|Coker v. Georgia
234 Ga. 555, 216 S.E.2d 782, reversed and remanded.
[ White ]
[ Brennan ]
[ Marshall ]
[ Powell ]
[ Burger ]
Coker v. Georgia
CERTIORARI TO THE SUPREME COURT OF GEORGIA
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE REHNQUIST joins, dissenting.
In a case such as this, confusion often arises as to the Court's proper role in reaching a decision. Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the Constitution permits a State to do under its reserved powers. In striking down the death penalty imposed upon the petitioner in this case, the Court has overstepped the bounds of proper constitutional adjudication by substituting its policy judgment for that of the state legislature. I accept that the Eighth Amendment's concept of disproportionality bars the death penalty for minor crimes. But rape is not a minor crime; hence the Cruel and Unusual Punishments Clause does not give the Members of this Court license to engraft their conceptions of proper public policy onto the considered legislative judgments of the States. Since I cannot agree that Georgia lacked the constitutional [p605] power to impose the penalty of death for rape, I dissent from the Court's judgment.(1)
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. [n1] Each judgment specified that the sentences it imposed were to run consecutively, rather than concurrently. Approximately 1 1/2 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 [p606] 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. To what extent we have left States "elbowroom" to protect innocent persons from depraved human beings like Coker remains in doubt.(2)
My first disagreement with the Court's holding is its unnecessary breadth. The narrow issue here presented is whether the State of Georgia may constitutionally execute this petitioner for the particular rape which he has committed, in light of all the facts and circumstances shown by this record. The plurality opinion goes to great lengths to consider societal mores and attitudes toward the generic crime of rape and the punishment for it; however, the opinion gives little attention to the special circumstances which bear directly on whether imposition of the death penalty is an appropriate societal response to Coker's criminal acts: (a) On account of his prior offenses, Coker is already serving such lengthy prison sentences that imposition of additional periods of imprisonment would have no incremental punitive effect; (b) by his life pattern, Coker has shown that he presents a particular danger to the safety, welfare, and chastity of women, and, on his record, the likelihood is therefore great that he will repeat his crime at the first opportunity; (c) petitioner escaped from prison only a year and a half after he commenced serving his latest sentences; he has nothing to lose by further escape attempts; and (d) should he again succeed in escaping from prison, it is reasonably predictable that he will repeat his pattern of attacks on [p607] women -- and with impunity, since the threat of added prison sentences will be no deterrent.
Unlike the plurality, I would narrow the inquiry in this case to the question actually presented: does the Eighth Amendment's ban against cruel and unusual punishment prohibit the State of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime, and who has not hesitated to escape confinement at the first available opportunity? Whatever one's view may be as to the State's constitutional power to impose the death penalty upon a rapist who stands before a court convicted for the first time, this case reveals a chronic rapist whose continuing danger to the community is abundantly clear.
MR. JUSTICE POWELL would hold the death sentence inappropriate in this case because
there is no indication that petitioner's offense was committed with excessive brutality or that the victim sustained serious or lasting injury.
Ante at 601. [n2] Apart from the reality that rape is inherently one [p608] of the most egregiously brutal acts one human being can inflict upon another, there is nothing in the Eighth Amendment that so narrowly limits the factors which may be considered by a state legislature in determining whether a particular punishment is grossly excessive. Surely recidivism, especially the repeated commission of heinous crimes, is a factor which may properly be weighed as an aggravating circumstance, permitting the imposition of a punishment more severe than for one isolated offense. For example, as a matter of national policy, Congress has expressed its will that a person who has committed two felonies will suffer enhanced punishment for a third one, 18 U.S.C. § 3575(e)(1); Congress has also declared that a second conviction for assault on a mail carrier may be punished more seriously than a first such conviction, 18 U.S.C. § 2114. Many States [p609] provide an increased penalty for habitual criminality. See, e.g., Wis.Stat.Ann. § 939.62 (1958); see also Annot., 58 A.L.R. 20 (1929); 82 A.L.R. 345 (1933); 79 A.L.R.2d 826 (1961). [n3] As a factual matter, the plurality opinion is correct in stating that Coker's "prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life," ante at 599; however, it cannot be disputed that the existence of these prior convictions makes Coker a substantially more serious menace to society than a first-time offender: [n4]
There is a widely held view that those who present the strongest case for severe measures of incapacitation are not murderers as a group (their offenses often are situational), but rather those who have repeatedly engaged in violent, combative behavior. A well demonstrated [p610] propensity for life-endangering behavior is thought to provide a more solid basis for infliction of the most severe measures of incapacitation than does the fortuity of a single homicidal incident.
Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1080 (1964). (Emphasis added.)
In my view, the Eighth Amendment does not prevent the State from taking an individual's "well demonstrated propensity for life-endangering behavior" into account in devising punitive measures which will prevent inflicting further harm upon innocent victims. See Gregg v. Georgia, 428 U.S. 153, 183 n. 28 (1976). Only one year ago, MR. JUSTICE WHITE succinctly noted: "[D]eath finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not." Roberts v. Louisiana, 428 U.S. 325, 354 (1976) (dissenting opinion); see also Furman v. Georgia, 408 U.S. at 311 (WHITE, J., concurring).
In sum, once the Court has held that "the punishment of death does not invariably violate the Constitution," Gregg v. Georgia, supra at 169, it seriously impinges upon the State's legislative judgment to hold that it may not impose such sentence upon an individual who has shown total and repeated disregard for the welfare, safety, personal integrity and human worth of others, and who seemingly cannot be deterred from continuing such conduct. [n5] I therefore would [p611] hold that the death sentence here imposed is within the power reserved to the State, and leave for another day the question of whether such sanction would be proper under other circumstances. The dangers which inhere whenever the Court casts its constitutional decisions in terms sweeping beyond the facts of the case presented, are magnified in the context of the Eighth Amendment. In Furman v. Georgia, supra at 431, MR. JUSTICE POWELL, in dissent, stated:
[W]here, as here, the language of the applicable [constitutional] provision provides great leeway, and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great. It is too easy to propound our subjective standards of wise policy under the rubric of more or less universally held standards of decency.
(Emphasis added.) Since the Court now invalidates the death penalty as a sanction for all rapes of adults at all times under all circumstances, [n6] I reluctantly turn to what I see as the broader issues raised by this holding.(3)
The plurality, ante at 597-598, acknowledges the gross nature of the crime of rape. A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological, as well as physical, harm in the process. The long-range effect upon the victim's life and health is likely [p612] to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack -- it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this, in turn, may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with MR. JUSTICE WHITE's conclusion as far as it goes -- that, "[s]hort of homicide, [rape] is the ‘ultimate violation of self.'" Ante at 597. Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are "unharmed," or to classify the human outrage of rape, as does MR. JUSTICE POWELL, in terms of "excessively brutal," ante at 601, versus "moderately brutal," takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.
Despite its strong condemnation of rape, the Court reaches the inexplicable conclusion that "the death penalty . . . is an excessive penalty" for the perpetrator of this heinous offense. [n7] This, the Court holds, is true even though, in Georgia, the death penalty may be imposed only where the rape is coupled with one or more aggravating circumstances. The process by which this conclusion is reached is as startling as it is disquieting. It represents a clear departure from precedent by making this Court,
under the aegis of the Cruel and Unusual Punishments Clause, the ultimate arbiter of the standards of criminal responsibility in diverse areas of the [p613] criminal law, throughout the country.
Powell v. Texas, 392 U.S. 514, 533 (1968) (opinion of MARSHALL, J.). [n8] This seriously strains and distorts our federal system, removing much of the flexibility from which it has drawn strength for two centuries.
The analysis of the plurality opinion is divided into two parts: (a) an "objective" determination that most American jurisdictions do not presently make rape a capital offense, and (b) a subjective judgment that death is an excessive punishment for rape because the crime does not, in and of itself, cause the death of the victim. I take issue with each of these points.(a)
The plurality opinion bases its analysis, in part, on the fact that
Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman.
Ante at 595-596. Surely, however, this statistic cannot be deemed determinative, or even particularly relevant. As the opinion concedes, ante at 594, two other States -- Louisiana and North Carolina -- have enacted death penalty statutes for adult rape since this Court's 1972 decision in Furman v. Georgia, 408 U.S. 238. If the Court is to rely on some "public opinion" process, does this not suggest the beginning of a "trend"? [p614]
More to the point, however, it is myopic to base sweeping constitutional principles upon the narrow experience of the past five years. Considerable uncertainty was introduced into this area of the law by this Court's Furman decision. A large number of States found their death penalty statutes invalidated; legislatures were left in serious doubt by the expressions vacillating between discretionary and mandatory death penalties, as to whether this Court would sustain any statute imposing death as a criminal sanction. [n9] Failure of more States to enact statutes imposing death for rape of an adult woman may thus reflect hasty legislative compromise occasioned by time pressures following Furman, a desire to wait on the experience of those States which did enact such statutes, or simply an accurate forecast of today's holding
In any case, when considered in light of the experience since the turn of this century, where more than one-third of American jurisdictions have consistently provided the death penalty for rape, the plurality's focus on the experience of the immediate past must be viewed as truly disingenuous. Having in mind the swift changes in positions of some Members of this Court in the short span of five years, can it rationally be considered a relevant indicator of what our society deems "cruel and unusual" to look solely to what legislatures have refrained from doing under conditions of great uncertainty arising from our less than lucid holdings on the Eighth Amendment? Far more representative of societal mores of the 20th century is the accepted [p615] practice in a substantial number of jurisdictions preceding the Furman decision. "[The] problem . . . is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago." Furman v. Georgia, supra at 410 (BLACKMUN, J., dissenting). Cf. Rudolph v. Alabama, 375 U.S. 889 (1963).
However, even were one to give the most charitable acceptance to the plurality's statistical analysis, it still does not, to my mind, support its conclusion. The most that can be claimed is that, for the past year, Georgia has been the only State whose adult rape death penalty statute has not otherwise been invalidated; two other state legislatures had enacted rape death penalty statutes in the last five years, but these were invalidated for reasons unrelated to rape under the Court's decisions last Term. Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Even if these figures could be read as indicating that no other States view the death penalty as an appropriate punishment for the rape of an adult woman, it would not necessarily follow that Georgia's imposition of such sanction violates the Eighth Amendment.
The Court has repeatedly pointed to the reserve strength of our federal system, which allows state legislatures, within broad limits, to experiment with laws, both criminal and civil, in the effort to achieve socially desirable results. See, e.g., Whalen v. Roe, 429 U.S. 589, 597-598, and n. 22 (1977); Johnson v. Louisiana, 406 U.S. 356, 376 (1972) (opinion of POWELL, J.); California v. Green, 399 U.S. 149, 184-185 (1970) (Harlan, J., concurring); Fay v. New York, 332 U.S. 261, 296 (1947). Various provisions of the Constitution, including the Eighth Amendment and the Due Process Clause, of course, place substantive limitations on the type of experimentation a State may undertake. However, as the plurality admits, the crime of rape is second perhaps only to murder in its gravity. It follows then that Georgia did not approach [p616] such substantive constraints by enacting the statute here in question. See also infra at 619-622.
Statutory provisions in criminal justice applied in one part of the country can be carefully watched by other state legislatures, so that the experience of one State becomes available to all. Although human lives are in the balance, it must be remembered that failure to allow flexibility may also jeopardize human lives --those of the victims of undeterred criminal conduct. See infra at 620. Our concern for the accused ought not foreclose legislative judgments showing a modicum of consideration for the potential victims.
Three state legislatures have, in the past five years, determined that the taking of human life and the devastating consequences of rape will be minimized if rapists may, in a limited class of cases, be executed for their offenses. [n10] That these States are presently a minority does not, in my view, make their judgment less worthy of deference. Our concern for human life must not be confined to the guilty; a state legislature is not to be thought insensitive to human values because it acts firmly to protect the lives and related values of the innocent. In this area, the choices for legislatures are, at best, painful and difficult, and deserve a high degree of deference. Only last Term, MR. JUSTICE WHITE observed:
It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons. This concern for life and human values and the sincere efforts of the States to pursue them are matters of the greatest moment with which the judiciary should be most reluctant to [p617] interfere.
Roberts v. Louisiana, supra at 355 (dissenting opinion). (Emphasis added.)
The question of whether the death penalty is an appropriate punishment for rape is surely an open one. It is arguable that many prospective rapists would be deterred by the possibility that they could suffer death for their offense; it is also arguable that the death penalty would have only minimal deterrent effect. [n11] It may well be that rape victims would become more willing to report the crime and aid in the apprehension of the criminals if they knew that community disapproval of rapists was sufficiently strong to inflict the extreme penalty; or perhaps they would be reluctant to cooperate in the prosecution of rapists if they knew that a conviction might result in the imposition of the death penalty. Quite possibly, the occasional well publicized execution of egregious rapists may cause citizens to feel greater security in their daily lives; [n12] or, on the contrary, it may be that members of a civilized community will suffer the pangs of a heavy conscience because such punishment will be perceived as excessive. [n13] We cannot know which among [p618] this range of possibilities is correct, but today's holding forecloses the very exploration we have said federalism was intended to foster. It is difficult to believe that Georgia would long remain alone in punishing rape by death if the next decade demonstrated a drastic reduction in its incidence of rape, an increased cooperation by rape victims in the apprehension and prosecution of rapists, and a greater confidence in the rule of law on the part of the populace.
In order for Georgia's legislative program to develop, it must be given time to take effect, so that data may be evaluated for comparison with the experience of States which have not enacted death penalty statutes. Today, the Court repudiates the State's solemn judgment on how best to deal with the crime of rape before anyone can know whether the death penalty is an effective deterrent for one of the most horrible of all crimes. And this is done a few short years after MR. JUSTICE POWELL's excellent statement:
In a period in our country's history when the frequency of [rape] is increasing alarmingly, it is indeed a grave event for the Court to take from the States whatever deterrent and retributive weight the death penalty retains.
Furman v. Georgia, 408 U.S. at 459 (dissenting opinion) (footnote omitted). To deprive States of this authority as the Court does, on the basis that
[t]he current judgment with respect to the death penalty for rape . . . weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman,
ante at 596, is impermissibly rash. The current judgment of some Members of this Court has undergone significant change in the short time since Furman. [n14] Social change on great issues generally reveals itself in small increments, and the "current judgment" of many States could [p619] well be altered on the basis of Georgia's experience, were we to allow its statute to stand. [n15](b)
The subjective judgment that the death penalty is simply disproportionate to the crime of rape is even more disturbing than the "objective" analysis discussed supra. The plurality's conclusion on this point is based upon the bare fact that murder necessarily results in the physical death of the victim, while rape does not. Ante at 598-599, 600. However, no Member of the Court explains why this distinction has relevance, much less constitutional significance. It is, after all, not irrational -- nor constitutionally impermissible -- for a legislature to make the penalty more severe than the criminal act it punishes [n16] in the hope it would deter wrongdoing:
We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.
Gregg v. Georgia, 428 U.S. at 175. Accord, Furman v. Georgia, supra at 451 (POWELL, J., dissenting).
It begs the question to state, as does the plurality opinion:
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.
Ante at 598. [p620] Until now; the issue under the Eighth Amendment has not been the state of any particular victim after the crime, but rather whether the punishment imposed is grossly disproportionate to the evil committed by the perpetrator. See Gregg v. Georgia, supra at 173; Furman v. Georgia, supra at 458 (POWELL, J., dissenting). As a matter of constitutional principle, that test cannot have the primitive simplicity of "life for life, eye for eye, tooth for tooth." Rather, States must be permitted to engage in a more sophisticated weighing of values in dealing with criminal activity which consistently poses serious danger of death or grave bodily harm. If innocent life and limb are to be preserved, I see no constitutional barrier in punishing by death all who engage in such activity, regardless of whether the risk comes to fruition in any particular instance. See Packer, 77 Harv.L.Rev. at 1077-1079.
Only one year ago, the Court held it constitutionally permissible to impose the death penalty for the crime of murder, provided that certain procedural safeguards are followed. Compare Gregg v. Georgia, supra; Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), with Roberts v. Louisiana, 428 U.S. 325 (1976), and Woodson v. North Carolina, 428 U.S. 280 (1976). Today, the plurality readily admits that "[s]hort of homicide, [rape] is the ‘ultimate violation of self.'" Ante at 597. Moreover, as stated by MR. JUSTICE POWELL:
The threat of serious injury is implicit in the definition of rape; the victim is either forced into submission by physical violence or by the threat of violence.
Furman v. Georgia, supra at 460 (dissenting opinion). Rape thus is not a crime "light years" removed from murder in the degree of its heinousness; it certainly poses a serious potential danger to the life and safety of innocent victims -- apart from the devastating psychic consequences. It would [p621] seem to follow therefore that, affording the States proper leeway under the broad standard of the Eighth Amendment, [n17] if murder is properly punishable by death, rape should be also, if that is the considered judgment of the legislators.
The Court's conclusion to the contrary is very disturbing indeed. The clear implication of today's holding appears to be that the death penalty may be properly imposed only as to crimes resulting in death of the victim. This casts serious doubt upon the constitutional validity of statutes imposing the death penalty for a variety of conduct which, though dangerous, may not necessarily result in any immediate death, e.g., treason, airplane hijacking, and kidnaping. In that respect, today's holding does even more harm than is initially apparent. We cannot avoid taking judicial notice that crimes such as airplane hijacking, kidnaping, and mass terrorist activity constitute a serious and increasing danger to the safety of the public. It would be unfortunate indeed if the effect of today's holding were to inhibit States and the Federal Government from experimenting with various remedies -- including possibly imposition of the penalty of death -- to prevent and deter such crimes. [p622]
Some sound observations, made only a few years ago, deserve repetition:
Our task here, as must so frequently be emphasized and reemphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today's decision reveals, they are almost irresistible.
Furman v. Georgia, 408 U.S. at 411 (BLACKMUN, J., dissenting).
Whatever our individual views as to the wisdom of capital punishment, I cannot agree that it is constitutionally impermissible for a state legislature to make the "solemn judgment" to impose such penalty for the crime of rape. Accordingly, I would leave to the States the task of legislating in this area of the law.
1. On March 12, 1973, the Superior Court of Richmond County, Ga. sentenced Coker to 20 years' imprisonment for the kidnaping of petitioner's second victim, and to life imprisonment for one act of rape upon her. On May 28, 1973, the Superior Court of Taliaferro County, Ga. sentenced Coker to eight years' imprisonment for aggravated assault upon the same victim, and to life imprisonment for the second rape upon her. On April 6, 1973, the Superior Court of Clayton County, Ga. sentenced Coker to 20 years' imprisonment for the rape of petitioner's first victim, and to life imprisonment for her murder. App. 307-312.
2. The position today adopted by Mr. JUSTICE POWELL constitutes a disquieting shift from the view he embraced several Terms ago in Furman v. Georgia, 408 U.S. 238, 460-461 (1972) (dissenting opinion), where he stated:
While I reject each of [petitioners'] attempts to establish specific categories of cases in which the death penalty may be deemed excessive, I view them as groping toward what is, for me, the appropriate application of the Eighth Amendment. While, in my view, the disproportionality test may not be used either to strike down the death penalty for rape altogether or to install the Court as a tribunal for sentencing review, that test may find its application in the peculiar circumstances of specific cases. Its utilization should be limited to the rare case in which the death penalty is rendered for a crime technically falling within the legislatively defined class but factually falling outside the likely legislative intent in creating the category.
While MR. JUSTICE POWELL purports to dissent from the broadest sweep of the Court's holding, I cannot see that his view differs materially from that of the plurality. He suggests two situations where it might be proper to execute rapists: (1) where the "offense [is] committed with excessive brutality"; and (2) where "the victim sustained serious or lasting injury." The second part of this test was rejected by MR. JUSTICE POWELL himself in Furman, and with good reason:
[T]he emotional impact [upon the rape victim] may be impossible to gauge at any particular point in time. The extent and duration of psychological trauma may not be known or ascertainable prior to the date of trial.
Id. at 460. Can any Member of the Court state with confidence that a 16-year-old woman who is raped in the presence of her husband three weeks after giving birth to a baby "sustained [no] serious or lasting injury"? This bifurcation of rape into categories of harmful and nonharmful eludes my comprehension.
The difficulty with the first part of MR. JUSTICE POWELL's test is that rape is inherently an aggravated offense; in MR. JUSTICE POWELL's own words, "the threat of both [physical and psychological] injury is always present." Id. at 459. Therefore, the "excessive brutality" requirement must refer to something more, I assume, than the force normally associated with physically coercing or overpowering the will of another. Rather, what must be meant is that the rapist has engaged in torture or has committed an aggravated battery upon the victim. See ante at 601-602, and n. 1. However, torture and aggravated battery are offenses separate from rape, and ordinarily are punished separately. The clear negative inference of MR. JUSTICE POWELL's analysis therefore appears to be that, where rape alone is committed, i.e., rape unaccompanied by any other criminal conduct, the death penalty may never be imposed.
3. This Court has consistently upheld the constitutional validity of such punishment-enhancing statutes. See, e.g., Spencer v. Texas, 385 U.S. 554, 559-560 (1967):
No claim is made here that recidivist statutes are . . . unconstitutional, nor could there be under our cases. Such statutes and other enhanced sentence laws, and procedures designed to implement their underlying policies, have been enacted in all the States, and by the Federal Government as well. . . . Such statutes . . . have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.
(Footnote and citations omitted; emphasis added.) Accord, Oyler v. Boles, 368 U.S. 448, 451 (1962).
4. This special danger is demonstrated by the very record in this case. After tying and gagging the victim's husband, and raping the victim, petitioner sought to make his getaway in their automobile. Leaving the. victim's husband tied and gagged in his bathroom, Coker took the victim with him. As he started to leave, he brandished the kitchen knife he was carrying and warned the husband that,
if he would get pulled over or the police was following him in any way, that he would kill -- he would kill my wife. He said he didn't have nothing to lose -- that he was in prison for the rest of his life, anyway. . . .
Testimony of the victim's husband, App. 121 (emphasis added).
5. Professor Packer addressed this:
What are we to do with those whom we cannot reform, and, in particular, those who, by our failure, are thought to remain menaces to life? Current penal theories admit, indeed insist upon, the need for permanent incapacitation in such cases. Once this need is recognized, the death penalty as a means of incapacitation for the violent psychopath can hardly be objected to on grounds that will survive rational scrutiny, if the use of the death penalty in any situation is to be permitted. And its use in rape cases as a class, while inept, is no more so than its use for any other specific offense involving danger to life and limb.
Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1081 (1964). (Emphasis added.)
6. I find a disturbing confusion as to this issue in the plurality opinion. The issue is whether Georgia can, under any circumstances and for any kind of rape -- "mild" or "gross" -- impose the death penalty. Yet the plurality opinion opens its discussion, apparently directed at demonstrating that this was not an "aggravated" rape, saying that, following the rape and kidnaping, "Mrs. Carver was unharmed." Ante at 587. If the Court is holding that no rape can ever be punished by death, why is it relevant whether Mrs. Carver was "unharmed"?
7. While only three Justices have joined MR. JUSTICE WHITE in this portion of his opinion, see separate opinion of MR. JUSTICE POWELL, ante, p. 601, I take this to be the view of the Court in light of MR. JUSTICE BRENNANS and MR. JUSTICE MARSHALL's statements joining the judgment.
8. Only last Term, in Gregg v. Georgia, 428 U.S. 153 (1976), MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS warned that "the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts," and noted that "we may not act as judges as we might as legislators," id. at 174-175. Accord, Roberts v. Louisiana, 428 U.S. 325, 355-356 (1976) (WHITE, J., dissenting). MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS further noted that
[t]he deference we owe to decisions of the state legislatures under our federal system, [Furman v. Georgia, 408 U.S.] at 465-470 (REHNQUIST, J., dissenting), is enhanced where the specification of punishments is concerned, for "these are peculiarly questions of legislative policy." Gore v. United States, 357 U.S. 386, 393 (1958).
428 U.S. at 176. (Emphasis added.)
9. I take no satisfaction in my predictive caveat in Furman:
Since there is no majority of the Court on the ultimate issue presented in these cases, the future of capital punishment in this country has been left in an uncertain limbo. Rather than providing a final and unambiguous answer on the basic constitutional question, the collective impact of the majority's ruling is to demand an undetermined measure of change from the various state legislatures and the Congress.
408 U.S. at 403 (dissenting opinion).
10. The statute here in question does not provide the death penalty for any and all rapes. Rather, the jury must find that at least one statutorily defined aggravated circumstance is present. Ga.Code §§ 23102, 27-2534.1(b)(1), (2), and (7) (1977).
The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, [408 U.S.] at 403-405 (BURGER, C.J., dissenting).
Gregg v. Georgia, 428 U.S. at 186 (joint opinion of STEWART, POWELL, and STEVENS, JJ.).
There are many cases in which the sordid, heinous nature of a particular [rape], demeaning, humiliating, and often physically or psychologically traumatic, will call for public condemnation.
Furman v. Georgia, 408 U.S. at 459 (POWELL, J., dissenting).
13. Obviously I have no special competence to make these judgments, but, by the same token, no other Member of the Court is competent to make a contrary judgment. This is why our system has, until now, left these difficult policy choices to the state legislatures, which may be no wiser, but surely are more attuned to the mores of their communities, than are we.
14. Indeed as recently as 1971 -- a year before Furman -- a majority of this Court appeared to have no doubt about the constitutionality of the death penalty. See McGautha v. California, 402 U.S. 183 (1971).
15. To paraphrase MR. JUSTICE POWELL,
[w]hat [the Court is] saying, in effect, is that the evolutionary process has come suddenly to an end; that the ultimate wisdom as to the appropriateness of capital punishment [for adult rape] under all circumstances, and for all future generations, has somehow been revealed.
Furman v. Georgia, supra at 430-431 (dissenting opinion).
16. For example, hardly any thief would be deterred from stealing if the only punishment upon being caught were return of the money stolen.
17. MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, in Gregg v. Georgia, noted:
[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure [of the Eighth Amendment], we presume its validity. . . . [A] heavy burden rests on those who would attack the judgment of the representatives of the people.
428 U.S. at 175 (emphasis added). Accord, Furman v. Georgia, supra at 451 (POWELL, J., dissenting).
The reason for this special deference to state legislative enactments was described:
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. "[I]n a democratic society, legislatures, not courts, are constituted to respond to the will, and, consequently, the moral values, of the people." Furman v. Georgia, [408 U.S.] at 383 (BURGER, C. J., dissenting). 428 U.S. at 175-176.