Birdsong's Law Blog

Attorney Shirley Huang, a former student of Birdsong’s, has recently had her article Child Rapists Live To See Another Day published in the American University Washington College of Law Criminal Law Brief.  The Criminal Law Brief is a law journal where students, practitioners and academics may discuss, debate and explore various elements of  criminal law.   In her article she analyzes the Supreme Court’s decision in the  2008 case of  Kennedy v. Louisiana which held that the death penalty for child rape is unconstitutional. Attorney Huang’s article grew out of very excellent research she did while a student  in Birdsong’s Criminal Justice Administration Seminar.  Attorney  Huang won the book award in that seminar for writing the most outstanding paper of the class.

Read and Learn…

Child Rapists Live To See Another Day

Shirley Huang, Esq.[1]

 I.                   Introduction

The human capacity for good and for compassion make the death penalty tragic; the human capacity for evil and depraved behavior make the death penalty necessary.[2]

Rape has been described as a “fate worse than death”[3] and “one of the most egregiously brutal acts one human being can inflict upon another.”[4]  Child rape is perhaps the worst crime one can commit, debatably second only to murder.[5]  It was not until the mid 1980s that child sexual abuse was brought to the nation’s attention by the media as a serious issue.[6]

This article explores the constitutionality of the death penalty for the crime of child rape, focusing specifically on Louisiana’s capital child rape statute.[7]  In 1976, the Supreme Court decided that the death penalty for the crime of rape is a grossly disproportionate and excessive punishment, and thus violates the Eighth Amendment.[8]  For over thirty years, the constitutionality of making child rape a capital crime was questioned.  The Court ended the ambiguity of the issue by recently determining that the death penalty is inappropriate for the commission of child rape where the victim is left alive.[9] 

Birdsong read with interest last week of the United States Supreme Court decision in the case of Kennedy v. Louisiana.  In that case the Court ruled that it was unconstitutional and violative of the Eighth Amendment to put a defendant to death for the rape of a child.  The Court said that under our society’s evolving standards of decency execution for the rape of a child was cruel and unusual – the Eighth amendment standard.

           Although many may disagree, I believe the decision by the court was a right one.   But Birdsong is against the death penalty for all crimes and advocates for abolition of the death penalty in the U.S.  This will probably not come to pass during Birdsong’s lifetime.

            One reason Birdsong is against the death penalty in the U.S. is that it has often been used in discriminatory ways against African Americans and other minorities who often can not afford excellent legal      representation.  The defendant in Kennedy v. Louisiana was an African American.  Prior to the landmark Supreme Court case of Furman v. Georgia in 1972 the Supreme Court recognized that there was racial discrimination with respect to our use of the death penalty.  The Furman decision led to reforms in 35 states that lessened the unfettered use of the death penalty.

           Despite those reforms Birdsong contends that there is still discrimination with respect to our death penalty decisions.  The defendant’s race often seems to be a factor in seeking the death penalty.  But what of a country where the majority of the population is of African descent — should we still be uneasy about using the death penalty?

           If such a question intrigues you please read the following article I wrote about the matter a few years back.  You will certainly learn something…

  EXERCISE  IN RACE-NEUTRAL DECISION MAKING:  IMPOSITION OF THE DEATH  PENALTY  IN THE BAHAMAS — WE SHOULD STILL BE UNEASY                                

                                              ©  1999 by Leonard E. Birdsong

                                                  I.  Introduction

             This article is a view of  recent  race-neutral death penalty decisions made in the Bahamas, our closest neighbor in the English Speaking Caribbean [hereinafter ESC].²  Though race-neutral, a thorough examination of the decisions made in these cases should still leave us uneasy about the imposition of the death penalty in our modern day world.

            I  have long been against the use of the death penalty in the United States of America. It does not seem to be a deterrent to crime. And unfortunately, for much of the history of our country the death penalty has been used against African-Americans in  an unfair way and in numbers disproportionate to our number in the overall society. Some say that African-American lawyers and law professors like myself should continually speak out and  press for the abolition of the death penalty because, given the history of racism in the United States, it is impossible that the death penalty can be administered in a race-neutral way. In the United States death row is disproportionately inhabited by African-American men.  According to the Capital Punishment Project of The NAACP Legal Defense and Educational Fund, forty two  per cent of  the approximately 3,300 inmates awaiting execution are Black.³

With this post Birdsong reverts to his role as “Professor Birdsong” who asks his first year criminal law students to read the following law review article for class discussion during the second week of class.  This post is about the Pamela Ramjattan case and introduces us to some basic criminal law concepts concerning punishment and accomplice liability.  We will learn more about these topics as the semester progresses.

      IN QUEST OF GENDER-BIAS IN DEATH

PENALTY CASES : ANALYZING THE ENGLISH SPEAKING CARIBBEAN EXPERIENCE

                                                Leonard E. Birdsong ¹

                                    Copyright  ©  2000 by Leonard E. Birdsong

           I.  Introduction

           For many years I assumed that there was gender-bias with respect to the imposition and carrying out of the death penalty in the United States.  The NAACP legal Defense Fund reports that as of January 1, 1999, there were 49 women on death row in the United States. These 49 women constitute 1.4% of the total death row population in our country.²  The death sentencing rate and the death row population remains very small for women in comparison to that of  men.  Our total death row population is comprised of 3,400 individuals.  It is estimated that there are 50,000 women in prison in the United States.³