U.S. Supreme Court Coker v. Georgia, 433
U.S. 584 (1977) Coker v. Georgia No. 75-5444 Argued March 28, 1977 Decided June 29, 1977 433
U.S. 584 CERTIORARI TO THE SUPREME COURT OF
GEORGIA 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. Pp. 433 U. S.
591 -600; 433 U. S. 600 ; 433 U. S.
600 -601; 433 U. S.
601 .

															234 Ga. 555, 216 S.E.2d
782 , reversed and remanded.

															MR JUSTICE WHITE, joined by MR JUSTICE STEWART, MR. JUSTICE
BLACKMUN, and MR. JUSTICE STEVENS, concluded that the sentence of
death for the crime of rape is grossly disproportionate and
excessive punishment, and is therefore forbidden by the Eighth
Amendment as cruel and unusual punishment. Pp. 433 U. S.
591 -600.

															(a) The Eighth Amendment bars not only those punishments that
are "barbaric," but also those that are "excessive" in relation to
the crime committed, and a punishment is "excessive" and
unconstitutional if it (1) makes no measurable contribution to
acceptable goals of punishment, and hence is nothing more than the
purposeless and needless imposition of pain and suffering; or (2)
is grossly out of proportion to the severity of the crime. Pp. 433 U. S.
591 -592.

															(b) That death is a disproportionate penalty for rape is
strongly indicated by the objective evidence of present public
judgment, as represented by the attitude of state legislatures and
sentencing juries, concerning the acceptability of such a penalty,
it appearing that Georgia is currently the only State authorizing
the death sentence for rape of an adult woman, that it is
authorized for rape in only two other States, but only when the
victim is a child, and that, in the vast majority (9 out of 10) of
rape convictions in Georgia since 1973, juries have not imposed the
death sentence. Pp. 433 U. S.
593 -597. Page 433 U. S. 585 (c) Although rape deserves serious punishment, the death
penalty, which is unique in its severity and irrevocability, is an
excessive penalty for the rapist who, as such and as opposed to the
murderer, does not unjustifiably take human life. Pp. 433 U. S.
597 -598.

															(d) The conclusion that the death sentence imposed on petitioner
is disproportionate punishment for rape is not affected by the fact
that the jury found the aggravating circumstances of prior capital
felony convictions and occurrence of the rape while committing
armed robbery, a felony for which the death sentence is also
authorized, since the prior convictions do not change the fact that
the rape did not involve the taking of life, and since the jury did
not deem the robbery itself deserving of the death penalty, even
though accompanied by the aggravating circumstances of prior
capital felony convictions. Pp. 433 U. S.
598 -599.

															(e) That, under Georgia law, a deliberate killer cannot be
sentenced to death, absent aggravating circumstances, argues
strongly against the notion that, with or without such
circumstances, a rapist who does not take the life of his victim
should be punished more severely than the deliberate killer. P. 433 U. S.
600 .

															MR. JUSTICE BRENNAN concluded that the death penalty is, in all
circumstances, cruel and unusual punishment prohibited by the
Eighth and Fourteenth Amendments. P. 433 U. S.
600 .

															MR. JUSTICE MARSHALL concluded that the death penalty is a cruel
and unusual punishment prohibited by the Eighth and Fourteenth
Amendments. Pp. 433 U. S.
600 -601.

															MR. JUSTICE POWELL concluded that death is disproportionate
punishment for the crime of raping an adult woman where, as here,
the crime was not committed with excessive brutality and the victim
did not sustain serious or lasting injury. P. 433 U. S.
601 .

															WHITE, J., announced the Court's judgment and delivered an
opinion, in which STEWART, BLACKMUN, and STEVENS, JJ., joined.
BRENNAN, J., post, p. 433 U. S. 600 ,
and MARSHALL, J., post, p. 433 U. S. 600 ,
filed statements concurring in the judgment. POWELL, J., filed an
opinion concurring in the judgment in part and dissenting in part, post, p. 433 U. S. 601 .
BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J.,
joined, post, p. 433 U. S.
604 . Page 433 U. S. 586 MR. JUSTICE WHITE announced the judgment of the Court and filed
an opinion in which MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, and
MR. JUSTICE STEVENS, joined.

															Georgia Code Ann. § 26-2001 (1972) provides that

															"[a] person convicted of rape shall be punished by death or by
imprisonment for life, or by imprisonment for not less than one nor
more than 20 years. [ Footnote
1 ]"

															Punishment is determined by a jury in a separate sentencing
proceeding in which at least one of the statutory aggravating
circumstances must be found before the death penalty may be
imposed. [ Footnote 2 ]
Petitioner Coker was convicted of rape and sentenced to death. Both
the conviction and the sentence were affirmed by the Georgia
Supreme Court. Coker was granted a writ of certiorari, 429 U.S.
815, limited to the single claim, rejected by the Georgia court,
that the punishment of death for rape violates the Eighth
Amendment, which proscribes "cruel and unusual punishments" and
which must be observed by the States as well as the Federal
Government. Robinson v. California, 370 U.
S. 660 (1962). Page 433 U. S. 587 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.

															Petitioner was charged with escape, armed robbery, motor vehicle
theft, kidnaping, and rape. Counsel was appointed to represent him.
Having been found competent to stand trial, he was tried. The jury
returned a verdict of guilty, rejecting his general plea of
insanity. A sentencing hearing was then conducted in accordance
with the procedures dealt with at length in Gregg v.
Georgia, 428 U. S. 153 (1976), where this Court sustained the death penalty for murder
when imposed pursuant to the statutory procedures. [ Footnote 3 ] The jury was Page 433 U. S. 588 instructed that it could consider as aggravating circumstances
whether the rape had been committed by a person with a prior record
of conviction for a capital felony and whether the rape Page 433 U. S. 589 had been committed in the course of committing another capital
felony, namely, the armed robbery of Allen Carver. The court also
instructed, pursuant to statute, that, even if Page 433 U. S. 590 aggravating circumstances were present, the death penalty need
not be imposed if the jury found they were outweighed by mitigating
circumstance, that is, circumstances not constituting justification
or excuse for the offense in question, Page 433 U. S. 591 "but which, in fairness and mercy, may be considered as
extenuating or reducing the degree" of moral culpability or
punishment. App. 300. The jury's verdict on the rape count was
death by electrocution. Both aggravating circumstances on which the
court instructed were found to be present by the jury. II Furman v. Georgia, 408 U. S. 238 (1972), and the Court's decisions last Term in Gregg v.
Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U.
S. 242 (1976); Jurek v. Texas, 428 U.
S. 262 (1976); Woodson v. North Carolina, 428 U. S. 280 (1976); and Roberts v. Louisiana, 428 U.
S. 325 (1976), make unnecessary the recanvassing of
certain critical aspects of the controversy about the
constitutionality of capital punishment. It is now settled that the
death penalty is not invariably cruel and unusual punishment within
the meaning of the Eighth Amendment; it is not inherently barbaric
or an unacceptable mode of punishment for crime; neither is it
always disproportionate to the crime for which it is imposed. It is
also established that imposing capital punishment, at least for
murder, in accordance with the procedures provided under the
Georgia statutes saves the sentence from the infirmities which led
the Court to invalidate the prior Georgia capital punishment
statute in Furman v. Georgia, supra. In sustaining the imposition of the death penalty in Gregg, Page 433 U. S. 592 however, the Court firmly embraced the holdings and dicta from
prior cases, Furman v. Georgia, supra; Robinson v.
California, 370 U. S. 660 (1962); Trop v. Dulles, 356 U. S. 86 (1958); and Weems v. United States, 217 U.
S. 349 (1910), to the effect that the Eighth Amendment
bars not only those punishments that are "barbaric," but also those
that are "excessive" in relation to the crime committed. Under Gregg, a punishment is "excessive" and unconstitutional if
it (1) makes no measurable contribution to acceptable goals of
punishment, and hence is nothing more than the purposeless and
needless imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime. A punishment might fail
the test on either ground. Furthermore, these Eighth Amendment
judgments should not be, or appear to be, merely the subjective
views of individual Justices; judgment should be informed by
objective factors to the maximum possible extent. To this end,
attention must be given to the public attitudes concerning a
particular sentence history and precedent, legislative attitudes,
and the response of juries reflected in their sentencing decisions
are to be consulted. In Gregg, after giving due regard to
such sources, the Court's judgment was that the death penalty for
deliberate murder was neither the purposeless imposition of severe
punishment nor a punishment grossly disproportionate to the crime.
But the Court reserved the question of the constitutionality of the
death penalty when imposed for other crimes. 428 U.S. at 428 U. S. 187 n. 35. III That question, with respect to rape of an adult woman, is now
before us. We have concluded that a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape,
and is therefore forbidden by the Eighth Amendment as cruel and
unusual punishment. [ Footnote
4 ] Page 433 U. S. 593 A As advised by recent cases, we seek guidance in history and from
the objective evidence of the country's present judgment concerning
the acceptability of death as a penalty for rape of an adult woman.
At no time in the last 50 years have a majority of the States
authorized death as a punishment for rape. In 1925, 18 States, the
District of Columbia, and the Federal Government authorized capital
punishment for the rape of an adult female. [ Footnote 5 ] By 1971, just prior to the decision in Furman v. Georgia, that number had declined, but not
substantially, to 16 States plus the Federal Government. [ Footnote 6 ] Furman then
invalidated most of the capital punishment statutes in this
country, including the rape statutes, because, among other reasons,
of the manner in which the death penalty was imposed and utilized
under those laws.

															With their death penalty statutes for the most part invalidated,
the States were faced with the choice of enacting modified capital
punishment laws in an attempt to satisfy the requirements of Furman or of being satisfied with life imprisonment as the
ultimate punishment for any offense. Thirty-five Page 433 U. S. 594 States immediately reinstituted the death penalty for at least
limited kinds of crime. Gregg v. Georgia, 428 U.S. at 428 U. S. 179 n. 23. This public judgment as to the acceptability of capital
punishment, evidenced by the immediate, post- Furman legislative reaction in a large majority of the States, heavily
influenced the Court to sustain the death penalty for murder in Gregg v. Georgia, supra at 428 U. S.
179 -182.

															But if the "most marked indication of society's endorsement of
the death penalty for murder is the legislative response to Furman, " Gregg v. Georgia, supra at 428 U. S.
179 -180, it should also be a telling datum that the
public judgment with respect to rape, as reflected in the statutes
providing the punishment for that crime, has been dramatically
different. In reviving death penalty laws to satisfy Furman's mandate, none of the States that had not
previously authorized death for rape chose to include rape among
capital felonies. Of the 16 States in which rape had been a capital
offense, only three provided the death penalty for rape of an adult
woman in their revised statute -- Georgia, North Carolina, and
Louisiana. In the latter two States, the death penalty was
mandatory for those found guilty, and those laws were invalidated
by Woodson and Roberts. When Louisiana and North
Carolina, responding to those decisions, again revised their
capital punishment laws, they reenacted the death penalty for
murder but not for rape; none of the seven other legislatures that
to our knowledge have amended or replaced their death penalty
statutes since July 2, 1976, including four States (in addition to
Louisiana and North Carolina) that had authorized the death
sentence for rape prior to 1972 and had reacted to Furman with mandatory statutes, included rape among the crimes for which
death was an authorized punishment. [ Footnote 7 ] Page 433 U. S. 595 Georgia argues that 11 of the 16 States that authorized death
for rape in 1972 attempted to comply with Furman by
enacting arguably mandatory death penalty legislation, and that it
is very likely that, aside from Louisiana and North Carolina, these
States simply chose to eliminate rape as a capital offense rather
than to require death for each and every instance of rape.
[ Footnote 8 ] The argument is
not without force, but 4 of the 16 States did not take the
mandatory course, and also did not continue rape of an adult woman
as a capital offense. Further, as we have indicated, the
legislatures of 6 of the 11 arguably mandatory States have revised
their death penalty laws since Woodson and Roberts without enacting a new death penalty for rape. And
this is to say nothing of 19 other States that enacted
nonmandatory, post- Furman statutes and chose not to
sentence rapists to death.

															It should be noted that Florida, Mississippi, and Tennessee also
authorized the death penalty in some rape cases, but only where the
victim was a child and the rapist an adult. [ Footnote 9 ] The Tennessee statute has since been
invalidated because the death sentence was mandatory. Collins
v. State, 550
S.W.2d 643 (Tenn 1977). The upshot is that Georgia is the sole
jurisdiction Page 433 U. S. 596 in the United States at the present time that authorizes a
sentence of death when the rape victim is an adult woman, and only
two other jurisdictions provide capital punishment when the victim
is a child.

															The current judgment with respect to the death penalty for rape
is not wholly unanimous among state legislatures, but it obviously
weighs very heavily on the side of rejecting capital punishment as
a suitable penalty for raping an adult woman. [ Footnote 10 ] B It was also observed in Gregg that "[t]he jury . . . is
a significant and reliable objective index of contemporary values
because it is so directly involved," 428 U.S. at 428 U. S. 181 ,
and that it is thus important to look to the sentencing decisions
that juries have made in the course of assessing whether capital
punishment is an appropriate penalty for the crime being tried. Of
course, the jury's judgment is meaningful only where the jury has
an appropriate measure of choice as to whether the death penalty is
to be imposed. As far as execution for rape is concerned, this is
now true only in Georgia and in Florida; and in the latter State,
capital punishment is authorized only for the rape of children.

															According to the factual submissions in this Court, out of all
rape convictions in Georgia since 1973 -- and that total number has
not been tendered -- 63 cases had been reviewed by the Georgia
Supreme Court as of the time of oral argument; and of these, 6
involved a death sentence, 1 of which was set aside, leaving 5
convicted rapists now under sentence Page 433 U. S. 597 of death in the State of Georgia. Georgia juries have thus
sentenced rapists to death six times since 1973. This obviously is
not a negligible number; and the State argues that, as a practical
matter, juries simply reserve the extreme sanction for extreme
cases of rape, and that recent experience surely does not prove
that jurors consider the death penalty to be a disproportionate
punishment for every conceivable instance of rape, no matter how
aggravated. Nevertheless, it is true that, in the vast majority of
cases, at least 9 out of 10, juries have not imposed the death
sentence. IV These recent events evidencing the attitude of state
legislatures and sentencing juries do not wholly determine this
controversy, for the Constitution contemplates that, in the end,
our own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment.
Nevertheless, the legislative rejection of capital punishment for
rape strongly confirms our own judgment, which is that death is
indeed a disproportionate penalty for the crime of raping an adult
woman.

															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." [ Footnote 11 ] 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 Page 433 U. S. 598 by physical injury to the female and can also inflict mental and
psychological damage. [ Footnote
12 ] 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. [ Footnote 13 ] 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," Gregg v.
Georgia, 428 U.S. at 428 U. S. 187 ,
is an excessive penalty for the rapist who, as such, does not take
human life.

															This does not end the matter, for, under Georgia law, death may
not be imposed for any capital offense, including rape, unless the
jury or judge finds one of the statutory aggravating circumstances
and then elects to impose that sentence. Ga.Code § 26-3102 (1977); Gregg v. Georgia, supra at 428 U. S.
165 -166. For the rapist to be executed in Georgia, it
must therefore be found not only that he committed rape, but also
that one or more of the following aggravating circumstances were
present: (1) that the rape was committed by a person with a prior
record of conviction for a capital felony; (2) that the rape was
committed while the offender was engaged in the commission of
another capital felony, or aggravated battery; or (3) the rape

															"was outrageously or wantonly vile, horrible or Page 433 U. S. 599 inhuman in that it involved torture, depravity of mind, or
aggravated battery to the victim. [ Footnote 14 ]"

															Here, the first two of these aggravating circumstances were
alleged and found by the jury.

															Neither of these circumstances, nor both of them together,
change our conclusion that the death sentence imposed on Coker is a
disproportionate punishment for rape. Coker had prior convictions
for capital felonies -- rape, murder, and kidnaping -- but these
prior convictions do not change the fact that the instant crime
being punished is a rape not involving the taking of life.

															It is also true that the present rape occurred while Coker was
committing armed robbery, a felony for which the Georgia statutes
authorize the death penalty. [ Footnote 15 ] But Coker was tried for the robbery offense
as well as for rape, and received a separate life sentence for this
crime; the jury did not deem the robbery itself deserving of the
death penalty, even though accompanied by the aggravating
circumstance, which was stipulated, that Coker had been convicted
of a prior capital crime. [ Footnote 16 ] Page 433 U. S. 600 We note finally that, in Georgia, a person commits murder when
he unlawfully and with malice aforethought, either express or
implied, causes the death of another human being. He also commits
that crime when, in the commission of a felony, he causes the death
of another human being, irrespective of malice. But even where the
killing is deliberate, it is not punishable by death absent proof
of aggravating circumstances. It is difficult to accept the notion,
and we do not, that the rapist, with or without aggravating
circumstances, should be punished more heavily than the deliberate
killer as long as the rapist does not himself take the life of his
victim. The judgment of the Georgia Supreme Court upholding the
death sentence is reversed, and the case is remanded to that court
for further proceedings not inconsistent with this opinion. So ordered. [ Footnote 1 ]

															The section defines rape as having

															"carnal knowledge of a female, forcibly and against her will.
Carnal knowledge in rape occurs when there is any penetration of
the female sex organ by the male sex organ."

															[ Footnote 2 ] See n 3, infra. [ Footnote 3 ]

															Ga.Code § 23102 (1977):

															" Capital offenses; jury verdict and sentence "

															"Where, upon a trial by jury, a person is convicted of an
offense which may be punishable by death, a sentence of death shall
not be imposed unless the jury verdict includes a finding of at
least one statutory aggravating circumstance and a recommendation
that such sentence be imposed. Where a statutory aggravating
circumstance is found and a recommendation of death is made, the
court shall sentence the defendant to death. Where a sentence of
death is not recommended by the jury, the court shall sentence the
defendant to imprisonment as provided by law. Unless the jury
trying the case makes a finding of at least one statutory
aggravating circumstance and recommends the death sentence in its
verdict, the court shall not sentence the defendant to death,
provided that no such finding of statutory aggravating circumstance
shall be necessary in offenses of treason or aircraft hijacking.
The provisions of this section shall not affect a sentence when the
case is tried without a jury or when the judge accepts a plea of
guilty."

															Ga.Code § 27-2302 (1977):

															" Recommendation to mercy "

															"In all capital cases, other than those of homicide, when the
verdict is guilty, with a recommendation to mercy, it shall be
legal and shall be a recommendation to the judge of imprisonment
for life. Such recommendation shall be binding upon the judge."

															Ga.Code § 27-2534.1 (1977):

															" Mitigating and aggravating circumstances; death
penalty "

															"(a) The death penalty may be imposed for the offenses of
aircraft hijacking or treason, in any case."

															"(b) In all cases of other offenses for which the death penalty
may be authorized, the judge shall consider, or he shall include in
his instructions to the jury for it to consider, any mitigating
circumstances or aggravating circumstances otherwise authorized by
law and any of the following statutory aggravating circumstances
which may be supported by the evidence:"

															"(1) The offense of murder, rape, armed robbery, or kidnapping
was committed by a person with a prior record of conviction for a
capital felony, or the offense of murder was committed by a person
who has a substantial history of serious assaultive criminal
convictions."

															"(2) The offense of murder, rape, armed robbery, or kidnapping
was committed while the offender was engaged in the commission of
another capital felony, or aggravated battery, or the offense of
murder was committed while the offender was engaged in the
commission of burglary or arson in the first degree."

															"(3) The offender by his act of murder, armed robbery, or
kidnapping knowingly created a great risk of death to more than one
person in a public place by means of a weapon or device which would
normally be hazardous to the lives of more than one person."

															"(4) The offender committed the offense of murder for himself or
another, for the purpose of receiving money or any other thing of
monetary value."

															"(5) The murder of a judicial officer, former judicial officer,
district attorney or solicitor or former district attorney or
solicitor during or because of the exercise of his official
duty."

															"(6) The offender caused or directed another to commit murder or
committed murder as an agent or employee of another person."

															"(7) The offense of murder, rape, armed robbery or kidnapping
was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to
the victim."

															"(8) The offense of murder was committed against any peace
officer, corrections employee or fireman while engaged in the
performance of his official duties."

															"(9) The offense of murder was committed by a person in, or who
has escaped from, the lawful custody of a peace officer or place of
lawful confinement."

															"(10) The murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or custody in a
place of lawful confinement, of himself or another."

															"(c) The statutory instructions as determined by the trial judge
to be warranted by the evidence shall be given in charge and in
writing to the jury for its deliberation. The jury, if its verdict
be a recommendation of death, shall designate in writing, signed by
the foreman of the jury, the aggravating circumstance or
circumstances which it found beyond a reasonable doubt. In non-jury
cases the judge shall make such designation. Except in cases of
treason or aircraft hijacking, unless at least one of the statutory
aggravating circumstances enumerated in section 27-2534.1(b) is so
found, the death penalty shall not be imposed."

															Ga.Code § 27-2537 (1977):

															" Review of death sentences "

															"(a) Whenever the death penalty is imposed, and upon the
judgment becoming final in the trial court, the sentence shall be
reviewed on the record by the Supreme Court of Georgia. The clerk
of the trial court, within ten days after receiving the transcript,
shall transmit the entire record and transcript to the Supreme
Court of Georgia together with a notice prepared by the clerk and a
report prepared by the trial judge. The notice shall set forth the
title and docket number of the case, the name of the defendant and
the name and address of his attorney, a narrative statement of the
judgment, the offense, and the punishment prescribed. The report
shall be in the form of a standard questionnaire prepared and
supplied by the Supreme Court of Georgia."

															"(b) The Supreme Court of Georgia shall consider the punishment
as well as any errors enumerated by way of appeal."

															"(c) With regard to the sentence, the court shall
determine:"

															"(1) Whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor,
and"

															"(2) Whether, in cases other than treason or aircraft hijacking,
the evidence supports the jury's or judge's finding of a statutory
aggravating circumstance as enumerated in section 27-2534.1(b),
and"

															"(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."

															"(d) Both the defendant and the State shall have the right to
submit briefs within the time provided by the court, and to present
oral argument to the court."

															"(e) The court shall include in its decision a reference to
those similar cases which it took into consideration. In addition
to its authority regarding correction of errors, the court, with
regard to review of death sentences, shall be authorized to:"

															"(1) Affirm the sentence of death; or"

															"(2) Set the sentence aside and remand the case for resentencing
by the trial judge based on the record and argument of counsel. The
records of those similar cases referred to by the Supreme Court of
Georgia in its decision, and the extracts prepared as hereinafter
provided for, shall be provided to the resentencing judge for his
consideration."

															"(f) There shall be an Assistant to the Supreme Court, who shall
be an attorney appointed by the Chief Justice of Georgia and who
shall serve at the pleasure of the court. The court shall
accumulate the records of all capital felony cases in which
sentence was imposed after January 1, 1970, or such earlier date as
the court may deem appropriate. The Assistant shall provide the
court with whatever extracted information it desires with respect
thereto, including but not limited to a synopsis or brief of the
facts in the record concerning the crime and the defendant."

															"(g) The court shall be authorized to employ an appropriate
staff and such methods to compile such data as are deemed by the
Chief Justice to be appropriate and relevant to the statutory
questions concerning the validity of the sentence."

															"(h) The office of the Assistant shall be attached to the office
of the Clerk of the Supreme Court of Georgia for administrative
purposes."

															"(i) The sentence review shall be in addition to direct appeal,
if taken, and the review and appeal shall be consolidated for
consideration. The court shall render its decision on legal errors
enumerated, the factual substantiation of the verdict, and the
validity of the sentence."

															[ Footnote 4 ]

															Because the death sentence is a disproportionate punishment for
rape, it is cruel and unusual punishment within the meaning of the
Eighth Amendment even though it may measurably serve the legitimate
ends of punishment, and therefore is not invalid for its failure to
do so. We observe that, in the light of the legislative decisions
in almost all of the States and in most of the countries around the
world, it would be difficult to support a claim that the death
penalty for rape is an indispensable part of the States' criminal
justice system.

															[ Footnote 5 ] See Bye, Recent History and Present Status of Capital
Punishment in the United States, 17 J.Crim. L. & C. 234,
241-242 (1926).

															[ Footnote 6 ]

															Ala.Code, Tit. 14, § 395 (1958); Ark.Stat.Ann. § 41-3403 (1964);
Fla.Stat.Ann. § 794.01 (1965); Ga.Code § 26-2001 (1977);
Ky.Rev.Stat.Ann. §§ 435.080-435.090 (1962); La.Rev.Stat.Ann. §
14:42 (1950); Md.Ann.Code, Art. 27, § 461 (1957); Miss.Code Ann. §
2358 (1957); Mo.Rev.Stat. § 559.260 (1969); Nev.Rev.Stat. § 200.360
(1963) (rape with substantial bodily harm); N.C.Gen.Stat. § 14-21
(1969); Okla.Stat.Ann., Tit. 21, § 1115 (1958); S.C.Code Ann. §§
16-72, 180 (1962); Tenn.Code Ann. § 39-3702 (1955); Tex.Penal Code
§ 1189 (1961); Va.Code Ann. § 18.1-44 (1960); 18 U.S.C. § 2031.

															[ Footnote 7 ]

															1976 Okla.Sess.Laws, c. 1, p. 627; 1976 La.Acts, Nos. 657, 694;
1976 Ky.Acts, c. 15 (Ex.Sess.); 1977 Wyo.Sess.Laws, c. 122. Recent
legislative action has taken place in North Carolina, Virginia,
Maryland, California, and New Jersey. The legislation has been
signed into law in North Carolina and Virginia, N.C.Sess.Laws (May
19, 1977); 1977 Va.Acts, c. 492 (Mar. 29, 1977), and has been
vetoed in Maryland and California, Washington Post, May 27, 1977,
p. A1, col. 1; N.Y. Times, May 28, 1977, p. 8, col. 6. The Governor
of New Jersey apparently has not yet acted on the legislation in
that State.

															[ Footnote 8 ]

															The legislation that respondent places in this category is as
follows:

															Ky.Rev.Stat. § 507.020 (1975); La.Rev.Stat.Ann. § 14:30 (1974);
Md.Code Ann., Art. 27, § 413(b) (Supp. 1976); Miss.Code Ann. §§
97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo.Rev.Stat. §§
559.005, 559.009 (Supp. 1975); Nev.Rev.Stat. § 200.030 (1975);
N.C.Gen.Stat. §§ 14-17, 14-21 (Supp. 1975); Okla.Stat.Ann., Tit.
21, §§ 701.1-701.3 (Supp. 1975); S.C.Code Ann. § 16-52 (Supp.
1975); Tenn.Code Ann. §§ 39-2402, 39-2406, 39-3702 (1975); Va.Code
Ann. §§ 18.210, 18.2-31 (1975). Brief for Respondent 19 n. 38.

															[ Footnote 9 ]

															Fla.Stat.Ann. § 794.011(2) (1976); Miss.Code Ann. § 9765 (Supp.
1976); Tenn.Code Ann. § 39-3702 (1974).

															[ Footnote 10 ]

															In Trop v. Dulles, 356 U. S. 86 , 356 U. S. 102 (1958), the plurality took pains to note the climate of
international opinion concerning the acceptability of a particular
punishment. It is thus not irrelevant here that, out of 60 major
nations in the world surveyed in 1965, only 3 retained the death
penalty for rape where death did not ensue. United Nations,
Department of Economic and Social Affairs, Capital Punishment 40,
86 (1968).

															[ Footnote 11 ]

															U.S. Dept. of Justice, Law Enforcement Assistance Administration
Report, Rape and Its Victims: A Report for Citizens, Health
Facilities, and Criminal Justice Agencies 1 (1975), quoting Bard
& Ellison, Crisis Intervention and Investigation of Forcible
Rape, The Police Chief (May 1974), reproduced as Appendix I-B to
the Report.

															[ Footnote 12 ] See Note, The Victim In a Forcible Rape Case; A
Feminist View, 11 Am.Crim.L.Rev. 335, 338 (1973); Comment, Rape and
Rape Laws: Sexism in Society and Law, 61 Calif.L.Rev. 919, 922-923
(1973).

															[ Footnote 13 ] See 433 U. S. 1, supra, for the Georgia definition of rape.

															[ Footnote 14 ]

															There are other aggravating circumstances provided in the
statute, see 433 U. S. 3, supra, but they are not applicable to rape.

															[ Footnote 15 ]

															In Gregg v. Georgia, the Georgia Supreme Court refused
to sustain a death sentence for armed robbery because, for one
reason, death had been so seldom imposed for this crime in other
cases that such a sentence was excessive, and could not be
sustained under the statute. As it did in this case, however, the
Georgia Supreme Court apparently continues to recognize armed
robbery as a capital offense for the purpose of applying the
aggravating circumstances provisions of the Georgia Code.

															[ Footnote 16 ]

															Where the accompanying capital crime is murder, it is most
likely that the defendant would be tried for murder, rather than
rape; and it is perhaps academic to deal with the death sentence
for rape in such a circumstance. It is likewise unnecessary to
consider the rape-felony murder -- a rape accompanied by the death
of the victim which was unlawfully but nonmaliciously caused by the
defendant.

															Where the third aggravating circumstance mentioned in the text
is present -- that the rape is particularly vile or involves
torture or aggravated battery -- it would seem that the defendant
could very likely be convicted, tried, and appropriately punished
for this additional conduct.

															MR. JUSTICE BRENNAN, concurring in the judgment.

															Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 227 (1976) (dissenting opinion), I concur in the judgment of the Court
setting aside the death sentence imposed under the Georgia rape
statute.

															MR. JUSTICE MARSHALL, concurring in the judgment.

															In Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 231 (1976) (dissenting opinion), I stated:

															"In Furman v. Georgia, 408 U. S.
238 , 408 U. S. 314 (1972)
(concurring opinion), I set forth at some length my views on the
basic issue presented to the Court in these cases. The death
penalty, I concluded, is a cruel and unusual punishment prohibited
by the Eighth and Fourteenth Amendments. That continues to be my
view. " Page 433 U. S. 601 I then explained in some detail my reasons for reaffirming my
position. I continue to adhere to those views in concurring in the
judgment of the Court in this case.

															MR. JUSTICE POWELL, concurring in the judgment in part and
dissenting in part.

															I concur in the judgment of the Court on the facts of this case,
and also in the plurality's reasoning supporting the view that,
ordinarily, death is disproportionate punishment for the crime of
raping an adult woman. Although rape invariably is a reprehensible
crime, there is no indication that petitioner's offense was
committed with excessive brutality or that the victim sustained
serious or lasting injury. The plurality, however, does not limit
its holding to the case before us, or to similar cases. Rather, in
an opinion that ranges well beyond what is necessary, it holds that
capital punishment always -- regardless of the
circumstances -- is a disproportionate penalty for the crime of
rape.

															The Georgia statute, sustained in Gregg v. Georgia, 428 U. S. 153 (1976), specifies aggravating circumstances that may be considered
by the jury when appropriate. With respect to the crime of rape,
only three such circumstances are specified: (i) the offense was
committed by a person with a prior record of conviction for a
capital felony; (ii) the offense was committed while the offender
was engaged in another capital felony or in aggravated battery; and
(iii) the offense was "outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim." Ante at 433 U. S.
588 -589, n. 3. Only the third circumstance describes in
general the offense of aggravated rape, often identified as a
separate and more heinous offense than rape. See, e.g., ALI, Model Penal Code § 207.4, Comment, p. 246 (Tent.Draft No. 4,
1955); ALI, Model Penal Code § 213.1 (Prop.Off.Draft, 1962);
Nev.Rev.Stat. § 200.363 (1975). That third circumstance was not
submitted Page 433 U. S. 602 to the jury in this case, as the evidence would not have
supported such a finding. It is therefore quite unnecessary for the
plurality to write in terms so sweeping as to foreclose each of the
50 state legislatures from creating a narrowly defined substantive
crime of aggravated rape punishable by death. [ Footnote 2/1 ]

															In accord with our decisions last Term, the plurality opinion
states:

															"[T]he death penalty is not invariably cruel and unusual
punishment within the meaning of the Eighth Amendment; Page 433 U. S. 603 it is not inherently barbaric or an unacceptable mode of
punishment for crime; neither is it always disproportionate to the
crime for which it is imposed." Ante at 433 U. S. 591 .
Thus, capital punishment may be imposed on those sentenced in
accordance with the procedures identified in Gregg and Woodson v. North Carolina, 428 U.
S. 280 (1976), at least when the offender is convicted
of murder, the crime involved in all five of last Term's capital
cases.

															Today, in a case that does not require such an expansive
pronouncement, the plurality draws a bright line between murder and
all rapes -- regardless of the degree of brutality of the rape or
the effect upon the victim. I dissent because I am not persuaded
that such a bright line is appropriate. As noted in Snider v.
Peyton, 356 F.2d 626, 627 (CA4 1966), "[t]here is extreme
variation in the degree of culpability of rapists." The deliberate
viciousness of the rapist may be greater than that of the murderer.
Rape is never an act committed accidentally. Rarely can it be said
to be unpremeditated. There also is wide variation in the effect on
the victim. The plurality opinion says that

															"[l]ife 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." Ante at 433 U. S. 598 .
But there is indeed "extreme variation" in the crime of rape. Some
victims are so grievously injured physically or psychologically
that life is beyond repair.

															Thus, it may be that the death penalty is not disproportionate
punishment for the crime of aggravated rape. Final resolution of
the question must await careful inquiry into objective indicators
of society's "evolving standards of decency," particularly
legislative enactments and the responses of juries in capital
cases. [ Footnote 2/2 ] See Gregg
v. Georgia, supra at 428 U. S.
173 -182 Page 433 U. S. 604 (joint opinion of STEWART, POWELL, and STEVENS, JJ.); Woodson v. North Carolina, supra at 428 U. S.
294 -295 (plurality opinion); Furman v. Georgia, 408 U. S. 238 , 408 U. S.
436 -443 (1972) (POWELL, J., dissenting). The plurality
properly examines these indicia, which do support the conclusion
that society finds the death penalty unacceptable for the crime of
rape in the absence of excessive brutality or severe injury. But it
has not been shown that society finds the penalty disproportionate
for all rapes. In a proper case, a more discriminating inquiry than
the plurality undertakes well might discover that both juries and
legislatures have reserved the ultimate penalty for the case of an
outrageous rape resulting in serious, lasting harm to the victim. I
would not prejudge the issue. To this extent, I respectfully
dissent.

															[ Footnote 2/1 ]

															It is not this Court's function to formulate the relevant
criteria that might distinguish aggravated rape from the more usual
case, but perhaps a workable test would embrace the factors
identified by Georgia: the cruelty or viciousness of the offender,
the circumstances and manner in which the offense was committed,
and the consequences suffered by the victim. See also Ralph v.
Warden, 438 F.2d 786 (CA4 1970), cert. denied, 408
U.S. 942 (1972); 438 F.2d at 794 (opinion of Haynsworth, C.J.). The
legislative task of defining, with appropriate specificity, the
elements of the offense of aggravated rape would not be easy, see Furman v. Georgia, 408 U. S. 238 , 408 U. S. 460 (1972) (POWELL, J., dissenting), but certainly this Court should
not assume that the task is impossible.

															The dissent of THE CHIEF JUSTICE, relying on selected excerpts
from my opinion in Furman, seeks to buttress the view
that, for sentencing purposes, meaningful distinctions cannot be
drawn between rapes regardless of the circumstances and effect upon
the victim. Post at 433 U. S.
607 -608, n. 2. The dissent emphasizes the difficulties
of proof. But the jury system is designed and operates successfully
to resolve precisely this type of factual issue. The law of
negligence, for example, is replete with issues requiring the jury
to determine degrees of culpability and the extent or permanency of
physical and psychological injury.

															I am complimented by the frequency with which THE CHIEF JUSTICE,
in his dissent, cites and quotes from my opinion in Furman. That opinion, however, did not prevail, and -- as
with most of the writing in Furman -- it now must be read
in light of Gregg and Woodson v. North Carolina, 428 U. S. 280 (1976), which have established the controlling general principles.
But, contrary to implications in THE CHIEF JUSTICE's dissent, my
opinion in Furman did emphasize that the proportionality
test as to rape should be applied on a case-by-case basis, noting
that, in some cases, the death sentence would be "grossly
excessive." 408 U.S. at 408 U. S. 461 .
I remain in disagreement with the simplistic all-or-nothing views
of the plurality opinion and the dissenting opinion of THE CHIEF
JUSTICE.

															[ Footnote 2/2 ]

															These objective indicators are highly relevant, but the ultimate
decision as to the appropriateness of the death penalty under the
Eighth Amendment -- as the plurality notes, ante at 433 U. S. 597 -- must be decided on the basis of our own judgment in light of the
precedents of this Court.

															MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE REHNQUIST joins,
dissenting.

															In a case such as this, confusion often arises as to the Court's
proper role in reaching a decision. Our task is not to give effect
to our individual views on capital punishment; rather, we must
determine what the Constitution permits a State to do under its
reserved powers. In striking down the death penalty imposed upon
the petitioner in this case, the Court has overstepped the bounds
of proper constitutional adjudication by substituting its policy
judgment for that of the state legislature. I accept that the
Eighth Amendment's concept of disproportionality bars the death
penalty for minor crimes. But rape is not a minor crime; hence the
Cruel and Unusual Punishments Clause does not give the Members of
this Court license to engraft their conceptions of proper public
policy onto the considered legislative judgments of the States.
Since I cannot agree that Georgia lacked the constitutional Page 433 U. S. 605 power to impose the penalty of death for rape, I dissent from
the Court's judgment. (1) On December 5, 1971, the petitioner, Ehrlich Anthony Coker,
raped and then stabbed to death a young woman. Less than eight
months later, Coker kidnaped and raped a second young woman. After
twice raping this 16-year-old victim, he stripped her, severely
beat her with a club, and dragged her into a wooded area where he
left her for dead. He was apprehended and pleaded guilty to
offenses stemming from these incidents. He was sentenced by three
separate courts to three life terms, two 20-year terms, and one
8-year term of imprisonment. [ Footnote
3/1 ] Each judgment specified that the sentences it imposed were
to run consecutively, rather than concurrently. Approximately 1 1/2
years later, on September 2, 1974, petitioner escaped from the
state prison where he was serving these sentences. He promptly
raped another 16-year-old woman in the presence of her husband,
abducted her from her home, and threatened her with death and
serious bodily harm. It is this crime for which the sentence now
under review was imposed.

															The Court today holds that the State of Georgia may not impose
the death penalty on Coker. In so doing, it prevents the State from
imposing any effective punishment upon Coker for his latest rape.
The Court's holding, moreover, bars Georgia from guaranteeing its
citizens that they Page 433 U. S. 606 will suffer no further attacks by this habitual rapist. In fact,
given the lengthy sentences Coker must serve for the crimes he has
already committed, the Court's holding assures that petitioner --
as well as others in his position -- will henceforth feel no
compunction whatsoever about committing further rapes as frequently
as he may be able to escape from confinement and indeed even within
the walls of the prison itself. To what extent we have left States
"elbowroom" to protect innocent persons from depraved human beings
like Coker remains in doubt. (2) My first disagreement with the Court's holding is its
unnecessary breadth. The narrow issue here presented is whether the
State of Georgia may constitutionally execute this petitioner for
the particular rape which he has committed, in light of all the
facts and circumstances shown by this record. The plurality opinion
goes to great lengths to consider societal mores and attitudes
toward the generic crime of rape and the punishment for it;
however, the opinion gives little attention to the special
circumstances which bear directly on whether imposition of the
death penalty is an appropriate societal response to Coker's
criminal acts: (a) On account of his prior offenses, Coker is
already serving such lengthy prison sentences that imposition of
additional periods of imprisonment would have no incremental
punitive effect; (b) by his life pattern, Coker has shown that he
presents a particular danger to the safety, welfare, and chastity
of women, and, on his record, the likelihood is therefore great
that he will repeat his crime at the first opportunity; (c)
petitioner escaped from prison only a year and a half after he
commenced serving his latest sentences; he has nothing to lose by
further escape attempts; and (d) should he again succeed in
escaping from prison, it is reasonably predictable that he will
repeat his pattern of attacks on Page 433 U. S. 607 women -- and with impunity, since the threat of added prison
sentences will be no deterrent.

															Unlike the plurality, I would narrow the inquiry in this case to
the question actually presented: does the Eighth Amendment's ban
against cruel and unusual punishment prohibit the State of Georgia
from executing a person who has, within the space of three years,
raped three separate women, killing one and attempting to kill
another, who is serving prison terms exceeding his probable
lifetime, and who has not hesitated to escape confinement at the
first available opportunity? Whatever one's view may be as to the
State's constitutional power to impose the death penalty upon a
rapist who stands before a court convicted for the first time, this
case reveals a chronic rapist whose continuing danger to the
community is abundantly clear.

															MR. JUSTICE POWELL would hold the death sentence inappropriate
in this case because

															"there is no indication that petitioner's offense was committed
with excessive brutality or that the victim sustained serious or
lasting injury." Ante at 433 U. S. 601 .
[ Footnote 3/2 ] Apart from the
reality that rape is inherently one Page 433 U. S. 608 of the most egregiously brutal acts one human being can inflict
upon another, there is nothing in the Eighth Amendment that so
narrowly limits the factors which may be considered by a state
legislature in determining whether a particular punishment is
grossly excessive. Surely recidivism, especially the repeated
commission of heinous crimes, is a factor which may properly be
weighed as an aggravating circumstance, permitting the imposition
of a punishment more severe than for one isolated offense. For
example, as a matter of national policy, Congress has expressed its
will that a person who has committed two felonies will suffer
enhanced punishment for a third one, 18 U.S.C. § 3575(e)(1);
Congress has also declared that a second conviction for assault on
a mail carrier may be punished more seriously than a first such
conviction, 18 U.S.C. § 2114. Many States Page 433 U. S. 609 provide an increased penalty for habitual criminality. See,
e.g., Wis.Stat.Ann. § 939.62 (1958); see also Annot.,
58 A.L.R. 20 (1929); 82 A.L.R. 345 (1933); 79 A.L.R.2d 826 (1961).
[ Footnote 3/3 ] As a factual matter,
the plurality opinion is correct in stating that Coker's "prior
convictions do not change the fact that the instant crime being
punished is a rape not involving the taking of life," ante at 433 U. S. 599 ;
however, it cannot be disputed that the existence of these prior
convictions makes Coker a substantially more serious menace to
society than a first-time offender: [ Footnote 3/4 ]

															"There is a widely held view that those who present the
strongest case for severe measures of incapacitation are not
murderers as a group (their offenses often are situational), but rather those who have repeatedly engaged in violent,
combative behavior. A well demonstrated Page 433 U. S. 610 propensity for life-endangering behavior is thought to provide a
more solid basis for infliction of the most severe measures of
incapacitation than does the fortuity of a single homicidal
incident."

															Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev.
1071, 1080 (1964). (Emphasis added.)

															In my view, 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. See Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 183 n. 28 (1976). Only one year ago, MR. JUSTICE WHITE succinctly
noted: "[D]eath finally forecloses the possibility that a prisoner
will commit further crimes, whereas life imprisonment does not." Roberts v. Louisiana, 428 U. S. 325 , 428 U. S. 354 (1976) (dissenting opinion); see also Furman v. Georgia, 408 U.S. at 408 U. S. 311 (WHITE, J., concurring).

															In sum, once the Court has held that "the punishment of death
does not invariably violate the Constitution," Gregg v.
Georgia, supra at 428 U. S. 169 ,
it seriously impinges upon the State's legislative judgment to hold
that it may not impose such sentence upon an individual who has
shown total and repeated disregard for the welfare, safety,
personal integrity and human worth of others, and who seemingly
cannot be deterred from continuing such conduct. [ Footnote 3/5 ] I therefore would Page 433 U. S. 611 hold that the death sentence here imposed is within the power
reserved to the State, and leave for another day the question of
whether such sanction would be proper under other circumstances.
The dangers which inhere whenever the Court casts its
constitutional decisions in terms sweeping beyond the facts of the
case presented, are magnified in the context of the Eighth
Amendment. In Furman v. Georgia, supra at 408 U. S. 431 ,
MR. JUSTICE POWELL, in dissent, stated:

															"[W]here, as here, the language of the applicable
[constitutional] provision provides great leeway, and where the
underlying social policies are felt to be of vital importance, the
temptation to read personal preference into the Constitution is
understandably great. It is too easy to propound our subjective
standards of wise policy under the rubric of more or less
universally held standards of decency. "

															(Emphasis added.) Since the Court now invalidates the death
penalty as a sanction for all rapes of adults at all times under
all circumstances, [ Footnote 3/6 ] I
reluctantly turn to what I see as the broader issues raised by this
holding. (3) The plurality, ante at 433 U. S.
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 Page 433 U. S. 612 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 433 U. S. 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 433 U. S. 601 ,
versus "moderately brutal," takes too little account of the
profound suffering the crime imposes upon the victims and their
loved ones. Despite its strong condemnation of rape, the Court reaches the
inexplicable conclusion that "the death penalty . . . is an
excessive penalty" for the perpetrator of this heinous offense.
[ Footnote 3/7 ] This, the Court
holds, is true even though, in Georgia, the death penalty may be
imposed only where the rape is coupled with one or more aggravating
circumstances. The process by which this conclusion is reached is
as startling as it is disquieting. It represents a clear departure
from precedent by making this Court,

															"under the aegis of the Cruel and Unusual Punishments Clause,
the ultimate arbiter of the standards of criminal responsibility in
diverse areas of the Page 433 U. S. 613 criminal law, throughout the country." Powell v. Texas, 392 U. S. 514 , 392 U. S. 533 (1968) (opinion of MARSHALL, J.). [ Footnote 3/8 ] This seriously strains and distorts our
federal system, removing much of the flexibility from which it has
drawn strength for two centuries.

															The analysis of the plurality opinion is divided into two parts:
(a) an "objective" determination that most American jurisdictions
do not presently make rape a capital offense, and (b) a subjective
judgment that death is an excessive punishment for rape because the
crime does not, in and of itself, cause the death of the victim. I
take issue with each of these points. (a) The plurality opinion bases its analysis, in part, on the fact
that

															"Georgia is the sole jurisdiction in the United States at the
present time that authorizes a sentence of death when the rape
victim is an adult woman." Ante at 433 U. S.
595 -596. Surely, however, this statistic cannot be
deemed determinative, or even particularly relevant. As the opinion
concedes, ante at 433 U. S. 594 , two other States -- Louisiana and North
Carolina -- have enacted death penalty statutes for adult rape
since this Court's 1972 decision in Furman v. Georgia, 408 U. S. 238 . If
the Court is to rely on some "public opinion" process, does this
not suggest the beginning of a "trend"? Page 433 U. S. 614 More to the point, however, it is myopic to base sweeping
constitutional principles upon the narrow experience of the past
five years. Considerable uncertainty was introduced into this area
of the law by this Court's Furman decision. A large number
of States found their death penalty statutes invalidated;
legislatures were left in serious doubt by the expressions
vacillating between discretionary and mandatory death penalties, as
to whether this Court would sustain any statute imposing
death as a criminal sanction. [ Footnote
3/9 ] Failure of more States to enact statutes imposing death
for rape of an adult woman may thus reflect hasty legislative
compromise occasioned by time pressures following Furman, a desire to wait on the experience of those States which did enact
such statutes, or simply an accurate forecast of today's
holding

															In any case, when considered in light of the experience since
the turn of this century, where more than one-third of American
jurisdictions have consistently provided the death penalty for
rape, the plurality's focus on the experience of the immediate past
must be viewed as truly disingenuous. Having in mind the swift
changes in positions of some Members of this Court in the short
span of five years, can it rationally be considered a relevant
indicator of what our society deems "cruel and unusual" to look
solely to what legislatures have refrained from doing
under conditions of great uncertainty arising from our less than
lucid holdings on the Eighth Amendment? Far more representative of
societal mores of the 20th century is the accepted Page 433 U. S. 615 practice in a substantial number of jurisdictions preceding the Furman decision. "[The] problem . . . is the suddenness of
the Court's perception of progress in the human attitude since
decisions of only a short while ago." Furman v. Georgia,
supra at 408 U. S. 410 (BLACKMUN, J., dissenting). Cf. Rudolph v. Alabama, 375 U. S. 889 (1963).

															However, even were one to give the most charitable acceptance to
the plurality's statistical analysis, it still does not, to my
mind, support its conclusion. The most that can be claimed is that,
for the past year, Georgia has been the only State whose adult rape
death penalty statute has not otherwise been invalidated; two other
state legislatures had enacted rape death penalty statutes in the
last five years, but these were invalidated for reasons unrelated
to rape under the Court's decisions last Term. Woodson v. North
Carolina, 428 U. S. 280 (1976); Roberts v. Louisiana, 428 U.
S. 325 (1976). Even if these figures could be read as
indicating that no other States view the death penalty as an
appropriate punishment for the rape of an adult woman, it would not
necessarily follow that Georgia's imposition of such sanction
violates the Eighth Amendment.

															The Court has repeatedly pointed to the reserve strength of our
federal system, which allows state legislatures, within broad
limits, to experiment with laws, both criminal and civil, in the
effort to achieve socially desirable results. See, e.g., Whalen
v. Roe, 429 U. S. 589 , 429 U. S.
597 -598, and n. 22 (1977); Johnson v.
Louisiana, 406 U. S. 356 , 406 U. S. 376 (1972) (opinion of POWELL, J.); California v. Green, 399 U. S. 149 , 399 U. S.
184 -185 (1970) (Harlan, J., concurring); Fay v. New
York, 332 U. S. 261 , 332 U. S. 296 (1947). Various provisions of the Constitution, including the
Eighth Amendment and the Due Process Clause, of course, place
substantive limitations on the type of experimentation a State may
undertake. However, as the plurality admits, the crime of rape is
second perhaps only to murder in its gravity. It follows then that
Georgia did not approach Page 433 U. S. 616 such substantive constraints by enacting the statute here in
question. See also infra at 433 U. S.
619 -622.

															Statutory provisions in criminal justice applied in one part of
the country can be carefully watched by other state legislatures,
so that the experience of one State becomes available to all.
Although human lives are in the balance, it must be remembered that
failure to allow flexibility may also jeopardize human lives
--those of the victims of undeterred criminal conduct. See
infra at 433 U. S. 620 .
Our concern for the accused ought not foreclose legislative
judgments showing a modicum of consideration for the potential
victims.

															Three state legislatures have, in the past five years,
determined that the taking of human life and the devastating
consequences of rape will be minimized if rapists may, in a limited
class of cases, be executed for their offenses. [ Footnote 3/10 ] That these States are presently a
minority does not, in my view, make their judgment less worthy of
deference. Our concern for human life must not be confined to the
guilty; a state legislature is not to be thought insensitive to
human values because it acts firmly to protect the lives and
related values of the innocent. In this area, the choices for
legislatures are, at best, painful and difficult, and deserve a
high degree of deference. Only last Term, MR. JUSTICE WHITE
observed:

															"It will not do to denigrate these legislative judgments as some
form of vestigial savagery or as purely retributive in motivation;
for they are solemn judgments, reasonably based, that imposition of
the death penalty will save the lives of innocent persons. This
concern for life and human values and the sincere efforts of the
States to pursue them are matters of the greatest moment with
which the judiciary should be most reluctant to Page 433 U. S. 617 interfere. " Roberts v. Louisiana, supra at 428 U. S. 355 (dissenting opinion). (Emphasis added.)

															The question of whether the death penalty is an appropriate
punishment for rape is surely an open one. It is arguable that many
prospective rapists would be deterred by the possibility that they
could suffer death for their offense; it is also arguable that the
death penalty would have only minimal deterrent effect. [ Footnote 3/11 ] It may well be that rape
victims would become more willing to report the crime and aid in
the apprehension of the criminals if they knew that community
disapproval of rapists was sufficiently strong to inflict the
extreme penalty; or perhaps they would be reluctant to cooperate in
the prosecution of rapists if they knew that a conviction might
result in the imposition of the death penalty. Quite possibly, the
occasional well publicized execution of egregious rapists may cause
citizens to feel greater security in their daily lives; [ Footnote 3/12 ] or, on the contrary, it
may be that members of a civilized community will suffer the pangs
of a heavy conscience because such punishment will be perceived as
excessive. [ Footnote 3/13 ] We
cannot know which among Page 433 U. S. 618 this range of possibilities is correct, but today's holding
forecloses the very exploration we have said federalism was
intended to foster. It is difficult to believe that Georgia would
long remain alone in punishing rape by death if the next decade
demonstrated a drastic reduction in its incidence of rape, an
increased cooperation by rape victims in the apprehension and
prosecution of rapists, and a greater confidence in the rule of law
on the part of the populace.

															In order for Georgia's legislative program to develop, it must
be given time to take effect, so that data may be evaluated for
comparison with the experience of States which have not enacted
death penalty statutes. Today, the Court repudiates the State's
solemn judgment on how best to deal with the crime of rape before
anyone can know whether the death penalty is an effective deterrent
for one of the most horrible of all crimes. And this is done a few
short years after MR. JUSTICE POWELL's excellent statement:

															"In a period in our country's history when the frequency of
[rape] is increasing alarmingly, it is indeed a grave event for the
Court to take from the States whatever deterrent and retributive
weight the death penalty retains." Furman v. Georgia, 408 U.S. at 408 U. S. 459 (dissenting opinion) (footnote omitted). To deprive States of this
authority as the Court does, on the basis that

															"[t]he current judgment with respect to the death penalty for
rape . . . weighs very heavily on the side of rejecting capital
punishment as a suitable penalty for raping an adult woman," ante at 433 U. S. 596 ,
is impermissibly rash. The current judgment of some Members of this
Court has undergone significant change in the short time since Furman. [ Footnote 3/14 ]
Social change on great issues generally reveals itself in small
increments, and the "current judgment" of many States could Page 433 U. S. 619 well be altered on the basis of Georgia's experience, were we to
allow its statute to stand. [ Footnote
3/15 ] (b) The subjective judgment that the death penalty is simply
disproportionate to the crime of rape is even more disturbing than
the "objective" analysis discussed supra. The plurality's
conclusion on this point is based upon the bare fact that murder
necessarily results in the physical death of the victim, while rape
does not. Ante at 433 U. S. 598 -599, 433 U. S. 600 .
However, no Member of the Court explains why this distinction has
relevance, much less constitutional significance. It is, after all,
not irrational -- nor constitutionally impermissible -- for a
legislature to make the penalty more severe than the criminal act
it punishes [ Footnote 3/16 ] in
the hope it would deter wrongdoing:

															"We may not require the legislature to select the least severe
penalty possible so long as the penalty selected is not cruelly
inhumane or disproportionate to the crime involved." Gregg v. Georgia, 428 U.S. at 428 U. S. 175 . Accord, Furman v. Georgia, supra at 408 U. S. 451 (POWELL, J., dissenting).

															It begs the question to state, as does the plurality
opinion:

															"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." Ante at 433 U. S.
598 . Page 433 U. S. 620 Until now; the issue under the Eighth Amendment has not been the
state of any particular victim after the crime, but rather whether
the punishment imposed is grossly disproportionate to the evil
committed by the perpetrator. See Gregg v. Georgia, supra at 428 U. S. 173 ; Furman v. Georgia, supra at 408 U. S. 458 (POWELL, J., dissenting). As a matter of constitutional principle,
that test cannot have the primitive simplicity of "life for life,
eye for eye, tooth for tooth." Rather, States must be permitted to
engage in a more sophisticated weighing of values in dealing with
criminal activity which consistently poses serious danger of death
or grave bodily harm. If innocent life and limb are to be
preserved, I see no constitutional barrier in punishing by death
all who engage in such activity, regardless of whether the risk
comes to fruition in any particular instance. See Packer,
77 Harv.L.Rev. at 1077-1079.

															Only one year ago, the Court held it constitutionally
permissible to impose the death penalty for the crime of murder,
provided that certain procedural safeguards are followed. Compare Gregg v. Georgia, supra; Proffitt v. Florida, 428 U. S. 242 (1976), and Jurek v. Texas, 428 U.
S. 262 (1976), with Roberts v. Louisiana, 428 U. S. 325 (1976), and Woodson v. North Carolina, 428 U.
S. 280 (1976). Today, the plurality readily admits that
"[s]hort of homicide, [rape] is the ultimate violation of
self.'" Ante at 433 U. S. 597 .
Moreover, as stated by MR. JUSTICE POWELL: "The threat of serious injury is implicit in the definition of
rape; the victim is either forced into submission by physical
violence or by the threat of violence." Furman v. Georgia, supra at 408 U. S. 460 (dissenting opinion). Rape thus is not a crime "light years"
removed from murder in the degree of its heinousness; it certainly
poses a serious potential danger to the life and safety of innocent
victims -- apart from the devastating psychic consequences. It
would Page 433 U. S. 621 seem to follow therefore that, affording the States proper
leeway under the broad standard of the Eighth Amendment, [ Footnote 3/17 ] if murder is properly
punishable by death, rape should be also, if that is the considered
judgment of the legislators.

															The Court's conclusion to the contrary is very disturbing
indeed. The clear implication of today's holding appears to be that
the death penalty may be properly imposed only as to crimes
resulting in death of the victim. This casts serious doubt upon the
constitutional validity of statutes imposing the death penalty for
a variety of conduct which, though dangerous, may not necessarily
result in any immediate death, e.g., treason, airplane
hijacking, and kidnaping. In that respect, today's holding does
even more harm than is initially apparent. We cannot avoid taking
judicial notice that crimes such as airplane hijacking, kidnaping,
and mass terrorist activity constitute a serious and increasing
danger to the safety of the public. It would be unfortunate indeed
if the effect of today's holding were to inhibit States and the
Federal Government from experimenting with various remedies --
including possibly imposition of the penalty of death -- to prevent
and deter such crimes. Page 433 U. S. 622 Some sound observations, made only a few years ago, deserve
repetition:

															"Our task here, as must so frequently be emphasized and
reemphasized, is to pass upon the constitutionality of legislation
that has been enacted and that is challenged. This is the sole task
for judges. We should not allow our personal preferences as to the
wisdom of legislative and congressional action, or our distaste for
such action, to guide our judicial decision in cases such as these.
The temptations to cross that policy line are very great. In fact,
as today's decision reveals, they are almost irresistible." Furman v. Georgia, 408 U.S. at 408 U. S. 411 (BLACKMUN, J., dissenting).

															Whatever our individual views as to the wisdom of capital
punishment, I cannot agree that it is constitutionally
impermissible for a state legislature to make the "solemn judgment"
to impose such penalty for the crime of rape. Accordingly, I would
leave to the States the task of legislating in this area of the
law.

															[ Footnote 3/1 ]

															On March 12, 1973, the Superior Court of Richmond County, Ga.
sentenced Coker to 20 years' imprisonment for the kidnaping of
petitioner's second victim, and to life imprisonment for one act of
rape upon her. On May 28, 1973, the Superior Court of Taliaferro
County, Ga. sentenced Coker to eight years' imprisonment for
aggravated assault upon the same victim, and to life imprisonment
for the second rape upon her. On April 6, 1973, the Superior Court
of Clayton County, Ga. sentenced Coker to 20 years' imprisonment
for the rape of petitioner's first victim, and to life imprisonment
for her murder. App. 307-312.

															[ Footnote 3/2 ]

															The position today adopted by Mr. JUSTICE POWELL constitutes a
disquieting shift from the view he embraced several Terms ago in Furman v. Georgia, 408 U. S. 238 , 408 U. S.
460 -461 (1972) (dissenting opinion), where he
stated:

															"While I reject each of [petitioners'] attempts to establish
specific categories of cases in which the death penalty may be
deemed excessive, I view them as groping toward what is, for me,
the appropriate application of the Eighth Amendment. While, in my
view, the disproportionality test may not be used either to
strike down the death penalty for rape altogether or to install the
Court as a tribunal for sentencing review, that test may find its
application in the peculiar circumstances of specific cases. Its
utilization should be limited to the rare case in which the death
penalty is rendered for a crime technically falling within the
legislatively defined class but factually falling outside the
likely legislative intent in creating the category. "

															(Emphasis added.)

															While MR. JUSTICE POWELL purports to dissent from the broadest
sweep of the Court's holding, I cannot see that his view differs
materially from that of the plurality. He suggests two situations
where it might be proper to execute rapists: (1) where the "offense
[is] committed with excessive brutality"; and (2) where "the victim
sustained serious or lasting injury." The second part of this test
was rejected by MR. JUSTICE POWELL himself in Furman, and
with good reason:

															"[T]he emotional impact [upon the rape victim] may be impossible
to gauge at any particular point in time. The extent and duration
of psychological trauma may not be known or ascertainable prior to
the date of trial." Id. at 408 U. S. 460 .
Can any Member of the Court state with confidence that a
16-year-old woman who is raped in the presence of her husband three
weeks after giving birth to a baby "sustained [no] serious or
lasting injury"? This bifurcation of rape into categories of
harmful and nonharmful eludes my comprehension.

															The difficulty with the first part of MR. JUSTICE POWELL's test
is that rape is inherently an aggravated offense; in MR. JUSTICE
POWELL's own words, "the threat of both [physical and
psychological] injury is always present." Id. at 408 U. S. 459 .
Therefore, the "excessive brutality" requirement must refer to
something more, I assume, than the force normally associated with
physically coercing or overpowering the will of another. Rather,
what must be meant is that the rapist has engaged in torture or has
committed an aggravated battery upon the victim. See ante at 433 U. S.
601 -602, and n. 1. However, torture and aggravated
battery are offenses separate from rape, and ordinarily are
punished separately. The clear negative inference of MR. JUSTICE
POWELL's analysis therefore appears to be that, where rape alone is
committed, i.e., rape unaccompanied by any other criminal
conduct, the death penalty may never be imposed.

															[ Footnote 3/3 ]

															This Court has consistently upheld the constitutional validity
of such punishment-enhancing statutes. See, e.g., Spencer v.
Texas, 385 U. S. 554 , 385 U. S.
559 -560 (1967):

															"No claim is made here that recidivist statutes are . . .
unconstitutional, nor could there be under our cases. Such statutes
and other enhanced sentence laws, and procedures designed to
implement their underlying policies, have been enacted in all the
States, and by the Federal Government as well. . . . Such statutes
. . . have been sustained in this Court on several occasions
against contentions that they violate constitutional strictures
dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal
protection, and privileges and immunities."

															(Footnote and citations omitted; emphasis added.) Accord,
Oyler v. Boles, 368 U. S. 448 , 368 U. S. 451 (1962).

															[ Footnote 3/4 ]

															This special danger is demonstrated by the very record in this
case. After tying and gagging the victim's husband, and raping the
victim, petitioner sought to make his getaway in their automobile.
Leaving the. victim's husband tied and gagged in his bathroom,
Coker took the victim with him. As he started to leave, he
brandished the kitchen knife he was carrying and warned the husband
that,

															"if he would get pulled over or the police was following him in
any way, that he would kill -- he would kill my wife. He said
he didn't have nothing to lose -- that he was in prison for the
rest of his life, anyway. . . ."

															Testimony of the victim's husband, App. 121 (emphasis
added).

															[ Footnote 3/5 ]

															Professor Packer addressed this:

															"What are we to do with those whom we cannot reform, and, in
particular, those who, by our failure, are thought to remain
menaces to life? Current penal theories admit, indeed insist upon,
the need for permanent incapacitation in such cases. Once this need
is recognized, the death penalty as a means of incapacitation for
the violent psychopath can hardly be objected to on grounds that
will survive rational scrutiny, if the use of the death penalty
in any situation is to be permitted. And its use in rape cases
as a class, while inept, is no more so than its use for any other
specific offense involving danger to life and limb."

															Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1081
(1964). (Emphasis added.)

															[ Footnote 3/6 ]

															I find a disturbing confusion as to this issue in the plurality
opinion. The issue is whether Georgia can, under any circumstances
and for any kind of rape -- "mild" or "gross" -- impose the death
penalty. Yet the plurality opinion opens its discussion, apparently
directed at demonstrating that this was not an "aggravated" rape,
saying that, following the rape and kidnaping, "Mrs. Carver was
unharmed." Ante at 433 U. S. 587 .
If the Court is holding that no rape can ever be punished by death,
why is it relevant whether Mrs. Carver was "unharmed"?

															[ Footnote 3/7 ]

															While only three Justices have joined MR. JUSTICE WHITE in this
portion of his opinion, see separate opinion of MR.
JUSTICE POWELL, ante, p. 433 U. S. 601 ,
I take this to be the view of the Court in light of MR. JUSTICE
BRENNANS and MR. JUSTICE MARSHALL's statements joining the
judgment.

															[ Footnote 3/8 ]

															Only last Term, in Gregg v. Georgia, 428 U.
S. 153 (1976), MR. JUSTICE STEWART, MR. JUSTICE POWELL,
and MR. JUSTICE STEVENS warned that "the requirements of the Eighth
Amendment must be applied with an awareness of the limited role to
be played by the courts," and noted that "we may not act as judges
as we might as legislators," id. at 428 U. S.
174 -175. Accord, Roberts v. Louisiana, 428 U. S. 325 , 428 U. S.
355 -356 (1976) (WHITE, J., dissenting). MR. JUSTICE
STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS further noted
that

															"[t]he deference we owe to decisions of the state legislatures
under our federal system, [ Furman v. Georgia, 408 U.S.] at 408 U. S. 465 -470
(REHNQUIST, J., dissenting), is enhanced where the specification of
punishments is concerned, for ' these are peculiarly questions
of legislative policy. ' Gore v. United States, 357 U. S.
386 , 357 U. S. 393 (1958)."

															428 U.S. at 428 U. S. 176 .
(Emphasis added.)

															[ Footnote 3/9 ]

															I take no satisfaction in my predictive caveat in Furman: "Since there is no majority of the Court on the ultimate issue
presented in these cases, the future of capital punishment in this
country has been left in an uncertain limbo. Rather than providing
a final and unambiguous answer on the basic constitutional
question, the collective impact of the majority's ruling is to
demand an undetermined measure of change from the various state
legislatures and the Congress."

															408 U.S. at 408 U. S. 403 (dissenting opinion).

															[ Footnote 3/10 ]

															The statute here in question does not provide the death penalty
for any and all rapes. Rather, the jury must find that at least one
statutorily defined aggravated circumstance is present. Ga.Code §§
23102, 27-2534.1(b)(1), (2), and (7) (1977).

															[ Footnote 3/11 ]

															"The value of capital punishment as a deterrent of crime is a
complex factual issue the resolution of which properly rests with
the legislatures, which can evaluate the results of statistical
studies in terms of their own local conditions and with a
flexibility of approach that is not available to the courts. Furman v. Georgia, [408 U.S.] at 408 U. S.
403 -405 (BURGER, C.J., dissenting)." Gregg v. Georgia, 428 U.S. at 428 U. S. 186 (joint opinion of STEWART, POWELL, and STEVENS, JJ.).

															[ Footnote 3/12 ]

															"There are many cases in which the sordid, heinous nature of a
particular [rape], demeaning, humiliating, and often physically or
psychologically traumatic, will call for public condemnation." Furman v. Georgia, 408 U.S. at 408 U. S. 459 (POWELL, J., dissenting).

															[ Footnote 3/13 ]

															Obviously I have no special competence to make these judgments,
but, by the same token, no other Member of the Court is competent
to make a contrary judgment. This is why our system has, until now,
left these difficult policy choices to the state legislatures,
which may be no wiser, but surely are more attuned to the mores of
their communities, than are we.

															[ Footnote 3/14 ]

															Indeed as recently as 1971 -- a year before Furman -- a
majority of this Court appeared to have no doubt about the
constitutionality of the death penalty. See McGautha v.
California, 402 U. S. 183 (1971).

															[ Footnote 3/15 ]

															To paraphrase MR. JUSTICE POWELL,

															"[w]hat [the Court is] saying, in effect, is that the
evolutionary process has come suddenly to an end; that the ultimate
wisdom as to the appropriateness of capital punishment [for adult
rape] under all circumstances, and for all future generations, has
somehow been revealed." Furman v. Georgia, supra at 408 U. S.
430 -431 (dissenting opinion).

															[ Footnote 3/16 ]

															For example, hardly any thief would be deterred from stealing if
the only punishment upon being caught were return of the money
stolen.

															[ Footnote 3/17 ]

															MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE
STEVENS, in Gregg v. Georgia, noted:

															"[I]n assessing a punishment selected by a democratically
elected legislature against the constitutional measure [of the
Eighth Amendment], we presume its validity. . . . [A] heavy
burden rests on those who would attack the judgment of the
representatives of the people. "

															428 U.S. at 428 U. S. 175 (emphasis added). Accord, Furman v. Georgia, supra at 408 U. S. 451 (POWELL, J., dissenting).

															The reason for this special deference to state legislative
enactments was described:

															"This is true in part because the constitutional test is
intertwined with an assessment of contemporary standards and the
legislative judgment weighs heavily in ascertaining such standards.
'[I]n a democratic society, legislatures, not courts, are
constituted to respond to the will, and, consequently, the moral
values, of the people.' Furman v. Georgia, [408 U.S.] at 408 U. S. 383 (BURGER, C.
J., dissenting). 428 U.S. at 428 U. S.
175 -176."

Summary:
Here is a summary of the U.S. Supreme Court case Coker v. Georgia, 433 U.S. 584 (1977):

Issue: Whether the death penalty for rape is a cruel and unusual punishment in violation of the Eighth Amendment.

Holding: The Court held that the death penalty for rape is "grossly disproportionate and excessive punishment" and is therefore forbidden by the Eighth Amendment.

Reasoning: The Court reasoned that the Eighth Amendment prohibits not only "barbaric" punishments but also those that are "excessive" in relation to the crime committed. A punishment is "excessive" if it makes no meaningful contribution to acceptable goals of punishment or is grossly disproportionate to the severity of the crime. The Court found that the death penalty for rape was disproportionate, as evidenced by the fact that Georgia was the only state at the time that authorized the death penalty for rape of an adult woman. The Court also noted that juries in Georgia rarely imposed the death sentence for rape, indicating that public judgment did not support such a severe penalty. While acknowledging the seriousness of rape, the Court distinguished it from murder, stating that rape, unlike murder, does not unjustifiably take human life.

Disposition: The judgment upholding the death sentence was reversed, and the case was remanded.