South Carolina is halfway to approving the death penalty for repeat child rapists.

But even if the measure becomes law, expect a legal challenge to follow.

The S.C. Senate on Wednesday gave final reading to a bill that would permit the death penalty for adults convicted a second time of raping a child 10 years of age or younger.

The bill now heads to the House of Representatives where it's expected to receive equally quick consideration.

If the bill is ratified and signed by the governor, South Carolina would become the second state after Louisiana with such a law on the books.

But the constitutionality of such a measure remains to be seen. Louisiana passed its law in 1995, but only one person has been sentenced to death under its provisions and that case hasn't made it to the U.S. Supreme Court.

Legal scholars differ on whether South Carolina's effort would survive such scrutiny.

John Simpkins, a constitutional law professor at the Charleston School of Law, said the state would have a heavy burden of proving the death penalty was "necessary and reasonable" after a child rape.

That's especially true if a life sentence without the possibility of parole is still an option as a form of state punishment, he said.

The Legislature "would have to demonstrate a compelling interest is served by providing for the death penalty," he added.

S.C. Attorney General Henry McMaster predicted the law would likely pass the court if challenged, primarily because the court's standard of whether thepunishment fits the crime has shifted since the 1970s. The public is less forgiving of crime and more tolerant of capital punishment today than it was 30 to 35 years ago.

Additionally, he said that since the death penalty would be available only after a second conviction, the court would be more accepting of it as a legitimate form of punishment.

"That makes a big difference," McMaster said. He added the high court is "looking more at what society deems appropriate."

The death penalty provision was added to a bill strengthening numerous penalties for convicted child molesters.

Meanwhile, critics also have questioned whether adding the death penalty provision would help curb the abuse. Also, they contend it would lead to more trials and fewer plea deals as offenders try to escape the ultimate punishment.

At present, state and federal laws only sparingly allow for the death penalty in cases beyond the realm of murder. California allows it in cases where someone's lies in court cause the state to execute an innocent man or woman. Florida allows it in cases of sexual battery.

Georgia and Kentucky allow the death penalty in certain types of kidnapping cases, while Georgia also allows it for someone who is convicted in an aircraft hijacking.

Some state laws allow treason to be convicted as a capital crime, but desertion from the military is a federal death penalty issue, as is espionage. The bill is now on its way to the House.

 

On the Net

For a full report on the Legislature, go to www.charleston.net/webextras.

--The House approved the state's $6.3 billion budget Wednesday night after turning back two attempts to raise the 7-cent-a-pack cigarette tax.

--Flags on the Statehouse dome flew at half-staff Wednesday in belated recognition of civil rights leader Rosa Parks, who died in October.

--A coalition of student leaders from state universities gathered Wednesday to urge lawmakers to let boards keep their power to set tuition.

 

Contact Schuyler Kropf at 937-5551, or skropf@postandcourier.com.