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.
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.
This is politics at it’s best–a bill that will garner bipartisan support that creates a punishment that fits the crime. You are mistaken if you think sexual predators react rationally in response to potential punishments. Remember, Devlin did not turn himself in, he was captured and the children freed. The death penalty allows us to take out the garbage in our society, and Devlin is simply that, garbage.
I think that Justice White’s opinion is akin to manure. He asserts that murder is the worst crime, and I agree. But I feel the line is so thin between rape and murder that the punishment should be the same, and that it inflicts on the world the same degree of suffering. That being said, I don’t think the death penalty is the answer for any crime, no matter how grievous.
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The reason victim advocates are opposed to the death penalty for child rape is that it takes away any incentive the rapist has not to murder his victim. To the contrary, it provides an incentive to murder: If one is facing the death penalty anyhow, one is less like to be caught and convicted if there is no witness.
This is patently absurd. Rape, even of a child, is not a capital offense. To even contemplate such is political grandstanding and the worst form of abuse of a political office.
What’s causing more harm to Shawn and Ben now, is the fact that the news lingers lovingly on every sordid detail of what happened to them. This is followed by all the second guessers condemning Shawn, and even Ben for ‘not trying hard enough’ to get away.
Devlin is going to jail the rest of his life. When are you, St. Louis Today and Post-Dispatch, going to move on? Rather than give publicity to this less than intelligent local representative?
Didn’t Loudon try to get this bill passed in a previous session?
> This is patently absurd. Rape, even of a child, is not a capital
> offense. To even contemplate such is political grandstanding and
> the worst form of abuse of a political office.
Shelley, I wonder if you’d say the same thing if your child had been Mr. Devlin’s captive these several years.
I’m amazed that Justice White said “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.” Translated into plain English, “It’s not that big a deal, and you’ll probably get over it.” Wow! I think that ruling is going to get blown out of the water.
Mr. Kasoff: Thanks very much for interpreting the Justice’s comment in the most negative, harsh terms.
The decreased chance of a kidnap/abuse victim surviving their ordeal is enough for me to consider this idea one of Loudon’s biggest bonehead plays.
Here’s the scenario with Loudon’s plan in place, since the earlier comments that portray my objection seem to have gone right by you.
A child is kidnapped and abused. The perpetrator now has to decide what to do next.
“Let’s see, if I release the kid, and I am caught, the kid can identify me, and will provide clues that might lead to my capture. If that happens, I could be executed. Might as well kill the kid, that way there is less chance of getting caught or convicted. What the hell? The penalty is the same either way!”
Rather than being a deterrent, Loudon’s plan would in reality encourage murder! The survival rate for kidnap/abuse victims will go down. Is this that hard to understand?
Devlin will not breathe a free breath for the rest of his earthly life, and will in all likelihood become a big “favorite” in prison. If that happens, then he will know how it feels to be a victim (not that I wish that on him - wink wink). In any case, our children are safe from that one, just as if he were dead.
Shame on Loudon for jumping at political gain without thinking things through.
Sorry, Mr. Walsh, but your faulty reasoning won’t work here. In fact, since very few murderers receive the death penalty, and those who do linger on death row for a very long time, you could just as well argue that Devlin’s 73 life terms would have the very same effect.
A child is kidnapped and abused. The perpetrator now has to decide what to do next. “Let’s see, if I release the kid, he’ll squeal on me, and I’m almost certain to spend the rest of my life in prison. If I kill him, I have a 1/3 chance of not being caught at all (FBI stats), and if I am caught (assuming he lives in a state which has capital punishment at all) I have almost no chance of receiving the death penalty and actually being executed.” So ultimately, it seems, the best chance of a safe release for children who are kidnapped and raped is to impose no criminal penalty at all.
For a change, in my opinion, my friend the grandstanding opportunistic never-miss-an-opportunity to exploit a situation for self-aggrandizement, John Loudon, is, again in my opinion, on the right track. But since I’m against the death penalty, we should have life imprisonment no possibility of parole for aggravated child rape. I’ve long advocated this. Much better than letting them out eventually and then having to spend all kinds of time and money tracking them all over god’s country and worrying about where they live and haunting their every move. Better just not to let them out. And just as good a deterrent. They’re obviously nuts to begin with and presumably beyond deterrence. Plus every so often we convict the wrong person. Very hard to bring them back after you fry them. But btw, homicide is not the only crime for which the death penalty has been approved, i.e. treason. I dont think death penalty cruel and unusual or otherwise unconstitutional necessarily, just against it. And good thing I’ve never appeared to be a grandstanding opportunistic exploiter for self-aggrandizement, or at least dont think so, but others may judge for themselves, and sometimes have.
On one of the news programs Sunday morning, Koppel did a story about the difference between a year’s tuition at Yale vs. the cost of incarcerating a prisoner in California for a year.
It’s the same cost!
My question is this: when you consider Devlin will rot in jail, potentially living to be 90 (hey, it could happen!), why should taxpayers foot the bill for his room and board. He is the one that consciously performed these heinous acts — not just against those boys, but against society.
I would be for the death penalty in this instance.
And thank you, Mr. Walsh, for showing us that you can think like a criminal.
How much a year would it cost to make you go away, Jim?
and, Jim, congratulations on your perfect record of having never recognized a good point when you see one. Shocker!