Rape was punishable by death in many ancient and medieval cultures, as well as in colonial and modern American criminal law. But shortly after it revived state death penalty schemes in Gregg v. Georgia (1976), the U.S. Supreme Court was asked to determine whether the Eighth Amendment’s ban on cruel and unusual punishments prohibited the death penalty for rape.

In 1974, Ehrlich Anthony Coker escaped from a Georgia prison and entered the home of Allen and Elnita Carver. Coker bound Mr. Carver, then raped Mrs. Carver at knifepoint before kidnapping her. The Carvers survived the attack. Coker was sentenced to death under Georgia law for the rape.

Justice Byron White’s plurality opinion for the Supreme Court reversed the sentence, finding the death penalty disproportionate to the crime of raping an adult woman. The plurality first looked to objective factors, citing the rarity of both capital rape statutes in modern America and of jury-imposed death sentences for rape in those few jurisdictions that authorized it. In addition, the plurality concluded that rape did not compare with murder in terms of moral depravity or injury to the victim. Justice Lewis Powell wrote an important separate concurrence arguing that some rapes could be so brutal as to warrant capital punishment, but that Coker’s crime did not involve serious or lasting injury.

Coker remains controversial and potentially farreaching. Notably, the Court left open the possibility that capital punishment for many non-homicide crimes—including child rape, aggravated kidnapping, treason, and espionage—might be unconstitutional.

References and Further Reading

  • Bedau, Hugo Adam, ed. The Death Penalty in America. New York: Oxford University Press. 1997.

Cases and Statutes Cited

  • Gregg v. Georgia, 428 U.S. 153 (1976)
  • Coker v. Georgia, 433 U.S. 584 (1977)

See also Capital Punishment; Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Rape: Naming Victim