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Greg Bloom

Non-lethal capital sentencing: Obama and McCain both get it wrong

Last week, in a ruling on the case of Kennedy vs Louisiana, the United States Supreme Court struck down a law that had sentenced a man to die for a crime that, though heinous, was non-lethal.

His was a rare sentence – only two people in the country are on death row for a crime that didn’t involve a murder, and no one has been executed for rape in over four decades – but the Kennedy case had potentially broad implications. For years, the death penalty has been in decline across the country, as states are handing down fewer capital sentences and carrying out fewer executions, legislatures are voting to suspend or repeal the death penalty entirely, and public opinion is gradually turning against capital punishment. Kennedy was an aberration – an atavistic attempt to expand the death penalty in defiance of the broad trend away from it.

Fortunately, the Supreme Court ruling recognized this. Unfortunately, in the aftermath of the decision both Senator John McCain and Senator Barack Obama declared their opposition to the Court’s ruling.

It’s not quite surprising – politicians are not likely to take a nuanced stance on a matter like child rape. But the facts on this issue are easily available and not ambiguous, and they don’t just come from those who oppose capital punishment in all forms. Indeed, child advocates and sexual assault victims’ advocates have come out forcefully against the death penalty for child rape, for reasons that should sway anyone who proclaims interest in protecting children.

First of all, the threat of execution makes it more likely that cases of sexual abuse (which often occurs within a family) will go unreported by victims and their conflicted relatives. Still more worrisome is the effect of the grueling capital trials process upon victims themselves. Consider the perspective of Tammy Gwaltney of the Southeast Missouri Network Against Sexual Violence:

Imagine spending 10 or 15 years in and out of court as a capital case progresses slowly through the judicial system. Imagine being a kid and all you want is for the abuse to stop and, by revealing what has been done to you, you now are being held accountable for the life-or-death fate of the person who abused you….Imagine living with this for the rest of your life.

Another problem, perhaps equally troubling: many experts have noted that child testimony is fundamentally unreliable. [PDF file] (Even in the sad Kennedy case, the victim changed her testimony to implicate her step-father over a year after the crime.) In cases that hinge upon the testimony of child witnesses, the possibility of wrongful conviction is especially non-trivial – which is all the more reason to keep the death penalty off the table.

Fortunately, the Supreme Court decision has put the matter to rest for the moment. And given the number of states that are reconsidering the entire death penalty system, one hopes that our country’s leaders will soon catch on and look at the death penalty for what it is: failed public policy.

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Posted at 6:45 AM, Jul 03, 2008 in Criminal Justice
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