There are times when I am tempted to say that something is the dumbest thing I have ever read or heard. That’s usually hyperbole. Usually. But in my hometown paper, a law professor writing about the death-penalty case Kennedy v. Louisiana, in which the Supreme Court forbade putting to death those who rape children, made what very well may be the dumbest argument I have ever read. We shouldn’t execute child-rapists, Prof. Arnold Loewy argues, because the death penalty might inspire more rapes of children. Seriously. He writes:
… this country has had instances of suicidal or risk-loving men who have committed murder just to get or risk capital punishment (e.g Ted Bundy). Surely we don’t want to tempt such men into raping children to satisfy their perverse desires.
Arnold Loewy, a Harvard law graduate, is a tenured professor of law at an accredited public university, and he’s arguing that the death penalty constitutes a temptation for those who rape children.
Except when it doesn’t. Earlier in the same column he wrote:
Regarding deterring child molesters, do we really believe somebody who thinks about penalties before he rapes a child would be willing to perform such a disgusting act if he knew he would get life imprisonment, but would not if he knew there was a chance he might be executed? Given the conditions in prison for child molesters, I have to seriously doubt it.
So note: Rapists aren’t thinking about the possible penalty, except for those times when they are thinking about the possible penalty, which makes them want even more acutely to rape.
This is risible stuff that would earn a eighth-grader a B-minus. But a law professor?
And it goes on and on:
Furthermore, even with murder as the only capital crime, the United States has sentenced a significant number of innocent people to be executed. Regrettably, some of these have been Texans. Whether the risk of executing innocent persons is worth the benefit, if any, of capital punishment is surely debatable.
If he’s read Kennedy, he knows that under the ruling murder is not the only capital crime: Kennedy makes room for treason and espionage — the most interesting part of the ruling is the fact that the justices simply refuse to consider those crimes, thereby ignoring those bits of the Constitution that they cannot finesse. Even a law professor blinded by politics should be able to get the content of the ruling correct. (Not to mention that writing “the United States has sentenced a significant number of innocent people to be executed” is both terrible prose and intellectually sloppy: “The United States,” meaning the federal government, doesn’t execute people very often at all: When Timothy McVeigh was put to death, it was the first federal execution in about 40 years, according to the Bureau of Prisons. If he means the individual states, he might go to the trouble of letting us know which of them he’s talking about.)