Some background on the current moment.The Florida legislature, at the urging of Governor Desantis passed a law that authorized, as a matter of state law, the state to execute a person for the rape of a child. Guess who opposed such laws: people who work with victims of child rape. I was surprised at first to learn this, but their concerns are incredibly reasonable. Proving such crimes are incredibly difficult. The victims are overwhelming sympathetic, but inherently unreliable. It's not that kids lie. It's that they are simply unreliable and uncertain.
On top of proof problems, there's the issue of who actually commits such crimes. The fear of a stranger attacking a child is huge. As a parent myself, I worry about the same daily. But the reality is that the person most likely to assault a child is someone they know. That means that putting execution on the table dramatically raises the stake of any accusation. Is it worth accusing Uncle X of Y if it means he will die? Kids, their caregivers, and their advocates have all made the calculation that having execution on the table is counterproductive to getting kids out of harms way.
So have legislatures. Back in 2007, almost nowhere allowed for execution for such a crime. But Louisiana did. And, this is where Barack Obama comes in. During Obama's historic campaign, the United States Supreme Court in Kennedy v. Louisiana noted what an outlier Louisiana was in its execution practices and held that executing a person for the rape of child, as Louisiana allowed, was unconstitutional.
Then-candidate Obama saw an opportunity. Let me pause for a moment. I am grateful that Barack Obama was our president. In some ways, I don't think we as a nation were ready for or deserved him. He is brilliant. He speaks in paragraphs (essays really) and seems like a kind and empathetic person who is incredibly hard working, thoughtful, and shares many of my own values. I'd love to play basketball with him, e.g.
But, that same guy, while on the campaign trail, received word that the Supreme Court had held that the Eighth Amendment prohibited executing someone for the rape of a child. Did Professor Obama take the opportunity to explain why this was a sensible decision in light of the law as it existed and in light of the dynamics outlined above? No. He denounced the decision in no uncertain terms, opining that executing a person convicted of raping a child does not violate the constitution.
Does this person, who also admitted uncertainty on the deterrent value of the death penalty really object to the Court's conclusion that the outlier practice of execution in such circumstances is per se cruel and unusual? I do not know and highly doubt this blog post will prompt a clarification.
But his position was reminiscent of the democrat preceding him as president: William Jefferson Clinton. When then-Governor Clinton was campaigning for president, he hailed from the Arkansas Governor's mansion, a domicile now occupied by Sarah Huckabee Sanders. As he campaigned, he no doubt had on his mind the experience of Michael Dukakis, whose cerebral response to questions about capital punishment arguably doomed his candidacy for president.
Clinton would not make the same mistake. While on the campaign trail, the case of Ricky Ray Rector reached Clinton's desk. Rector was profoundly impaired. After concededly committing a terrible crime, Rector tried to kill himself, firing a gun into his own head. He failed to take his own life, but was profoundly impaired as a result.
On the night of his execution, Mr. Rector was provided the last meal of his choosing. As part of the meal, he requested pecan pie. As he was finishing the main course, he told the guards that he'd like to save the pie "for later." They did not explain to him, and apparently he did not grasp, that there would be no "later." The pie was thrown out after he was executed.
Clinton could have let the entire episode unfold without his presence. Or he could have stopped the execution altogether. But he chose a third way: returning from the campaign trail to Arkansas to oversee the execution. By all accounts, that choice cemented his reputation as a tough guy, someone willing to kill.
With Clinton and Obama, it's hard to see either decision as principled in any way. Louisiana was an outlier, and Obama doubted the practical import of the death penalty. Clinton, the Rhodes scholar, was no fool, and surely knew that Rector need not be executed to do justice. But both men, now icons on the left, chose politics over principle.
Which brings me back to Florida. Desantis, a Yale grad like Clinton, knows that Florida's law is unconstitutional. It's not that he does not care. It's that he knows that railing against child rape is a good headline, even if the on-the-ground realities are far more complex and even if the law he endorsed is plainly unconstitutional. And, to be clear, I don't think it's even that Desantis proposed the law as some test to overturn Kennedy v. Louisiana. I think that like Clinton and Obama, he's using the death penalty to burnish his own reputation, regardless of who suffers as a result.
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