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September 27, 2020

Doesn't EVERY punishment theory support a death sentence for Ehrlich Anthony Coker?

COKER-0000379279After a final review of what we should take away from the McClesky ruling and our discussion of a possible legislative response, we will turn for our last week of death penalty discussion to the Supreme Court's Eighth Amendment jurisprudence placing categorical limits on what crimes cannot result in a capital sentence and what criminals cannot be executed for their crimes (this discussion will also serve as a bridge to starting discussions of non-capital sentencing).  Here are the major rulings in this jurisprudence:


Rape: Coker v. Georgia, 433 U.S. 584 (1977)

Lesser Murders: Tison v. Arizona, 481 U.S. 137 (1987)

Rape of Children: Kennedy v. Louisiana 554 U.S. 407 (2008)



Insane: Ford v. Wainwright, 477 U.S. 399 (1986)

Juveniles: Thompson v. Oklahoma, 487 U. S. 815 (1988)Roper v. Simmons, 543 U.S. 551 (2005)

Intellectually Disabled: Atkins v. Virginia, 536 U.S. 304 (2002)

Can you identify any clear themes or philosophical underpinnings to these rulings, and are there any additional categorical limits that you think should be part of Eighth Amendment jurisprudence?  Arguments have been made that felony murder (on the crime side) and mental illness (on the criminal side) should be the basis for new constitutional categorical restrictions on the death penalty. But it seems pretty unlikely that the current Supreme Court will take up these issues anytime soon.

Given that the Supreme Court's Eighth Amendment procedural jurisprudence precludes legislatures from mandating the death penalty in any kind of case, and thereby requires and ensures that each crime and offender will have his or her individual circumstances considered by a sentencing jury, what justifies these kinds of categorical rulings that preclude legislatures from ever being permitted to allow a jury to even consider the death penalty for certain crimes or offenders?

Contextualizing these matters, consider the query 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 (pictured here decades later).  For a reminder, here is how the lead dissent in Coker v. Georgia described 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 kidnapped 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.

In the wake of the nomination of another woman to the Supreme Court, it bears recalling that the Court which handed down its 1977 ruling in Coker was comprised of nine men.  (Four years later, in 1981, Sandra Day O'Connor became the first woman nominated to the Supreme Court by President Ronald Reagan.)  In light of that reality, and especially given what more we now know about the impact of sexual violence, I often find this paragraph from the Coker ruling a bit disconcerting:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.  Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.  The murderer kills; the rapist, if no more than that, does not.  Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.  We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. at 187, is an excessive penalty for the rapist who, as such, does not take human life.

Would it be appropriate to reconsider Coker now that we have a more diverse set of Justices and especially since we now better understand that rape in fact does by definition involve "the serious injury to another person"?

September 27, 2020 in Death eligible offenses, Death penalty history, Supreme Court rulings, Theories of punishment, Who decides | Permalink


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