Coker’s Legacy and the Human Cost of Judicial Activism

by Myles Kantor

Alexis de Tocqueville noted in Democracy in America:

"The 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."

(Tocqueville 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.")

In 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 Court’s chronic suffocation of self-government.

It 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.

Chief Justice Warren Burger gave a restrained overview of the facts in Coker v. Georgia:

"On 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 was imposed."

Seven of Burger’s brethren deemed Coker’s sentence unconstitutionally cruel and unusual under the Eighth Amendment. Justice White’s majority opinion grounded its nullification in a proportionality standard, Georgia’s penalty being "grossly disproportionate and excessive punishment." Justices Brennan and Marshall reaffirmed their vacuous view that capital punishment is inherently unconstitutional. (Now don’t be a textual bore and bring up constitutional sanction for the death penalty. Don’t you know such iniquity is anachronistic in a humane America where murderers should live out their days while their victims live no more?)

"[T]he 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."

Coker is not anomalous but emblematic of the Court’s 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 Republican-appointed courts.)

Looking 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.

November 10, 2000

Myles Kantor lives in Boynton Beach, Florida.