Child Rape, Moral Outrage, and the Death Penalty

By Susan A. Bandes[*]

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Is raping a child as heinous an act as taking a life?  How should the comparative moral depravity of child rapists and murderers be measured?  By what metric can the irrevocable harm murder inflicts on its victims be weighed against the long-term anguish inflicted on child rape victims?  What is the judicial role in gauging the societal outrage and revulsion elicited by these two crimes, and in determining whether the death penalty is an appropriate response to those emotions?

In Kennedy v. Louisiana[1] the Supreme Court struggled with this daunting set of issues, which called for judgments that are inescapably moral and emotional.  The Court also faced contentious questions about the nature and longevity of the psychological injuries to child rape victims and to their families,[2] about whether a capital prosecution would ameliorate or exacerbate those harms,[3] and about whether the strong emotions jurors feel in child rape cases are likely to overwhelm their capacity to decide fairly.[4]  The Kennedy decision is a vivid illustration of the central point Douglas Berman and Stephanos Bibas make in Engaging Capital Emotions: that it is impossible to evaluate the legal issues raised by capital punishment without addressing the role of emotion.[5]

I’ve argued that once we acknowledge “the emotional wellsprings of the retributive calculus” we can have “a more clear-eyed debate about retribution’s proper role in our capital punishment system.”[6]  Berman and Bibas begin this debate.[7]  They argue that child rape should be a capital crime, drawing support from the widely shared moral outrage the crime evokes, and from the crime’s emotional toll on child rape victims and their families.  Although I reach the opposite conclusion on the merits, their essay models precisely the sort of conversation we ought to be having.

Part I of this Reply considers the role of emotion in capital jurisprudence.  Section A discusses the importance of confronting emotion’s role in capital punishment.  Section B explores the difficulties with using moral outrage as a metric.  Section C argues that the penal system should not merely reflect moral outrage, but channel and educate it.  Part II focuses on the role of emotion in deciding whether child rape should be a capital crime.  Section A considers the relevance of victim harm to the question facing the Kennedy court.  Section B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious impact of anger and empathy, the problem of generic prejudice, and the issue of race.

Rediscovering the Law's Moral Roots

By Morris B. Hoffman[*]

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In their recent essay,[1] Professors Berman and Bibas stake out terribly important ground, recognizing and then wonderfully articulating an essential duality between justice and emotion, and between law and morality, all in the context of the constitutionality of the death penalty for child rape as raised in Kennedy v. Louisiana.[2]

I do not express any opinion on whether their insight should have driven a different result in Kennedy—after all, there was the constitutional question of whether due process, or the Eighth Amendment, means that only death justifies death.  True, labeling that inquiry as constitutional does not rescue us or the members of the Court from the “normative Furies,” to paraphrase Professors Berman and Bibas.  Indeed, they are right to point out that those Furies are precisely what drove some state legislatures to make death the penalty for raping children, that such a journey is deeply personal and one about which reasonable and honorable legislators may disagree, and that this is therefore a fray into which the judicial branch should be especially leery to enter.

Still, the ultimate decision in Kennedy required the Court’s full range of constitutional tools, including, but certainly not limited to, its ability to recognize a state’s legitimate, emotional, and democratic expressions of deeply held stigma.  Those of us who care about constitutional processes—not just outcomes—believe that some other tools, including text, history, and stare decisis should also play into the mix.[3]

Engaging Capital Emotions

By Douglas A. Berman[*] & Stephanos Bibas[**]

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Louisiana seeks to execute Patrick Kennedy for raping his eight-year-old stepdaughter.  As the Supreme Court weighs the death penalty for this child rapist, commentators are aghast.  The New York Times and the Los Angeles Times editorial pages call child rape a heinous horror but dismiss this reality.[1]  The death penalty, they claim, is inherently excessive for crimes short of homicide; visceral disgust at child rape, they assert, clouds reasoned reflection about proportional punishment.  This position reflects long-standing criticisms of the death penalty as an expression of raw vengeance, a hot passion that clouds dispassionate justice.  The march of justice seems to be in the other direction: away from emotion and towards reason, from Dr. McCoy to Mr. Spock, from the Furies to Athena in Aeschylus’ Eumenides.

But the Furies will not die so easily, nor should we disdain them.  Emotions and the passions they create are ever-present in our legal system.  They bubble beneath any seemingly cool, detached analysis of crime and punishment.  As astute observers highlight, debates over criminal law and practices turn not on neutral deterrence-speak, but rather on emotion-laden claims and concerns.[2]  The undercurrents of emotion are especially salient in death-penalty debates.  Those who deny or bemoan the benighted persistence of passion fail to appreciate its role.[3]

In this short Essay, we suggest that the conventional attitude toward emotion in punishment is misguided.  Part I begins by describing the existing legal terrain, and then Part II evaluates it normatively.  Descriptively, emotion is unavoidable in criminal justice and particularly in capital punishment.  Indeed, recognizing emotion’s role helps to explain many features of capital-punishment jurisprudence, from the debate over execution methods in Baze to the exemption of juvenile and mentally retarded defendants in Roper and Atkins.[4]  Normatively, emotion is crucial to a criminal justice system that seeks both to educate citizens with its symbolism and to channel their justified outrage.  Emotions deserve respect, especially when they reflect the public’s moral perspective that certain crimes have profound emotional resonance.