Reality check on abolishing the death penalty for child rapists who don't kill their victims

I've already blogged the Supreme Court's child-rape decision from earlier this year, Kennedy v. Louisiana, and pointed out how legislatures could evade the Supreme Court's interpretation of the "cruel and unusual punishment" clause of the Eighth Amendment.

That was a fairly academic, procedural question about an emotionally charged issue, particularly since I admitted that my proposed workaround couldn't possibly succeed.

So let's look at the real side of things.

Richard Davis was released from death row in December. He's the first person to avert execution as a result of the Supreme Court decision (aside from Patrick Kennedy himself, the defendant in Kennedy v. Louisiana).

Here are the details, which, as you might guess, aren't too pleasant to read about (via Sentencing Law & Policy):

Davis, a 36-year-old who was on death row for raping a 5-year-old girl, now faces life in prison. ...

A Caddo[, Louisiana] jury last year sentenced Davis to die after convicting him of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005.

The U.S. Supreme Court ruled in June a child rapist cannot be executed, forcing Crichton to resentence Davis. [No, that's not true. The Supreme Court ruled that a child rapist who doesn't cause the victim to die can't be executed. -- Jaltcoh.]

By default, Crichton today sentenced Davis to life in prison at hard labor without the possibility of parole, probation or suspension of sentence.

Child rapists "are, by far, the least popular in prison," Caddo Assistant District Attorney Brady O'Callaghan said Thursday.

"I don't know how well Mr. Davis is going to handle general population."

In 2007, the jury also convicted Davis of one count of indecent behavior with a juvenile for promoting a 16-year-old girl for prostitution in 1996. ...

"I want it to be clear that this man should never be released under any circumstances," the judge said. ...

On several occasions, [Davis] and girlfriend Melissa Ticer sexually assaulted the child, according to testimony during his trial.

They performed sex acts on her, fondled her genital areas and forced her to perform sex acts on the couple.

Testimony showed the child also was drugged and unconscious during some of the sexual encounters.

Ticer admits to assaulting the child but says Davis made her do it, authorities have said.

During Davis' trial, Caddo District Attorney Lea Hall pointed at him and said, "Execute this man. Justice has a sword, and this sword needs to swing today."

To strengthen their appeal for the death penalty, prosecutors touted criminal behavior that includes the molestation of his son as well as the molestation of at least four teenage girls.

Matthew Yglesias made a crucial and related point about the death penalty in general:

[A] lot of discussion of the death penalty occurs weirdly out of context. Executions are inhumane. But inhumane as opposed to what? Executing people is putting an awful lot of power in the government's hands, but an awful lot of power as opposed to what? Capital defendants often suffer from egregiously bad legal representation and the prosecutorial apparatus is all-too-often unscrupulous. But their legal representation is poor compared to whose? There's a lot to worry about ... how the death penalty is administered, but it's entirely of a piece with general worries we should be having with the criminal justice system.

The point being: we have this prolonged, intense debate over whether it's acceptable (either constitutionally or just as a policy matter) to execute child rapists who don't kill their victims. But if you rule out the death penalty for a specific kind of crime, there's inevitably going to be some other result. Why do we debate the death penalty in a vacuum, rarely asking how desirable the alternative is?

I'm pretty sure there are a lot of Americans who vehemently oppose executing a Richard Davis, but who chuckle and quickly move on when they see the prosecutor's vague but unmistakable insinuation that the prison sentence will mean the rapist will become a rape victim. I share their view on the death penalty, as I said in the earlier post. But taking a blase or mocking attitude toward prison rape undercuts the seriousness of one's opposition to the death penalty.