The Louisiana Rejoinder

Not entirely sure what to think of this yet, but Louisiana Governor Bobby Jindal has quickly figured out a second possible punishment for sex offenders -- forced castration.

The bill that he signed today provides that

on a first conviction of aggravated rape, forcible rape, second degree sexual battery, aggravated incest, molestation of a juvenile when the victim is under the age of 13, or an aggravated crime against nature, the court may sentence the offender to undergo chemical castration. On a second conviction of the above listed crimes, the court is required to sentence the offender to undergo chemical castration.

Two problems immediately pop up. First, the general "wow, this is overbroad" argument. There's no provision to deal with Romeo and Juliet situations, nor to deal with issues surrounding the mentally retarded, who may often fall into the same mental age range as the victims and who, in some cases, are actually the victims of the abuse but are considered the perpetrators under law because of their chronological age. Something more narrowly tailored might have been intelligent.

Second, it's unclear to what degree the chemical castration will actually prevent perpetrators from getting erections -- what good does it do to make them infertile if they can still get it up? Moreover, what happens if/when the chemical treatment wears off? (Interesting article written in 2001 on repeat sex offenders who had already had chemical castration.) Large doses are needed to tamp down male sexual desire, and even then they sometimes don't work. The chemicals do, however, give significant medical side effects on a regular basis.

And, of course, these arguments set aside two general criticisms of sex offender laws: (a) they actually do very little to deter what are often irrational crimes and (b) they reflect an inaccurate popular perception that sex crimes are usually performed by strangers.

I'm not in principle opposed to sex offender laws, and castration does seem a reasonable punishment, if reasonable is defined as "seems right to an average person." But this sort of law, while it may appeal to our sense of justice and vengeance, doesn't really have any rational, calculated thought behind it, and that worries me.

On a lighter note, another historical article reports on castration:

The controversial "Chemical Castration Bill" was accepted into law yesterday. This now provides for chemical castration as the standard punishment for each and every crime or infringement upon the law. It is being hailed as the best determent for crime ever. "I believe it to be an idea whose time has come," said Senator Dale Bumpers from Arkansas. "The American people are finally fighting back against criminals."

Polling on Kennedy

Given yesterday's decision in Kennedy, I'm interested in whether US popular opinion tracks with the states' alleged "evolving standards of decency." My guess is no.

I'd like to put a poll in the field to gauge whether people believe the death penalty should be available for a variety of crimes. This data doesn't appear to exist except for "murder," loosely defined.

Does anyone here know about how to hire pollsters? Equally important, does anyone know how much it costs, and how to get funding? I'm talking to a couple of conservative groups to try to get some money, but I don't have ballpark numbers. I'm thinking I'd need about 1000 nationwide responses, which I would guess means making about 5,000-10,000 calls.

Child Rape and Devolving Standards of Decency

For those of you who haven't seen it yet, the Kennedy decision came out today. It is available here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

Justice Kennedy wrote the opinion. Justice Alito wrote a dissent, joined by Justices Roberts, Scalia, and Thomas.

I don't have time to comment on this extensively at the moment, and we've discussed many of these issues already on this blog. I will say that if we're going to have the death penalty in this country at all, it's puzzling to me that we don't apply it to child rape. I suppose some people feel that murder is substantially worse than child rape, so as to excuse killing the perpetrator of one but not the other. I just don't see it. It's difficult to compare such egregious acts, but to my mind at least SOME murders that are still constitutionally eligible for the death penalty are less morally bankrupt than child rape. The protection of children is, after all, a universally recognized moral precept. In fact, while many of us can probably imagine being driven to murder by extraordinary circumstances, I suspect the vast majority of people cannot imagine being driven to commit the type of atrocity seen in Kennedy.

Of course, it is always possible that the next step will be to prevent the execution of criminals convicted of only one homicide, without aggravating factors. This is already effectively the law in many jurisdictions. I would argue that this is essentially a matter of efficiency--we simply can't afford to match our murder rate with our execution rate. But someone, right now, is writing a brief arguing that it's because we've evolved past killing murderers. Will the Court take their rationale so far? I wouldn't have thought so before this morning.

The majority commits many of the errors Mr. Pollard and I discussed in our previous posts. They use the "evolving standards of decency" argument, based at least in part on a state law "consensus" that is largely of their own creation. And they completely ignore the fact that "evolving standards of decency" can create more, rather than less punishment, see, e.g., Sexual Harrassment. Thus, they continue the one-way ratchett of 8th Amendment Jurisprudence.

Justice Roberts voiced this concern at Oral Arguments, and the other Justices make a half-hearted attempt at arguing the point. But it's hard not to think that the Majority Justices are just substituting their own standards of decency for those of the rest of the citizenry. Do we really imagine that the majority of citizens in this country are against executing child rapists? If not, where are these "evolving standards" coming from? I submit that they are largely the product of the Court itself.

But perhaps I am not giving the Court enough credit. Maybe our laws have become so complicated that they have actually come to life, and are evolving on their own.