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

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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69 Responses

  1. Michael Cain says:

    WW3: The easiest response would seem to be for the social media companies to shut down any servers that happen to be located in Texas. Literally, just pull the plugs on them and let everything fail over to servers elsewhere.Report

    • Philip H in reply to Michael Cain says:

      I’d actually like to see this get litigated. It would clear up a lot of what is and is not private company “rights” in the social media space. It might not be pretty, but it sure would be fun to watch Texas get repeatedly slapped by the courts over this.Report

  2. DensityDuck says:

    [WW3] No business should ever be forced to promulgate speech it finds disagreeable!Report

    • Oscar Gordon in reply to DensityDuck says:

      But this isn’t about cakes & flowers & photo sessions!Report

      • DensityDuck in reply to Oscar Gordon says:

        You’re right, it’s only about the method that people use to participate in conversation with literally the entire world. Certainly it’s okay if the dudes running that system can delete your comments if they don’t like them (or if they don’t like you.) I mean, it’s not something important, like a cake.Report

        • Philip H in reply to DensityDuck says:

          one of the foundational principals of the US is that government actors can’t censor political speech but private actors can so long as they don’t libel anyone. If we are going to legally require private actors to put it all out there – regardless of impact or veracity – then we are in fact using government to regulate speech. Probably a bad idea on a lot of levels.Report

          • Chip Daniels in reply to Philip H says:

            “Free Speech” is riddled with caveats and exceptions, for both government actors and private.

            A cake shop is certainly free to refuse to print “F*@K” or misinformation about a pandemic.

            If Twitter was just refusing to serve anyone who of a certain religion then they may have a point.Report

          • DensityDuck in reply to Philip H says:

            ” If we are going to legally require private actors to put it all out there – regardless of impact or veracity – then we are in fact using government to regulate speech. ”

            gonna screenshot this one for laterReport

        • veronica d in reply to DensityDuck says:

          It all goes back to lunch counters. No one has ever said a restaurant cannot remove a patron for being disruptive or rude or any number of other factors. What was decided is that restaurants cannot deny service to people simply based on race. Later these protected categories were expanded to include religion, gender, sexuality, etcetera. These are known as “protected classes.” They exist because of widespread prejudice.

          No one objects to content providers banning spam accounts. Thus everyone agrees that content providers can ban people for being obnoxious and disruptive. The question becomes, is a political position more like “being disruptive” or more like a “protected class.”

          Which brings us to bigotry and hate speech. Those who try to use principles designed to protect the targets of bigotry to instead protect the bigots themselves — that’s clearly messed up.

          Which leads to the paradox. If someone is banned for expressing bigoted ideas, how should we respond when they claim they are being punished for having conservative ideas?

          Two possibilities:

          1. Conservative ideas are essentially bigoted.

          2. Conservative ideas are not essentially bigoted, and thus those banned are not being targeted merely for being conservative.

          In case #2, we should not believe people who claim they are being censored for being conservative. They are not. It is possible to be a non-bigoted conservative, just as not all Christians are homophobic. Thus it is not the conservatism that has led to the ban. It’s the bigotry. Simple.

          If #1 is true, if conservatism is essentially bigoted … well then. That has implications.Report

          • DensityDuck in reply to veronica d says:

            “No one has ever said a restaurant cannot remove a patron for being disruptive or rude or any number of other factors.”

            You’re only saying that because I’m black, and you’re white, and you’re racist and hate black people so you’re declaring that my culture is “disruptive and rude”.

            “No one objects to content providers banning spam accounts.”

            Uh-huh. Like how that Hunter Biden’s Laptop story was spam, right?

            “Those who try to use principles designed to protect the targets of bigotry to instead protect the bigots themselves…”

            Uh-huh. “Your speech is dangerous to the common good, we must therefore prevent you from speaking it in this forum, which is why we’re banning you for talking about your experiences as a trans person.”Report

          • Is “vaccine are poison the real cure is horse paste” a political view?

            How about “Dominion sent the votes to Estonia to be changed”?Report

  3. Oscar Gordon says:

    WW1: Concur on the Death Penalty. The application of the death penalty should be reserved for those who have demonstrated an unwillingness or inability to reform, the “mad dogs” of society, as it were.Report

    • Philip H in reply to Oscar Gordon says:

      Hard pass. The death penalty has no deterrent effect – its just state sanctioned revenge. Plus its a great way to make martyrs of some people. Far better to let them rot.Report

      • Jaybird in reply to Philip H says:

        “Far better to let them rot.”

        Oh, have you heard about what happened with Ehrlich Coker?Report

      • Oscar Gordon in reply to Philip H says:

        Two problems with letting them rot:
        1) Escape. Not common, but also not unheard of, and a “mad dog” who wants to escape is not going to be overly concerned with the collateral damage.
        2) Prison itself – unless we are going to place such people in permanent solitary confinement, these kinds of people contribute heavily to the horrific conditions in US prisons.Report

        • Philip H in reply to Oscar Gordon says:

          neither of those is a reason, much less a good reason, to put people to death.Report

          • Jaybird in reply to Philip H says:

            Would it have been okay for Mr. Carver to kill Mr. Coker?Report

          • Oscar Gordon in reply to Philip H says:

            I disagree. Any person whose very existence is a constant threat to others* should be removed from others. We can do it with permanent solitary, or death. I’m good with either.

            Regarding solitary, this would mean no opportunity for escape. Court or lawyer meetings are done via video, and medical emergencies – sucks to be you. You are in the hole, or in the yard by yourself.

            *Granted, I have a high bar for what constitutes such treatment (and very little faith that any political entity in the US could craft law that would not be abused), but someone like Coker would meet that bar.Report

            • Chris in reply to Oscar Gordon says:

              How do we determine when someone is a “constant threat to others”, and in particular, at a level that justifies state-sanctioned homicide?Report

              • Jaybird in reply to Chris says:

                Would “breaking out at least once and raping a woman” count?

                If it wouldn’t, what would? Is there anything?Report

              • Chris in reply to Jaybird says:

                I asked a question that cannot be answered by answering any of your questions. My question is, how do we determine when someone is a “constant threat to others?” If you want to answer this question by listing off different crimes, I’m afraid you do not understand the question, or at least, what an answer to the question would look like. If that’s not the case, then I confess, I don’t understand how playing that game would get us to an answer.Report

              • Jaybird in reply to Chris says:

                I think that something like pointing to a particular person and a particular set of crimes and a particular set of circumstances and saying “here… there is a line and this is on the other side of it” would be helpful.

                It establishes that there is a line, even if we can’t pinpoint it, and that there are things on the other side of the line.Report

              • Chris in reply to Jaybird says:

                I don’t think it’s helpful, not only because to make such a determination we would need levels of details that make abstraction or generalization difficult, but also because it has already assumed or abstracted away from some of the most important factors, which have nothing to do with particular individuals and their cases.

                It’s not that we can’t get there through a sort of Socratic dialogue, it’s that you aren’t having anything close to the right dialogue.Report

              • Jaybird in reply to Chris says:

                Well, to answer your original question:

                “How do we determine when someone is a “constant threat to others”, and in particular, at a level that justifies state-sanctioned homicide?”

                I think that “others being harmed by this person even after the person has been sequestered away from society in a prison” might qualify as a criteria that we could use to determine if someone is a threat to others.

                “At the level that justifies state-sanctioned homicide” could be defined with something like “if they were killed by one of the people they were a threat to (defined earlier), would a jury of the threatened’s peers find it to be self-defense?”

                And if “yes”, then there you go.

                I mean, if the main thing you wanted was an answer to your question.Report

              • Chris in reply to Jaybird says:

                Under this standard, one could imagine a situation in which a person who escaped prison and drove a car could be sentence to death… for driving the car. That’s assuming we’re only going to convict people who’ve escaped from prison, and then, only people escaped from prison whom we know to have been imprisoned justly, and then…

                if we’re going to apply it to anyone else, this criterion will turn out to be greatly unjust really fast.Report

              • Jaybird in reply to Chris says:

                This is why I brought up the whole issue of the jury and the peers and the self-defense thing.

                If you killed someone for driving a car and claimed self-defense, would a jury of your peers find you innocent?

                (I’m assuming that you are not a police officer, here.)

                If the answer is no, then I’d say that that’s not a good counter-example.Report

              • Chris in reply to Jaybird says:

                I worded my response poorly, in attaching that counter example to the rest of the comment, so I’ll just repeat the other part without the counter:

                Assuming we’re only going to convict people who’ve escaped from prison, and then, only people escaped from prison whom we know to have been imprisoned justly, and then…

                if we’re going to apply it to anyone else, this criterion will turn out to be greatly unjust really fast.Report

              • Jaybird in reply to Chris says:

                Does Coker meet that standard or not?

                Because, if he doesn’t, we’re stuck in a world where we have to deal with what happened to Mr. and Mrs. Carver.

                Which also seems greatly unjust.

                And that makes me think that you’re asking me to pick between injustices rather than between justice and injustice.Report

              • Chris in reply to Jaybird says:

                We’re stuck in that world anyway. Nothing we do to Coker changes the fact that we’re stuck in that world. Perhaps more importantly, nothing we do through the criminal justice system, at least as currently constituted, can prevent us from being stuck in that world.

                We get out of that world by creating a system that doesn’t build Cokers in the first place, and one part of creating that world is getting rid of the criminal justice system as currently constituted, because it does as much, if not more, to create Cokers as any other part of our society.Report

              • Jaybird in reply to Chris says:

                Is there a country out there that doesn’t build Cokers?

                Which country, if so?

                For what it’s worth, my opposition to the death penalty is based in stuff like “I don’t trust the cops”, “I don’t trust the prosecutors”, and “I don’t trust the courts” rather than in something like “but Justice demands we not be cruel to the Cokers.”

                I can easily see Justice involving cruelty to the Cokers. (We agree that “prison” qualifies as “cruel”, right?)Report

              • Oscar Gordon in reply to Chris says:

                That’s the haggling, now isn’t it?

                IMHO, it would be a 3 strikes kinda thing, but one that doesn’t automatically kick in.

                So you’d need 3 convictions of a violent felony that would constitute justifiable homicide if any of the victims had been able to manage it[1], and only after the third conviction, the DA could petition the courts[2] for a special execution and lay out the evidence for why the prisoner is unfit to remain incarcerated for the rest of their natural life.

                [1] To avoid legislatures making all manner of things ‘violent felonies’, we already have a problem with that.

                [2] i.e. the death penalty is never ‘on the table’ as a punishment or part of a plea deal.Report

              • Chris in reply to Oscar Gordon says:

                In a just system, it is perhaps best to have a simple, universally applied set of criteria (say, 3 violent crimes within certain categories of violence and crime), but we don’t have a just system available. The system we do have contains disparities, large and small, at every point within it, from whom cops choose to police and how, to whom prosecutors choose to prosecute and what crimes they choose to charge, and from access to representation to the sorts of evidence and even irrelevant factors that juries and judges will take into account. What’s more, the system we do have actually puts people in situations where violence may feel like the only option (not only in the way that prison hardens people, but in the binds prison puts people in when they get out, e.g., with debt or with the difficulties in finding a job with a felony conviction). As such, I don’t think you can abstract away from the context of crime, the nature of the policing and the justice system, and even the prison system, and achieve a just, fair, and impartial judgment of “constant threat to others” with a simple universal rule (or even ones of a complexity that still allows for clear application). at least not when we’re talking about ending the availability of due process, as the death penalty does.Report

              • Oscar Gordon in reply to Chris says:

                I can’t disagree with you that the system itself is unjust and riddled with perverse incentives.

                But that doesn’t change the fact that there are truly dangerous people in this world that, if killing them isn’t an option, really do need to be aggressively segregated from anyone else.

                And I still hold that be it death or permanent solitary, such a punishment can not be a discretionary thing, nor can it be tied to a specific trial. That determination needs to be a separate thing, something that requires take specific action and present detailed evidence.Report

              • Chris in reply to Oscar Gordon says:

                That still gets us back to who decides and how, and I don’t see a just way of doing so in our current system.

                I’m also less inclined to see anyone as irredeemably violent, but I’ll say that solitary confinement is a form of inhuman cruelty, and while I am against the death penalty in every case, if the choice were the death penalty or lifelong solitary confinement, I’d support the death penalty, because in comparison to solitary, it’s the humane option.Report

              • Oscar Gordon in reply to Chris says:

                We’ve already established who decides, it’s just a question of how it’s decided. The rub is what the criteria are. Right now, I think the bar for the death penalty is far too low (and the bar for solitary is even lower than that). I’d raise them both quite a bit higher.

                But, I’m not the one making that call, and to be frank, as much as you are pushing back on me, I think the hardcore L&O types would hate my suggestions even more, because it would raise the bar too high, in their opinion.

                if the choice were the death penalty or lifelong solitary confinement, I’d support the death penalty, because in comparison to solitary, it’s the humane option.

                Yes, not only because solitary itself is destructive, but because it offers far too much opportunity for sadism on the part of the state agents.Report

              • Chris in reply to Oscar Gordon says:

                See my reply to Jaybird above. I think the answer is not to figure out how to use the death penalty, because there is no possible just use of the death penalty within our current criminal justice system, and we already know it’s not an effective deterrent, and while we might prevent particular individuals from committing particular crimes, we still have a system that will churn out more violent, broken humans.

                The answer is, therefore, to rebuild the system entirely, and while I realize that’s a big thing, not plausible in the immediate term, I see no path from where we are now that goes through tightening or loosening the criteria for capital punishment that gets us there. Instead, we get there by dismantling the prison system as we know it altogether, by dismantling the policing system as we know it altogether, and by radically focusing those resources on both the causes and effects of economic and social inequality.Report

              • Oscar Gordon in reply to Chris says:

                1) My proposal has nothing to do with deterrence. It has to do with the recognition that there are “Mad Dogs” that either can not be rehabilitated, or that we are unable to rehabilitate. And if we can not keep them sequestered, then we should put them down.

                2) That bit about rehabilitation leads into your cogent point, that we basically suck when it comes to not creating such people in the first place, and are seemingly powerless to rehabilitate them when they do appear. So 100% agree, we should scrap what we have and build something less punitive and more rehabilitative. How we do that (since I doubt we can simply copy & paste Norway here) is a great question, but until we figure such things out…Report

              • Kazzy in reply to Oscar Gordon says:

                There is a large dose of illogic in thinking we can perfectly identify which folks are so dangerous they can’t be trusted around other people but our only way to mitigate the risk they pose is to kill them.Report

              • Jaybird in reply to Kazzy says:

                All of them? Of course not.

                Individual ones like Coker?

                Well… do you think that Coker falls on the other side of that line?Report

              • Oscar Gordon in reply to Kazzy says:

                Perhaps I am not being clear here. No one is trying to identify dangerous people like some kind of Minority Report. This is all after the fact reasoning, when you have a well defined amount of evidence that a given person is truly dangerous.

                Multiple convictions for violent felonies against persons (battery/rape/homicide), both in & out of prison; psychologist reports regarding the person suggesting they are resistant to rehab, etc.

                What we have now is either no one dies, regardless of how terrible they are (thus they are at the very least inflicted upon other prisoners who may or may not be equipped to deal with them), or the state gets to impose death as a form of virtue signalling (e.g. murder doesn’t get you the needle, but killing a cop does).

                Ultimately, I would expect the number of executions to drop considerably, because of how many executions are of people who failed to have adequate legal representation, and / or who were clearly unable to aid in the own defense.Report

              • DavidTC in reply to Oscar Gordon says:

                I have to point out that there are people who are just as bad towards other prisoners in prisons who have _unequivocally_ not done anything to deserve death under any current law.

                For example, various gang members often have not done much more than basic assault and theft and maybe some drug possession. And yet, as part of a gang, they terrorize other prisoners. The death penalty cannot solve this problem, unless the premise is ‘kill literally everyone who commits a violent crime’.

                I think the question we need to ask _there_ is: Why are we building prisons where prisoners are allowed to ‘inflict’ themselves on other prisoners at all?Report

              • Oscar Gordon in reply to DavidTC says:

                Honest answer? Because we are a punitive society and we think it’s some kind of justice for the more violent to inflict themselves on the less so.Report

              • veronica d in reply to Oscar Gordon says:

                There you go speaking truth.

                But seriously, I understand the impulse to expose criminals too degradation. If someone hurt me or someone I care about, then I’d want them to suffer. However, we also have the capacity for reason, and any sensible moral calculus should tell us that our current prison system is deeply inhumane. Moreover, our capacity to flippantly decide who “deserves it” is suspect.

                Anyway, yeah.Report

        • Greginak in reply to Oscar Gordon says:

          I don’t think anyone has ever escaped from a supermax prison. Don’t we would need that many SMs to keep every really crazy dangerous f’r away for good with virtually no hope of escape.Report

    • JS in reply to Oscar Gordon says:

      It’s cheaper to lock them up for life, and you can also *let them out* if it turns out they didn’t do it.

      Which is…depressingly common.

      And god knows, the death penalty doesn’t actually deter anyone.

      So you might as well go with the cheaper, more easily reversed option.Report

      • Oscar Gordon in reply to JS says:

        See my reply to Chris.Report

        • JS in reply to Oscar Gordon says:

          Your responses to Chris all assume that everyone sentenced to death is, in fact, guilty of that crime.

          The Innocence Project would note that is not true.

          If we had 100% certainty of justice — you’d have more of a point.

          But again, that’s not actually how our justice system works.

          So again: Why should we execute people when it costs more, does not deter crime, and we unfortunately occasionally convict the innocent?

          Offhand, I’m pretty sure we’ve executed more innocent folks in the last 50 years than have actually escaped death row.

          Pragmatically, we’re better off with life without parole. It’s cheaper, and if it turns out they’re innocent, it’s a lot easier to let them go than resurrect them.Report

          • Oscar Gordon in reply to JS says:

            Please re-read my comment. No one is sentenced to death. As a matter of fact, I specifically say that the death penalty would not be available to prosecutors.Report

    • Pinky in reply to Oscar Gordon says:

      A non-controversial statement that’s going to sound controversial: our understanding of rape is evolving. The decision includes the statement, “”Rarely can it be said to be unpremeditated.” That shows a different understanding of the crime.

      I’d have no problem in theory with the execution of rapists, but we’d have to really have a solid set of varying degrees of the crime. (Maybe we already do; I’m happy to say I’ve never done any research into the topic.) I think historically in the West, the three most common capital crimes are murder, rape, and treason.

      It’s way more complicated than that. I’m using all three terms in their broadest senses, and historically, capital rape has included suspicion of a black man sleeping with a white woman.Report

      • Philip H in reply to Pinky says:

        And precisely because it was a suspicion many factually innocent black men were punished for it. Which is all the more reason NOT to make rape a capitol crime.Report

  4. Jaybird says:

    WW4: Demanding standards seems to be a pretty good workaround for the problems of QI.

    Given the whole “unwritten rulings” thing, though, I’m not sure it’s a long-term solution. But, in the short term, it’s positive movement.Report

    • Oscar Gordon in reply to Jaybird says:

      There is also the problem of what happens when the next POTUS likes choke holds and dynamic entry. I mean, it’s a good thing, but it’s a band-aid on a bullet hole.Report

      • Jaybird in reply to Oscar Gordon says:

        I’m looking at the crime numbers and guessing that we’re 3-4 years away from “LAW AND ORDER” becoming something that a presidential candidate says unironically against a different candidate who is holding a chart saying something like “only murders and shootings have gone up!”Report

  5. Pinky says:

    WW7 – I’ve seen stories claiming extreme conditions for Capitol Riot defendants, but this is one of those stories where I won’t trust the conservative or mainstream press. I’d be curious if Em would look into it.Report

    • Em Carpenter in reply to Pinky says:

      I don’t know the political slant of this particular outlet, but the article seems to be fairly factually straight forward and drawing from court filings. Complaints range from serious lack of medical care and assaults and threats from guards to lack of haircuts and sharing toenail clippers.
      Anyone familiar with the penal system would say “same old, same old.” In other words, it sounds like they are being treated the same as most inmates are: badly. But nothing stands out as “extreme” comparative to other inmates.
      I’ll dig some more, see what I can see.

      https://www.washingtonian.com/2021/08/12/accused-january-6-rioters-complain-about-conditions-in-dc-jail/Report