being appealed and could make its way to the Supreme Court, according to Richard Dieter, head of the Death Penalty Information Center.

Even so, prosecutors aren't willing to sit and wait for the highest court in the land to sort it all out. Instead, district attorneys around the state told the legislature that what they really needed were more tools to win cases, not limits on their choices. Working in committee, prosecutors and victims' rights groups managed to include evidence rule changes that would give them more flexibility in presenting child witnesses. The 25-year mandatory-minimum requirement was fine-tuned to apply only to egregious cases such as those involving children under the age of 6 or the use of a deadly weapon. But while it is optional in the bill adopted by the Texas senate, the death penalty remains mandatory for a second offense in the House version. With overwhelming support in both houses for at least a death penalty option, it is likely some kind of capital punishment provision will survive in the final bill that is passed.

Still, if the mandatory death penalty provision for a second offense survives in the Texas bill, it would be 25 years before anyone could face that punishment. They would have to be found guilty of the first offense under the new law initially and serve the mandatory 25 years. If the Senate version with the optional death penalty survives, the politicians will surely trumpet it, but it is unlikely prosecutors would use that new tool, given the time and resources that would have to be poured into a case that would almost certainly be appealed. "I think prosecutors would wait for guidance from the Supreme Court first," Edmonds said.

Just two weeks before the Senate passed its version of Jessica's Law, two men freed on DNA testing after serving 27 years in prison between them for adult sexual assault visited the state capitol. The lone senator to vote against the bill reminded his colleagues of their visit. "At some point we have to decide where do we draw the line on something that's politically right but morally wrong," State Senator Rodney Ellis, a Houston Democrat, said as he cast his vote. "I'm for the death penalty, but I think it would be nice if we had a system where we got the right one."