February 23, 2014
Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?
After a final review of what we should take away from the McClesky ruling, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence which places categorical limits on what crimes cannot result in capital sentence and what criminals can not be executed for their crimes. Here, in order, are the major rulings in this series:
Offense-based Eigth Amendment categorical prohibitions on the death penalty:
Coker v. Georgia, 433 U.S. 584 (1977) (precluding imposition of the death penalty for offense of adult rape)
Tison v. Arizona, 481 U.S. 137 (1987) (precluding imposition of the death penalty for homicide accomplice lacking reckless indifference to life)
Kennedy v. Louisiana, 554 U.S. 407 (2008) (precluding imposition of the death penalty for offense of child rape)
Offender-based categorical prohibitions on the death penalty:
Thompson v. Oklahoma, 487 U.S. 815 (1988) (precluding imposition of the death penalty on offenders under age 16 at time of crime)
Atkins v. Virginia, 536 U.S. 304 (2002) (precluding imposition of the death penalty on offenders who suffer from mental retardation (reversing 1989 ruling holding otherwise))
Roper v. Simmons, 543 U.S. 551 (2005) (precluding imposition of the death penalty on offenders under age 18 at time of crime (reversing 1989 ruling holding otherwise))
As I asked at the end of last week, given that the Supreme Court's Eighth Amendment jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender with have individual circumstances considered by the sentencing judge and/or jury, what justifies another set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders?
Contextualizing these matters, consider the qusry in the title of this post as it relates to theories of punishment and Georgia's interest in having the death penalty as a possible punishment for Ehrlich Anthony Coker. For a reminder, here is how the lead dissent in Coker v. Georgia describe the petitioner whose death sentence was reversed by the Supreme Court in that case and the consequences of the ruling for Georgia:
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. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently. Approximately 1.5 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.
The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court's holding, moreover, bars Georgia from guaranteeing its citizens that they will suffer no further attacks by this habitual rapist. In fact, given the lengthy sentences Coker must serve for the crimes he has already committed, the Court's holding assures that petitioner -- as well as others in his position -- will henceforth feel no compunction whatsoever about committing further rapes as frequently as he may be able to escape from confinement and indeed even within the walls of the prison itself.
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While I feel that the argument can certainly be made that all "established" theories support a death sentence for Coker, what I believe we have found (or rather the wall we have run into) is that the interests behind the withholding of the death penalty go deeper than mere theory. I think that as a society we believe that to some degree the penalty system must be a level playing-field with reasonably predictable results. As a whole we tend to believe that we want a system in which those that are worthy of death die, but only if a laundry list of mitigating and aggravating circumstances is first carefully weighed. While on the facts it certainly seems that Coker is worthy of death under this test, we cannot allow him to die because the worthy jury that first sentenced him found the scales to be tipped in favor of a life sentence. What I believe allows us to sleep at night then is the belief that the system itself is not random or broken, but rather, that Coker and those like him "broke the rules" of the game by operating outside of his sentence. What our consciences are faced with then is not the guilt of a serial rapist on our hands, but rather, the idea that we too have been victimized by a man who failed to submit to the system which we have devised.
Posted by: Joe Gallagher | Feb 23, 2014 10:41:34 PM
From a moral standpoint, every theory of punishment weighs in favor of the State imposing a death sentence for Coker; the unique facts presented in this case certainly weigh in favor of ultimate incapacitation, and death, in this case, would make a measurable contribution to an acceptable goal of punishment.
However,what justifies the set of Supreme Court rulings that preclude legislatures from ever being allowed to even consider the death penalty for certain crimes or offenders is the notion of proportionality between a crime and its sentence. The Court's rationale in Coker is more difficult to accept because rape is naturally a sensitive, and controversial, crime. I agree that proportionality is an appropriate test for purposes of an 8th Amendment analysis but am hesitant to go as far to say rape, under all circumstances, should never justify imposing death; if mitigating and aggravating circumstances are to be considered when sentencing one to death under a capital offense, why can't those same factors be considered when deciding if a crime, specifically rape, is so heinous as to warrant the possibility of death.
Posted by: Carrie Thiem | Feb 24, 2014 2:01:12 PM
Not necessarily. The policy that underlies FRE 413-415 and sex offender registration is that such offenders are inherently resistant and in some cases immune to rehabilitation.
A death sentence for Coker arguably doesn't serve the purpose of rehabilitation; nor would a life sentence. To the extent these offenders are wired differently there is no reason to expect the compunction to break out of jail and rape people to be deterrable either. And once we have accepted the neurological distinction to this point perhaps we don't want retribution as badly against an offender who cannot be deterred because of an inherent defect.
This of course then makes the incapacitation argument much stronger, but muddles the mens rea.
In general, if you buy the underlying policy then it naturally weakens your legal argument for capital punishment for rape.
Posted by: Dan Inscore | Feb 25, 2014 1:04:12 PM
One consideration the dissent in Coker begins to unpack is the practical side of punishment theories. The dissent seems to suggest that incapacitation could have been an appropriate punishment theory to keep the death penalty off the table - if it were functional. For Coker, however, incapacitation failed in practice.
Because the prison system failed to effectively incapacitate Coker, the underlying theory became useless. In a way, this isn't a weakness in the theory as much as it is a weakness in the execution of it.
Arguably, Coker would have been punished for his post-escape rape even without the death penalty by virtue of becoming incapacitated again (after being dragged back to prison). The dissent is understandably unsatisfied with this degree of punishment because it returns Coker to the 'status quo'. That said, if Georgia became able to perfectly keep its prisoners contained to the prison, incapacitation from Coker's perspective might rationalize a no-death penalty punishment.
Posted by: Kris Missall | Feb 26, 2014 10:23:45 AM