Death penalty for child rapists risks fatal injustice

The U.S. Supreme Court, in a 5-4 decision last month, struck down a Louisiana law that imposed capital punishment for those convicted of raping a child. At the center of this decision was 43-year-old Patrick Kennedy, an African American man convicted of the brutal rape of his then-8-year-old stepdaughter. During the course of the investigation, the victim gave many varied accounts of her assault, at first blaming two neighborhood youths and only pointing the finger at her stepfather after several interviews by psychologists working with law enforcement.

The majority decision was delivered by Justice Anthony Kennedy of Sacramento. The court's newest justice, Samuel Alito, delivered a biting dissent. Justice Alito's opinion is chilling, not because of its legal reasoning that states should be allowed to enact laws as they see fit, but for the fact that he took the position that those who are convicted of raping a child should be executed, owing to the heinousness of the crime.

The use of capital punishment is founded upon two principles: retribution and deterrence. The majority found that evidence suggested the death penalty may not result in more effective enforcement but may indeed add to the risk of non-reporting. It's a statistical reality that the majority of sexual assaults on children occur at the hands of a parent, relative or close family friend. Thus, children may feel pressured not to report the abuse if there's a likelihood that the perpetrator may face execution. The idea, then, that capital punishment will act as a deterrent is unfounded, and the National Association of Social Workers filed an amicus brief in support of striking down the law for that reason.

As a father, I would be devastated, and would certainly want the perpetrator punished, if my child was the victim of a rapist. As a father, I also recognize what Justice Kennedy cited as a principal reason we should not contemplate executing someone convicted of child rape: Children fantasize and embellish. They are impressionable, and they're not always reliable witnesses. There are many documented studies of children showing that they can be influenced to give false statements. A 2007 study found that a group of 4- to 7-year-olds was able to maintain a lie about "body touch" fairly effectively when asked repeated, direct questions during a mock forensic interview. The children, of course, had not been victims of "touching" but rather were fed false information, which they incorporated into their memory as events that actually took place. As Justice Kennedy noted, the risk that someone could be executed based upon this kind of false evidence is clearly unacceptable.

Following the issuance of the court's decision, angry politicians, including the governors of two states, vowed to keep writing laws that condemn child rapists to death, despite the Supreme Court's decision holding that such punishment is unconstitutional. Additionally, both the presumptive presidential candidates immediately voiced their disagreement in no uncertain terms. Republican Sen. John McCain of Arizona called the ruling "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime." Democratic Sen. Barack Obama of Illinois told reporters there should be no blanket prohibition of the death penalty for the rape of children if states want to apply it in those cases.

Ordinarily, we could dismiss these statements as political posturing during an election year. But there is an ominous ring to these politicos' statements. Barring unforeseen circumstances, one of these men is going to be the next president of the United States. It's inevitable that during four years in office, at least one, and perhaps more, of the Supreme Court justices will retire. Justice John Paul Stevens is 88 years old, and Justice Ruth Bader Ginsburg is 75. Both of these justices agreed with the majority opinion that struck down Louisiana's capital punishment for child rapists. If the politicians have their way, those who agree with the death penalty for child rape will be appointed, and the issue will come before a newly reorganized court. In that event, it's likely the present decision would be overturned.

According to statistics compiled by the Innocence Project, there have been 218 post-conviction DNA cases overturned in 32 states. Sixteen of the 218 people exonerated served time on death row. But, as in the case of Patrick Kennedy, there is often no DNA or other physical evidence with which to exonerate a defendant whose conviction has been obtained through the testimony of a child. And for such individuals, execution would thus be inevitable if the politicians prevail in their efforts.

There is no doubt that the rape of a child is a heinous offense, and the perpetrator should be punished and removed from society. But the risk of executing even one innocent individual under laws such as those enacted by Louisiana and the five other states that have similar statutes is a travesty of justice that the Supreme Court should have found unacceptable by a 9-0 vote. That it did not do so should make every thinking American concerned for the direction of our justice system.

About the writer:

• Ken Rosenfeld is a criminal defense attorney who has defended clients accused of first-degree murder, sexual offenses and driving under the influence. Rosenfeld is a graduate of Lincoln Law School of Sacramento who teaches classes in constitutional law, evidence and professional responsibility for the American Bar Review.