“Wait,” you say, “can’t he get the death penalty for kidnapping, imprisoning, and raping three girls over and over again for 10 years?” Why, no. Our Supreme Court, in its wisdom, decided a few years ago that it would amount to cruel and unusual punishment to give the needle to a degenerate like this “merely” for raping children repeatedly. As a matter of constitutional law, due to society’s “evolving standards of decency,” only a crime that results in death can carry a capital sentence. Which is interesting, because I’d bet if you polled Americans today, you’d get upwards of 60-70 percent (and maybe more) to say that it’d be quite decent indeed to kill this guy, and not in a painless way like lethal injection either. Like I said when that SCOTUS decision was handed down, the irony of barring the death penalty for child-rapists due to “evolving standards” is that American society’s become much more sensitive to the psychological damage done to the victims of sexual crimes, especially when the victim is a child. The public’s “evolved” towards a fuller appreciation of the toll taken on the innocent and may, understandably, desire a penalty commensurate with that toll. But it can’t have it, even in a case like this where there’s zero doubt as to guilt or innocence.

So why is the prosecutor in Cleveland talking about death anyway? Because: Under Ohio law, killing a woman’s child when it’s in the womb — if it’s against her wishes — constitutes aggravated murder. Which, apparently, is what Castro did. Five separate times:

The police report described a nightmare scenario in which Ms. Berry, Gina DeJesus and Michelle Knight were taken to Mr. Castro’s home and chained in the basement. Although the chains were later removed and they moved upstairs, they were all forced to have sex with Mr. Castro, the women told police. Ms. Knight told police she had become pregnant five times, with Mr. Castro starving her and punching her in the stomach each time until she miscarried, according to the report. Ms. Berry told police she had given birth to her daughter, Jocelyn, in a plastic pool. Ms. Knight described delivering the baby and reviving her at one point with mouth-to-mouth resuscitation, under threat of death from Mr. Castro if she let the child die, according to the report. Ms. DeJesus also said she had sex with Mr. Castro, but told police she didn’t think she had become pregnant.

One of the victims’ cousins told the NYT that he would serve them cake on the anniversary of their kidnappings to celebrate their abductions. That’s what we’re dealing with here.

Ace was all over the death-penalty angle the other day, incidentally. Here’s the relevant statute in Ohio:

2903.01 Aggravated murder. (A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy… (F) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code.

Section 2929.02 puts death on the table for aggravated murder. “But wait,” you say, “doesn’t charging this piece of garbage with murder necessarily mean that the fetuses he killed in the womb are persons”? Why, yes. Courts and legislatures have been wrestling with that contradiction, where a fetus is something less than a person for purposes of lawful abortion but a full person for purposes of “unlawful termination,” since Roe was decided. There is a way to square the circle conceptually, but abortion warriors don’t like it: Instead of trying to redefine a fetus as something other than a “life,” they could acknowledge that it’s a life and then treat lawful abortion as a form of justifiable homicide. (That’s what Charles Murray does, for instance.) A “justifiable homicide” rationale for abortion essentially puts mom and doctor in the role of state-sanctioned executioners: Just as it’s okay for the state’s lethal-injection technician to execute a man on death row but not okay for you or me to kill him, it’s okay for a pregnant woman to authorize the killing but not for her degenerate kidnapper-rapist to punch her in the stomach until she miscarries. Having the word “homicide” attached to one of your most cherished policy priorities isn’t good messaging, though, and needing to explain repeatedly why killing a baby is “justifiable” is an unhappy prospect. So instead pro-choicers typically resort to the Orwellian rationale that a fetus in the womb isn’t a “person” and merely has the “potential” for life — unless and until the fetus is killed against the mother’s will, in which case it’s murder one and the prosecutor is empowered to apply the needle.

We need two separate poll questions asked of the public. Hopefully Rasmussen or Gallup or Pew or someone is game. Question one: Does Ariel Castro deserve death? Question two: Does Ariel Castro deserve death for forcing one of his captives to miscarry? I wonder if the number who say yes to question one will be greater than the number who say yes to question two, as illogical as that may be.