Coker V. Georgia - The Proportionality Requirement Usurps Legislative Power

The Proportionality Requirement Usurps Legislative Power

Chief Justice Burger, joined by Justice Rehnquist, dissented because he believed that the proportionality principle the Court had engrafted onto the Eighth Amendment encroached too much on the legislative power of the states. Burger preferred to concentrate on the narrow facts of the case—was it proper for Georgia to impose the death penalty on Coker, a man who had escaped from prison while serving a sentence for murder only to rape another young woman? "Whatever one's view may be as to the State's constitutional power to impose the death penalty upon a rapist who stands before the court convicted for the first time, this case reveals a chronic rapist whose continuing danger to the community is abundantly clear."

Burger defended a state's prerogative to impose additional punishment for recidivists – including necessarily a death sentence for prisoners who commit crimes. Congress had enacted an early three-strikes law, and the federal crime of assault on a mail carrier carried a stiffer penalty for a second such offense. Other states also carried harsher penalties for "habitual criminality." For Burger, "the Eighth Amendment does not prevent the State from taking an individual's 'well-demonstrated propensity for life-endangering behavior' into account in devising punitive measures which will prevent inflicting further harm upon innocent victims." If the Court was serious about sanctioning the continued use of the death penalty, it should allow states to use it in appropriate circumstances.

Furthermore, rape is a heinous crime. "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 to be irreparable; it is impossible to measure the harm which results." Burger disagreed with the Court's conclusion that there were no circumstances under which it was a proportional response to crime. Such a conclusion turned the Court into "the ultimate arbiter of the standards of criminal responsibility in diverse areas of the criminal law throughout the country." That was an inappropriate role for the Court to assume in the American federal system. Burger felt that Furman had injected enough uncertainty into the debate over capital punishment; it was more expedient to allow subsequent legislative developments to evolve as they may.

Burger also disagreed with the Court's assessment of the retribution and deterrence value of the death penalty for rape. The death penalty might deter at least one prospective rapist. It might encourage victims to report the crime. It might increase the general feeling of security among members of the community. The fact that the magnitude of the harm caused by the murderer is greater than that caused by the rapist was beside the point for Burger. The Eighth Amendment was not the Code of Hammurabi; if "innocent life and limb are to be preserved I see no constitutional barrier in punishing by death all who engage in...criminal activity which consistently poses serious danger of death or serious bodily harm." Accordingly, Burger argued the Court had no place dictating how the states might make law in the criminal arena.