Court ruling weakens child-rape law in Texas

Death penalty provision in so-called Jessica’s Law is erased.

Courtesy of Jason Embry , AMERICAN-STATESMAN

Thursday, June 26, 2008

WASHINGTON — The U.S. Supreme Court on Wednesday said states cannot use the death penalty to punish child rapists if the victim is not killed, erasing a key plank in the so-called Jessica’s Law that Texas lawmakers passed last year.

The Texas law permitted the death penalty, or life in prison without parole, for the second conviction of aggravated sexual assault of a child younger than 14. The life-in-prison punishment will remain available to prosecutors.

The Supreme Court’s 5-4 decision came in response to the death sentence imposed on Patrick Kennedy, a Louisiana man convicted of raping his stepdaughter when she was 8. The court ruled that the death penalty for someone who did not kill or intend to kill the victim violates the Eighth Amendment of the U.S. Constitution, which bars excessive or cruel and unusual punishments.

Then-Texas Solicitor General Ted Cruz argued on behalf of the Louisiana law before the Supreme Court earlier this year.

Although several state leaders criticized the Supreme Court’s decision, it was especially a setback for Lt. Gov. David Dewhurst, who put Jessica’s Law at the top of his 2007 agenda.

“My goal from day one was to protect children, and we have still accomplished that,” Dewhurst said, noting that other important provisions of the Texas law remain intact. “By and large, the public is going to be outraged” by the court’s decision.

In addition to allowing for the execution of two-time child rapists, the 2007 Texas law mandated a minimum 25-year prison sentence for people convicted of sexually assaulting a child and increased the punishment for felons convicted of soliciting the sexual performance of a child.

Rob Keppel, executive director of the Texas District and County Attorneys Association, the state’s leading prosecutors’ group, said the practical effect of the ruling may be minimal, because the Texas law had not been used — and was not likely to be until the high court rendered its judgment.

“Everyone had been watching Louisiana,” Keppel said. “Now we have the answer.”

Critics and even some supporters warned that the death penalty would be legally troublesome.

But the measure received wide support in both the Senate and House because to vote against it would make legislators vulnerable to soft-on-crime political attacks.

In the Supreme Court’s majority opinion, Justice Anthony Kennedy noted that the court has previously said that excessive punishment is determined by society’s evolving standards.

Kennedy pointed out that just six states have made child rape a capital offense, and that nobody has been executed in the United States for rape of a child or adult since 1964.

Kennedy also noted that under-reporting is a problem with child-rape cases and that child victims are susceptible to suggestive questioning techniques.

“The problem of unreliable, induced and even imagined child testimony means there is a ‘special risk of wrongful execution’ in some child-rape cases,” Kennedy wrote. “This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment.”

Many victims-rights advocates have said death-penalty provisions could lead to fewer convictions for child rape.

“Most child sexual abuse victims are abused by a family member or close family friend,” said Karen Amacker, a spokeswoman for the Texas Association Against Sexual Assault, which cheered the court’s ruling. “The reality is that child victims and their families don’t want to be responsible for sending a grandparent, cousin or long-time family friend to death row.”

Kennedy was joined in his opinion by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In the dissenting opinion, Justice Samuel Alito argued that the lack of states with death-penalty options for child rape did not represent a national consensus.

Alito said states, fearing a decision like the one handed down Wednesday, have been hesitant to pass such laws, and particularly hesitant in recent months because they knew a decision was coming on the Louisiana law.

“When state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding or prevailing societal values,” Alito wrote.

He also argued that child rape has grave consequences for the victim.

“It is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence,” he said.

The Texas law was named for Jessica Lunsford, a 9-year-old Florida girl who was killed by a sex offender.

State Rep. Debbie Riddle, a Tomball Republican who was House author of Jessica’s Law, lambasted the ruling as “another closely divided and questionable decision on the part of a court that continues to show signs of sliding towards the left.”

In effect, she said, the court said “that they are not quite sure if our society really thinks that the death penalty is an appropriate punishment for pedophiles, and so to be on the safe side, they are taking the ability to impose such a penalty out of the hands of the lawmakers who are elected by their constituents to make those very decisions.

“How are we as lawmakers to impose the will of our constituents when the Supreme Court blocks our laws by hypothesizing that our constituents probably really do not want those laws to begin with?”