The South Carolina Legislature is currently considering a new law that would allow the execution of any person who is twice convicted of criminal sexual conduct with children younger that 11 years of age. The proposed law is the result of the recent arrest of a man charged with the kidnapping and rape of two 17 year old girls. The man had been previously convicted of raping a 12 year old in 1991 and was released from prison for that crime several years ago.
Public reaction to the proposed law has been mixed. Several legislators have doubts that such a law would pass Constitutional muster and would cost the taxpayers of South Carolina millions of dollars in legal fees for the required appeal process for every person sentenced to death under the proposed law. Other opponents point out that many persons convicted of criminal sexual conduct with children under the age of 11 are close relatives and that executing a close family member could cause substantial emotional problems and conflicts for the family. Several state senators are pinning their hopes for passage, and the eventual approval of the law by the Supreme Court since the recent appointment of two new justices to the Court.
In theory I agree with the death penalty. There are some crimes so horrific, and a few people so violent, that it is justified. However, in practice the death penalty simply does not work if we want a criminal justice system that will never execute an innocent person in error. The Innocence Project, (innocenceproject.org) has used DNA evidence to proved the innocence of 175 incarnated persons, many on death row. In the most celebrated case, 11 inmates on death row in the State of Illinois were released after DNA evidence proved they were innocent. Of the 11 persons released the most disturbing case was of a young man who, mildly mentally retarded and an abuser of alcohol, was convinced to confess to the murder of his parents while suffering from a "alcoholic black out". The real truth was that the FBI knew who the real killers were and withheld the information so as not to interfere with their ongoing investigation. The young man was sentenced to death and only the efforts of the Innocence Project revealed the truth. The real killers have never been charged.
The only other state that has the death penalty for rape is Louisiana, and the last execution for rape anywhere in the USA was in 1964. If we are to execute criminals for any offense, we need to be sure that he or she is guilty. The development of DNA testing was a giant step toward identifying the guilty and exonerating the innocent, but in some cases where DNA testing is possible, it is not done because the defendant cannot afford to pay for it. After being told for decades that each person in the world has a unique set of fingerprints, we now discover that there has never been a scientific study of the validity of that claim and that the interpretation of fingerprints is more of an art than a science, and that the standards for fingerprint identification vary widely by state and country.
Forensic scientists employed by law enforcement crime labs in several states have been caught falsifying or modifying lab tests to "prove" a defendant guilty, causing thousands of guilty verdicts to be challenged. On the other side of the ledger, prosecutors are now facing the "CSI" effect caused by the popular television program. Jurors are becoming more and more difficult to convince of the guilt of an accused because there is no DNA or other scientific proof even though the prosecution of a particular crime may not produce or need that type of evidence.
I have written to our State Legislators opposing the law and have suggested that we revise our penal code so that convicted murders, rapists and other violent repeat offenders be sentenced to life without the possibility of parole. This approach will ensure that the public would be permanently protected from these violent offenders, while allowing for the introduction of future DNA or other evidence that could exonerate them. It is emotionally satisfying to support the death penalty for sexual crimes against children, but justice is supposed to be blind. Blind not only to social status, race, religion or gender, but also blind to emotional appeals for revenge and retribution.