He was eligible for capital punishment because he had been previously convicted of a crime that carried the death penalty and because he committed the rape in the course of committing an armed robbery, which was another crime that carried the death penalty. 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. Only last Term in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.

(Emphasis added. (Emphasis added.). 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. See, e.g., Wis.Stat.Ann. (A) heavy burden rests on those who would attack the judgment of the representatives of the people.' More to the point, however, it is myopic to base sweeping constitutional principles upon the narrow experience of the past five years.

Gregg v. Georgia, 428 U.S. at 428 U. S. 186 (joint opinion of STEWART, POWELL, and STEVENS, JJ.). 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. The deliberate viciousness of the rapist may be greater than that of the murderer. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U. S., at 187, is an excessive penalty for the rapist who, as such, does not take human life. See Packer, 77 Harv.L.Rev., at 1077-1079. The Court's conclusion to the contrary is very disturbing indeed. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.

Approximately 1 1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. ", "(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.

Our concern for the accused ought not foreclose legislative judgments showing a modicum of consideration for the potential victims.

), 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. Accordingly, I would leave to the States the task of legislating in this area of the law.

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.

This bifurcation of rape into categories of harmful and nonharmful eludes my comprehension. 121 (emphasis added).

Ehrlich Anthony COKER, Petitioner, v. State of GEORGIA.

The current judgment of some Members of this Court has undergone significant change in the short time since Furman.

793 (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. Furman v. Georgia, (408 U.S.,) at 403-405, 92 S.Ct., at 2810-2812 (Burger, C. J., dissenting).'

Both the conviction and the sentence were affirmed by the Georgia Supreme Court. Pp. 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 179-182, 96 S.Ct., at 2928-2929.

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.

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.

.

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.' The statute here in question does not provide the death penalty for any and all rapes. 1975); Tenn.Code Ann. 27, § 413(b) (Supp. [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 process by which this conclusion is reached is as startling as it is disquieting. § 9765 (Supp.

. This is the sole task for judges.

He suggests two situations where it might be proper to execute rapists: (1) where the 'offense (is) committed. 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.". practice in a substantial number of jurisdictions preceding the Furman decision. § 2114. Brennan echoed Marshall in using this case as another platform to voice his belief that the death penalty is categorically unconstitutional under the Eighth Amendment. 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.

P. 433 U. S. 601. 2909, 2971, 49 L.Ed.2d 859 (1976) (dissenting opinion), I concur in the judgment of the Court setting aside the death sentence imposed under the Georgia rape statute.

.

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