Grassroots Death Sentences? the Social Movement for Capital Child Rape Laws

By Bell, Monica C. | Journal of Criminal Law and Criminology, Fall 2007 | Go to article overview

Grassroots Death Sentences? the Social Movement for Capital Child Rape Laws


Bell, Monica C., Journal of Criminal Law and Criminology


I. INTRODUCTION

It is widely acknowledged that politics shapes the administration and legal construction of death penalty law. Commentators on the politics of the death penalty tend to focus primarily on electoral politics, especially in relation to judicial independence, clemency, and prosecutorial discretion. (1) Electoral politics is often the engine behind when and how "tough" crime bills are passed, why one offender is sentenced to death while another is sentenced to life imprisonment, and why one person on death row is granted clemency and another is not. There are also non-electoral socio-political movements that shape and are shaped by death penalty law. To borrow terminology from Dean Larry Kramer's 2004 book on popular constitutionalism, constitutional doctrine on the death penalty is contoured, and perhaps controlled, by "the people themselves." (2) The engagement of non-juridical actors in interpreting and influencing constitutional law through political action has already been analyzed in affirmative action debates, the labor movement, and the women's equality movement, (3) among others, but the expansion of death penalty law through popular reinterpretation of the Eighth Amendment has too often been dismissed as a campaign tactic and, thus, underanalyzed. (4)

This Article examines one of the most politicized changes in death penalty law today--states' authorization of capital punishment for child rape--through the lens of social movements. I argue that capital child rape statutes are formed at the nexus of three movements: the popular movement to shame, fear, and isolate sex offenders; the feminist movement for harsher punishment of sexual and intrafamilial violence; and the legal and political movement to punish attacks against vulnerable victims with death. In Part II, I place capital child rape laws in legal and historical context. Part III explains the recent burst of capital child rape legislation by focusing on the movement toward intense community fear of sex offenders. Part IV situates capital child rape laws within the feminist movement. Part V focuses on the movement to expand death penalty eligibility. Part VI compares the context of capital child rape statutes with the context surrounding Coker, particularly with regard to race and mob frenzy. In conclusion, Part VII suggests that the descriptive account of this Article leads to a normative conclusion: The context of the new capital child rape statutes raises serious questions about their constitutionality. Through a social movement account, we can better discern how these statutes permit and encourage "arbitrariness, discrimination, caprice, and mistake." (5)

II. THE FIRST POST-COKER CAPITAL CHILD RAPE LAW IN CONTEXT

A. THE BILLY PITTMAN AND SARA CUSIMANO STORY

The story of Billy Pittman and Sara Cusimano is instructive of the socio-political setting of capital child rape laws. On July 12, 1994, Billy Pittman sought psychiatric help. He had recently parted ways his girlfriend, he had been fired from his job as a short-order cook, and his temper was getting out of control. This was not the first time he had encountered difficulty managing his emotions. According to one psychologist, childhood physical and emotional abuse, along with substance abuse starting at age seven or eight, had contributed to a "life ... filled with problems caused by rage, anger, violence and inability to get along with other people"; (6) these problems included two felony convictions and a number of other arrests. (7) Pittman sought to check himself into East Jefferson Mental Health Center in Metairie, Louisiana, a suburb of New Orleans, but the hospital turned him away. No beds were available, and the center's employees concluded that Pittman was not an emergency case. (8)

On August 18, Pittman, who may have been under the influence of crack cocaine, (9) went to Time Saver convenience store in Kenner intending to steal a car, as he had allegedly done about a week earlier from another convenience store. …

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