Is Capital Punishment Too Harsh for Rapists?
A Louisiana Jury Sentences a Child's Rapist to Death

Last month, in Louisiana, Patrick O. Kennedy was sentenced to death for the rape of an eight-year-old child. The state law under which he was sentenced, passed in 1995, permits the death penalty for the rape of a child under the age of 12.

If the sentence withstands appellate challenges in state court, the U.S. Supreme Court is likely to grant review, because the issue presented is both important and relatively untested within our federal jurisprudence: Does the Eighth Amendment's ban on cruel and unusual punishments prohibit the imposition of capital punishment upon those whose crimes do not cause a victim's death?

In 1977, the United States Supreme Court ruled in Coker v. Georgia that the rape of an adult woman may not constitutionally be punished by execution. A plurality of the Court reasoned that such a punishment would be "grossly disproportionate" to the crime of rape, because the rapist does not take the life of his victim. The opinion explained that "[l]ife 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."

By specifying the question presented as concerning the "rape of an adult woman," the Court left open at least two questions: May a state execute the rapist of a child (of either sex)? And, may the rapist of an adult man be legitimately punished with death?

The Louisiana child rape case plainly raises the first question. But it also implicitly invites us to reconsider the Coker decision regarding the execution of rapists more generally.

Why Reconsider Coker?

At this point, readers may wonder why I would propose revisiting Coker, when the Supreme Court could simply leave that decision in place and limit itself to exploring the questions left open there.

One reason is that nothing about the Court's arguments in Coker provides convincing grounds for distinguishing between rapists, based on the age or identity of their victims. If the death penalty is excessive because adult rape victims survive their victimization, then the very same logic should hold true in the case of child rape. People might view one crime as worse than the other, but neither, by definition, entails a victim's death.

It is arbitrary, moreover, to treat child rape as qualitatively more heinous than the "rape of an adult woman," for death penalty purposes. To do so minimizes the devastation of rape for women, because it suggests that although the rape of one category of people is bad enough to call for execution, adult women do not qualify - as a matter of constitutional law - for inclusion in that category.

Put another way, predators of adult female victims - by contrast to predators of children - can claim that what they did is not really bad enough to merit death, that death is actually "grossly disproportionate" to rapes against these victims.

Disturbingly, it is not only the rape of adults, but the rape of women in particular, that Coker specially exempts from the death penalty. None of the Justices in Coker explicitly mentioned male victims of rape. One wonders, however, whether the homophobia of Justice Byron White might have led him to conclude that male-on-male, but not male-on-female, rape could merit death. (White authored Bowers v. Hardwick, a decision finally overruled last term in Lawrence v. Texas). After all, why would the Justices in Coker have emphasized the gender of a victim, if not to imply that it might carry some significance?

Imagine, for illustrative purposes, an opinion in which the Court identified the question it faced as whether the death penalty is grossly disproportionate punishment for the rape of white Mormons, or of black Baptists, and declared that it was limiting its discussion to that issue alone. It is difficult, in 2003, even to imagine the Court framing the issue in these ways.

The Role of Race in Coker

For another reason to revisit Coker, consider the role that race played in that decision. Without ever mentioning the word "race" explicitly, the main opinion is widely regarded as representing a response to the toxic history of interracial rape accusations in this country. Lynch mobs, for example, often cited, in defense of their atrocities, the need to protect the "purity" of white women from black rapists.

False accusations of black-on-white rape abounded during the post-Civil-War era, with often-deadly results for the black men accused. And the men convicted of rape and sentenced to death were typically black, and their victims white.

In reacting to a purportedly "gross disproportion" in the imposition of penalties for rape, then, the Court could not have avoided the stunning disparity between the criminal justice system's response to black-on-white rape, on the one hand, and to all other instances of rape, on the other. Due to such differential treatment, moreover, the image of punishing a black man for raping a white woman has come to exemplify white supremacy in the United States.

The history of racism in accusations and punishments for rape is sordid and shameful. It calls for serious introspection on the part of our nation. The opinions in Coker, however, fail to address that history at all. Instead, the plurality fixates on how much less serious rape is than murder. By doing so, it effectively attempts to remedy racist injustice by trivializing misogynist violence.

To similar effect, then-Judge Clarence Thomas accused the Senate of engaging in a "high-tech lynching" for calling him to task in connection with his alleged sexual harassment of Anita Hill. Thomas testified that he did not even listen to Hill's testimony and thereby suggested that for the Senate even to consider such an allegation, when leveled at a black man, itself constitutes racism. As readers may recall, the accusation had its intended effect, and the arch-conservative Justice Thomas was subsequently confirmed by a Senate dominated by Democrats who might otherwise have opposed him.

The Role of Race in the Death Penalty More Generally

It is, of course, not exclusively in cases of rape that the death penalty has been disproportionately visited upon African-American defendants for interracial crimes. As studies have demonstrated, the death penalty has for a long time been disproportionately applied to black-on-white murder as well.

Notwithstanding this disparity, however, the Supreme Court has not declared the death penalty unconstitutional under all circumstances. Unless the Court is prepared to do so across the board, it is therefore not appropriate to try to protect one vulnerable group (African-Americans) by minimizing the outrages committed against another (adult females). It is not, in other words, inherently racist to execute rapists, any more than it is inherently racist to execute murderers.

Certainly, the imposition of criminal penalties generally may be racially determined, to some extent. Harvard Law Professor Randall Kennedy has persuasively argued, for instance, that jurors selectively empathize with victims of their own race. But this problem transcends the crime of rape, and thus its consideration must similarly extend beyond and leave behind this country's history of overlooking misogynist violence and female subordination.

Proportionality: Is Death Always Too Great a Punishment For Rape?

So far, I have focused on potentially dubious distinctions implicitly drawn by the Coker plurality and on the potentially flawed displacement of the majority's proper outrage about racial injustice onto the improper target of punishment for the crime of rape. But on the merits, how strong is the argument that death is too harsh a punishment for a crime of rape that does not end in murder?

Perhaps the retributive philosophy of "an eye for an eye" precludes the taking of a life for a rape. The disproportion between rape and death, however, is by no means self-evident. And as the dissent in Coker explains, a punishment that is no more severe than the crime it punishes often has little power to deter the crime in question, because many criminals can count on avoiding apprehension. "For example," argues the dissent, "hardly any thief would be deterred from stealing if the only punishment upon being caught were return of the money stolen."

In the particular case at issue in Coker, the defendant was already serving a term of life imprisonment when he escaped and raped the 16-year-old Mrs. Carver (the "adult woman" in question). Coker had previously been convicted of murder, rape, kidnapping, and aggravated assault. Short of executing him, it is hard to imagine either deterring or incapacitating this man from further violent behavior. Without a death penalty, in fact, the State was not in a position to impose any punishment upon Coker at all.

One might, of course, take the view that proportionality in sentencing trumps the need to serve instrumental objectives such as deterrence and incapacitation. Even on the basic question of retributive justice, however, murder is not necessarily the only or even the most heinous crime that one person might commit against another. Many consider torture, for example, to be worse than murder. For that reason, U.S. law rejects physically brutal but non-lethal penalties such as limb amputation, even as it permits the death penalty.

Like torture, the harm of rape can leave its survivors with irreparable psychiatric injury which sometimes leads ultimately to suicide. Though alive, what such victims have lost could therefore arguably merit the most serious punishment that the law has to offer.

Life Versus Death: The Strange Eighth Amendment Divide

Last, but not least among the arguments for reconsidering Coker is the peculiar divide between Eighth Amendment precedents regarding death, on the one hand, and life imprisonment, on the other.

The Supreme Court has embraced an Eighth Amendment proportionality principle, for both capital and other offenses. Yet the same Court has upheld a penalty of mandatory life imprisonment without parole for possession of 672 grams of cocaine. It has similarly upheld a life sentence imposed upon a person convicted of fraudulently obtaining money and property totaling under $250. And most recently, in Lockyer v. Andrade, it upheld two consecutive terms of 25 years to life imprisonment under three strikes legislation against a person whose two triggering "strikes" were the theft of videotapes from K-mart, totaling under $160 in value.

Whatever one thinks of execution for rape, it seems a far less disproportionate penalty than a lifetime of confinement in a prison cell, for nonviolent, petty property crimes against a corporate entity. If the Court is serious about proportionality review, it should begin by applying that review to something other than the severity of penalties for rape and other violent crimes. Its failure to do so discredits the entire enterprise, along with its claims about gross disproportion with respect to rape and the death penalty.

Targeting Rape For Trivialization

As I have proposed, there are many arguments for reconsidering and overruling Coker. As I have explained in an earlier column, however, I am sympathetic with the view that the death penalty should be abolished, regardless of how undeserving of solicitude the typical person subjected to execution might be.

Nonetheless, opposition to the death penalty is not necessarily a reason to embrace or leave standing the decision in Coker v. Georgia. The Coker opinion does not simply condemn a subset of executions. It makes a value judgment about rape and deems this crime to be qualitatively not serious enough for the ultimate punishment.

This judgment, in turn, trivializes the suffering of rape. Perhaps it is time for this Court - one that generally defers (to an arguably alarming extent) to legislative judgments about retributive justice - to reconsider whether it is appropriate to continue to single out the rape of an adult woman as the one intentional, violent crime to be explicitly and uniquely shielded from the most severe of penalties. The current Louisiana case provides a welcome opportunity for such a reconsideration.