Drawing Lines

Child rapists are among the most venal humans one can imagine. That’s a given. So it should come as no surprise that there are politicians out there looking to capitalize on the public’s justifiable rage when a child is raped. Politicians in six states have done just that, adopting statutes that authorize the death penalty for child rapists.

“That’s one of my proudest pieces of legislation,” former Louisiana state Rep. Pete Schneider, a Republican who sponsored the law in his state, told MSNBC in April when the US Supreme Court was hearing oral arguments about it earlier this year.

MSNBC said that the Louisiana law “breezed through the state Legislature in 1995” and that “members got sidetracked only over whether to castrate child rapists.”

The court, however, saw things differently. In a June ruling authored by Justice Anthony Kennedy, the court said that applying the death penalty to child rape violated the Bill of Rights’ prohibition against cruel and unusual punishment, in effect “rul(ing) out the death penalty for any individual crime ... ‘where the victim’s life was not taken,’” according to the New York Times.

There is “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” Justice Kennedy wrote.

Which begs the question why? Why draw the line on the use of capital punishment at intentional murder, or mass murder, or “crimes against the state” like treason? Why not extend the death penalty to other crimes?

That’s the point that supporters of the Louisiana law make.

“A lot of people think there should not be the death penalty [in this case] because the child survives,” Kate Bartholomew, a sex crimes prosecutor in New Orleans, told CNN. “In my opinion the rape of a child is more heinous and more hideous than a homicide.”

She adds that the punishment in the Kennedy case is appropriate because the crime takes away victims’ “innocence, it takes away their childhood, it mutilates their spirit. It kills their soul.”

But so do many other crimes for which we would never consider imposing a penalty of death—or at least currently don’t. And this shifting moral line undercut arguments that attempt to uphold capital punishment.

As Matthew Yglesias, on his blog on wrote, “efforts to draw distinctions—to tinker with the machinery of death—are fundamentally misguided.”

It is analogous to the debate over lethal injection, a method of capital punishment that the courts have been wrestling with for some time. Lethal injection has been the primary method of execution used in the United States since 1976, but there are concerns that the drug cocktails used might not be as painless as at first thought.

The questions about lethal injection mirror the debate over child rape in that they seek to draw distinctions over which methods are acceptable and which are not. We have gone out of our way to find methods designed primarily to assuage our guilt, to mollify us, to hide the hideous nature of executions so that we can go on with our lives. We want it both ways: We want the condemned to die, but we want them to retain their humanity—and we don’t want to have to pay attention.

The Los Angeles Times followed this line of reasoning in a 2006 editorial (one I’ve quoted from in the past):

“Why don’t we just shoot” the condemned prisoner? the editorial questioned. “Or suffocate him with poison gas, or incinerate him with electricity, or strangle him with a noose? And put it on TV, so everyone can watch.

“Too gruesome? Too uncivilized? Of course. So why is it acceptable to inject him with the heart-stopping drugs inside a tiny chamber, out of public view except of a few witnesses?”

Consider what might happen were we to make executions into public events. How might the public react? Would the same level of support for capital punishment exist? Would there be a general revulsion?

In the end, the question is not which crimes warrant the death penalty or what methods should be used. The question is why we still sanction capital punishment knowing what we know about its inconsistencies and failings, about the ethical somersaults required to endorse it.

Hank Kalet is a poet and the managing editor of the South Brunswick Post and The Cranbury Press in New Jersey. Email and see his blog, Channel Surfing, at

From The Progressive Populist, August 1, 2008

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