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Can too many child rapes be a constitutional argument against making this crime death-eligible?

By Douglas A. Berman

I am intrigued but troubled by the arguments developed by John J. Donohue III and Daniel Schuker over at Balkanization, in this post titled "Dodging the Death Penalty Bullet for Child Rape." The post asserts that Supreme Court's decision in the Kennedy child capital rape case "managed to reach the correct result of saving the state and the country from a major, and almost certainly harmful, expansion in the use of capital punishment." After discussing the military law error that might be the hook for the state of Louisiana to seek rehearing in Kennedy, this post runs some numbers and makes these interesting assertions:Coupling [a Department of Justice victim-age] estimate to findings in the 2005 National Crime Victimization Survey implies that roughly 36,500 children under 12 were victims of rape...continue to full post

Full post as published by Sentencing Law and Policy on July 16, 2008 (boomark / email).