Grassroots death sentences? The social movement for capital child rape laws.

• Author: Bell, Monica C.

1. 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)

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

   1. 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. (10) Concurrently, Jefferson Parrish schoolteacher Andree Daigre picked up her thirteen-year-old daughter, Sara Cusimano, from a friend's home and stopped by Time Saver to get gas. (11) Cusimano stayed in the car while her mother went inside to pay. (12) Pittman jumped into the car, brandishing a small automatic pistol, and sped away with Cusimano. (13) After an indeterminate amount of time, Pittman drove to an isolated field, where he raped Cusimano and shot her once in the middle of her forehead. (14) She was found the next morning in a pile of weeds alongside a remote road. (15) Cusimano, miraculously, was still alive: the bullet shattered before it could enter her brain. (16)

      The Kenner community's response was swift and vigorous. People rallied around Cusimano and her family, contributing to the "Kenner Victim Trust Fund" to help cover the medical bills. (17) Fellow Jefferson Parish School District teachers donated their unused sick leave to Daigre. (18) The community's outrage was just as palpable as its sympathy: Police Chief Nick Congemi called the event "one of the most horrible episodes ... in Kenner's history," and he described Pittman as "one of the most despicable human beings who will ever walk this earth." (19)

      Pittman pleaded not guilty by reason of insanity to attempted first-degree murder, aggravated rape, second-degree kidnapping, and carjacking. After he was convicted on all counts, some of those closest to the case expressed thinly veiled regret that Pittman's punishment could not be more severe. Cusimano, commenting on "what white trash he is, how bad he is," stated that she "just want[ed] to get a call that he was killed in jail." (20) When Judge Melvin Zeno sentenced Pittman to life plus 160 years imprisonment, he expressed hope that "the only way [Pittman] will leave prison is 'in a body bag.'" (21) The prosecutor, Walter Rothschild, was more direct: "The penalty should be death for what this man did to a 13-year-old girl." (22) If the shooting had killed Cusimano, Pittman almost certainly would have been executed. (23) Both Cusimano and Pittman were, in some sense, lucky.

      Louisiana passed its capital aggravated child rape provision in 1995 (24) during this period of outcries for stiffer penalties (25) and sensationalized stories of child rape. (26) Louisiana is now the only state with an inmate on death row for a non-homicide crime. (27) Similar legislation has arisen in other states. Florida and Mississippi had capital child rape statutes, but their state supreme courts struck them down in the 1980s. (28) Currently, six states--Florida, Georgia, Louisiana, South Carolina, Oklahoma, and Montana--have laws authorizing the death penalty for child rape. (29) Texas, (30) Tennessee, (31) and Alabama (32) are currently considering capital child rape legislation. Several states, including Utah, Mississippi, California, Massachusetts, Pennsylvania, and possibly others, have considered but not passed capital child rape statutes. (33) It is uncertain whether these statutes would survive Eighth Amendment scrutiny.

   2. THE LEGAL HISTORY OF CAPITAL CHILD RAPE LAWS

      Capital child rape laws, though spurred by stories like Sara Cusimano's and resultant community outrage, rest upon a more nuanced legal history. Part II.B elaborates the legal history of capital child rape law through first examining Coker v. Georgia, the 1977 Supreme Court case that barred capital rape statutes. (34) I then examine how state courts and legal scholars have interpreted the Coker ruling.

      1. Coker v. Georgia

         In 1977's Coker v. Georgia, the Supreme Court struck down a Georgia law that made the death penalty available for the rape of an adult woman, finding the punishment "grossly disproportionate and excessive" (35) and therefore in violation of the Eighth Amendment. Erlich Anthony Coker, the petitioner, was serving a prison sentence for rape, murder, kidnapping, and aggravated assault. Coker escaped from prison and entered the home of Allen and Elnita Carter, where he allegedly tied up and robbed Allen and raped and kidnapped Elnita. In the trial's guilt phase, a jury rejected Coker's insanity plea and found him guilty of escape, armed robbery, motor vehicle theft, kidnapping, and rape. In the penalty phase, a jury sentenced Coker to death under section 26-2001 of the Georgia Code Annotated, (36) which stipulated that "[a] person convicted of rape shall be punished by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years." The jury considered as aggravating factors his prior conviction of a capital felony and the fact that the rape was committed in the course of another capital felony, armed robbery. The petitioner was sentenced for committing the rape of an "adult woman."

         The Court's Eighth Amendment analysis centered around the concept of proportionality, which originated in Weems v. United States's "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." (37) The Court's plurality opinion by Justice White and joined by Justices Stewart, Blackmun, and Stevens used "guidance in history and from the objective evidence of the country's present judgment," (38) such as states' traditional approach toward death penalty availability for rape, the behavior of sentencing juries, and the number of states that allowed the death penalty for rape. At the time, Georgia was the only state that made the death penalty available for rape, and the Court pointed out that at no point in history has a majority of states permitted death sentencing for rape. (39) Moreover, sentencing juries rarely imposed the death penalty for rape, doing so in only six of sixty-three cases that reached the state supreme court level. The Georgia Supreme Court overturned one of those, underscoring the rare implementation of death sentences in rape cases. The Court also examined a subjective component in its review...