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Henry approves death penalty law for repeat child molesters

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OKLAHOMA CITY (AP) _ Gov. Brad Henry signed legislation Friday making Oklahoma the fifth state in the nation to allow the death penalty for certain sex crimes.

Without comment, Henry signed the measure into law despite concerns by legal scholars that it is unconstitutional. South Carolina's governor signed a similar statute on Thursday, and comparable measures are in place in Florida, Louisiana and Montana.

The bill, overwhelmingly approved by the Oklahoma House and Senate, makes the death penalty an option for anyone convicted of a second or subsequent conviction for rape, sodomy or lewd molestation involving a child under 14.

``I would say this is constitutionally dead on arrival,'' said David Brook, a law professor at Washington and Lee University in Lexington, Va., who runs the Virginia Capital Case Clearing House, which assists lawyers in death penalty cases.

William Buckman, a criminal defense lawyer in Moorestown, N.J., said the Supreme Court has repeatedly ruled that the death penalty is reserved for heinous killings involving numerous aggravating factors.

In recent years, the court has barred states _ including Oklahoma _ from imposing the death penalty on juvenile and mentally retarded killers.

``The U.S. Supreme Court, as conservative as it is, has been moving away from a broad application of the death penalty,'' said Buckman, a member of the board of the National Association of Criminal Defense Lawyers.

Barbara Bergman, president of the Washington-based NACDL and part of the defense team that avoided the death penalty for Oklahoma City bombing conspirator Terry Nichols following his 2004 conviction on 161 murder counts, said Supreme Court decisions have made it clear that the death penalty is reserved for someone who has taken another life.

``I'm not saying that raping a child is not a horrible crime, but no one has died,'' Bergman said.

The measure's author, state Sen. J. Paul Gumm, said his constituents were tired of hearing reports about convicted child molesters in other states getting out of prison and committing similar crimes.

``I believe this will make Oklahoma a safer state for our children,'' said Gumm, D-Durant. ``The more severe the crime, the more severe the punishment. And I don't think there's a more severe crime than child molestation.''

Gumm said he is not concerned about critics who say the new law will not withstand a constitutional challenge.

``What else is a defense attorney going to say?'' Gumm said. ``I feel confident that the constitutionality will be upheld.''

``The public, the voters, everybody's fed up with child predators,'' said Oklahoma state Rep. Fred Morgan, who described child molesters as ``monsters'' and ``less than human'' during debate on the Oklahoma sex offender bill.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the legislation is a reaction to public outcry over the frequency and seriousness of sex offenses and the attention they receive in the media.

``There is a political push to appear tough and on the victim's side. It's hard to say no,'' Dieter said.

No one convicted of a sex offense has been executed since the U.S. Supreme Court reinstated capital punishment 30 years ago. One inmate is on death row in Louisiana following his 2003 conviction for raping an 8-year-old girl.

In 1977, the U.S. Supreme Court reversed the death penalty of a Georgia man convicted of raping an adult woman, describing it as ``an excessive penalty for the rapist who, as such, does not take human life.''

But Morgan, an attorney and Republican candidate for Congress in Oklahoma City, said the high court has not addressed the issue when children are the victims.

``We're trying to do something to protect children,'' Morgan said.

Jeffrey Rosenzweig, a criminal defense lawyer in Little Rock, Ark., said the bill raises troubling questions about the imperfections of the criminal justice system and the ability of malevolent adults to pressure and coerce children into making false claims.

``It is the area of law that is subject to more abuse and more false statements than any other area of law because of the inherent fallibility of the memory of children,'' Rosenzweig said.

Brook, of Washington and Lee University, said the measure might actually put a child rape victim's life at risk.

``The last message you want to give an offender who has the life of a child in his hands is you might as well kill the child because he's already got the death penalty,'' Brook said. ``This is a very stupid message.''
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