MARSHALL, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

408 U.S. 238

Furman v. Georgia

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] [p315]

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.

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 [p316] 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.

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 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] [p317]

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]

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, [p318] 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." ^[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 prohibited. ^[n12] The use of the word "unusual" in the final draft appears to be inadvertent.

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. [p319]

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]

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 [p320] called upon to ratify the Constitution of great concern for the omission of any prohibition against torture or other cruel punishments. ^[n17]

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? . . . 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 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 [p321] 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 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] [p322]

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, 9 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 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 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 [p323] 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 simply because it is unusual, so long as the legislature has a humane purpose in selecting it. ^[n20]

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 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 [p324] 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 (1910). 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 "[t]ime works changes, [and] brings into existence new conditions and purposes," ^[n23] the Court commented that, "[i]n the application of a constitution . . . [p325] our contemplation cannot be only of what has been, but of what may be." ^[n24]

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]

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 doubt that excessive punishments were as objectionable a 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 [p326] came another landmark case, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).

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 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 "[t]he 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] [p327] The four dissenters felt that the case should be remanded for further facts.

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]

Emphasizing the flexibility inherent in the words "cruel and unusual," the Chief Justice wrote that "[t]he 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. [p328]

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), 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 punishment clause was not a static concept, but one that must be continually reexamined "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]

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. [p329]

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 standard 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.

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] [p330] There is no holding directly 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.

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. [p331]

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; 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); 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 "[t]he whole inhibition [of the prohibition against cruel and unusual punishments] [p332] is against that which is excessive," O'Neil v. Vermont, 144 U.S. at 340, 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 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 excessive or [p333] 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]

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" 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]

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] [p334] The early history of capital punishment in England is set forth in McGautha v. California, 402 U.S. 183, 197-200 (1971), and need not be repeated here.

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]

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] [p335]

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]

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 "[w]ith county jails inadequate and insecure, the criminal population seemed best controlled by death, mutilation, and fines." ^[n53]

Even in the 17th century, there was some opposition [p336] to capital punishment in some of the colonies. In his "Great Act" of 1682, William Penn prescribed death only for premeditated murder and treason, ^[n54] although his reform was not long-lived. ^[n55]

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]

The "Enquiries" of Rush and Bradford and the Pennsylvania movement toward abolition of the death [p337] 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.

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 [p338] or more after a trial would be an effective deterrent to exercise of his power. ^[n64] The law spread throughout New England, and led to Michigan's being the first State to abolish capital punishment in 1846. ^[n65]

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]

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. ^[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 "[f]ew states outside the South had more than one or two . . . capital offenses" in addition to treason and murder. ^[n70]

But the Civil War halted much of the abolition furor. One historian has said that,

[a]fter the Civil War, men's finer sensibilities, which had once been revolted by the execution of a fellow being, seemed hardened and [p339] 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 also abolished it de facto in 1872, and by law in 1907. ^[n72]

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]

By 1917, 12 States had become abolitionist jurisdictions. ^[n75] But, under the nervous tension of World War I, [p340] four of these States reinstituted capital punishment and promising movements in other State came grinding to a halt. ^[n76] During the period following the First World War, the abolitionist movement never regained its momentum.

It is not easy to ascertain why the movement lost its vigor. Certainly, much attention was diverted from penal reform during the economic crisis of the depression and the exhausting 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]

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 [p341] capital punishment for all federal crimes, but it died in committee. ^[n80]

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 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]

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. 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 [p342] 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.

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 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 [p343] tolerate punishment as it is imposed on one who deviates from the norm established by the criminal law.

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.

In Weems v. United States, 217 U.S. at 381, the Court, in the course of holding that Weems' punishment violated the Eighth Amendment, contrasted it with penalties provided for other offenses, and concluded:

[T]his 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.) [p344] 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 mean 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 [p345] 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.

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]

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 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]

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 [p346] 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 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, and it seems perfectly reasonable to continue to view it as such. ^[n91]

It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is [p347] a deterrent, but whether it is a better deterrent than life imprisonment. ^[n92]

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]

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 [p348] inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal who, 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 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,

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.

Abolitionists attempt to disprove these hypotheses by amassing statistical evidence to demonstrate 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]

Thorsten Sellin, one of the leading authorities on capital punishment, has urged that, if the death penalty [p349] 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 -- 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.)

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 are misinterpreted as accidental deaths or suicides, and there [p350] 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.

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 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.

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] This conclusion is borne out by others who have made similar [p351] 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]

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 [p352] are the strongest advocates of capital punishment, ^[n114] the evidence is overwhelming that police are no safer in communities that retain the sanction than in those that have abolished it. ^[n115]

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] [p353]

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]

The United Nations Committee that studied capital punishment found that

[i]t 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]

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 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 [p354] was needed. ^[n122] Edward Livingston reached a similar conclusion with respect 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]

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] [p355]

C. Much of what must be said about the death penalty as a device to prevent 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 thee 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.

D. The three final purposes which may underlie utilization 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 the Sixth Amendment to jury trials, it is unconstitutional. United States [p356] 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.

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 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 [p357] 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.

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] and executions are expensive. ^[n133] Appeals are often automatic, and courts admittedly spend more time with death cases. ^[n134] [p358]

At trial, the selection of jurors is likely to become a costly, time-consuming 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.

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.

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]

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 [p359] Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive. It is not improper at this point to take 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] [p360]

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] [p361]

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]

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] [p362]

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]

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 deterrent than life imprisonment, that convicted murderers are [p363] rarely executed, but are usually sentenced to a term in prison; that convicted murderers usually are model prisoners, and that they almost always become law-abiding 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.

This information would almost surely convince the average citizen that the death penalty was unwise, but a problem arises as to whether it would convince him that the penalty was morally reprehensible. 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 is 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 to convince [p364] 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

[i]t 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 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] [p365] 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 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.

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]

It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged [p366] members of society. ^[n155] It is the poor, 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.

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] [p367]

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 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]

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 [p368] 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 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.

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] [p369]

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

[t]he 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 of the treatment of crime and criminals. ^[n162]

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. [p370]

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. [p371] 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 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 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]

I concur in the judgments of the Court.

[Appendices I, II, and III follow.] [p372]

APPENDIX I TO OPINION OF MARSHALL, J., CONCURRINGABOLITION OF THE DEATH PENALTY IN THE UNITEDSTATES: 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]       --          --            --

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 Year Maine* N.H. Vt. Mass. R.I.* Conn. Rates Exec. Rates Exec. Rates Exec. Rates Exec.1920 1.4 1.8 2.3 2.1 1 1.8 3.9 11921 2.2 2.2 1.7 2.8 3.1 2.9 21922 l.7 1.6 1.1 2.6 2.2 2.9 1 1923 1.7 2.7 1.4 2.8 1 3.5 3.11924 1.5 1.6 .6 2.7 1 2.0 3.51925 2.2 1.3 .6 2.7 1.8 3.71926 1.1 .9 2.2 2.0 1 3.2 2.9 11927 1.9 .7 .8 2.1 6 2.7 2.3 21928 l.6 1.3 1.4 1.9 3 2.7 2.71929 1.0 1.5 1.4 1.7 6 2.3 2.6 11930 1.8 .9 1.4 1.8 2.0 3.2 21931 1.4 2.1 1.1 1 2.0 2 2.2 2.71932 2.0 .2 1.1 2.1 1 l.6 2.91933 3.3 2.7 l.6 2.5 1.9 1.81934 1.1 1.4 1.9 2.2 4 1.8 2.41935 1.4 1.0 .3 1.8 4 1.0 1.91936 2.2 1.0 2.1 l.6 2 1.2 2.7 11937 1.4 1.8 1.8 1.9 2.3 2.0 11938 1.5 1.8 1.3 1.3 3 1.2 2.1 11939 1.2 2.3 1 .8 1.4 2 l.6 1.31940 1.5 1.4 .8 1.5 1.4 1.8 21941 1.1 .4 2.2 1.3 1 .8 2.21942 1.7 .2 .9 1.3 2 1.2 2.51943 1.7 .9 .6 .9 3 1.5 l.6 21944 1.5 1.1 .3 1.4 .6 1.9 11945 .9 .7 2.9 1.5 1.1 1.5 11946 1.4 .8 1.7 1.4 1 1.5 l.6 31947 1.2 .6 1.1 1 l.6 2 1.5 1.91948 1.7 1.0 .8 1.4 2.7 1.7 11949 1.7 1.5 .5 1.1 .5 1.81950 1.5 1.3 .5 1.3 1.5 1.41951 2.3 .6 .5 1.0 .9 2.01952 1.0 1.5 .5 1.0 1.5 1.71953 1.4 .9 .3 1.0 .6 1.51954 1.7 .5 l.6 2 1.0 1.3 1.31955 1.2 1.1 .5 1.2 1.7 1.3 3

* Maine has totally abolished the death penalty, and Rhode Island has severely limited its imposition. Based on ALI, supra, n. 98, at 25. [p374]

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

Year   Mich.*  Ohio     Ind.     Minn.*  Iowa     Wis.*  N.D.*  S.D.      Neb.

               Rate Ex. Rate Ex.         Rate Ex.               Rate Ex.  Rate Ex.

1920    5.6     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   6.7  2   3.6          3   1.8                     4.5

1923    6.l     7.8 10   6.l      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     8.0  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   l.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    l.6        3.7

1933    6.1     8.2 11   6.6  3   3.6     2.9            1.2    1.7        3.2

1934    4.2     7.7  7   7.1  4   3.4     2.3      2.4   l.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   l.6     2.2      2.2   l.6     .1        2.0

1938    3.4     5.1 12   4.4  8   l.6     1.4  4   2.0   2.4     .9        l.6

1939    3.1     4.8 10   3.8  3   l.6     1.8      1.4   1.2    2.8      

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      l.6   1.4     .9        1.8

1943    3.3     4.4  6   2.8      1.2     1.0      1.1    .6    1.4        2.4

1944    3.3     3.8  2   2.8      1.4     1.7  1    .9    .9    l.6        1.3

1945    3.7     4.8  7   4.0  1   1.9     l.6  1   l.6   1.0    2.0        1.2  1

1946    3.2     5.2  2   3.9  1   l.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    3.6     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    .6    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   l.6    .8    2.3        l.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

* 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. 8, at 28. See also id. at 32-34. [p375]

1. 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.

2. 268 Parl.Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor Gardiner).

3. 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).

4. See generally Frankel, Book Review, 85 Harv.L.Rev. 354, 362 (1971).

5. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 848 (1969).

6. 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).

7. 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).

8. 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.

9. E.g., 2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891).

10. 2 G. Trevelyan, History of England 467 (1952 reissue).

11. Granucci, supra, n. 5, at 854.

12. Id. at 855.

13. 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.

14. 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.

15, Grannucci, supra, n. 5, at 840; 1 Schwartz, supra, n. 6, at 276, 278.

16. 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.

17. See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id. at 47-481. See also, 2 Schwartz, supra, n. 6, at 629, 674, 762, 852, 968.

18. 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.

19. 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).

20. 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.

21. 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.

22. Id. at 373.