CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, October 10, 2006

Death Penalty Urged For Child Molesters

From With the election just a month away, politicians examining ways to stop violent sexual offenders from striking again are increasingly calling for laws that would allow states to execute repeat child molesters.

Texas Lt. Gov. David Dewhurst is the latest to join the effort, proposing a plan Oct. 3 that would require a minimum mandatory prison sentence of 25 years for first-time offenders and the possibility of death for a second conviction.

In recent months, similar ideas have been pushed by lawmakers in Georgia, Alabama, Mississippi and even Minnesota, which doesn't have the death penalty. Most are modeled after Florida's Jessica's Law, a child-protection measure named for 9-year-old Jessica Lunsford, who was raped and killed by a registered sex offender in 2005. Rest of Article. . . [Mark Godsey]

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The penalty of death for a convicted criminal has become unconstitutional because an execution is a religious event. Killing a person violates the separations between secular government and religion, those widening separations which have become constitutional. If "Congress shall make no law respecting an establishment of religion," then legislatures shall make no laws establishing the penalty of death because capital punishment is religious.

In Euro-American societies a purpose in life has included making a good death, as with a death-bed conversion, a death-bed confession, or a dying declaration. Many guides to life were written to teach how to make a good death in order to achieve salvation and Eternal Life in God. A bad death was to be dreaded, as with the murder of the late King Hamlet, whose ghost laments that he died:

Cut off even in the blossoms of my sin,
Unhouseled, disappointed, unaneled,
No reckoning made, but sent to my account
With all my imperfections on my head:
O, horrible! O, horrible! Most horrible!

A purpose of an execution has been to send a soul toward eternal punishment, or at least to throw the salvation of the soul into doubt, surely a cruel punishment to a person under penalty of death. An execution within a religion may be usual, for the execution has a religious meaning consistent with the values of that religion. But an execution is "unusual" in a government which is not an elaboration of religious values, structures, functions and meanings. An execution threatens a bad death, in spite of the presence of a chaplain. Thus an execution can torture a person with turbulent fear for his or her soul, an anxiety that has nothing to do with a secular punishment which should not have religious implications. Now, in 2006, a penalty of death is a religious penalty which nevertheless is applied within a secular government which must have no legal interest in the relations of a soul with heaven or with hell. These themes overlap euthanasia, abortion and suicide, none mentioned in the Constitution, all of them, in some religions, pertaining to the eternal existence of an immortal soul, rather than to the finite and temporal citizen. A finite and temporal government is legally justified in punishing a citizen within the finite and the temporal world. But a person in government who decrees something or someone to be evil, hence to be destroyed, has abandoned secular government for the religious government of souls. On this plane, a judgment of spiritual evil authorizes religious torture and a religious penalty of death. But even in some Christian theology, a human judgment of evil can be a demonstration of pride, and of the sin of presumption, as in presuming to know the judgment and will of God. Such presumption of knowledge of the will of God over-reaches human powers, hence manifests a pride not consistent with religious faith, punishable in religious but not in secular terms. A secular execution commits the religious sin of presumption. In its wisdom, Christianity as a system has sometimes sought truth and justice with a trial always open to a re-trial, where a retrial may come closer to the mysterious judgments of God. In religions, posthumous retrials can continue, with the trial and execution of Joan of Arc in time corrected by the re-trial of Joan of Arc in eternity. In contrast, a civil execution prevents a civil retrial.

The announcement of a penalty of death, followed by the execution of a person, is a religious act which is unconstitutional in a secular democracy. Without knowing the scholarship on the penalty of death, I can at least quote Herman Melville describing the execution in "Billy Budd." Sentenced to die by Captain Vere, Billy offers a blessing: "God bless Captain Vere!" Because Billy is being negated, he qualifies as a mediator between God and humans: "At the same moment it chanced that the vapory fleece hanging low in the East, was shot thro' with a soft glory as of the fleece of the Lamb of God seen in mystical vision, and simultaneously therewith, watched by the wedged mass of upturned faces, Billy ascended; and, ascending, took the full rose of the dawn." In "Benito Cereno," the body of a man who has been executed is burned to interfere with his resurrection in the flesh: "Some months after, dragged to the gibbet at the tail of a mule, the black met his voiceless end. The body was burned to ashes; but for many days, the head, that hive of subtlety, fixed on a pole in the Plaza, met, unabashed, the gaze of the whites; and across the Plaza looked toward St. Bartholomew's church, in whose vaults slept then, as now, the recovered bones of Aranda; and across the Rimac bridge looked toward the monastery, on Mount Agonia..." So again, if "Congress shall make no law respecting an establishment of religion," then legislatures shall make no laws establishing the penalty of death because capital punishment is religious.

Posted by: William S. Wilson | Nov 9, 2006 8:49:29 AM

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