With due respect, I don't know that I agree with the premise of your post. The Supreme Court has opined in Enmund v. Florida that, in the "vicarious" felony murder situation, death is disproportionate, and thus cruel and unusual punishment, for an actor who did not himself kill, intend to kill or attempt to kill. In Coker v. Georgia a four justice plurality opined that death is a disproportionate penalty for the rape of an adult woman. Justice Powell, concurring in part and dissenting in part, opined that "[t]oday, 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. . . . '[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 unpremediated. There also is wide variation in the effect on the victim." Justice Powell left open the possibility that the death penalty is not always disproportionate punishment for the crime of aggravated rape. In Coker, the Powell concurrence was "th[e] position taken by those Members who concurred in the judgmen[t] on the narrowest grounds" in a case where no single rationale commanded a majority. Under such circumstances, the Powell concurrence may be viewed as the holding of the Court pursuant to the rule of Marks v. United States.
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