Death
Penalty in America, Legal Studies 485, Spring 2003
|
|
Death
Penalty in America, Legal Studies 485, Spring 2003 |
It has been assumed in our decisions that
punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In
re Kemmler, 136 U.S. 436, 447. It is also said in our opinions that the proscription of cruel and unusual
punishments "is not fastened to the obsolete but may acquire meaning
as public opinion becomes enlightened by a humane justice." Weems
v. United States, supra, at 378. A like statement was made
in Trop v. Dulles, 356 U.S. 86, 101, that the Eighth
Amendment "must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."
The generality of a law inflicting capital punishment is one thing.
What may be said of the validity of a law on the books and what may
be done with the law in its application do, or may, lead to quite
different conclusions.
It would seem to be incontestable that the death penalty inflicted on
one defendant is "unusual" if it discriminates against him by reason
of his race, religion, wealth, social position, or class, or if it is
imposed under a procedure that gives room for the play of such
prejudices. . .
The words "cruel and unusual" certainly include penalties
that are barbaric. But the words, at least when read in light
of the English proscription against selective and irregular use of
penalties, suggest that it is "cruel and unusual" to apply the death
penalty ‑‑ or any other penalty ‑‑
selectively to minorities whose numbers are few, who are outcasts of
society, and who are unpopular, but whom society is
willing to see suffer though it would not countenance general
application of the same penalty across the board. . . .
There is increasing recognition of the fact that the basic theme
of equal protection is implicit in "cruel and unusual" punishments.
"A penalty . . . should be considered 'unusually' imposed if it is
administered arbitrarily or discriminatorily." The same authors add
that "the extreme rarity with which applicable death penalty
provisions are put to use raises a strong inference of
arbitrariness."
The President's Commission on Law Enforcement and Administration of
Justice recently concluded:
"Finally there is evidence that the imposition of the death sentence and the
exercise of dispensing power by the courts and the executive follow
discriminatory patterns. The death sentence is disproportionately
imposed and carried out on the poor,
the Negro, and the members of unpopular groups."
A study of capital cases in Texas from 1924 to 1968 reached the
following conclusions:
"Application of the death penalty is unequal: most of those executed
were poor, young, and ignorant.
"Seventy‑five of
the 460 cases involved co‑defendants, who, under Texas law,
were given separate trials. In several instances where a white and a
Negro were co‑defendants, the white was sentenced to life
imprisonment or a term of years, and the Negro was given the death
penalty.
"Another ethnic disparity is found in the type of sentence imposed for rape.
The Negro convicted of rape is far more likely to get the death
penalty than a term sentence, whereas whites and Latins are far more
likely to get a term sentence than the death penalty."
Warden Lewis E. Lawes of Sing Sing said:
"Not only does capital punishment fail in its justification, but no
punishment could be invented with so many inherent defects. It is an
unequal punishment in the way it is applied to the rich and to the
poor. The defendant of wealth and position never goes to the electric
chair or to the gallows. Juries do not intentionally favour the rich,
the law is theoretically impartial, but the defendant with ample
means is able to have his case presented with every favourable
aspect, while the poor defendant often has a lawyer assigned by the
court. Sometimes such assignment is considered part of political
patronage; usually the lawyer assigned has had no experience whatever
in a capital case."
Former Attorney General Ramsey Clark has said, "It is the poor, the
sick, the ignorant, the powerless and the hated who are executed."
One searches our chronicles in
vain for the execution of any member of the affluent strata of this society. The
Leopolds and Loebs are given prison terms, not sentenced to death.
We cannot say from facts disclosed in these records that these
defendants were sentenced to death
because they were black. Yet our task is not restricted to an effort
to divine what motives impelled these death penalties. Rather, we
deal with a system of law and of justice that leaves to the
uncontrolled discretion of judges or juries the determination whether
defendants committing these crimes should die or be imprisoned. Under
these laws no standards govern the selection of the penalty. People
live or die, dependent on the whim of one man or of 12.
. . .
In a Nation committed to equal protection of the laws there is no
permissible "caste" aspect of law enforcement.Yet we know that the
discretion of judges and juries in imposing the death penalty enables
the penalty to be selectively applied, feeding prejudices against the
accused if he is poor and despised, and lacking political clout, or
if he is a member of a suspect or unpopular minority, and saving
those who by social position may be in a more protected position.
In ancient Hindu law a Brahman was exempt from capital
punishment, and under that law, "generally,
in the law books, punishment increased in severity as social
status diminished." We have, I fear, taken in practice the same
position, partially as a result of making the death penalty
discretionary and partially as a result of the ability of the
rich to purchase the services of the most respected and most
resourceful legal talent in the Nation.
The high service rendered by the "cruel and unusual" punishment
clause of the Eighth Amendment is to require legislatures to write
penal laws that are evenhanded, nonselective, and nonarbitrary, and
to require judges to see to it that general laws are not applied
sparsely, selectively, and spottily to unpopular groups.
A law that stated that anyone making more than $ 50,000 would be
exempt from the death penalty would plainly fall, as would a law that
in terms said that blacks, those who never went beyond the fifth
grade in school, those who made less than $ 3,000 a year, or those
who were unpopular or unstable should be the only people executed. A
law which in the overall view reaches that result in practice has no
more sanctity than a law which in terms provides the same.
Thus, these discretionary statutes are unconstitutional in their operation. They
are pregnant with discrimination and discrimination is an ingredient
not compatible with the idea of equal protection of the laws that is
implicit in the ban on "cruel and unusual" punishments. . . .
MR. JUSTICE BRENNAN, concurring (reprinted in Bedau, The Death
Penalty in America, pp. 189-203)
MR. JUSTICE WHITE, concurring.
In joining the Court's judgments, I do not at all intimate that the death
penalty is unconstitutional per se or that there is no system of
capital punishment that would comport with the Eighth Amendment.
That question, ably argued by several of my Brethren, is not
presented by these cases and need not be decided. . . .
I begin with what I consider a near truism: that the death penalty
could so seldom be imposed that it would cease to be a credible
deterrent or measurably to contribute to any other end of punishment
in the criminal justice system. It is perhaps true that no matter how
infrequently those convicted of rape or murder are executed, the
penalty so imposed is not disproportionate to the crime and those
executed may deserve exactly what they received.
It would also be clear that executed defendants are finally and
completely incapacitated from again committing rape or murder or any
other crime. But when imposition of the penalty reaches a certain
degree of infrequency, it would be very doubtful that any existing
general need for retribution would be measurably satisfied. Nor could
it be said with confidence that society's need for specific
deterrence justifies death for
so few when for so many in like circumstances life imprisonment or
shorter prison terms are judged sufficient, or that community values
are measurably reinforced by authorizing a penalty so rarely
invoked.
Most important, a major goal of the criminal law ‑‑ to
deter others by punishing the convicted criminal ‑‑ would
not be substantially served where the penalty is so seldom invoked
that it ceases to be the credible threat essential to influence the
conduct of others. For present purposes I accept the morality and
utility of punishing one person to influence another. I accept also
the effectiveness of punishment generally and need not reject the
death penalty as a more effective deterrent than a lesser punishment.
But common sense and
experience tell us that seldom‑enforced
laws become ineffective measures for controlling human conduct and
that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those
crimes for which it may be exacted.
The imposition and execution of the death penalty are obviously cruel
in the dictionary sense. But the penalty has not been considered
cruel and unusual punishment in the constitutional sense because it
was thought justified by the social ends it was deemed to serve. At
the moment that it ceases realistically to further these purposes,
however, the emerging question is whether its imposition in such
circumstances would violate the Eighth Amendment. It is my view that
it would, for its imposition would then be the pointless and needless
extinction of life with only marginal contributions to any
discernible social or public purposes. A penalty with such negligible
returns to the State would be patently excessive and cruel and
unusual punishment violative of the Eighth
Amendment.
It is also my judgment that this point has been reached with respect
to capital punishment as it is presently administered
under the statutes involved in these cases. Concededly, it is
difficult to prove as a general proposition that capital punishment,
however administered, more effectively serves the ends of the
criminal law than does imprisonment. But however that may be, I
cannot avoid the conclusion that as the statutes before us are now
administered, the penalty is so infrequently imposed that the threat
of execution is too attenuated to be of substantial service to
criminal justice.
I need not restate the facts and figures that appear in the opinions
of my Brethren. Nor can I "prove" my conclusion from these data. But,
like my Brethren, I must arrive at judgment; and I can do no more
than state a conclusion based on 10 years of almost daily exposure to
the facts and circumstances of hundreds and hundreds of federal and
state criminal cases involving crimes for which death is the
authorized penalty. That conclusion, as I have said, is that the
death penalty is exacted with great infrequency even for the most
atrocious crimes and that there is no meaningful basis for
distinguishing the few cases in which it is imposed from the many
cases in which it is not. The short
of it is that the policy of vesting sentencing authority
primarily in juries ‑‑ a decision largely motivated by
the desire to mitigate the harshness of the law and to bring
community judgment to bear on the sentence as well as guilt or
innocence ‑‑ has so effectively achieved its aims that
capital punishment within the confines of the statutes now before us
has for all practical purposes run its course. . .
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.. .
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" and,
therefore, violative of the Eighth Amendment. . . .
Perhaps the most important principle in analyzing "cruel and unusual"
punishment questions is on that is reiterated again and again in the
prior opinions of the Court: i. e., the cruel and unusual language
"must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society." Thus, a penalty that was
permissible at one time in our Nation's history is not necessarily
permissible today. . .
.
Faced with an open question, we must establish our standards for
decision. . . [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. 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.
Second, there are punishments that are unusual, signifying that they
were previously unknown as penalties for a given offense. If these
punishments are intended to serve a humane purpose, they may be
constitutionally permissible. Prior decisions leave open the question
of just how much the word "unusual" adds to the word "cruel.". .
.
Third, a penalty may be cruel and unusual because it is excessive and
serves no valid legislative purpose. 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; these punishments are
unconstitutional even though popular sentiment may favor them. . .
.
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 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
. . .
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. It is sufficient to note that murder is the
crime most often punished by death, followed by kidnapping and
treason. Rape is a capital offense in 16 States and the federal
system.
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 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?" 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
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. 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, and the Eighth Amendment itself was adopted to prevent
punishment from becoming synonymous with vengeance. . . .
To preserve the integrity of the Eighth Amendment, the Court has
consistently denigrated retribution as a permissible goal of
punishment. 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 society's abhorrence of
the act. 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. . .
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.
While the contrary position has been argued, it is my firm opinion
that the death penalty is a more severe sanction than life
imprisonment. Admittedly, there are
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.
It must be kept in mind, then, that the question to be considered is
not simply whether capital punishment is a deterrent, but whether it
is a better deterrent than life imprisonment. . .
Statistics also show that the deterrent effect of capital punishment
is no greater in those communities where executions take place than
in other communities. In fact, there is some evidence that imposition
of capital punishment may actually encourage crime, rather than deter
it. And, while police and law enforcement officers
are the strongest advocates of capital punishment, the
evidence is overwhelming that
police are no safer in communities that retain the sanction than in
those that have abolished it.
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. Most of the persons sentenced to death are murderers, and
murderers tend to be model prisoners.
. . .
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.
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. For the most part, they are
first offenders, and when released from prison they are known to
become model citizens. Furthermore, most persons who commit capital
crimes are not executed. With respect to those who are sentenced to
die, it is critical to note that the jury is never asked to determine
whether they are likely to be recidivists. In light of these facts,
if capital punishment were justified purely on the basis of
preventing recidivism, it would have to be considered to be
excessive; no general need to obliterate all capital offenders could
have been demonstrated, nor any specific need in individual
cases.
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. 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.
. .
In light of the previous discussion on deterrence, any suggestions
concerning the eugenic benefits of capital punishment are obviously
meritless. . . [T]his 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, 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. Condemned men are not productive members of the prison
community, although they could be, and executions are expensive.
Appeals are often automatic, and courts admittedly spend more time
with death cases.
At trial, the selection of jurors is likely to become a costly, time‑consuming
problem in a capital case, 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. Because there is a
formally established policy of not executing insane persons, great
sums of money may be spent on detecting and curing mental illness in
order to perform the execution. 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. 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.
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 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.
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."
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."
While a public opinion poll obviously is of some assistance in
indicating public acceptance or rejection of a specific penalty, 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. 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.
It has often been noted that American citizens know almost nothing
about capital punishment.
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 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 its sole justification
for capital punishment, might influence the citizenry's view of the
morality of capital punishment. The solution to the problem lies in
the fact that no one has ever seriously advanced retribution as a
legitimate goal of our society. Defenses of capital punishment are
always mounted on deterrent or other similar theories. This should
not be surprising. It is the people of this country who have urged in
the past that prisons rehabilitate as well as isolate offenders, and
it is the people who have injected a sense of purpose into our
penology. I cannot believe that at this stage in our history, the
American people would ever knowingly support purposeless vengeance.
Thus, I believe that the great mass of citizens would conclude on the
basis of the material already considered that the death penalty is
immoral and therefore unconstitutional.
But, if this information needs supplementing, I believe that the
following facts would serve to convince even the most hesitant of
citizens to condemn death as a sanction: capital punishment is
imposed discriminatorily against certain identifiable classes of
people; there is evidence that innocent people have been executed
before their innocence can be proved; and the death penalty wreaks
havoc with our entire criminal justice system. Each of these facts is
considered briefly below.
Regarding discrimination, it has been said that "it is usually the
poor, the illiterate, the underprivileged, the member of the minority
group ‑‑ the man who, because he is without means, and is
defended by a court‑appointed attorney ‑‑ who
becomes society's sacrificial lamb . . . ." 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. Of the
executions, 3,334 were for murder; 1,664 of the executed murderers
were white and 1,630 were Negro; 455 persons, including 48 whites and
405 Negroes, were executed for rape. 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. 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. 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.
It also is evident that the burden of capital
punishment falls upon the poor, the ignorant, and the underprivileged
members of society. 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.
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. No matter how careful courts are, the possibility of
perjured testimony, mistaken honest testimony, and human error remain
all too real. We have no way of
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. . .
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." In short "the
presence of the death penalty as the keystone of our penal system
bedevils the administration of criminal justice all the way down the
line and is the stumbling block in the path of general reform and of the treatment of crime and criminals."
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.
For this reason alone capital punishment cannot stand.
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. 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" and join the
approximately 70 other jurisdictions in the world which celebrate
their regard for civilization and humanity by shunning capital
punishment.
MR. CHIEF JUSTICE BURGER, dissenting:
. . .
If we were possessed of legislative power, I would either join with
MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL or, at the very least,
restrict the use of capital punishment to a small category of the
most heinous crimes. Our constitutional inquiry, however, must be
divorced from personal feelings as to the morality and efficacy of
the death penalty, and be confined to the meaning and applicability
of the uncertain language of the Eighth Amendment. There is no
novelty in being called upon to interpret a constitutional provision
that is less than self-defining,
but, of all our fundamental guarantees, the ban on "cruel and unusual
punishments" is one of the most difficult to translate into
judicially manageable terms. The
widely divergent views of the Amendment expressed in today's opinions
reveal the haze that surrounds this constitutional command. Yet it is
essential to our role as a court that we not seize upon the enigmatic
character of the guarantee as an invitation to enact our personal
predilections into law.
Although the Eighth Amendment literally reads as prohibiting only
those punishments that are both "cruel" and "unusual," history
compels the conclusion that the Constitution prohibits all
punishments of extreme and barbarous cruelty, regardless of how
frequently or infrequently imposed.
. . .
III
There are no obvious indications that capital punishment offends the
conscience of society to such a degree that our traditional deference
to the legislative judgment must be abandoned. It is not a punishment
such as burning at the
stake that everyone would ineffably find to be repugnant to all
civilized standards. Nor is it a punishment so roundly condemned that
only a few aberrant legislatures have retained it on the statute
books. Capital punishment is authorized by statute in 40 States, the
District of Columbia, and in the federal courts for the commission of
certain crimes. On four
occasions in the last 11 years Congress has added to the list of
federal crimes punishable by death. In looking for
reliable indicia of contemporary attitude, none more trustworthy has
been advanced.
One conceivable source of evidence that legislatures have abdicated
their essentially barometric role with respect to community values
would be public opinion polls, of which there have been many in the
past decade addressed to the question of capital punishment. Without
assessing the reliability of such polls, or intimating that any
judicial reliance could ever be placed on them, it need only be noted
that the reported results have shown nothing approximating the
universal condemnation of capital punishment that might lead us to
suspect that the legislatures in general have lost touch with current
social values.
Counsel for petitioners rely on a different body of empirical
evidence. They argue, in effect, that the number of cases in which
the death penalty is imposed, as compared with the number of cases in
which it is statutorily available, reflects a general revulsion
toward the penalty that would lead to its repeal if only it were more
generally and widely enforced. It cannot be gainsaid that by the
choice of juries -- and sometimes judges
-- the death penalty is imposed in far fewer than half the
cases in which it is available. To go further and characterize
the rate of imposition as "freakishly rare," as petitioners
insist, is unwarranted hyperbole. And regardless of its
characterization, the rate of imposition does not impel the
conclusion that capital punishment is now regarded as intolerably
cruel or uncivilized.
It is argued that in those capital cases where juries have
recommended mercy, they have given expression to civilized values and
effectively renounced the legislative authorization for capital
punishment. At the same time it is argued that where juries have made
the awesome decision to send men to their deaths, they have acted
arbitrarily and without sensitivity to prevailing standards of
decency. This explanation for the infrequency of imposition of
capital punishment is unsupported by known facts, and is inconsistent
in principle with everything this Court has ever said about the
functioning of juries in capital cases. . . .
The responsibility of juries deciding capital cases in our system of
justice was nowhere better described than in Witherspoon v.
Illinois:
"[A] jury that must choose between life imprisonment and
capital punishment can do little more -- and must do nothing less
--than express the conscience of the community on the ultimate
question of life or death. And one of the most important functions
any jury can perform in making such a selection is to maintain a link
between contemporary community values and the penal system -- a link
without which the determination of punishment could hardly reflect
'the evolving standards of decency that mark the progress of a
maturing society."
The selectivity of juries in imposing the punishment of death is
properly viewed as a refinement on,
rather than a repudiation of, the statutory authorization for
that penalty. Legislatures prescribe
the categories of crimes for which the death penalty should be
available, and, acting as "the conscience of the community," juries
are entrusted to determine in individual cases that the ultimate
punishment is warranted. Juries are undoubtedly influenced in this
judgment by myriad factors. The motive or lack of motive of the
perpetrator, the degree of injury or suffering of the victim or
victims, and the degree of brutality in the commission of the crime
would seem to be prominent among these factors. Given the general
awareness that death is no longer a routine punishment for the crimes
for which it is made available, it is hardly surprising that juries
have been increasingly meticulous in their imposition of the penalty.
But to assume from the mere fact of relative
infrequency that only a random assortment of pariahs are sentenced to
death, is to cast grave doubt on the basic integrity of our jury
system.
It would, of course, be unrealistic to assume that juries have been
perfectly consistent in choosing the cases where the death penalty is
to be imposed, for no
human institution performs with perfect consistency. There are
doubtless prisoners on death row who would not be there had they been
tried before a different jury or in a different State. In this sense
their fate has been controlled by a fortuitous circumstance. However,
this element of fortuity does not stand as an indictment either of
the general functioning of juries in capital cases or of the
integrity of jury decisions in individual cases. There is no
empirical basis for concluding that juries have
generally failed to discharge in good faith the responsibility
described in Witherspoon
-- that of choosing between life and death in individual cases
according to the dictates of community values.
The rate of imposition of death sentences falls far short of
providing the requisite unambiguous evidence that the legislatures of
40 States and the Congress have turned their backs on current or
evolving standards of decency in continuing to make the death penalty
available. For, if selective imposition evidences a rejection of
capital punishment in those cases where it is not imposed, it surely
evidences a correlative affirmation of the penalty in those cases
where it is imposed. Absent some clear indication that the continued
imposition of the death penalty on a selective basis is violative of
prevailing standards of civilized conduct, the Eighth Amendment
cannot be said to interdict its use.
. . . Two of the several aims of punishment are generally associated
with capital punishment -- retribution and deterrence. It is argued
that retribution can be discounted because that, after all, is what
the Eighth Amendment seeks to eliminate. There is no authority
suggesting that the Eighth Amendment was intended to purge the law of
its retributive elements, and the Court has
consistently assumed that retribution is a legitimate
dimension of the punishment of crimes. See Williams v. New York, 337
U.S. 241, 248 (1949); United States v. Lovett, 328 U.S. 303, 324
(1946) (Frankfurter, J., concurring). Furthermore, responsible legal
thinkers of widely varying persuasions
have debated the sociological and philosophical aspects of the
retribution question for generations, neither side being able to
convince the other. It would be reading a great
deal into the Eighth Amendment to hold that the punishments
authorized by legislatures cannot constitutionally reflect a
retributive purpose.
The less esoteric but no less controversial question is whether the
death penalty acts as a superior deterrent. Those favoring abolition
find no evidence that it does. Those favoring retention start from
the intuitive notion that capital punishment should act as the most
effective deterrent and note that there is no convincing evidence
that it does not. Escape from this empirical stalemate is sought by
placing the burden of proof on the States and concluding that they
have failed to demonstrate that capital punishment is a more
effective deterrent than life imprisonment. Numerous justifications
have been advanced for shifting the burden, and they
are not without their rhetorical appeal. However, these
arguments are not descended from established constitutional
principles, but are born of the urge to bypass an unresolved factual
question.
Comparative deterrence is not a matter that lends itself to precise
measurement; to shift the burden to the States is to provide an
illusory solution to an enormously complex problem. If it were proper
to put the States to the test of demonstrating the deterrent value of
capital punishment, we could just as well ask them to prove the need
for life imprisonment or any other punishment. Yet I know of no
convincing evidence that life imprisonment is a more effective
deterrent than 20 years' imprisonment, or even that a $ 10 parking
ticket is a more effective deterrent than a $ 5 parking ticket. In
fact, there are some who go so far as to challenge the notion that
any punishments deter crime. If the States are unable to adduce
convincing proof rebutting such assertions, does it then follow that
all punishments are suspect as being "cruel and unusual" within the
meaning of the Constitution? On the contrary, I submit that the
questions raised by the necessity approach are beyond the pale of
judicial inquiry under the Eighth Amendment. . . .
MR. JUSTICE BLACKMUN, dissenting.
I join the respective opinions of THE CHIEF JUSTICE, MR. JUSTICE
POWELL, and MR. JUSTICE REHNQUIST, and add only the following,
somewhat personal, comments.
1. Cases such as these provide for me an excruciating agony of the
spirit. I yield to no one in the depth of my distaste, antipathy,
and, indeed, abhorrence, for the death penalty, with all its aspects
of physical distress and fear and of moral judgment exercised by
finite minds. That distaste is buttressed by a belief that capital
punishment serves no useful purpose that can be demonstrated. For me,
it violates childhood's training and life's experiences, and is not
compatible with the
philosophical convictions I have been able to develop. It is
antagonistic to any sense of reverence
for life." Were I a legislator, I would vote against the death
penalty for the policy
reasons argued by counsel for the respective petitioners and
expressed and adopted in the several opinions filed by the Justices
who vote to reverse these judgments. . . .
And were I the chief executive of a sovereign State, I would be
sorely tempted to exercise executive clemency as Governor Rockefeller
of Arkansas did recently just before he departed from office. There
-- on the Legislative Branch of the State or Federal Government, and
secondarily, on the Executive Branch – is where the authority
and responsibility for this kind of action lies. The authority should
not be taken over by the judiciary in the modern guise of an Eighth
Amendment issue.
I do not sit on these cases, however, as a legislator, responsive, at
least in part, to the will of constituents. Our task here, as must so
frequently be emphasized and re-emphasized, is to pass upon the
constitutionality of legislation
that has been enacted and that is challenged. This is the sole
task for judges. We should not allow our personal preferences as to
the wisdom of legislative and congressional action, or our distaste
for such action, to guide our judicial decision in cases such as
these. The temptations to cross that policy line are very great. In
fact, as today's
decision reveals, they are almost irresistible. . . .
Although personally I may rejoice at the Court's result, I find it
difficult to accept or to justify as a matter of history, of law, or
of constitutional pronouncement. I fear the Court has overstepped. It
has sought and has achieved an end.
MR. JUSTICE POWELL, dissenting.
. . .
I now return to the overriding question in these cases: whether this
Court, acting in conformity with the Constitution, can justify its
judgment to abolish capital punishment as heretofore known in this
country. It is important to keep in focus the enormity of the step
undertaken by the Court today. Not only does it invalidate hundreds
of state and federal laws, it deprives those jurisdictions of the
power to legislate with respect to capital punishment in the future,
except in a manner consistent with the cloudily outlined views of
those Justices who do not purport to undertake total abolition.
Nothing short of an amendment to the United States Constitution can
reverse the Court's judgments. Meanwhile, all flexibility is
foreclosed. The normal democratic process, as well as the
opportunities for the several States to respond to the will of their
people expressed through ballot referenda (as in Massachusetts,
Illinois, and Colorado), is now shut off.
The sobering disadvantage of constitutional adjudication of this
magnitude is the universality and permanence of the judgment. The
enduring merit of legislative action is its responsiveness to the
democratic process, and to revision and change: mistaken judgments
may be corrected and refinements perfected. In
England and Canada critical choices were made after studies
canvassing all competing views, and in those countries revisions may
be made in light of experience. . . .
With deference and respect for the views of the Justices who differ,
it seems to me that all these studies -- both in this country and
elsewhere -- suggest that, as a matter of policy and precedent, this
is a classic case for the exercise of our oft-announced allegiance to
judicial restraint. I know of no case in which greater gravity and
delicacy have attached to the duty that this Court is called on to
perform whenever legislation -- state or federal -- is challenged on
constitutional grounds. It seems to me that the sweeping judicial action
undertaken today reflects a basic
lack of faith and confidence in the democratic process. Many may
regret, as I do, the failure of some
legislative bodies to address the capital punishment issue
with greater frankness or effectiveness. Many might decry their
failure either to abolish the penalty entirely or selectively, or to
establish standards for its enforcement. But impatience with the
slowness, and even the unresponsiveness, of legislatures is no
justification for judicial intrusion upon
their historic powers. . . .
MR. JUSTICE REHNQUIST, dissenting.
. . . Whatever its precise rationale, today's holding necessarily
brings into sharp relief the fundamental question of the role of
judicial review in a democratic society. How can government by the
elected representatives of the people co-exist with the power of the
federal judiciary, whose members are constitutionally insulated from
responsiveness to the popular will,
to declare invalid laws duly enacted by the popular branches
of government?
. . . Rigorous attention to the limits of this Court's authority is
likewise enjoined because of the natural desire that beguiles judges
along with other human beings into imposing their own views of
goodness, truth, and justice upon others. Judges differ only in that
they have the power, if not the authority, to enforce their desires.
This is doubtless why nearly two centuries of judicial precedent from
this Court counsel the sparing use of that power. The most expansive
reading of the leading constitutional cases does not remotely suggest
that this Court has been granted a roving commission, either by the
Founding Fathers or by the framers of the Fourteenth Amendment, to
strike down laws that are based upon notions of policy or morality
suddenly found unacceptable by a majority of this Court. . . .
If there can be said to be one dominant theme in the Constitution,
perhaps more fully articulated in the Federalist Papers than in the
instrument itself, it is the notion of checks and balances. The
Framers were well aware of the natural desire of office holders as
well as others to seek to expand
the scope and authority of their
particular office at the expense of others. They sought to
provide against success in such efforts by erecting adequate checks
and balances in the form of grants of authority to each branch of the
government in order to counteract and prevent usurpation on the part
of the others. . . .
Return to homepage