Over the course of the last two years I’ve been telling my students about an important case making its way up to the United States Supreme Court. The State of Louisiana has been seeking to execute those who are convicted of the aggravated rape of children. As of this writing the Supremes are approaching a decision in that case – one that would not have been difficult but for the legacy of Chief Justice Earl Warren.

Our Founding Fathers would never have imagined the constitutionality of executing rapists to be a serious question. Indeed my own state, North Carolina, considered rape – along with murder, burglary, and arson – to be punishable by death for the better part of the 20th Century. None of this would be controversial until some time after the Court – led by Chief Justice Earl Warren – announced that it had somehow inherited a new standard for declaring statutes in violation of the Eighth Amendment’s ban on Cruel and Unusual Punishment.

That standard is now known as the “evolving standard of decency.” The case of Coker v. Georgia (1977) may well represent its most indecent application. I argue that the case was wrong on at least two counts.

First, in its application of the concept of “evolving standards of decency,” the Court rightly noted that after the re-instatement of the death penalty in America (see Furman v. Georgia, 1972) most states had elected not to classify rape as a capital offense. But, strangely, the Court also cited as evidence of an “evolving standard of decency” that citizens of Georgia had in recent years declined to impose the sentence of death in over 90% of the cases when given the option. This should have signaled to the Court that the people of Georgia had been cautiously reserving the ultimate penalty of death for the most aggravated of cases.

But, instead, the Court saw this as evidence that Georgians were catching up to more “advanced” notions of punishment. Since they seemed to be catching up on their own it was not unreasonable to force them to adopt the views of (what they believed to be) the majority: Those who believe rape should be punished by no more than life without parole.

This strange logic was supplemented with some rather disturbing statements about the severity of rape relative to murder. The Court indicated its agreement with the punishment of murder with death. But the Court dubbed death to be a disproportionate punishment for rape reasoning that the adult rape victim can still live a relatively normal life – even after suffering from an aggravated rape.

Here, two more problems emerge – one logical and the other empirical. To all except those who believe that the theft of $1000 could be deterred by a fine of less than $1000 (say $800) the logical problem is readily apparent. To all who have suffered - or who know someone who has suffered an aggravated rape – the empirical invalidity of the Court’s statements about life after rape is readily apparent. Continued...