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Justice Ginsburg and the Death Penalty for Rape:

A comment on the thread about the new Supreme Court death-penalty-for-child-rape case wrote, "I think [Justice Ginsburg] may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that." I should note that Coker says,

Ruth Bader Ginsburg, Melvin L. Wulf, Marjorie Mazen Smith, and Nancy Stearns filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal [of the death sentence].

The brief was filed on behalf of the American Civil Liberties Union, the Center for Constitutional Rights, the National Organization for Women Legal Defense and Education Fund, the Women's Law Project, the Center for Women Policy Studies, the Women's Legal Defense Fund, and Equal Rights Advocates, Inc.; here's the summary of the argument from that brief:

The historical origin of the death penalty for rape lies in the long standing view of rape as a crime of property where the aggrieved was not the woman but her husband or father. In the Southern states this view coalesced with a tradition which valued white women according to their purity and chastity and assigned them exclusively to white men.

As a result, a double standard of justice developed for weighing and punishing rape by white and black men. This double standard of justice was reflected in Georgia's penalty structure for rape which, until the abolition of slavery, reserved the death penalty exclusively for black men. Even since 1861, the death sentence has rarely been imposed on white men.

The history of rape as a crime against man's property, not against the woman herself, sheds light on the ambivalent treatment of the victim who is viewed not simply as the virgin whose violation inspires outrage but also as the temptress who threatens every man with conviction. This latter perception, as well as the severe penalties attached to a rape conviction, has led to special rules requiring corroboration of the victim's testimony, permitting evidence of the woman's prior sexual conduct or reputation for chastity and authorizing cautionary jury instructions which impugn the victim's credibility.

The death penalty for rape does not meet "contemporary standards regarding the infliction of punishment," Woodson v. North Carolina, 96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth Amendment. Jury repudiation of the penalty is apparent. Moreover, overly severe penalties for rape, epitomized by the death penalty, are counterproductive to the goal of affording maximum legal protection to victims of rape since they have led to a conviction rate for rape which is lower than that for any other major violent crime.

Amici, interested in effective enforcement of laws against rape, urge that the death penalty for rape be invalidated because it stems from archaic notions which demean women and gross racial injustice and does not serve the goal of convicting and subjecting to criminal sanctions those who are in fact guilty of rape.

Now maybe there are parts of the language in Coker that Justice Ginsburg disapproves of -- though I certainly wouldn't say that Coker describes rape as "not having any long term harm on women," especially given this passage from the Coker plurality:

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." 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 accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.

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. 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," is an excessive penalty for the rapist who, as such, does not take human life.

Likewise, it's possible that Justice Ginsburg has changed her views in the last 30 years. Still, I wouldn't infer much from Justice Ginsburg's sex or feminism about her views on the death penalty for rape.

alias:
The fact that she signed her name to an amicus brief doesn't necessarily mean that she personally holds the views expressed in the brief. She probably does (or did), but I doubt that Justice Ginsburg would find any conflict between her support of "equality for women" and signing on to a decision that says that only murder is serious enough to warrant the death penalty.

I wish the Supreme Court would stay away from these death penalty cases altogether. Very little good can come of this.
1.5.2008 2:54pm
Cornellian (mail):
Here's the plurality opinion's description of the facts:

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.
(emphasis added)

I think I can guess what they were intending to say with that boldface portion, but I still remember being astonished when I first read it. It's not hard to read that opinion and come away with the conclusion that the judges at that time (all male) didn't all regard rape with the seriousness it is viewed today.
1.5.2008 3:07pm
Redlands (mail):
For some reason I've never paid attention to the reasoning employed to validate long prison sentences for rape and other sexual assault crimes. I've prosecuted cases resulting in prison sentences of 444 years, life, two life sentences to run consecutively, etc. The Eighth Amendment is not violated when such sentences are imposed because . . .?
1.5.2008 3:08pm
jb (mail):
May be too off topic, but as a non-lawyer with libertarian leanings (MD by trade), it occurred to me as I was reading the narrative that this would be a very appropriate discussion for the legislature to have. Maybe it did, and decided that rape is after all so awful that capital penalties should be available, at least in the most egregious cases. Maybe it didn't. But, in the absence of the terrible ancient Georgia law that restricted the death penalty to black rapists, why is this a matter for the judiciary? Would not the elected legislature be a better "judge" of contemporary standards than the appointed-for-life judiciary? Until the death penalty is outlawed by the supreme court, why can't the legislature apply it to any serious crime it chooses?
1.5.2008 3:15pm
Eugene Volokh (www):
Redlands: Many reasons, but the chief one is that it's perfectly just to lock up someone who commits such a morally depraved and immensely harmful act. That means that even under a much less deferential standard than the current Harmelin Eighth Amendment rule, a life term would be perfectly proper.

(It's also morally obligatory, and not just permissible, to try to deter such actions, and to incapacitate the criminal. But it's possible that at least for many kinds of sex crimes the incapacitation would be adequately achieved by letting the defendant out when he's past a certain age, and a shorter sentence would also be an adequate deterrent. That's why I focus here on the retributive argument -- if someone commits such a heinous act, there's nothing unconstitutional or immoral about locking him up for life, though for various reasons it may also be permissible to lock him up for a shorter time.)

Naturally, this moral argument doesn't apply to many nonviolent statutory rape cases (e.g., two 17-year-olds having factually consensual sex with each other), but those cases generally don't lead to life sentences, either.
1.5.2008 3:16pm
Eugene Volokh (www):
Alias: My sense is that advocacy lawyers who are the lead counsel on an amicus brief sign the brief because they believe in its arguments; if they didn't, they could easily leave the signing to someone else.
1.5.2008 3:17pm
Nathan_M (mail):
As well as the passage Cornellian cited, it's hard to believe the judges who wrote that "rape by definition does not include ... serious injury" had any understanding of the psychological injuries of many, if not most, sexual assault victims.
1.5.2008 3:19pm
A. Zarkov (mail):
Short of homicide, it [rape] is the "ultimate violation of self."

Thus having all your limbs cut off would not be as serious as rape? I find it hard to believe that most people would not choose rape over extreme forms of mutilation.
1.5.2008 3:19pm
WHOI Jacket:
Kidnapping someone for years and chaining them in a basement with the barest of food and water necessary for survival is less of a violation?
1.5.2008 3:41pm
Dilan Esper (mail) (www):
This is all really beside the point anyway. The constitutionality of the death penalty for rape doesn't really turn on whether the injury is "permanent". After all, simple battery can cause a permanent injury-- e.g., loss of a tooth, yet I doubt anyone would advocate the death penalty for simple battery. Rape causes very complex psychological harms, and causes physical harms, sometimes temporary and sometimes permanent, as well. The issue, though, is not whether someone slipped up in describing the harm caused by rape in the Coker opinion, but whether the death penalty is a cruel and unusual punishment for a rape (or for the rape of a child). And more broadly, should there be a bright line rule that the defendant must cause a death to be eligible for the death penalty.
1.5.2008 4:14pm
Cornellian (mail):
But, in the absence of the terrible ancient Georgia law that restricted the death penalty to black rapists, why is this a matter for the judiciary? Would not the elected legislature be a better "judge" of contemporary standards than the appointed-for-life judiciary? Until the death penalty is outlawed by the supreme court, why can't the legislature apply it to any serious crime it chooses?

As a general rule, it is up to the legislature. Your comment implies that you aren't willing to leave the judgment up to the legislature if they come up with a "blacks only" death penalty law or a death penalty for shoplifting a chocolate bar or some such non-serious crime. Why not let them have the death penalty for that too? The problem in all these situations is that the constitution doesn't give legislatures the right to impose cruel and unusual punishments or to devise punishments that violate equal protection or some other constitutional provision but determining the scope of such generally worded provisions isn't always easy. Courts have the obligation to apply those constitutional provisions, so they decide cases like this because that's the case presented to them and they have to make a decision one way or the other.
1.5.2008 4:20pm
jb (mail):
Perhaps I was unclear. The court would be justified in intervening against the Georgia law because it violates the Constitution. Imposing the death penalty for stealing candy is a bad idea, but arguably not unconstitutional unless candy theft became so unusual that any penalty for it became (cruel and) unusual and therefor unconstitutional. I hope that the reason that Grand Theft Candy is not a capital crime is that no legislator thinks that it should be, not that most do but they fear the law would be struck down. It comes down to my belief, again as a complete amateur, that the judiciary does not exist to correct every screw-up of the legislature. A law can be very bad in intent or execution (sorry) but still not the province of the judiciary to intervene, so long as it does not violate the Constitution.

I do not agree that courts

decide cases like this because that's the case presented to them and they have to make a decision one way or the other.

Courts can deny standing, or simply state that the matter is out of their jurisdiction, can't they?
1.5.2008 4:42pm
A. Zarkov (mail):
Does a punishment have to be both cruel and unusual for it to be prohibited by the US constitution? You could read that way, or you read it as the constitution prohibits cruel punishments and it prohibits unusual punishments.

Surely there has been a decision on this question.
1.5.2008 5:15pm
CrazyTrain (mail):
As the commenter in question, let me say that I have now revisited my views in light of what Prof. Volokh notes re RBG's signing of a brief in support of reversal (it's not dispositive of course -- that was years ago, and her views as an advocate have differed to some degree from her views as a Supreme Court Justice, but given the issue here, I would imagine she will stick to what she advocated in Coker).

I would also note that I was referring in particular to a statement from the beginng of Justice Powell's concurrence in Coker for the view that it did not seem that the Court fully appreciated the long term harm of rape itself. I for some reason can't access the opinion now . . .
1.5.2008 6:20pm
Public_Defender (mail):

Alias: My sense is that advocacy lawyers who are the lead counsel on an amicus brief sign the brief because they believe in its arguments; if they didn't, they could easily leave the signing to someone else.


That's generally true for the big issue in a brief, but it's not true for every supporting argument. I've been a part of heated discussions about what arguments to put in an amicus brief. The end result is often a compromise of the views of many lawyers.

Even on bigger issues, lawyers representing advocacy groups (like all lawyers in litigation) sometimes take positions to represent their client's that the lawyers don't personally believe.

That said, it's likely that Ginsburg believes that the death penalty for rape is unconstitutional.

This will be an interesting case. My suspicion is that the Court barred the death penalty for rapists because too many Southern states had a history of convicting black men for rape only because someone said he looked at a white woman the wrong way. If I remember right, attorney Thurgood Marshall represented a lot of railroaded black men charged with rape in the South.
1.5.2008 6:31pm
CrazyTrain (mail):
Alias: My sense is that advocacy lawyers who are the lead counsel on an amicus brief sign the brief because they believe in its arguments; if they didn't, they could easily leave the signing to someone else.

That's really not at all true in a lot of instances. I've had my name as the second person on two amicus briefs in the USSC where I did not agree with the views I was advocating (and indeed writing) as outside counsel on behalf of a very liberal public interest group. For someone like RBG (and anyone for that matter who reached her position "in-house" at the ACLU or any other public interest group, liberal or conservative), I agree that it was likely the case here though.

However, RBG did sign briefs as lead counsel where the views adopted were more "liberal" than those she has taken on the Court, even on hot-button issues. She likely moderated her views to some degree after her 13 years on the DC Circuit. Also, I don't think she ever was much of a hard-line liberal on any issues other than women's issues. Even there, however, she did write the Court's majority opinion re-affirming intermediate scrutiny (albeit a "strict" form of it) for gender discrimination in equal protection cases, despite the fact that the Clinton administration at the time was advocating for strict scrutiny. She almost certainly wrote that opinion because there were not enough votes to adopt the Clinton administration's views, but still worth noting. (She did not feel strongly enough apparently to write a separate concurrence.)
1.5.2008 6:31pm
Dilan Esper (mail) (www):
<i>Imposing the death penalty for stealing candy is a bad idea, but arguably not unconstitutional unless candy theft became so unusual that any penalty for it became (cruel and) unusual and therefor unconstitutional.</i>

That's not what the Eighth Amendment says. It is clearly cruel AND unusual to execute someone for stealing candy. The only reason we are having this discussion is because some conservatives decided to stop enforcing the text of the Eighth Amerndment because they don't like what it says.
1.5.2008 7:08pm
Cornellian (mail):
The court would be justified in intervening against the Georgia law because it violates the Constitution. Imposing the death penalty for stealing candy is a bad idea, but arguably not unconstitutional unless candy theft became so unusual that any penalty for it became (cruel and) unusual and therefor unconstitutional.

The assumption in your comment is that the frequency of candy theft impacts on whether the death penalty for stealing it would be constitutional. Why does that matter at all? What the courts are trying to do in these cases is come up with some workable means for deciding whether the penalty is constitutional or not, i.e. whether it falls within the scope of "cruel and unusual punishment" or some other constitutional provision. They can't just look at the penalty, the crime, the words "cruel and unusual" then come up with a gut level call as to whether the penalty crosses the line so they look for what criteria might make a penalty cruel and unusual and why that is the case. Hence in your example, you might argue the frequency of the crime is relevant to whether the penalty is cruel and unusual but you'd have to be ready to explain why, perhaps through historical evidence or prior decisions or some such thing.

I do not agree that courts decide cases like this because that's the case presented to them and they have to make a decision one way or the other.

Courts can deny standing, or simply state that the matter is out of their jurisdiction, can't they?


No they can't. They can't use standing or jurisdiction as a subterfuge to get out of deciding a case that they wish they didn't have to decide. If you meet the criteria for standing, you have standing, it's not a matter within the court's discretion (certain kinds of standing are discretionary but not the kind that matters here). Ditto for jurisdiction. If you're on trial and facing the death penalty and you're ready to argue that the penalty violates the constitution, there is no question you have standing to make the argument and that the court has jurisdiction to hear it (since you're going to be in federal court or a state superior court).
1.5.2008 9:01pm
Steve2:
Professor Volokh, my reading of the passage you quoted (particularly the second paragraph) is that while it doesn't describe rape as having no long-term impact on the victim, it does treat that impact as trivial. There's also the sentence Cornellian called attention to. I think Burger's description of the plurality and Powell's concurrence was fair:


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 to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack -- it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this, in turn, may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with MR. JUSTICE WHITE's conclusion as far as it goes -- that, "[s]hort of homicide, [rape] is the 'ultimate violation of self.'" Ante at 597. Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are "unharmed," or to classify the human outrage of rape, as does MR. JUSTICE POWELL, in terms of "excessively brutal," ante at 601, versus "moderately brutal," takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.
1.6.2008 1:06am
theobromophile (www):
Need something compare with murder to also receive the death penalty, under the Constitution? There seems to be little support in the text of the document for that. (Considering that the Fifth Amendment twice mentions the ability of the government to take the lives of its citizens, and neither instance is limited to capital crimes, I have little doubt that the Framers so intended the result that only murder be a capital crime.)

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.

Define "beyond repair." I mean, by that logic, there's nothing really depraved about ripping out a woman's uterus, because her life isn't beyond repair. Many women who are raped find it impossible to later marry or even date; according to this source, 13% of rape victims attempt suicide; and, according to this source, 60% of those who attempted suicide multiple times had been the victim of rape or sexual abuse. While this source may have a bias one way or another, it did state that girls who were raped by strangers before they were 16 years old are as likely as not to be homsexual as adults - i.e. somewhere between a five-fold and a twenty-five fold increase in homosexuality among women who were raped as girls; likewise, six of seven women who were molested as children by relatives were lesbians as adults. While I have no desire to begin debating homosexuality, it seems pretty safe to say that, if rape victims would otherwise be heterosexual but cannot tolerate the thought of being touched by a man, years later, her life has been permanently changed. Would any of the married members of the ACLU consider their lives "beyond repair" if they were incapable, psychologically, of being married? At what point does something affect one so deeply and permanently, and at so fundamental a level as human love, as to be heinous and worthy of death?

Rape victims are 13 times as likely as the general population to have two or more serious alcohol problems and twenty-six times as likely to have two or more serious drug problems (here).

Obviously, if the woman who is raped contracts an STD which cannot be cured (herpes, AIDS), her life will be permanently affected in a way that would not happen to the victim of a robbery.

Now, this is what I dredged up after a few minutes on google. It wouldn't have killed the ACLU members to try to wrestle with the permanent, pervasive effects of rape before dismissing it as "not nearly so happy [a life as without rape]".
1.6.2008 3:59am
hattio1:
Well,
To be fair the ACLU members didn't have google. More importantly, what you are quoting is the majority opinion, not the ACLU brief.
1.6.2008 6:41pm
Tracy W (mail):
Well 100% of murder victims can't be touched by either a man or a woman, nor can they marry.

That many women have not recovered from rape years afterwards is a different thing from it being impossible to recover by rape. There are various ways in which some women move on and find ways to make life meaningful again, including perhaps being determined not to let that bastard ruin their life. This is what I think what the ACLU meant by not being "beyond repair". Even for those proportion of raped women who can't tolerate a man's touch even years afterwards, there can still be pleasure in other matters, such as woman's hug, or the first spring morning. By your statistics, 87% of rape victims do not commit suicide, so by their actions they did not find rape as bad as murder.

The people writing the brief did not dismiss rape as "not nearly so happy". The words should be read in the context of the earlier statement:
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."
1.7.2008 10:57am