COKER v. GEORGIA
No. 75-5444
Supreme Court of the United States
Argued March 28, 1977—Decided June 29, 1977
433 U.S. 584
David E. Kendall argued the cause for petitioner. With him on the briefs were E. Kontz Bennett, Jr., Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam.
MR. JUSTICE WHITE announced the judgment of the Court and filed an opinion in which MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, and MR. JUSTICE STEVENS, joined.
While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga., on September 2, 1974. At approximately 11 o‘clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a “board,” he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver‘s money and the keys to the family car. Brandishing the knife and saying “you know what‘s going to happen to you if you try anything, don‘t you,” Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.
Petitioner was charged with escape, armed robbery, motor vehicle theft, kidnaping, and rape. Counsel was appointed to represent him. Having been found competent to stand trial, he was tried. The jury returned a verdict of guilty, rejecting his general plea of insanity. A sentencing hearing was then conducted in accordance with the procedures dealt with at length in Gregg v. Georgia, 428 U. S. 153 (1976), where this Court sustained the death penalty for murder when imposed pursuant to the statutory procedures.3 The jury was
instructed that it could consider as aggravating circumstances whether the rape had been committed by a person with a prior record of conviction for a capital felony and whether the rape had been committed in the course of committing another capital felony, namely, the armed robbery of Allen Carver. The court also instructed, pursuant to statute, that even if aggravating circumstances were present, the death penalty need not be imposed if the jury found they were outweighed by mitigating circumstances, that is, circumstances not constituting justification or excuse for the offense in question, “but which, in fairness and mercy, may be considered as extenuating or reducing the degree” of moral culpability or punishment. App. 300. The jury‘s verdict on the rape count was death by electrocution. Both aggravating circumstances on which the court instructed were found to be present by the jury.
II
Furman v. Georgia, 408 U. S. 238 (1972), and the Court‘s decisions last Term in Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, 428 U. S. 280 (1976); and Roberts v. Louisiana, 428 U. S. 325 (1976), make unnecessary the recanvassing of certain critical aspects of the controversy about the constitutionality of capital punishment. It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the
In sustaining the imposition of the death penalty in Gregg,
III
That question, with respect to rape of an adult woman, is now before us. We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the
As advised by recent cases, we seek guidance in history and from the objective evidence of the country‘s present judgment concerning the acceptability of death as a penalty for rape of an adult woman. At no time in the last 50 years have a majority of the States authorized death as a punishment for rape. In 1925, 18 States, the District of Columbia, and the Federal Government authorized capital punishment for the rape of an adult female.5 By 1971 just prior to the decision in Furman v. Georgia, that number had declined, but not substantially, to 16 States plus the Federal Government.6 Furman then invalidated most of the capital punishment statutes in this country, including the rape statutes, because, among other reasons, of the manner in which the death penalty was imposed and utilized under those laws.
With their death penalty statutes for the most part invalidated, the States were faced with the choice of enacting modified capital punishment laws in an attempt to satisfy the requirements of Furman or of being satisfied with life imprisonment as the ultimate punishment for any offense. Thirty-
But if the “most marked indication of society‘s endorsement of the death penalty for murder is the legislative response to Furman,” Gregg v. Georgia, supra, at 179-180, it should also be a telling datum that the public judgment with respect to rape, as reflected in the statutes providing the punishment for that crime, has been dramatically different. In reviving death penalty laws to satisfy Furman‘s mandate, none of the States that had not previously authorized death for rape chose to include rape among capital felonies. Of the 16 States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in their revised statutes—Georgia, North Carolina, and Louisiana. In the latter two States, the death penalty was mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana and North Carolina, responding to those decisions, again revised their capital punishment laws, they re-enacted the death penalty for murder but not for rape; none of the seven other legislatures that to our knowledge have amended or replaced their death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with mandatory statutes, included rape among the crimes for which death was an authorized punishment.7
It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but only where the victim was a child and the rapist an adult.9 The Tennessee statute has since been invalidated because the death sentence was mandatory. Collins v. State, 550 S. W. 2d 643 (Tenn. 1977). The upshot is that Georgia is the sole jurisdic-
The current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman.10
B
It was also observed in Gregg that “[t]he jury . . . is a significant and reliable objective index of contemporary values because it is so directly involved,” 428 U. S., at 181, and that it is thus important to look to the sentencing decisions that juries have made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried. Of course, the jury‘s judgment is meaningful only where the jury has an appropriate measure of choice as to whether the death penalty is to be imposed. As far as execution for rape is concerned, this is now true only in Georgia and in Florida; and in the latter State, capital punishment is authorized only for the rape of children.
According to the factual submissions in this Court, out of all rape convictions in Georgia since 1973—and that total number has not been tendered—63 cases had been reviewed by the Georgia Supreme Court as of the time of oral argument; and of these, 6 involved a death sentence, 1 of which was set aside, leaving 5 convicted rapists now under sentence
IV
These recent events evidencing the attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter‘s privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the “ultimate violation of self.”11 It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accom-
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, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.13 The murderer kills; the rapist, if no more than that, does not. 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,” Gregg v. Georgia, 428 U. S., at 187, is an excessive penalty for the rapist who, as such, does not take human life.
This does not end the matter; for under Georgia law, death may not be imposed for any capital offense, including rape, unless the jury or judge finds one of the statutory aggravating circumstances and then elects to impose that sentence.
Neither of these circumstances, nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies—rape, murder, and kidnaping—but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life.
It is also true that the present rape occurred while Coker was committing armed robbery, a felony for which the Georgia statutes authorize the death penalty.15 But Coker was tried for the robbery offense as well as for rape and received a separate life sentence for this crime; the jury did not deem the robbery itself deserving of the death penalty, even though accompanied by the aggravating circumstance, which was stipulated, that Coker had been convicted of a prior capital crime.16
So ordered.
MR. JUSTICE BRENNAN, concurring in the judgment.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the
MR. JUSTICE MARSHALL, concurring in the judgment.
In Gregg v. Georgia, 428 U. S. 153, 231 (1976) (dissenting opinion), I stated: “In Furman v. Georgia, 408 U. S. 238, 314 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the
MR. JUSTICE POWELL, concurring in the judgment in part and dissenting in part.
I concur in the judgment of the Court on the facts of this case, and also in the plurality‘s reasoning supporting the view that ordinarily death is disproportionate punishment for the crime of raping an adult woman. Although rape invariably is a reprehensible crime, there is no indication that petitioner‘s offense was committed with excessive brutality or that the victim sustained serious or lasting injury. The plurality, however, does not limit its holding to the case before us or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always—regardless of the circumstances—is a disproportionate penalty for the crime of rape.
The Georgia statute, sustained in Gregg v. Georgia, 428 U. S. 153 (1976), specifies aggravating circumstances that may be considered by the jury when appropriate. With respect to the crime of rape, only three such circumstances are specified: (i) the offense was committed by a person with a prior record of conviction for a capital felony; (ii) the offense was committed while the offender was engaged in another capital felony or in aggravated battery; and (iii) the offense was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ante, at 588-589, n. 3. Only the third circumstance describes in general the offense of aggravated rape, often identified as a separate and more heinous offense than rape. See, e. g., ALI, Model Penal Code § 207.4, Comment, p. 246 (Tent. Draft No. 4, 1955); ALI, Model Penal Code § 213.1 (Prop. Off. Draft, 1962);
In accord with our decisions last Term, the plurality opinion states:
“[T]he death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amend-
Thus, capital punishment may be imposed on those sentenced in accordance with the procedures identified in Gregg and Woodson v. North Carolina, 428 U. S. 280 (1976), at least when the offender is convicted of murder, the crime involved in all five of last Term‘s capital cases.
Today, in a case that does not require such an expansive pronouncement, the plurality draws a bright line between murder and all rapes—regardless of the degree of brutality of the rape or the effect upon the victim. I dissent because I am not persuaded that such a bright line is appropriate. As noted in Snider v. Peyton, 356 F. 2d 626, 627 (CA4 1966), “[t]here is extreme variation in the degree of culpability of rapists.” The deliberate viciousness of the rapist may be greater than that of the murderer. Rape is never an act committed accidentally. Rarely can it be said to be unpremeditated. There also is wide variation in the effect on the victim. The plurality opinion says 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.” Ante, at 598. But there is indeed “extreme variation” in the crime of rape. Some victims are so grievously injured physically or psychologically that life is beyond repair.
Thus, it may be that the death penalty is not disproportionate punishment for the crime of aggravated rape. Final resolution of the question must await careful inquiry into objective indicators of society‘s “evolving standards of decency,” particularly legislative enactments and the responses of juries in capital cases.2 See Gregg v. Georgia, supra, at 173-182
(joint opinion of STEWART, POWELL, and STEVENS, JJ.); Woodson v. North Carolina, supra, at 294-295 (plurality opinion); Furman v. Georgia, 408 U.S. 238, 436-443 (1972) (POWELL, J., dissenting). The plurality properly examines these indicia, which do support the conclusion that society finds the death penalty unacceptable for the crime of rape in the absence of excessive brutality or severe injury. But it has not been shown that society finds the penalty disproportionate for all rapes. In a proper case a more discriminating inquiry than the plurality undertakes well might discover that both juries and legislatures have reserved the ultimate penalty for the case of an outrageous rape resulting in serious, lasting harm to the victim. I would not prejudge the issue. To this extent, I respectfully dissent.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE REHNQUIST joins, dissenting.
In a case such as this, confusion often arises as to the Court‘s proper role in reaching a decision. Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the
(1)
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.1 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 sentence now under review was imposed.
The Court today holds that the State of Georgia may not impose the death penalty on Coker. In so doing, it prevents the State from imposing any effective punishment upon Coker for his latest rape. The Court‘s holding, moreover, bars Georgia from guaranteeing its citizens that they
(2)
My first disagreement with the Court‘s holding is its unnecessary breadth. The narrow issue here presented is whether the State of Georgia may constitutionally execute this petitioner for the particular rape which he has committed, in light of all the facts and circumstances shown by this record. The plurality opinion goes to great lengths to consider societal mores and attitudes toward the generic crime of rape and the punishment for it; however, the opinion gives little attention to the special circumstances which bear directly on whether imposition of the death penalty is an appropriate societal response to Coker‘s criminal acts: (a) On account of his prior offenses, Coker is already serving such lengthy prison sentences that imposition of additional periods of imprisonment would have no incremental punitive effect; (b) by his life pattern Coker has shown that he presents a particular danger to the safety, welfare, and chastity of women, and on his record the likelihood is therefore great that he will repeat his crime at the first opportunity; (c) petitioner escaped from prison, only a year and a half after he commenced serving his latest sentences; he has nothing to lose by further escape attempts; and (d) should he again succeed in escaping from prison, it is reasonably predictable that he will repeat his pattern of attacks on
Unlike the plurality, I would narrow the inquiry in this case to the question actually presented: Does the
MR. JUSTICE POWELL would hold the death sentence inappropriate in this case because “there is no indication that petitioner‘s offense was committed with excessive brutality or that the victim sustained serious or lasting injury.” Ante, at 601.2 Apart from the reality that rape is inherently one
of the most egregiously brutal acts one human being can inflict upon another, there is nothing in the
“There is a widely held view that those who present the strongest case for severe measures of incapacitation are not murderers as a group (their offenses often are situational) but rather those who have repeatedly engaged in violent, combative behavior. A well-demonstrated
propensity for life-endangering behavior is thought to provide a more solid basis for infliction of the most severe measures of incapacitation than does the fortuity of a single homicidal incident.” Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1080 (1964). (Emphasis added.)
In my view, the
In sum, once the Court has held that “the punishment of death does not invariably violate the
“[W]here, as here, the language of the applicable [constitutional] provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great. It is too easy to propound our subjective standards of wise policy under the rubric of more or less universally held standards of decency.” (Emphasis added.)
Since the Court now invalidates the death penalty as a sanction for all rapes of adults at all times under all circumstances,6 I reluctantly turn to what I see as the broader issues raised by this holding.
(3)
The plurality, ante, at 597-598, acknowledges the gross nature of the crime of rape. A rapist not only violates a victim‘s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The long-range effect upon the victim‘s life and health is likely
Despite its strong condemnation of rape, the Court reaches the inexplicable conclusion that “the death penalty . . . is an excessive penalty” for the perpetrator of this heinous offense.7 This, the Court holds, is true even though in Georgia the death penalty may be imposed only where the rape is coupled with one or more aggravating circumstances. The process by which this conclusion is reached is as startling as it is disquieting. It represents a clear departure from precedent by making this Court “under the aegis of the
The analysis of the plurality opinion is divided into two parts: (a) an “objective” determination that most American jurisdictions do not presently make rape a capital offense, and (b) a subjective judgment that death is an excessive punishment for rape because the crime does not, in and of itself, cause the death of the victim. I take issue with each of these points.
(a)
The plurality opinion bases its analysis, in part, on the fact that “Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman.” Ante, at 595-596. Surely, however, this statistic cannot be deemed determinative, or even particularly relevant. As the opinion concedes, ante, at 594, two other States—Louisiana and North Carolina—have enacted death penalty statutes for adult rape since this Court‘s 1972 decision in Furman v. Georgia, 408 U.S. 238. If the Court is to rely on some “public opinion” process, does this not suggest the beginning of a “trend“?
In any case, when considered in light of the experience since the turn of this century, where more than one-third of American jurisdictions have consistently provided the death penalty for rape, the plurality‘s focus on the experience of the immediate past must be viewed as truly disingenuous. Having in mind the swift changes in positions of some Members of this Court in the short span of five years, can it rationally be considered a relevant indicator of what our society deems “cruel and unusual” to look solely to what legislatures have refrained from doing under conditions of great uncertainty arising from our less than lucid holdings on the
However, even were one to give the most charitable acceptance to the plurality‘s statistical analysis, it still does not, to my mind, support its conclusion. The most that can be claimed is that for the past year Georgia has been the only State whose adult rape death penalty statute has not otherwise been invalidated; two other state legislatures had enacted rape death penalty statutes in the last five years, but these were invalidated for reasons unrelated to rape under the Court‘s decisions last Term. Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Even if these figures could be read as indicating that no other States view the death penalty as an appropriate punishment for the rape of an adult woman, it would not necessarily follow that Georgia‘s imposition of such sanction violates the
The Court has repeatedly pointed to the reserve strength of our federal system which allows state legislatures, within broad limits, to experiment with laws, both criminal and civil, in the effort to achieve socially desirable results. See, e. g., Whalen v. Roe, 429 U.S. 589, 597-598, and n. 22 (1977); Johnson v. Louisiana, 406 U.S. 356, 376 (1972) (opinion of POWELL, J.); California v. Green, 399 U.S. 149, 184-185 (1970) (Harlan, J., concurring); Fay v. New York, 332 U.S. 261, 296 (1947). Various provisions of the
Statutory provisions in criminal justice applied in one part of the country can be carefully watched by other state legislatures, so that the experience of one State becomes available to all. Although human lives are in the balance, it must be remembered that failure to allow flexibility may also jeopardize human lives—those of the victims of undeterred criminal conduct. See infra, at 620. Our concern for the accused ought not foreclose legislative judgments showing a modicum of consideration for the potential victims.
Three state legislatures have, in the past five years, determined that the taking of human life and the devastating consequences of rape will be minimized if rapists may, in a limited class of cases, be executed for their offenses.10 That these States are presently a minority does not, in my view, make their judgment less worthy of deference. Our concern for human life must not be confined to the guilty; a state legislature is not to be thought insensitive to human values because it acts firmly to protect the lives and related values of the innocent. In this area, the choices for legislatures are at best painful and difficult and deserve a high degree of deference. Only last Term MR. JUSTICE WHITE observed:
“It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons. This concern for life and human values and the sincere efforts of the States to pursue them are matters of the greatest moment with which the judiciary should be most reluc-
tant to interfere.” Roberts v. Louisiana, supra, at 355 (dissenting opinion). (Emphasis added.)
The question of whether the death penalty is an appropriate punishment for rape is surely an open one. It is arguable that many prospective rapists would be deterred by the possibility that they could suffer death for their offense; it is also arguable that the death penalty would have only minimal deterrent effect.11 It may well be that rape victims would become more willing to report the crime and aid in the apprehension of the criminals if they knew that community disapproval of rapists was sufficiently strong to inflict the extreme penalty; or perhaps they would be reluctant to cooperate in the prosecution of rapists if they knew that a conviction might result in the imposition of the death penalty. Quite possibly, the occasional, well-publicized execution of egregious rapists may cause citizens to feel greater security in their daily lives;12 or, on the contrary, it may be that members of a civilized community will suffer the pangs of a heavy conscience because such punishment will be perceived as excessive.13 We cannot know which among
In order for Georgia‘s legislative program to develop it must be given time to take effect so that data may be evaluated for comparison with the experience of States which have not enacted death penalty statutes. Today, the Court repudiates the State‘s solemn judgment on how best to deal with the crime of rape before anyone can know whether the death penalty is an effective deterrent for one of the most horrible of all crimes. And this is done a few short years after MR. JUSTICE POWELL‘S excellent statement:
“In a period in our country‘s history when the frequency of [rape] is increasing alarmingly, it is indeed a grave event for the Court to take from the States whatever deterrent and retributive weight the death penalty retains.” Furman v. Georgia, 408 U.S., at 459 (dissenting opinion) (footnote omitted).
To deprive States of this authority as the Court does, on the basis that “[t]he current judgment with respect to the death penalty for rape . . . weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman,” ante, at 596, is impermissibly rash. The current judgment of some Members of this Court has undergone significant change in the short time since Furman.14 Social change on great issues generally reveals itself in small increments, and the “current judgment” of many States could
(b)
The subjective judgment that the death penalty is simply disproportionate to the crime of rape is even more disturbing than the “objective” analysis discussed supra. The plurality‘s conclusion on this point is based upon the bare fact that murder necessarily results in the physical death of the victim, while rape does not. Ante, at 598-599, 600. However, no Member of the Court explains why this distinction has relevance, much less constitutional significance. It is, after all, not irrational—nor constitutionally impermissible—for a legislature to make the penalty more severe than the criminal act it punishes16 in the hope it would deter wrongdoing:
“We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.” Gregg v. Georgia, 428 U.S., at 175.
Accord, Furman v. Georgia, supra, at 451 (POWELL, J., dissenting).
It begs the question to state, as does the plurality 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.” Ante, at 598.
Only one year ago the Court held it constitutionally permissible to impose the death penalty for the crime of murder, provided that certain procedural safeguards are followed. Compare Gregg v. Georgia, supra; Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), with Roberts v. Louisiana, 428 U.S. 325 (1976), and Woodson v. North Carolina, 428 U.S. 280 (1976). Today, the plurality readily admits that “[s]hort of homicide, [rape] is the ‘ultimate violation of self.‘” Ante, at 597. Moreover, as stated by MR. JUSTICE POWELL:
“The threat of serious injury is implicit in the definition of rape; the victim is either forced into submission by physical violence or by the threat of violence.” Furman v. Georgia, supra, at 460 (dissenting opinion).
Rape thus is not a crime “light years” removed from murder in the degree of its heinousness; it certainly poses a serious potential danger to the life and safety of innocent victims—apart from the devastating psychic consequences. It would
The Court‘s conclusion to the contrary is very disturbing indeed. The clear implication of today‘s holding appears to be that the death penalty may be properly imposed only as to crimes resulting in death of the victim. This casts serious doubt upon the constitutional validity of statutes imposing the death penalty for a variety of conduct which, though dangerous, may not necessarily result in any immediate death, e. g., treason, airplane hijacking, and kidnaping. In that respect, today‘s holding does even more harm than is initially apparent. We cannot avoid taking judicial notice that crimes such as airplane hijacking, kidnaping, and mass terrorist activity constitute a serious and increasing danger to the safety of the public. It would be unfortunate indeed if the effect of today‘s holding were to inhibit States and the Federal Government from experimenting with various remedies—including possibly imposition of the penalty of death—to prevent and deter such crimes.
“Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today‘s decision reveals, they are almost irresistible.” Furman v. Georgia, 408 U.S., at 411 (BLACKMUN, J., dissenting).
Whatever our individual views as to the wisdom of capital punishment, I cannot agree that it is constitutionally impermissible for a state legislature to make the “solemn judgment” to impose such penalty for the crime of rape. Accordingly, I would leave to the States the task of legislating in this area of the law.
Notes
It is not this Court‘s function to formulate the relevant criteria that might distinguish aggravated rape from the more usual case, but perhaps a workable test would embrace the factors identified by Georgia: the cruelty or viciousness of the offender, the circumstances and manner in which the offense was committed, and the consequences suffered by the victim. See also Ralph v. Warden, 438 F. 2d 786 (CA4 1970), cert. denied, 408 U. S. 942 (1972); 438 F. 2d, at 794 (opinion of Haynsworth, C. J.). The legislative task of defining, with appropriate specificity, the elements of the offense of aggravated rape would not be easy, see Furman v. Georgia, 408 U. S. 238, 460 (1972) (POWELL, J., dissenting), but certainly this Court should not assume that the task is impossible.
The dissent of THE CHIEF JUSTICE, relying on selected excerpts from my opinion in Furman, seeks to buttress the view that for sentencing purposes meaningful distinctions cannot be drawn between rapes regardless of the circumstances and effect upon the victim. Post, at 607-608, n. 2. The dissent emphasizes the difficulties of proof. But the jury system is designed and operates successfully to resolve precisely this type of factual issue. The law of negligence, for example, is replete with issues requiring the jury to determine degrees of culpability and the extent or permanency of physical and psychological injury.
I am complimented by the frequency with which THE CHIEF JUSTICE, in his dissent, cites and quotes from my opinion in Furman. That opinion, however, did not prevail, and—as with most of the writing in Furman—it now must be read in light of Gregg and Woodson v. North Carolina, 428 U. S. 280 (1976), which have established the controlling general principles. But contrary to implications in THE CHIEF JUSTICE‘S dissent, my opinion in Furman did emphasize that the proportionality test as to rape should be applied on a case-by-case basis, noting that in some cases the death sentence would be “grossly excessive.” 408 U. S., at 461. I remain
in disagreement with the simplistic all-or-nothing views of the plurality opinion and the dissenting opinion of THE CHIEF JUSTICE. On March 12, 1973, the Superior Court of Richmond County, Ga., sentenced Coker to 20 years’ imprisonment for the kidnaping of petitioner‘s second victim, and to life imprisonment for one act of rape upon her. On May 28, 1973, the Superior Court of Taliaferro County, Ga., sentenced Coker to eight years’ imprisonment for aggravated assault upon the same victim, and to life imprisonment for the second rape upon her. On April 6, 1973, the Superior Court of Clayton County, Ga., sentenced Coker to 20 years’ imprisonment for the rape of petitioner‘s first victim, and to life imprisonment for her murder. App. 307-312.“Capital offenses; jury verdict and sentence
“Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law. Unless
“Recommendation to mercy
“In all capital cases, other than those of homicide, when the verdict is guilty, with a recommendation to mercy, it shall be legal and shall be a recommendation to the judge of imprisonment for life. Such recommendation shall be binding upon the judge.”
“Mitigating and aggravating circumstances; death penalty
“(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.
“(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
“(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
“(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
“(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
“(4) The offender committed the offense of murder for himself or
“(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
“(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
“(7) The offense of murder, rape, armed robbery or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
“(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
“(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
“(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
“(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in section 27-2534.1 (b) is so found, the death penalty shall not be imposed.”
“Review of death sentences
“(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of Georgia together with a
“(b) The Supreme Court of Georgia shall consider the punishment as well as any errors enumerated by way of appeal.
“(c) With regard to the sentence, the court shall determine:
“(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
“(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury‘s or judge‘s finding of a statutory aggravating circumstance as enumerated in section 27-2534.1 (b), and
“(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
“(d) Both the defendant and the State shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
“(e) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
“(1) Affirm the sentence of death; or
“(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of Georgia in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration.
“(f) There shall be an Assistant to the Supreme Court, who shall be an attorney appointed by the Chief Justice of Georgia and who shall serve at the pleasure of the court. The court shall accumulate the records of all capital felony cases in which sentence was imposed after January 1, 1970, or such earlier date as the court may deem appropriate. The Assistant shall provide the court with whatever extracted information it
“(g) The court shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
“(h) The office of the Assistant shall be attached to the office of the Clerk of the Supreme Court of Georgia for administrative purposes.
“(i) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.”
This Court has consistently upheld the constitutional validity of such punishment-enhancing statutes. See, e. g., Spencer v. Texas, 385 U.S. 554, 559-560 (1967): “No claim is made here that recidivist statutes are . . . unconstitutional, nor could there be under our cases. Such statutes and other enhanced sentence laws, and procedures designed to implement their underlying policies, have been enacted in all the States, and by the Federal Government as well. . . . Such statutes . . . have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” (Footnote and citations omitted; emphasis added.) Accord, Oyler v. Boles, 368 U.S. 448, 451 (1962).The legislation that respondent places in this category is as follows:
Where the accompanying capital crime is murder, it is most likely that the defendant would be tried for murder, rather than rape; and it is perhaps academic to deal with the death sentence for rape in such a circumstance. It is likewise unnecessary to consider the rape-felony murder—a rape accompanied by the death of the victim which was unlawfully but nonmaliciously caused by the defendant.
Where the third aggravating circumstance mentioned in the text is
present—that the rape is particularly vile or involves torture or aggravated battery—it would seem that the defendant could very likely be convicted, tried, and appropriately punished for this additional conduct. For example, hardly any thief would be deterred from stealing if the only punishment upon being caught were return of the money stolen.