Arguing About Death for Rape

As the nine black-robed Justices walked purposefully to their places at the U.S. Supreme Court bench last week, the ornate courtroom seemed even more somber than usual. Nine months before, the court had allowed the imposition of the death penalty for murder. Now it was being asked to permit capital punishment for crimes in which no life has been taken. The state of Georgia was seeking permission to electrocute Ehrlich Anthony Coker for the rape of a 16-year-old housewife.

Coker's attorney, Civil Rights Lawyer David E. Kendall, candidly recited the ugly details of the crime:

Late on a balmy summer night in 1974, the kitchen door of Allen and El-nita Carver's two-room house was suddenly thrown open. In stepped Coker, 24, a convicted rapist and murderer who had just escaped from a nearby prison. Brandishing a three-foot board, Coker forced Mrs. Carver, who was still recovering from the birth of a son three weeks earlier, to help tie up her husband in the bathroom. That done, he grabbed a steak knife and assaulted her. He then took her with him as he fled in the Carver car. Sheriffs deputies captured him on a dead-end road a few hours later.

Georgia is the only state with a law calling for the death penalty for rape of an adult woman (Florida and Mississippi provide for execution for the rape of children). A local jury, after noting Coker's previous convictions for rape-murder and rape-kidnaping, ordered him to the electric chair. But Attorney Kendall contended before the Supreme Court Justices that death was so infrequently inflicted on rapists that its imposition violated the constitutional ban on cruel and unusual punishment. Of 42 men convicted of rape in Georgia since 1973, 38 received only prison sentences.

Although both Coker and his victim were white, Kendall marshaled historical and statistical data to show that execution for rape was based on race. Before the Civil War, Georgia law was typical of Southern statutes in specifying that a white man raping a black woman could draw a fine or imprisonment "at the discretion of the court," while a slave or "free person of color" even attempting to rape a white woman could be put to death. Supposedly color-blind postwar laws were selectively enforced: since 1930, when accurate record keeping was started, 89% of the 455 rapists executed in the U.S. have been black.

At one point, Justice Lewis F. Powell Jr. of Virginia frostily asked Kendall: "What would be an appropriate punishment for a convicted rapist serving life who escapes and commits another rape?" Incarceration, Kendall replied. Powell drove the point home: "The same punishment he had before."

Ironically, Coker received solid legal backing in a friend-of-court brief filed by seven organizations promoting women's rights, including the National Organization for Women. These groups demanded effective punishment for rapists, but they charged that the death penalty is ineffective because the severity of the punishment supports demands for elaborate and often humiliating testing of the victim's testimony. Even so, the feminists argued, juries sometimes acquit an accused rapist because they feel that the punishment might be too extreme.

Badly Split. When Georgia Assistant Attorney General E. Dean Grindie warned the court that elimination of capital punishment for non-death crimes might have unforeseeable consequences, he found Justice Harry A. Blackmun already alarmed. A vote for Coker, said Blackmun, would have "an adverse effect on federal efforts" to impose death for treason, espionage and terrorism. But Justice Potter Stewart hinted that some crime victims might suffer if capital punishment were extended: "The rapist, for example, might be encouraged to kill since the penalty would be the same."

Although the main battle on restoring the death penalty was fought in 1976, last week's hour-long arguments and questions were an important skirmish over the extension of capital punishment. The court is badly split, and while some expansion of the death penalty is probable, there is no way of knowing Coker's fate until the Justices announce it, probably this June.

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