Capitol Punishment
Tue March 6, 2007 10:01 am

Why is the House (soon to be followed by the Senate) so determined to impose the death penalty for repeat sexual assault offenders? It's good politics, of course, but is it worth the risk of giving sexual predators a reason to kill their victims, and of having Jessica's Law declared unconstitutional and convictions overturned? Last week I wrote about some of these problems (see "Intelligent Life Discovered in House!" posted on February 28): first, that a repeat offender, knowing that he will face the death penalty for the second offense whether his victim is alive or dead, has every incentive to kill her so she can't testify against him; second, that the Supreme Court has ruled that the death penalty for rape is unconstitutional; third, that a prosecutor of sex crimes testified in committee that the Court is narrowing the use of the death penalty rather than expanding it; and, fourth, that it is more cost-effective and time-effective to for prosecutors to seek life in prison without parole in these cases. Yesterday the House took one more step to guarantee that the bill will not survive judicial scrutiny.

Before I explain what the House did, let me make a statement for the record. I strongly support capital punishment in capital murder cases. I have occasionally been asked to appear on cable news to talk about Texas's high rate of executions and why we are so out of step with the rest of the country. My answer is that Texans think it's the rest of the country that is out of step: We can't imagine why they wouldn't want to see justice done for heinous murders. But the toughest penalties accomplish nothing if the statute gets thrown out by the courts.

Yesterday the floor substitute added a new capital offense: Continuous Sexual Abuse of a Young Child or Children. This occurs if someone commits an offense more than once in a period of 90 days or more, or commits more than one offense. The language in the substitute says that a jury is not required to reach unanimous agreement on which day the offenses occurred or on which specific offenses were committed. In other words, if Juror A thinks that the offenses were aggravated kidnapping and sexual assault, and Juror B thinks they were aggravated sexual assault and burglary with the intent to commit sexual assault, that's OK, give him the needle anyway; and if Juror C thinks that the offenses were committed on Wednesday and Saturday and Juror D think it was Monday and Thursday, that's OK too. Does anybody really think that the Supreme Court is going to buy that a jury doesn't have to be unanimous in a death penalty case? Apparently so, because Harold Dutton tried to amend the bill by requiring unanimity about which offenses were committed and when they were committed but was voted down 96-47. Seven Republicans voted with Dutton: Branch, Callegari, Goolsby, Hamilton, Hartnett, Hughes, and Jackson.

I'd hope for better work in the Senate, except that the Light Guv is the guy who started all the fuss over capital punishment for repeat sex offenders in the first place. Life without parole is not a slap on the wrist.

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