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.

Of course, for all of the shortcomings of Coker, at least it did leave open the door for those states wishing to craft narrowly tailored statutes allowing for the execution of those who commit the crime of aggravated rape against a child. No one could argue seriously that the victim of child rape has any real prospect of living a reasonably normal life. I hope the Court will make the right decision in 2008 – one that will, in part, mitigate a bad decision rendered in 1977.

As I write this column, just a few short weeks have passed since a 95-year old woman was raped in the upstairs bedroom of her home in downtown Wilmington, North Carolina. Sadly, there is no prospect that this man will ever be caught, tried, convicted, and executed. The Court does not allow the execution of those who rape adults - even those who rape 95 year olds who will never see life return to anything like a “normal” state of affairs.

The people of Georgia had it right a third of a century ago when they sought to execute Mr. Coker for the aggravated rape of a teenaged girl. After all, he had killed someone before, raped a teenager before, and raped again after escaping from prison. Why should they put him back in prison just to decide whether he wanted to rape people on the inside or escape again to rape people on the outside? Death is the only reasonable deterrent for such a hardened criminal.

The necessity of executing people like Coker should be readily apparent to anyone – regardless of his state of moral “evolution.” The need to execute those who rape our grandchildren – and grandmothers, for that matter – should be just as apparent to the enlightened mind.

Regrettably, the Supreme Court is now involved in the very complex business of deciding whether some kind of “trend” dictates the constitutionality of the child rape statute. That is a question best left for the states in reliance on both common law and common sense.