Some crimes are so horrific – think prolonged torture, serious maiming or brutal rape – that they leave you wondering whether the victim might have preferred to die. How does one persevere after suffering an unspeakable tragedy? Judges are not immune to this type of thinking, and on occasion a judge will reason that the crime should be treated as the equivalent of murder, or that the defendant should have been put to death for their conduct.

The United States Supreme Court has addressed this very issue, twice holding that the death penalty is unavailable for non-homicide crimes, and that homicide is legally and morally the more serious crime. The Court rejected the death penalty for the rape of an adult woman in Coker v Georgia, 433 US 584 (1977) (plurality opinion), concluding that the crime of rape does not compare to murder either on a moral or legal basis, and that the victim retains a life that might be repaired for a non-homicide crime:

Rape is without doubt deserving of serious punishment but in terms of moral depravity and of the injury to the person and the public, it does not compare to 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. The murderer kills; the rapist, if not more than that, does not. Life is over for the victim of the murdered; 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 187, is an excessive penalty for the rapist who, as such, does not take human life. [Coker, 433 US at 598.]

The Court similarly rejected the death penalty for a brutal rape of the defendant’s eight-year-old stepdaughter in Kennedy v Louisiana, 554 US 407 (2008) (a case with horrific facts where the child needed emergency surgery because of the rape), concluding once again that murder is morally and legally more serious than non-homicide crimes:

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” Coker, 433 U.S. at 598 (plurality opinion), they cannot be compared to murder in their “severity and irrevocability.” Ibid. [Kennedy, 554 US at 438.]

These two cases filtered through the lens of Michigan law make several important points. First, when sentencing for a horrific non-homicide crime, analogy to the sentencing guidelines for second-degree murder would be inappropriate. The Michigan Legislature created a separate set of recommended ranges for second-degree murder precisely because murder stands apart from all other crimes.

Second, the assumption that the victim would have preferred to die, without evidence to support the assumption, would appear to be an improper basis for sentence. It represents a purely subjective conclusion that says more about the judge’s views on the quality of life than anything else. Many consider life to be precious, and some are able to survive and thrive despite the worst of tragedies.

Third, there may be times where a victim’s lack of will to survive would be a relevant sentencing consideration. Where the record contains evidence that the victim would have preferred to die, in most cases a sentencing judge should be able to use this as an aggravating factor when punishing for the sentencing offense. A defendant must take the victim as they find them (the eggshell skull rule) and loss of the will to live is likely an aggravating circumstance.

All in all, murder and other violent, non-homicide crimes share similarities, but murder is a distinct crime with irreversible consequences and the greatest of moral weight.

Anne Yantus is a sentencing consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, Anne is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

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