Rep. Paul Ray of Clearfield, Utah recently announced that he wanted to apply the death penalty to child sex traffickers.
As a father of girls, let me be among the first to say: sex traffickers deserve a special place in the Hell, and I want to do all I can to help them to that dark dungeon expeditiously. The death penalty actually sounds like pretty mild a treatment for sex traffickers and child rapists.
I posit that there are few who would disagree.
And yet, I am hesitant to ride roughshod over the nation’s laws in a quest for justice, even against the very most despicable of humans. The US Constitution’s Eighth Amendment limitation against “cruel and unusual punishments” has been found by the US Supreme Court to limit the death penalty in cases of rape, even of children.
Since 1977, the Court has held that the death penalty is “disproportionate to the crime itself where the crime did not result[…] in the victim’s death.” The majority in Kennedy v. Louisiana, applying this rule to the heinous rape of a child in 2008, determined that even then the death penalty was in violation of the Constitution’s prohibition on “cruel and unusual punishment.”
Though Justice Alito’s minority opinion derides the majority’s holding for, essentially, appropriating legislative functions, the holding is still the law of the land.
Which brings us back to Ray’s proposal and, generally, proposals like it. Why push for laws that are on their face going to conflict with existing Supreme Court precedent before they even get through the legislature?
To be clear, this is distinguishing it from laws that might be in conflict, or might someday come in conflict.
Following the law does not always result in justice. Sometimes the law creates obtuse results, is unequally applied, or creates unintended consequences. Sometimes, bad people go free. In this case, bad people will live instead of being executed.
Still, living by what we call the “rule of law”–when those laws are created by a democratic process by elected representatives and that includes the checks and balances of splitting the functions of government between executive, legislative, and judiciary functions–is a far superior method than the arbitrary rule of men. It protects innocents from the abuses of the law, of men, and of justice.
Additionally, there is the issue of whether it would work. Assuming that the law would even be constitutional, would raising the penalty for child rape or sexual trafficking to execution by firing squad (another proposal of Ray’s) even deter perps from their deviance, or would it just encourage victims–who are often family members–to keep their pain to themselves out of fear, however misplaced, that their family member could face a firing squad?
When the legislature meets for just six short weeks each year, there are a multitude of “problems” that they need to solve. Will creating the potential for a conflict with settled federal law be an appropriate way to spend the legislative time?