Supremes save children’s lives by saving the lives of child rapists
The U.S. Supreme Court has handed out some important rulings in the last few days. Of course, yesterday, the Court breathed new life into the 2nd Amendment, ruling that it is an individual right to bear arms, not some sort of collective right of the state to have an army. Obvious to anyone who has not executed all of his own brain cells with drugs is the fact that the state needs no guaranteed right to bear arms, as the state is in the best position to bear arms as the state can tax more than any one person can raise on his own to purchase weapons. The very fact the state, by buying arms, can defend its own right to arms by those very weapons, and does not need to have a collective “right” to do so, suggests that the contortions of logic that came up with this “right to form a militia” is nothing but nonsense.
What I want to discuss here, however, is the ill-conceived law from my home state of Louisiana that was declared unconstitutional by the Court in Kennedy v. Louisiana. Justice Kennedy (not the same Kennedy as in the court case) ruled sensibly in his majority opinion by outlawing the death sentence that Louisiana had Okd in convictions for child rape. Kennedy wrote:
In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. See Rayburn, ˜Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119, 1159-1160(2004). see p. 35 of the Court’s opinion here
Justice Kennedy’s reasoning illustrates sound economic reasoning. The idea, of course, is that if the same penalty is applied for child rape as for murder, the child rapist then sees his decision as one where the extra cost for murdering the child which would eliminate an eye witness, as one with a low marginal cost. The reason is that after the child has been raped, there is no extra cost for murdering the victim, as the state can impose no heavier penalty than killing the child rapist. In economics lingo, the marginal cost of killing the child rape victim falls to zero with the death penalty for child rape. If the state law lowers the marginal cost of murdering child rape victims, we can expect the statute to result in an increase in child rape victims being further brutalized by the loss of their lives at the hands of their rapists.
Actually, the court echoes the reasoning Chad Turner and I presented here at Bastiat’s Bastions two years ago in Perverse consequences of stiffer penalties for pedophiles and another I wrote in In for a penny, in for a pound. Our blog posts just echoed what economists, such as Ekelund, Jackson, Ressler and Tollison that Turner and I cited in our “Perverse consequences…” blog post and legal scholars, such as Rayburn cited by Justice Kennedy in his opinion had said or written before us.
(Principles of Economics students here at Nicholls ought to recognize the names of three of the four economists Turner and I cite, as three of them are the coauthors of the economics textbook we use.)
How would you argue this case?
June 27th, 2008 at 3:00 pm
I agree with the fact that the consequences for rape and murder should not be the same. As said in this article, it is completley correct that if a rapist has raped a child and understands that he is going to get the death penalty whether he murders or doesn’t murder the child, chances are he will murder the child in order to have a chance to leave the scene without getting caught. And if he does still get caught, then he would get the death penalty even if he didn’t murder the child. So according to the rapist, I’m sure it would be a “Well what do I have to lose?” moment when he ultimately decides wether to murder or not murder the child. I’m not saying that the rapist doesn’t deserve the death penalty because in all aspects I believe the rapist does. But by giving him the death penalty, it is just giving him more of a reason to muder his victim. I think child rapists should sit in jail for the rest of their lives and hopefully go through many hardships while in prison since no one in prison, not even cold blooded murderers, have any respect for child rapists. I know some prisons allow child rapists to be kept in solitary confinement or in a different branch of the prison that either keeps them alone at all times or with people who have done similar crimes. So instead of being harassed by prisoners they would just sit in a cell with nothing else to think about except why they did what they did. Also maybe have the victim’s family express the pain that the rapist extended to them through the victim. Although I’m not sure how rapists would feel if they were confronted by the victim. It’s possible that if the victim is doing well, the rapist might feel less emotion about it and maybe feel that it doesn’t matter that they raped that person since they are doing fine. This would end their thoughts about what ever happeened to the victim. In the end this would probably bring pleasure and closure to the rapist and should be 100 percent up to the victim if they decide to take this path. It also might help the victim live their life more normally after an event like this but probably also make the rapists’ stay in prison more tolerable which isn’t really a positive thing for the victim. Even though some humans act as animals in many cases, I don’t believe it is fair to treat people as animals. People make mistakes, and yes some are much much worse and far less forgiving than others. But in the end, I do believe that the death penalty should be saved for the ultimate crime of murder. I’m sure there are many other forms of punishment for rapists besides the death penalty that could be used against them.
Jared Picou, Coats Econ 211 Summer 34A
June 27th, 2008 at 10:05 pm
Criminal justice is a bunch of BS. Why should we care about the criminal who didn’t care about the victim to begin with? With that said, I do not agree with the death penalty! I know this is contradictary, but let me explain. The criminal is someone’s child, someone’s family member. The family of the criminal should not have to suffer any more than the innocent family should have to suffer. Now, in this case, I think the answer is obvious. Why wouldn’t the rapist kill his/her victim? Maybe the courts should focus less on criminal justice and more on ending crime. I don’t understand why the penalty should differ according to the extent of the crime. If it is rape or malestation. It is still wrong. Lock them up for life. I don’t care if my tax dollars or paying for it. I would do anything to keep the people I love safe. I would much rather live in a safer world than in a richer, more luxurious one. Besides, the government is going to take our taxes rather we like or not, why not put that money to good use, where we all can appreciate it?
June 28th, 2008 at 10:41 am
Erika,
The reason why punishments need to be proportional to the crime is the point of my original post. If criminal does one thing and then sees little extra cost to the extra offense, then without proportionality, the criminal will commit the extra crime. Also if the penalty is not proportional to the cirme, criminals will be more likely tom commit crimes that have bigger payoffs which often have bigger damages to the society. The idea of penalties is to reduce the damages to society. One of the damages that we should take into account is that not only does it cost us to feed and take care of prisoners, but there is another cost and that is doing without the production of these individuals if they were doing something productive. That’s why I thought that the relatively short sentence that Martha Stewart got made sense. I should point out that the social harm of her “inside trading” is not as established as some would have us believe.
-MC
July 1st, 2008 at 6:45 pm
I’d like to rewrite MC’s post with the following title:
“Supremes Increase Child Rape by Saving the Lives of Child Rapistsâ€
By raising the penalty on child rape to the death penalty, it seems to me that there are two things occurring at the same time. MC focussed on the first, but should, I think, give more focus to the second. By comparing the two alternatives, one might or might not come to a different conclusion about the issue, than perhaps if someone had only read this post.
I’m not attacking the MC’s position per se (I am not sure whether I agree or disagree), but rather intend to point out the tradeoff.
Raising the penalty to the death penalty simultaneously does two things:
(1) reduces the marginal cost to zero for murdering the victim if a rape occurs. So the number of children murdered, conditioned on being raped would increase. I would also concede that more rape-murders will occur after the change.
(2) increases the marginal cost of a rape (without murder). I think that MC would have to concede that fewer rapes (without murder) will occur after the change. I’m less sure, but would be willing to bet, there will be fewer rapes overall.
Some rapists will be induced to murder their victims (as MC focuses on), while other potential rapists would be induced not to rape (not mentioned above).
Isn’t then, the issue, not as one-sided as it appears here, but rather a repugnant tradeoff? Our choice of preventing murdered and (raped children) by increasing the number of raped (and not murdered) children?
Is it so surprising then, that a parent or citizen could be in favor of this policy?
We know economists can put a value on human life, but can they determine people’s willingness to pay, by accepting a higher likelihood of child rape, to prevent murder?
And couldn’t this plausibly vary across persons?
–CT
July 3rd, 2008 at 12:51 pm
Chad is, of course, correct here. The arguments he makes here, as I recall, were made in both our oringinal posts as well as in Justice Kennedy’s majority opinion, both of which were cited along with hyperlinks, bringing the reader to the other arguments.
Kennedy stated the problem well in his opinion, that it is unknown which effect is overriding or stronger, and that research on this is needed, but that there is no evidence at this point of which is stronger.
I should point out that with the various states passing Jessica’s Laws, in several years there should be evidence produced from a great deal of variation across states to provide an idea about the strengthes of these effects, even without the death penalties in Louisiana, Missouri and the several states that have passed what seems to be overly harsh penalties.
-MC
July 3rd, 2008 at 2:20 pm
Granted, our blog readers are not the “average” student, but I was worried the average student wouldn’t go back and read the old posts and would come to the wrong conclusion, hence my comment.
Without reading the background, your post could easily be (mis)understood – almost out of context.
Kennedy did explicitly mention both sides in his opinion. I didn’t read the minority opinion to see if they too mentioned both sides.
We (the original Jessica’s Law post) did point out both sides – in keeping with the theme, we expressly discussed what is seen (fewer rapes), with was is unseen (more rape-murders).
I didn’t “want was unseen” with this post to be the part that most people would think was seen.
And with what sounds like a very bad Abbott and Costello routine started, I shall stop…
–CT