CONSTITUTIONAL LAW - CRIMINAL LAW - EIGHTH AMENDMENT - DEATH AS A PENALTY FOR RAPE IS CRUEL AND UNUSUAL PUNISHMENT

• NCJ Number: 50027
• Journal: Wisconsin Law Review Volume: 1978 Issue: 1 Dated: (1978) Pages: 253-268
• Author(s): S CHANDLER
• Date Published: 1978
• Length: 16 pages
• Corporate Author: Wisconsin Law Review
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

TWO U.S. SUPREME COURT DECISIONS, COKER V. GEORGIA (1977) AND GREGG V. GEORGIA (1976), ARE EXAMINED TO ESTABLISH THOSE CRIMES PUNISHABLE BY DEATH. COKER STATES THAT CAPITAL PUNISHMENT IS NOT PERMISSIBLE FOR RAPE.

Abstract

THE TWO CASES, CONSIDERED TOGETHER, ESTABLISH THE CONDITIONS UNDER WHICH THE DEATH PENALTY IS CONSIDERED TO BE CRUEL AND UNUSUAL PUNISHMENT AND, THEREFORE, IN VIOLATION OF THE EIGHTH AMENDMENT. IN THE COKER DECISION, THE U.S SUPREME COURT NOTED THAT PRIOR CASES HAD ESTABLISHED THAT THE EIGHTH AMENDMENT BARS NOT ONLY 'BARBARIC' PUNISHMENTS BUT ALSO PUNISHMENTS THAT ARE EXCESSIVE IN RELATION TO THE CRIME. IT HELD THAT INFLICTING THE DEATH PENALTY FOR THE CRIME OF RAPING AN ADULT WOMAN WAS UNCONSTITUTIONAL BECAUSE IT WAS GROSSLY OUT OF PROPORTION TO THE SEVERITY OF THE CRIME. THE FEDERAL GOVERNMENT, AS RECENTLY AS 1971, AUTHORIZED THE DEATH PENALTY IN CASES OF RAPE, AS DID 16 STATES. MOST OF THESE STATUTES SUBSEQUENTLY WERE INVALIDATED BY FURMAN V. GEORGIA (1972), WHICH FOUND CAPITAL PUNISHMENT AS APPLIED IN MOST STATE JURISDICTIONS TO BE IN VIOLATION OF THE EIGHTH AMENDMENT. FOLLOWING THE FURMAN DECISION, THREE STATES REENACTED LAWS ESTABLISHING THE DEATH PENALTY FOR RAPE. TWO OF THESE WERE INVALIDATED BY FURTHER COURT ACTIONS. AT THE TIME OF THE COKER DECISION IN 1975, GEORGIA WAS THE ONLY STATE THAT STILL PERMITTED THE DEATH PENALTY FOR RAPE. COKER NOW MAKES ALL SUCH STATUTES UNCONSTITUTIONAL. COKER DETERMINED THAT PAST CRIMINALITY, INCLUDING CONVICTIONS FOR MURDER, RAPE, AND KIDNAPING, DOES NOT JUSTIFY THE IMPOSITION OF THE DEATH PENALTY FOR THE SUBSEQUENT CRIME OF RAPING AN ADULT WOMAN. BY REFUSING TO CONSIDER PAST CRIMINALITY, THE COURT IGNORED A CONSIDERABLE BODY OF STATUTORY AND CASE LAW AND LEFT UNANSWERED THE QUESTION OF WHAT CAN BE DONE TO PROTECT SOCIETY FROM CRIMINALS WHO REPEATEDLY ENGAGE IN VIOLENT BEHAVIOR. THE TWO CASES TOGETHER DO ESTABLISH THAT CAPITAL PUNISHMENT IS PERMISSIBLE FOR THE CRIME OF DELIBERATE MURDER, BUT ITS CONSTITUTIONALITY IS DOUBTFUL FOR ALL OTHER CRIMES, INCLUDING FELONY MURDER. TREASON AND AIRPLANE HIJACKING SEEM TO BE THE ONLY OTHER CRIMES FOR WHICH THE DEATH PENALTY MAY BE FOUND CONSTITUTIONALLY PERMISSIBLE. (GLR)