By Susan A. Bandes[*]
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 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, about whether a capital prosecution would ameliorate or exacerbate those harms, and about whether the strong emotions jurors feel in child rape cases are likely to overwhelm their capacity to decide fairly. 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.
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.” Berman and Bibas begin this debate. 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.