Coker v Georgia The Cruel and Unusual Punishment of Executing Rapists
Fast Facts • Coker was in prison serving sentences for murder, rape, kidnapping, and aggravated assault • He ESCAPED!!!!! • That night he entered the home of Elnita and Allen Carver • He tied up Allen and raped Elnita in front of him
More Fast Facts • Following the rape, Coker fled the home with Mrs. Carver • He was apprehended by the police soon after • Court says Mrs. Carver was “unharmed” • Coker was tried and found guilty of Escape, Armed Robbery, Motor Vehicle Theft, Kidnapping and Rape
Even More Fast Facts • He was sentenced to death • Unfortunately for Coker his entire life was one big aggravating factor • Record of conviction for capital felony (murder) • Depravity of Mind (Making the husband watch) • Crime committed upon escape from prison
Coker v Georgia:THE CASE!!!! • The Issue before the court was whether or not imposition of the death penalty for the crime of rape violated the 8th Amendment’s protection against Cruel and Unusual Punishment
No Dice • The court said yes indeed it did violate the 8th Amendment because it was disproportionate to the crime committed. • The Court relied on Gregg’s language in finding the punishment excessive because “[It] is grossly out of proportion to the severity of the crime”
Counting Votes • Justice White announced the Opinion of the Court • Joined by Stewart, Blackmun, and Stevens • Concurrences by Brennan and Marshall • Felt that the Death Penalty was Cruel and Unusual punishment for all crimes, especially rape. • Concurrence and Dissent by Powell • Concurred in result but felt that the death penalty was not unconstitutional
The Dissent • Dissent by Burger • Joined by Rehnquist • Felt that the court was encroaching on the legislative powers of states and pointed out the obvious recidivism and future danger of Coker.
Application to Child Rape • Seems like death sentences for child rapists would be unconstitutional under Coker • Maybe not
Recounting Votes in Coker • Neither Brennan nor Marshall should really count in determining whether Coker allowed for executions of child rapists. • Both Justices were against the death penalty altogether, so in interpreting the judgment in regards to child rape, it should be viewed more as a 5-2 decision.
More Recounting • Additionally, Justice Powell agreed in the judgment (i.e. that execution of Coker for this particular rape would be unconstitutional) but felt that a decision deeming all executions for rape was going way too far. • Now in regards to the decision it becomes a 4-3 decision
Odiferous Olfactory Opinions • The majority uses the words “Adult Rape” 8 times in the opinion which seems to suggest that the court was limiting their opinion to the constitutionality of executions stemming from adult rapes not the rape of children
Still Going…. • Majority relies on what it terms “objective factors” to determine the constitutionality of these sentences: • Public Attitudes • Legislative Attitudes • Response of Juries
Public Attitudes • People are more than happy now to humiliate and severely punish sex offenders, especially those whose victims are minors • Popularity of Dateline’s “To Catch a Predator” • Popularity of residency restrictions of Offenders • Adam Walsh Child Protection and Safety Act of 2006
Legislative Attitudes • The court noted that of the 16 states which authorized death sentences for rape Pre-Furman, only 3 allowed for it in their revised statutes • Georgia, North Carolina, and Louisiana • NC and Louisiana’s were both struck down for them being mandatory • Florida and Miss. had the death penalty for rape, but only of a child
Legislative Attitudes Cont. • The few number of states that had the death penalty for rape swayed the court toward rejecting its use • As of today 7 states have statutes authorizing the execution of child rapists, with other states currently considering the move
Who’s got it? • Oklahoma • 21 Okl. St. § 1114 • “Rape in the first degree is a felony punishable by death” • Rape in 1st Degree • Victim is 14 or under; or • Use of violence or force; or • Use of “Instrument” which results in bodily harm • Use of “Instrument” on victim under 14
Who? • South Carolina • S.C. Code Ann. § 16-3-655(c)(1) • If previously convicted of penetrative sexual offense with child under 11, defendant is death eligible upon conviction a second time • Targets dangerous men and women
More? • La. R.S. 14:42 Aggravated Rape • Penetrative Sexual Contact through the use of force, threat of violence, or other means of forcing sex • Life Imprisonment • Unless the victim is under 13 then the crime becomes death eligible • Patrick Kennedy is currently on death row under this statute
Rollin’ down Highway 41 • Georgia • O.C.G.A. § 16-6-1(b) • Carnal Knowledge of a woman against her will or if the victim is under 10 years of age • The statute still allows Georgia to punish rape of adult women with death despite the ruling in Coker
Disney Death Sentences • Florida • Fla. Stat. § 794.011(2) • The statute requires their to be a sexual battery where the victim is both under 12 and his/her sexual organs to be injured for it to be death eligible
18 Years old + 2(Hannah Montana + Bodily Injury) = Death • Montana • Mont. Code Anno. § 45-5-503(3)(c)(i) • Much like South Carolina it requires a prior conviction of similar crime but also requires bodily injury on each victim for it to be death eligible
Jessica’s Law • Texas Law that is set to be enacted into law • Death Penalty for repeat offenders of sexual assault where the victim is a child
Constitutional Infirmity in These Laws? • Could the death penalty for child rape be cruel and unusual punishment under the Eighth Amendment?
Giving Meaning to “Cruel and Unusual Punishment” • The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. 86 (1958) (plurality). • Though the Court has at times been hesitant to create categorical bans through the Eighth Am., it has recently held the execution of mentally retarded persons and juveniles to be cruel and unusual punishment.
Atkins v. Virginia 536 U.S. 304 (2002) • Death penalty for mentally-retarded persons is excessive and inappropriate in light of evolving standards of decency. • Court notes: Growing national consensus, justifications for use of death penalty (retribution/deterrence) questionable when applied to mentally-retarded offenders, and special risk of wrongful execution. • Court had previously held that the Eighth Am. did not require a categorical exemption from death eligibility for mentally-retarded persons. Penry v. Lynaugh, 492 U.S. 302, (1989).
Roper v. Simmons 543 U.S. 551 (2005) • Death penalty for juveniles is excessive and inappropriate in light of evolving standards of decency. • Court notes: Similar national consensus as in Atkins, justifications for use of death penalty (retribution/deterrence) questionable when applied to juvenile offenders, and international opinion opposed to death penalty for juvenile offenders. • Court had previously held that the Eighth Am. did not require a categorical exemption from death eligibility for juveniles. Stanford v. Kentucky, 492 U.S. 361 (1989).
Roper/Atkins Framework • The opinions seem to create/follow a three-part framework for evaluating the application of the death penalty under the Eighth Amendment’s proscription of cruel and unusual punishment in light of evolving standards of decency: • 1.) National Consensus • 2.) Proportionality • 3.) International Opinion
Evolving Standards of Decency: National Consensus • Court departed from requiring majority of states disapproving of a practice to find consensus. • Instead, Court looked at the sheer numbers, but additionally looked at “consistency of the direction of change.” • At the time of each case, 12 states prohibited the death penalty completely, and 18 excluded the group at issue (mentally-retarded persons / juveniles) from the reach of the death penalty.
Evolving Standards of Decency: Proportionality • We must balance the culpability of the defendant against the severity of the death penalty. • Roper Court quoting Atkins Court: “Capital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.’” • If the justifications for punishment (both retributive and utilitarian) are not applicable in a given implementation of the death penalty, the punishment is excessive.
Evolving Standards of Decency: International Flavor? • Prior to Roper/Atkins, the Court had largely stopped considering international opinion in its death penalty jurisprudence. • The Court gave a bit of attention to international opinion in Atkins and quite a bit more in Roper. • Court noted in Atkins: “Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” • Court noted in Roper: “Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”
International Flavor (cont’d) • The Court was quick to caution in Roper, however, that “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” • Justice Antonin Scalia has asserted, "The views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." Thompson v. Oklahoma, 487 U.S. 815 (1988) (Scalia, J., dissenting). • Tom DeLay does not approve. • This is obviously a hot topic in many constitutional interpretation areas, and we could probably debate it all day long. I thought, though, because it is relatively controversial, that this might be a good time to pause and ask the class if they have any thoughts specifically on international opinion being used to interpret the U.S. Constitution’s Eighth Amendment.
Evolving Standards of Decency: Death Penalty for Child Rape? • 1.) National Consensus • 2.) Proportionality • 3.) International Opinion
Child Rape, Death Penalty, and National Consensus • Of the 38 capital states, only 13 permit the use of the death penalty for offenses other than murder. Put that way, it can be argued that there is more consensus here than in either Roper or Atkins. • More specifically, as Jordan so effectively pointed out, only 7 states currently authorize the use of the death penalty for those convicted of child rape. But, 4 of those 7 passed their statutes within the last 2 years. So it could be argued that the direction of consensus is moving towards consensus in favor of using the death penalty in cases of child rape. • But then again, 7 of 50 states is very hard to call a consensus. • And perhaps of the other 43 states, many are simply attempting to comply with Coker. This is undercut somewhat, though, by the fact that only 2 states authorized the death penalty for child rape at the time of Coker.
Child Rape, Death Penalty, and Proportionality • Some argue that Coker stands for the proposition that a crime must result in death for death to be a proportionate punishment, thus the retribution goal is not properly served. • The counter is obviously that the rape of a child is more heinous than the rape of an adult. Indeed, maybe there is no other crime except murder that is as awful as the rape of a child.
Child Rape, Death Penalty, and Proportionality (cont’d) • Are utilitarian objectives served? • Deterrence? • Rehabilitation?
Child Rape, Death Penalty, and International Opinion • Countries that authorize the death penalty specifically for child rape include China, Iran, Jordan, Mongolia, the Philippines, Uganda, and Uzbekistan. • More than half of the countries that retain the death penalty do not have capital child-rape laws. • There is a growing trend towards abolishing the death penalty wholesale internationally.
Constitutional Conclusions? • Mine? • Jordan’s? • Yours? • Prof. Berman’s?