The Faculty Lounge

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

"I Am Here to Stop the Execution of Troy Davis."

So said my friend Stephen Dear just before getting arrested a couple of weeks ago outside the prison where Troy Davis was about to be executed.

This Huffington Post account of the arrest -- and Stephen's optimistic view about the movement to abolish the death penalty -- is quite moving.  Stephen is the Executive Director of People of Faith Against the Death Penalty.

Meanwhile, In Tehran: Iran In Midst Of Mass Execution Spree

Even as our attention is turned to Cairo,  awful news continues to roll out of Iran.  Earlier this week, Iran hanged a Dutch-Iranian woman -Zahra Bahrami (s0metimes spelled Sahra Baahrami) - on allegations of drug smuggling.  She had gone to Iran to be with her daughter who was undergoing chemotherapy.  She also attended the street demonstrations in December of 2009.  Naturally, the government produced a confession from the woman - her supporters argue that it was coerced - though  the government's true motivation is probably related more to the national security charges the government leveled against her.   

But Bahrami is one of many.  It appears that Iran has executed 66 people in the last month, and over 40 more people in December.  An NPR story about the issue is here.  Another account is here.

Even assuming that the executions are mostly for drug offenses, and involve dissidents only at the margins, this assertion of government power still has the potential to chill dissent.  And those of us concerned about the fairness of the death penalty ought not ignore injustices abroad.  Whatever our views of the efficacy of America's current strategy on a nuclear Iran, the Iran mass execution crisis deserves separate and serious attention.

Judge Sharon Keller: The Story Continues (but perhaps now concludes)

Continuing the story that we have been posting on for some time (most recently this post from July 17, 2010):   a judicial panel has ruled that the State Commission on Judicial Conduct did not have the authority to issue a "public warning" against Texas Court of Criminal Appeals Judge Sharon Keller.

Story here and here.

Teresa Lewis Is Dead. Outcome Is Right, More Or Less.

Score a victory for the death penalty.  Tonight, Virginia executed 41 year old Teresa Lewis, a woman with an IQ of 72.  Her confederates - the two men who pulled the trigger, killing Lewis' husband and stepson - got life in prison.  There were all sorts of problems with this case - most notably that the judge's principled basis for attributing superior blame to Lewis (that she was a mastermind) was quite unlikely given her IQ.  Of course, when he imposed the sentence (after  Lewis plead guilty and accepted a bench trial at the penalty phase), the judge didn't know details about Lewis's limitations - none of the mental health experts testified.  Indeed, the defense put on minimal evidence at sentencing and the following quote  suggests that the lawyer's theory was "let's see if we can score a break":

Your Honor, Mrs. Lewis's family is here. Mr., well her father and her brother and her sister, and they would all testify that they love her and they care about her, and they don't want her to die, but Your Honor, we don't see the need to call them. The Court's used to that kind of testimony and we would rest at this point.

Lawyers make strategic calls all the time.  Can't blame them for that.  Judges often act with less than perfect information.  Can't blame them for that.  Lewis didn't actually have mental retardation - she was a good two to four IQ points north of having MR.  No problem there.  The actual triggermen got life - but perfect equity is impossible.  Both trial and initial post-conviction counsel appear to have been mediocre.   But lots of attorneys are mediocre.

You can't let the drive for perfection defeat the good.   If you're going to pick, pick, pick away at these cases, you'll never execute anyone. Imperfections are human and occur in even the most high stakes criminal practice.  The whole process is simply an approximation of fairness and accuracy.  Death penalty supporters worthy of respect are willing to open their eyes and own this reality.

These folks happen to believe that when it comes to death sentences, you make a tough decision and live with it.  Or die with it, as the case may be.  

Judge Sharon Keller (Update)

Last February, Dan blogged about Texas Court of Criminal Appeals presiding judge Sharon Keller and her decision concerning a last-minute appeal from a prisoner on death row.

In January, I mentioned that a special master presiding over Judge Keller's ethics trial had issued a 16-page report on the matter.

Yesterday the  State Commission on Judicial Conduct decided not to remove Judge Keller from office.  Instead the Commission issued a "public warning" to her. 

You can read more on this story here and here.  The "Commission's Findings, Conclusions and Order of Public Warning" is available here.

Killing the Death Penalty

Loungers with an interest in the death penalty may wish to read an editorial by my former colleague (now at crosstown UH) Adam Gershowitz (pictured).  A teaser:  "The real problem with the death penalty is that it is terrible public policy that the voters of Texas should reject."  The full editorial, which appeared in the Sunday edition of The Houston Chronicle, is available here.

The Autobiography of an Execution

Houston law professor David Dow (pictured), the founder of the Texas Innocence Network, has authored The Autobiography of an Execution, being published this month.

From the website description:

As a lawyer, David R. Dow has represented over 100 death row cases. Many of his clients have died. Most were guilty. Some might have been innocent. The Autobiography of an Execution is his deeply personal story about justice, death penalty, and a lawyer’s life.

From a review that appeared in yesterday's local newspaper:

Dow is not the first anti-death penalty advocate to criticize the criminal justice system in print, and he probably will not be the last. But his book is especially worthy, whatever a reader's opinion about the morality of the death penalty. His candor seems so absolute that readers on both sides of the debate can gain real insight into the thought process of an experienced advocate.

Professor Dow discusses his latest book in this YouTube video.  And GQ.com offers a look at the first twenty pages of the book here.

Final Statements of Death Row Inmates in Texas

On page 60 of the 11/30/09 issue of Newsweek, the magazine lists the frequency of some of the words found in the final statements of prisoners executed in Texas since 1976 (over 440 men and women).

The word (and variations thereof) used most often?

 "Love" (630 times).

Others on the list include "sorry" (211), "peace" (95), "innocent" (45), and "not guilty" (4).

Difficulties with Death Penalty

I don't know if people outside of Ohio have heard about the situation this week in the case of Romell Broom who was to be executed earlier this week for a murder committed some 25 years ago.  The governor was forced to order a temporary halt to the execution when the execution team was physically unable to insert shunts into the inmate's veins through which the lethal injections would be applied.  The execution team apparently tried to insert the shunts for 2 hours and then the governor was called.  A reprieve has been granted until sometime next week, although it was not clear from the news reports exactly how this matter will proceed.  A report from the Cleveland Plain Dealer is here.  Has this ever happened before in other death penalty states?  Is there a protocol for it?  It's obviously troubling on a number of levels, not the least of which is how one might feel about the death penalty in the first place.

Taboo Trades and Forbidden Markets

On Monday, I blogged about the announcement by the UK's Human Fertilisation and Embryology Authority that it will reconsider its restrictive caps on payments to egg and sperm donors, due to donor shortages and the resulting reproductive tourism.  The proposed change is prompting heated debate across the UK about the propriety of markets not only in eggs and sperm, but in organs and blood, as well.  For example, callers weighed in on the topic for an hour yesterday on the BBC’s World Have Your Say.  Click here to download the podcast: Download World have your say-1.  (HT: Jennifer Jenkins)

I previously blogged about the issue of “immoral” markets here, although I prefer the term “taboo” or “forbidden” markets.  That’s what I call the course I teach on this topic each spring (“Taboo Trades and Forbidden Markets”) and the (waiting-to-be-published) volume of Duke’s Law & Contemporary Problems organized around that theme (Show Me the Money: Making Markets in Forbidden Exchange). 

But what does the term “taboo trade” or “forbidden exchange” mean?  We might distinguish (at least) three separate categories of items and activities in which the law forbids or restricts exchange: (1) illegal ones, (2) inalienable ones, and (3) those that are both legal and alienable, but in which exchange for profit is banned or limited. Sometimes exchange is forbidden as a means to restrict access to an item or activity considered dangerous or harmful to society (illegal drugs, some types of weapons).  In these cases, the ban on exchange is largely incidental to the overriding goal of public protection from harm. Illegal items and activities are simply prohibited altogether—their possession, acquisition, and exchange forbidden whether acquired by gift, purchase, or any other method. 

Other items, activities, or entitlements are legal but inalienable. Although possessing these items or participating in these activities is legal—perhaps, admired—the right to possess the item or engage in the activity cannot be transferred to another for any purpose, commercial or otherwise. Exchange (for any motive) in these items and activities is, therefore, forbidden—not because we consider the items and activities harmful to society, but because they are so closely tied to the individual’s rights and responsibilities as a member of the community that the state does not allow their separation (e.g. the right to vote for holders of public office or the right to freedom of speech).

Finally, commercial exchange is sometimes restricted in items and activities that are neither illegal nor inalienable, but that nevertheless cannot be sold for profit, a trait sometimes referred to as market-inalienability. The law frowns on, or may ban outright, the mixing of items and activities that are viewed as inherently noncommercial—even sacrosanct—with the crasser aspects of pecuniary markets. It is this third category of activity that I term “forbidden exchange,” and that has held a particular fascination for researchers across a wide range of disciplines, including the contributors to this volume, perhaps because it seems so inconsistent with our default norms that the voluntary exchange of goods and services for payment is not only permitted, but encouraged.

The volume contributors were asked to consider the consequences of making - and restricting - markets in various types of this third category of traditionally forbidden or contested exchange, including human blood, organs, eggs, sperm, reproductive services, and labor. What are the problems with, objections to, defenses of, impediments for, developments in, and challenges facing markets in these traditionally forbidden or contested areas of commercial exchange? What is the effect of prohibiting or impeding commercially-motivated transactions in these areas? As we move toward greater market-based exchange in some of these items and activities, what outcomes might we expect? What must those markets look like, who will intermediate them, and how must the legal regime governing the market participants be structured in order to guard against our traditional fears of market-based approaches to exchange in certain areas of life?

The contributors and their topics (with a link to the paper if it has been posted to SSRN) are:

Rene Almeling (Yale, sociology) --- eggs

David E. Bernstein (George Mason, Law) – labor

Clark C. Havighurst (Duke, law) -- blood

Melissa B. Jacoby (UNC, law) – fertility markets

Kimberly D. Krawiec (Duke, law) – eggs and sperm

Thomas C. Leonard (Princeton, economics) -- labor

Julia D. Mahoney (Virginia, law) -- organs

Hugh V. McLachlan (Glasgow Caledonian University, School of Law & Social Sciences) – surrogacy

Elizabeth S. Scott (Columbia, law) -- surrogacy

J. Kim Swales (University of Strathclyde, economics) -- surrogacy

For a more detailed discussion of the concept of “forbidden exchange,” as well as descriptions of the papers for which downloads are not yet available, see the volume foreword, here. 

Related Posts:

 U.K. To Reconsider Payments to Egg and Sperm Donors

On Immoral Markets

Death Row Coverup? Texas Judicial Commission Accuses Keller Of More Than Injustice

A couple of days ago I blogged about the possible impeachment of  Texas Court of Criminal Appeals Presiding Judge Sharon Keller.  Now she faces ouster at the hands of Texas Commission on Judicial Conduct.  As readers may recall, Keller declined to allow Michael Richards, who was facing imminent execution, a 20 minute extension on his brief.  He was seeking a stay based on a critical decision handed down by the U.S. Supreme Court hours earlier.  As more information has come out, it's become clear that not only did Keller make a bad call - she didn't follow proper procedure.  Another judge - Cheryl Johnson - was assigned to handle Richards' appeal and she was never informed about his request.  Worse yet, she covered up her decision for at least a short period.  Now, the Texas Commission has filed seven charges against Keller, accusing her of bringing public discredit to the judiciary.  This from today's Houston Chronicle:

According to the commission’s charges, the Court of Criminal Appeals judges gathered the morning after the execution and Judge Cathy Cochran expressed surprise that Richard had not appealed.  “Judge Keller did not disclose to the other judges her communications with (the court’s general counsel) the night before nor the fact that Mr. Richard’s lawyers had called the CCA to ask whether filings after 5 p.m. could be accepted,” the brief said.

Somehow, these kinds of decisions always have some mundane grounding:

According to the commission's findings, Keller had left the court that afternoon to meet a repairman at her home and did not return to the office. An appeals court attorney called her at home shortly before 5 p.m. to ask if the office could stay open and she said "no" and asked "why?"

When told of the impending appeal, Keller again said "no," the commission said.

UPDATE: We now have a copy of the Texas Judicial Commission's complaint here. 

Ripe For Impeachment? Judge Sharon Keller Slammed The Courthouse Door

ACS Blog reported yesterday on a possible judicial impeachment in Texas.  Back in 2007, hours after the U.S. Supreme Court granted cert in Baze v. Rees - throwing the legality of current lethal injection procedures into doubt - attorneys for Michael Richard sought a stay of his sentence.  Unfortunately, they had computer problems.  They requested that Presiding Judge Sharon Keller keep the clerk's office at the Texas Court of Criminal Appeals open for an extra 20 minutes - after the usual 5pm close.  (This court is the equivalent of the Texas Supreme Court for criminal cases.)  She chose not to, even though other judges on the court were hanging around waiting for the filing.  Michael Richards was executed that night. A discussion of this case appears lots of places - this complaint filed by the Texas Civil Rights Project is a starting point.  Download the complaint here.  

In the aftermath of Baze, I suppose some might argue that Richard would have been executed anyway.  But life is life, others would surely respond, even for one more day.  And this case doesn't speak well of Keller (though it's no worse than future President George W. Bush's mockery of Karla Tucker when she sought clemency.)

Now Texas state Rep. Lon Burnham has filed a resolution calling for Keller's impeachment.  Nobody is holding their breath on this one - the Republicans own both houses - but sometimes a case like this provides a chance for capital punishment supporters to articulate a commitment to fair process.

H/T David Cohen.

Army Schedules First Execution Since 1961

The U.S. Army has set December 10 as the execution date for Pvt. Ronald Gray.  He is slated to be killed at the Federal Correctional Institution in Terre Haute, Indiana.  Gray was a specialist with the 82nd Airborne, at Fort Bragg, NC, when committed a series of crimes.  Here's the story from CNN:

Gray was convicted of raping and killing a female Army private and a civilian near his post at Fort Bragg. He was also convicted of the rape and attempted murder of another fellow soldier in her barracks at the post. Both military and civilian courts found Gray responsible for the crimes, which were committed between April 1986 and January 1987.  Gray pleaded guilty to two murders and five rapes in a civilian court and was sentenced to three consecutive and five concurrent life terms. The general court-martial at Fort Bragg then tried him and in April 1988 convicted him of two murders, an attempted murder and three rapes. In July, President George W. Bush approved the Army's request to execute Gray.

According to CAAFlog, he still has a habeas petition to file - and this will implicate areas of habeas law well beyond my knowledge.  (There is a nice discussion about federal habeas in military cases here.)  One commentor to CAAFlog asks, quite reasonably, whether a President Obama will have much interest in pushing a military execution.  My guess is that he won't want to spend any political capital to stop this process.

Fighting for His Life: A Georgia Man Makes Final Plea for Death Penalty Commutation

Attorneys for death row inmate have made a final request for the Georgia Board of Pardons and Paroles to commute the death sentence of Troy Davis. Davis is scheduled to be executed today, September 23, 2008, at 7pm. Last year, the board granted Davis a temporary reprieve less than 24 hours before his scheduled execution, when serious questions were raised about his case.

Davis’ case, like many others its predecessor, too, implicates the fairness and objectivity of our criminal justice system, particularly in relation to sentencing black defendants for murdering white victims. But, beyond the black/white paradigm, Davis’ fight for justice is worsened because his victim was an off-duty police officer – a fact that produces certain legal anxieties in relation to issues surrounding a fair police investigation of the case.

Cass Sunstein Discovers Law Review Articles Can Kill

A couple of years ago, Cass Sunstein joined the ongoing debates about the death penalty and deterrence.  In his piece Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs, posted on SSRN in March 2005, he used the scholar's conceit: putting out a claim of possible truth with the goal of building out an argument assuming arguendo that that the claim was indeed true.  In this case, his claim was that there is a "large and growing body of evidence" that capital punishment deters (and he described this evidence as "powerful" and "impressive") and he argued that if this evidence "is even roughly correct", a refusal to execute will results in the death of many innocents.  After admitting that "there is always residual uncertainty in social science and legal policy", he concluded that "if those finding are ultimately shown to be right, capital punishment has a strong claim to being...morally obligatory."

Sunstein carefully crafted his piece so that he never stated that he accepted the veracity of these studies, but the very act of creating this article - an act which generated a torrent of debate in legal scholarly circles - had the effect of accrediting this data.  How much?  Enough that Justice Scalia cited this piece extensively in his Baze v. Rees concurring opinion upholding lethal injection . 

Sunstein must be uncomfortable with his new role as proof provider of the efficacy of death because today, in the Washington Post, he issued a punch line undermining the whole motivation of his original article.  "In short", he wrote, "the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty."

Admittedly, Sunstein's act of assuming the veracity of these  studies generated serious scholarly work criticizing (and some would say undermining) these finding on deterrence.  But as is clear from the very fact of Scalia's citation, Sunstein's choice to provisionally accredit the research had the effect of providing it a valuable endorsement.  Most of us could only dream of our research wielding such power.  No matter how much I yap about the racially disparate impact of Megan's Laws, it doesn't seem like anyone is paying much attention.  But much as it may seem like we're yelling into a vacuum, sometimes we're not.  Articles can have consequences.  It's better to figure that out early on than to discover it later.  Maybe Cass Sunstein wanted to star in Scalia's defense of capital punishment but, based on my reading of today's WaPo, I'm thinking not.

Supreme Court Stikes Down Death For Child Rapists

The Supreme Court's 5-4 decision striking down death for those charged with raping children (in the Kennedy v. Louisiana case) is here.  Corey Yung has an early post here.  SCOTUS Blog has its post here.

I plan to blog more on this soon, but my preliminary thoughts are:

1. No big surprise here.  Justice Kennedy believes the death penalty is constitutional, but he's not very comfortable with it.  I have a suspicion that he's looking out for American's standing in world opinion - and if the U.S. started executing people for rape, a lot of Europeans would be (even more) up in arms.

2. To some degree, I think this shows that the child abduction prevention industry was successful in its claims that sexual abusers of children are essentially untreatably mentally ill.  This expalins why we have to lock these folks up forever in preventive detention.  But it also strips them of the necessary agency to support retributive sanctions (and of course suggests that they are undeterrable.)  This makes it awfully hard to come forward now and insist that death is a legitimate punitive sanction.

More later...

Do We Execute Mentally Ill People Or Just Put Them To Sleep?

From Sentencing Law and Policy, Texan Scott Panetti has been found competent for execution by Judge Sam Sparks in the U.S. District Court for the Western District of Texas.  He was convicted of killing his wife's parents.  The problem is that Panetti clearly has a mental illness.  Panetti made the following comments to prosepective jurors as he represented himself during voir dire:

The death penalty doesn’t scare me, sure but not much.  Be killed, power line, when I was a kid. I’ve got my Injun beliefs as a shaman. I sent the buffalo horn to my sister.  Adjustment, Jesus wrote. I was born in the North woods in a reservation hospital and my granddad was a justice of the peace and he sobered up the doctor and the doctor was half sobered and they delivered me and my mom had a bad sickness in her milk and they wondered why I wasn’t dead, and a lot of beatings I took from the kids that show me had prejudice, which I don’t have any prejudice, and they said this about me in the newspapers in the beginning, but I don’t love Injuns and Mexicano, and Mexicano know, but I suffered a lot of reverse prejudice from Colored people, which is rare, darn rare, but I was named “He who doesn’t cry” because I didn’t cry when I should have, and I must admit, though, in Gillespie County Jail when I was in my little suicide box where there was an old boy committed suicide, I went through about a week of pretty much scuba diver’s tears; although, I don’t scuba.

It's not like there is much debate about whether Paretti was "faking" his insanity; in the ten year run-up to his crime, he'd been hospitalized a dozen times for  schizophrenia, schizoaffective disorder, bipolar disorder, depression, psychosis, auditory hallucinations, and delusions of persecution and grandiosity.  This isn't a regular guy who did a bad thing.  Ask yourself how many people you know with a similar clinical history.

In Panetti v. Quarterman, the Supreme Court held that he could not be executed unless he understood the reason he was facing death. Fair enough.  But trial details like these - and you can find more in the petitioner's brief in the case - really do bring up deeper questions like: why is a person in this condition allowed to represent himself; if he is to represent himself, how can we justify execution as a sanction for the crazy things that happen during trial; does such a trial meet social expectations of fairness; and more generally, is it right for the state to kill a person whose brain functions like this?

The Court has never held the execution of people with mental illness to be unconstitutional.  That's hardly an easy solution anyway.  Such a rule would force courts to face more of the complicated line-drawing debates that have made the the mental retardation issue so tough after Atkins.  But there is something wrong here.   To me, at least, it looks like Texas simply wants to put Panetti to sleep.  If so, the least the state can do is follow national veterinary standards for the practice.

Can Psychological Injuries Ever Justify Execution?

During the  recent Supreme Court argument in Louisiana v. Kennedy (the case considering the constitutionality of capital punishment for child rapists), counsel for the state detailed the  serious injuries suffered by the 8 year old rape victim  - including some that required surgical intervention.  At the end of a graphic account of this damage, Justice Stevens asked if the injuries were permanent and counsel for the state said they were not.  Counsel then stated that the rape inflicted (presumably permanent) psychological injuries on the victim.  It thus seems that, to the degree that the human harm must be proportionate to the sanction, Louisiana believes serious, but relatively short-term, injury, paired with permanent psychological injuries, is sufficient to render death constiutional.

Nobody should diminish the awfulness of this crime, the pain and fear the victim felt at the time of the incident, and the psychic scars that it surely left.  But since the return of the death penalty, we have not executed a single person who did not actually kill someone. If the Court considers the death penalty suitable under the circumstances in Kennedy, it seems that the sanction could be legally imposed for scores of offenses - everything ranging from arson, to assault, to attempted murder, and probably others.  An unarmed street assault, for example, may cause the victim pain, injuries, and long term psychological harm.  

Maybe cases with child victims are different.  As I've previously written here and here, the parties tried to stoke broad anxiety over child safety in their briefs.  But it's awful hard to figure out a principled basis to say that assaults/rapes/arson victimizing 17 year olds are inherently worse than those crimes, when perpetrated against 18 year olds.  That's not to say the Court might not draw that line; they did it in reverse when they outlawed death for child offenders in Roper v. Simmons.  And I suppose, just as Louisiana tried to turn the arguments about shifting national consensuses on those who first offered them, supporters of death-for-rape might make the same point about age: the line may be irrational, but it's how we've decided to analyze these matters.

At the end of the day, it seems to me that the Court is either going to maintain the prohibition on executing rapists, or the entire death penalty doctrinal regime - everything post Furman - may be on its way out.  That doesn't mean that the death penalty will necessarily spread to every violent or dangerous offense; each legislature will make its own decisions.  Perhaps allowing legislatures freer reign will cause a broad public debate and ultimately lead citizens to revisit their apparent taste for capital punishment.   But I'm a skeptic.  As we've learned again and again, no legislator ever lost her job by voting for tougher criminal sanctions.

Megan's Law And The National Consensus For Death

I've been reading over the briefs in Kennedy v. Louisiana, today's Supreme Court case considering the constitutionality of capital punishment for child rapists.  Yesterday I noted that the amicus brief of several states appropriated the overblown rhetoric of the child abduction panic movement.  But there's more interesting stuff there and it again sounds in shady conflation - in this case, arguing that the existence of Megan's Laws prove that America supports death in child rape cases.

In Louisiana's brief, the petitioners argue that  "objective indicia" reflect a growing national consensus that  death is not a disproportionate sanction for child rape.  The state points to three proofs: first, they argue there is a trend towards states adopting such laws; second, they contend that prosecutors and juries think this sanction is OK; and third, according to the state, "the widespread enactment of “Megan’s Laws” has also been posited as an indicator demonstrating 'a society more comfortable with the severe punishment and deterrence of child rapists and child molesters.'

Whoa Nellie!  First, how does widespread enactment of sexual offender registration and notification speak in any way to the appropriateness of the death penalty?  Even if notification was a punishment, it's mighty weak, comparatively.  And this argument seems particularly odd given that most jurisdictions have concluded that Megan's Laws aren't even punishment at all - and therefore don't implicate the ex post facto clause.  Perhaps even more strange, and dare I say disingenuous, in prior litigation the State of Louisiana expressly argued that Megan's Law isn't punishment at all...and the Louisiana courts agreed.  See Olivieri v. State, 779 So. 2d 735.   

Indeed, the fervor with which both Louisiana and amici argue for the moral culpability of child rapists makes me wonder why states "treat" these offenders in therapeutic preventive detention - i.e., civil commitment for "sexually violent predators".  Here's the problem.  When states seek to incarcerate people in anticipation of future crimes, something that is constitutionally prohibited if it's called punishment, they argue sexual offenders have a condition equivalent to mental illness.  They are detained for treatment.  When, on the other hand, such an individual actually offends, the offender acts out of pure free will. 

I'd suggest that states can't have it both ways when it comes to offender culpability, just as they can't argue that Megan's Law is both non-punishment and brutal punishment.  But perhaps they can.  We've lived through a generation of "death is different" jurisprudence.  We may now be entering the  "child abusers are different" era.  The ex post facto law and cruel and unusual punishment prohibitions may no longer apply. 

Update: Corey Yung over at Sex Crimes has further comments on these issues here, with an incredibly good collection of links here.  Dan Markel considers whether death is ever retributive here.  And Doug Berman has been offering a host of thoughts here.