Saturday, February 03, 2007

En - "lightning" On "Cruel and Unusual"

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Justice Potter Stewart, Furman v. Georgia (1972).

It really is morbid not just because morally questionable but also because that bad bankroll represents a huge and wacky enchilada of opportunity costs diverted from fighting injustices on many other fronts including wrongful convictions, education, probation, treatment and parole, DNA analysis and, of course, Non-Death Penalty Habeas Corpus. Prof. Berman notes excessive numbers of capital cases on the Supreme Court's ever shrinking docket. ACS Blog's Martin Magnusson has this piece, "The Dominance of the Death Penalty on the Decreasing Supreme Court Docket” echoing concerns about a SCOTUS docket "filled with criminal cases that have no impact on the vast majority of American inmates."

Also review Coker v. Georgia, 433 U.S. 584 (1977) (the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman) and the syllabus:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.
Capital punishment for sex offenses is not just of historical interest. A number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible. In August 2003 Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child. Litigation over the death penalty for child rape seems like a certainty over the next decade. (Prof. Berman's SL&P). Before Furman, “as a practical matter, the death penalty had nearly withered away for crimes other than murder and rape. From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder. In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women. Of the 455 rapists executed, 405 (89%) were black. Prof Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences. Struck by Lightning: Louisiana's Electrocutions for Rape in the Forties and Fifties by Burk Foster (September 1996). (Appeared in Lane Nelson and Burk Foster, Death Watch: A Death Penalty Anthology, Upper Saddle River, NJ: Prentice Hall, 2001, pp. 188-207. Originally appeared in The Angolite, September/October 1996, pp. 36-47.).

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