A bill introduced in the Idaho Legislature this session proposed adding death penalty eligibility for defendants suspected of lewd and lascivious conduct with children under 12 years old. It was held in a Senate committee Friday.
An effort to expand capital punishment in Idaho died when a
bill that sought to make lewd acts with children under age 12 qualify for the death penalty failed to earn enough support for a Senate floor vote. The bill’s sponsor pledged to try again next year. House Bill 515 aimed to make Idaho at least the second state to adopt a law that made those convicted of certain sex crimes against preteen kids eligible for the death penalty.
Florida passed a similar law last year. The Idaho bill’s co-sponsors, Reps. Bruce Skaug, R-Nampa, and Josh Tanner, R-Eagle, acknowledged that such a law is unconstitutional. But they hoped to pass it anyway with a goal of appealing it to the U.S. Supreme Court to consider changing decades of precedent that prohibit capital punishment for cases when a victim was not killed.
“In my opinion, they got this case wrong,” Tanner said Friday while presenting the bill to a Senate committee. “But there will be legal battles with this going forward. … When we see this, I guarantee you every single person would look back and go, ‘That crime deserves that punishment.’ ”
The bill overwhelmingly passed in the House last month. But the Republican-heavy Senate committee voted it down after an hour-long hearing that included testimony from supporters and opponents. “We will review the bill for possible amendments and likely bring it back next year,” Skaug, a personal injury attorney and former Ada County deputy prosecutor, told the Idaho Statesman in a text message.
Critics fear costs to Idaho
Spurred on by public defenders from across the state who testified against the bill, lawmakers took issue with the costs expected with its passage. The bill’s sponsors had identified “no known fiscal impact,” though Anthony Geddes, Ada County chief public defender, stated in reality it could cost the state millions of dollars a year — excluding the lengthy appeals fight that state would need to undertake in attempts to make the proposed law constitutional. “I want this body to understand the tremendous financial impact that this bill will have,” Geddes told the committee. “It’s a price that we are not prepared to pay.”
Across Idaho, only 13 attorneys are qualified to lead the defense in a death penalty case, which currently only occurs with first-degree murder convictions and aggravating factors found by the jury. If the bill passed, hundreds of Idaho defendants each year could face the death penalty and require qualified defense attorneys, the group of public defenders told lawmakers. “This is a massive lift that would really blow up our agency,” said Erik Lehtinen, interim director of the Idaho State Appellate Public Defender’s Office. “This is very specialized work. There aren’t that many people that do it. … So we just don’t have the attorneys for it.”
The Idaho Prosecuting Attorneys Association, the group that represents the state’s 44 prosecuting attorneys offices and the Idaho attorney general’s office, did not respond to emailed requests from the Statesman.
The attorney general’s office declined to comment on the bill. It remains unclear whether any lawmakers requested a legal opinion of the bill, which Attorney General Raúl Labrador is required to provide if asked under Idaho law. “Our office has a policy of not issuing written opinions to legislators on pending litigation or proposed legislation that is likely to result in constitutional litigation,” Dan Estes, Labrador’s spokesperson, told the Idaho Capital Sun in a statement last week. “A formal written opinion identifying constitutional concerns in pending legislation can and will undermine our state’s ability to defend it later should it become law and subsequently be challenged in court.” Skaug previously told the Statesman that Labrador “had no input” on the bill or its drafting.
The American Civil Liberties Union of Idaho, which opposes the death penalty, came out against the bill.
Death sentence would deter crime, supporters say
Tanner and supporters noted Friday that a potential death sentence in the proposed law would deter people from committing sex crimes against children under 12 years old.
“I think it’s a powerful message to send nationwide,” said former veteran Los Angeles police officer Robert Gillis, who now heads a crime legislation advocacy group called Idaho Tough On Crime. “We’ll never know what the benefit was of having the potential of a death penalty, but it may have been the message that saved one — and one is everything.”
Studies have repeatedly shown that murder rates are similar in U.S. states with capital punishment as those without it, according to the Death Penalty Information Center. The Washington, D.C.-based nonprofit does not take a position for or against the death penalty. Deborah Denno is a criminal law professor at Fordham University in New York City and one of the nation’s leading experts on the death penalty. She also questioned the claim that capital punishment acts as a deterrent to prevent crimes from happening.
“Certainly we know that rules and laws are deterrents, and I would imagine if we didn’t have any penalties for people killing each other, the homicide rate would come up,” she said in a phone interview with the Statesman. “But I just don’t think people think that way. You’re attributing an awful lot of rationality — particularly with a crime against a child where perhaps they have very little control over themselves — to impulse acts where they’re not thinking about the punishment. They’re just thinking of gratifying themselves.”
Supporters said the proposed law would not dramatically expand Idaho’s death row, which today counts eight prisoners. Prosecutors would use their discretion and only pursue death sentences for the worst cases of sex crimes against children under 12, they said. “Taking the life of another merits the death penalty in Idaho, and I don’t know if this maybe is even worse,” said Sen. Todd Lakey, R-Nampa, who supported the bill. “I think the extremely heinous nature of this crime merits that penalty.”
Senate Assistant Majority Leader Abby Lee, R-Fruitland, banded with a committee majority to hold the bill from advancing to the floor for a vote. “I care deeply that justice is done and that it is not overturned,” she said. “If a death sentence is pursued, I want to make sure that the victim isn’t promised something that we can’t deliver.”
