Political posturing will not achieve justice, accountability

Matthew T. Mangino
The Youngstown Vindicator
November 3, 2013

Executions in Ohio have become a regular occurrence. State Rep. John Becker would like to see those numbers increase. He has introduced House Bill 244, legislation that provides prosecutors with the option of pursuing the death penalty for some sex-related crimes.

The crimes in Becker’s legislation include aggravated rape, aggravated rape of a child, aggravated sexual battery, aggravated sexual battery of a child, and aggravated unlawful sexual conduct with a minor.

“In light of the Ariel Castro kidnapping case ... I wanted to give prosecutors the option to pursue the death penalty for repeat sexual offenders,” Becker said in a legislative press release.

“Prosecutors would be able to use the death penalty threat as a tool for plea-bargain negotiations,” Becker added. “Nobody in this country has ever been executed for a sex crime, but that could change.”

Becker is wrong at every turn — yet his knee-jerk reaction to the incomprehensible crimes committed by Castro has many supporters. Even The Vindicator wrote last month, “Becker’s action to bring the issue of appropriate punishment for such disgusting crimes to the halls of the General Assembly deserves commendation. Many, if not most, in Ohio would sympathize with his reasoning that violent child-sex offenders deserve execution.”

It is understandable why the death penalty for sex offenders might be resurrected in Ohio. Since 2010, Ohio has executed more inmates than traditional “law and order” states like Mississippi, Alabama, Florida and Oklahoma. Only Texas has more executions than Ohio.

Why are Becker’s proposals misguided?

First, Ariel Castro would not have been eligible for the death penalty under Becker’s proposal because he did not have a prior sex-related conviction.

Secondly, it is unethical for a prosecutor to charge a defendant with a crime for the sole purpose of using the charge as a tool in plea bargaining. Yet, that is exactly what the sponsor of the bill is proposing.

Finally, to suggest that no one in the country has ever been executed for a sex crime is preposterous. Many African-American men were sentenced to death and duly executed across the South for rape. A significant majority of those rapes were perpetrated against white women, and the verdicts were rendered by all-white juries.

More importantly, the law is pure politics with little chance of being passed and less chance of being carried out — a waste of time and government resources.

Rape as an executable offense was banned 36 years ago. In Coker v. Georgia, the Supreme Court barred the use of the death penalty as punishment for the rape of an adult woman. Some states, like Louisiana, believed that “children are a class that need special protection.” Therefore rape of a child is unique in terms of the harm it inflicts upon the victim and society and deserving of the death penalty.

In 2008, in Kennedy v. Louisiana, the Supreme Court addressed that issue as well. In a 5-4 opinion, the Supreme Court ruled that the Eighth Amendment bars the imposition of the death penalty for the rape of a child. In assessing the “evolving standards of decency that mark the progress of a maturing society,” the court rejected Louisiana’s argument that society’s standards are evolving to embrace capital punishment for the crime of child rape.

At the time, only six states had passed laws penalizing child rape with the death penalty.

There is no question that short of murder, child rape is the most reprehensible crime. However, pursuing the death penalty for child rape is not only an impossibility — it is based on flawed thinking. If the penalty for child rape was the same for murder of a child what would be the incentive for an offender to let his victim live? A child molester could turn into a killer with nothing to lose.

No one quarrels with locking away arepeat child rapist for life. Use the criminal courts and civil restrictions to ensure that the offender never hurts another child. Few would oppose the vigorous pursuit of those ends.

Puff-chested posturing and bravado may boost a politician’s poll numbers, but achieves neither justice nor accountability.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino)