Loudon’s proposed “Devlin” law could face Supreme obstacles
In light of the string of astonishing admissions by Michael Devlin, State Sen. John Loudon said Wednesday he will pursue legislation making âaggravated child kidnapping” a capital offense.
Given the ordeal suffered by Shawn Hornbeck and Ben Ownby, such a law might have little trouble passing the legislature in Missouri.
But the nation’s top court is another matter.
Loudon told the Associated Press that he wants individuals who, like Devlin, are convicted of kidnapping and sexually assaulting a minor, to be eligible for the death penalty.
âThis guy really illustrated every parents’ worst fear — that their child could be minding their own business and literally disappear and be used in this kind of horrific way,” Loudon said of Devlin.
While, as the AP notes, several states have similar statutes, only one state - Louisiana - actually has a child rapist on death row.
Whether he stays there will be decided by the Supreme Court, which has agreed this session to hear the case of Patrick Kennedy, sentenced to die for raping his eight-year-old stepdaughter at their home near New Orleans.
At issue is a fundamental constitutional: Does enforcing the death penalty for a crime other than murder violate the Bill of Right’s ban against âcruel and unusual punishment.”
The Louisiana Supreme Court believes it doesn’t, saying in a May ruling that âif the court is going to exercise its independent judgment to validate the death penalty for any non-homicide crime, it is going to be child rape.”
The court noted that child rapists, unlike other classes of offenders who have fueled the death penalty debate, âshare no common characteristic tending to mitigate the moral culpability of their crimes.”
From the majority opinion:
Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of first-degree murder, we can think of no other non-homicide crime more deserving.
The dissenting opinion in the Louisiana court cited a landmark 1977 Supreme Court case, Coker v. Georgia, which for sure will be brought again before the court in the next few months.
In Coker, Georgia gave the death penalty to a seasoned felon who, after escaping from prison, robbed and raped a woman. In that case, the court overturned the sentence.
The opinion written by Justice Byron Raymond White detailed why:
Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” is an excessive penalty for the rapist who, as such, does not take human life.
The Louisiana case is one of several on the docket that will help shape the Roberts Court’s stance on law and order issues - the court has also agreed to hear cases on lethal injection and penalties for crack cocaine.
In Missouri, the question of whether the next Devlin should get the highest penalty might be the focus of much deliberation, from the water cooler to the Statehouse.
Yet, before lawmakers in Jefferson City can act on Loudon’s proposal, they may have to see what the justices in Washington do first.
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The idea is at best political grandstanding, and at worst pure idiocy.
After kidnapping and abusing a child, what incentive would there be to release the child? There would be, however,a strong incentive to actually kill the child: to make sure that the child is not able to identify the criminal.
Loudon is the worst kind of politician.