FindLaw.com columnist Sherry Colb writes, "Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument."
As I discussed in an earlier column, this will not be the first time that the Supreme Court has considered whether to classify the crime of rape as insufficiently serious to warrant capital punishment. In Coker v. Georgia, the Supreme Court found the death penalty to be a grossly disproportionate and therefore unconstitutional punishment for the rape of an adult woman. The Justices reasoned that even though rape is a serious offense, its victims live to see another day and therefore cannot rightly demand the ultimate retribution.
There was no opinion for the Court in Coker. Justice White wrote a plurality opinion, onto which three other Justices (Blackmun, Stevens, and Stewart) signed. Justices Brennan and Marshall concurred in the judgment, reiterating their view that the death penalty is unconstitutional under all circumstances. Justice Powell wrote separately, stating that with additional aggravating circumstances such as permanent injury or excessive brutality, he might approve of the death penalty for rape. And finally, Chief Justice Burger, joined by then-Justice Rehnquist, dissented; both would have upheld the death penalty for rape.
Why analyze the composition of the various opinions in Coker? One reason is that at least some of the currently sitting Justices care deeply about stare decisis (the force of precedent) and might hesitate to uphold the death penalty for the rape of a child, if they viewed the earlier ruling as effectively deciding that no rape can constitutionally trigger an execution. For such Justices, the lack of a majority opinion for any one position might be seen as leaving the holding in Coker up for grabs and therefore entitled to less deference. Of course, even if there had been a majority opinion, the proposition that the rape of an "adult woman" may not be punished by death could, in theory, be distinguished from the proposition that execution is a disproportionate penalty for the rape of a child.
Earlier coverage of Kennedy v. Louisiana is here. More on Coker v. Georgia, the 1977 U.S. Supreme Court that ruled the death penalty an unconstitutional punishment for non-homicidal rape of an adult, is here. The Jessica's Law index is here.
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