Friday, June 27, 2008

Kennedy v. Louisiana, and Coker

Judge White's opinion in Coker v. Georgia is controlling precedent. Yes, only four judges signed it, but 2 others wanted to go much farther in banning the death penalty. Despite the issues raised in oral argument which we discussed yesterday, this fact should be beyond dispute.

White wrote an opinion that struck down the death penalty for rape. The specific case before the court involved the rape of an adult woman (Or did it? - more on this later). But that doesn't mean that the rule used to decide the case couldn't be broader - that it couldn't be used to decide whether the death penalty was OK for other kinds of crimes - or at least other kinds of rape. The case before the court in yesterday's Heller decision, for example, only concerned a specific gun ban in the District of Columbia - but everyone agrees that rule in Heller could be used to strike down other types of gun prohibitions in other places.

To be clear, some of White's opinion dealt specifically with adult rape. In the beginning of his analysis, for example he looked for "objective evidence" of current feelings on the death penalty for rape. He concluded that Georgia was the only state that currently allowed the death penalty for the rape of an adult woman, while acknowledging that three other states allowed the death penalty where the victim was a child.

But that finding was not the basis of the opinion. "The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment, " wrote White. In the key portion of Coker, the one cited by everyone, including Kennedy's opinion, he said the following (our numbering will be explained below):

We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total contempt for the
personal integrity and autonomy of the female victim and for the latter's
privilege of choosing those with whom intimate relationships are to be
established. Short of homicide, it is the "ultimate violation of self." It is
also a violent crime because it normally involves force, or the threat of force
or intimidation, to overcome the will and the capacity of the victim to resist.
Rape is very often accompanied by physical injury to the female and can
also inflict mental and psychological damage. Because it undermines the
community's sense of security, there is public injury as well.

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 (1). 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 (2). The murderer kills; the rapist, if no more than that, does not (3). 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 (4) and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," is an excessive penalty for the rapist who, as such, does not take human life (5).

. . .

Neither of [the aggravating circumstances of Coker's crime], nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies - rape, murder, and kidnaping - but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life. (6)

. . .

It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim. (7)

White unequivocably says that rape is awful - in fact, he says that it's worst thing that one human being can do to another short of killing them. But do you see the secret message of his opinion? The one he repeats seven times! Rape is not murder! Why? Because rape does not (necessarily) involve killing someone!

Try as we might, we cannot interpret this opinion as anything other than a categorical prohibition of the death penalty for crimes that do not cause death. That would include rapes where the victim is a child. If this language does not convince you, however, consider three other things:

Powell's opinion: As we noted yesterday, Judge Lewis Powell agreed that the death penalty was unconstitutional for Mr. Coker under the facts of the case. He thought, however, that it might be OK for other types of rape (ones committed with "excessive brutality" or where the victim "sustained serious and lasting injury"). He described White' opinion:
The plurality, however, does not limit its holding to the case before us or to
similar cases. Rather, in an opinion that ranges well beyond what is necessary,
it holds that capital punishment always - regardless of the circumstances - is a
disproportionate penalty for the crime of rape.

We don't think Powell goes quite far enough here - the rule in White's opinion would apply to all non-homicide crimes, not just rape. But Powell does concludes that the death penalty is prohibited for all rapes, which would include the child rape involved in Kennedy v. Louisiana.

The facts of Coker: Mr. Coker (1) was already a convicted murderer and rapist who (2) escaped from prison, (3) broke into the home of the victim, (4) held a knife up to her, (5) raped her (6) in front of her husband, then (7) stole her car, and (8) kidnapped her.

We'll add one other fact, a fact we were not aware of until we read the majority opinion in Kennedy. The victim in Coker was only 16 years old - a minor under Georgia law (she was also married and had a son).

Granted, the facts of the crime in Kennedy (which involved an eight-year victim) were also horrible (the opinion discusses them at some length). We have no opinion on which of these crimes is more awful. But if the first crime is not a death penalty offense, it's not obvious to us why the second one would be. Indeed, it's not clear to us how any other rape (that did not also involve killing) could be so much worse than that in Coker that it would literally mean the difference between life and death. The place for such distinctions in Coker was Justice Powell's opinion - which he wrote because he disagreed with White's controlling opinion. (Question: What was Powell smoking when he concluded the rape in Coker did not involve excessive brutality or lasting harm to the victim?)

Subsequent Opinions: We'll quote ourselves on this one:
Commentators and courts have generally agreed that the Coker decision prohibits
the death penalty for crimes against individuals that do not involve the taking
of another human life
, such as kidnapping or the rape of a child (citation

If you don't believe us, though, he's what a Supreme Court justice had to say about the issue in Kennedy:
The implications of the Coker plurality opinion were plain. Justice Powell, who concurred in the judgment overturning the death sentence in the case at hand, did not join the plurality opinion because he understood it to draw "a bright line between murder and all rapes--regardless of the degree of brutality of the rape or the effect upon the victim." If Justice Powell read Coker that way, it was reasonable for state legislatures to do the same.

Understandably, state courts have frequently read Coker in
precisely this way

So Kennedy was easily decided? No - we because we have yet to reveal the surprise twist! The author of the language above was Alito - who wrote the dissent, which wanted to uphold the Louisiana child rape death penalty! J. Kennedy, who wrote the opinion striking down the law, wrote this about Coker

Coker's analysis of the Eighth Amendment is susceptible of a
that would prohibit making child rape a capital offense. In
context, however, Coker's holding was narrower than some of its language read in
isolation. The Coker plurality framed the question as whether, "with respect to
rape of an adult woman," the death penalty is disproportionate punishment. And
it repeated the phrase "an adult woman" or "an adult female" in discussing the
act of rape or the victim of rape eight times in its opinion. The distinction between adult and child rape was not merely rhetorical; it was
central to the Court's reasoning
. The opinion does not speak to the
constitutionality of the death penalty for child rape, an issue not then before
the Court.

As we discuss above, this is simply not a convicing argument. But put that aside - why is J. Kennedy, in ruling the death penalty for child rape unconstitutional, dismissing Coker, which is loaded with language and facts directly on point for what he wants to do?

There is an answer to this question, which we will discuss in our next post. Sneak Preview: Kennedy is Making Things Harder Than They Need to Be.

WHO IS BYRON WHITE?: The author of Coker's controlling opinion was appointed by President Kennedy and served on the Warren Court, but he was no liberal. "His jurisprudence has sometimes been praised for adhering to the doctrine of judicial restraint." No friend of criminal defendants, he dissented in the famous Miranda decision, and was also one of two judges who dissented in Roe v. Wade

WHAT'S WRONG WITH THE DEATH PENALTY FOR RAPE?: White's opinion discusses the obvious at some length - rape is not as bad as murder because it does not involve killing. But why does this necessarily mean that rape, unlike murder, cannot be a death penalty offense? White's opinion is opaque on this point - but he does drop a hint as to his reasoning at the end. With just a bit of speculation, we'll try to answer this question next week.

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