This landmark Supreme Court case outlawed the death penalty for rape
It’s actually a recent exception — with a really ugly history
“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,” wrote Supreme Court Justice Byron White in his 1977 Coker v. Georgia majority 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. We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability’…is an excessive penalty for the rapist.”
With that, the Court had pronounced on the long, fraught history of what is or isn’t an appropriate punishment for rape — still a hotly contentious subject today.
In 1974, a convicted murderer and twice-convicted rapist named Ehrlich Coker escaped from a prison in Georgia and raped yet another woman, at knifepoint. At that time, Georgia was the only state in the country in which the rape of an adult, without death or intent to kill, was itself punishable by death.
Coker was in fact sentenced to die in the electric chair. But his lawyers took his case all the way to the U.S. Supreme Court — arguing that Georgia needed to follow the rest of the nation in removing rape from its list of capital felonies.
Most states had stopped applying the death penalty for rape in the early 20th century, agreeing that execution was a disproportionate punishment for rape. The last holdouts were almost all Southern states — Georgia, of course, but also North Carolina, Louisiana, Mississippi and Tennessee, to varying degrees. It’s no surprise that these states were concentrated in the South. Executing people for rape was a practice deeply entrenched in the region.
And though Coker happened to be white, the history of such laws had everything to do with black men.
In the antebellum South, writes Douglas Wholl, “The mere accusation of a slave raping a White woman guaranteed the conviction and execution of the slave, which often involved torture and mutilation (e.g., being tied to a stake and burned alive; being hanged and then having one’s severed head placed on a stake, having one’s private parts cut off and thrown in one’s face).”
After the Civil War, extralegal lynchings were common, and while it is hard to tally, black men’s alleged rape of white women was often a chief justification.
Within the legal realm, a study conducted by the research team Wolfgang and Riedel in 11 Southern states found that seven times more blacks than whites were executed for rape between 1945 and 1965. (During this period, black people made up less than half the population in every Southern state.) The study also found that blacks who were convicted of raping whites received the death penalty in 36% of cases, while the comparable rates for blacks convicted of raping blacks and whites convicted of raping whites was 2%.
Louisiana executed 14 people for rape between 1941 and 1971. All 14 were black. Thirteen were executed for raping a white woman. The other was a serial rapist of black women, betraying a disturbing calculus for the sanctity of black women’s integrity compared to white women’s.
A similar study in Texas found that the vast majority of death-sentenced rape defendants were black, and that 95% of their victims were white women. It concluded that “when a black offender was convicted of raping a white woman, he was virtually assured of a death sentence.”
This was before DNA testing, and before it became illegal to discriminate by race in jury selection. Wolfgang and Riedel determined that racial bias was the only possible factor that could account for this disparity in the courtroom. Criminologists tended to agree. “The selective employment by Southern states of capital punishment in rape cases,” according to criminologist Dennis Doran, was “one of the most pernicious forms of racial discrimination” in the 20th century.
In 1971, the Supreme Court’s Furman v. Georgia decision resulted in a federal moratorium on the death penalty for all crimes. The moratorium lasted five years, during which more than 30 states amended their capital punishment laws to mollify the Court’s dissatisfaction with the arbitrariness of death penalty statutes nationwide.
When the death penalty was reinstated in 1976 — on the provision that states would use stricter sentencing guidelines — only North Carolina, Louisiana and Georgia still opted to consider rape a capital offense. North Carolina’s and Louisiana’s were quickly struck down, making Georgia the last state in the South that still wanted to execute people for rape of an adult without death or intent to kill.
Coker v. Georgia made its way to the Supreme Court in this context, and served as a referendum on whether it was ever constitutional to execute someone for rape. In a plurality decision, the justices decided that, while rape is a serious crime — indeed “short of homicide, it is the ultimate violation of self” — it didn’t compare with murder, and execution would therefore be an excessive punishment. It thus violates the Eighth Amendment, which forbids punishment that “is grossly out of proportion to the severity of the crime.”
While race wasn’t an explicit factor in the Court’s decision, Coker v. Georgia ended the racial disparity in death sentences for rape by ending such sentences altogether.
Well, mostly.
One exception remained: in several states, it was still possible to apply the death penalty to the rape of a child. The Supreme Court didn’t invalidate execution for child rape until 2008, in the Kennedy vs. Louisiana case. The ACLU and the NAACP joined together to submit an amicus brief in that case, arguing that the death penalty for child rape continued to be disproportionately applied to black men. Part of Kennedy’s legal team’s rationale for taking the case to the Supreme Court was a fear that capital punishment for rape might make a comeback, with its racial implications, if every kind of rape weren’t excluded from the list of capital offenses, including child rape.
The Court found that capital punishment even for child rape — regardless of how horrific — was “cruel and unusual punishment,” and struck down the nation’s remaining provisions for such a sentence.
But while the death penalty for rape is categorically unconstitutional, for many people the question of whether a victim’s life “is not over and normally is not beyond repair” remains open.
