Expanding Death Penalty Eligibility

A fundamental question we should ask policy makers is what purpose does capital punishment serve? We can assess its policy value in terms of its effectiveness in achieving one or more punishment goals - general deterrence, incapacitation, or retribution.

We can also inquire as to the efficacy of expanding death penalty eligibility. In 1977, the U.S. Supreme Court held in Coker v. Georgia that the death penalty was excessive for the crime of rape. Up until recently, only convicted murderers were housed on America's death rows.

However, several states and the federal governmenthave expanded the number of crimes for which the death penalty was a possible punishment. States have also increased the number of aggravating circumstances for which a death sentence is merited. Thus, a trend has emerged of expanding the death penalty and raising the question, is it really reserved for the worst of the worst?

We should soon see the answer to this question. The Associated Press reports that the Louisiana Supreme Court has upheld a death sentence imposed against Patrick Kennedy, who was convicted of raping an 8 year-old girl.

The Volokh Conspiriacy sites part of the Louisiana court's reasoning for upholding the sentence. Citing the trend toward expanding death penalty eligibility, the Court approved applying capital punishment for non-murder rape, making Mr. Kennedy the only death row occupant with this distinction.

It will be interesting to see if the U.S. Supreme Court agrees with the Louisana court and legislature. Given that the U.S. Supreme Court has been narrowing the list of individuals eligibile for capital punishment in recent decisions (mental retardation and juveniles), the precedent in Coker, and the fact that only convicted murderers have been sentenced to die since 1977, I anticipate a reversal. If only about 2% of murderers are death eligible, will the Court hold that child rapists should be included among the "worst of the worst" while 98% of killers are not? A difficult calculation to make at best.

How to respond effectively to violent criminals continues to perplex policy makers. Contributing factors include ideology and distain for social science research. Will executing child rapists result in greater deterrence? The exisitng evidence on deterrence suggests not. Are there less expensive alternatives to executing rapists that provide effective incapacitation? Again, the research suggests that the answer is yes. Should we not focus on the victim (and the family) and less on the offender in terms of seeking retribution? Again, the research suggests that a large segment of death row inmates were vicitms of abuse, assault, and other reprehensible acts. If society had helped them when they were vicitms, might we have fewer murder victims?

It is easy for a legislature to expand the number of individuals eligible for a death sentence. There is little accountability for the impact, but much to be gained by pandering. Doesn't the death penalty need to be held to the same measures of success or failure as any other public policy?