Furman v. Georgia
Supreme Court of the United States, 1972
408 U.S. 238 (1972)
FURMAN v.
GEORGIA
No. 69-5003
SUPREME COURT OF THE UNITED STATES
408 U.S. 238;
92 S. Ct. 2726;
1972 U.S. LEXIS 169;
33 L. Ed. 2d 346
January 17, 1972, Argued
June 29, 1972, Decided *
* Together with No. 69-5030, Jackson v. Georgia, on certiorari to the same
court, and No. 69-5031, Branch v. Texas, on certiorari to the Court of Criminal
Appeals of Texas.
PRIOR HISTORY:
[***1]
CERTIORARI TO THE SUPREME COURT OF GEORGIA.
DISPOSITION:
No. 69-5003, 225 Ga. 253, 167 S. E. 2d 628;
No. 69-5030, 225 Ga. 790, 171 S. E. 2d 501;
No. 69-5031, 447 S. W. 2d 932, reversed and remanded.
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SUMMARY: Each of the three petitioners was Negro, was convicted in a state court, and
was sentenced to death after a trial by a jury which, under applicable state
statutes, had discretion to determine whether or not to impose the death
penalty. One petitioner was convicted of murder, and his death sentence was
upheld by the
Georgia Supreme Court (225 Ga 253, 167 SE2d 628). The second petitioner was convicted of rape, and his death sentence was upheld
by the
Georgia Supreme Court (225 Ga 790, 171 SE2d 501). And the third petitioner was convicted of rape, and his death sentence was
upheld by the
Texas Court of Criminal Appeals (447 SW2d 932).
On certiorari, the United States Supreme Court reversed the judgment in each
case insofar as it left undisturbed the death sentence imposed, and the cases
were remanded for further proceedings. In a per
curiam opinion expressing the view of five members of the court, it was held
that the imposition and carrying out of the death sentence in the present cases
constituted cruel and unusual punishment, in violation of the Eighth and
Fourteenth Amendments.
Douglas, J., concurring, stated that it is cruel and unusual to apply the death
penalty selectively to minorities whose numbers are few, who are outcasts of
society, and who are unpopular, but whom society is willing to see suffer
though it would not countenance general application of the same penalty across
the boards, and that because of the discriminatory application of statutes
authorizing the discretionary imposition of the death penalty, such statutes
were unconstitutional in their operation.
Brennan, J., concurring, stated that the Eighth Amendment's prohibition against
cruel and unusual punishment was not limited to torturous punishments or to
punishments which were considered cruel and unusual at the time the Eighth
Amendment was adopted; that a punishment was cruel and unusual if it did not
comport with human dignity; and that since it was a
denial of human dignity for a state arbitrarily to subject a person to an
unusually severe punishment which society indicated that it did not regard as
acceptable, and which could not be shown to serve any penal purpose more
effectively than a significantly less drastic punishment, death was a cruel and
unusual punishment.
Stewart, J., concurring, stated that the petitioners were among a capriciously
selected random handful upon whom the sentence of death was imposed, and that
the Eighth and Fourteenth Amendments could not tolerate the infliction of a
sentence of death under legal systems which permitted this unique penalty to be
so wantonly and so freakishly imposed, but that it was unnecessary to reach the
ultimate question whether the infliction of the death penalty was
constitutionally impermissible in all circumstances, under the Eighth and
Fourteenth Amendments.
White, J., concurring, stated that as the state statutes involved in the
present cases were administered, the death penalty was so infrequently imposed
that the threat of
execution was too attenuated to be of substantial service to criminal justice,
but that it was unnecessary to decide whether the death penalty was
unconstitutional per se, or whether there was no system of capital punishment
which would comport with the Eighth Amendment.
Marshall, J., concurring, stated that the death penalty violated the Eighth
Amendment because it was an excessive and unnecessary punishment and because it
was morally unacceptable to the people of the United States.
Burger, Ch. J., joined by Blackmun, Powell, and Rehnquist, JJ., dissenting,
stated that the constitutional prohibition against cruel and unusual
punishments could not be construed to bar the imposition of the punishment of
death; that the Eighth Amendment did not prohibit all punishments which the
states were unable to prove necessary to deter or control crime; that the
Eighth Amendment was not concerned with the process by which a state determined
that a particular punishment was to be imposed in a particular case; that the
Eighth Amendment did not speak to the power of legislatures to confer
sentencing discretion on juries,
rather than to fix all sentences by statutes; and that to set aside the
petitioners' death sentences in the present cases on the ground that prevailing
sentencing practices did not comply with the Eighth Amendment involved an
approach which fundamentally misconceived the nature of the Eighth Amendment
guaranty and flew directly in the face of controlling authority of extremely
recent vintage.
Blackmun, J., dissenting, stated that although his personal distaste for the
death penalty was buttressed by a belief that capital punishment served no
useful purpose which could be demonstrated, and although the arguments against
capital punishment might be a proper basis for legislative abolition of the
death penalty or for the exercise of executive clemency, the authority for
action abolishing the death penalty should not be taken over by the judiciary
in the modern guise of an Eighth Amendment issue.
Powell, J., joined by Burger, Ch.
J., Blackmun, J., and Rehnquist, J., dissenting, stated that none of the
opinions supporting the court's decision provided a constitutionally adequate
foundation for the decision, and that the case against the constitutionality of
the death penalty fell far short, especially when viewed from the prospective
of the affirmative references to capital punishment in the Constitution, the
prevailing precedents of the Supreme Court, the limitations on the exercise of
the Supreme Court's power imposed by tested principles of judicial
self-restraint, and the duty to avoid encroachment on the powers conferred upon
state and federal legislatures.
Rehnquist, J., joined by Burger, Ch. J., Blackmun, J., and Powell, J.,
dissenting, emphasized the need for judicial self- restraint, and stated that
the most expansive reading of the leading constitutional cases did not remotely
suggest that the Supreme Court had been granted a roving commission, either by
the Founding Fathers or by the
framers of the Fourteenth Amendment, to strike down laws which were based upon
notions of policy or morality suddenly found unacceptable by a majority of the
Supreme Court.
LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition:
CRIMINAL LAW
§82
cruel and unusual punishment -- death penalty --
Headnote:
[1]
The imposition and carrying out of the death penalty constitutes cruel and
unusual punishment, in violation of the Eighth and Fourteenth Amendments, at
least where a person convicted in a state court for murder or rape is Negro and
is sentenced to death after a trial by a jury which, under state law, has
discretion to determine whether or not to impose the death penalty.
APPEAL AND ERROR
§1688
remand --
Headnote:
[2]
Upon holding that the imposition and carrying out of the death penalty in
certain cases constitutes cruel and unusual punishment, the United States
Supreme Court will reverse state appellate court judgments insofar as they
leave undisturbed the death sentences imposed, and the Supreme Court will
remand the cases for further proceedings.
SYLLABUS: Imposition and carrying out of
death penalty in these cases
held to constitute
cruel and unusual punishment in violation of Eighth and
Fourteenth Amendments.
COUNSEL: Anthony G. Amsterdam argued the cause for petitioner in No. 69-5003. With him
on the brief were B. Clarence Mayfield, Michael Meltsner, Jack Greenberg, James
M. Nabrit III, Jack Himmelstein, and Elizabeth B. DuBois. Mr. Greenberg argued
the cause for petitioner in No. 69-5030. With him on the brief were Messrs.
Meltsner, Amsterdam, Nabrit, Himmelstein, and Mrs. DuBois. Melvyn Carson
Bruder argued the cause and filed a brief for petitioner in No. 69-5031.
Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for
respondent in Nos. 69-5003 and 69-5030. With her on the briefs were Arthur K.
Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney
General, Courtney Wilder Stanton, Assistant Attorney General, and Andrew J.
Ryan,
[***2]
Jr. Charles Alan Wright argued the cause for respondent in No. 69-5031. With
him on the brief were Crawford C. Martin, Attorney General of Texas, Nola
White, First Assistant Attorney General, Alfred Walker, Executive Assistant
Attorney General, and Robert C. Flowers and Glenn R. Brown, Assistant Attorneys
General.
Theodore L. Sendak, Attorney General, and David O. Givens, Deputy Attorney
General, filed a brief for the State of Indiana as amicus curiae urging
affirmance in No. 69-5003. Paul Raymond Stone filed a brief for the West
Virginia Council of Churches et al. as amici curiae urging reversal in Nos.
69-5003 and 69-5030. John E. Havelock, Attorney General, filed a brief for the
State of Alaska as amicus
curiae in Nos. 69-5003 and 69-5030. Briefs of amici curiae in all three cases
were filed by Gerald H. Gottlieb, Melvin L. Wulf, and Sanford Jay Rosen for the
American Civil Liberties Union; by Leo Pfeffer for the Synagogue Council of
America et al.; by Chauncey Eskridge, Mario G. Obledo, Leroy D. Clark,
Nathaniel R. Jones, and Vernon Jordan for the National Association for the
Advancement of Colored People et al.; by Michael V. DiSalle for Edmund G. Brown
et al.; and by
[***3] Hilbert P. Zarky and Marc I. Hayutin for James V. Bennett et al.
OPINIONBY: PER CURIAM
OPINION:
[*239]
[**2727]
[1]
[2]
Petitioner in No. 69-5003 was
convicted of
murder in Georgia and was sentenced to death pursuant to Ga. Code Ann.
§ 26-1005 (Supp. 1971) (effective prior to July 1, 1969).
225 Ga. 253, 167 S. E. 2d 628 (1969). Petitioner in No. 69-5030 was
convicted of
rape in Georgia and was sentenced to death pursuant to Ga. Code Ann.
§ 26-1302 (Supp. 1971) (effective prior to July 1, 1969).
225 Ga. 790, 171 S. E. 2d 501 (1969). Petitioner in No. 69-5031 was
convicted of
rape in Texas and was sentenced to death pursuant to Tex. Penal Code, Art. 1189
(1961).
447 S. W. 2d 932 (Ct. Crim. App. 1969). Certiorari was granted limited to the following question:
"Does the
imposition and carrying out of the
death penalty in [these cases] constitute
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments?"
403 U.S. 952 (1971). The Court holds that the imposition and carrying out of the
death penalty in these cases
[*240] constitute
cruel and unusual punishment in violation of the
[***4] Eighth and
Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves
undisturbed the death
sentence imposed, and the cases are remanded for further proceedings.
So ordered.
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL have filed separate opinions in support of the
judgments. THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and
MR. JUSTICE REHNQUIST have filed separate dissenting opinions.
CONCURBY: DOUGLAS; BRENNAN; STEWART; WHITE; MARSHALL
CONCUR: MR. JUSTICE DOUGLAS, concurring.
In these three cases the
death penalty was imposed, one of them for
murder, and two for
rape. In each the determination of whether the penalty should be death or a lighter
punishment was left by the State to the discretion of the judge or of the jury.
In each of the three cases the trial was to a jury. They are here on
petitions for certiorari which we granted limited to the question whether the
imposition and execution of the
death penalty constitute
"cruel and unusual punishment" within the meaning of the
Eighth Amendment as applied to the States by the Fourteenth. n1 I vote to vacate each judgment,
believing
[***5] that the exaction of the
death penalty does violate the
Eighth and
Fourteenth Amendments.
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n1 The opinion of the Supreme Court of Georgia affirming Furman's conviction of
murder and
sentence of death is reported in
225 Ga. 253, 167 S. E. 2d 628, and its opinion affirming Jackson's conviction of
rape and
sentence of death is reported in
225 Ga. 790, 171 S. E. 2d 501. The conviction of Branch of
rape and the
sentence of death were affirmed by the Court of Criminal Appeals of Texas and reported
in
447 S. W. 2d 932.
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[*241] That the requirements of due process ban
cruel and unusual punishment is now settled.
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, and 473-474
[**2728] (Burton, J., dissenting);
Robinson v. California, 370 U.S. 660, 667. It is also settled that the proscription of
cruel and unusual punishments forbids the judicial imposition of them as well as their imposition
[***6] by the legislature.
Weems v. United States, 217 U.S. 349, 378-382.
Congressman Bingham, in proposing the
Fourteenth Amendment, maintained that
"the privileges or immunities of citizens of the United States" as protected by the
Fourteenth Amendment
included protection against
"cruel and unusual punishments:"
"Many instances of State injustice and oppression have already occurred in the
State legislation of this Union, of flagrant violations of the guarantied
privileges of citizens of the United States, for which the national Government
furnished and could furnish by law no remedy whatever. Contrary to the express
letter of your Constitution, 'cruel and unusual punishments' have been
inflicted under State laws within this Union upon citizens, not only for crimes
committed, but for sacred duty done, for which and against which the Government
of the United States had provided no remedy and could provide none." Cong. Globe, 39th Cong., 1st Sess., 2542.
Whether the privileges and immunities route is followed, or the due process
route, the result is the same.
It has been assumed in our decisions that punishment by death is not
cruel, unless the manner of execution
[***7] can be said to be inhuman and barbarous.
In re Kemmler, 136 U.S. 436, 447. It is also said in our opinions
[*242] that the proscription of
cruel and unusual punishments
"is not fastened to the obsolete but may acquire meaning as public opinion
becomes enlightened by a humane justice."
Weems v. United States, supra, at 378. A like statement was made in
Trop v. Dulles, 356 U.S. 86, 101, that the
Eighth Amendment
"must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."
The generality of a law inflicting
capital punishment is one thing. What may be said of the validity of a law on the books and what
may be done with the law in its application do, or may, lead to quite different
conclusions.
It would seem to be incontestable that the
death penalty
inflicted on one defendant is
"unusual" if it discriminates against him by reason of his race, religion, wealth,
social position, or class, or if it is
imposed under a procedure that gives room for the play of such prejudices.
There is evidence that the provision of the English Bill of Rights of 1689,
from which the
[***8] language of the
Eighth Amendment was taken, was concerned primarily with selective or irregular application of
harsh penalties and that its aim was to forbid arbitrary and discriminatory
penalties of a severe nature: n2
"Following the Norman conquest of England in 1066, the old system of penalties,
which ensured equality between crime and punishment, suddenly disappeared. By
the time systematic judicial records were kept, its demise was almost complete.
With the exception of certain grave crimes for which the punishment was death
or outlawry, the arbitrary fine was replaced by a discretionary
[*243] amercement. Although amercement's discretionary character allowed the
circumstances of each case to be taken into account and the level of cash
penalties to be decreased or increased accordingly, the amercement presented an
opportunity for
excessive or oppressive fines.
"The problem of
excessive
amercements became so prevalent that three
[**2729] chapters of the Magna Carta were devoted to their regulation. Maitland said
of Chapter 14 that 'very likely there was no clause in the Magna Carta more
grateful to the mass of the people.' Chapter 14 clearly stipulated as
[***9] fundamental law a prohibition of excessiveness in punishments:
"'A free man shall not be amerced for a trivial offence, except in accordance
with the degree of the offence; and for a serious offence he shall be amerced
according to its gravity, saving his livelihood; and a merchant likewise,
saving his merchandise; in the same way a villein shall be amerced saving his
wainage; if they fall into our mercy. And none of the aforesaid amercements
shall be imposed except by the testimony of reputable men of the neighborhood.'"
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n2 Granucci,
"Nor
Cruel and Unusual Punishments
Inflicted:" The Original Meaning,
57 Calif. L. Rev. 839, 845-846 (1969).
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The English Bill of Rights, enacted December 16, 1689, stated that
"excessive bail ought not to be required, nor
excessive fines imposed, nor
cruel and unusual punishments
inflicted." n3 These were the words chosen for our
Eighth Amendment. A like provision had been in Virginia's Constitution of 1776 n4 and in the
constitutions
[*244] of seven other States.
[***10] n5 The Northwest Ordinance, enacted under the Articles of Confederation,
included a prohibition of
cruel and unusual punishments. n6 But the debates of the First Congress on the Bill of Rights throw little
light on its intended meaning. All that appears is the following: n7
"Mr. SMITH, of South Carolina, objected to the words 'nor
cruel and unusual punishments;' the import of them being too indefinite.
"Mr. LIVERMORE: The clause seems to express a great deal of humanity, on which
account I have no objection to it; but as it seems to have no meaning
in it, I do not think it necessary. What is meant by the terms
excessive bail? Who are to be the judges? What is understood by
excessive fines? It lies with the court to determine. No
cruel and unusual punishment is to be
inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and
perhaps having their ears cut off; but are we in future to be prevented from
inflicting these
punishments because they are
cruel? If a more lenient mode of correcting vice and deterring others from the
commission of it could be invented, it would be very prudent in the Legislature
to adopt it; but until we have
[***11] some security that this will be done, we ought not to be restrained from
making necessary laws by any declaration of this kind."
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n3 1 W.
& M., Sess. 2, c. 2; 8 English Historical Documents, 1660-1714, p. 122 (A.
Browning ed. 1953).
n4 7 F. Thorpe, Federal
& State Constitutions 3813 (1909).
n5 Delaware, Maryland, New Hampshire, North Carolina, Massachusetts,
Pennsylvania, and South Carolina. 1 Thorpe,
supra, n. 4, at 569; 3
id., at 1688, 1892; 4
id., at 2457; 5
id., at 2788, 3101; 6
id., at 3264.
n6 Set out in 1 U. S. C. XXXIX-XLI.
n7 1 Annals of Cong. 754 (1789).
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The words
"cruel and unusual" certainly include penalties
[*245] that are barbaric. But the words, at least when read in light of the English
proscription against selective and irregular use of penalties, suggest that it
is
"cruel and unusual" to apply the
death penalty -- or any other penalty -- selectively to minorities whose numbers are few,
who are outcasts of society, and who are unpopular, but whom society is
[***12] willing to see suffer though it would not countenance general application of
the same penalty across the board. n8
Judge Tuttle, indeed, made
[**2730] abundantly clear in
Novak v. Beto, 453 F.2d 661, 673-679 (CA5) (concurring in part and dissenting in part), that solitary confinement
may at times be
"cruel and unusual" punishment. Cf.
Ex parte Medley, 134 U.S. 160;
Brooks v. Florida, 389 U.S. 413.
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n8
"When in respect of any class of offenses the difficulty of obtaining
convictions is at all general in England, we may hold it as an axiom, that the
law requires amendment. Such conduct in juries is the silent protest of the
people against its undue severity. This was strongly exemplified in the case
of prosecutions for the forgery of bank-notes, when it was a capital felony.
It was in vain that the charge was proved. Juries would not condemn men to the
gallows for an offense of which the punishment was out of all proportion to the
crime; and as they could not mitigate the
sentence they
brought in verdicts of Not Guilty. The consequence was, that the law was
changed; and when secondary punishments were substituted for the penalty of
death, a forger had no better chance of an acquittal than any other criminal.
Thus it is that the power which juries possess of refusing to put the law in
force has, in the words of Lord John Russell, 'been the cause of amending many
bad laws which the judges would have administered with professional bigotry,
and above all, it has this important and useful consequence, that laws totally
repugnant to the feelings of the community for which they are made, can not
long prevail in England.'" W. Forsyth, History of Trial by Jury 367-368 (2d ed. 1971).
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[***13]
The Court in
McGautha v. California, 402 U.S. 183, 198, noted that in this country there was almost from the beginning a
"rebellion against the common-law rule imposing a mandatory death
sentence on all
convicted
[*246]
murderers." The first attempted remedy was to restrict the
death penalty to defined offenses such as
"premeditated"
murder. n9
Ibid. But juries
"took the
[*247] law into their own hands" and refused to convict on the capital offense.
Id., at 199.
"In order to meet the problem of jury nullification, legislatures did not try,
as before, to refine further the definition of capital homicides. Instead they
adopted the method of forthrightly granting juries the discretion which they
had been exercising in fact."
Ibid.
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n9 This trend was not universally applauded. In the early 1800's, England had
a law that made it possible to impose the death
sentence for stealing five shillings or more. 3 W.
& M., c. 9,
§ 1. When a bill for abolishing that penalty (finally enacted in 1827, 7
&
8 Geo. 4, c. 27) was before the House of Lords in
1813, Lord Ellenborough said:
"If your Lordships look to the particular measure now under consideration, can
it, I ask, be seriously maintained, that the most exemplary punishment, and the
best suited to prevent the commission of this crime, ought not to be a
punishment which might in some cases be
inflicted? How, but by the enactments of the law now sought to be repealed, are the
cottages of industrious poverty protected? What other security has a poor
peasant, when he and his wife leave their home for their daily labours, that on
their return their few articles of furniture or of clothes which they possess
besides those which they carry on their backs, will be safe? . . . By the
enacting of the
punishment of death, and leaving it to the discretion of the Crown to inflict that punishment or
not, as the circumstances of the case may require, I am satisfied, and I am
much mistaken if your Lordships are not satisfied, that this object is attained
with the least possible expenditure. That the law is, as it has been termed, a
bloody law, I
can by no means admit. Can there be a better test than by a consideration of
the number of persons who have been executed for offences of the description
contained in the present Bill? Your Lordships are told, what is extremely
true, that this number is very small; and this very circumstance is urged as a
reason for a repeal of the law; but, before your Lordships are induced to
consent to such repeal, I beg to call to your consideration the number of
innocent persons who might have been plundered of their property or destroyed
by midnight murderers, if the law now sought to be repealed had not been in
existence: -- a law upon which all the retail trade of this commercial country
depends; and which I for one will not consent to be put in jeopardy." Debate in House of Lords, Apr. 2, 1813, pp. 23-24 (Longman, Hurst, Rees, Orme,
& Brown, Paternoster-Row,
London 1816).
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[***14]
The Court concluded:
"In light of history, experience, and the present limitations of human
knowledge, we find it quite impossible to say that committing to the
untrammeled discretion of the
[**2731] jury the power to pronounce life or death in capital cases is offensive to
anything in the Constitution."
Id., at 207.
The Court refused to find constitutional dimensions in the argument that those
who exercise their discretion to send a person to death should be given
standards by which that discretion should be exercised.
Id., at 207-208.
A recent witness at the Hearings before Subcommittee No. 3 of the House
Committee on the Judiciary, 92d Cong., 2d Sess., Ernest van den Haag,
testifying on H. R. 8414 et al., n10 stated:
"Any penalty, a fine,
imprisonment or the
death penalty could be unfairly or unjustly applied. The
[*248] vice in this case is not in the penalty but in the
process by which it is
inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on
any innocent parties,
regardless of what the penalty is." Id., at 116-117. (Emphasis supplied.)
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n10 H. R. 3243, 92d Cong., 1st Sess., introduced by Cong. Celler, would abolish
all executions by the United States or by any State.
H. R. 8414, 92d Cong., 1st Sess., introduced by Cong. Celler, would provide an
interim stay of all executions by the United States or by any State and
contains the following proposed finding:
"Congress hereby finds that there exists serious question --
"(a) whether the
infliction of the
death penalty amounts to
cruel and unusual punishment in violation of the eighth and
fourteenth amendments to the Constitution; and
"(b) whether the
death penalty is
inflicted discriminatorily upon members of racial minorities, in violation of the
fourteenth amendment to the Constitution,
"and, in either case, whether Congress should
exercise its authority under section 5 of the
fourteenth amendment to prohibit the use of the
death penalty."
There is the naive view that
capital punishment as
"meted out in our courts, is the antithesis of barbarism." See Henry Paolucci, New York Times, May 27, 1972, p. 29, col. 1. But the
Leopolds and Loebs, the Harry Thaws, the Dr. Sheppards and the Dr. Finchs of
our society are never executed, only those in the lower strata, only those who
are members of an unpopular minority or the poor and despised.
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[***15]
But those who advance that argument overlook
McGautha, supra.
We are now imprisoned in the
McGautha holding. Indeed the seeds of the present cases are in
McGautha. Juries (or judges, as the case may be) have practically untrammeled
discretion to let an accused live or insist that he die. n11
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n11 The tension between our decision today and
McGautha highlights, in my view, the correctness of
MR. JUSTICE BRENNAN's dissent in that case, which I joined.
402 U.S., at 248. I should think that if the Eighth and
Fourteenth Amendments prohibit the imposition of the
death penalty on petitioners because they are
"among a capriciously selected random handful upon whom the
sentence of death has in fact been imposed," opinion of MR. JUSTICE STEWART,
post, at 309-310, or because
"there is no meaningful basis for distinguishing the few cases in which [the
death penalty] is imposed from the many cases in which it is not," opinion of MR. JUSTICE WHITE,
post, at 313, statements with which I am in complete agreement -- then the Due
Process Clause of the
Fourteenth Amendment would render unconstitutional
"capital
sentencing procedures that are purposely constructed to allow the maximum possible
variation from one case to the next, and [that] provide no mechanism to prevent
that consciously maximized variation from reflecting merely random or arbitrary
choice."
McGautha v. California, 402 U.S. 183, 248 (BRENNAN, J., dissenting).
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[***16]
[*249] Mr. Justice Field, dissenting in
O'Neil v. Vermont, 144 U.S. 323, 340, said,
"The State may, indeed, make the drinking of one drop of liquor an offence to be
punished by
imprisonment, but it would be an unheard-of
cruelty if it should count the drops in a single glass and make thereby a thousand
offences, and thus extend the punishment for drinking the single
[**2732] glass of liquor to an
imprisonment of almost indefinite duration." What the legislature may not do for all classes uniformly and systematically,
a judge or jury may not do for a class that prejudice sets apart from the
community.
There is increasing recognition of the fact that the basic theme of equal
protection is implicit in
"cruel and unusual" punishments.
"A penalty . . . should be considered 'unusually' imposed if it is administered
arbitrarily or discriminatorily." n12 The same authors add that
"the
extreme rarity with which applicable
death penalty provisions are put to use raises a strong inference of arbitrariness." n13 The President's Commission on Law Enforcement and Administration of
Justice recently concluded: n14
"Finally there is evidence that the imposition of
[***17] the death
sentence and the exercise of dispensing power by the courts and the executive follow
discriminatory patterns. The death
sentence is disproportionately imposed and carried out on the
[*250] poor, the Negro, and the members of unpopular groups."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 Goldberg
& Dershowitz, Declaring the
Death Penalty Unconstitutional,
83 Harv. L. Rev. 1773, 1790.
n13
Id., at 1792.
n14 The Challenge of Crime in a Free Society 143 (1967).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
A study of capital cases in Texas from 1924 to 1968 reached the following
conclusions: n15
"Application of the
death penalty is unequal: most of those executed were poor, young, and ignorant.
. . . .
[*251]
"Seventy-five of the 460
cases involved co-defendants, who, under Texas law, were given separate trials.
In several instances where a white and a Negro were co-defendants, the white
was sentenced to
life imprisonment or a term of years, and the Negro was given the
death penalty.
"Another ethnic disparity is found in the type of
[***18]
sentence imposed for
rape. The Negro
convicted of
rape is far more likely to get the
death penalty than a term
sentence, whereas whites and Latins are far more likely to get a term
sentence than the
death penalty."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n15 Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime
& Delin. 132, 141 (1969).
In H. Bedau, The
Death Penalty in America 474 (1967 rev. ed.), it is stated:
RACE OF THE OFFENDER BY FINAL DISPOSITION
|
| Final | Negro | White | Total |
|---|
| |
|---|
| Disposition | N | % | N | % | N | |
|---|
| Executed | 130 | 88.4 | 210 | 79.8 | 340 | 82.9 |
|---|
| Commuted | 17 | 11.6 | 53 | 20.2 | 70 | 17.1 |
|---|
| Total | 147 | 100.0 | 263 | 100.0 | 410 | 100.0 |
|---|
|
|
|
X<2> = 4.33; P less than .05. (For discussion of statistical symbols, see Bedau,
supra, at 469.)
"Although there may be a host of factors other than race involved in this
frequency distribution, something more than chance has operated over the years
to produce this racial difference. On the basis of this study it is not
possible to indict the judicial and other public processes prior to the death
row as responsible for the association between Negroes and higher frequency of
executions; nor is it entirely correct to assume that from the time of their
appearance on death row Negroes are discriminated against by the Pardon Board.
Too many unknown or presently immeasurable factors prevent our making
definitive statements about the relationship. Nevertheless, because the
Negro/high-execution association is statistically present, some suspicion of
racial discrimination can hardly be avoided. If such a relationship had not
appeared, this kind of suspicion could have been allayed; the existence of the
relationship, although
not 'proving' differential bias by the Pardon Boards over the years since 1914,
strongly suggests that such bias has existed."
The latter was a study in Pennsylvania of people on death row between 1914 and
1958, made by Wolfgang, Kelly,
& Nolde and printed in
53 J. Crim. L. C. & P. S. 301 (1962). And see Hartung, Trends in the Use of
Capital Punishment,
284 Annals 8, 14-17 (1952).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***19]
[**2733] Warden Lewis E. Lawes of Sing Sing said: n16
"Not only does
capital punishment fail in its justification, but no punishment could be invented with so many
inherent defects. It is an unequal punishment in the way it is applied to the
rich and to the poor. The defendant of wealth and position never goes to the
electric chair or to the gallows. Juries do not intentionally favour the rich,
the law is theoretically
impartial, but the defendant with ample means is able to have his case
presented with every favourable aspect, while the poor defendant often has a
lawyer assigned by the court. Sometimes such assignment is considered part of
political patronage; usually the lawyer assigned has had no experience whatever
in a capital case."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 Life and Death in Sing Sing 155-160 (1928).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Former Attorney General Ramsey Clark has said,
"It is the poor, the sick, the ignorant, the powerless and the hated who are
executed." n17 One searches our chronicles
[*252] in vain for the execution of any member of the affluent
[***20] strata of this society. The Leopolds and Loebs are given
prison terms, not sentenced to death.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n17 Crime in America 335 (1970).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Jackson, a black,
convicted of the
rape of a white woman, was 21 years old. A
court-appointed psychiatrist said that Jackson was of average education and
average intelligence, that he was not an imbecile, or schizophrenic, or
psychotic, that his
traits were the product of environmental influences, and that he was competent
to stand trial. Jackson had entered the house after the husband left for work.
He held scissors against the neck of the wife, demanding money. She could
find none and a struggle ensued for the scissors, a battle which she lost; and
she was then raped, Jackson keeping the scissors pressed against her neck.
While there did not appear to be any long-term traumatic impact on the victim,
she was bruised and abrased in the struggle but was not hospitalized. Jackson
was a convict who had escaped from a work gang in the area, a result of a
three-year
sentence for
[***21] auto theft. He was at large for three days and during that time had committed
several other offenses -- burglary, auto theft, and assault and battery.
Furman,
a black, killed a householder while seeking to enter the home at night. Furman
shot the deceased through a closed door. He was 26 years old and had finished
the sixth grade in school. Pending trial, he was committed to the Georgia
Central State Hospital for a psychiatric examination on his plea of insanity
tendered by court-appointed counsel. The superintendent reported that a
unanimous staff diagnostic conference had concluded
"that this patient should retain his present diagnosis of Mental Deficiency,
Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder." The physicians agreed that
"at present the patient is not psychotic, but he is not capable of cooperating
with his counsel in the preparation of his
[*253] defense"; and the staff believed
"that he is in need of further psychiatric hospitalization and treatment."
Later, the superintendent reported that the staff diagnosis was Mental
Deficiency, Mild to Moderate, with Psychotic Episodes associated with
Convulsive Disorder. He
concluded,
[***22] however, that Furman was
"not psychotic at present, knows right from wrong and is able to cooperate with
his counsel in preparing his defense."
Branch, a black, entered the rural home of a 65-year-old widow, a white, while
she slept and raped her, holding his arm against her throat. Thereupon he
demanded money and for 30 minutes or more the widow searched for money, finding
little. As he left, Jackson said if the widow told anyone what happened, he
would return and kill her. The record is barren of any medical or psychiatric
[**2734] evidence showing injury to her as a result of Branch's attack.
He had previously been
convicted of felony theft and found to be a borderline mental deficient and well below
the average IQ of Texas
prison inmates. He had the equivalent of five and a half years of grade school
education. He had a
"dull intelligence" and was in the lowest fourth percentile of his class.
We cannot say from
facts disclosed in these records that these defendants were sentenced to death
because they were black. Yet our task is not restricted to an effort to divine
what motives impelled these
death penalties. Rather, we deal with a system of law and of justice that
[***23] leaves to the uncontrolled discretion of judges or juries the determination
whether defendants committing these crimes should die or be imprisoned. Under
these laws no standards govern the selection of the penalty. People live or
die, dependent on the whim of one man or of 12.
Irving Brant has given a detailed account of the Bloody Assizes, the reign of
terror that occupied the
[*254] closing years of the rule of Charles II and the opening years of the regime of
James II (the Lord Chief Justice was George Jeffreys):
"Nobody knows how many hundreds of men, innocent or of unproved guilt, Jeffreys
sent to their deaths in the pseudo trials that followed Monmouth's feeble and
stupid attempt to seize the throne. When the ordeal ended,
scores had been executed and 1,260 were awaiting the hangman in three counties.
To be absent from home during the uprising was evidence of guilt. Mere death
was considered much too mild for the villagers and farmers rounded up in these
raids. The directions to a high sheriff were to provide an ax, a cleaver, 'a
furnace or cauldron to boil their heads and quarters, and soil to boil
therewith, half a bushel to each traitor, and tar to tar
[***24] them with, and a sufficient number of spears and poles to fix their heads and
quarters' along the highways. One could have crossed a good part of northern
England by their guidance.
"The story of The Bloody Assizes, widely known to Americans, helped to place
constitutional limitations on the crime of treason and to produce a bar against
cruel and unusual punishments. But in the polemics that led to the various guarantees of freedom, it had no
place compared with the tremendous thrust of the trial and
execution of Sidney. The hundreds of judicial
murders committed by Jeffreys and his fellow judges were totally inconceivable in a
free American republic, but any American could imagine himself in Sidney's
place -- executed for putting on paper, in his closet, words that later on came
to express the basic principles of republican government. Unless barred by
fundamental law, the legal rulings that permitted this
[*255] result could easily be employed against any person whose political opinions
challenged the party in power." The Bill of Rights 154-155 (1965).
Those who wrote the
Eighth Amendment knew what price their forebears had paid for a system based, not on equal
justice,
[***25] but on discrimination. In those days the target was not the blacks or the
poor, but the dissenters, those who opposed absolutism in government, who
struggled for a parliamentary regime, and who opposed governments' recurring
efforts to foist
a particular religion on the people.
Id., at 155-163. But the tool of
capital punishment was used with vengeance against the opposition and those unpopular with the
regime. One cannot read this history without realizing that the desire for
equality was reflected in the ban against
"cruel and unusual punishments" contained in the
Eighth Amendment.
In a Nation committed to equal protection of the laws there is no permissible
"caste" aspect n18 of law enforcement.
[**2735] Yet we know that the discretion of judges and juries in imposing the
death penalty enables the penalty to be selectively applied, feeding prejudices against the
accused if he is poor and despised, and lacking political clout, or if he is a
member of a suspect or unpopular minority, and saving those who by social
position may be in a more protected position. In ancient
Hindu law a Brahman was exempt from
capital punishment, n19 and under that
law,
"generally,
[***26] in the law books, punishment increased in severity as social status diminished." n20 We have, I fear, taken in practice the same position, partially as a
result of making the
death penalty
[*256] discretionary and partially as a result of the ability of the rich to purchase
the services of the most respected and most resourceful legal talent in the
Nation.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 See Johnson, The Negro and Crime,
217 Annals 93 (1941).
n19 See J. Spellman, Political Theory of Ancient India 112 (1964).
n20 C. Drekmeier, Kingship and Community in Early India 233 (1962).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The high service rendered by the
"cruel and unusual" punishment clause of the
Eighth Amendment is to require legislatures to write penal laws that are evenhanded,
nonselective, and nonarbitrary, and to require judges to see to it that general
laws are not applied sparsely,
selectively, and spottily to unpopular groups.
A law that stated that anyone making more than $ 50,000 would be exempt from
the
death penalty would plainly fall, as would a law that in terms
[***27] said that blacks, those who never went beyond the fifth grade in school, those
who made less than $ 3,000 a year, or those who were unpopular or unstable
should be the only people executed. A law which in the overall view reaches
that result in practice n21 has no more sanctity than a law which in terms
provides the same.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n21 Cf. B. Prettyman, Jr., Death and The Supreme Court 296-297 (1961).
"The disparity of representation in capital cases raises doubts about
capital punishment itself, which has been
abolished in only nine states. If
a James Avery [345 U.S. 559] can be saved from electrocution because his attorney made timely objection to
the selection of a
jury by the use of yellow and white tickets, while an
Aubry Williams [349 U.S. 375] can be sent to his death by a jury selected in precisely the same manner, we
are imposing our most extreme penalty in an uneven fashion.
"The problem of proper representation is not a problem of money, as some have
claimed, but of a lawyer's ability, and it is not true that only the rich have
able lawyers. Both the rich and the poor usually are well represented -- the
poor because more often than not the best attorneys are appointed to defend
them. It is the middle-class defendant, who can afford to hire an attorney but
not a very good one, who is at a disadvantage. Certainly
William Fikes [352 U.S. 191], despite the anomalous position in which he finds himself today, received as
effective and intelligent a defense from his court-appointed attorneys as he
would have received from an attorney his family had
scraped together enough money to hire.
"And it is not only a matter of ability. An attorney must be found who is
prepared to spend precious hours -- the basic commodity he has to sell -- on a
case that seldom fully compensates him and often brings him no fee at all. The
public has no conception of the time and effort devoted by attorneys to
indigent cases. And in a first-degree case, the added responsibility of having
a man's life depend upon the outcome exacts a heavy toll."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***28]
Thus, these discretionary statutes are unconstitutional
[*257] in their operation. They are pregnant with discrimination and discrimination
is an ingredient not compatible with the idea of equal protection of the laws
that is implicit in the ban on
"cruel and unusual" punishments.
Any law which is nondiscriminatory on its face may be applied in such a way as
to violate the Equal Protection Clause of the
Fourteenth Amendment.
Yick Wo v. Hopkins, 118 U.S. 356. Such
conceivably might be the fate of a mandatory
death penalty, where equal or lesser
sentences
were imposed on the elite, a
[**2736] harsher one on the minorities or members of the lower castes. Whether a
mandatory
death penalty would otherwise be constitutional is a question I do not reach.
I concur in the judgments of the Court.
MR. JUSTICE BRENNAN, concurring.
The question presented in these cases is whether death is today a punishment
for crime that is
"cruel and unusual" and consequently, by virtue of the Eighth and
Fourteenth Amendments, beyond the power of the State to inflict. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The
Eighth Amendment provides:
"Excessive bail shall not be required, nor
excessive fines imposed,
nor
cruel and unusual punishments
inflicted." (Emphasis added.) The
Cruel and
Unusual Punishments Clause is fully applicable to the States through the Due Process Clause of the
Fourteenth Amendment.
Robinson v. California, 370 U.S. 660 (1962);
Gideon v. Wainwright, 372 U.S. 335, 342 (1963);
Malloy v. Hogan, 378 U.S. 1, 6 n. 6 (1964);
Powell v. Texas, 392 U.S. 514 (1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***29]
[*258] Almost a century ago, this Court observed that
"difficulty would attend the effort to define with exactness the extent of the
constitutional provision which provides that
cruel and unusual punishments shall not be
inflicted."
Wilkerson v. Utah, 99 U.S. 130, 135-136 (1879). Less than 15 years ago, it was again noted that
"the exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court."
Trop v. Dulles, 356 U.S. 86, 99 (1958). Those statements remain true today. The
Cruel and
Unusual Punishments Clause, like the other great clauses of the Constitution, is not susceptible of
precise definition. Yet we
know that the values and ideals it embodies are basic to our scheme of
government. And we know also that the Clause imposes upon this Court the duty,
when the issue is properly presented, to determine the constitutional validity
of a challenged punishment, whatever that punishment may be. In these cases,
"that issue confronts us, and the task of resolving it is inescapably ours."
Id., at 103.
I
We have very little evidence of the
Framers' intent in including the
Cruel
[***30] and
Unusual Punishments Clause among those restraints upon the new Government enumerated in the Bill of
Rights. The absence of such a restraint from the body of the Constitution was
alluded to, so far as we now know, in the debates of only two of the state
ratifying conventions. In the Massachusetts convention, Mr. Holmes protested:
"What gives an additional glare of horror to these gloomy circumstances is the
consideration, that Congress have to ascertain, point out, and determine,
[*259] what kind of punishments shall be
inflicted on persons
convicted of crimes. They are nowhere restrained from inventing the most
cruel and
unheard-of punishments, and annexing them to crimes; and there is no
constitutional check on them, but that
racks and
gibbets may be amongst the most mild instruments of their discipline." 2 J. Elliot's Debates 111 (2d ed. 1876).
Holmes' fear that Congress would have unlimited power to prescribe
punishments for crimes was echoed by Patrick Henry at the Virginia convention:
". . . Congress, from their general powers, may fully go into business of human
legislation. They may legislate, in criminal cases, from treason to the lowest
[***31] offence -- petty larceny. They may define crimes and prescribe punishments.
In the definition of crimes, I trust they will be directed by what wise
representatives ought to be governed by. But when we come to punishments, no
latitude ought to be left, nor dependence put
[**2737] on the virtue of representatives. What says our [Virginia] bill of rights? --
'that
excessive bail ought not to be required, nor
excessive fines imposed, nor
cruel and
unusual punishments
inflicted.' Are you not, therefore, now calling on those gentlemen who are to compose
Congress, to . . . define punishments without this control? Will they find
sentiments there similar to this bill of rights? You let them loose; you do
more -- you depart from the genius of your country. . . .
"In this business of legislation, your members of Congress will loose the
restriction of not imposing
excessive fines, demanding
excessive bail, and inflicting
cruel and unusual punishments. These are prohibited by your [Virginia] declaration of rights. What has
distinguished our ancestors? -- That
[*260] they would not admit of
tortures, or
cruel and barbarous punishment." 3
id., at 447. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Henry continued:
"But Congress may introduce the practice of the civil law, in preference to that
of the common law. They may introduce the practice of France, Spain, and
Germany -- of torturing, to extort a confession of the crime. They will say
that they might as well draw examples from those countries as from Great
Britain, and they will
tell you that there is such a necessity of strengthening the arm of government,
that they must have a criminal equity, and extort confession by
torture, in order to punish with still more relentless severity. We are then lost and
undone." 3 J. Elliot's Debates 447-448 (2d ed. 1876).
Although these remarks have been cited as evidence that the Framers considered
only torturous punishments to be
"cruel and unusual," it is obvious that Henry was referring to the use of
torture for the purpose of eliciting confessions from suspected criminals. Indeed, in
the ensuing colloquy, see n. 3,
infra, George Mason responded that the use of
torture was prohibited by the right against self-incrimination contained in the
Virginia Bill of Rights.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***32]
These two statements shed some light on what the Framers meant by
"cruel and unusual punishments." Holmes referred to
"the most
cruel and unheard-of punishments," Henry to
"tortures, or
cruel and barbarous
punishment." It does not follow, however, that the Framers were exclusively concerned with
prohibiting torturous punishments. Holmes and Henry were objecting to the
absence of a Bill of Rights, and they cited to support their objections the
unrestrained legislative power to prescribe punishments for crimes. Certainly
we may suppose that they invoked the specter of the most drastic punishments a
legislature might devise.
In addition, it is quite clear that Holmes and Henry focused wholly upon the
necessity to restrain the legislative power. Because they recognized
"that Congress have to ascertain, point out, and determine, what kinds of
punishments shall be
inflicted on persons
convicted of crimes," they insisted that Congress must be limited in its power to punish.
Accordingly, they
[*261] called for a
"constitutional check" that would
ensure that
"when we come to punishments, no latitude ought to be left, nor dependence put
on the virtue of representatives."
[***33] n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 It is significant that the response to Henry's plea, by George Nicholas, was
simply that a
Bill of Rights would be ineffective as a means of restraining the legislative
power to prescribe punishments:
"But the gentleman says that, by this Constitution, they have power to make laws
to define crimes and prescribe punishments; and that, consequently, we are not
free from
torture. . . . If we had no security against
torture but our [Virginia] declaration of rights, we might be tortured to-morrow; for
it has been repeatedly infringed and disregarded." 3 J. Elliot's Debates,
supra, at 451.
George Mason misinterpreted Nicholas' response to Henry:
"Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his
assertion that the [Virginia] bill of rights did not prohibit
torture; for that one clause expressly provided that no man can give evidence against
himself; and that the worthy gentleman must know that, in those countries where
torture is used, evidence was extorted from the criminal himself. Another clause of
the bill of rights provided that no
cruel and unusual
punishments shall be
inflicted; therefore,
torture was included in the prohibition."
Id., at 452.
Nicholas concluded the colloquy by making his point again:
"Mr. NICHOLAS acknowledged the [Virginia] bill of rights to contain that
prohibition, and that the gentleman was right with respect to the practice of
extorting confession from the criminal in those countries where
torture is used; but still he saw no security arising from the bill of rights as
separate from the Constitution, for that it had been frequently violated with
impunity."
Ibid.
There was thus no denial that the legislative power should be restrained; the
dispute was whether a Bill of Rights would provide a realistic restraint. The
Framers, obviously, believed it would.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***34]
[**2738] The only further evidence of the
Framers' intent appears from the debates in the First Congress on the adoption of the
Bill of Rights. n4 As the Court noted in
Weems v. United States, 217 U.S. 349, 368 (1910),
[*262] the
Cruel and
Unusual Punishments Clause
"received very little
debate." The extent of the discussion, by two opponents of the Clause in the House of
Representatives, was this:
"Mr. SMITH, of South Carolina, objected to the words 'nor
cruel and unusual punishments;' the import of them being too indefinite.
"Mr. LIVERMORE. -- The [Eighth Amendment] seems to express a great deal of humanity, on which account I have no
objection to it; but as it seems to have no meaning in it, I do not think it
necessary. . . . No
cruel and unusual punishment is to be
inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and
perhaps having their ears cut off; but are we in future to be prevented from
inflicting these punishments because they are
cruel? If a more lenient mode of correcting vice and deterring others from the
commission of it could be invented, it would be very prudent in the Legislature
to adopt it; but
[***35] until we have some security that this will be done, we ought not to be
restrained from making necessary laws by any declaration of this kind.
"The question was put on the [Eighth Amendment], and it was agreed to by a considerable majority." 1 Annals of Cong. 754 (1789). n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 We have not been referred to any mention of the
Cruel and
Unusual Punishments Clause in the debates of the state legislatures on ratification of the Bill of Rights.
n5 The elided portion of Livermore's remarks reads:
"What is meant by the terms
excessive bail? Who are to be the judges? What is understood by
excessive fines? It lies with the court to determine." Since Livermore did not ask similar rhetorical questions about the
Cruel and
Unusual Punishments Clause, it is unclear whether he included the Clause in his objection that the
Eighth Amendment
"seems to have no meaning in it."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Livermore thus agreed with Holmes and Henry that the
Cruel and
Unusual Punishments Clause imposed a limitation upon the legislative power to prescribe
[***36] punishments.
[*263] However, in contrast to Holmes and Henry, who were supporting the Clause,
Livermore, opposing it, did not refer to punishments that were
considered barbarous and torturous. Instead, he objected that the Clause might
someday prevent the legislature from inflicting what were then quite common
and, in his view,
"necessary" punishments -- death, whipping, and earcropping. n6 The only inference to be
drawn from Livermore's statement is that the
"considerable majority" was prepared to run that risk. No member of the House rose to reply that the
[**2739] Clause was intended merely to prohibit
torture.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Indeed, the first federal criminal statute, enacted by the First Congress,
prescribed 39 lashes for larceny and for receiving stolen goods, and one hour
in the pillory for perjury. Act of Apr. 30, 1790,
§§ 16-18, 1 Stat. 116.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Several conclusions thus emerge from the history of the adoption of the Clause.
We know that the
Framers' concern was directed specifically at the exercise of legislative
[***37] power. They included in the Bill of Rights a prohibition upon
"cruel and unusual punishments" precisely because the legislature would otherwise have had the unfettered
power to prescribe punishments for crimes. Yet we cannot now know exactly what
the Framers thought
"cruel and unusual punishments" were. Certainly they intended to ban torturous punishments, but the available
evidence does not support the further conclusion that
only torturous punishments were to be outlawed. As Livermore's comments
demonstrate, the Framers were well aware that the reach of the Clause was not
limited to the proscription of unspeakable atrocities. Nor did they intend
simply to forbid punishments considered
"cruel and unusual" at the time. The
"import" of the Clause is, indeed,
"indefinite," and for good reason. A constitutional provision
"is enacted, it is true, from an experience of evils, but its general language
[*264] should not, therefore, be necessarily confined to the form that evil had
theretofore taken. Time works changes, brings into existence new conditions
and purposes. Therefore a principle to be vital must be capable of wider
application than the mischief which gave it
[***38]
birth."
Weems v. United States, 217 U.S., at 373.
It was almost 80 years before this Court had occasion to refer to the Clause.
See
Pervear v. The Commonwealth, 5 Wall. 475, 479-480 (1867). These early cases, as the Court pointed out in
Weems v. United States, supra, at 369, did not undertake to provide
"an exhaustive definition" of
"cruel and unusual punishments." Most of them proceeded primarily by
"looking backwards for examples by which to fix the meaning of the clause,"
id., at 377, concluding simply that a punishment would be
"cruel and unusual"
if it were similar to punishments considered
"cruel and unusual" at the time the Bill of Rights was adopted. n7 In
Wilkerson v. Utah, 99 U.S., at 136, for instance, the Court found it
"safe to affirm that punishments of
torture . . . and all others in the same line of unnecessary
cruelty, are forbidden." The
"punishments of
torture," which the
Court labeled
"atrocities," were cases where the criminal
"was embowelled alive, beheaded, and quartered," and cases
"of public dissection . . . and burning alive."
[***39]
Id., at 135. Similarly, in
In re Kemmler,
[*265] 136 U.S. 436, 446 (1890), the Court declared that
"if the punishment prescribed for an offence against the laws of the State were
manifestly
cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or
the like, it would be the duty of the courts to adjudge such penalties to be
within the constitutional prohibition." The Court then observed, commenting upon the passage just quoted from
Wilkerson v. Utah, supra, and applying the
"manifestly
cruel and unusual" test, that
"punishments are
cruel when they involve
torture or a lingering death; but the
punishment of death is not
cruel, within the meaning of that word as used in the Constitution. It implies there
something inhuman and
[**2740] barbarous, something more than the mere extinguishment of life."
136 U.S., at 447.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Many of the
state courts,
"feeling constrained thereto by the incidences of history,"
Weems v. United States, 217 U.S. 349, 376 (1910), were apparently taking the same position. One court
"expressed the opinion that the provision did not apply to punishment by 'fine
or
imprisonment or both, but such as that
inflicted at the whipping post, in the pillory, burning at the stake, breaking on the
wheel,' etc."
Ibid. Another court
"said that ordinarily the terms imply something inhuman and barbarous,
torture and the like. . . . Other cases . . . selected certain tyrannical acts of the
English monarchs as illustrating the meaning of the clause and the extent of
its prohibition."
Id., at 368.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***40]
Had this
"historical" interpretation of the
Cruel and
Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of
Rights. As the Court noted in
Weems v. United States, supra, at 371, this interpretation led Story to conclude
"that the provision 'would seem to be wholly
unnecessary in a free government, since it is scarcely possible that any
department of such a government should authorize or justify such atrocious
conduct.'" And Cooley in his book, Constitutional Limitations, said the Court,
"apparently in a struggle between the effect to be given to ancient examples and
the inconsequence of a dread of them in these enlightened times, . . .
hesitate[d] to advance definite views."
Id., at 375. The result of a judicial application of this interpretation was not
surprising. A state court, for example, upheld the constitutionality of the
whipping post:
"In comparison with the 'barbarities of quartering, hanging in chains,
castration, etc.,' it was easily reduced to insignificance."
Id., at 377.
[*266] But this Court in
Weems decisively repudiated the
"historical" interpretation
[***41] of the Clause. The Court, returning to the intention of the Framers,
"rel[ied] on the conditions which existed when the Constitution was adopted." And the Framers knew
"that government by the people instituted by the Constitution would
not imitate the conduct of arbitrary
monarchs. The abuse of power might, indeed, be apprehended, but not that it
would be manifested in provisions or practices which would shock the
sensibilities of men."
Id., at 375. The Clause, then, guards against
"the abuse of power"; contrary to the implications in
Wilkerson v. Utah, supra, and
In re Kemmler, supra, the prohibition of the Clause is not
"confine[d] . . . to such penalties and punishment as were
inflicted by the Stuarts."
217 U.S., at 372. Although opponents of the Bill of Rights
"felt sure that the spirit of liberty could be trusted, and that its ideals
would be represented, not debased, by legislation,"
ibid., the Framers disagreed:
"[Patrick] Henry and those who believed as he did would take no chances. Their
predominant political impulse was distrust of power, and they insisted on
constitutional
[***42] limitations against its abuse. But surely they intended more than to register
a fear of the forms of abuse that went out of practice with the Stuarts.
Surely, their [jealousy] of power had
a saner justification than that. They were men of action, practical and
sagacious, not beset with vain imagining, and it must have come to them that
there could be exercises of
cruelty by laws other than those which
inflicted bodily pain or mutilation. With power in a legislature great, if not
unlimited, to give criminal character to the actions of men, with power
unlimited to fix terms of
imprisonment with what accompaniments they
[*267] might, what more potent instrument of
cruelty could be put into the hands of power? And it was believed that power might be
tempted to
cruelty. This was the motive of the clause, and if we are to attribute an intelligent
providence to its advocates we cannot think that it was intended to prohibit
only practices like the [Stuarts',] or to prevent only an exact repetition of
history. We cannot think that the possibility of a coercive
cruelty being exercised through other forms of punishment was overlooked."
Id., at 372-373.
The Court
[***43] in
Weems thus recognized that this
"restraint upon legislatures" possesses an
"expansive and vital character" that is
"'essential . . . to the
rule of law and the maintenance of individual freedom.'"
Id., at 376-377. Accordingly, the responsibility lies with the courts to make certain
[**2741] that the prohibition of the Clause is enforced. n8 Referring to cases in which
"prominence [was] given to the power of the legislature to define crimes and
their punishment," the Court said:
"We concede the power in most of its exercises. We disclaim the right
to assert a judgment
[*268] against that of the legislature of the expediency of the laws or the right to
oppose the judicial power to the legislative power to define crimes and fix
their punishment, unless that power encounters in its exercise a constitutional
prohibition. In such case not our discretion but our legal duty, strictly
defined and imperative in its direction, is invoked."
Id., at 378. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 The Court had earlier emphasized this point in
In re Kemmler, 136 U.S. 436 (1890), even while stating the narrow,
"historical" interpretation of the Clause:
"This [English] Declaration of
Rights had reference to the acts of the
executive and
judicial departments of the government of England; but the language in question as used
in the constitution of the State of New York was intended particularly to
operate upon the
legislature of the State, to whose control the punishment of crime was almost wholly
confined. So that, if the punishment prescribed for an offence against the
laws of the State were manifestly
cruel and unusual, . . . it would be the duty of the
courts to adjudge such penalties to be within the constitutional prohibition. And we
think this equally true of the [Clause], in its application to
Congress."
Id., at 446-447 (emphasis added).
[***44]
n9 Indeed, the Court in
Weems refused even to comment upon some decisions from state courts because they
were
"based upon
sentences of courts, not upon the constitutional validity of laws."
217 U. S., at 377.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In short, this Court finally adopted the
Framers' view of the Clause as a
"constitutional check" to ensure that
"when we come to punishments,
no latitude ought to be left, nor dependence put on the virtue of
representatives." That, indeed, is the only view consonant with our constitutional form of
government. If the judicial conclusion that a punishment is
"cruel and unusual"
"depend[ed] upon virtually unanimous condemnation of the penalty at issue," then,
"like no other constitutional provision, [the Clause's] only function would be
to legitimize advances already made by the other departments and opinions
already the conventional wisdom." We know that the Framers did not envision
"so narrow a role for this basic guaranty of human rights." Goldberg
& Dershowitz, Declaring the
Death Penalty Unconstitutional,
83 Harv. L. Rev. 1773, 1782 (1970). The right
[***45] to be free of
cruel and unusual punishments, like the other guarantees of the Bill of Rights,
"may not be submitted to vote; [it] depend[s] on the outcome of no elections."
"The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of
political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied
[*269] by the courts."
Board of Education v. Barnette, 319 U.S. 624, 638 (1943).
Judicial enforcement of the Clause, then, cannot be evaded by invoking the
obvious truth that legislatures have the power to prescribe punishments for
crimes. That is precisely the reason the Clause appears in the Bill of Rights.
The difficulty arises, rather, in formulating the
"legal principles to be applied by the courts" when a legislatively prescribed punishment is challenged as
"cruel and unusual." In formulating those constitutional principles, we must avoid the insertion of
"judicial conception[s] of . . . wisdom or propriety,"
Weems v. United States, 217 U.S., at 379, yet we must not, in the guise of
"judicial restraint," abdicate our fundamental
[***46] responsibility to enforce the Bill of Rights. Were we to do so, the
"constitution would indeed be as easy of application as it would be deficient in
efficacy and
power. Its general principles would have little value
[**2742] and be converted by precedent into impotent and lifeless formulas. Rights
declared in words might be lost in reality."
Id., at 373. The
Cruel and
Unusual Punishments Clause would become, in short,
"little more than good advice."
Trop v. Dulles, 356 U.S., at 104.
II
Ours would indeed be a simple task were we required merely to measure a
challenged punishment against
those that history has long condemned. That narrow and unwarranted view of
the Clause, however, was left behind with the 19th century. Our task today is
more complex. We know
"that the words of the [Clause] are not precise, and that their scope is not
static." We know, therefore, that the Clause
"must draw its meaning from the evolving standards of
decency that mark the progress
[*270] of a maturing society."
Id., at 100-101. n10 That knowledge, of course, is but the beginning of the inquiry.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 The Clause
"may be therefore progressive, and is
not fastened to the obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice."
Weems v. United States, 217 U.S., at 378.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***47]
In
Trop v. Dulles, supra, at 99, it was said that
"the question is whether [a] penalty subjects the individual to a fate forbidden
by the principle of civilized treatment guaranteed by the [Clause]." It was also said that a challenged punishment must be examined
"in light of the basic prohibition against inhuman treatment" embodied in the Clause.
Id., at 100 n. 32. It was said, finally, that:
"The basic concept underlying the [Clause] is nothing less than the dignity of
man. While the State has the power to punish, the [Clause] stands to assure
that this power be exercised within the limits of civilized standards."
Id., at 100.
At bottom, then, the
Cruel and
Unusual Punishments Clause prohibits the
infliction of uncivilized and inhuman punishments. The State, even as it
punishes, must treat its members with respect for their intrinsic worth as
human beings. A punishment is
"cruel and unusual," therefore, if it does not comport with human dignity.
This formulation, of course, does not of itself yield principles for assessing
the constitutional validity of particular punishments. Nevertheless, even
though
"this
[***48] Court has had little occasion to give precise content to the [Clause],"
ibid., there are principles recognized in our cases and inherent in the Clause
sufficient to permit a judicial determination whether a challenged punishment
comports with human dignity.
[*271] The primary principle is that a punishment must not be so severe as to be
degrading to the dignity of human beings. Pain, certainly, may be a factor in
the judgment. The
infliction of an extremely
severe punishment will often entail physical suffering. See
Weems v. United States, 217 U.S., at 366. n11 Yet the Framers also knew
"that there could be exercises of
cruelty
by laws other than those which
inflicted bodily pain or mutilation."
Id., at 372. Even though
"there may be involved no physical mistreatment, no primitive
torture,"
Trop v. Dulles, supra, at 101, severe mental pain may be inherent in the
infliction of a particular punishment. See
Weems v. United States, supra, at 366. n12
[**2743] That, indeed, was one of the conclusions underlying the holding of the
plurality in
Trop v.
Dulles that
[***49] the punishment of expatriation violates the Clause. n13 And the
[*272] physical and mental suffering inherent in the punishment of
cadena temporal, see nn. 11-12,
supra, was an obvious basis for the Court's decision in
Weems v.
United States that the punishment was
"cruel and unusual." n14
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11
"It may be that even the
cruelty of pain is not omitted. He must bear a chain night and day. He is condemned
to painful as
well as hard labor. What painful labor may mean we have no exact measure. It
must be something more than hard labor. It may be hard labor pressed to the
point of pain."
n12
"His
prison bars and chains are removed, it is true, after twelve years, but he goes from
them to a perpetual limitation of his liberty. He is forever kept under the
shadow of his crime, forever kept within voice and view of the criminal
magistrate, not being able to change his domicil without giving notice to the
'authority immediately in charge of his surveillance,' and without permission
in writing. He may not seek, even in other scenes and among other people, to
retrieve his fall from rectitude. Even that hope is taken from him and he is
subject to tormenting regulations that, if not so tangible as iron bars and
stone walls, oppress as much by their continuity, and deprive of essential
liberty."
[***50]
n13
"This punishment is offensive to
cardinal principles for which the Constitution stands. It subjects the
individual to a fate of ever-increasing fear and distress. He knows not what
discriminations may be established against him, what proscriptions may be
directed against him, and when and for what cause his existence in his native
land may be terminated. He may be subject to banishment, a fate universally
decried by civilized people. He is stateless, a condition deplored in the
international community of democracies. It is no answer to suggest that all
the disastrous consequences of this fate may not be brought to bear on a
stateless person. The threat makes the punishment obnoxious."
Trop v. Dulles, 356 U.S. 86, 102 (1958). Cf.
id., at 110-111 (BRENNAN, J., concurring):
"It can be supposed that the consequences of greatest weight, in terms of
ultimate impact on the petitioner, are unknown and unknowable. Indeed, in
truth, he may live out his life with but
minor inconvenience. . . . Nevertheless it cannot be denied that the impact of
expatriation -- especially where statelessness is the upshot -- may be severe.
Expatriation, in this respect, constitutes an especially demoralizing sanction.
The uncertainty, and the consequent psychological hurt, which must accompany
one who becomes an outcast in his own land must be reckoned a substantial
factor in the ultimate judgment."
[***51]
n14
"It is
cruel in its excess of
imprisonment and that which accompanies and follows
imprisonment. It is unusual in its character. Its punishments come under the condemnation
of the bill of rights, both on account of their degree and kind."
Weems v. United States, 217 U.S., at 377.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
More than the presence of pain, however, is comprehended in the judgment that
the extreme severity of a punishment makes it degrading to the dignity of human
beings. The barbaric punishments condemned by history,
"punishments which inflict
torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and
the like," are, of course,
"attended with acute pain and suffering."
O'Neil v. Vermont, 144 U.S. 323, 339 (1892) (Field, J., dissenting). When we consider why they have been condemned,
however, we realize that the pain involved is not the only reason. The true
significance of these punishments is that they treat
[*273] members of the human race as nonhumans, as objects to be toyed with and
discarded. They are thus inconsistent with the fundamental
[***52] premise of the Clause that even the vilest criminal remains a human being
possessed of common human dignity.
The
infliction of an extremely
severe punishment, then, like the one before the Court in
Weems v.
United States, from which
"no circumstance of degradation [was] omitted,"
217 U.S., at 366, may reflect the attitude that the person punished is not entitled to
recognition as a fellow human
being. That attitude may be apparent apart from the severity of the
punishment itself. In
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947),
for example, the unsuccessful electrocution, although it caused
"mental anguish and physical pain," was the result of
"an unforeseeable accident." Had the failure been intentional, however, the punishment would have been,
like
torture, so degrading
[**2744] and indecent as to amount to a refusal to accord the criminal human status.
Indeed, a punishment may be degrading to human dignity solely because it
is a punishment. A State may not punish a person for being
"mentally ill, or a leper, or . . . afflicted with a venereal disease," or for being addicted to narcotics.
Robinson v. California, 370 U.S. 660, 666 (1962).
[***53] To inflict punishment for having a disease is to treat the individual as a
diseased thing rather than as a sick human being. That the punishment is not
severe,
"in the abstract," is irrelevant;
"even one day in
prison would be a
cruel and unusual punishment for the 'crime' of having a common
cold."
Id., at 667. Finally, of course, a punishment may be degrading simply by reason of its
enormity. A prime example is expatriation, a
"punishment more primitive than
torture,"
Trop v. Dulles, 356 U.S., at 101, for it necessarily involves a
[*274] denial by society of the individual's existence as a member of the human
community. n15
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n15
"There may be involved no physical mistreatment, no primitive
torture. There is instead the total destruction of the individual's status in
organized society. It is a form of punishment more primitive than
torture, for it destroys for the individual the political existence that was centuries
in the development. The punishment strips the citizen of his status in the
national and international political community. His very existence is at the
sufferance of the country in which he happens to find himself. While any one
country may accord him some rights, and presumably as long as he remained
in this country he would enjoy the limited rights of an alien, no country need
do so because he is stateless. Furthermore, his enjoyment of even the limited
rights of an alien might be subject to termination at any time by reason of
deportation. In short, the expatriate has lost the right to have rights."
Trop v. Dulles, 356 U.S., at 101-102.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***54]
In determining whether a punishment comports with human dignity, we are aided
also by a second principle inherent in the Clause -- that the State must not
arbitrarily inflict a
severe punishment. This principle derives from the notion that the State does not respect human
dignity when, without reason, it inflicts upon some people a
severe punishment that it does not inflict upon others. Indeed, the very words
"cruel and unusual punishments" imply condemnation of the arbitrary
infliction of
severe punishments. And, as we now know, the English history of the Clause n16 reveals a
particular concern with the establishment of a safeguard against arbitrary
punishments. See Granucci,
"Nor
Cruel and Unusual Punishments
Inflicted:" The Original Meaning,
57 Calif. L. Rev. 839, 857-860 (1969). n17
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16
"The phrase in our Constitution was taken directly from the English Declaration
of Rights of [1689] . . . ."
Id., at 100.
n17 The specific incident giving rise to the provision was the perjury trial of
Titus Oates in 1685.
"None of the punishments
inflicted upon Oates amounted to
torture. . . . In the context of the Oates' case, 'cruel and unusual' seems to have meant a
severe punishment unauthorized by statute and not within the jurisdiction of the court to impose." Granucci,
"Nor
Cruel and Unusual Punishments
Inflicted:" The Original Meaning,
57 Calif. L. Rev. 839, 859 (1969). Thus,
"the irregularity and anomaly of Oates' treatment was extreme." Goldberg
& Dershowitz, Declaring the
Death Penalty
Unconstitutional,
83 Harv. L. Rev. 1773, 1789 n. 74 (1970). Although the English provision was intended to restrain the judicial and
executive power, see n. 8,
supra, the principle is, of course, fully applicable under our Clause, which is
primarily a restraint upon the legislative power.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***55]
[*275]
This principle has been recognized in our cases. n18 In
Wilkerson v. Utah, 99 U.S., at 133-134,
[**2745] the Court reviewed various treatises on military law in order to demonstrate
that under
"the custom of war" shooting was a common method of inflicting the
punishment of death. On that basis, the Court concluded:
"Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to [treatises
on military law] are quite sufficient to show that the punishment of shooting
as a mode of executing the
death penalty for the crime of
murder in the first degree is not
included in that
[*276] category, within the meaning of the [Clause]. Soldiers
convicted of desertion or other capital military offenses are in the great majority of
cases sentenced to be shot, and the ceremony for such occasions is given in
great fulness by the writers upon the subject of courts-martial."
Id., at 134-135.
The Court thus upheld death by shooting, so far as appears, solely on the
ground that it was a common method of execution. n19
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 In a case from the Philippine Territory, the Court struck down a punishment
that
"ha[d] no fellow in American legislation."
Weems v. United States, 217 U.S., at 377. After examining the punishments imposed, under both United States and
Philippine law, for similar as well as more serious crimes,
id., at 380-381, the Court declared that the
"contrast"
"exhibit[ed] a
difference between unrestrained power and that which is exercised under the
spirit of constitutional limitations formed to establish justice,"
id., at 381. And in
Trop v. Dulles, supra, in which a law of Congress punishing wartime desertion by expatriation was
held unconstitutional, it was emphasized that
"the civilized nations of the world are in virtual unanimity that statelessness
is not to be imposed as punishment for crime."
Id., at 102. When a
severe punishment is not
inflicted elsewhere, or when more serious crimes are punished less severely, there is a
strong inference that the State is exercising arbitrary,
"unrestrained power."
[***56]
n19 In
Weems v. United States, supra, at 369-370, the Court summarized the holding of
Wilkerson v. Utah, 99 U.S. 130 (1879), as follows:
"The court pointed out that death was an usual punishment for
murder, that it prevailed in the Territory for many years, and was
inflicted
by shooting, also that that mode of execution was usual under military law. It
was hence concluded that it was not forbidden by the Constitution of the United
States as
cruel or unusual."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As
Wilkerson v.
Utah suggests, when a
severe punishment is
inflicted
"in the great majority of cases" in which it is legally available, there is little likelihood that the State is
inflicting it arbitrarily. If, however, the
infliction of a
severe punishment is
"something different from that which is generally done" in such cases,
Trop v. Dulles, 356 U.S., at 101 n. 32, n20
there is a
[**2746] substantial
[*277] likelihood that the State, contrary to the requirements of regularity and
fairness embodied in the Clause, is inflicting the punishment
[***57] arbitrarily. This principle is especially important today. There is scant
danger, given the political processes
"in an enlightened democracy such as ours,"
id., at 100, that extremely
severe punishments will be widely applied. The more significant function of the Clause,
therefore, is to protect against the danger of their arbitrary
infliction.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n20 It was said in
Trop v. Dulles, supra, at 100-101, n. 32, that
"on the few occasions this Court has had to consider the meaning of the
[Clause], precise distinctions between
cruelty and unusualness do not seem to have been drawn. . . . If the word 'unusual'
is to have any meaning apart from the word 'cruel,' however, the meaning should be the ordinary one, signifying something
different from that which is generally done." There are other statements in prior cases indicating that the word
"unusual" has a distinct meaning:
"We perceive nothing . . . unusual in this [punishment]."
Pervear v. The Commonwealth, 5 Wall. 475, 480 (1867).
"The judgment of mankind would be that the punishment was not only an unusual
but a
cruel one . . . ."
O'Neil v. Vermont, 144 U.S. 323, 340 (1892) (Field, J., dissenting).
"It is unusual in its character."
Weems v. United States, supra, at 377.
"And the punishment
inflicted . . . is certainly unusual."
United States
ex rel. Milwaukee Social Democratic Pub. Co. v.
Burleson, 255 U.S. 407, 430 (1921) (Brandeis, J., dissenting).
"The punishment
inflicted is not only unusual in character; it is, so far as known, unprecedented in
American legal history."
Id., at 435.
"There is no precedent for it. What then is it, if it be not
cruel, unusual and unlawful?"
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 479 (1947) (Burton, J., dissenting).
"To be sure,
imprisonment for ninety days is not, in the abstract, a punishment which is either
cruel or unusual."
Robinson v. California, 370 U.S., at 667.
It is fair to conclude from these statements that
"whether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear."
Trop v. Dulles, supra, at 100 n. 32. The question, in any event, is of minor significance; this Court has never
attempted to explicate the
meaning of the Clause simply by parsing its words.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***58]
A third principle inherent in the Clause is that a
severe punishment must not be unacceptable to contemporary society. Rejection by society, of
course, is a strong indication that a
severe punishment does not comport with human dignity. In applying this principle, however, we
must make certain that the judicial determination is as objective as possible.
n21
[*278] Thus, for example,
Weems v. United States, 217 U.S., at 380, and
Trop v. Dulles, 356 U.S., at 102-103, suggest that one factor that may be considered is the existence of the
punishment in jurisdictions other than those before the Court.
Wilkerson v. Utah, supra, suggests that another factor to be considered is the historic usage of
the punishment. n22
Trop v. Dulles, supra, at 99, combined present acceptance with past usage by observing that
"the
death
penalty has been employed throughout our history, and, in a day when it is still
widely accepted, it cannot be said to violate the constitutional concept of
cruelty." In
Robinson v. California, 370 U.S., at 666, which involved the
infliction
[***59] of punishment for narcotics addiction, the Court went a step further,
concluding simply that
"in the light of contemporary human knowledge, a law which made a criminal
offense of such a disease would doubtless be universally thought to be an
infliction of
cruel and unusual punishment."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n21 The danger of subjective judgment is acute if the question posed is whether
a punishment
"shocks the most fundamental instincts of civilized man,"
Louisiana ex rel. Francis v. Resweber, supra, at 473 (Burton, J., dissenting), or whether
"any man of right feeling and heart can refrain from shuddering,"
O'Neil v. Vermont, supra, at 340 (Field, J., dissenting), or whether
"a cry of horror would
rise from every civilized and Christian community of the country,"
ibid. Mr. Justice Frankfurter's concurring opinion in
Louisiana ex rel. Francis v. Resweber, supra, is instructive. He warned
"against finding in personal disapproval a reflection of more or less prevailing
condemnation" and against
"enforcing . . . private view[s] rather than that consensus of society's opinion
which, for purposes of due process, is the standard enjoined by the
Constitution."
Id., at 471. His conclusions were as follows:
"I cannot bring myself to believe that [the State's procedure] . . . offends a
principle of justice 'rooted in the traditions and conscience of our people.'"
Id., at 470.
". . . I cannot say that it would be 'repugnant to the conscience of mankind.'"
Id., at 471. Yet nowhere in the opinion is there any explanation of how he arrived at those
conclusions.
[***60]
n22 Cf.
Louisiana ex rel. Francis v. Resweber, supra, at 463:
"The traditional humanity of
modern Anglo-American law forbids the
infliction of unnecessary pain in the execution of the death
sentence."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The question under this principle, then, is whether there are objective
indicators from which a court can conclude that contemporary society considers
a
severe punishment unacceptable. Accordingly, the judicial
[*279] task is to review the history of a challenged punishment and to examine
society's present practices
[**2747] with respect to its use. Legislative authorization, of course, does not
establish acceptance. The acceptability of a
severe punishment is measured, not by its availability, for it might become so offensive to
society as never to be
inflicted, but by its use.
The final principle inherent in the Clause is that a
severe punishment must not be
excessive. A punishment is
excessive under this principle if it is unnecessary: The
infliction of a
severe punishment by the State cannot comport with human dignity when it is nothing more than
the pointless
[***61]
infliction of suffering. If there is
a significantly less
severe punishment adequate to achieve the purposes for which the punishment is
inflicted, cf.
Robinson v. California, supra, at 666;
id., at 677 (DOUGLAS, J., concurring);
Trop v. Dulles, supra, at 114 (BRENNAN, J., concurring), the punishment
inflicted is unnecessary and therefore
excessive.
This principle first appeared in our cases in Mr. Justice Field's dissent in
O'Neil v. Vermont, 144 U.S., at 337. n23 He there took the position that:
"[The Clause] is directed, not only against punishments of the character
mentioned [torturous punishments], but against all punishments which by
[*280] their
excessive length or severity are greatly disproportioned to the offences charged. The
whole inhibition is against that which is
excessive either in the bail required, or fine imposed, or punishment
inflicted."
Id., at 339-340.
Although the determination that a
severe punishment is
excessive may
be grounded in a
judgment that it is disproportionate to the crime, n24 the more significant
basis is that the
[***62] punishment serves no penal purpose more effectively than a less
severe punishment. This view of the principle was explicitly recognized by the Court in
Weems v. United States, supra. There the Court, reviewing a
severe punishment
inflicted for the falsification of an official record, found that
"the highest punishment possible for a crime which may cause the loss of many
thousand[s] of dollars, and to prevent which the duty of the State should be as
eager as to prevent the perversion of truth in a public document, is not
greater than that which may be imposed for falsifying a single item of a public
account."
Id., at 381. Stating that
"this contrast shows more than different exercises of legislative judgment," the Court concluded that the punishment was unnecessarily severe in view of
the purposes for which it was imposed.
Ibid. n25
[*281]
[**2748] See also
Trop v. Dulles, 356 U.S., at 111-112 (BRENNAN, J., concurring). n26
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n23 It may, in fact, have appeared earlier. In
Pervear v. The Commonwealth, 5 Wall., at 480, the Court stated:
"We perceive nothing
excessive, or
cruel, or unusual in this [punishment]. The object of the law was to protect the
community against the manifold evils of intemperance. The mode adopted, of
prohibiting under penalties the sale and keeping for sale of intoxicating
liquors, without license, is the usual mode adopted in many, perhaps, all of
the States. It is wholly within the discretion of State legislatures."
This discussion suggests that the Court viewed the punishment as reasonably
related to the purposes for which it was
inflicted.
[***63]
n24 Mr. Justice Field apparently based his conclusion upon an intuitive sense
that the punishment was disproportionate to the criminal's moral guilt,
although he also observed that
"the punishment was greatly beyond anything required by any
humane law for the offences,"
O'Neil v. Vermont, 144 U.S., at 340. Cf.
Trop v. Dulles, 356 U.S., at 99:
"Since wartime desertion is punishable by death, there can be no argument that
the penalty of denationalization is
excessive in relation to the gravity of the crime."
n25
"The State thereby suffers nothing and loses no power. The purpose of
punishment is fulfilled, crime is repressed by penalties of just, not
tormenting, severity, its repetition is prevented, and hope is given for the
reformation of the criminal."
Weems v. United States, 217 U.S., at 381.
n26 The principle that a
severe punishment must not be
excessive does not, of course, mean that a
severe punishment is constitutional merely because it is necessary. A State could not now, for
example, inflict a punishment condemned by history, for any such punishment, no
matter how necessary, would be
intolerably offensive to human dignity. The point is simply that the
unnecessary
infliction of suffering is also offensive to human dignity.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***64]
There are, then, four principles by which we may determine whether a particular
punishment is
"cruel and unusual." The primary principle, which I believe supplies the essential predicate for
the application of the others, is that a punishment must not by its severity be
degrading to human dignity. The paradigm violation of this principle would be
the
infliction of a torturous punishment of the type that the Clause has always prohibited.
Yet
"it is unlikely that any State at this moment in history,"
Robinson v. California, 370 U.S., at 666, would pass a law providing for the
infliction of such a punishment. Indeed, no such punishment has ever been before this
Court. The same may be said of the other principles. It is unlikely that this
Court will confront a
severe punishment that is obviously
inflicted in wholly arbitrary fashion; no State would engage in
a reign of blind terror. Nor is it likely that this Court will be called upon
to review a
severe punishment that is clearly and totally rejected throughout society; no legislature would
be able even to authorize the
infliction of such a punishment. Nor, finally, is it likely that this Court will have
[***65] to consider a
severe punishment that is patently unnecessary; no State today would inflict a
severe punishment knowing that there was no reason whatever for
doing so. In short, we are unlikely to have occasion to determine that a
punishment is fatally offensive under any one principle.
[*282] Since the Bill of Rights was adopted, this Court has adjudged only three
punishments to be within the prohibition of the Clause. See
Weems v. United States, 217 U.S. 349 (1910) (12 years in chains at hard and painful labor);
Trop v. Dulles, 356 U.S. 86 (1958) (expatriation);
Robinson v. California, 370 U.S. 660 (1962) (imprisonment for narcotics addiction). Each punishment, of course, was degrading to human
dignity, but of none could it be said conclusively that it was fatally
offensive under one or the other of the principles. Rather, these
"cruel and unusual punishments" seriously implicated several of the principles, and it was the application of
the principles in combination that supported the judgment. That, indeed, is
not surprising. The function of these principles, after all, is simply to
provide
[***66] means by which a court can determine whether a challenged punishment comports
with human dignity. They are, therefore, interrelated, and in most cases it
will be their convergence that will justify the conclusion that a punishment is
"cruel and unusual." The test, then, will ordinarily be a cumulative one: If a punishment is
unusually severe, if there is a strong probability that it is
inflicted arbitrarily, if it is substantially rejected by contemporary society, and if
there is no reason to believe that it serves any penal purpose more effectively
than some less
severe
punishment, then the continued
infliction of that punishment violates the command of the Clause that the State may not
inflict inhuman and uncivilized punishments upon those
convicted of crimes.
III
The punishment challenged in these cases is death. Death, of course, is a
"traditional" punishment,
Trop v. Dulles, supra, at 100, one that
"has been employed throughout our history,"
id., at 99, and its constitutional
[*283] background is accordingly
[**2749] an appropriate subject of inquiry.
There is, first, a textual consideration raised by the Bill of Rights itself.
[***67] The Fifth Amendment declares that if a particular crime is punishable by
death, a person charged with that crime is entitled to certain procedural
protections. n27 We can thus infer that the Framers recognized the existence of
what was then a common punishment. We cannot, however, make the further
inference that they intended to exempt this particular punishment from the
express prohibition of the
Cruel and
Unusual Punishments Clause. n28 Nor is there any indication
in the debates on the Clause that a
special exception was to be made for death. If anything, the indication is to
the contrary, for Livermore specifically mentioned death as a candidate for
future proscription under the Clause. See
supra, at 262. Finally, it does not advance analysis to insist that the Framers did
not believe that adoption
[*284] of the Bill of Rights would immediately prevent the
infliction of the
punishment of death; neither did they believe that it would immediately prevent the
infliction of other corporal punishments that, although common at the time, see n. 6,
supra, are now acknowledged to be impermissible. n29
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n27 The Fifth Amendment provides:
"No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury . . . ; nor shall any person be subject for the same offence to be twice
put in jeopardy of
life or limb; . . . nor be deprived of
life, liberty, or property, without due process of
law . . . ." (Emphasis added.)
[***68]
n28 No one, of course, now contends that the reference in the Fifth Amendment
to
"jeopardy of . . . limb" provides perpetual constitutional sanction for such corporal punishments as
branding and earcropping, which were common punishments when the Bill of Rights
was adopted. But cf. n. 29,
infra. As the California Supreme Court pointed out with respect to the California
Constitution:
"The Constitution expressly proscribes
cruel or unusual punishments. It would be more speculation and conjecture to
ascribe to the framers an intent to exempt
capital punishment from the compass of that provision solely because at a time when the
death penalty was commonly accepted they provided elsewhere in the Constitution for special
safeguards in its application."
People v. Anderson, 6 Cal. 3d 628, 639, 493 P. 2d 880, 887 (1972).
n29 Cf.
McGautha v. California, 402 U.S. 183, 226 (1971) (separate
opinion of Black, J.):
"The [Clause] forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw
capital punishment because that penalty was in common use and authorized by law here and in the
countries from which our ancestors came at the time the [Clause] was adopted.
It is inconceivable to me that the framers intended to end
capital punishment by the [Clause]."
Under this view, of course, any punishment that was in common use in 1791 is
forever exempt from the Clause.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***69]
There is also the consideration that this Court has decided three cases
involving constitutional challenges to particular methods of inflicting this
punishment. In
Wilkerson v. Utah, 99 U.S. 130 (1879), and
In re Kemmler, 136 U.S. 436 (1890), the Court, expressing in both cases the since-rejected
"historical" view of the Clause, see
supra, at 264-265, approved death by shooting and death by
electrocution. In
Wilkerson, the Court concluded that shooting was a common method of execution, see
supra, at 275-276; n30 in
Kemmler, the Court held that the Clause did not apply to the
States, 136 U.S., at 447-449.
[**2750] n31
[*285] In
Louisiana ex rel. Francis v. Resweber, supra, the Court approved a second attempt at electrocution after the first had
failed. It was said that
"the Fourteenth [Amendment] would prohibit by its due process clause execution
by a state in a
cruel manner,"
329 U.S., at 463, but that the abortive attempt did not make the
"subsequent execution any more
cruel in the constitutional sense than any other execution,"
id., at 464.
[***70] n32 These three decisions thus reveal that the Court, while
ruling upon various methods of inflicting death, has assumed in the past that
death was a constitutionally permissible punishment. n33
Past assumptions, however, are not sufficient to limit the scope of our
examination of this punishment today. The constitutionality of death itself
under the
Cruel and
Unusual Punishments Clause is before this Court for the first time; we cannot avoid the question by
recalling past cases that never directly considered it.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n30 The Court expressly noted that the constitutionality of the punishment
itself was not challenged.
Wilkerson v. Utah, 99 U.S., at 136-137. Indeed, it may be that the only contention made was that, in the absence of
statutory sanction, the
sentencing
"court possessed no authority to prescribe the mode of execution."
Id., at 137.
n31 Cf.
McElvaine v. Brush, 142 U.S. 155, 158-159 (1891):
"We held in the case of
Kemmler . . . that as the legislature of the State of New York had determined that
[electrocution] did not inflict
cruel and unusual punishment, and its courts had sustained that determination, we were unable to perceive
that the State had thereby
abridged the privileges or immunities of petitioner or deprived him of due
process of law."
[***71]
n32 It was also asserted that the Constitution prohibits
"cruelty inherent in the method of punishment," but does not prohibit
"the necessary suffering involved in any method employed to extinguish life
humanely."
329 U.S., at 464. No authority was cited for this assertion, and, in any event, the distinction
drawn appears to be meaningless.
n33 In a nondeath case,
Trop v.
Dulles, it was said that
"in a day when it is still
widely accepted, [death] cannot be said to violate the constitutional concept of
cruelty."
356 U.S., at 99 (emphasis added). This statement, of course, left open the future
constitutionality of the punishment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The question, then, is whether the deliberate
infliction of death is today consistent with the command of the Clause that the State may
not inflict punishments that do not comport with human dignity. I will analyze
the
punishment of death in
terms of the principles
[*286] set out above and the cumulative test to which they lead: It is a denial of
human dignity for the State arbitrarily to subject a person to an unusually
[***72]
severe punishment that society has indicated it does not regard as acceptable, and that cannot
be shown to serve any penal purpose more effectively than a significantly less
drastic punishment. Under these principles and this test, death is today a
"cruel and unusual" punishment.
Death is a unique punishment in the United States. In a society that so
strongly affirms the sanctity of life, not surprisingly the common view is that
death is the ultimate sanction. This natural human feeling appears all about
us. There has been no national debate about punishment, in general or by
imprisonment, comparable to the debate about the
punishment of death. No other punishment has been so continuously restricted, see
infra, at 296-298, nor has any State yet
abolished
prisons, as some have
abolished this punishment. And those States that still inflict death reserve it for the
most heinous crimes. Juries, of course, have always treated death cases
differently, as have governors exercising their commutation powers. Criminal
defendants are of the same view.
"As all practicing lawyers know, who have defended persons charged with capital
offenses, often the only goal possible is to avoid
[***73] the
death penalty."
Griffin v. Illinois, 351 U.S. 12, 28 (1956) (Burton and Minton, JJ., dissenting). Some legislatures have required
particular procedures, such as two-stage trials and automatic appeals,
applicable only in death cases.
"It is
[**2751] the universal experience in the administration of criminal justice that those
charged with capital offenses are granted special considerations."
Ibid. See
Williams v. Florida, 399 U.S. 78, 103 (1970) (all States require juries of 12 in death cases). This Court, too, almost
[*287] always treats
death cases as a class apart. n34 And
the unfortunate effect of this punishment upon the functioning of the judicial
process is well known; no other punishment has a similar effect.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n34
"That life is at stake is of course another important factor in creating the
extraordinary situation. The difference between capital and non-capital
offenses is the basis of differentiation in law in diverse ways in which the
distinction becomes relevant."
Williams v. Georgia, 349 U.S. 375, 391 (1955) (Frankfurter, J.).
"When the penalty is death, we, like state court judges, are tempted to strain
the evidence and even, in close cases, the law in order to give a doubtfully
condemned man another chance."
Stein v. New York, 346 U.S. 156, 196 (1953) (Jackson, J.).
"In death cases doubts such as those presented here should be resolved
in favor of the accused."
Andres v. United States, 333 U.S. 740, 752 (1948) (Reed, J.). Mr. Justice Harlan expressed the point strongly:
"I do not concede that whatever process is 'due' an offender faced with a fine
or a
prison
sentence necessarily satisfies the requirements of the Constitution in a capital case.
The distinction is by no means novel, . . . nor is it negligible, being
literally that between life and death."
Reid v. Covert, 354 U.S. 1, 77 (1957) (concurring in result). And, of course, for many years this Court
distinguished death cases from all others for purposes of the constitutional
right to counsel. See
Powell v. Alabama, 287 U.S. 45 (1932);
Betts v. Brady, 316 U.S. 455 (1942);
Bute v. Illinois, 333 U.S. 640 (1948).
- - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
[***74]
The only explanation for the uniqueness of death is its extreme severity.
Death is today an unusually
severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing
punishment is comparable to death in terms of physical and mental suffering.
Although our information is not conclusive, it appears that there is no method
available that guarantees an immediate and painless death. n35 Since the
discontinuance
[*288] of flogging as a constitutionally permissible punishment,
Jackson v. Bishop, 404 F.2d 571 (CA8 1968), death remains as the only punishment that may involve the conscious
infliction of physical pain. In addition, we know that mental pain is an inseparable
part of our practice of punishing criminals by death, for the prospect of
pending execution exacts a frightful toll during the inevitable long wait
between the imposition of
sentence and the actual
infliction of death.
Cf.
Ex parte Medley, 134 U.S. 160, 172 (1890). As the California Supreme Court pointed out,
"the process of carrying out a verdict of death is often so degrading and
brutalizing to the human spirit as to constitute psychological
[***75]
torture."
People v. Anderson, 6 Cal. 3d 628, 649, 493
[**2752] P. 2d 880, 894 (1972). n36 Indeed, as Mr. Justice Frankfurter noted,
"the onset of insanity while awaiting
[*289] execution of a death
sentence is not a rare phenomenon."
Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (dissenting opinion). The
"fate of ever-increasing fear and distress" to which the expatriate is subjected,
Trop v. Dulles, 356 U.S., at 102, can only exist to a greater degree for a person confined in
prison awaiting death. n37
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n35 See
Report of Royal Commission on
Capital Punishment 1949-1953, paras. 700-789, pp. 246-273 (1953); Hearings on S. 1760 before the
Subcommittee on Criminal Laws and Procedures of the Senate Committee on the
Judiciary, 90th Cong., 2d Sess., 19-21 (1968) (testimony of Clinton Duffy); H.
Barnes
& N. Teeters, New Horizons in Criminology 306-309 (3d ed. 1959); C. Chessman,
Trial by Ordeal 195-202 (1955); M. DiSalle, The Power of Life and Death 84-85
(1965); C. Duffy
& A. Hirschberg, 88 Men and 2 Women 13-14 (1962); B. Eshelman, Death Row
Chaplain 26-29, 101-104, 159-164 (1962); R. Hammer, Between Life and Death
208-212 (1969); K. Lamott, Chronicles of San Quentin
228-231 (1961); L. Lawes, Life and Death in Sing Sing 170-171 (1928); Rubin,
The Supreme Court,
Cruel and Unusual Punishment, and the
Death Penalty, 15 Crime
& Delin. 121, 128-129 (1969); Comment, The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1338-1341 (1968); Brief
amici curiae filed by James V. Bennett, Clinton T. Duffy, Robert G. Sarver, Harry C.
Tinsley, and Lawrence E. Wilson 12-14.
[***76]
n36 See Barnes
& Teeters,
supra, at 309-311 (3d ed. 1959); Camus, Reflections on the Guillotine, in A. Camus,
Resistance, Rebellion, and Death 131, 151-156 (1960); C. Duffy
& A. Hirschberg,
supra, at 68-70, 254 (1962); Hammer,
supra, at 222-235, 244-250,
269-272 (1969); S. Rubin, The Law of Criminal Correction 340 (1963); Bluestone
& McGahee, Reaction to Extreme Stress: Impending Death by Execution, 119 Amer.
J. Psychiatry 393 (1962); Gottlieb,
Capital Punishment, 15 Crime
& Delin. 1, 8-10 (1969); West, Medicine and
Capital Punishment, in Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures
of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 124 (1968);
Ziferstein, Crime and Punishment, The Center Magazine 84 (Jan. 1968); Comment,
The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1342 (1968); Note, Mental Suffering under
Sentence of Death: A
Cruel and Unusual Punishment,
57 Iowa L. Rev. 814 (1972).
n37 The State, of course, does not purposely impose the lengthy waiting
period in order to inflict further suffering. The impact upon the individual
is not the less severe on that account. It is no answer to assert that long
delays exist only because condemned criminals avail themselves of their full
panoply of legal rights. The right not to be subjected to inhuman treatment
cannot, of course, be played off against the right to pursue due process of
law, but, apart from that, the plain truth is that it is society that demands,
even against the wishes of the criminal, that all legal avenues be explored
before the execution is finally carried out.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***77]
The unusual severity of death is manifested most clearly in its finality and
enormity. Death, in these respects, is in a class by itself. Expatriation,
for example, is a punishment that
"destroys for the individual the political existence that was centuries in the
development," that
"strips the citizen of his status in the national and international political
community," and that puts
"his very existence" in jeopardy. Expatriation thus inherently entails
"the total destruction of the individual's status in organized society."
Id., at 101.
"In short, the expatriate has lost the right to have rights."
Id., at 102. Yet, demonstrably, expatriation is not
"a fate worse than death."
Id., at 125 (Frankfurter, J., dissenting). n38 Although death, like expatriation,
destroys the
[*290] individual's
"political existence" and his
"status in organized society," it does more, for, unlike expatriation, death also destroys
"his very existence." There is, too, at least the possibility that the expatriate will in the future
regain
"the right to have rights." Death forecloses even that possibility.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n38 It was recognized in
Trop itself that expatriation is a
"punishment short of death."
356 U.S., at 99. Death, however, was distinguished on the ground that it was
"still widely accepted."
Ibid.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***78]
Death is truly an awesome punishment. The calculated killing of
a human being by the State involves, by its very nature, a denial of the
executed person's humanity. The contrast with the plight of a person punished
by
imprisonment is evident. An individual in
prison does not lose
"the right to have rights." A prisoner retains, for example, the constitutional rights to the free
exercise of religion, to be free of
cruel and unusual punishments, and to treatment as a
"person" for purposes of due process of law and the equal protection of the laws. A
prisoner
remains a member of the human family. Moreover, he retains the right of
access to the courts. His punishment is not irrevocable. Apart from the
common charge, grounded upon the recognition of human fallibility, that the
punishment of death must inevitably be
inflicted upon innocent men, we know
[**2753] that death has been the lot of men whose convictions were unconstitutionally
secured in view of later, retroactively applied, holdings of this Court. The
punishment itself
may have been unconstitutionally
inflicted, see
Witherspoon v. Illinois, 391 U.S. 510 (1968), yet the finality of
[***79] death precludes relief. An executed person has indeed
"lost the right to have rights." As one 19th century proponent of punishing criminals by death declared,
"When a man is hung, there is an end of our relations with him. His execution
is a way of saying, 'You are not fit for this world, take your chance
elsewhere.'" n39
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n39 Stephen,
Capital Punishments, 69 Fraser's Magazine 753, 763 (1864).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*291] In comparison to all other punishments today, then, the deliberate
extinguishment of human life by the State is uniquely degrading to human
dignity. I would not hesitate to hold, on that ground alone, that death is
today a
"cruel and unusual" punishment, were it not that death is a punishment of longstanding usage and
acceptance in this country. I therefore turn to the
second principle -- that the State may not arbitrarily inflict an unusually
severe punishment.
The outstanding characteristic of our present practice of punishing criminals
by death is the infrequency with which we resort to it. The evidence is
conclusive
[***80] that death is not the ordinary punishment for any crime.
There has been a steady decline in the
infliction of this punishment in every decade since the 1930's, the earliest period for
which accurate
statistics are available. In the 1930's, executions averaged 167 per year; in the
1940's, the average was 128; in the 1950's, it was 72; and in the years
1960-1962, it was 48. There have been a total of 46 executions since then, 36
of them in 1963-1964. n40 Yet our population and the number of capital crimes
committed have increased greatly over the past four decades. The contemporary
rarity of the
infliction of this punishment is thus the end result of a long-continued decline. That
rarity is plainly revealed by an examination of the years 1961-1970, the last
10-year period for which
statistics are available. During that time, an average of 106 death
sentences
[*292] was imposed each year. n41 Not nearly that number, however, could be carried
out, for many were precluded by commutations to life or a term of years, n42
transfers to mental
institutions because of insanity, n43 resentences to life or a term of years,
grants of new trials and orders for resentencing, dismissals
[***81] of indictments and reversals of convictions, and deaths by suicide and natural
causes. n44
[**2754] On January 1, 1961, the death row population was 219; on December 31, 1970, it
was 608; during that span, there were 135 executions. n45 Consequently, had the
389 additions to death row also been executed, the annual average would have
been 52. n46 In short, the country
[*293] might, at most, have executed one criminal
each week. In fact, of course, far fewer were executed. Even before the
moratorium on executions began in 1967, executions totaled only 42 in 1961 and
47 in 1962, an average of less than one per week; the number dwindled to 21 in
1963, to 15 in 1964, and to seven in 1965; in 1966, there was one execution,
and in 1967, there were two. n47
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n40 From 1930 to 1939: 155, 153, 140, 160, 168, 199, 195, 147, 190, 160. From
1940 to 1949: 124, 123, 147, 131, 120, 117, 131, 153, 119, 119. From 1950 to
1959: 82, 105, 83, 62, 81, 76, 65, 65, 49, 49. From 1960 to 1967: 56, 42, 47,
21, 15, 7, 1, 2. Department of Justice, National Prisoner
Statistics No. 46,
Capital Punishment 1930-1970, p. 8 (Aug. 1971). The last execution in the United States took
place on June 2, 1967.
Id., at 4.
[***82]
n41 1961 -- 140; 1962 -- 103; 1963 -- 93; 1964 -- 106; 1965 -- 86; 1966 -- 118;
1967 -- 85; 1968 -- 102; 1969 -- 97; 1970 -- 127.
Id., at 9.
n42 Commutations averaged about 18 per year. 1961 -- 17; 1962 -- 27; 1963 --
16; 1964 -- 9; 1965 -- 19; 1966 -- 17; 1967 -- 13; 1968 -- 16; 1969 -- 20; 1970
-- 29.
Ibid.
n43 Transfers to mental institutions averaged about three per year. 1961 -- 3;
1962 -- 4; 1963 -- 1; 1964 -- 3; 1965 -- 4; 1966 -- 3; 1967 -- 3; 1968 -- 2;
1969 --
1; 1970 -- 5.
Ibid.
n44 These four methods of disposition averaged about 44 per year. 1961 -- 31;
1962 -- 30; 1963 -- 32; 1964 -- 58; 1965 -- 39; 1966 -- 33; 1967 -- 53; 1968 --
59; 1969 -- 64; 1970 -- 42.
Ibid. Specific figures are available starting with 1967. Resentences: 1967 -- 7;
1968 -- 18; 1969 -- 12; 1970 -- 14. Grants of new trials and orders for
resentencing: 1967 -- 31; 1968 -- 21; 1969 -- 13; 1970 -- 9. Dismissals of
indictments and reversals of convictions: 1967 -- 12; 1968 -- 19; 1969 -- 33;
1970 -- 17. Deaths by suicide and natural causes: 1967 -- 2; 1968 -- 1; 1969
-- 5; 1970 -- 2. National Prisoner
Statistics No. 42, Executions 1930-1967, p. 13 (June 1968); National
Prisoner
Statistics No. 45,
Capital Punishment 1930-1968, p. 12 (Aug. 1969); National Prisoner
Statistics,
supra, n. 40, at 14-15.
[***83]
n45
Id., at 9.
n46 During that 10-year period, 1,177 prisoners entered death row, including
120 who were returned following new trials or treatment at mental institutions.
There were 653 dispositions other than by execution, leaving 524 prisoners who
might have been executed, of whom 135 actually were.
Ibid.
n47
Id., at 8.
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When a country of over 200 million people inflicts an unusually
severe punishment no more than 50 times a year, the inference is strong that the punishment is
not being regularly and fairly applied. To dispel it would indeed require a
clear showing of nonarbitrary
infliction.
Although there are no exact figures available, we know that thousands of
murders and
rapes are committed annually in States where death is an authorized punishment for
those crimes. However the rate of
infliction is characterized -- as
"freakishly" or
"spectacularly" rare, or simply as rare -- it would take the purest sophistry to deny that
death is
inflicted in only a minute fraction of these cases. How much rarer, after all, could
the
infliction of death be?
When the
punishment
[***84] of death is
inflicted in a trivial number of the cases in which it is legally available, the
conclusion is virtually inescapable that it is being
inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The
States claim, however, that this rarity is evidence not of arbitrariness, but
of informed selectivity: Death is
inflicted, they say, only in
"extreme" cases.
Informed selectivity, of course, is a value not to be denigrated. Yet
presumably the States could make
precisely the same claim if there were 10 executions per
[*294] year, or five, or even if there were but one. That there may be as many as
50 per year does not strengthen the claim. When the rate of
infliction is at this low level, it is highly implausible that only the worst criminals
or the criminals who commit the worst crimes are selected for this punishment.
No one has yet suggested a rational basis that could differentiate in those
terms the few who die from the many who go to
prison. Crimes and criminals simply do not admit of a distinction that can be drawn
so finely as to explain, on that ground, the execution of such a tiny sample of
those eligible. Certainly the laws
[***85] that provide for this punishment do not attempt to draw that distinction; all
cases to which the laws apply are necessarily
"extreme." Nor is the distinction credible in fact. If, for example, petitioner Furman
or his crime illustrates the
"extreme," then nearly all murderers and their
murders are also
"extreme." n48
[**2755] Furthermore, our procedures in death cases,
[*295] rather than resulting in the selection of
"extreme" cases for this punishment, actually sanction an arbitrary
selection. For this Court has held that juries may, as they do, make the
decision whether to impose a death
sentence wholly unguided by standards governing that decision.
McGautha v. California, 402 U.S. 183, 196-208 (1971). In other words, our procedures are not constructed to guard against the
totally capricious selection of criminals for the
punishment of death.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n48 The victim surprised Furman in the act of burglarizing the victim's home in
the middle of the night. While escaping, Furman killed the victim with one
pistol shot fired through the closed kitchen door from the outside. At the
trial, Furman gave his version of the killing:
"They got me charged with
murder and I admit, I admit going to these folks' home and they did caught me in
there and I was coming back out, backing up and there was a wire down there on
the floor. I was coming out backwards and
fell back and I didn't intend to kill nobody. I didn't know they was behind
the door. The gun went off and I didn't know nothing about no
murder until they arrested me, and when the gun went off I was down on the floor and
I got up and ran. That's all to it." App. 54-55.
The Georgia Supreme Court accepted that version:
"The admission in open court by the accused . . . that during the period in
which he was involved in the commission of a criminal act at the home of the
deceased, he accidentally tripped over a wire in leaving the premises causing
the gun to go off, together with other facts and circumstances surrounding the
death of the deceased by violent means, was sufficient to support the verdict
of guilty of
murder. . . ."
Furman v. State, 225 Ga. 253, 254, 167 S. E. 2d 628, 629 (1969).
About Furman himself, the jury knew only that he was black and that, according
to his statement at trial, he was 26 years old and worked at
"Superior Upholstery." App. 54. It took the jury one hour and 35 minutes to return a verdict of
guilt and a
sentence of death.
Id., at 64-65.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***86]
Although it is difficult to imagine what further facts would be necessary in
order to prove that death is, as my Brother STEWART puts it,
"wantonly and . . . freakishly"
inflicted, I need not conclude that arbitrary
infliction is patently obvious. I am not considering this punishment by the isolated
light of one principle. The probability of arbitrariness is sufficiently
substantial that it can be relied upon, in combination with the other
principles, in reaching a judgment on the constitutionality of this punishment.
When there is a strong probability that an unusually severe and degrading
punishment is being
inflicted
arbitrarily, we may well expect that
society will disapprove of its
infliction. I turn, therefore, to the third principle. An examination of the history
and present operation of the American practice of punishing criminals by death
reveals that this punishment has been almost totally rejected by contemporary
society.
I cannot add to my Brother MARSHALL's comprehensive treatment of the English
and American history of
[*296] this punishment. I emphasize, however, one significant conclusion that
emerges from that history. From the beginning of our
[***87] Nation, the
punishment of death has stirred acute public controversy. Although pragmatic arguments for and
against the punishment have been frequently advanced, this longstanding and
heated controversy cannot be explained solely as the result of differences over
the practical wisdom of a particular government policy. At bottom, the battle
has been waged on moral grounds. The country has debated whether a society for
which the dignity of the individual is the supreme value can, without a
fundamental inconsistency, follow the practice of deliberately putting some of
its members to
death. In the United States, as in other nations of the western world,
"the struggle about this punishment has been one between ancient and deeply
rooted beliefs in
retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the
personal value and dignity of the common man that were born of the democratic
movement
[**2756] of the eighteenth century, as well as beliefs in the scientific approach to an
understanding of the motive forces of human conduct, which are the result of
the growth of the sciences of behavior during the nineteenth and twentieth
centuries." n49 It is this
[***88] essentially moral conflict that forms the backdrop for the past changes in and
the present operation of our system of imposing death as a punishment for crime.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n49 T. Sellin, The
Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15
(1959).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Our practice of punishing criminals by death has changed
greatly over the years. One significant change has been in our methods of
inflicting death. Although this country never embraced the more violent and
repulsive methods employed in England, we did for a long time rely almost
exclusively upon the gallows and the firing squad. Since the development of
the supposedly
[*297] more humane methods of electrocution late in the 19th century and lethal gas
in the 20th, however, hanging and shooting have virtually ceased. n50 Our
concern for
decency and human dignity, moreover, has compelled changes in the circumstances
surrounding the execution itself. No longer does our society countenance the
spectacle of public executions, once thought desirable
[***89] as a
deterrent to criminal behavior by others. Today we reject public executions as debasing
and brutalizing to us all.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n50 Eight States still employ hanging as the method of execution, and one,
Utah, also employs shooting. These
nine States have accounted for less than 3% of the executions in the United
States since 1930. National Prisoner
Statistics,
supra, n. 40, at 10-11.
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Also significant is the drastic decrease in the crimes for which the
punishment of death is actually
inflicted. While esoteric capital crimes remain on the books, since 1930
murder and
rape have accounted
for nearly 99% of the total executions, and
murder alone for about 87%. n51 In addition, the crime of capital
murder has itself been limited. As the Court noted in
McGautha v. California, 402 U.S., at 198, there was in this country a
"rebellion against the common-law rule imposing a mandatory death
sentence on all
convicted murderers." Initially, that rebellion resulted in legislative definitions that
[***90] distinguished between degrees of
murder, retaining the mandatory death
sentence only
for
murder in the first degree. Yet
"this new legislative criterion for isolating crimes appropriately punishable by
death soon proved as unsuccessful as the concept of 'malice aforethought,'"
ibid., the common-law means of separating
murder from manslaughter. Not only was the distinction between degrees of
murder confusing and uncertain in practice, but even in clear cases of first-degree
murder juries continued to take the law into
[*298] their own hands: if they felt that death was an inappropriate punishment,
"they simply refused to convict of the capital offense."
Id., at 199. The phenomenon of jury nullification thus remained to counteract the rigors of
mandatory death
sentences. Bowing to reality,
"legislatures did not try, as before, to refine further the definition of
capital homicides. Instead they adopted the method of forthrightly granting
juries the discretion which they had been exercising in fact."
Ibid. In consequence, virtually all death
sentences
today are discretionarily imposed. Finally, it is significant that nine States
no longer inflict
[***91] the
punishment of death under any circumstances, n52 and
[**2757] five others have restricted it to extremely rare crimes. n53
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n51
Id., at 8.
n52 Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia,
and Wisconsin have
abolished death as a punishment for crimes.
Id., at 50. In addition, the California Supreme Court held the punishment
unconstitutional under the state counterpart of the
Cruel and
Unusual Punishments Clause.
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880 (1972).
n53 New Mexico, New York, North Dakota, Rhode Island, and Vermont have almost
totally
abolished death as a punishment for crimes. National Prisoner
Statistics,
supra, n. 40, at 50. Indeed, these five States
might well be considered
de facto
abolition States. North Dakota and Rhode Island, which restricted the punishment in
1915 and 1852 respectively, have not carried out an execution since at least
1930,
id., at 10; nor have there been any executions in New York, Vermont, or New
Mexico since they restricted the punishment in 1965, 1965, and 1969
respectively,
id., at 10-11. As of January 1, 1971, none of the five States had even a single
prisoner under
sentence of death.
Id., at 18-19.
In addition, six States, while retaining the punishment on the books in
generally applicable form, have made virtually no use of it. Since 1930,
Idaho, Montana, Nebraska, New Hampshire, South Dakota, and Wyoming have carried
out a total of 22 executions.
Id., at 10-11. As of January 1, 1971, these six States had
a total of three prisoners under
sentences of death.
Id., at 18-19. Hence, assuming 25 executions in 42 years, each State averaged
about one execution every 10 years.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***92]
[*299] Thus, although
"the
death penalty has been employed throughout our history,"
Trop v. Dulles, 356 U.S., at 99, in fact the history of this punishment is one of successive restriction. What
was once a common punishment has become, in the context of a continuing moral
debate, increasingly rare. The evolution of this punishment evidences, not
that it is an inevitable
part of the American scene, but that it has proved progressively more
troublesome to the national conscience. The result of this movement is our
current system of administering the punishment, under which death
sentences are rarely imposed and death is even more rarely
inflicted. It is, of course,
"We, the People" who are responsible for the rarity both of the imposition and the carrying out
of this punishment.
Juries,
"express[ing] the conscience of the community on the ultimate question of life
or death,"
Witherspoon v. Illinois, 391 U.S., at 519, have been able to bring themselves to vote for death in a mere 100 or so cases
among the thousands tried each year where the punishment is available.
Governors, elected by and acting for us, have regularly
[***93] commuted a substantial number of those
sentences. And it is our society that insists upon due process of law to the end that
no person will be unjustly put to death, thus ensuring that many more of those
sentences will not be carried out. In sum, we have made death a rare punishment today.
The progressive decline in, and the current rarity of, the
infliction of death demonstrate that our society seriously questions the appropriateness
of this punishment today. The States point out that many legislatures
authorize death as the punishment for certain crimes and that substantial
segments of the
public, as reflected in opinion polls and referendum votes, continue to support
it. Yet the availability of this punishment through statutory authorization,
as well as the polls and referenda,
[*300] which amount simply to approval of that authorization, simply underscores the
extent to which our society has in fact rejected this punishment. When an
unusually
severe punishment is authorized for wide-scale application but not, because of society's
refusal,
inflicted save in a few instances, the inference is compelling that there is a
deep-seated reluctance to inflict it. Indeed, the likelihood
[***94] is great that the punishment is tolerated only because of its disuse. The
objective indicator of society's view of an unusually
severe punishment is what society does with it, and today society will inflict death upon only a
small sample of the eligible criminals. Rejection could hardly be more
complete without becoming absolute. At the very least, I must conclude that
contemporary society views this punishment with substantial doubt.
The final principle to be
considered is that an unusually severe and degrading
[**2758] punishment may not be
excessive in view of the purposes for which it is
inflicted. This principle, too, is related to the others. When there is a strong
probability that the State is arbitrarily inflicting an unusually
severe punishment that is subject to grave societal doubts, it is likely also that the
punishment cannot be shown to be serving any penal purpose that could not be
served equally well by some less
severe punishment.
The States' primary claim is that death is a necessary punishment because it
prevents the commission of capital crimes more effectively than any less
severe punishment. The first part of this claim is that the
infliction of death
[***95] is necessary to stop the individuals executed from committing further crimes.
The sufficient answer to this is that if a criminal
convicted of a capital crime
poses a danger to society, effective administration of the State's pardon and
parole laws can delay or deny his release from
prison, and techniques of isolation can eliminate
[*301] or minimize the
danger while he remains confined.
The more significant argument is that the threat of death prevents the
commission of capital crimes because it deters potential criminals who would
not be deterred by the threat of
imprisonment. The argument is not based upon evidence that the threat of death is a
superior
deterrent. Indeed, as my Brother MARSHALL establishes, the available evidence uniformly
indicates, although it does not conclusively prove, that the threat of death
has no greater
deterrent effect than the threat of
imprisonment. The States argue, however, that they are entitled to rely upon common human
experience, and that experience, they say, supports the conclusion that death
must be a more effective
deterrent than any less
severe punishment. Because people fear death the most, the argument runs, the threat
[***96] of death must be the greatest
deterrent.
It is important to focus upon the precise import of this argument. It is not
denied that many, and probably most, capital crimes cannot be deterred by the
threat of punishment. Thus the argument can apply only to those who think
rationally about the commission of capital crimes. Particularly is that true
when the potential criminal, under this argument, must not only consider the
risk of punishment, but also distinguish between two possible punishments. The
concern, then, is with a particular type of potential criminal, the rational
person who will commit a capital crime knowing that the punishment is long-term
imprisonment, which may well be for the rest of his life, but will not commit the crime
knowing that the punishment is death. On the face of it, the assumption that
such persons exist is implausible.
In any event, this argument cannot be appraised in the abstract. We are not
presented with the theoretical question whether under any imaginable
circumstances the
[*302] threat of death might be a greater
deterrent to the commission of capital crimes than the threat of
imprisonment. We are concerned with the practice of punishing
[***97] criminals by death as it exists in the United
States today. Proponents of this argument necessarily admit that its validity
depends upon the existence of a system in which the
punishment of death is invariably and swiftly imposed. Our system, of course, satisfies neither
condition. A rational person contemplating a
murder or
rape is confronted, not with the certainty of a speedy death, but with the
slightest possibility that he will be executed in the distant future. The risk
of death is remote and improbable; in contrast, the risk of longterm
imprisonment is near and great. In short, whatever the speculative validity of the
assumption that the threat of death is a superior
deterrent, there is no reason to believe that as currently administered the
punishment of death is necessary to deter the commission of capital crimes. Whatever might be the
case were all or substantially all eligible criminals quickly put to death,
unverifiable possibilities are an insufficient basis
[**2759] upon which to conclude that the threat of death
today has any greater
deterrent efficacy than the threat of
imprisonment. n54
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n54 There is also the more limited argument that death is a necessary
punishment when criminals are already serving or subject to a
sentence of
life imprisonment. If the only punishment available is further
imprisonment, it is said, those criminals will have nothing to lose by committing further
crimes, and accordingly the threat of death is the sole
deterrent. But
"life"
imprisonment is a misnomer today. Rarely, if ever, do crimes carry a mandatory life
sentence without possibility of parole. That possibility ensures that criminals do not
reach the point where further crimes are free of consequences. Moreover, if
this argument is simply an assertion that the threat of death is a more
effective
deterrent than the threat of increased
imprisonment by denial of release on parole, then, as noted above, there is simply no
evidence to support it.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***98]
[*303] There is, however, another aspect to the argument that the
punishment of death is necessary for the protection of society. The
infliction of death, the States
urge, serves to manifest the community's outrage at the commission of the
crime. It is, they say, a concrete public expression of moral indignation that
inculcates respect for the law and helps assure a more peaceful community.
Moreover, we are told, not only does the
punishment of death exert this widespread moralizing influence upon community values, it also
satisfies the popular demand for grievous condemnation of abhorrent crimes and
thus prevents disorder, lynching, and attempts by private citizens to take the
law into their own hands.
The question, however, is not whether death serves these supposed purposes of
punishment, but whether death serves them more effectively than
imprisonment. There is no evidence whatever that utilization of
imprisonment rather than death encourages private blood feuds and other disorders. Surely
if there were such a danger, the execution of a handful of criminals each year
would not prevent it. The assertion that death alone is a sufficiently
emphatic denunciation
for capital
[***99] crimes suffers from the same defect. If capital crimes require the
punishment of death in order to provide moral reinforcement for the basic values of the community,
those values can only be undermined when death is so rarely
inflicted upon the criminals who commit the crimes. Furthermore, it is certainly
doubtful that the
infliction of death by the State does in fact strengthen the community's moral code; if
the deliberate extinguishment of human life has any effect at all, it more
likely tends to lower our respect for life and brutalize our values. That,
after all, is why we no longer carry out public executions. In any event, this
claim simply means that one purpose of punishment is to indicate social
disapproval of crime. To serve that purpose our
[*304] laws distribute punishments according to the gravity of crimes and punish more
severely the crimes society regards as more serious. That purpose cannot
justify any particular punishment as the upper limit of
severity.
There is, then, no substantial reason to believe that the
punishment of death, as currently administered, is necessary for the protection of society. The
only other purpose suggested, one that is independent
[***100] of protection for society, is
retribution. Shortly stated,
retribution in this context means that criminals
are put to death because they deserve it.
Although it is difficult to believe that any State today wishes to proclaim
adherence to
"naked vengeance,"
Trop v. Dulles, 356 U.S., at 112 (BRENNAN, J., concurring), the States claim, in reliance upon its statutory
authorization, that death is the only fit punishment for capital crimes and
that this retributive purpose justifies its
infliction. In the past, judged by its statutory authorization, death was considered the
only fit punishment for the crime of forgery, for the first federal criminal
statute provided a mandatory
death penalty for that crime. Act of April 30, 1790,
§ 14, 1 Stat. 115.
[**2760] Obviously, concepts of justice change; no immutable moral order requires death
for murderers and rapists. The claim that death is a just punishment
necessarily refers to the existence of certain public beliefs. The claim must
be that for capital crimes death alone comports with society's notion of proper
punishment. As administered today, however, the
punishment of death cannot be justified
[***101] as a necessary means of exacting
retribution from criminals. When the overwhelming number of criminals who commit capital
crimes go to
prison, it cannot be concluded that death serves the purpose of
retribution more effectively than
imprisonment. The asserted public belief that murderers and rapists deserve to die is
flatly inconsistent with the execution of a random
[*305] few. As the history of the
punishment of death in this country shows, our society wishes to prevent crime; we have no desire
to kill criminals simply to get even with them.
In sum, the
punishment of death is inconsistent with all four principles: Death is an unusually severe and
degrading punishment; there is a strong probability that it is
inflicted arbitrarily; its rejection by contemporary society is virtually total; and
there is no reason to believe that it serves any penal purpose more effectively
than the less
severe punishment of
imprisonment. The function of these principles is to enable a court to determine whether a
punishment comports with human dignity. Death, quite simply, does not.
IV
When this country was founded, memories of the Stuart horrors were fresh and
severe corporal punishments
[***102] were common. Death was not then a unique punishment. The practice of
punishing criminals by death, moreover, was widespread and by and large
acceptable to society. Indeed, without developed
prison systems, there was frequently no workable alternative. Since that time,
successive restrictions, imposed against the background of a continuing moral
controversy, have drastically curtailed the use of this
punishment. Today death is a uniquely and unusually
severe punishment. When examined by the principles applicable under the
Cruel and
Unusual Punishments Clause, death stands condemned as fatally offensive to human dignity. The
punishment of death is therefore
"cruel and unusual," and the States may no longer inflict it as a punishment for crimes. Rather
than kill an arbitrary handful of criminals each year, the States will confine
them in
prison.
"The State thereby suffers nothing and loses no power. The purpose of
punishment is fulfilled, crime
[*306] is repressed by penalties of just, not tormenting, severity, its repetition is
prevented, and hope is
given for the reformation of the criminal."
Weems v. United States, 217 U.S., at 381.
[***103]
I concur in the judgments of the Court.
MR. JUSTICE STEWART, concurring.
The penalty of death differs from all other forms of criminal punishment, not
in degree but
in kind. It is unique in its total irrevocability. It is unique in its
rejection of rehabilitation of the convict as a basic purpose of criminal
justice. And it is unique, finally, in its absolute renunciation of all that
is embodied in our concept of humanity.
For these and other reasons, at least two of my Brothers have concluded that
the
infliction of the
death penalty is constitutionally impermissible in all circumstances under the Eighth and
Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate
question they would decide. See
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (Brandeis, J., concurring).
The opinions of other Justices today have set out in admirable and thorough
detail the origins and judicial history of
[**2761] the
Eighth Amendment's guarantee against the
infliction of
cruel and unusual punishments, n1 and the origin and judicial history of
capital punishment. n2 There
[*307] is thus no need for me to
review
[***104] the historical materials here, and what I have to say can, therefore, be
briefly stated.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 See dissenting opinion of THE CHIEF JUSTICE,
post, at 376-379; concurring opinion of MR. JUSTICE DOUGLAS,
ante, at 242-244; concurring opinion of MR. JUSTICE BRENNAN,
ante, at 258-269; concurring opinion of MR. JUSTICE MARSHALL,
post, at 316-328; dissenting opinion of MR. JUSTICE BLACKMUN,
post, at 407-409; dissenting opinion of MR. JUSTICE POWELL,
post, at 421-427.
n2 See dissenting opinion of THE CHIEF JUSTICE,
post, at 380; concurring opinion of MR. JUSTICE BRENNAN,
ante, at 282-285; concurring opinion of MR. JUSTICE MARSHALL,
post, at 333-341; dissenting opinion of MR. JUSTICE POWELL,
post, at 421-424.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Legislatures -- state and federal -- have sometimes specified that the penalty
of death shall be the
mandatory punishment for every person
convicted of engaging in certain designated criminal conduct. Congress, for example,
has provided that anyone
convicted of acting as a spy
[***105] for the enemy in time of war shall be put to death. n3 The Rhode Island
Legislature has ordained the
death penalty for a life term prisoner who commits
murder. n4 Massachusetts has passed a law imposing the
death penalty upon anyone
convicted of
murder in the commission of a forcible
rape. n5 An Ohio law imposes the mandatory penalty of death upon the assassin of the
President of the United States or the Governor of a State. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3
10 U. S. C. § 906.
n4 R. I. Gen. Laws Ann.
§ 11-23-2.
n5 Mass. Gen. Laws Ann., c.
265,
§ 2.
n6 Ohio Rev. Code Ann., Tit. 29,
§§ 2901.09 and 2901.10.
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If we were reviewing death
sentences imposed under these or similar laws, we would be faced with the need to decide
whether
capital punishment is unconstitutional for all crimes and under all circumstances. We would need
to decide whether a legislature -- state or federal -- could
constitutionally determine that certain criminal conduct is so atrocious that
society's interest in
deterrence and
retribution wholly outweighs
[***106] any considerations of reform or rehabilitation of the perpetrator, and that,
despite the inconclusive empirical evidence, n7 only
[*308] the automatic penalty of death will provide maximum
deterrence.
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n7 Many statistical studies -- comparing crime rates in jurisdictions with and
without
capital punishment and in jurisdictions before and after
abolition of
capital punishment -- have indicated that there is little, if any, measurable
deterrent effect. See H. Bedau, The
Death Penalty in America
258-332 (1967 rev. ed.). There remains uncertainty, however, because of the
difficulty of identifying and holding constant all other relevant variables.
See Comment, The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1275-1292. See also dissenting opinion of THE CHIEF JUSTICE,
post, at 395; concurring opinion of MR. JUSTICE MARSHALL,
post, at 346-354.
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On that score I would say only that I cannot agree that
retribution is a constitutionally impermissible ingredient in the imposition of
punishment.
[***107] The instinct for
retribution is part of the nature of man, and channeling that instinct in the
administration of criminal justice serves an important purpose in promoting the
stability of a society governed by law. When people begin to believe that
organized society is unwilling or unable to impose upon criminal offenders the
punishment they
"deserve," then there are sown the seeds of anarchy -- of self-help, vigilante
justice, and lynch law.
The constitutionality of
capital punishment in the abstract is not, however, before us in these cases. For the Georgia
and Texas Legislatures have not provided that the
death penalty shall be imposed upon all those who are found
[**2762] guilty of forcible
rape. n8 And the Georgia Legislature has not ordained that death shall be the
automatic punishment for
murder. n9 In a word, neither State
[*309] has made a legislative determination that forcible
rape and
murder can be deterred only by imposing the penalty of death upon all who perpetrate
those offenses. As MR. JUSTICE WHITE so tellingly puts it, the
"legislative will is not frustrated if the penalty is never imposed."
Post, at 311.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Georgia law, at the time of the conviction and
sentencing of the petitioner in No. 69-5030, left the jury a choice between the
death penalty,
life imprisonment, or
"imprisonment and labor in the penitentiary
for not less than one year nor more than 20 years." Ga. Code Ann.
§ 26-1302 (Supp. 1971) (effective prior to July 1, 1969). The current Georgia
provision for the punishment of forcible
rape continues to leave the same broad
sentencing leeway. Ga. Crim. Code
§ 26-2001 (1971 rev.) (effective July 1, 1969). Texas law, under which the
petitioner in No. 69-5031 was sentenced, provides that a
"person guilty of
rape shall be punished by death or by confinement in the penitentiary for life, or
for any term of years not less than five." Texas Penal Code, Art. 1189.
[***108]
n9 Georgia law, under which the petitioner in No. 69-5003, was sentenced, left
the jury a choice between the
death penalty and
life imprisonment.
Ga. Code Ann.
§ 26-1005 (Supp. 1971) (effective prior to July 1, 1969). Current Georgia law
provides for similar
sentencing leeway. Ga. Crim. Code
§ 26-1101 (1971 rev.) (effective July 1, 1969).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Instead, the death
sentences now before us are the product of a legal system that brings them, I believe,
within the very core of the
Eighth Amendment's guarantee against
cruel and unusual punishments, a guarantee applicable against the States through the
Fourteenth Amendment.
Robinson v. California, 370 U.S. 660. In the first place, it is clear that these
sentences are
"cruel" in
the sense that they excessively go beyond, not in degree but in kind, the
punishments that the state legislatures have determined to be necessary.
Weems v. United States, 217 U.S. 349. In the
second place, it is equally clear that these
sentences are
"unusual" in the sense that the penalty of death is infrequently imposed
[***109] for
murder, and that its imposition for
rape is extraordinarily rare. n10 But I do not rest my conclusion upon these two
propositions alone.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 See dissenting opinion of THE CHIEF JUSTICE,
post, at 386-387, n. 11; concurring opinion of MR. JUSTICE BRENNAN,
ante, at 291-293.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
These death
sentences are
cruel and unusual in the same way that being struck by lightning is
cruel and unusual. For, of all the people
convicted of
rapes and
murders in 1967 and 1968, n11 many just as reprehensible as these, the petitioners are
among a capriciously
[*310] selected random handful upon whom the
sentence of death has in fact been imposed. n12 My concurring Brothers have
demonstrated that, if any basis can be discerned for the selection of these
few to be sentenced to die, it is the constitutionally impermissible basis of
race. n13 See
McLaughlin v. Florida, 379 U.S. 184.
[**2763] But racial discrimination has not been proved, n14 and I put it to one side.
I simply conclude that the Eighth
[***110] and
Fourteenth Amendments cannot tolerate the
infliction of a
sentence of death under legal systems that permit this unique penalty to be so wantonly
and so freakishly imposed.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 Petitioner Branch was sentenced to death in a Texas court on July 26, 1967.
Petitioner Furman was sentenced to death in a Georgia court on September 20,
1968. Petitioner Jackson was sentenced to death in a Georgia court on December
10, 1968.
n12 A former United States Attorney General has testified before the Congress
that only a
"small and capricious selection of offenders have been put to death. Most
persons
convicted of the same crimes have been imprisoned." Statement by Attorney General Clark in Hearings on S. 1760 before the
Subcommittee on Criminal Laws and Procedures of the Senate Committee on the
Judiciary, 90th Cong., 2d Sess., 93.
In
McGautha v. California, 402 U.S. 183, the Court dealt with claims under the Due Process and Equal Protection Clauses
of the
Fourteenth Amendment. We expressly declined in that case to consider claims under the
constitutional guarantee against
cruel and unusual punishments. See
398 U.S. 936 (limited grant of certiorari).
[***111]
n13 See concurring opinion of MR. JUSTICE DOUGLAS,
ante, at 249-251; concurring opinion of MR. JUSTICE MARSHALL,
post, at 366 n. 155.
n14 Cf. Note, A Study of the California Penalty Jury in First-Degree-Murder Cases,
21 Stan. L. Rev. 1297 (1969); dissenting opinion of THE CHIEF JUSTICE,
post, at 389-390, n. 12.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
For these reasons I concur in the judgments of the Court.
MR. JUSTICE WHITE, concurring.
The facial constitutionality of statutes requiring the imposition of the
death penalty for first-degree
murder, for more narrowly defined categories of
murder, or for
rape would present quite different issues under the
Eighth Amendment than are posed by the cases before us. In joining the Court's judgments,
therefore, I do not at all
[*311] intimate that the
death penalty is unconstitutional
per se or that there is no system of
capital punishment that would comport with the
Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by
these cases and need not be decided.
The narrower question to which I
address myself concerns
[***112] the constitutionality of
capital punishment statutes under which (1) the
legislature authorizes the imposition of the
death penalty for
murder or
rape; (2) the legislature does not itself mandate the penalty in any particular
class or kind of case (that is, legislative will is not frustrated if the
penalty is never imposed), but delegates to judges or juries the decisions as
to those cases, if any, in which the penalty will be utilized; and (3) judges
and juries have ordered the
death penalty with such infrequency that the odds are now very much against imposition and
execution of the penalty with respect to any
convicted murderer or rapist. It is in this context that we must consider whether the
execution of these petitioners would violate the
Eighth Amendment.
I begin with what I consider a near truism: that the
death penalty could so seldom be imposed that it would cease to be a credible
deterrent or measurably to contribute to any other end of punishment in the criminal
justice system. It is perhaps true that no matter how infrequently those
convicted of
rape or
murder are executed, the penalty so imposed is not
disproportionate to the crime and those executed may deserve
[***113] exactly what they received. It would also be clear that executed defendants
are finally and completely incapacitated from again committing
rape or
murder or any other crime. But when imposition of the penalty reaches a certain
degree of infrequency, it would be very doubtful that any existing general need
for
retribution would be measurably satisfied. Nor could it be said with confidence that
society's need for specific
deterrence justifies death
[*312] for so few when for so many in like circumstances
life imprisonment or shorter
prison terms are judged sufficient, or that community values are measurably
reinforced by authorizing a penalty so rarely invoked.
Most important, a major goal of the criminal law -- to deter others by
punishing the
convicted criminal -- would not be substantially served where the penalty is so seldom
invoked that it ceases to be the credible threat essential to influence the
conduct of others. For present purposes I accept the morality and utility of
punishing one person to influence another. I accept also the effectiveness of
punishment generally and need not reject the
death penalty as a more effective
deterrent than a lesser punishment. But
[***114] common sense and experience tell us that seldom-enforced laws become
ineffective measures for controlling human conduct and that the
death penalty, unless imposed with sufficient frequency,
[**2764] will make little contribution to deterring those crimes for which it may be
exacted.
The imposition and execution of the
death penalty are obviously
cruel in the dictionary sense. But the penalty has not been considered
cruel and unusual punishment in the constitutional sense because it was thought justified by the social
ends it was deemed to serve. At the moment that it ceases realistically to
further these purposes, however, the emerging question is whether its
imposition in such circumstances would violate the
Eighth Amendment. It is my view that it would, for its imposition would then be the pointless
and needless extinction of life with only
marginal contributions to any discernible social or public purposes. A penalty
with such negligible returns to the State would be
patently
excessive and
cruel and unusual punishment violative of the
Eighth Amendment.
It is also my judgment that this point has been reached with respect to
capital punishment as it is presently
[***115] administered
[*313] under the statutes involved in these cases. Concededly, it is difficult to
prove as a general proposition that
capital punishment, however administered, more effectively serves the ends of the criminal law
than does
imprisonment. But however that may be, I cannot avoid the conclusion that as the statutes
before us are now administered, the penalty is so infrequently imposed that the
threat of execution is too attenuated to be of substantial service to criminal
justice.
I need not restate the facts and figures that appear in the opinions of my
Brethren. Nor can I
"prove" my conclusion from these data. But, like my Brethren, I must arrive at
judgment; and I can do no more than state a
conclusion based on 10 years of almost daily exposure to the facts and
circumstances of hundreds and hundreds of federal and state criminal cases
involving crimes for which death is the authorized penalty. That conclusion,
as I have said, is that the
death penalty is exacted with great infrequency even for the most atrocious crimes and that
there is no meaningful basis for distinguishing the few cases in which it is
imposed from the many cases in which it is not. The short
[***116] of it is that the policy of vesting
sentencing authority primarily in juries -- a decision largely motivated by the desire to
mitigate the harshness of the law and to bring community judgment to bear on
the
sentence as well as guilt or innocence -- has so effectively achieved its aims that
capital punishment within the confines of the statutes now before us has for all practical
purposes run its course.
Judicial review, by definition, often involves a conflict between judicial and
legislative judgment as to what the Constitution means or
requires. In this respect,
Eighth Amendment cases come to us in no different posture. It seems conceded by all that the
Amendment imposes some obligations on the judiciary to judge the
[*314] constitutionality of punishment and that there are punishments that the
Amendment would bar whether legislatively approved or not. Inevitably, then,
there will be occasions when we will differ with Congress or state legislatures
with respect to the validity of punishment. There will also be cases in which
we shall strongly disagree among ourselves. Unfortunately, this is one of
them. But as I see it, this case is no different in kind from many others,
[***117] although it may have wider impact and provoke sharper disagreement.
In this respect, I add only that past and present legislative judgment with
respect to the
death penalty loses much of its force when viewed in light of the recurring practice of
delegating
sentencing authority to the jury and the fact that a jury, in its own discretion and
without violating its trust or any statutory policy,
may refuse to impose the
death penalty no matter what the circumstances of the crime. Legislative
"policy" is thus necessarily defined not by what is legislatively authorized but
[**2765] by what juries and judges do in exercising the discretion so regularly
conferred upon them. In my judgment what
was done in these cases violated the
Eighth Amendment.
I concur in the judgments of the Court.
MR. JUSTICE MARSHALL, concurring.
These three cases present the question whether the
death penalty is a
cruel and unusual punishment prohibited by the
Eighth Amendment to the United States Constitution. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Certiorari was also granted in a fourth case,
Aikens v.
California, No. 68-5027, but the writ was dismissed after the California Supreme Court
held that
capital punishment violates the State Constitution.
406 U.S. 813. See
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied,
406 U.S. 958 (1972). The California decision reduced by slightly more than 100 the number of
persons currently awaiting execution.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***118]
[*315] In No. 69-5003, Furman was
convicted of
murder for shooting the father of five children when he discovered that Furman had
broken into his home early one morning. Nos. 69-5030 and 69-5031 involve state
convictions for forcible
rape. Jackson was found guilty of
rape during the course of a robbery in the victim's home. The
rape was accomplished as he held the pointed ends of scissors at the victim's
throat. Branch also was
convicted of a
rape committed in the victim's home. No weapon was utilized, but physical force
and threats of physical force were employed.
The criminal acts with which we are confronted are ugly, vicious, reprehensible
acts. Their sheer
brutality cannot and should not be minimized. But, we are not called upon to
condone the penalized conduct; we are asked only to examine the penalty imposed
on each of the petitioners and to determine whether or not it violates the
Eighth Amendment. The question then is not whether we condone
rape or
murder, for surely we do not; it is whether
capital punishment is
"a punishment no longer consistent with our own self-respect" n2 and, therefore, violative of the
Eighth Amendment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 268 Parl. Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor Gardiner).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***119]
The elasticity of the constitutional provision under consideration presents
dangers of too little or too much self-restraint. n3 Hence, we must proceed
with caution to answer the question presented. n4 By first examining the
historical derivation of the
Eighth Amendment and
[*316] the construction given it in the past by this Court, and then exploring the
history and attributes of
capital punishment in this country, we
can answer the question presented with objectivity and a proper measure of
self-restraint.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Compare,
e. g.,
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470 (1947) (Frankfurter, J., concurring), with F. Frankfurter, Of Law and Men 81 (1956).
See
In re Anderson, 69 Cal. 2d 613, 634-635, 447 P. 2d 117, 131-132 (1968) (Mosk, J., concurring); cf.
McGautha v. California, 402 U.S. 183, 226 (1971) (separate opinion of Black, J.);
Witherspoon v. Illinois, 391 U.S. 510, 542 (1968) (WHITE, J., dissenting).
n4 See generally Frankel, Book Review,
85 Harv. L. Rev. 354, 362 (1971).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***120]
Candor is critical to such an inquiry. All relevant material must be
marshaled and sorted and forthrightly examined. We must not only be precise as
to the standards of judgment that we are utilizing, but exacting in examining
the relevant
material in light of those standards.
Candor compels me to confess that I am not oblivious to the fact that this is
truly a matter of life and death. Not only does it involve the lives of these
three petitioners, but those of the
[**2766] almost 600 other condemned men and women in this country currently awaiting
execution. While this fact cannot affect our ultimate decision, it
necessitates that the decision be free from any possibility of error.
I
The
Eighth Amendment's ban against
cruel and unusual punishments derives from English law. In 1583, John Whitgift, Archbishop of Canterbury,
turned the High Commission into a permanent ecclesiastical court, and the
Commission began to use
torture to extract confessions from persons suspected of various offenses. n5 Sir
Robert Beale protested that
cruel and barbarous
torture violated Magna Carta, but his protests were made in vain. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Granucci,
"Nor
Cruel and Unusual Punishments
Inflicted:" The Original Meaning,
57 Calif. L. Rev. 839, 848 (1969).
[***121]
n6
Ibid. Beale's views were conveyed from England to America and were first written
into American law by the Reverend Nathaniel Ward who wrote the Body of
Liberties for the Massachusetts Bay Colony. Clause 46 of that work read:
"For bodilie punishments we allow amongst us none that are inhumane, Barbarous
or
cruel." 1 B. Schwartz, The Bill of Rights: A Documentary History 71, 77 (1971).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*317]
Cruel punishments were not confined to those accused of crimes, but were notoriously
applied with even greater relish to those who were
convicted. Blackstone described in ghastly detail the myriad of inhumane forms of
punishment imposed on persons
found guilty of any of a large number of offenses. n7 Death, of course, was the
usual result. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 4 W. Blackstone, Commentaries *376-377. See also 1 J. Chitty, The Criminal
Law 785-786 (5th ed. 1847); Sherman,
". . . Nor
Cruel and Unusual Punishments
Inflicted," 14 Crime
& Delin. 73, 74 (1968).
n8 Not content with
capital punishment as a means of
retribution for crimes, the English also provided for attainder ("dead in law") as the immediate and inseparable concomitant of the death
sentence. The consequences of attainder were forfeiture of real and personal estates
and corruption of blood. An attainted person could not inherit land or other
hereditaments, nor retain those he possessed, nor transmit them by descent to
any heir. Descents were also obstructed whenever posterity derived a title
through one who was attainted. 4 W. Blackstone, Commentaries *380-381.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***122]
The treason trials of 1685 -- the
"Bloody Assizes" -- which followed an abortive rebellion by the Duke of Monmouth, marked the
culmination of the parade of horrors, and most historians believe that it was
this event that finally spurred the adoption of the English Bill of Rights
containing the progenitor of our prohibition against
cruel and unusual punishments. n9 The conduct of Lord Chief Justice Jeffreys at those trials has been
described as an
"insane lust for
cruelty" which was
"stimulated by orders from the King" (James II). n10 The assizes received wide publicity from Puritan pamphleteers
and doubtless had some influence on the adoption of a
cruel and unusual punishments clause. But,
[*318] the legislative history of the English Bill of Rights of 1689 indicates that
the
assizes may not have been as critical to the adoption of the clause as is
widely thought. After William and Mary of Orange crossed the channel to invade
England, James II fled. Parliament was summoned into session and a committee
was
appointed to draft general statements containing
"such things as are absolutely necessary to be considered for the better
securing of our religion, laws and liberties."
[***123] n11 An initial draft of the Bill of Rights prohibited
"illegal" punishments, but a later draft referred to the
infliction by James II of
"illegal and
cruel" punishments, and declared
"cruel and unusual" punishments to be
[**2767] prohibited. n12 The use of the word
"unusual" in the final draft appears to be inadvertent.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9
E. g., 2 J. Story, On the Constitution
§ 1903, p. 650 (5th ed. 1891).
n10 2 G. Trevelyan, History of England 467 (1952 reissue).
n11 Granucci,
supra, n. 5, at 854.
n12
Id., at 855.
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This legislative history has led at least one legal historian to conclude
"that the
cruel and unusual punishments clause of the Bill of Rights of 1689 was, first, an
objection to the imposition of punishments that were unauthorized by statute
and outside the jurisdiction of the
sentencing court, and second, a reiteration of the English policy against
disproportionate penalties," n13 and not primarily a reaction to the
torture of the High Commission, harsh
sentences, or the assizes.
[***124]
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n13
Id., at 860. In reaching this conclusion, Professor Granucci relies primarily on the trial
of Titus Oates as the impetus behind the adoption of the clause. Oates was a
minister of the Church of England who proclaimed the existence of a plot to
assassinate King Charles II. He was tried for perjury,
convicted, and sentenced to a fine of 2,000 marks,
life imprisonment, whippings, pillorying four times a year, and defrocking. Oates petitioned
both the House of Commons and the House of Lords for release from judgment.
The House of Lords rejected his petition, but a minority of its members
concluded that the King's Bench had no
jurisdiction to compel defrocking and that the other punishments were
barbarous, inhumane, unchristian, and unauthorized by law. The House of
Commons agreed with the dissenting Lords.
Id., at 857-859.
The author also relies on the dictionary definition of
"cruel," which meant
"severe" or
"hard" in the 17th century, to support his conclusion.
Ibid.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***125]
[*319] Whether the English Bill of Rights prohibition against
cruel and unusual punishments is properly read as a response to
excessive or illegal punishments, as a reaction to barbaric and objectionable modes of
punishment, or as both, there is no doubt whatever that in borrowing the
language and in including it in the
Eighth Amendment, our Founding Fathers intended to outlaw
torture and other
cruel punishments. n14
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 Most historians reach this conclusion by reading the history of the
Cruel and
Unusual Punishments Clause as indicating that it was a reaction to inhumane punishments. Professor
Granucci reaches the same conclusion
by finding that the draftsmen of the Constitution misread the British history
and erroneously relied on Blackstone. Granucci,
supra, n. 5, at 862-865. It is clear, however, that prior to the adoption of the
Amendment there was some feeling that a safeguard against
cruelty was needed and that this feeling had support in past practices. See n. 6,
supra, and accompanying text.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***126]
The precise language used in the
Eighth Amendment first appeared in America on June 12, 1776, in Virginia's
"Declaration of Rights,"
§ 9 of which read:
"That
excessive bail ought not to be required, nor
excessive fines imposed, nor
cruel and unusual punishments
inflicted." n15 This language was drawn verbatim from the English Bill of Rights of 1689.
Other States adopted similar clauses, n16 and there is evidence in
the debates of the various state conventions that were
[*320] called upon to ratify the Constitution of great concern for the omission of
any prohibition
against
torture or other
cruel punishments. n17
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n15 Granucci,
supra, n. 5, at 840; 1 Schwartz,
supra, n. 6, at 276, 278.
n16 See,
e. g., Delaware Declaration of Rights (1776), Maryland Declaration of Rights
(1776), Massachusetts Declaration of Rights (1780), and New Hampshire Bill of
Rights (1783). 1 Schwartz,
supra, n. 6, at 276, 278; 279, 281; 337, 343; 374, 379.
n17 See 2 J. Elliot's Debates 111 (2d ed. 1876); 3
id., at 447-481. See also, 2 Schwartz,
supra, n. 6, at 629, 674, 762, 852, 968.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***127]
The Virginia Convention offers some clues as to what the Founding Fathers had
in mind in prohibiting
cruel and unusual punishments. At one point George Mason advocated the adoption of
a Bill of Rights, and Patrick Henry concurred, stating:
"By this Constitution, some of the best barriers of human rights are thrown
away. Is there not an additional reason to have a bill of rights? . . .
[**2768] Congress, from their general powers, may fully go into business of human
legislation. They may legislate, in criminal cases, from treason to the lowest
offence -- petty larceny. They may define crimes and prescribe punishments.
In the definition of crimes, I trust they will be directed by what wise
representatives ought to be governed by. But when we come to punishments, no
latitude ought to be left, nor dependence put on the virtue of representatives.
What says our bill of rights? -- 'that
excessive bail ought not to be required, nor
excessive fines imposed, nor
cruel and unusual punishments
inflicted.' Are you not, therefore, now calling on those gentlemen who are to compose
Congress, to prescribe trials and define punishments without this control? Will
they find sentiments
[***128] there similar to this
bill of rights? You let them loose; you do more -- you depart from the genius
of your country. . . .
"In this business of legislation, your members of Congress will loose the
restriction of not imposing
excessive fines, demanding
excessive bail, and inflicting
[*321]
cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished
our ancestors? -- That they would not admit of
tortures, or
cruel and barbarous punishment. But Congress may introduce the practice of the
civil law, in preference to that of the common law. They may introduce the
practice of France, Spain, and Germany -- of torturing, to extort a confession
of the crime. They will say that they might as well draw examples from those
countries as from Great Britain, and they will tell you that there is such a
necessity of strengthening the arm of government, that they must have a
criminal equity, and extort confession by
torture, in order to punish with still more relentless severity. We are then lost and
undone." n18
Henry's statement
indicates that he wished to insure that
"relentless severity" would be prohibited by the Constitution. Other expressions
[***129] with respect to the proposed
Eighth Amendment by Members of the First Congress indicate that they shared Henry's view of the
need for
and purpose of the
Cruel and
Unusual Punishments Clause. n19
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 3 Elliot,
supra, n. 17, at 446-448. A comment by George Mason which misinterprets a criticism
leveled at himself and Patrick Henry is further evidence of the intention to
prohibit
torture and the like by prohibiting
cruel and unusual punishments.
Id., at 452.
n19 1 Annals of Cong. 782-783 (1789). There is some recognition of the fact
that a prohibition against
cruel and unusual punishments is a flexible prohibition that may change in meaning as the mores of a society
change, and that may eventually bar certain punishments not barred when the
Constitution was adopted.
Ibid. (remarks of Mr. Livermore of New Hampshire). There is also evidence that the
general opinion at the time the
Eighth Amendment was adopted was that it prohibited every punishment that was not
"evidently necessary." W. Bradford, An Enquiry How Far the
Punishment of Death is Necessary in Pennsylvania (1793), reprinted in
12 Am. J. Legal Hist. 122, 127 (1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***130]
[*322] Thus, the history of the clause clearly establishes that it was intended to
prohibit
cruel punishments. We must now turn to the case law to discover the manner in which
courts have given meaning to the term
"cruel."
II
This Court did not squarely face the task of interpreting the
cruel and unusual punishments language for the first time until
Wilkerson v. Utah, 99 U.S. 130 (1879), although the language received a cursory examination in several prior cases.
See,
e. g.,
Pervear v. Commonwealth, 5 Wall. 475 (1867). In
Wilkerson, the Court unanimously upheld a
sentence of public execution by shooting imposed pursuant to a conviction for
premeditated
[**2769]
murder. In his opinion for the Court, Mr. Justice Clifford wrote:
"Difficulty would attend the effort to define with exactness the extent of the
constitutional provision which provides that
cruel and unusual punishments shall not be
inflicted; but it is safe to affirm that punishments of
torture, . . . and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the Constitution."
99 U.S., at 135-136.
Thus, the Court
[***131] found that unnecessary
cruelty was no more permissible than
torture. To determine whether the punishment under attack was unnecessarily
cruel, the Court examined the history of the Utah Territory and the then-current
writings on
capital punishment, and compared this Nation's practices with those of other countries. It is
apparent that the Court felt it could not dispose of the question simply by
referring to
traditional practices; instead, it felt bound to examine developing thought.
Eleven years passed before the Court again faced a challenge to a specific
punishment under the
Eighth
[*323] Amendment. In the case of
In re Kemmler, 136 U.S. 436 (1890), Chief Justice Fuller wrote an opinion for a unanimous Court upholding
electrocution as a permissible mode of punishment. While the Court ostensibly
held that the
Eighth Amendment did not apply to the States, it is very apparent that the nature of the
punishment involved was examined under the Due Process Clause of the
Fourteenth Amendment. The Court held that the punishment was not objectionable. Today,
Kemmler stands primarily for the proposition that a punishment is not necessarily
unconstitutional
[***132] simply because it is unusual, so long as the legislature has a humane purpose
in selecting it. n20
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n20 The New York Court of Appeals had recognized the
unusual nature of the execution, but attributed it to a legislative desire to
minimize the pain of persons executed.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Two years later in
O'Neil v. Vermont, 144 U.S. 323 (1892), the Court reaffirmed that the
Eighth Amendment was not applicable to the States. O'Neil was found guilty on 307 counts of
selling liquor in violation of Vermont law. A fine of $ 6,140 ($ 20 for each
offense) and the costs of prosecution ($ 497.96) were imposed. O'Neil was
committed to
prison until the fine and the costs were paid; and the court provided that if they
were not paid before a specified date, O'Neil was to be confined in the house
of corrections for 19,914 days (approximately 54 years) at hard labor. Three
Justices -- Field, Harlan, and Brewer -- dissented. They maintained not only
that the
Cruel and
Unusual Punishments Clause was applicable
[***133] to the States, but that in O'Neil's
case it had been violated. Mr. Justice Field wrote:
"That designation [cruel and unusual], it is true, is usually applied to punishments which inflict
torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and
the like, which
[*324] are attended with acute pain and suffering. . . . The inhibition is directed,
not only against punishments of the character mentioned, but against all
punishments which by their
excessive length or severity are greatly disproportioned to the offences charged. The
whole inhibition is against that which is
excessive . . . ."
Id., at 339-340.
In
Howard v. Fleming, 191 U.S. 126 (1903), the Court, in essence, followed the approach advocated by the dissenters in
O'Neil. In rejecting the claim that 10-year
sentences for conspiracy to defraud were
cruel and unusual, the Court (per Mr. Justice Brewer) considered the nature of the
crime, the purpose of the law, and the length of the
sentence imposed.
The Court used the same approach seven years
later in the landmark case of
Weems v. United States, 217 U.S. 349
[**2770] (1910).
[***134] Weems, an officer of the Bureau of Coast Guard and Transportation of the
United States Government of the Philippine Islands, was
convicted of falsifying a
"public and official document." He was sentenced to 15 years' incarceration at hard labor with chains on his
ankles, to an unusual loss of his civil rights, and to perpetual surveillance.
Called upon to determine whether this was a
cruel and unusual punishment, the Court found that it was. n21 The Court emphasized that the Constitution
was not an
"ephemeral" enactment, or one
"designed to meet passing occasions." n22 Recognizing that
"time works changes, [and] brings into existence new conditions and purposes," n23 the Court commented that
"in the application of a constitution . . .
[*325] our contemplation cannot be only of what has been but of what may be." n24
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n21 The prohibition against
cruel and unusual punishments relevant to Weems was that found in the Philippine Bill of
Rights. It was, however, borrowed from the
Eighth Amendment to the United States Constitution and had the same meaning.
217 U.S., at 367.
n22
Id., at 373.
[***135]
n23
Ibid.
n24
Ibid.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In striking down the penalty imposed on Weems, the Court examined the
punishment in relation to the offense, compared the punishment to those
inflicted for other
crimes and to those imposed in other jurisdictions, and concluded that the
punishment was
excessive. n25 Justices White and Holmes dissented and argued that the
cruel and unusual prohibition was meant to prohibit only those things that were
objectionable at the time the Constitution was adopted. n26
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n25
Id., at 381.
n26
Id., at 389-413. Mr. Justice Black expressed a similar point of view in his separate opinion in
McGautha v. California, 402 U.S., at 226 (1971).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Weems is a landmark case because it represents the first time that the
Court invalidated a penalty prescribed by a legislature for a particular
offense. The Court made it plain beyond any reasonable
[***136] doubt that
excessive punishments were as objectionable as those that were inherently
cruel. Thus, it is apparent that the dissenters' position in
O'Neil had become the opinion of the Court in
Weems.
Weems was followed by two cases that added little to our knowledge of the scope of
the
cruel and unusual language,
Badders v. United States, 240 U.S. 391 (1916), and
United States ex rel. Milwaukee Social Democratic Publishing Co. v.
Burleson, 255 U.S. 407 (1921). n27 Then
[*326] came another landmark case,
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n27 Badders was found guilty on seven counts of using the mails as part of a
scheme to defraud. He was sentenced to concurrent five-year
sentences and to a $ 1,000 fine on each count. The Court summarily rejected his claim
that the
sentence was a
cruel and unusual punishment. In
United States ex rel. Milwaukee Social Democratic Publishing Co. v.
Burleson, 255 U.S. 407 (1921), the Court upheld the denial of second-class mailing privileges to a newspaper
that had allegedly printed articles conveying false reports of United States
conduct during the First World War with intent to cause disloyalty. Mr.
Justice Brandeis dissented and indicated his belief that the
"punishment" was unusual and possibly
excessive under
Weems v. United States, 217 U.S. 349 (1910). There is nothing in either of these cases demonstrating a departure from the
approach used in
Weems, or adding anything to it.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***137]
Francis had been
convicted of
murder and sentenced to be electrocuted. The first time the current passed through
him, there was
a mechanical failure and he did not die. Thereafter, Francis sought to prevent
a second electrocution on the ground that it would be a
cruel
[**2771] and unusual punishment. Eight members of the Court assumed the applicability of the
Eighth Amendment to the States. n28 The Court was virtually unanimous in agreeing that
"the traditional humanity of modern Anglo-American law forbids the
infliction of unnecessary pain," n29 but split 5-4 on whether Francis would, under the circumstances, be forced
to undergo any
excessive pain. Five members of the Court treated the case like
In re Kemmler and held that the legislature adopted electrocution for a humane purpose, and
that its will should not be thwarted because, in its desire to reduce pain and
suffering in most cases, it may have inadvertently increased suffering in one
particular
case. n30
[*327] The four dissenters felt that the case should be remanded for further facts.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n28
Mr. Justice Frankfurter was the only member of the Court unwilling to make this
assumption. However, like Chief Justice Fuller in
In re Kemmler, 136 U.S. 436 (1890), he examined the propriety of the punishment under the Due Process Clause of
the
Fourteenth Amendment.
329 U.S., at 471. As MR. JUSTICE POWELL makes clear, Mr. Justice Frankfurter's analysis was
different only in form from that of his Brethren; in substance, his test was
fundamentally identical to that used by the rest of the Court.
[***138]
n29
Id., at 463.
n30 English law required a second attempt at execution if the first attempt
failed. L. Radzinowicz, A History of English Criminal Law 185-186 (1948).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As in
Weems, the Court was concerned with
excessive punishments.
Resweber is perhaps most significant because the analysis of
cruel and unusual punishment questions first advocated by the
dissenters in
O'Neil was at last firmly entrenched in the minds of an entire Court.
Trop v. Dulles, 356 U.S. 86 (1958), marked the next major
cruel and unusual punishment case in this Court. Trop, a native-born American, was declared to have lost
his citizenship by reason of a conviction by court-martial for wartime
desertion. Writing for himself and Justices Black, DOUGLAS, and Whittaker,
Chief Justice Warren concluded that loss of citizenship amounted to a
cruel and unusual punishment that violated the
Eighth Amendment. n31
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n31 MR. JUSTICE BRENNAN concurred and concluded that the statute authorizing
deprivations of citizenship exceeded Congress' legislative powers.
356 U.S., at 114.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***139]
Emphasizing the flexibility inherent in the words
"cruel and unusual," the Chief Justice wrote that
"the Amendment must draw its meaning from the
evolving standards of
decency that mark the progress of a maturing society." n32 His approach to the problem was that utilized by the Court in
Weems: he scrutinized the severity of the penalty in relation to the offense,
examined the practices of other civilized nations of the world, and concluded
that involuntary statelessness was an
excessive and, therefore, an unconstitutional punishment. Justice Frankfurter,
dissenting, urged that expatriation was not punishment, and that even if it
were, it was not
excessive. While he criticized the conclusion arrived at by the Chief Justice, his
approach to the
Eighth Amendment question was identical.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n32
Id., at 101.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*328] Whereas in
Trop a majority of the Court failed to agree on whether loss of citizenship was a
cruel and unusual punishment, four years later a majority did agree in
Robinson v. California, 370 U.S. 660 (1962),
[***140] that a
sentence of 90 days'
imprisonment for violation of a California statute
making it a crime to
"be addicted to the use of narcotics" was
cruel and unusual. MR. JUSTICE STEWART, writing the opinion of the Court,
reiterated what the Court had said in
Weems and what Chief Justice Warren wrote in
Trop -- that the
cruel and unusual
[**2772] punishment clause was not a static concept, but one that must be continually re-examined
"in the light of contemporary human knowledge." n33 The fact that the penalty under attack was only 90 days evidences the
Court's willingness to carefully examine the possible excessiveness of
punishment in a given case even where what is involved is a penalty that is
familiar and widely accepted. n34
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n33
370 U.S., at 666.
n34
Robinson v. California, 370 U.S. 660 (1962), removes any lingering doubts as to whether the
Eighth Amendment's prohibition against
cruel and unusual punishments is binding on the States. See also
Powell v. Texas, 392 U.S. 514 (1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***141]
We distinguished
Robinson in
Powell v. Texas, 392 U.S. 514 (1968), where we sustained a conviction for drunkenness in a public place and a fine
of
$ 20. Four Justices dissented on the ground that
Robinson was controlling. The analysis in both cases was the same; only the conclusion
as to whether or not the punishment was
excessive differed.
Powell marked the last time prior to today's decision that the Court has had occasion
to construe the meaning of the term
"cruel and unusual" punishment.
Several principles emerge from these prior cases and serve as a beacon to an
enlightened decision in the instant cases.
[*329] III
Perhaps the most important principle in analyzing
"cruel and unusual" punishment questions is one that is reiterated again and again in the prior
opinions of the Court:
i. e., the
cruel and unusual language
"must draw its meaning from the
evolving standards of
decency that mark the progress of a maturing society." n35 Thus, a penalty that was permissible at one time in our Nation's history
is not necessarily permissible today.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n35
Trop v. Dulles, 356 U.S. 86, 101 (1958). See also
Weems v. United States, 217 U.S., at 373;
Robinson v. California, 370 U.S., at 666. See also n. 19,
supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***142]
The fact, therefore, that the Court, or individual Justices, may have in the
past expressed an opinion that the
death penalty is constitutional is not now binding on us. A fair reading of
Wilkerson v. Utah, supra;
In re Kemmler, supra; and
Louisiana ex rel. Francis v. Resweber, supra, would certainly indicate an acceptance
sub silentio of
capital punishment as constitutionally permissible. Several Justices have also expressed their
individual opinions that the
death penalty is
constitutional. n36 Yet, some of these same Justices and others have at times
expressed concern over
capital punishment. n37
[*330] There is no holding
directly
[**2773] in point, and the very nature of the
Eighth Amendment would dictate that unless a very recent decision existed,
stare decisis would bow to changing values, and the question of the constitutionality of
capital punishment at a given moment in history would remain open.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n36
E. g., McGautha v. California, 402 U.S., at 226 (separate opinion of Black, J.);
Trop v. Dulles, supra, at 99 (Warren, C. J.), 125 (Frankfurter, J., dissenting).
[***143]
n37 See,
e. g.,
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 474 (Burton, J., dissenting);
Trop v. Dulles, supra, at 99 (Warren, C. J.);
Rudolph v. Alabama, 375 U.S. 889 (1963) (Goldberg, J., dissenting from denial of certiorari); F. Frankfurter, Of Law and
Men 81 (1956).
There is no violation of the principle of
stare decisis in a decision that
capital punishment now violates the
Eighth Amendment. The last case that implied that
capital punishment was still permissible was
Trop v. Dulles, supra, at 99. Not only was the implication purely dictum, but it was also made in the
context of a flexible analysis that recognized that as public opinion changed,
the validity of the penalty would have to be re-examined.
Trop v.
Dulles is nearly 15 years old now, and 15 years change many minds about many things.
MR. JUSTICE POWELL suggests, however, that our recent decisions in
Witherspoon v. Illinois, 391 U.S. 510 (1968), and
McGautha v. California, 402 U.S. 183 (1971), imply that
capital punishment is constitutionally permissible, because if they are viewed any
other way they amount to little more than an academic exercise. In my view,
this distorts the
"rule of four" by which this Court decides which cases and which issues it will consider, and
in what order. See
United States v. Generes, 405 U.S. 93, 113 (1972) (DOUGLAS, J., dissenting). There are many reasons why four members of the
Court might have wanted to consider the issues presented in those cases before
considering the difficult question that is now before us. While I do not
intend to catalogue these reasons here, it should suffice to note that I do not
believe that those decisions can, in any way, fairly be used to support
any inference whatever that the instant cases have already been disposed of
sub silentio.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***144]
Faced with an open question, we must establish our standards for decision. The
decisions discussed in the previous section imply that a punishment may be
deemed
cruel and
unusual for any one of four distinct reasons.
First, there are certain punishments that inherently involve so much physical
pain and suffering that civilized people cannot tolerate them --
e. g., use of the rack, the thumbscrew, or other modes of
torture. See
O'Neil v. Vermont, 144 U.S., at 339 (Field, J., dissenting). Regardless of public sentiment with respect to
imposition of one of these punishments in a particular case or at any one
moment in history, the Constitution prohibits it. These are punishments that
have been barred since the adoption of the Bill of Rights.
[*331] Second, there are punishments that are unusual, signifying that they were
previously unknown as penalties for a given offense. Cf.
United States ex rel. Milwaukee Social Democratic Publishing Co. v.
Burleson, 255 U.S., at 435 (Brandeis, J., dissenting). If these punishments are intended to serve a
humane purpose, they may be constitutionally permissible.
In re Kemmler, 136 U.S., at 447;
[***145]
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464. Prior decisions leave open the question of just how much the word
"unusual" adds to the word
"cruel." I have previously indicated that use of the word
"unusual" in the English Bill of Rights of 1689 was inadvertent, and there is nothing in
the history of the
Eighth Amendment to give flesh to its intended meaning. In light of the meager history that
does exist, one would suppose that an innovative punishment would probably be
constitutional if no more
cruel than that punishment which it superseded. We need not decide this question
here, however, for
capital punishment is certainly not a recent phenomenon.
Third, a penalty may be
cruel and unusual because it is
excessive and serves no valid legislative purpose.
Weems v. United States, supra. The decisions previously discussed are replete with assertions that one of the
primary functions of the
cruel and unusual punishments clause is to prevent
excessive or unnecessary penalties,
e. g.,
Wilkerson v. Utah, 99 U.S., at 134;
O'Neil v. Vermont, 144 U.S., at 339-340 (Field, J., dissenting);
[***146]
Weems v. United States, 217 U.S., at 381;
Louisiana ex rel. Francis v. Resweber, supra; these punishments are unconstitutional even though popular sentiment may favor
them. Both THE CHIEF JUSTICE and MR. JUSTICE POWELL seek to ignore or to
minimize this aspect of the Court's prior decisions. But, since Mr. Justice
Field first suggested that
"the whole inhibition [of the prohibition against
cruel and unusual punishments]
[*332] is against that which is
excessive,"
O'Neil v. Vermont, 144 U.S., at 340,
[**2774] this Court has steadfastly maintained that a penalty is unconstitutional
whenever it is unnecessarily harsh or
cruel. This is what the Founders of this country intended; this is what their
fellow citizens believed the
Eighth
Amendment provided; and this was the basis for our decision in
Robinson v. California, supra, for the plurality opinion by Mr. Chief Justice Warren in
Trop v. Dulles, supra, and for the Court's decision in
Weems v. United States, supra. See also W. Bradford, An Enquiry How Far the
Punishment of
[***147] Death is Necessary in Pennsylvania (1793), reprinted in
12 Am. J. Legal Hist. 122, 127 (1968). It should also be noted that the
"cruel and unusual" language of the
Eighth Amendment immediately follows language that prohibits
excessive bail and
excessive fines. The entire thrust of the
Eighth Amendment is, in short, against
"that which is
excessive."
Fourth, where a punishment is not
excessive and serves a valid legislative purpose, it still may be invalid if popular
sentiment abhors it. For example, if the evidence clearly demonstrated that
capital punishment served valid
legislative purposes, such punishment would, nevertheless, be unconstitutional
if citizens found it to be morally unacceptable. A general abhorrence on the
part of the public would, in effect, equate a modern punishment with those
barred since the adoption of the
Eighth Amendment. There are no prior cases in this Court striking down a penalty on this
ground, but the very notion of changing values requires that we recognize its
existence.
It is immediately obvious, then, that since
capital punishment is not a recent phenomenon, if it violates the Constitution, it does so
because it is
[***148]
excessive or
[*333] unnecessary, or because it is abhorrent to currently existing moral values.
We must proceed to the history of
capital punishment in the United States.
IV
Capital punishment has been used to penalize various forms of conduct by members of society since
the beginnings of civilization. Its precise origins are difficult to perceive,
but there is some evidence that its roots lie in violent retaliation by members
of a tribe or group, or by the tribe or
group itself, against persons committing hostile acts toward group members. n38
Thus,
infliction of death as a penalty for objectionable conduct appears to have its beginnings
in private vengeance. n39
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n38 Ancel, The Problem of the
Death Penalty, in
Capital Punishment 4-5 (T. Sellin ed. 1967); G. Scott, The History of
Capital Punishment 1 (1950).
n39 Scott,
supra, n. 38, at 1.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As individuals gradually ceded their personal prerogatives to a sovereign
power, the sovereign accepted the authority to punish wrongdoing as part of its
"divine right"
[***149] to rule. Individual vengeance gave way to the vengeance of the
state, and
capital punishment became a public function. n40 Capital punishment worked its way into the laws
of various countries, n41 and was
inflicted in a variety of macabre and horrific ways. n42
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n40
Id., at 2; Ancel,
supra, n. 38, at 4-5.
n41 The Code of Hammurabi is one of the first known laws to have recognized the
concept of an
"eye for an eye," and consequently to have accepted death as an appropriate punishment for
homicide. E. Block, And May God Have Mercy . . . 13-14 (1962).
n42 Scott,
supra, n. 38, at 19-33.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It was during the reign of Henry II (1154-1189) that English law first
recognized that crime was more than a personal affair between the victim and
the perpetrator. n43
[*334] The early history of
capital
[**2775] punishment in England is set forth in
McGautha v. California, 402 U.S. 183, 197-200 (1971), and need not be repeated here.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n43
Id., at 5. Prior to this time, the laws of Alfred (871-901) provided that one
who willfully slayed
another should die, at least under certain circumstances. 3 J. Stephen,
History of the Criminal Law of England 24 (1883). But, punishment was
apparently left largely to private enforcement.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***150]
By 1500, English law recognized eight major capital crimes: treason, petty
treason (killing of husband by his wife),
murder, larceny, robbery, burglary,
rape, and arson. n44 Tudor and Stuart kings added many more crimes to the list of
those punishable by death, and by 1688 there were nearly 50. n45 George II
(1727-1760) added nearly 36 more, and George III (1760-1820) increased the
number by 60. n46
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n44 T. Plucknett, A Concise History of the Common Law 424-454 (5th ed. 1956).
n45 Introduction in H. Bedau, The
Death
Penalty in America 1 (1967 rev. ed.).
n46
Ibid.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
By shortly after 1800, capital offenses numbered more than 200 and not only
included crimes against person and property, but even some against the public
peace. While England may, in retrospect, look particularly brutal, Blackstone
points out that England was fairly civilized when compared to the rest of
Europe. n47
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n47 4 W. Blackstone, Commentaries *377. How many persons were actually
executed for committing capital offenses is not known. See Bedau,
supra, n. 45, at 3; L. Radzinowicz, A History of English Criminal Law 151, 153
(1948); Sellin, Two Myths in the History of
Capital Punishment,
50 J. Crim. L. C. & P. S. 114 (1959).
"Benefit of clergy" mitigated the harshness of the law somewhat. This concept arose from the
struggle between church and state and originally provided that members of the
clergy should be tried in ecclesiastical courts. Eventually all first
offenders were entitled to
"benefit of clergy." Bedau,
supra, at 4.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***151]
[*335]
Capital punishment was not as common a penalty in the American Colonies.
"The Capitall Lawes of New-England," dating from 1636, were drawn by the Massachusetts Bay Colony and are the first
written expression of capital offenses known to exist in this country. These
laws make the following crimes capital offenses: idolatry, witchcraft,
blasphemy,
murder, assault in sudden anger, sodomy, buggery, adultery, statutory
rape,
rape, manstealing, perjury in a capital trial, and rebellion. Each crime is
accompanied by a reference to the Old Testament to indicate its source. n48 It
is not known with any
certainty exactly when, or even if, these laws were enacted as drafted; and, if
so, just how vigorously
these laws were enforced. n49 We do know that the other Colonies had a variety
of laws that spanned the spectrum of severity. n50
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n48 G. Haskins, The Capitall Lawes of New-England, Harv. L. Sch. Bull. 10-11
(Feb. 1956).
n49 Compare Haskins,
supra, n. 48, with E. Powers, Crime and Punishment in Early Massachusetts, 1620-1692
(1966). See also Bedau,
supra, n. 45, at 5.
n50
Id., at 6.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***152]
By the 18th century, the list of crimes became much less theocratic and much
more secular. In the average colony, there were 12 capital crimes. n51 This
was far fewer than existed in England, and part of the reason was that there
was a scarcity of labor in the Colonies. n52 Still, there were many executions,
because
"with
county jails inadequate and insecure, the criminal population seemed best
controlled by death, mutilation, and fines." n53
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n51 Filler, Movements to Abolish the
Death Penalty in the United States, 284 Annals Am. Acad. Pol.
& Soc. Sci. 124 (1952).
n52
Ibid.
n53
Ibid. (footnotes omitted).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Even in the 17th century, there was some opposition
[*336] to
capital punishment in some of the colonies. In his
"Great Act" of 1682, William Penn prescribed death only for premeditated
murder and
[**2776] treason, n54 although his reform was not long lived. n55
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n54
Ibid.; Bedau, supra, n. 45, at 6.
n55 For an unknown reason, Pennsylvania adopted the harsher penal code of
England upon William Penn's death in 1718. There was no evidence, however of
an increase in crime between 1682 and
1718. Filler,
supra, n. 51, at 124. In 1794, Pennsylvania eliminated
capital punishment except for
"murder of the first degree," which included all
"willful, deliberate or premeditated" killings. The
death penalty was mandatory for this crime. Pa. Stat. 1794, c. 1777. Virginia followed
Pennsylvania's lead and enacted similar legislation. Other States followed
suit.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***153]
In 1776 the Philadelphia Society for Relieving Distressed Prisoners organized,
and it was followed 11 years later by the Philadelphia Society for Alleviating
the Miseries of Public
Prisons. n56 These groups pressured for reform of all penal laws, including capital
offenses. Dr. Benjamin Rush soon drafted America's first reasoned argument
against
capital punishment, entitled An Enquiry into the Effects of Public Punishments upon Criminals and
upon Society. n57 In 1793,
William Bradford, the Attorney General of Pennsylvania and later Attorney
General of the United States, conducted
"An Enquiry How Far the
Punishment of Death is Necessary in Pennsylvania." n58 He concluded that it was doubtful whether
capital punishment was at all necessary, and that until more information could be obtained, it
should be immediately eliminated for all offenses except high treason and
murder. n59
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n56 Filler,
supra, n. 51, at 124.
n57
Id., at 124-125.
n58 Reprinted in
12 Am. J. Legal Hist. 122 (1968).
n59 His advice was in large measure followed. See n. 55,
supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***154]
The
"Enquiries" of Rush and Bradford and the Pennsylvania movement toward
abolition of the
death
[*337] penalty had little immediate impact on the practices of other States. n60 But in the
early 1800's, Governors George and DeWitt Clinton and Daniel Tompkins
unsuccessfully urged the New
York Legislature to modify or end
capital punishment. During this same period, Edward Livingston, an American lawyer who later
became Secretary of State and Minister to France under President Andrew
Jackson, was appointed by the Louisiana Legislature to draft a new penal code.
At the center of his proposal was
" the total
abolition of
capital punishment." n61 His Introductory Report to the System of Penal Law Prepared for the State
of Louisiana n62 contained a systematic rebuttal of all arguments favoring
capital punishment. Drafted in 1824, it was not published until 1833. This work was a
tremendous impetus to the
abolition movement for the next half century.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n60 One scholar has noted that the early
abolition movement in the United States lacked the leadership of major public figures.
Bedau,
supra, n. 45, at 8.
[***155]
n61
Ibid.; Filler,
supra, n.
51, at 126-127.
n62 See Scott,
supra, n. 38, at 114-116.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
During the 1830's, there was a rising tide of sentiment against
capital punishment. In 1834, Pennsylvania
abolished public executions, n63 and two years later, The Report on
Capital Punishment Made to the Maine Legislature was published. It led to a law that prohibited
the executive from issuing a warrant for execution within one year after a
criminal was sentenced by the courts. The totally discretionary character of
the law was at odds with almost all prior practices. The
"Maine Law" resulted in little enforcement of the
death penalty, which was not surprising since the legislature's idea in passing the law was
that the affirmative burden placed on the governor to issue a warrant one full
year
[*338] or more after a trial would be an effective
deterrent to exercise of his
power. n64 The law spread throughout
[**2777] New England and led to Michigan's being the first State to abolish
capital punishment in 1846. n65
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n63 Filler,
supra, n. 51, at 127.
[***156]
n64 Davis, The Movement to Abolish
Capital Punishment in America, 1787-1861, 63 Am. Hist. Rev. 23, 33 (1957).
n65 Filler,
supra, n. 51, at 128.
Capital punishment was
abolished for all crimes but treason. The law was enacted in 1846, but did not go into
effect until 1847.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Anti-capital-punishment feeling grew in the 1840's as the literature of the
period pointed out the agony of the condemned man and expressed the philosophy
that repentance atoned for the worst crimes, and that true repentance derived,
not from fear, but from harmony with nature. n66
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n66 Davis,
supra, n. 64, at 29-30.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
By 1850, societies for
abolition existed in Massachusetts, New York, Pennsylvania, Tennessee, Ohio, Alabama,
Louisiana, Indiana, and Iowa. n67 New York, Massachusetts, and Pennsylvania
constantly had
abolition bills before their legislatures. In 1852, Rhode Island followed in the
footsteps of Michigan and partially
abolished
capital punishment.
[***157] n68 Wisconsin totally
abolished the
death penalty the following year. n69 Those States that did not abolish the
death penalty greatly reduced its scope, and
"few states outside the South had more than one or two . . . capital offenses" in addition to treason and
murder. n70
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n67 Filler,
supra, n. 51, at 129.
n68
Id., at 130.
n69
Ibid.
n70 Bedau,
supra, n. 45, at 10.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
But the Civil War
halted much of the
abolition furor. One historian has said that
"after the Civil War, men's finer sensibilities, which had once been revolted by
the execution of a fellow being, seemed hardened and
[*339] blunted." n71 Some of the attention previously given to
abolition was diverted to
prison reform. An abolitionist movement still existed, however. Maine
abolished the
death penalty in 1876, restored it in 1883, and
abolished it again in 1887; Iowa
abolished
capital punishment from 1872-1878; Colorado began an erratic
period of
de facto
abolition and revival in 1872; and Kansas
[***158] also
abolished it
de facto in 1872, and by law in 1907. n72
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n71 Davis,
supra, n. 64, at 46.
n72 Kansas restored it in 1935. See Appendix I to this opinion,
infra, at 372.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
One great success of the abolitionist movement in the
period from 1830-1900 was almost complete elimination of mandatory
capital punishment. Before the legislatures formally gave juries discretion to refrain from
imposing the
death penalty, the phenomenon of
"jury nullification," in which juries refused to convict in cases in which they believed that death
was an inappropriate penalty, was experienced. n73 Tennessee was the first
State to give juries discretion, Tenn. Laws 1837-1838, c. 29, but other States
quickly followed suit. Then, Rep. Curtis of New York introduced a federal bill
that ultimately became law in 1897 which reduced the number of federal capital
offenses from 60 to 3 (treason,
murder, and
rape) and gave the jury
sentencing discretion in
murder and
rape cases. n74
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n73 See
McGautha v. California, 402 U.S., at 199.
[***159]
n74 Filler,
supra, n. 51, at 133.
See also
Winston v. United States, 172 U.S. 303 (1899). More than 90% of the executions since 1930 in this country have been for
offenses with a discretionary
death penalty. Bedau, The Courts, the Constitution, and
Capital Punishment,
1968 Utah L. Rev. 201, 204.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
By 1917 12 States had become abolitionist jurisdictions. n75 But, under the
nervous tension of World War I,
[*340] four of these States reinstituted
capital punishment and promising movements in other States came grinding to a halt. n76 During
the period following the First World War, the abolitionist movement never
regained its momentum.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n75 See n. 72,
supra.
n76 Filler,
supra, n. 51, at 134.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is not easy to ascertain why the movement lost its vigor. Certainly,
[**2778] much attention was diverted from
penal reform during the economic crisis of the depression and the exhausting
[***160] years of struggle during World War II. Also, executions, which had once been
frequent public spectacles, became infrequent private affairs. The manner of
inflicting death changed, and the horrors of the punishment were, therefore,
somewhat diminished in the minds of the general public. n77
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n77 Sellin, Executions in the United States, in
Capital Punishment 35 (T. Sellin ed. 1967); United Nations, Department of Economic and Social
Affairs,
Capital Punishment, Pt. II, paras. 82-85, pp. 101-102 (1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In recent years there has been renewed interest in modifying
capital punishment. New York has moved toward
abolition, n78 as have several other States. n79 In 1967, a bill was
introduced in the Senate to abolish
[*341]
capital punishment for all federal
crimes, but it died in committee. n80
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n78 New York authorizes the
death penalty only for
murder of a police officer or for
murder by a life term prisoner. N. Y. Penal Code
§ 125.30 (1967).
[***161]
n79 See generally Bedau,
supra, n. 74. Nine States do not authorize
capital punishment under any circumstances: Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota,
Oregon, West Virginia, and Wisconsin. Puerto Rico and the Virgin Islands also
have no provision for
capital punishment. Bedau,
supra, n. 45, at 39. Those States that severely restrict the imposition of the
death penalty are: New Mexico, N. M. Stat. Ann.
§ 40A-29-2.1 (1972); New York, N. Y. Penal Code
§ 125.30 (1967); North Dakota,
N. D. Cent. Code
§§ 12-07-01, 12-27-13 (1960); Rhode Island, R. I. Gen. Laws
§ 11-23-2 (1970); Vermont, Vt. Stat. Ann., Tit. 13,
§ 2303 (Supp. 1971). California is the only State in which the judiciary has
declared
capital punishment to be invalid. See n. 1,
supra.
n80 See generally Hearings on S. 1760 before the Subcommittee on Criminal Laws
and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess.
(1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
At the present time, 41 States, the District of Columbia, and other federal
jurisdictions authorize the
death penalty for at least one crime. It would be fruitless
[***162] to attempt here to categorize the approach to
capital punishment taken by the various States. n81 It is sufficient to note that
murder is the crime most often
punished by death, followed by kidnaping and treason. n82
Rape is a capital offense in 16 States and the federal system. n83
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n81 Extensive compilations of the capital crimes in particular States can be
found in Bedau,
supra, n. 45, at 39-52 and in the Brief for the Petitioner in No. 68-5027, App. G (
Aikens v. California, 406 U.S. 813 (1972)). An attempt is made to break down capital offenses into categories in Finkel, A
Survey of Capital Offenses, in
Capital Punishment 22 (T. Sellin ed. 1967).
n82 Bedau,
supra, n. 45, at 43.
n83
Ibid. See also
Ralph v. Warden, 438 F.2d 786, 791-792 (CA4 1970).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The foregoing history demonstrates that
capital
punishment was carried from Europe to America but, once here, was tempered considerably.
At times in our history, strong abolitionist movements have existed.
[***163] But, they have never been completely successful, as no more than one-quarter
of the States of the Union have, at any one time,
abolished the
death penalty. They have had partial success, however, especially in reducing the number of
capital crimes, replacing mandatory death
sentences with jury discretion, and developing more humane methods of conducting
executions.
This is where our historical foray leads. The question now to be faced is
whether American society has
[*342] reached a point where
abolition is not dependent on a successful grass roots movement in particular
jurisdictions, but is demanded by the
Eighth Amendment. To answer this question, we must first examine whether or not the
death penalty is today tantamount to
excessive punishment.
[**2779] V
In order to assess whether or not death is an
excessive or unnecessary penalty, it is necessary to consider the
reasons why a legislature might select it as punishment for one or more
offenses, and examine whether less severe penalties would satisfy the
legitimate legislative wants as well as
capital punishment. If they would, then the
death penalty is unnecessary
cruelty, and, therefore, unconstitutional.
There are
[***164] six purposes conceivably served by
capital punishment:
retribution,
deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and
confessions, eugenics, and economy. These are considered
seriatim below.
A. The concept of
retribution is one of the most misunderstood in all of our criminal jurisprudence. The
principal source of confusion derives from the fact that, in dealing with the
concept, most people confuse the question
"why do men in fact punish?" with the question
"what justifies men in punishing?" n84 Men may punish for any number of reasons, but the one reason that punishment
is morally good or morally justifiable is that someone has broken the law.
Thus, it can correctly be said that breaking the law is the
sine qua non of punishment, or, in other words, that we only
[*343] tolerate punishment as it is imposed on one who deviates from the norm
established by the criminal law.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n84 See Hart,
Murder and the Principles of Punishment: England and the United States,
52 Nw. U. L. Rev. 433, 448 (1957); Report of Royal Commission on
Capital Punishment, 1949-1953, Cmd. 8932, paras. 52-53, pp. 17-18 (1953). See generally,
Reichert,
Capital Punishment Reconsidered,
47 Ky. L. J. 397, 399 (1959).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***165]
The fact that the State may seek
retribution against those who have broken its laws does not mean that
retribution may then become the State's sole end in punishing. Our jurisprudence has
always accepted
deterrence in general,
deterrence of individual recidivism, isolation of dangerous persons, and rehabilitation
as proper goals of
punishment. See
Trop v. Dulles, 356 U.S., at 111 (BRENNAN, J., concurring). Retaliation, vengeance, and
retribution have been roundly condemned as intolerable aspirations for a government in a
free society.
Punishment as
retribution has been condemned by scholars for centuries, n85 and the
Eighth Amendment itself was adopted to prevent punishment from becoming synonymous with
vengeance.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n85 See,
e. g., C. Beccaria, On Crimes and Punishment (tr. by H. Paolucci 1963); 1 Archbold,
On the Practice, Pleading, and Evidence in Criminal Cases
§§ 11-17, pp. XV-XIX (T. Waterman 7th ed. 1860).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In
Weems v. United States, 217 U.S., at 381, the Court,
[***166] in the course of holding that Weems' punishment violated the
Eighth Amendment, contrasted it with penalties provided for other offenses and
concluded:
"This contrast shows more than different exercises of legislative judgment. It
is greater than that. It condemns the
sentence in this case as
cruel and unusual. It exhibits a difference between unrestrained power and that
which is exercised under the spirit of constitutional limitations formed to
establish justice. The State thereby suffers nothing and loses no power.
The purpose of punishment is fulfilled, crime is repressed by penalties of
just, not tormenting, severity, its repetition is prevented, and hope is given
for the reformation of the criminal." (Emphasis added.)
[*344] It is plain that the view of the
Weems Court was that punishment for the sake of
retribution was not permissible under the
Eighth Amendment. This is the only view that the Court could have taken if the
"cruel and unusual" language were to be given any meaning.
Retribution surely underlies the imposition of some punishment on one who commits a
criminal act. But, the fact that
some punishment may be imposed does not
[**2780] mean
[***167] that
any punishment is permissible. If
retribution alone could serve as a
justification for any particular penalty, then all penalties selected by the
legislature would by definition be acceptable means for designating society's
moral approbation of a particular act. The
"cruel and unusual" language would thus be read out of the Constitution and the fears of Patrick
Henry and the other Founding Fathers would become realities.
To preserve the integrity of the
Eighth Amendment, the Court has consistently denigrated
retribution as a permissible goal of punishment. n86
It is undoubtedly correct that there is a demand for vengeance on the part of
many persons in a community against one who is
convicted of a particularly offensive act. At times a cry is heard that morality
requires vengeance to evidence
[*345] society's abhorrence of the act. n87 But the
Eighth Amendment is our insulation from our baser selves. The
"cruel and unusual" language limits the avenues through which vengeance can be channeled. Were
this not so, the language would be empty and a return to the rack and other
tortures would be possible in a given case.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n86 See,
e. g.,
Rudolph v. Alabama, 375 U.S. 889 (1963) (Goldberg, J., dissenting from denial of certiorari);
Trop v. Dulles, 356 U.S., at 97 (Warren, C. J.), 113 (BRENNAN, J., concurring);
Morissette v. United States, 342 U.S. 246 (1952);
Williams v. New York, 337 U.S. 241 (1949). In
Powell v. Texas, 392 U.S., at 530, we said:
"This Court has never held that anything in the Constitution requires that penal
sanctions be designed solely to achieve therapeutic or rehabilitative effects .
. . ." This is, of course, correct, since
deterrence and isolation are clearly recognized as proper.
E. g., Trop v.
Dulles, supra, at 111 (BRENNAN, J., concurring). There is absolutely nothing in the
language, the rationale, or the holding of
Powell v.
Texas that implies that
retribution for its own sake is a proper legislative aim in punishing.
[***168]
n87 See,
e. g., Vellenga, Christianity and The
Death Penalty, in Bedau,
supra, n. 45, at 123-130; Hook, The Death
Sentence, in Bedau,
supra, at 146-154. See also Ehrenzweig, A Psychoanalysis of the Insanity Plea --
Clues to the Problems of Criminal Responsibility and Insanity in the Death
Cell,
73 Yale L. J. 425, 433-439 (1964).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Mr. Justice Story wrote that the
Eighth Amendment's limitation on punishment
"would seem to be wholly unnecessary in a free government, since it is scarcely
possible that any department of such a government should authorize or justify
such atrocious conduct." n88
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n88 2 J. Story, On the Constitution
§ 1903, p. 650 (5th ed. 1891).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I would reach an opposite conclusion -- that only in a free society would men
recognize their inherent weaknesses and seek to compensate for them by means of
a Constitution.
The history of the
Eighth Amendment supports only the conclusion that
retribution
[***169] for its own sake is improper.
B. The most hotly contested issue regarding
capital punishment is whether it is better than
life imprisonment as a
deterrent to crime. n89
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n89 Note, The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1275 (1968); Note, Justice or Revenge?,
60 Dick. L. Rev. 342, 343 (1956); Royal Commission,
supra, n. 84, para. 55, at 18.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
While the contrary position has been argued, n90 it is my firm opinion that the
death penalty is a more severe sanction than
life imprisonment. Admittedly, there are
[*346] some persons who would rather die than languish
in
prison for a lifetime. But, whether or not they should be able to choose death as an
alternative is a far different question from that presented here --
i. e., whether the State
[**2781] can impose death as a punishment. Death is irrevocable;
life imprisonment is not. Death, of course, makes rehabilitation impossible;
life imprisonment does not. In short, death has always been viewed as the ultimate sanction,
[***170] and
it seems perfectly reasonable to continue to view it as such. n91
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n90 Barzun, In Favor of
Capital Punishment, in Bedau,
supra, n. 45, at 154, 163; Hook,
supra, n. 87, at 152.
n91 See
Commonwealth v. Elliott, 371 Pa. 70, 78, 89 A. 2d 782, 786 (1952) (Musmanno, J., dissenting); F. Frankfurter, Of Law and Men 101 (1956). The
assertion that
life imprisonment may somehow be more
cruel than
death is usually rejected as frivolous. Hence, I confess to surprise at
finding the assertion being made in various ways in today's opinions. If there
were any merit to the contention, it would do much to undercut even the
retributive motive for imposing
capital punishment. In any event, there is no better response to such an assertion than that of
former Pennsylvania Supreme Court Justice Musmanno in his dissent in
Commonwealth v. Elliott, supra, at 79-80, 89 A. 2d, at 787:
"One of the judges of the lower court indicated from the bench that a
sentence of
life imprisonment is not to be regarded as a lesser penalty than that of death. I challenge
that statement categorically. It can be stated as a universal truth stretching
from nadir to zenith that regardless of circumstances, no one wants to die.
Some person may, in an instant of spiritual or physical agony express a desire
for death as an anodyne from
intolerable pain, but that desire is never full-hearted because there is always
the reserve of realization that the silken cord of life is not broken by a mere
wishing. There is no person in the actual extremity of dropping from the
precipice of life who does not desperately reach for a crag of time to which to
cling even for a moment against the awful eternity of silence below. With all
its 'slings and arrows of outrageous fortune,' life is yet sweet and death is
always
cruel."
Attention should also be given to the hypothesis of Sir James Stephen, quoted
in the text,
infra, at 347-348.
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[***171]
It must be kept in mind, then, that the question to be considered is not simply
whether
capital punishment is
[*347] a
deterrent, but whether it is a better
deterrent than
life imprisonment. n92
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n92 See Bedau,
Deterrence and the
Death Penalty: A Reconsideration,
61 J. Crim. L. C. & P. S. 539, 542 (1970).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
There is no more complex problem than determining the
deterrent efficacy of the
death penalty.
"Capital punishment has obviously failed as a
deterrent when a
murder is committed. We can number its failures. But we cannot number its
successes. No one can ever know how many people have refrained from
murder because of the fear of being hanged." n93 This is the nub of the problem and it is exacerbated by the paucity of
useful data. The United States is more fortunate than most countries, however,
in that it has what are generally considered to be the world's most reliable
statistics. n94
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n93 Royal Commission,
supra, n. 84, para. 59, at 20.
[***172]
n94 United Nations,
supra, n. 77, para. 134, at 117. The great advantage that this country has is that
it can compare abolitionist and retentionist States with geographic, economic,
and cultural similarities.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The
two strongest arguments in favor of
capital punishment as a
deterrent are both logical hypotheses devoid of evidentiary support, but persuasive
nonetheless. The first proposition was best stated by Sir James Stephen in
1864:
"No other punishment deters men so effectually from committing crimes as the
punishment of death. This is one of those propositions which it is difficult to prove, simply
because they are in themselves more obvious than any proof can make them. It
is possible to display ingenuity in arguing against it, but that is all. The
whole experience of mankind is in the other direction. The threat of instant
death is the one to which resort has always been made when there was an
absolute necessity for producing some result. . . . No one goes to certain
[*348] inevitable death except by compulsion. Put the matter the other way. Was
there ever yet a criminal who,
[***173] when sentenced to death and brought out to die, would refuse the offer of a
commutation of his
sentence
for the severest secondary punishment? Surely
[**2782] not. Why is this? It can only be because 'All that a man has will he give
for his life.' In any secondary punishment, however terrible, there is hope;
but death is death; its terrors cannot be described more forcibly." n95
This hypothesis relates to the use of
capital punishment as a
deterrent for any crime. The second proposition is that
"if
life imprisonment is the maximum penalty for a crime such as
murder, an offender who is serving a life
sentence cannot then be deterred from murdering a fellow inmate or a
prison officer." n96 This hypothesis advocates a limited
deterrent effect under particular circumstances.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n95 Reprinted in Royal Commission,
supra, n. 84, para. 57, at 19.
n96 United Nations,
supra, n. 77, para. 139, at 118.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Abolitionists attempt to disprove these hypotheses by
amassing statistical evidence to demonstrate
[***174] that there is no correlation between criminal activity and the existence or
nonexistence of a capital sanction. Almost all of the evidence involves the
crime of
murder, since
murder is punishable by death in more jurisdictions than are other offenses, n97 and
almost 90% of all executions since 1930 have been pursuant to
murder convictions. n98
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n97 See Bedau,
supra, n. 45, at 43.
n98 T. Sellin, The
Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (ALI)
5 (1959); Morris, Thoughts on
Capital Punishment, 35 Wash. L. Rev.
& St. Bar J. 335, 340 (1960).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Thorsten Sellin, one of the leading authorities on
capital punishment, has urged that if the
death penalty
[*349] deters prospective murderers, the following hypotheses should be true:
"(a)
Murders should be less
frequent in states that have the
death penalty than in those that have
abolished it, other factors being equal. Comparisons of this nature must be made among
states that are as alike as possible in all other respects
[***175] -- character of population, social and economic condition, etc. -- in order
not to introduce factors known to influence
murder rates in a serious manner but present in only one of these states.
"(b)
Murders should increase when the
death penalty is
abolished and should decline when it is restored.
"(c) The
deterrent effect should be greatest and should therefore affect
murder rates most powerfully in those communities where the crime occurred and its
consequences are most strongly brought home to the population.
"(d) Law enforcement officers would be safer from murderous attacks in states
that have the
death penalty than in those without it." n99 (Footnote omitted.)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n99 Sellin,
supra, n. 98, at 21.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Sellin's
evidence indicates that not one of these propositions is true. This evidence
has its problems, however. One is that there are no accurate figures for
capital
murders; there are only figures on homicides and they, of course, include noncapital
killings. n100 A second problem is that certain
murders undoubtedly
[***176] are misinterpreted as accidental deaths or suicides, and there
[*350] is no
way of estimating the number of such undetected crimes. A third problem is
that not all homicides are reported. Despite these difficulties, most
authorities have assumed that the proportion of capital
murders in a State's or nation's homicide
statistics remains reasonably constant, n101 and that the homicide
statistics are therefore useful.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n100 Such crimes might include lesser forms of homicide or homicide by a child
or a lunatic.
Id., at 22; The Laws, The Crimes, and The Executions, in Bedau,
supra, n. 45, at 32, 61.
n101 Sutherland,
Murder and the
Death Penalty, 15 J. Crim.
L.
& Crim. 522 (1925); ALI,
supra, n. 98, at 22; Bedau,
supra, n. 45, at 73.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**2783] Sellin's
statistics demonstrate that there is no correlation between the
murder rate and the presence or absence of the capital sanction. He compares States
that have similar characteristics and finds that irrespective of their position
on
capital
[***177] punishment, they have similar
murder rates. In the New England States, for example, there is no correlation
between executions n102 and homicide rates. n103 The same is true for
Midwestern States, n104 and for all others studied. Both the United Nations
n105 and Great Britain n106 have acknowledged the validity of Sellin's
statistics.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n102 Executions were chosen for purposes of comparison because whatever impact
capital punishment had would surely be most forcefully felt where punishment was actually imposed.
n103 See Appendix II to this opinion,
infra, at 373.
n104
See Appendix III to this opinion,
infra, at 374.
n105 United Nations,
supra, n. 77, para. 134, at 117.
n106 Royal Commission,
supra, n. 84, at 349-351. Accord, Vold, Extent and Trend of Capital Crimes in
United States, 284 Annals Am. Acad. Pol.
& Soc. Sci. 1, 4 (1952).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Sellin also concludes that
abolition and/or reintroduction of the
death penalty had no effect on the homicide rates of the various States involved. n107
[***178] This conclusion is borne out by others who have made similar
[*351] inquiries n108 and by the experience of other countries. n109 Despite problems
with the
statistics, n110 Sellin's evidence has been relied upon in international studies of
capital punishment. n111
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n107 Sellin,
supra, n. 98, at 34.
n108 See,
e. g., Guillot,
Abolition and Restoration of the
Death
Penalty in Missouri, in Bedau,
supra, n. 45, at 351, 358-359; Cobin,
Abolition and Restoration of the
Death Penalty in Delaware, in Bedau,
supra, at 359, 371-372.
n109 Sellin,
supra, n. 98, at 38-39; Royal Commission,
supra, n. 84, at 353; United Nations,
supra, n. 77, paras. 130-136, at 116-118.
n110 One problem is that the
statistics for the 19th century are especially suspect; another is that
de jure
abolition may have been preceded by
de facto
abolition which would have distorted the figures. It should also be noted that the
figures for several States reflect homicide convictions rather than homicide
rates.
n111 Royal Commission,
supra, n. 84, para. 65, at 23; 346-349; United Nations,
supra, n. 77, para. 132, at 117.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***179]
Statistics also show that the
deterrent effect of
capital punishment is no greater in those communities where executions take place than in other
communities. n112 In fact, there is some evidence that imposition of
capital punishment may actually encourage crime, rather than deter it. n113 And, while police and
law enforcement
officers
[*352] are the strongest advocates of
capital punishment, n114 the evidence is overwhelming
[**2784] that police are no safer in communities that retain the sanction than in those
that have
abolished it. n115
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n112 Hayner
& Cranor, The
Death Penalty in Washington State, 284 Annals Am. Acad. Pol.
& Soc. Sci. 101 (1952); Graves, A Doctor Looks at
Capital Punishment, 10 Med. Arts
& Sci 137 (1956); Dann, The
Deterrent Effect of
Capital Punishment, Bull. 29, Friends Social Service Series, Committee on Philanthropic Labor and
Philadelphia Yearly Meeting of Friends (1935);
Savitz, A Study in
Capital Punishment,
49 J. Crim. L. C. & P. S. 338 (1958); United Nations,
supra, n. 77, para. 135, at 118.
n113 Graves,
supra, n. 112; Hearings,
supra, n. 80, at 23 (testimony of C. Duffy), 126 (statement of Dr. West); T. Reik,
The Compulsion to Confess 474 (1959); McCafferty, Major Trends in the Use of
Capital Punishment,
25 Fed. Prob., No. 3, p. 15 (Sept. 1961).
Capital punishment may provide an outlet for suicidal impulses or a means of achieving notoriety,
for example.
[***180]
n114 See,
e. g., Gerstein, A Prosecutor Looks at
Capital Punishment,
51 J. Crim. L. C. & P. S. 252 (1960); Hoover, Statements in Favor of the
Death
Penalty, in Bedau,
supra, n. 45, at 130; Younger,
Capital Punishment: A Sharp Medicine Reconsidered,
42 A. B. A. J. 113 (1956). But see, Symposium on
Capital Punishment, District Attorneys' Assn. of State of New York, Jan. 27, 1961,
7 N. Y. L. F. 249, 267 (1961) (statement of A. Herman, head of the homicide bureau of the New York City
District Attorney's office).
n115 Sellin,
supra, n. 98, at 56-58; Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime
& Delin. 132 (1969); Sellin, Does the
Death Penalty Protect Municipal Police, in Bedau,
supra, n. 45, at 284; United Nations,
supra, n. 77, para. 136, at 118.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
There is also a substantial body of data
showing that the existence of the
death penalty has virtually no effect on the homicide rate in
prisons. n116 Most of the persons sentenced to death are murderers, and murderers tend
to be model prisoners. n117
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n116 L. Lawes, Life and Death in Sing Sing 150 (1928); McGee,
Capital Punishment as Seen by a Correctional Administrator,
28 Fed. Prob., No. 2, p. 11 (June 1964); 1950 Survey of the International Penal and Penitentiary Commission, cited in
Sellin,
supra, n. 98, at 70-72; Sellin,
Prisons Homicides, in
Capital Punishment 154 (T. Sellin ed. 1967); cf. Akman, Homicides and Assaults in Canadian
Prisons, in
Capital Punishment,
supra, at 161-168. The argument can be made that the reason for the good record of
murderers is that those who are likely to be recidivists are executed. There
is, however, no
evidence to show that in choosing between life and death
sentences juries select the lesser penalties for those persons they believe are unlikely
to commit future crimes.
[***181]
n117
E. g., United Nations,
supra, n. 77, para. 144, at 119; B. Eshelman
& F. Riley, Death Row Chaplain 224 (1962). This is supported also by
overwhelming
statistics showing an extremely low rate of recidivism for
convicted
murders who are released from
prison. Royal Commission,
supra, n. 84, App. 15, at 486-491; Sellin,
supra, n. 98, at 72-79; United Nations,
supra, n. 77, para. 144, at 119.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*353] In sum, the only support for the theory that
capital punishment is an effective
deterrent is found in the hypotheses with which we began and the occasional stories
about a specific individual being deterred from
doing a contemplated criminal act. n118 These claims of specific
deterrence are often spurious, n119 however, and may be more than counterbalanced by the
tendency of
capital punishment to incite certain crimes. n120
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n118 See,
e. g., The Question of
Deterrence, in Bedau,
supra, n. 45, at 267.
n119
Ibid. and n. 11; Note, The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1282-1283 (1968).
[***182]
n120 See n. 113,
supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The United Nations Committee that studied
capital punishment found that
"it is generally agreed between the retentionists and abolitionists, whatever
their opinions about the validity of comparative studies of
deterrence, that the data which now exist show no correlation between the existence of
capital punishment and lower rates of capital crime." n121
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n121 United Nations,
supra, n. 77,
para. 159, at 123.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Despite the fact that abolitionists have not proved non-deterrence beyond a
reasonable doubt, they have succeeded in showing by clear and convincing
evidence that
capital punishment is not necessary as a
deterrent
to crime in our society. This is all that they must do. We would shirk our
judicial responsibilities if we failed to accept the presently existing
statistics and demanded more proof. It may be that we now possess all the proof that
anyone could ever hope to assemble on the
[***183] subject. But, even if further proof were to be forthcoming, I believe there
is more than enough evidence presently available for a decision in this case.
In 1793 William Bradford studied the utility of the
death penalty in Pennsylvania and found that it probably had no
deterrent effect but that more evidence
[*354] was needed. n122 Edward Livingston reached a similar conclusion with respect
[**2785] to
deterrence in 1833 upon
completion of his study for Louisiana. n123 Virtually every study that has
since been undertaken has reached the same result. n124
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n122 See nn. 58 and 59,
supra, and accompanying text.
n123 See n. 62,
supra, and accompanying text.
n124 Graves, A Doctor Looks at
Capital Punishment, 10 Med. Arts.
& Sci. 137 (1956); Royal Commission,
supra, n. 84, para. 60, at 20-21; Schuessler, The
Deterrent Influence of the
Death Penalty, 284 Annals Am. Acad. Pol.
& Soc. Sci. 54 (1952); United Nations,
supra, n. 77, para. 142, at 119; M. Wolfgang, Patterns in Criminal Homicide (1958).
One would assume that if
deterrence were enhanced by
capital punishment, the increased
deterrence would be most effective with respect to the premeditating murderer or the
hired killer who plots his crime before committing it.
But, such people rarely expect to be caught and usually assume that if they are
caught they will either be acquitted or sentenced to
prison. This is a fairly dependable assumption since a reliable estimate is that one
person is executed for every 100 capital
murders known to the police. Hart,
Murder and the Principles of Punishment: England and the United States,
52 Nw. U. L. Rev. 433, 444-445 (1957). For
capital punishment to deter anybody it must be a certain result of a criminal act, cf.
Ex parte Medley, 134 U.S. 160 (1890), and it is not. It must also follow swiftly upon completion of the offense and
it cannot in our complicated due process system of justice. See,
e. g., The Question of
Deterrence, in Bedau,
supra, n. 45, at 258, 271-272; DiSalle, Trends in the
Abolition of
Capital Punishment,
1969 U. Toledo L. Rev. 1, 4. It is ironic that those persons whom we would like to deter the most have the
least to fear from the
death penalty and recognize that fact. Sellin, Address for Canadian Society for
Abolition of the
Death Penalty, Feb. 7, 1965, in 8 Crim. L. Q. 36, 48 (1966); Proceedings of the Section of
Criminal Law of the ABA, Aug. 24, 1959, p. 7 (M. DiSalle).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***184]
In light of the massive amount of evidence before us, I see no alternative but
to conclude that
capital punishment cannot be justified on the basis of its
deterrent effect. n125
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n125 In reaching this conclusion, I maintain agreement with that portion of
Stephen's hypothesis that suggests that
convicted criminals fear death more than they fear
life imprisonment. As I stated earlier, the
death penalty is a more severe
sanction. The error in the hypothesis lies in its assumption that because men
fear death more than
imprisonment after they are
convicted, they necessarily must weigh potential penalties prior to committing criminal
acts and that they will conform their behavior so as to insure that, if caught,
they will receive the lesser penalty. It is extremely unlikely that much
thought is given to penalties before the act is committed, and even if it were,
the preceding footnote explains why such thought would not lead to
deterrence.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*355] C. Much of what must be said about the
death penalty as a device to prevent
[***185] recidivism is obvious -- if a murderer is executed, he cannot possibly commit
another offense. The fact is, however, that murderers are extremely unlikely
to commit other crimes either in
prison or upon their release. n126 For the
most part, they are first offenders, and when released from
prison they are known to become model citizens. n127 Furthermore, most persons who
commit capital
crimes are not executed. With respect to those who are sentenced to die, it is
critical to note that the jury is never asked to determine whether they are
likely to be recidivists. In light of these facts, if
capital punishment were justified purely on the basis of preventing recidivism, it would have to
be considered to be
excessive; no general need to obliterate all capital offenders could have been
demonstrated, nor any specific need in individual cases.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n126 See n. 117,
supra.
n127 See,
e. g., Royal Commission,
supra, n. 84, App. 15, at 486-491.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
D. The three final purposes which may underlie utilization
[***186] of a capital sanction -- encouraging guilty pleas and confessions, eugenics,
and reducing state expenditures -- may be dealt with quickly. If the
death penalty is used to encourage guilty pleas and thus to deter suspects from exercising
their rights under
[**2786] the Sixth Amendment to jury trials, it is unconstitutional.
United States
[*356] v. Jackson, 390 U.S. 570 (1968). n128 Its elimination would do little to impair the State's bargaining position
in criminal cases, since
life imprisonment remains a severe sanction which can be used as leverage for bargaining for
pleas or confessions in exchange either for charges of lesser offenses or
recommendations of leniency.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n128
Jackson applies to the States under the criteria articulated in
Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Moreover, to the extent that
capital punishment is used to encourage confessions and guilty pleas, it is not being used for
punishment purposes. A State that justifies
capital
[***187] punishment on its utility as part of the conviction process could not profess to rely on
capital punishment as a
deterrent. Such a State's system would be structured with twin goals only: obtaining
guilty pleas and confessions and imposing
imprisonment as the maximum sanction. Since
life imprisonment is sufficient for bargaining purposes, the
death penalty is
excessive if used for the same purposes.
In light of the previous discussion on
deterrence, any suggestions concerning the eugenic benefits of
capital punishment are obviously meritless. n129 As I pointed out above, there is not even any
attempt made to discover which capital offenders are likely to be recidivists,
let alone which are positively incurable. No test or procedure presently
exists by which incurables can be screened from those who would benefit from
treatment. On the one hand, due process would seem to require that we have
some procedure to demonstrate incurability before execution; and, on the other
hand, equal protection would then seemingly require that all incurables be
executed, cf.
Skinner v. Oklahoma, 316 U.S. 535 (1942). In addition, the
"cruel and unusual" language
[*357]
[***188] would require that
life imprisonment, treatment, and sterilization be inadequate for eugenic purposes.
More importantly, this Nation has never formally professed eugenic goals, and
the history of the world does not look kindly on them. If eugenics is one of
our purposes,
then the legislatures should say so forthrightly and design procedures to
serve this goal. Until such time, I can only conclude, as has virtually
everyone else who has looked at the problem, n130 that
capital punishment cannot be defended on the basis of any eugenic purposes.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n129 See,
e. g., Barzun, In Favor of
Capital Punishment, in Bedau,
supra, n. 45, at 154.
n130 See,
e. g., Death as a Punishment, in Bedau,
supra, at 214, 226-228; Caldwell, Why is the
Death Penalty Retained?, 284 Annals Am. Acad. Pol.
& Soc. Sci. 45, 50 (1952); Johnson, Selective Factors in
Capital Punishment, 36 Social Forces 165, 169 (1957); Sellin,
Capital Punishment,
25 Fed. Prob., No. 3, p. 3 (Sept. 1961). We should not be surprised at the lack of merit in the eugenic arguments.
There simply is no evidence that mentally ill persons who commit capital
offenses constitute a psychiatric entity distinct from other mentally
disordered patients or that they do not respond as readily to treatment.
Cruvant
& Waldrop, The Murderer in the Mental Institution, 284 Annals Am. Acad. Pol.
& Soc. Sci. 35, 43 (1952).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***189]
As for the argument that it is cheaper to execute a capital offender than to
imprison him for life, even assuming that such an argument, if true, would
support a capital sanction, it is simply incorrect. A disproportionate amount
of money spent on
prisons is attributable to death row. n131 Condemned men are not productive members of
the
prison community, although they could be, n132
[**2787] and executions are expensive. n133 Appeals are often automatic, and courts
admittedly spend more time with death cases. n134
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n131 Caldwell,
supra, n. 130, at 48; McGee,
supra, n. 116.
n132 McGee,
supra, at 13-14; Bailey, Rehabilitation on Death Row, in Bedau,
supra, n. 45, at 556.
n133 T. Thomas, This Life We Take 20 (3d ed. 1965).
n134
Stein v. New York, 346 U.S. 156, 196 (1953) (Jackson, J.); cf.
Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring in result).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*358] At trial, the selection of jurors is likely to become a costly, time-consuming
[***190] problem in a capital case, n135 and defense counsel will reasonably exhaust
every possible means to save his client from execution, no matter how long the
trial takes.
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n135 See,
e. g.,
Witherspoon v. Illinois, 391 U.S. 510 (1968).
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During the period between conviction and execution, there are an inordinate
number of collateral attacks on the conviction and attempts to obtain executive
clemency, all of which exhaust the time, money, and effort of the State. There
are also continual assertions that the condemned prisoner has gone insane. n136
Because there is a formally established policy of not executing insane persons,
n137 great sums of money may be spent on detecting and curing mental illness in
order to perform the execution. n138 Since no one wants the responsibility for
the execution, the condemned man is likely to be passed back and forth from
doctors to custodial officials to courts like a ping-pong ball. n139 The entire
process is very costly.
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n136 Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch Review
351 (1964).
[***191]
n137 See,
e. g.,
Caritativo v. California, 357 U.S. 549 (1958).
n138 To others, as well as to the author of this opinion, this practice has
seemed a strange way to spend money. See,
e. g., T. Arnold, The Symbols of Government 10-13 (1935).
n139 Slovenko,
supra, n. 136, at 363.
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When all is said and done, there
can be no doubt that it costs more to execute a man than to keep him in
prison for life. n140
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n140 B. Eshelman
& F. Riley, Death Row Chaplain 226 (1962); Caldwell,
supra, n. 130, at 48; McGee,
supra, n. 116, at 13; Sellin,
supra, n. 130, at 3 (Sept. 1961).
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E. There is but one conclusion that can be drawn from all of this --
i. e., the
death penalty is an
excessive and unnecessary
punishment that violates the
Eighth
[*359] Amendment. The statistical evidence is not convincing beyond all doubt, but it is
persuasive. It is not improper at this point to take
[***192] judicial notice of the fact that for more than 200 years men have labored to
demonstrate that
capital punishment serves no purpose that
life imprisonment could not serve equally well. And they have done so with great success.
Little, if any, evidence has been adduced to prove the contrary. The point has
now been reached at which deference to the legislatures is tantamount to
abdication of our judicial roles as factfinders, judges, and ultimate arbiters
of the Constitution. We know that at some point the presumption of
constitutionality accorded legislative acts gives way to a realistic assessment
of those acts. This point comes when there is sufficient evidence available so
that judges can determine, not whether the legislature acted wisely, but
whether it had any rational basis whatsoever for acting. We have this evidence
before us now. There is no rational basis for concluding that
capital punishment is
not
excessive. It therefore violates the
Eighth Amendment. n141
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n141 This analysis parallels in some ways the analysis used in striking down
legislation on the ground that it violates
Fourteenth Amendment concepts of substantive due process. See Packer, Making the Punishment Fit
the Crime,
77 Harv. L. Rev. 1071, 1074 (1964). There is one difference, however.
Capital punishment is unconstitutional because it is
excessive and unnecessary punishment, not because it is irrational.
The concepts of
cruel and unusual punishment and substantive due process become so close as to merge when the substantive
due process argument is stated in the following manner: because
capital punishment deprives an individual of a fundamental right (i. e., the right to life),
Johnson v. Zerbst, 304 U.S. 458, 462 (1938), the State needs a compelling interest to justify it. See Note, The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1324-1354 (1968). Thus stated, the substantive due process argument reiterates what is
essentially the primary purpose of the
Cruel and
Unusual Punishments Clause of the
Eighth Amendment --
i. e., punishment may not be more severe than is necessary to serve the legitimate
interests of the State.
THE CHIEF JUSTICE asserts that if we hold that
capital punishment is unconstitutional because it is
excessive, we will next have to determine whether a 10-year
prison
sentence rather than a five-year
sentence is also
excessive, or whether a $ 5 fine would not do equally well as a $ 10 fine. He may be
correct that such determinations will have to be made, but, as in these cases,
those persons challenging the penalty will bear a heavy burden of demonstrating
that it is
excessive. These cases arise after 200 years of inquiry, 200 years of public debate and
200 years of marshaling evidence. The burden placed on those challenging
capital punishment could
not have been greater. I am convinced that they have met their burden.
Whether a similar burden will prove too great in future cases is a question
that we can resolve in time.
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[***193]
[*360]
[**2788] VI
In addition, even if
capital punishment is not
excessive, it nonetheless violates the
Eighth Amendment because it is morally unacceptable to the people of the United States at this
time in their history.
In judging whether or not a given
penalty is morally acceptable, most courts have said that the punishment is
valid unless
"it shocks the conscience and sense of justice of the people." n142
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n142
United States v. Rosenberg, 195 F.2d 583, 608 (CA2) (Frank, J.), cert. denied,
344 U.S. 838 (1952). See also
Kasper v. Brittain, 245 F.2d 92, 96 (CA6), cert. denied,
355 U.S. 834 (1957) ("shocking to the sense of
justice");
People v. Morris, 80 Mich. 634, 639, 45 N. W. 591, 592 (1890) ("shock the moral sense of the people"). In
Repouille v. United States, 165 F.2d 152 (CA2 1947), and
Schmidt v. United States, 177 F.2d 450, 451 (CA2 1949), Judge Learned Hand wrote that the standard of
"good moral character" in the Nationality Act was to be judged by
"the generally accepted moral conventions current at the time."
165 F.2d, at 153. Judge Frank, who was later to author the
Rosenberg opinion, in which a similar standard was adopted, dissented in
Repouille and urged that the correct standard was the
"attitude of our ethical leaders."
165 F.2d, at 154. In light of
Rosenberg, it is apparent that Judge Frank would require a much broader based moral
approbation
before striking down a punishment as
cruel and unusual than he would for merely holding that conduct was evidence of bad
moral character under a legislative act.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***194]
[*361] Judge Frank once noted the problems inherent in the use of such a measuring
stick:
"[The court,] before it reduces a
sentence as 'cruel and unusual,' must have reasonably good assurances that the
sentence offends the 'common conscience.' And, in any context, such a standard -- the
community's attitude -- is usually an unknowable. It resembles a slithery
shadow, since one can seldom learn, at all accurately, what the community, or a
majority, actually feels. Even a carefully-taken 'public opinion poll' would
be inconclusive in a case like this." n143
[**2789] While a public opinion poll obviously is of some assistance in indicating
public acceptance or rejection of a specific penalty, n144 its utility
cannot be very great. This is because whether or not a punishment is
cruel and unusual depends, not on whether its mere mention
"shocks the conscience and sense of justice of the people," but on whether people who were fully informed as to the purposes of the
penalty and its liabilities would find the penalty shocking, unjust, and
unacceptable. n145
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n143
United States v. Rosenberg, supra, at 608.
[***195]
n144 See
Repouille v. United States, supra, at 153. In
Witherspoon v. Illinois, 391 U.S., at 520, the Court cited a public opinion poll that showed that 42% of the American
people favored
capital punishment, while 47% opposed it. But the polls have shown great fluctuation. See What
Do Americans Think of the
Death Penalty?, in Bedau,
supra, n. 45, at 231-241.
n145 The fact that the constitutionality of
capital punishment turns on the opinion of an informed citizenry undercuts the argument that
since the legislature is the voice of the people, its
retention of
capital punishment must represent the will of the people. So few people have been executed in
the past decade that
capital punishment is a subject only rarely brought to the attention of the average American.
Lack of exposure to the problem is likely to lead to indifference, and
indifference and ignorance result in preservation of the status quo, whether or
not that is desirable, or desired.
It might be argued that in choosing to remain indifferent and uninformed,
citizens reflect their judgment that
capital punishment is really a question of utility, not morality, and not one, therefore, of
great concern. As attractive as this is on its face, it cannot be correct,
because such an argument requires that the choice to remain ignorant or
indifferent be a viable one. That, in turn, requires that it be a
knowledgeable choice. It is therefore imperative for constitutional purposes
to attempt to discern the probable opinion of an informed electorate.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***196]
[*362]
In other words, the question with which we must deal is not whether a
substantial
proportion of American citizens would today, if polled, opine that
capital punishment is barbarously
cruel, but whether they would find it to be so in the light of all information
presently available.
This is not to suggest that with respect to this test of unconstitutionality
people are required to act rationally; they are not. With respect to this
judgment, a violation of the
Eighth Amendment is totally dependent on the predictable subjective, emotional reactions of
informed citizens. n146
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n146 Cf. Packer, Making the Punishment Fit the Crime,
77 Harv. L. Rev. 1071, 1076 (1964).
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It has often been noted that American citizens know almost nothing about
capital punishment. n147 Some of the conclusions arrived at in the preceding section and the
supporting evidence would be critical to an informed judgment on the morality
of the
death penalty:
e. g., that the
death penalty is no more effective a
[***197]
deterrent than
life imprisonment, that
convicted murderers are
[*363] rarely executed, but are usually
sentenced to a term in
prison; that
convicted murderers usually are model prisoners, and that they almost always become
lawabiding citizens upon their release from
prison; that the costs of executing a capital offender exceed the costs of imprisoning
him for life; that while in
prison, a convict under
sentence of death performs none of the useful functions that life prisoners perform;
that no attempt is made in the
sentencing process to ferret out likely recidivists for execution; and that the
death penalty may actually stimulate criminal activity.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n147
E. g., Gold, A Psychiatric Review of
Capital Punishment,
6 J. Forensic Sci. 465, 466 (1961); A. Koestler, Reflections on Hanging 164 (1957); cf. C. Duffy
& A. Hirshberg, 88 Men and 2 Women 257-258 (1962).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This information would
almost surely convince the average citizen that the
death penalty was unwise, but a problem arises as to whether it
[***198] would convince him that the penalty was morally reprehensible.
[**2790] This problem arises from the fact that the public's desire for
retribution, even though this is a goal that the legislature cannot constitutionally pursue
as its sole justification for
capital punishment, might influence the citizenry's view of the morality of
capital punishment. The solution to the problem lies in the fact that no one has ever seriously
advanced
retribution as a legitimate goal of our society. Defenses of
capital punishment are always mounted on
deterrent or other similar theories. This should not be surprising. It is the people
of this country who have urged in the past that
prisons rehabilitate as well as isolate offenders, and it is the people who have
injected a sense of purpose into our penology. I cannot believe that at this
stage in our history, the American people would ever knowingly support
purposeless vengeance. Thus, I believe that the great mass of
citizens would conclude on the basis of the material already considered that
the
death penalty is immoral and therefore unconstitutional.
But, if this information needs supplementing, I believe that the following
facts would serve
[***199] to convince
[*364] even the most hesitant of citizens to condemn death as a sanction:
capital
punishment is imposed discriminatorily against certain identifiable classes of people;
there is evidence that innocent people have been executed before their
innocence can be proved; and the
death penalty wreaks havoc with our entire criminal justice system. Each of these facts is
considered briefly below.
Regarding discrimination, it has been said that
"it is usually the poor, the illiterate, the underprivileged, the member of the
minority group -- the man who, because he is without means, and is defended by
a court-appointed attorney -- who becomes society's sacrificial lamb . . . ." n148 Indeed, a look at the bare
statistics regarding executions is enough to betray much of the discrimination. A total
of 3,859 persons have been executed since 1930, of whom 1,751 were
white and 2,066 were Negro. n149 Of the executions, 3,334 were for
murder; 1,664 of the executed murderers were white and 1,630 were Negro; n150 455
persons, including 48 whites and 405 Negroes, were executed for
rape. n151 It is immediately apparent that Negroes were executed far more often than
whites in proportion
[***200] to their percentage of the population. Studies indicate that while the higher
rate of execution among Negroes is partially due to a higher rate of crime,
there is evidence of racial discrimination. n152
[*365] Racial or other discriminations should not be surprising. In
McGautha v. California, 402 U.S., at 207, this Court held
"that committing to the untrammeled
[**2791] discretion of the jury the power to pronounce life or death in capital cases
is [not] offensive to anything in the Constitution." This was an open invitation to discrimination.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n148 Hearings,
supra, n. 80, at 11 (statement of M. DiSalle).
n149
National Prisoner
Statistics No. 45,
Capital Punishment 1930-1968, p. 7 (Aug. 1969).
n150
Ibid.
n151
Ibid.
n152 Alexander, The
Abolition of
Capital Punishment, Proceedings of the 96th Congress of Correction of the American Correctional
Association, Baltimore, Md., 57 (1966); Criminal Justice: The General Aspects,
in Bedau,
supra, n. 45, at 405, 411-414; Bedau, Death
Sentences in New Jersey, 1907-1960,
19 Rutgers L. Rev. 1, 18-21, 52-53 (1964); R. Clark, Crime in America 335 (1970); Hochkammer, The
Capital Punishment Controversy,
60 J. Crim. L. C. & P. S. 360, 361-362 (1969); Johnson, The Negro and Crime, 217 Annals Am. Acad. Pol.
& Soc. Sci. 93, 95, 99 (1941); Johnson, Selective
Factors in
Capital Punishment, 36 Social Forces 165 (1957); United Nations,
supra, n. 77, para. 69, at 98; Williams, The
Death Penalty and the Negro, 67 Crisis 501, 511 (1960); M. Wolfgang
& B. Cohen, Crime and Race: Conceptions and Misconceptions 77, 80-81, 85-86
(1970); Wolfgang, Kelly,
& Nolde, Comparison of the Executed and the Commuted Among Admissions to Death
Row,
53 J. Crim. L. C. & P. S. 301 (1962). MR. JUSTICE DOUGLAS explores the discriminatory application of the
death penalty at great length,
ante, at 249-257.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***201]
There is also overwhelming evidence that the
death penalty is employed against men and not women. Only 32 women have been executed since
1930, while 3,827 men have met a similar fate. n153 It is difficult to
understand why women have
received such favored treatment since the purposes allegedly served by
capital punishment seemingly are equally applicable to both sexes. n154
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n153 National Prisoner
Statistics No. 45,
Capital Punishment 1930-1968, p. 28 (Aug. 1969).
n154 Men kill between four and five times more frequently than women. See
Wolfgang, A Sociological Analysis of Criminal Homicide, in Bedau,
supra, n. 45, at 74, 75. Hence, it would not be irregular to see four or five times
as many men executed as women. The
statistics show a startlingly greater disparity, however. United Nations,
supra, n. 77, para. 67, at 97-98.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It also is evident that the burden of
capital punishment falls upon the poor, the ignorant, and the underprivileged
[*366] members of society. n155 It is the poor,
[***202] and the members of minority groups who are least able to
voice their complaints against
capital punishment. Their impotence leaves them victims of a sanction that the wealthier,
better-represented, just-as-guilty person can escape. So long as the capital
sanction is used only against the forlorn, easily forgotten members of society,
legislators are content to maintain the status quo, because change would draw
attention to the problem and concern might develop. Ignorance is perpetuated
and apathy soon becomes its mate, and we have today's situation.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n155 Criminal Justice: The General Aspects, in Bedau,
supra, at 405, 411; Bedau,
Capital Punishment in Oregon, 1903-64,
45 Ore. L. Rev. 1 (1965); Bedau, Death
Sentences in New Jersey, 1907-1960,
19 Rutgers L. Rev. 1 (1964); R. Clark, Crime in America 335 (1970); C. Duffy
& A. Hirshberg, 88 Men and
2 Women 256-257 (1962); Carter
& Smith, The
Death Penalty in California: A Statistical and Composite Portrait, 15 Crime
& Delin. 62 (1969); Hearings,
supra, n. 80, at 124-125 (statement of Dr. West); Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime
& Delin. 132 (1969); McGee,
supra, n. 116, at 11-12.
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[***203]
Just as Americans know little about who is executed and why, they are unaware
of the potential dangers of executing an innocent man. Our
"beyond a reasonable doubt" burden of proof in criminal cases is intended to protect the innocent, but we
know it is not foolproof. Various studies have shown that people whose
innocence is later convincingly established are
convicted and sentenced to death. n156
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n156 See,
e. g., E. Borchard, Convicting the Innocent (1932); J.
Frank
& B. Frank, Not Guilty (1957); E. Gardner, Court of Last Resort (1952). These
three books examine cases in which innocent persons were sentenced to die.
None of the innocents was actually executed, however. Bedau has abstracted 74
cases occurring in the United States since 1893 in which a wrongful conviction
for
murder was alleged and usually proved
"beyond doubt." In almost every case, the convictions were sustained on appeal. Bedau
seriously contends that innocent persons were actually executed.
Murder, Errors of Justice, and
Capital Punishment, in Bedau,
supra, n. 45, at 434, 438. See also Black, The Crisis in
Capital Punishment,
31 Md. L. Rev. 289 (1971); Hirschberg, Wrongful Convictions,
13 Rocky Mt. L. Rev. 20 (1940); Pollak, The Errors of Justice, 284 Annals Am. Acad.
Pol.
& Soc. Sci. 115 (1952).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***204]
[*367] Proving one's innocence after a jury finding of guilt is almost impossible.
While reviewing courts are willing to entertain all kinds of collateral attacks
where a
sentence of death is involved, they very rarely dispute the jury's interpretation of
the evidence. This is, perhaps, as it should be. But, if an innocent man has
been found guilty, he must then depend on the good faith of the prosecutor's
office to help him establish
[**2792] his innocence. There is evidence, however, that prosecutors do not welcome
the idea of having convictions, which they labored hard to secure, overturned,
and that their cooperation is highly unlikely. n157
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n157 E. Gardner, Court of Last Resort 178 (1952).
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No matter how careful courts are, the possibility of perjured testimony,
mistaken honest testimony, and human error remain all too real. n158 We have no
way of
[*368] judging
how many innocent persons have been executed but we can be
certain that there were some. Whether there were many is an open question
[***205] made difficult by the loss of those who were most knowledgeable about the
crime for which they were
convicted. Surely there will be more as long as
capital punishment remains part of our penal law.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n158 MR. JUSTICE DOUGLAS recognized this fact when he wrote:
"One who reviews the records of criminal trials need not look long to find an
instance where the issue of guilt or innocence hangs in delicate balance. A
judge who denies a stay of execution in a capital case often wonders if an
innocent man is going to his death. . . .
"Those doubts exist because our system of criminal justice does not work with
the efficiency of a machine -- errors are made and innocent as well as guilty
people are sometimes punished. . . .
". . . We believe that it is better for ten guilty people to be set free than
for one innocent man to be unjustly imprisoned.
"Yet the sad
truth is that a cog in the machine often slips: memories fail; mistaken
identifications are made; those who wield the power of life and death itself --
the police officer, the witness, the prosecutor, the juror, and even the judge
-- become overzealous in their concern that criminals be brought to justice.
And at times there is a venal combination between the police and a witness." Foreword, J. Frank
& B. Frank, Not Guilty 11-12 (1957).
There has been an
"incredible lag" between the development of modern scientific methods of investigation and
their application to criminal cases. When modern methodology is available,
prosecutors have the resources to utilize it, whereas defense counsel often may
not. Lassers, Proof of Guilt in Capital Cases -- An Unscience,
58 J. Crim. L. C. & P. S. 310 (1967). This increases the chances of error.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***206]
While it is difficult to ascertain with certainty the degree to which the
death penalty is
discriminatorily imposed or the number of innocent persons sentenced to die,
there is one conclusion about the penalty that is universally accepted --
i. e., it
"tends to distort the course of the criminal law." n159 As Mr. Justice Frankfurter said:
"I am strongly against
capital punishment . . . . When life is at hazard in a trial, it sensationalizes the whole thing
almost unwittingly; the effect on juries, the Bar, the public, the Judiciary, I
regard as very bad. I think scientifically the claim of
deterrence is not worth much. Whatever proof there may be in my judgment does not
outweigh the social loss due to the inherent sensationalism of a trial for life." n160
[*369] The deleterious effects of the
death penalty are also felt otherwise than at trial. For example, its very existence
"inevitably sabotages a social or institutional program of reformation." n161 In short
"the presence of the
death penalty as the keystone of our penal system bedevils the
administration of criminal justice all the way down the line and is the
stumbling block in the path of general reform and
[***207] of the treatment of crime and criminals." n162
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n159 Ehrmann, The
Death Penalty and the Administration of Justice, 284 Annals Am. Acad. Pol.
& Soc. Sci. 73, 83 (1952).
n160 F. Frankfurter, Of Law and Men 81 (1956).
n161 B. Eshelman
& F. Riley, Death Row Chaplain 222 (1962).
n162 McCafferty, Major Trends in the Use of
Capital Punishment,
25 Fed. Prob., No. 3, pp. 15, 21 (Sept. 1961) (quoting Dr. S. Glueck of Harvard University).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**2793] Assuming knowledge of all the facts presently available regarding
capital punishment, the average citizen would, in my opinion, find it shocking to his conscience
and sense of justice. n163 For this reason alone
capital punishment cannot
stand.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n163 MR. JUSTICE POWELL suggests that this conclusion is speculative, and he is
certainly correct. But the mere recognition of this truth does not undercut
the validity of the conclusion. MR. JUSTICE POWELL himself concedes that
judges somehow know that certain punishments are no longer acceptable in our
society; for example, he refers to branding and pillorying. Whence comes this
knowledge? The answer is that it comes from our intuition as human beings that
our fellow human beings no longer will tolerate such punishments.
I agree wholeheartedly with the implication in my Brother POWELL's opinion that
judges are not free to strike down penalties that they find personally
offensive. But, I disagree with his suggestion that it is improper for judges
to ask themselves whether a specific punishment is morally acceptable to the
American public. Contrary to some current thought, judges have not lived lives
isolated from a broad range of
human experience. They have come into contact with many people, many ways of
life, and many philosophies. They have learned to share with their fellow
human beings common views of morality. If, after drawing on this experience
and considering the vast range of people and views that they have encountered,
judges conclude that these people would not knowingly tolerate a specific
penalty in light of its costs, then this conclusion is entitled to weight. See
Frankel, Book Review,
85 Harv. L. Rev. 354 (1971). Judges can find assistance in determining whether they are being objective,
rather than subjective, by referring to the attitudes of the persons whom most
citizens consider our
"ethical leaders." See
Repouille v. United States, 165 F.2d, at 154 (Frank, J., dissenting).
I must also admit that I am confused as to the point that my Brother POWELL
seeks to make regarding the underprivileged members of our society. If he is
stating that this
Court cannot solve all of their problems in the context of this case, or even
many of them, I would agree with him. But if he is opining that it is only the
poor, the ignorant, the racial minorities, and the hapless in our society who
are executed; that they are executed for no real reason other than to satisfy
some vague notion of society's cry for vengeance; and that knowing these
things, the people of this country would not care, then I most urgently
disagree.
There is too much crime, too much killing, too much hatred in this country. If
the legislatures could eradicate these elements from our lives by utilizing
capital punishment, then there would be a valid purpose for the sanction and the public would
surely accept it. It would be constitutional. As THE CHIEF JUSTICE and MR.
JUSTICE POWELL point out, however,
capital punishment has been with us a long time. What purpose has it served? The evidence is
that it has served none. I cannot agree that the American people have been so
hardened, so embittered that they want to take the life of one who performs
even the
basest criminal act knowing that the execution is nothing more than bloodlust.
This has not been my experience with my fellow citizens. Rather, I have found
that they earnestly desire their system of punishments to make sense in order
that it can be a morally justifiable system. See generally Arnold, The
Criminal Trial As a Symbol of Public Morality, in Criminal Justice In Our Time
137 (A. Howard ed. 1967).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***208]
[*370]
VII
To arrive at the conclusion that the
death penalty violates the
Eighth Amendment, we have had to engage in a long and tedious journey. The amount of
information that we have assembled and sorted is enormous.
[*371] Yet, I firmly believe that we have not deviated in the slightest from the
principles with which we began.
At a time in our history when the streets of the Nation's cities inspire fear
and despair, rather than pride and hope, it is difficult to maintain
objectivity and concern for our fellow citizens.
But, the measure of a country's greatness is its ability to retain compassion
in time of crisis. No nation in the recorded history of man has a greater
tradition of revering justice and fair treatment for all its citizens in times
of turmoil, confusion, and tension than ours. This is a
[**2794] country which stands tallest in troubled times, a country that clings to
fundamental principles, cherishes its constitutional heritage, and rejects
simple solutions that compromise the values that lie at the roots of our
democratic system.
In striking down
capital punishment, this Court does not malign our system of government. On the contrary, it
[***209] pays homage to it. Only in
a free society could right triumph in difficult times, and could civilization
record its magnificent advancement. In recognizing the humanity of our fellow
beings, we pay ourselves the highest tribute. We achieve
"a major milestone in the long road up from barbarism"
n164 and join the approximately 70 other jurisdictions in the world which
celebrate their regard for civilization and humanity by shunning
capital punishment. n165
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n164 R. Clark, Crime in America 336 (1970).
n165 Some jurisdictions have
de facto
abolition; others have
de jure. Id., at 330; Hearings,
supra, n. 80, at 9-10 (statement of M. DiSalle). See generally Patrick, The Status
of
Capital Punishment: A World Perspective,
56 J. Crim. L. C. & P. S. 397 (1965); United Nations,
supra, n. 77, paras. 10-17, 63-65, at 83-85, 96-97; Brief for Petitioner in No.
68-5027, App. E (
Aikens v. California, 406 U.S. 813 (1972)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I concur in the judgments of the
Court.
[***210]
[Appendices I, II, and III follow.]
[*372] APPENDI X I TO OPINION OF MARSHALL, J.,
CONCURRING
ABOLITION OF THE
DEATH PENALTY IN THE UNITED
STATES: 1846-1968
(States are listed according to year most recent action was taken)
|
| Year of | Year of |
|---|
| partial | complete | Year of | Year of |
|---|
| State | abolition | abolition | restoration | reabolition |
|---|
|
| New York | 1965 n1
| | | ? |
| Vermont | 1965 n2
| | | |
| West Virginia | | 1965 | | |
| Iowa | | 1872 | 1878 | 1965 |
| Oregon | | 1914 | 1920 | 1964 |
| Michigan | 1847 n3
| 1963 | | |
| Delaware | | 1958 | 1961 | |
| Alaska | | 1957 | | |
| Hawaii | | 1957 | | |
| South Dakota | | 1915 | 1939 | |
| Kansas | | 1907 | 1935 | |
| Missouri |
| 1917 | 1919 | |
| Tennessee | 1915 n4
| | 1919 | |
| Washington | | 1913 | 1919 | |
| Arizona | 1916 n5
| | 1918 | |
| North Dakota | 1915 n6
| | | |
| Minnesota | | 1911 | | |
| Colorado | | 1897 | 1901 | |
| Maine | | 1876 | 1883 | 1887 |
| Wisconsin | | 1853 | | |
| Rhode Island | 1852 n7
| | | |
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Death penalty retained for persons found guilty of killing a peace officer
who is acting in line of duty, and for prisoners under a life
sentence who
murder a guard or inmate while in confinement or while escaping from confinement.
[***211]
n2 Death penalty retained for persons
convicted of first-degree
murder who commit a second
"unrelated"
murder, and for the first-degree
murder of any law enforcement officer or
prison employee who is in the performance of the duties of his office.
n3 Death penalty retained for treason. Partial
abolition was voted in 1846, but was not put into effect until 1847.
n4 Death penalty retained for
rape.
n5 Death penalty retained for treason.
n6 Death penalty retained for treason, and for first-degree
murder
committed by a prisoner who is serving a life
sentence for first-degree
murder.
n7 Death penalty retained for persons
convicted of committing
murder while serving a life
sentence for any offense.
Based on National Prisoner
Statistics No. 45,
Capital Punishment 1930-1968, p. 30 (Aug. 1969).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*373]
[**2795]
APPENDIX II TO OPINION OF MARSHALL, J.,
CONCURRING
CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION,
AND NUMBER OF EXECUTIONS IN CERTAIN
AMERICAN STATES: 1920-1955
|
| | | N.H. | | Vt. | | Mass. | | | Conn. | |
|---|
| Year | | Maine* | Rates | Exec. | Rates | Exec. | Rates | Exec. | R.I.* | Rates | Exec. |
|---|
| | | | | | |
|---|
|
| 1920 | | 1.4 | 1.8 | | 2.3 | | 2.1 | 1 | 1.8 | 3.9 | 1 |
| 1921 | .... | 2.2 | 2.2 | | 1.7 | | 2.8 | | 3.1 | 2.9 | 2 |
| 1922 | .... | 1.7 | 1.6 | | 1.1 | | 2.6 | | 2.2 | 2.9 | 1 |
| 1923 | .... | 1.7 | 2.7 | | 1.4 | | 2.8 | 1 | 3.5 | 3.1 |
| 1924 | .... | 1.5 | 1.5 | | .6 | | 2.7 | 1 | 2.0 | 3.5 |
| 1925 | .... | 2.2 | 1.3 | | .6 | | 2.7 | | 1.8 | 3.7 |
| 1926 | .... | 1.1 | .9 | | 2.2 | | 2.0 | 1 | 3.2 | 2.9 | 1 |
| 1927 | .... | 1.9 | .7 | | .8 | | 2.1 | 6 | 2.7 | 2.3 | 2 |
| 1928 | .... | 1.6 | 1.3 | | 1.4 | | 1.9 | 3 | 2.7
| 2.7 |
| 1929 | .... | 1.0 | 1.5 | 1.4 | | 1.7 | 6 | 2.3 | 2.6 | 1 |
| 1930 | .... | 1.8 | .9 | | 1.4 | | 1.8 | | 2.0 | 3.2 | 2 |
| 1931 | .... | 1.4 | 2.1 | | 1.1 | 1 | 2.0 | 2 | 2.2 | 2.7 |
| 1932 | .... | 2.0 | .2 | | 1.1 | | 2.1 | 1 | 1.6 | 2.9 |
| 1933 | .... | 3.3 | 2.7 | | 1.6 | | 2.5 | | 1.9 | 1.8 |
| 1934 | .... | 1.1 | 1.4 | | 1.9 | | 2.2 | 4 | 1.8 | 2.4 |
| 1935 | .... | 1.4 | 1.0 | | .3 | | 1.8 | 4 | 1.6 | 1.9 |
| 1936 | .... | 2.2 | 1.0 | | 2.1 | | 1.6 | 2 | 1.2 | 2.7 | 1 |
| 1937 | .... | 1.4 | 1.8 | | 1.8 | | 1.9 | | 2.3 | 2.0 | 1 |
| 1938 | .... | 1.5 | 1.8 | | 1.3 | | 1.3 | 3 | 1.2 | 2.1 | 1 |
| 1939 | .... | 1.2 | 2.3 | 1 | .8 | | 1.4 | 2 | 1.6 | 1.3 |
| 1940 | .... | 1.5 | 1.4 | | .8 | | 1.5 | | 1.4 | 1.8 | 2 |
| 1941 | .... | 1.1 | .4 | | 2.2 | | 1.3 | 1 | .8 | 2.2 |
| 1942 | .... | 1.7 | .2 | | .9 | | 1.3 | 2 | 1.2 | 2.5 |
| 1943 | .... | 1.7 | .9 | | .6 | | .9 | 3 | 1.5 | 1.6 | 2 |
| 1944 | .... | 1.5 | 1.1 | | .3 | | 1.4 | | .6 | 1.9 | 1 |
| 1945 | .... | .9 | .7 | | 2.9 | | 1.5 | | 1.1 | 1.5 | 1 |
| 1946 | .... | 1.4 | .8 | | 1.7 | | 1.4 | 1 | 1.5 | 1.6 | 3 |
| 1947 | .... | 1.2 | .6 | | 1.1 | 1 | 1.6 | 2 | 1.5 | 1.9 |
| 1948 | .... | 1.7 | 1.0 | | .8 | | 1.4 | | 2.7 | 1.7 | |
| 1949 | .... | 1.7 | 1.5 | | .5 | | 1.1 | | .5 | 1.8 |
| 1950 | .... | 1.5 | 1.3 | | .5 | | 1.3 | | 1.5 | 1.4 |
| 1951 | .... | 2.3 | .6 | | .5 | | 1.0 | | .9 | 2.0 |
| 1952 | .... | 1.0 | 1.5 | | .5 | | 1.0 | | 1.5 | 1.7 |
| 1953 | .... | 1.4 | .9 | | .3 | | 1.0 | | .6 | 1.5 |
| 1954 | .... | 1.7 | .5 | 1.6 | | 2 | 1.0 | | 1.3 | 1.3 | |
| 1955 | .... | 1.2 | 1.1 | | .5 | | 1.2 | | 1.7 | 1.3 | 3
|
[***212]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* Maine has totally
abolished the
death penalty, and Rhode Island has severely limited its imposition. Based on ALI,
supra, n. 98, at 25.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*374] APPENDIX III TO OPINION OF MARSHALL, J.,
CONCURRING
CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION,
AND NUMBER OF EXECUTIONS IN CERTAIN
AMERICAN STATES: 1920-1955
|
| Mich.* | Ohio | | Ind. | | Minn.* | Iowa | | Wis.* | N.D.* | S.D. | | Neb. |
|
|---|
| Year | | Rate | Ex. | Rate | Ex. | | Rate | Ex. | | | | Ex. | Rate | Ex. |
|---|
|
| | | | | | | | | | | | | | |
| 1920... | 5.5 | 6.9 | 3 | 4.7 | 2 | 3.1 | ** | | 1.7 | ** | ** | *** | 4.2 |
| 1921... | 4.7 | 7.9 | 10 | 6.4 | | 4.4 | | 2.2 | | | | 4.9 |
| 1922... | 4.3 | 7.3 | 12 | 5.7 | 2 | 3.6 | | 3 | 1.8 | | | | 4.5 |
| 1923... | 6.1 | 10 | 6.1 | | 2.9 | 2.1 | 2 | 2.2 | | | | 4.1 |
| 1924... | 7.1 | 6.9 | 10
| 7.3 | | 3.2 | 2.7 | 1 | 1.8 | 2.1 | | | 4.4 |
| 1925... | 7.4 | 8.1 | 13 | 6.6 | 1 | 3.8 | 2.7 | 2 | 2.3 | 2.0 | | | 4.0 |
| 1926... | 10.4 | 8.6 | 7 | 5.8 | 3 | 2.2
| 2.3 | | 2.6 | 1.8 | | | 2.7 |
| 1927... | 8.2 | 8.6 | 8 | 6.3 | 1 | 2.6 | 2.4 | | 2.6 | 1.6 | | | 3.5 |
| 1928... | 7.0 | 8.2 | 7 | 7.0 | 1 | 2.8 | 2.3 | | 2.1 | 1.0 | | | 3.7 |
| 1929... | 8.2 | 8.3 | 5 | 7.0 | 1 | 2.2 | 2.6 | | 2.3 | 1.2 | | | 3.0 |
| 1930... | 6.7 | 9.3 | 8 | 6.4 | 1 | 3.8 | 3.2 | | 3.1 | 3.5 | 1.9 | | 3.5 |
| 1931... | 6.2 | 9.0 | 10 | 6.5 | 1 | 2.9 | 2.5 | 1 | 3.6 | 2.0 | 2.3 | | 3.6 |
| 1932... | 5.7 | 8.1 | 7 | 6.7 | 2 | 2.9 | 2.9 | | 2.8 | 1.2 | 1.6 | | 3.7 |
| 1933... | 5.1 | 8.2 | 11 | 5.6 | 3 | 3.5 | 2.9 | | 1.9 | 1.2 | 1.7 | | 3.2 |
| 1934... | 4.2 | 7.7 | 7 | 7.1 | 4 | 3.4 | 2.3 | | 2.4 | 1.6 | 3.0 | | 4.4 |
| 1935... | 4.2 | 7.1 | 10 | 4.4 | 2 | 2.6 | 2.0 | 3 | 1.4 | 2.3 | 2.0 | | 3.4 |
| 1936... | 4.0 | 6.6 | 6 | 5.2 | 2 | 2.3 | 1.8 | | 1.7 | 2.0 | 1.2 | | 2.5 |
| 1937... | 4.6 | 5.7 | 1 | 4.7 | 5 | 1.6 | 2.2 | | 2.2 | 1.6 | .1 | | 2.0 |
| 1938... | 3.4 | 5.1 | 12 | 4.4 | 8 | 1.6 | 1.4 | 4 | 2.0 | 2.4 | .9 | | 1.6 |
| 1939... | 3.1 | 4.8 | 10 | 3.8 | 3 | 1.6 | 1.8 | | 1.4
| 1.2 | 2.8 | | 2.1 |
| 1940... | 3.0 | 4.6 | 2 | 3.3 | | 1.2 | 1.3 | 1 | 1.3 | 1.4 | 2.2 | | 1.0 |
| 1941... | 3.2 | 4.2 | 4 | 3.1
| 1 | 1.7 | 1.3 | 1 | 1.4 | 2.3 | 1.0 | | 2.1 |
| 1942... | 3.2 | 4.6 | 2 | 3.2 | 1 | 1.7 | 1.2 | | 1.6 | 1.4 | .9 | | 1.8 |
| 1943... | 3.3 | 4.4 | 5 | 2.8 | | 1.2 | 1.0 | | 1.1 | .6 | 1.4 | | 2.4 |
| 1944... | 3.3 | 3.9 | 2 | 2.8 | | 1.4 | 1.7 | 1 | .9 | .9 | 1.6
| | 1.3 |
| 1945... | 3.7 | 4.9 | 7 | 4.0 | 1 | 1.9 | 1.6 | 1 | 1.6 | 1.0 | 2.0 | | 1.2 | 1 |
| 1946... | 3.2 | 5.2 | 2 | 3.9 | 1 | 1.6 | 1.8 | 2 | .9 | 1.5 | 1.1 | | 2.1 |
| 1947... | 3.8 | 4.9 | 5 | 3.8 | | 1.2 | 1.9 | | 1.4 | .4 | 1.0 | 1 | 2.2 |
| 1948... | 3.4 | 4.5 | 7 | 4.2 | | 1.9 | 1.4 | | .9 | .9 | 2.0 | | 2.5 | 1 |
| 1949... | 3.5 | 4.4 | 15 | 3.2 | 3 | 1.1 | .9 | 1 | 1.3 | .7 | 2.3 | | 1.8 |
| 1950... | 3.9 | 4.1 | 4 | 3.6 | 1 | 1.2 | 1.3 | | 1.1 | .5 | 1.1 | | 2.9 |
| 1951... | 3.7 | 3.8 | 4 | 3.9 | 1 | 1.3 | 1.5 | | 1.1 | .5 | .9 | | 1.0 |
| 1952... | 3.3 | 4.0 | 4 | 3.8 | | 1.3 | 1.5 | 1 | 1.6 | .8 | 2.3 | | 1.6 | 1 |
| 1953... | 4.6 | 3.6 | 4 | 4.0 | | 1.5 | 1.1 | | 1.2 | 1.1 | 1.1 | | 2.0 |
| 1954... | 3.3 | 3.4 | 4 | 3.2 | | 1.0 | 1.0 | | 1.1 | .5 | 1.5 | | 2.3 |
| 1955... | 3.3 | 3.1 | | 3.1 | | 1.1 | 1.2 | | 1.1 | .8 | 1.8 | | 1.3
|
[***213]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* Michigan, Minnesota, and Wisconsin have completely
abolished
capital punishment. North Dakota has severely restricted its use.
** Iowa, North Dakota, and South Dakota were not admitted to the national death
registration area until 1923, 1924, and 1930 respectively.
*** South Dakota introduced the
death penalty in 1939.
Based on ALI,
supra, n. 98, at 28. See also
id., at 32-34.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
DISSENTBY: BURGER; BLACKMUN; POWELL; REHNQUIST
DISSENT:
[*375]
[**2796] MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL,
and MR. JUSTICE REHNQUIST join, dissenting.
At the outset it is important to note that only two members of the Court, MR.
JUSTICE BRENNAN and MR. JUSTICE MARSHALL, have concluded that the
Eighth Amendment prohibits
capital punishment for all crimes and under all circumstances. MR. JUSTICE DOUGLAS has also
determined that the
death penalty contravenes the
Eighth Amendment, although I do not read his opinion as
necessarily requiring final
abolition of the penalty. n1 For
[***214] the reasons set forth in Parts I-IV of this opinion, I conclude that the
constitutional prohibition
[**2797] against
"cruel and unusual punishments" cannot be construed to bar the imposition of the
punishment of death.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 See n. 25,
infra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
MR. JUSTICE STEWART and MR. JUSTICE WHITE have concluded that petitioners'
death
sentences must be
set aside because prevailing
sentencing practices do not comply with the
Eighth Amendment. For the reasons set forth in Part V of this opinion, I believe this approach
fundamentally misconceives the nature of the
Eighth Amendment guarantee and flies directly in the face of controlling authority of extremely
recent vintage.
I
If we were possessed of legislative power, I would either join with MR. JUSTICE
BRENNAN and MR. JUSTICE MARSHALL or, at the very least, restrict the use of
capital punishment to a small category of the most heinous crimes. Our constitutional inquiry,
however, must be divorced from personal feelings as to the morality and
efficacy of the
death penalty, and
[***215] be confined to the meaning and applicability of the uncertain language of the
Eighth Amendment. There is no novelty in being called upon to interpret a constitutional
provision that is less than
[*376] self-defining, but, of all our fundamental guarantees, the ban on
"cruel and unusual punishments" is one of the most difficult to translate into
judicially manageable terms. The widely divergent views of the Amendment
expressed in today's opinions reveal the haze that surrounds this
constitutional command. Yet it is essential to our role as a court that we not
seize upon the enigmatic character of the guarantee as an invitation to enact
our personal predilections into law.
Although the
Eighth Amendment literally reads as prohibiting only those punishments that are both
"cruel" and
"unusual," history compels the conclusion that the Constitution prohibits all punishments
of extreme and barbarous
cruelty, regardless of how frequently or infrequently imposed.
The most persuasive analysis of Parliament's adoption of the English Bill of
Rights of 1689 -- the unquestioned source of the
Eighth Amendment wording -- suggests that the prohibition against
"cruel and unusual punishments"
[***216] was included therein out of aversion to
severe punishments not legally authorized and not within the jurisdiction of the courts to
impose. To the extent that the term
"unusual" had any importance in the English version, it was apparently intended as a
reference to illegal punishments. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 See Granucci,
"Nor
Cruel and Unusual Punishments
Inflicted:" The Original Meaning,
57 Calif. L. Rev. 839, 852-860 (1969). Earlier drafts of the Bill of Rights used the phrase
"cruel and illegal." It is thought that the change to the
"cruel and unusual" wording was inadvertent and not intended to work any change in meaning.
Ibid. The historical background of the English Bill of Rights is set forth in the
opinion of MR. JUSTICE MARSHALL,
ante, at 316-318.
It is intimated in the opinion of MR. JUSTICE DOUGLAS,
ante, at 242-245, that the term
"unusual" was included in the English Bill of Rights as a protest against the
discriminatory application of punishments to minorities. However, the history
of
capital punishment in England dramatically reveals that no premium was placed on equal justice
for all, either before or after the Bill of Rights of 1689. From the
time of Richard I until 1826 the
death penalty was authorized in England for treason and all felonies except larceny and
mayhem with the further exception that persons entitled to benefit of clergy
were subject to no penalty or at most a very lenient penalty upon the
commission of a felony. Benefit of clergy grew out of the exemption of the
clergy from the jurisdiction of the lay courts. The exemption expanded to
include assistants to clergymen, and by 1689, any male who could read.
Although by 1689 numerous felonies had been deemed
"nonclergyable," the disparity in punishments imposed on the educated and uneducated remained
for most felonies until the early 18th century. See 1 J. Stephen, History of
the Criminal Law of England 458
et seq. (1883).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***217]
[*377]
From every indication, the Framers of the
Eighth Amendment intended to give
[**2798] the phrase a meaning far different from that of its English precursor. The
records of the debates in several of the state conventions called to ratify the
1789 draft Constitution submitted prior to the addition of the Bill of Rights
show that the
Framers' exclusive concern was the absence of any ban on
tortures. n3 The later inclusion of the
"cruel and unusual punishments" clause was in response to these objections. There was no discussion of the
interrelationship of the terms
"cruel" and
"unusual," and there is nothing in the debates supporting the inference that the Founding
Fathers would have been receptive to torturous or excessively
cruel punishments even if usual in character or authorized by law.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 See 2 J. Elliot's Debates 111 (2d ed. 1876); 3
id., at 447-448, 451-452.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The cases decided under the
Eighth Amendment are consistent with the tone of the ratifying debates. In
Wilkerson v. Utah, 99 U.S. 130 (1879),
[***218] this Court held that execution by shooting was not
a prohibited mode of carrying out a
sentence of death. Speaking to the meaning
[*378] of the
Cruel and
Unusual Punishments Clause, the Court stated,
"It is safe to affirm that punishments of
torture . . . and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the Constitution."
Id., at 136.
The Court made no reference to the role of the term
"unusual" in the constitutional guarantee.
In the case of
In re Kemmler, 136 U.S. 436 (1890), the Court held the
Eighth Amendment inapplicable to the States and added the following dictum:
"So that, if the punishment prescribed for an offence against the laws of the
State were manifestly
cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or
the like, it would be the duty of the courts to adjudge such penalties to be
within the . . . [prohibition of the New York constitution]. And we think this
equally true of the
Eighth Amendment, in its application to Congress.
". . . Punishments are
cruel when they involve
torture or a lingering death;
but the
punishment of death is not
cruel,
[***219] within the meaning of that word as used in the Constitution. It implies there
something inhuman and barbarous, something more than the mere extinguishment of
life."
Id., at 446-447.
This language again reveals an exclusive concern with extreme
cruelty. The Court made passing reference to the finding of the New York courts that
electrocution was
an
"unusual" punishment, but it saw no need to discuss the significance of that term as
used in the
Eighth Amendment.
Opinions in subsequent cases also speak of extreme
cruelty as though that were the sum and substance of the constitutional prohibition.
See
O'Neil v. Vermont, 144 U.S. 323, 339-340 (1892) (Field, J., dissenting);
Weems
[*379] v. United States, 217 U.S. 349, 372-373 (1910);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947). As summarized by
Mr. Chief Justice Warren in the plurality opinion in
Trop v. Dulles, 356 U.S. 86, 100 n. 32 (1958):
"Whether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear. On the few occasions this Court has had to consider
[***220] the meaning of the phrase, precise distinctions between
cruelty and unusualness do not seem to have been drawn. See
Weems v. United States, supra;
O'Neil v. Vermont, supra;
Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment
involved in light of the basic prohibition against inhuman treatment, without
regard to any subtleties of meaning
[**2799] that might be latent in the word 'unusual.'"
I do not suggest that the presence of the word
"unusual" in the
Eighth Amendment is merely vestigial, having no relevance to the constitutionality of any
punishment that might be devised. But where, as here, we consider a punishment
well
known to history, and clearly authorized by legislative enactment, it
disregards the history of the
Eighth Amendment and all the judicial comment that has followed to rely on the term
"unusual" as affecting the outcome of these cases. Instead, I view these cases as
turning on the single question whether
capital punishment is
"cruel" in the constitutional sense. The term
"unusual" cannot be read as limiting the ban on
"cruel" punishments or
[***221] as somehow expanding the meaning of the term
"cruel." For this reason I am unpersuaded by the facile argument that since
capital punishment has always been
cruel in the everyday sense of the word, and has become unusual due to decreased
use, it is, therefore, now
"cruel and unusual."
[*380] II
Counsel for petitioners properly concede that
capital punishment was not impermissibly
cruel at the time of the adoption of the
Eighth Amendment. Not only do the records of the debates indicate that the Founding Fathers
were limited in their concern to the prevention of
torture, but it is also clear from the language of the
Constitution itself that there was no thought whatever of the elimination of
capital punishment. The opening
sentence of the Fifth Amendment is a guarantee that the
death penalty not be imposed
"unless on a presentment or indictment of a Grand Jury." The Double Jeopardy Clause of the Fifth Amendment is a prohibition against
being
"twice put in jeopardy of life" for the same offense. Similarly, the Due Process Clause commands
"due process of law" before an accused can be
"deprived of life, liberty, or property." Thus, the explicit language of the Constitution affirmatively
[***222] acknowledges the legal power to impose
capital punishment; it does not expressly or by implication acknowledge the legal power to impose
any of the various punishments that have
been banned as
cruel since 1791. Since the
Eighth Amendment was adopted on the same day in 1791 as the Fifth Amendment, it hardly needs
more to establish that the
death penalty was not
"cruel" in the constitutional
sense at that time.
In the 181 years since the enactment of the
Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt
on the constitutionality of
capital punishment. In rejecting
Eighth Amendment attacks on particular modes of execution, the Court has more than once
implicitly denied that
capital punishment is impermissibly
"cruel" in the constitutional sense.
Wilkerson v. Utah, 99 U.S. 130 (1879);
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464.
In
[*381]
re Kemmler, 136 U.S. 436 (1890) (dictum). It is only 14 years since Mr. Chief Justice Warren, speaking for
four members of the Court, stated without equivocation:
"Whatever the arguments may be against
capital
[***223] punishment, both on moral grounds and in terms of accomplishing the purposes of punishment
-- and they are forceful -- the
death penalty has been employed
throughout our history, and, in a day when it is still widely accepted, it
cannot be said to violate the constitutional concept of
cruelty."
Trop v. Dulles, 356 U.S., at 99.
It is only one year since Mr. Justice Black made his feelings clear on the
constitutional issue:
"The
Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw
capital punishment because that penalty was in common use and authorized by law here and in the
countries from which our ancestors
[**2800] came at the time the Amendment was adopted. It is inconceivable to me that
the framers intended to end
capital punishment by the Amendment."
McGautha v. California, 402 U.S. 183, 226 (1971) (separate opinion).
By limiting its grants of certiorari, the Court has refused even to hear
argument on the
Eighth Amendment claim on two occasions in the last four years.
Witherspoon v.
Illinois, cert.
granted,
389 U.S. 1035, rev'd,
391 U.S. 510 (1968);
[***224]
McGautha v.
California, cert. granted,
398 U.S. 936 (1970), aff'd,
402 U.S. 183 (1971). In these cases the Court confined its attention to the procedural aspects of
capital trials, it being implicit that the punishment itself could be
constitutionally imposed. Nonetheless, the Court has now been asked to hold
that a punishment clearly permissible under the Constitution at the time of its
adoption and accepted as such by every
[*382] member of the Court until today, is suddenly so
cruel as to be incompatible with the
Eighth Amendment.
Before recognizing such an instant evolution in the law, it seems fair to ask
what factors have changed that
capital punishment should now be
"cruel" in the constitutional sense as it has not been in the past. It is apparent
that there has been no change of constitutional significance in the nature of
the punishment itself. Twentieth century modes of execution surely involve no
greater physical suffering than the means employed at the
time of the
Eighth Amendment's adoption. And although a man awaiting execution must inevitably experience
extraordinary mental anguish, n4 no one suggests that
[***225] this anguish is materially different from that experienced by condemned men in
1791, even though protracted appellate review processes have greatly increased
the waiting time on
"death row." To be sure, the ordeal of the condemned man may be thought
cruel in the sense that all suffering is thought
cruel. But if the Constitution proscribed every punishment producing severe
emotional stress, then
capital punishment would clearly have been impermissible in 1791.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 But see Bluestone
& McGahee, Reaction to Extreme Stress: Impending Death by Execution,
119 Am. J. Psychiatry 393 (1962).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
However, the inquiry cannot end here. For reasons unrelated to any change in
intrinsic
cruelty, the
Eighth Amendment prohibition cannot fairly be limited to those punishments thought excessively
cruel and barbarous at the time of the adoption of the
Eighth Amendment. A punishment is inordinately
cruel, in the sense we must deal with it in these cases, chiefly as perceived by the
society so characterizing it. The standard
[***226] of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment. The
standard itself remains the same, but its applicability must change as the
basic mores of society change. This notion is not
[*383] new to
Eighth Amendment adjudication. In
Weems v. United States, 217 U.S. 349 (1910), the Court referred with apparent approval to the opinion of the commentators
that
"the clause of the Constitution . . . may be therefore progressive, and is not
fastened to the obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice."
217 U.S., at 378. Mr.
Chief Justice Warren, writing the plurality opinion in
Trop v. Dulles, supra, stated,
"The Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."
356 U.S., at 101. Nevertheless, the Court up to now has never actually held that a punishment
has become impermissibly
cruel due to a shift in the weight of accepted social values; nor has the Court
suggested judicially manageable criteria for measuring such a shift in moral
consensus.
The Court's
[***227] quiescence in this area can be attributed to the fact that in a
[**2801] democratic society legislatures, not courts, are constituted to respond to the
will and consequently the moral values of the people. For this reason, early
commentators suggested that the
"cruel and unusual punishments" clause was an unnecessary constitutional provision. n5 As acknowledged in the
principal brief for petitioners,
"both
in constitutional contemplation and in fact, it is the legislature, not the
Court, which responds to public opinion and immediately reflects the society's
standards of
decency." n6
[*384]
Accordingly, punishments such as branding and the cutting off of ears, which
were commonplace at the time of the adoption of the Constitution, passed from
the penal scene without judicial intervention because they became basically
offensive to the people and the legislatures responded to this sentiment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 See 2 J. Story, On the Constitution
§ 1903 (5th ed. 1891); 1 T. Cooley, Constitutional Limitations 694 (8th ed.
1927). See also Joseph Story on
Capital Punishment (ed. by J. Hogan),
43 Calif. L. Rev. 76 (1955).
[***228]
n6 Brief for Petitioner in
Aikens v.
California, No. 68-5027, p. 19 (cert. dismissed,
406 U.S. 813 (1972)). See
post, at 443 n. 38. This,
plainly, was the foundation of Mr. Justice Black's strong views on this subject
expressed most recently in
McGautha v. California, 402 U.S. 183, 226 (1971) (separate opinion).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Beyond any doubt, if we were today called upon to review such punishments, we
would find them excessively
cruel because we could say with complete assurance that contemporary society
universally rejects such bizarre penalties. However, this speculation on the
Court's probable reaction to such punishments is not of itself significant.
The critical fact is that this Court has never had to hold that a mode of
punishment authorized by a domestic legislature was so
cruel as to be fundamentally at odds with our basic notions of
decency. Cf.
Weems v. United States, supra. Judicial findings of impermissible
cruelty have been limited, for the most part, to offensive punishments devised without
specific authority by
[***229]
prison officials, not by legislatures. See,
e. g.,
Jackson v. Bishop, 404 F.2d 571 (CA8 1968);
Wright v. McMann, 387 F.2d 519 (CA2 1967). The paucity of judicial decisions invalidating legislatively prescribed
punishments is powerful evidence that in this country legislatures have in fact
been responsive -- albeit belatedly at times -- to changes in social attitudes
and moral values.
I do not suggest that the validity of legislatively authorized punishments
presents no justiciable issue under the
Eighth Amendment, but, rather, that the primacy of the legislative role narrowly confines the
scope of judicial inquiry. Whether or not provable, and whether or not true at
all times, in a democracy the legislative judgment is presumed to embody the
basic standards of
decency prevailing in the society. This presumption can only be negated by
unambiguous and compelling evidence of legislative default.
[*385] III
There are no obvious indications that
capital punishment offends the
conscience of society to such a degree that our traditional deference to the
legislative judgment must be abandoned. It is not a punishment such as burning
[***230] at the stake that everyone would ineffably find to be repugnant to all
civilized standards. Nor is it a punishment so roundly condemned that only a
few aberrant legislatures have retained it on the statute books.
Capital punishment is authorized by statute in 40 States, the District of Columbia, and in the
federal courts for the commission of certain crimes. n7 On four occasions in
the last 11 years Congress has added to the list of federal
[**2802] crimes
punishable by death. n8 In looking for reliable indicia of contemporary
attitude, none more trustworthy has been advanced.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 See Department of Justice, National Prisoner
Statistics No. 46,
Capital Punishment 1930-1970, p. 50 (Aug. 1971). Since the publication of the Department of
Justice report,
capital punishment has been judicially
abolished in California,
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied,
406 U.S. 958 (1972). The States where
capital punishment is no longer authorized are Alaska, California, Hawaii, Iowa, Maine, Michigan,
Minnesota, Oregon, West Virginia, and Wisconsin.
[***231]
n8 See Act of Jan. 2, 1971, Pub. L. 91-644, Tit. IV,
§ 15, 84 Stat. 1891,
18 U. S. C. § 351; Act of Oct. 15, 1970, Pub. L. 91-452, Tit. XI,
§ 1102 (a), 84 Stat. 956,
18 U. S. C. § 844 (f)(i); Act of Aug. 28, 1965, 79 Stat. 580,
18 U. S. C. § 1751;
Act of Sept. 5, 1961,
§ 1, 75 Stat. 466,
49 U. S. C. § 1472 (i). See also opinion of MR. JUSTICE BLACKMUN,
post, at 412-413.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
One conceivable source of evidence that legislatures have abdicated their
essentially barometric role with respect to community values would be public
opinion polls, of which there have been many in the past decade addressed to
the question of
capital punishment. Without assessing the reliability of such polls, or intimating that any
judicial reliance could ever be placed on them,
[*386] it need only be noted that the reported results have shown nothing
approximating the universal condemnation of
capital punishment that might lead us to suspect that the legislatures in general have lost touch
with current social values. n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 A 1966 poll indicated that 42% of those polled favored
capital punishment while 47% opposed it, and 11% had no opinion. A 1969
poll found 51% in favor, 40% opposed, and 9% with no opinion. See Erskine, The
Polls:
Capital Punishment, 34 Public Opinion Quarterly 290 (1970).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***232]
Counsel for petitioners rely on a different body of empirical evidence. They
argue, in effect, that the number of cases in which the
death penalty is imposed, as compared with the number of cases in which it is statutorily
available, reflects a general revulsion toward the penalty that would lead to
its repeal if only it were more generally and widely enforced. It cannot be
gainsaid that by the choice of juries -- and sometimes judges n10 -- the
death penalty is imposed in far fewer than half the cases in which it is available. n11 To
go further and characterize
[*387] the rate of imposition as
"freakishly rare," as petitioners insist, is unwarranted hyperbole. And regardless of its
characterization, the rate of imposition does not impel the conclusion that
capital punishment is now
regarded as intolerably
cruel or uncivilized.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 The jury plays the predominant role in
sentencing in capital cases in this country. Available evidence indicates that where the
judge determines the
sentence, the
death penalty is imposed with a slightly greater frequency than where the jury makes the
determination. H. Kalven
& H. Zeisel, The American Jury 436 (1966).
[***233]
n11 In the decade from 1961-1970, an average of 106 persons per year received
the death
sentence in the United States, ranging from a low of 85 in 1967 to a high of 140 in
1961; 127 persons received the death
sentence in 1970. Department of Justice, National Prisoner
Statistics No. 46,
Capital Punishment 1930-1970, p. 9. See also Bedau, The
Death Penalty in America,
35 Fed. Prob., No. 2, p. 32 (1971). Although accurate figures are difficult to obtain, it is thought that from 15%
to 20% of those
convicted of
murder are sentenced to death in States where it is authorized. See,
e. g., McGee,
Capital Punishment as Seen by a Correctional Administrator,
28 Fed. Prob., No. 2, pp. 11, 12 (1964); Bedau, Death
Sentences in New Jersey 1907-1960,
19 Rutgers L. Rev. 1, 30 (1964); Florida Division of Corrections, Seventh Biennial Report (July 1, 1968, to
June 30, 1970) 82 (1970); H. Kalven
& H. Zeisel, The American Jury 435-436 (1966). The rate of imposition for
rape and the few other crimes made punishable by death in certain States is
considerably lower. See,
e. g., Florida Division of Corrections, Seventh Biennial Report,
supra, at 83; Partington, The Incidence of the
Death Penalty for
Rape in Virginia,
22 Wash. & Lee L. Rev. 43-44, 71-73 (1965).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***234]
It is argued that in those capital cases where juries have recommended mercy,
they have given expression to civilized values and effectively renounced the
legislative authorization for
capital punishment. At the same time it is argued that where juries have made the awesome
decision to send men to their deaths, they have acted arbitrarily and without
sensitivity to prevailing standards of
decency. This explanation for the infrequency of imposition of
capital punishment is unsupported by known
[**2803] facts, and is inconsistent in principle with everything this Court has ever
said about the functioning of juries in capital cases.
In
McGautha v. California, supra, decided only one year ago, the Court held that there was no mandate in the Due
Process Clause of the
Fourteenth Amendment that juries be given
instructions as to when the
death penalty should be imposed. After reviewing the autonomy that juries have
traditionally exercised in capital cases and noting the practical difficulties
of framing manageable instructions, this Court concluded that judicially
articulated standards were not needed to insure a responsible decision as to
penalty.
[***235] Nothing in
McGautha licenses capital juries to act arbitrarily or assumes that they have so acted
in the past. On the contrary, the assumption underlying the
McGautha ruling is that juries
"will act with
[*388] due regard for the consequences of their decision."
402 U.S., at 208.
The responsibility of juries deciding capital cases in our system of justice
was nowhere better described than in
Witherspoon v. Illinois, supra:
"[A] jury that must choose between
life imprisonment and
capital punishment can do little more -- and must do nothing less -- than express
the conscience of the community on the ultimate question of life or death."
"And one of the most important
functions any jury can perform in making such a selection is to maintain a link
between contemporary community values and the penal system -- a link without
which the determination of punishment could hardly reflect 'the evolving
standards of
decency that mark the progress of a maturing society'"
391 U.S., at 519 and n. 15 (emphasis added).
The selectivity of juries in imposing the
punishment of death is properly viewed as a refinement on,
[***236] rather than a repudiation of, the statutory authorization for that penalty.
Legislatures prescribe the categories of crimes for which the
death penalty should be available, and, acting as
"the conscience of the community," juries are entrusted to determine in individual cases that the ultimate
punishment is warranted. Juries are undoubtedly influenced in this judgment by
myriad factors. The motive or lack of motive of the perpetrator, the degree of
injury or suffering of the victim or victims, and the degree of brutality in
the commission of the crime would seem to be prominent among these
factors. Given the general awareness that death is no longer a routine
punishment for the crimes for which it is made available, it is hardly
surprising that juries have been increasingly meticulous in
their imposition of the penalty. But to
[*389] assume from the mere fact of relative infrequency that only a random
assortment of pariahs are sentenced to death, is to cast grave doubt on the
basic integrity of our jury system.
It would, of course, be unrealistic to assume that juries have been perfectly
consistent in choosing the cases where the
death penalty is to be imposed,
[***237] for no human institution performs with perfect consistency. There are
doubtless prisoners on death row who would not be there had they been tried
before a different jury or in a different State. In this sense their fate has
been controlled by a fortuitous circumstance. However, this element of
fortuity does not stand as an indictment either of the general functioning of
juries in capital cases or of the integrity of jury decisions in individual
cases. There is no empirical basis for concluding that juries have generally
failed to discharge in good faith the responsibility described
[**2804] in
Witherspoon -- that of choosing between life and death in individual cases according to
the dictates of community values. n12
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 Counsel for petitioners make the conclusory statement that
"those who are selected to die are the poor and powerless, personally ugly and
socially unacceptable." Brief for Petitioner in No. 68-5027, p. 51. However, the sources cited
contain no empirical findings to undermine the general premise that juries
impose the
death penalty in the most extreme cases. One study has discerned a statistically noticeable
difference between the rate of imposition on blue collar and white collar
defendants; the study otherwise concludes that juries do follow rational
patterns in imposing the
sentence of death. Note, A Study of the
California Penalty Jury in First-Degree-Murder Cases,
21 Stan. L. Rev. 1297 (1969). See also H. Kalven
& H. Zeisel, The American Jury 434-449 (1966).
Statistics are also cited to show that the
death penalty has been imposed in a racially discriminatory manner. Such
statistics suggest, at least as a historical matter, that Negroes have been sentenced to
death with greater frequency than whites in several States, particularly for
the crime of interracial
rape. See,
e. g., Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime
& Delin. 132 (1969); Note,
Capital Punishment in Virginia,
58 Va. L. Rev. 97 (1972). If a statute that authorizes the discretionary imposition of a particular
penalty for a particular crime is used primarily against defendants of a
certain race, and if the
pattern of use can be fairly explained only by reference to the race of the
defendants, the Equal Protection Clause of the
Fourteenth Amendment forbids continued enforcement of that statute in its existing form. Cf.
Yick Wo v. Hopkins, 118 U.S. 356 (1886);
Gomillion v. Lightfoot, 364 U.S. 339 (1960).
To establish that the statutory authorization for a particular penalty is
inconsistent with the dictates of the Equal Protection Clause, it is not enough
to show how it was applied in the distant past. The
statistics that have been referred to us cover periods when Negroes were systematically
excluded from jury service and when racial segregation was the official policy
in many States. Data of more recent vintage are essential. See
Maxwell v. Bishop, 398 F.2d 138, 148 (CA8 1968), vacated,
398 U.S. 262 (1970). While no statistical survey could be expected to
bring forth absolute and irrefutable proof of a discriminatory pattern of
imposition, a strong showing would have to be made, taking all relevant factors
into account.
It must be noted that any equal protection claim is totally distinct from the
Eighth Amendment question to which our grant of certiorari was limited in these cases.
Evidence of a discriminatory pattern of enforcement does not imply that any use
of a particular punishment is so morally repugnant as to violate the
Eighth Amendment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***238]
[*390] The rate of imposition of death
sentences falls far short of providing the requisite unambiguous evidence that the
legislatures of 40 States and the Congress have turned their backs on current
or evolving
standards of
decency in continuing to make the
death penalty available. For, if selective imposition evidences a rejection of
capital punishment in those cases where it is not imposed, it surely evidences a correlative
affirmation of the penalty in those cases where it is imposed. Absent some
clear
indication that the continued imposition of the
death penalty on a selective basis is violative of prevailing standards of civilized
conduct, the
Eighth Amendment cannot be said to interdict its use.
[*391] In two of these cases we have been asked to rule on the narrower question
whether
capital punishment offends the
Eighth Amendment when imposed as the punishment for the crime of forcible
rape. n13 It is true that the
death penalty is authorized for
rape in fewer States than it is for
murder, n14 and that even in
[**2805] those States it is applied more sparingly for
rape than for
murder. n15 But for the reasons aptly brought out in the opinion of MR. JUSTICE
[***239] POWELL,
post, at 456-461, I do not believe these differences can be elevated to the level
of an
Eighth Amendment distinction. This blunt constitutional command cannot be sharpened to carve
neat distinctions corresponding to the categories of crimes defined by the
legislatures.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13
Jackson v.
Georgia, No. 69-5030;
Branch v.
Texas, No. 69-5031.
n14
Rape is punishable by death in 16 States and in the federal courts when committed
within the special maritime and territorial jurisdiction of the United States.
18 U. S. C. § 2031. The States authorizing
capital punishment for
rape are Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina,
Tennessee, Texas, and Virginia.
n15 See n. 11,
supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
IV
Capital punishment has also been attacked as violative of the
Eighth Amendment on the ground that it is not needed to achieve legitimate penal aims and is
thus
"unnecessarily
cruel." As a pure policy matter, this
[***240] approach has much to recommend it, but it seeks to give a dimension to the
Eighth Amendment that it was never intended to have and
promotes a line of inquiry that this Court has never before pursued.
The
Eighth Amendment, as I have noted, was included in the Bill of Rights to guard against the use
of torturous and inhuman punishments, not those of limited efficacy. One of
the few to speak out against the adoption
[*392] of the
Eighth Amendment asserted that it is often necessary to use
cruel punishments to deter crimes. n16 But among those favoring the Amendment, no
sentiment was expressed that a punishment of extreme
cruelty could ever be justified by expediency. The dominant theme of the
Eighth Amendment debates was that the ends of the criminal laws cannot justify the use of
measures of extreme
cruelty to achieve them. Cf.
Rochin v. California, 342 U.S. 165, 172-173 (1952).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 1 Annals of Cong. 754 (1789) (remarks of Rep. Livermore).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The apparent seed of the
"unnecessary
cruelty"
[***241] argument is the following language,
quoted earlier, found in
Wilkerson v. Utah, supra:
"Difficulty would attend the effort to define with exactness the extent of the
constitutional provision which provides that
cruel and unusual punishments
shall not be
inflicted; but it is safe to affirm that punishments of
torture . . .
and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the Constitution."
99 U.S., at 135-136 (emphasis added).
To lift the italicized phrase from the context of the
Wilkerson opinion and now view it as a mandate for assessing the value of punishments in
achieving the aims of penology is a gross distortion; nowhere are such aims
even mentioned in the
Wilkerson opinion. The only fair reading of this phrase is that punishments similar to
torture in their extreme
cruelty are prohibited by the
Eighth Amendment. In
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 463, 464, the Court made reference to the
Eighth Amendment's prohibition against the
infliction of
"unnecessary pain" in carrying out an execution. The context makes abundantly clear
[***242] that the Court was disapproving the wanton
infliction of physical
[*393] pain, and once again not advising pragmatic analysis of punishments approved
by legislatures. n17
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n17 Petitioner Francis had been sentenced to be electrocuted for the crime of
murder. He was placed in the electric chair, and the executioner threw the switch.
Due to a mechanical difficulty, death did not result. A new death warrant was
issued fixing a second date for execution. The Court held that the proposed
execution would not constitute
cruel and unusual punishment or double jeopardy.
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Apart from these isolated uses of the word
"unnecessary," nothing in the cases suggests that it is for the courts to make a
determination of the efficacy of punishments. The decision in
Weems v. United States, supra, is not to the contrary. In
Weems the Court held that for the crime of falsifying public documents, the
punishment imposed under the Philippine Code of 15 years'
imprisonment
[**2806] at hard labor under shackles,
[***243] followed by perpetual surveillance, loss of voting rights, loss of the right
to hold public office, and loss of right to change domicile freely, was
violative of the
Eighth Amendment. The case is generally regarded as holding that a punishment may be
excessively
cruel within the meaning of the
Eighth Amendment because it is grossly out of proportion to the severity of the crime; n18 some
view the decision of the Court primarily as
[*394] a reaction to the mode of the punishment itself. n19 Under any
characterization of the holding, it is readily apparent that the decision grew
out of the Court's overwhelming abhorrence of the imposition of the particular
penalty for the particular crime; it was making an essentially moral judgment,
not a dispassionate assessment of the need
for the penalty.
The Court specifically disclaimed
"the right to assert a judgment against that of the legislature of the
expediency of the laws. . . ."
217 U.S., at 378. Thus, apart from the fact that the Court in
Weems concerned itself with the crime committed as well as the punishment imposed,
the case marks no departure from the largely unarticulable standard of extreme
[***244]
cruelty. However intractable that standard may be, that is what the
Eighth Amendment is all about. The constitutional provision is not addressed to social utility
and does not command that enlightened principles of penology always be followed.
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n18 There is no serious claim of disproportionality presented in these cases.
Murder and forcible
rape have always been regarded as among the most serious crimes. It cannot be said
that the
punishment of death is out of all proportion to the severity of these crimes.
The Court's decision in
Robinson v. California, 370 U.S. 660 (1962), can be viewed as an extension of the disproportionality doctrine of the
Eighth Amendment. The Court held that
a statute making it a crime punishable by
imprisonment to be a narcotics addict violated the
Eighth Amendment. The Court in effect ruled that the status of being an addict is not a
criminal act, and that any criminal punishment imposed for addiction exceeds
the penal power of the States. The Court made no analysis of the necessity of
imprisonment as a means of curbing addiction.
n19 See Packer, Making the Punishment Fit the Crime,
77 Harv. L. Rev. 1071, 1075 (1964).
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[***245]
By pursuing the necessity approach, it becomes even more apparent that it
involves matters outside the purview of the
Eighth Amendment. Two of the several aims of punishment are generally associated with
capital punishment --
retribution and
deterrence. It is argued that
retribution can be discounted because that, after all, is what the
Eighth Amendment seeks to eliminate. There is no authority suggesting that the
Eighth Amendment was intended to purge the
law of its retributive elements, and the Court has consistently assumed that
retribution is a legitimate dimension of the punishment of crimes. See
Williams v. New York, 337 U.S. 241, 248 (1949);
United States v. Lovett, 328 U.S. 303, 324 (1946) (Frankfurter, J., concurring). Furthermore, responsible legal thinkers of
widely varying
[*395] persuasions have debated the sociological and philosophical aspects of the
retribution question for generations, neither side being able to convince the other. n20
It would be reading a great deal into the
Eighth Amendment to hold that the punishments authorized by legislatures cannot
constitutionally reflect a retributive purpose.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n20 See Hart, The Aims of the Criminal Law,
23 Law & Contemp. Prob. 401 (1958); H. Packer, The Limits of the Criminal Sanction 37-39 (1968); M. Cohen, Reason
and Law 41-44 (1950); Report of Royal Commission on
Capital Punishment, 1949-1953, Cmd. 8932, para. 52, pp. 17-18 (1953); Hart,
Murder and the Principles of Punishment: England and the United States,
52 Nw. U. L. Rev. 433, 446-455 (1957); H. L. A. Hart, Law, Liberty and Morality 60-69 (1963).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***246]
[**2807] The less esoteric but no less controversial question is whether the
death penalty acts as a superior
deterrent. Those favoring
abolition find no evidence that it does. n21 Those favoring retention start from the
intuitive notion that
capital punishment should act as the most effective
deterrent and note that there is no convincing evidence that it does not. n22 Escape
from this empirical stalemate is sought by placing the burden of proof on the
States and concluding that they have failed to demonstrate that
capital punishment is a more effective
deterrent than
life imprisonment.
Numerous justifications have been advanced for shifting the burden, and they
[*396] are not without their rhetorical
appeal. However, these arguments are not descended from established
constitutional principles, but are born of the urge to bypass an unresolved
factual question. n23 Comparative
deterrence is not a matter that lends itself to precise measurement; to shift the burden
to the States is to provide an illusory solution to an enormously complex
problem. If it were proper to put the States to the test of demonstrating the
deterrent value of
capital punishment, we could
[***247] just as well ask them to prove the need for
life imprisonment or any other punishment. Yet I know of no convincing evidence that
life imprisonment is a more effective
deterrent than 20 years'
imprisonment, or even that a $ 10 parking ticket is a more effective
deterrent than a $ 5 parking ticket. In fact, there are some who go so far as to
challenge the notion that any punishments deter crime. n24 If the States are
unable to adduce convincing proof rebutting such assertions, does it then
follow that all punishments are suspect as being
"cruel and unusual" within the meaning of the Constitution? On the contrary, I submit that the
questions raised by the necessity approach are beyond the pale of judicial
inquiry under the
Eighth Amendment.
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n21 See,
e. g., Sellin, Homicides in Retentionist and Abolitionist States, in
Capital Punishment 135
et seq. (T. Sellin ed. 1967); Schuessler, The
Deterrent Influence of the
Death Penalty,
284 Annals 54 (1952).
n22 See,
e. g., Hoover, Statements in Favor of the
Death Penalty, in H. Bedau, The
Death Penalty in America 130 (1967 rev. ed.); Allen,
Capital Punishment: Your Protection and Mine, in The
Death Penalty in America,
supra, at 135. See also Hart, 52 Nw. U. L.
Rev.
supra, at 457; Bedau, The
Death Penalty in America,
supra, at 265-266.
[***248]
n23 See
Powell v. Texas, 392 U.S. 514, 531 (1968) (MARSHALL, J.) (plurality opinion).
n24 See,
e. g., K. Menninger, The Crime of Punishment 206-208 (1968).
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V
Today the Court has not ruled that
capital punishment is
per se violative of the
Eighth Amendment; nor has it ruled that the punishment is barred for any particular class or
classes of crimes. The substantially similar concurring opinions of MR.
JUSTICE STEWART and MR. JUSTICE WHITE, which are necessary to support the
judgment setting aside petitioners'
sentences, stop
[*397] short of reaching the ultimate question. The actual scope of the Court's
ruling, which I take to be embodied in these concurring opinions, is not
entirely clear. This much, however, seems apparent: if the legislatures are to
continue to authorize
capital
punishment for some crimes, juries and judges can no longer be permitted to make the
sentencing determination in the same manner they have in the past. n25 This approach --
not urged in oral arguments or briefs -- misconceives
[**2808] the nature of the constitutional command
[***249] against
"cruel and unusual punishments," disregards controlling case law, and demands a rigidity in capital cases
which, if possible of achievement, cannot be regarded as a welcome change.
Indeed the contrary seems to be the case.
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n25 Much in the concurring opinion of MR. JUSTICE DOUGLAS similarly suggests
that it is the
sentencing system rather than the punishment itself that is constitutionally infirm.
However, the opinion also indicates that in the wake of the Court's decision in
McGautha v. California, 402 U.S. 183 (1971), the validity of the
sentencing process is no longer open to question.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As I have earlier stated, the
Eighth Amendment
forbids the imposition of punishments that are so
cruel and inhumane as to violate society's standards of civilized conduct. The
Amendment does not prohibit all punishments the States are unable to prove
necessary to deter or control crime. The Amendment is not concerned with the
process by which a State determines
that a particular punishment
[***250] is to be imposed in a particular case. And the Amendment most assuredly does
not speak to the power of legislatures to confer
sentencing discretion on juries, rather than to fix all
sentences by statute.
The critical factor in the concurring opinions of both MR. JUSTICE STEWART and
MR. JUSTICE WHITE is the infrequency with which the penalty is imposed. This
factor is taken not as evidence of society's abhorrence
[*398] of
capital punishment -- the inference that petitioners would have the Court draw -- but as the
earmark of a deteriorated system of
sentencing. It is concluded that petitioners'
sentences must be set aside, not because the punishment is impermissibly
cruel, but because juries and judges have failed to
exercise their
sentencing discretion in acceptable fashion.
To be sure, there is a recitation cast in
Eighth Amendment terms: petitioners'
sentences are
"cruel" because they exceed that which the legislatures have deemed necessary for all
cases; n26 petitioners'
sentences are
"unusual" because they exceed that which is imposed in most cases. n27 This application
of the words of the
Eighth Amendment suggests that
capital punishment can be made to satisfy
Eighth
[***251] Amendment values if its rate of imposition is somehow multiplied; it seemingly follows
that the flexible
sentencing system created by the legislatures, and carried out by juries and judges, has
yielded more mercy than the
Eighth Amendment can stand. The implications of this approach are mildly ironical. For
example, by this measure of the
Eighth Amendment, the elimination of death-qualified juries in
Witherspoon v. Illinois, 391 U.S. 510 (1968), can only be seen in retrospect as a setback to
"the evolving
standards of
decency that mark the progress of a maturing society."
Trop v. Dulles, 356 U.S., at 101.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n26 See concurring opinion of MR. JUSTICE STEWART,
ante, at 309-310; concurring opinion of MR. JUSTICE WHITE,
ante, at 312.
n27 See concurring opinion of MR. JUSTICE STEWART,
ante, at 309-310; cf. concurring opinion of MR. JUSTICE WHITE,
ante, at 312.
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This novel formulation of
Eighth Amendment principles -- albeit necessary to satisfy the terms
[***252] of our limited grant of certiorari -- does not lie at the heart of these
concurring opinions. The decisive grievance of the opinions -- not translated
into
Eighth Amendment terms -- is that the present system of discretionary
sentencing
[*399] in capital cases has failed to produce evenhanded justice; the problem is not
that too few have been sentenced to die, but that the selection process has
followed no rational pattern. n28 This
claim of arbitrariness is not only lacking in empirical
[**2809] support, n29 but also it manifestly fails to establish that the
death penalty is a
"cruel and unusual" punishment. The
Eighth Amendment was included in the Bill of Rights to assure that certain types of punishments
would never
be imposed, not to channelize the
sentencing process. The approach of these concurring opinions has no antecedent in the
Eighth Amendment cases. It is essentially and exclusively a procedural due process argument.
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n28 This point is more heavily emphasized in the opinion of MR. JUSTICE STEWART
than in that of MR. JUSTICE WHITE. However, since MR. JUSTICE WHITE allows for
statutes providing a mandatory
death penalty for
"more narrowly defined categories" of crimes, it appears that he, too, is more concerned with a regularized
sentencing process, than with the aggregate number of death
sentences imposed for all crimes.
[***253]
n29 See
n. 12,
supra.
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This ground of decision is plainly foreclosed as well as misplaced. Only one
year ago, in
McGautha v.
California, the Court upheld the prevailing system of
sentencing in capital cases. The Court concluded:
"In light of history, experience, and the present limitations of human
knowledge, we find it quite impossible to say that committing to the
untrammeled discretion of the jury the power to pronounce life or death in
capital cases is offensive to anything in the Constitution."
402 U.S., at 207.
In reaching this decision, the Court had the benefit of extensive briefing,
full oral argument, and six months of careful deliberations. The Court's
labors are documented by 130 pages of opinions in the United States Reports.
All of the arguments and factual contentions accepted
[*400] in the concurring opinions today were considered and rejected by the Court one
year ago.
McGautha was an
exceedingly difficult case, and reasonable men could fairly disagree as to the
result. But the Court entered its judgment, and if
stare decisis means
[***254] anything, that decision should be regarded as a controlling pronouncement of
law.
Although the Court's decision in
McGautha was technically confined to the dictates of the Due Process Clause of the
Fourteenth Amendment, rather than the
Eighth Amendment as made applicable to the States through the Due Process Clause of the
Fourteenth Amendment, it would be disingenuous to suggest that today's ruling has done anything less
than overrule
McGautha in the guise of an
Eighth Amendment adjudication. It may be thought appropriate to subordinate principles of
stare decisis where the subject is as sensitive as
capital punishment and the stakes are so high, but these external considerations were no less
weighty last year. This pattern of decisionmaking will do little to inspire
confidence in the stability of the law.
While I would not undertake to make a definitive statement as to the parameters
of the
Court's ruling, it is clear that if state legislatures and the Congress wish to
maintain the availability of
capital punishment, significant statutory changes will have to be made. Since the two pivotal
concurring opinions turn on the assumption that the
punishment of death is
[***255] now meted out in a random and unpredictable manner, legislative bodies may
seek to bring their laws into compliance with the Court's ruling by providing
standards for juries and judges to follow in determining the
sentence in capital cases or by more narrowly defining the crimes for which the penalty
is to be imposed. n30 If such standards can be devised or
[*401] the crimes more meticulously defined, the result cannot be detrimental.
However, Mr. Justice Harlan's opinion for the Court in
McGautha convincingly demonstrates that all past efforts
"to identify before the fact"
the cases in which the penalty is to be imposed have been
"uniformly unsuccessful."
402 U.S., at 197. One problem is that
"the
factors which determine whether the
sentence of death is the appropriate penalty in particular cases are too complex to be
compressed within the limits of a simple formula . . . ." Report of Royal Commission o
[**2810] n
Capital Punishment, 1949-1953, Cmd. 8932, para. 498, p. 174 (1953). As the Court stated in
McGautha,
"the infinite variety of cases and facets to each case would make general
standards either meaningless 'boilerplate' or a statement
[***256] of the obvious that no jury would need."
402 U.S., at 208. But even assuming that suitable guidelines can be established, there is no
assurance that
sentencing patterns will change so long as juries are possessed of the power to determine
the
sentence or to bring in a verdict of guilt on a charge carrying a lesser
sentence; juries have not been inhibited in the exercise of these powers in the past.
Thus, unless the Court in
McGautha misjudged the
experience of history, there is little reason to believe that
sentencing standards in any form will substantially alter the discretionary character of
the prevailing system of
sentencing in capital cases. That system may fall short of perfection, but it is yet to
be shown that a different system would produce more satisfactory results.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n30 It was pointed out in the Court's opinion in
McGautha that these two alternatives are substantially equivalent.
402 U.S., at 206 n. 16.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Real change could clearly be brought about if legislatures
[***257] provided mandatory death
sentences in such a way as to deny juries the opportunity to bring in a verdict on a
lesser charge; under such a system, the death
sentence could only be avoided by a verdict of acquittal. If this is the only
alternative that the legislatures can safely pursue under today's ruling, I
would have preferred that the
Court opt for total
abolition.
[*402] It seems remarkable to me that with our basic trust in lay jurors as the
keystone in our system of criminal justice, it should now be suggested that we
take the most sensitive and important of all decisions away from them. I could
more easily be persuaded that mandatory
sentences of death, without the intervening and ameliorating impact of lay jurors, are
so arbitrary and doctrinaire that they violate the Constitution. The very
infrequency of
death penalties imposed by jurors attests their cautious and discriminating reservation of
that penalty for the most extreme cases. I had thought that nothing was
clearer in history, as we noted in
McGautha one year ago, than the American abhorrence of
"the common-law rule imposing a mandatory death
sentence on all
convicted murderers."
402 U.S., at 198.
[***258] As the concurring opinion of MR. JUSTICE MARSHALL shows,
ante, at 339, the 19th century movement away from mandatory death
sentences marked an
enlightened introduction of flexibility into the
sentencing process. It recognized that individual culpability is not always measured by
the category of the crime committed. This change in
sentencing practice was greeted by the Court as a humanizing development. See
Winston v. United States, 172 U.S. 303 (1899); cf.
Calton v. Utah, 130 U.S. 83 (1889). See also
Andres v. United States, 333 U.S. 740, 753 (1948) (Frankfurter, J., concurring). I do not see how this history
can be ignored and how it can be suggested that the
Eighth Amendment demands the elimination of the most sensitive feature of the
sentencing system.
As a general matter, the evolution of penal concepts in this country has not
been marked by great progress, nor have the results up to now been crowned with
significant success. If anywhere in the whole spectrum of criminal justice
fresh
ideas deserve sober analysis, the
sentencing and correctional area ranks high on the list. But it has
[***259] been widely accepted that mandatory
sentences for
[*403] crimes do not best serve the ends of the criminal justice system. Now, after
the long process of drawing away from the blind imposition of uniform
sentences for every person
convicted of a particular offense, we are confronted with an argument perhaps implying
that only the legislatures may determine that a
sentence of death is appropriate, without the intervening evaluation of jurors or
judges. This approach threatens to turn back the progress of penal reform,
which has moved until recently at too
[**2811] slow a rate to absorb significant setbacks.
VI
Since there is no majority of the Court on the ultimate issue presented in
these cases, the future of
capital punishment in this country has been left in an uncertain limbo. Rather than providing a
final and unambiguous answer on the basic
constitutional question, the collective impact of the majority's ruling is to
demand an undetermined measure of change from the various state legislatures
and the Congress. While I cannot endorse the process of decisionmaking that
has yielded today's result and the restraints that that result imposes on
legislative action, I am not
[***260] altogether displeased that legislative bodies have been given the opportunity,
and indeed unavoidable responsibility, to make a thorough re-evaluation of the
entire subject of
capital punishment. If today's opinions demonstrate nothing else, they starkly show that this is
an area where legislatures can act far more effectively than courts.
The legislatures are free to eliminate
capital punishment for specific crimes or to carve out limited exceptions to a general
abolition of the penalty, without adherence to the conceptual strictures of the
Eighth Amendment. The legislatures can and should make an assessment of the
deterrent influence of
capital punishment, both generally and as affecting the commission of specific types of
[*404] crimes. If
legislatures come to doubt the efficacy of
capital punishment, they can abolish it, either completely or on a selective basis. If new
evidence persuades them that they have acted unwisely, they can reverse their
field and reinstate the penalty to the extent it is thought warranted. An
Eighth Amendment ruling by judges cannot be made with such flexibility or discriminating
precision.
The world-wide trend toward limiting the use of
capital
[***261] punishment, a phenomenon to which we have been urged to give great weight, hardly points
the way to a judicial solution in this country under a written Constitution.
Rather, the change has generally come about through legislative action, often
on a trial basis and with the retention of the penalty for certain limited
classes of crimes. n31 Virtually nowhere has change been wrought by so crude a
tool as the
Eighth Amendment. The complete and unconditional
abolition of
capital punishment in this country by judicial
fiat would have undermined the careful progress of the legislative trend and
foreclosed further inquiry on many as yet unanswered questions in this area.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n31 See Patrick, The Status of
Capital Punishment: A World Perspective,
56 J. Crim. L. C. & P. S. 397 (1965). In England, for example, 1957 legislation limited
capital punishment to
murder, treason, piracy with violence, dockyards arson and some military offenses.
The
Murder (Abolition of
Death Penalty) Act 1965 eliminated the penalty for
murder on a five-year trial basis. 2 Pub. Gen. Acts, c. 71, p. 1577 (Nov. 8, 1965).
This
abolition was made permanent in 1969. See 793 Parl. Deb., H. C. (5th ser.) 1294-1298
(1969); 306 Parl. Deb., H. L. (5th ser.)
1317-1322 (1969). Canada has also undertaken limited
abolition on a five-year experimental basis. Stats. of Canada 1967-1968, 16
& 17 Eliz. 2, c. 15, p. 145.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***262]
Quite apart from the limitations of the
Eighth Amendment itself, the preference for legislative action is justified by the inability of
the courts to participate in the
[*405] debate at the level where the controversy is focused. The case against
capital punishment is not the product of legal dialectic, but rests primarily on factual claims,
the truth of which cannot be tested by conventional judicial processes. The
five opinions in support of the judgments differ in many respects, but they
share a willingness to make sweeping factual assertions, unsupported by
empirical data, concerning the manner of imposition and effectiveness of
capital punishment in this country.
[**2812] Legislatures will have the opportunity to make a
more penetrating study of these claims with the familiar and effective tools
available to them as they are not to us.
The highest judicial duty is to recognize the limits on judicial power and to
permit the democratic processes to deal with matters falling outside of those
limits. The
"hydraulic pressure[s]" n32 that Holmes spoke of as being generated by cases of great import have
propelled the Court to go beyond the limits of judicial power, while fortunately
[***263] leaving some room for legislative judgment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n32
Northern Securities Co. v.
United States, 193 U.S. 197, 401 (1904) (dissenting opinion).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
MR. JUSTICE BLACKMUN, dissenting.
I join the respective opinions of THE CHIEF JUSTICE, MR. JUSTICE POWELL, and
MR. JUSTICE REHNQUIST, and add only the following, somewhat personal, comments.
1. Cases such as these provide for me an excruciating agony of the spirit. I
yield to no one
in the depth of my distaste, antipathy, and, indeed, abhorrence, for the
death penalty, with all its aspects of physical distress and fear and of moral judgment
exercised by finite minds. That distaste is buttressed by a belief that
capital punishment serves no useful purpose that can be demonstrated. For me, it violates
childhood's training and life's experiences, and is not compatible
[*406] with the philosophical convictions I have been able to develop. It is
antagonistic to any sense of
"reverence for life." Were I a legislator, I would vote against the
death penalty
[***264] for the policy reasons argued by counsel for the respective petitioners and
expressed and adopted in the several opinions filed by the Justices who vote
to reverse these judgments.
2. Having lived for many years in a State that does not have the
death penalty, n1 that effectively
abolished it in 1911, n2 and that carried out its last execution on
February 13, 1906, n3
capital punishment had never been a part of life for me. In my State, it just did not exist. So
far as I can determine, the State, purely from a statistical
deterrence point of view, was neither the worse nor the better for its
abolition, for, as the concurring opinions observe, the
statistics prove little, if anything. But the State and its citizens accepted the fact
that the
death penalty was not to be in the arsenal of possible punishments for any crime.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Minn. Stat.
§ 609.10 (1971).
n2 Minn. Laws 1911, c. 387.
n3 See W. Trenerry,
Murder in Minnesota 163-167 (1962).
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3. I, perhaps alone among the present members of the Court,
[***265] am on judicial record as to this. As a member of the United States Court of
Appeals, I first struggled silently with the
issue of
capital punishment in
Feguer v. United States, 302 F.2d 214 (CA8 1962), cert. denied,
371 U.S. 872 (1962). The defendant in that case may have been one of the last to be executed under
federal auspices. I struggled again with the issue, and once more refrained
from comment, in my writing for an
en banc court in
Pope v. United States, 372 F.2d 710 (CA8 1967), vacated (upon acknowledgment by the Solicitor General of error revealed by the
subsequently decided
United States v. Jackson, 390 U.S. 570 (1968)) and remanded,
392 U.S. 651 (1968). Finally, in
Maxwell
[*407] v. Bishop, 398 F.2d 138 (CA8 1968), vacated and remanded,
sua sponte, by the Court on grounds not raised
below,
398 U.S. 262 (1970), I revealed, solitarily and not for the panel, my distress and concern.
398 F.2d, at 153-154. n4 And in
Jackson v. Bishop, 404 F.2d 571
[**2813] (CA8 1968), I had
[***266] no hesitancy in writing a panel opinion that held the use of the strap by
trusties upon fellow Arkansas prisoners to be a violation of the
Eighth Amendment. That, however, was in-prison punishment imposed by inmate-foremen.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4
"It is obvious, we think, that the efforts on behalf of Maxwell would not thus
be continuing, and his case reappearing in this court were it not for the fact
that it is the
death penalty, rather than
life imprisonment, which he received on his
rape conviction. This fact makes the decisional process in a case of this kind
particularly excruciating for the author of this opinion n.11 who is not
personally convinced of the
rightness of
capital punishment and who questions it as an effective
deterrent. But the advisability of
capital punishment is a policy matter ordinarily to be resolved by the legislature or through
executive clemency and not by the judiciary. We note, for what that notice may
be worth, that the
death penalty for
rape remains available under federal statutes.
18 U. S. C. § 2031;
10 U. S. C. § 920 (a)."
The designated footnote observed that my fellow judges did not join in my
comment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***267]
4. The several concurring opinions acknowledge, as they must, that until today
capital punishment was accepted and assumed as not unconstitutional
per se under the
Eighth Amendment or the
Fourteenth Amendment. This is either the flat or the implicit holding of a unanimous Court in
Wilkerson v. Utah, 99 U.S. 130, 134-135,
in 1879; of a unanimous Court
in
In re Kemmler, 136 U.S. 436, 447, in 1890; of the Court in
Weems v. United States, 217 U.S. 349, in 1910; of all those members of the Court, a majority, who addressed the
issue in
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-464, 471-472, in 1947; of Mr. Chief Justice Warren, speaking for himself and three others
(Justices Black, DOUGLAS,
[*408] and Whittaker) in
Trop v. Dulles, 356 U.S. 86, 99, in 1958; n5 in the denial of certiorari in
Rudolph v. Alabama, 375 U.S. 889, in 1963 (where, however, JUSTICES DOUGLAS, BRENNAN, and Goldberg would have
heard argument with respect to the imposition of the ultimate penalty on a
convicted rapist who had
"neither taken nor
[***268] endangered
human life"); and of Mr. Justice Black in
McGautha v. California, 402 U.S. 183, 226, decided only last Term on May 3, 1971. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5
"At the outset, let us put to one side the
death penalty as an index of the constitutional limit on punishment. Whatever the arguments
may be against
capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment
-- and they are forceful -- the
death penalty has been employed throughout our history, and, in a day when it is still
widely accepted, it cannot be said to violate the constitutional concept of
cruelty. . . ."
n6
"The
Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw
capital punishment because that penalty was in common use and authorized by law here and in the
countries from which our ancestors came at the time the Amendment was adopted.
It is inconceivable to me that the framers intended to end
capital
punishment by the Amendment. Although some people have urged that this Court should
amend the Constitution by interpretation to keep it abreast of modern ideas, I
have never believed that lifetime judges in our system have any such
legislative power."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***269]
Suddenly, however, the course of decision is now the opposite way, with the
Court evidently persuaded that somehow the passage of time has taken us to a
place of greater maturity and outlook. The argument, plausible and
high-sounding as it may be, is not persuasive, for it is only one year since
McGautha, only eight and one-half years since
Rudolph, 14 years since
Trop, and 25 years since
Francis, and we have been presented with nothing that demonstrates a significant
movement of any kind in these brief periods. The Court has just decided that
it is time to strike down the
death penalty. There would have been as much reason to do this
[*409] when any of the cited cases were decided. But the Court refrained from that
action on each of those
occasions.
[**2814] The Court has recognized, and I certainly subscribe to the proposition, that
the
Cruel and
Unusual Punishments Clause
"may acquire meaning as public opinion becomes enlightened by a humane justice."
Weems v. United States, 217 U.S., at 378. And Mr. Chief Justice Warren, for a plurality of the Court, referred to
"the evolving standards of
decency that mark the progress of a maturing
[***270] society."
Trop v. Dulles, 356 U.S., at 101. Mr. Jefferson expressed the same thought well. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7
"Some men look at constitutions with sanctimonious reverence, and deem them like
the ark of the covenant, too sacred to be touched. They ascribe to the men of
the preceding age a wisdom more than human, and suppose what they did to be
beyond amendment. I knew that age well; I belonged to it, and labored with it.
It deserved well of its country. It was very like the present, but without
the experience of the present; and forty
years of experience in government is worth a century of book-reading; and this
they would say themselves, were they to rise from the dead. . . . I know . . .
that laws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed, more enlightened, as new discoveries are
made, new truths disclosed, and manners and opinions change with the change of
circumstances, institutions must advance also, and keep pace with the times.
We might as well require a man to wear still the coat which fitted him when a
boy, as civilized society to remain ever under the regimen of their barbarous
ancestors. . . . Let us follow no such examples, nor weakly believe that one
generation is not as capable as another of taking care of itself, and of
ordering its own affairs. Let us, as our sister States have done, avail
ourselves of our reason and experience, to correct the crude essays of our
first and unexperienced, although wise, virtuous, and well-meaning
councils. And lastly, let us provide in our Constitution for its revision at
stated periods." Letter to Samuel Kercheval, July 12, 1816, 15 The Writings of Thomas Jefferson
40-42 (Memorial ed. 1904).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***271]
[*410]
My problem, however, as I have indicated, is the suddenness of the Court's
perception of progress in the human attitude since decisions of only a short
while ago.
5. To reverse the judgments in these cases is, of course, the easy choice. It
is easier to strike the balance in favor of life and against death. It is
comforting to relax in the thoughts -- perhaps the rationalizations -- that
this is the compassionate decision for a maturing society; that this is the
moral and the
"right" thing to do; that thereby we convince ourselves that we are moving down the
road toward human
decency; that we value life even though that life has taken another or others or has
grievously scarred another or others and their families; and that we are less
barbaric than we were in
1879, or in 1890, or in 1910, or in 1947, or in 1958, or in 1963, or a year
ago, in 1971, when
Wilkerson, Kemmler, Weems, Francis, Trop, Rudolph, and
McGautha were respectively decided.
This, for me, is good argument, and it makes some sense. But it is good
argument and it makes sense only in a legislative and executive way and not as
a judicial expedient. As I have said above, were I a legislator,
[***272] I would do all I could to sponsor and to vote for legislation abolishing the
death penalty. And were I the chief executive of a sovereign State, I would be sorely
tempted to exercise executive clemency as Governor Rockefeller of Arkansas did
recently just before he departed from office. There -- on the Legislative
Branch of the State or Federal Government, and secondarily, on the Executive
Branch -- is where the authority and responsibility for this kind of action
lies. The authority should not be taken over by the judiciary in the
modern guise of an
Eighth Amendment issue.
I do not sit on these cases, however, as a legislator, responsive, at least in
part, to the will of constituents.
[*411] Our task here, as must so frequently be emphasized and re-emphasized, is to
pass upon the constitutionality of legislation
[**2815] that has been enacted and that is challenged. This is the sole task for
judges. We should not allow our personal preferences as to the wisdom of
legislative and congressional action, or our distaste for such action, to guide
our judicial decision in cases such as these. The temptations
to cross that policy line are very great. In fact, as
[***273] today's decision reveals, they are almost irresistible.
6. The Court, in my view, is somewhat propelled toward its result by the
interim decision of the California Supreme Court, with one justice dissenting,
that the
death penalty is violative of that State's constitution.
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880 (Feb. 18, 1972). So far as I am
aware, that was the first time the
death penalty in its entirety has been nullified by judicial decision. Cf.
Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970), cert. denied,
post, p. 942. California's moral problem was a profound one, for more prisoners
were on death row there than in any other State. California, of course, has
the right to construe its constitution as it will. Its construction, however,
is hardly a precedent for federal adjudication.
7. I trust the Court fully appreciates what it is doing when it decides these
cases the way it does today. Not only are the
capital punishment laws of 39 States and the District of Columbia struck down, but also all those
provisions of the federal statutory structure that permit the
death penalty apparently are voided.
[***274] No longer is
capital punishment possible, I suspect, for, among other crimes, treason,
18 U. S. C. § 2381; or assassination of the President, the Vice President, or those who stand
elected to those positions,
18 U. S. C. § 1751; or assassination of a Member or member-elect of Congress,
18 U. S. C. § 351; or espionage,
18 U. S. C. § 794;
[*412] or
rape within the special maritime jurisdiction,
18 U. S. C. § 2031; or aircraft or motor vehicle destruction where death occurs,
18 U. S. C. § 34; or explosives offenses where death results,
18 U. S. C. §§ 844 (d) and (f); or train wrecking,
18 U. S. C. § 1992; or aircraft piracy,
49 U. S. C. § 1472 (i). Also in jeopardy, perhaps, are the
death penalty provisions in various Articles of the Uniform Code of Military Justice.
10 U. S. C. §§ 885, 890, 894, 899, 901, 904, 906, 913, 918, and 920. All these seem now to be
discarded without a passing reference to the reasons, or the circumstances,
that prompted their enactment, some very recent, and their retention in the
face of efforts to repeal them.
8. It is of passing interest to note a few voting facts with respect to recent
federal
death penalty legislation:
A. The aircraft piracy
[***275] statute,
49 U. S. C. § 1472 (i), was enacted September 5, 1961. The Senate vote on August 10 was 92-0.
It was announced that Senators Chavez, Fulbright, Neuberger, and Symington were
absent but that, if present, all four would vote yea. It was also announced,
on the other side of the aisle, that Senator Butler was ill and that Senators
Beall, Carlson, and Morton were absent or detained, but that those four, if
present, would vote in the affirmative. These announcements, therefore,
indicate that the true
vote was 100-0. 107 Cong. Rec. 15440. The House passed the bill without
recorded vote. 107 Cong. Rec. 16849.
B. The presidential assassination statute,
18 U. S. C. § 1751, was approved August 28, 1965, without recorded votes. 111 Cong. Rec. 14103,
18026, and 20239.
C. The Omnibus Crime Control Act of 1970 was approved January
2, 1971. Title IV thereof added the congressional assassination statute that
is now
18 U. S. C. § 351. The recorded House vote on October 7, 1970, was 341-26, with 63 not voting and
62 of those paired. 116 Cong. Rec. 35363-35364. The Senate vote on October 8
[*413] was 59-0, with 41 not voting, but with 21 of these announced as favoring
[***276] the bill. 116 Cong. Rec. 35743. Final votes after
conference were not recorded. 116 Cong. Rec. 42150, 42199.
[**2816] It is impossible for me to believe that the many lawyer-members of the House
and Senate -- including, I might add, outstanding leaders and prominent
candidates for higher office -- were callously unaware and insensitive of
constitutional overtones in legislation of this type. The answer, of course,
is that in 1961, in 1965, and in 1970 these elected representatives of the
people -- far more conscious of the temper of the times, of the maturing of
society, and of the contemporary demands for man's dignity, than are we who sit
cloistered on this Court -- took it as settled that the
death penalty then, as it always had been, was not in itself unconstitutional. Some of
those Members of Congress, I suspect, will be surprised at this Court's giant
stride today.
9. If the reservations expressed by my Brother STEWART (which, as I read his
opinion, my Brother WHITE shares) were to command support, namely, that
capital punishment may
not be unconstitutional so long as it be mandatorily imposed, the result, I
fear, will be that statutes struck down today will be re-enacted
[***277] by state legislatures to prescribe the
death penalty for specified crimes without any alternative for the imposition of a lesser
punishment in the discretion of the judge or jury, as the case may be. This
approach, it seems to me, encourages legislation that is regressive and of an
antique mold, for it eliminates the element of mercy in the imposition of
punishment. I thought we had passed beyond that point in our criminology long
ago.
10. It is not without interest, also, to note that, although the several
concurring opinions acknowledge the heinous and atrocious character of the
offenses committed by the petitioners, none of those opinions makes
[*414] reference to the misery the petitioners' crimes occasioned to the victims, to
the families of the victims, and to the communities where the offenses took
place. The arguments for the respective petitioners, particularly the oral
arguments, were
similarly and curiously devoid of reference to the victims. There is risk, of
course, in a comment such as this, for it opens one to the charge of
emphasizing the retributive. But see
Williams v. New York, 337 U.S. 241, 248 (1949). Nevertheless, these cases
[***278] are here because offenses to innocent victims were perpetrated. This fact,
and the terror that occasioned it, and the fear that stalks the streets of many
of our cities today perhaps deserve not to be entirely overlooked. Let us hope
that, with the Court's decision, the terror imposed will be forgotten by those
upon whom it was visited, and that our society will reap the hoped-for benefits
of magnanimity.
Although personally I may rejoice at the Court's result, I find it difficult to
accept or to justify as a matter of history, of law, or of constitutional
pronouncement. I fear
the Court has overstepped. It has sought and has achieved an end.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR.
JUSTICE
REHNQUIST join, dissenting.
The Court granted certiorari in these cases to consider whether the
death penalty is any longer a permissible form of punishment.
403 U.S. 952 (1971). It is the judgment of five Justices that the
death penalty, as customarily prescribed and implemented in this country today, offends the
constitutional prohibition against
cruel and unusual punishments. The reasons for that judgment are stated in
[***279] five separate opinions, expressing as many separate rationales. In my view,
none of these opinions provides a constitutionally adequate foundation for the
Court's decision.
[*415] MR. JUSTICE DOUGLAS concludes that
capital punishment is incompatible with notions of
"equal protection" that he finds to be
"implicit" in the
Eighth Amendment.
Ante, at 257. MR. JUSTICE BRENNAN bases his judgment primarily on the thesis that
the penalty
"does
[**2817] not comport with human dignity."
Ante, at 270. MR. JUSTICE STEWART concludes that the penalty is applied
in a
"wanton" and
"freakish" manner.
Ante, at 310. For MR. JUSTICE WHITE it is the
"infrequency" with which the penalty is imposed that renders its use unconstitutional.
Ante, at 313. MR. JUSTICE MARSHALL finds that
capital punishment is an impermissible form of punishment because it is
"morally unacceptable" and
"excessive."
Ante, at 360, 358.
Although the central theme of petitioners' presentations in these cases is that
the imposition of the
death penalty is
per se unconstitutional, only two of today's opinions explicitly conclude that so
sweeping a determination is mandated by the Constitution.
[***280] Both MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL call for the
abolition of all existing state and federal
capital punishment statutes. They intimate as well that no capital statute could be devised in
the future that might comport with the
Eighth Amendment. While the practical consequences of the other three opinions are less
certain, they at least do not purport to render impermissible
every possible statutory scheme for the use of
capital punishment that legislatures might hereafter devise. n1 Insofar as these latter opinions
fail,
at least explicitly,
[*416] to go as far as petitioners' contentions would carry them, their reservations
are attributable to a willingness to accept only a portion of petitioners'
thesis. For the reasons cogently set out in the CHIEF JUSTICE's dissenting
opinion (ante, at 396-403), and for reasons stated elsewhere in this opinion, I find my
Brothers' less-than-absolute-abolition judgments unpersuasive. Because those
judgments are, for me, not dispositive, I shall focus primarily on the broader
ground upon which the petitions in these cases are premised. The foundations
of my disagreement with that broader thesis are equally applicable
[***281] to each of the concurring opinions. I will, therefore, not endeavor to treat
each one separately. Nor will I attempt to predict what forms of
capital statutes, if any, may avoid condemnation in the future under the
variety of views expressed by the collective majority today. That difficult
task, not performed in any of the controlling opinions, must go unanswered
until other cases presenting these more limited inquiries arise.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 MR. JUSTICE DOUGLAS holds only that
"the
Eighth Amendment [requires] legislatures to write penal laws that are evenhanded, nonselective,
and nonarbitrary, and [requires] judges to see to it that general laws are not
applied sparsely, selectively, and spottily to unpopular groups."
Ante, at 256. The import of this rationale is that while all existing laws must
fall, it remains theoretically possible for a State or Congress to devise a
statute capable of withstanding a claim of discriminatory application. MR.
JUSTICE STEWART, in addition to reserving judgment on at least four presently
existing statutes (ante, at
307), indicates that statutes making
capital punishment mandatory for any category of crime, or providing some other means of assuring
against
"wanton" and
"freakish" application (ante, at 310), would present a difficult question that he does not reach today.
MR. JUSTICE WHITE, for somewhat different reasons, appears to come to the
conclusion that a mandatory system of punishment might prove acceptable.
Ante, p. 310.
The brief and selective references, in my opinion above and in this note, to
the opinions of other Justices obviously do not adequately summarize the
thoughtful and scholarly views set forth in their full opinions. I have tried
merely to select what seem to me to be the respective points of primary
emphasis in each of the majority's opinions.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***282]
Whatever uncertainties may hereafter surface, several of the consequences of
today's decision are unmistakably clear. The decision is plainly one of the
greatest importance.
[*417] The Court's judgment removes the death
sentences previously imposed on some 600 persons awaiting punishment in state and
federal
prisons throughout the country. At least for the present, it also bars the States and
the Federal Government from seeking
sentences of death for defendants awaiting trial on charges for which
capital
[**2818] punishment was heretofore a potential alternative. The happy event for these countable
few constitutes, however, only the most visible consequence of this decision.
Less measurable, but certainly of no less significance, is the shattering
effect this collection of views has on the root principles of
stare decisis, federalism, judicial restraint and -- most importantly -- separation of
powers.
The Court rejects as not decisive the clearest evidence that the Framers of the
Constitution and the authors of the
Fourteenth Amendment believed that those documents posed no barrier to the
death penalty. The Court also brushes aside an unbroken line of precedent reaffirming
[***283] the heretofore
virtually unquestioned constitutionality of
capital punishment. Because of the pervasiveness of the constitutional ruling sought by
petitioners, and accepted in varying degrees by five members of the Court,
today's departure from established precedent invalidates a staggering number of
state and federal laws. The
capital punishment laws of no less than 39 States n2 and the District of Columbia are nullified.
In addition, numerous provisions of the Criminal Code of the United States and
of the Uniform Code of Military
[*418] Justice also are voided. The Court's judgment
not only wipes out laws presently in existence, but denies to Congress and to
the legislatures of the 50 States the power to adopt new policies contrary to
the policy selected by the Court. Indeed, it is the view of two of my Brothers
that the people of each State must be denied the prerogative to amend their
constitutions to provide for
capital punishment even selectively for the most
heinous crime.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 While statutes in 40 States permit
capital punishment for a variety of crimes, the constitutionality of a very few mandatory
statutes remains undecided. See concurring opinions by MR. JUSTICE STEWART and
MR. JUSTICE WHITE. Since Rhode Island's only capital statute --
murder by a life term prisoner -- is mandatory, no law in that State is struck down
by virtue of the Court's decision today.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***284]
In terms of the constitutional role of this Court, the impact of the majority's
ruling is all the greater because the decision encroaches upon an area squarely
within the historic prerogative of the legislative branch -- both state and
federal -- to protect the citizenry through the designation of penalties for
prohibitable conduct. It is the very sort of judgment that the legislative
branch is competent to make and for which the judiciary is ill-equipped.
Throughout our
history, Justices of this Court have emphasized the gravity of decisions
invalidating legislative judgments, admonishing the nine men who sit on this
bench of the duty of self-restraint, especially when called upon to apply the
expansive due process and
cruel and unusual punishment rubrics. I can recall no case in which, in the name of deciding
constitutional questions, this Court has subordinated national and local
democratic processes to such an extent. Before turning to address the thesis
of petitioners' case against
capital punishment -- a thesis that has proved, at least in large measure, persuasive to a
majority of this Court -- I first will set out the principles that counsel
against the Court's sweeping
[***285] decision.
I
The Constitution itself poses the first obstacle to petitioners' argument that
capital punishment is
per se unconstitutional. The relevant provisions are the Fifth,
[*419] Eighth, and
Fourteenth Amendments. The first of these provides in part:
"No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury . . . ; nor shall any
person be subject for the same offence to be twice put in jeopardy of life or
limb; . . . nor be deprived of life, liberty, or property, without due process
of law . . . ."
Thus, the Federal Government's power was restricted in order to guarantee
[**2819] those charged with crimes that the prosecution would have only a single
opportunity to seek imposition of the
death penalty and that the
death penalty could not be exacted without due process and a grand jury indictment. The
Fourteenth Amendment, adopted about 77 years after the Bill of Rights, imposed the due process
limitation of the Fifth Amendment upon the States' power to authorize
capital punishment.
The
Eighth Amendment, adopted at the same time as the Fifth, proscribes
"cruel and unusual" punishments.
[***286] In an effort to
discern its meaning, much has been written about its history in the opinions of
this Court and elsewhere. n3 That
history need not be restated here since, whatever punishments the Framers of
the Constitution may have intended to prohibit under the
"cruel and unusual" language, there cannot be the slightest doubt that they intended no absolute
bar on the Government's authority to impose the
death penalty.
McGautha v.
[*420] California, 402 U.S. 183, 226 (1971) (separate opinion of Black, J.). As much is made clear by the three
references to
capital punishment in the Fifth Amendment. Indeed, the same body that proposed the
Eighth Amendment also provided, in the first Crimes Act of 1790, for the
death penalty for a number of offenses. 1 Stat. 112.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 For a thorough presentation of the history of the
Cruel and
Unusual Punishment Clause see MR. JUSTICE MARSHALL's opinion
today,
ante, at 316-328. See also
Weems v. United States, 217 U.S. 349, 389-409 (1910) (White, J., dissenting);
O'Neil v. Vermont, 144 U.S. 323, 337 (1892) (Field, J., dissenting); Granucci,
"Nor
Cruel and Unusual Punishments
Inflicted:" The Original Meaning,
57 Calif. L. Rev. 839 (1969).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***287]
Of course, the specific prohibitions within the Bill of Rights are limitations
on the exercise of power; they are not an affirmative grant of power to the
Government. I, therefore, do not read the several references to
capital punishment as foreclosing this Court from considering whether the
death penalty in a particular case offends the Eighth and
Fourteenth Amendments. Nor are
"cruel and unusual punishments" and
"due process of law" static concepts whose meaning and scope were sealed at the time of their
writing. They were designed to be dynamic and to gain meaning through
application to specific circumstances, many of which were
not contemplated by their authors. While flexibility in the application of
these broad concepts is one of the hallmarks of our system of government, the
Court is not free to read into the Constitution a meaning that is plainly at
variance with its language. Both the language of the Fifth and
Fourteenth Amendments and the history of the
Eighth Amendment confirm beyond doubt that the
death penalty was considered to be a constitutionally permissible punishment. It is,
however, within the historic process of constitutional adjudication to
challenge
[***288] the imposition of the
death penalty in some barbaric manner or as a penalty wholly disproportionate to a
particular criminal act. And in making such a judgment in a case before it, a
court may consider contemporary standards to the extent they are relevant.
While this weighing of a punishment against the
Eighth Amendment standard on a case-by-case basis is consonant with history and precedent, it
is not what
[*421] petitioners demand in these cases. They seek
nothing less than the total
abolition of
capital punishment by judicial fiat.
II
Petitioners assert that the constitutional issue is an open one uncontrolled by
prior decisions of this Court. They view the several cases decided under the
Eighth Amendment as assuming the constitutionality of the
death penalty without focusing squarely upon the issue. I do not believe that the case law
can be so easily cast aside. The Court on numerous occasions has both assumed
[**2820] and asserted the constitutionality of
capital punishment. In several cases that assumption provided a necessary foundation for the
decision, as the issue was whether a particular means of carrying out a capital
sentence would be allowed
to
[***289] stand. Each of those decisions necessarily was premised on the assumption
that some method of exacting the penalty was permissible.
The issue in the first capital case in which the
Eighth Amendment was invoked,
Wilkerson v. Utah, 99 U.S. 130 (1879), was whether carrying out a death
sentence by public shooting was
cruel and unusual punishment. A unanimous Court upheld that form of execution, noting first that the
punishment itself, as distinguished from the mode of its
infliction, was
"not pretended by the counsel of the prisoner" (
id., at 137) to be
cruel and unusual. The Court went on to hold that:
"Cruel and unusual punishments are forbidden by the Constitution, but the authorities . . . are quite
sufficient to show that the punishment of shooting as a mode of executing the
death penalty for the crime of
murder in the first degree is not included in that category . . . ."
Id., at 134-135.
Eleven years later, in
In re Kemmler, 136 U.S. 436 (1890), the Court again faced a question involving the
[*422] method of carrying out a capital
sentence. On review of a denial of habeas corpus relief
[***290] by the Supreme Court of
New York, this Court was called on to decide whether electrocution, which only
very recently had been adopted by the New York Legislature as a means of
execution, was impermissibly
cruel and unusual in violation of the
Fourteenth Amendment. n4 Chief Justice Fuller, speaking for the entire Court, ruled in favor of the
State. Electrocution had been selected by the legislature, after careful
investigation, as
"the most humane and practical method known to modern science of carrying into
effect the
sentence of death."
Id., at 444. The Court drew a clear line between the penalty itself and the mode of its
execution:
"Punishments are
cruel when they involve
torture or a lingering death; but the
punishment of death
[*423] is not
cruel, within the meaning of that word as used in the Constitution. It implies there
something inhuman and barbarous, something more than the mere extinguishment of
life."
Id., at 447.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The Court pointed out that the
Eighth
Amendment applied only to the Federal Government and not to the States. The Court's
power in relation to state action was limited to protecting privileges and
immunities and to assuring due process of law, both within the
Fourteenth Amendment. The standard -- for purposes of due process -- was held to be whether the
State had exerted its authority,
"within the limits of those fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions."
136 U.S., at 448. The State of Georgia, in No. 69-5003 and No. 69-5030, has placed great
emphasis on this discussion in
In re Kemmler, 136 U.S. 436 (1890), and has urged that the instant cases should all be decided under the more
expansive tests of due process rather that under the
Cruel and
Unusual Punishments Clause
per se. Irrespective whether the decisions of this Court are viewed as
"incorporating" the
Eighth Amendment (see
Robinson v. California, 370 U.S. 660 (1962);
Powell v. Texas, 392 U.S. 514 (1968)), it seems clear that the tests for applying these two provisions are
fundamentally identical. Compare Mr. Justice Frankfurter's test in
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470 (1947) (concurring opinion), with Mr. Chief Justice Warren's test in
Trop v. Dulles, 356 U.S. 86, 100-101 (1958).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***291]
More than 50 years later, in
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), the Court considered a case in which, due to a mechanical malfunction,
Louisiana's initial attempt to electrocute a
convicted murderer had failed. Petitioner sought
[**2821] to block a second attempt to execute the
sentence on the ground that to do so would constitute
cruel and unusual punishment. In the
plurality opinion written by Mr. Justice Reed, concurred in by Chief Justice
Vinson and Justices Black and Jackson, relief was denied. Again the Court
focused on the manner of execution, never questioning the propriety of the
death
sentence itself.
"The case before us does not call for an examination into any punishments except
that of death. . . . The traditional humanity of modern Anglo-American law
forbids the
infliction of unnecessary pain in the execution of the death
sentence. . . .
". . . The
cruelty against which the Constitution protects a
convicted man is
cruelty inherent in the method of punishment, not the necessary suffering involved in
any method employed to extinguish life humanely."
Id., at 463-464.
Mr. Justice
[***292] Frankfurter, unwilling to dispose of the case under the
Eighth Amendment's specific prohibition, approved the second execution attempt under the Due
Process Clause. He concluded that
"a State may be
found to deny a person due process by treating even one guilty of crime in a
manner that violates standards of
[*424]
decency more or less universally accepted though not when it treats him by a mode
about which opinion is fairly divided."
Id., at 469-470.
The four dissenting Justices, although finding a second attempt at execution to
be impermissibly
cruel, expressly recognized the validity of
capital punishment:
"In determining whether the proposed procedure is unconstitutional, we must
measure it against a lawful electrocution. . . . Electrocution, when
instantaneous,
can be
inflicted by a state in conformity with due process of law. . . .
"The all-important consideration is that the execution shall be so instantaneous
and substantially painless that the punishment shall be reduced, as nearly as
possible, to no more than that of death itself."
Id., at 474 (original emphasis).
Each of these cases involved the affirmance of a death
sentence
[***293] where its validity was attacked as violating the
Eighth Amendment. Five opinions were written in these three cases, expressing the views of 23
Justices. While in the narrowest sense it is correct to say that in none was
there a frontal attack upon the constitutionality of the
death penalty, each opinion went well beyond an unarticulated assumption of validity. The
power of the States to impose
capital punishment was repeatedly and expressly recognized.
In addition to these cases in which the constitutionality of the
death penalty was a necessary foundation for the decision, those who today would have this
Court undertake the absolute
abolition of the
death penalty also must reject the opinions of other cases stipulating or assuming the
constitutionality of
capital punishment.
Trop v. Dulles, 356 U.S. 86, 99, 100 (1958);
Weems v. United States, 217 U.S. 349, 382, 409 (1910)
[*425] (White, J., joined by Holmes,
J., dissenting). n5 See also
McGautha v. California, 402 U.S., at 226 (separate opinion of Black, J.);
Robinson v. California, 370 U.S. 660, 676 (1962) (DOUGLAS,
[***294] J., concurring).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Mr. Justice White stated:
"Death was a well-known method of punishment prescribed by law, and it was of
course painful, and in that sense was
cruel. But the
infliction of this punishment was clearly not prohibited by the word
cruel, although that word manifestly was intended to forbid the resort to barbarous
and unnecessary methods of bodily
torture, in executing even the penalty of death."
217 U.S., at 409.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The plurality opinion in
Trop v. Dulles, supra, is of special interest since it is this opinion, in large measure, that
provides the foundation for the present
[**2822] attack on the
death penalty. n6 It is anomalous that the standard urged
by petitioners --
"evolving standards of
decency that mark the progress of a maturing society"
(356 U.S., at 101) -- should be derived from an opinion that so unqualifiedly rejects their
arguments. Chief Justice Warren, joined by Justices Black, DOUGLAS, and
Whittaker, stated flatly:
"At the
[***295] outset, let us put to one side the
death penalty as an index of the constitutional limit on punishment. Whatever the arguments
may be against
capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment
-- and they are forceful -- the
death penalty has been employed throughout our history, and, in a day when it is still
widely accepted, it cannot be said to violate the constitutional concept of
cruelty."
Id., at 99.
The issue in
Trop was whether forfeiture of citizenship was a
cruel and unusual punishment when imposed on
[*426] a wartime deserter who had gone
"over the hill" for less than a day and had willingly surrendered. In examining the
consequences of the relatively novel
punishment of denationalization, n7 Chief Justice Warren drew a line between
"traditional" and
"unusual" penalties:
"While the State has the power to punish, the [Eighth] Amendment stands to
assure that this power be exercised within the limits of civilized standards.
Fines,
imprisonment and even execution may be imposed depending upon the enormity of the crime,
but any technique outside the bounds of these traditional penalties is
constitutionally
[***296] suspect."
Id., at 100.
The plurality's repeated disclaimers of any attack on
capital punishment itself must be viewed as more than offhand dicta since those views were
written in direct response to the strong language in Mr. Justice Frankfurter's
dissent arguing that denationalization could not be a disproportionate penalty
for a concededly capital offense. n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 See Part III,
infra.
n7 In footnote 32, at 100-101, the plurality opinion indicates that
denationalization
"was
never explicitly sanctioned by this Government until 1940 and never tested
against the Constitution until this day."
n8
"It seems scarcely arguable that loss of citizenship is within the
Eighth Amendment's prohibition because disproportionate to an offense that is capital and has
been so from the first year of Independence. . . . Is constitutional dialectic
so empty of reason that it can be seriously urged that loss of citizenship is a
fate worse than death?"
Id., at 125.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The most
[***297] recent precedents of this Court --
Witherspoon v. Illinois, 391 U.S. 510 (1968), and
McGautha v. California, supra -- are also premised to a significant degree on the constitutionality of the
death penalty. While the scope of review in both cases was limited to questions involving
the procedures for selecting juries
[*427] and regulating their deliberations in capital cases, n9 those opinions were
"singularly academic exercise[s]" n10 if the members of this Court were prepared at those times to find in the
Constitution the
complete prohibition of the
death penalty. This is especially true of Mr. Justice Harlan's opinion for the Court in
McGautha, in which, after a full review of the history of
capital punishment, he concluded that
"we find it
[**2823] quite impossible to say that committing to the untrammeled discretion of the
jury the power to pronounce life or death in capital cases is offensive to
anything in the Constitution."
Id., at 207. n11
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9
398 U.S. 936 (1970);
402 U.S., at 306 (BRENNAN, J., dissenting). While the constitutionality
per se of
capital punishment has been assumed almost without question, recently members of this Court have
expressed the desire to consider the constitutionality of the
death penalty with respect to its imposition for specific crimes.
Rudolph v. Alabama, 375 U.S. 889 (1963) (dissent from the denial of certiorari).
[***298]
n10 Brief for Respondent in
Branch v.
Texas, No.
69-5031, p. 6.
n11 While the implicit assumption in
McGautha v. California, 402 U.S. 183 (1971), of the acceptability of death as a form of punishment must prove troublesome
for those who urge total
abolition, it presents an even more severe problem of
stare decisis for those Justices who treat the
Eighth Amendment essentially as a
process prohibition. MR. JUSTICE DOUGLAS, while stating that the Court is
"now imprisoned in . . .
McGautha" (ante, at 248), concludes that
capital punishment is unacceptable precisely because the procedure governing its imposition is
arbitrary and discriminatory. MR. JUSTICE STEWART, taking a not dissimilar
tack on the merits, disposes of
McGautha in a footnote reference indicating that it is not applicable because the
question there arose under the Due Process Clause.
Ante, at 310 n. 12. MR. JUSTICE WHITE, who also finds the
death penalty
intolerable because of the process for its implementation, makes no attempt to
distinguish
McGautha's clear holding. For the reasons expressed in the CHIEF JUSTICE's opinion,
McGautha simply cannot be distinguished.
Ante, at 399-403. These various opinions would, in fact, overrule that recent
precedent.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***299]
[*428] Perhaps enough has been said to demonstrate the unswerving position that this
Court has taken in opinions spanning the last hundred years. On virtually
every occasion that any opinion has touched on the question of the
constitutionality of the
death penalty, it has been asserted affirmatively, or tacitly assumed, that the Constitution
does not prohibit the penalty. No Justice of the Court, until today, has
dissented from this consistent reading of the Constitution. The petitioners in
these cases now before the Court cannot fairly avoid the weight of this
substantial body of precedent merely by asserting that there is no prior
decision precisely in point.
Stare decisis, if it is a doctrine
founded on principle, surely applies where there exists a long line of cases
endorsing or necessarily assuming the validity of a particular matter of
constitutional interpretation.
Green v. United States, 356 U.S. 165, 189-193 (1958) (Frankfurter, J., concurring). While these
oft-repeated expressions of unchallenged belief in the constitutionality of
capital punishment may not justify a summary disposition of the constitutional question before
[***300] us, they are views expressed and joined in over the years by no less than 29
Justices of this Court and therefore merit the greatest respect. n12 Those who
now resolve to set those views aside indeed have a heavy burden.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 This number includes all the Justices who participated in
Wilkerson v. Utah, 99 U.S. 130 (1879),
Kemmler, and
Louisiana ex rel. Francis as well as those who joined in the plurality and dissenting opinions
in
Trop and the dissenting opinion in
Weems.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
III
Petitioners seek to avoid the authority of the foregoing cases, and the weight
of express recognition in the Constitution itself, by reasoning which will not
withstand analysis. The thesis of petitioners' case derives from several
opinions in which members of this Court
[*429] have recognized the dynamic nature of the prohibition against
cruel and unusual punishments. The final meaning of those words was not set in 1791. Rather, to use the
words of Chief Justice Warren speaking for a plurality of the
[***301] Court in
Trop v. Dulles, 356 U.S., at 100-101:
"The words of the Amendment are not precise, and . . . their scope is not
static. The Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."
But this was not new doctrine. It was the approach to the
Eighth Amendment taken by Mr. Justice
McKenna in his opinion for the Court in
Weems v. United States, 217 U.S. 349 (1910). Writing for four
[**2824] Justices sitting as the majority of the six-man Court deciding the case, he
concluded that the clause must be
"progressive"; it is not
"fastened to the obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice."
Id., at 378. The same test was offered by Mr. Justice Frankfurter in his separate
concurrence in
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 469. While he rejected the notion that the
Fourteenth Amendment made the
Eighth Amendment fully applicable to the States, he nonetheless found as a matter of due
process that the States were prohibited from
"treating even one guilty of crime
[***302] in a manner that violates standards of
decency more or less universally accepted."
Whether
one views the question as one of due process or of
cruel and unusual punishment, as I do for convenience in this case, the issue is essentially the same. n13
The fundamental premise upon which either standard is based is that notions of
what constitutes
cruel and unusual punishment or due process do evolve.
[*430] Neither the Congress nor any state legislature would today tolerate
pillorying, branding, or cropping or nailing of the ears -- punishments that
were in existence during our colonial era. n14 Should, however, any such
punishment be prescribed, the courts would certainly enjoin its execution. See
Jackson v. Bishop, 404 F.2d 571 (CA8 1968). Likewise, no court would approve any method of implementation of the death
sentence found to involve unnecessary
cruelty in light of presently available alternatives. Similarly, there may well be a
process of evolving attitude with respect to the application of the death
sentence for particular crimes. n15 See
McGautha v. California, 402 U.S., at 242 (DOUGLAS, J., dissenting).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 See n.4,
supra.
[***303]
n14 See,
e. g.,
Ex parte Wilson, 114 U.S. 417, 427-428 (1885).
n15 See Part VII,
infra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
But we are not asked to consider the permissibility of any of the several
methods employed in carrying out the death
sentence. Nor are we asked, at least as part of the core submission in these cases, to
determine whether the penalty might be a grossly
excessive punishment for some specific criminal conduct. Either inquiry would call for
a discriminating evaluation of particular means, or of the relationship between
particular conduct and its punishment. Petitioners' principal argument goes
far beyond the traditional process of case-by-case inclusion and exclusion.
Instead the argument insists on an unprecedented constitutional rule of
absolute prohibition of
capital punishment for any crime, regardless of its depravity and impact on society. In calling
for a precipitate and final judicial end to this form of penalty as offensive
to evolving standards of
decency, petitioners would have this Court abandon the traditional and more refined
approach consistently followed in its prior
[***304]
Eighth Amendment precedents. What they are saying, in effect, is that the evolutionary
[*431] process has come suddenly to an end; that the ultimate wisdom as to the
appropriateness of
capital punishment under all circumstances, and for all future generations, has somehow been
revealed.
The prior opinions of this Court point with great clarity to reasons why those
of us who sit on this Court at a particular time should act with restraint
before assuming, contrary to a century of precedent, that we now know the
answer for all time to come. First, where as here, the language of the
applicable provision provides great leeway and where the underlying social
policies are felt to be of vital importance, the temptation to read personal
preference into the Constitution is
understandably great. It is too easy to propound our subjective standards of
wise policy under the rubric of
[**2825] more or less universally held standards of
decency. See
Trop v. Dulles, 356 U.S., at 103 (Warren, C. J.), 119-120 (Frankfurter, J., dissenting);
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470-471 (Frankfurter, J., concurring);
Weems v. United States, 217 U.S., at 378-379
[***305] (McKenna, J.).
The second consideration dictating judicial self-restraint arises from a proper
recognition of the respective roles of the legislative and judicial branches.
The designation of punishments for crimes is a matter peculiarly within the
sphere of the state and federal legislative bodies. See,
e. g.,
In re Kemmler, 136 U.S., at 447;
Trop v. Dulles, 356 U.S., at 103. When asked to encroach on the legislative
prerogative we are well counseled to proceed with the utmost reticence. The
review of legislative choices, in the performance of our duty to enforce the
Constitution, has been characterized most appropriately by
Mr. Justice Holmes as
"the gravest and most delicate duty that this Court is called on to perform."
Blodgett v. Holden, 275 U.S. 142, 147-148 (1927) (separate opinion).
[*432] How much graver is that duty when we are not asked to pass on the
constitutionality of a single penalty under the facts of a single case but
instead are urged to overturn the legislative judgments of 40 state
legislatures as well as those of Congress. In so doing is the majority able to
claim, as did
[***306] the Court in
Weems, that it appreciates
"to the fullest the wide range of power that the legislature possesses to adapt
its penal laws to conditions as they may exist and punish the crimes of men
according to their forms and frequency"?
217 U.S., at 379. I think not. No
more eloquent statement of the essential separation of powers limitation on our
prerogative can be found than the admonition of Mr. Justice Frankfurter,
dissenting in
Trop. His articulation of the traditional view takes on added significance where
the Court undertakes to nullify the legislative judgments of the Congress and
four-fifths of the States.
"What is always basic when the power of Congress to enact legislation is
challenged is the appropriate approach to judicial review of congressional
legislation . . . . When the power of Congress to pass a statute is
challenged, the function of this Court is to determine whether legislative
action lies clearly outside the constitutional grant of power to which it has
been, or may fairly be, referred. In making this determination, the Court sits
in judgment on the action of a co-ordinate branch of the Government while
keeping unto itself
[***307] -- as it must under our constitutional system -- the final determination of
its own power to act. . . .
"Rigorous observance of the difference between limits of power and wise exercise
of power -- between
questions of authority and questions of prudence -- requires the most alert
appreciation of this decisive but subtle relationship of two concepts that too
easily coalesce. No less does it require a
[*433] disciplined will to adhere to the difference. It is not easy to stand aloof
and allow want of wisdom to prevail, to disregard one's own strongly held view
of what is wise in the conduct of affairs. But it is not the business of this
Court to pronounce policy. It must observe a fastidious regard for limitations
on its own power, and this precludes the Court's giving effect to its own
notions of what is wise or politic. That self-restraint is of the essence in
the observance of the judicial oath, for the Constitution has not authorized
the judges to sit in judgment on the wisdom of what Congress and the Executive
Branch do."
356 U.S., at 119-120.
[**2826] See also Mr. Justice White's dissenting opinion in
Weems v. United States, 217 U.S., at 382.
[***308]
IV
Although determining the range of available punishments for a particular crime
is a legislative function, the very presence of the
Cruel and
Unusual Punishments Clause within the Bill of Rights requires, in the context of a specific case, that
courts decide whether particular acts of the Congress offend that Amendment.
The Due Process Clause of the
Fourteenth Amendment imposes on the judiciary a similar obligation to scrutinize state legislation.
But the proper exercise of that constitutional obligation in the cases before
us today must be founded on a full recognition of the several considerations
set forth above -- the affirmative references to
capital punishment in the Constitution, the prevailing precedents of this Court, the limitations
on the exercise of our power imposed by tested principles of judicial
self-restraint, and the duty to avoid encroachment on the powers conferred upon
state and federal legislatures. In the face of these considerations, only the
most conclusive
[*434] of objective demonstrations could warrant this Court in holding
capital punishment
per se unconstitutional. The burden of seeking so sweeping a decision against such
formidable
[***309] obstacles is almost insuperable. Viewed from this perspective, as I believe
it must be, the case against the
death penalty falls far short.
Petitioners' contentions are premised, as indicated above, on the long-accepted
view that concepts embodied in the Eighth and
Fourteenth Amendments evolve. They present, with skill and persistence, a list of
"objective indicators" which are said to demonstrate that prevailing standards of human
decency have progressed to the final point of requiring the Court to hold, for all
cases and for all time, that
capital punishment is unconstitutional.
Briefly summarized, these proffered indicia of contemporary standards of
decency include the following: (i) a worldwide trend toward the disuse of the
death penalty; n16 (ii) the reflection in the scholarly literature of a progressive
rejection of
capital punishment founded essentially on moral opposition to such treatment; n17 (iii) the
decreasing numbers of executions over the last 40 years and especially over the
last decade; n18 (iv) the
[*435] small number of
[**2827] death
sentences rendered in relation to the number of cases in which they might have been
imposed; n19 and (v) the
[***310] indication of public abhorrence of
[*436] the penalty reflected in the circumstance that executions are no longer public
affairs. n20 The foregoing is an incomplete summary but it touches the major
bases of petitioners' presentation. Although they are not appropriate for
consideration as objective evidence, petitioners strongly urge two additional
propositions. They contend, first, that the penalty survives public
condemnation only through the infrequency, arbitrariness, and discriminatory
nature of its application, and, second, that there no longer exists any
legitimate justification for the utilization of the ultimate penalty. These
contentions, which have proved persuasive to several of the Justices
constituting the majority, deserve separate consideration and will be
considered in the ensuing sections. Before turning to those arguments, I first
address the argument based on
"objective" factors.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 See,
e. g., T. Sellin, The
Death Penalty, A Report for the Model Penal Code Project of the American Law Institute
(1959); United Nations, Department of Economic and Social Affairs,
Capital Punishment (1968); 2 National Commission on Reform of Federal Criminal Laws, Working
Papers, 1351 n. 13 (1970).
[***311]
n17 The literature on the moral question is legion. Representative collections
of the strongly held views on both sides may be found in H. Bedau, The
Death Penalty in America (1967 rev. ed.), and in Royal Commission on
Capital Punishment, Minutes of Evidence (1949-1953).
n18 Department of Justice, National Prisoner
Statistics No. 46,
Capital Punishment 1930-1970 (Aug. 1971) (191 executions during the 1960's; no executions since
June 2, 1967); President's Commission on Law Enforcement and Administration of
Justice, The Challenge of Crime in a Free Society 143 (1967) ("the most salient characteristic of
capital punishment is that it is infrequently applied").
Petitioners concede, as they must, that little weight can be given to the lack
of executions in recent years. A
de facto moratorium has existed for five years now while cases challenging the
procedures for implementing the capital
sentence have been re-examined by this Court.
McGautha v. California, 402 U.S. 183 (1971);
Witherspoon v. Illinois, 391 U.S. 510 (1968). The infrequency of executions during the years before the moratorium became
fully effective may be attributable in
part to decisions of this Court giving expanded scope to the criminal
procedural protections of the Bill of Rights, especially under the Fourth and
Fifth Amendments.
E. g., Miranda v. Arizona, 384 U.S. 436 (1966);
Mapp v. Ohio, 367 U.S. 643 (1961). Additionally, decisions of the early 1960's amplifying the scope of the
federal habeas corpus remedy also may help account for a reduction in the
number of executions.
E. g., Fay v. Noia, 372 U.S. 391 (1963);
Townsend v. Sain, 372 U.S. 293 (1963). The major effect of either expanded procedural protections or extended
collateral remedies may well have been simply to postpone the date of execution
for some capital offenders, thereby leaving them ultimately in the moratorium
limbo.
[***312]
n19 An exact figure for the number of death
sentences imposed by the
sentencing authorities -- judge or jury -- in the various jurisdictions is difficult to
determine. But the National Prisoner
Statistics (hereafter NPS) show the numbers of persons received at the state and federal
prisons under
sentence of death. This number, however, does not account for those who may have been
sentenced and retained in local facilities during the pendency of their
appeals. Accepting with this reservation the NPS figures as a minimum, the
most recent
statistics show that at least 1,057 persons were sentenced to death during the decade of
the 1960's. NPS,
supra, n. 18, at 9.
No fully reliable
statistics are available on the nationwide ratio of death
sentences to cases in which death was a statutorily permissible punishment. At oral
argument, counsel for petitioner in No. 69-5003 estimated that the ratio is 12
or 13 to one. Tr. of Oral Arg. in
Furman v.
Georgia, No.
69-5003, p. 11. Others have found a higher correlation. See McGee,
Capital Punishment as Seen by a Correctional Administrator,
28 Fed. Prob., No. 2, pp. 11, 12 (1964) (one out of every five, or 20%, of persons
convicted of
murder received the
death penalty in California); Bedau, Death
Sentences in New Jersey 1907-1960,
19 Rutgers L. Rev. 1 (1964) (between 1916 and 1955, 157 out of 652 persons charged with
murder received the death
sentence in New Jersey -- about 20%; between 1956 and 1960, 13 out of 61 received the
death
sentence -- also about 20%); H. Kalven
& H. Ziesel, The American Jury 435-436 (1966) (21 of 111
murder cases resulted in death
sentences during
three representative years during the mid-1950's); see also Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime
& Delin. 132 (1969).
[***313]
n20 See,
e. g.,
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied,
406 U.S. 958 (1972); Goldberg
& Dershowitz, Declaring the
Death Penalty Unconstitutional,
83 Harv. L. Rev. 1773, 1783 (1970). But see F. Frankfurter, Of Law and Men 97-98 (1956) (reprint of testimony
before the Royal Commission on
Capital Punishment).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Any attempt to discern contemporary standards of
decency through the review of objective factors must take into account several
overriding considerations which petitioners choose to discount or ignore. In a
democracy
[*437] the first indicator of the public's attitude must always be
found in the legislative judgments of the people's chosen representatives. MR.
JUSTICE MARSHALL's opinion today catalogues the salient
statistics. Forty
States, n21 the District of Columbia, and the Federal Government still
authorize the
death penalty for a wide variety of
[**2828] crimes. That number has remained relatively static since the end of World War
I.
Ante, at 339-341. That does not mean,
[***314] however, that
capital punishment has become a forgotten issue in the legislative arena. As recently as
January, 1971, Congress approved the
death penalty for congressional assassination.
18 U. S. C. § 351. In 1965 Congress added the
death penalty for presidential and vice presidential assassinations.
18 U. S. C. § 1751. Additionally, the aircraft piracy statute passed in 1961 also carries the
death penalty.
49 U. S. C. § 1472 (i). MR. JUSTICE BLACKMUN's dissenting opinion catalogues the impressive ease
with which each of these statutes was approved.
Ante, at 412-413. On the converse side, a bill proposing the
abolition of
capital punishment for all federal crimes was introduced in 1967 but failed to reach the Senate
floor. n22
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n21 Nine States have
abolished
capital punishment without resort to the courts. See H. Bedau,
supra, n. 17, at 39. California has been the only State to abolish
capital punishment judicially.
People v. Anderson, supra.
n22 Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures
of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. (1968).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***315]
At the state level, New York, among other States, has recently undertaken
reconsideration of its capital crimes. A law passed
in 1965 restricted the use of
capital punishment to the crimes of
murder of a police officer and
murder by a person serving a
sentence of
life imprisonment. N. Y. Penal Code
§ 125.30 (1967).
I pause here to state that I am at a loss to understand
[*438] how those urging this Court to pursue a course of
absolute
abolition as a matter of constitutional judgment can draw any support from the New York
experience. As is also the case with respect to recent legislative activity in
Canada n23 and Great Britain, n24 New York's decision to restrict the
availability of the
death penalty is a product of refined and discriminating legislative judgment, reflecting,
not the total rejection of
capital punishment as inherently
cruel, but a desire to limit it to those circumstances in which legislative judgment
deems retention to be in the public interest. No such legislative flexibility
is
permitted by the contrary course petitioners urge this Court to follow. n25
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n23 Canada has recently undertaken a five-year experiment -- similar to that
conducted in England -- abolishing the
death penalty for most crimes. Stats. of Canada 1967-1968, 16
& 17 Eliz. 2, c. 15, p. 145. However,
capital punishment is still prescribed for some crimes, including
murder of a police officer or corrections official, treason, and piracy.
[***316]
n24 Great Britain, after many years of controversy over the
death penalty, undertook a five-year experiment in
abolition in 1965.
Murder (Abolition of
Death Penalty) Act 1965, 2 Pub. Gen. Acts, c. 71, p. 1577. Although
abolition for
murder became final in 1969, the penalty was retained for several
crimes, including treason, piracy, and dockyards arson.
n25 See n. 62,
infra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In addition to the New York experience, a number of other States have
undertaken reconsideration of
capital punishment in recent years. In four States the penalty has been put to a vote of the
people through public referenda -- a means likely to supply objective evidence
of community
standards. In Oregon a referendum seeking
abolition of
capital punishment failed in 1958 but was subsequently approved in 1964. n26 Two years later the
penalty was approved in Colorado by a wide margin. n27
[*439] In Massachusetts in 1968, in an advisory referendum, the voters there likewise
recommended retention of the penalty. In 1970, approximately 64% of the voters
in Illinois approved the penalty. n28 In
addition,
[***317] the National Commission on Reform of Federal Criminal Laws reports that
legislative committees in Massachusetts, Pennsylvania, and Maryland recommended
abolition, while committees
[**2829] in New Jersey and Florida recommended retention. n29 The legislative views of
other States have been summarized by Professor Hugo Bedau in his compilation of
sources on
capital punishment entitled The
Death Penalty in America:
"What our legislative representatives think in the two score states which still
have the
death penalty may be inferred from the fate of the bills to repeal or modify the
death penalty filed during recent years in the legislatures of more than half of these
states. In about a dozen instances, the bills emerged from committee for a
vote. But in none except Delaware did they become law. In those states where
these bills were brought to the floor of the legislatures, the vote in most
instances wasn't
even close." n30
This recent history of activity with respect to legislation concerning the
death penalty abundantly refutes the abolitionist position.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n26 See Bedau,
supra, n. 17, at 233.
[***318]
n27
Ibid. (approximately 65% of the voters approved the
death penalty).
n28 See Bedau, The
Death Penalty in America,
35 Fed. Prob., No. 2, pp. 32, 34 (1971).
n29 National Commission,
supra, n. 16, at 1365.
n30 Bedau,
supra, n. 17, at 232. See,
e. g.,
State v. Davis, 158 Conn. 341, 356-359, 260 A. 2d 587, 595-596 (1969), in which the Connecticut Supreme Court pointed out that the state legislature
had considered the question of
abolition during the 1961, 1963, 1965, 1967, and 1969 sessions and had
"specifically declined to abolish the
death
penalty" every time.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The second and even more direct source of information
[*440] reflecting the public's attitude toward
capital punishment is the jury. In
Witherspoon v. Illinois, 391 U.S. 510 (1968), MR. JUSTICE STEWART, joined by JUSTICES BRENNAN and MARSHALL, characterized
the jury's historic function in the
sentencing process in the following terms:
"The jury is given broad discretion to decide whether or not death
is 'the proper penalty' in a given case, and
[***319] a juror's general views about
capital punishment play an inevitable role in any such decision.
"A man who opposes the
death penalty, no less than one who favors it, can make the discretionary judgment entrusted
to him by the State and can thus obey the oath he takes as a juror. . . .
Guided by neither rule nor standard, . . . a jury that must choose
between
life imprisonment and
capital punishment can do little more -- and must do nothing less -- than express the conscience
of the community on the ultimate question of life or death."
"One of the most important functions any jury can perform in making such a
selection is to maintain
a link between contemporary community values and the penal system -- a link
without which the determination of punishment could hardly reflect 'the
evolving standards of
decency that mark the progress of a maturing society.'
Trop v.
Dulles, . . ." n31
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n31
391 U.S., at 519 and n. 15. See also
McGautha v. California, 402 U.S., at 201-202;
Williams v. New York, 337 U.S. 241, 253 (1949) (Murphy, J., dissenting) ("in our criminal courts the jury sits as the representative of the community"); W. Douglas, We the Judges 389 (1956); Holmes, Law in Science and Science
in Law,
12 Harv. L. Rev. 443, 460 (1899).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***320]
Any attempt to discern, therefore, where the prevailing standards of
decency lie must take careful account of
[*441] the jury's response to the question of
capital punishment. During the 1960's juries returned in excess of a thousand death
sentences, a rate of approximately two per week. Whether it is true that death
sentences were returned in less than 10% of the cases as petitioners estimate or whether
some higher percentage is more accurate, n32 these totals simply do not support
petitioners' assertion at oral argument that
"the
death penalty is virtually
[**2830] unanimously repudiated and condemned by the conscience of contemporary society." n33 It is also worthy of note that the annual rate of death
sentences has remained relatively constant over the last 10 years and that the figure
for 1970 -- 127
sentences -- is the highest annual total since 1961.
n34 It is true that the
sentencing rate might be expected to rise, rather than remain constant, when the number
of violent crimes increases as it has in this country. n35 And it may be
conceded that the constancy in these
statistics indicates the unwillingness of juries to demand the ultimate penalty in many
cases where
[***321] it might be imposed. But these considerations fall short of indicating that
juries are imposing the
death penalty with such rarity as to justify this Court in reading into this circumstance a
public rejection of
capital punishment. n36
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n32 See n. 19,
supra.
n33 Tr. of Oral Arg. in
Aikens v.
California, No. 68-5027, p. 21. Although the petition for certiorari in this case was
dismissed after oral argument,
Aikens v. California, 406 U.S. 813 (1972), the same counsel argued both this case and
Furman. He stated at the outset that his argument was equally
applicable to each case.
n34 National Prisoner
Statistics,
supra, n. 18.
n35 FBI, Uniform Crime Reports -- 1970, pp. 7-14 (1971).
n36 Public opinion polls, while of little probative relevance, corroborate
substantially the conclusion derived from examining legislative activity and
jury
sentencing -- opinion on
capital punishment is
"fairly divided."
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470 (Frankfurter, J., concurring). See,
e. g.,
Witherspoon v. Illinois, 391 U.S., at 520 n. 16 (1966 poll finding 42% in favor of the
death penalty and 47% opposed); Goldberg
& Dershowitz,
supra, n. 20, at 1781 n. 39 (1969 poll shows 51% in favor of retention -- the same
percentage as in 1960); H. Bedau, The
Death Penalty in America
231-241 (1967 rev. ed.); Bedau, The
Death Penalty in America,
35 Fed. Prob., No. 2, pp. 32, 34-35 (1971).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***322]
[*442] One must conclude, contrary to petitioners' submission, that the indicators
most likely to reflect the public's view -- legislative bodies, state referenda
and the juries which have the actual responsibility -- do not support the
contention that evolving standards of
decency require total
abolition of
capital punishment.
n37 Indeed,
[*443] the weight of the
[**2831] evidence indicates that the public generally has not accepted either the
morality or the social merit of the views so passionately advocated by the
articulate spokesmen for
abolition. But however one may assess the amorphous ebb and flow of public opinion
generally on this volatile issue, this type of inquiry lies at the periphery --
not the core -- of the judicial process in constitutional cases. The
assessment of popular opinion is essentially
a legislative, not a judicial, function.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n37 If, as petitioners suggest, the judicial branch itself reflects the
prevailing standards of human
decency in our society, it may be relevant to note the conclusion reached by state
courts in recent years on the question of the acceptability of
capital punishment. In the last five years alone, since the
de facto
"moratorium" on executions began (see n. 18,
supra), the appellate courts of 26 States have passed on the constitutionality of
the
death penalty under the
Eighth Amendment and under similar provisions of most state constitutions. Every court, except
the California Supreme Court,
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied,
406 U.S. 958 (1972), has found the penalty to be constitutional. Those States, and the year of the
most recent decision on the issue, are: Alabama (1971); Arizona (1969); Colorado (1967); Connecticut (1969); Delaware (1971);
Florida (1969); Georgia (1971); Illinois (1970); Kansas (1968); Kentucky
(1971); Louisiana (1971); Maryland (1971); Missouri (1971); Nebraska (1967);
Nevada (1970); New Jersey (1971); New Mexico (1969); North Carolina (1972);
Ohio (1971); Oklahoma (1971); South Carolina (1970); Texas (1971); Utah (1969);
Virginia (1971); Washington (1971). While the majority of these state court
opinions do not give the issue more than summary exposition, many have
considered the question at some length, and, indeed, some have considered the
issue under the
"evolving standards" rubric. See,
e. g.,
State v. Davis, 158 Conn. 341, 356-359, 260 A. 2d 587, 595-596 (1969);
State v. Crook, 253 La. 961, 967-970, 221 So. 2d 473, 475-476 (1969);
Bartholomey v. State, 260 Md. 504, 273 A. 2d 164 (1971);
State v. Alvarez, 182 Neb. 358, 366-367, 154 N. W. 2d 746, 751-752 (1967);
State v. Pace, 80 N. M. 364, 371-372, 456 P. 2d 197, 204-205 (1969). Every federal court that has passed on the issue has ruled that the
death penalty is not
per se unconstitutional. See,
e. g.,
Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970);
Jackson v. Dickson, 325 F.2d 573, 575 (CA9 1963), cert. denied,
377 U.S. 957 (1964).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***323]
V
Petitioners seek to salvage their thesis by arguing that the
infrequency and discriminatory nature of the actual resort to the ultimate
penalty tend to diffuse public opposition. We are told that the penalty is
imposed exclusively on uninfluential minorities --
"the poor and powerless, personally ugly and socially unacceptable." n38 It is urged that this pattern of application assures that large segments
of the public will be either uninformed or unconcerned and will have no reason
to measure the punishment against prevailing moral standards.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n38 Brief for Petitioner in No. 68-5027, p. 51. Although the
Aikens case is no longer before us (see n. 33,
supra), the petitioners in
Furman and
Jackson have incorporated petitioner's brief in
Aikens by reference. See Brief for Petitioner in No. 69-5003, pp. 11-12; Brief for
Petitioner in No. 69-5030, pp. 11-12.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Implicitly, this
argument concedes the unsoundness of petitioners' contention, examined above
under Part IV, that objective evidence shows a
[***324] present and widespread community rejection of the
death penalty. It is now said,
[*444] in effect, not that
capital punishment presently offends our citizenry, but that the public
would be offended
if the penalty were enforced in a nondiscriminatory manner against a significant
percentage of those
charged with capital crimes, and
if the public were thereby made aware of the moral issues surrounding
capital punishment. Rather than merely registering the objective indicators on a judicial
balance, we are asked ultimately to rest a far-reaching constitutional
determination on a prediction regarding the subjective judgments of the mass of
our people under hypothetical assumptions that may or may not be realistic.
Apart from the impermissibility of basing a constitutional judgment of this
magnitude on such speculative assumptions, the argument suffers from other
defects. If, as petitioners urge, we are to engage in
speculation, it is not at all certain that the public would experience
deep-felt revulsion if the States were to execute as many sentenced capital
offenders this year as they executed in the mid-1930's. n39 It seems more
likely that public reaction,
[***325] rather than being characterized by undifferentiated rejection, would depend
upon the facts and circumstances surrounding each particular case.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n39 In 1935 available
statistics indicate that 184
convicted murderers were executed. That is the highest annual total for any year since
statistics have become available. NPS,
supra, n. 18. The year 1935 is chosen by petitioners in stating their thesis:
"If, in fact, 184 murderers were to be executed in this year 1971, we submit it
is palpable that the public conscience of the Nation would be profoundly and
fundamentally revolted, and that the
death penalty for
murder would be
abolished forthwith as the atavistic horror that it is." Brief for Petitioner in
No. 68-5027, p. 26 (see n. 38,
supra).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Members of this Court know, from the petitions and appeals that come before us
regularly, that brutish and revolting
murders continue to occur with disquieting frequency. Indeed,
murders are so commonplace
[*445] in our society that only the most sensational receive
[***326] significant and sustained publicity. It could hardly be suggested that in any
of these highly publicized
murder cases -- the several senseless assassinations or the too numerous
[**2832] shocking multiple
murders that have stained this country's recent history -- the public has exhibited
any signs of
"revulsion" at the thought of executing the
convicted murderers. The public outcry, as we all know, has been quite to the contrary.
Furthermore, there is little reason to suspect that the public's reaction
would differ significantly in response to other less publicized
murders. It is certainly arguable that many such
murders, because of their senselessness or barbarousness, would evoke a public demand
for the
death penalty rather than a public rejection of that alternative. Nor is there any
rational basis for arguing that the public reaction to any of these crimes
would be muted if the murderer were
"rich and powerful." The demand for the ultimate sanction might well be greater, as a wealthy
killer is hardly a sympathetic figure. While there might be specific cases in
which
capital punishment would be regarded as
excessive and shocking to the conscience of the community, it
[***327] can hardly be argued that the public's dissatisfaction with the penalty in
particular cases would translate into a demand for absolute
abolition.
In pursuing the foregoing speculation, I do not suggest that it is relevant to
the appropriate disposition of these cases. The purpose of
the digression is to indicate that judicial decisions cannot be founded on
such speculations and assumptions, however appealing they may seem.
But the discrimination argument does not rest alone on a projection of the
assumed effect on public opinion of more frequent executions. Much also is
made of the undeniable fact that the
death penalty has a greater impact on the lower economic strata of
society, which
[*446] include a relatively higher percentage of persons of minority racial and
ethnic group backgrounds. The argument drawn from this fact is two-pronged.
In part it is merely an extension of the speculative approach pursued by
petitioners,
i. e., that public revulsion is suppressed in callous apathy because the penalty
does not affect persons from the white middle class which constitutes the
majority in this country. This aspect, however, adds little to the infrequency
rationalization
[***328] for public apathy which I have found unpersuasive.
As MR. JUSTICE MARSHALL's opinion today demonstrates, the argument does have a
more troubling aspect. It is his contention that if the average citizen were
aware of the disproportionate burden of
capital punishment borne by the
"poor, the ignorant, and the underprivileged," he would find the penalty
"shocking to his conscience and sense of justice" and would not stand for its further use.
Ante, at 365-366, 369. This argument, like the apathy rationale, calls
for further speculation on the part of the Court. It also illuminates the
quicksands upon which we are asked to base this decision. Indeed, the two
contentions seem to require contradictory assumptions regarding the public's
moral attitude toward
capital punishment. The apathy argument is predicated on the assumption that the penalty is used
against the less influential elements of society, that the public is fully
aware of this, and that it tolerates use of
capital punishment only because of a callous indifference to the offenders who are sentenced.
MR. JUSTICE MARSHALL's argument, on the other hand, rests on the contrary
assumption that the public does not know
[***329] against whom the penalty is enforced and that if the public were educated to
this fact it would find the punishment intolerable.
Ante, at 369. Neither assumption can claim to be an entirely accurate portrayal of
public attitude; for some acceptance of
capital punishment might be a consequence
[*447] of hardened apathy based on the knowledge of infrequent and uneven
application, while for others acceptance may
grow only out of ignorance. More significantly, however, neither supposition
acknowledges what, for me, is a more basic flaw.
[**2833] Certainly the claim is justified that this criminal sanction falls more
heavily on the relatively impoverished and underprivileged elements of society.
The
"have-nots" in every society always have been subject to greater pressure to commit crimes
and to fewer constraints than their more affluent fellow citizens. This is,
indeed, a tragic byproduct of social and economic deprivation, but it is not an
argument of constitutional proportions under the Eighth or
Fourteenth Amendment. The same discriminatory impact argument could be made with equal force and
logic with respect to those sentenced to
prison
terms. The Due Process
[***330] Clause admits of no distinction between the deprivation of
"life" and the deprivation of
"liberty." If discriminatory impact renders
capital punishment
cruel and unusual, it likewise renders invalid most of the prescribed penalties for
crimes of violence. The root causes of the
higher incidence of criminal penalties on
"minorities and the poor" will not be cured by abolishing the system of penalties. Nor, indeed, could
any society have a viable system of criminal justice if sanctions were
abolished or ameliorated because most of those who commit crimes happen to be
underprivileged. The basic problem results not from the penalties imposed for
criminal conduct but from social and economic factors that have plagued
humanity since the beginning of recorded history, frustrating all efforts to
create in any country at any time the perfect society in which there are no
"poor," no
"minorities" and no
"underprivileged." n40
[*448] The causes underlying this problem are unrelated to the constitutional issue
before the Court.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n40 Not all
murders, and certainly not all crimes, are committed by persons classifiable as
"underprivileged." Many crimes of violence are committed by professional criminals who willingly
choose to prey upon society as an easy and remunerative way of life. Moreover,
the
terms
"underprivileged," the
"poor" and the
"powerless" are relative and inexact, often conveying subjective connotations which vary
widely depending upon the viewpoint and purpose of the user.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***331]
Finally, yet another theory for abolishing the
death penalty -- reflected in varying degrees in each of the concurring opinions today -- is
predicated on the discriminatory impact argument. Quite apart from measuring
the public's acceptance or rejection of the
death penalty under the
"standards of
decency" rationale, MR. JUSTICE DOUGLAS finds the punishment
cruel and unusual because it is
"arbitrarily" invoked. He finds that
"the basic theme of equal protection is implicit" in the
Eighth Amendment, and that the Amendment is violated when jury
sentencing may be characterized as arbitrary or discriminatory.
Ante, at 249. While MR. JUSTICE STEWART does not purport to rely on notions of
equal protection, he also rests primarily on what he views to be a history of
arbitrariness.
Ante, at 309-310. n41
Whatever may be the facts with respect to jury
sentencing, this argument calls for a reconsideration of the
"standards" aspects of the Court's decision in
McGautha v. California, 402 U.S. 183 (1971). Although that is the unmistakable thrust of these opinions today, I see no
reason to reassess the standards question considered so carefully in Mr. Justice
[***332] Harlan's opinion for the Court
[*449] last Term. Having so recently reaffirmed our historic dedication to
entrusting the
sentencing function to the jury's
"untrammeled discretion" (
id., at 207), it is difficult to see how the Court can now hold the entire process
constitutionally defective under the
Eighth Amendment. For all of these reasons I find little merit
in the various discrimination arguments, at least in the several lights in
which they have been cast in these cases.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n41 Similarly, MR. JUSTICE WHITE exhibits concern for a
lack of any
"meaningful basis for distinguishing the few cases in which [the
death penalty] is imposed from the many cases in which it is not."
Ante, at 313. MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL treat the arbitrariness
question in the same manner that it is handled by petitioners -- as an element
of the approach calling for total
abolition.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**2834]
Although not presented by any of the petitioners today, a different argument,
premised on
[***333] the Equal Protection Clause, might well be made. If a Negro defendant, for
instance, could demonstrate that members of his race were being singled out for
more
severe punishment than others charged with the same offense, a constitutional violation might be
established. This was the contention made in
Maxwell v. Bishop, 398 F.2d 138 (CA8 1968), vacated and remanded on other grounds,
398 U.S. 262 (1970),
in which the Eighth Circuit was asked to issue a writ of habeas corpus setting
aside a death
sentence imposed on a Negro defendant
convicted of
rape. In that case substantial statistical evidence was introduced tending to show a
pronounced disproportion in the number of Negroes receiving death
sentences for
rape in parts of Arkansas and elsewhere in the South. That evidence was not
excluded but was found to be insufficient to show discrimination in
sentencing in Maxwell's trial. MR. JUSTICE BLACKMUN, then sitting on the Court of
Appeals for the Eighth Circuit, concluded:
"The petitioner's argument is an interesting one and we are not disposed to say
that it could not have some validity and weight in certain situations. Like
the trial
[***334] court, however . . . we feel that the argument does not have validity and
pertinent application to Maxwell's case.
. . . .
[*450]
"We are not yet ready to condemn and upset the result reached in
every case of a Negro
rape defendant in the State of Arkansas on the basis of broad theories of social
and statistical injustice. . . .
. . . .
"We do not say that there is no ground for suspicion that the
death penalty for
rape may have been discriminatorily applied over the decades in that large area of
states whose statutes provide for it. There are recognizable indicators of
this. But . . . improper state practice of the past does not automatically
invalidate a procedure of the present. . . ."
Id., at 146-148.
I agree that discriminatory application of the
death penalty in the past, admittedly indefensible, is no justification for holding today
that
capital punishment is invalid in all cases in which
sentences were handed out to members of the class discriminated against. But
Maxwell does point the way to a means of raising the equal protection challenge that
is more consonant with precedent and the Constitution's mandates than the
several courses pursued by
today's concurring
[***335] opinions.
A final comment on the racial discrimination problem seems appropriate. The
possibility of racial bias in the trial and
sentencing process has diminished in recent years. The segregation of our society in
decades past, which contributed substantially to the severity of punishment for
interracial crimes, is now no longer prevalent in this country. Likewise, the
day is past when juries do not represent the minority group elements of the
community. The assurance of fair trials for all citizens is greater today than
at any previous time in our history. Because standards of criminal justice
have
"evolved" in a manner
favorable to the accused, discriminatory imposition of
capital punishment is far less likely today than in the past.
[*451] VI
Petitioner in
Branch v.
Texas, No. 69-5031, and to a lesser extent the petitioners in the other cases before
us today, urge that
capital
punishment is
cruel and unusual because it no longer serves any rational legislative interests.
Before turning to consider whether any of the traditional aims of punishment
justify the
death penalty, I should make clear the context in which I approach this aspect of the cases.
[***336]
First, I find no support -- in the language of the Constitution, in its
history, or in the cases arising under it -- for the view that this Court may
invalidate a
[**2835] category of penalties because we deem less severe penalties adequate to serve
the ends of penology. While the cases affirm our authority to prohibit
punishments that are cruelly inhumane (e. g.,
Wilkerson v. Utah, 99 U.S., at 135-136;
In re Kemmler, 136 U.S., at 447), and punishments that are cruelly
excessive in that they are disproportionate to particular crimes (see Part VII,
infra), the precedents of this Court afford no basis for striking down a
particular form of punishment because we may be persuaded that means less
stringent would be equally efficacious.
Secondly, if we were free to question the justifications for the use of
capital punishment, a heavy burden would rest on those who attack the legislatures' judgments to
prove the lack of rational justifications. This Court has long held that
legislative decisions in this area, which lie within the special competency of
that branch, are entitled to a presumption of validity. See,
e. g.,
Trop v. Dulles, 356 U.S., at 103;
[***337]
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470 (Frankfurter, J., concurring);
Weems v. United States, 217 U.S., at 378-379;
In re Kemmler, 136 U.S., at 449.
[*452] I come now to consider, subject to the reservations above expressed, the two
justifications most often cited for the retention of
capital punishment. The concept of
retribution -- though
popular for centuries -- is now criticized as unworthy of a civilized people.
Yet this Court has acknowledged the existence of a retributive element in
criminal sanctions and has never heretofore found it impermissible. In
Williams v. New York, 337 U.S. 241 (1949), Mr. Justice Black stated that,
"Retribution is no longer the dominant objective of the criminal law. Reformation and
rehabilitation of offenders have become important goals of criminal
jurisprudence."
Id., at 248.
It is clear, however, that the Court did not reject
retribution altogether. The record in that case indicated that one of the reasons why the
trial judge imposed the
death penalty was his sense of revulsion at the
"shocking details
[***338] of the crime."
Id., at 244. Although his motivation was clearly retributive, the Court upheld the trial
judge's
sentence. n42 Similarly, MR.
JUSTICE MARSHALL noted in his plurality opinion in
Powell v. Texas, 392 U.S. 514, 530 (1968), that this Court
"has never held that anything in the Constitution requires that penal sanctions
be designed solely to achieve therapeutic or rehabilitative effects." n43
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n42 In
Morissette v. United States, 342 U.S. 246 (1952), Mr. Justice Jackson spoke of the
"tardy and unfinished substitution of
deterrence and reformation in place of retaliation and vengeance as the motivation for
public prosecution."
Id., at 251. He also noted that the penalties for invasions of the rights of property are
high as a consequence of the
"public demand for
retribution."
Id., at 260.
n43 See also
Massiah v. United States, 377 U.S. 201, 207 (1964) (WHITE, J., dissenting) (noting the existence of a
"profound dispute about whether we should punish, deter, rehabilitate or cure");
Robinson v. California, 370 U.S., at 674 (DOUGLAS, J., concurring);
Louisiana ex rel. Francis v. Resweber, 329 U.S., at 470-471 (Mr. Justice Frankfurter's admonition that the Court is not empowered to act
simply because of a
"feeling of revulsion against a State's insistence on its pound of flesh");
United States v. Lovett, 328 U.S. 303, 324 (1946) (Frankfurter, J., concurring) ("punishment presupposes an offense, not necessarily an act previously declared
criminal, but an act for which
retribution is exacted").
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***339]
[*453] While
retribution alone may seem an unworthy justification in a moral sense, its
[**2836] utility in a system of criminal justice requiring public support has long been
recognized. Lord Justice Denning, now Master of the Rolls of the Court of
Appeal in England, testified on this subject before the British Royal
Commission on
Capital Punishment:
"Many are inclined to test the efficacy of punishment solely
by its value as a
deterrent: but this is too narrow a view. Punishment is the way in which society
expresses its denunciation of wrong doing: and, in order to maintain respect
for law, it is essential that the punishment
inflicted for grave crimes should adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to consider the objects of
punishment as being
deterrent or reformative or preventive and nothing else. If this were so, we should not
send to
prison a man who was guilty of motor manslaughter, but only disqualify him from
driving; but would public opinion be content with this? The truth is that some
crimes are so outrageous that society insists on adequate punishment, because
the wrong-doer deserves it, irrespective
[***340] of whether it is a
deterrent or not." n44
The view expressed by Lord Denning was cited approvingly in the Royal
Commission's Report, recognizing
"a
[*454] strong and widespread demand for
retribution." n45 MR. JUSTICE
STEWART makes much the same point in his opinion today when he concludes that
expression of man's retributive instincts in the
sentencing process
"serves an important purpose in promoting the stability of a society governed by
law."
Ante, at 308. The view, moreover, is not without respectable support in the
jurisprudential literature in this country, n46 despite a substantial body of
opinion to the contrary. n47 And it is conceded
on all sides that, not infrequently, cases arise that are so shocking or
offensive that the public demands the ultimate penalty for the transgressor.
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n44 Royal Commission on
Capital Punishment, Minutes of Evidence 207 (1949-1953).
n45 Report of Royal Commission on
Capital Punishment, 1949-1953, Cmd. 8932, para. 53, p. 18.
n46 M. Cohen, Reason and Law 50 (1950); H. Packer, The Limits of the Criminal
Sanction 11-12 (1968); Hart, The Aims of the Criminal Law,
23 Law & Contemp. Prob. 401 (1958).
[***341]
n47 The authorities are collected in Comment, The
Death Penalty Cases,
56 Calif. L. Rev. 1268, 1297-1301 (1968). The competing contentions are summarized in the Working Papers of the National
Commission on Reform of Federal Criminal Laws,
supra, n. 16, at 1358-1359. See also the persuasive treatment of this issue by Dr.
Karl Menninger in The Crime of Punishment 190-218 (1966).
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Deterrence is a more appealing justification, although opinions again differ widely.
Indeed, the
deterrence issue lies at the heart of much of the debate between the abolitionists and
retentionists. n48 Statistical studies, based primarily on trends in States
that have
abolished the penalty, tend to support the view that the
death penalty has not been proved to be a superior
deterrent. n49 Some dispute the validity of this conclusion, n50 pointing
[*455] out that the studies do not show that the
death penalty has no
deterrent effect on any categories of crimes. On the basis of the literature and
studies currently available, I find myself in agreement with the conclusions
drawn by the Royal Commission
[***342] following its exhaustive study of this issue:
"The general conclusion which we reach, after careful review of all the evidence
we have been able to obtain
[**2837] as to the
deterrent effect of
capital punishment, may be stated as follows.
Prima facie the penalty of death is likely to have a stronger effect as a
deterrent to normal human beings than any other form of punishment, and there is some
evidence (though no convincing statistical evidence) that this is in fact so.
But this effect does not operate universally or uniformly, and there are many
offenders on whom it is limited and may often be negligible. It is accordingly
important to view this question in a just perspective and not base a
penal policy in relation to
murder on exaggerated estimates of the uniquely
deterrent force of the
death penalty." n51
Only recently this Court was called on to consider the
deterrence argument in relation to punishment by fines for public drunkenness.
Powell v. Texas, 392 U.S. 514 (1968). The Court was unwilling to strike down the Texas statute on grounds that it
lacked a rational foundation. What MR. JUSTICE MARSHALL said there would seem
to have
[***343] equal applicability in this case:
"The long-standing and still raging debate over the validity of the
deterrence justification for penal sanctions has not reached any sufficiently clear
conclusions to permit it to be said that such sanctions are ineffective in any
particular context or for any
[*456] particular group of people who are able to appreciate the consequences of
their acts. . . ."
Id., at 531.
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n48 See,
e. g., H. Bedau, The
Death Penalty in America 260 (1967
rev. ed.); National Commission,
supra, n. 16, at 1352.
n49 See Sellin,
supra, n. 16, at 19-52.
n50 The countervailing considerations, tending to undercut the force of
Professor Sellin's statistical studies, are collected in National Commission,
supra, n. 16, at 1354; Bedau,
supra, n. 48, at 265-266; Hart,
Murder and the Principles of Punishment: England and the United States,
52 Nw. U. L. Rev. 433, 455-460 (1957).
n51 Report of the Royal Commission,
supra, n. 45, para. 68, at 24.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***344]
As I noted at the outset of this section, legislative judgments as to
the efficacy of particular punishments are presumptively rational and may not
be struck down under the
Eighth Amendment because this Court may think that some alternative sanction would be more
appropriate. Even if such judgments were within the judicial prerogative,
petitioners have failed to
show that there exist no justifications for the legislative enactments
challenged in these cases. n52 While the evidence and arguments advanced by
petitioners might have proved profoundly persuasive if addressed to a
legislative body, they do not approach the showing traditionally required
before a court declares that the legislature has acted irrationally.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n52 It is worthy of note that the heart of the argument here -- that there are
no legitimate justifications -- was impliedly repudiated last Term by both the
majority and dissenting opinions in
McGautha v. California, 402 U.S. 183 (1971). The argument in that case centered on the proposition that due process
requires that the standards governing the jury's exercise of its
sentencing function be elucidated. As MR. JUSTICE BRENNAN's dissent made clear, whatever
standards might be thought to exist arise out of the list of justifications for
the
death penalty --
retribution,
deterrence, etc.
Id., at
284. If no such standards exist, the controversy last Term was a hollow one
indeed.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***345]
VII
In two of the cases before us today juries imposed
sentences of death after convictions for
rape. n53 In these cases we are urged to hold that even if
capital punishment is permissible for some crimes, it is a
cruel and unusual punishment for this crime. Petitioners in these cases rely on the Court's opinions
holding that the
Eighth Amendment, in addition to prohibiting punishments
[*457] deemed barbarous and inhumane, also condemns punishments that are greatly
disproportionate to the crime charged. This reading of the Amendment was first
expressed by Mr. Justice Field in his dissenting opinion in
O'Neil v. Vermont, 144 U.S. 323, 337 (1892), a case in which a defendant charged with a large number of violations
[**2838] of Vermont's liquor laws received
a fine in excess of $ 6,600, or a 54-year jail
sentence if the fine was not paid. The majority refused to consider the question on
the ground that the
Eighth Amendment did not apply to the States. The dissent, after carefully examining the
history of that Amendment and the Fourteenth, concluded that its prohibition
was binding on Vermont and that it was directed against
"all punishments which by
[***346] their
excessive length or severity are greatly disproportioned to the offences charged."
Id., at 339-340. n54
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n53
Jackson v.
Georgia, No. 69-5030;
Branch v.
Texas, No. 69-5031.
n54 Mr. Justice Harlan, joined by Mr. Justice Brewer, dissented separately but
agreed that the State had
inflicted a
cruel and unusual punishment.
Id., at 371.
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The Court, in
Weems v. United States, 217 U.S. 349 (1910), adopted Mr. Justice Field's
view. The defendant, in
Weems, charged with falsifying Government documents, had been sentenced to serve 15
years in
cadena temporal, a punishment which included carrying chains at the wrists and ankles and the
perpetual loss of the right to vote and hold office. Finding the
sentence grossly
excessive in length and condition of
imprisonment, the Court struck it down. This notion of disproportionality -- that
particular
sentences may be cruelly
excessive for particular crimes -- has been cited with
[***347] approval in more recent decisions of this Court. See
Robinson v. California, 370 U.S., at 667;
Trop v. Dulles, 356 U.S., at 100; see also
Howard v. Fleming, 191 U.S. 126, 135-136 (1903).
These cases, while providing a rationale for gauging the constitutionality of
capital
sentences imposed for
rape,
[*458] also indicate the existence of necessary limitations on the judicial function.
The use of limiting
terms in the various expressions of this test found in the opinions --
grossly
excessive,
greatly disproportionate -- emphasizes that the Court's power to strike down
punishments as
excessive must be exercised with the greatest circumspection. As I have noted earlier,
nothing in the history of the
Cruel and
Unusual Punishments Clause indicates that it may properly be utilized by the judiciary to strike down
punishments -- authorized by legislatures and imposed by juries -- in any but
the extraordinary case. This Court is not empowered to sit as a court of
sentencing review, implementing the personal views of its members on the proper role of
penology. To do so is to usurp a function committed
[***348] to the Legislative Branch and beyond the power and competency of this Court.
Operating within these narrow limits, I find it quite impossible to declare the
death
sentence grossly
excessive for all
rapes.
Rape is widely recognized as among the most serious of violent crimes, as
witnessed by the very fact that it is punishable by death in 16 States and by
life imprisonment in most other States. n55 The several reasons why
rape stands so high on the list of serious crimes are well known: It is widely
viewed as the most atrocious of intrusions upon the privacy and dignity of the
victim; never is the crime committed accidentally; rarely can it be said to be
unpremeditated;
[*459] often the victim suffers serious physical injury; the psychological impact can
often be as great as the physical consequences; in a real sense, the threat of
both types of injury
[**2839] is always present. n56 For these reasons, and for the reasons arguing against
abolition of the
death penalty altogether, the excessiveness rationale provides no basis for rejection of the
penalty for
rape in all cases.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n55 In addition to the States in which
rape is a capital offense, statutes
in 28 States prescribe
life imprisonment as a permissible punishment for at least some category of
rape. Also indicative of the seriousness with which the crime of
rape is viewed, is the fact that in nine of the 10 States that have
abolished death as a punishment for any crime, the maximum term of years for
rape is the same as for first-degree
murder. Statistical studies have shown that the average
prison term served by rapists is longer than for any category of offense other than
murder. J. MacDonald,
Rape -- Offenders and Their Victims 298 (1971).
[***349]
n56
Id., at 63-64; Packer, Making the Punishment Fit the Crime,
77 Harv. L. Rev. 1071, 1077 (1964).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The argument that the
death penalty for
rape lacks rational justification because less
severe punishments might be viewed as accomplishing the proper goals of penology is as inapposite
here as it was in considering
per
se
abolition. See Part VI
supra. The state of knowledge with respect to the
deterrent value of the
sentence for this
crime is inconclusive. n57 Moreover, what has been said about the concept of
retribution applies with equal force where the crime is
rape. There are many cases in which the sordid, heinous nature of a particular
crime, demeaning, humiliating, and often physically or psychologically
traumatic, will call for public condemnation. In a period in our country's
history when the frequency of this crime is increasing alarmingly, n58 it is
indeed a grave event for the Court to take from the States whatever
deterrent and retributive weight the
death penalty retains.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n57 See MacDonald,
supra, n. 55, at 314; Chambliss, Types of Deviance and the Effectiveness of Legal
Sanctions,
1967 Wis. L. Rev. 703.
[***350]
n58 FBI, Uniform Crime Reports -- 1970, p. 14 (1971) (during the
1960's the incidence of
rape rose 121%).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Other less sweeping applications of the disproportionality concept have been
suggested. Recently the Fourth Circuit struck down a death
sentence in
Ralph v. Warden, 438 F.2d 786 (1970), holding that the
death penalty was an appropriate punishment for
rape
[*460] only where life is
"endangered." Chief Judge Haynsworth, who joined in the panel's opinion, wrote separately in
denying the State of Maryland's petition for rehearing in order to make clear
the basis for his joinder. He stated that, for him, the appropriate test was
not whether life was endangered, but whether the victim in fact suffered
"grievous physical or psychological harm."
Id., at 794. See
Rudolph v. Alabama, 375 U.S. 889 (1963) (dissent from the denial of certiorari).
It seems to me that both of these tests depart from established principles and
also
raise serious practical problems. How are those cases in which the victim's
life is endangered to be distinguished
[***351] from those in which no danger is found? The threat of serious injury is
implicit in the definition of
rape; the victim is either forced into submission by physical violence or by the
threat of violence. Certainly that test would provide little comfort for
either of the
rape defendants in the cases presently before us. Both criminal acts were
accomplished only after a violent struggle. Petitioner Jackson held a scissors
blade against his victim's neck. Petitioner Branch had less difficulty
subduing his 65-year-old victim. Both assailants threatened to kill their
victims. See MR. JUSTICE DOUGLAS' opinion,
ante, at 252-253. The alternate test, limiting the penalty to cases in which the
victim suffers physical or emotional harm, might present even greater
problems of application. While most physical effects may be seen and
objectively measured, the emotional impact may be impossible to gauge at any
particular point in time. The extent and duration of psychological trauma may
not be known or ascertainable prior to the date of trial.
While I reject each of these attempts to establish specific categories of cases
in which the
death penalty may be deemed
excessive, I view them
[***352] as groping
[*461] toward what is for me the appropriate application of the
Eighth Amendment. While in my view the disproportionality test may not be used either to
strike down the
death penalty for
rape altogether or to install the Court as a tribunal for
sentencing review, that test
[**2840] may find its application
in the peculiar circumstances of specific cases. Its utilization should be
limited to the rare case in which the
death penalty is rendered for a crime technically falling
within the legislatively defined class but factually falling outside the likely
legislative intent in creating the category. Specific
rape cases (and specific homicides as well) can be imagined in which the conduct of
the accused would render the ultimate penalty a grossly
excessive punishment. Although this case-by-case approach may seem painfully slow and
inadequate to those who wish the Court to assume an activist legislative role
in reforming criminal punishments, it is the approach dictated both by our
prior opinions and by a due recognition of the limitations of judicial power.
This approach, rather than the majority's more pervasive and less refined
judgment, marks for me
[***353] the appropriate course under the
Eighth Amendment.
VIII
I now return to the overriding question in these cases: whether this Court,
acting in conformity with the Constitution, can justify its judgment to abolish
capital punishment as heretofore
known in this country. It is important to keep in focus the enormity of the
step undertaken by the Court today. Not only does it invalidate hundreds of
state and federal laws, it deprives those jurisdictions of the power to
legislate with respect to
capital punishment in the future, except in a manner consistent with the cloudily outlined views
of those Justices who do not purport to undertake total
abolition.
[*462] Nothing short of an amendment to the United States Constitution can reverse
the Court's judgments. Meanwhile, all flexibility is foreclosed. The normal
democratic process, as well as the opportunities for the several States to
respond to the will of their people expressed through ballot referenda (as in
Massachusetts, Illinois, and Colorado), n59 is now shut off.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n59 See text accompanying nn. 27
& 28,
supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***354]
The sobering disadvantage of constitutional adjudication of this magnitude is
the universality and permanence of the judgment. The enduring merit of
legislative action is its responsiveness to the democratic process, and to
revision and change: mistaken judgments may be corrected and refinements
perfected. In England n60 and Canada n61 critical choices were made after
studies canvassing all competing views, and in those countries revisions may be
made in light of experience. n62
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n60 See n. 24,
supra.
n61 See n. 23,
supra.
n62 Recent legislative activity in New York State serves to underline the
preferability of legislative action over constitutional adjudication. New York
abolished the
death penalty for
murder in 1965, leaving only a few crimes for which the penalty is still available.
See text accompanying n. 25,
supra. On April 27, 1972, a bill that would have restored the
death penalty was considered by the State Assembly. After several
hours of heated debate, the bill was narrowly defeated by a vote of 65 to 59.
N. Y. Times, Apr. 28, 1972, p. 1, col. 1. After seven years of disuse of the
death penalty the representatives of the people in that State had not come finally to rest
on the question of
capital punishment. Because the 1965 decision had been the product of the popular will it could
have been undone by an exercise of the same democratic process. No such
flexibility is permitted when
abolition, even though not absolute, flows from constitutional adjudication.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***355]
As recently as 1967 a presidential commission did consider, as part of
an overall study of crime in this country, whether the
death penalty should be
abolished.
[*463] The commission's unanimous recommendation was as follows:
"The question whether
capital punishment is an appropriate sanction is a policy decision to be made by each State.
Where it is retained, the types of offenses for which it is available should be
strictly limited, and the
law should be enforced in an evenhanded
[**2841] and nondiscriminatory manner, with procedures for review of death
sentences that are fair and expeditious. When a State finds that it cannot administer
the penalty in such a manner, or that the
death penalty is being imposed but not carried into effect, the penalty should be abandoned." n63
The thrust of the Commission's recommendation, as presently relevant, is that
this question
"is a policy decision to be made by each State." There is no hint that this decision could or should be made by the judicial
branch.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n63 President's Commission on Law Enforcement and Administration of Justice,
The Challenge of Crime in a Free Society 143 (1967) (chaired by Nicholas
Katzenbach, then Attorney General of the United States). The text of the
Report stated, among other things, that the
abolition of the
death penalty
"is being widely debated in the States"; that it is
"impossible to say with certainty whether
capital punishment significantly reduces the incidence of heinous
crimes"; that
"whatever views one may have on the efficacy of the
death penalty as a
deterrent, it clearly has an undesirable impact on the administration of criminal justice"; and that
"all members of the Commission agree that the present situation in the
administration of the
death penalty in many States is intolerable."
Ibid. As a member of this Presidential Commission I subscribed then, and do now,
to the recommendations and views above quoted.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***356]
The National Commission on Reform of Federal Criminal Laws also considered the
capital punishment issue. The introductory commentary of its final report states that
"a sharp division [existed] within the Commission on the subject of
capital punishment," although a
[*464] majority favored its
abolition. n64 Again, consideration of the question was directed to the propriety of
retention or
abolition as a legislative matter. There was no suggestion that the difference of
opinion existing among commission members, and generally across the country,
could or should be resolved in one stroke by a
decision of this Court. n65 Similar activity was, before today, evident at the
state level with re-evaluation having been undertaken by special legislative
committees in some States and by public ballot in others. n66
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n64 Final Report of the National Commission on Reform of Federal Criminal Laws
310 (1971).
n65 The American Law Institute, after years of study, decided not to take an
official position on the question of
capital punishment, although the Advisory Committee favored
abolition by a vote of 18-2. The Council was more evenly divided but all were in
agreement that many States would undoubtedly retain the punishment and that,
therefore, the Institute's efforts should be directed toward providing
standards for its implementation. ALI, Model Penal Code 65 (Tent. draft No. 9,
1959).
[***357]
n66 See text accompanying nn. 26 through 30,
supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
With deference and respect for the views of the Justices who differ, it seems
to me that all these studies -- both in this country and elsewhere -- suggest
that, as a matter of policy and precedent, this is a classic case for the
exercise of our oft-announced allegiance to judicial restraint. I know of no
case in which
greater gravity and delicacy have attached to the duty that this Court is
called on to perform whenever legislation -- state or federal -- is challenged
on constitutional grounds. n67 It seems to me that the sweeping judicial action
undertaken today reflects a
[*465] basic lack of faith and confidence in the democratic process. Many may
regret, as I do, the failure of some legislative bodies to address the
capital punishment issue with greater
[**2842] frankness or effectiveness. Many might decry their failure either to abolish
the penalty entirely or selectively, or to establish standards for its
enforcement. But impatience with the slowness, and even the unresponsiveness,
of legislatures is no
justification
[***358] for judicial intrusion upon their historic powers. Rarely has there been a
more appropriate opportunity for this Court to heed the philosophy of Mr.
Justice Oliver Wendell Holmes. As Mr. Justice Frankfurter reminded the Court
in
Trop:
"The whole of [Mr. Justice Holmes'] work during his thirty years of service on
this Court should be a constant reminder that the power to invalidate
legislation must not be exercised as if, either in constitutional theory or in
the art of government, it stood as the sole bulwark against unwisdom or
excesses of the moment."
356 U.S., at 128.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n67
Blodgett v. Holden, 275 U.S. 142, 148 (1927) (separate opinion of Holmes, J.). See also
Trop v. Dulles, 356 U.S., at 128 (Frankfurter, J., dissenting):
"The awesome power of this Court to invalidate . . . legislation, because in
practice it is bounded only by our own prudence
in discerning the limits of the Court's constitutional function, must be
exercised with the utmost restraint."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***359]
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and
MR. JUSTICE POWELL join, dissenting.
The Court's judgments today strike down a penalty that our Nation's legislators
have thought necessary since our country was founded. My Brothers DOUGLAS,
BRENNAN, and MARSHALL would at one fell swoop invalidate laws enacted by
Congress and 40 of the 50 state legislatures, and would consign to the limbo of
unconstitutionality under a single rubric penalties for offenses as varied and
unique as
murder, piracy, mutiny, highjacking, and desertion in the face of the enemy. My
Brothers STEWART and WHITE, asserting reliance on a more limited rationale --
the reluctance of judges and juries actually to impose the
death penalty in the majority of capital
[*466] cases -- join in the judgments
in these cases. Whatever its precise rationale, today's holding necessarily
brings into sharp relief the fundamental question of the role of judicial
review in a democratic society. How can government by the elected
representatives of the people co-exist with the power of the federal judiciary,
whose members are constitutionally insulated from responsiveness to the popular
will,
[***360] to declare invalid laws duly enacted by the popular branches of government?
The answer, of course, is found in Hamilton's Federalist Paper No. 78 and in
Chief Justice Marshall's classic opinion in
Marbury v. Madison, 1 Cranch 137 (1803). An oft-told story since then, it bears summarization once more. Sovereignty
resides ultimately in the people as a whole and, by adopting through their
States a written Constitution
for the Nation and subsequently adding amendments to that instrument, they
have both granted
certain powers to the National Government, and denied other powers to the
National and the State Governments. Courts are exercising no more than the
judicial function conferred upon them by Art. III of the Constitution when they
assess, in a case before them, whether or not a particular legislative
enactment is within the authority granted by the Constitution to the enacting
body, and whether it runs afoul of some limitation placed by the Constitution
on the authority of that body. For the theory is that the people themselves
have spoken in the Constitution, and therefore its commands are superior to the
commands of the legislature, which
[***361] is merely an agent of the people.
The Founding Fathers thus wisely sought to have the best of both worlds, the
undeniable benefits of both democratic self-government and individual rights
protected against possible excesses of that form of government.
The courts in cases properly before them have been entrusted under the
Constitution with the last word, short of constitutional amendment, as to
whether a law passed
[*467] by the legislature
conforms to the Constitution. But just because courts in general, and this
Court in particular, do have the last word, the admonition of Mr. Justice Stone
dissenting in
[**2843]
United States v.
Butler must be constantly borne in mind:
"While unconstitutional exercise of power by the executive and legislative
branches of the government is subject to judicial restraint, the only check
upon our own exercise of power is our own sense of self-restraint."
297 U.S. 1, 78-79 (1936).
Rigorous attention to the limits of this Court's authority is likewise enjoined
because of the natural desire that beguiles judges along with other human
beings into imposing their own views of goodness, truth, and justice upon
others. Judges
[***362] differ only in that they have the power, if not the authority, to enforce
their desires. This is doubtless why nearly two centuries of judicial
precedent from this Court counsel the sparing use of that power. The most
expansive
reading of the leading constitutional cases does not remotely suggest that this
Court has been granted a roving commission, either by the Founding Fathers or
by the framers of the
Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly
found unacceptable by a majority of this Court. The Framers of the
Constitution would doubtless have agreed with the great English political
philosopher John Stuart Mill when he observed:
"The disposition of mankind, whether as rulers or as fellow-citizens, to impose
their own opinions and inclinations as a rule of conduct on others, is so
energetically supported by some of the best and by some of the worst feelings
incident to human nature, that it is hardly ever kept under restraint by
anything but want of power." On Liberty 28 (1885).
[*468] A separate reason for deference to the legislative judgment is the consequence
of human error on the part of the judiciary with
[***363] respect to the constitutional issue before i t. Human
error there is bound to be, judges being men and women, and men and women being
what they are. But an error in mistakenly sustaining the constitutionality of
a particular enactment, while wrongfully depriving the individual of a right
secured to him by the Constitution, nonetheless does so by simply letting stand
a duly enacted law of a democratically chosen legislative body. The error
resulting from a mistaken upholding of an individual's constitutional claim
against the validity of a legislative enactment is a good deal more serious.
For the result in such a case is not to leave standing a law duly enacted by a
representative assembly, but to impose upon the Nation the judicial fiat of a
majority of a court of judges whose connection with the popular will is remote
at best.
The task of judging constitutional cases imposed by Art. III cannot
for this reason be avoided, but it must surely be approached with the deepest
humility and genuine deference to legislative judgment. Today's decision to
invalidate
capital punishment is, I respectfully submit, significantly lacking in those attributes. For the
reasons well
[***364] stated in the opinions of THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR.
JUSTICE POWELL, I conclude that this decision holding unconstitutional
capital punishment is not an act of judgment, but rather an act of will. It completely ignores
the strictures of Mr. Justice Holmes, writing more than 40 years ago in
Baldwin v.
Missouri:
"I have not yet adequately expressed the more than anxiety that I feel at the
ever increasing scope given to the
Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States.
As the decisions now stand, I see hardly
[*469] any limit but the sky to the invalidating of those rights if they
happen to strike a majority of this Court as for any reason undesirable. I
cannot believe that the Amendment was intended to give us
carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think
of no narrower reason that seems to me to
[**2844] justify the present and the earlier decisions to which I have referred. Of
course the words 'due process of law,' if taken in their literal meaning, have
no application to this case; and while it is too late to deny that they have
been given
[***365] a much more extended and artificial signification, still we ought to remember
the great caution shown by the Constitution in limiting the power of the
States, and should be slow to construe the clause in the
Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the
validity of whatever laws the States may pass."
281 U.S. 586, 595 (1930) (dissenting opinion).
More than 20 years
ago, Justice Jackson made a similar observation with respect to this Court's
restriction of the States in the enforcement of their own criminal laws:
"The use of the due process clause to disable the States in protection of
society from crime is quite as dangerous and delicate a use of federal judicial
power as to use it to disable them from social or economic experimentation."
Ashcraft v. Tennessee, 322 U.S. 143, 174 (1944) (dissenting opinion).
If there can be said to be one dominant theme in the Constitution, perhaps more
fully articulated in the Federalist Papers than in the instrument itself, it is
the notion of checks and balances. The Framers were well aware of the natural
desire of office holders as well as
[***366] others to seek to expand the scope and authority of their
[*470] particular office at the expense of others. They sought to provide against
success in such efforts by erecting adequate checks and balances in the form of
grants of authority to
each branch of the government in order to counteract and prevent usurpation on
the part of the others.
This philosophy of the Framers is best described by one of the ablest and
greatest of their number, James Madison, in Federalist No. 51:
"In framing a government which is to be administered by men over men, the great
difficulty lies in this: You must first enable the government to controul the
governed; and in the next place, oblige it to controul itself."
Madison's observation applies to the Judicial Branch with at least as much
force as to the Legislative and Executive Branches. While overreaching by the
Legislative and Executive Branches may result in the sacrifice of individual
protections that the Constitution was designed to secure against action of the
State, judicial overreaching may result in sacrifice of the equally important
right of the people to govern themselves. The Due Process and Equal Protection
Clauses of the
Fourteenth
[***367] Amendment were
"never intended to
destroy the States' power to govern themselves." Black, J., in
Oregon v. Mitchell, 400 U.S. 112, 126 (1970).
The very nature of judicial review, as pointed out by Justice Stone in his
dissent in the
Butler case, makes the courts the least subject to Madisonian check in the event that
they shall, for the best of motives, expand judicial authority beyond the
limits contemplated by the Framers. It is for this reason that judicial
self-restraint is surely an implied, if not an expressed, condition of the
grant of authority of judicial review. The Court's holding in these cases has
been reached, I believe, in complete disregard of that implied condition.
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