03-06-03 Class discussion: Furman v. Georgia

BRENNAN, concurring (from Bedau)

1. On p. 191, Brennan says “an individual in prison does not lose the rights to have rights.” What does this mean? How does it support his argument? Do you agree or disagree with him?

2. On p. 192, he says “When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily.” What does he mean? How does it support his argument? Do you agree or disagree with him?

3. On p. 193 (a few lines before “IV”), Brennan says “...the inference is compelling that there is a deep-seated reluctance to inflict [the death penalty].” Do you make the same inference from the facts he uses? Do you find it “compelling”?

4. Do you agree or disagree with Brennan’s analysis that the death penalty does not serve any penal purpose more effectively than life imprisonment? (P. 193-194)

5. Brennan remarks that retribution is not an appropriate penal purpose: “..we have no desire to kill criminals simply to get even with them.” (P. 194) Do you agree or disagree?

DOUGLAS, concurring (course packet)

6. On p. 8, Douglas concludes that: “Thus, these discretionary statutes are unconstitutional in their operation.” What does he mean? Where does the discretion come in? Why does he find that the discretion has gone too far and is unconstitutional? Do you agree?

WHITE, concurring (course packet)

7. On p. 9, last paragraph, White concludes that “the death penalty is exacted with great infrequency even for the most atrocious crimes and there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” What evidence does White rely on to reach this conclusion? Why does it lead him to hold that the death penalty is unconstitutional?

MARSHALL, concurring (course packet)

8. Marshall argues that if a less severe sentence (e.g. life imprisonment) would serve the same legislative goals, then the death penalty is “unnecessarily cruel, and, therefore, unconstitutional.” Do you agree or disagree? Do you think that life imprisonment serves the same purposes?

9. What does Marshall say about retribution? (p. 12)

10. On p. 15, Marshall says: “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... the question 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 son in light of all information presently available.” Do you agree or disagree?

BURGER (dissent) (course packet)

11. How do Burger’s and Marshall’s views on public opinion differ? According to Burger, what role do juries play in determining public opinion?

12. Compare Burger’s (p. 20) and Marshall’s (p. 12) views on retribution as a goal of punishment. Try to figure out exactly what their argument is. Which one do you agree with? Why?

ALL DISSENTERS

13. All of the dissenters agree that the death penalty is a matter that should be left up to the legislature. Why do they say this? Where would you draw the line between legislative and judicial issues? In what circumstance is it appropriate for the Supreme Court to strike down legislation? Can you come up with an example?