Grits for Breakfast and Sex Crimes Blog have been trading some nice exchanges on the real-life consequences, not the counterproductive bluster, of the child sex legislation that's been churning out of states lately. Sex Crimes has a list of the reasons the laws are counterproductive that should be downloaded, laminated, and sent out to policymakers every time one of them starts talking about doing these ultimately destructive things to our kids. For your convenience, here it is:
1) By decreasing the difference in punishment between killing a child and molesting a child, the government creates an incentive for the criminal to kill the victim. If murder is a "freebie" in terms of assuming the risk of greater punishment, then the marginal deterrence incentive is to kill the victim if there is a risk of discovery. This is especially true in the context of child molestation cases because those crimes usually only have one witness: the victim. Being able to kill the only witness to a crime is not normally something the government wants to encourage. This is a primary reason the death penalty is no longer applied to kidnapping.
2) The death penalty is likely to further decrease the reporting of an already underreported crime. Since most molesters are family members or friends, a lot of molestation cases get swept under the rug. If "Uncle Frank's" life is in jeopardy by reporting what he did, the incentive to not report is increased.
3) There is some evidence that applying the death penalty to non-homicide crimes increases the jury incentive not to convict. If that evidence applies in the child molestation case, you could expect an increase in not guilty verdicts.
4) It may be unconstitutional. The U.S. Supreme Court, in Coker v. Georgia, held that the death penalty as applied to a rape was an 8th Amendment violation. The case was about the rape of an adult woman. For that reason, the Louisiana Supreme Court, in State v. Wilson, distinguished that state's statute applying to child molestation cases. There are reasons to think that distinction won't be supported if a child molestation statute reached the federal level of judicial review.
They also have some good links to other posters on the topics as well, plus some decent comments. Good set of posts, guys. . . . Real Cost of Prisons has an interesting post to a CT effort, part of the Council of State Government's "Justice Reinvestment Strategy" initiative, to streamline probation and parole processes to free funds for improving re-entry for released offenders. Might be a nice model for other states once enough years have past to get a real evaluation done. . . . Both Crim Prof Blog and Crim Law have links to the reaction of the conservative Townhall blog to "anti-crime zones" that the blog correctly criticizes for the ultimately counterproductive efforts to "crime proof" communities that end up creating better conditions for the crime they fear. Crim Law gets straight to the point--"Does the infrastructure we are building to deal with certain crimes and certain offenders work or is it just a bunch of laws passed which are abused and force people to break the law?" Is it me, or does practically everything we do lately seem to fall into the "counterproductive" category? . . .
In case you were thinking, "he's going to get through a blog post without linking to Sentencing Law and Policy," don't you feel silly now? Here, Doug Berman alerts us again that the first of two Federal Sentencing Reporter volumes on victims and sentencing is out and then links us to three good articles from it outlining much of the context and concerns. I need to give a shout out to one of the authors, Russell Butler, exec director of MD's Crime Victim Resource Center. You may remember the name from Russell's contribution on the right side of this blog, "So You Want to Be a Sentencing Commissioner?" As I noted then, Russell is one of the tireless heroes out there, getting good policy done for everyone, not just the victims he represents, unlike a lot of the demagogues I've run across in other states. He and his mentor, Roberta Roper, are a couple of the best people you'll run across in this business, personally and professionally, and I was pleased to serve on the Resource Center's board for them while I was in MD. I'd also like to make a couple of points to the theme of the issues as we begin to ponder seriously the role of victims in corrections sentencing policymaking. I would ask that we be very careful to guard against the false assumption that all victims want to make statements and all think the same, want the same vengeance. They don't.
I remember in OK, during its attempt at sentencing reform in the 1990s, a poll on the reform that actually had a question breaking respondents down between crime victims and non-crime victims. Their percentages of support for the reform and opposition were the same, with more support than opposition, despite the vocal opposition of their "representatives" who demanded to be heard at the sentencing commission's meeting. Another example--I personally was one of the OKC Bombing victims who didn't want the death penalty for Timothy McVeigh. I wanted him to rot in isolation with pictures of the kids in the day care center flashing in his cell for the rest of his life. If you just go by the statements and preferences of those types of reps, and not the Russells and Robertas, there's a real possibility for bias in application and due process of justice. For example, should a sentence be increased for an offender if, of 4 victims, 2 don't want the increase but make no statement but 2 do and are carefully marshalled by prosecutors to get the increase? MD is one of the few states to collect info on victim participation in sentencing on its guidelines worksheets, thanks to Roberta and Russell, and the initial analysis we did of it while I was there indicated that sentences might go up for sentences using impact statements, and go up more when the statement was vocal in court versus written. There are real dangers if this starts getting "gamed" the way so much of our "search for truth and justice" does.
Here's another thing to watch for as well. There's an assumption, because the camera-seeking victims' "reps" are often side-by-side with hardline DAs in policy events, all of both groups are joined at the hip on policy positions. However, when many victims are interested in and supportive of restorative justice and/or might support lesser sentences out of religious belief, knowledge of their own culpability, or whatever, you'll frequently see them split. I worked with some of the victims rights reps in DAs offices, the folks who keep the victims informed and involved, and many of them had at best tolerant attitudes about their office placement, saying few there were interested or even helpful except in the few cases in which DAs really wanted/needed the impact statements or other cooperation to get their convictions.
To those of you planning to involve victims' groups in policymaking and to make fair rules for their involvement in the sentencing process, listen to the Russells and the Robertas and keep them separated from those who only support their involvement when it suits their cases or policy preferences. As the three articles Doug links to each make clear, this is a fluid time in victim participation. The right people are there to get it done well, and they have skills to see that it is. Let's not cripple them by associating them literally or figuratively with people who really don't have all victims interests at heart.