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February 3, 2007

Coker and the death penalty for sex crimes

As I discussed in Thursday's class, in Coker v. Georgia, 433 U.S. 584 (1977), the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman.  Coker is an amazing read, in part because the defendant, Ehrlich Anthony Coker, would seem to be a poster boy for the death penalty.  Consider the syllabus from the Coker ruling:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman.  He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery.  The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.

You can find the full opinion in Coker at this link.  Also, Wikipedia has this useful summary of the Coker ruling, which include a link to this interesting article.  That article has this useful pre-Furman data on capital prosecutions and executions:

[In the years before Furman, as] a practical matter, the death penalty had nearly withered away for crimes other than murder and rape.   From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder.

In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women.  Of the 455 rapists executed, 405 (89%) were black. Professor Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences.

Of course, the meaning of Coker and the realities of capital punishment for sex offenses is not just of historical interest now.  As detailed here, a number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible.  And, as discussed in this FindLaw column, in August 2003, Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child.  As I mentioned in class, significant constitutional litigation over the death penalty for child rape seems like a certainty over the next decade.

For anyone interested in broader sex crime punishment developments, be sure to make regular visits to the blog Sex Crimes.

February 3, 2007 in Death eligible offenses | Permalink


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I suspect that a discussion here about the death penalty in child rape cases could prove very interesting. I thought I'd kick it off.

From a utilitarian perspective - specifically with deterence in mind, and I suppose, incapacitation - putting the death penalty on the table for child rape makes some sense. But what if the "typical" child rapist (whatever that means) is undeterable due to a mental illness?

From a retributivist perspective - at least my own - the proportionality seems out of whack. To be clear: child rape is an abhorrent, no doubt deeply scarring act which deserves severe punishment. But has a child rapist morally forfeited his right to live? I do not believe so.

What then is the reason for placing the death penalty on the table in child rape cases? Are we so enraged by such crimes that we feel it is ok to throw proportionality out the window? Maybe it is ok for certain crimes. I honestly haven't thought much about it past what my gut tells me (maybe this discussion will help). To be perfectly honest, my gut also suggests to me an appropriate penalty which might better serve utilitarian interests while maintaining a better proportionality: castration. The punishment certainly fits the crime - especially if you believe that victims of child rape are often permanently harmed sexually; and talk about specific deterence and incapacitation.

But perhaps publicly-ordered castration is far too barbaric to be tolerated in a civilized society. Certainly more barbaric than death, no? At the very least, sanctioning castration would force too many problematic discussions on how the punishment should be administered. Afterall, we would want it to be painless - we aren't savages.

Posted by: Brett T. | Feb 3, 2007 11:10:37 PM

I think Brett raises a number of good points. While I, too, struggle with the appropriate response to rape (of adults and/or children), I'm not sure that dismissing the death penalty as an option is the correct conclusion.

First, I found an interesting article from USA Today that has a few statistics and anecdotal evidence about chemical castration and recidivism. It's a 2001 article, so a bit dated, but a short read and interesting: http://www.usatoday.com/news/opinion/columnists/wickham/2001-09-04-wickham.htm. Brett, it seems as though you are advocating for physical castration as opposed to chemical castration, so it might not be as reactive to your point as it could be, but it does raise a few questions for me. First, if rapists or pedophiles are mentally diseased, as I believe they are, neither chemical castration nor physical castration seems to be a viable method of deterrence. Those offenders who opt for chemical castration often stop their treatment and cannot resist returning to their criminal tendencies. While I don't know much about the effects of physical castration, it seems to me that while it may prohibit an offender from committing an actual rape, it may not prohibit such an offender from acting on his sexually-deviant impulses by utilizing other means to achieve his purposes (to wit: digital penetration or object penetration). So if we believe that a legitimate purpose of the death penalty is to incapcitate/specifically deter offenders, it seems that it would be far more effective to execute a sexual offender who is acting in accordance with a mental defect than to submit him to a chemical or physical punishment that may not render him unable to reoffend.

On the other hand, I do think that it is possible that we are doing a disservice to those women and children who are victims of sex crimes by essentially equating rape with death. While I do think that rape is a horrific crime, I also think that if you determine that being raped is paramount to being killed, you are forever stigmatizing rape victims in such a way that they may not be able to recover. Rape is, without question, an intense violation of personhood. And I have no doubt that it profoundly affects its victims in ways that they will be reminded of for the rest of their lives. But to say that being raped is like being killed seems unfair to the victim and would, psychologically, at least, impair or hinder their ability to recover.

Of course, having said all of that, I do think that my initial or gut reaction is such that, despite any possible disservice to the victim, rape (and child rape especially) is such a horrific crime that I think it warrants being at least considered as a capital crime.

Posted by: Kacey | Feb 4, 2007 1:52:51 PM

Another thought -
In most cases, a perpetrator of child sexual assault is a family member or close friend. It is difficult to get witnesses to come forward or victims' families to press charges as it is. If there was a possibility the person could get the death penalty, it would likely deter folks even further.

Posted by: Kristin | Feb 6, 2007 8:50:15 AM

Pedophilia is still a misunderstood and under-understood illness, and little corrects the problem as of yet. But let's not get murder happy here.

Rape could be as bad as death, but it is survivable. The reality is that involving the death penalty, for rape, increases the death toll. Maybe the better option is finding out why. What part of society has created a need for this deviant behavior? Is it that we are not comfortable with children being sexual, or sexual with adults, or that adults desire children? Rape has existed in male-dominated societies, well, forever. Maybe the better deterrence is seriously figuring out why and solving the problem.

And let's not forget that the motivation behind rape and pedophilia are different. Rape is a crime of power, and pedophilia is an expression of sexuality deemed deviant and forced underground. The two can overlap. So instead of putting effort into deciding which new category of people we can systematically dispose of; solve the problem.

Posted by: Kelly | Feb 6, 2007 9:26:35 AM

I understand the systemic argument, but it fails to note the importance of punishing people for what they do. Retribution has always been one goal of punishment, and it surely plays its greatest role in those crimes which prove particularly shocking people's consciences. Also, just because we're punishing the people who commit these crimes does not mean we can't continue to work to root out factors that help people become more prone to commit them. I agree that it is important to attempt to keep crimes from happening in the future. (I'll leave the extraordiniarily high recidivism rates for sex offenders argument to someone else). But we must not lose sight of the importance of punishing those people that have already committed them. I don't think you can completely eliminate personal choice from the equation.

In addition, if we are going to have the death penalty, I don't see how we really distinguish imposing it for murder and imposing it for child rape. I would posit that most Americans are shocked and horrified by a child rape just as they are by a murder. The recent focus in the press and state legislatures upon these issues tends to back up this argument. The horrific effects that child rape can produce, both psychologically and physically, do leave many victims scarred, whether we'd like to admit it or not. Employing a severe penalty for child rape does nothing to indicate that victims are damaged to the point that they are equated with being dead. It does illustrate the point that many do suffer immensely and that those crimes which impose that kind of suffering, whether they result in death or not, are worthy of the ultimate sanction. Now this argument still leaves open the possibility of using life without parole as that sanction. But, assuming we have the death penalty, whether an offender is eligible for it should rest on considerations other than purely whether a victim survives an attack.

Posted by: Kurt | Feb 6, 2007 4:15:26 PM

Kurt - can you on the one hand cite retributive principles as your basis for focusing on punishing those who have committed the crime (as opposed to the systemic view to which you refer), and then on the other hand ignore those retributive principles as they relate to proportionality of punishment? Unless we say (on some level) that child rape is "like" the death of the victim, how could the death penalty ever be retributively proportionate? I think putting the death penalty on the table for child rape very much indicates that on some level, the victim has died - I agree with Kacey's point.

Posted by: Brett T. | Feb 7, 2007 12:33:11 PM

I think this debate about whether or not child rap is "like" death raises an interesting parallel with the argument about which is worse, life without parole or death. Many people feel that no punishment can be as bad as the death penalty, because nothing is worse than dying. But, as we have discussed in class, many believe that life without is a much harsher sentence. It does not have the same harm as death, but the type of harm that occurs can be seen as "worse." I think the same can be said about attitudes about child rape. Many in this country see child rape, not like murder, but as a different harm that can be almost as bad or worse than murder. It can be framed as a reflection of the intense harm that we see in child rape, not an attempt to equate that harm to murder. Perhaps this is just a semantics argument, but I don't believe you have to say child rape is like being murdered in order to defend a belief that child rapists should be subject to capital punishment. As for the proportionality argument that this brings up, I will leave that to other bloggers :).

Posted by: Tiffany L. | Feb 7, 2007 1:06:21 PM

Imposing a punishment of death for anything other than death increases death. It encourages the offender to murder the victim to decrease their chances of being caught.

I am not saying that punishment doesnt serve a purpose. I'm saying that psychology has found that people respond better, learn better, and conform to social norms better with positive reinforcement. Punishment is not the most effective means of molding behavior. Yes, some people are not going to conform, but why?

violence begets violence. using violence teaches violence. as a society and as a people, i would hope that, we have evolved far enough to understand that we are not bound to our base instincts of sex and aggression.

Posted by: Kelly | Feb 7, 2007 1:40:26 PM

As a former grad student(criminal Justice) & retired NYPD Detective punishment only serves societies'need for retribution.
Most people,who society wishes to punish are sick either mentally or under the influence of drugs(alcohol inc.as such);therefor to pass laws which are meant to deter a rational human being from commiting an act are simply a waste.
We should either treat the offenders,as a "sick" person or get real with our get even form of punishment & continue with the death penaly which only shows other countries how 'barbaric' we really are!!So let's go back to torture & build more jails-throwout our Consitutional rights & not have to worry about retribution or deterence.

Posted by: SAL | Nov 30, 2007 11:26:23 AM

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