Academic

Megan's Law And The National Consensus For Death

By Dan Filler

I've been reading over the briefs in Kennedy v. Louisiana, today's Supreme Court case considering the constitutionality of capital punishment for child rapists.  Yesterday I noted that the amicus brief of several states appropriated the overblown rhetoric of the child abduction panic movement.  But there's more interesting stuff there and it again sounds in shady conflation - in this case, arguing that the existence of Megan's Laws prove that America supports death in child rape cases.

In Louisiana's brief, the petitioners argue that  "objective indicia" reflect a growing national consensus that  death is not a disproportionate sanction for child rape.  The state points to three proofs: first, they argue there is a trend towards states adopting such laws; second, they contend that prosecutors and juries think this sanction is OK; and third, according to the state, "the widespread enactment of ?Megan?s Laws? has also been posited as an indicator demonstrating 'a society more comfortable with the severe punishment and deterrence of child rapists and child molesters.'

Whoa Nellie!  First, how does widespread enactment of sexual offender registration and notification speak in any way to the appropriateness of the death penalty?  Even if notification was a punishment, it's mighty weak, comparatively.  And this argument seems particularly odd given that most jurisdictions have concluded that Megan's Laws aren't even punishment at all - and therefore don't implicate the ex post facto clause.  Perhaps even more strange, and dare I say disingenuous, in prior litigation the State of Louisiana expressly argued that Megan's Law isn't punishment at all...and the Louisiana courts agreed.  See Olivieri v. State, 779 So. 2d 735.   

Indeed, the fervor with which both Louisiana and amici argue for the moral culpability of child rapists makes me wonder why states "treat" these offenders in therapeutic preventive detention - i.e., civil commitment for "sexually violent predators".  Here's the problem.  When states seek to incarcerate people in anticipation of future crimes, something that is constitutionally prohibited if it's called punishment, they argue sexual offenders have a condition equivalent to mental illness.  They are detained for treatment.  When, on the other hand, such an individual actually offends, the offender acts out of pure free will. 

I'd suggest that states can't have it both ways when it comes to offender culpability, just as they can't argue that Megan's Law is both non-punishment and brutal punishment.  But perhaps they can.  We've lived through a generation of "death is different" jurisprudence.  We may now be entering the  "child abusers are different" era.  The ex post facto law and cruel and unusual punishment prohibitions may no longer apply. 

Update: Corey Yung over at Sex Crimes has further comments on these issues here, with an incredibly good collection of links here.  Dan Markel considers whether death is ever retributive here.  And Doug Berman has been offering a host of thoughts here.

Full post as published by The Faculty Lounge on April 16, 2008 (boomark / email).