Navigation

 
  Current Policy Statements | > 2007 Policy Statements

2007 Policy Statements

Statement Regarding Proposed Senate Bill 98

Senate Bill 98, introduced by Senator Judith Zaffirini, calls for the Legislative Budget Board to prepare a child impact statement for all bills or joint resolutions (other than appropriations bills). The child impact statement shall state whether the proposed bill or joint resolution will (1) affect children’s emotional, physical, intellectual, and financial needs and access to resources;  (2) have an impact on specific groups of children more than others; and (3) have an impact on the ability of parents and caregivers to ensure children’s emotional, physical, intellectual, and financial well-being.  The child impact statement must be attached to the bill or joint resolution before the committee hearing on the bill and then the committee report; and must remain with the bill throughout the legislative process.

With this bill the needs and interests of children will be placed in the forefront of the legislative process.  Legislators will have greater access to information about children and families. The changes that occurred in 2003 to the Texas Children’s Health Insurance Program (CHIPS), is an excellent illustration of the kind of impact this legislation could make in the future. The 2003 changes to the CHIPS program have had serious detrimental effects on thousands of children in Texas.  Many legislators, including supporters of the 2003 legislation, are now backing proposed legislation in the current session that would restore many of the CHIPS program cuts from 2003.  Had a child impact statement been prepared for the 2003 legislation, the effect on children in Texas who fall in the gap between Medicaid eligibility and private insurance would have been clearly articulated, and made a part of the debate on the legislation.  If the effect of these changes had been analyzed prior to the vote, legislators may not have supported the legislation and would not have to be reexamining the issue again this session.

There appears to be very little downside to this legislation. The Legislative Budget Board will use data provided by other Texas agencies.  The cost to the taxpayer will not be substantial.  There are still some unanswered questions, i.e., will the Legislative Budget Board’s process adequately address the affect of the proposed legislation on children beyond just a fiscal analysis?  Will this process evaluate legislation for children in a holistic manner looking at developmental, emotional, and fiscal issues? Particularly when evaluating legislation that may affect children it may be necessary to have more than just a budgetary analysis.

Statement regarding proposed Texas legislation making certain sexual offenders eligible for the death penalty

In the January 2007 legislative session,  the Texas House and Senate will consider  bills which provide for death penalty sentences for offenders convicted of aggravated sexual assault against a child younger than 14, if the offender has previously been convicted of a similar offense. The proposed legislation is Texas’ version of Jessica’s Law, a Florida statute named after a nine year old who was raped and murdered by a sex offender. Similar legislation has been passed recently in Montana, Oklahoma, and South Carolina.  Louisiana has had a statute on the books since 1995 providing for the death penalty for the rape of a child under 12 years of age.

Advocates for this legislation cite the need for greater protection for children against child predators.  They also reason that a more serious punishment is needed to deter sex offenders from committing future offenses against children.  In spite of its laudable goals, the proposed legislation raises serious constitutional and practical questions.

The proposed legislation may be unconstitutional as it may violate the Eighth Amendment’s prohibition against cruel and unusual punishment.  In 1977, the United States Supreme Court last addressed the question of whether the death penalty is constitutional for a crime other than one resulting in the loss of human life.  Coker v. Georgia, 433 U.S. 584 (1977).  The Court held that a death sentence for the rape of an adult woman was grossly disproportionate and excessive punishment.  Thus, imposition of the death penalty for rape cases was determined to be cruel and unusual punishment in violation of the Eighth Amendment.   The Supreme Court has not directly addressed the question of whether a different standard would be applied if the victims were children.  Given the opportunity in 1997 to consider the Louisiana statute, the Court declined to hear the case.  There is currently only one person on death row in the United States who has been convicted under these statutes:  Patrick Kennedy, who was sentenced to death in 2003 in Louisiana for the rape of an eight year old girl.  His case is currently moving through the appeals process and may very well provide the high court with an opportunity to consider the constitutionality of the death penalty for offenders convicted of sexual offenses involving children.

The Jessica’s Law legislation raises practical concerns as well.  There are serious questions as to whether the legislation will actually deter sex offenders from committing future offenses and whether it will actually afford children greater protection. Mental health professionals find little evidence that the threat of a death sentence will be effective in reducing recidivism among offenders who sexually abuse children.  Also, rather than affording children greater protection, the Jessica’s Law legislation may in fact turn out to be harmful to child victims, as it reduces the offender’s incentive to spare  the victim’s life.  Finally, and perhaps most significantly, the legislation ignores the reality that in the vast majority of child molestation cases, the offender is a family member of the victim.  Having the death penalty as a punishment for a sexual offender who is a family member may further tear families apart.  Sexual assaults against children are already underreported. According to The National Children’s Alliance, it is believed that only 10% of sexual abuse cases involving children are actually reported. Children already fear that they won’t be believed by police or the adults in their lives.  With the possibility that a family member might receive the death penalty as a result of the reporting of a sexual assault, child victims are likely to be even more reluctant to report sexual assaults.   This legislation intended to protect children might very well have the opposite effect.