The Associated Press
OKLAHOMA CITY — Repeat sex offenders convicted of raping a child 6 years old or younger would be eligible for the death penalty under a bill approved Monday by a House committee, despite a 2008 U.S. Supreme Court ruling that a similar law was unconstitutional.
The bill by Rep. Rex Duncan, R-Sand Springs, was among a host of measures overwhelmingly approved by the House Judiciary Committee that either create new felony crimes or enhance existing criminal penalties.
Duncan, a former prosecutor who chairs the committee, said he believes the Supreme Court erred in its decision and that his proposed law could be upheld by the new members of the court.
“I think they did get it wrong,” Duncan said of the Supreme Court’s 5-4 decision, “and I would not be surprised if other states revisit their statutes on this issue.”
The Supreme Court decision came in a Louisiana case involving 43-year-old Patrick Kennedy, who was sentenced to death for the rape of an 8-year-old girl. The nation’s highest court ruled the Louisiana law allowing the death penalty to be imposed in such cases violated the Constitution’s ban on cruel and unusual punishment.
In the court’s majority opinion, Justice Anthony Kennedy concluded that in cases of crimes against individuals — as opposed to treason, for example — “the death penalty should not be expanded to instances where the victim’s life was not taken.”
At the time of the ruling, Oklahoma was among five states to explicitly permit such executions.
Duncan said the intent of his bill is to target child rapists who already have a previous conviction for a violent sex offense.
“If that’s what the bill says, the bill is facially unconstitutional,” said Randall Coyne, a constitutional law professor at the University of Oklahoma. “The court can change its mind, and it often does ... but I doubt the court would overturn so recent a decision.”
State Rep. Ryan Kiesel, the lone opposing vote against the measure, said he agrees child rapists should be handed harsh penalties but questioned the wisdom of a measure that clearly violate a Supreme Court ruling.
“I think it would be a terrible waste of time and money for a district attorney in the state of Oklahoma to seek that punishment and then see that as an appeal issue and take a long time to wind through the courts, putting an additional emotional burden on the victims and their families,” said Kiesel, D-Seminole.
Another bill passed by the panel would require couples to receive at least one hour of marital counseling before they could obtain a divorce in Oklahoma.
