Legacy and the Human Cost of Judicial Activism
de Tocqueville noted in Democracy
legislators of the United States, who have made almost all the clauses
of the penal code milder, punish rape with death, and there are
no crimes that public opinion pursues with more inexorable ardor.
That is understandable: since the Americans think nothing more precious
than the honor of woman, and nothing more deserving of respect than
her independence, they consider that there is no punishment too
severe for those who take them away from her against her will."
contrasted American policy with his native France, "where the
same crime is punished with far milder sentences" and "it
is often difficult to find a jury that will convict.")
this vein, Lew Rockwell asks on November 3 regarding the courtroom
chuckling of two alleged gang rapists, "Now remind me: why
isn't there a death penalty for rape?" Like so many questions
of policy, the answer lies in the Supreme Courtís chronic suffocation
is fitting that Georgia is where a thirteen-year-old mentally handicapped
girl was raped by up to twenty-five individuals over a fourteen
to fifteen hour interval. In 1977, the Supreme Court barred the
death penalty for rape in a case involving another Georgia rapist.
Justice Warren Burger gave a restrained overview of the facts in
Coker v. Georgia:
December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and
then stabbed to death a young woman. Less than eight months later
Coker kidnaped and raped a second young woman. After twice raping
this 16-year-old victim, he stripped her, severely beat her with
a club, and dragged her into a wooded area where he left her for
dead. He was apprehended and pleaded guilty to offenses stemming
from these incidents. He was sentenced by three separate courts
to three life terms, two 20-year terms, and one 8-year term of imprisonment.
Each judgment specified that the sentences it imposed were to run
consecutively rather than concurrently. Approximately 1 1/2 years
later, on September 2, 1974, petitioner escaped from the state prison
where he was serving these sentences. He promptly raped another
16-year-old woman in the presence of her husband, abducted her from
her home, and threatened her with death and serious bodily harm.
It is this crime for which the [death] sentence now under review
of Burgerís brethren deemed Cokerís sentence unconstitutionally
cruel and unusual under the Eighth Amendment. Justice Whiteís majority
opinion grounded its nullification in a proportionality standard,
Georgiaís penalty being "grossly disproportionate and excessive
punishment." Justices Brennan and Marshall reaffirmed their
vacuous view that capital punishment is inherently unconstitutional.
(Now donít be a textual bore and bring up constitutional sanction
for the death penalty. Donít you know such iniquity is anachronistic
in a humane America where murderers should live out their days while
their victims live no more?)
Cruel and Unusual Punishments Clause does not give the Members of
this Court license to engraft their conceptions of proper public
policy onto the considered legislative judgments of the States,"
observed Burger in dissent, joined by Justice Rehnquist. While some
states may consider rape felonious but not warranting capital punishment,
others may decide this atrocity merits the infliction of death.
Federalism compels neither policy, recognizing the prerogative of
states to work out this matter for themselves. In short, the standardization
mandated by the Coker majority defied the American design, snubbed
self-government, and supplanted it with the raw judicial power Justice
White wrote of in Roe v. Wade. Cognizant of this, Burger wrote,
"[T]oday's holding forecloses the very exploration we have
said federalism was intended to foster."
is not anomalous but emblematic of the Courtís penchant for taking
an ax to autonomy. This Paul Bunyan jurisprudence maintains its
pernicious momentum. (Consider the recent City of Chicago v. Morales
and Stenberg v. Carhart, respectively invalidating an anti-gang
ordinance and Nebraska law against partial birth abortion. Note
that Coker, Morales, and Stenberg were decided by overwhelmingly
back on Coker twenty-three years later, it did much more than nullify
a constitutionally protected tradition; it imposed a circumstance
where the State of Georgia cannot inflict just punishment upon those
who ravaged a child. This is a particularly loathsome ramification
of our activist judiciary.
Kantor lives in Boynton Beach, Florida.