“Source: https://supreme.justia.com/cases/federal/us/428/153/”
This opinion has been excerpted by [Shawn Kelley, Juan Hernandez] Spring, 2017.
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MR. JUSTICE BRENNAN, dissenting. *
The Cruel and Unusual Punishments Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." [Footnote 3/1] The opinions of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS today hold that "evolving standards of decency" require focus not on the essence of the death penalty itself, but primarily upon the procedures employed by the State to single out persons to suffer the penalty of death. Those opinions hold further that, so viewed, the Clause invalidates the mandatory infliction of the death penalty, but not its infliction under sentencing procedures that MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS conclude adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.
In Furman v. Georgia, 408 U. S. 238, 408 U. S. 257 (1972) (concurring opinion), I read "evolving standards of decency" as requiring focus upon the essence of the death penalty itself, and not primarily or solely upon the procedures
Page 428 U. S. 228
under which the determination to inflict the penalty upon a particular person was made. I there said:
"From the beginning of our 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 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."
"It is this 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."
Id. at 408 U. S. 296. [Footnote 3/2] That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional
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system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws. Thus, I too say:
"For myself, I do not hesitate to assert the proposition that the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts, or, as stated by the Supreme Court . . . the application of 'evolving standards of decency.' . . . [Footnote 3/3]"
This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, "moral concepts" require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society. [Footnote 3/4] My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point, and that, therefore, the punishment of death, for whatever crime and under all circumstances, is "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings -- a punishment must not be so severe as to be degrading to human dignity. A judicial determination
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whether the punishment of death comports with human dignity is therefore not only permitted, but compelled, by the Clause. 408 U.S. at 408 U. S. 270.
I do not understand that the Court disagrees that,
"[i]n comparison to all other punishments today . . . , the deliberate extinguishment of human life by the State is uniquely degrading to human dignity."
Id. at 408 U. S. 291. For three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and unusual punishment. I perceive no principled basis for this limitation. Death, for whatever crime and under all circumstances,
"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. . . . An executed person has indeed 'lost the right to have rights.'"
Id. at 408 U. S. 290. Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment. Id. at 408 U. S. 279.
The fatal constitutional infirmity in the punishment of death is that it treats
"members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity."
Id. at 408 U. S. 273. As such, it is a penalty that "subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [ Clause]." [Footnote 3/5] I therefore would hold,
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on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause.
"Justice of this kind is obviously no less shocking than the crime itself, and the new 'official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first. [Footnote 3/6]"
I dissent from the judgments in No. 74-6257, Gregg v. Georgia, No. 75-5706, Proffitt v. Florida, and No. 75-5394, Jurek v. Texas, insofar as each upholds the death sentences challenged in those cases. I would set aside the death sentences imposed in those cases as violative of the Eighth and Fourteenth Amendments.
* [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 428 U. S. 242, and No. 75-5394, Jurek v. Texas, post, p.428 U. S. 262.]
Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958) (plurality opinion of Warren, C.J.).
Quoting T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959).
Novak v. Beto, 453 F.2d 661, 672 (CA5 1971) (Tuttle, J., concurring in part and dissenting in part).
Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736 (1976).
Trop v. Dulles, 356 U.S. at 356 U. S. 99 (plurality opinion of Warren, C.J.).
A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub.1960).
MR. JUSTICE MARSHALL, dissenting.*
In Furman v. Georgia, 408 U. S. 238, 408 U. S. 314 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.
I have no intention of retracing the "long and tedious journey" id. at 408 U. S. 370, that led to my conclusion in Furman. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren's holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause.
In Furman, I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id. at 408 U. S. 331-332; 408 U. S. 342-359. And
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second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would, in my view, reject it as morally unacceptable. Id. at 408 U. S. 360-369.
Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U.S.C. §§ 1472(i), (n) (1970 ed., Supp. IV). I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that, if they were better informed, they would consider it shocking, unjust, and unacceptable. 408 U.S. at 408 U. S. 360-369. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty. [Footnote 4/1]
Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an
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uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it. Id. at 408 U. S. 331; ante at 428 U. S. 173, 428 U. S. 182-183 (opinion of STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, post at 428 U. S. 353-354 (WHITE, J., dissenting). The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty -- life imprisonment -- would do as well.Furman, supra at 408 U. S. 342 (MARSHALL, J., concurring).
The two purposes that sustain the death penalty as nonexcessive in the Court's view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment. 408 U.S. at 408 U. S. 347-354. [Footnote 4/2] The state of knowledge at that point, after literally centuries of debate, was summarized as follows by a United Nations Committee:
"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. [Footnote 4/3]"
The available evidence, I concluded in Furman, was convincing that "capital punishment is not necessary as a deterrent to crime in our society." Id. at 408 U. S. 353.
The Sollicitor General, in his amicus brief in these cases,
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relies heavily on a study by Isaac Ehrlich, [Footnote 4/4] reported a year after Furman, to support the contention that the death penalty does deter murder. Since the Ehrlich study was not available at the time of Furman, and since it is the first scientific study to suggest that the death penalty may have a deterrent effect, I will briefly consider its import.
The Ehrlich study focused on the relationship in the Nation as a whole between the homicide rate and "execution risk" -- the fraction of persons convicted of murder who were actually executed. Comparing the differences in homicide rate and execution risk for the years 1933 to 1969, Ehrlich found that increases in execution risk were associated with increases in the homicide rate. [Footnote 4/5] But when he employed the statistical technique of multiple regression analysis to control for the influence of other variables posited to have an impact on the homicide rate, [Footnote 4/6] Ehrlich found a negative correlation between changes in the homicide rate and changes in execution risk. His tentative conclusion was that, for the period from 1933 to 1967, each additional execution in the United States might have saved eight lives. [Footnote 4/7]
The methods and conclusions of the Ehrlich study
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have been severely criticized on a number of grounds. [Footnote 4/8] It has been suggested, for example, that the study is defective because it compares execution and homicide rates on a nationwide, rather than a state-by-state, basis. The aggregation of data from all States -- including those that have abolished the death penalty -- obscures the relationship between murder and execution rates. Under Ehrlich's methodology, a decrease in the execution risk in one State combined with an increase in the murder rate in another State would, all other things being equal, suggest a deterrent effect that quite obviously would not exist. Indeed, a deterrent effect would be suggested if, once again all other things being equal, one State abolished the death penalty and experienced no change in the murder rate, while another State experienced an increase in the murder rate. [Footnote 4/9]
The most compelling criticism of the Ehrlich study is
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that its conclusions are extremely sensitive to the choice of the time period included in the regression analysis. Analysis of Ehrlich's data reveals that all empirical support for the deterrent effect of capital punishment disappears when the five most recent years are removed from his time series -- that is to say, whether a decrease in the execution risk corresponds to an increase or a decrease in the murder rate depends on the ending point of the sample period. [Footnote 4/10] This finding has cast severe doubts on the reliability of Ehrlich's tentative conclusions. [Footnote 4/11] Indeed, a recent regression study, based on Ehrlich's theoretical model but using cross-section state data for the years 1950 and 1960, found no support for the conclusion that executions act as a deterrent. [Footnote 4/12]
The Ehrlich study, in short, is of little, if any, assistance in assessing the deterrent impact of the death penalty. Accord, Commonwealth v. O'Neal, ___ Mass. ___, 339 N.E.2d 676, 684 (1975). The evidence I reviewed in Furman [Footnote 4/13] remains convincing, in my view, that "capital punishment is not necessary as a deterrent to crime in our society." 408 U.S. at 408 U. S. 353. The justification for the death penalty must be found elsewhere.
The other principal purpose said to be served by the death penalty is retribution. [Footnote 4/14] The notion that retribution
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can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my Brother WHITE in Roberts v. Louisiana, post, p. 428 U. S. 337. See also Furman v. Georgia, 408 U.S. at 408 U. S. 394-395 (BURGER, C.J., dissenting). It is this notion that I find to be the most disturbing aspect of today's unfortunate decisions.
The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and, in this sense, the notion is quite obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment. [Footnote 4/15] It is the question whether retribution can provide a moral justification for punishment -- in particular, capital punishment -- that we must consider.
My Brothers STEWART, POWELL, and STEVENS offer the following explanation of the retributive justification for capital punishment:
"'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
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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.'"
Ante at 428 U. S. 183, quoting from Furman v. Georgia, supra at 408 U. S. 308 (STEWART, J., concurring). This statement is wholly inadequate to justify the death penalty. As my Brother BRENNAN stated in Furman,
"[t]here is no evidence whatever that utilization of imprisonment, rather than death, encourages private blood feuds and other disorders."
408 U.S. at 408 U. S. 303 (concurring opinion). [Footnote 4/16] It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.
In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values -- that it marks some crimes as particularly offensive, and therefore to be avoided. The argument is akin to a deterrence argument, but differs in that it contemplates the individual's shrinking from antisocial conduct not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong. This contention, like the previous one, provides no support for the death penalty. It is inconceivable that any individual concerned about conforming his conduct to what society says is "right" would fail to realize that murder is "wrong" if the penalty were simply life imprisonment.
The foregoing contentions -- that society's expression of moral outrage through the imposition of the death penalty preempts the citizenry from taking the law into its
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own hands and reinforces moral values -- are not retributive in the purest sense. They are essentially utilitarian, in that they portray the death penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.
There remains for consideration, however, what might be termed the purely retributive justification for the death penalty -- that the death penalty is appropriate not because of its beneficial effect on society, but because the taking of the murderer's life is itself morally good. [Footnote 4/17] Some of the language of the opinion of my Brothers STEWART, POWELL, and STEVENS in No. 74-6257 appears positively to embrace this notion of retribution for its own sake as a justification for capital punishment. [Footnote 4/18] They state:
"[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."
Ante at 428 U. S. 184 (footnote omitted).
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They then quote with approval from Lord Justice Denning's remarks before the British Royal Commission on Capital Punishment:
"'The truth is that some crimes are so outrageous that society insists on adequate punishment because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.'"
Ante at 428 U. S. 184 n. 30.
Of course, it may be that these statements are intended as no more than observations as to the popular demands that it is thought must be responded to in order to prevent anarchy. But the implication of the statements appears to me to be quite different -- namely, that society's judgment that the murderer "deserves" death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment. See Furman v. Georgia, 408 U.S. at 408 U. S. 343-345 (MARSHALL, J., concurring). The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as JUSTICES STEWART, POWELL, and STEVENS remind us, "the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society." Ante at 428 U. S. 182. To be sustained under the Eighth Amendment, the death penalty must "compor[t] with the basic concept of human dignity at the core of the Amendment," ibid.; the objective in imposing it must be "[consistent] with our respect for the dignity of [other] men." Ante at 428 U. S. 183. See Trop v. Dulles, 356 U. S. 86, 356 U. S. 100 (1958) (plurality opinion). Under these standards, the taking of life "because the wrongdoer deserves it" surely must
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fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth. [Footnote 4/19]
The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court's judgment upholding the sentences of death imposed upon the petitioners in these cases.