Wednesday Writs: Rape and The Death Penalty in Coker v Georgia

CACorrections (California Department of Corrections and Rehabilitation), Public domain, via Wikimedia Commons

WW1: “Although rape deserves serious punishment, the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such and as opposed to the murderer, does not unjustifiably take human life.”

Doesn’t he, though?

Concededly, the victim of a “mere” rape does not die, as in her heart continues beating and she continues breathing. But her life, such as it was, may end, replaced by a new life profoundly marred by the experience. Her trajectory in life may change, or come to a sudden halt. Things she enjoyed — safety, hope, the desire for human touch, happiness — may be gone. Or not; it’s subjective, really. Just as not all stab wounds are fatal.

Non-fatal stab wounds will not earn the perpetrator a death sentence, no matter how severe the injury, and neither will a non-fatal rape. The Supreme Court said so in 1977 in Coker v Georgia, our case of the week and source of that opening quote.

The defendant, Ehrlich Coker, escaped from prison, where he was serving 3 life sentences for rape, kidnapping, first degree murder, and assault. While on the loose, he broke into the home of Alan of Elnita Carver. He tied up Mr. Carver, brandished a knife, and raped Mrs. Carver. He then made her leave with him in the Carvers’ car. Mrs. Carver managed to escape and went to the police, who captured Coker soon after. “Mrs. Carver was unharmed,” per the SCOTUS opinion I will get to shortly.

An insanity defense was rejected by the jury, who convicted Coker of escape, armed robbery, motor vehicle theft, kidnaping, and rape. During the sentencing phase, the jury was instructed to consider whether aggravated circumstances existed to justify the death penalty under Georgia law, including whether the defendant had previous felony convictions and whether the rape occurred during the commission of other “capital felonies”, such as armed robbery. Even if the jury found these factors existed, they were free to consider mitigating circumstances and spare the defendant’s life. The jury did not feel the need to do so and sentenced Coker to death, which at that time in Georgia meant the electric chair.

Coker’s appeals were denied, and the sole question left for SCOTUS to consider was whether the death penalty in rape cases violated the 8th Amendment prohibition against cruel and unusual punishment. The decision was 7-2, with the plurality opinion written by Justice Byron White and joined by Justices Stewart, Blackmun and Stevens. White first dispensed with any inquiry into the constitutionality of the death penalty in general, that question having been thoroughly litigated that same decade. 1972’s Furman v. Georgia held the death penalty unconstitutional as applied in three consolidated cases, which led to a moratorium on executions throughout the country. The problem with Furman was that while 5 of 9 justices found the death penalty unconstitutional in those three cases, there was no agreement as to why. Each justice wrote separately to explain his rationale. As such, there was no plurality except a short per curiam bereft of analysis, giving states no guidance as to how the death penalty could be constitutionally imposed, if at all. The uncertainty resulted in a nationwide moratorium on executions¹.

In 1976 in Gregg v Georgia, the Court set out guidelines for the imposition of capital punishment, finding that executions by the state were not per se unconstitutional, if correctly applied. One of the Gregg considerations was whether the punishment is excessive in proportion to the crime. It is excessive if it (1) makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. If either of these guidelines apply, then the sentence is unconstitutional.

Justice White wrote that these factors should not be left at the mercy of the subjective whims of the judiciary but “informed by subjective factors.” To decide whether rape was violative of these guidelines the court looked both to history and to the prevailing attitudes in the country at the time. The Court noted that post-Furman, only 3 states reinstated the death penalty for the crime of rape, down from 16 before Furman. Of those 3 states, 2 had already revised their statutes again and removed rape from the list of capital crimes, leaving Georgia the only hold out.

Georgia pointed out that 11 states had enacted statutes after Furman which made capital punishment mandatory, in an attempt to create consistency and less subjective sentencing. Georgia argued that these 11 states simply chose not to require the death penalty for every single rape conviction. However, the Court pointed out that most states which enacted new capital punishment statutes that did not include mandatory sentences also did not include rape of an adult. In addition, once mandatory death sentencing was struck down in Roberts v Louisiana and Woodson v North Carolina, states which previously had mandatory death sentencing revised their statutes and still did not include rape as a capital crime. In sum, Georgia was, at the time, the only state which still permitted the death penalty for the rape of an adult (Florida and Mississippi still permitted execution for adults convicted of raping a child.)

In addition to the evident widespread disfavor by state legislatures for capital punishment of rapists, the Court looked at the prevalence of death verdicts by juries. Justice White noted that of the 63 rape convictions reviewed by the Georgia Supreme Court between 1973 and then, only 6 defendants had been sentenced to death. While admitting that this was not enough to prove that execution was per se a disproportionate sentence for rape, it weighed strongly in favor of the idea.

The Court then stated baldly that in its collective judgment, rape was simply not worthy of death.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life… The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over, and normally is not beyond repair.

The fact that the defendant had similar violent felonies in his history and was engaged in other forceful felonies when he raped Mrs. Carver did not alter the Court’s decision: a rapist who leaves a living victim is not deserving of death.

Justices Brennan and Marshall concurred, and each wrote a single paragraph reiterating their belief that the death penalty is unconstitutional in all cases, consistent with their views set forth in Furman.

Justice Powell concurred as to the circumstances of the case at bar, but dissented from the plurality’s view that rape alone can never warrant capital punishment:

The deliberate viciousness of the rapist may be greater than that of the murderer. Rape is never an act committed accidentally. Rarely can it be said to be unpremeditated. There also is wide variation in the effect on the victim. The plurality opinion says that “[l]ife is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.” But there is indeed “extreme variation” in the crime of rape. Some victims are so grievously injured physically or psychologically that life is beyond repair.

Chief Justice Berger and Justice Rehnquist dissented, opining that the Court had overstepped by substituting its judgment and belief for that of the state legislature. Berger concedes that there are crimes too minor to warrant the death penalty, but does not find rape to fit the category of a minor crime. Berger then adds some background to Coker’s case:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later, Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead.

These were some of the crimes for which Coker was imprisoned when he escaped and attacked Mrs. Carver and her husband. Berger also points out that Mrs. Carver was 16 years old when Coker raped her, and had given birth a mere 3 weeks prior.

Because Coker was already serving 3 life sentences for his 1971 crimes, reasoned Berger, the Court’s decision means he will suffer no punishment for his crimes against the Carvers. Furthermore, the citizens of Georgia could not be assured that they would be protected from further victimization by violent serial rapists like Coker.

Berger implies he believes Coker deserves to die, and seems to suggest that the Court should use a case-by-case approach:

Unlike the plurality, I would narrow the inquiry in this case to the question actually presented: does the Eighth Amendment’s ban against cruel and unusual punishment prohibit the State of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime, and who has not hesitated to escape confinement at the first available opportunity?

Berger asserts that the line drawing between the dead and not-dead victim has no basis in the constitution:

As a matter of constitutional principle, that test cannot have the primitive simplicity of “life for life, eye for eye, tooth for tooth.” Rather, States must be permitted to engage in a more sophisticated weighing of values in dealing with criminal activity which consistently poses serious danger of death or grave bodily harm.

What does Em think, you ask?

I am anti-capital punishment. This is not because I don’t believe it is always unjustified; some dangerous dogs definitely need to be put down.  But because of the serious flaws in our system, I am confident that factually innocent people wind up on death row and in my view, one is one too many.

However, if the death penalty could be assured to always be applied only to the guilty, then I agree with Justice Berger that someone like Erlich Coker deserves it, even if he had left only living victims in his wake. Admittedly, some rapes are far more brutal and more violent than others. Likewise, some survivors recover more fully than others; human resiliency is amazing, but it spans a wide spectrum.  It would be difficult to qualify or quantify the relative brutality of one rape to another, or the damage to one victim or another.

But juries have long been asked to make judgments on “aggravating factors;” the Coker jury did just that. Furthermore, the fact that of 63 rape convictions over 4 years in Georgia only 6 were sentenced to death shows that jurors are not eager to apply capital punishment. IF we could be assured that only the truly guilty would be convicted, I have faith in the ability of juries to weigh the circumstances and condemn only the most deserving.

WW2: A Nazi-era German law criminalizing homosexuality remained on the books — and “enthusiastially enforced” — until 1969. The country created a restitution fund for those affected by the law, and has paid out over the equivalent of a million dollars to 259 people. Convictions under the law were nullified in 2017.

WW3: I regret to inform you that Texas is at it again: Gov. Abbott signed a bill prohibiting large social media platforms from removing accounts or posts based on political views, and permits citizens to sue companies who do so. Opponents of the law say it is reverse censorship, requiring the companies to platform political ideas with which they disagree.

WW4: The Justice Department announced it will place new restrictions on the use of chokeholds and no-knock entries following a finding of a lack of clear written policies across federal law enforcement units.

WW5: In yet another horrific story from the VA, a 62 year old veteran went missing from his room at the Bedford VA hospital in Massachusetts. He was found a month later – 60 feet from his room, decomposing in a stairwell. The Department of Veterans Affairs has found that the hospital violated policies in its failed search for the man, Tim White.

Mr. White’s disappearance did not receive the attention it deserved from VA, an agency that is required by federal law to provide for the protection of all persons on its property,” the report says. The OIG found that the medical center, including its VA police, “did not initiate a response to Mr. White’s disappearance under VHA’s missing patients policy because he was considered a resident and not a patient.”

The report also notes how “poor decision-making, misinformation and lack of oversight also prevented anyone at VA from encountering Mr. White during the month after he was reported missing through routine patrols or cleaning of the emergency exit stairwell in which his body was found.

WW6: Breyer is well aware you want him to retire, and while he appears to have no plans to do so, he does say he doesn’t “intend to die [while] on the Court.”

WW7: Well, you have to hand it to this guy for trying: one of the Capitol Riot defendants, representing himself in his criminal proceedings, is demanding to be paid millions by the government for his legal services to himself. “You want to do business with me? These are my prices,” said Eric Bochene.

1. During this time, defendants were still sentenced to die; it was only the carrying out of those punishments that was on hold.