Coker
v
Georgia
Coker v Georgia
The Cruel and Unusual
Punishment of Executing Rapists
Fast Facts
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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
Conceptual Understanding of the
Facts
More Fast Facts
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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
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He was sentenced to death 
Unfortunately for Coker his entire life was
one big aggravating factor
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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!!!!
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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
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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
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Justice White announced the Opinion of
the Court
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Concurrences by Brennan and Marshall
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Joined by Stewart, Blackmun, and Stevens
Felt that the Death Penalty was Cruel and Unusual
punishment for all crimes, especially rape.
Concurrence and Dissent by Powell
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Concurred in result but felt that the death penalty
was not unconstitutional
The Dissent
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Dissent by Burger
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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
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Seems like death sentences for child
rapists would be unconstitutional under
Coker
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Maybe not
Recounting Votes in Coker
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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
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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
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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….
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Majority relies on what it terms “objective
factors” to determine the constitutionality
of these sentences:
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Public Attitudes
Legislative Attitudes
Response of Juries
Public Attitudes
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People are more than happy now to
humiliate and severely punish sex
offenders, especially those whose victims
are minors
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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
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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
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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.
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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?
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Oklahoma
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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
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Who?
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South Carolina
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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?
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La. R.S. 14:42 Aggravated Rape
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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
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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
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Florida
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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
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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
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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?
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Could the death penalty for child rape be
cruel and unusual punishment under the
Eighth Amendment?
Giving Meaning to “Cruel and
Unusual Punishment”
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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).
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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)
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Death penalty for mentally-retarded persons is
excessive and inappropriate in light of evolving
standards of decency.
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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)
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Death penalty for juveniles is excessive and
inappropriate in light of evolving standards of
decency.
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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
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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:
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1.) National Consensus
2.) Proportionality
3.) International Opinion
Evolving Standards of Decency:
National Consensus
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Court departed from requiring majority of states
disapproving of a practice to find consensus.
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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
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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?
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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.
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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)
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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).
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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?
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1.) National Consensus
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2.) Proportionality
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3.) International Opinion
Child Rape, Death Penalty, and
National Consensus
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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.
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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
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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.
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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)
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Are utilitarian objectives served?
Deterrence?
Rehabilitation?
Child Rape, Death Penalty, and
International Opinion
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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?
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Mine?
Jordan’s?
Yours?
Prof. Berman’s?
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Coker v Georgia