DISPROPORTIONALITY AND THE DEATH PENALTY - DEATH AS A PUNISHEMENT FOR RAPE

• NCJ Number: 53880
• Journal: University of Pittsburg Law Review Volume: 38 Issue: 2 Dated: (WINTER 1976) Pages: 145-184
• Author(s): W S WHITE
• Date Published: 1977
• Length: 39 pages
• Corporate Author: University of Pittsburgh
• Publication Format: Article
• Publication Type: Survey
• Language: English
• Country: United States of America

Annotation

THE QUESTION OF WHETHER DEATH IS A CONSTITUTIONALLY DISPROPORTIONATE PUNISHMENT FOR RAPE NOT RESULTING IN DEATH IS ADDRESSED.

Abstract

THE DOCTRINAL BASIS FOR THE CONCEPT OF PROPORTIONALITY IS EXAMINED, AND CRITERIA TO BE USED IN DETERMINING WHETHER A PARTICULAR SENTENCE AND CRITERIA TO BE USED IS A CONSTITUTIONALLY DISPROPORTIONATE PUNISHMENT FOR A PARTICULAR CRIME ARE IDENTIFIED. THESE CRITERIA, DERIVED FROM U.S. SUPREME COURT ANALYSES IN WEEMS V. UNITED STATES (1910) AND GREGG V. GEORGIA (1976) FALL INTO FIVE CATEGORIES: JUDGMENT AS TO THE SERIOUSNESS OF THE CRIME IN QUESTION, COMPARISON OF THE PUNISHMENT IN QUESTION WITH PENALTIES IMPOSED FOR MORE SERIOUS OFFENSES, EVALUATION OF THE HISTORY OF THE PUNISHMENT, ANALYSIS OF LEGISLATIVE TRENDS, AND ASSESSMENT OF THE EXTENT TO WHICH JURIES ACTUALLY APPLY THE PUNISHMENT. THE DOCTRINE OF PROPORTIONALITY, AS EMBODIED IN THESE CRITERIA, IS APPLIED TO DEATH AS A PUNISHMENT FOR RAPE. THE ANALYSIS SHOWS THAT DEATH AS A PUNISHMENT FOR RAPE IS ON THE STATUTE BOOKS IN ONLY SEVEN JURISDICTIONS. WITHIN THESE JURISDICTIONS, CRIMES INDISPUTABLY MORE SERIOUS THAN RAPE ARE SUBJECT TO LESSER PUNISHMENT THAN DEATH, AND JURIES HAVE BEEN UNWILLING TO APPLY THE DEATH PENALTY EVEN-HANDEDLY, RESERVING IT FOR BLACK MEN CONVICTED OF RAPING WHITE WOMEN. IN VIEW OF THE OVERWHELMING EVIDENCE THAT SOCIETY REPUDIATES THE DEATH PENALTY FOR RAPE, IT IS CONCLUDED THAT THE SUPREME COURT WOULD BE JUSTIFIED IN HOLDING THAT DEATH IS A DISPROPORTIONATE PUNISHMENT FOR RAPE. FOUR TABLES ARE INCLUDED: A SUMMARY OF PENAL CODE PROVISIONS FOR RAPE AND MURDER IN THE SEVEN STATES IN WHICH DEATH IS A PENALTY FOR RAPE; A STATE-BY-STATE SUMMARY OF PENAL CODE PROVISIONS FOR RAPE; UNIFORM CRIME REPORT NATIONAL STATISTICS ON RAPE FOR 1964 THROUGH 1975; AND NATIONAL STATISTICS, BROKEN DOWN BY REGION, FOR DEATH SENTENCES FOR RAPE IMPOSED IN 1961 THROUGH 1974. (LKM)