Court mulls death for child rapists: Ruling could affect Bonifay trial

Christopher Powers asked for the death penalty for his lengthy sexual abuse of an 11-year-old boy.

The U.S. Supreme Court could make that a possibility. The high court justices are contemplating a return to a system of death sentences for people convicted of raping children. Two weeks ago, the court heard oral arguments in the case of Patrick Kennedy, who is opposing his death sentence from Louisiana for raping his 8-year-old stepdaughter.

If the court denies Kennedy’s appeal, it could open the way for other states to adopt death sentences for crimes other than homicide.

“This country has not executed anyone for a rape of any kind in over 43 years,” attorney Jeffrey Fisher told the justices April 16.

In 1977, the high court found that execution for non-homicide crimes was excessive punishment and violated the Eighth Amendment’s restriction on cruel and unusual punishment. In that case, the justices found specifically that the rape of a Georgia woman did not qualify her attacker for the death sentence because the penalty was excessive for the crime committed.

In 1985, Louisiana passed a law allowing execution for defendants convicted of raping children younger than 12, saying the 1977 case prohibited death in cases involving the rape of an adult. Florida classifies sexual battery of a person younger than 12 as a capital crime, meaning it could result in a death sentence. Powers, 46, was convicted in Bonifay on Wednesday of that charge and faces a mandatory life sentence, but only because Florida has been working under the U.S. Supreme Court’s restriction on non-homicide executions.

“It’s not our decision,” State Attorney spokesman Joe Grammer said of the sentencing. “I’ve been a prosecutor since 1984, and it’s been that way all of that time.”

Powers also was convicted of lewd or lascivious battery, a second-degree felony punishable by up to 15 years in prison, for the same acts on the same victim, the only difference being the boy had a birthday during their encounters and turned 12.

Powers also is accused of having sex with the boy in Bay County and faces a capital sexual battery charge in Panama City, with the possibility the U.S. Supreme Court could issue its opinion before he resolves the case and then could be looking at a possible death sentence.

“(Here’s) someone who is under extreme duress, in a suicide cell,” Powers’ attorney Mike Grabner said of his client during last week’s trial. “Someone who has asked for the death penalty.”

Deterrent

“It would satisfy me if they (child rapists) were all put to death,” Panama City Circuit Judge Michael Overstreet said Wednesday, “but if the argument is it’s a deterrent, it’s not. Nothing is going to change their behavior, so if they’re incapable of controlling their behavior, then the more humane and practical thing to do is put them away where they can’t hurt anyone else.”

Fisher told the justices in April the organizations that work with child rape victims are against capital punishment in these cases. He said they fear victims will be reluctant to come forward, especially if the rapist is a family member, if it could mean the person’s death.

“Our jurisprudence just requires the narrowing of the death penalty to particularly heinous crimes,” said Justice Antonin Scalia. “And one could say that rape (of a child) is in and of itself particularly heinous.”

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer discussed ways the death penalty, if expanded to include child rape, could be implemented evenly. They asked Fisher how states would have to tailor their laws to classify specific crimes that would be eligible for execution.

“(Louisiana’s law) gives juries unfettered discretion to choose who, among the vast class of offenders convicted of child rape, may be subject to the death penalty,” Fisher said, adding that other states allowing for execution of child rapists at least require the defendant to have a prior record of child crimes.

“The state of Texas and other states that have these severe, recidivist requirements might say that is good enough, but they’d still be left with the argument that a person who commits child rape and it does not result in death is a worse offender than somebody who deliberately kills somebody."

Juliet Clark, arguing on behalf of Louisiana, told justices defendants sometimes face the death sentence when they kill someone accidentally during the commission of another felony.

“I think that’s very different from a case like this, where the offender absolutely committed the offense,” Clark said, “where the offender absolutely does not act by accident or without premeditation or deliberation and directly causes that terrible harm himself.”

In his 24 years as state attorney, Jim Appleman saw defendants who he said he believes deserved death for their crimes against children. He said he prosecuted cases when child rape was punishable by death and after the Florida Supreme Court found it unconstitutional.

Appleman said capital sexual battery cases are examined the same way murder cases are, as far as aggravating and mitigating circumstances, to determine their appropriate penalty.

“You have to look at whether the defendant has been convicted before,” he said, “whether there are multiple victims, the extent of the injuries to the child.”

But, Appleman said, he doesn’t view the death penalty as a deterrent.

"An individual with a gun or a knife isn’t going to stop and think about the possible penalties as they’re standing over someone, or standing over a child,” he said.

ACLU to host death penalty presentation

OKALOOSA ISLAND  – Florida leads the nation in Death Row exonerations — 26 since 1973.

But with the rapidly growing prison population approaching 93,000, the third highest in the country, members of the Innocence Project of Florida believe their mission is just beginning.

The American Civil Liberties Union of Florida will present Seth Miller, Executive Director of the Innocence Project of Florida to discuss the organization’s current activities in Florida on May 9 at noon at the Emerald Coast Conference Center on Okaloosa Island.

Miller oversees the investigation and litigation of DNA testing requests in the Florida courts and advocates for release of inmates who have proven their innocence through the use of DNA testing.

Additionally, the Innocence Project provides comprehensive transition assistance to exonerees and lobbies the Florida legislature for exoneree compensation and necessary criminal justice reforms.

Before coming to the Innocence Project, Miller was a project attorney for the Death Penalty Moratorium Implementation Project at the American Bar Association and a staff attorney at the Florida First District Court of Appeal.

For more information, call 850-609-0940.

Northwest Florida Daily News