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the DON JONES
INDEX… |
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GAINS
POSTED in GREEN LOSSES
POSTED in RED 2/19/24... 15,011.95 2/12/24... 15,037.86 |
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6/27/13… 15,000.00 |
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(THE DOW JONES INDEX:
2/19/24... 38,627.99; 2/12/24... 38,671.86; 6/27/13… 15,000.00) |
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LESSON for FEBRUARY
NINETEENTH, 2024 – “CRIMERICA #3: – “THOSE ROTTEN, FU#&@ING KIDS!”
Were many Americans, or others, surprised to be informed,
Thursday evening, that the mass shooters who broke up the Kansas City Chiefs’ Valentines’
victory parade two days earlier were a couple of juveniles (or, in the
vernacular, kids)? Adolescents, to be
accurate, although their ages – like their names, addresses, race, religion
(social media reports blaming an Islamic immigrant were proven false by
FactCheck, below), mental condition or terroristic inclinations remain being
held by the authorities.
As we noted in our last Lesson, crime may be up some places,
down others... more or less trending downward except in the fevered pronunciations
of victims and their relatives, tabloid media and partisan politicians who
shout out that the answer to crime in the streets is to elect THEM and see what
a wonderful world it will be.
The Office of Juvenile Justice (OJJDP) keeps statistics of
juvenile crime by democraphics and states… unfortunately their most recent data
is several years old, probably because of the COVIC closures. (Attachment One, Tables 1, 2 and 3) Nonetheless, certain tendancies are gleanable
from these and the Office’s many other reports: that juvenile delinquents tend
to be male, members of minority races by percentage, although white overall;
and that roughly half are under the age of sixteen. Within these statistics, there are variations
by the types of crimes committed… that blacks are more likely to be arrested
for thefts or homicide, whites for rapes or liquor law offenses; that younger
criminals are more likely to be arrested for arson or vandalism before
“graduating” to capitalism; females for disorderly conduct (although four
percent are taken into custody for rape!).
Geographically, the Office has not included homicide nor
rape in its roster of offenses for 2019 but aggravated assault… the next most serious
offense… is likelier to happen in Delaware or Nevada than anywhere else, that
Delaware is also third in the nation for armed robbery behind Maryland and
Illinois (which also has the most stoners, along with South Dakota and Wyoming
and racks up the most weapons charges).
There are more thieves in Alabama and Nebraska than elsewhere. All things considered, if personal safety is
your concern, stay away from Chicago.
(See the full charts as Attachment One)
That some of these facts and figures might be more
figurative than factual emerges in the 2020 records, if you believe either chart.
Cold states (Alaska, Montana, South Dakota) top Delaware
(which remains high) in aggravated assaults.
Illinois clearly outpaces Maryland and the rest of the country in
robberies, Nebraska remains atop the list of thieves with Iowa now second and
the Dakotas now lead in drug arrests – cold, nothing to do, why not?
As far as corrections go, Americans now divide evenly on
whether the criminal justice system should treat teens who commit violent
crimes the same as adults (46%) or give more lenient treatment in juvenile
courts (47%). “This marks a shift in attitudes from two decades ago, when
majorities of 65% in 2000 and 59% in 2003 felt juveniles aged 14 to 17 who commit
crimes should be treated the same as adult criminals.” (Gallup polling, Attachment Two, October
2023). The demographic tend to follow
popular partisanship – higher educated, urban elites tend to be more forgiving
(unless something happens to them or
to someone they know).
Republicans have a quick and greasy answer to the crisis...
more police, more (and tougher) laws and more prisons – ever mindful that MAGA
is lying in wait for elephantine shirkers and shitkickers to reveal their true
pink or purple colours.
Blame is easy to ascribe: Biden did it. The impeachment case may have fallen apart
due to a lying FBI agent, but no matter... the far-right Washingon Examiner
affirms; not only does he support crime in the streets, but he is now “trying
to distance himself from the Democratic Party’s soft approach to crime” as
November draws near, just as he announced his opposition to a lenient local law in the District of Columbia
that would reduce sentences for carjackers and other criminals who use guns in
the commission of their crimes.
(ATTACHMENT THREE, 3/10/23)
“But recent events in Maryland, right next to Washington, show that Biden will have a lot to run away from.”
Most Democrats, mindful of how the crime issue has been
weaponized against them in the near and distant past, promulgate more of the
same – although with a few sops about “underdeveloped” juvenile brains, “root
conditions”... poverty (as if the MAGAhero has disproven that only poor people
steal), mental illness, more programs... more handouts, more spending, more
debt and more gun control.
Democrats like Maryland’s Vincent Schiraldi, who heads the
Maryland Department of Juvenile Services, argues that prosecuting young
robbers, carjackers, and killers as adults “can set them on a life of crime.” His
answer is to not convict them of felonies, no matter what they have done,
before age 25.
Republicans have more and better solutions – close the
border and (finally) build that great, big, beautiful wall... impervious to
ladders, wirecutters, uninspected turnip trucks crossing in California, Texas
or Arizona. Throw asylum seekers out of
helicopters, gas or strafe them... proliferate a panic about dark-skinned
people on good, clean American streets as can only be assuaged by stop and
frisk, raise and tase, shoot and execute.
Juvenile justice reform in Maryland has set the legislation (HB814) up for criticism from both
sides of the aisle.
“This bill is about placing the failings of
adults on very young children and children accused of committing minor
offenses,” said an official with the Maryland Public Defender’s office. (WBFF,
Fox, Baltimore, Feb. 8th, Attachment Four)
Others, however, argue the bill still needs to
be taken a step further to ensure accountability for rising property and
quality of life crimes across the state.
The data driving the new measures was also at
the center of debate, many claiming it doesn’t exist.
“There’s no data,” said liberal delegate
Charlotte Crutchfield.
“We are proposing a bill that is not based on
any data, that is not based on any facts, and that’s not based on any
evidence,” said another official with the Maryland Public Defender’s office.
But State’s Attorney’s from Baltimore City,
Prince George’s County, and Montgomery County all say the evidence they’re
seeing firsthand is overwhelming and undeniable.
“There’s absolutely no question, gun offenses, auto theft, they’re off the charts,” said Montgomery County States Attorney John McCarthy, “When it comes to violent crime and the crimes that people care about the numbers are exploding.”
The Peanut Gallery clearly checked in on the
side of cracking nuts. “Just wait... the student from Kenwood that Attempted murder
on another student will soon be returning if not already to school,” posted
one. “Baltimore County has no respect
for the safety of our children.”
Another framed the issue electorally: “Get rid of all the
Democrats they are a danger to the taxpayers of Maryland.”
There is going to be a test of which partisan stance
prevails once the juvenile killers at the Chiefs’ victory parade in Kansas City
go to trial. One person died and 22
others were injured after gunfire rang out outside Union Station on Wednesday
as fans were leaving a parade and rally, according to police.
Two juveniles have been detained by authorities amid the
investigation and charges have not yet been filed, according to Kansas City
police. (ABC News, February 15th,
Attachment Five – and below).
Juvenile justice has become an issue in Ohio, where Cincinnati police arrested two teenagers for an assault on 6th and Walnut. The 14-year-old allegedly involved in the assault was released from juvenile detention with an ankle monitor. (WCPO, February 9th, Attachment Six)
Juvenile Court Judge Kari Bloom said the primary goal of
juvenile court is education and reform — not punishment. “We cannot have black-and-white policies,”
Bloom said.
When the perps were picked up and let go a week earlier
Prosecutor Melissa Powers called out juvenile judges for "lenient policies
(that) are enabling for this problem to continue," and said that some
judges in Hamilton County are "failing miserably at their job."
The solution for us, and this office and my prosecutors, she
promised (WCPO, Attachment Seven) is that “we will continue to fight hard
against soft-on-crime judges, the woke judges, the radical ideas of restorative
justice and continue to emphasize how important it is for the public to be
protected ... so the public takes action that they're awake and they're paying
attention to how important their vote is to the types of judges they're
electing in this county because it has a direct impact on our quality of
life," Powers said.
Angela Chang, director of the youth defense division for the
public defender's office, said... however... that things like mental health
treatment can help a child understand long-term consequences, adding they can't
learn those things behind bars.
She said juveniles are more likely to be rehabilitated and
changed through treatment.
"We certainly don't want to define any child by something they've done … the worst thing that they've ever done," she said.
Not even murder?
Earlier in the week, Police Chief Teresa Theetge said when
it comes to youth violence, everyone needs to come to the table. She is hoping
for better conversations with judges moving forward in hopes of finding a solution. (WCPO, Attachment Eight)
"We have to really be careful and cautious as a
community to not over-correct and, you know, widen the net and keep more kids
in detention or out of you know, disrupting their lives when they don't need to
be," Chang had said.
Mayor Aftab Pureval released a statement calling both
attacks "chilling" and "tragic," and noted the issue goes
beyond policing... then launching into more bureaucratese favoring “a hard look
at our systems and a multi-jurisdictional approach.” Like Tjeetge, he wants to bring everyone to
the table.
Democrats squeak: “Me too!” as kitchen table issues fall beneath the wave of crime and border crises. They addressed the latter by adopting the Republican border bill fashioned by Speaker Mike Johson and others, only to end up flat on their asses like Charlie Brown after Lucy (Johnson) pulled the ball away to maximize the chances of Djonald UnConvicted (at least criminally) keeping the issues unresolved and simmering until November. Now and again they resuscitate their zombie gun control bills as are supposed to keep weapons out of the hands of the enraged, upstaged and plain batshit crazy lone wolves... some with a partisan axe to grind, then swing, others for money, others for the hell of it.
And the criminals are getting younger. (See Attachment One, above and charts
beneath)
And, reality be damned, perceptions of kiddie criminality
are engorging themelves on the fear thrown off by Don Jones as the American
Tabloid media showcases one atrocity after another.
In the week leading up to Kansas City, juvenile atrocities
included the Baltimore and Ohio atrocities while, north and west in Seattle and
environs, local prosecutors reported seeing
“alarming trends” in recent violent crimes involving teens.
Across Pierce and King counties, more kids are
landing behind bars for more serious crimes involving stealing cars and
robberies with a weapon.
“The biggest thing we’re seeing is stolen
cars, Kias and Hyundais. That’s the biggest problem we’re seeing. That’s an almost
500% increase,” Casey McNerthney with the King County Prosecuting Attorney’s
Office said. (KOMO, February 8th,
Attachment Nine)
Among the unindicted co-conspirators, he
blames social media.
“Once the TikTok
trend happened, then we saw that explode, as many places did because
of this TikTok trend,” McNerthney said, “When you tell people how to do it on
the internet, it leads to all kinds of bad decisions.”
“I think the most alarming trend for me is the
fact that robberies and assaults have more than doubled since 2019,” said
Pierce County Prosecuting Attorney Mary Robnett.
In 2019, Pierce County prosecutors had 19
juvenile referrals for robbery in the first degree. By 2023, that number jumped
up to 133.
In almost half of those arrests (48.5%), the
kids were between 13 to 15 years old.
Puget Peanuts showed little sympathy for the
poor dahlings.
“The coddling /enabling of these kids needs to stop!” WP
stomped a foot. “In Southern states, if
a child misses more than a day of school unexcused, a city official is knocking
on your door to find out what’s going on. Years ago, here, they’d make parents
go to truancy court. What happened to that?”
“Juveniles robbing people in parking lots, stealing cars,
smashing stolen cars into businesses to break inside, it's a free-for-all, and
(soft on crime) HB1140 needs to be repealed,” ML proposed. “We need stricter
laws for felonies, there must be a deterrent. We have kids doing armed
robberies who get to court and get an ankle bracelet.”
“Not at all alarming with the liberal policies of catch and
release, especially with minors,” complained HL. Until a clear message is sent
that this will not be tolerated and there will be automatic consequences that
are actually enforced, nothing will change.
And a practical, if perhaps unconstitutional solution...
“How about releasing the identity of these thugs?” proposed
RC. “An informed community is a
protected community. Parents had the option to maintain dignity...they passed
on it. Responsible parents have the right to know who in their kids schools are rapists, drug dealers, car thieves and
vandals.
Or, ventured TN...
Maybe having a father inside the home is a good idea.
Well, Democrats may finally be standing up on their hind
legs to bark... ditching the gun controllers (except rhetorically) and
“me-tooing” on tough anti-crime tactics as more and more swing suburban
neighborhoods and a growning (still) minority of black and brown folks dust off
the old war bonnet and follow the felon candidate down a road of bricks of all
sorts of colours, just there to pick up and toss at Clueless Joe.
Back in Maryland on Febraury Sixth, the Cecil Daily Whig
flipped its wig over one proposal key Democratic
lawmakers detailed – sending children as young as 10 to court for auto thefts
and handgun violations by giving Juvenile Services officers the option to route
a young person’s case to court if the child is 10 to 13 years of age and
accused of these or other crimes — adding them to the list of serious offenses
that already can land a young person before a judge. (Attachment Ten)
“Right now, juvenile offenders and the
services and accountability they need are separated by an abundance of
confusion,” said House Speaker Adrienne Jones, D-Baltimore County. “Egos,
political agendas and arguments over process have filled the gaps...”
preventing “all parts (from) working to their highest potential” according to
State Senate President Bill Ferguson, D-Baltimore City. Democratic Governor Wes Moore has also hopped
aboard the train.
The announcement on Wednesday gave shape to
Democrats’ response to pleas for accountability amid spikes in certain youth
offenses in recent years. While youth violent crime arrests fell 16.5% overall
between fiscal years 2020 and 2023, according to a Juvenile Services report
last year, carjackings increased by 85.4% and handgun violations rose almost
220%.
The proposals may be meant to “promote
collaboration and make the system work more smoothly”, Democratic officials
said, but youth advocates worry that they will lead to higher incarceration
rates, especially of youth of color.
Advocates in the Maryland Youth Justice
Coalition predicted in a written statement that the “legislation introduced
today will see thousands more kids incarcerated every year, particularly Black
and brown children, and (exacerbate) the already serious racial disparities in
Maryland’s juvenile justice system.”
Hip Hip Hooray, throated Republicans... House
Minority Leader Jason Buckel, R-Allegany, said he appreciates that Moore has
put his weight behind the issue of youth crime.
“For him to be able to step in and say, ‘Hey,
I’m a Democrat. I’m from Baltimore City, but I’m going to step up and say too
much is too much and this is a reasonable way to deal with this’ — it’s
incredibly helpful,” Buckel said.
Buckel said he also hopes Moore will be able
to persuade fellow Democrats to consider other tough ideas, too.
And this morning, President Joe saved some
nice words for Moore, while declaiming more bad words about Russia and paddling
the perceptively pro-Putin, pro-Hamas Congress.
Which pedaddling reference leads to an older posting and to
a hoary and largely abandoned remedy, now re-gaining popularity over the last
fifteen years since the selfsame Elkton MD medium ventured a proposal to bring
back the whipping post, the stocks... not so much the dunking stool, but given
the vagaries of publicity (and a surplus of water in Maryland of late), some Joneses
might be amenable to returning of the glory days of earlier times and trends
and perhaps forestall the Capital (as in punishing, adults and youth) by re-imposing the Corporal.
Back in Missouri (pre-parade) the August 23, 2022 Cassville
School District reinstated spanking for disruptive students and, in Springfield... 175 miles
from KC... Springfield school board member Steve
Makoski held up a wooden paddle to menace the snowflakes as he urged a return
to corporal punishment.
"I would encourage board members to begin
a dialogue — I brought a prop with me here — and that dialogue would be corporal
punishment," he said. "I think it's something that we should talk
about. I believe it could be used as one of our tools as part of discipline
guidelines." (Attachment Eleven)
Board member Judy Brunner, a former
Springfield teacher and principal, was the only one to respond to Makoski's
suggestion.
"As far as corporal punishment is
concerned, I served many years as a principal and I thank the good Lord no one
ever expected me to hit a child and that is just the truth. I could not have
done it," she said. "I paddled my own at home. I could not have done
it in a school setting, I could not."
Speaking to Lathan, Makoski said support for
good behavior ought to start with parents.
"Dr. Lathan and your employees, they're faced
with no choice but to deal with the behavioral issues because students I think
in general lack discipline from the homefront and ... I don't want to say this
in a broad brush that all the parents are like that," he said.
"Parents mean well but sometimes I think we're just a babysitting
service."
One of the steps Makoski suggested that
appeared to gain traction was a significant restriction of smartphone use in
the classroom.
Brunner said she agreed that "cellphones
are one issue, I am not going to say they are not" but stopped short of
calling for them to be restricted or banned.
Board member Maryam Mohammadkhani said when
this topic comes up, it is not uncommon for parents to say they want their
children to have access to a smartphone if "something truly horrific"
happens while they are at school. But she disagrees with that rationale, saying
it creates chaos.
"You want one person telling the students
where to go, duck down, exit through the window," she said, noting that by
phone, the directions can become diluted by "parents and friends and
cousins."
"We need to have one commander and that
is the teacher in the classroom," she said.
As the Cassville spanking legislation was being debated,
Donna St. George of the WashPost did acknowledge that “(i)n over 15 states... mainly in the South...
schools can still paddle students as punishment,” but called upon a legion of
bloody shirts... well, red arses, at
least...
Adults who were spanked as children exhibited more
antisocial behavior and had more mental health problems, according to a
study co-authored by Elizabeth Gershoff, a professor at the University of Texas at Austin “who
studies corporal punishment” and found that a history of spankings was linked ?to more depressive symptoms, more
suicide attempts, more moderate to heavy drinking, and more drug use.” (Attachment Twelve)
Which among kids, of course, would lead to more
spankings and a cycle of life, at least in Texas.
When Tijuanda Beckworth’s son was in middle school a decade ago in Leflore County in the Mississippi Delta, a principal paddled him. She did not know at the time; her son told her years later. The practice was more common then, affecting more than 100,000 students nationally. By 2017-18, the total had dropped to about 70,000.
Beckworth still sees the upside of the practice.
“I don’t think corporal punishment was put in place to be abusive,” she said. “From what I see, as a parent and a disciplinarian, you have to have accountability. There have to be consequences for their actions.”
Nationally, support for the practice is diminishing.
By 2018,
use of corporal punishment had
fallen 35 percent in four years. More recent data from several states,
including Mississippi and Arkansas, suggests a far steeper plunge since then.
In Mississippi, the state’s total of more than 24,000 incidents in 2018-19
plummeted to fewer than 4,000 last year. Arkansas’s drop was not quite as
sharp but still fell nearly 60 percent during the same period.
“The practice of corporal punishment is antithetical to
positive child and adolescent development and school safety,” Miguel Cardona
wrote in a
letter to
education officials across the country.
Still... some say that the threat of being struck is a
powerful motivator that keeps kids in line. They look to their own lives,
having been spanked or belted by parents or other relatives, concluding that
their experiences show that it works. And in the nation’s “Bible Belt,”
religion is also central, including Bible passages that many interpret as
suggesting that when parents “spare the rod,” they spoil a child.
On the topic of Biblical admonitions, religion and corporal
punishment was, among the charts and graphs noted in last week’s Lesson, a global chart on
crime and punishments around the world.
And... surprise!... the safest nations in the world were the Islamist
petro-theocracies of the MidEast where... under the umbrella of “Sharia” (a
code of crimes and more... uh... intimate punishments) as has made countries
like Iran, or Qatar or Saudi Arabia a dim and dangerous place to do dirty
deeds.
The Islamic Network Group (ING) has produced a series of
questions and answers about Sharia in the United States, including a look at
what exactly Sharia means and encompasses, how much of a real threat Sharia
really poses in this country, and who is behind this campaign. (Attachment Thirteen)
Corporal punishment, as deduced by encyclopaedical sourcs
such as Wikipedia and Brittanica, can be applicable either to juveniles in the
United States... as of 2024, corporal punishment is still
legal in private schools in every U.S. state except New Jersey, Iowa, New York
and Maryland, legal in public schools in 17 states, and practiced in 12 of the
states... .or adults,
worldwide, as a result of a
sentence imposed on an offender by a court
of law. (See website for footnotes)
Some of
such punishments including flagellation (also called flogging or whipping), amputations,
caning, bastinado, birching, or strapping. Legal corporal punishment is
forbidden in most countries, but it still is a form of legal punishment
practiced according to the legislations of Brunei, Iran,[1] Libya,[1] the
Maldives,[1] Malaysia,[1] Saudi Arabia,[1] Singapore,[1] the United Arab
Emirates,[2][1] Yemen,[1] and Qatar,[1] as well as parts of Indonesia (Aceh
province)[1] and Nigeria (northern states).[1]
Capital punishment in
Islam is traditionally regulated by the Islamic law (sharīa), which
derived from the Quran, ḥadīth literature, and sunnah (accounts of the sayings
and living habits attributed to the Islamic prophet Muhammad during his
lifetime).[1][not specific enough to verify][2][not specific enough to verify]
Crimes according to the sharīa law which could result in capital
punishment include apostasy from Islam, murder, rape, adultery, homosexuality,
etc.[3][4] Death penalty is in use in many Muslim-majority countries, where it
is utilised as sharīa-prescribed punishment for crimes such as apostasy
from Islam, adultery, witchcraft, murder, rape, and publishing
pornography.[5]Under Islamic law, Hudud crimes (apostasy, revolt against the
ruler, theft, highway robbery, adultery, slander, and drinking alcohol) carry
penalties that include the amputation of hands and feet, flogging, and
death. (Unmentioned, but also on the
death menu buffet: biting into a BLT.)
If, in Islamic republics, the practice of sharia constitutes
an entire creed of cruelty (as “civilized” Westerners tend to term the mores,
messages and messengers of Mohammed – so tourists: beware!) as applicable not only to crime and punishment, but
concepts of disequality between the sexes, intolerance of infidels and, as
above, “revolt against the ruler”.
Brittanica (Attachment Fourteen) discriminates within
Islamic penal law between “Offenses against another person” (viewed as “civil
injuries” and punishable by retaliation (qiṣāṣ),
the offender being subject to precisely the same treatment as the victim at the
discretion of the victim or the victim’s family “who has the right to prosecute
and to opt for compensation or blood
money (diyah) in place of retaliation” and offenses against Islam.
In the latter instance, punishments are fixed (ḥadd): death
for apostasy, amputation of the hand for theft and of the hand and foot
for highway robbery, death by stoning for extramarital sexual relations (zinā)
when the offender is married and 100 lashes when the offender is unmarried, and
80 lashes for an unproved accusation of unchastity (qadhf) and for the
drinking of any intoxicant.
The Brittanica article also treats contract law and other
property transactions as, for example, preclusion of charging “any form of
interest on a capital loan or investment. And since this doctrine was coupled
with the general prohibition on gambling transactions, Islamic law does not, in
general, permit any kind of speculative transaction the results of which, in
terms of the material benefits accruing to the parties, cannot be
precisely forecast.
The unholier-than-them among even fundamentalist Christian sects seldom apply the fundamentals of the Biblical Old Testament... a lift from Judaism... as particularly reflected in Leviticus and Deuteronomy. While said “civilized” diplomats expressed shock and sorrow, if not awe, at the collapse of the Gaza peace (or, at least, hostage for cease-fire) talks because a Hamas representative, perhaps unwittingly, told the truth about propagation of the faith as culminates in Deuteronomy 20:17... God commands that infidels be put to death.
It’s not a matter of disavowal or opinion, it’s God’s
command... in the Koran, to exterminate all
Christians - from laissez-faire nondenominates, Episcopalians or lukewarm
Catholics up through the ladder of Baptists and Mormons to rival sectarians
whether Sunni (the Saudis) or Shiite (Iranians)... even, Joel Osteen! - just as
true Christians are obligated (not counseled) to finish Hitler’s work against
the faithless Jews eradicate not only all Mohammedans, but the Hindus, the
Buddhists, the nudists and atheists and faint-hearted Christians, too.
It’s in the Bible. Go
look it up. The only real believer of recent lore and legend
was Dylan Rooff, the Charleston church shooter who took out nine infidels.
So a simple act of dealing forty (even four) lashes to
disrespectful children in the public or private schools is... well... simply
traditional; endarkened Americans of the distant and even recent past (such as
certain televangelists) might consider God’s judgment against the witches, the
bitches and the heretics... the careless hedonist at their grim pleasures,
pointless labors and trivial entertainments.
As Saturday night’s Stanley Cup sportscasters marveled: “What a night
for the Devils!”
Now, by theocratic standards. a little paddling in the
public or private schools should be hardly offensive... but the Cornell
University Law School (those poison’d Ivies!) consigns it to the toxic waste
dump of “cruel and unusual punishment”.
Citing cases from Florida and Alabama, the Cornellians more
or less consense that “for juvenile non-homicide offenders, it is unconstitutional
for a court to assign life imprisonment without parole.” (Graham v. Florida and Miller v. Alabama...
Attachment Fifteen)
Cornell notes other cases relevant to the cruel and unusual
– for example Whitley v. Albers stating that while some prison beatings as seem an unconstitutional, “unnecessary and
wanton infliction of pain” may be constitutional, if the infliction of pain is
done in a good-faith effort to restore discipline, rather than done maliciously
to cause harm. This standard was applied
to several other instances deemed “excessive” – at least in the corrections
mileau, and Cornell added other situations such as overcrowding and “deliberate
indifference” in which judgments had been rendered for the plaintiffs.
Whether a slap on the fanny would suffice to merit
prosecution was not addressed, but one may assume that... at least in its
present configuration... the current Supremes would look with skepticism upon
making it that most commonplace of grievances: a Federal Case!
In what Daily Beast editor Goldie Taylor termed a
“terrible idea” a year ago Wednesday (2/21/23, Attachment Sixteen), rambling’
man Djonald UnChain released his “rambling” video message, Trump threatened to
upend local juvenile justice systems around the country and slap more Black
boys in prison shackles. In his words,
he wanted to “end the leftist takeover of school discipline and juvenile
justice” and send the federal government to oversee discipline in schools.
“When troubled youth are
going wild, we will stop it. The consequences are swift, certain, and strong,
and they will know that,” he said. “Many of these carjackers and criminals are
13, 14 and 15 years old. I will order the education and justice departments to
overhaul federal standards on disciplining minors,” the then-potentially
soon-to-be (but still at-large) felon pronounced.
Black juveniles are already three times more likely to be incarcerated than Hispanics, and six times more likely to be incarcerated than white children according to Justice Department records, but just when you thought Trump couldn’t stoop any lower, “he hollowed out a canyon and dove in head-first.”
He doesn’t exactly say how he will do this. “Does
the reigning Emperor of Mar-A-Lago plan to build federal prison camps for
children? Labor farms for schoolkids? Or just imprison them alongside adults?
Have the tiny people in his head discussed this?”
In practice, his latest
idea “wouldn’t just speed the school-to-prison pipeline. It would be a bullet
train.”
“Luckily,” delusional Goldie locked arms with the fairies, fauns, fiends and fanatics to (perhaps) falsely forecast: “he won’t be dining on McDonald’s take-out aboard Air Force One ever again.”
He’ll be upgrading to
borscht.
Other virtuous people have their own other (if not
necessarily better) suggestion upon what to do with teen transgressives
(perhaps even of the gender variety in some states) as opposed to locking them
up... sentence them to...
The couch!
Whether as the exhaustive (and expensive... when taxpayers
foot the bill) one-on-one therapy sessions afforded the likes of Robert DeNiro
or a pared down, bargain basement shrinkage such as at Arkham Asylum, decent
liberals will proclaim that even the most psychotic, despotic youth can be made
whole (conforming) again by exploring their pasts and their feelings.
GUK, unsurprisingly, commissioned one Rebecca Redelneier to
probe a few psyches a week ago (Attachment Seventeen) whereupon a nine year old
artiste whose choice of themes was images of guns while he “pretend(ed) to
point the weapons at other students” and “stared angrily” at a teacher.
“Some
people in the school asked me to talk with you to try to figure out how we can
make school easier for you and understand what happened,” the psychiatrist
Nancy Rappaport told the child, according to a recording of the call. She had
documented the session, anonymizing some details, to it as a case study with a room full of
hundreds of child psychiatrists who faced similar requests and “had come from
across the country, gathering at an annual professional meeting of the US’s
child and adolescent psychiatrists last October, to learn how to conduct
similar evaluations effectively.”
“None
of us can predict violence – we don’t really have a future [predicting] ball,”
Rappaport, who is also a psychiatry professor at Harvard, said later.
“The
focus can’t just be on identifying potential school shooters,” cautions Deborah
Weisbrot, a clinical psychiatry professor at Stony Brook University medical
center who also helped lead the training session. “The focus needs to be about
the underlying mental health and characteristics of all the hundreds and
hundreds of kids who make threats, who will never become school shooters, and
what are their needs.”
The
article takes special note of the limited resources and swelling ranks of
“problem children” (many with ADHD or other diagnosed syndromes) who end up in
emergency rooms and are sent off with a pep talk and maybe a pill (and often a
suspension or other punishment that pushes them further and further behind
their peers).
“The
schools are not doing these types of evaluations or processes preventively and
pre-emptively,” said Dan Stewart, a managing attorney for the National
Disability Rights Network. “They’re just telling parents that the kids can’t
return.”
That approach, advocates say, can have a detrimental effect on a student’s long-term wellbeing and academic progress.
“(T)he
response of most schools is that it’s a mental healthcare emergency, not an
education emergency,” said Cheryl Theis, a senior education advocate at the
Disability Rights and Education Defense Fund. “And of course, that’s a
completely false dichotomy.”
Thus the dichotomy... truth or falsehood often falling on
partisan divides... upon whether corporal punishment or incarceration does the
more long-term harm to juveniles – most of whom will grow into adults with
memories in the corners of their minds and murder in their hearts for their
judges.
Well, if not physically painful punishments, why not strike
at their self-created myths of importance that bad behavior commands respect...
a certain occurrence that has gone bacterial, of late.
So, if not a good old fashioned flogging, howabout setting
those delinquent kids up for a few hours in the stocks or the pillory before
their transgressions elevate from talking back to parents and teachers to
shoplifting candy, then scrawling graffiti, stealing cars for joyriding and...
inevitably... gun violence.
Wiki (Attachment Eighteen) differentiates the two popular 17th
and 18th century means of correction wherein the stocks consist of placing boards
around the ankles and wrists, whereas with the pillory, the boards are fixed to a pole and placed around the arms
and neck, forcing the punished to stand. Victims may be insulted, kicked,
tickled (tickled?), spat on, or subjected to other inhumane acts.”
The Q/A website Quora (Attachment Nineteen) responded to
inquiries from tickled Elmos as to why stocks aren’t used as a widespread punishment anymore by attributing
their having fallen out of favor “due to changes in societal attitudes towards
punishment and human rights.”
“The stocks were a form of public humiliation and physical
restraint, and they are now seen as inhumane and degrading. As societies have
evolved, there has been a shift towards more humane and rehabilitative forms of
punishment, as well as a greater emphasis on respecting the dignity of
individuals, regardless of their actions.:
Hi, Vlad! Hi Jeffy,
Charlie, Hi, Son of Sam. Hi, Hitler!
Another Quoran quoted the Universal Declaration of Human
Rights, saying: “The punishment is meant to publicly humiliate the offender,
which is seen to be degrading in nature, and that is seen as a violation of the
human rights of the offender.”
No, no, a few hours of humiliation to take the spizz off
your gangster rep is far, far worse than a few decades in prison, facing all
that that entails and learning useful trades... the shoplifters learning from
the carjackers, learning from the arsonists, learning from the serial killers.
“Is there any evidence that the
medieval practice of putting wrongdoers in the stocks and throwing rotten food
at them actually worked as a deterrent to crime?” asked the lefty limeys at GUK, back in 2012.
“Putting people in the pillory (the stocks only bound the
feet, the pillory the head and arms), a practice that continued into at least
the late 18th century, far from being a soft option, was a way of allowing the
public to pass judgment – and sentence – on the transgressor.” If the crime was
not seen as a serious one the person might have only soft vegetable matter
thrown at them, GUK added, “but if the mob wanted to they could, and often did,
throw stones and bricks, seriously injuring or killing the unfortunate
captive.”
All righty, then, no stones or bricks. No stale bread while we’re at it, no tofu and
no kale... some kinds of punishment are beyond the scope of humanity!
Judicial
punishment has four main points: retribution (you hurt us so we're going to
hurt you back), security (while we're hurting you we're safe), rehabilitation
(being hurt may stop you doing it again) and deterrence (hurting you may put
others off),” explains contributor GentDirly (perhaps a long lost son of Dirk Gently?). The stocks would mainly satisfy the first, have
limited success with the second, less still with the third and the fourth is
debatable. But human nature being what it is, for most people, the first,
retribution, is as far as they care to think.
(Guardian U.K. 10/10/12, Attachment Twenty)
Back to Islamabad and other bad Islamists and we have to
credit Djonald ChainEmUp with having been absolutely right about Afghanistan
and the fact checkers at PolitiFact said so in 2016.
He said America should ban Muslims from entering the United
States “following the mass shooting of an Orlando nightclub by a U.S. citizen
who pledged allegiance to ISIS during the fatal attack.”
Trump singled out Afghanistan to make his point in a speech
June 13, 2016, in New Hampshire asserting that: “According to Pew Research, 99
percent of the people in Afghanistan support oppressive Sharia law."
After explaining that Sharia dictates the killing of all
homosexuals, such as frequente the Pulse, although Islamic apologists say that
Muslims overseas should abide by the rules and regulations of the hosting
country. Even Republicans have come down
on the side of Jesus as opposed to stern Justice, Politico determined
(Attachment Twenty One, 6/16/16).
Trump cited Pew’s 2013 study titled "The World’s
Muslims: Religion, Politics and Society," which did, indeed, find that 99
percent of Muslims in Afghanistan supported Sharia law as the "law of the
land." Politico found other studies
claiming only 94 percent of Afghani Muslims supported murdering gays but,
overall, their FactCheckers spaketh that
More recently (Attachment Twenty Two, February 6th,
2024) the PolitiFactCheckers polled Islamists... no doubt, a dangerous practice
that should have earned them overtime, at the least... and found that, while
and 79
percent favored a death penalty for leaving Islam, only 42% endorsed suicide bombing and an even smaller 37%
percent belive it is "often justified" to kill a woman for
dishonoring her family.
While noting differences between countries... Turks tend
towards more lenient applications of Sharia and a November
2015 study found that the majority of people in 10
countries with large Muslim populations viewed ISIS negatively (except
Pakistan). The study did not include Afghanistan.
So Pew said Trump’s contention was "largely
accurate," noting that the phrase "oppressive" was Trump’s own.
Politifact rated his claim: “Mostly True.”
Suck on that, Joe and Nikki!
Independent Presidential candidate Jack “Catfish”
Parnell (whom some accuse of being, himself, a mythological creature inhating
the Generisis serial “Black Helicopters”) has, nonetheless, a solution of his
own to the problem of juvenile delinquency.
Already having proposed to bring back the military
draft, as a deterrant against potential Russian, Chinese, NoKo, Iranian or
other national aggressors (and to be prepared to resist same if they stop
talking the talk and start walking the walk), his remedy for bad children is
not confinement nor the couch but, rather, to (admittedly hurriedly) establish
military schools offering both STEAM and martial training within a climate of
discipline, respect for authority (but not subservience to tyranny), rigorous
physical and intellectual work and... face the facts... good food, comradeship
and the sort of fatherly mentoring that so many of the worst of the worst lack,
even when parents (some like the Crumbleys) are present. These would begin taking in wayward juveniles
from the ages of thirteen (the age of majority in many cultures) to eighteen or
thereabouts... after which they could graduate to the actual military, to
general or technical higher education, or to the world of work.
It’s not a totally isolated suggestion... there have
been other such proposals which, like the death penalty or substituting short,
quick, painful corporal punishment, lengthy incarcerations or psychiatric
brainwashing, have garnered support and opposition from varying quarters. A few takes on the replacement of Arkham or
Army have been proposed in a sort of enhanced Peanut Gallery as comprises
dcurbanmom.com which, additionally, offers up forums on Capitol, national and
global politics, economics or society.
There are about a hundred entries over five pages at the site with a score from the first page Attached; some of
these speculations raise serious question supon maturitization and mentoring,
expense, abuse and the such being...
PRO: I keep hearing that juvenile offenders are being released from juvie because of lack of space. Most of these kids are lacking discipline, proper adult supervision, and are truants. Why aren't courts ordering that they be sent to military schools instead?
...why not transition to a military school model that is
focused on discipline, structure, but also college preparation?
...they need to go somewhere. These kids are looking for replacement
families, so the state needs to create one for them.
CON: Because they don’t meet admissions criteria. Military schools aren’t a substitute for juvenile detention.
Because military school instructors can no longer lay a
finger on kids and the kids know it. The kids who commit these crimes are not
going to bother listening to a fake drill sergeant when they know there is
nothing backing up the threat.
Those schools aren’t free. You want to pay $30k a year for
criminals to go to school? If you do, you won’t find many others who do.
MCPS did this for the schooling side of it. They sent the
most troubled students to their own school in Rockville. The problem was, the
composition of this school was disproportionately students of one particular
gender, and two particular races. It was not seen as equitable.
Upon the subjects of both Islamism and the Kansas City
massacre, some social
media posts surfacing Saturday falsely claimed that one of those held by
authorities was a 44-year-old “illegal immigrant.”
“The two people that remain in custody are
juveniles, thus not the individual
named Omar. There’s no indication that person is involved in the shooting,”
the police spokesperson was quoted by FactCheck.org
USA Today reported that the name Sahil Omar
had previously been falsely linked in social media posts to a hotel
explosion in Fort Worth, Texas, on Jan. 8, and to a shooting at the University
of Nevada, Las Vegas, in December.
France 24 reported him to be a “forever criminal” named in several other
mass murders – perhaps a conspiracy mystery
meme... man...
invented by bloggers opposed to migrants, Muslims or both.
Thursday’s timeline from the Independent U.K. (16 February
2024 18:40 to 21:40, Attachment Twenty Four) asked a few more interesting
questions – like: What are Missouri’s gun laws? (considered
some of the laxest in the country)...
The answer
(three hours ago)? “In 2021, Missouri
enacted a law called the “Second Amendment Preservation Act,” which made
federal gun regulations illegal statewide, and prohibited law enforcement from
enforcing any federal laws that “infringe on the people’s right to keep and
bear arms.”
A federal judge
later struck it down, having ruled the state law unconstitutional, and the
Supreme Court upheld the decision, thus depriving other nice armed citizens at
the parade of the option of ventilating the gunslingers before they could
complete their carnage. (Of course, they
would all have been crack shots, as opposed to shooters on crack.)
Two hours ago, the Independent reported, Patrick Mahomes
visited the wounded two children of murdered mom Elizabeth
Lopez-Galvan and Kansas City
Police Chief Stacey Graves held a press conference and disclosed that “half of
the victims shot in the attack are children while one victim – a 43-year-old
mother-of-two – died.”
So far, police added, the investigation has found that the shooting may have stemmed from a dispute between people and “was not terrorism-related.” What a guckin’ relief!
One hour ago,
Juvenile Prosecutors with the Jackson County, Missouri Family Court Division
charged two juveniles whose names, faces and details were being withheld (and
would be perhaps longer than Russia would be hiding the corpse of Alexi Navlny)
because “this alleged offense involves juveniles,” their statement continued.
“This is the extent of the information that the Office of the Juvenile Officer
can release at this time.”
Graves was
reported asserting that investigators had “poured themselves into this
investigation, and it continues. We will not relent until everyone who may have
played a part in these crimes is apprehended so that they may be punished to
the fullest extent of the law.”
Issues such as capital or corporal punishment, banishment of
unwanted and undociled children to prisons, psychiatrists and the military
often fall under the Eighth Amendment’s “cruel and unusual punishment
provisions” (justified or not) and, if nothing else, have provided plenty of
working space and income for attorneys.
Reuters, for example,
(October 19, 2023 4:55 AM EDT and Updated 4 months ago, Attachment Twenty Five)
reported and remarked upon a speech delivered at Harvard Law School, wherein
U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President
George W. Bush on the 3rd U.S. Circuit Court of Appeals, “argued that the high
court should abandon a decades-old legal test for deciding if a punishment was
unconstitutional.”
The Supreme Court in a
series of cases starting in 1952 interpreted the 8th Amendment's prohibition on
cruel and unusual punishment based on what opinions described as the
"evolving standards of decency that mark the progress of a maturing
society."
But Hardiman told the
Harvard chapter of the conservative Federalist Society that the standard is a
"contrived ratchet" that has fueled a "runaway train of elastic
constitutionalism" giving judges too much power to invalidate laws in
favor of defendants.
"Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said.
Supreme Court rulings that
have relied on that standard include one in 2005 barring capital punishment for
offenders who were under 18 when they committed crimes and a 2008 decision
striking down a Louisiana law allowing the death penalty for the rape of a
child when the victim did not die.
The court also relied on that standard in a 5-4 decision in 2012 that declared unconstitutional mandatory sentences of life in prison without the possibility of parole for people under age 18 convicted of murder.
The ideological split among
justices has since changed, and thanks to three of Republican former President
Donald Trump's appointments the court now has a 6-3 conservative majority.
Hardiman had been on Trump's
short-list for potential Supreme Court nominees and questions whether the court
would now "return to the text and original meaning of the 8th
Amendment" as it has done in other areas, like the 2nd Amendment.
For example...
In Witherspoon v. Illinois, 391 U.S.
at 391
U. S. 520,
the Court cited a public opinion poll that showed that 42% of the American
people favored capital punishment, while 47% opposed it. But the polls have
shown great fluctuation. See What Do Americans Think of the
Death Penalty?, in Bedau, supra, n.
45, at 231-241. A 1966 poll indicated
that 42% of those polled favored capital punishment while 47% opposed it, and
11% had no opinion. A 1969 poll found 51% in favor, 40% opposed, and 9% with no
opinion. See Erskine, The Polls: Capital Punishment, 34 Public
Opinion Quarterly 290 (1970).
And now to our three litigatory excerpts... the first two
(Attachments “A” Whitley v. Albers) and “B” (State v. Cannon) are of moderate length and draw
heavily from the third (Furman v.
Georgia Attachment “C”), which is extensive in that it historically eliminated
the death penalty for four years – consequently, all nine of the Supremes chose
to clock in with their concurrences (five) or dissents (four).
“Whitley v. Albers” (Attachment “A”)
During the course of a riot at the Oregon State
Penitentiary, a prison officer was taken hostage and placed in a cell on the
upper tier of a two-tier cellblock. In an attempt to free the hostage, prison
officials worked out a plan that called for the prisoner security manager to
enter the cellblock unarmed, followed by prison officers armed with shotguns.
The security manager ordered one of the officers to fire a warning shot and to
shoot low at any inmates climbing the stairs to the upper tier, since he would
be climbing the stairs to free the hostage. One of the officers, after firing a
warning shot, shot respondent in the left knee when he started up the stairs.
Respondent subsequently brought an action in Federal District Court against
petitioner prison officials pursuant to 42 U.S.C. § 1983, alleging, inter
alia, that they had deprived him of his rights under the Eighth and
Fourteenth Amendments. At the conclusion of the trial, the District Court
directed a verdict for petitioners. The Court of Appeals reversed and remanded
for a new trial on respondent's Eighth Amendment claim.
Held:
The shooting of respondent did not violate his Eighth
Amendment right to be free from cruel and unusual punishments. Pp. 475
U. S. 318-326.
Plaintiffs did not prove “obduracy and wantonness”, not
inadvertence or error in good faith, that characterize the conduct prohibited by
the Cruel and Unusual Punishments Clause.
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, and in
all but n. 2 of which STEVENS, J., joined, post, p. 475
U. S. 328.
“State v. Cannon” (Attachment “B”)
The historical development of the laws of (the State of
Delaware)... indicates “a gradual change in the viewpoint and beliefs of the
General Assembly as to what constitutes proper punishment for crime. Indeed,
the state of our present law is such that punishments for crime are now limited
to death by hanging, imprisonment and fining, and in addition, in some few
instances, the imposition of lashes, the sole holdover today of the infliction
of corporal punishment for crime” which issue was at trial in the manner of the
unfortunate defendant.
It is argued to us that we at this time should recognize the
modern view condemning corporal punishment for crime and declare that the
infliction of lashes as punishment is the remnant of a cruel age, and should be
declared to be a violation of the constitutional prohibition against cruel punishments.
We think, however, this is not our function. We accept unquestionably that
Constitutions are living documents in the sense that the phraseology used in
them grows and changes with the passage of time. Weems v. United States, 217
U.S. 349,
30 S. Ct. 544, 54 L. Ed. 793. The meanings of words change and grow with the
changing sensibilities, beliefs and knowledge of man. We think, however, that
this change, this growth, this enlightened meaning of words used in
Constitutions, comes about by reason of the beliefs of the people themselves.
The change may not come solely by reason of the individual belief of an
individual judge. What better way is there for the people to express an enlightened
attitude toward the punishment of crime than through their elected
representatives, the members of the General Assembly who, indeed, hold their
office for the very purpose of expressing the will and beliefs of the people
who elected them.
The three justice panel of the Delaware Supreme Court (in a
controversy not unlike the present-day arguments in favor of and against the
rights of states to evict candidates from a Federal election... only reversed,
in the matter of the United States overturning the wishes of the people of a
state regarding the imposition of justice) determined...
“We think the standards of present day society are to be
determined by the expressions of that society, itself, and not by an expression
of the individual opinions of members of the Judiciary. This standard must be a
collective one and it can be determined only by an expression of views from the
people which make up that society. The only manner in which such an expression
can be made is through the action of duly elected representatives of the
Society whose standard is to be applied.
“Accordingly, we are of the opinion that the Eighth and
Fourteenth Amendments to the Federal Constitution do not invalidate the
statutes of the State of Delaware imposing the punishment of whipping for
certain crimes.
“By reason of all of the foregoing, the answer to the
question certified is in the negative.”
And let the flogging begin!
Both cases, as many more, drew on the far more complex and
far-reaching omnibus decision of Attachment “C”.
“Furman v. Georgia” (1972) (Attachment “C”)
At issue: “The death penalty is unconstitutional under the
Eighth Amendment prohibition against cruel and unusual punishment when it is
imposed in an arbitrary and capricious manner that leads to discriminatory results.”
In these three cases the death penalty was imposed, one of
them for murder, and two for rape. In each, the determination of whether the
penalty should be death or a lighter punishment was left by the State to the
discretion of the judge or of the jury. In each of the three cases, the trial
was to a jury. They are here on petitions for certiorari which we granted
limited to the question whether the imposition and execution of the death
penalty constitute "cruel and unusual punishment" within the meaning
of the Eighth Amendment as applied to the States by the Fourteenth. [Footnote
1]
I vote to vacate each judgment, believing that the exaction of the death
penalty does violate the Eighth and Fourteenth Amendments.
The 5-4 verdict overturned the death penalty in the United
States until it was reinstituted in 1976.
In that Furman and the two other petitioners were black,
accusations of racism were appended to the “cruel and unusual” provisions at
issue. Each of the five Justices voting
to overturn the death penalty and the four to retain it filed separate opinions
touching on history, psychology, sociology and other disciplines in addition to
the law.
Writing for the majority, JUSTICE DOUGLAS opined...
“In these three cases the death penalty was imposed, one of
them for murder, and two for rape. In each, the determination of whether the
penalty should be death or a lighter punishment was left by the State to the
discretion of the judge or of the jury. In each of the three cases, the trial
was to a jury. They are here on petitions for certiorari which we granted
limited to the question whether the imposition and execution of the death
penalty constitute "cruel and unusual punishment" within the meaning
of the Eighth Amendment as applied to the States by the Fourteenth. [Footnote
1]
I vote to vacate each judgment, believing that the exaction of the death penalty
does violate the Eighth and Fourteenth Amendments.”
In his concurrence, JUSTICE MARSHAL took an even sharper
tone, stating that...
“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" [Footnote
4/2]
and, therefore, violative of the Eighth Amendment.”
And, after lengthy digressions into case law, history and
politics, concluding...
“There is too much crime, too much killing, too much hatred
in this country. If the legislatures could eradicate these elements from our
lives by utilizing capital punishment, then there would be a valid purpose for
the sanction, and the public would surely accept it. It would be
constitutional. As THE CHIEF JUSTICE and MR. JUSTICE POWELL point out, however,
capital punishment has been with us a long time. What purpose has it served?
The evidence is that it has served none. I cannot agree that the American
people have been so hardened, so embittered, that they want to take the life of
one who performs even the basest criminal act knowing that the execution is
nothing more than bloodlust. This has not been my experience with my fellow
citizens. Rather, I have found that they earnestly desire their system of
punishments to make sense in order that it can be a morally justifiable
system.”
Dissenting, JUSTICE RENQUIST countered...
“The Court's judgments today strike down a penalty that our
Nation's legislators have thought necessary since our country was founded. My
Brothers DOUGLAS, BRENNAN, and MARSHALL would, at one fell swoop, invalidate
laws enacted by Congress and 40 of the 50 state legislatures, and would consign
to the limbo of unconstitutionality under a single rubric penalties for
offenses as varied and unique as murder, piracy, mutiny, highjacking, and
desertion in the face of the enemy. My Brothers STEWART and WHITE, asserting
reliance on a more limited rationale -- the reluctance of judges and juries
actually to impose the death penalty in the majority of capital cases -- join
in the judgments in these cases. Whatever its precise rationale, today's
holding necessarily brings into sharp relief the fundamental question of the
role of judicial review in a democratic society. How can government by the
elected representatives of the people coexist 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?”
The death penalty was reinstated at the option of the
various states by Gregg v. Georgia in 1976.
|
Our Lesson: FebruaryTwelfth through Eighteenth, 2024 |
|
|
|
Monday, February 12, 2024 Dow: 38,797.33 |
It’s Lincoln’s Birthday.
Nostalgia laid its hand upon Don Jones and family... maybe not as far
back as the days of the Emancipator, but a few decades back to the
Terminator, to old, old Friends, to
Budweiser Clydesdales in the mist in Super Bowl commercials. Even the Kennedy family, the good ones
elder Joneses remembered... exploited by their wacko progeny, RFK Junior. And Star Wars, and the Soviet Space Race. The
game, as expected, was sensational... Kansas City defeating San Francisco in
overtime. Travis Kelce caught passes
from Mahomes and kisses from Taylor.
He didn’t propose marriage, but halftime talent Usher did before an estimated
123M viewers here, more overseas; They would go back to KC for the
Valentines’ victory celebration, thence to Disneyland. Much love...
Not, however, in Ukraine nor in the MidEast where America’s allies
were wondering about when or even whether the arms and ammunition would
resume flowing. Israel resumed talks
with Hamas, who said that their only demand was that the Jewish occupiers
would cease to exist. Breaking them
off, the IDF resumed its attack on Rafah... two hostages were released, 80-some
Gazans killed. And
no love on the campaign trail, not even among partisans as undisciplined
Democrats cope with an aging and probably senile incumbent. Pundit Chuck Todd says the only human or
force of nature short of death that can persuade Old White Joe to step down
is Barack Obama. FRepublicans,
however, fall in line behind Djonald UnHinged, even when he says we should
let Russia conquer any NATO member as falls behind in its dues. No
holiday, that’s next Monday. |
|
|
Tuesday, February 13, 2024 Dow: 38,272.45 |
It’s Fat Tuesday, New Orleans and the world
celebrates Mardi Gras. But
no fats on Wall Street. Inflation
report arrives, numbers more or less expected, but disappointment flows and
the Dow closes down 600 points from Monday’s high. E-con-mystics prognosticate that inflation
will grow thinner, not fatter.
Mass gunwoman brings her five year old toddler with her as she shoots
up Joel Osteen’s megachurch in Houston.
Police kill her, now try to find a motive. No
motive to the weather, just one storm after another pounding the West Coast
with flooding. landslides and snarled traffic; migrating East to cause
blizzards with snowfall described as “concrete”, avalanches and air
cancellations.
Political frivolity blankets Washington in advance of the blizzards...
Democrats muscle though a Senate arms for border compromise bill with no
chance in the House while House Republicans attempt to impach DHS chief
Alejandro Mayorkas, an effort doomed in the Senate which cannot pass in the
House as a few Republicans defect. |
|
|
Wednesday, February 14, 2024
Dow:
38,424.27 |
It’s Valentines’ Day and there’s no love or
motive in KC, where the Chiefs’ victory parade is blasted to smithereens
by... go figure!... teenaged mass murderers who somehow kill only one woman
(a famous and beloved newswoman) but wound at least 22 including small
children in their rampage. New
York is under a deep freeze and the worst snowfall in three years, but it’s
sunny for donkeys out on conservative Long Island where Tom Suozzi, the rube
whom George Santos defeated in 2022, comes back to regain his seat over a
black woman whom Trump promptly expels from MAGA. As sick Scalise returns to the Capitol,
Speaker Mike pushes through another impeachment bill and this one passes by
one vote. (And is still dead in the
Senate.) As
yet another example of lemons making lemonade (sans vodka), pollsters report
that support for Hamas in Gaza is soaring, just as more legal attacks on
former President Trump send his poll
numbers up. |
|
|
Thursday, February 15, 2024 Dow: 38,603.44 |
Police, authorities, prosecutors, psychologists and talking heads all
debate the KC shooting spree, but a man on the street says: “When the bullets
start flying, motives don’t matter.
Players and police, parents and a hero bystander tell their stories;
Kelce and Mahomes tweet their sympathy and horror (Taylor is off to Australia
for another show). Police now believe
it was a teenage gang war, not terrorism. The
terror of Russian space nukes is debated and, by the Administration, mostly
denied. This does not sit will with
either the citizens, nor MAGA. But
with the One Six prosecution temporarily, if not permanently, derailed by
Fani’s follies, the next Trump trial devolves from the sinister to the
ludicrous. Yes... it’s Stormy Time,
again! Trial set for March 25, middle
of primary season.
Nine firefighters injured as a truckload of “green” natural gas fuel
explodes and burns. In
medical news, the CDC now says that people with the plague (Covid) can go
out, mix and mingle with the uninfected.
Relevant or not, a sudden and severe shortage of generic medications
is forcing sick people to buy the expensive originals, and authorities blame
“opaque” management. |
|
|
Friday, February 16, 2024 Dow: 38,671.86 |
The death of Russian dissident Alexander
Navalny at the Arctic prison camp where he was serving a 19 year sentence for
“extremism” was announced. Critics
immediately accused Bad Vlad Putin of poisoning or otherwise murdering him,
Putin’s puppets say he simply collapsed and died while taking a walk.
Trump and Nikki trade barbs... Ol’ 45 saying he mistook her for Pelosi
because “both stink”, Haley accusing him of fomenting chaos and extremism
(which would lead Djonald UnAshamed to compare himself to Navalny this
morning. Late nite comic Seth Myers
compared him to “a mental health patient who just saw an alien.” The once and perhaps future President then
deserted the campaign trail to deal with his 354 million civil judgment (4M for
Eric and Don Junior) and... as Georgia’s electoral case collapses under
Fani’s fling with prosecutor Wade... his first other criminal trial, now has been set for late March.
Welcome back, Stormy!
And, just to show that Don Jones can’t escape politication of
everything, the media noted the 60th anniversary of the Beatles
coming to America by calling forth Al Gore to give a rambling recitation of
his seeing them when he was fifteen... having to pay three whole dollars for tickets.
(At least Paul got his old guitar back.) |
|
|
Saturday, February 17, 2024 Dow: Closed |
With Navalny dead, President Joe warns
Russia that he’d better not take Trump up on his suggestion to invade more
NATO countries, but is undercut as Congress, rather than voting on continuing
military aid to Ukraine, Israel and Taiwan, flounces off to another two week
vacation. An unusually bitter Zelensky
reminds them that “Dictators don’t take vactions.”
Scumped by Speaker Johnson, Biden goes out campaigning and
commiserating with the toxified people of East Palestine, Ohio saying that
what the railroad did to them “was not an act of God, it was an act of
Greed.” In
the other Palestine, Israel continues shelling and strafing Gaza civilians
while hard-right settlers who think PM Netanyahu too weak promise to remove
all Muslims from the West Bank, Gaza and the planet after Hamas says that the
only way the war will end is genocide and the only way the hostages will come
home is in boxes.
Djonald UnDistressed finds himself a side job... selling golden
sneakers for $399 at Sneaker Con. He’s
also going to sell a new fragrance... hopefully gifting Nan and Nikki with
free samples. |
|
|
Sunday, February 18, 2024 Dow: Closed |
Media mongrels dig up old footage of
President Joe in his younger, snazzier days, storming that if Russia murders
Navalny, they will face “devastating consequences”. War?
No, just more sanctions.
With Congress on vacation, Biden in Palestine and Trump out selling
shoes, the Sunday talkshows have to resort to Charlemagne The God, who tells
America that their choice in November will be “cowards, crooks or the couch”
and gives a shout out to Kamala.
Pundit Ezra Klein also says that Joe should step down “as a hero” for
the good of the country..
This Week calls Trump “our huckster in chief.” FTW calls him an “outlier” then admits that
he’d probably like the term. BAFTA
celebrates “Oppenheimer” in another run-up to the Oscars and blows off
“Barbie” but she fires back with awards at People’s Choice. Popeye the Sailor Man says “You can’t write
a cartoon without an idea.” Shot children
in Kansas City say they will never go to mass gatherings again. |
|
|
Donald Trump’s suggestion that Russia invade
NATO deadbeats mystifies, then not-so-mysterious death of Russian dissident
Navalny horrifies. Sharp declines are
assigned to global issues (for what is presumed the murder), slightly less to
terror because not even Putin takes Trump seriously. It’s also bad over the kitchen table where
government spending and private debt skyrocket without anybody daring to say
we might raise taxes on the billionaires.
Still fixated on tweaking border policy to help Ol’ 45’s electoral
chances at the expense of everybody else, Congress dithers, impeaches
Mayorkas on their second try and then scurries off on vacation to get out of
DC before the riots start. A mixed to
mildly positive employment and inflation index results in less of a bad week
for the Dow, the Don was starting to worry about war but both were also
greedy for government appropriations.
Debt? Who cares! At least the Don still remained slightly
above its baseline 11 years ago... |
|
|
|
CHART of CATEGORIES
w/VALUE ADDED to EQUAL BASELINE of 15,000 (REFLECTING…
approximately… DOW JONES INDEX of June 27, 2013) Negative/harmful indices
in RED.
See a further explanation of categories here… ECONOMIC
INDICES (60%)
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
SOCIAL INDICES (40%) |
|||||||||||||||
|
ACTS
of MAN |
12% |
|
|
||||||||||||
|
World
Affairs |
3% |
450 |
2/12/24 |
-1.5% |
2/26/24 |
457.15 |
450.29 |
After
Trump tells Putin to go ahead and invade deadbeat NATO members, Russian
dissident Navalny dies and Putin hides the body to dodge murder charges. France celebrates reveal of Notre Dame
replacement spire. |
|||||||
|
War and terrorism |
2% |
300 |
2/12/24 |
-1.0% |
2/26/24 |
296.04 |
293.05 |
Israeli/Hamas
hostage talks explode as both sides openly promote genocide; airstrikes close
last two hospitals in Rafah. Ukraine,
denied US aid, loses more towns and territories to Glad Vlad. Rep. Mike Turner (R-?) warns that Russia is
deploying nukes in space... Speaker Mike says “don’t panic!” |
|||||||
|
Politics |
3% |
450 |
2/12/24 |
-0.3% |
2/26/24 |
480.03 |
478.59 |
Trump
loses big in civil case but wins as Georgia DA Fani’s fling with subordinate
defers and maybe destroys that case
so – on deck – Stormy! (He also finds
a side gig selling golden sneakers.)
MAGA sharpens knives for “incompetent” (tho’ loyal) Speaker Mike who
succeeds in impeaching Mayorkas on second try. Tom Suozzi regains the House seat he lost
to Santos; President Joe garners a welcome (?) endorser for November... Rad
Vlad. DNC sues RFK Jr. for degrading
Daddy’s legacy in Superbowl’s worst ad.
Joe Manchin decides not to run for President. |
|||||||
|
Economics |
3% |
450 |
2/12/24 |
-0.2% |
2/26/24 |
447.73 |
446.83 |
Prices of
most goods are down but mortgages (6.77%), interest rate and other parasitic
enterprises keep inflating and lovers protest chocolate price gouging for
Valentine’s Day. On strike: flight attendants fighting “legacy sexism”. Uber
and Lyft drivers fighting low pay |
|||||||
|
Crime |
1% |
150 |
2/12/24 |
-0.4% |
2/26/24 |
241.61 |
240.64 |
It’s prime
time crime time for active shooters... from Kansas City (28) to Bronx subway
gang war (6) to animal abuser shooting 3 cops in DC to hostage taker killing
3 more and self . Other gunslingers
hit Colorado Springs dorm room, Atlanta school parking lot and Joel Osteen’s
megachurch. QR code scammers raking in
the big bucks. |
|||||||
|
ACTS
of GOD |
(6%) |
|
|
||||||||||||
|
Environment/Weather |
3% |
450 |
2/12/24 |
-0.3% |
2/26/24 |
388.35 |
387.19 |
Weeklong
bomb cyclones continue to hit California – flooding, landslides and traffic
jams. As they move east they freeze
into Black Ice, Concrete Snow and end New York’s snow drought. |
|||||||
|
Disasters |
3% |
450 |
2/12/24 |
-0.2% |
2/26/24 |
420.84 |
420.00 |
Car
crashes into hospital ER in Austin... one killed, many injured. Generic drug shortage blamed on “opaque”
management (ie gouging). Nine
firefighters injured in L.A. as “green” natural gas tanker explodes on
freeway. |
|||||||
|
LIFESTYLE/JUSTICE
INDEX |
(15%) |
|
|||||||||||||
|
Science,
Tech, Educ. |
4% |
600 |
2/12/24 |
+0.1% |
2/26/24 |
631.50 |
632.12 |
Investigators
will investigate AI deep fakes – whether puppies or political hits. Tik Tok ads flood the airwaves. Space X launches rocket to the moon. |
|||||||
|
Equality (econ/social) |
4% |
600 |
2/12/24 |
+0.2% |
2/26/24 |
641.92 |
643.20 |
Women’s
college star Caitlin Clark sets more scoring records... stay at Iowa or join
the WNBA? Beyonce releases a country
album many radio stations boycott until pressured to behave by the
Beehive. |
|||||||
|
Health |
4% |
600 |
2/12/24 |
+0.3% |
2/26/24 |
467.75 |
469.15 |
CDC to
compensate descendents of Tuskegee syphilis guinea pigs and pivots on plague
– saying Covideers can now go out and party with the healthy. FDA developing
cure for melanoma that’s perhaps applicable to other cancers. Social media sued for impacting national
mental health. |
|||||||
|
Freedom
and Justice |
3% |
450 |
2/12/24 |
+0.1% |
2/26/24 |
468.21 |
468.68 |
FBI faker
and Biden impeacher-er guru Smirnov exposed as... gasp!... a Russian
agent. (Maybe because he’s named after
a bottle of vodka?) Missing celebrity
4 year old found two weeks ago was also found to be full of narcotics –
parents arrested. |
|||||||
|
MISCELLANEOUS
and TRANSIENT INDEX |
(6%) |
|
|
|
|||||||||||
|
Cultural
incidents |
3% |
450 |
2/12/24 |
nc |
2/26/24 |
520.01 |
520.01 |
KC
overtime win at Superbowl 58 earns Travis a kiss from Taylor and the Chiefs
an emotional high – until Wednesday. Many delighted by nostalgic commercials
bringing back Ahrnuld, Perry-less “Friends”, Clydesdales. For NBA all-star weekend, Steph Curry beats
WNBA;s Sabrina Ionescu 29-26 in three pointer
contest and the East beat the West 211-186 .
Tiger Woods drops out of PGA tour, again, with mystery flu. Oppenheimer wins big at BAFTA; Barbi at
People’s Choice. Baseball’s spring
training begins. RIP: Russian dissident Alexi Navalny,
NPR’s Bob Edwards, |
|||||||
|
Misc. Incidents |
3% |
450 |
2/12/24 |
+0.1% |
2/26/24 |
508.49 |
509.00 |
60th
anniversary of the Beatles’ arrival in America. Sir Paul gets back his guitar, stolen 51
years ago. Dogs maul owner to death
while he’s feeding them. Colorado teen
is first to win a cornhole scholarship. |
|||||||
The Don Jones
Index for the week of February 12th through 18th, 2024 was DOWN 25.91 points
The Don Jones Index is sponsored by
the Coalition for a New Consensus: retired Congressman and Independent
Presidential candidate Jack “Catfish” Parnell, Chairman; Brian Doohan,
Administrator. The CNC denies,
emphatically, allegations that the organization, as well as any of its officers
(including former Congressman Parnell, environmentalist/America-Firster Austin
Tillerman and cosmetics CEO Rayna Finch) and references to Parnell’s works,
“Entropy and Renaissance” and “The Coming Kill-Off” are fictitious or, at best,
mere pawns in the web-serial “Black Helicopters” – and promise swift, effective
legal action against parties promulgating this and/or other such slanders.
Comments, complaints, donations
(especially SUPERPAC donations) always welcome at feedme@generisis.com
or: speak@donjonesindex.com.
OFFICE
of JUVENILE JUSTICE (OJJDP)
THREE TABLES
Table One… Characteristics of delinquency cases handled by juvenile courts, 2021
|
Percent
of cases handled by juvenile courts |
||||||||
|
Most
serious offense |
Number |
Female |
Under
16 |
White1 |
Black1 |
American
Indian |
Asian/ |
Hispanic |
|
Total Delinquency |
437,300 |
27% |
53% |
44% |
35% |
2% |
1% |
17% |
|
Person Offenses |
163,000 |
31% |
58% |
44% |
36% |
2% |
1% |
17% |
|
Violent Crime Index* |
42,300 |
16% |
50% |
32% |
44% |
2% |
1% |
22% |
|
Criminal homicide |
1,500 |
12% |
31% |
23% |
51% |
1% |
1% |
24% |
|
Rape |
7,200 |
4% |
56% |
57% |
23% |
2% |
1% |
18% |
|
Robbery |
13,500 |
11% |
46% |
14% |
63% |
1% |
1% |
21% |
|
Aggravated assault |
20,200 |
24% |
52% |
35% |
38% |
2% |
1% |
23% |
|
Simple assault |
95,000 |
39% |
60% |
45% |
34% |
2% |
1% |
18% |
|
Other violent sex offenses |
6,300 |
6% |
68% |
63% |
21% |
3% |
1% |
13% |
|
Other person offenses |
19,400 |
31% |
61% |
59% |
28% |
3% |
1% |
8% |
|
Property Offenses |
132,300 |
22% |
54% |
44% |
39% |
2% |
1% |
14% |
|
Property Crime Index** |
82,900 |
23% |
53% |
40% |
41% |
2% |
1% |
15% |
|
Burglary |
26,000 |
13% |
55% |
39% |
42% |
2% |
1% |
16% |
|
Larceny-theft |
41,800 |
31% |
51% |
45% |
38% |
3% |
1% |
13% |
|
Motor vehicle theft |
13,700 |
22% |
54% |
29% |
51% |
2% |
1% |
18% |
|
Arson |
1,300 |
18% |
72% |
55% |
27% |
1% |
1% |
15% |
|
Vandalism |
27,100 |
21% |
60% |
59% |
23% |
3% |
1% |
14% |
|
Trespassing |
11,400 |
23% |
55% |
48% |
34% |
2% |
2% |
15% |
|
Stolen property offenses |
6,400 |
13% |
44% |
18% |
73% |
1% |
1% |
7% |
|
Other property offenses |
4,500 |
26% |
50% |
45% |
44% |
1% |
1% |
9% |
|
Drug law violations |
46,300 |
26% |
36% |
55% |
20% |
3% |
1% |
21% |
|
Public Order Offenses |
95,700 |
26% |
50% |
41% |
38% |
2% |
1% |
19% |
|
Obstruction of justice |
42,700 |
26% |
43% |
36% |
40% |
2% |
1% |
21% |
|
Disorderly conduct |
22,300 |
37% |
63% |
45% |
41% |
2% |
1% |
10% |
|
Weapons offenses |
12,900 |
11% |
43% |
27% |
49% |
1% |
1% |
22% |
|
Liquor Law Violations |
2,100 |
35% |
29% |
60% |
7% |
2% |
2% |
28% |
|
Nonviolent sex offense |
7,800 |
18% |
58% |
59% |
17% |
1% |
2% |
21% |
|
Other public order offenses |
7,900 |
25% |
56% |
54% |
22% |
1% |
2% |
21% |
|
* Includes criminal homicide, rape, robbery,
and aggravated assault. |
||||||||
TABLE TWO… Juvenile arrest rates
by State, 2019
|
State Reporting |
Coverage |
Aggravated assault |
Robbery |
Larceny
theft |
Drug abuse |
Weapons |
|
United
States |
77% |
83 |
53 |
270 |
234 |
49 |
|
Alabama |
2% |
12 |
23 |
785 |
104 |
35 |
|
Alaska |
94% |
158 |
33 |
205 |
216 |
25 |
|
Arizona |
77% |
127 |
51 |
343 |
512 |
50 |
|
Arkansas |
88% |
113 |
28 |
387 |
292 |
39 |
|
California |
97% |
94 |
72 |
74 |
63 |
67 |
|
Colorado |
85% |
92 |
51 |
466 |
388 |
68 |
|
Connecticut |
100% |
34 |
41 |
270 |
162 |
43 |
|
Delaware |
100% |
210 |
116 |
352 |
278 |
64 |
|
District
of Columbia |
0% |
NA |
NA |
NA |
NA |
NA |
|
Florida |
100% |
89 |
65 |
347 |
202 |
45 |
|
Georgia |
22% |
62 |
33 |
302 |
231 |
56 |
|
Hawaii |
81% |
31 |
59 |
240 |
265 |
15 |
|
Idaho |
98% |
65 |
7 |
342 |
467 |
49 |
|
Illinois |
1% |
140 |
180 |
334 |
822 |
160 |
|
Indiana |
40% |
73 |
20 |
241 |
270 |
42 |
|
Iowa |
82% |
143 |
26 |
500 |
327 |
45 |
|
Kansas |
55% |
84 |
19 |
240 |
352 |
30 |
|
Kentucky |
97% |
34 |
30 |
158 |
91 |
23 |
|
Louisiana |
75% |
188 |
47 |
453 |
253 |
106 |
|
Maine |
100% |
20 |
7 |
352 |
240 |
6 |
|
Maryland |
100% |
122 |
198 |
443 |
304 |
103 |
|
Massachusetts |
86% |
70 |
16 |
73 |
21 |
18 |
|
Michigan |
96% |
67 |
23 |
208 |
42 |
31 |
|
Minnesota |
96% |
72 |
70 |
560 |
249 |
55 |
|
Mississippi |
42% |
42 |
29 |
292 |
158 |
60 |
|
Missouri |
63% |
107 |
52 |
342 |
335 |
36 |
|
Montana |
88% |
178 |
4 |
588 |
356 |
18 |
|
Nebraska |
91% |
32 |
67 |
807 |
573 |
59 |
|
Nevada |
96% |
212 |
84 |
295 |
591 |
93 |
|
New
Hampshire |
94% |
31 |
10 |
170 |
291 |
3 |
|
New
Jersey |
100% |
57 |
52 |
176 |
332 |
68 |
|
New
Mexico |
65% |
108 |
17 |
142 |
303 |
49 |
|
New
York |
51% |
54 |
49 |
254 |
166 |
26 |
|
North
Carolina |
69% |
44 |
54 |
253 |
192 |
51 |
|
North
Dakota |
100% |
68 |
9 |
565 |
444 |
29 |
|
Ohio |
79% |
60 |
40 |
275 |
147 |
35 |
|
Oklahoma |
99% |
62 |
25 |
239 |
241 |
40 |
|
Oregon |
88% |
80 |
35 |
355 |
378 |
21 |
|
Pennsylvania |
25% |
144 |
49 |
278 |
223 |
50 |
|
Rhode
Island |
100% |
57 |
26 |
239 |
118 |
95 |
|
South
Carolina |
84% |
73 |
37 |
323 |
318 |
90 |
|
South
Dakota |
92% |
100 |
15 |
471 |
860 |
122 |
|
Tennessee |
95% |
119 |
70 |
362 |
331 |
66 |
|
Texas |
90% |
85 |
48 |
227 |
282 |
25 |
|
Utah |
89% |
48 |
16 |
533 |
520 |
46 |
|
Vermont |
100% |
48 |
11 |
143 |
50 |
32 |
|
Virginia |
96% |
39 |
39 |
287 |
230 |
34 |
|
Washington |
93% |
62 |
60 |
192 |
124 |
33 |
|
West
Virginia |
53% |
18 |
3 |
21 |
60 |
2 |
|
Wisconsin |
94% |
91 |
42 |
545 |
489 |
77 |
|
Wyoming |
88% |
66 |
0 |
446 |
901 |
22 |
NA = Crime in
the United States 2019 reported no arrest counts for the District of Columbia
and Iowa.
Note: In this
table the arrest rate is defined as the number of arrests of persons under age
18 for every 100,000 persons ages 10-17. Juvenile arrests (arrests of youth
under age 18) reported at the State level in Crime in the United States cannot
be disaggregated into more detailed age categories so that the arrests of
persons under age 10 can be excluded in the rate
TABLE THREE…
Juvenile arrest rates by State, 2020
|
|
|
|
|
|
|
|
|
State |
Reporting Coverage |
Aggravated assault |
Robbery |
Larceny theft |
Drug abuse |
Weapons |
|
Alabama |
1% |
75 |
15 |
75 |
30 |
0 |
|
Alaska |
98% |
138 |
22 |
89 |
74 |
14 |
|
Arizona |
87% |
100 |
48 |
184 |
216 |
42 |
|
Arkansas |
90% |
90 |
28 |
224 |
195 |
33 |
|
California |
99% |
62 |
49 |
32 |
30 |
44 |
|
Colorado |
87% |
75 |
42 |
213 |
160 |
35 |
|
Connecticut |
100% |
28 |
30 |
165 |
59 |
21 |
|
Delaware |
100% |
121 |
97 |
197 |
103 |
60 |
|
District of Columbia |
0% |
NA |
NA |
NA |
NA |
NA |
|
Florida |
100% |
73 |
52 |
238 |
80 |
37 |
|
Georgia |
57% |
53 |
18 |
127 |
91 |
26 |
|
Hawaii |
19% |
46 |
12 |
91 |
133 |
0 |
|
Idaho |
91% |
49 |
3 |
227 |
294 |
19 |
|
Illinois |
1% |
81 |
155 |
155 |
378 |
148 |
|
Indiana |
52% |
62 |
37 |
119 |
111 |
37 |
|
Iowa |
90% |
114 |
28 |
343 |
241 |
30 |
|
Kansas |
58% |
48 |
8 |
154 |
295 |
10 |
|
Kentucky |
83% |
16 |
17 |
66 |
50 |
10 |
|
Louisiana |
72% |
133 |
54 |
249 |
168 |
92 |
|
Maine |
100% |
15 |
11 |
186 |
103 |
1 |
|
Maryland |
19% |
14 |
52 |
112 |
98 |
27 |
|
Massachusetts |
87% |
54 |
15 |
40 |
17 |
11 |
|
Michigan |
95% |
54 |
16 |
94 |
24 |
32 |
|
Minnesota |
93% |
56 |
64 |
264 |
143 |
41 |
|
Mississippi |
38% |
35 |
33 |
200 |
86 |
50 |
|
Missouri |
80% |
91 |
38 |
186 |
178 |
26 |
|
Montana |
99% |
167 |
13 |
378 |
186 |
5 |
|
Nebraska |
56% |
54 |
64 |
615 |
456 |
65 |
|
Nevada |
100% |
68 |
61 |
142 |
254 |
47 |
|
New Hampshire |
96% |
27 |
5 |
108 |
168 |
1 |
|
New Jersey |
100% |
37 |
36 |
105 |
199 |
46 |
|
New Mexico |
44% |
60 |
19 |
33 |
27 |
21 |
|
New York |
49% |
41 |
37 |
117 |
63 |
20 |
|
North Carolina |
82% |
31 |
37 |
129 |
71 |
23 |
|
North Dakota |
99% |
94 |
9 |
317 |
443 |
17 |
|
Ohio |
75% |
37 |
35 |
135 |
70 |
30 |
|
Oklahoma |
99% |
55 |
30 |
156 |
136 |
35 |
|
Oregon |
85% |
53 |
26 |
173 |
163 |
18 |
|
Pennsylvania |
1% |
61 |
7 |
155 |
223 |
27 |
|
Rhode Island |
99% |
48 |
14 |
146 |
72 |
56 |
|
South Carolina |
84% |
54 |
34 |
183 |
191 |
62 |
|
South Dakota |
92% |
140 |
12 |
330 |
644 |
47 |
|
Tennessee |
88% |
90 |
44 |
236 |
233 |
48 |
|
Texas |
91% |
53 |
38 |
132 |
140 |
27 |
|
United States |
76% |
58 |
38 |
148 |
122 |
34 |
|
Utah |
88% |
34 |
15 |
322 |
351 |
24 |
|
Vermont |
99% |
43 |
6 |
82 |
41 |
2 |
|
Virginia |
99% |
27 |
21 |
139 |
115 |
24 |
|
Washington |
98% |
46 |
41 |
114 |
47 |
18 |
|
West Virginia |
66% |
15 |
1 |
18 |
47 |
6 |
|
Wisconsin |
95% |
69 |
38 |
335 |
330 |
52 |
|
Wyoming |
88% |
57 |
4 |
392 |
732 |
20 |
|
NA = Crime in the United States 2020
reported no arrest counts for the District of Columbia.
Internet citation: OJJDP Statistical
Briefing Book. Online.
Available: https://ojjdp.ojp.gov/statistical-briefing-book/crime/faqs/qa05103.
Released on 7/8/2022 |
ATTACHMENT TWO – FROM GALLUP
AMERICANS DIVIDED
ON TREATMENT OF VIOLENT JUVENILE OFFENDERS
BY JEFFREY M. JONES DECEMBER
4, 2023
·
Public divided on whether courts
should be more lenient on juveniles
·
Previously,
majorities felt juveniles should be treated same as adults
·
Major
divides in attitudes by party identification, age and education
WASHINGTON, D.C. -- Americans divide evenly on whether the
criminal justice system should treat teens who commit violent crimes the same
as adults (46%) or give more lenient treatment in juvenile courts (47%). This
marks a shift in attitudes from two decades ago, when majorities of 65% in 2000
and 59% in 2003 felt juveniles aged 14 to 17 who commit crimes should be
treated the same as adult criminals.
The latest results are from Gallup’s annual Crime survey,
conducted Oct. 2-23. The issue of how violent juveniles should be treated is
increasingly relevant given the increase in mass shootings, particularly at
U.S. schools, with the majority of K-12 school shootings perpetrated by
children under age 18.
On Dec. 8, Ethan Crumbley, who was 15 years old in November
2021 when he killed four classmates and injured seven others at Oxford High
School in Michigan, will be sentenced after pleading guilty in those deaths. He
is being charged as an adult, as have many other school shooters. In September,
a Texas youth tried as a juvenile was sentenced to four decades in prison, the
maximum allowed, for killing a classmate.
Americans are more likely today than in 2000 to believe
juveniles who commit violent crimes should receive more lenient treatment in
juvenile court (47% vs. 24%) and less likely now to favor treating them the
same as adults (46% vs. 65%).
The views of Democrats, independents and younger adults have
changed more than the opinions of Republicans and older adults. However, all
key subgroups show some movement away from believing that violent juvenile
offenders should be treated the same as adults. In fact, in 2000, the various
political party and age subgroups generally held similar views, with between
60% and 68% of each believing juveniles should be treated the same as adults.
As a result of the disproportionate changes in opinion,
Democrats and adults under age 50 now come down on different sides of the
debate than Republicans and older Americans do. Majorities of Democrats (61%)
and adults under age 50 (56%) believe 14- to 17-year-olds who commit violent
crimes should get more lenient treatment in a juvenile court, while majorities
of Republicans (59%) and adults over age 50 (53%) believe such teens should
be treated the same as adults. Political independents are evenly divided on the
issue.
College graduates tend to believe juveniles should get more
lenient treatment in the justice system, while those without a college degree
tend to think juveniles should be treated like adults.
Parents of children under 18 (54%) are more likely than
non-parents (45%) to favor teens receiving more lenient treatment in juvenile
court.
Implications
A change over the past two decades in Americans’ view of how
the criminal justice system should handle juveniles convicted of violent crimes
is consistent with contemporaneous shifts in other crime-related attitudes,
including lesser support for the death penalty. Gallup has not asked
whether juveniles should receive the death penalty since 2002. At that
time, just 26% were in favor, and presumably the percentage is lower today
given the 17-percentage-point decline in overall support for the death penalty
since then.
Criminal justice statistics indicate that fewer young offenders
are being tried as adults today than in the past. Many states with
separate juvenile justice systems have changed laws so children under age 18
are no longer automatically charged as adults for certain crimes. Those laws
may have changed because of a new understanding of adolescent development, a
greater realization of the role poor mental health can play in teen criminal
activity, and the possibility that young people with a criminal history can be
rehabilitated.
View complete question responses and trends (PDF download).
ATTACHMENT THREE – FROM the WASHINGTON EXAMINER
JOE BIDEN AND DEMOCRATS’ CHRONIC CRIME PROBLEM
By Byron York March 10, 2023 4:20 pm
JOE
BIDEN AND DEMOCRATS’ CHRONIC CRIME PROBLEM. What’s one good clue that President Joe Biden really
intends to run for reelection in 2024? He is trying to distance himself from
the Democratic Party’s soft approach to crime. The president, who in 2020
distanced himself from Democrats who advocated defunding the police, stunned
many in his party recently when he announced his opposition to a
lenient local law in the District of Columbia that would reduce sentences for
carjackers and other criminals who use guns in the commission of their crimes.
But recent events in
Maryland, right next to Washington, show that Biden will have a lot to run
away from. Biden has singled out the new Democratic governor of Maryland, Wes
Moore, for praise in recent weeks. “You got a hell of a new governor in Wes
Moore, I tell ya,” Biden said at an event in Lanham, Maryland, on
Feb. 15. “He’s the real deal.” But the president might soon need to run away
from Moore and the Democratic leadership of the state next door.
Moore appointed a man named Vincent
Schiraldi as head of the Maryland Department of Juvenile
Services. Schiraldi is a juvenile justice reformer and former New
York City official, under former Mayor Bill de Blasio, who describes his
current job as “fighting for justice, safety, and equity.” He is one of a number
of people on the Left who want to redefine “juvenile justice” to reduce
sentences for criminals who commit serious offenses, including murder, before
the age of 25.
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Their claim is that the human brain
does not fully develop until 25, so therefore, criminals who rob and
carjack and kill should not be punished as adults when they rob and carjack and
kill before hitting 25. “People between the ages of 18 and 25 are more
developmentally similar to juveniles than they are to fully mature
adults,” Schiraldi told NPR in 2015. “They just are. And our justice
system hasn’t figured that out yet.” In 2016, Schiraldi said 18- to
25-year-olds are “more impulsive, particularly in emotionally charged settings,
less future-oriented, more peer-influenced, and are greater risk-takers — all
of those things impact criminality.”
Schiraldi has argued that
prosecuting young robbers, carjackers, and killers as adults can set them on a
life of crime. His answer is to not convict them of felonies, no matter what
they have done, before age 25. “If we can get you past 25 without having a
felony conviction, the chances of you ever having a felony conviction drop
substantially,” Schiraldi said. Opponents find such thinking crazy, the idea that you can reduce serious crime by
reducing the punishment for serious crime, but that is what Schiraldi and some
others on the Left think.
Thanks to Maryland’s new “real deal”
governor, Schiraldi is in charge of the state agency assigned to “manage,
supervise, and treat youth who are involved in the juvenile justice system in
Maryland.” And now, nine state lawmakers, all of them Democrats, are putting his
ideas into practice in a new bill ironically titled the “Youth
Accountability and Safety Act.” The bill, were it to become law, would prohibit
charging anyone with first-degree murder in Maryland if the killing was
committed when the killer was under 25 and the murder was carried out in
conjunction with another serious crime — a combination offense referred to as
felony murder. It would not matter how heinous a crime a, say, 24-year-old has
committed or how aggravated the murder or how many murders were committed — the
suspect could not be charged with first-degree murder.
The bill recites Maryland
law’s existing definition of first-degree murder: “a deliberate,
premeditated, and willful killing.” Then, in subsection (A)(4)
— that’s important — it lists the existing definition of felony murder: A
murder “committed in the perpetration of or an attempt to perpetrate: arson in
the first degree … burglary in the first, second, or third degree; carjacking
or armed carjacking; escape in the first degree from a state correctional
facility or a local correctional facility; kidnapping; mayhem; rape; robbery;
sexual offense in the first or second degree,” and more. And then the bill says
this: “A PERSON WHO WAS UNDER THE AGE OF 25 YEARS AT THE TIME OF THE OFFENSE
MAY NOT BE FOUND TO HAVE COMMITTED MURDER IN THE FIRST DEGREE UNDER SUBSECTION
(A)(4) OF THIS SECTION.”
What that means is that anyone
who committed murder in Maryland under the age of 25 as part of an arson,
burglary, carjacking, rape, robbery, etc., cannot be charged with first-degree
murder. It is off the table for prosecutors.
Why would Maryland lawmakers do such
a thing? Go back to Schiraldi’s goal in his job: to fight for “justice,
safety, and equity.” And then read the “Racial Equity Impact Note”
prepared for the legislation by the General Assembly’s Department of
Legislative Services. The document notes that the bill “would have a
potentially meaningful impact on black or African-American individuals [under
the age of 25] who face arrest for murder, in general, at a disproportionately
high rate.”
The note cites Maryland State Police
figures that there were 269 arrests for any degree of murder in 2020. Of
that, 111 arrests were for suspects under the age of 25. Of those 111 suspects,
88 were black, 21 were white, one was Native American, and one was of unknown
race. “Black or African-American individuals were 79% of arrests for murder in
2020 despite comprising just 31% of the under age 25 population in the state,”
the report said. “In contrast, white individuals were 19% of those arrested for
murder, significantly lower than their 42% proportion of the under age 25 state
population.”
The bill would have its greatest
effect, in other words, on murderers who are black. Indeed, supporters of
the bill are expressing their support in explicitly racial terms. “Maryland’s
use of felony murder … is particularly insidious as applied to black
people,” wrote Margaret Martin Barry, a prominent Democrat in Maryland
juvenile justice circles. “Maryland has the distinction of being among the
worst states when it comes to incarceration of black people, at more than
double the national average. Felony murder fuels the worst tendencies, allowing
incarceration for life or life without parole.”
Will Maryland actually make the new
bill law? In the state Senate, Democrats have a 33 to 13 advantage
over Republicans. In the state House of Delegates, Democrats have a 102 to 39
advantage over the GOP. The new governor is a Democrat. Republicans
overwhelmingly oppose the new bill. What that means is that the decision of
whether or not to pass the “Youth Accountability and Safety Act” into law will
be decided by Democrats. Their choice will tell the public something about the
Democratic Party and crime.
And that is where Biden comes
in. No, he is not a senator, a delegate, or the governor of Maryland. He
does not run the state. He is not the mayor of Washington, either, but because
of the unique structure of the District of Columbia government, he was pulled
into a fight over a measure that, among other things, reduced sentences for
carjackers and others who commit crimes with firearms in Washington. Now,
neighboring Maryland is considering going even further — reducing sentences for
some criminals who kill people in the act of stealing their
cars or robbing them or setting fire to their homes or raping them or more. Can
Biden avoid expressing some sort of judgment on that, too?
ATTACHMENT FOUR – FROM WBFF (FOX, BALTIMORE)
MARYLAND'S
NEW JUVENILE CRIME BILL SPARKS EXTENSIVE DEBATE IN ANNAPOLIS
by Rebecca Pryor Thu, February 8th 2024
Baltimore City, MD — On Thursday, Maryland Democrat’s
new juvenile crime plan was up for debate in Annapolis for the first time since
its announcement last week, and lawmakers had a lot to say. During a House
Judiciary Committee hearing, discussion surrounding HB814 dragged on
for more than six hours.
“I know this bill is going to disappoint both sides and I am
comfortable with that reality,” said House Speaker Adrienne Jones, one of the
bill’s authors.
Those backing the bill are calling it a balanced and
sensible solution to the state’s juvenile crime crisis. However, the middle of
the road approach set the legislation up for criticism from both sides of the
aisle.
“This bill is about placing the failings of adults on very
young children and children accused of committing minor offenses,” said an
official with the Maryland Public Defender’s office.
“It may not fall
under the heading of a crime of violence, but it is a problem for sure,”
rebutted Del. Sandy Bartlett.
Some lawmakers argued the bill is a step backwards from
reforms they enacted just a year and a half ago, which block those under the
age of 13 from being charged with certain crimes. Under the new legislation,
children would once again face consequences for auto thefts, sexual assaults,
firearm offenses, and animal abuse -- no matter their age.
“We made a clear effort to eliminate the youngest children
from being exposed to the juvenile justice system and now you have gone ahead
and brought them back into the system,” said Delegate Charlotte Crutchfield.
Others argue the bill still needs to be taken a step further
to ensure accountability for rising property and quality of life crimes across
the state.
"Theft of an all-terrain vehicle, those cases seem to
be particularly toxic in my district,” said Robin Grammer, “Under this bill I
think these crimes listed are a great start, but it wouldn’t capture cases
where youth is escalating.”
The data driving the new measures was also at the center of
debate, many claiming it doesn’t exist.
“There’s no data,” said Crutchfield.
“We are proposing a bill that is not based on any data, that
is not based on any facts, and that’s not based on any evidence,” said another
official with the Maryland Public Defender’s office.
But State’s Attorney’s from Baltimore City, Prince George’s
County, and Montgomery County all say the evidence they’re seeing firsthand is
overwhelming and undeniable.
“There’s absolutely no question, gun offenses, auto theft,
they’re off the charts,” said Montgomery County States Attorney John McCarthy,
“When it comes to violent crime and the crimes that people care about the
numbers are exploding.”
“Last year we were referred over 1,000 juvenile cases,
primarily cases that are felonies that involve very serious offences,” said
Prince George’s County State’s Attorney Aisha Braveboy.
Following the hours of back-and-forth debate, it became
clear not everyone was going to agree on how the bill should be shaped, but
that everyone in the room still d the same goal.
“I’ve heard complaints from the left and the right on this
bill,” said Aaron Kaufman, “If nobody is happy it tells me it’s a pretty fair
and reasonable bill.”
“At the end of the day, everybody wants the same thing. We
want positive young people, they are our future, no matter what happens, those
are our children,” said Baltimore City State’s Attorney Ivan Bates.
PEANUT CALLERY
TheOne
2 days ago
Just wait the student from Kenwood that Attempted murder on another
student will soon be returning if not already to school, Baltimore County has
no respect for the safety of our children.
1
·
BasicNeeds
2 days ago
I quote: 'auto thefts, sexual assaults, firearm offenses, and
animal abuse' should not have legal consequences for juveniles 13 and below.
These are the very future adults that have no self-control or judgment. Their
parent/parents have failed them already. The public needs to be protected from
eve...
·
Steve344
2 days ago
Get rid of all the Democrats they are a danger to the
taxpayers of Maryland
1
·
CityHeights
2 days ago
These opposition voices need to just sit down and shut the
front door.
ATTACHMENT FIVE – FROM ABC NEWS
WHAT TO KNOW
ABOUT KANSAS CITY'S HOMICIDE RATE, MISSOURI GUN LAWS AFTER CHIEFS' PARADE
SHOOTING
One person died and 22 others were injured in the Kansas
City shooting.
By Leah Sarnoff February 15, 2024, 8:48 PM
Chiefs parade shooting stemmed from personal dispute: Police
Two juveniles have been detained in connection with the
shooting that left one dead and over 20 injured, police said.
In the wake of Kansas City's deadly shooting that
erupted at the end of the Chiefs' Super Bowl parade, the record-breaking homicide
rate in Missouri's largest city and the state's gun laws has faced
renewed attention.
One person died and 22 others were injured after gunfire
rang out outside Union Station on Wednesday as Chiefs fans were leaving a
parade and rally, according to police.
Two juveniles have been detained by authorities amid the
investigation and charges have not yet been filed, according to Kansas City
police.
A third juvenile who had been detained in connection with
the shooting was determined not to be involved and is no longer in custody, a
police spokesperson confirmed to ABC News Thursday evening.
MORE: Kansas City Chiefs parade mass
shooting stemmed from dispute, 2 juveniles detained
A6 In 2023, Kansas City Police Department's daily
homicide analysis showed 182 homicides, 12 more than took place in 2022
and three more than the previous all-time high in the city, 179 homicides in
2020.
KCPD's daily homicide analysis report indicates that a
majority of the homicides reported in 2023 involved a firearm.
When asked about Kansas City's homicide rate in relation to
Wednesday's mass shooting, the mayor called attention to the difference between
daily crime and this public attack.
"I grew up in some of Kansas City's most challenged neighborhoods,
usually if you were staying out of trouble, the trouble didn't come to
you," Lucas said in an interview with KSHB after the shooting.
"This is rather different,
this is something where a bunch of people are at a parade. They're not buying
or selling drugs, they're not subject to retaliation," he added.
Lucas, who was present at the Super Bowl parade, called the
shooting, "an incredible disappointment."
MORE: Kansas City mass shooting
timeline: How the Chiefs' Super Bowl parade ended in tragedy
In 2021, Missouri had the ninth-highest rate of gun deaths
in the U.S., according to firearm mortality by state data from the
Centers for Disease Control.
The midwestern state also has some of the laxest gun laws in
any state in the US, according to Giffords Law Center to Prevent Gun
Violence, which ranks Missouri as having the third-weakest gun laws.
Missouri began allowing gun owners to carry concealed
weapons in 2003, requiring training and a permit issued by the county sheriff,
however, in 2007, the law requiring a permit to buy a handgun was repealed,
according to the Giffords Law Center.
After the permit law was repealed, there was an estimated
47.3% increase in firearm homicide, according to research from
the American Journal of Public Health.
In Feb. 2023, Missouri's House voted against banning minors
from openly carrying firearms without adult supervision in public. The proposal
failed by a 104-39 vote.
"While it may be intuitive that a 14-year-old has no
legitimate purpose, it doesn't actually mean that they're going to harm
someone. We don't know that yet," Rep. Tony Lovasco said in response to
the decision at the time, according to AP. "Generally speaking, we
don't charge people with crimes because we think they're going to hurt
someone."
In 2021, Missouri established the "Second
Amendment Preservation Act," which created additional protections for
the right to bear arms and penalizes police for enforcing federal gun laws.
However, in 2023, Federal U.S. District Court Judge Brian
Wimes ruled Missouri's law was unconstitutional, "invalid, null, void, and
of no effect," according to his decision.
ATTACHMENT SIX – FROM WCPO (CINCINNATI)
'THE COURT
HAS TO MAINTAIN IMPARTIALITY': JUVENILE COURT JUDGE WEIGHS IN ON RECENT YOUTH
CRIME IN CINCINNATI
Last month, Cincinnati police arrested two teenagers for an
assault on 6th and Walnut. The 14-year-old allegedly involved in the assault
was released from juvenile detention with an ankle monitor. Judge Kari Bloom
said officials must consider multiple factors when making decisions.
By: Taylor Nimmo Posted at 9:15 PM, Feb 09, 2024
and last updated 9:16 PM, Feb 09, 2024
CINCINNATI — While the Hamilton County prosecutor and
Cincinnati police have criticized juvenile judges for not being tough
enough on teen offenders, Juvenile Court Judge Kari Bloom said the primary
goal of juvenile court is education and reform — not punishment.
Bloom said the court considers multiple factors when
determining whether a child will be detained or released.
“There is guidance in the law, from the federal government,
and from the behavioral health community on who should be held, when, why and
how long,” Bloom said.
Like adult courts, there are mandatory sentences that happen
in juvenile court as well.
“So, there are times
that we have to send a kid to the Department of Youth Services, which is prison
for kids,” she said.
Those situations include when a gun is shown or shot during
an offense, Bloom said.
Last month, Cincinnati police arrested two teenagers for
an assault on 6th and Walnut. The 14-year-old allegedly involved in the
assault was released from juvenile detention with an ankle monitor.
After the release, Prosecutor Melissa Powers called out
juvenile judges for "lenient policies (that) are enabling for this problem
to continue."
“It seems pretty natural to look for someone to blame. It's
sort of human nature,“ Bloom said. “The court has to
maintain impartiality. And so, if people want to blame the court, I can't stop
them.”
RELATED | Hamilton County prosecutor criticizes
'soft-on-crime,' 'woke' judges after violent attacks involving teens
Bloom said the law is what’s guiding her decisions.
“We aren't allowed to be influenced by the community, or
society or any outside factors, we are allowed to follow the law and so I would
say, not everyone agrees with the law. There are plenty that I don't agree
with, but I still have to follow them,” she said.
She said all detain and release decisions are made on a
child-by-child basis.
“If we were to say, every child charged with X gets held …
then we are violating the law. We cannot have black-and-white policies,” Bloom
said. “The system is set up the way it is from people far before us. We’re
following the law and process that’s been given to us.”
ATTACHMENT SEVEN – ALSO FROM WCPO
HAMILTON
COUNTY PROSECUTOR CRITICIZES 'SOFT-ON-CRIME,' 'WOKE' JUDGES AFTER VIOLENT
ATTACKS INVOLVING TEENS
Melissa Powers said some judges are "failing miserably
at their job"
By: Bret Buganski , Taylor
Nimmo Posted at 8:08 PM, Jan 30, 2024
CINCINNATI — After two violent attacks involving
teenagers were caught on camera, Hamilton County Prosecutor Melissa Powers
said she feels some judges in Hamilton County are "failing miserably at
their job."
Powers described those judges as more like defense attorneys
than neutral parties.
"I think they've lost their way, they don't know
they're neutral, they should be neutral, and deciding, and there's a clear
bias," Powers said. "I think that some of these judges are showing in
the courtroom, and how they're handling their cases."
On Jan. 23, surveillance cameras caught a violent
assault near the corner of 6th Street and Walnut Avenue. A man was walking
on the sidewalk when a group of eight people, including teenagers, jumped him. The
assailants proceeded to punch and kick the man while he was on the ground, with
one of the young suspects taking the victim's phone and wallet.
The assault lasted nearly half a minute before the group ran
off. The incident report says officers were able to track down two of the
suspects within minutes.
Jadin Shaw, 18, was arrested along with a 14-year-old boy,
but both were back on the streets the next day. Hamilton County court records
show Shaw was released on a 10% of $10,000 cash bond. The FOP said the
14-year-old was released by a juvenile court judge with an electronic ankle
monitor.
"So what the judges are doing with their lenient
policies are enabling for this problem to continue," Powers said.
Powers said to keep the community safe and show zero
tolerance for violent attacks, the only option is "taking and removing
these individuals off the streets, putting them behind bars."
During the conversation Tuesday, Powers acknowledged
what Ohio voters approved in November 2022.
Issue 1requires Ohio courts to consider public safety, the
seriousness of the offense, a person's criminal record and the likelihood a
person will return to court when it comes to setting bail amounts. WCPO asked
Powers if some of the recent decisions by some judges violate what voters
approved.
"Public safety consideration, I think so," Powers
said. "Every judge has an obligation to consider public safety in setting
bonds."
Powers said getting a higher bond isn't really an option, so
her office is focused on bringing the situation to light.
"The solution for us, and this office and my
prosecutors, is that we will continue to fight hard against soft-on-crime
judges, the woke judges, the radical ideas of restorative justice and continue
to emphasize how important it is for the public to be protected ... so the
public takes action that they're awake and they're paying attention to how
important their vote is to the types of judges they're electing in this county
because it has a direct impact on our quality of life," Powers said.
Powers acknowledged judges have a lot of discretion when it
comes to setting bond amounts. They are allowed to add other conditions to
their release like "no contact" with the victims, ankle monitoring,
travel restrictions and house arrest.
WCPO asked Powers if her office is considering filing
ethical complaints against certain judges. She said no. She said the next step
in these cases is waiting for the grand jury report to come out, and a
potential indictment, and then her office can ask a judge to reconsider the
bond amount. However, Powers said prosecutors tend to face the same judge who
set the original bond amount, so in her opinion, it's an uphill battle.
RELATED | 'Should not happen ever': Recent assaults
prompt Cincinnati FOP to call on judges to hold suspects accountable
While Powers and the FOP are calling on juvenile court
judges for accountability, others are pushing back.
Angela Chang, director of the youth defense division for the
public defender's office in Hamilton County, believes locking juveniles up is
not going to solve the problem. When it comes to accountability, she has a
different approach.
"When we talk about accountability, locking up or being
harsh in that sense is probably a little bit short-sighted," Chang said.
She said judges look at the needs of each individual child
and weigh what they think is best.
"I don't think it's fair to say that judge is
responsible for somebody's individual behavior," she said.
"Certainly, they are responsible for the appropriate response that they
give, and I do think they take that job very seriously."
Angela Chang, director of the youth defense division for the
public defender's office, said... however... that things like mental health
treatment can help a child understand long-term consequences, adding they can't
learn those things behind bars.
"And so what might appear to be a slap on the wrist,
but is really in the form of treatment, or maybe some sort of restorative
justice practice," she said.
She said juveniles are more likely to be rehabilitated and
changed through treatment.
"We certainly don't want to define any child by
something they've done … the worst thing that they've ever done," she
said.
ATTACHMENT EIGHT – AND AGAIN, FROM WCPO
Earlier this week, Police Chief Teresa Theetge said when it
comes to youth violence, everyone needs to come to the table. She is hoping for
better conversations with judges moving forward in hopes of finding a solution.
When it comes to that juvenile's actions causing serious
harm, Chang said it's important to note "kids are kids, they're not
mini-adults."
"So whatever the behavior, and no matter how serious,
they are still children and under the law should be treated as such,"
Chang said.
She said during pretrial she believes the court does
"their very best" in determining when juveniles should be safely
released. Occasionally, she said, the Hamilton County Youth Center does fill
up, but "I don't think that's what is driving release decisions."
While Chang said the recent incidents are understandably a
cause for concern, over-correcting could cause more harm than good.
"We have to really be careful and cautious as a
community to not over-correct and, you know, widen the net and keep more kids
in detention or out of you know, disrupting their lives when they don't need to
be," Chang said.
Overall, Chang said she believes the community needs to take
accountability for the fact many kids do not have their needs met in the first
place, sometimes driving these types of violent behaviors.
Mayor Aftab Pureval released a statement calling both
attacks "chilling" and "tragic," and noted the issue goes
beyond policing.
"Police alone will not solve this problem,"
Pureval said in a statement. "We need all partners — from our schools, to
our courts, to community advocates. This is going to require a hard look at our
systems and a multi-jurisdictional approach, and we’re committed to working
with anyone who’s at the table.”
ATTACHMENT NINE – FROM KOMO (SEATTLE)
JUVENILE
CRIME IN PIERCE & KING COUNTIES SEEING ALARMING TRENDS IN STOLEN CARS,
ROBBERIES
by Lynnanne Nguyen, KOMO News Reporter Thu, February 8th 2024
PIERCE COUNTY, Wash. — Local prosecutors are seeing
alarming trends in recent violent crimes involving teens.
Across Pierce and King counties, more kids are landing
behind bars for more serious crimes involving stealing cars and robberies with
a weapon.
“The biggest thing we’re seeing is stolen cars, Kias and
Hyundais. That’s the biggest problem we’re seeing. That’s an almost 500%
increase,” Casey McNerthney with the King County Prosecuting Attorney’s Office
said.
When it comes to juvenile crimes, in many of the recent
cases KOMO News has reported, the teens were in stolen cars, using them
to smash into pot shops, run over pedestrians and rob victims.
In recent years, King County prosecutors have seen an
explosion in kids stealing cars, fueled by trends on social media.
RELATED: Tacoma teen to be tried as adult in connection
to brazen cannabis shop robbery
“Once the TikTok trend happened, then we saw that
explode, as many places did because of this TikTok trend,” McNerthney said,
“When you tell people how to do it on the internet, it leads to all kinds of
bad decisions.”
“I think we’re seeing crimes of opportunity where you have
people making poor choices to steal a car, and then the crime escalates,”
McNerthney added.
In Pierce County, prosecutors are seeing more violent crimes
among juveniles, including robbery, auto theft, eluding, and resisting arrest.
“The crimes in general are becoming more and more violent,”
Pierce County Prosecuting Attorney Mary Robnett said. “I think the most
alarming trend for me is the fact that robberies and assaults have more than
doubled since 2019.”
In 2019, Pierce County prosecutors had 19 juvenile referrals
for robbery in the first degree. By 2023, that number jumped up to 133.
RELATED: Bystanders stop assault of woman at Federal
Way Safeway; 4 teens arrested
“People who are engaged in criminal behavior are becoming
more and more emboldened,” Robnett said, “There are fewer and fewer tools
available to the police to solve crime.”
“Very often we see people who commit crimes come from
traumatized homes, and they don’t have parents who tell them every day, ‘Hey,
we love you, you can do better than this,’” McNerthney said.
Local organizations like Choose 180 work with local
prosecutors and schools to try to intervene before kids land in court in front
of a judge.
“Ideally, we want to be preventative, we want to be
proactive,” Choose 180 Executive Director Nneka Payne said. “We want
to work with our community, our school districts, our prosecutors to wrap
support around young people before they’re engaging in any type of harmful
behavior because it’s a lot easier to start there versus coming in and
pivoting, having to build the trust and having to do those things.”
“We want to stop that before it gets that far,” Robnett
said. “Early intervention, early accountability when kids are maybe
experimenting with low-level crime.”
RELATED: New approach to King County juvenile diversion
programs showing early success
According to the latest data from the Washington
Association of Sheriffs and Police Chiefs, there were more than 6,200 juvenile
arrests statewide in 2022.
In almost half of those arrests (48.5%), the kids were
between 13 to 15 years old.
PEANUT GALLERY
·
SalishNative
2 days ago
It comes as no surprise that increase in juvenile crime
occurred immediately after the passage of HB 1140. We in law enforcement used
to catch kids early on in the game, they’d rat out their friends and frequently
turn their lives around before they became irreparable. Not the case anymore.
The ...
23
2
o
qpublic
2 days ago
yet, if you read the article, or see what is
happening....theyre defending all of this. they even say they have
"data", to back it up. that juveniles need supervised release. not
detention/jail. ...... its not stopping. its only going to get worse.
11
o
backinblack
2 days ago
Thank you for your service and valuable insight.
7
Show 1 more
·
Peledog
2 days ago
On October 7th 2021 King County Executive Dow Constantine
committed to closing the youth center (kid jail) by 2025. At the time he stated
that jailing youth was not needed and the focus should be on prevention and
diversion. Any sane person who saw this at the time knew you could not make the
probl...
17
1
·
P.Wright7
2 days ago
The coddling /enabling of these kids needs to stop! In
Southern states, if a child misses more than a day of school unexcused, a city
official is knocking on your door to find out what’s going on. Years ago, here,
they’d make parents go to truancy court. What happened to that? When you ignore
obvio...
19
1
2 replies
·
JessN222
2 days ago
It is not a trend. It is the norm now, sadly. And it is only
going to get worse if there are not more strict consequences. Catch and release
is pointless. The no pursuit law is a double edged sword. Yes, it prevents the
chance of an accident, but it also enables. Criminals know once they hop in
tha...
8
1
1
·
lawman123
2 days ago
Juveniles robbing people in parking lots, stealing cars,
smashing stolen cars into businesses to break inside, it's a free-for-all, and
HB1140 needs to be repealed. We need stricter laws for felonies, there must be
a deterrent. We have kids doing armed robberies who get to court and get an
ankle br...
16
1
o
citizenRule
2 days ago
Parents must be held accountable!!!!
3
·
LeftHell35
2 days ago
Not at all alarming with the liberal policies of catch and release,
especially with minors. Until a clear message is sent that this will not be
tolerated and there will be automatic consequences that are actually enforced,
nothing will change. Maybe money should be spent on a juvenile justice cente...
7
1
o
citizenRule
2 days ago
How about releasing the identity of these thugs? An informed
community is a protected community. Parents had the option to maintain
dignity...they passed on it. Responsible parents have the right to know who in
their kids schools are rapists, drug dealers, car
thieves and vandals. Why the secre...
4
1
·
NoTelevision
2 days ago
Maybe having a father inside the home is a good idea.
15
1
o
Glen865
1 day ago
While I do agree with you, I was one of those latchkey kids
in the 70's, early 80's. Both parents worked, and we never even saw them until
they both got home from work. We were on our own most of the time, and did
fine. I helped take care of my younger sister when I was growing up. But laws
were en...
1
o
RobCole
2 days ago
Obviously these parents love their kids, they gave them a
cellphone!
2
1
Show 2 more replies
·
Tetepoevo
2 days ago
I could have told you this without research. And I can also
tell you it’s going to get worse. And then when you think it can’t get any
worse, it will get worse.
6
1
o
SalishNative
2 days ago
100%, you ain’t seen nothing yet…and leftists will blame
everyone but the criminal
9
1
·
R
RedSushi
2 days ago
Fatherless juvies: they are in every metro. nothing
surprising. same story. Well studied by psychologists and others educated in
behavioral studies
9
1
1
·
E4xtreme
2 days ago
Do adult crimes, do adult times! It’s that simple, these
kids know they can get away with anything underage!
12
1
ATTACHMENT TEN – FROM CECIL DAILY WHIG (ELKTON, MD)
DEMOCRATIC LAWMAKERS
PLAN TO CRACK DOWN ON YOUTH CRIME IN THE COMING WEEKS
By STEPH QUINN Capital News Service Feb 6, 2024
ANNAPOLIS — Children as young as 10 could potentially go to
court for auto thefts and handgun violations, under
one proposal key Democratic lawmakers detailed on Wednesday and plan to push
for in the legislature in coming weeks.
The lawmakers propose giving Juvenile Services officers the
option to route a young person’s case to court if the child is 10 to 13 years
of age and accused of these or other crimes — adding them to the list of
serious offenses that already can land a young person before a judge.
The proposals are meant to promote collaboration and make
the system work more smoothly, Democratic officials said, but youth advocates
worry that they will lead to higher incarceration rates, especially of youth of
color.
“Right now, juvenile offenders and the services and
accountability they need are separated by an abundance of confusion,” said
House Speaker Adrienne Jones, D-Baltimore County. “Egos, political agendas and
arguments over process have filled the gaps.”
There must be “accountability for adults in the system, who
are charged with administering the system,” said Senate President Bill
Ferguson, D-Baltimore City. “We must ensure that all parts are working to their
highest potential.”
Jones and Ferguson joined Democratic Gov. Wes Moore on
Wednesday for a public announcement of the proposals, alongside the lawmakers who
crafted them.
The raft of changes, if enacted, would toughen a reform law
the state legislature passed in 2022. Among other things, that reform barred
police from charging young people under 13 except when they are accused of the
most serious crimes.
The newly unveiled legislative package would expand that
list of serious crimes and lengthen the maximum probation period that can be
ordered by a judge. It would also expand the reporting responsibilities of a
state agency charged with oversight of the youth justice system.
The announcement on Wednesday gave shape to Democrats’
response to pleas for accountability amid spikes in certain youth offenses in
recent years. While youth violent crime arrests fell 16.5% overall between
fiscal years 2020 and 2023, according to a Juvenile Services report last year,
carjackings increased by 85.4% and handgun violations rose almost 220%.
After weeks of talks with law enforcement and advocates, the
set of proposals represents a general agreement among Democrats, who control
both chambers of the legislature and also hold the governor’s office.
But advocates in the Maryland Youth Justice Coalition
predicted in a written statement that the “legislation introduced today will
see thousands more kids incarcerated every year, particularly Black and brown
children, and (exacerbate) the already serious racial disparities in Maryland’s
juvenile justice system.”
As the minority party, Republicans have said in recent
months that the reform law leaves Marylanders less safe and also prevents young
people from getting the services they need. GOP lawmakers in Annapolis have
their own ideas for change, including a measure that would prohibit young
people who have committed sexual offenses from attending school in person.
But one key Republican on Wednesday said the Democrats’ plan
shows they are taking “first steps” in addressing flaws in the youth justice
system. House Minority Leader Jason Buckel, R-Allegany, said he appreciates
that Moore has put his weight behind the issue of youth crime.
“For him to be able to step in and say, ‘Hey, I’m a
Democrat. I’m from Baltimore City, but I’m going to step up and say too much is
too much and this is a reasonable way to deal with this’ — it’s incredibly
helpful,” Buckel said.
Buckel said he also hopes Moore will be able to persuade
fellow Democrats to consider other tough ideas, too.
ATTACHMENT ELEVEN – FROM SPRINGFIELD (MO.) NEWS LEADER
HOLDING
PADDLE, SPS BOARD MEMBER URGES RETURN TO CORPORAL PUNISHMENT FOR STUDENTS
By Claudette Riley
Holding a wooden paddle, Springfield school board member
Steve Makoski urged a return to corporal punishment.
"I would encourage board members to begin a dialogue —
I brought a prop with me here — and that dialogue would be corporal
punishment," he said. "I think it's something that we should talk
about. I believe it could be used as one of our tools as part of discipline
guidelines."
Speaking during the board comment section at the end of a
4-1/2-hour meeting, Makoski outlined four steps he believed the district could
take to address student behavior issues.
He called on the Missouri School Boards' Association to
create a corporal punishment policy that is not "cookie cutter" or
"one-sided" and added that he plans to make that request in writing.
The association offers suggestions on policy adoptions and revisions to local
boards.
"If a school district is to actually pursue a corporal
punishment policy then MSBA ought to come up with some guidance on that rather
than just stating in a policy that there is no corporal punishment," he
said. "There are a lot of districts in the state that use it and I think
that we ought to take that under consideration as a board."
The comment period at the end of meetings is reserved for
board members to make suggestions or statements on any topic. Typically,
Superintendent Grenita Lathan and her team just listen.
Currently, the district outlaws corporal punishment. Adopted
in 2015 and revised in 2022, board policy JGA-2 states, in part: "No
person employed by or volunteering on behalf of the district shall administer
corporal punishment or cause corporal punishment to be administered upon a
student attending district schools."
Board member Judy Brunner, a former Springfield teacher and
principal, was the only one to respond to Makoski's suggestion.
"As far as corporal punishment is concerned, I served
many years as a principal and I thank the good Lord no one ever expected me to
hit a child and that is just the truth. I could not have done it," she
said. "I paddled my own at home. I could not have done it in a school
setting, I could not."
Speaking to Lathan, Makoski said support for good behavior
ought to start with parents.
"Dr. Lathan and your employees, they're faced with no
choice but to deal with the behavioral issues because students I think in
general lack discipline from the homefront and ... I don't want to say this in
a broad brush that all the parents are like that," he said. "Parents
mean well but sometimes I think we're just a babysitting service."
In addition to corporal punishment, Makoski urged the
district to "immediately" remove students who disrupt the classroom
and to have "stand down" assemblies.
"I would be an advocate for a districtwide safety and
discipline 'stand down' to address students and staff together of the need to
be respectful, considerate," he said, adding, "Violence and assault
will not be tolerated."
He added: "Violators will be dealt with swiftly and
appropriately and this 'stand down' should be conducted in an assembly
format."
Brunner said based in her experience in schools, large-scale
assemblies may not be the best way to communicate that information.
"That would probably be one of the least effective ways
to really spread the message," she said. "I am not saying the message
is not worthy to be spread, but a schoolwide assembly? There is just a lot that
goes on trying to hold the attention of a large group."
Board member Shurita Thomas-Tate questioned how effective
the board can be at encouraging others to engage in respectful behavior.
"With regards to discipline, it's hard for ... me to
really take seriously sometimes some of the comments that I hear regarding
student discipline and zero tolerance when we as a board have not even
demonstrated civility and kindness and respect for one another,"
Thomas-Tate said. "We expect our children to do that and yet at this very
board we don't demonstrate that on a regular basis."
One of the steps Makoski suggested that appeared to gain
traction was a significant restriction of smartphone use in the classroom.
Brunner said she agreed that "cellphones are one issue,
I am not going to say they are not" but stopped short of calling for them
to be restricted or banned.
Board members Maryam Mohammadkhani and Kelly Byrne said they
are supportive of removing that distraction to learning.
"My stance would be from bell to bell, they should not
be seen and if they are, there should be consequences," Byrne said.
"I don't think it's our job to police them in terms of locking them up or putting
them in bags or whatever."
Byrne noted that a push made under Lathan's leadership have
at least curbed use. "We have some schools that are doing it successfully
in the district. And the feedback that I hear from that is positive."
Board
member Maryam Mohammadkhani said when this topic comes up, it is not uncommon
for parents to say they want their children to have access to a smartphone if
"something truly horrific" happens while they are at school. But she
disagrees with that rationale, saying it creates chaos.
"You want one person telling the students where to go,
duck down, exit through the window," she said, noting that by phone, the
directions can become diluted by "parents and friends and cousins."
"We need to have one commander and that is the teacher
in the classroom," she said.
ATTACHMENT TWELVE – FROM the WASHINGTON POST
IN OVER 15
STATES, SCHOOLS CAN STILL PADDLE STUDENTS AS PUNISHMENT
Corporal punishment remains legal, especially
in the South. It still has its defenders. But the costs can be steep.
By Donna St. George
August 10, 2023 at 6:00 a.m. EDT
Kayla Brady’s son was in fifth grade when his elementary
school principal smacked him with a paddle for, as she put it, “not
minding the teacher.” The incident left bright red marks on the boy’s
buttocks that she said bloomed into purplish bruises as days passed.
But the damage went beyond the physical. The child believed
the principal would hurt him again and pleaded for his mom to barricade the
front door of their home. He found it impossible to sleep at night, his mother
said. Years later, he would still tense if he spotted the principal at the
Dollar General or Walmart in Booneville, not far from their rural stretch of northeast
Mississippi. Rather than cross paths, the teenager would leave the store.
“He’s traumatized,” said Brady, who said she was not called
before her son was struck, nor told afterward how many blows he had endured.
The police declined to get involved, Brady said. Later, she filed a lawsuit
over the incident — and lost.
There, corporal punishment is mostly legal.
More than 15 states, mainly in the South, allow paddling or other physical discipline in
schools. Among them, Mississippi has long topped the list, relying on the
practice more than any other, according to federal data. Most schools in
America — more than 90 percent — do not use corporal punishment.
Scott County, a central-Mississippi school district with
4,000 students, recorded more than 630 incidents during the school year that
ended in June, according to state data provided to The Washington Post. Brady’s
district — Prentiss County, with more than 2,200 students — used it 34 times,
about once a school week.
Critics say the practice is underreported. It also varies by
race and gender, with boys far more likely to get hit than girls. Black
boys, in particular, were twice as likely to be paddled or struck at school as
White boys across the United States, according to federal officials. Students
with disabilities were also at greater risk.
Children are physically punished for a range of behaviors —
talking too much, disrupting class, breaking rules, tardiness. Some Mississippi
districts say it’s not their first option to correct behavior but a tool to use
after other measures fail. Typically another person must be present, and the
punisher’s approach must be “reasonable,” not malicious or vengeful.
Missouri school district revives corporal punishment in
schools
Yet psychologists and scholars say the practice is not just
outlandish in 2023 but also ineffective in changing behavior and at odds with
modern approaches geared toward preventing problems, learning from mistakes and
understanding childhood trauma. For years, the American Academy of Child
and Adolescent Psychiatry, the American Academy of Pediatrics and
the American Psychological Association have weighed in against
corporal punishment in schools.
Adults who were spanked as children exhibited more
antisocial behavior and had more mental health problems, according to a
study co-authored by Elizabeth Gershoff, a professor at the University of Texas
at Austin who studies corporal punishment. Two more recent studies show that the
outcomes linked with corporal punishment at home are also associated with its
use at school, she said.
In other work, Gershoff and fellow researchers found
that a history of spankings was linked to more depressive symptoms, more
suicide attempts, more moderate to heavy drinking, and more drug use.
Defenders of corporal punishment see important lessons in
delivering firm consequences when children break the rules.
Some say that the threat of being struck is a powerful
motivator that keeps kids in line. They look to their own lives, having been
spanked or belted by parents or other relatives, concluding that their
experiences show that it works. And in the nation’s “Bible Belt,” religion is
also central, including Bible passages that many interpret as suggesting that
when parents “spare the rod,” they spoil a child.
In Mississippi, each school district decides whether to
permit corporal punishment — and a number of them have banned it. But even the
most frequent practitioners don’t necessarily defend the practice. They say
it’s up to parents.
Now families often can sign a form to opt their children in
or out of physical discipline. But if they decline, a child may be sent home or
suspended for misbehaving — an impractical option for parents in low-wage jobs
who don’t have the flexibility to take time off work or forgo hourly pay. Many
also want their children to stay in school, learning.
For them, it’s a choice only in theory.
Parents’ wishes are not always followed, either. Valerie
Bell, of Cleveland, Miss., said she had not consented to it when her
then-third-grader was physically punished for talking in class. Aware of her
mother’s objections, the girl protested and placed her hand over her buttocks.
The administrator delivered three licks anyway, injuring two of her fingers,
according to Bell.
“They were black and blue,” Bell said, adding that she was
told in the emergency room that the 8-year-old’s swollen fingers were sprained
and one was mildly fractured. They were placed in a brace and taped.
Her daughter, now in eighth grade, described the paddle to
her mother as long and wooden, with circle-shaped holes. Bell said she
repeatedly asked the school to see the object that fall, in 2018, to no avail.
She complained to the school board, which referred her to a
board lawyer, but she never heard back, she said. “Some teachers, some
principals, take it to the extreme,” she said, lamenting that small missteps
lead to such harsh punishment.
Cleveland School District officials say the incident
occurred during a previous administration but that the board’s counsel
conducted a full investigation and “made some personnel decisions, which are
confidential,” according to Jamie Lee, an attorney representing the district.
They do not recall following up with Bell afterward.
Corporal punishment is still allowed, he said, under
guidelines that follow Mississippi law. But Superintendent Lisa Bramuchi has
directed staff to “focus on more positive behavior reinforcement tactics rather
than those practices which punish,” he said.
Varied views
When Tijuanda Beckworth’s son was in middle school a decade
ago in Leflore County in the Mississippi Delta, a principal paddled
him. She did not know at the time; her son told her years later. The
practice was more common then, affecting more than 100,000 students nationally.
By 2017-18, the total had dropped to about 70,000.
Beckworth still sees the upside of the practice.
“I don’t think corporal punishment was put in place to be
abusive,” she said. “From what I see, as a parent and a disciplinarian, you
have to have accountability. There have to be consequences for their actions.”
Beckworth, a leader in the Greenwood chapter of the national
organization Parents for Public Schools, believes in partnering with schools,
which she said have done well by her two children, who graduated at the top of
their classes. “I trust that the teachers and the school are doing what’s in
the best interest of my child,” she said. “The number one thing that’s
important is learning.”
Lora Evans, another leader in the local Parents for Public
Schools chapter, whose son also once got the paddle years ago, was not bothered
then but now would stop corporal punishment. “I think we need some type of
alternatives because I don’t know if it deters the behavior,” she said.
A former school board member in Greenwood, she also would
like to know more about the experiences of districts that have banned it. “Once
something is taken out, it must be replaced with something else,” she said.
Nationally, support for the practice is diminishing.
By 2018, use of corporal punishment had fallen 35 percent in four
years. More recent data from several states, including Mississippi and
Arkansas, suggests a far steeper plunge since then. In Mississippi, the state’s
total of more than 24,000 incidents in 2018-19 plummeted to fewer than
4,000 last year. Arkansas’s drop was not quite as sharp but still fell nearly
60 percent during the same period.
The recent decline is partly explained by
the coronavirus pandemic, when students spent less time in school
buildings, and changing attitudes.
But a larger factor may be legislation to limit the
practice. In Mississippi, a 2019 law made corporal punishment unlawful for
students with disabilities. Several superintendents said in interviews that it
led to a precipitous drop in their districts’ use of physical discipline or
ended it.
Nationally, Colorado banned the practice earlier
this year, and civil rights and education organizations
have called attention to the issue repeatedly.
Officials in President Biden’s administration said they
expect to release more recent data on the use of corporal
punishment sometime this year. In March, the administration called on
state and local leaders to end the practice, citing negative effects on behavior,
mental health and academic performance.
“The practice of corporal punishment is antithetical to
positive child and adolescent development and school safety,” Miguel Cardona
wrote in a letter to education officials across the country.
Schools often use long, hardwood paddles to physically
punish students. They have also used their hands, rulers and other
objects, often striking the buttocks after a child is told to bend over.
A 2019 study co-authored by Gershoff, which surveyed
young adults in states that allow corporal punishment, found that 82 percent of
those struck at school experienced “some” pain. One in four said it was
“very” or “extremely” painful, and 22 percent recalled bruises or other
injuries.
Among reactions that they reported were anger, embarrassment
and fear.
Afterward the experience may shape how children see school,
said Crystal Brewer, chair of the Magnolia State School Counselor Association
in Mississippi. “School needs to be a place where kids feel safe and trust that
the adults genuinely care for them,” she said.
Tessa Davis, a parent in central Arkansas who grew up with
corporal punishment, did not question that part of school life as she and her
husband raised their children. But when their kindergartner got into a tussle
at lunch, she said, the family confronted the issue anew. She described it as
“a Catch 22, like he either gets a paddling and goes back to school the next
day or he gets three days of suspension.”
Davis regretted allowing the vice principal to paddle her
son. Adopted through foster care, her son had learning disabilities and already
struggled. He is biracial and the school was largely White. And then, she said,
he was being hit as a punishment for hitting.
Afterward, he didn’t want to go back to school: “He didn’t
feel like they liked him,” she said. Davis has come to see the practice as
antiquated and at odds with research about child well-being. She joined the
group Arkansans Against School Paddling. “It just seems ridiculous that
people still use it,” she said.
Many states that allow corporal punishment in public schools
have barred it in child-care settings, foster care homes and juvenile detention
centers, raising questions about why schools are an exception. Adding to the
complexity, statewide bans on the practice typically focus on public schools,
not private or religious ones.
Parents allege corporal punishment at Blue Ribbon school in
Maryland
The legal basis for the practice goes back in
large part to 1977, when it was far more common in schools and the U.S.
Supreme Court found that it did not violate constitutional protections
against “cruel and unusual” punishment or due process guarantees.
Since then, states have banned it, as have many school
districts.
Ametra McNeal, a parent in Grenada, Miss., signed a
form opting out. When she was a kid, her principal walked the halls clutching a
paddle, she said. If he came upon a student who had been sent into the hallway
for misbehavior, he would use it, she said. “You could hear those licks down
the hall,” she said.
“As a mother, I don’t like the idea of someone else hitting
my child,” she said. “That’s just brutal. There has to be something other than
that.”
Others seek alternatives, too, including Erica
Jones, president of the Mississippi Association of Educators, who said her
teachers’ organization wants an end to the practice.
Many schools work to recognize and promote positive
behavior. When kids cross the line, they rely on warnings, counseling, parent
conferences, revoking privileges, in-school detentions or restorative practices
to make up for damage done. More significant missteps may involve suspensions
or other punishments.
“Even though parents may be in favor of corporal punishment
to some extent, they don’t necessarily approve of it being done by people at
school,” said Joann Mickens, executive director of the national
organization Parents for Public Schools, based in Jackson, Miss.
Where change comes slowly
This year, Scott County Public Schools recorded more
corporal punishment than any other district in Mississippi — delivering
punishment by paddle 637 times in 2022-23, according to state data.
This part of the state is chicken country — 610 square miles
of rural living with a bevy of poultry growers and processing plants. Artful
replicas of roosters brighten the downtown streets of Forest, the county seat.
Tractor-trailers with live birds and fresh timber clatter along a main highway
one day. Elsewhere in the county, struggling families dwell in rusted trailers
and run-down houses.
The area is not part of the Mississippi Delta, but
Superintendent Alan Lumpkin said he sees similarities in its challenges. All of
its public schools serve high-poverty populations.
According to the district’s student handbook, parents
must meet with the principal in person at the beginning of each school year to
opt out of corporal punishment. They must also agree to remove their child from
school immediately when called.
Lumpkin did not answer directly when asked whether he
believed hitting a child with a paddle improves behavior. He said he took
exception to the word “hit,” preferring instead to call it “corporal
punishment.”
“The parent is in control of whether corporal punishment is
used,” he said.
School board members said that they had not fielded complaints
about corporal punishment and that they had no idea their district was the
state’s top paddler.
Board Vice President Greg Nicks, who was once a principal,
said he found it “alarming” that the district was reaching for the paddle far
more than others. Parents and teachers may need counseling on other ways to
elicit student cooperation, he said. One day Mississippi will end the practice,
he said.
But not everyone thinks it’s time. “I think it’s a good
thing,” Ben Byram, another board member, said. “You have to punish kids for bad
decisions, and if you don’t — if you can’t paddle them, which is over in five
seconds — you have to suspend them.” Suspensions keep kids out of class, taking
them away from instruction and hurting their grades — which is worse, he said.
Mississippi counted more than 3,800 incidents of corporal
punishment in 2022-23. The data showed racial disparities. Last school year,
Black students accounted for 47 percent of the state’s enrollment but 54
percent of students who’d received corporal punishment. White
students made up 43 percent of enrollment but 39 percent of those corporally
punished.
Racial disparities in student discipline are growing at U.S.
schools, federal data show
Some see the punishment as a vestige of Mississippi’s past
under Jim Crow, with Black children treated unequally and subject to harsh
practices that are banned elsewhere in the country. “What you’re seeing is a
historical echo,” said Stacey Patton, a child advocate and author of the book
“Spare the Kids: Why Whupping Children Won’t Save Black America.”
The numbers don’t give the full picture either, said Ellen
Reddy, head of the Mississippi Coalition to End Corporal Punishment, who
maintains that some school incidents are not counted. Reddy operates from the Nollie
Jenkins Family Center in Durant, Miss. She added that parent consent should not
be sought or allowed.
“I strongly disagree that a parent has a right to consent
for a child to be brutalized,” she said.
Paddling on trial
In Booneville, Miss., where Kayla Brady’s son was paddled as
a fifth-grader, the bruises of his childhood lasted two weeks, she said.
For the family, the issue lasted longer.
Brady hired a lawyer and sued the principal and school district,
arguing in part that her son was on a no-paddle list and she never gave the
principal permission to strike her child as he did. The school district said
she had, according to court documents. Brady said the district offered to
settle the case for $5,500, but she could not say anything about it if she
accepted the settlement. She refused. She said she did not want it to happen to
another child.
Circuit Court Judge James L. Roberts Jr. presided over a
two-day trial in 2017. The principal’s paddle was in the courtroom, Brady said
— flat and wooden, a couple of feet in all, she guessed — “not as long as a
yardstick.” Her son sat quietly, scared and upset, she said. Contacted in July,
the then-principal declined to comment.
In his October 2017 opinion, Roberts said the boy and two
others were involved in “horseplay” in the boys’ bathroom — which a teacher
reported to the principal, who then delivered “three licks of a wooden paddle”
to the fifth-grader’s buttocks. The teacher testified the principal did not
seem irritated or angry as he struck the boy, the judge wrote.
And while photos taken by Kayla Brady showed redness and
bruising on the boy’s buttocks, the judge said his injuries “did not require
medical treatment and healed completely.” The judge said the paddling occurred
“in a reasonable manner,” without bad faith, malicious purpose or “a wanton and
willful disregard of human rights or safety.”
More than eight years later, Brady still has the photos —
and strong feelings about hitting kids at school. “They don’t know what a child
is going through,” she said. “They just want to spank them because they’re not
acting like they want them to.”
In the family’s school system, the practice lives on.
Prentiss County still mentions corporal punishment in its 2023-24
handbook for students, saying the practice can be used as a “maximum
punishment” for flagrant or repeated low-level infractions — running in the
halls, tardiness, dress code violations, public displays of affection, pushing
and shoving. Last school year, it was used 31 times, state data showed. School
officials did not respond to requests for comment.
Brady’s son, who recently turned 20, declined an interview
with The Washington Post. His mother said he sees the episode as a piece of the
past that he has no interest in probing anew. He said she could talk about what
happened, but he is out of school, part of the working world now. He would
rather let it go.
St. George reported from Jackson, Miss., and Washington.
ATTACHMENT THIRTEEN – FROM ISLAMIC NETWORK GROUP (ING)
A CLOSER
LOOK AT SHARIA IN THE UNITED STATES
With the focus in recent years on the issue of Sharia in the
United States, many myths and half-truths have arisen around the topic. The following
are a series of questions and answers about Sharia in the United States,
including a look at what exactly Sharia means and encompasses, how much of a
real threat Sharia really poses in this country, and who is behind this
campaign. The answers are revealed by clicking on each question and concealed
by clicking on the question again at the website here.
Background
1. What is Sharia?
2. What are the sources of Sharia
and how is it interpreted?
3. What issues does Sharia address?
4. What types of Muslims follow
Sharia?
5. Do other religions have the
equivalent of Sharia?
6. Where do people get their
negative views of Sharia?
7. What is a fatwa?
8. How does Sharia relate to Western
concepts of human rights?
9. What are women’s rights under
Sharia?
Sharia in the United States
10. How do Muslims follow Sharia in
the United States?
11. Isn’t it un-American to follow
Sharia in the United States?
12. Can Muslims be true to America
and at the same time to their religion?
13. Is Sharia being substituted for
the U.S. Constitution?
14. Are American Muslims trying to
enforce Sharia in the United States?
15. How do American democracy and
Sharia relate to each other?
16. How does sacred law such as
Sharia intersect with secular law?
17. How do concerns about Sharia
relate to Western views on faith and reason?
18. How do you explain
accommodations of Muslim practices? Isn’t this an example of creeping sharia?
Background on the Anti-Sharia
Movement:
19. What is the primary concern
about Sharia in the United States?
20. Why are Sharia bans un-American?
21. How would Sharia bans hurt
Americans who are not Muslim?
22. Who is behind the anti-Sharia
movement?
23. What is the Islamophobia network
and how does it relate to the Sharia scare?
19. What are the arguments of
anti-Sharia groups?
25. Why are anti-Sharia arguments
problematic?
26. Where have Sharia bans been
implemented?
27. Which other states are
considering banning Sharia?
28. How is taqiyya related to the
issue?
To learn more about Sharia, please
reference the following books:
The Great Theft: Wrestling Islam from the Extremists, by
Khaled Abou El Fadl
The Fall and Rise of the Islamic State, by Noah Feldman
The Muslim Next Door: The Qur’an, the Media, and that Veil Thing, by Sumbul
Ali-Karamali
Demystifying Shariah: What it is, How it Works, and
Why it’s Not Taking Over Our Country, by Sumbul Ali-Karamali
1. Matthew Duss, Yasmine Taeb, Ken Gude, and Ken Sofer, Fear, Inc. 2.0:
The Islamophobia Network’s Efforts to Manufacture Hate in America. Center
for American Progress, February, 2015, 6. Accessed October
13. https://www.americanprogress.org/issues/religion/report/2015/02/11/106394/fear-inc-2-0/
2. The two reports by the Center for American Progress are Wajahat Ali,
Eli Clifton, Matthew Duss, Lee Fang, Scott Keyes, and Faiz Shakir, Fear,
Inc.: The Roots of the Islamophobia Network in America:
https://www.scribd.com/document/63489887/Fear-Inc-The-Roots-of-the-Islamophobia-Network-in-America and
Matthew Duss, Yasmine Taeb, Ken Gude, and Ken Sofer, Fear, Inc.
2.0: The Islamophobia Network’s Efforts to Manufacture Hate in America: https://www.americanprogress.org/issues/religion/report/2015/02/11/106394/fear-inc-2-0/
3. Jewish Telegraphic Agency, “Jewish groups join call to mayors to denounce
‘anti-sharia’ marches,” June 9,
2017. http://www.jta.org/2017/06/09/news-opinion/politics/jewish-groups-join-call-to-mayors-to-denounce-anti-sharia-marches
4. National Conference of State Legislatures, “2017 LEGISLATION REGARDING THE
APPLICATION OF FOREIGN LAW BY STATE
COURTS”, http://www.ncsl.org/research/civil-and-criminal-justice/2017-legislation-regarding-the-application-of-foreign-law-by-state-courts.aspx
5. Ibid.
ATTACHMENT FOURTEEN – FROM BRITTANICA
PENAL LAW in
SHARIA
Offenses against another person,
from homicide to assault, are punishable by retaliation (qiṣāṣ), the
offender being subject to precisely the same treatment as the victim. This type
of offense is regarded as a civil injury rather than a crime in the technical
sense, since it is not the state but only the victim or the victim’s family who
has the right to prosecute and to opt for compensation or blood
money (diyah) in place of retaliation.
For a handful of specific crimes, the punishment is fixed (ḥadd): death for apostasy, amputation of the hand for theft
and of the hand and foot for highway robbery, death by stoning for extramarital
sexual relations (zinā) when the offender is married and 100 lashes
when the offender is unmarried, and 80 lashes for an unproved accusation of
unchastity (qadhf) and for the drinking of any intoxicant.
Beyond the ḥadd crimes,
both the determination of offenses and decisions regarding the punishment meted
out for them lie within the discretion of the executive or
the courts.
Law of transactions
A legal capacity to transact belongs to any person “of
prudent judgment” (rāshid), a quality that is normally deemed to
accompany physical maturity or puberty. The law presumes that (1)
boys below the age of 12 and girls below the age of 9 have not attained puberty
and (2) by the age of 15 puberty has been attained for both sexes. Persons who
are not rāshid, on account of minority or mental
deficiency, are placed under interdiction: their affairs are managed by a
guardian, and they cannot transact effectively without the guardian’s consent.
The basic principles of the law are laid down in the four
root transactions: (1) sale (bayʿ), transfer of the ownership or
corpus of property for a consideration; (2) hire (ijārah), transfer
of the usufruct (right to use) of property for a consideration; (3)
gift (hibah), gratuitous transfer of the corpus of property,
and (4) loan (ʿāriyah), gratuitous transfer of the usufruct of
property. These basic principles are then applied to the various specific
transactions of, for example, pledge, deposit, guarantee, agency, assignment,
land tenancy, partnership, and charitable foundations (waqf). Waqf is a
uniquely Islamic institution in which founders relinquish their ownership
of real property to God and dedicate the income or usufruct of the
property in perpetuity to some pious or charitable purpose. This may include
settlements in favour of the founder’s own family.
The doctrine of ribā significantly
influences the Islamic law of transactions. Basically, this is the prohibition
of usury, but the notion of ribā was rigorously
extended to cover, and therefore preclude, any form of interest on a capital
loan or investment. And since this doctrine was coupled with the general
prohibition on gambling transactions, Islamic law does not, in general, permit
any kind of speculative transaction the results of which, in terms of the
material benefits accruing to the parties, cannot be precisely forecast.
ATTACHMENT FIFTEEN – FROM CORNELL UNIVERSITY LAW SCHOOL
Overview:
Cruel and
unusual punishment is a phrase mentioned in the Eighth Amendment of the U.S.
Constitution. Specifically, the Eighth Amendment prohibits cruel and unusual punishment.
However, the Constitution does not give more guidance than that, and so
courts--and particularly the Supreme Court--have heard a number of cases which
have given guidance to the prohibition on cruel and unusual punishment.
Imprisonment
Proportionality
of Sentence
In Solem v.
Helm, 463 U.S. 277 (1983), the Supreme Court held that a sentence may not be
disproportionate to the crime committed, regardless of whether the crime is a
felony or a misdemeanor. To measure proportionality, the court must look at
several factors. These factors include:
The severity of
the offense
The harshness of
the penalty
The sentences
imposed on others within the same jurisdiction
The sentences
imposed on others in different jurisdictions.
The Supreme
Court later overturned this prohibition on disproportionate sentences in
Harmelin v. Michigan, 501 U.S. 957 (1991), but stated, in dicta, that in
extreme cases, a disproportionate sentence could violate the Eighth Amendment.
This opinion was later affirmed in Lockyer v. Andrade, 538 U.S. 63 (2003),
holding that a gross proportionality requirement is only available in
“exceedingly rare” and “extreme cases.”
Age
Juvenile
Non-Homicide Offenders
The Supreme
Court does consider age when determining the constitutionality of imprisonment.
In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court held that, for
juvenile non-homicide offenders, it is unconstitutional for a court to assign
life imprisonment without parole. Further, if a court does impose a life
sentence, it must also provide the offender with a "realistic opportunity
to obtain release."
Juvenile
Homicide Offenders
In Miller v.
Alabama, 567 U.S. 460 (2012), the Court expanded on Graham, holding that life
imprisonment without parole is unconstitutional for juvenile homicide
offenders.
Prison Beatings
In Ingraham v.
Wright, 430 U.S. 651 (1977), the Supreme Court stated that the “unnecessary and
wanton infliction of pain” constitutes cruel and unusual punishment. This
standard was refined in Whitley v. Albers, 475 U.S. 312 (1986), in which the
Supreme Court stated that action that may seem like an unconstitutional
“unnecessary and wanton infliction of pain” may be constitutional, if the
infliction of pain is done in a good-faith effort to restore discipline, rather
than done maliciously to cause harm.
Using this
standard, the Supreme Court found that a prisoner’s Eighth Amendment right was
violated in Hope v. Pelzer, 536 U.S. 730 (2002). The prisoner was handcuffed to
a hitching post for 7 hours, taunted, and denied bathroom breaks. The court
reasoned that this treatment exceeded what was necessary to restore order.
In Hudson v
McMillian, 503 U.S. 1 (1992), the Supreme Court held that a prisoner does not
need to experience significant injury by prison guards in order to suffer an
Eighth Amendment violation. Rather, if the guards act maliciously and
sadistically to punish the prisoner, then that punishment would be cruel and
unusual, and would accordingly violate the Eighth Amendment.
Conditions of
Confinement
Deliberate
Indifference
In Estelle v.
Gamble, 429 U.S. 97 (1976), the Supreme Court established that the Eighth
Amendment may be violated due to factors related to a prisoner's confinement. A
prison guard's deliberate indifference to a prisoner's serious illness or
injury would constitute cruel and unusual punishment which would violate the
Eighth Amendment.
Overcrowding
In Brown v.
Plata, 131 S.Ct. 1910 (2011), the Court held that prison overcrowding in
California was unconstitutional because the living conditions resulted in
medical care violations. The Court reasoned that prisoners would suffer and
could die if they did not receive adequate medical care.
[Last updated in
July of 2022 by the Wex Definitions Team]
ATTACHMENT SIXTEEN – FROM THE DAILY BEAST
OPINION: TRUMP’S PLAN
WOULD SEND BLACK BOYS’ SCHOOL-TO-PRISON PIPELINE INTO OVERDRIVE
ANOTHER TERRIBLE IDEA
In a rambling video message, Trump threatened to upend local
juvenile justice systems around the country. The result could send more Black boys
to prison.
Goldie Taylor Contributing Editor Updated Feb. 22, 2023 4:32AM
EST / Published Feb. 21, 2023 9:43PM EST
His best days, such as they were, are behind him.
Let the record reflect that Donald Trump will never again step foot in the White House
or host a state dinner. He will never have the opportunity to pillage the
national coffers for his own gain and that military parade he once pined for
will never happen. Ultimately, Trump’s haphazard ploy to return to the Oval
Office will almost certainly end in defeat, indictment or both.
But that doesn’t keep him from whipping up pangs of fear and
loathing to pump up his waning base of support. This time around, just like the
last, Trump is proposing bigoted, unthinkable policy ideas.
His latest scheme? In a rambling video message, he
threatened to deploy the full power of the Departments of Justice and Education
to upend local juvenile justice systems around the country. In his words, he
wants to “end the leftist takeover of school discipline and juvenile justice”
and send the federal government to oversee discipline in schools.
Unworkable? Sure. Illegal? Without question. So much for
small government, right?
If Trump has his way—and surely he will not—the DOJ and DOE
will take over student discipline. He claims without a whiff of evidence that
local governments are indulging criminal activity. “When troubled youth are
going wild, we will stop it. The consequences are swift, certain, and strong,
and they will know that,” he said. “Many of these carjackers and criminals are
13, 14 and 15 years old. I will order the education and justice departments to
overhaul federal standards on disciplining minors,” the potentially soon-to-be
felon pronounced.
The notion of states’ rights be damned. In a bid to outdo
Florida Gov. Ron DeSantis and his boneheaded book bans, Trump wants the federal
government to jump in front of governors, mayors, and school boards to go after
children. Never mind that in many states children are all too often prosecuted
as adults for certain crimes. The worst violent offenders can and sometimes do
receive life sentences.
But make no mistake. When Trump says children, he means my
children. He means Black children from “shithole” cities like Atlanta and
Chicago. According to Department of Justice data, Black juveniles are
three times more likely to be incarcerated than Hispanics, and six times more
likely to be incarcerated than white children. Racial disparities among
children punished for the same offenses in school and in courtrooms are well-documented.
The very idea of federalizing school discipline is
absurd—not to mention unconstitutional—and, quite frankly, racist. But what can
we expect from a man who attempted to trade arms for dirt on his political
adversaries? Embracing the lunatic fringes, he will go down as the only sitting
U.S. president in our nation’s history to foment an armed insurrection. But,
just when you thought he couldn’t stoop any lower, he hollowed out a canyon and
dove in head-first.
He doesn’t exactly say how he will do this. Does the
reigning Emperor of Mar-A-Lago plan to build federal prison camps for children?
Labor farms for schoolkids? Or just imprison them alongside adults? Have the
tiny people in his head discussed this? He clearly has no one in his orbit who
truly cares about him, let alone a marginally competent public policy team that
can check his worst impulses.
If we expected Trump to get smarter for his experiences or
become a nimbler politician with a stronger grasp on the vagaries of governing,
I can assure you he has not. He has shown little wisdom for his years in office
and an even deeper devotion to divisive, mean-spirited issue positions. A
modern-day Bull Connor, he has shown himself to be disconnected, feckless, and
lazy.
Let it be said that Trump never really wanted the job. In
2016, as he descended that gold-toned escalator, it was clear that he was
launching another gambit to advance his personal brand. After all, there had
been steaks, airlines, television shows and a bevy of other get-rich-quick
schemes designed to line his Trump-branded pockets. So why not a presidency?
Wanting to be president is quite different from actually
wanting to do the job. You know if you run, you could win, his wife reportedly
said, almost as a warning. Being leader of the free world certainly entails
more than a morning chats with your banker, endless rounds of golf, and getting
gussied up for society galas. And, nobody would know better than Melania how
little her husband reads and his minuscule appetite for matters of any real
substance. I mean, she has to know that he didn’t actually graduate at the top
of any class, let alone Wharton.
Even after he was elected, there was never any real thought
given to how he might govern, no meaningful policy formulation, let alone a
strategy to, say, for instance, grow the American economy, strengthen
relationships with our allies, fight a pandemic or educate the next generation
of school children.
In practice, his latest idea wouldn’t just speed the
school-to-prison pipeline. It would be a bullet train.
It’s worth noting that as president, Trump had a better
idea—or at least one that slipped by his chubby fingers. It didn’t get much
attention at the time, but he signed the Juvenile Justice and Delinquency
Prevention Act which forced states to begin collecting data on racial
disparities in the juvenile system. The law mandates the development of
specific strategies to address racial inequalities or risk losing federal
funding. Another bipartisan measure eased punishments for many juvenile
offenders. It prohibits states from holding juveniles for more than seven days
on so-called status offenses, such as truancy or running away from home. And it
all but eliminates the practice of holding juveniles in adult prisons. He
should be talking about that, but it wouldn’t play well with his base.
On its face, juvenile systems are set up to support families
and help children continue academically. That doesn’t happen as often as it
should. Clearly, juvenile systems are in dire need of reform and the resources
necessary to deliver measurable results. But he isn’t interested in the
results. He isn’t interested in investing in children. For Trump, criminal
justice reform was just another celebrity photo-op..
Luckily, he won’t be dining on McDonald’s take-out aboard
Air Force One ever again. Maybe citizen Trump will just take out a full page ad
in The New York Times, calling for the execution of five innocent
Black boys.
Oh, wait, he did that already.
ATTACHMENT SEVENTEEN – FROM GUK
US SCHOOLS ARE SENDING MORE KIDS TO PSYCHIATRISTS OUT
OF FEARS OF VIOLENCE. CLINICIANS ARE CONCERNED
Psychiatric evaluations are meant to
keep students safe, but experts say schools often misuse and misunderstand them
By Rebecca Redelmeier, The Hechinger Report
Mon 12 Feb 2024 08.00 EST
The
nine-year-old had been drawing images of guns at school and pretending to point
the weapons at other students. He’d become more withdrawn, and had stared
angrily at a teacher. The principal suspended him for a week. Educators were
unsure whether it was safe for him to return to school – and, if so, how best
to support him.
So, as schools around the country
are increasingly inclined to do amid heightened concern
over school violence and threats, administrators sent the child to meet with a
psychiatrist. There the child sat, in a chair a bit too big for his small
frame, fidgeting as he listened to the psychiatrist over a video call.
Read more: Texas took over a failing Houston school
district. Will its militaristic structure work?
“Some people in the school asked me to talk
with you to try to figure out how we can make school easier for you and
understand what happened,” the psychiatrist Nancy Rappaport told him, according
to a recording of the call. She had documented the session, anonymizing some
details, to it
as a case study with a room full of hundreds of child psychiatrists who faced
similar requests.
They had come from across the
country, gathering at an annual professional meeting of the US’s child and
adolescent psychiatrists last October, to learn how to conduct similar
evaluations effectively. Many were seeing more children wind up in their
offices and emergency rooms, pushed into psychiatric evaluations by their
schools. Sometimes their young patients had made threats or been violent in
class. Other times, the catalyst was less clear; perhaps the school had called
police to take the child to the hospital during a behavioral or mental health
crisis, or told a parent that their child would not be allowed back without a
doctor’s sign-off. They needed to know how to respond.
“None of us can predict violence –
we don’t really have a future [predicting] ball,” Rappaport, who is also a
psychiatry professor at Harvard, said later. When assessments are deployed
well, she explained, they can be essential to preventing violence in schools
and mobilizing resources for a struggling student. But determining which child
could pose a threat to themselves or others is a delicate process that schools
frequently misuse and misunderstand, according to Rappaport and other experts
familiar with the process.
Psychiatrists emphasize that schools
need well-trained teams of mental health professionals and administrators who
work alongside clinicians to assess whether students pose a threat and support
children in crises. But, they say, relatively few districts have that level of
resources. Instead, schools often offload the responsibility of evaluation and
intervention on to outside psychiatrists and even emergency rooms.
The practice can keep students out
of school for weeks or even months, and cast children into an already
overburdened youth mental health system that families must often navigate
without any assistance from schools. Family advocates say that even sending a
child to an emergency room for an evaluation can become a days-long ordeal.
Without clear policies, transparency
and staff support for schools and clinicians, many experts say these outsourced
evaluations can result in a cycle of removals that leave children in crisis and
schools with a false sense of security.
When you ask an emergency room: ‘Is
this child safe to be in school?’ it’s the wrong question
Dr Nancy Rappaport
“When you ask an emergency room: ‘Is
this child safe to be in school?’ it’s the wrong question,” Rappaport said. “It
gives the schools a false sense of confidence and, many times, it indicates
that the school doesn’t have in place what needs to happen.”
No comprehensive national data
exists about how often districts require such evaluations. But for many
psychiatrists, the seemingly ever-spreading use of these evaluations without
preventive measures or follow-up support for students is setting off alarm
bells.
“The focus can’t just be on identifying
potential school shooters,” said Deborah Weisbrot, a clinical psychiatry
professor at Stony Brook University medical center who also helped lead the
training session. “The focus needs to be about the underlying mental health and
characteristics of all the hundreds and hundreds of kids who make threats, who
will never become school shooters, and what are their needs.”
Dorri Auerbach wishes her district
had offered that broad focus.
Her grandson, Carter, is a bubbly
child with diagnosed ADHD and lots of energy. At the beginning of his first
grade year in 2021, Auerbach asked his Long Island elementary school in New
York to evaluate him for special education services, but he was found
ineligible, according to Auerbach and a school therapist’s report. At school,
he did well in math and reading but often struggled to sit still in his chair
and became frustrated when he felt misunderstood by other kids, she said. He
met regularly with the school therapist to learn better coping strategies.
Then, midway through the school
year, things started to go downhill. At times, the six-year-old became
physically aggressive toward other students and threatened to hurt them,
according to Auerbach and the report. Twice in the span of two months,
administrators at Verne W Critz Elementary insisted he go to a hospital or
crisis center for a psychiatric evaluation; both times he was taken there by
police.
Each time, the process meant an
hours-long wait in the local hospital’s psychiatric emergency center. When he
was finally seen, the doctor was brief, evaluating the child and clearing him
for discharge. And each incident was paired with a suspension – at first just
for a few days. But then, he was placed on home instruction long-term and
prohibited from returning to school “until such time as the District has
completed and reviewed the results of a Psychiatric Evaluation”, according to
the district’s stipulation notice.
After each incident, it became clear
to Auerbach that the school’s approach to supporting Carter wasn’t working.
“They promised and promised that they had everything in place,” she said. “And
then, when it came down to it, they didn’t know what to do with him and then
kicked him out again.”
A spokesperson for the South Country
school district said the district cannot comment on individual student matters.
The district did not respond to questions about its approach to risk
assessments or psychiatric evaluations more generally.
Advocates for families say
Auerbach’s experience is increasingly common, as schools face intense pressure
to ensure they don’t underreact to students who may make a threat or
demonstrate violence.
However, data and research that is
available show that evaluations have been used inequitably. Some schools send
Black children to psychiatric emergency rooms at disproportionately high rates,
and disability advocates worry such assessments also frequently target children with special needs and keep
them out of the classroom.
“The schools are not doing these types
of evaluations or processes preventively and pre-emptively,” said Dan Stewart,
a managing attorney for the National Disability Rights Network. “They’re just
telling parents that the kids can’t return.”
That approach, advocates say, can
have a detrimental effect on a student’s long-term wellbeing and academic
progress. Oftentimes, the process to ensure communication between schools and
hospitals after the referral is murky at best, and nonexistent at worst.
“Initially, the response of most
schools is that it’s a mental healthcare emergency, not an education
emergency,” said Cheryl Theis, a senior education advocate at the Disability
Rights and Education Defense Fund. “And of course, that’s a completely false
dichotomy.”
For Carter, the district’s requirement
that he receive a full psychiatric evaluation before returning to class kept
him out of school for months as a first grader. After his suspension, the
district failed to schedule the more thorough psychiatric evaluation, Auerbach
said. She reached out to several psychiatrists on her own to arrange an
evaluation but was told they weren’t taking new patients – a common occurrence
amid a nationwide shortage in child mental healthcare
providers.
This is a kid that needed help.
Whatever he was showing you, he needed help. And they failed him
Dorri Auerbach
After five months of Auerbach’s
pleas for assistance, and after she got in touch with a local legal advocate,
the district re-evaluated Carter’s educational needs. It found him eligible to
attend a more-supportive educational program, transferring him to a new school
while the thorough psychiatric evaluation remained pending.
At that point, half a year had
passed since he had last been in a classroom. “This is a kid that needed help,”
Auerbach said. “Whatever he was showing you, he needed help. And they failed
him.”
Child psychiatrists say evaluations
work best when schools are equipped to work with clinicians to help determine
how best to support a child and keep a school safe.
In the first
study to examine the characteristics of students referred to outpatient threat
assessment, published last year, Weisbrot and a team of researchers
analyzed more than 150 evaluations of children and teens on Long Island. Only
8% of the students were deemed to be potentially dangerous, but most had other
educational and psychiatric needs, many of which could be addressed by
accommodations such as smaller class sizes or regular meetings with a
therapist.
When things go right, Weisbrot
explained, a child identified for a psychiatric threat assessment might be
given further assistance in school and more robust mental health support. The
student may also benefit from a special education assessment, or the school may
need to intervene in bullying or other dynamics affecting the child’s
wellbeing.
Crucially, these steps would ensure
that the psychiatric evaluation is only one part of the process, with schools
sharing relevant information with clinicians and implementing further support
once a child is discharged. That way, Weisbrot said, “it’s not an endless chain
of suspensions and other kinds of disciplinary actions without an intervention
for what’s causing these problems”.
Some legislators are also looking
into the issue. In New Jersey, a bill first introduced last year would
have created a statewide policy on psychiatric clearances of students and
require the state’s education department to collect annual data on the number
of students removed from school mental health evaluations. The legislation
addressed some of the concerns of local parents and advocates, who said such assessments were being used more frequently after
students returned to school when pandemic restrictions eased. The bill has not
made it out of committee.
As for Carter, he’s now a third
grader in a supportive school on Long Island, where the school day is designed
around helping students who may have more educational or behavioral needs.
While Auerbach is glad that he has settled into the school, she hopes that at
some point down the line, he’ll be able to return to a mainstream class. And
she worries about the way the removals and isolation may have already affected
Carter – the police taking him to the hospital in a squad car, the long waits
to be seen by doctors, and the months out of school.
What haunts her most is the sense
that none of this had to happen. If the district had found Carter eligible for
special education support earlier, when she first requested the evaluation,
perhaps he would have been helped rather than sent to the hospital, she said.
And if the school had implemented better interventions after Carter was sent to
the hospital, then, maybe he wouldn’t have been suspended.
“I feel that if he had the support
before, he probably would have been okay,” Auerbach said. “It wouldn’t have
gotten to this point.”
This story
about psychiatric evaluations was produced by The Hechinger
Report, a non-profit, independent news organization focused on inequality and
innovation in education. Sign up for the Hechinger newsletter.
ATTACHMENT EIGHTEEN – FROM WIKI
DEFINITIONS:
Stocks
consist of placing boards around the ankles and wrists, whereas with the
pillory, the boards are fixed to a pole and placed around the arms and neck,
forcing the punished to stand. Victims may be insulted, kicked, tickled, spat
on, or subjected to other inhumane acts.
ATTACHMENT NINETEEN – FROM QUORA
WHY AREN'T THE STOCKS USED AS A WIDESPREAD PUNISHMENT
ANYMORE?
The practice of using the stocks as a form of punishment has
largely fallen out of use due to changes in societal attitudes towards
punishment and human rights. The stocks were a form of public humiliation and
physical restraint, and they are now seen as inhumane and degrading. As
societies have evolved, there has been a shift towards more humane and
rehabilitative forms of punishment, as well as a greater emphasis on respecting
the dignity of individuals, regardless of their actions.
Tell me more
What other forms of punishment were developed as society
evolved?
Are there any places where stocks are still used as a form
of punishment?
What were some of the reasons for the decline of the use of
stocks as a punishment?
By Tomi Peltonen
The stocks aren’t used in most countries on the planet due to
the nature of the punishment. The punishment is meant to publicly humiliate the
offender, which is seen to be degrading in nature, and that is seen as a
violation of the human rights of the offender.
The Universal Declaration of Human Rights, signed by most
countries in the world, includes article 15:
“1. No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no one shall be
subjected without his or her free consent to medical or scientific
experimentation.
2. States Parties shall take all effective legislative,
administrative, judicial or other measures to prevent persons with
disabilities, on an equal basis with others, from being subjected to torture or
cruel, inhuman or degrading treatment or punishment.” Source
ATTACHMENT TWENTY – FROM GUK
Wed 10 Oct 2012 11.00 EDT
Is there any evidence that the
medieval practice of putting wrongdoers in the stocks and throwing rotten food
at them actually worked as a deterrent to crime?
Putting people in the pillory (the
stocks only bound the feet, the pillory the head and arms), a practice that
continued into at least the late 18th century, far from being a soft option,
was a way of allowing the public to pass judgment – and sentence – on the
transgressor. If the crime was not seen as a serious one the person might have
only soft vegetable matter thrown at them, but if the mob wanted to they could,
and often did, throw stones and bricks, seriously injuring or killing the
unfortunate captive. In The Reverse of the Medal,
by that most meticulous of historical novelists Patrick O'Brian, Jack
Aubrey is pilloried but escapes serious injury when his shipmates turn up to
stand guard around him. Any one reading this account would have no doubt that
the pillory was something to be avoided at all costs.
John French, Chepstow
Is there any evidence that any
deterrent/punishment worked as prevention to a crime? I think it would be very
hard to get reliable data for crimes not committed.
suebian
Judicial punishment has four main
points: retribution (you hurt us so we're going to hurt you back), security
(while we're hurting you we're safe), rehabilitation (being hurt may stop you
doing it again) and deterrence (hurting you may put others off). The stocks
would mainly satisfy the first, have limited success with the second, less
still with the third and the fourth is debatable. But human nature being what
it is, for most people, the first, retribution, is as far as they care to
think.
GentDirly
ATTACHMENT TWENTY ONE – FROM POLITIFACT
Trump mostly correct about Sharia
law support in Afghanistan
By Neelesh Moorthy June 16, 2016
Donald Trump reinvigorated calls for a ban on Muslims entering
the United States following the mass shooting of an Orlando nightclub by a U.S.
citizen who pledged allegiance to ISIS during the fatal attack.
Among his reasons, many Muslims support Sharia law
—a set of religious principles that critics say include harsh punishments and
can be used as a rationale for violence. Trump singled out Afghanistan to
make his point in a speech June 13, 2016, in New Hampshire.
"According to Pew Research, 99 percent of the people in
Afghanistan support oppressive Sharia law," Trump said.
Is that number correct?
What is Sharia law
First, what is Sharia law? The Council on Foreign
Relations offers a useful primer.
Meaning "path" in Arabic, Sharia is largely
derived from the Quran and is intended to guide various aspects of Muslim life.
Sharia law has been incorporated in different ways, ranging from secular
governments to fully Islamic governments.
Many Republican presidential candidates
have criticized Sharia law for its unequal treatment of women and
after the Orlando attacks its views on homosexuality. They have also criticized
the inclusion of Hudud punishments (ranging from stoning to execution) that are
required for certain crimes such as adultery or theft.
Scholars say that these punishments are not necessarily used
in practice and that different countries interpret and apply Sharia law
differently. Like other religions, personal interpretations are subject to
change over time, said Abdullahi Ahmed An-Nai’im, a professor of law at Emory
University.
"Sharia is understood to be the religious obligations
of Muslims, but it is a normative system in which Muslims have profound
differences and always have," An-Nai’m said.
Pew’s research
Trump’s figure does come from a Pew Research
study published in April 2013, titled "The World’s Muslims: Religion, Politics and Society."
One clarification right of the bat — the Pew study found
that 99 percent of Muslims in Afghanistan supported Sharia law as the "law
of the land." Trump said people in Afghanistan.
However, Pew also estimated in a 2012 study that
Muslims made up 99 percent of the Afghanistan population, so that distinction
does not invalidate Trump’s claim. Furthermore, Pew reported that their 2013
sample was representative of 94 percent of the Afghani adult population.
A Pew spokeswoman said that Trump’s claim is
"largely accurate." The "largely" qualification came
because their study did not include the word "oppressive" like Trump
did.
Caveats
Trump’s statistic is relatively solid, but the survey does
shed some additional light on what the 99 percent figure means, and does
not mean.
The survey notes that, while overwhelming numbers of Afghani
Muslims favored making Sharia law official, respondents were not unanimous on
certain beliefs contained within Sharia law. Percentages are of Afghani
Muslims.
ATTACHMENT TWENTY TWO – FROM POLITIFACT
ISLAMIC POLLING
By Amy Sherman • February 6, 2024
Violence
·
81 percent favored corporal
punishment for crimes like theft;
·
79 percent favored
a death penalty for leaving Islam;
·
58 percent think
suicide bombing is rarely or never justified in the defense of Islam.
Women’s rights
·
30 percent believe men and women
should have equal inheritance rights;
·
37 percent believe
it is "often justified" to kill a woman for dishonoring her family.
Views on religious plurality
·
96 percent believe converting others
to Islam is a religious duty.
So people’s interpretation of Sharia law is not universal.
Nor is it universal whom Sharia law should apply to.
Nearly 40 percent of respondents, for instance, said that
Sharia law should only apply to other Muslims, not non-Muslim citizens.
Moving away from Afghanistan, it is also important to note
that other Middle East countries yield different figures.
Only 12 percent of Muslims in Turkey favor making Sharia law
the "law of the land," for example, and only 66 percent of Muslims in
Iraq think converting others to Islam is a religious duty.
The Pew study Trump cites is also not the only study on the
matter. A November 2015 study found that the majority of people in 10
countries with large Muslim populations viewed ISIS negatively (except
Pakistan). The study did not include Afghanistan.
Our ruling
Arguing in favor of his proposed ban on Muslims entering the
country, Trump said that a Pew Research Study had found "99 percent of the
people in Afghanistan" support Sharia law.
Pew said Trump’s contention was "largely
accurate," noting that the phrase "oppressive" was Trump’s own.
We did not take a stance on his use of the adjective.
There is some nuance in the Afghanistan results, however, as
Muslims surveyed have different perspectives on various aspects of Sharia law
and how it ought to be implemented. And nearly 40 percent of respondents in
Afghanistan said that Sharia law should only apply to other Muslims, not
non-Muslim citizens.
We rate this claim Mostly True.
ATTACHMENT TWENTY THREE – FROM DCURBANMOM.COM
MILITARY
SCHOOL FOR JUVENILE OFFENDERS?
|
I keep hearing that juvenile offenders
are being released from juvie because of lack of space. Most of these kids
are lacking discipline, proper adult supervision, and are truants. Why aren't
courts ordering that they be sent to military schools instead? |
|
Because they don’t meet admissions
criteria. Military schools aren’t a substitute for juvenile detention. |
|
Anonymous wrote: Because they don’t meet
admissions criteria. Military schools aren’t a substitute for juvenile
detention.
|
|
Because military school instructors can
no longer lay a finger on kids and the kids know it. The kids who commit
these crimes are not going to bother listening to a fake drill sergeant when
they know there is nothing backing up the threat. |
|
Anonymous wrote:
|
|
Anonymous wrote: I
keep hearing that juvenile offenders are being released from juvie because of
lack of space. Most of these kids are lacking discipline, proper adult
supervision, and are truants. Why aren't courts ordering that they be sent to
military schools instead?
|
|
Anonymous wrote:
|
|
Anonymous wrote: Because your solution
has no basis in data, just 70s sitcom plots This.
The system is fine as it is. We just need to spend a lot more money on DEI
programs until kids who don't want to learn magically decide they want to
learn. |
|
Anonymous wrote: Hard labor camps for violent youth
offenders would be better. Florida
did that. They are still exhuming all of the unmarked graves |
|
Some of these juveniles have mental
health issues. They do not belong in the military. Your solution to the problem
is to continue to outkast and ship them away to fight for your @ss? |
|
MCPS did this for the schooling side of
it. They sent the most troubled students to their own school in Rockville.
The problem was, the composition of this school was disproportionately
students of one particular gender, and two particular races. It was not seen
as equitable. |
|
11:55 here. I should have added -- so the
school was shut down a number of years ago. |
|
Anonymous wrote: MCPS did this for the schooling side of it.
They sent the most troubled students to their own school in Rockville. The
problem was, the composition of this school was disproportionately students
of one particular gender, and two particular races. It was not seen as
equitable. What
on earth. The Mark Twain school was not a military school, and it was not for
"juvenile offenders". Other than that, though. |
|
They need to bring back scared straight. |
|
I think the unstated policy right now is
that Bowser doesn’t want these kids f#cking up the public schools, so they
are willing to turn a blind eye to truancy. Keep them out of the classroom so
they don’t pull down others. I get it, but they need to go somewhere.
These kids are looking for replacement families, so the state needs to create
one for them. |
EIGHTY SOME
FURTHER POSTS at WEBSITE
ATTACHMENT TWENTY FOUR – FROM INDEPENDENT UK
KANSAS
CITY TIMELINE...
By Katie
Hawkinson 16 February 2024 21:40
1 hour ago
ICYMI: Two juveniles
charged in relation to shooting
Elizabeth
Lopez-Galvan Juvenile prosecutors with the Jackson County, Missouri Family
Court Division have charged two juveniles in relation to Wednesday’s shooting.
“The juveniles
are currently detained in secure detention at the Juvenile Detention Center on
gun related and resisting arrest charges,” the Division said in a statement.
“It is anticipated that additional charges are expected in the future as the
investigation by the Kansas City Police Department continues.”
“Pursuant to
Missouri law, hearings are not open to the public as this alleged offense
involves juveniles,” the statement continued. “This is the extent of the
information that the Office of the Juvenile Officer can release at this time.”
Katie Hawkinson16
February 2024 21:20
1 hour ago
Kansas City
Police will shut down witness hotline
“The dedicated
phone line for witnesses of Wednesday’s shootings at Union Station will cease
at 8 p.m. tonight,” Kansas City Police said on X.
The move comes
after the hotline was open for nearly two days in the wake of the shooting that
killed one and injured 22 others.
Katie
Hawkinson16 February 2024 21:00
1 hour ago
Kansas City
Police Chief responds to charges issued
Kansas City
Police Chief Stacey Graves responded to the charges against two juveniles
issued this morning.
“I am grateful
for the charges against the two juveniles who hurt innocent people,
simultaneously scarring an entire community,” she said.
“Our
investigators have poured themselves into this investigation, and it continues.
We will not relent until everyone who may have played a part in these crimes is
apprehended so that they may be punished to the fullest extent of the law.”
Katie
Hawkinson16 February 2024 20:40
2 hours ago
Patrick Mahomes
visits kids wounded at parade
Kansas City
Chiefs quarterback Patrick Mahomes and his wife visited two girls — eight and
ten years old — in the hospital after being injured at Wednesday’s parade,
local outlet KMBC reports.
The two young girls
were the daughters of Elizabeth Lopez-Galvan, the 43-year-old who died on scene
after suffering a gunshot wound.
“While we are
relieved by their progress, the emotional healing continues for all of us,” the
girls’ family said in the statement, per KMBC.
“The girls were
celebrating with many family members when they were senselessly injured. We
kindly ask that you continue to keep our family and the other families affected
in your thoughts and prayers.”
Katie
Hawkinson16 February 2024 20:20
2 hours ago
How a lethal
mass shooting derailed a day of Super Bowl victory celebrations in Kansas City
Get caught up on
everything we know so far about Wednesday’s Kansas City, Missouri shooting,
including information on the potential suspects and known victims:
How a lethal
mass shooting derailed a day of Super Bowl celebrations in Kansas City
One person was
killed and multiple others were injured following a mass shooting at the Kansas
City Chiefs victory parade on Valentine’s Day. Mike Bedigan and Katie Hawkinson
look at everything we know so far about the unfolding situation
Katie
Hawkinson16 February 2024 20:00
2 hours ago
Who are the
victims of the Kansas City shooting?
At least 23
people were shot, including multiple children, in a mass shooting at the Kansas
City Chiefs’ Super Bowl victory parade near Union Station in Kansas City,
Missouri, on Wednesday.
Kansas City
Police Chief Stacey Graves said at a press conference on Thursday that half of
the victims shot in the attack are children while one victim – a 43-year-old
mother-of-two – died.
So far, the
investigation has found that the shooting may have stemmed from a dispute
between people and was not terrorism-related, police said.
Prosecutors with
the Jackson County, Missouri Family Court Division charged two juveniles in
connection to the shooting, officials said in a statement on Friday morning.
That news comes after officials detained three individuals in connection to the
shooting. One of the three was released Thursday without charge.
Read more about
those wounded in Wednesday’s shooting
Who are the
victims of the Kansas City shooting?
Lisa
Lopez-Galvan was a 43-year-old mother of two and local radio DJ
Katie
Hawkinson16 February 2024 19:40
3 hours ago
ICYMI: What are
Missouri’s gun laws?
Missouri’s gun
laws are considered some of the laxest in the country, with the Giffords Law
Center calling them “appallingly weak.”
No background
check is required to purchase a firearm, nor is a permit for concealed carry.
There is no ban on assault weapons.
There are also
no restrictions on gun ownership for people who have been convicted of violent
crimes, and firearms are not required to be locked up to prevent children from
accessing them.
Police respond
after gun shots were fired after the celebration of the Kansas City Chiefs
winning Super Bowl LVIII
In 2021,
Missouri enacted a law called the “Second Amendment Preservation Act,” which
made federal gun regulations illegal statewide, and prohibited law enforcement
from enforcing any federal laws that “infringe on the people’s right to keep
and bear arms.”
A federal judge
later struck it down, having ruled the state law unconstitutional, and the
Supreme Court upheld the decision.
ATTACHMENT TWENTY FIVE – FROM REUTERS
US APPEALS
JUDGE URGES NEW STANDARD ON 'CRUEL AND UNUSUAL' PUNISHMENT
3rd Circuit Judge Thomas Hardiman says 8th Amendment should
be interpreted under "original meaning"
·
Judge targets "evolving
standards of decency" test
By Nate Raymond October 19, 2023 4:55 AM EDT Updated 4
months ago
Oct 18 (Reuters) - A federal appeals court judge on
Wednesday argued that the conservative-majority U.S. Supreme Court would have
grounds to revisit its interpretation of the U.S. Constitution's prohibition on
cruel and unusual punishment and "return to the text and original meaning
of the 8th Amendment."
In a speech delivered at Harvard Law School, U.S. Circuit
Judge Thomas Hardiman, an appointee of Republican former President George W.
Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court
should abandon a decades-old legal test for deciding if a punishment was
unconstitutional.
The Supreme Court in a series of cases starting in 1952
interpreted the 8th Amendment's prohibition on cruel and unusual punishment
based on what opinions described as the "evolving standards of decency
that mark the progress of a maturing society."
But Hardiman told the Harvard chapter of the conservative
Federalist Society that the standard is a "contrived ratchet" that
has fueled a "runaway train of elastic constitutionalism" giving
judges too much power to invalidate laws in favor of defendants.
"Its inscrutable standards require judges to ignore the
law as written in favor of their own moral sentiments," he said. "The
only constant is that more and more laws adopted by the people's
representatives have been nullified."
Supreme Court rulings that have relied on that standard
include one in 2005 barring capital punishment for offenders who were under 18
when they committed crimes and a 2008 decision striking down a Louisiana law
allowing the death penalty for the rape of a child when the victim did not die.
The court also relied on that standard in a 5-4 decision in
2012 that declared unconstitutional mandatory sentences of life in prison
without the possibility of parole for people under age 18 convicted of murder.
The ideological split among justices has since changed, and
thanks to three of Republican former President Donald Trump's appointments the
court now has a 6-3 conservative majority. Hardiman had been on Trump's
short-list for potential Supreme Court nominees.
That newly constituted court in 2021 put an end to
the court's run of decisions that put limits on life sentences without parole
for juvenile offenders, making it easier for states to impose such sentences.
The
court did so without mentioning the "evolving standards of decency"
test, Hardiman said. He questioned whether the court would now "return to
the text and original meaning of the 8th Amendment" as it has done in
other areas, like the 2nd Amendment.
ATTACHMENTS on SCOTUS CASES
ATTACHMENT “A” – FROM JUSTIA
Whitley v. Albers, 475 U.S. 312
(1986)
Argued:December 10, 1985
Decided:March 4, 1986
U.S. Supreme Court
Whitley v. Albers, 475 U.S. 312 (1986)
No. 84-1077
Argued December 10, 1985
Decided March 4, 1986
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Syllabus
During the course of a riot at the Oregon State
Penitentiary, a prison officer was taken hostage and placed in a cell on the
upper tier of a two-tier cellblock. In an attempt to free the hostage, prison
officials worked out a plan that called for the prisoner security manager to
enter the cellblock unarmed, followed by prison officers armed with shotguns.
The security manager ordered one of the officers to fire a warning shot and to
shoot low at any inmates climbing the stairs to the upper tier, since he would
be climbing the stairs to free the hostage. One of the officers, after firing a
warning shot, shot respondent in the left knee when he started up the stairs.
Respondent subsequently brought an action in Federal District Court against
petitioner prison officials pursuant to 42 U.S.C. § 1983, alleging, inter
alia, that they had deprived him of his rights under the Eighth and
Fourteenth Amendments. At the conclusion of the trial, the District Court
directed a verdict for petitioners. The Court of Appeals reversed and remanded
for a new trial on respondent's Eighth Amendment claim.
Held:
1. The shooting of respondent did not violate his Eighth
Amendment right to be free from cruel and unusual punishments. Pp. 475 U. S. 318-326.
(a) It is obduracy and wantonness, not inadvertence or error
in good faith, that characterize the conduct prohibited by the Cruel and
Unusual Punishments Clause, whether that conduct occurs in connection with
establishing conditions of confinement, supplying medical needs, or restoring
control over a tumultuous cellblock. The infliction of pain in the course of a
prison security measure, therefore, does not amount to cruel and unusual
punishment simply because it may appear in retrospect that the degree of force
authorized or applied for security purposes was unreasonable, and hence
unnecessary in the strict sense. The general requirement that an Eighth
Amendment claimant establish the unnecessary and wanton infliction of pain
should also be applied with due regard for differences in the kind of conduct
involved. Thus, where a prison security measure is undertaken to resolve a disturbance,
such as occurred in this case, that poses significant risks to the safety of
inmates
and prison staff, the question whether the measure taken
inflicted unnecessary and wanton pain and suffering ultimately turns on whether
force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the purpose of causing harm. Pp. 475 U. S. 318-322.
(b) Viewing the evidence in the light most favorable to
respondent, as must be done in reviewing the decision reversing the trial
court's directed verdict for petitioners, it does not appear that the evidence
supports a reliable inference of wantonness in the infliction of pain under the
above standard. Evidence arguably showing that the prison officials erred in
judgment when they decided on a plan that employed potentially deadly force
falls far short of a showing that there was no plausible basis for their belief
that this degree of force was necessary. In particular, the order to shoot,
qualified by an instruction to shoot low, falls short of commanding the
infliction of pain in a wanton and unnecessary fashion. Nor was the failure to
provide for a verbal warning, in addition to a warning shot, so insupportable
as to be wanton, since any inmate running up the stairs after the prison
security manager could reasonably be thought to pose a threat to the rescue
attempt. And the failure to take into account the possibility that respondent
might climb the stairs in an effort to return to his cell does not rise to the
level of an Eighth Amendment violation. Assuming that the prison officer shot
at respondent, rather than at the inmates as a group, does not establish that
the officer shot respondent knowing that it was unnecessary to do so. Under all
these circumstances, the shooting was part and parcel of a good faith effort to
restore prison security. Pp. 475 U. S. 322-326.
2. In this case, the Due Process Clause of the Fourteenth
Amendment cannot serve as an alternative basis for affirmance, independently of
the Eighth Amendment. In the prison security context, the Due Process Clause
affords respondent no greater protection than does the Cruel and Unusual
Punishments Clause. Pp. 475 U. S. 326-327.
743 F.2d 1372, reversed.
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, and in
all but n. 2 of which STEVENS, J., joined, post, p. 475 U. S. 328.
JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to decide what standard governs a
prison inmate's claim that prison officials subjected him to cruel and unusual
punishment by shooting him during the course of their attempt to quell a prison
riot.
I
At the time he was injured, respondent Gerald Albers was
confined in cellblock "A" of the Oregon State Penitentiary. Cellblock
"A" consists of two tiers of barred cells housing some 200 inmates.
The two tiers are connected by a stairway that offers the only practical way to
move from one tier to another.
At about 8:30 on the evening of June 27, 1980, several
inmates were found intoxicated at the prison annex. Prison guards attempted to
move the intoxicated prisoners, some of whom resisted, to the penitentiary's
isolation and segregation facility. This incident could be seen from the cell
windows in cellblock "A," and some of the onlookers became agitated
because they thought that the guards were using unnecessary force. Acting on
instructions from their superiors, Officers Kemper and Fitts, who were on duty
in cellblock "A," ordered the prisoners to return to their cells. The
order was not obeyed. Several inmates confronted the two officers, who were
standing in the open area of the lower tier. One inmate, Richard Klenk, jumped
from the second tier and assaulted Officer Kemper. Kemper escaped, but Officer
Fitts was taken hostage. Klenk and other inmates then began
breaking furniture and milling about.
Upon being informed of the disturbance, petitioner Harol
Whitley, the prison security manager, entered cellblock "A" and spoke
with Klenk. Captain Whitley agreed to permit four residents of cellblock
"A" to view the inmates who had been taken to segregation earlier.
These emissaries reported back that the prisoners in segregation were
intoxicated but unharmed. Nonetheless, the disturbance in cellblock
"A" continued.
Whitley returned to the cellblock and confirmed that Fitts
was not harmed. Shortly thereafter, Fitts was moved from an office on the lower
tier to cell 201 on the upper tier, and Klenk demanded that media
representatives be brought into the cellblock. In the course of the
negotiations, Klenk, who was armed with a homemade knife, informed Whitley that
one inmate had already been killed, and other deaths would follow. In fact, an
inmate had been beaten but not killed by other prisoners.
Captain Whitley left the cellblock to organize an assault
squad. When Whitley returned to cellblock "A," he was taken to see
Fitts in cell 201. Several inmates assured Whitley that they would protect
Fitts from harm, but Klenk threatened to kill the hostage if an attempt was
made to lead an assault. Klenk and at least some other inmates were aware that
guards had assembled outside the cellblock and that shotguns had been issued.
Meanwhile, respondent had left his cell on the upper tier to see if elderly
prisoners housed on the lower tier could be moved out of harm's way in the event
that tear gas was used. Respondent testified that he asked Whitley for the key
to the row of cells housing the elderly prisoners, and Whitley indicated that
he would return with the key. Whitley denied that he spoke to respondent at any
time during the disturbance. Tr. 380.
Whitley next consulted with his superiors, petitioners Cupp,
the prison Superintendent, and Kenney, the Assistant
Superintendent. They agreed that forceful intervention was necessary
to protect the life of the hostage and the safety of the inmates who were not
rioting, and ruled out tear gas as an unworkable alternative. Cupp ordered
Whitley to take a squad armed with shotguns into cellblock "A."
Whitley gave the final orders to the assault team, which was
assembled in the area outside cellblock "A." Petitioner Kennicott and
two other officers armed with shotguns were to follow Whitley, who was unarmed,
over the barricade the inmates had constructed at the cellblock entrance. A
second group of officers, without firearms, would be behind them. Whitley
ordered Kennicott to fire a warning shot as he crossed the barricade. He also
ordered Kennicott to shoot low at any prisoners climbing the stairs toward cell
201, since they could pose a threat to the safety of the hostage or to Whitley
himself, who would be climbing the stairs in an attempt to free the hostage in
cell 201.
At about 10:30 p.m., Whitley reappeared just outside the
barricade. By this time, about a half hour had elapsed since the earlier
breaking of furniture, and the noise level in the cellblock had noticeably
diminished. Respondent, who was standing at the bottom of the stairway, asked
about the key. Whitley replied "No," clambered over the barricade,
yelled "shoot the bastards," and ran toward the stairs after Klenk,
who had been standing in the open areaway along with a number of other inmates.
Kennicott fired a warning shot into the wall opposite the cellblock entrance as
he followed Whitley over the barricade. He then fired a second shot that struck
a post near the stairway. Meanwhile, Whitley chased Klenk up the stairs, and
shortly thereafter respondent started up the stairs. Kennicott fired a third
shot that struck respondent in the left knee. Another inmate was shot on the
stairs, and several others on the lower tier were wounded by gunshot. The
inmates in cell 201 prevented Klenk from entering, and Whitley subdued Klenk at
the cell door, freeing the hostage.
As a result of the incident, respondent sustained severe
damage to his left leg and mental and emotional distress. He subsequently
commenced this action pursuant to 42 U.S.C. § 1983, alleging that petitioners
deprived him of his rights under the Eighth and Fourteenth Amendments and
raising pendent state law claims for assault and battery and negligence. Many
of the facts were stipulated, see Tr. 53-60, but both sides
also presented testimony from witnesses to the disturbance and the rescue
attempt, as well as from expert witnesses with backgrounds in prison discipline
and security. At the conclusion of trial, the District Judge directed a verdict
for petitioners. He understood respondent's claim to be based solely on the
Eighth Amendment as made applicable to the States by the Fourteenth Amendment. See
Robinson v. California, 370 U. S. 660 (1962).
The District Judge held:
"[D]efendants' use of deadly force was justified under
the unique circumstances of this case. Possible alternatives were considered
and reasonably rejected by prison officers. The use of shotguns and
specifically the order to shoot low anyone following the unarmed Whitley up the
stairs were necessary to protect Whitley, secure the safe release of the
hostage, and to restore order and discipline. Even in hindsight, it cannot be
said that defendants' actions were not reasonably necessary."
546 F. Supp. 726, 735
(Ore.1982). In the alternative, he held that petitioners were immune from
damages liability because the constitutional constraints on the use of force in
a prison riot were not clearly established. Finally, the District Judge held
that respondent was barred from recovery on his pendent state law claims by
virtue of an immunity conferred on public officers by the Oregon Tort Claims
Act as to claims arising out of riots or mob actions.
A panel of the Court of Appeals for the Ninth Circuit
reversed in part and affirmed in part, with one judge dissenting.
743 F.2d 1372 (1984). The court held that an Eighth
Amendment violation would be established
"if a prison official
deliberately shot Albers under circumstances where the official, with due
allowance for the exigency, knew or should have known that it was
unnecessary,"
id. at
1375, or
"if the emergency plan was
adopted or carried out with 'deliberate indifference' to the right of Albers to
be free of cruel unusual punishment."
Ibid. The
Court of Appeals pointed to evidence that the general disturbance in cellblock
"A" was subsiding, and to respondent's experts' testimony that the
use of deadly force was excessive under the circumstances, and should have been
preceded by a verbal warning, and concluded that the jury could have found an
Eighth Amendment violation. Id. at 1376.
The Court of Appeals also ruled that petitioners could not
prevail on their qualified immunity defense, because "[a] finding of
deliberate indifference is inconsistent with a finding of good faith or
qualified immunity." Ibid. Accordingly, the court
remanded for a new trial on respondent's Eighth Amendment claim, while agreeing
with the District Judge that respondent could not prevail on his state law
claims, id. at 1377, and that he had not asserted an
independent violation of the Fourteenth Amendment. Id. at
1374, n. 1. We granted certiorari, 472 U.S. 1007 (1985), and now reverse.
II
The language of the Eighth Amendment, "[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted," manifests "an intention to limit the power of
those entrusted with the criminal law function of government." Ingraham
v. Wright, 430 U. S. 651, 430 U. S. 664 (1977).
The Cruel and Unusual Punishments Clause "was designed to protect those
convicted of crimes," ibid., and consequently the Clause
applies "only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions." Id. at 430 U. S. 671, n. 40.
See also Revere v. Massachusetts General Hospital, 463 U. S. 239, 463 U. S. 244 (1983); Bell
v. Wolfish, 441 U. S. 520, 441 U. S. 535, n. 16
(1979). An express intent to inflict unnecessary pain is not required, Estelle
v. Gamble, 429 U. S. 97, 429 U. S. 104 (1976)
("deliberate indifference" to a prisoner's serious medical needs is
cruel and unusual punishment), and harsh "conditions of confinement"
may constitute cruel and unusual punishment unless such conditions "are
part of the penalty that criminal offenders pay for their offenses against
society." Rhodes v. Chapman, 452 U. S. 337, 452 U. S. 347 (1981).
Not every governmental action affecting the interests or
wellbeing of a prisoner is subject to Eighth Amendment scrutiny, however.
"After incarceration, only the "unnecessary and
wanton infliction of pain'" . . . constitutes cruel and unusual punishment
forbidden by the Eighth Amendment."
Ingraham v. Wright, supra, at 430 U. S. 670 (quoting Estelle
v. Gamble, supra, at 429 U. S. 103) (citations omitted).
To be cruel and unusual punishment, conduct that does not purport to be
punishment at all must involve more than ordinary lack of due care for the
prisoner's interests or safety. This reading of the Clause underlies our
decision in Estelle v. Gamble, supra, at 429 U. S. 105-106, which
held that a prison physician's "negligen[ce] in diagnosing or treating a
medical condition" did not suffice to make out a claim of cruel and
unusual punishment. It is obduracy and wantonness, not inadvertence or error in
good faith, that characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause, whether that conduct occurs in connection with establishing
conditions of confinement, supplying medical needs, or restoring official
control over a tumultuous cellblock. The infliction of pain in the course of a
prison security measure, therefore, does not amount to cruel and unusual
punishment simply because it may appear in retrospect that the degree of force
authorized or applied for security purposes was unreasonable, and hence
unnecessary in the strict sense.
The general requirement that an Eighth Amendment claimant
allege and prove the unnecessary and wanton infliction of pain should also be
applied with due regard for differences in the kind of conduct against which an
Eighth Amendment objection is lodged. The deliberate indifference standard
articulated in Estelle was appropriate in the context
presented in that case because the State's responsibility to attend to the
medical needs of prisoners does not ordinarily clash with other equally
important governmental responsibilities. Consequently, "deliberate
indifference to a prisoner's serious illness or injury," Estelle,
supra, at 429 U. S. 105, can
typically be established or disproved without the necessity of balancing
competing institutional concerns for the safety of prison staff or other
inmates. But, in making and carrying out decisions involving the use of force
to restore order in the face of a prison disturbance, prison officials
undoubtedly must take into account the very real threats the unrest presents to
inmates and prison officials alike, in addition to the possible harms to
inmates against whom force might be used. As we said in Hudson v.
Palmer, 468 U. S. 517, 468 U. S. 526-527 (1984),
prison administrators are charged with the responsibility of ensuring the
safety of the prison staff, administrative personnel, and visitors, as well as
the "obligation to take reasonable measures to guarantee the safety of the
inmates themselves." In this setting, a deliberate indifference standard
does not adequately capture the importance of such competing obligations, or
convey the appropriate hesitancy to critique in hindsight decisions necessarily
made in haste, under pressure, and frequently without the luxury of a second
chance.
Where a prison security measure is undertaken to resolve a
disturbance, such as occurred in this case, that indisputably poses significant
risks to the safety of inmates and prison staff, we think the question whether
the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on
"whether force was applied in
a good faith effort to maintain or restore discipline or maliciously and
sadistically
for the very purpose of causing harm."
Johnson v. Glick, 481
F.2d 1028, 1033 (CA2) (Friendly, J.), cert. denied sub nom. John v.
Johnson, 414 U.S. 1033 (1973). As the District Judge correctly
perceived,
"such factors as the need for
the application of force, the relationship between the need and the amount of
force that was used, [and] the extent of injury inflicted,"
481 F.2d at 1033, are relevant to that ultimate
determination. See 546 F. Supp. at 733. From such
considerations inferences may be drawn as to whether the use of force could
plausibly have been thought necessary, or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur. See Duckworth v. Franzen, 780 F.2d
645, 652 (CA7 1985) (equating "deliberate indifference," in an Eighth
Amendment case involving security risks, with "recklessness in criminal
law," which "implies an act so dangerous that the defendant's
knowledge of the risk can be inferred"); cf. Block v. Rutherford, 468 U. S. 576, 468 U. S. 584 (1984)
(requiring pretrial detainees claiming that they were subjected to
"punishment" without due process to prove intent to punish or show
that the challenged conduct "is not reasonably related to a legitimate
goal,'" from which an intent to punish may be inferred); Bell v.
Wolfish, supra, at 441 U. S. 539. But equally
relevant are such factors as the extent of the threat to the safety of staff
and inmates, as reasonably perceived by the responsible officials on the basis
of the facts known to them, and any efforts made to temper the severity of a
forceful response.
When the "ever-present potential for violent
confrontation and conflagration," Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U. S. 119, 433 U. S. 132 (1977),
ripens into actual unrest and conflict, the admonition that "a prison's internal
security is peculiarly a matter normally left to the discretion of prison
administrators," Rhodes v. Chapman, supra, at 452 U. S. 349, n. 14,
carries special weight.
"Prison administrators . . . should be accorded
wide-ranging deference in the adoption and execution of policies and practices
that in their
judgment
are needed to preserve internal order and discipline and to maintain
institutional security."
Bell v. Wolfish, 441
U.S. at 441 U. S. 547. That
deference extends to a prison security measure taken in response to an actual
confrontation with riotous inmates, just as it does to prophylactic or
preventive measures intended to reduce the incidence of these or any other
breaches of prison discipline. It does not insulate from review actions taken
in bad faith and for no legitimate purpose, but it requires that neither judge nor
jury freely substitute their judgment for that of officials who have made a
considered choice. Accordingly, in ruling on a motion for a directed verdict in
a case such as this, courts must determine whether the evidence goes beyond a
mere dispute over the reasonableness of a particular use of force or the
existence of arguably superior alternatives. Unless it appears that the
evidence, viewed in the light most favorable to the plaintiff, will support a
reliable inference of wantonness in the infliction of pain under the standard
we have described, the case should not go to the jury.
III
Since this case comes to us from a decision of the Court of
Appeals reversing the District Court's directed verdict for petitioners, we
evaluate the facts in the light most favorable to respondent. The Court of
Appeals believed that testimony that the disturbance was subsiding at the time
the assault was made, and the conflicting expert testimony as to whether the
force used was excessive, were enough to allow a jury to find that respondent's
Eighth Amendment rights were violated. We think the Court of Appeals
effectively collapsed the distinction between mere negligence and wanton
conduct that we find implicit in the Eighth Amendment. Only if ordinary errors
of judgment could make out an Eighth Amendment claim would this evidence create
a jury question.
To begin with, although the evidence could be taken to show
that the general disturbance had quieted down, a guard was still held hostage,
Klenk was armed and threatening,
several other inmates were armed with homemade clubs,
numerous inmates remained outside their cells, and the cellblock remained in
the control of the inmates. The situation remained dangerous and volatile. As
respondent concedes, at the time he was shot, "an officer's safety was in
question and. . . an inmate was armed and dangerous." Brief for Respondent
25. Prison officials had no way of knowing what direction matters would take if
they continued to negotiate or did nothing, but they had ample reason to
believe that these options presented unacceptable risks.
Respondent's expert testimony is likewise unavailing. One of
respondent's experts opined that petitioners gave inadequate consideration to
less forceful means of intervention, and that the use of deadly force under the
circumstances was not necessary to "prevent imminent danger" to the
hostage guard or other inmates. Tr. 266. Respondent's second expert testified
that prison officials were "possibly a little hasty in using the firepower"
on the inmates. Id. at 314. At most, this evidence, which was
controverted by petitioners' experts, establishes that prison officials
arguably erred in judgment when they decided on a plan that employed
potentially deadly force. It falls far short of a showing that there was no
plausible basis for the officials' belief that this degree of force was
necessary. Indeed, any such conclusion would run counter to common sense, in
light of the risks to the life of the hostage and the safety of inmates that demonstrably
persisted notwithstanding repeated attempts to defuse the situation. An
expert's after-the-fact opinion that danger was not "imminent" in no
way establishes that there was no danger, or that a conclusion by the officers
that it was imminent would have been wholly unreasonable.
Once the basic design of the plan was in place, moreover, it
is apparent why any inmate running up the stairs after Captain Whitley, or
interfering with his progress towards the hostage, could reasonably be thought
to present a threat to the success of the rescue attempt and to Whitley --
particularly
after a warning shot was fired. A sizable group of inmates,
in defiance of the cell-in order and in apparent support of Klenk, continued to
stand in the open area on the lower tier. Respondent testified that this was
not "an organized group," id. at 113, and that he
saw no inmates armed with clubs in that area. Id. at 114. But
the fact remains that the officials had no way of knowing which members of that
group of inmates had joined with Klenk in destroying furniture, breaking glass,
seizing the hostage, and setting up the barricade, and they certainly had
reason to believe that some members of this group might intervene in support of
Klenk. It was perhaps also foreseeable that one or more of these inmates would
run up the stairs after the shooting started in order to return to their cells.
But there would be neither means nor time to inquire into the reasons why each
inmate acted as he did. Consequently, the order to shoot, qualified as it was
by an instruction to shoot low, falls short of commanding the infliction of
pain in a wanton and unnecessary fashion.
As petitioners' own experts conceded, a verbal warning would
have been desirable, in addition to a warning shot, if circumstances permitted
it to be given without undue risk. See id. at 446, 556. While
a jury might conclude that this omission was unreasonable, we think that an
inference of wantonness could not properly be drawn. First, some warning was
given in the form of the first shot fired by Officer Kennicott. Second, the
prison officials could have believed in good faith that such a warning might
endanger the success of the security measure because of the risk that it would
have allowed one or more inmates to climb the stairs before they could be
stopped. The failure to provide for verbal warnings is thus not so
insupportable as to be wanton. Accordingly, a jury could not properly find that
this omission, coupled with the order to shoot, offended the Eighth Amendment.
To be sure, the plan was not adapted to take into account
the appearance of respondent on the scene, and, on the facts
as we must take them, Whitley was aware that respondent was
present on the first tier for benign reasons. Conceivably, Whitley could have
added a proviso exempting respondent from his order to shoot any prisoner
climbing the stairs. But such an oversight simply does not rise to the level of
an Eighth Amendment violation. Officials cannot realistically be expected to
consider every contingency or minimize every risk, and it was far from
inevitable that respondent would react as he did. Whitley was about to risk his
life in an effort to rescue the hostage, and he was understandably focusing on
the orders essential to the success of the plan. His failure to make special
provision for respondent may have been unfortunate, but is hardly behavior from
which a wanton willingness to inflict unjustified suffering on respondent can
be inferred.
Once it is established that the order to shoot low at anyone
climbing the stairs after a warning shot was not wanton, respondent's burden in
showing that the actual shooting constituted the wanton and unnecessary
infliction of pain is an extremely heavy one. Accepting that respondent could
not have sought safety in a cell on the lower tier, the fact remains that, had
respondent thrown himself to the floor, he would not have been shot at.
Instead, after the warning shot was fired, he attempted to return to his cell
by running up the stairs behind Whitley. That is equivocal conduct. While
respondent had not been actively involved in the riot, and indeed had attempted
to help matters, there is no indication that Officer Kennicott knew this, nor
any claim that he acted vindictively or in retaliation. Respondent testified
that, as he started to run up the stairs, he "froze" when he looked
to his left and saw Kennicott, and that "we locked eyes." Id. at
119. Kennicott testified that he saw several inmates running up the stairs,
that he thought they were pursuing Whitley, and that he fired at their
legs. Id. at 459. To the extent that this testimony is
conflicting, we resolve the conflict in respondent's favor by assuming that
Kennicott shot at respondent,
rather than at the inmates as a group. But this does not
establish that Kennicott shot respondent knowing it was unnecessary to do so.
Kennicott had some basis for believing that respondent constituted a threat to
the hostage and to Whitley, and had at most a few seconds in which to react. He
was also under orders to respond to such a perceived threat in precisely the
manner he did. Under these circumstances, the actual shooting was part and
parcel of a good faith effort to restore prison security. As such, it did not
violate respondent's Eighth Amendment right to be free from cruel and unusual
punishments.
IV
As an alternative ground for affirmance, respondent contends
that, independently of the Eighth Amendment, the shooting deprived him of a
protected liberty interest without due process of law, in violation of the
Fourteenth Amendment. Respondent correctly observes that any ground properly
raised below may be urged as a basis for affirmance of the Court of Appeals'
decision, see United States v. New York Telephone Co., 434 U. S. 159, 166, n. 8
(1977), and argues that he has maintained throughout this litigation that his
"constitutional protection
against the use of excessive and unnecessary force, as well as the use of
deadly force without meaningful warning,"
derives from the Due Process Clause as well as the Eighth
Amendment. Brief for Respondent 25, n. 13.
The District Court was correct in ruling that respondent did
not assert a procedural due process claim that the State was obliged to afford
him some kind of hearing either before or after he was shot. See 546
F. Supp. at 732, n. 1. But we believe respondent did raise a claim that his
"substantive rights under the Due Process Clause of the Fourteenth
Amendment," Youngberg v. Romeo, 457 U. S. 307, 467 U. S. 309 (1982),
were infringed by prison officials when he was shot. His complaint alleged
violations of the Eighth and Fourteenth
Amendments, App. 2, 7 (First Amended Complaint), and at
argument on petitioners' motion for a directed verdict, counsel for both
petitioners and respondents treated the Fourteenth Amendment as a distinct,
though overlapping, source of substantive protection from state action
involving excessive force. See id. at 21, 27. Accordingly, we
consider whether the Due Process Clause could serve as an alternative basis for
affirmance.
We need say little on this score. We think the Eighth
Amendment, which is specifically concerned with the unnecessary and wanton
infliction of pain in penal institutions, serves as the primary source of
substantive protection to convicted prisoners in cases such as this one, where
the deliberate use of force is challenged as excessive and unjustified. It
would indeed be surprising if, in the context of forceful prison security
measures, "conduct that shocks the conscience" or "afford[s]
brutality the cloak of law," and so violates the Fourteenth
Amendment, Rochin v. California, 342 U. S. 165, 342 U. S. 172, 342 U. S. 173 (1952),
were not also punishment "inconsistent with contemporary standards of
decency" and "repugnant to the conscience of mankind,'" Estelle
v. Gamble, 429 U.S. at 103, 429 U. S. 106, in violation
of the Eighth. We only recently reserved the general question
"whether something less than intentional
conduct, such as recklessness or 'gross negligence,' is enough to trigger the
protections of the Due Process Clause."
Daniels v. Williams, 474 U. S. 327, 474 U. S. 334, n. 3 (1986).
Because this case involves prison inmates, rather than pretrial detainees or
persons enjoying unrestricted liberty, we imply nothing as to the proper answer
to that question outside the prison security context by holding, as we do,
that, in these circumstances, the Due Process Clause affords respondent no
greater protection than does the Cruel and Unusual Punishments Clause.
Petitioners also ask us to hold that the Court of Appeals
erred in ruling that they did not enjoy qualified immunity. We decline to
review that holding, because our decision that
petitioners were entitled to a directed verdict on the
merits makes it unnecessary to do so.
The judgment of the Court of Appeals is
Reversed.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE
BLACKMUN, and JUSTICE STEVENS join, dissenting.
I the majority's concern that prison officials be permitted to
respond reasonably to inmate disturbances without unwarranted fear of
liability. I agree that the threshold for establishing a constitutional
violation under these circumstances is high. I do not agree, however, that the
contested existence of a "riot" in the prison lessens the constraints
imposed on prison authorities by the Eighth Amendment.
The majority has erred, I believe, both in developing its
legal analysis and in employing it. First, the especially onerous standard the
Court has devised for determining whether a prisoner injured during a prison
disturbance has been subjected to cruel and unusual punishment is incorrect,
and not justified by precedent. That standard is particularly inappropriate
because courts deciding whether to apply it must resolve a preliminary issue of
fact that will often be disputed and properly left to the jury. Finally, the
Court has applied its test improperly to the facts of this case. For these
reasons, I must respectfully dissent.
I
The Court properly begins by acknowledging that, for a
prisoner attempting to prove a violation of the Eighth Amendment, "[a]n
express intent to inflict unnecessary pain is not required, Estelle v.
Gamble, 429 U. S. 97, 429 U. S. 104 (1976)." Ante at 475 U. S. 319. Rather, our
cases have established that the "unnecessary and wanton" infliction
of pain on prisoners constitutes cruel and unusual punishment prohibited by the
Eighth Amendment, even in the absence of intent to harm. Ibid.; see
also Ingraham v. Wright, 430 U. S. 651, 430 U. S. 670 (1977); Gregg
v. Georgia, 428 U. S. 153, 428 U. S. 173 (1976)
(joint opinion of
Stewart, POWELL, and STEVENS, JJ.). Having correctly
articulated the teaching of our cases on this issue, however, the majority
inexplicably arrives at the conclusion that a constitutional violation in the
context of a prison uprising can be established only if force was used
"maliciously and sadistically for the very purpose of causing
harm," ante at 475 U. S. 320-321 -- thus requiring
the very "express intent to inflict unnecessary pain" that it had
properly disavowed. [Footnote
1]
The Court imposes its heightened version of the
"unnecessary and wanton" standard only when the injury occurred in
the course of a "disturbance" that "poses significant
risks," ante at 475 U. S. 320. But those
very questions -- whether a disturbance existed and whether it posed a risk --
are likely to be hotly contested. It is inappropriate, to say the least, to
condition the choice of a legal standard, the purpose of which is to determine
whether to send a constitutional claim to the jury, upon the court's resolution
of factual disputes that in many cases should themselves be resolved by the
jury.
The correct standard for identifying a violation of the
Eighth Amendment under our cases is clearly the "unnecessary and
wanton" standard, which establishes a high hurdle to be overcome by a
prisoner seeking relief for a constitutional violation. The full circumstances
of the plaintiff's injury, including whether it was inflicted during an attempt
to quell a riot and whether there was a reasonable apprehension of danger,
should be considered by the factfinder in determining whether that standard is
satisfied in a particular case. There is simply no justification for creating a
distinct and more onerous burden for the plaintiff to meet merely because
the judge believes that the injury at issue was caused
during a disturbance that "pose[d] significant risks to the safety of
inmates and prison staff," ante at 475 U. S. 320.
Determination of whether there was such a disturbance or risk, when disputed,
should be made by the jury when it resolves disputed facts, not by the court in
its role as arbiter of law. See Byrd v. Blue Ridge Cooperative, 356 U. S. 525, 356 U. S. 537 (1958).
II
The Court properly begins its application of the law by
reciting the principle that the facts must be viewed in the light most
favorable to respondent, who won a reversal of a directed verdict below. See
Galloway v. United States, 319 U. S. 372, 319 U. S. 395 (1943).
If, under any reasonable interpretation of the facts, a jury could have found
the "unnecessary and wanton" standard to be met, then the directed
verdict was improper. The majority opinion, however, resolves factual disputes
in the record in petitioners' favor and discounts much of respondent's theory
of the case. This it is not entitled to do.
The majority pays short shrift to respondent's significant
contention that the disturbance had quieted down by the time the lethal force
was employed. Ante at 475 U. S. 322-323.
Respondent presented substantial testimony to show that the disturbance had
subsided, Tr. 112, 165, 188, 193; that only one prisoner, Klenk, remained in
any way disruptive, id. at 212; and that even Klenk had calmed
down enough at that point to admit that he had "gone too
far.'" Id. at 117. The majority asserts that
"a guard was still held hostage, Klenk was armed and
threatening, several other inmates were armed with homemade clubs, numerous
inmates remained outside their cells, and . . . [t]he situation remained
dangerous and volatile."
Ante at 475 U. S. 322-323.
Respondent's evidence, however, indicated that the guard was not, in fact, in
danger. He had been put into a cell by several inmates to prevent Klenk from
harming him. Tr. 161. Captain Whitley had
been to see the guard, and had observed that the inmates
protecting him from Klenk were not armed and had promised to keep Klenk
out. Id. at 58 (stipulation), 163. According to respondent's
evidence, moreover, no other inmates were assisting Klenk in any way when the
riot squad was called in; they were simply "milling around," waiting
for Klenk to be taken into custody, or for orders to return to their
cells. Id. at 188. Respondent's evidence tended to show not
that the "situation remained dangerous and volatile," ante at 475 U. S. 323, but, on the
contrary, that it was calm. Although the Court sees fit to emphasize repeatedly
"the risks to the life of the
hostage and the safety of inmates that demonstrably persisted notwithstanding
repeated attempts to defuse the situation,"
ibid., I
can only point out that respondent bitterly disputed that any such risk to
guards or inmates had persisted. The Court just does not believe his story.
The Court's treatment of the expert testimony is equally
insensitive to its obligation to resolve all disputes in favor of respondent.
Respondent's experts testified that the use of deadly force under these
circumstances was not justified by any necessity to prevent imminent danger to
the officers or the inmates, Tr. 266; that the force used was excessive, ibid.; and
that, even if deadly force had been justified, it would have been unreasonable
to unleash such force without a clear warning to allow nonparticipating inmates
to return to their cells. Id. at 269. Insofar as expert
testimony can ever be useful to show that prison authorities engaged in the
"unnecessary and wanton" infliction of pain, even though it will
always amount to "after-the-fact opinion" regarding the circumstances
of the injury, see ante at 475 U. S. 323, respondent's
expert evidence contributed to the creation of a factual issue.
The majority characterizes the petitioners' error in using
deadly force where it was not justified as an "oversight." Ante at 475 U. S. 325. This is an
endorsement of petitioners' rendition of the facts. As portrayed by
respondent's evidence, the "error" was made in cold blood.
Respondent's involvement
started when, at the request of one of the inmates, he
approached petitioner Whitley, who was talking to Klenk, to ask if Whitley
would supply a key to a gate so that the elderly and sick patients in so-called
"medical cells" near the area of disturbance could be removed before
any tear gas was used. Tr. 115-116. Captain Whitley said that he would go and
get the key, and left the cellblock. Ibid. In two or three
minutes, Whitley returned. Id. at 118. Respondent went to the
door of the cellblock, and asked Whitley if he had brought the key. Whitley
responded "No,'" turned his head back and yelled: "`Let's go,
let's go. Shoot the bastards!'" Ibid. .
Respondent, afraid, ran from his position by the door and
headed for the stairs, the only route back to his cell. Id. at
118-119. He caught some movement out of the corner of his eye, looked in its
direction, and saw petitioner Kennicott. According to respondent:
"'I froze. I looked at him; we locked eyes, then I
looked down and seen the shotgun in his hand, then I seen the flash, and the
next thing I know I was sitting down, grabbing my leg.'"
Id. at
119. Losing a great deal of blood, respondent crawled up the stairs and fell on
his face, trying to get out of range of the shotguns. Ibid. After
about 10 minutes, an officer grabbed respondent by the hair and dragged him
downstairs. Id. at 194. As he lay there, another officer came
and stood over respondent and shoved the barrel of a gun or gas pistol into
respondent's face. Id. at 122. Respondent was left lying and
bleeding profusely for approximately 10 or 15 more minutes, and was then taken
to the prison hospital. Id. at 194. He suffered very severe
injury. Meanwhile, Klenk had been subdued with no resistance by Whitley, id. at
164, 234, who was unarmed, id. at 233.
Other testimony showed that, although most of the inmates
assembled in the area were clearly not participating in the misconduct, they
received no warning, instructions, or opportunity to leave the area and return
to their cells before the officers started shooting. Id. at
163. Neither respondent
nor any other inmate attempted to impede the officers as
they entered the cellblock. Id. at 234. The officers were
described as "wild," "agitated, excited," not in full
control of their emotions. Id. at 192. One officer, prior to
entering cellblock "A," told the others to "shoot their asses
off, and if Klenk gets in the way, kill him.'" Ibid. At the time
of this assault, the cellblock was described as
"quiet." Id. at 193.
If a jury credited respondent's testimony and that of his
witnesses, it would have believed that there was only one inmate who was
temporarily out of control, Klenk -- "scared," id. at
165, and "high," id. at 117 -- and ready to give up.
The disturbance in the block had lasted only 15 or 20 minutes when it subsided,
and there appeared to be no lasting danger to anyone. Respondent was shot while
he stood motionless on the stairs, and was left to bleed for a perilously long
time before receiving any assistance.
III
475 U. S. In that
light, the facts present a very close question as to whether the prison
officials' infliction of pain on respondent could be said to display the level
of wantonness necessary to make out a constitutional violation. At the very
least, it is clear that fair-minded people could differ on the response to that
question, and that is all it takes to preclude a directed verdict.
The majority suggests that the existence of more appropriate
alternative measures for controlling prison disturbances is irrelevant to the
constitutional inquiry, but surely it cannot mean what it appears to say. For
if prison officials were to drop a bomb on a cellblock in order to halt a
fistfight between two inmates, for example, I feel confident that the Court
would have difficulty concluding, as a matter of law, that such an action was
not sufficiently wanton to present a jury question, even though concededly
taken in an effort to restore
order in the prison. Thus, the question of wantonness in the
context of prison disorder, as with other claims of mistreatment under the
Eighth Amendment, is a matter of degree. And it is precisely in cases like this
one, when shading the facts one way or the other can result in different legal
conclusions, that a jury should be permitted to do its job. Properly
instructed, a jury would take into account the petitioners' legitimate need to
protect security, the extent of the danger presented, and the reasonableness of
force used, in assessing liability. Moreover, the jury would know that a
prisoner's burden is a heavy one, if he is to establish an Eighth Amendment
violation under these circumstances. [Footnote
2] Whether respondent was able to meet that burden here is a question
for the jury. From the Court's usurpation of the jury's function, I dissent. I
would affirm the judgment of the Court of Appeals.
This intent standard ostensibly derives from an opinion of
Judge Friendly in Johnson v. Glick, 481 F.2d 1028, 1033
(CA2), cert. denied sub nom. John v. Johnson, 414 U.S. 1033
(1973). That opinion, however, considered maliciousness not as a prerequisite
to a constitutional violation, but rather as a factor that, if present, could
enable a plaintiff to survive a motion to dismiss when otherwise the facts
might be insufficient to make out a claim. 481 F.2d at 1033.
The majority also rejects the pure Fourteenth Amendment due
process claim asserted by respondent before the District Court. For the reasons
stated in JUSTICE BLACKMUN's dissent in Davidson v. Cannon, 474 U. S. 344 (1986), which
I joined, I believe that the evidence precluding a directed verdict under the
"unnecessary and wanton" standard also precludes a directed verdict
on respondent's due process claim. JUSTICE STEVENS does not join in this
footnote.
ATTACHMENT “B” – FROM JUSTIA
State v. Cannon
190 A.2d 514 (1963)
STATE of Delaware v. Franklin W. CANNON, Jr.
Supreme Court of Delaware.
April 3, 1963.
E. Norman Veasey, Chief Deputy Atty. Gen., Wilmington, and
John B. Maybee, Dover, and Peter Warren Green, Wilmington, Deputy Attys. Gen.,
for the State.
Harold Schmittinger, James B. Messick and Nicholas H.
Rodriguez, Dover, for defendant.
Howard M. Handelman, Wilmington, for American Civil
Liberties Union, amicus curiae.
SOUTHERLAND, C. J., and WOLCOTT and TERRY, JJ., sitting.
WOLCOTT, Justice.
By order dated February 4, 1963, we accepted certification
of the following question:
I. Are any of the statutes (11 Delaware Code, §§ 631, 3905,
3906, 3907 and 3908) relating to the imposition of lashes as a form of punishment,
unconstitutional on the face of said statutes in that: (a) They are violative
of the protection against "cruel punishments" of Article 1, Section
11 of the Delaware Constitution? (b) They are violative of the protection
against "cruel and unusual punishments" of the Eighth Amendment or
the Due Process Clause of the Fourteenth *515 Amendment of the Constitution of
the United States?
We accepted the certification solely because of apparent
widespread public interest in the question of the whipping post arising from
the reimposition of a prior sentence carrying the penalty of lashes. Our
reasons for doing so more fully appear in our opinion filed in connection with
the acceptance. See Del., 189 A.2d 90.
We refused to accept certification of two further questions
on the ground that the framed questions involved matters of penal policy. The
procedure on certification does not permit presentation of other than questions
of law.
The question accepted for decision raises solely a question
of law, viz., the constitutionality of statutes providing for the imposition of
lashes as the penalty for the commission of a crime. In giving our answer we do
not have to consider the facts of the criminal prosecution which gave rise to
the question of constitutional law; we are not required to determine whether
the sentence actually imposed is excessive or disproportionate; nor are we
called upon to decide the desirability or undesirability of whipping as a
punishment for crime. These are beyond the scope of the purely legal question
we have for decision.
Therefore, our answer to the question before us may not be
taken in any sense as an expression of individual opinion of any or all of the
members of this Court upon the broad policy question. We, individually and
collectively, expressly disclaim any expression of opinion either for or
against the retention of the penalty of whipping as punishment for crime.
We turn now to a consideration of the legal question. It is
one of constitutional law. It is argued that whipping is a cruel punishment
prohibited by Article 1, Section 11 of the Constitution of 1897, Del.C.Ann.,
which reads as follows:
"Excessive bail shall not be required, nor excessive
fines imposed, nor cruel punishments inflicted; and in the construction of
jails a proper regard shall be had to the health of prisoners."
The origin of this particular provision of our Constitution
is Section 16 of the Declaration of Rights of 1776, adopted in the Convention
which formed the Delaware State in that year following separation from Great
Britain. That section provided "[t]hat excessive bail ought not to be
required, nor excessive fines imposed, nor cruel or unusual punishments
inflicted."
Article 30 of the Constitution of 1776, adopted by the same
Convention, proclaimed the Declaration of Rights in all its provisions to be
inviolate. In 1792 a new Constitution for the State of Delaware was adopted
which, in Article 1, Section 11, continued the prohibition against cruel
punishments, omitting the phrase "or unusual", and adopted the
language quoted above, now appearing as Article 1, Section 11 of the present
Constitution. This same provision appears in the Constitution of 1831 in
Article 1, Section 11 of that document.
Therefore, since the independence of the State of Delaware,
there has been in its basic law a prohibition against the infliction of cruel
punishment for crime. This prohibition has existed in substantially the same
form since 1776, for we think the omission of the phrase "or unusual"
has little or no significance.
Whipping as a penalty for crime in Delaware goes far back in
its history. The first recorded instance was in 1656 under the Dutch. 1 Scharf,
Hist. of Delaware 604. Thenceforward, the imposition of lashes as a punishment
for crime was of common occurrence under the rule of the English. Records of
the Court of New Castle.
In 1719, by act of Assembly, the imposition of lashes as
punishment for crime was authorized. 1 Laws, Ch. XXII a. From that time until
the present, the statutes of Delaware have provided for the imposition of
lashes as a penalty for crime, changing over the years with respect to the
number and type of crimes for which the penalty *516 could be imposed, and the
total number of lashes which could be imposed.
As the result of a number of different acts of Assembly, the
penalty of whipping is now confined to a limited number of crimes, 11 Del.C. §§
631, 3905-3908, and the Court is now authorized in its discretion to omit under
some circumstances from any statutorily-imposed penalty the imposition of
lashes, whether or not the particular statute in terms makes the imposition of
lashes mandatory. 47 Laws, Ch. 144.
Counsel concede that in 1776, when the constitutional prohibition against
cruel punishments was placed in our basic law for the first time, whipping was
not considered a cruel punishment. It is argued, however, that what was
considered not cruel in 1776, in the light of present day society and knowledge
is considered cruel. The argument is therefore that the constitutional
prohibition against cruel punishment has changed in meaning with the result
that what today is cruel is prohibited, even though 100 or so years ago that
precise thing would not have been considered cruel.
It is, we think, generally accepted that constitutional law
to some extent may be likened to a progressive science. Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780. This means that
when the construction of the provisions and safeguards of a Constitution is
required, the words employed are not necessarily static in meaning, but grow
and change as the conditions of modern society and knowledge grow and change
with the passage of years. This does not mean, however, that the historical
context within which a particular constitutional safeguard was first adopted is
without importance in ascertaining the present day meaning of the particular
language. 11 Am.Jur., Constitutional Law, § 63.
We thus turn to 1776 to determine precisely what cruel
punishments the framers of our first Constitution intended to prohibit. It
seems to be generally accepted that such provisions in early Constitutions,
particularly in those of the original Thirteen States, were intended to
prohibit the punishments prohibited in England by 1 Wm. and Mary, Ch. 2, the
so-called Bill of Rights of England. 3 Story on Constitution, § 1896; In re
Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519. These were the
cruel and barbarous punishments on occasion formerly imposed in England by the
Crown. They were punishments considered at the time to be unnecessarily cruel
and bordering upon outright torture such as breaking on the wheel, public dissection
and the like. IV Blackstone's Commentaries 376; Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345.
That such was the fact in Delaware in 1776 becomes clear
when we consider the punishments for crime then upon the statute books and
imposed in the courts of Delaware, both before and after 1776. The colonial
punishments remained in effect in the new Delaware State by reason of Articles
24 and 25 of the Constitution of 1776 which in effect provided that all acts of
Assembly in force in Delaware, and all of the Common Law of England theretofore
adopted in practice in Delaware, should remain in full force and effect until
altered by future act of the General Assembly.
These penalties today constitute a list of horrors. For
example, the following penalties, among others, were provided for: death by
hanging, drawing and quartering for the crime of treason (1 Laws 65); death by
burning for the crime of petit treason (1 Laws 226); death by hanging for
murder and most felonies (1 Laws 226); standing in the pillory, cropping of
ears, branding, wearing a convict's badge, and selling into servitude. See, e.
g., 1 Laws 296. These were provided by statute for a variety of crimes, the
cataloging of which would add nothing.
It seems quite clear that the statutes providing for the
imposition of the more barbarous forms of these punishments did not remain in
the law purely by oversight of the Constitutional Convention of 1776. For some
of them were imposed following that year. For example, at the October *517 Term
of the Court of Oyer and Terminer in Sussex County in 1780, Chief Justice
Killen sentenced eight prisoners convicted of high treason to be hanged, drawn
and quartered. Whether the sentences were actually carried out is doubtful
because the convicted prisoners later petitioned the Assembly for clemency. But
the sentences were imposed. 3 Del.Archives, 1302-1304. Previously, in 1731, one
Catherine Bevan had been burned to death upon conviction of the crime of petit
treason that is, murdering her husband (Penna. Gazette, Sept. 23, 1731) but, by
an act of June 5, 1787, (2 Laws 905), this penalty was changed to death by
hanging in time to save Sarah Kirk convicted of a like crime from being
executed by burning. Penna. Packet, Oct. 13, 1787.
The preamble of this act throws light upon the attitude of
the times toward cruel punishments. It is recited that in the judgment of the
General Assembly of 1787 the punishment for petit treason, i. e., death by
burning, is "too severe, and contrary to the mild spirit of the
constitution and laws" of the State. It would seem that the meaning of the
phrase "mild spirit" differed in 1787 from its meaning today, since
the penalty of hanging, drawing and quartering for high treason does not seem
to have been changed until the passage of a general codification of the
criminal laws providing for punishment of crimes and misdemeanors enacted
February 8, 1826, 1829 Code 143, by which act it was provided that all
punishments by death shall be inflicted by hanging. The 1829 Code continued to
provide for imprisonment, fining, standing in the pillory, cropping of ears,
selling into servitude, branding and whipping as punishments for crime, each
crime, of course, being punished by any or several of the listed forms of
punishment.
Thereafter, with the passage of years, the General Assembly
modified the laws imposing punishment for crime. Thus, the wearing of the
convict's badge was abolished, branding was abolished, cropping of ears was
abolished, the whipping of women was abolished, but it was not until 1905,
after the adoption of the Constitution of 1897, that the punishment of the
pillory was abolished. 23 Laws, Ch. 213.
The historical development of the laws of this State,
therefore, indicates a gradual change in the viewpoint and beliefs of the
General Assembly as to what constitutes proper punishment for crime. Indeed,
the state of our present law is such that punishments for crime are now limited
to death by hanging, imprisonment and fining, and in addition, in some few
instances, the imposition of lashes, the sole holdover today of the infliction
of corporal punishment for crime.
It is argued to us that we at this time should recognize the
modern view condemning corporal punishment for crime and declare that the
infliction of lashes as punishment is the remnant of a cruel age, and should be
declared to be a violation of the constitutional prohibition against cruel
punishments. We think, however, this is not our function. We accept unquestionably
that Constitutions are living documents in the sense that the phraseology used
in them grows and changes with the passage of time. Weems v. United
States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793. The meanings of
words change and grow with the changing sensibilities, beliefs and knowledge of
man. We think, however, that this change, this growth, this enlightened meaning
of words used in Constitutions, comes about by reason of the beliefs of the
people themselves. The change may not come solely by reason of the individual
belief of an individual judge. What better way is there for the people to
express an enlightened attitude toward the punishment of crime than through
their elected representatives, the members of the General Assembly who, indeed,
hold their office for the very purpose of expressing the will and beliefs of
the people who elected them.
Furthermore, the history of the criminal laws of Delaware
demonstrates that this is an effective force to bring about change. *518 If the
people feel strongly enough upon a subject, their elected representatives
respond to their will. We have no doubt but that the gradual elimination from
our criminal law of many punishments now considered cruel was accomplished by
the General Assembly pursuant to the will of the people.
Once a particular form of punishment is abolished, thus
evidencing a belief that it is cruel, it thereafter is prohibited by the
subsequent adoption of the prohibition against the imposition of cruel
punishments. 1 Cooley's Constitutional Limitations (8th Ed.) 694.
Thus it is that Article 1, Section 11 of the Constitution of 1831 prohibited
absolutely the reinstatement of the penalties of hanging, drawing and
quartering for treason, and death by burning for petit treason. This
follows from their repeal in 1787 and 1826, which we take to be an expression
by the people through their elected representatives that such punishments were
cruel.
Today, however, there has been no legal and effective
expression of the people speaking through the General Assembly that whipping is
a cruel punishment in the constitutional sense. Indeed, we think we may
judicially notice the fact that there is undoubtedly a decided difference in
view on the part of the people. What the weight of public opinion pro or con
is, we have no way of knowing. Certain it is, however, that as yet the only
constitutionally sound way of expressing the public sentiment, by act of
Assembly, has not condemned the imposition of lashes as a cruel punishment.
It is the province of the General Assembly in its wisdom to
give expression to the public will. It may either by inaction permit the
practice to continue or, by action, condemn it as a cruel punishment. Judicial
restraint and a proper recognition of the function of the Legislative and
Judicial branches of government compel us to express no opinion upon the
propriety of doing either.
It is, however, urged that the Eighth Amendment to the
Constitution of the United States prohibiting the imposition of cruel and
unusual punishment is binding upon this State and, consequently, that we must
declare the punishment of whipping unconstitutional under the Eighth Amendment
even though it may not be prohibited by the Delaware Constitution. To be sure,
the Supreme Court of the United States has held that the Eighth Amendment, by
reason of the Fourteenth Amendment, is binding upon the several States of the
Union, Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758, and that
whether or not a punishment is cruel and unusual is to be interpreted by the
standards of present day society.
This holding of the Supreme Court of the United States is,
of course, binding upon us. The Supreme Court, however, has not as yet held the
punishment of whipping, in itself, cruel. It has spoken of it as infamous, but
that is possibly true of all punishment for crime.
"The Eighth Amendment expresses the revulsion of
civilized man against barbarous acts the `cry of horror' against man's
inhumanity to his fellow man." Per Mr. Justice Douglas, concurring in the
Robinson case. We note that in Great Britain the punishment of whipping was in
use until 1948, and in Canada until 1957. Its discontinuance was accomplished
by legislative act, not by judicial fiat. It does not seem to us that a
punishment so recently in use in the country that leads the world in the
administration of justice may be held to be a barbarity that, as a matter of
constitutional law, must be deemed cruel and unusual.
Furthermore, it certainly is not without significance that
the abolition of whipping as a punishment for crime in those States of the
Union which in the past provided for it, has uniformly been accomplished by
legislative action. Counsel have not cited to us any case, nor has our own
search brought one to hand, in which a court as a matter of constitutional law
held the punishment *519 to be cruel and unusual and thus prohibited. We may
assume, therefore, that in those States the matter was considered one for the
legislative expression of the will of the people. We think the standards of
present day society are to be determined by the expressions of that society,
itself, and not by an expression of the individual opinions of members of the
Judiciary. This standard must be a collective one and it can be determined only
by an expression of views from the people which make up that society. The only
manner in which such an expression can be made is through the action of duly
elected representatives of the Society whose standard is to be applied.
Accordingly, we are of the opinion that the Eighth and
Fourteenth Amendments to the Federal Constitution do not invalidate the
statutes of the State of Delaware imposing the punishment of whipping for
certain crimes.
By reason of all of the foregoing, the answer to the
question certified is in the negative.
ATTACHMENT “C” – FROM JUSTIA
Furman v. Georgia, 408 U.S. 238
(1972)
Argued: January 17, 1972
Decided: June 29, 1972
Annotation
PRIMARY HOLDING
The death penalty is unconstitutional under the Eighth
Amendment prohibition against cruel and unusual punishment when it is imposed
in an arbitrary and capricious manner that leads to discriminatory results.
Syllabus
U.S. Supreme Court
Furman v. Georgia, 408 U.S. 238 (1972)
Furman v. Georgia
No. 69-5003
Argued January 17, 1972
Decided June 29, 1972*
408 U.S. 238
CERTIORARI TO THE SUPREME COURT OF GEORGIA
Syllabus
Imposition and carrying out of death penalty in these cases
held to constitute cruel and unusual punishment in violation of Eighth and
Fourteenth Amendments.
No. 69-5003, 225 Ga. 253, 167 S.D.2d 628; No. 69-5030, 225
Ga. 790, 171 S.D.2d 501; No. 69-5031, 447 S.W.2d 932, reversed and remanded.
Page 408 U. S. 239
PER CURIAM.
Petitioner in No. 69-5003 was convicted of murder in
Georgia, and was sentenced to death pursuant to Ga.Code Ann. § 26-1005 (Supp.
1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969). Petitioner in No. 69-5030 was
convicted of rape in Georgia, and was sentenced to death pursuant to Ga.Code
Ann. § 26-1302 (Supp. 1971) (effective prior to July 1, 1969). 225 Ga. 790, 171
S.D.2d 501 (1969). Petitioner in No. 69-5031 was convicted of rape in Texas,
and was sentenced to death pursuant to Tex.Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App. 1969). Certiorari was
granted limited to the following question:
"Does the imposition and carrying out of the death
penalty in [these cases] constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments?"
403 U.S. 952 (1971). The Court holds that the imposition
Page 408 U. S. 240
and carrying out of the death penalty in these cases constitute
cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments. The judgment in each case is therefore reversed insofar as it
leaves undisturbed the death sentence imposed, and the cases are remanded for
further proceedings.
So ordered.
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL have filed separate
opinions in support of the judgments. THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN,
MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST have filed separate dissenting
opinions.
MR. JUSTICE DOUGLAS, concurring.
In these three cases the death penalty was imposed, one of
them for murder, and two for rape. In each, the determination of whether the
penalty should be death or a lighter punishment was left by the State to the
discretion of the judge or of the jury. In each of the three cases, the trial
was to a jury. They are here on petitions for certiorari which we granted
limited to the question whether the imposition and execution of the death
penalty constitute "cruel and unusual punishment" within the meaning
of the Eighth Amendment as applied to the States by the Fourteenth. [Footnote 1] I vote to vacate each judgment, believing that the
exaction of the death penalty does violate the Eighth and Fourteenth
Amendments.
Page 408 U. S. 241
That the requirements of due process ban cruel and unusual
punishment is now settled. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 463, and 329 U. S. 473-474 (Burton, J., dissenting); Robinson
v. California, 370 U. S. 660, 370 U. S. 667. It is also settled that the proscription of
cruel and unusual punishments forbids the judicial imposition of them as well
as their imposition by the legislature. Weems v. United States, 217 U. S. 349, 217 U. S. 378-382.
Congressman Bingham, in proposing the Fourteenth Amendment,
maintained that "the privileges or immunities of citizens of the United
States," as protected by the Fourteenth Amendment, included protection
against "cruel and unusual punishments:"
"[M]any instances of State injustice and oppression
have already occurred in the State legislation of this Union, of flagrant
violations of the guarantied privileges of citizens of the United States, for
which the national Government furnished and could furnish by law no remedy
whatever. Contrary to the express letter of your Constitution, 'cruel and
unusual punishments' have been inflicted under State laws within this Union
upon citizens not only for crimes committed, but for sacred duty done, for
which and against which the Government of the United States had provided no
remedy, and could provide none."
Cong. Globe, 39th Cong., 1st Sess., 2542.
Whether the privileges and immunities route is followed or
the due process route, the result is the same.
It has been assumed in our decisions that punishment by
death is not cruel, unless the manner of execution can be said to be inhuman
and barbarous. In re Kemmler, 136 U. S. 436, 136 U. S. 447. It is also said in our opinions
Page 408 U. S. 242
that the proscription of cruel and unusual punishments
"is not fastened to the obsolete, but may acquire meaning as public
opinion becomes enlightened by a humane justice." Weems v. United
States, supra, at 217 U. S. 378. A like statement was made in Trop v.
Dulles, 356 U. S. 86, 356 U. S. 101, that the Eighth Amendment "must draw its
meaning from the evolving standards of decency that mark the progress of a
maturing society."
The generality of a law inflicting capital punishment is one
thing. What may be said of the validity of a law on the books and what may be
done with the law in its application do, or may, lead to quite different
conclusions.
It would seem to be incontestable that the death penalty
inflicted on one defendant is "unusual" if it discriminates against
him by reason of his race, religion, wealth, social position, or class, or if
it is imposed under a procedure that gives room for the play of such
prejudices.
There is evidence that the provision of the English Bill of
Rights of 1689, from which the language of the Eighth Amendment was taken, was
concerned primarily with selective or irregular application of harsh penalties,
and that its aim was to forbid arbitrary and discriminatory penalties of a
severe nature: [Footnote 2]
"Following the Norman conquest of England in 1066, the
old system of penalties, which ensured equality between crime and punishment,
suddenly disappeared. By the time systematic judicial records were kept, its
demise was almost complete. With the exception of certain grave crimes for
which the punishment was death or outlawry, the arbitrary fine was replaced by
a discretionary
Page 408 U. S. 243
amercement. Although amercement's discretionary character
allowed the circumstances of each case to be taken into account, and the level
of cash penalties to be decreased or increased accordingly, the amercement
presented an opportunity for excessive or oppressive fines."
"The problem of excessive amercements became so
prevalent that three chapters of the Magna Carta were devoted to their
regulation. Maitland said of Chapter 14 that, 'very likely, there was no clause
in the Magna Carta more grateful to the mass of the people.' Chapter 14 clearly
stipulated as fundamental law a prohibition of excessiveness in punishments:
"
" A free man shall not be amerced for a trivial
offence, except in accordance with the degree of the offence, and for a serious
offence, he shall be amerced according to its gravity, saving his livelihood;
and a merchant likewise, saving his merchandise; in the same way, a villein
shall be amerced saving his wainage, if they fall into our mercy. And none of
the aforesaid amercements shall be imposed except by the testimony of reputable
men of the neighborhood."
The English Bill of Rights, enacted December 16, 1689,
stated that "excessive bail ought not to be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." [Footnote 3] These were the words chosen for our Eighth
Amendment. A like provision had been in Virginia's Constitution of 1776, [Footnote 4] and in the constitutions
Page 408 U. S. 244
of seven other States. [Footnote 5] The Northwest Ordinance, enacted under the
Articles of Confederation, included a prohibition of cruel and unusual
punishments. [Footnote 6] But the debates of the First Congress on the Bill
of Rights throw little light on its intended meaning. All that appears is the
following: [Footnote 7]
"Mr. SMITH, of South Carolina, objected to the words
'nor cruel and unusual punishments,' the import of them being too
indefinite."
"Mr. LIVERMORE: The clause seems to express a great
deal of humanity, on which account I have no objection to it; but, as it seems
to have no meaning in it, I do not think it necessary. What is meant by the
terms excessive bail? Who are to be the judges? What is understood by excessive
fines? It lies with the court to determine. No cruel and unusual punishment is
to be inflicted; it is sometimes necessary to hang a man, villains often
deserve whipping, and perhaps having their ears cut off; but are we in future
to be prevented from inflicting these punishments because they are cruel? If a
more lenient mode of correcting vice and deterring others from the commission
of it could be invented, it would be very prudent in the Legislature to adopt
it; but until we have some security that this will be done, we ought not to be
restrained from making necessary laws by any declaration of this kind."
The words "cruel and unusual" certainly include
penalties
Page 408 U. S. 245
that are barbaric. But the words, at least when read in
light of the English proscription against selective and irregular use of
penalties, suggest that it is "cruel and unusual" to apply the death
penalty -- or any other penalty -- selectively to minorities whose numbers are
few, who are outcasts of society, and who are unpopular, but whom society is
willing to see suffer though it would not countenance general application of
the same penalty across the board. [Footnote 8] Judge Tuttle, indeed, made abundantly clear
in Novak v. Beto, 43 F.2d 661, 673-679 (CA5) (concurring in
part and dissenting in part), that solitary confinement may at times be
"cruel and unusual" punishment. Cf. Ex parte Medley, 134 U. S. 160; Brooks v. Florida, 389 U. S. 413.
The Court in McGautha v. California, 402 U. S. 183, 402 U. S. 198, noted that, in this country, there was almost
from the beginning a "rebellion against the common law rule imposing a
mandatory death sentence on all convicted
Page 408 U. S. 246
murderers." The first attempted remedy was to restrict
the death penalty to defined offenses such as "premeditated" murder.
[Footnote 9] Ibid. But juries "took the
Page 408 U. S. 247
law into their own hands," and refused to convict on
the capital offense. Id. at 402 U. S. 199.
"In order to meet the problem of jury nullification,
legislatures did not try, as before, to refine further the definition of
capital homicides. Instead they adopted the method of forthrightly granting
juries the discretion which they had been exercising in fact."
Ibid.
The Court concluded:
"In light of history, experience, and the present
limitations of human knowledge, we find it quite impossible to say that
committing to the untrammeled discretion of the jury the power to pronounce
life or death in capital cases is offensive to anything in the
Constitution."
Id. at 402 U. S. 207.
The Court refused to find constitutional dimensions in the
argument that those who exercise their discretion to send a person to death
should be given standards by which that discretion should be exercised. Id. at 402 U. S. 207-208.
A recent witness at the Hearings before Subcommittee No. 3
of the House Committee on the Judiciary, 92d Cong., 2d Sess., Ernest van den
Haag, testifying on H.R. 8414 et al., [Footnote 10] stated:
"Any penalty, a fine, imprisonment or the death penalty
could be unfairly or unjustly applied. The
Page 408 U. S. 248
vice in this case is not in the penalty, but in the process
by which it is inflicted. It is unfair to inflict unequal penalties on equally
guilty parties, or on any innocent parties, regardless of what the
penalty is."
Id. at
116-117. (Emphasis supplied.)
But those who advance that argument overlook McGautha,
supra.
We are now imprisoned in the McGautha holding.
Indeed, the seeds of the present cases are in McGautha. Juries
(or judges, as the case may be) have practically untrammeled discretion to let
an accused live or insist that he die. [Footnote 11]
Page 408 U. S. 249
Mr. Justice Field, dissenting in O'Neil v. Vermont, 144 U. S. 323, 144 U. S. 340, said,
"The State may, indeed, make the drinking of one drop
of liquor an offence to be punished by imprisonment, but it would be an
unheard-of cruelty if it should count the drops in a single glass and make
thereby a thousand offences, and thus extend the punishment for drinking the
single glass of liquor to an imprisonment of almost indefinite duration."
What the legislature may not do for all classes uniformly
and systematically a judge or jury may not do for a class that prejudice sets
apart from the community.
There is increasing recognition of the fact that the basic
theme of equal protection is implicit in "cruel and unusual"
punishments. "A penalty . . . should be considered unusually'
imposed if it is administered arbitrarily or discriminatorily." [Footnote 12] The same authors add that "[t]he extreme
rarity with which applicable death penalty provisions are put to use raises a
strong inference of arbitrariness.'' [Footnote 13] The President's Commission on Law Enforcement and
Administration of Justice recently concluded: [Footnote 14]
"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
Page 408 U. S. 250
poor, the Negro, and the members of unpopular groups."
A study of capital cases in Texas from 1924 to 1968 reached
the following conclusions: [Footnote 15]
"Application of the death penalty is unequal: most of
those executed were poor, young, and ignorant."
"* * * *"
Page 408 U. S. 251
"Seventy-five of the 460 cases involved codefendants,
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: [Footnote 16]
"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." [Footnote 17] One searches our chronicles
Page 408 U. S. 252
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.
Jackson, a black, convicted of the rape of a white woman,
was 21 years old. A court-appointed psychiatrist said that Jackson was of
average education and average intelligence, that he was not an imbecile, or
schizophrenic, or psychotic, that his traits were the product of environmental
influences, and that he was competent to stand trial. Jackson had entered the
house after the husband left for work. He held scissors against the neck of the
wife, demanding money. She could find none, and a struggle ensued for the
scissors, a battle which she lost, and she was then raped, Jackson keeping the
scissors pressed against her neck. While there did not appear to be any
long-term traumatic impact on the victim, she was bruised and abrased in the
struggle, but was not hospitalized. Jackson was a convict who had escaped from
a work gang in the area, a result of a three-year sentence for auto theft. He
was at large for three days and during that time had committed several other
offenses -- burglary, auto theft, and assault and battery.
Furman, a black, killed a householder while seeking to enter
the home at night. Furman shot the deceased through a closed door. He was 26
years old and had finished the sixth grade in school. Pending trial, he was
committed to the Georgia Central State Hospital for a psychiatric examination
on his plea of insanity tendered by court-appointed counsel. The superintendent
reported that a unanimous staff diagnostic conference had concluded "that
this patient should retain his present diagnosis of Mental Deficiency, Mild to
Moderate, with Psychotic Episodes associated with Convulsive Disorder."
The physicians agreed that "at present the patient is not psychotic, but
he is not capable of cooperating with his counsel in the preparation of his
Page 408 U. S. 253
defense"; and the staff believed "that he is in
need of further psychiatric hospitalization and treatment."
Later, the superintendent reported that the staff diagnosis
was Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated
with Convulsive Disorder. He concluded, however, that Furman was "not
psychotic at present, knows right from wrong and is able to cooperate with his
counsel in preparing his defense."
Branch, a black, entered the rural home of a 65-year-old
widow, a white, while she slept and raped her, holding his arm against her
throat. Thereupon he demanded money, and for 30 minutes or more, the widow
searched for money, finding little. As he left, Jackson said if the widow told
anyone what happened, he would return and kill her. The record is barren of any
medical or psychiatric evidence showing injury to her as a result of Branch's
attack.
He had previously been convicted of felony theft and found
to be a borderline mental deficient and well below the average IQ of Texas
prison inmates. He had the equivalent of five and a half years of grade school
education. He had a "dull intelligence," and was in the lowest fourth
percentile of his class.
We cannot say from facts disclosed in these records that
these defendants were sentenced to death because they were black. Yet our task
is not restricted to an effort to divine what motives impelled these death
penalties. Rather, we deal with a system of law and of justice that leaves to
the uncontrolled discretion of judges or juries the determination whether
defendants committing these crimes should die or be imprisoned. Under these
laws, no standards govern the selection of the penalty. People live or die,
dependent on the whim of one man or of 12.
Irving Brant has given a detailed account of the Bloody
Assizes, the reign of terror that occupied the
Page 408 U. S. 254
closing years of the rule of Charles II and the opening years
of the regime of James II (the Lord Chief Justice was George Jeffreys):
"Nobody knows how many hundreds of men, innocent or of
unproved guilt, Jeffreys sent to their deaths in the pseudo trials that
followed Monmouth's feeble and stupid attempt to seize the throne. When the
ordeal ended, scores had been executed and 1,260 were awaiting the hangman in
three counties. To be absent from home during the uprising was evidence of
guilt. Mere death was considered much too mild for the villagers and farmers rounded
up in these raids. The directions to a high sheriff were to provide an ax, a
cleaver,"
"a furnace or cauldron to boil their heads and
quarters, and soil to boil therewith, half a bushel to each traitor, and tar to
tar them with, and a sufficient number of spears and poles to fix their heads
and quarters"
"along the highways. One could
have crossed a good part of northern England by their guidance."
"The story of The Bloody Assizes, widely known to
Americans, helped to place constitutional limitations on the crime of treason
and to produce a bar against cruel and unusual punishments. But in the polemics
that led to the various guarantees of freedom, it had no place compared with
the tremendous thrust of the trial and execution of Sidney. The hundreds of
judicial murders committed by Jeffreys and his fellow judges were totally
inconceivable in a free American republic, but any American could imagine
himself in Sidney's place -- executed for putting on paper, in his closet,
words that later on came to express the basic principles of republican
government. Unless barred by fundamental law, the legal rulings that permitted
this
Page 408 U. S. 255
result could easily be employed against any person whose
political opinions challenged the party in power."
The Bill of Rights 154-155 (1965).
Those who wrote the Eighth Amendment knew what price their
forebears had paid for a system based not on equal justice, but on
discrimination. In those days, the target was not the blacks or the poor, but
the dissenters, those who opposed absolutism in government, who struggled for a
parliamentary regime, and who opposed governments' recurring efforts to foist a
particular religion on the people. Id. at 155-163. But the
tool of capital punishment was used with vengeance against the opposition and
those unpopular with the regime. One cannot read this history without realizing
that the desire for equality was reflected in the ban against "cruel and
unusual punishments" contained in the Eighth Amendment.
In a Nation committed to equal protection of the laws there
is no permissible "caste" aspect [Footnote 18] 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, [Footnote 19] and, under that law, "[g]enerally, in the
law books, punishment increased in severity as social status diminished."
[Footnote 20] We have, I fear, taken in practice the same
position, partially as a result of making the death penalty
Page 408 U. S. 256
discretionary and partially as a result of the ability of
the rich to purchase the services of the most respected and most resourceful
legal talent in the Nation.
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 [Footnote 21] has no more sanctity than a law which in terms
provides the same.
Thus, these discretionary statutes are unconstitutional
Page 408 U. S. 257
in their operation. They are pregnant with discrimination,
and discrimination is an ingredient not compatible with the idea of equal
protection of the laws that is implicit in the ban on "cruel and
unusual" punishments.
Any law which is nondiscriminatory on its face may be
applied in such a way as to violate the Equal Protection Clause of the
Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356. Such conceivably might be the fate of a
mandatory death penalty, where equal or lesser sentences were imposed on the
elite, a harsher one on the minorities or members of the lower castes. Whether
a mandatory death penalty would otherwise be constitutional is a question I do
not reach.
I concur in the judgments of the Court.
* Together with No. 69-5030, Jackson v. Georgia, on
certiorari to the same court, and No. 69-5031, Branch v. Texas, on
certiorari to the Court of Criminal Appeals of Texas.
The opinion of the Supreme Court of Georgia affirming Furman's
conviction of murder and sentence of death is reported in 225 Ga. 253, 167 S.E.2d 628, and its opinion affirming Jackson's conviction
of rape and sentence of death is reported in 225 Ga. 790, 171 S.E.2d 501. The conviction of Branch of rape and the
sentence of death were affirmed by the Court of Criminal Appeals of Texas and
reported in 447 S.W.2d 932.
Granucci, "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 845-846 (1969).
1 W. & M., Sess. 2, c. 2; 8 English Historical
Documents, 166 1714, p. 122 (A. Browning ed. 1953).
F. Thorpe, Federal & State Constitutions 3813 (1909).
Delaware, Maryland, New Hampshire, North Carolina,
Massachusetts, Pennsylvania, and South Carolina. 1
Thorpe, supra, n 4, at 569; 3 id. at 1688, 1892; 4 id. at
2457; 5 id. at 2788, 3101; 6 id. at
3264.
Set out in 1 U.S.C. XXXIX-XLI.
Annals of Cong. 754 (1789).
"When, in respect of any class of offenses, the
difficulty of obtaining convictions is at all general in England, we may hold
it as an axiom that the law requires amendment. Such conduct in juries is the
silent protest of the people against its undue severity. This was strongly
exemplified in the case of prosecutions for the forgery of banknotes, when it
was a capital felony. It was in vain that the charge was proved. Juries would
not condemn men to the gallows for an offense of which the punishment was out
of all proportion to the crime; and, as they could not mitigate the sentence,
they brought in verdicts of Not Guilty. The consequence was that the law was
changed; and when secondary punishments were substituted for the penalty of
death, a forger had no better chance of an acquittal than any other criminal.
Thus it is that the power which juries possess of refusing to put the law in
force has, in the words of Lord John Russell,"
"been the cause of amending many bad laws which the
judges would have administered with professional bigotry, and, above all, it
has this important and useful consequence that laws totally repugnant to the
feelings of the community for which they are made can not long prevail in
England."
W. Forsyth, History of Trial by Jury 367-368 (2d ed. 1971).
This trend was not universally applauded. In the early
1800's, England had a law that made it possible to impose the death sentence
for stealing five shillings or more. 3 W. & M., c. 9, § 1. When a bill for
abolishing that penalty (finally enacted in 1827, 7 & 8 Geo. 4, c. 27) was
before the House of Lords in 1813, Lord Ellenborough said:
"If your Lordships look to t.he particular measure now
under consideration, can it, I ask, be seriously maintained, that the most
exemplary punishment, and the best suited to prevent the commission of this crime,
ought not to be a punishment which might in some cases be inflicted? How, but
by the enactments of the law now sought to be repealed, are the cottages of
industrious poverty protected? What other security has a poor peasant, when he
and his wife leave their home for their daily labours, that, on their return,
their few articles of furniture or of clothes which they possess besides those
which they carry on their backs, will be safe? . . . [B]y the enacting of the
punishment of death, and leaving it to the discretion of the Crown to inflict
that punishment or not, as the circumstances of the case may require, I am
satisfied, and I am much mistaken if your Lordships are not satisfied, that
this object is attained with the least possible expenditure. That the law is,
as it has been termed, a bloody law, I can by no means admit. Can there be a
better test than by a consideration of the number of persons who have been
executed for offences of the description contained in the present Bill? Your
Lordships are told what is extremely true, that this number is very small, and
this very circumstance is urged as a reason for a repeal of the law; but,
before your Lordships are induced to consent to such repeal, I beg to call to
your consideration the number of innocent persons who might have been plundered
of their property or destroyed by midnight murderers if the law now sought to
be repealed had not been in existence -- a law upon which all the retail trade
of this commercial country depends, and which I, for one, will not consent to
be put in jeopardy."
Debate in House of Lords, Apr. 2, 1813, pp. 23-24 (Longman,
Hurst, Rees, Orme, & Brown, Paternoster-Row, London 1816).
H.R. 3243, 92d Cong., 1st Sess., introduced by Cong. Celler,
would abolish all executions by the United States or by any State.
H.R. 8414, 92d Cong., 1st Sess., introduced by Cong. Celler,
would provide an interim stay of all executions by the United States or by any
State and contains the following proposed finding:
"Congress hereby finds that there exists serious
question -- "
"(a) whether the infliction of the death penalty
amounts to cruel and unusual punishment in violation of the eighth and
fourteenth amendments to the Constitution; and"
"(b) whether the death penalty is inflicted
discriminatorily upon members of racial minorities, in violation of the
fourteenth amendment to the Constitution,"
"and, in either case, whether
Congress should exercise its authority under section 5 of the fourteenth
amendment to prohibit the use of the death penalty."
There is the naive view that capital punishment as
"meted out in our courts, is the antithesis of barbarism." See Henry
Paolucci, New York Times, May 27, 1972, p. 29, col. 1. But the Leopolds and
Loebs, the Harry Thaws, the Dr. Sheppards and the Dr. Finchs of our society are
never executed -- only those in the lower strata, only those who are members of
an unpopular minority or the poor and despised.
The tension between our decision today and McGautha highlights,
in my view, the correctness of MR. JUSTICE BRENNAN's dissent in that case,
which I joined. 402 U.S. at 402 U. S. 248. I should think that if the Eighth and
Fourteenth Amendments prohibit the imposition of the death penalty on
petitioners because they are "among a capriciously selected random handful
upon whom the sentence of death has in fact been imposed," opinion of MR.
JUSTICE STEWART, post, at 408 U. S. 309-310, or because
"there is no meaningful basis for
distinguishing the few cases in which [the death penalty] is imposed from the
many cases in which it is not,"
opinion of MR. JUSTICE WHITE, post, at 408 U. S. 313, statements with which I am in complete
agreement -- then the Due Process Clause of the Fourteenth Amendment would
render unconstitutional
"capital sentencing procedures
that are purposely constructed to allow the maximum possible variation from one
case to the next, and [that] provide no mechanism to prevent that consciously
maximized variation from reflecting merely random or arbitrary choice."
McGautha v. California, 402 U. S. 183, 402 U. S. 248 (BRENNAN, J., dissenting).
Goldberg & Dershowitz, Declaring the Death Penalty
Unconstitutional, 83 Harv.L.Rev. 1773, 1790.
Id. at
1792.
The Challenge of Crime in a Free Society 143 (1967).
Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime
& Delin. 132, 141 (1969).
In H. Bedau, The Death Penalty in America 474 (1967 rev.
ed.), it is stated:
RACE OF THE OFFENDER BY FINAL DISPOSITION
Final Negro White Total
Disposition N % N % N %
Executed 130 88.4 210 79.8 340 82.9
Commuted 17 11.6 53 20.2 70 17.1
Total 147 100.0 263 100.0 410 100.0
X^2=4.33; P less than .05. (For discussion of statistical
symbols, see Bedau, supra, at 469.)
"Although there may be a host of factors other than
race involved in this frequency distribution, something more than chance has
operated over the years to produce this racial difference. On the basis of this
study it is not possible to indict the judicial and other public processes
prior to the death row as responsible for the association between Negroes and
higher frequency of executions; nor is it entirely correct to assume that from
the time of their appearance on death row Negroes are discriminated against by
the Pardon Board. Too many unknown or presently immeasurable factors prevent
our making definitive statements about the relationship. Nevertheless, because
the Negro/high-execution association is statistically present, some suspicion
of racial discrimination can hardly be avoided. If such a relationship had not
appeared, this kind of suspicion could have been allayed; the existence of the
relationship, although not proving differential bias by the Pardon Boards over
the years since 1914, strongly suggests that such bias has existed."
The latter was a study in Pennsylvania of people on death
row between 1914 and 1958, made by Wolfgang, Kelly, & Nolde and printed in
53 J.Crim.L.C. & P.S. 301 (1962). And see Hartung, Trends
in the Use of Capital Punishment, 284 Annals 8, 14-17 (1952).
Life and Death in Sing Sing 155-160 (1928).
Crime in America 335 (1970).
See Johnson,
The Negro and Crime, 217 Annals 93 (1941).
See J.
Spellman, Political Theory of Ancient India 112 (1964).
C. Drekmeier, Kingship and Community in Early India 233
(1962).
Cf. B.
Prettyman, Jr., Death and The Supreme Court 296-297 (1961).
"The disparity of representation in capital cases
raises doubts about capital punishment itself, which has been abolished in only
nine states. If a James Avery [345 U.S. 559] can be saved from electrocution because his
attorney made timely objection to the selection of a jury by the use of yellow
and white tickets, while an Aubry Williams [ 345 U. S. 349 U.S.
375] can be sent to his death by a jury selected in precisely the same manner,
we are imposing our most extreme penalty in an uneven fashion."
"The problem of proper representation is not a problem
of money, as some have claimed, but of a lawyer's ability, and it is not true
that only the rich have able lawyers. Both the rich and the poor usually are
well represented -- the poor because, more often than not, the best attorneys
are appointed to defend them. It is the middle-class defendant, who can afford
to hire an attorney but not a very good one, who is at a disadvantage.
Certainly William Fikes [ 352 U. S. 352 U.S. 191], despite the anomalous position
in which he finds himself today, received as effective and intelligent a
defense from his court-appointed attorneys as he would have received from an
attorney his family had scraped together enough money to hire."
"And it is not only a matter of ability. An attorney
must be found who is prepared to spend precious hours -- the basic commodity he
has to sell -- on a case that seldom fully compensates him and often brings him
no fee at all. The public has no conception of the time and effort devoted by
attorneys to indigent cases. And, in a first-degree case, the added
responsibility of having a man's life depend upon the outcome exacts a heavy
toll."
MR. JUSTICE BRENNAN, concurring.
The question presented in these cases is whether death is
today a punishment for crime that is "cruel and unusual" and
consequently, by virtue of the Eighth and Fourteenth Amendments, beyond the
power of the State to inflict. [Footnote 2/1]
Page 408 U. S. 258
Almost a century ago, this Court observed that
"[d]ifficulty would attend the effort to define with
exactness the extent of the constitutional provision which provides that cruel
and unusual punishments shall not be inflicted."
Wilkerson v. Utah, 99 U. S. 130, 99 U. S. 135-136 (1879). Less than 15 years ago, it was again
noted that "[t]he exact scope of the constitutional phrase cruel
and unusual' has not been detailed by this Court." Trop v.
Dulles, 356 U. S. 86, 356 U. S. 99 (1958). Those statement remain true today. The
Cruel and Unusual Punishments Clause, like the other great clauses of the
Constitution, is not susceptible of precise definition. Yet we know that the
values and ideals it embodies are basic to our scheme of government. And we
know also that the Clause imposes upon this Court the duty, when the issue is
properly presented, to determine the constitutional validity of a challenged
punishment, whatever that punishment may be. In these cases, "[t]hat issue
confronts us, and the task of resolving it is inescapably
ours." Id. at 356 U. S. 103.
I
We have very little evidence of the Framers' intent in
including the Cruel and Unusual Punishments Clause among those restraints upon
the new Government enumerated in the Bill of Rights. The absence of such a
restraint from the body of the Constitution was alluded to, so far as we now
know, in the debates of only two of the state ratifying conventions. In the
Massachusetts convention, Mr. Holmes protested:
"What gives an additional glare of horror to these
gloomy circumstances is the consideration that Congress have
to ascertain, point out, and determine,
Page 408 U. S. 259
what kind of punishments shall be inflicted on persons
convicted of crimes. They are nowhere restrained from inventing the most cruel
and unheard-of punishments, and annexing them to crimes; and there is no
constitutional check on them, but that racks and gibbets may be amongst the
most mild instruments of their discipline."
2 J. Elliot's Debates 111 (2d ed. 1876). Holmes' fear that
Congress would have unlimited power to prescribe punishments for crimes was
echoed by Patrick Henry at the Virginia convention:
". . . Congress, from their general powers, may fully
go into business of human legislation. They may legislate, in criminal cases,
from treason to the lowest 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 [Virginia] bill of rights. -- 'that excessive
bail ought not to be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.' Are you not, therefore, now calling on those
gentlemen who are to compose Congress, to . . . define punishments without this
control? Will they find sentiments there similar to this bill of rights? You
let them loose; you do more -- you depart from the genius of your country. . .
. "
"In this business of legislation, your members of
Congress will loose the restriction of not imposing excessive fines, demanding
excessive bail, and inflicting cruel and unusual punishments. These are
prohibited by your [Virginia] declaration of rights. What has distinguished our
ancestors? --
Page 408 U. S. 260
That they would not admit of tortures, or cruel and
barbarous punishment."
3 id. at
447. [Footnote 2/2]
These two statements shed some light on what the Framers
meant by "cruel and unusual punishments." Holmes referred to
"the most cruel and unheard-of punishments," Henry to "tortures,
or cruel and barbarous punishment." It does not follow, however, that the
Framers were exclusively concerned with prohibiting torturous punishments.
Holmes and Henry were objecting to the absence of a Bill of Rights, and they
cited to support their objections the unrestrained legislative power to
prescribe punishments for crimes. Certainly we may suppose that they invoked
the specter of the most drastic punishments a legislature might devise.
In addition, it is quite clear that Holmes and Henry focused
wholly upon the necessity to restrain the legislative power. Because they
recognized "that Congress have to ascertain, point out, and determine what
kinds of punishments shall be inflicted on persons convicted of crimes,"
they insisted that Congress must be limited in its power to punish.
Accordingly, they
Page 408 U. S. 261
called for a "constitutional check" that would
ensure that "when we come to punishments, no latitude ought to be left,
nor dependence put on the virtue of representatives." [Footnote 2/3]
The only further evidence of he Framers' intent appears from
the debates in the First Congress on the adoption of the Bill of Rights. [Footnote 2/4] As the Court noted in Weems v. United
States, 217 U. S. 349, 217 U. S. 368 (1910),
Page 408 U. S. 262
the Cruel and Unusual Punishments Clause "received very
little debate." The extent of the discussion, by two opponents of the
Clause in the House of Representatives, was this:
"Mr. SMITH, of South Carolina, objected to the words
'nor cruel and unusual punishments,' the import of them being too
indefinite."
"Mr. LIVERMORE. -- The [Eighth Amendment] seems to
express a great deal of humanity, on which account I have no objection to it;
but as it seems to have no meaning in it, I do not think it necessary. . . . No
cruel and unusual punishment is to be inflicted; it is sometimes necessary to
hang a man, villains often deserve whipping, and perhaps having their ears cut
off; but are we in future to be prevented from inflicting these punishments
because they are cruel? If a more lenient mode of correcting vice and deterring
others from the commission of it could be invented, it would be very prudent in
the Legislature to adopt it; but until we have some security that this will be
done, we ought not to be restrained from making necessary laws by any
declaration of this kind."
"The question was put on the [Eighth Amendment], and it
was agreed to by a considerable majority."
1 Annals of Cong. 754 (1789). [Footnote 2/5]
Livermore thus agreed with Holmes and Henry that the Cruel
and Unusual Punishments Clause imposed a limitation upon the legislative power
to prescribe punishments.
Page 408 U. S. 263
However, in contrast to Holmes and Henry, who were
supporting the Clause, Livermore, opposing it, did not refer to punishments
that were considered barbarous and torturous. Instead, he objected that the
Clause might someday prevent the legislature from inflicting what were then
quite common and, in his view, "necessary" punishments -- death,
whipping, and earcropping. [Footnote 2/6] The only inference to be drawn from Livermore's statement
is that the "considerable majority" was prepared to run that risk. No
member of the House rose to that the Clause was intended merely to
prohibit torture.
Several conclusions thus emerge from the history of the
adoption of the Clause. We know that the Framers' concern was directed
specifically at the exercise of legislative power. They included in the Bill of
Rights a prohibition upon "cruel and unusual punishments" precisely
because the legislature would otherwise have had the unfettered power to
prescribe punishments for crimes. Yet we cannot now know exactly what the
Framers thought "cruel and unusual punishments" were. Certainly they
intended to ban torturous punishments, but the available evidence does not
support the further conclusion that only torturous punishments were to be
outlawed. As Livermore's comments demonstrate, the Framers were well aware that
the reach of the Clause was not limited to the proscription of unspeakable
atrocities. Nor did they intend simply to forbid punishments considered
"cruel and unusual" at the time. The "import" of the Clause
is, indeed, "indefinite," and for good reason. A constitutional
provision
"is enacted, it is true, from
an experience of evils, but its general language
Page 408 U. S. 264
should not, therefore, be necessarily confined to the form
that evil had theretofore taken. Time works changes, brings into existence new
conditions and purposes. Therefore a principle, to be vital, must be capable of
wider application than the mischief which gave it birth."
Weems v. United States, 217
U.S. at 217 U. S. 373.
It was almost 80 years before this Court had occasion to
refer to the Clause. See Pervear v. The Commonwealth, 5 Wall. 475, 72 U. S. 479-480 (1867). These early cases, as the Court
pointed out in Weems v. United States, supra, at 217 U. S. 369, did not undertake to provide "an
exhaustive definition" of "cruel and unusual punishments." Most
of them proceeded primarily by "looking backwards for examples by which to
fix the meaning of the clause," id. at 217 U. S. 377, concluding simply that a punishment would be
"cruel and unusual" if it were similar to punishments considered
"cruel and unusual" at the time the Bill of Rights was adopted. [Footnote 2/7] In Wilkerson v. Utah, 99 U.S.
at 99 U. S. 136, for instance, the Court found it "safe to
affirm that punishments of torture . . . and all others in the same line of
unnecessary cruelty, are forbidden." The "punishments of
torture," which the Court labeled "atrocities," were cases where
the criminal "was embowelled alive, beheaded, and quartered," and
cases "of public dissection . . . and burning alive." Id. at 99 U. S. 135. Similarly, in In re Kemmler,
Page 408 U. S. 265
136 U. S. 436, 136 U. S. 446 (1890), the Court declared that,
"if the punishment prescribed for an offence against
the laws of the State were manifestly cruel and unusual, as burning at the
stake, crucifixion, breaking on the wheel, or the like, it would be the duty of
the courts to adjudge such penalties to be within the constitutional
prohibition."
The Court then observed, commenting upon the passage just
quoted from Wilkerson v. Utah, supra, and applying the
"manifestly cruel and unusual" test, that
"[p]unishments are cruel when they involve torture or a
lingering death; but the punishment of death is not cruel, within the meaning
of that word as used in the Constitution. It implies there something inhuman
and barbarous, something more than the mere extinguishment of life."
136 U.S. at 136 U. S. 447.
Had this "historical" interpretation of the Cruel
and Unusual Punishments Clause prevailed, the Clause would have been
effectively read out of the Bill of Rights. As the Court noted in Weems
v. United States, supra, at 217 U. S. 371, this interpretation led Story to conclude
"that the provision 'would seem
to be wholly unnecessary in a free government, since it is scarcely possible
that any department of such a government should authorize or justify such
atrocious conduct.'"
And Cooley, in his book, Constitutional Limitations, said
the Court,
"apparently in a struggle
between the effect to be given to ancient examples and the inconsequence of a
dread of them in these enlightened times, . . . hesitate[d] to advance definite
views."
Id. at 217 U. S. 375. The result of a judicial application of this
interpretation was not surprising. A state court, for example, upheld the
constitutionality of the whipping post: "In comparison with the barbarities
of quartering, hanging in chains, castration, etc.,' it was easily reduced to
insignificance." Id. at 217 U. S. 377.
Page 408 U. S. 266
But this Court in Weems decisively
repudiated the "historical" interpretation of the Clause. The Court,
returning to the intention of the Framers, "rel[ied] on the conditions
which existed when the Constitution was adopted." And the Framers knew
"that government by the people
instituted by the Constitution would not imitate the conduct of arbitrary
monarchs. The abuse of power might, indeed, be apprehended, but not that it
would be manifested in provisions or practices which would shock the
sensibilities of men."
Id. at 217 U. S. 375. The Clause, then, guards against "[t]he
abuse of power"; contrary to the implications in Wilkerson v.
Utah, supra, and In re Kemmler, supra, the
prohibition of the Clause is not "confine[d] . . . to such penalties and
punishment as were inflicted by the Stuarts." 217 U.S. at 217 U. S. 372. Although opponents of the Bill of Rights
"felt sure that the spirit of liberty could be trusted, and that its ideals
would be represented, not debased, by legislation," ibid., the
Framers disagreed:
"[Patrick] Henry and those who believed as he did would
take no chances. Their predominant political impulse was distrust of power, and
they insisted on constitutional limitations against its abuse. But surely they
intended more than to register a fear of the forms of abuse that went out of
practice with the Stuarts. Surely, their [jealousy] of power had a saner
justification than that. They were men of action, practical and sagacious, not
beset with vain imagining, and it must have come to them that there could be
exercises of cruelty by laws other than those which inflicted bodily pain or
mutilation. With power in a legislature great, if not unlimited, to give
criminal character to the actions of men, with power unlimited to fix terms of
imprisonment with what accompaniments they
Page 408 U. S. 267
might, what more potent instrument of cruelty could be put
into the hands of power? And it was believed that power might be tempted to
cruelty. This was the motive of the clause, and if we are to attribute an
intelligent providence to its advocates we cannot think that it was intended to
prohibit only practices like the [Stuarts',] or to prevent only an exact
repetition of history. We cannot think that the possibility of a coercive
cruelty being exercised through other forms of punishment was overlooked."
Id. at 217 U. S. 372-373.
The Court in Weems thus recognized that this
"restraint upon legislatures" possesses an "expansive and vital
character" that is "essential . . . to the rule of law and the
maintenance of individual freedom.'" Id. at 217 U. S. 376-377. Accordingly, the responsibility lies
with the courts to make certain that the prohibition of the Clause is enforced.
[Footnote 2/8] Referring to cases in which "prominence
[was] given to the power of the legislature to define crimes and their
punishment," the Court said:
"We concede the power in most of its exercises. We
disclaim the right to assert a judgment
Page 408 U. S. 268
against that of the legislature of the expediency of the
laws or the right to oppose the judicial power to the legislative power to
define crimes and fix their punishment, unless that power encounters in its
exercise a constitutional prohibition. In such case, not our discretion, but
our legal duty, strictly defined and imperative in its direction, is
invoked."
Id. at 217 U. S. 378. [Footnote 2/9]
In short, this Court finally adopted the Framers' view of
the Clause as a "constitutional check" to ensure that, "when we
come to punishments, no latitude ought to be left, nor dependence put on the
virtue of representatives." That, indeed, is the only view consonant with
our constitutional form of government. If the judicial conclusion that a
punishment is "cruel and unusual" "depend[ed] upon virtually
unanimous condemnation of the penalty at issue," then,
"[l]ike no other constitutional provision, [the
Clause's] only function would be to legitimize advances already made by the
other departments and opinions already the conventional wisdom."
We know that the Framers did not envision "so narrow a
role for this basic guaranty of human rights." Goldberg & Dershowitz,
Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1782 (1970).
The right to be free of cruel and unusual punishments, like the other
guarantees of the Bill of Rights, "may not be submitted to vote; [it]
depend[s] on the outcome of no elections."
"The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal
principles to be applied
Page 408 U. S. 269
by the courts."
Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 638 (1943).
Judicial enforcement of the Clause, then, cannot be evaded
by invoking the obvious truth that legislatures have the power to prescribe
punishments for crimes. That is precisely the reason the Clause appears in the
Bill of Rights. The difficulty arises, rather, in formulating the "legal
principles to be applied by the courts" when a legislatively prescribed
punishment is challenged as "cruel and unusual." In formulating those
constitutional principles, we must avoid the insertion of "judicial
conception[s] of . . . wisdom or propriety," Weems v. United
States, 217 U.S. at 217 U. S. 379, yet we must not, in the guise of "judicial
restraint," abdicate our fundamental responsibility to enforce the Bill of
Rights. Were we to do so, the "constitution would indeed be as easy of
application as it would be deficient in efficacy and power. Its general
principles would have little value and be converted by precedent into impotent
and lifeless formulas. Rights declared in words might be lost in
reality." Id. at 217 U. S. 373. The Cruel and Unusual Punishments Clause would
become, in short, "little more than good advice." Trop v.
Dulles, 356 U.S. at 356 U. S. 104.
II
Ours would indeed be a simple task were we required merely
to measure a challenged punishment against those that history has long
condemned. That narrow and unwarranted view of the Clause, however, was left
behind with the 19th century. Our task today is more complex. We know
"that the words of the [Clause] are not precise, and that their scope is
not static." We know, therefore, that the Clause "must draw its
meaning from the evolving standards of decency that mark the progress
Page 408 U. S. 270
of a maturing society." Id. at 356 U. S. 100-101. [Footnote 2/10] That knowledge, of course, is but the beginning
of the inquiry.
In Trop v. Dulles, supra, at 356 U. S. 99, it was said that "[t]he question is whether
[a] penalty subjects the individual to a fate forbidden by the principle of
civilized treatment guaranteed by the [Clause]." It was also said that a
challenged punishment must be examined "in light of the basic prohibition
against inhuman treatment" embodied in the Clause. Id. at 356 U. S. 100 n. 32. It was said, finally, that:
"The basic concept underlying the [Clause] is nothing
less than the dignity of man. While the State has the power to punish, the
[Clause] stands to assure that this power be exercised within the limits of
civilized standards."
Id. at 356 U. S. 100. At bottom, then, the Cruel and Unusual
Punishments Clause prohibits the infliction of uncivilized and inhuman
punishments. The State, even as it punishes, must treat its members with respect
for their intrinsic worth as human beings. A punishment is "cruel and
unusual," therefore, if it does not comport with human dignity.
This formulation, of course, does not, of itself, yield
principles for assessing the constitutional validity of particular punishments.
Nevertheless, even though "[t]his Court has had little occasion to give
precise content to the [Clause]," ibid., there are
principles recognized in our cases and inherent in the Clause sufficient to
permit a judicial determination whether a challenged punishment comports with
human dignity.
Page 408 U. S. 271
The primary principle is that a punishment must not be so
severe as to be degrading to the dignity of human beings. Pain, certainly, may
be a factor in the judgment. The infliction of an extremely severe punishment
will often entail physical suffering. See Weems v. United States, 217
U.S. at 217 U. S. 366. [Footnote 2/11] Yet the Framers also knew "that there
could be exercises of cruelty by laws other than those which inflicted bodily
pain or mutilation." Id. at 217 U. S. 372. Even though "[t]here may be involved no
physical mistreatment, no primitive torture," Trop v. Dulles,
supra, at 356 U. S. 101, severe mental pain may be inherent in the
infliction of a particular punishment. See Weems v. United States,
supra, at 217 U. S. 366. [Footnote 2/12] That, indeed, was one of the conclusions
underlying the holding of the plurality in Trop v. Dulles that
the punishment of expatriation violates the Clause. [Footnote 2/13] And the
Page 408 U. S. 272
physical and mental suffering inherent in the punishment
of cadena temporal, see nn. 11-12, supra, was
an obvious basis for the Court's decision in Weems v. United States that
the punishment was "cruel and unusual." [Footnote 2/14]
More than the presence of pain, however, is comprehended in
the judgment that the extreme severity of a punishment makes it degrading to
the dignity of human beings. The barbaric punishments condemned by history,
"punishments which inflict torture, such as the rack, the thumbscrew, the
iron boot, the stretching of limbs and the like," are, of course,
"attended with acute pain and suffering." O'Neil v. Vermont, 144 U. S. 323, 144 U. S. 339 (1892) (Field, J., dissenting). When we consider
why they have been condemned, however, we realize that the pain involved is not
the only reason. The true significance of these punishments is that they treat
Page 408 U. S. 273
members of the human race as nonhumans, as objects to be
toyed with and discarded. They are thus inconsistent with the fundamental
premise of the Clause that even the vilest criminal remains a human being
possessed of common human dignity.
The infliction of an extremely severe punishment, then, like
the one before the Court in Weems v. Unite States, from which
"[n]o circumstance of degradation [was] omitted," 217 U.S. at 217 U. S. 366, may reflect the attitude that the person
punished is not entitled to recognition as a fellow human being. That attitude
may be apparent apart from the severity of the punishment itself. In Louisiana
ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 464 (1947), for example, the unsuccessful
electrocution, although it caused "mental anguish and physical pain,"
was the result of "an unforeseeable accident." Had the failure been
intentional, however, the punishment would have been, like torture, so
degrading and indecent as to amount to a refusal to accord the criminal human
status. Indeed, a punishment may be degrading to human dignity solely because
it is a punishment. A State may not punish a person for being "mentally
ill, or a leper, or . . . afflicted with a venereal disease," or for being
addicted to narcotics. Robinson v. California, 370 U. S. 660, 370 U. S. 666 (1962). To inflict punishment for having a
disease is to treat the individual as a diseased thing, rather than as a sick
human being. That the punishment is not severe, "in the abstract," is
irrelevant; "[e]ven one day in prison would be a cruel and unusual
punishment for the crime' of having a common
cold." Id. at 370 U. S. 667. Finally, of course, a punishment may be
degrading simply by reason of its enormity. A prime example is expatriation, a
"punishment more primitive than torture," Trop v.
Dulles, 356 U.S. at 356 U. S. 101, for it necessarily involves a
Page 408 U. S. 274
denial by society of the individual's existence as a member
of the human community. [Footnote 2/15]
In determining whether a punishment comports with human
dignity, we are aided also by a second principle inherent in the Clause -- that
the State must not arbitrarily inflict a severe punishment. This principle
derives from the notion that the State does not respect human dignity when,
without reason, it inflicts upon some people a severe punishment that it does
not inflict upon others. Indeed, the very words "cruel and unusual
punishments" imply condemnation of the arbitrary infliction of severe
punishments. And, as we now know, the English history of the Clause [Footnote 2/16] reveals a particular concern with the
establishment of a safeguard against arbitrary punishments. See Granucci,
"Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning,
57 Calif.L.Rev. 839, 857-860 (1969). [Footnote 2/17]
Page 408 U. S. 275
This principle has been recognized in our cases. [Footnote 2/18] In Wilkerson v. Utah, 99 U.S.
at 99 U. S. 133-134, the Court reviewed various treatises on
military law in order to demonstrate that, under "the custom of war,"
shooting was a common method of inflicting the punishment of death. On that
basis, the Court concluded:
"Cruel and unusual punishments are forbidden by the
Constitution, but the authorities referred to [treatises on military law] are
quite sufficient to show that the punishment of shooting as a mode of executing
the death penalty for the crime of murder in the first degree is not included
in that
Page 408 U. S. 276
category, within the meaning of the [Clause]. Soldiers
convicted of desertion or other capital military offenses are, in the great
majority of cases, sentenced to be shot, and the ceremony for such occasions is
given in great fulness by the writers upon the subject of courts-martial."
Id. at 99 U. S. 134-135. The Court thus upheld death by shooting, so
far as appears, solely on the ground that it was a common method of execution.
[Footnote 2/19]
As Wilkerson v. Utah suggests, when a
severe punishment is inflicted "in the great majority of cases" in
which it is legally available, there is little likelihood that the State is
inflicting it arbitrarily. If, however, the infliction of a severe punishment
is "something different from that which is generally done" in such
cases, Trop v. Dulles, 356 U.S. at 356 U. S. 101 n. 32, [Footnote 2/20] there is a substantial
Page 408 U. S. 277
likelihood that the State, contrary to the requirements of
regularity and fairness embodied in the Clause, is inflicting the punishment
arbitrarily. This principle is especially important today. There is scant
danger, given the political processes "in an enlightened democracy such as
ours," id. at 356 U. S. 100, that extremely severe punishments will be
widely applied. The more significant function of the Clause, therefore, is to
protect against the danger of their arbitrary infliction.
A third principle inherent in the Clause is that a severe
punishment must not be unacceptable to contemporary society. Rejection by
society, of course, is a strong indication that a severe punishment doe not
comport with human dignity. In applying this principle, however, we must make
certain that the judicial determination is as objective as possible. [Footnote 2/21]
Page 408 U. S. 278
Thus, for example, Weems v. United States, 217
U.S. at 217 U. S. 380, and Trop v. Dulles, 356 U.S.
at 356 U. S. 102-103, suggest that one factor that may be
considered is the existence of the punishment in jurisdictions other than those
before the Court. Wilkerson v. Utah, supra, suggests that
another factor to be considered is the historic usage of the punishment. [Footnote 2/22] Trop v. Dulles, supra, at 356 U. S. 99, combined present acceptance with past usage by
observing that
"the death penalty has been
employed throughout our history, and, in a day when it is still widely
accepted, it cannot be said to violate the constitutional concept of
cruelty."
In Robinson v. California, 370 U.S.
at 370 U. S. 666, which involved the infliction of punishment for
narcotics addiction, the Court went a step further, concluding simply that,
"in the light of contemporary
human knowledge, a law which made a criminal offense of such a disease would
doubtless be universally thought to be an infliction of cruel and unusual
punishment."
The question under this principle, then, is whether there
are objective indicators from which a court can conclude that contemporary
society considers a severe punishment unacceptable. Accordingly, the judicial
Page 408 U. S. 279
task is to review the history of a challenged punishment and
to examine society's present practices with respect to its use. Legislative
authorization, of course, does not establish acceptance. The acceptability of a
severe punishment is measured not by its availability, for it might become so
offensive to society as never to be inflicted, but by its use.
The final principle inherent in the Clause is that a severe
punishment must not be excessive. A punishment is excessive under this
principle if it is unnecessary: the infliction of a severe punishment by the
State cannot comport with human dignity when it is nothing more than the
pointless infliction of suffering. If there is a significantly less severe
punishment adequate to achieve the purposes for which the punishment is
inflicted, cf. Robinson v. California, supra, at 370 U. S. 666; id. at 370 U. S. 677 (DOUGLAS, J., concurring); Trop v.
Dulles, supra, at 356 U. S. 114 (BRENNAN, J., concurring), the punishment
inflicted is unnecessary, and therefore excessive.
This principle first appeared in our cases in Mr. Justice
Field's dissent in O'Neil v. Vermont, 144 U.S. at 144 U. S. 337. [Footnote 2/23] He there took the position that:
"[The Clause] is directed not only against punishments
of the character mentioned [torturous punishments], but against all punishments
which, by
Page 408 U. S. 280
their excessive length or severity, are greatly
disproportioned to the offences charged. The whole inhibition is against that
which is excessive either in the bail required, or fine imposed, or punishment inflicted."
Id. at 144 U. S. 339-340. Although the determination that a severe
punishment is excessive may be grounded in a judgment that it is
disproportionate to the crime, [Footnote 2/24] the more significant basis is that the
punishment serves no penal purpose more effectively than a less severe
punishment. This view of the principle was explicitly recognized by the Court
in Weems v. United States, supra. There the Court, reviewing a
severe punishment inflicted for the falsification of an official record, found
that
"the highest punishment possible for a crime which may
cause the loss of many thousand[s] of dollars, and to prevent which the duty of
the State should be as eager as to prevent the perversion of truth in a public
document, is not greater than that which may be imposed for falsifying a single
item of a public account."
Id. at 217 U. S. 381. Stating that "this contrast shows more
than different exercises of legislative judgment," the Court concluded
that the punishment was unnecessarily severe in view of the purposes for which
it was imposed. Ibid. [Footnote 2/25]
Page 408 U. S. 281
See also Trop v. Dulles, 356
U.S. at 356 U. S. 111-112 (BRENNAN, J., concurring). [Footnote 2/26]
There are, then, four principles by which we may determine
whether a particular punishment is "cruel and unusual." The primary
principle, which I believe supplies the essential predicate for the application
of the others, is that a punishment must not, by its severity, be degrading to
human dignity. The paradigm violation of this principle would be the infliction
of a torturous punishment of the type that the Clause has always prohibited.
Yet "[i]t is unlikely that any State at this moment in
history," Robinson v. California, 370 U.S. at 370 U. S. 666, would pass a law providing for the infliction
of such a punishment. Indeed, no such punishment has ever been before this
Court. The same may be said of the other principles. It is unlikely that this
Court will confront a severe punishment that is obviously inflicted in wholly
arbitrary fashion; no State would engage in a reign of blind terror. Nor is it
likely that this Court will be called upon to review a severe punishment that
is clearly and totally rejected throughout society; no legislature would be
able even to authorize the infliction of such a punishment. Nor, finally, is it
likely that this Court will have to consider a severe punishment that is
patently unnecessary; no State today would inflict a severe punishment knowing
that there was no reason whatever for doing so. In short, we are unlikely to
have occasion to determine that a punishment is fatally offensive under any one
principle.
Page 408 U. S. 282
Since the Bill of Rights was adopted, this Court has
adjudged only three punishments to be within the prohibition of the
Clause. See Weems v. United States, 217 U. S. 349 (1910) (12 years in chains at hard and
painful labor); Trop v. Dulles, 356 U. S. 86 (1958) (expatriation); Robinson v.
California, 370 U. S. 660 (1962) (imprisonment for narcotics
addiction). Each punishment, of course, was degrading to human dignity, but of
none could it be said conclusively that it was fatally offensive under one or
the other of the principles. Rather, these "cruel and unusual punishments"
seriously implicated several of the principles, and it was the application of
the principles in combination that supported the judgment. That, indeed, is not
surprising. The function of these principles, after all, is simply to provide means
by which a court can determine whether a challenged punishment comports with
human dignity. They are, therefore, interrelated, and, in most cases, it will
be their convergence that will justify the conclusion that a punishment is
"cruel and unusual." The test, then, will ordinarily be a cumulative
one: if a punishment is unusually severe, if there is a strong probability that
it is inflicted arbitrarily, if it is substantially rejected by contemporary
society, and if there is no reason to believe that it serves any penal purpose
more effectively than some less severe punishment, then the continued
infliction of that punishment violates the command of the Clause that the State
may not inflict inhuman and uncivilized punishments upon those convicted of
crimes.
III
The punishment challenged in these cases is death. Death, of
course, is a "traditional" punishment, Trop v. Dulles, supra, at 356 U. S. 100, one that "has been employed throughout our
history," id. at 356 U. S. 99, and its constitutional
Page 408 U. S. 283
background is accordingly an appropriate subject of inquiry.
There is, first, a textual consideration raised by the Bill
of Rights itself. The Fifth Amendment declares that if a particular crime is
punishable by death, a person charged with that crime is entitled to certain
procedural protections. [Footnote 2/27] We can thus infer that the Framers recognized
the existence of what was then a common punishment. We cannot, however, make
the further inference that they intended to exempt this particular punishment
from the express prohibition of the Cruel and Unusual Punishment Clause. [Footnote 2/28] Nor is there any indication in the debates on
the Clause that a special exception was to be made for death. If anything, the
indication is to the contrary, for Livermore specifically mentioned death as a
candidate for future proscription under the Clause. See supra at 408 U. S. 262. Finally, it does not advance analysis to insist
that the Framers did not believe that adoption
Page 408 U. S. 284
of the Bill of Rights would immediately prevent the
infliction of the punishment of death; neither did they believe that it would immediately
prevent the infliction of other corporal punishments that, although common at
the time, see n. 6, supra, are now
acknowledged to be impermissible. [Footnote 2/29]
There is also the consideration that this Court has decided
three cases involving constitutional challenges to particular methods of
inflicting this punishment. In Wilkerson v. Utah, 99 U. S. 130 (1879), and In re Kemmler, 136 U. S. 436 (1890), the Court, expressing in both cases
the since-rejected "historical" view of the Clause, see supra at 408 U. S. 264-265, approved death by shooting and death by
electrocution. In Wilkerson, the Court concluded that shooting
was a common method of execution, see supra at 408 U. S. 275-276; [Footnote 2/30] in Kemmler, the Court held
that the Clause did not apply to the States, 136 U.S. at 136 U. S. 447-449. [Footnote 2/31]
Page 408 U. S. 285
In Louisiana ex rel. Francis v. Resweber, supra, the
Court approved a second attempt at electrocution after the first had failed. It
was said that "[t]he Fourteenth [Amendment] would prohibit by its due
process clause execution by a state in a cruel manner," 329 U.S. at 329 U. S. 463, but that the abortive attempt did not make the
"subsequent execution any more cruel in the constitutional sense than any
other execution," id. at 329 U. S. 464. [Footnote 2/32] These three decisions thus reveal that the
Court, while ruling upon various methods of inflicting death, has assumed in
the past that death was a constitutionally permissible punishment. [Footnote 2/33] Past assumptions, however, are not sufficient
to limit the scope of our examination of this punishment today. The
constitutionality of death itself under the Cruel and Unusual Punishments
Clause is before this Court for the first time; we cannot avoid the question by
recalling past cases that never directly considered it.
The question, then, is whether the deliberate infliction of
death is today consistent with the command of the Clause that the State may not
inflict punishments that do not comport with human dignity. I will analyze the
punishment of death in terms of the principles
Page 408 U. S. 286
set out above and the cumulative test to which they lead: it
is a denial of human dignity for the State arbitrarily to subject a person to
an unusually severe punishment that society has indicated it does not regard as
acceptable, and that cannot be shown to serve any penal purpose more
effectively than a significantly less drastic punishment. Under these
principles and this test, death is today a "cruel and unusual"
punishment. Death is a unique punishment in the United States. In a society
that so strongly affirms the sanctity of life, not surprisingly, the common
view is that death is the ultimate sanction. This natural human feeling appears
all about us. There has been no national debate about punishment, in general or
by imprisonment comparable to the debate about the punishment of death. No
other punishment has been so continuously restricted, see infra at 408 U. S. 296-298, nor has any State yet abolished prisons, as
some have abolished this punishment. And those States that still inflict death
reserve it for the most heinous crimes. Juries, of course, have always treated
death cases differently, as have governors exercising their commutation powers.
Criminal defendants are of the same view.
"As all practicing lawyers know who have defended
persons charged with capital offenses, often the only goal possible is to avoid
the death penalty."
Griffin v. Illinois, 351 U. S. 12, 351 U. S. 28 (1956) (Burton and Minton, JJ., dissenting).
Some legislatures have required particular procedures, such as two-stage trials
and automatic appeals, applicable only in death cases.
"It is the universal experience in the administration
of criminal justice that those charged with capital offenses are granted
special considerations."
Ibid. See
Williams v. Florida, 399 U. S. 78, 399 U. S. 103 (1970) (all States require juries of 12 in
death cases). This Court, too, almost
Page 408 U. S. 287
always treats death cases as a class apart. [Footnote 2/34] And the unfortunate effect of this punishment
upon the functioning of the judicial process is well known; no other punishment
has a similar effect.
The only explanation for the uniqueness of death is its
extreme severity. Death is today an unusually severe punishment, unusual in its
pain, in its finality, and in its enormity. No other existing punishment is
comparable to death in terms of physical and mental suffering. Although our
information is not conclusive, it appears that there is no method available
that guarantees an immediate and painless death. [Footnote 2/35] Since the discontinuance
Page 408 U. S. 288
of flogging as a constitutionally permissible
punishment, Jackson v. Bishop, 404 F.2d 571 (CA8 1968), death
remains as the only punishment that may involve the conscious infliction of
physical pain. In addition, we know that mental pain is an inseparable part of
our practice of punishing criminals by death, for the prospect of pending
execution exacts a frightful toll during the inevitable long wait between the
imposition of sentence and the actual infliction of death. Cf. Ex parte
Medley, 134 U. S. 160, 134 U. S. 172 (1890). As the California Supreme Court
pointed out, "the process of carrying out a verdict of death is often so
degrading and brutalizing to the human spirit as to constitute psychological
torture." People v. Anderson, 6 Cal. 3d 28, 649, 493 P.2d 880, 894 (1972). [Footnote 2/36] Indeed, as Mr. Justice Frankfurter noted,
"the onset of insanity while awaiting
Page 408 U. S. 289
execution of a death sentence is not a rare
phenomenon." Solesbee v. Balkcom, 339 U. S. 9, 339 U. S. 14 (1950) (dissenting opinion). The "fate
of ever-increasing fear and distress" to which the expatriate is
subjected, Trop v. Dulles, 356 U.S. at 356 U. S. 102, can only exist to a greater degree for a person
confined in prison awaiting death. [Footnote 2/37]
The unusual severity of death is manifested most clearly in
its finality and enormity. Death, in these respects, is in a class by itself.
Expatriation, for example, is a punishment that "destroys for the
individual the political existence that was centuries in the development,"
that "strips the citizen of his status in the national and international
political community," and that puts "[h]is very existence" in
jeopardy. Expatriation thus inherently entails "the total destruction of
the individual's status in organized society." Id. at
101. "In short, the expatriate has lost the right to have
rights." Id. at 102. Yet, demonstrably, expatriation is
not "a fate worse than death." Id. at 125
(Frankfurter, J., dissenting). [Footnote 2/38] Although death, like expatriation, destroys the
Page 408 U. S. 290
individual's "political existence" and his
"status in organized society," it does more, for, unlike
expatriation, death also destroys "[h]is very existence." There is,
too, at least the possibility that the expatriate will, in the future, regain
"the right to have rights." Death forecloses even that possibility.
Death is truly an awesome punishment. The calculated killing
of a human being by the State involves, by its very nature, a denial of the
executed person's humanity. The contrast with the plight of a person punished
by imprisonment is evident. An individual in prison does not lose "the
right to have rights." A prisoner retains, for example, the constitutional
rights to the free exercise of religion, to be free of cruel and unusual
punishments, and to treatment as a "person" for purposes of due
process of law and the equal protection of the laws. A prisoner remains a
member of the human family. Moreover, he retains the right of access to the courts.
His punishment is not irrevocable. Apart from the common charge, grounded upon
the recognition of human fallibility, that the punishment of death must
inevitably be inflicted upon innocent men, we know that death has been the lot
of men whose convictions were unconstitutionally secured in view of later,
retroactively applied, holdings of this Court. The punishment itself may have
been unconstitutionally inflicted, see Witherspoon v. Illinois, 391 U. S. 510 (1968), yet the finality of death precludes
relief. An executed person has indeed "lost the right to have
rights." As one 19th century proponent of punishing criminals by death
declared,
"When a man is hung, there is an end of our relations
with him. His execution is a way of saying, 'You are not fit for this world,
take your chance elsewhere.' [Footnote 2/39] "
Page 408 U. S. 291
In comparison to all other punishments today, then, the
deliberate extinguishment of human life by the State is uniquely degrading to
human dignity. I would not hesitate to hold, on that ground alone, that death
is today a "cruel and unusual" punishment, were it not that death is
a punishment of longstanding usage and acceptance in this country. I therefore
turn to the second principle -- that the State may not arbitrarily inflict an
unusually severe punishment.
The outstanding characteristic of our present practice of
punishing criminals by death is the infrequency with which we resort to it. The
evidence is conclusive that death is not the ordinary punishment for any crime.
There has been a steady decline in the infliction of this
punishment in every decade since the 1930's, the earliest period for which
accurate statistics are available. In the 1930's, executions averaged 167 per
year; in the 1940's, the average was 128; in the 1950's, it was 72; and in the
years 1960-1962, it was 48. There have been a total of 46 executions since
then, 36 of them in 1963-1964. [Footnote 2/40] Yet our population and the number of capital
crimes committed have increased greatly over the past four decades. The
contemporary rarity of the infliction of this punishment is thus the end result
of a long-continued decline. That rarity is plainly revealed by an examination
of the years 1961-1970, the last 10-year period for which statistics are
available. During that time, an average of 106 death sentences
Page 408 U. S. 292
was imposed each year. [Footnote 2/41] Not nearly that number, however, could be
carried out, for many were precluded by commutations to life or a term of
Years, [Footnote 2/42] transfers to mental institutions because of
insanity, [Footnote 2/43] resentences to life or a term of years, grants
of new trials and orders for resentencing, dismissals of indictments and
reversals of convictions, and deaths by suicide and natural causes. [Footnote 2/44] On January 1, 1961, the death row population
was 21; on December 31, 1970, it was 608; during that span, there were 135
executions. [Footnote 2/45] Consequently, had the 389 additions to death
row also been executed, the annual average would have been 52. [Footnote 2/46] In short, the country
Page 408 U. S. 293
might, at most, have executed one criminal each week. In
fact, of course, far fewer were executed. Even before the moratorium on
executions began in 1967, executions totaled only 42 in 1961 and 47 in 1962, an
average of less than one per week; the number dwindled to 21 in 1963, to 15 in
1964, and to seven in 1965; in 1966, there was one execution, and in 1967,
there were two. [Footnote 2/47]
When a country of over 200 million people inflicts an
unusually severe punishment no more than 50 times a year, the inference is
strong that the punishment is not being regularly and fairly applied. To dispel
it would indeed require a clear showing of nonarbitrary infliction.
Although there are no exact figures available, we know that
thousands of murders and rapes are committed annually in States where death is
an authorized punishment for those crimes. However the rate of infliction is
characterized -- as "freakishly" or "spectacularly" rare,
or simply as rare -- it would take the purest sophistry to deny that death is
inflicted in only a minute fraction of these cases. How much rarer, after all,
could the infliction of death be?
When the punishment of death is inflicted in a trivial
number of the cases in which it is legally available, the conclusion is
virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks
of little more than a lottery system. The States claim, however, that this
rarity is evidence not of arbitrariness, but of informed selectivity: death is
inflicted, they say, only in "extreme" cases.
Informed selectivity, of course, is a value not to be
denigrated. Yet presumably the States could make precisely the same claim if
there were 10 executions per
Page 408 U. S. 294
year, or five, or even if there were but one. That there may
be as many as 50 per year does not strengthen the claim. When the rate of
infliction is at this low level, it is highly implausible that only the worst
criminals or the criminals who commit the worst crimes are selected for this
punishment. No one has yet suggested a rational basis that could differentiate
in those terms the few who die from the many who go to prison. Crimes and criminals
simply do not admit of a distinction that can be drawn so finely as to explain,
on that ground, the execution of such a tiny sample of those eligible.
Certainly the laws that provide for this punishment do not attempt to draw that
distinction; all cases to which the laws apply are necessarily
"extreme." Nor is the distinction credible in fact. If, for example,
petitioner Furman or his crime illustrates the "extreme," then nearly
all murderers and their murders are also "extreme." [Footnote 2/48] Furthermore, our procedures in death cases,
Page 408 U. S. 295
rather than resulting in the selection of
"extreme" cases for this punishment, actually sanction an arbitrary selection.
For this Court has held that juries may, as they do, make the decision whether
to impose a death sentence wholly unguided by standards governing that
decision. McGautha v. California, 402 U. S. 183, 402 U. S. 196-208 (1971). In other words, our procedures are
not constructed to guard against the totally capricious selection of criminals
for the punishment of death.
Although it is difficult to imagine what further facts would
be necessary in order to prove that death is, as my Brother STEWART puts it,
"wantonly and . . . freakishly" inflicted, I need not conclude that
arbitrary infliction is patently obvious. I am not considering this punishment
by the isolated light of one principle. The probability of arbitrariness is
sufficiently substantial that it can be relied upon, in combination with the
other principles, in reaching a judgment on the constitutionality of this
punishment.
When there is a strong probability that an unusually severe
and degrading punishment is being inflicted arbitrarily, we may well expect
that society will disapprove of its infliction. I turn, therefore, to the third
principle. An examination of the history and present operation of the American
practice of punishing criminals by death reveals that this punishment has been
almost totally rejected by contemporary society.
I cannot add to my Brother MARSHALL's comprehensive
treatment of the English and American history of
Page 408 U. S. 296
this punishment. I emphasize, however, one significant
conclusion that emerges from that history. From the beginning of our Nation,
the punishment of death has stirred acute public controversy. Although
pragmatic arguments for and against the punishment have been frequently
advanced, this longstanding and heated controversy cannot be explained solely
as the result of differences over the practical wisdom of a particular
government policy. At bottom, the battle has been waged on moral grounds. The
country has debated whether a society for which the dignity of the individual
is the supreme value can, without a fundamental inconsistency, follow the
practice of deliberately putting some of its members to death. In the United
States, as in other nations of the western world,
the struggle about this punishment has been one between
ancient and deeply rooted beliefs in retribution, atonement or vengeance, on
the one hand, and, on the other, beliefs in the personal value and dignity of
the common man that were born of the democratic movement of the eighteenth
century, as well as beliefs in the scientific approach to an understanding of
the motive forces of human conduct, which are the result of the growth of the sciences
of behavior during the nineteenth and twentieth centuries. [Footnote 2/49]
It is this essentially moral conflict that forms the
backdrop for the past changes in, and the present operation of, our system of
imposing death as a punishment for crime.
Our practice of punishing criminals by death has changed
greatly over the years. One significant change has been in our methods of
inflicting death. Although this country never embraced the more violent and
repulsive methods employed in England, we did for a long time rely almost
exclusively upon the gallows and the firing squad. Since the development of the
supposedly
Page 408 U. S. 297
more humane methods of electrocution late in the 19th
century and lethal gas in the 20th, however, hanging and shooting have
virtually ceased. [Footnote 2/50] Our concern for decency and human dignity,
moreover, has compelled changes in the circumstances surrounding the execution
itself. No longer does our society countenance the spectacle of public
executions, once thought desirable as a deterrent to criminal behavior by
others. Today we reject public executions as debasing and brutalizing to us
all.
Also significant is the drastic decrease in the crimes for
which the punishment of death is actually inflicted. While esoteric capital
crimes remain on the books, since 1930, murder and rape have accounted for
nearly 99% of the total executions, and murder alone for about 87%. [Footnote 2/51] In addition, the crime of capital murder has
itself been limited. As the Court noted in McGautha v. California, 402
U.S. at 402 U. S. 198, there was in this country a "rebellion
against the common law rule imposing a mandatory death sentence on all
convicted murderers." Initially, that rebellion resulted in legislative
definitions that distinguished between degrees of murder, retaining the
mandatory death sentence only for murder in the first degree. Yet
"[t]his new legislative criterion for isolating crimes
appropriately punishable by death soon proved as unsuccessful as the concept of
'malice aforethought,'"
ibid., the
common law means of separating murder from manslaughter. Not only was the
distinction between degrees of murder confusing and uncertain in practice, but,
even in clear cases of first-degree murder, juries continued to take the law
into
Page 408 U. S. 298
their own hands: if they felt that death was an
inappropriate punishment, "they simply refused to convict of the capital
offense." Id. at 402 U. S. 199. The phenomenon of jury nullification thus
remained to counteract the rigors of mandatory death sentences. Bowing to
reality,
"legislatures did not try, as before,
to refine further the definition of capital homicides. Instead, they adopted
the method of forthrightly granting juries the discretion which they had been
exercising in fact."
Ibid. In
consequence, virtually all death sentences today are discretionarily imposed.
Finally, it is significant that nine States no longer inflict the punishment of
death under any circumstances, [Footnote 2/52] and five others have restricted it to extremely
rare crimes. [Footnote 2/53]
Page 408 U. S. 299
Thus, although "the death penalty has been employed
throughout our history," Trop v. Dulles, 356 U.S.
at 356 U. S. 99, in fact the history of this punishment is one of
successive restriction. What was once a common punishment has become, in the
context of a continuing moral debate, increasingly rare. The evolution of this
punishment evidences not that it is an inevitable part of the American scene,
but that it has proved progressively more troublesome to the national
conscience. The result of this movement is our current system of administering
the punishment, under which death sentences are rarely imposed and death is
even more rarely inflicted. It is, of course, "We, the People" who
are responsible for the rarity both of the imposition and the carrying out of
this punishment. Juries, "express[ing] the conscience of the community on
the ultimate question of life or death," Witherspoon v. Illinois, 391
U.S. at 391 U. S. 519, have been able to bring themselves to vote for
death in a mere 100 or so cases among the thousands tried each year where the
punishment is available. Governors, elected by and acting for us, have
regularly commuted a substantial number of those sentences. And it is our
society that insists upon due process of law to the end that no person will be
unjustly put to death, thus ensuring that many more of those sentences will not
be carried out. In sum, we have made death a rare punishment today.
The progressive decline in, and the current rarity of, the infliction
of death demonstrate that our society seriously questions the appropriateness
of this punishment today. The States point out that many legislatures authorize
death as the punishment for certain crimes, and that substantial segments of
the public, as reflected in opinion polls and referendum votes, continue to
support it. Yet the availability of this punishment through statutory
authorization, as well as the polls and referenda,
Page 408 U. S. 300
which amount simply to approval of that authorization,
simply underscores the extent to which our society has, in fact, rejected this
punishment. When an unusually severe punishment is authorized for wide-scale
application but not, because of society's refusal, inflicted save in a few
instances, the inference is compelling that there is a deep-seated reluctance
to inflict it. Indeed, the likelihood is great that the punishment is tolerated
only because of its disuse. The objective indicator of society's view of an
unusually severe punishment is what society does with it, and today society
will inflict death upon only a small sample of the eligible criminals.
Rejection could hardly be more complete without becoming absolute. At the very
least, I must conclude that contemporary society views this punishment with
substantial doubt.
The final principle to be considered is that an unusually
severe and degrading punishment may not be excessive in view of the purposes
for which it is inflicted. This principle, too, is related to the others. When
there is a strong probability that the State is arbitrarily inflicting an
unusually severe punishment that is subject to grave societal doubts, it is
likely also that the punishment cannot be shown to be serving any penal purpose
that could not be served equally well by some less severe punishment.
The States' primary claim is that death is a necessary
punishment because it prevents the commission of capital crimes more
effectively than any less severe punishment. The first part of this claim is
that the infliction of death is necessary to stop the individuals executed from
committing further crimes. The sufficient answer to this is that, if a criminal
convicted of a capital crime poses a danger to society, effective
administration of the State's pardon and parole laws can delay or deny his
release from prison, and techniques of isolation can eliminate
Page 408 U. S. 301
or minimize the danger while he remains confined. The more
significant argument is that the threat of death prevents the commission of
capital crimes because it deters potential criminals who would not be deterred
by the threat of imprisonment. The argument is not based upon evidence that the
threat of death is a superior deterrent. Indeed, as my Brother MARSHALL
establishes, the available evidence uniformly indicates, although it does not
conclusively prove, that the threat of death has no greater deterrent effect
than the threat of imprisonment. The States argue, however, that they are
entitled to rely upon common human experience, and that experience, they say,
supports the conclusion that death must be a more effective deterrent than any
less severe punishment. Because people fear death the most, the argument runs,
the threat of death must be the greatest deterrent.
It is important to focus upon the precise import of this
argument. It is not denied that many, and probably most, capital crimes cannot
be deterred by the threat of punishment. Thus, the argument can apply only to
those who think rationally about the commission of capital crimes. Particularly
is that true when the potential criminal, under this argument, must not only
consider the risk of punishment, but also distinguish between two possible
punishments. The concern, then, is with a particular type of potential
criminal, the rational person who will commit a capital crime knowing that the
punishment is long-term imprisonment, which may well be for the rest of his
life, but will not commit the crime knowing that the punishment is death. On
the face of it, the assumption that such persons exist is implausible.
In any event, this argument cannot be appraised in the
abstract. We are not presented with the theoretical question whether, under any
imaginable circumstances, the
Page 408 U. S. 302
threat of death might be a greater deterrent to the
commission of capital crimes than the threat of imprisonment. We are concerned
with the practice of punishing criminals by death as it exists in the United
States today. Proponents of this argument necessarily admit that its validity
depends upon the existence of a system in which the punishment of death is
invariably and swiftly imposed. Our system, of course, satisfies neither
condition. A rational person contemplating a murder or rape is confronted not
with the certainty of a speedy death, but with the slightest possibility that
he will be executed in the distant future. The risk of death is remote and
improbable; in contrast, the risk of long-term imprisonment is near and great.
In short, whatever the speculative validity of the assumption that the threat
of death is a superior deterrent, there is no reason to believe that, as
currently administered, the punishment of death is necessary to deter the
commission of capital crimes. Whatever might be the case were all or
substantially all eligible criminals quickly put to death, unverifiable
possibilities are an insufficient basis upon which to conclude that the threat
of death today has any greater deterrent efficacy than the threat of
imprisonment. [Footnote 2/54]
Page 408 U. S. 303
There is, however, another aspect to the argument that the
punishment of death is necessary for the protection of society. The infliction
of death, the States urge, serves to manifest the community's outrage at the
commission of the crime. It is, they say, a concrete public expression of moral
indignation that inculcates respect for the law and helps assure a more
peaceful community. Moreover, we are told, not only does the punishment of
death exert this widespread moralizing influence upon community values, it also
satisfies the popular demand for grievous condemnation of abhorrent crimes, and
thus prevents disorder, lynching, and attempts by private citizens to take the
law into their own hands.
The question, however, is not whether death serves these
supposed purposes of punishment, but whether death serves them more effectively
than imprisonment. There is no evidence whatever that utilization of
imprisonment, rather than death, encourages private blood feuds and other
disorders. Surely if there were such a danger, the execution of a handful of
criminals each year would not prevent it. The assertion that death alone is a
sufficiently emphatic denunciation for capital crimes suffers from the same
defect. If capital crimes require the punishment of death in order to provide
moral reinforcement for the basic values of the community, those values can
only be undermined when death is so rarely inflicted upon the criminals who
commit the crimes. Furthermore, it is certainly doubtful that the infliction of
death by the State does, in fact, strengthen the community's moral code; if the
deliberate extinguishment of human life has any effect at all, it more likely
tends to lower our respect for life and brutalize our values. That, after all,
is why we no longer carry out public executions. In any event, this claim
simply means that one purpose of punishment is to indicate social disapproval
of crime. To serve that purpose, our
Page 408 U. S. 304
laws distribute punishments according to the gravity of
crimes, and punish more severely the crimes society regards as more serious.
That purpose cannot justify any particular punishment as the upper limit of
severity.
There is, then, no substantial reason to believe that the
punishment of death, as currently administered, is necessary for the protection
of society. The only other purpose suggested, one that is independent of
protection for society, is retribution. Shortly stated, retribution in this
context means that criminals are put to death because they deserve it.
Although it is difficult to believe that any State today
wishes to proclaim adherence to "naked vengeance," Trop v.
Dulles, 356 U.S. at 356 U. S. 112 (BRENNAN, J., concurring), the States
claim, in reliance upon its statutory authorization, that death is the only fit
punishment for capital crimes and that this retributive purpose justifies its
infliction. In the past, judged by its statutory authorization, death was
considered the only fit punishment for the crime of forgery, for the first
federal criminal statute provided a mandatory death penalty for that crime. Act
of April 30, 1790, § 14, 1 Stat. 115. Obviously, concepts of justice change; no
immutable moral order requires death for murderers and rapists. The claim that
death is a just punishment necessarily refers to the existence of certain
public beliefs. The claim must be that, for capital crimes, death alone
comports with society's notion of proper punishment. As administered today,
however, the punishment of death cannot be justified as a necessary means of
exacting retribution from criminals. When the overwhelming number af criminals
who commit capital crimes go to prison, it cannot be concluded that death
serves the purpose of retribution more effectively than imprisonment. The
asserted public belief that murderers and rapists deserve to die is flatly
inconsistent with the execution of a random
Page 408 U. S. 305
few. As the history of the punishment of death in this
country shows, our society wishes to prevent crime; we have no desire to kill
criminals simply to get even with them.
In sum, the punishment of death is inconsistent with all
four principles: death is an unusually severe and degrading punishment; there
is a strong probability that it is inflicted arbitrarily; its rejection by
contemporary society is virtually total; and there is no reason to believe that
it serves any penal purpose more effectively than the less severe punishment of
imprisonment. The function of these principles is to enable a court to
determine whether a punishment comports with human dignity. Death, quite
simply, does not.
IV
When this country was founded, memories of the Stuart
horrors were fresh and severe corporal punishments were common. Death was not
then a unique punishment. The practice of punishing criminals by death,
moreover, was widespread and by and large acceptable to society. Indeed,
without developed prison systems, there was frequently no workable alternative.
Since that time, successive restrictions, imposed against the background of a
continuing moral controversy, have drastically curtailed the use of this
punishment. Today death is a uniquely and unusually severe punishment. When
examined by the principles applicable under the Cruel and Unusual Punishment
Clause, death stands condemned as fatally offensive to human dignity. The
punishment of death is therefore "cruel and unusual," and the States
may no longer inflict it as a punishment for crimes. Rather than kill an
arbitrary handful of criminals each year, the States will confine them in
prison.
"The State thereby suffers nothing and loses no power.
The purpose of punishment is fulfilled, crime
Page 408 U. S. 306
is repressed by penalties of just, not tormenting, severity,
its repetition is prevented, and hope is given for the reformation of the
criminal."
Weems v. United States, 217
U.S. at 217 U. S. 381.
I concur in the judgments of the Court.
The Eighth Amendment provides:
"Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
(Emphasis added.) The Cruel and Unusual Punishments Clause
is fully applicable to the States through the Due Process Clause of the
Fourteenth Amendment. Robinson v. California, 370 U. S. 660 (1962); Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 342 (1963); Malloy v. Hogan, 378 U. S. 1, 378 U. S. 6 n. 6 (1964); Powell v. Texas, 392 U. S. 514 (1968).
Henry continued:
"But Congress may introduce the practice of the civil
law, in preference to that of the common law. They may introduce the practice
of France, Spain, and Germany -- of torturing, to extort a confession of the
crime. They will say that they might as well draw examples from those countries
as from Great Britain, and they will tell you that there is such a necessity of
strengthening the arm of government that they must have a criminal equity, and
extort confession by torture, in order to punish with still more relentless
severity. We are then lost and undone."
3 J. Elliot's Debates 447-448 (2d ed. 1876). Although these
remarks have been cited as evidence that the Framers considered only torturous
punishments to be "cruel and unusual," it is obvious that Henry was
referring to the use of torture for the purpose of eliciting confessions from suspected
criminals. Indeed, in the ensuing colloquy, see n. 3, infra. George
Mason responded that the use of torture was prohibited by the right against
self-incrimination contained in the Virginia Bill of Rights.
It is significant that the response to Henry's plea, by
George Nicholas, was simply that a Bill of Rights would be ineffective as a
means of restraining the legislative power to prescribe punishments:
"But the gentleman says that, by this Constitution,
they have power to make laws to define crimes and prescribe punishments, and
that, consequently, we are not free from torture. . . . If we had no security
against torture but our [Virginia] declaration of rights, we might be tortured
tomorrow, for it has been repeatedly infringed and disregarded."
3 J. Elliot's Debates, supra, at 451.
George Mason misinterpreted Nicholas' response to Henry:
"Mr. GEORGE MASON replied that the worthy gentleman was
mistaken in his assertion that the [Virginia] bill of rights did not prohibit
torture, for that one clause expressly provided that no man can give evidence
against himself, and that the worthy gentleman must know that, in those
countries where torture is used, evidence was extorted from the criminal
himself. Another clause of the bill of rights provided that no cruel and
unusual punishments shall be inflicted; therefore, torture was included in the
prohibition."
Id. at
452. Nicholas concluded the colloquy by making his point again:
"Mr. NICHOLAS acknowledged the [Virginia] bill of
rights to contain that prohibition, and that the gentleman was right with
respect to the practice of extorting confession from the criminal in those
countries where torture is used; but still he saw no security arising from the
bill of rights as separate from the Constitution, for that it had been
frequently violated with impunity."
Ibid. There
was thus no denial that the legislative power should be restrained; the dispute
was whether a Bill of Rights would provide a realistic restraint. The Framers,
obviously, believed it would.
We have not been referred to any mention of the Cruel and
Unusual Punishments Clause in the debates of the state legislatures on
ratification of the Bill of Rights.
The elided portion of Livermore's remarks reads:
"What is meant by the terms excessive bail? Who are to
be the judges? What is understood by excessive fines? It lies with the court to
determine."
Since Livermore did not ask similar rhetorical questions
about the Cruel and Unusual Punishments Clause, it is unclear whether he
included the Clause in his objection that the Eighth Amendment "seems to
have no meaning in it."
Indeed, the first federal criminal statute, enacted by the
First Congress, prescribed 39 lashes for larceny and for receiving stolen
goods, and one hour in the pillory for perjury. Act of Apr. 30, 1790, §§ 16-18,
1 Stat. 116.
Many of the state courts, "feeling constrained thereto
by the incidences of history," Weems v. United States, 217 U. S. 349, 217 U. S. 376 (1910), were apparently taking the same
position. One court
"expressed the opinion that
the provision did not apply to punishment by 'fine or imprisonment or both, but
such as that inflicted at the whipping post, in the pillory, burning at the
stake, breaking on the wheel,' etc."
Ibid. Another
court
"said that, ordinarily, the
terms imply something inhuman and barbarous, torture and the like. . . . Other
cases . . . selected certain tyrannical acts of the English monarchs as
illustrating the meaning of the clause and the extent of its prohibition."
Id. at 217 U. S. 368.
The Court had earlier emphasized this point in In re
Kemmler, 136 U. S. 436 (1890), even while stating the narrow,
"historical" interpretation of the Clause:
"This [English] Declaration of Rights had reference to
the acts of the executive and judicial departments
of the government of England; but the language in question as used in the
constitution of the State of New York was intended particularly to operate upon
the legislature of the State, to whose control the punishment
of crime was almost wholly confided. So that, if the punishment prescribed for
an offence against the laws of the State were manifestly cruel and unusual, . .
. it would be the duty of the courts to adjudge such penalties
to be within the constitutional prohibition. And we think this equally true of
the [Clause], in its application to Congress."
Id. at 136 U. S. 446-447 (emphasis added).
Indeed, the Court in Weems refused even to comment
upon some decisions from state courts because they were "based upon
sentences of courts, not upon the constitutional validity of laws." 217
U.S. at 217 U. S. 377.
The Clause
"may be therefore progressive,
and is not fastened to the obsolete, but may acquire meaning as public opinion
becomes enlightened by a humane justice."
Weems v. United States, 217
U.S. at 217 U. S. 378.
"It may be that even the cruelty of pain is not
omitted. He must bear a chain night and day. He is condemned to painful as well
as hard labor. What painful labor may mean we have no exact measure. It must be
something more than hard labor. It may be hard labor pressed to the point of
pain."
"His prison bars and chains are removed, it is true,
after twelve years, but he goes from them to a perpetual limitation of his
liberty. He is forever kept under the shadow of his crime, forever kept within
voice and view of the criminal magistrate, not being able to change his domicil
without giving notice to the 'authority immediately in charge of his
surveillance,' and without permission in writing. He may not seek, even in
other scenes and among other people, to retrieve his fall from rectitude. Even
that hope is taken from him, and he is subject to tormenting regulations that,
if not so tangible as iron bars and stone walls, oppress as much by their
continuity, and deprive of essential liberty."
"This punishment is offensive to cardinal principles
for which the Constitution stands. It subjects the individual to a fate of
ever-increasing fear and distress. He knows not what discriminations may be
established against him, what proscriptions may be directed against him, and
when and for what cause his existence in his native land may be terminated. He
may be subject to banishment, a fate universally decried by civilized people.
He is stateless, a condition deplored in the international community of
democracies. It is no answer to suggest that all the disastrous consequences of
this fate may not be brought to bear on a stateless person. The threat makes
the punishment obnoxious."
Trop v. Dulles, 356 U. S. 86, 356 U. S. 102 (1958). Cf. id. at 356 U. S. 110-111 (BRENNAN, J., concurring):
"[I]t can be supposed that the consequences of greatest
weight, in terms of ultimate impact on the petitioner, are unknown and
unknowable. Indeed, in truth, he may live out his life with but minor
inconvenience. . . . Nevertheless, it cannot be denied that the impact of
expatriation -- especially where statelessness is the upshot -- may be severe.
Expatriation, in this respect, constitutes an especially demoralizing sanction.
The uncertainty, and the consequent psychological hurt, which must accompany
one who becomes an outcast in his own land must be reckoned a substantial
factor in the ultimate judgment."
"It is cruel in its excess of imprisonment and that
which accompanies and follows imprisonment. It is unusual in its character. Its
punishments come under the condemnation of the bill of rights, both on account
of their degree and kind."
Weems v. United States, 217
U.S. at 217 U. S. 377.
"There may be involved no physical mistreatment, no
primitive torture. There is, instead, the total destruction of the individual's
status in organized society. It is a form of punishment more primitive than
torture, for it destroys for the individual the political existence that was
centuries in the development. The punishment strips the citizen of his status
in the national and international political community. His very existence is at
the sufferance of the country in which he happens to find himself. While any
one country may accord him some rights, and presumably, as long as he remained
in this country, he would enjoy the limited rights of an alien, no country need
do so, because he is stateless. Furthermore, his enjoyment of even the limited
rights of an alien might be subject to termination at any time by reason of
deportation. In short, the expatriate has lost the right to have rights."
Trop v. Dulles, 356
U.S. at 356 U. S. 101-102.
"The phrase in our Constitution was taken directly from
the English Declaration of Rights of [1689]. . . ." Id. at 356 U. S. 100.
The specific incident giving rise to the provision was the
perjury trial of Titus Oates in 1685.
"None of the punishments inflicted upon Oates amounted
to torture. . . . In the context of the Oates' case, 'cruel and unusual' seems
to have meant a severe punishment unauthorized by statute and not within the
jurisdiction of the court to impose."
Granucci, "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 859 (1969). Thus,
"[t]he irregularity and anomaly of Oates' treatment was extreme."
Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83
Harv.L.Rev. 1773, 1789 n. 74 (1970). Although the English provision was
intended to restrain the judicial and executive power, see n.
8, supra, the principle is, of course, fully applicable under
our Clause, which is primarily a restraint upon the legislative power.
In a case from the Philippine Territory, the Court struck
down a punishment that "ha[d] no fellow in American
legislation." Weems v. United States, 217 U.S. at 217 U. S. 377. After examining the punishments imposed, under
both United States and Philippine law, for similar as well as more serious
crimes, id. at 217 U. S. 380-381, the Court declared that the
"contrast"
"exhibit[ed] a difference
between unrestrained power and that which is exercised under the spirit of
constitutional limitations formed to establish justice,"
id. at 217 U. S. 381. And in Trop v. Dulles, supra, in
which a law of Congress punishing wartime desertion by expatriation was held
unconstitutional, it was emphasized that "[t]he civilized nations of the
world are in virtual unanimity that statelessness is not to be imposed as
punishment for crime." Id. at 356 U. S. 102. When a severe punishment is not inflicted
elsewhere, or when more serious crimes are punished less severely, there is a
strong inference that the State is exercising arbitrary, "unrestrained
power."
In Weems v. United States, supra, at 217 U. S. 369-370, the Court summarized the holding of Wilkerson
v. Utah, 99 U. S. 130 (1879), as follows:
"The court pointed out that death was an usual
punishment for murder, that it prevailed in the Territory for many years, and
was inflicted by shooting, also that that mode of execution was usual under
military law. It was hence concluded that it was not forbidden by the
Constitution of the United States as cruel or unusual."
It was said in Trop v. Dulles, supra, at 356 U. S. 100-101, n. 32, that,
"[o]n the few occasions this Court has had to consider
the meaning of the [Clause], precise distinctions
between cruelty and unusualness do not seem to have been drawn. . . . If the
word 'unusual' is to have any meaning apart from the word 'cruel,' however, the
meaning should be the ordinary one, signifying something different from that
which is generally done."
There are other statements in prior cases indicating that
the word "unusual" has a distinct meaning: "We perceive nothing
. . . unusual in this [punishment]." Pervear v. The Commonwealth, 5 Wall. 475, 72 U. S. 480 (1867). "[T]he
judgment of mankind would be that the punishment was not only an unusual, but a
cruel one. . . ." O'Neil v. Vermont, 144 U. S. 323, 144 U. S. 340 (1892) (Field, J., dissenting). "It is
unusual in its character." Weems v. United States, supra, at 217 U. S. 377. "And the punishment inflicted . . . is
certainly unusual." United States ex rel. Milwaukee Social
Democratic Pub. Co. v. Burleson, 255 U. S. 407, 255 U. S. 430 (1921) (Brandeis, J., dissenting).
"The punishment inflicted is not only unusual in character; it is, so far
as known, unprecedented in American legal history." Id. at 255 U. S. 435. "There is no precedent for it. What then
is it, if it be not cruel, unusual and unlawful?" Louisiana ex
rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 479 (1947) (Burton, J., dissenting). "To
be sure, imprisonment for ninety days is not, in the abstract, a punishment
which is either cruel or unusual." Robinson v. California, 370
U.S. at 370 U. S. 667.
It is fair to conclude from these statements that
"[w]hether the word unusual' has any qualitative meaning different
from `cruel' is not clear." Trop v. Dulles, supra, at 356 U. S. 100 n. 32. The question, in any event, is
of minor significance; this Court has never attempted to explicate the meaning
of the Clause simply by parsing its words.
The danger of subjective judgment is acute if the question
posed is whether a punishment "shocks the most fundamental instincts of
civilized man," Louisiana ex rel. Francis v. Resweber, supra, at 329 U. S. 473 (Burton, J., dissenting), or whether
"any man of right feeling and heart can refrain from
shuddering," O'Neil v. Vermont, supra, at 144 U. S. 340 (Field, J., dissenting), or whether "a
cry of horror would rise from every civilized and Christian community of the
country," ibid. Mr. Justice Frankfurter's concurring
opinion in Louisiana ex rel. Francis v. Resweber, supra, is
instructive. He warned "against finding in personal disapproval a
reflection of more or less prevailing condemnation" and against
"enforcing . . . private
view[s], rather than that consensus of society's opinion which, for purposes of
due process, is the standard enjoined by the Constitution."
Id. at 329 U. S. 471. His conclusions were as follows:
"I cannot bring myself to believe that [the State's
procedure] . . . offends a principle of justice 'rooted in the traditions and
conscience of our people.'"
Id. at 329 U. S. 470. ". . . I cannot say that it would be repugnant
to the conscience of mankind.'" Id. at 329 U. S. 471. Yet nowhere in the opinion is there any explanation
of how he arrived at those conclusions.
Cf. Louisiana ex rel. Francis v. Resweber, supra, at 329 U. S. 463: "The traditional humanity of modern
Anglo-American law forbids the infliction of unnecessary pain in the execution
of the death sentence."
It may, in fact, have appeared earlier. In Pervear
v. The Commonwealth, 5 Wall. at 72 U. S. 480, the Court stated:
"We perceive nothing excessive, or cruel, or unusual in
this [punishment]. The object of the law was to protect the community against
the manifold evils of intemperance. The mode adopted, of prohibiting under
penalties the sale and keeping for sale of intoxicating liquors without
license, is the usual mode adopted in many, perhaps, all of the States. It is
wholly within the discretion of State legislatures."
This discussion suggests that the Court viewed the
punishment as reasonably related to the purposes for which it was inflicted.
Mr. Justice Field apparently based his conclusion upon an
intuitive sense that the punishment was disproportionate to the criminal's
moral guilt, although he also observed that "the punishment was greatly
beyond anything required by any humane law for the offences," O'Neil
v. Vermont, 144 U.S. at 144 U. S. 340. Cf. Trop v. Dulles, 356 U.S.
at 356 U. S. 99:
"Since wartime desertion is punishable by death, there
can be no argument that the penalty of denationalization is excessive in
relation to the gravity of the crime."
"The State thereby suffers nothing, and loses no power.
The purpose of punishment is fulfilled, crime is repressed by penalties of
just, not tormenting, severity, its repetition is prevented, and hope is given
for the reformation of the criminal."
Weems v. United States, 217
U.S. at 217 U. S. 381.
The principle that a severe punishment must not be excessive
does not, of course, mean that a severe punishment is constitutional merely
because it is necessary. A State could not now, for example, inflict a punishment
condemned by history, for any such punishment, no matter how necessary, would
be intolerably offensive to human dignity. The point is simply that the
unnecessary infliction of suffering is also offensive to human dignity.
The Fifth Amendment provides:
"No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury
. . . ; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; . . . nor be deprived of life, liberty,
or property, without due process of law. . . ."
(Emphasis added.)
No one, of course, now contends that the reference in the
Fifth Amendment to "jeopardy of . . . limb" provides perpetual
constitutional sanction for such corporal punishments as branding and
ear-cropping, which were common punishments when the Bill of Rights was
adopted. But cf. n. 29, infra. As the
California Supreme Court pointed out with respect to the California
Constitution:
"The Constitution expressly proscribes cruel or unusual
punishments. It would be mere speculation and conjecture to ascribe to the
framers an intent to exempt capital punishment from the compass of that
provision solely because, at a time when the death penalty was commonly
accepted, they provided elsewhere in the Constitution for special safeguards in
its application."
People v. Anderson, 6 Cal. 3d 628, 639, 493 P.2d 880, 887 (1972).
Cf. McGautha v. California, 402 U. S. 183, 402 U. S. 226 (1971) (separate opinion of Black, J.):
"The [Clause] forbids 'cruel and unusual punishments.'
In my view, these words cannot be read to outlaw capital punishment because
that penalty was in common use and authorized by law here and in the countries
from which our ancestors came at the time the [Clause] was adopted. It is
inconceivable to me that the framers intended to end capital punishment by the
[Clause]."
Under this view, of course, any punishment that was in
common use in 1791 is forever exempt from the Clause.
The Court expressly noted that the constitutionality of the
punishment itself was not challenged. Wilkerson v. Utah, 99
U.S. at 99 U. S. 136-137. Indeed, it may be that the only contention
made was that, in the absence of statutory sanction, the sentencing "court
possessed no authority to prescribe the mode of execution." Id. at 99 U. S. 137.
Cf. McElvaine v. Brush, 142 U. S. 155, 142 U. S. 158-159 (1891):
"We held in the case of Kemmler . . . that,
as the legislature of the State of New York had determined that [electrocution]
did not inflict cruel and unusual punishment, and its courts had sustained that
determination, we were unable to perceive that the State had thereby abridged
the privileges or immunities of petitioner or deprived him of due process of
law."
It was also asserted that the Constitution prohibits
"cruelty inherent in the method of punishment," but does not prohibit
"the necessary suffering involved in any method employed to extinguish
life humanely." 329 U.S. at 329 U. S. 464. No authority was cited for this assertion, and,
in any event, the distinction drawn appears to be meaningless.
In a non-death case, Trop v. Dulles, it was
said that, "in a day when it is still widely accepted, [death]
cannot be said to violate the constitutional concept of cruelty." 356 U.S.
at 356 U. S. 99 (emphasis added). This statement, of course,
left open the future constitutionality of the punishment.
"That life is at stake is, of course, another important
factor in creating the extraordinary situation. The difference between capital
and non-capital offenses is the basis of differentiation in law in diverse ways
in which the distinction becomes relevant."
Williams v. Georgia, 349 U. S. 375, 349 U. S. 391 (1955) (Frankfurter, J.).
"When the penalty is death, we, like state court
judges, are tempted to strain the evidence and even, in close cases, the law in
order to give a doubtfully condemned man another chance."
Stein v. New York, 346 U. S. 156, 346 U. S. 196 (1953) (Jackson, J.). "In death cases
doubts such as those presented here should be resolved in favor of the
accused." Andres v. United States, 333 U. S. 740, 333 U. S. 752 (1948) (Reed, J.). Mr. Justice Harlan
expressed the point strongly:
"I do not concede that whatever process is 'due''an
offender faced with a fine or a prison sentence necessarily satisfies the
requirements of the Constitution in a capital case. The distinction is by no
means novel, . . . nor is it negligible, being literally that between life and
death."
Reid v. Covert, 354 U. S. 1, 354 U. S. 77 (1957) (concurring in result). And, of
course, for many years, this Court distinguished death cases from all others
for purposes of the constitutional right to counsel. See Powell v.
Alabama, 287 U. S. 45 (1932); Betts v. Brady, 316 U. S. 455 (1942); Bute v. Illinois, 333 U. S. 640 (1948).
See Report
of Royal Commission on Capital Punishment 1949-1953, ��
700-789, pp. 246-273 (1953); Hearings on S. 1760 before the Subcommittee on
Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th
Cong., 2d Sess., 19-21 (1968) (testimony of Clinton Duffy); H. Barnes & N.
Teeters, New Horizons in Criminology 306-309 (3d ed. 1959); C. Chessman, Trial
by Ordeal 195-202 (1955); M. DiSalle, The Power of Life and Death 84-85 (1965);
C. Duffy & A. Hirschberg, 88 Men and 2 Women 13-14 (1962); B. Eshelman,
Death Row Chaplain 26-29, 101-104, 159-164 (1962); R. Hammer, Between Life and
Death 208-212 (1969); K. Lamott, Chronicles of San Quentin 228-231 (1961); L.
Lawes, Life and Death in Sing Sing 170-171 (1928); Rubin, The Supreme Court,
Cruel and Unusual Punishment, and the Death Penalty, 15 Crime & Delin. 121,
128-129 (1969); Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268,
1338-1341 (1968); Brief amici curiae filed by James V.
Bennett, Clinton T. Duffy, Robert G. Sarver, Harry C. Tinsley, and Lawrence E.
Wilson 12-14.
See Barnes
& Teeters, supra, at 309-311 (3d ed. 1959); Camus,
Reflections on the Guillotine, in A. Camus, Resistance, Rebellion, and Death
131, 151-156 (1960); C. Duffy & A. Hirschberg, supra, at
68-70, 254 (1962); Hammer, supra, at 222-235, 244-250, 269-272
(1969); S. Rubin, The Law of Criminal Correction 340 (1963); Bluestone &
McGahee, Reaction to Extreme Stress: Impending Death by Execution, 119
Amer.J.Psychiatry 393 (1962); Gottlieb, Capital Punishment, 15 Crime &
Delin. 1, 8-10 (1969); West, Medicine and Capital Punishment, in Hearings on S.
1760 before the Subcommittee on Criminal Laws and Procedures of the Senate
Committee on the Judiciary, 90th Cong., 2d Sess., 124 (1968); Ziferstein, Crime
and Punishment, The Center Magazine 84 (Jan. 1968); Comment, The Death Penalty
Cases, 56 Calif.L.Rev. 1268, 1342 (1968); Note, Mental Suffering under Sentence
of Death: A Cruel and Unusual Punishment, 57 Iowa L.Rev. 814 (1972).
The State, of course, does not purposely impose the lengthy
waiting period in order to inflict further suffering. The impact upon the
individual is not the less severe on that account. It is no answer to assert
that long delays exist only because condemned criminals avail themselves of
their full panoply of legal rights. The right not to be subjected to inhuman
treatment cannot, of course, be played off against the right to pursue due
process of law, but, apart from that, the plain truth is that it is society
that demands, even against the wishes of the criminal, that all legal avenues
be explored before the execution is finally carried out.
It was recognized in Trop itself that
expatriation is a "punishment short of death." 356 U.S. at 356 U. S. 99. Death, however, was distinguished on the ground
that it was "still widely accepted." Ibid.
Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763
(1864).
From 1930 to 1939: 155, 153, 140, 160, 168, 199, 195, 147,
190, 160. From 1940 to 1949: 124, 123, 147, 131, 120, 117, 131, 153, 119, 119.
From 1950 to 1959: 82, 105, 83, 62, 81, 76, 65, 65, 49, 49. From 1960 to 1967:
56, 42, 47, 21, 15, 7, 1, 2. Department of Justice, National Prisoner
Statistics No. 46, Capital Punishment 1930-1970, p. 8 (Aug. 1971). The last
execution in the United States took place on June 2, 1967. Id. at
4.
1961 -- 140; 1962 -- 103; 1963 -- 93; 1964 -- 106; 1965 --
86; 1966 -- 118; 1967 -- 85; 1968 -- 102; 1969 -- 97; 1970 -- 127. Id. at
9.
Commutations averaged about 18 per year. 1961 -- 17; 1962 --
27; 1963 -- 16; 1964 -- 9; 1965 -- 19; 1966 -- 17; 1967 -- 13; 1968 -- 16; 1969
-- 20; 1970 -- 29. Ibid.
Transfers to mental institutions averaged about three per
year. 1961 -- 3; 1962 -- 4; 1963 -- 1; 1964 -- 3; 1965 -- 4; 1966 -- 3; 1967 --
3; 1968 -- 2; 1969 -- 1; 1970 -- 5. Ibid.
These four methods of disposition averaged about 44 per
year. 1961 -- 31, 1962 -- 30; 1963 -- 32; 1964 -- 58; 1965 -- 39; 1966 -- 33;
1967 -- 53; 1968 -- 59; 1969 -- 64; 1970 -- 42. Ibid. Specific
figures are available starting with 1967. Resentences: 1967 -- 7; 1968 -- 18;
1969 -- 12; 1970 -- 14. Grants of new trials and orders for resentencing: 1967
-- 31; 1968 -- 21; 1969 -- 13; 1970 -- 9. Dismissals of indictments and
reversals of convictions: 1967 -- 12; 1968 -- 19; 1969 -- 33; 1970 -- 17.
Deaths by suicide and natural causes: 1967 -- 2; 1968 -- 1; 1969 -- 5; 1970 --
2. National Prisoner Statistics No. 42, Executions 1930-1967, p. 13 (June 1968);
National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 12 (Aug.
1969); National Prisoner statistics, supra, n. 40, at 14-15.
Id. at
9.
During that 10-year period, 1,177 prisoners entered death
row, including 120 who were returned following new trials or treatment at
mental institutions. There were 653 dispositions other than by execution,
leaving 524 prisoners who might have been executed, of whom 135 actually
were. Ibid.
Id. at
8.
The victim surprised Furman in the act of burglarizing the
victim's home in the middle of the night. While escaping, Furman killed the
victim with one pistol shot fired through the closed kitchen door from the
outside. At the trial, Furman gave his version of the killing:
"They got me charged with murder and I admit, I admit
going to these folks' home and they did caught me in there and I was coming
back out, backing up and there was a wire down there on the floor. I was coming
out backwards and fell back and I didn't intend to kill nobody. I didn't know
they was behind the door. The gun went off and I didn't know nothing about no
murder until they arrested me, and when the gun went off, I was down on the
floor, and I got up and ran. That's all to it."
App. 555. The Georgia Supreme Court accepted that version:
"The admission in open court by the accused . . . that,
during the period in which he was involved in the commission of a criminal act
at the home of the deceased, he accidentally tripped over a wire in leaving the
premises causing the gun to go off, together with other facts and circumstances
surrounding the death of the deceased by violent means, was sufficient to
support the verdict of guilty of murder. . . ."
Furman v. State, 225
Ga. 253, 254, 167 S.E.2d 628, 629 (1969). About Furman himself, the jury
knew only that he was black and that, according to his statement at trial, he
was 26 years old and worked at "Superior Upholstery." App. 54. It
took the jury one hour and 35 minutes to return a verdict of guilt and a
sentence of death. Id. at 64-65.
T. Sellin, The Death Penalty, A Report for the Model Penal
Code Project of the American Law Institute 15 (1959).
Eight States still employ hanging as the method of
execution, and one, Utah, also employs shooting. These nine States have
accounted for less than 3% of the executions in the United States since 1930.
National Prisoner Statistics, supra, n. 40, at 10-11.
Id. at 8
Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon,
West Virginia, and Wisconsin have abolished death as a punishment for
crimes. Id. at 50. In addition, the California Supreme Court
held the punishment unconstitutional under the state counterpart of the Cruel
and Unusual Punishments Clause. People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880 (1972).
New Mexico, New York, North Dakota, Rhode Island, and
Vermont have almost totally abolished death as a punishment for crimes.
National Prisoner Statistics, supra, n. 40, at 50. Indeed,
these five States might well be considered de facto abolition
States. North Dakota and Rhode Island, which restricted the punishment in 1915
and 1852, respectively, have not carried out an execution since at least
1930, id. at 10; nor have there been any executions in New
York, Vermont, or New Mexico since they restricted the punishment in 1965,
1965, and 1969, respectively, id. at 10-11. As of January 1,
1971, none of the five States had even a single prisoner under sentence of
death. Id. at 18-19.
In addition, six States, while retaining the punishment on
the books in generally applicable form, have made virtually no use of it. Since
1930, Idaho, Montana, Nebraska, New Hampshire, South Dakota, and Wyoming have
carried out a total of 22 executions. Id. at 10-11. As of
January 1, 1971, these six States had a total of three prisoners under
sentences of death. Id. at 18-19. Hence, assuming 25
executions in 42 years, each State averaged about one execution every 10 years.
There is also the more limited argument that death is a
necessary punishment when criminals are already serving or subject to a
sentence of life imprisonment. If the only punishment available is further
imprisonment, it is said, those criminals will have nothing to lose by
committing further crimes, and accordingly, the threat of death is the sole
deterrent. But "life" imprisonment is a misnomer today. Rarely, if
ever, do crimes carry a mandatory life sentence without possibility of parole.
That possibility ensures that criminals do not reach the point where further
crimes are free of consequences. Moreover, if this argument is simply an
assertion that the threat of death is a more effective deterrent than the
threat of increased imprisonment by denial of release on parole, then, as noted
above, there is simply no evidence to support. it.
MR. JUSTICE STEWART, concurring.
The penalty of death differs from all other forms of
criminal punishment, not in degree, but in kind. It is unique in its total irrevocability.
It is unique in its rejection of rehabilitation of the convict as a basic
purpose of criminal justice. And it is unique, finally, in its absolute
renunciation of all that is embodied in our concept of humanity.
For these and other reasons, at least two of my Brothers
have concluded that the infliction of the death penalty is constitutionally
impermissible in all circumstances under the Eighth and Fourteenth Amendments.
Their case is a strong one. But I find it unnecessary to reach the ultimate
question they would decide. See Ashwander v. Tennessee Valley
Authority, 297 U. S. 288, 297 U. S. 347 (Brandeis, J., concurring).
The opinions of other Justices today have set out in
admirable and thorough detail the origins and judicial history of the Eighth
Amendment's guarantee against the infliction of cruel and unusual punishments,
[Footnote 3/1] and the origin and judicial history of capital
punishment. [Footnote 3/2] There
Page 408 U. S. 307
is thus no need for me to review the historical materials
here, and what I have to say can, therefore, be briefly stated. Legislatures --
state and federal -- have sometimes specified that the penalty of death shall
be the mandatory punishment for every person convicted of engaging in certain
designated criminal conduct. Congress, for example, has provided that anyone
convicted of acting as a spy for the enemy in time of war shall be put to
death. [Footnote 3/3] The Rhode Island Legislature has ordained the
death penalty for a life term prisoner who commits murder. [Footnote 3/4] Massachusetts has passed a law imposing the
death penalty upon anyone convicted of murder in the commission of a forcible
rape. [Footnote 3/5] An Ohio law imposes the mandatory penalty of
death upon the assassin of the President of the United States or the Governor
of a State. [Footnote 3/6]
If we were reviewing death sentences imposed under these or
similar laws, we would be faced with the need to decide whether capital
punishment is unconstitutional for all crimes and under all circumstances. We
would need to decide whether a legislature -- state or federal -- could
constitutionally determine that certain criminal conduct is so atrocious that
society's interest in deterrence and retribution wholly outweighs any
considerations of reform or rehabilitation of the perpetrator, and that,
despite the inconclusive empirical evidence, [Footnote 3/7] only
Page 408 U. S. 308
the automatic penalty of death will provide maximum
deterrence.
On that score I would say only that I cannot agree that
retribution is a constitutionally impermissible ingredient in the imposition of
punishment. The instinct for retribution is part of the nature of man, and
channeling that instinct in the administration of criminal justice serves an
important purpose in promoting the stability of a society governed by law. When
people begin to believe that organized society is unwilling or unable to impose
upon criminal offenders the punishment they "deserve," then there are
sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.
The constitutionality of capital punishment in the abstract
is not, however, before us in these cases. For the Georgia and Texas
Legislatures have not provided that the death penalty shall be imposed upon all
those who are found guilty of forcible rape. [Footnote 3/8] And the Georgia Legislature has not ordained
that death shall be the automatic punishment for murder. [Footnote 3/9] In a word, neither State
Page 408 U. S. 309
has made a legislative determination that forcible rape and
murder can be deterred only by imposing the penalty of death upon all who
perpetrate those offenses. As MR. JUSTICE WHITE so tellingly puts it, the
"legislative will is not frustrated if the penalty is never
imposed." Post at 408 U. S. 311.
Instead, the death sentences now before us are the product
of a legal system that brings them, I believe, within the very core of the
Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee
applicable against the States through the Fourteenth Amendment. Robinson
v. California, 370 U. S. 660. In the first place, it is clear that these
sentences are "cruel" in the sense that they excessively go beyond,
not in degree but in kind, the punishments that the state legislatures have
determined to be necessary. Weems v. United States, 217 U. S. 349. In the second place, it is equally clear that
these sentences are "unusual" in the sense that the penalty of death
is infrequently imposed for murder, and that its imposition for rape is
extraordinarily rare. [Footnote 3/10] But I do not rest my conclusion upon these two
propositions alone.
These death sentences are cruel and unusual in the same way
that being struck by lightning is cruel and unusual. For, of all the people
convicted of rapes and murders in 1967 and 1968, [Footnote 3/11] many just as reprehensible as these, the
petitioners are among a capriciously
Page 408 U. S. 310
selected random handful upon whom the sentence of death has
in fact been imposed. [Footnote 3/12] My concurring Brothers have demonstrated that,
if any basis can be discerned for the selection of these few to be sentenced to
die, it is the constitutionally impermissible basis of race. [Footnote 3/13] See McLaughlin v. Florida, 379 U. S. 184. But racial discrimination has not been proved,
[Footnote 3/14] and I put it to one side. I simply conclude
that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique penalty to be so
wantonly and so freakishly imposed.
For these reasons I concur in the judgments of the Court.
See , post, at 408 U. S. 376-379; concurring opinion of MR. JUSTICE
DOUGLAS, ante at 408 U. S. 242-244; concurring opinion of MR. JUSTICE
BRENNAN, ante at 258-269; concurring opinion of MR. JUSTICE
MARSHALL, post at 408 U. S. 316-328; dissenting opinion of MR. JUSTICE
BLACKMUN, post at 408 U. S. 407-409; dissenting opinion of MR. JUSTICE
POWELL, post at 408 U. S. 421-427.
See dissenting
opinion of THE CHIEF JUSTICE, post at 408 U. S. 380; concurring opinion of MR. JUSTICE BRENNAN, ante at 408 U. S. 282-285; concurring opinion of MR. JUSTICE
MARSHALL, post at 408 U. S. 333-341; dissenting opinion of MR. JUSTICE
POWELL, post at 408 U. S. 421-424.
10 U.S.C. § 906.
R.I.Gen.Laws Ann. § 11-23-2.
Mass.Gen.Laws Ann., c. 265, § 2.
Ohio Rev.Code Ann., Tit. 29, §§ 2901.09 and 2901.10.
Many statistical studies -- comparing crime rates in
jurisdictions with and without capital punishment and in jurisdictions before
and after abolition of capital punishment -- have indicated that there is
little, if any, measurable deterrent effect. See H. Bedau, The
Death Penalty in America 258-332 (1967 rev. ed.). There remains uncertainty,
however, because of the difficulty of identifying and holding constant all
other relevant variables. See Comment, The Death Penalty
Cases, 56 Calif.L.Rev. 1268, 1275-1292. See also dissenting
opinion of THE CHIEF JUSTICE, post at 408 U. S. 395; concurring opinion of MR. JUSTICE
MARSHALL, post at 408 U. S. 346-354.
Georgia law, at the time of the conviction and sentencing of
the petitioner in No. 69-5030, left the jury a choice between the death
penalty, life imprisonment, or "imprisonment and labor in the penitentiary
for not less than one year nor more than 20 years." Ga.Code
Ann. § 26-1302 (Supp. 1971) (effective prior to July l, 1969). The
current Georgia provision for the punishment of forcible rape continues to
leave the same broad sentencing leeway. Ga.Crim.Code §
26-2001 (1971 rev.) (effective July l, 1969). Texas law, under which the
petitioner in No. 69-5031 was sentenced, provides that a "person guilty of
rape shall be punished by death or by confinement in the penitentiary for life,
or for any term of years not less than five." Texas Penal Code, Art. 1189.
Georgia law, under which the petitioner in No. 69-5003 was
sentenced, left the jury a choice between the death penalty and life
imprisonment. Ga.Code Ann. § 26-1005 (Supp. 1971) (effective
prior to July 1, 1969). Current Georgia law provides for similar
sentencing leeway. Ga.Crim.Code § 26-1101 (1971 rev.)
(effective July 1, 1969).
See dissenting
opinion of THE CHIEF JUSTICE, post at 408 U. S. 386-387, n. 11; concurring opinion of MR. JUSTICE
BRENNAN, ante at 408 U. S. 291-293.
Petitioner Branch was sentenced to death in a Texas court on
July 26, 1967. Petitioner Furman was sentenced to death in a Georgia court on
September 20, 1968. Petitioner Jackson was sentenced to death in a Georgia
court on December 10, 1968.
A former United States Attorney General has testified before
the Congress that only a "small and capricious selection of offenders have
been put to death. Most persons convicted of the same crimes have been
imprisoned." Statement by Attorney General Clark in Hearings on S. 1760
before the Subcommittee on Criminal Laws and Procedures of the Senate Committee
on the Judiciary, 90th Cong., 2d Sess., 93.
In McGautha v. California, 402 U. S. 183, the Court dealt with claims under the Due
Process and Equal Protection Clauses of the Fourteenth Amendment. We expressly
declined in that case to consider claims under the constitutional guarantee
against cruel and unusual punishments. See 398 U. S. 936 (limited grant of certiorari).
See concurring
opinion of MR. JUSTICE DOUGLAS, ante, at 408 U. S. 249-251; concurring opinion of MR. JUSTICE
MARSHALL, post at 408 U. S. 366 n. 155.
Cf. Note,
A Study of the California Penalty Jury in First-Degree-Murder Cases, 21
Stan.L.Rev. 1297 (1969); dissenting opinion of THE CHIEF JUSTICE, post at 408 U. S. 389-390, n. 12.
MR. JUSTICE WHITE, concurring.
The facial constitutionality of statutes requiring the
imposition of the death penalty for first-degree murder, for more narrowly
defined categories of murder, or for rape would present quite different issues
under the Eighth Amendment than are posed by the cases before us. In joining
the Court's judgments, therefore, I do not at all
Page 408 U. S. 311
intimate that the death penalty is unconstitutional per
se or that there is no system of capital punishment that would comport
with the Eighth Amendment. That question, ably argued by several of my
Brethren, is not presented by these cases and need not be decided.
The narrower question to which I address myself concerns the
constitutionality of capital punishment statutes under which (1) the
legislature authorizes the imposition of the death penalty for murder or rape;
(2) the legislature does not itself mandate the penalty in any particular class
or kind of case (that is, legislative will is not frustrated if the penalty is
never imposed), but delegates to judges or juries the decisions as to those
cases, if any, in which the penalty will be utilized; and (3) judges and juries
have ordered the death penalty with such infrequency that the odds are now very
much against imposition and execution of the penalty with respect to any
convicted murderer or rapist. It is in this context that we must consider
whether the execution of these petitioners would violate the Eighth Amendment.
I begin with what I consider a near truism: that the death
penalty could so seldom be imposed that it would cease to be a credible
deterrent or measurably to contribute to any other end of punishment in the
criminal justice system. It is perhaps true that, no matter how infrequently
those convicted of rape or murder are executed, the penalty so imposed is not
disproportionate to the crime and those executed may deserve 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
Page 408 U. S. 312
for so few when, for so many in like circumstances, life
imprisonment or shorter prison terms are judged sufficient, or that community
values are measurably reinforced by authorizing a penalty so rarely invoked.
Most important, a major goal of the criminal law -- to deter
others by punishing the convicted criminal -- would not be substantially served
where the penalty is so seldom invoked that it ceases to be the credible threat
essential to influence the conduct of others. For present purposes, I accept
the morality and utility of punishing one person to influence another. I accept
also the effectiveness of punishment generally, and need not reject the death
penalty as a more effective deterrent than a lesser punishment. But 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
Page 408 U. S. 313
under the statutes involved in these cases. Concededly, it
is difficult to prove as a general proposition that capital punishment, however
administered, more effectively serves the ends of the criminal law than does
imprisonment. But however that may be, I cannot avoid the conclusion that, as
the statutes before us are now administered, the penalty is so infrequently
imposed that the threat of execution is too attenuated to be of substantial
service to criminal justice.
I need not restate the facts and figures that appear in the opinions
of my Brethren. Nor can I "prove" my conclusion from these data. But,
like my Brethren, I must arrive at judgment; and I can do no more than state a
conclusion based on 10 years of almost daily exposure to the facts and
circumstances of hundreds and hundreds of federal and state criminal cases
involving crimes for which death is the authorized penalty. That conclusion, as
I have said, is that the death penalty is exacted with great infrequency even
for the most atrocious crimes, and that there is no meaningful basis for
distinguishing the few cases in which it is imposed from the many cases in
which it is not. The short of it is that the policy of vesting sentencing
authority primarily in juries -- a decision largely motivated by the desire to
mitigate the harshness of the law and to bring community judgment to bear on
the sentence as well as guilt or innocence -- has so effectively achieved its
aims that capital punishment within the confines of the statutes now before us
has, for all practical purposes, run its course.
Judicial review, by definition, often involves a conflict
between judicial and legislative judgment as to what the Constitution means or
requires. In this respect, Eighth Amendment cases come to us in no different
posture. It seems conceded by all that the Amendment imposes some obligations
on the judiciary to judge the
Page 408 U. S. 314
constitutionality of punishment, and that there are
punishments that the Amendment would bar whether legislatively approved or not.
Inevitably, then, there will be occasions when we will differ with Congress or
state legislatures with respect to the validity of punishment. There will also
be cases in which we shall strongly disagree among ourselves. Unfortunately,
this is one of them. But, as I see it, this case is no different in kind from
many others, although it may have wider impact and provoke sharper
disagreement.
In this respect, I add only that past and present
legislative judgment with respect to the death penalty loses much of its force
when viewed in light of the recurring practice of delegating sentencing
authority to the jury and the fact that a jury, in its own discretion and
without violating its trust or any statutory policy, may refuse to impose the
death penalty no matter what the circumstances of the crime. Legislative
"policy" is thus necessarily defined not by what is legislatively
authorized, but by what juries and judges do in exercising the discretion so
regularly conferred upon them. In my judgment, what was done in these cases violated
the Eighth Amendment.
I concur in the judgments of the Court.
MR. JUSTICE MARSHALL, concurring.
These three cases present the question whether the death
penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to
the United States Constitution. [Footnote 4/1]
Page 408 U. S. 315
In No. 69-5003, Furman was convicted of murder for shooting the
father of five children when he discovered that Furman had broken into his home
early one morning. Nos. 69-5030 and 69-5031 involve state convictions for
forcible rape. Jackson was found guilty of rape during the course of a robbery
in the victim's home. The rape was accomplished as he held the pointed ends of
scissors at the victim's throat. Branch also was convicted of a rape committed
in the victim's home. No weapon was utilized, but physical force and threats of
physical force were employed.
The criminal acts with which we are confronted are ugly,
vicious, reprehensible acts. Their sheer brutality cannot and should not be
minimized. But we are not called upon to condone the penalized conduct; we are
asked only to examine the penalty imposed on each of the petitioners and to
determine whether or not it violates the Eighth Amendment. The question then is
not whether we condone rape or murder, for surely we do not; it is whether
capital punishment is "a punishment no longer consistent with our own
self-respect" [Footnote 4/2] 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. [Footnote 4/3] Hence, we must proceed with caution to answer
the question presented. [Footnote 4/4] By first examining the historical derivation of
the Eighth Amendment and
Page 408 U. S. 316
the construction given it in the past by this Court, and
then exploring the history and attributes of capital punishment in this country,
we can answer the question presented with objectivity and a proper measure of
self-restraint.
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. [Footnote 4/5] Sir Robert Beale protested that cruel and
barbarous torture violated Magna Carta, but his protests were made in vain. [Footnote 4/6]
Page 408 U. S. 317
Cruel punishments were not confined to those accused of
crimes, but were notoriously applied with even greater relish to those who were
convicted. Blackstone described in ghastly detail the myriad of inhumane forms
of punishment imposed on persons found guilty of any of a large number of
offenses. [Footnote 4/7] Death, of course, was the usual result. [Footnote 4/8]
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.
[Footnote 4/9] 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). [Footnote 4/10] The assizes received wide publicity from
Puritan pamphleteers, and doubtless had some influence on the adoption of a
cruel and unusual punishments clause. But,
Page 408 U. S. 318
the legislative history of the English Bill of Rights of
1689 indicates that the assizes may not have been as critical to the adoption
of the clause as is widely thought. After William and Mary of Orange crossed
the channel to invade England, James II fled. Parliament was summoned into
session, and a committee was appointed to draft general statements containing
"such things as are absolutely necessary to be considered for the better
securing of our religion, laws and liberties." [Footnote 4/11] 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. [Footnote 4/12] 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, [Footnote 4/13]"
and not primarily a reaction to the torture of the High
Commission, harsh sentences, or the assizes.
Page 408 U. S. 319
Whether the English Bill of Rights prohibition against cruel
and unusual punishments is properly read as a response to excessive or illegal
punishments, as a reaction to barbaric and objectionable modes of punishment,
or as both, there is no doubt whatever that, in borrowing the language and in
including it in the Eighth Amendment, our Founding Fathers intended to outlaw
torture and other cruel punishments. [Footnote 4/14]
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." [Footnote 4/15] This language was drawn verbatim from the
English Bill of Rights of 1689. Other States adopted similar clauses, [Footnote 4/16] and there is evidence in the debates of the
various state conventions that were
Page 408 U. S. 320
called upon to ratify the Constitution of great concern for
the omission of any prohibition against torture or other cruel punishments. [Footnote 4/17]
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
Page 408 U. S. 321
cruel and unusual punishments. These are prohibited by your
declaration of rights. What has distinguished our ancestors. -- That they would
not admit of tortures, or cruel and barbarous punishment. But Congress may
introduce the practice of the civil law, in preference to that of the common
law. They may introduce the practice of France, Spain, and Germany -- of
torturing, to extort a confession of the crime. They will say that they might
as well draw examples from those countries as from Great Britain, and they will
tell you that there is such a necessity of strengthening the arm of government,
that they must have a criminal equity, and extort confession by torture, in
order to punish with still more relentless severity. We are then lost and
undone. [Footnote 4/18]"
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 d Henry's view of the need for and purpose of
the Cruel and Unusual Punishments Clause. [Footnote 4/19]
Page 408 U. S. 322
Thus, the history of the clause clearly establishes that it
was intended to prohibit cruel punishments. We must now turn to the case law to
discover the manner in which courts have given meaning to the term
"cruel."
II
This Court did not squarely face the task of interpreting the
cruel and unusual punishments language for the first time until Wilkerson
v. Utah, 9 U. S. 130 (1879), although the language received a
cursory examination in several prior cases. See, e.g., 72 U. S. 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 99 U. S. 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
Page 408 U. S. 323
Amendment. In the case of In re Kemmler, 136 U. S. 436 (1890), Chief Justice Fuller wrote an
opinion for a unanimous Court upholding electrocution as a permissible mode of
punishment. While the Court ostensibly held that the Eighth Amendment did not
apply to the States, it is very apparent that the nature of the punishment
involved was examined under the Due Process Clause of the Fourteenth Amendment.
The Court held that the punishment was not objectionable. Today, Kemmler stands
primarily for the proposition that a punishment is not necessarily
unconstitutional simply because it is unusual, so long as the legislature has a
humane purpose in selecting it. [Footnote 4/20]
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
Page 408 U. S. 324
are attended with acute pain and suffering. . . . The
inhibition is directed not only against punishments of the character mentioned,
but against all punishments which, by their excessive length or severity, are
greatly disproportioned to the offences charged. The whole inhibition is
against that which is excessive. . . ."
Id. at 144 U. S. 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. [Footnote 4/21] The Court emphasized that the Constitution was
not an "ephemeral" enactment, or one "designed to meet passing
occasions." [Footnote 4/22] Recognizing that "[t]ime works changes,
[and] brings into existence new conditions and purposes," [Footnote 4/23] the Court commented that, "[i]n the
application of a constitution . . .
Page 408 U. S. 325
our contemplation cannot be only of what has been, but of
what may be." [Footnote 4/24]
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. [Footnote 4/25] 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. [Footnote 4/26]
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). [Footnote 4/27] Then
Page 408 U. S. 326
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. [Footnote 4/28] The Court was virtually unanimous in agreeing
that "[t]he traditional humanity of modern Anglo-American law forbids the
infliction of unnecessary pain," [Footnote 4/29] 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. [Footnote 4/30]
Page 408 U. S. 327
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.
[Footnote 4/31]
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." [Footnote 4/32] 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.
Page 408 U. S. 328
Whereas, in Trop, a majority of the Court
failed to agree on whether loss of citizenship was a cruel and unusual
punishment, four years later, a majority did agree in Robinson v.
California, 370 U. S. 660 (1962), 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." [Footnote 4/33] 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. [Footnote 4/34]
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.
Page 408 U. S. 329
III
Perhaps the most important principle in analyzing
"cruel and unusual" punishment questions is one that is reiterated
again and again in the prior opinions of the Court: i.e., the
cruel and unusual language "must draw its meaning from the evolving
standard of decency that mark the progress of a maturing society." [Footnote 4/35] 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. [Footnote 4/36] Yet, some of these same Justices and others
have at times expressed concern over capital punishment. [Footnote 4/37]
Page 408 U. S. 330
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 144 U. S. 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.
Page 408 U. S. 331
Second, there are punishments that are unusual, signifying
that they were previously unknown as penalties for a given offense. Cf.
United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255
U.S. at 255 U. S. 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 136 U. S. 447; Louisiana ex rel. Francis v. Resweber, 329
U.S. at 329 U. S. 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 99 U. S. 134; O'Neil v. Vermont, 144 U.S.
at 144 U. S. 339-340 (Field, J., dissenting); Weems v.
United States, 217 U.S. at 217 U. S. 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]
Page 408 U. S. 332
is against that which is excessive," O'Neil v.
Vermont, 144 U.S. at 144 U. S. 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
Page 408 U. S. 333
unnecessary, or because it is abhorrent to currently
existing moral values.
We must proceed to the history of capital punishment in the
United States.
IV
Capital punishment has been used to penalize various forms
of conduct by members of society since the beginnings of civilization. Its
precise origins are difficult to perceive, but there is some evidence that its
roots lie in violent retaliation by members of a tribe or group, or by the
tribe or group itself, against persons committing hostile acts toward group
members. [Footnote 4/38] Thus, infliction of death as a penalty for
objectionable conduct appears to have its beginnings in private vengeance. [Footnote 4/39]
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.
[Footnote 4/40] Capital punishment worked its way into the laws
of various countries, [Footnote 4/41] and was inflicted in a variety of macabre and
horrific ways. [Footnote 4/42]
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. [Footnote 4/43]
Page 408 U. S. 334
The early history of capital punishment in England is set
forth in McGautha v. California, 402 U. S. 183, 402 U. S. 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. [Footnote 4/44] Tudor and Stuart kings added many more crimes
to the list of those punishable by death, and, by 1688, there were nearly 50. [Footnote 4/45] George II (1727-1760) added nearly 36 more, and
George III (1760-1820) increased the number by 60. [Footnote 4/46]
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. [Footnote 4/47]
Page 408 U. S. 335
Capital punishment was not as common a penalty in the
American Colonies. "The Capitall Lawes of New England," dating from
1636, were drawn by the Massachusetts Bay Colony, and are the first written
expression of capital offenses known to exist in this country. These laws make
the following crimes capital offenses: idolatry, witchcraft, blasphemy, murder,
assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape,
manstealing, perjury in a capital trial, and rebellion. Each crime is
accompanied by a reference to the Old Testament to indicate its source. [Footnote 4/48] 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. [Footnote 4/49] We do know that the other Colonies had a
variety of laws that spanned the spectrum of severity. [Footnote 4/50]
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. [Footnote 4/51] This was far fewer than existed in England, and
part of the reason was that there was a scarcity of labor in the Colonies. [Footnote 4/52] Still, there were many executions, because
"[w]ith county jails inadequate and insecure, the criminal population
seemed best controlled by death, mutilation, and fines." [Footnote 4/53]
Even in the 17th century, there was some opposition
Page 408 U. S. 336
to capital punishment in some of the colonies. In his
"Great Act" of 1682, William Penn prescribed death only for
premeditated murder and treason, [Footnote 4/54] although his reform was not long-lived. [Footnote 4/55]
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. [Footnote 4/56] 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. [Footnote 4/57] 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." [Footnote 4/58] 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. [Footnote 4/59]
The "Enquiries" of Rush and Bradford and the
Pennsylvania movement toward abolition of the death
Page 408 U. S. 337
penalty had little immediate impact on the practices of
other States. [Footnote 4/60] 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." [Footnote 4/61] His Introductory Report to the System of Penal
Law Prepared for the State of Louisiana [Footnote 4/62] 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,
[Footnote 4/63] 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
Page 408 U. S. 338
or more after a trial would be an effective deterrent to
exercise of his power. [Footnote 4/64] The law spread throughout New England, and led
to Michigan's being the first State to abolish capital punishment in 1846. [Footnote 4/65]
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. [Footnote 4/66]
By 1850, societies for abolition existed in Massachusetts,
New York, Pennsylvania, Tennessee, Ohio, Alabama, Louisiana, Indiana, and Iowa.
[Footnote 4/67] 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. [Footnote 4/68] Wisconsin totally abolished the death penalty
the following year. [Footnote 4/69] 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. [Footnote 4/70]
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
Page 408 U. S. 339
blunted. [Footnote 4/71]"
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. [Footnote 4/72]
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. [Footnote 4/73] 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. [Footnote 4/74]
By 1917, 12 States had become abolitionist jurisdictions. [Footnote 4/75] But, under the nervous tension of World War I,
Page 408 U. S. 340
four of these States reinstituted capital punishment and
promising movements in other State came grinding to a halt. [Footnote 4/76] 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. [Footnote 4/77]
In recent years, there has been renewed interest in
modifying capital punishment. New York has moved toward abolition, [Footnote 4/78] as have several other States. [Footnote 4/79] In 1967, a bill was introduced in the Senate to
abolish
Page 408 U. S. 341
capital punishment for all federal crimes, but it died in
committee. [Footnote 4/80]
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. [Footnote 4/81] It is sufficient to note that murder is the
crime most often punished by death, followed by kidnaping and treason. [Footnote 4/82] Rape is a capital offense in 16 States and the
federal system. [Footnote 4/83]
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
Page 408 U. S. 342
reached a point where abolition is not dependent on a
successful grass roots movement in particular jurisdictions, but is demanded by
the Eighth Amendment. To answer this question, we must first examine whether or
not the death penalty is today tantamount to excessive punishment.
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?" [Footnote 4/84] 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
Page 408 U. S. 343
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 356 U. S. 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, [Footnote 4/85] and the Eighth Amendment itself was adopted to
prevent punishment from becoming synonymous with vengeance.
In Weems v. United States, 217 U.S.
at 217 U. S. 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.)
Page 408 U. S. 344
It is plain that the view of the Weems Court
was that punishment for the sake of retribution was not permissible under the
Eighth Amendment. This is the only view that the Court could have taken if the
"cruel and unusual" language were to be given any meaning.
Retribution surely underlies the imposition of some punishment on one who
commits a criminal act. But the fact that some punishment may
be imposed does not 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.
[Footnote 4/86] 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
Page 408 U. S. 345
society's abhorrence of the act. [Footnote 4/87] 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.
[Footnote 4/88]"
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. [Footnote 4/89]
While the contrary position has been argued, [Footnote 4/90] it is my firm opinion that the death penalty is
a more severe sanction than life imprisonment. Admittedly, there are
Page 408 U. S. 346
some persons who would rather die than languish in prison
for a lifetime. But, whether or not they should be able to choose death as an
alternative is a far different question from that presented here -- i.e., whether
the State 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. [Footnote 4/91]
It must be kept in mind, then, that the question to be
considered is not simply whether capital punishment is
Page 408 U. S. 347
a deterrent, but whether it is a better deterrent than life
imprisonment. [Footnote 4/92]
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. [Footnote 4/93]"
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. [Footnote 4/94]
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
Page 408 U. S. 348
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. [Footnote 4/95]"
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. [Footnote 4/96]"
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, [Footnote 4/97] and almost 90% of all executions since 1930
have been pursuant to murder convictions. [Footnote 4/98]
Thorsten Sellin, one of the leading authorities on capital
punishment, has urged that, if the death penalty
Page 408 U. S. 349
deters prospective murderers, the following hypotheses
should be true:
"(a) Murders should be less frequent in states that
have the death penalty than in those that have abolished it, other factors
being equal. Comparisons of this nature must be made among states that are as
alike as possible in all other respects -- 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. [Footnote 4/99]"
(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. [Footnote 4/100] A second problem is that certain murders
undoubtedly are misinterpreted as accidental deaths or suicides, and there
Page 408 U. S. 350
is no way of estimating the number of such undetected crimes.
A third problem is that not all homicides are reported. Despite these
difficulties, most authorities have assumed that the proportion of capital
murders in a State's or nation's homicide statistics remains reasonably
constant, [Footnote 4/101] 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 [Footnote 4/102] and homicide rates. [Footnote 4/103] The same is true for Midwestern States, [Footnote 4/104] and for all others studied. Both the United
Nations [Footnote 4/105] and Great Britain [Footnote 4/106] 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. [Footnote 4/107] This conclusion is borne out by others who
have made similar
Page 408 U. S. 351
inquiries [Footnote 4/108] and by the experience of other countries. [Footnote 4/109] Despite problems with the statistics, [Footnote 4/110] Sellin's evidence has been relied upon in
international studies of capital punishment. [Footnote 4/111]
Statistics also show that the deterrent effect of capital
punishment is no greater in those communities where executions take place than
in other communities. [Footnote 4/112] In fact, there is some evidence that
imposition of capital punishment may actually encourage crime, rather than
deter it. [Footnote 4/113] And, while police and law enforcement officers
Page 408 U. S. 352
are the strongest advocates of capital punishment, [Footnote 4/114] the evidence is overwhelming that police are
no safer in communities that retain the sanction than in those that have
abolished it. [Footnote 4/115]
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. [Footnote 4/116] Most of the persons sentenced to death are
murderers, and murderers tend to be model prisoners. [Footnote 4/117]
Page 408 U. S. 353
In sum, the only support for the theory that capital
punishment is an effective deterrent is found in the hypotheses with which we
began and the occasional stories about a specific individual being deterred
from doing a contemplated criminal act. [Footnote 4/118] These claims of specific deterrence are often
spurious, [Footnote 4/119] however, and may be more than counterbalanced
by the tendency of capital punishment to incite certain crimes. [Footnote 4/120]
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. [Footnote 4/121]"
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
Page 408 U. S. 354
was needed. [Footnote 4/122] Edward Livingston reached a similar conclusion
with respect to deterrence in 1833 upon completion of his study for Louisiana.
[Footnote 4/123] Virtually every study that has since been
undertaken has reached the same result. [Footnote 4/124]
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. [Footnote 4/125]
Page 408 U. S. 355
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. [Footnote 4/126] For the most part, they are first offenders,
and, when released from prison, they are known to become model citizens. [Footnote 4/127] 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
Page 408 U. S. 356
v. Jackson, 390 U. S. 570 (1968). [Footnote 4/128] 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. [Footnote 4/129] 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
Page 408 U. S. 357
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, [Footnote 4/130] 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.
[Footnote 4/131] Condemned men are not productive members of
the prison community, although they could be, [Footnote 4/132] and executions are expensive. [Footnote 4/133] Appeals are often automatic, and courts
admittedly spend more time with death cases. [Footnote 4/134]
Page 408 U. S. 358
At trial, the selection of jurors is likely to become a
costly, time-consuming problem in a capital case, [Footnote 4/135] 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. [Footnote 4/136] Because there is a formally established policy
of not executing insane persons, [Footnote 4/137] great sums of money may be spent on detecting
and curing mental illness in order to perform the execution. [Footnote 4/138] 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. [Footnote 4/139] 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. [Footnote 4/140]
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
Page 408 U. S. 359
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. [Footnote 4/141]
Page 408 U. S. 360
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." [Footnote 4/142]
Page 408 U. S. 361
Judge Frank once noted the problems inherent in the use of
such a measuring stick:
"[The court,] before it reduces a sentence as 'cruel
and unusual,' must have reasonably good assurances that the sentence offends
the 'common conscience.' And, in any context, such a standard -- the
community's attitude -- is usually an unknowable. It resembles a slithery
shadow, since one can seldom learn, at all accurately, what the community, or a
majority, actually feels. Even a carefully taken 'public opinion poll' would be
inconclusive in a case like this. [Footnote 4/143]"
While a public opinion poll obviously is of some assistance
in indicating public acceptance or rejection of a specific penalty, [Footnote 4/144] 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. [Footnote 4/145]
Page 408 U. S. 362
In other words, the question with which we must deal is not
whether a substantial proportion of American citizens would today, if polled,
opine that capital punishment is barbarously cruel, but whether they would find
it to be so in the light of all information presently available.
This is not to suggest that, with respect to this test of
unconstitutionality, people are required to act rationally; they are not. With
respect to this judgment, a violation of the Eighth Amendment is totally
dependent on the predictable subjective, emotional reactions of informed
citizens. [Footnote 4/146]
It has often been noted that American citizens know almost
nothing about capital punishment. [Footnote 4/147] 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
Page 408 U. S. 363
rarely executed, but are usually sentenced to a term in
prison; that convicted murderers usually are model prisoners, and that they
almost always become 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
Page 408 U. S. 364
even the most hesitant of citizens to condemn death as a
sanction: capital punishment is imposed discriminatorily against certain
identifiable classes of people; there is evidence that innocent people have
been executed before their innocence can be proved; and the death penalty
wreaks havoc with our entire criminal justice system. Each of these facts is
considered briefly below.
Regarding discrimination, it has been said that
"[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. . . . [Footnote 4/148] 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. [Footnote 4/149] Of the executions, 3,334 were for murder;
1,664 of the executed murderers were white and 1,630 were Negro; [Footnote 4/150] 455 persons, including 48 whites and 405
Negroes, were executed for rape. [Footnote 4/151] 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. [Footnote 4/152]
Page 408 U. S. 365
Racial or other discriminations should not be surprising.
In McGautha v. California, 402 U.S. at 402 U. S. 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. [Footnote 4/153] 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. [Footnote 4/154]
It also is evident that the burden of capital punishment
falls upon the poor, the ignorant, and the underprivileged
Page 408 U. S. 366
members of society. [Footnote 4/155] 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. [Footnote 4/156]
Page 408 U. S. 367
Proving one's innocence after a jury finding of guilt is
almost impossible. While reviewing courts are willing to entertain all kinds of
collateral attacks where a sentence of death is involved, they very rarely
dispute the jury's interpretation of the evidence. This is, perhaps, as it
should be. But if an innocent man has been found guilty, he must then depend on
the good faith of the prosecutor's office to help him establish 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. [Footnote 4/157]
No matter how careful courts are, the possibility of
perjured testimony, mistaken honest testimony, and human error remain all too
real. [Footnote 4/158] We have no way of
Page 408 U. S. 368
judging how many innocent persons have been executed, but we
can be certain that there were some. Whether there were many is an open
question 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." [Footnote 4/159] 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. [Footnote 4/160] "
Page 408 U. S. 369
The deleterious effects of the death penalty are also felt
otherwise than at trial. For example, its very existence "inevitably
sabotages a social or institutional program of reformation." [Footnote 4/161] 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. [Footnote 4/162]"
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. [Footnote 4/163] For this reason alone, capital punishment
cannot stand.
Page 408 U. S. 370
VII
To arrive at the conclusion that the death penalty violates
the Eighth Amendment, we have had to engage in a long and tedious journey. The
amount of information that we have assembled and sorted is enormous.
Page 408 U. S. 371
Yet I firmly believe that we have not deviated in the
slightest from the principles with which we began.
At a time in our history when the streets of the Nation's
cities inspire fear and despair, rather than pride and hope, it is difficult to
maintain objectivity and concern for our fellow citizens. But the measure of a
country's greatness is its ability to retain compassion in time of crisis. No
nation in the recorded history of man has a greater tradition of revering
justice and fair treatment for all its citizens in times of turmoil, confusion,
and tension than ours. This is a 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" [Footnote 4/164] and join the approximately 70 other
jurisdictions in the world which celebrate their regard for civilization and
humanity by shunning capital punishment. [Footnote 4/165]
I concur in the judgments of the Court.
[Appendices I, II, and III follow.]
Page 408 U. S. 372
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.
268 Parl.Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor
Gardiner).
Compare, e.g., Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 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, 402 U. S. 226 (1971) (separate opinion of Black,
J.); Witherspoon v. Illinois, 391 U. S. 510, 391 U. S. 542 (1968) (WHITE, J., dissenting).
See generally Frankel,
Book Review, 85 Harv.L.Rev. 354, 362 (1971).
Granucci, "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 848 (1969).
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).
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).
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.
E.g., 2 J.
Story, On the Constitution § 1903, p. 650 (5th ed. 1891).
2 G. Trevelyan, History of England 467 (1952 reissue).
Granucci, supra, n. 5, at 854.
Id. at
855.
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.
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.
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.
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.
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.
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).
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.
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 217 U. S. 367.
Id. at 217 U. S. 373.
Ibid.
Ibid.
Id. at 217 U. S. 381.
Id. at 217 U. S. 389-413. Mr. Justice Black expressed a similar point
of view in his separate opinion in McGautha v. California, 402
U.S. at 402 U. S. 226 (1971).
Badders was found guilty on seven counts of using the mails
as part of a scheme to defraud. He was sentenced to concurrent five-year
sentences and to a $1,000 fine on each count. The Court summarily rejected his
claim that the sentence was a cruel and unusual punishment. In United
States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407 (1921), the Court upheld the denial of
second-class mailing privileges to a newspaper that had allegedly printed
articles conveying false reports of United States conduct during the First
World War with intent to cause disloyalty. Mr. Justice Brandeis dissented, and
indicated his belief that the "punishment" was unusual and possibly
excessive under Weems v. United States, 217 U. S. 349 (1910). There is nothing in either of these
cases demonstrating a departure from the approach used in Weems, or
adding anything to it.
Mr. Justice Frankfurter was the only member of the Court
unwilling to make this assumption. However, like Chief Justice Fuller in In
re Kemmler, 136 U. S. 436 (1890), he examined the propriety of the
punishment under the Due Process Clause of the Fourteenth Amendment. 329 U.S.
at 329 U. S. 471. As MR. JUSTICE POWELL makes clear, Mr. Justice
Frankfurter's analysis was different only in form from that of his Brethren; in
substance, his test was fundamentally identical to that used by the rest of the
Court.
Id. at 329 U. S. 463.
English law required a second attempt at execution if the
first attempt failed. L. Radzinowicz, A History of English Criminal Law 185-186
(1948).
MR. JUSTICE BRENNAN concurred, and concluded that the
statute authorizing deprivations of citizenship exceeded Congress' legislative
powers. 356 U.S. at 356 U. S. 114.
Id. at 356 U. S. 101.
370 U.S. at 370 U. S. 666.
Robinson v. California, 370 U. S. 660 (1962), removes any lingering doubts as to
whether the Eighth Amendment's prohibition against cruel and unusual
punishments is binding on the States. See also Powell v. Texas, 392 U. S. 514 (1968).
Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958). See also Weems v. United
States, 217 U.S. at 217 U. S. 373; Robinson v. California, 370
U.S. at 370 U. S. 666. See also n. 19, supra.
E.g., McGautha v. California, 402 U.S. at 402 U. S. 226 (separate opinion of Black, J.); Trop
v. Dulles, supra, at 356 U. S. 99 (Warren, C.J.), 125 (Frankfurter, J.,
dissenting).
See, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S. at 329 U. S. 474 (Burton, J., dissenting); Trop v.
Dulles, supra, at 356 U. S. 99 (Warren, C.J.); Rudolph v. Alabama, 375 U. S. 889 (1963) (Goldberg, J., dissenting from
denial of certiorari); F. Frankfurter, Of Law and Men 81 (1956).
There is no violation of the principle of stare
decisis in a decision that capital punishment now violates the Eighth
Amendment. The last case that implied that capital punishment was still
permissible was Trop v. Dulles, supra, at 356 U. S. 99. Not only was the implication purely dictum, but
it was also made in the context of a flexible analysis that recognized that, as
public opinion changed, the validity of the penalty would have to be
reexamined. Trop v. Dulles is nearly 15 years old now, and 15
years change many minds about many things. MR. JUSTICE POWELL suggests,
however, that our recent decisions in Witherspoon v. Illinois, 391 U. S. 510 (1968), and McGautha v. California, 402 U. S. 183 (1971), imply that capital punishment is constitutionally
permissible because, if they are viewed any other way, they amount to little
more than an academic exercise. In my view, this distorts the "rule of
four" by which this Court decides which cases and which issues it will
consider, and in what order. See United States v. Generes, 405 U. S. 93, 405 U. S. 113 (1972) (DOUGLAS, J., dissenting). There are
many reasons why four members of the Court might have wanted to consider the
issues presented in those cases before considering the difficult question that
is now before us. While I do not intend to catalogue these reasons here, it
should suffice to note that I do not believe that those decisions can, in any
way, fairly be used to support any inference whatever that the instant cases
have already been disposed of sub silentio.
Ancel, The Problem of the Death Penalty, in Capital
Punishment 4-5 (T. Sellin ed. 1967); G. Scott, The History of Capital
Punishment 1 (1950).
Scott, supra, n. 38, at 1.
Id. at
2; Ancel, supra, n. 38, at 4-5.
The Code of Hammurabi is one of the first known laws to have
recognized the concept of an "eye for an eye," and consequently to
have accepted death as an appropriate punishment for homicide. E. Block, And
May God Have Mercy . . . 13-14 (1962).
Scott, supra, n. 38, at 19-33.
Id. at
5. Prior to this time, the laws of Alfred (871-901) provided that one who
willfully slayed another should die, at least under certain circumstances. 3 J.
Stephen, History of the Criminal Law of England 24 (1883). But punishment was
apparently left largely to private enforcement.
T. Plucknett, A Concise History of the Common Law 424-454
(5th ed. 1956).
Introduction in H. Bedau, The Death Penalty in America 1
(1967 rev. ed.).
Ibid.
4 W. Blackstone, Commentaries *377. How many persons were
actually executed for committing capital offenses is not known. See Bedau, supra, n.
45, at 3; L. Radzinowicz, A History of English Criminal Law 151, 153 (1948);
Sellin, Two Myths in the History of Capital Punishment, 50 J.Crim.L.C. &
P.S. 114 (1959). "Benefit of clergy" mitigated the harshness of the
law somewhat. This concept arose from the struggle between church and state and
originally provided that members of the clergy should be tried in
ecclesiastical courts. Eventually, all first offenders were entitled to
"benefit of clergy." Bedau, supra, at 4.
G. Haskins, The Capitall Lawes of
New England, Harv.L.Sch.Bull. 111 (Feb. 1956).
Compare Haskins, supra, n.
48, with E. Powers, Crime and Punishment in Early
Massachusetts, 1620-1692 (1966). See also Bedau, supra, n.
45, at 5.
Id. at
6.
Filler, Movements to Abolish the Death Penalty in the United
States, 284 Annals Am.Acad.Pol. & Soc.Sci. 124 (1952).
Ibid.
Ibid. (footnotes
omitted).
Ibid.; Bedau, supra, n.
45, at 6.
For an unknown reason, Pennsylvania adopted the harsher
penal code of England upon William Penn's death in 1718. There was no evidence,
however of an increase in crime between 1682 and 1718. Filler, supra, n.
51, at 124. In 1794, Pennsylvania eliminated capital punishment except for
"murder of the first degree," which included all "willful,
deliberate or premeditated" killings. The death penalty was mandatory for
this crime. Pa.Stat. 1794, c. 1777. Virginia followed Pennsylvania's lead and
enacted similar legislation. Other States followed suit.
Filler, supra, n. 51, at 124.
Id. at
124-125.
Reprinted in 12 Am.J.Legal Hist. 122 (1968).
His advice was in large measure followed. See n.
55, supra.
One scholar has noted that the early abolition movement in
the United States lacked the leadership of major public figures. Bedau, supra, n.
45, at 8.
Ibid.; Filler, supra, n.
51, at 126-127.
See Scott, supra, n.
38, at 114-116.
Filler, supra, n. 51, at 127.
Davis, The Movement to Abolish Capital Punishment in
America, 1787-1861, 63 Am.Hist.Rev. 23, 33 (1957).
Filler, supra, n. 51, at 128. Capital
punishment was abolished for all crimes but treason. The law was enacted in
1846, but did not go into effect until 1847.
Davis, supra, n. 64, at 29-30.
Filler, supra, n. 51, at 129.
Id. at
130.
Ibid.
Bedau, supra, n. 45, at 10.
Davis, supra, n. 64, at 46.
Kansas restored it in 1935. See Appendix I
to this opinion, infra at 408 U. S. 372.
See McGautha v. California, 402 U.S. at 402 U. S. 199.
Filler, supra, n. 51, at 133. See
also Winston v. United States, 172 U. S. 303 (1899). More than 90% of the executions
since 1930 in this country have been for offenses with a discretionary death
penalty. Bedau, The Courts, the Constitution, and Capital Punishment, 1968 Utah
L.Rev. 201, 204.
See n. 72, supra.
Filler, supra, n. 51, at 134.
Sellin, Executions in the United States, in Capital
Punishment 35 T. Sellin ed. (1967); United Nations, Department of Economic and
Social Affairs, Capital Punishment, Pt. II, �� 82-85, pp. 101-102 (1968).
New York authorizes the death penalty only for murder of a
police officer or for murder by a life term prisoner. N.Y.Penal
Code § 125.30 (1967).
See generally Bedau, supra, n.
74. Nine States do not authorize capital punishment under any circumstances:
Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia, and
Wisconsin. Puerto Rico and the Virgin Islands also have no provision for
capital punishment. Bedau, supra, n. 45, at 39. Those States
that severely restrict the imposition of the death penalty are: New Mexico,
N.M.Stat.Ann. § 40A-29-2.1 (1972); New York, N.Y.Penal Code § 125.30 (1967);
North Dakota, N.D.Cent.Code §§ 12-07-01, 12-27-13 (1960); Rhode Island,
R.I.Gen.Laws § 1123-2 (1970); Vermont, Vt.Stat.Ann.,
Tit. 13, § 2303 (Supp. 1971). California is the only State in which the
judiciary has declared capital punishment to be invalid. See n.
1, supra.
See generally Hearings
on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the
Senate Committee on the Judiciary, 90th Cong., 2d Sess. (1968).
Extensive compilations of the capital crimes in particular
States can be found in Bedau, supra, n. 45, at 39-52, and in
the Brief for the Petitioner in No. 68-5027, App. G (Aikens v. California, 406 U. S. 813 (1972)). An attempt is made to break down
capital offenses into categories in Finkel, A Survey of Capital Offenses, in
Capital Punishment 22 (T. Sellin ed. 1967).
Bedau, supra, n. 45, at 43.
Ibid. See
also Ralph v. Warden, 438 F.2d 786, 791-792 (CA4 1970).
See Hart,
Murder and the Principles of Punishment: England and the United States, 52
Nw.U.L.Rev. 433, 448 (1957); Report of Royal Commission on Capital Punishment,
1949-1953, Cmd. 8932, �� 52-53, PP. 17-18 (1953). See generally, Reichert,
Capital Punishment Reconsidered, 47 Ky.L.J. 397, 399 (1959).
See, e.g., C.
Beccaria, On Crimes and Punishment (tr. by H. Paolucci 1963); 1 Archibold, On
the Practice, Pleading, and Evidence in Criminal Cases §§ 11-17, pp. XV-XIX (T.
Waterman 7th ed. 1860).
See, e.g., Rudolph v. Alabama, 375 U. S. 889 (1963) (Goldberg, J., dissenting from
denial of certiorari); Trop v. Dulles, 356 U.S. at 356 U. S. 97 (Warren, C.J.), 356 U. S. 113 (BRENNAN, J., concurring); Morissette
v. United States, 342 U. S. 246 (1952); Williams v. New York, 337 U. S. 241 (1949). In Powell v. Texas, 392
U.S. at 392 U. S. 530, we said:
"This Court has never held that anything in the
Constitution requires that penal sanctions be designed solely to achieve
therapeutic or rehabilitative effects. . . ."
This is, of course, correct, since deterrence and isolation
are clearly recognized as proper. E.g., Trop v. Dulles, supra, at 356 U. S. 111 (BRENNAN, J., concurring). There is
absolutely nothing in the language, the rationale, or the holding of Powell
v. Texas, that implies that retribution for its own sake is a proper
legislative aim in punishing.
See, e.g., Vellenga,
Christianity and The Death Penalty, in Bedau, supra, n. 45, at
123-130; Hook, The Death Sentence, in Bedau, supra, at
146-154. See also Ehrenzweig, A Psychoanalysis of the Insanity
Plea -- Clues to the Problems of Criminal Responsibility and Insanity in the
Death Cell, 73 Yale L.J. 425, 433-439 (1964).
2 J. Story, On the Constitution § 1903, p. 650 (5th ed.
1891).
Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1275
(1968); Note, Justice or Revenge?, 60 Dick.L.Rev. 342,
343 (1956); Royal Commission, supra, n. 84, � 55, at
18.
Barzun, In Favor of Capital Punishment, in Bedau, supra, n.
45, at 154, 163; Hook, supra, n. 87, at 152.
See Commonwealth v. Elliott, 371 Pa. 70, 78, 89 A.2d 782, 786 (1952) (Musmanno, J.,
dissenting); F. Frankfurter, Of Law and Men 101 (1956). The assertion that life
imprisonment may somehow be more cruel than death is
usually rejected as frivolous. Hence, I confess to surprise at finding the
assertion being made in various ways in today's opinions. If there were any
merit to the contention, it would do much to undercut even the retributive
motive for imposing capital punishment. In any event, there is no better
response to such an assertion than that of former Pennsylvania Supreme Court
Justice Musmanno in his dissent in Commonwealth v. Elliott, supra, at
79-80, 89 A.2d at 787:
"One of the judges of the lower court indicated from
the bench that a sentence of life imprisonment is not to be regarded as a
leaser penalty than that of death. I challenge that statement categorically. It
can be stated as a universal truth stretching from nadir to zenith that,
regardless of circumstances, no one wants to die. Some person may, in an
instant of spiritual or physical agony express a desire for death as an anodyne
from intolerable pain, but that desire is never full-hearted, because there is
always the reserve of realization that the silken cord of life is not broken by
a mere wishing. There is no person in the actual extremity of dropping from the
precipice of life who does not desperately reach for a crag of time to which to
cling even for a moment against the awful eternity of silence below. With all
its 'slings and arrows of outrageous fortune,' life is yet sweet and death is
always cruel."
Attention should also be given to the hypothesis of Sir
James Stephen, quoted in the text, infra at 408 U. S. 347-348.
See Bedau,
Deterrence and the Death Penalty: A Reconsideration, 61 J.Crim.L.C. & P.S.
539, 542 (1970).
Royal Commission, supra, n. 84, � 59, at
20.
United Nations, supra, n. 77, 1134, at 117.
The great advantage that this country has is that it can compare abolitionist
and retentionist States with geographic, economic, and cultural similarities.
Reprinted in Royal Commission, supra, n.
84, � 57, at 19.
United Nations, supra, n. 77, � 139, at
118.
See Bedau, supra, n.
45, at 43.
T. Sellin, The Death Penalty, A Report for the Model Penal
Code Project of the American Law Institute (ALI) 5 (1959); Morris, Thoughts on
Capital Punishment, 35 Wash.L.Rev. & St. Bar J. 335, 340 (1960).
Sellin, supra, n. 98, at 21.
Such crimes might include lesser forms of homicide or
homicide by a child or a lunatic. Id. at 22; The Laws, The
Crimes, and The Executions, in Bedau, supra, n. 45, at 32, 61.
Sutherland, Murder and the Death Penalty, 15 J.Crim.L. &
Crim. 522 (1925); ALI, supra, n. 98, at 22; Bedau, supra, n.
45, at 73.
Executions were chosen for purposes of comparison because whatever
impact capital punishment had would surely be most forcefully felt where
punishment was actually imposed.
See Appendix
II to this opinion, infra at 408 U. S. 373.
See Appendix
III to this opinion, infra at 408 U. S. 374.
United Nations, supra, n. 77, � 134, at
117.
Royal Commission, supra, n. 84, at
349-351. Accord, Vold, Extent and Trend of Capital Crimes in
United States, 284 Annals Am.Acad.Pol. & Soc.Sci. 1, 4 (1952).
Sellin, supra, n. 98, at 34.
See, e.g., Guillot,
Abolition and Restoration of the Death Penalty in Missouri, in Bedau, supra, n.
45, at 351, 358-359; Cobin, Abolition and Restoration of the Death Penalty in
Delaware, in Bedau, supra, at 359, 371-372.
Sellin, supra, n. 98, at 38-39; Royal
Commission, supra, n. 84, at 353; United Nations, supra, n.
77, 130-136, at 116-118.
One problem is that the statistics for the 19th century are
especially suspect; another is that de jure abolition may have
been preceded by de facto abolition which would have distorted
the figures. It should also be noted that the figures for several States reflect
homicide convictions, rather than homicide rates.
Royal Commission, supra, n. 84, � 65, at
23; 346-349; United Nations, supra, n. 77, 132, at 117.
Hayner & Cranor, The Death Penalty in Washington State,
284 Annals Am.Acad.Pol. & Soc.Sci. 101 (1952); Graves, A Doctor Looks at
Capital Punishment 10 Med.Arts & Sci. 137 (1956); Dann, The Deterrent
Effect of Capital Punishment, Bull. 29, Friends Social Service Series,
Committee on Philanthropic Labor and Philadelphia Yearly Meeting of Friends
(1935); Savitz, A Study in Capital Punishment, 49 J.Crim.L.C. & P.S. 338
(1958); United Nations, supra, n. 77, � 135, at
118.
Graves, supra, n. 112; Hearings, supra, n.
80, at 23 (testimony of C. Duffy), 126 (statement of Dr. West); T. Reik, The
Compulsion to Confess 474 (1959); McCafferty, Major Trends in the Use of
Capital Punishment, 25 Fed.Prob., No. 3, P. 15 (Sept. 1961). Capital punishment
may provide an outlet for suicidal impulses or a means of achieving notoriety,
for example.
See, e.g., Gerstein,
A Prosecutor Looks at Capital Punishment, 51 J.Crim.L.C. & P.S. 252 (1960);
Hoover, Statements in Favor of the Death Penalty, in Bedau, supra, n.
45, at 130; Younger, Capital Punishment: A Sharp Medicine Reconsidered, 42
A.B.A.J. 113 (1956). But see Symposium on Capital Punishment,
District Attorneys' Assn. of State of New York, Jan. 27, 1961, 7 N.Y.L.F. 249,
267 (1961) (statement of A. Herman, head of the homicide bureau of the New York
City District Attorney's office).
Sellin, supra, n. 98, at 56-58; Koeninger,
Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969);
Sellin, Does the Death Penalty Protect Municipal Police, in Bedau, supra, n.
45, at 284; United Nations, supra, n. 77, � 136, at
118.
L. Lawes, Life and Death in Sing Sing 150 (1928); McGee,
Capital Punishment as Seen by a Correctional Administrator, 28 Fed.Prob., No.
2, p. 11 (June 1964); 1950 Survey of the International Penal and Penitentiary
Commission, cited in Sellin, supra, n. 98, at 70-72; Sellin,
Prisons Homicides, in Capital Punishment 154 (T. Sellin ed. 1967); cf. Akman,
Homicides and Assaults in Canadian Prisons, in Capital Punishment, supra, at
161-168. The argument can be made that the reason for the good record of
murderers is that those who are likely to be recidivists are executed. There
is, however, no evidence to show that, in choosing between life and death
sentences, juries select the lesser penalties for those persons they believe
are unlikely to commit future crimes.
E.g., United
Nations, supra, n. 77, � 144, at 119; B. Eshelman & F. Riley, Death Row Chaplain
224 (1962). This is supported also by overwhelming statistics showing an
extremely low rate of recidivism for convicted murderers who are released from
prison. Royal Commission, supra, n. 84, App. 15, at 486-491;
Sellin, supra, n. 98, at 72-79; United Nations, supra, n.
77, � 144, at 119.
See, e.g., The
Question of Deterrence, in Bedau, supra, n. 45, at 267.
Ibid. and
n. 11; Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1282-1283 (1968).
See n.
113, supra.
United Nations, supra, n. 77, � 159, at
123.
See nn.
58 and 59, supra, and accompanying text.
See n.
62, supra, and accompanying text.
Graves, A Doctor Looks at Capital Punishment, 10 Med.Arts.
& Sci. 137 (1956); Royal Commission, supra, n. 84, � 60, at
20-21; Schuessler, The Deterrent Influence of the Death Penalty, 284 Annals
Am.Acad.Pol. & Soc.Sci. 54 (1952); United Nations, supra, n.
77, � 142, at 119; M. Wolfgang, Patterns in Criminal Homicide
(1958).
One would assume that if deterrence were enhanced by capital
punishment, the increased deterrence would be most effective with respect to
the premeditating murderer or the hired killer who plots his crime before
committing it. But such people rarely expect to be caught, and usually assume
that, if they are caught, they will either be acquitted or sentenced to prison.
This is a fairly dependable assumption, since a reliable estimate is that one
person is executed for every 100 capital murders known to the police. Hart,
Murder and the Principles of Punishment: England and the United States, 52
Nw.U.L.Rev. 433, 444-445 (1957). For capital punishment to deter anybody, it
must be a certain result of a criminal act, cf. Ex parte Medley, 134 U. S. 160 (1890), and it is not. It must also follow
swiftly upon completion of the offense, and it cannot in our complicated due process
system of justice. See, e.g., The Question of Deterrence, in
Bedau, supra, n. 45, at 258, 271-272; DiSalle, Trends in the
Abolition of Capital Punishment, 1969 U.Toledo L.Rev. 1, 4. It is ironic that
those persons whom we would like to deter the most have the least to fear from
the death penalty, and recognize that fact. Sellin, Address for Canadian
Society for Abolition of the Death Penalty, Feb. 7, 1965, in 8 Crim.L.Q. 36, 48
(1966); Proceedings of the Section of Criminal Law of the ABA, Aug. 24, 1959,
p. 7 (M. DiSalle).
In reaching this conclusion, I maintain agreement with that
portion of Stephen's hypothesis that suggests that convicted criminals fear
death more than they fear life imprisonment. As I stated earlier, the death
penalty is a more severe sanction. The error in the hypothesis lies in its
assumption that, because men fear death more than imprisonment after they are
convicted, they necessarily must weigh potential penalties prior to committing
criminal acts, and that they will conform their behavior so as to insure that,
if caught, they will receive the lesser penalty. It is extremely unlikely that
much thought is given to penalties before the act is committed, and, even if it
were, the preceding footnote explains why such thought would not lead to
deterrence.
See n.
117, supra.
See, e.g., Royal
Commission, supra, n. 84, App. 15, at 486-491.
Jackson applies
to the States under the criteria articulated in Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 149 (1968).
See, e.g., Barzun,
In Favor of Capital Punishment, in Bedau, supra, n. 45, at
154.
See, e.g., Death
as a Punishment, in Bedau, supra, at 214, 226-228; Caldwell,
Why is the Death Penalty Retained?, 284 Annals
Am.Acad.Pol. & Soc.Sci. 45, 50 (1952); Johnson, Selective Factors in
Capital Punishment, 36 Social Forces 165, 169 (1957); Sellin, Capital
Punishment, 25 Fed.Prob., No. 3, p. 3 (Sept. 1961). We should not be surprised
at the lack of merit in the eugenic arguments. There simply is no evidence that
mentally ill persons who commit capital offenses constitute a psychiatric
entity distinct from other mentally disordered patients, or that they do not
respond as readily to treatment. Cruvant & Waldrop, The Murderer in the
Mental Institution, 284 Annals Am.Acad.Pol. & Soc.Sci. 35, 43 (1952).
Caldwell, supra, n. 130, at 48;
McGee, supra, n. 116.
McGee, supra, at 13-14; Bailey,
Rehabilitation on Death Row, in Bedau, supra, n. 45, at 556.
T. Thomas, This Life We Take 20 (3d ed. 1965).
Stein v. New York, 346 U. S. 156, 346 U. S. 196 (1953) (Jackson, J.); cf. Reid v.
Covert, 354 U. S. 1, 354 U. S. 77 (1957) (Harlan, J., concurring in result).
See, e.g., Witherspoon v. Illinois, 391 U. S. 510 (1968).
Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch
Review 351 (1964).
See, e.g., Caritativo v. California, 357 U. S. 549 (1958).
To others, as well as to the author of this opinion, this
practice has seemed a strange way to spend money. See, e.g., T.
Arnold, The Symbols of Government 10-13 (1935).
Slovenko, supra, n. 136, at 363.
B. Eshelman & F. Riley, Death Row Chaplain 226 (1962);
Caldwell, supra, n. 130, at 48; McGee, supra, n.
116, at 13; Sellin, supra, n. 130, at 3 (Sept. 1961).
This analysis parallels in some ways the analysis used in
striking down legislation on the ground that it violates Fourteenth Amendment
concepts of substantive due process. See Packer, Making the
Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1074 (1964). There is one
difference, however. Capital punishment is unconstitutional because it is
excessive and unnecessary punishment, not because it is irrational.
The concepts of cruel and unusual punishment and substantive
due process become so close as to merge when the substantive due process
argument is stated in the following manner: because capital punishment deprives
an individual of a fundamental right (i.e., the right to
life), Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462 (1938), the State needs a compelling
interest to justify it. See Note, The Death Penalty Cases, 56
Calif.L.Rev. 1268, 1324-1354 (1968). Thus stated, the substantive due process
argument reiterates what is essentially the primary purpose of the Cruel and
Unusual Punishments Clause of the Eighth Amendment -- i.e., punishment
may not be more severe than is necessary to serve the legitimate interests of
the State.
THE CHIEF JUSTICE asserts that if we hold that capital
punishment is unconstitutional because it is excessive, we will next have to determine
whether a 10-year prison sentence rather than a five-year sentence, is also
excessive, or whether a $5 fine would not do equally well as a $10 fine. He may
be correct that such determinations will have to be made, but, as in these
cases, those persons challenging the penalty will bear a heavy burden of
demonstrating that it is excessive. These cases arise after 200 years of
inquiry, 200 years of public debate and 200 years of marshaling evidence. The
burden placed on those challenging capital punishment could not have been
greater. I am convinced that they have met their burden. Whether a similar
burden will prove too great in future cases is a question that we can resolve
in time.
United States v. Rosenberg, 195 F.2d 583, 608 (CA2) (Frank, J.), cert.
denied, 344 U.S. 838 (1952). See also Kasper v. Brittain, 245
F.2d 92, 96 (CA6), cert. denied, 355 U.S. 834 (1957)
("shocking to the sense of justice"); People v. Morris, 80
Mich. 634, 639, 45 N.W. 591, 592 (1890) ("shock the moral sense of the
people"). In Repouille v. United States, 165 F.2d 152
(CA2 1947), and Schmidt v. United States, 177 F.2d 450, 451 (CA2 1949), Judge
Learned Hand wrote that the standard of "good moral character" in the
Nationality Act was to be judged by "the generally accepted moral
conventions current at the time." 165 F.2d at 153. Judge Frank, who was
later to author the Rosenberg opinion, in which a similar
standard was adopted, dissented in Repouille and urged that
the correct standard was the "attitude of our ethical leaders." 165
F.2d at 154. In light of Rosenberg, it is apparent that Judge
Frank would require a much broader based moral approbation before striking down
a punishment as cruel and unusual than he would for merely holding that conduct
was evidence of bad moral character under a legislative act. 1
United States v. Rosenberg, supra, at 608.
See Repouille v. United States, supra, at 153. In Witherspoon v. Illinois, 391
U.S. at 391 U. S. 520, the Court cited a public opinion poll that
showed that 42% of the American people favored capital punishment, while 47%
opposed it. But the polls have shown great fluctuation. See What
Do Americans Think of the Death Penalty?, in
Bedau, supra, n. 45, at 231-241.
The fact that the constitutionality of capital punishment
turns on the opinion of an informed citizenry undercuts the argument that,
since the legislature is the voice of the people, its retention of capital
punishment must represent the will of the people. So few
people have been executed in the past decade that capital punishment is a
subject only rarely brought to the attention of the average American.
Lack of exposure to the problem is likely to lead to indifference, and
indifference and ignorance result in preservation of the status quo, whether
or not that is desirable, or desired.
It might be argued that, in choosing to remain indifferent
and uninformed, citizens reflect their judgment that capital punishment is
really a question of utility, not morality, and not one, therefore. of great
concern. As attractive as this is on its face, it cannot be correct, because
such an argument requires that the choice to remain ignorant or indifferent be
a viable one. That, in turn, requires that it be a knowledgeable choice. It is
therefore imperative for constitutional purposes to attempt to discern the
probable opinion of an informed electorate.
Cf. Packer,
Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1076 (1964).
E.g., Gold,
A Psychiatric Review of Capital Punishment, 6 J. Forensic Sci. 465, 466 (1961);
A. Koestler, Reflections on Hanging 164 (1957); cf. C. Duffy
& A. Hirshberg, 88 Men and 2 Women 257-258 (1962).
Hearings, supra, n. 80, at 11 (statement of
M. DiSalle).
National Prisoner Statistics No. 45, Capital Punishment
1930-1968, p. 7 (Aug. 1969).
Ibid.
Ibid.
Alexander, The Abolition of Capital Punishment, Proceedings
of the 96th Congress of Correction of the American Correctional Association,
Baltimore, Md., 57 (1966); Criminal Justice: The General Aspects, in
Bedau, supra, n. 45, at 405, 411-414; Bedau. Death Sentences
in New Jersey, 1907-1960, 19 Rutgers L.Rev. 1, 18-21, 52-53 (1964); R. Clark,
Crime in America 335 (1970); Hochkammer, The Capital Punishment Controversy, 60
J.Crim.L.C. & P.S. 360, 361-362 (1969); Johnson, The Negro and Crime, 217
Annals Am.Acad.Pol. & Soc.Sci. 93, 95, 99 (1941); Johnson, Selective
Factors in Capital Punishment, 36 Social Forces 165 (1957); United
Nations, supra, n. 77, � 69, at 98; Williams, The Death Penalty and the Negro, 67
Crisis 501, 511 (1960); M. Wolfgang & B. Cohen, Crime and Race: Conceptions
and Misconceptions 77, 80-81, 85-86 (1970); Wolfgang, Kelly, & Nolde, Comparison
of the Executed and the Commuted Among Admissions to Death Row, 53 J.Crim.L.C.
& P.S. 301 (1962). MR. JUSTICE DOUGLAS explores the discriminatory
application of the death penalty at great length, ante at 408 U. S. 249-257.
National Prisoner Statistics No. 45, Capital Punishment
1930-1968, p. 28 (Aug. 1969).
Men kill between four and five times more frequently than
women. See Wolfgang, A Sociological Analysis of Criminal
Homicide, in Bedau, supra, n. 45, at 74, 75. Hence, it would
not be irregular to see four or five times as many men executed as women. The
statistics show a startlingly greater disparity, however. United Nations, supra, n.
77, 67, at 97-98.
Criminal Justice: The General Aspects, in Bedau, supra, at
405, 411; Bedau, Capital Punishment in Oregon, 1903-64, 45 Ore.L.Rev. 1 (1965);
Bedau, Death Sentences in New Jersey, 1907-1960, 19 Rutgers L.Rev. 1 (1964); R.
Clark, Crime in America 335 (1970); C. Duffy & A. Hirshberg, 88 Men and 2
Women 256-257 (1962); Carter & Smith, The Death Penalty in California: A
Statistical and Composite Portrait, 15 Crime & Delin. 62 (1969);
Hearings, supra, n. 80, at 124-125 (statement of Dr. West);
Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132
(1969); McGee, supra, n. 116, at 11-12.
See, e.g., E. Borchard, Convicting the Innocent (1932); J.
Frank & B. Frank, Not Guilty (1957); E. Gardner, Court of Last Resort
(1952). These three books examine cases in which innocent persons were
sentenced to die. None of the innocents was actually executed, however. Bedau
has abstracted 74 cases occurring in the United States since 1893 in which a
wrongful conviction for murder was alleged and usually proved "beyond
doubt." In almost every case, the convictions were sustained on appeal.
Bedau seriously contends that innocent persons were actually executed. Murder,
Errors of Justice, and Capital Punishment, in Bedau, supra, n.
45, at 434, 438. See also Black, The Crisis in Capital
Punishment, 31 Md.L.Rev. 289 (1971); Hirschberg, Wrongful Convictions, 13 Rocky
Mt.L.Rev. 20 (1940); Pollak, The Errors of Justice, 284 Annals Am.Acad.Pol.
& Soc.Sci. 115 (1952).
E. Gardner, Court of Last Resort 178 (1952).
MR. JUSTICE DOUGLAS recognized this fact when he wrote:
"One who reviews the records of criminal trials need
not look long to find an instance where the issue of guilt or innocence hangs
in delicate balance. A judge who denies a stay of execution in a capital case
often wonders if an innocent man is going to his death. . . . "
"Those doubts exist because our system of criminal
justice does not work with the efficiency of a machine -- errors are made and
innocent as well as guilty people are sometimes punished. . . . "
". . . We believe that it is better for ten guilty
people to be set free than for one innocent man to be unjustly
imprisoned."
"Yet the sad truth is that a cog in the machine often
slip: memories fail; mistaken identifications are made; those who wield the
power of life and death itself -- the police officer, the witness, the
prosecutor, the juror, and even the judge -- become overzealous in their
concern that criminals be brought to justice. And at times there is a venal
combination between the police and a witness."
Foreword, J. Frank & B. Frank, Not Guilty 11-12 (1957).
There has been an "incredible lag" between the
development of modern scientific methods of investigation and their application
to criminal cases. When modern methodology is available, prosecutors have the
resources to utilize it, whereas defense counsel often may not. Lassers, Proof
of Guilt in Capital Cases -- An Unscience, 58 J.Crim.L.C. & P.S. 310 (1967).
This increases the chances of error.
Ehrmann, The Death Penalty and the Administration of
Justice, 284 Annals Am.Acad.Pol. & Soc.Sci. 73, 83 (1952).
F. Frankfurter, Of Law and Men 81 (1956).
B. Eshelman & F. Riley, Death Row Chaplain 222 (1962).
McCafferty, Major Trends in the Use of Capital Punishment,
25 Fed.Prob., No. 3, pp. 15, 21 (Sept. 1961) (quoting Dr. S. Glueck of Harvard
University).
MR. JUSTICE POWELL suggests that this conclusion is
speculative, and he is certainly correct. But the mere recognition of this
truth does not undercut the validity of the conclusion. MR. JUSTICE POWELL
himself concedes that judges somehow know that certain punishments are no
longer acceptable in our society; for example, he refers to branding and
pillorying. Whence comes this knowledge? The answer is that it comes from our
intuition as human beings that our fellow human beings no longer will tolerate
such punishments
I agree wholeheartedly with the implication in my Brother
POWELL's opinion that judges are not free to strike down penalties that they
find personally offensive. But I disagree with his suggestion that it is
improper for judges to ask themselves whether a specific punishment is morally
acceptable to the American public. Contrary to some current thought, judges
have not lived lives isolated from a broad range of human experience. They have
come into contact with many people, many ways of life, and many philosophies.
They have learned to
with their fellow human beings common views of morality. If,
after drawing on this experience and considering the vast range of people and
views that they have encountered, judges conclude that these people would not
knowingly tolerate a specific penalty in light of its costs, then this
conclusion is entitled to weight. See Frankel, Book Review, 85
Harv.L.Rev. 354 (1971). Judges can find assistance in determining whether they
are being objective, rather than subjective, by referring to the attitudes of
the persons whom most citizens consider our "ethical leaders." See
Repouille v. United States, 165 F.2d at 154 (Frank, J., dissenting).
I must also admit that I am confused as to the point that my
Brother POWELL seeks to make regarding the underprivileged members of our
society. If he is stating that this Court cannot solve all of their problems in
the context of this case, or even many of them, I would agree with him. But if
he is opining that it is only the poor, the ignorant, the racial minorities,
and the hapless in our society who are executed; that they are executed for no
real reason other than to satisfy some vague notion of society's cry for
vengeance; and that, knowing these things, the people of this country would not
care, then I most urgently disagree.
There is too much crime, too much killing, too much hatred in
this country. If the legislatures could eradicate these elements from our lives
by utilizing capital punishment, then there would be a valid purpose for the
sanction, and the public would surely accept it. It would be constitutional. As
THE CHIEF JUSTICE and MR. JUSTICE POWELL point out, however, capital punishment
has been with us a long time. What purpose has it served? The evidence is that
it has served none. I cannot agree that the American people have been so
hardened, so embittered, that they want to take the life of one who performs
even the basest criminal act knowing that the execution is nothing more than
bloodlust. This has not been my experience with my fellow citizens. Rather, I
have found that they earnestly desire their system of punishments to make sense
in order that it can be a morally justifiable system. See generally Arnold,
The Criminal Trial As a Symbol of Public Morality, in
Criminal Justice In Our Time 137 (A. Howard ed. 1967).
164 R. Clark, Crime in America 336 (1970).
Some jurisdictions have de facto abolition;
others have de jure. Id. at 330; Hearings, supra, n.
80, at 9-10 (statement of M. DiSalle). See generally Patrick,
The Status of Capital Punishment: A World Perspective, 56 J.Crim.L.C. &
P.S. 397 (1965); United Nations, supra, n. 77, ��
10-17, 63-65, at 83-85, 96-97; Brief for Petitioner in No. 68-5027, App. E (Aikens
v. California, 406 U. S. 813 (1972)).
|408 U.S. 238app1|
APPENDIX I TO OPINION OF MARSHALL, J., CONCURRING
ABOLITION OF THE DEATH PENALTY IN THE UNITED
STATES: 1846-1968
(States are listed according to year most recent action was
taken)
bwm:
Year of Year of
partial complete Year of Year of
State abolition abolition restoration reabolition
New York . . . . 1965 [Footnote 5/1] -- -- --
Vermont. . . . . 1965 [Footnote 5/2] -- -- --
West Virginia. . -- 1965 -- --
Iowa . . . . . . -- 1872 1878 1965
Oregon . . . . . -- 1914 1920 1964
Michigan . . . . 1847 [Footnote 5/3] 1963 -- --
Delaware . . . . -- 1958 1961 --
Alaska . . . . . -- 1957 -- --
Hawaii . . . . . -- 1957 -- --
South Dakota . -- 1915 1939 --
Kansas . . . . . -- 1907 1935 --
Missouri . . . . -- 1917 1919 --
Tennessee. . . . 1915 [Footnote 5/4] -- 1919 --
Washington . . . -- 1913 1919 --
Arizona. . . . . 1916 [Footnote 5/5] -- 1918 --
North Dakota . . 1915 [Footnote 5/6] -- -- --
Minnesota. . . . -- 1911 -- --
Colorado . . . . -- 1897 1901 --
Maine. . . . . . -- 1876 1883 1887
Wisconsin. . . . -- 1853 -- --
Rhode Island . . 1852 [Footnote 5/7] -- -- --
ewm:
Death penalty retained for persons found guilty of killing a
peace officer who is acting in line of duty, and for prisoners under a life
sentence who murder a guard or inmate while in confinement or while escaping
from confinement.
Death penalty retained for persons convicted of first-degree
murder who commit a second "unrelated" murder, and for the
first-degree murder of any law enforcement officer or prison employee who is in
the performance of the duties of his office
Death penalty retained for treason. Partial abolition was
voted in 1846, but was not put into effect until 1847.
Death penalty retained for rape.
Death penalty retained for treason
Death penalty retained for treason, and for first-degree
murder committed by a prisoner who is serving a life sentence for first-degree
murder
Death penalty retained for persons convicted of committing
murder while serving a life sentence for any offense.
Based on National Prisoner Statistics No. 45, Capital
Punishment 1930-1968, p. 30 (Aug. 1969).
Page 408 U. S. 373
|408 U.S. 238app2|
APPENDIX II TO OPINION OF MARSHALL, J., CONCURRING
bwm:
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 1
1921 2.2 2.2 1.7 2.8 3.1 2.9 2
1922 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 3.1
1924 1.5 1.6 .6 2.7 1 2.0 3.5
1925 2.2 1.3 .6 2.7 1.8 3.7
1926 1.1 .9 2.2 2.0 1 3.2 2.9 1
1927 1.9 .7 .8 2.1 6 2.7 2.3 2
1928 l.6 1.3 1.4 1.9 3 2.7 2.7
1929 1.0 1.5 1.4 1.7 6 2.3 2.6 1
1930 1.8 .9 1.4 1.8 2.0 3.2 2
1931 1.4 2.1 1.1 1 2.0 2 2.2 2.7
1932 2.0 .2 1.1 2.1 1 l.6 2.9
1933 3.3 2.7 l.6 2.5 1.9 1.8
1934 1.1 1.4 1.9 2.2 4 1.8 2.4
1935 1.4 1.0 .3 1.8 4 1.0 1.9
1936 2.2 1.0 2.1 l.6 2 1.2 2.7 1
1937 1.4 1.8 1.8 1.9 2.3 2.0 1
1938 1.5 1.8 1.3 1.3 3 1.2 2.1 1
1939 1.2 2.3 1 .8 1.4 2 l.6 1.3
1940 1.5 1.4 .8 1.5 1.4 1.8 2
1941 1.1 .4 2.2 1.3 1 .8 2.2
1942 1.7 .2 .9 1.3 2 1.2 2.5
1943 1.7 .9 .6 .9 3 1.5 l.6 2
1944 1.5 1.1 .3 1.4 .6 1.9 1
1945 .9 .7 2.9 1.5 1.1 1.5 1
1946 1.4 .8 1.7 1.4 1 1.5 l.6 3
1947 1.2 .6 1.1 1 l.6 2 1.5 1.9
1948 1.7 1.0 .8 1.4 2.7 1.7 1
1949 1.7 1.5 .5 1.1 .5 1.8
1950 1.5 1.3 .5 1.3 1.5 1.4
1951 2.3 .6 .5 1.0 .9 2.0
1952 1.0 1.5 .5 1.0 1.5 1.7
1953 1.4 .9 .3 1.0 .6 1.5
1954 1.7 .5 l.6 2 1.0 1.3 1.3
1955 1.2 1.1 .5 1.2 1.7 1.3 3
ewm:
* Maine has totally abolished the death penalty, and Rhode
Island has severely limited its imposition. Based on ALI, supra, n.
98, at 25.
Page 408 U. S. 374
|408 U.S. 238app3|
APPENDIX III TO OPINION OF MARSHALL, J., CONCURRING
bwm:
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
ewm:
* 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.
Page 408 U. S. 375
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN,
MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join, dissenting.
At the outset, it is important to note that only two members
of the Court, MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, have concluded that
the Eighth Amendment prohibits capital punishment for all crimes and under all
circumstances. MR. JUSTICE DOUGLAS has also determined that the death penalty
contravenes the Eighth Amendment, although I do not read his opinion as
necessarily requiring final abolition of the penalty. [Footnote 6/1] For the reasons set forth in Parts I-IV of this
opinion, I conclude that the constitutional prohibition against "cruel and
unusual punishments" cannot be construed to bar the imposition of the
punishment of death.
MR. JUSTICE STEWART and MR. JUSTICE WHITE have concluded
that petitioners' death sentences must be set aside because prevailing
sentencing practices do not comply with the Eighth Amendment. For the reasons
set forth in 408 U. S. I believe this approach fundamentally
misconceives the nature of the Eighth Amendment guarantee and flies directly in
the face of controlling authority of extremely recent vintage.
I
If we were possessed of legislative power, I would either
join with MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL or, at the very least,
restrict the use of capital punishment to a small category of the most heinous
crimes. Our constitutional inquiry, however, must be divorced from personal
feelings as to the morality and efficacy of the death penalty, and 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
Page 408 U. S. 376
self-defining, but, of all our fundamental guarantees, the
ban on "cruel and unusual punishments" is one of the most difficult
to translate into judicially manageable terms. The widely divergent views of
the Amendment expressed in today's opinions reveal the haze that surrounds this
constitutional command. Yet it is essential to our role as a court that we not
seize upon the enigmatic character of the guarantee as an invitation to enact
our personal predilections into law.
Although the Eighth Amendment literally reads as prohibiting
only those punishments that are both "cruel" and "unusual,"
history compels the conclusion that the Constitution prohibits all punishments
of extreme and barbarous cruelty, regardless of how frequently or infrequently
imposed.
The most persuasive analysis of Parliament's adoption of the
English Bill of Rights of 1689 the unquestioned source of the Eighth Amendment
wording -- suggests that the prohibition against "cruel and unusual
punishments" was included therein out of aversion to severe punishments
not legally authorized and not within the jurisdiction of the courts to impose.
To the extent that the term "unusual" had any importance in the
English version, it was apparently intended as a reference to illegal
punishments. [Footnote 6/2]
Page 408 U. S. 377
From every indication, the Framers of the Eighth Amendment
intended to give the phrase a meaning far different from that of its English
precursor. The records of the debates in several of the state conventions
called to ratify the 1789 draft Constitution submitted prior to the addition of
the Bill of Rights show that the Framers' exclusive concern was the absence of
any ban on tortures. [Footnote 6/3] The later inclusion of the "cruel and
unusual punishments" clause was in response to these objections. There was
no discussion of the interrelationship of the terms "cruel" and
"unusual," and there is nothing in the debates supporting the
inference that the Founding Fathers would have been receptive to torturous or
excessively cruel punishments even if usual in character or authorized by law.
The cases decided under the Eighth Amendment are consistent
with the tone of the ratifying debates. In Wilkerson v. Utah, 99 U. S. 130 (1879), this Court held that execution by
shooting was not a prohibited mode of carrying out a sentence of death.
Speaking to the meaning
Page 408 U. S. 378
of the Cruel and Unusual Punishments Clause, the Court
stated,
"[I]t is safe to affirm that punishments of torture . .
. and all others in the same line of unnecessary cruelty, are forbidden by that
amendment to the Constitution."
Id. at 99 U. S. 136. The Court made no reference to the role of the
term "unusual" in the constitutional guarantee.
In the case of In re Kemmler, 136 U. S. 436 (1890), the Court held the Eighth Amendment
inapplicable to the States and added the following dictum:
"So that, if the punishment prescribed for an offence
against the laws of the State were manifestly cruel and unusual, as burning at
the stake, crucifixion, breaking on the wheel, or the like, it would be the
duty of the courts to adjudge such penalties to be within the . . .
[prohibition of the New York constitution]. And we think this equally true of
the Eighth Amendment, in its application to Congress."
". . . Punishments are cruel when they involve torture
or a lingering death; but the punishment of death is not cruel within the
meaning of that word as used in the Constitution. It implies there something
inhuman and barbarous, something more than the mere extinguishment of life.
This language again reveals an exclusive concern with extreme cruelty. The
Court made passing reference to the finding of the New York courts that
electrocution was an 'unusual' punishment, but it saw no need to discuss the
significance of that term as used in the Eighth Amendment."
Opinions in subsequent cases also speak of extreme cruelty
as though that were the sum and substance of the constitutional
prohibition. See O'Neil v. Vermont, 144 U. S. 323, 144 U. S. 339-340 (1892) (Field, J., dissenting); Weems
Page 408 U. S. 379
v. United States, 217 U. S. 349, 217 U. S. 372-373 (1910); Louisiana ex rel. Francis v.
Resweber, 329 U. S. 459, 329 U. S. 464 (1947). As summarized by Mr. Chief Justice
Warren in the plurality opinion in Trop v. Dulles, 356 U. S. 86, 356 U. S. 100 n. 32 (1958):
"Whether the word 'unusual' has any qualitative meaning
different from 'cruel' is not clear. On the few occasions this Court has had to
consider the meaning of the phrase, precise distinctions between cruelty and
unusualness do not seem to have been drawn. See Weems v. United States,
supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases
indicate that the Court simply examines the particular punishment involved in
light of the basic prohibition against inhuman treatment, without regard to any
subtleties of meaning that might be latent in the word 'unusual.'"
I do not suggest that the presence of the word
"unusual" in the Eighth Amendment is merely vestigial, having no
relevance to the constitutionality of any punishment that might be devised. But
where, as here, we consider a punishment well known to history, and clearly
authorized by legislative enactment, it disregards the history of the Eighth
Amendment and all the judicial comment that has followed to rely on the term
"unusual" as affecting the outcome of these cases. Instead, I view
these cases as turning on the single question whether capital punishment is
"cruel" in the constitutional sense. The term "unusual"
cannot be read as limiting the ban on "cruel" punishments, or as
somehow expanding the meaning of the term "cruel." For this reason, I
am unpersuaded by the facile argument that, since capital punishment has always
been cruel in the everyday sense of the word, and has become unusual due to
decreased use, it is, therefore, now "cruel and unusual."
Page 408 U. S. 380
II
Counsel for petitioners properly concede that capital
punishment was not impermissibly cruel at the time of the adoption of the Eighth
Amendment. Not only do the records of the debates indicate that the Founding
Fathers were limited in their concern to the prevention of torture, but it is
also clear from the language of the Constitution itself that there was no
thought whatever of the elimination of capital punishment. The opening sentence
of the Fifth Amendment is a guarantee that the death penalty not be imposed
"unless on a presentment or indictment of a Grand Jury." The Double
Jeopardy Clause of the Fifth Amendment is a prohibition against being
"twice put in jeopardy of life" for the same offense. Similarly, the
Due Process Clause commands "due process of law" before an accused
can be "deprived of life, liberty, or property." Thus, the explicit
language of the Constitution affirmatively acknowledges the legal power to
impose capital punishment; it does not expressly or by implication acknowledge
the legal power to impose any of the various punishments that have been banned
as cruel since 1791. Since the Eighth Amendment was adopted on the same day in
1791 as the Fifth Amendment, it hardly needs more to establish that the death
penalty was not "cruel" in the constitutional sense at that time.
In the 181 years since the enactment of the Eighth
Amendment, not a single decision of this Court has cast the slightest shadow of
a doubt on the constitutionality of capital punishment. In rejecting Eighth
Amendment attacks on particular modes of execution, the Court has more than
once implicitly denied that capital punishment is impermissibly "cruel"
in the constitutional sense. Wilkerson v. Utah, 99 U. S. 130 (1879); Louisiana ex rel. Francis v.
Resweber, 329 U.S. at 329 U. S. 464. In
Page 408 U. S. 381
re Kemmler, 136 U. S. 436 (1890) (dictum). It is only 14 years since
Mr. Chief Justice Warren, speaking for four members of the Court, stated
without equivocation:
"Whatever the arguments may be against capital
punishment, both on moral grounds and in terms of accomplishing the purposes of
punishment -- and they are forceful -- the death penalty has been employed
throughout our history, and, in a day when it is still widely accepted, it
cannot be said to violate the constitutional concept of cruelty."
Trop v. Dulles, 356
U.S. at 356 U. S. 99. It is only one year since Mr. Justice Black made
his feelings clear on the constitutional issue:
"The Eighth Amendment forbids 'cruel and unusual
punishments.' In my view, these words cannot be read to outlaw capital
punishment, because that penalty was in common use and authorized by law here
and in the countries from which our ancestors came at the time the Amendment
was adopted. It is inconceivable to me that the framers intended to end capital
punishment by the Amendment."
McGautha v. California, 402 U. S. 183, 402 U. S. 226 (1971) (separate opinion). By limiting its
grants of certiorari, the Court has refused even to hear argument on the Eighth
Amendment claim on two occasions in the last four years. Witherspoon v.
Illinois, cert. granted, 389 U.S. 1035, rev'd, 391 U. S. 510 (1968); McGautha v. California,
cert. granted, 398 U. S. 936 (1970), aff'd, 402 U. S. 402 U.S. 183 (1971). In these cases, the Court
confined its attention to the procedural aspects of capital trials, it being
implicit that the punishment itself could be constitutionally imposed.
Nonetheless, the Court has now been asked to hold that a punishment clearly
permissible under the Constitution at the time of its adoption and accepted as
such by every
Page 408 U. S. 382
member of the Court until today, is suddenly so cruel as to
be incompatible with the Eighth Amendment.
Before recognizing such an instant evolution in the law, it
seems fair to ask what factors have changed that capital punishment should now
be "cruel" in the constitutional sense as it has not been in the
past. It is apparent that there has been no change of constitutional
significance in the nature of the punishment itself. Twentieth century modes of
execution surely involve no greater physical suffering than the means employed
at the time of the Eighth Amendment's adoption. And although a man awaiting
execution must inevitably experience extraordinary mental anguish, [Footnote 6/4] no one suggests that this anguish is materially
different from that experienced by condemned men in 1791, even though
protracted appellate review processes have greatly increased the waiting time
on "death row." To be sure, the ordeal of the condemned man may be
thought cruel in the sense that all suffering is thought cruel. But if the
Constitution proscribed every punishment producing severe emotional stress,
then capital punishment would clearly have been impermissible in 1791.
However, the inquiry cannot end here. For reasons unrelated
to any change in intrinsic cruelty, the Eighth Amendment prohibition cannot
fairly be limited to those punishments thought excessively cruel and barbarous
at the time of the adoption of the Eighth Amendment. A punishment is
inordinately cruel, in the sense we must deal with it in these cases, chiefly
as perceived by the society so characterizing it. The standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment.
The standard itself remains the same, but its applicability must change as the
basic mores of society change. This notion is not
Page 408 U. S. 383
new to Eighth Amendment adjudication. In Weems v.
United States, 217 U. S. 349 (1910), the Court referred with apparent
approval to the opinion of the commentators that
"[t]he clause of the Constitution . . . may be
therefore progressive, and is not fastened to the obsolete, but may acquire
meaning as public opinion becomes enlightened by a humane justice."
217 U.S. at 217 U. S. 378. Mr. Chief Justice Warren, writing the plurality
opinion in Trop v. Dulles, supra, stated, "The Amendment
must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society." 356 U.S. at 356 U. S. 101. Nevertheless, the Court, up to now, has never
actually held that a punishment has become impermissibly cruel due to a shift
in the weight of accepted social values; nor has the Court suggested judicially
manageable criteria for measuring such a shift in moral consensus.
The Court's quiescence in this area can be attributed to the
fact that, in a democratic society, legislatures, not courts, are constituted
to respond to the will and consequently the moral values of the people. For
this reason, early commentators suggested that the "cruel and unusual
punishments" clause was an unnecessary constitutional provision. [Footnote 6/5] As acknowledged in the principal brief for
petitioners,
"both in constitutional
contemplation and in fact, it is the legislature, not the Court, which responds
to public opinion and immediately reflects the society's standards of decency.
[Footnote 6/6]
Page 408 U. S. 384
Accordingly, punishments such as branding and the cutting
off of ears, which were commonplace at the time of the adoption of the
Constitution, passed from the penal scene without judicial intervention because
they became basically offensive to the people, and the legislatures responded
to this sentiment."
Beyond any doubt, if we were today called upon to review
such punishments, we would find them excessively cruel because we could say
with complete assurance that contemporary society universally rejects such
bizarre penalties. However, this speculation on the Court's probable reaction
to such punishments is not, of itself, significant. The critical fact is that
this Court has never had to hold that a mode of punishment authorized by a
domestic legislature was so cruel as to be fundamentally at odds with our basic
notions of decency. Cf. Weems v. United States, supra. Judicial
findings of impermissible cruelty have been limited, for the most part, to
offensive punishments devised without specific authority by prison officials,
not by legislatures. See, e.g., Jackson v. Bishop, 404 F.2d
571 (CA8 198); Wright v. McMann, 387 F.2d 519 (CA2 1967). The
paucity of judicial decisions invalidating legislatively prescribed punishments
is powerful evidence that, in this country, legislatures have, in fact, been
responsive -- albeit belatedly at times -- to changes in social attitudes and
moral values.
I do not suggest that the validity of legislatively
authorized punishments presents no justiciable issue under the Eighth Amendment,
but, rather, that the primacy of the legislative role narrowly confines the
scope of judicial inquiry. Whether or not provable, and whether or not true at
all times, in a democracy, the legislative judgment is presumed to embody the
basic standards of decency prevailing in the society. This presumption can only
be negated by unambiguous and compelling evidence of legislative default.
Page 408 U. S. 385
III
There are no obvious indications that capital punishment
offends the conscience of society to such a degree that our traditional
deference to the legislative judgment must be abandoned. It is not a
punishment, such as burning 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. [Footnote 6/7] On four occasions in the last 11 years, Congress
has added to the list of federal crimes punishable by death. [Footnote 6/8] 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,
Page 408 U. S. 386
it need only be noted that the reported results have shown
nothing approximating the universal condemnation of capital punishment that
might lead us to suspect that the legislatures in general have lost touch with
current social values. [Footnote 6/9]
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 [Footnote 6/10] -- the death penalty is imposed in far fewer
than half the cases in which it is available. [Footnote 6/11] To go further and characterize
Page 408 U. S. 387
the rate of imposition as "freakishly rare," as
petitioners insist, is unwarranted hyperbole. And regardless of its
characterization, the rate, of imposition does not impel the conclusion that
capital punishment is now regarded as intolerably cruel or uncivilized.
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.
In McGautha v. California, supra, decided
only one year ago, the Court held that there was no mandate in the Due Process
Clause of the Fourteenth Amendment that juries be given instructions as to when
the death penalty should be imposed. After reviewing the autonomy that juries
have traditionally exercised in capital cases and noting the practical
difficulties of framing manageable instructions, this Court concluded that
judicially articulated standards were not needed to insure a responsible
decision as to penalty. Nothing in McGautha licenses capital
juries to act arbitrarily or assumes that they have so acted in the past. On
the contrary, the assumption underlying the McGautha ruling is
that juries "will act with
Page 408 U. S. 388
due regard for the consequences of their decision." 402
U.S. at 402 U. S. 208.
The responsibility of juries deciding capital cases in our
system of justice was nowhere better described than in Witherspoon v.
Illinois, supra:
"[A] jury that must choose between life imprisonment
and capital punishment can do little more -- and must do nothing less -- than
express the conscience of the community on the ultimate
question of life or death."
"And one of the most important functions any jury can
perform in making such a selection is to maintain a link between contemporary
community values and the penal system -- a link without which the determination
of punishment could hardly reflect 'the evolving standards of decency that mark
the progress of a maturing society.'"
391 U.S. at 391 U. S. 519 and n. 15 (emphasis added). 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
Page 408 U. S. 389
assume from the mere fact of relative infrequency that only
a random assortment of pariahs are sentenced to death is to cast grave doubt on
the basic integrity of our jury system.
It would, of course, be unrealistic to assume that juries
have been perfectly consistent in choosing the cases where the death penalty is
to be imposed, 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. [Footnote 6/12]
Page 408 U. S. 390
The rate of imposition of death sentences falls far short of
providing the requisite unambiguous evidence that the legislatures of 40 States
and the Congress have turned their backs on current or evolving standards of
decency in continuing to make the death penalty available. For, if selective
imposition evidences a rejection of capital punishment in those cases where it
is not imposed, it surely evidences a correlative affirmation of the penalty in
those cases where it is imposed. Absent some clear indication that the
continued imposition of the death penalty on a selective basis is violative of
prevailing standards of civilized conduct, the Eighth Amendment cannot be said
to interdict its use.
Page 408 U. S. 391
In two of these cases we have been asked to rule on the
narrower question whether capital punishment offends the Eighth Amendment when
imposed as the punishment for the crime of forcible rape. [Footnote 6/13] It is true that the death penalty is authorized
for rape in fewer States than it is for murder, [Footnote 6/14] and that, even in those States, it is applied
more sparingly for rape than for murder. [Footnote 6/15] But for the reasons aptly brought out in the
opinion of MR. JUSTICE POWELL, post at 408 U. S. 456-461, I do not believe these differences can be
elevated to the level of an Eighth Amendment distinction. This blunt
constitutional command cannot be sharpened to carve neat distinctions corresponding
to the categories of crimes defined by the legislatures.
IV
Capital punishment has also been attacked as violative of
the Eighth Amendment on the ground that it is not needed to achieve legitimate
penal aims, and is thus "unnecessarily cruel." As a pure policy
matter, this approach has much to recommend it, but it seeks to give a
dimension to the Eighth Amendment that it was never intended to have and
promotes a line of inquiry that this Court has never before pursued.
The Eighth Amendment, as I have noted, was included in the
Bill of Rights to guard against the use of torturous and inhuman punishments,
not those of limited efficacy. One of the few to speak out against the adoption
Page 408 U. S. 392
of the Eighth Amendment asserted that it is often necessary
to use cruel punishments to deter crimes. [Footnote 6/16] But. among those favoring the Amendment, no
sentiment was expressed that a punishment of extreme cruelty could ever be
justified by expediency. The dominant theme of the Eighth Amendment debates was
that the ends of the criminal laws cannot justify the use of measures of
extreme cruelty to achieve them. Cf. Rochin v. California, 342 U. S. 165, 342 U. S. 172-173 (1952).
The apparent seed of the "unnecessary cruelty"
argument is the following language, quoted earlier, found in Wilkerson
v. Utah, supra:
"Difficulty would attend the effort to define with
exactness the extent of the constitutional provision which provides that cruel
and unusual punishments shall not be inflicted; but it is safe to affirm that
punishments of torture . . . and all others in the same line of
unnecessary cruelty, are forbidden by that amendment to the
Constitution."
99 U.S. at 99 U. S. 135-136 (emphasis added). To lift the italicized
phrase from the context of the Wilkerson opinion and now view
it as a mandate for assessing the value of punishments in achieving the aims of
penology is a gross distortion; nowhere are such aims even mentioned in
the Wilkerson opinion. The only fair reading of this phrase is
that punishments similar to torture in their extreme cruelty are prohibited by
the Eighth Amendment. In Louisiana ex rel. Francis v. Resweber, 329
U.S. at 329 U. S. 463, 329 U. S. 464, the Court made reference to the Eighth
Amendment's prohibition against the infliction of "unnecessary pain"
in carrying out an execution. The context makes abundantly clear that the Court
was disapproving the wanton infliction of physical
Page 408 U. S. 393
pain, and once again not advising pragmatic analysis of
punishments approved by legislatures. [Footnote 6/17]
Apart from these isolated uses of the word
"unnecessary," nothing in the cases suggests that it is for the
courts to make a determination of the efficacy of punishments. The decision
in Weems v. United States, supra, is not to the contrary.
In Weems, the Court held that, for the crime of falsifying
public documents, the punishment imposed under the Philippine Code of 15 years'
imprisonment at hard labor under shackles, followed by perpetual surveillance,
loss of voting rights, loss of the right to hold public office, and loss of
right to change domicile freely, was violative of the Eighth Amendment. The
case is generally regarded as holding that a punishment may be excessively
cruel within the meaning of the Eighth Amendment because it is grossly out of
proportion to the severity of the crime; [Footnote 6/18] some view the decision of the Court primarily
as
Page 408 U. S. 394
a reaction to the mode of the punishment itself. [Footnote 6/19] Under any characterization of the holding, it
is readily apparent that the decision grew out of the Court's overwhelming
abhorrence of the imposition of the particular penalty for the particular
crime; it was making an essentially moral judgment, not a dispassionate
assessment of the need for the penalty. The Court specifically disclaimed
"the right to assert a judgment against that of the legislature of the
expediency of the laws. . . ." 217 U.S. at 217 U. S. 378. Thus, apart from the fact that the Court
in Weems concerned itself with the crime committed, as well as
the punishment imposed, the case marks no departure from the largely
unarticulable standard of extreme cruelty. However intractable that standard
may be, that is what the Eighth Amendment is all about. The constitutional
provision is not addressed to social utility, and does not command that
enlightened principles of penology always be followed.
By pursuing the necessity approach, it becomes even more
apparent that it involves matters outside the purview of the Eighth Amendment.
Two of the several aims of punishment are generally associated with capital
punishment -- retribution and deterrence. It is argued that retribution can be
discounted because that, after all, is what the Eighth Amendment seeks to
eliminate. There is no authority suggesting that the Eighth Amendment was
intended to purge the law of its retributive elements, and the Court has
consistently assumed that retribution is a legitimate dimension of the
punishment of crimes. See Williams v. New York, 337 U. S. 241, 337 U. S. 248 (1949); United States v. Lovett, 328 U. S. 303, 328 U. S. 324 (1946) (Frankfurter, J., concurring).
Furthermore, responsible legal thinkers of widely varying
Page 408 U. S. 395
persuasions have debated the sociological and philosophical
aspects of the retribution question for generations, neither side being able to
convince the other. [Footnote 6/20] 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. [Footnote 6/21] 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. [Footnote 6/22] 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
Page 408 U. S. 396
are not without their rhetorical appeal. However, these
arguments are not descended from established constitutional principles, but are
born of the urge to bypass an unresolved factual question. [Footnote 6/23] 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. [Footnote 6/24] 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.
V
Today the Court has not ruled that capital punishment is per
se violative of the Eighth Amendment, nor has it ruled that the
punishment is barred for any particular class or classes of crimes. The
substantially similar concurring opinions of MR. JUSTICE STEWART and MR.
JUSTICE WHITE, which are necessary to support the judgment setting aside
petitioners' sentences, stop
Page 408 U. S. 397
short of reaching the ultimate question. The actual scope of
the Court's ruling, which I take to be embodied in these concurring opinions,
is not entirely clear. This much, however, seems apparent: if the legislatures
are to continue to authorize capital punishment for some crimes, juries and
judges can no longer be permitted to make the sentencing determination in the
same manner they have in the past. [Footnote 6/25] This approach -- not urged in oral arguments or
briefs -- misconceives the nature of the constitutional command against
"cruel and unusual punishments," disregards controlling case law, and
demands a rigidity in capital cases which, if possible of achievement, cannot
be regarded as a welcome change. Indeed the contrary seems to be the case.
As I have earlier stated, the Eighth Amendment forbids the
imposition of punishments that are so cruel and inhumane as to violate
society's standards of civilized conduct. The Amendment does not prohibit all
punishments the States are unable to prove necessary to deter or control crime.
The Amendment is not concerned with the process by which a State determines
that a particular punishment is to be imposed in a particular case. And the
Amendment most assuredly does not speak to the power of legislatures to confer
sentencing discretion on juries, rather than to fix all sentences by statute.
The critical factor in the concurring opinions of both MR.
JUSTICE STEWART and MR. JUSTICE WHITE is the infrequency with which the penalty
is imposed. This factor is taken not as evidence of society's abhorrence
Page 408 U. S. 398
of capital punishment -- the inference that petitioners
would have the Court draw -- but as the earmark of a deteriorated system of
sentencing. It is concluded that petitioners' sentences must be set aside not
because the punishment is impermissibly cruel, but because juries and judges
have failed to exercise their sentencing discretion in acceptable fashion.
To be sure, there is a recitation cast in Eighth Amendment
terms: petitioners' sentences are "cruel" because they exceed that
which the legislatures have deemed necessary for all cases; [Footnote 6/26] petitioners' sentences are "unusual"
because they exceed that which is imposed in most cases. [Footnote 6/27] This application of the words of the Eighth
Amendment suggests that capital punishment can be made to satisfy Eighth
Amendment values if its rate of imposition is somehow multiplied; it seemingly
follows that the flexible sentencing system created by the legislatures, and
carried out by juries and judges, has yielded more mercy than the Eighth
Amendment can stand. The implications of this approach are mildly ironical. For
example, by this measure of the Eighth Amendment, the elimination of
death-qualified juries in Witherspoon v. Illinois, 391 U. S. 510 (1968), can only be seen in retrospect as a
setback to "the evolving standards of decency that mark the progress of a
maturing society." Trop v. Dulles, 356 U.S. at 356 U. S. 101.
This novel formulation of Eighth Amendment principles --
albeit necessary to satisfy the terms of our limited grant of certiorari --
does not lie at the heart of these concurring opinions. The decisive grievance
of the opinions -- not translated into Eighth Amendment terms -- is that the
present system of discretionary sentencing
Page 408 U. S. 399
in capital cases has failed to produce evenhanded justice;
the problem is not that too few have been sentenced to die, but that the
selection process has followed no rational pattern. [Footnote 6/28] This claim of arbitrariness is not only lacking
in empirical support, [Footnote 6/29] but also it manifestly fails to establish that the
death penalty is a "cruel and unusual" punishment. The Eighth
Amendment was included in the Bill of Rights to assure that certain types of
punishments would never be imposed, not to channelize the sentencing process.
The approach of these concurring opinions has no antecedent in the Eighth
Amendment cases. It is essentially and exclusively a procedural due process
argument.
This ground of decision is plainly foreclosed, as well as
misplaced. Only one year ago, in McGautha v. California, the
Court upheld the prevailing system of sentencing in capital cases. The Court
concluded:
"In light of history, experience, and the present
limitations of human knowledge, we find it quite impossible to say that
committing to the untrammeled discretion of the jury the power to pronounce
life or death in capital cases is offensive to anything in the
Constitution."
402 U.S. at 402 U. S. 207. In reaching this decision, the Court had the
benefit of extensive briefing, full oral argument, and six months of careful
deliberations. The Court's labors are documented by 130 pages of opinions in
the United States Reports. All of the arguments and factual contentions
accepted
Page 408 U. S. 400
in the concurring opinions today were considered and
rejected by the Court one year ago. McGautha was an
exceedingly difficult case, and reasonable men could fairly disagree as to the
result. But the Court entered its judgment, and if stare decisis means
anything, that decision should be regarded as a controlling pronouncement of
law.
Although the Court's decision in McGautha was
technically confined to the dictates of the Due Process Clause of the
Fourteenth Amendment, rather than the Eighth Amendment as made applicable to
the States through the Due Process Clause of the Fourteenth Amendment, it would
be disingenuous to suggest that today's ruling has done anything less than
overrule McGautha in the guise of an Eighth Amendment
adjudication. It may be thought appropriate to subordinate principles of stare
decisis where the subject is as sensitive as capital punishment and
the stakes are so high, but these external considerations were no less weighty
last year. This pattern of decisionmaking will do little to inspire confidence
in the stability of the law.
While I would not undertake to make a definitive statement
as to the parameters of the Court's ruling, it is clear that, if state
legislatures and the Congress wish to maintain the availability of capital
punishment, significant statutory changes will have to be made. Since the two
pivotal concurring opinions turn on the assumption that the punishment of death
is now meted out in a random and unpredictable manner, legislative bodies may
seek to bring their laws into compliance with the Court's ruling by providing
standards for juries and judges to follow in determining the sentence in
capital cases or by more narrowly defining the crimes for which the penalty is
to be imposed. [Footnote 6/30] If such standards can be devised or
Page 408 U. S. 401
the crimes more meticulously defined, the result cannot be
detrimental. However, Mr. Justice Harlan's opinion for the Court in McGautha convincingly
demonstrates that all past efforts "to identify before the fact" the
cases in which the penalty is to be imposed have been "uniformly
unsuccessful." 402 U.S. at 402 U. S. 197. One problem is that
"the factors which determine
whether the sentence of death is the appropriate penalty in particular cases
are too complex to be compressed within the limits of a simple formula. . .
."
Report of Royal Commission on Capital Punishment, 1949-1953,
Cmd. 8932, � 498, p. 174 (1953). As the Court stated in McGautha,
"[t]he infinite variety of cases and facets to each
case would make general standards either meaningless 'boilerplate' or a
statement of the obvious that no jury would need."
402 U.S. at 402 U. S. 208. But even assuming that suitable guidelines can
be established, there is no assurance that sentencing patterns will change so
long as juries are possessed of the power to determine the sentence or to bring
in a verdict of guilt on a charge carrying a lesser sentence; juries have not
been inhibited in the exercise of these powers in the past. Thus, unless the
Court in McGautha misjudged the experience of history, there
is little reason to believe that sentencing standards in any form will
substantially alter the discretionary character of the prevailing system of
sentencing in capital cases. That system may fall short of perfection, but it
is yet to be shown that a different system would produce more satisfactory
results.
Real change could clearly be brought about if legislatures
provided mandatory death sentences in such a way as to deny juries the
opportunity to bring in a verdict on a lesser charge; under such a system, the
death sentence could only be avoided by a verdict of acquittal. If this is the
only alternative that the legislatures can safely pursue under today's ruling,
I would have preferred that the Court opt for total abolition.
Page 408 U. S. 402
It seems remarkable to me that with our basic trust in lay
jurors as the keystone in our system of criminal justice, it should now be
suggested that we take the most sensitive and important of all decisions away
from them. I could more easily be persuaded that mandatory sentences of death,
without the intervening and ameliorating impact of lay jurors, are so arbitrary
and doctrinaire that they violate the Constitution. The very infrequency of
death penalties imposed by jurors attests their cautious and discriminating
reservation of that penalty for the most extreme cases. I had thought that
nothing was clearer in history, as we noted in McGautha one
year ago, than the American abhorrence of "the common law rule imposing a
mandatory death sentence on all convicted murderers." 402 U.S. at 402 U. S. 198. As the concurring opinion of MR. JUSTICE
MARSHALL shows, ante at 408 U. S. 339, the 19th century movement away from mandatory
death sentences marked an enlightened introduction of flexibility into the
sentencing process. It recognized that individual culpability is not always
measured by the category of the crime committed. This change in sentencing
practice was greeted by the Court as a humanizing development. See
Winston v. United States, 172 U. S. 303 (1899); cf. Calton v. Utah, 130 U. S. 83 (1889). See also Andres v. United
States, 333 U. S. 740, 333 U. S. 753 (1948) (Frankfurter, J., concurring). I do
not see how this history can be ignored, and how it can be suggested that the
Eighth Amendment demands the elimination of the most sensitive feature of the
sentencing system.
As a general matter, the evolution of penal concepts in this
country has not been marked by great progress, nor have the results up to now
been crowned with significant success. If anywhere in the whole spectrum of
criminal justice fresh ideas deserve sober analysis, the sentencing and
correctional area ranks high on the list. But it has been widely accepted that
mandatory sentences for
Page 408 U. S. 403
crimes do not best serve the ends of the criminal justice
system. Now, after the long process of drawing away from the blind imposition
of uniform sentences for every person convicted of a particular offense, we are
confronted with an argument perhaps implying that only the legislatures may
determine that a sentence of death is appropriate, without the intervening
evaluation of jurors or judges. This approach threatens to turn back the
progress of penal reform, which has moved until recently at too slow a rate to
absorb significant setbacks.
VI
Since there is no majority of the Court on the ultimate
issue presented in these cases, the future of capital punishment in this
country has been left in an uncertain limbo. Rather than providing a final and
unambiguous answer on the basic constitutional question, the collective impact
of the majority's ruling is to demand an undetermined measure of change from
the various state legislatures and the Congress. While I cannot endorse the
process of decisionmaking that has yielded today's result and the restraints
that that result imposes on legislative action, I am not altogether displeased
that legislative bodies have been given the opportunity, and indeed unavoidable
responsibility, to make a thorough reevaluation of the entire subject of
capital punishment. If today's opinions demonstrate nothing else, they starkly
show that this is an area where legislatures can act far more effectively than
courts.
The legislatures are free to eliminate capital punishment
for specific crimes or to carve out limited exceptions to a general abolition
of the penalty, without adherence to the conceptual strictures of the Eighth
Amendment. The legislatures can and should make an assessment of the deterrent
influence of capital punishment, both generally and as affecting the commission
of specific types of
Page 408 U. S. 404
crimes. If legislatures come to doubt the efficacy of
capital punishment, they can abolish it, either completely or on a selective
basis. If new evidence persuades them that they have acted unwisely, they can reverse
their field and reinstate the penalty to the extent it is thought warranted. An
Eighth Amendment ruling by judges cannot be made with such flexibility or
discriminating precision.
The world-wide trend toward limiting the use of capital
punishment, a phenomenon to which we have been urged to give great weight,
hardly points the way to a judicial solution in this country under a written
Constitution. Rather, the change has generally come about through legislative
action, often on a trial basis and with the retention of the penalty for
certain limited classes of crimes. [Footnote 6/31] Virtually nowhere has change been wrought by so
crude a tool as the Eighth Amendment. The complete and unconditional abolition
of capital punishment in this country by judicial fiat would have undermined
the careful progress of the legislative trend and foreclosed further inquiry on
many as yet unanswered questions in this area.
Quite apart from the limitations of the Eighth Amendment
itself, the preference for legislative action is justified by the inability of
the courts to participate in the
Page 408 U. S. 405
debate at the level where the controversy is focused. The
case against capital punishment is not the product of legal dialectic, but
rests primarily on factual claims, the truth of which cannot be tested by
conventional judicial processes. The five opinions in support of the judgments
differ in many respects, but they a willingness to make sweeping factual
assertions, unsupported by empirical data, concerning the manner of imposition
and effectiveness of capital punishment in this country. Legislatures will have
the opportunity to make a more penetrating study of these claims with the familiar
and effective tools available to them as they are not to us.
The highest judicial duty is to recognize the limits on
judicial power and to permit the democratic processes to deal with matters
falling outside of those limits. The "hydraulic pressure[s]" [Footnote 6/32] that Holmes spoke of as being generated by
cases of great import have propelled the Court to go beyond the limits of
judicial power, while fortunately leaving some room for legislative judgment.
See n. 25, infra.
See Granucci,
"Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning,
57 Calif.L.Rev. 839, 85860 (1969). Earlier drafts of the Bill of Rights used
the phrase "cruel and illegal." It is thought that the change to the
"cruel and unusual" wording was inadvertent, and not intended to work
any change in meaning. Ibid. The historical background of the
English Bill of Rights is set forth in the opinion of MR. JUSTICE
MARSHALL, ante at 408 U. S. 316-318.
It is intimated in the opinion of MR. JUSTICE DOUGLAS, ante at 408 U. S. 242-245, that the term "unusual" was
included in the English Bill of Rights as a protest against the discriminatory
application of punishments to minorities. However, the history of capital
punishment in England dramatically reveals that no premium was placed on equal
justice for all, either before or after the Bill of Rights of 1689. From the
time of Richard I until 1826, the death penalty was authorized in England for
treason and all felonies except larceny and mayhem, with the further exception
that persons entitled to benefit of clergy were subject to no penalty, or, at
most, a very lenient penalty upon the commission of a felony. Benefit of clergy
grew out of the exemption of the clergy from the jurisdiction of the lay
courts. The exemption expanded to include assistants to clergymen, and, by
1689, any male who could read. Although, by 1689, numerous felonies had been
deemed "nonclergyable," the disparity in punishments imposed on the
educated and uneducated remained for most felonies until the early 18th
century. See 1 J. Stephen, History of the Criminal Law of
England 458 et seq. (1883).
See 2 J.
Elliot's Debates 111 (2d ed. 1876); 3 id. at 447-448, 451-452.
But see Bluestone
& McGahee, Reaction to Extreme Stress: Impending Death by Execution, 119
Am.J.Psychiatry 393 (1962).
See 2 J.
Story, On the Constitution § 1903 (5th ed. 1891); 1 T. Cooley, Constitutional
Limitations 694 (8th ed. 1927). See also Joseph Story on
Capital Punishment (ed. by J. Hogan), 43 Calif.L.Rev. 76 (1955).
Brief for Petitioner in Aikens v. California, No.
68-5027, p. 19 (cert. dismissed, 406 U. S. 813 (1972)). See post, at 408 U. S. 443 n. 38. This, plainly, was the foundation of
Mr. Justice Black's strong views on this subject expressed most recently
in McGautha v. California, 402 U. S. 183, 402 U. S. 226 (1971) (separate opinion).
See Department
of Justice, National Prisoner Statistics No. 46, Capital Punishment 1930-1970,
p. 50 (Aug. 1971). Since the publication of the Department of Justice report,
capital punishment has been judicially abolished in California, People
v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, cert. denied, 406
U.S. 958 (1972). The States where capital punishment is no longer authorized
are Alaska, California, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West
Virginia, and Wisconsin.
See Act
of Jan. 2, 1971, Pub.L. 91-644, Tit. IV, § 15, 84 Stat. 1891, 18 U.S.C. § 351;
Act of Oct. 15, 1970, Pub.L. 91-452, Tit. XI, § 1102(a), 84 Stat. 956, 18
U.S.C. § 844(f)(i); Act of Aug. 28, 1965, 79 Stat. 580, 18 U.S.C. § 1751; Act
of Sept. 5, 1961, § 1, 75 Stat. 466, 49 U.S.C. § 1472(i). See also opinion
of MR. JUSTICE BLACKMUN, post at 408 U. S. 412-413.
A 1966 poll indicated that 42% of those polled favored capital
punishment while 47% opposed it, and 11% had no opinion. A 1969 poll found 51%
in favor, 40% opposed, and 9% with no opinion. See Erskine,
The Polls: Capital Punishment, 34 Public Opinion Quarterly 290 (1970).
The jury plays the predominant role in sentencing in capital
cases in this country. Available evidence indicates that where the judge determines
the sentence, the death penalty is imposed with a slightly greater frequency
than where the jury makes the determination. H. Kalven & H. Zeisel, The
American Jury 436 (1966).
In the decade from 1961-1970, an average of 106 persons per
year received the death sentence in the United States, ranging from a low of 85
in 1967 to a high of 140 in 1961; 127 persons received the death sentence in
1970. Department of Justice, National Prisoner Statistics No. 46, Capital
Punishment 1930-1970, p. 9. See also Bedau, The Death Penalty
in America, 35 Fed.Prob., No. 2, p. 32 (1971). Although accurate figures are
difficult to obtain, it is thought that from 15% to 20% of those convicted of
murder are sentenced to death in States where it is authorized. See,
e.g., McGee, Capital Punishment as Seen by a Correctional
Administrator, 28 Fed.Prob., No. 2, pp. 11, 12 (1964); Bedau, Death Sentences
in New Jersey 1907-1960, 19 Rutgers L.Rev. 1, 30 (1964); Florida Division of
Corrections, Seventh Biennial Report (July 1, 1968, to June 30, 1970) 82
(1970); H. Kalven & H. Zeisel, The American Jury 435-436 (1966). The rate
of imposition for rape and the few other crimes made punishable by death in
certain States is considerably lower. See, e.g., Florida
Division of Corrections, Seventh Biennial Report, supra, at
83; Partington, The Incidence of the Death Penalty for Rape in Virginia, 22
Wash. & Lee L.Rev. 43-44, 71-73 (1965).
Counsel for petitioners make the conclusory statement that
"[t]hose who are selected to die are the poor and powerless, personally
ugly and socially unacceptable." Brief for Petitioner in No. 68-5027, p.
51. However, the sources cited contain no empirical findings to undermine the
general premise that juries impose the death penalty in the most extreme cases.
One study has discerned a statistically noticeable difference between the rate
of imposition on blue collar and white collar defendants; the study otherwise
concludes that juries do follow rational patterns in imposing the sentence of
death. Note, A Study of the California Penalty Jury in First-Degree-Murder
Cases, 21 Stan.L.Rev. 1297 (1969). See also H. Kalven & H.
Zeisel, The American Jury 434-449 (1966).
Statistics are also cited to show that the death penalty has
been imposed in a racially discriminatory manner. Such statistics suggest, at
least as a historical matter, that Negroes have been sentenced to death with
greater frequency than whites in several States, particularly for the crime of
interracial rape. See, e.g., Koeninger, Capital Punishment in
Texas, 1924-1968, 15 Crime & Delin. 132 (1969); Note, Capital Punishment in
Virginia, 58 Va.L.Rev. 97 (1972). If a statute that authorizes the
discretionary imposition of a particular penalty for a particular crime is used
primarily against defendants of a certain race, and if the pattern of use can
be fairly explained only by reference to the race of the defendants, the Equal
Protection Clause of the Fourteenth Amendment forbids continued enforcement of
that statute in its existing form. Cf. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Gomillion v. Lightfoot, 364 U. S. 339 (1960).
To establish that the statutory authorization for a
particular penalty is inconsistent with the dictates of the Equal Protection
Clause, it is not enough to show how it was applied in the distant past. The
statistics that have been referred to us cover periods when Negroes were
systematically excluded from jury service and when racial segregation was the
official policy in many States. Data of more recent vintage are
essential. See Maxwell v. Bishop, 398 F.2d 138, 148 (CA8
1968), vacated, 398 U. S. 262 (1970). While no statistical survey could
be expected to bring forth absolute and irrefutable proof of a discriminatory
pattern of imposition, a strong showing would have to be made, taking all
relevant factors into account.
It must be noted that any equal protection claim is totally
distinct from the Eighth Amendment question to which our grant of certiorari
was limited in these cases. Evidence of a discriminatory pattern of enforcement
does not imply that any use of a particular punishment is so morally repugnant
as to violate the Eighth Amendment.
Jackson v. Georgia, No. 65030; Branch v.
Texas, No. 69-5031.
Rape is punishable by death in 16 States and in the federal
courts when committed within the special maritime and territorial jurisdiction
of the United States. 18 U.S.C. § 2031. The States authorizing capital
punishment for rape are Alabama, Arkansas, Florida, Georgia, Kentucky,
Louisiana, Maryland, Mississippi, Missouri, Nevada, North Carolina, Oklahoma,
South Carolina, Tennessee, Texas, and Virginia.
See n. 11, supra.
l Annals of Cong. 754 (1789) (remarks of Rep. Livermore).
Petitioner Francis had been sentenced to be electrocuted for
the crime of murder. He was placed in the electric chair, and the executioner
threw the switch. Due to a mechanical difficulty, death did not result. A new
death warrant was issued fixing a second date for execution. The Court held
that the proposed execution would not constitute cruel and unusual punishment
or double jeopardy.
There is no serious claim of disproportionality presented in
these cases. Murder and forcible rape have always been regarded as among the
most serious crimes. It cannot be said that the punishment of death is out of
all proportion to the severity of these crimes.
The Court's decision in Robinson v. California, 370 U. S. 660 (1962), can be viewed as an extension of
the disproportionality doctrine of the Eighth Amendment. The Court held that a
statute making it a crime punishable by imprisonment to be a narcotics addict
violated the Eighth Amendment. The Court in effect ruled that the status of
being an addict is not a criminal act, and that any criminal punishment imposed
for addiction exceeds the penal power of the States. The Court made no analysis
of the necessity of imprisonment as a means of curbing addiction.
See Packer,
Making the Punishment Fit the Crime, 77 Harv. L.Rev.1071, 1075 (1964).
See Hart,
The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401 (1958); H.
Packer, The Limits of the Criminal Sanction 37-39 (1968); M. Cohen, Reason and
Law 41-44 (1950); Report of Royal Commission on Capital Punishment, 1949-1953,
Cmd. 8932, � 52, pp. 17-18 (1953); Hart, Murder and the Principles of
Punishment: England and the United States, 52 NW.U.L.Rev 433, 446-455 (1957);
H. L. A. Hart, Law, Liberty and Morality 60-69 (1963).
See, e.g., Sellin,
Homicides in Retentionist and Abolitionist States, in Capital Punishment
135 et seq. (T. Sellin ed. 1967); Schuessler, The Deterrent
Influence of the Death Penalty, 284 Annals 54 (1952).
See, e.g., Hoover,
Statements in Favor of the Death Penalty, in H. Bedau, The Death Penalty in
America 130 (1967 rev. ed.); Allen, Capital Punishment: Your Protection and
Mine, in The Death Penalty in America, supra, at 135. See
also Hart, 52 NW.U.L.Rev. supra, at 457; Bedau, The Death Penalty in
America, supra, at 265-266.
See Powell v. Texas, 392 U. S. 514, 392 U. S. 531 (1968) (MARSHALL, J.) (plurality opinion).
See, e.g., K.
Menninger, The Crime of Punishment 206-208 (1968).
Much in the concurring opinion of MR. JUSTICE DOUGLAS
similarly suggests that it is the sentencing system, rather than the punishment
itself, that is constitutionally infirm. However, the opinion also indicates
that, in the wake of the Court's decision in McGautha v. California, 402 U. S. 183 (1971), the validity of the sentencing
process is no longer open to question.
See concurring
opinion of MR. JUSTICE STEWART, ante at 408 U. S. 309-310; concurring opinion of MR. JUSTICE
WHITE, ante at 408 U. S. 312.
See concurring
opinion of MR. JUSTICE STEWART, ante at 408 U. S. 309-310; cf. concurring opinion of
MR. JUSTICE WHITE, ante at 408 U. S. 312.
This point is more heavily emphasized in the opinion of MR.
JUSTICE STEWART than in that of MR. JUSTICE WHITE. However, since MR. JUSTICE
WHITE allows for statutes providing a mandatory death penalty for "more
narrowly defined categories" of crimes, it appears that he, too, is more
concerned with a regularized sentencing process than with the aggregate number
of death sentences imposed for all crimes.
See n.
12, supra.
It was pointed out in the Court's opinion in McGautha that
these two alternatives are substantially equivalent. 402 U.S. at 402 U. S. 206 n. 16.
See Patrick,
The Status of Capital Punishment: A World Perspective, 56 J.Crim.L.C. &
P.S. 397 (1965). In England, for example, 1957 legislation limited capital
punishment to murder, treason, piracy with violence, dockyards arson, and some
military offenses. The Murder (Abolition of Death Penalty) Act 1965 eliminated
the penalty for murder on a five-year trial basis. 2 Pub. Gen. Acts, c. 71, p.
1577 (Nov. 8, 1965). This abolition was made permanent in 1969. See 793
Parl.Deb., H.C. (5th ser.) 1294-1298 (1969); 306 Parl.Deb., H.L. (5th ser.)
1317-1322 (1969). Canada has also undertaken limited abolition on a five-year
experimental basis. Stats. of Canada 1967-1968, 16 & 17 Eliz. 2, c. 15, p.
145.
Northern Securities Co. v. United States, 193 U. S. 197, 193 U. S. 401 (1904) (dissenting opinion).
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
Page 408 U. S. 406
with the philosophical convictions I have been able to
develop. It is antagonistic to any sense of "reverence for life."
Were I a legislator, I would vote against the death penalty for the policy
reasons argued by counsel for the respective petitioners and expressed and
adopted in the several opinions filed by the Justices who vote to reverse these
judgments.
2. Having lived for many years in a State that does not have
the death penalty, [Footnote 7/1] that effectively abolished it in 1911, [Footnote 7/2] and that carried out its last execution on
February 13, 1906, [Footnote 7/3] capital punishment had never been a part of life
for me. In my State, it just did not exist. So far as I can determine, the State,
purely from a statistical deterrence point of view, was neither the worse nor
the better for its abolition, for, as the concurring opinions observe, the
statistics prove little, if anything. But the State and its citizens accepted
the fact that the death penalty was not to be in the arsenal of possible
punishments for any crime.
3. I, perhaps alone among the present members of the Court,
am on judicial record as to this. As a member of the United States Court of
Appeals, I first struggled silently with the issue of capital punishment
in Feguer v. United States, 302 F.2d 214 (CA8 1962), cert.
denied, 371 U.S. 872 (1962). The defendant in that case may have been
one of the last to be executed under federal auspices. I struggled again with
the issue, and once more refrained from comment, in my writing for an en banc
court in Pope v. United States, 372 F.2d 710 (CA8 1967), vacated (upon
acknowledgment by the Solicitor General of error revealed by the subsequently
decided United States v. Jackson, 390 U. S. 570 (1968)) and remanded, 392 U. S. 651 (1968). Finally, in Maxwell
Page 408 U. S. 407
v. Bishop, 398
F.2d 138 (CA8 1968), vacated and remanded, sua sponte, by the Court on
grounds not raised below, 398 U. S. 262 (1970), I revealed, solitarily and not for
the panel, my distress and concern. 398 F.2d at 153-154. [Footnote 7/4] And in Jackson v. Bishop, 404
F.2d 571 (CA8 1968), I had no hesitancy in writing a panel opinion that held the
use of the strap by trusties upon fellow Arkansas prisoners to be a violation
of the Eighth Amendment. That, however, was in-prison punishment imposed by
inmate-foremen.
4. The several concurring opinions acknowledge, as they
must, that, until today, capital punishment was accepted and assumed as not
unconstitutional per se under the Eighth Amendment or the
Fourteenth Amendment. This is either the flat or the implicit holding of a
unanimous Court in Wilkerson v. Utah, 99 U. S. 130, 99 U. S. 134-135, in 1879; of a unanimous Court in In
re Kemmler, 136 U. S. 436, 136 U. S. 447, in 1890; of the Court in Weems v.
United States, 217 U. S. 349, in 1910; of all those members of the Court, a
majority, who addressed the issue in Louisiana ex rel. Francis v.
Resweber, 329 U. S. 459, 329 U. S. 463-464, 329 U. S. 471-472, in 1947; of Mr. Chief Justice Warren,
speaking for himself and three others (Justices Black, DOUGLAS,
Page 408 U. S. 408
and Whittaker) in Trop v. Dulles, 356 U. S. 86, 356 U. S. 99, in 1958; [Footnote 7/5] in the denial of certiorari in Rudolph
v. Alabama, 375 U. S. 889, in 1963 (where, however, JUSTICES DOUGLAS, BRENNAN,
and Goldberg would have heard argument with respect to the imposition of the
ultimate penalty on a convicted rapist who had "neither taken nor
endangered human life"); and of Mr. Justice Black in McGautha v.
California, 402 U. S. 183, 402 U. S. 226, decided only last Term on May 3, 1971. [Footnote 7/6]
Suddenly, however, the course of decision is now the
opposite way, with the Court evidently persuaded that somehow the passage of
time has taken us to a place of greater maturity and outlook. The argument,
plausible and high-sounding as it may be, is not persuasive, for it is only one
year since McGautha, only eight and one-half years since Rudolph, 14
years since Trop, and 25 years since Francis, and
we have been presented with nothing that demonstrates a significant movement of
any kind in these brief periods. The Court has just decided that it is time to
strike down the death penalty. There would have been as much reason to do this
Page 408 U. S. 409
when any of the cited cass were decided. But the Court
refrained from that action on each of those occasions.
The Court has recognized, and I certainly subscribe to the
proposition, that the Cruel and Unusual Punishments Clause "may acquire
meaning as public opinion becomes enlightened by a humane justice." Weems
v. United States, 217 U.S. at 217 U. S. 378. And Mr. Chief Justice Warren, for a plurality
of the Court, referred to "the evolving standards of decency that mark the
progress of a maturing society." Trop v. Dulles, 356 U.S.
at 356 U. S. 101. Mr. Jefferson expressed the same thought well.
[Footnote 7/7]
Page 408 U. S. 410
My problem, however, as I have indicated, is the suddenness
of the Court's perception of progress in the human attitude since decisions of
only a short while ago.
5. To reverse the judgments in these cases is, of course,
the easy choice. It is easier to strike the balance in favor of life and
against death. It is comforting to relax in the thoughts perhaps the
rationalizations -- that this is the compassionate decision for a maturing
society; that this is the moral and the "right" thing to do; that
thereby we convince ourselves that we are moving down the road toward human
decency; that we value life even though that life has taken another or others
or has grievously scarred another or others and their families; and that we are
less barbaric than we were in 1879, or in 1890, or in 1910, or in 1947, or in
1958, or in 1963, or a year ago, in 1971, when Wilkerson, Kemmler,
Weems, Francis, Trop, Rudolph, and McGautha were,
respectively, decided.
This, for me, is good argument, and it makes some sense. But
it is good argument and it makes sense only in a legislative and executive way,
and not as a judicial expedient. As I have said above, were I a legislator, I
would do all I could to sponsor and to vote for legislation abolishing the death
penalty. And were I the chief executive of a sovereign State, I would be sorely
tempted to exercise executive clemency as Governor Rockefeller of Arkansas did
recently just before he departed from office. There -- on the Legislative
Branch of the State or Federal Government, and secondarily, on the Executive
Branch -- is where the authority and responsibility for this kind of action
lies. The authority should not be taken over by the judiciary in the modern
guise of an Eighth Amendment issue.
I do not sit on these cases, however, as a legislator,
responsive, at least in part, to the will of constituents.
Page 408 U. S. 411
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.
6. The Court, in my view, is somewhat propelled toward its
result by the interim decision of the California Supreme Court, with one
justice dissenting, that the death penalty is violative of that State's
constitution. People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880 (Feb. 18, 1972). So far as I am
aware, that was the first time the death penalty in its entirety has been
nullified by judicial decision. Cf. Ralph v. Warden, 438 F.2d
786, 793 (CA4 1970), cert. denied, post, p. 942. California's
moral problem was a profound one, for more prisoners were on death row there
than in any other State. California, of course, has the right to construe its
constitution as it will. Its construction, however, is hardly a precedent for
federal adjudication.
7. I trust the Court fully appreciates what it is doing when
it decides these cases the way it does today. Not only are the capital
punishment laws of 39 States and the District of Columbia struck down, but also
all those provisions of the federal statutory structure that permit the death
penalty apparently are voided. No longer is capital punishment possible, I
suspect, for, among other crimes, treason, 18 U.S.C. § 2381; or assassination
of the President, the Vice President, or those who stand elected to those
positions, 18 U.S.C. § 1751; or assassination of a Member or member-elect of
Congress, 18 U.S.C. § 351; or espionage, 18 U.S.C. § 794;
Page 408 U. S. 412
or rape within the special maritime jurisdiction, 18 U.S.C.
§ 2031; or aircraft or motor vehicle destruction where death occurs, 18 U.S.C.
§ 34; or explosives offenses where death results, 18 U.S.C. §§ 844 (d) and (f);
or train wrecking, 18 U.S.C. § 1992; or aircraft piracy, 49 U.S.C. § 1472(i).
Also in jeopardy, perhaps, are the death penalty provisions in various Articles
of the Uniform Code of Military Justice. 10 U.S.C. §§ 885, 890, 894, 899, 901,
904, 906, 913, 918, and 920. All these seem now to be discarded without a
passing reference to the reasons, or the circumstances, that prompted their
enactment, some very recent, and their retention in the face of efforts to
repeal them.
8. It is of passing interest to note a few voting facts with
respect to recent federal death penalty legislation:
A. The aircraft piracy statute, 49 U.S.C. § 1472(i), was
enacted September 5, 1961. The Senate vote on August 10 was 92-0. It was
announced that Senators Chavez, Fulbright, Neuberger, and Symington were
absent, but that, if present, all four would vote yea. It was also announced,
on the other side of the aisle, that Senator Butler was ill and that Senators
Beall, Carlson, and Morton were absent or detained, but that those four, if
present, would vote in the affirmative. These announcements, therefore,
indicate that the true vote was 100-0. 107 Cong.Rec. 15440. The House passed
the bill without recorded vote. 107 Cong.Rec. 16849.
B. The presidential assassination statute, 18 U.S.C. § 1751,
was approved August 28, 1965, without recorded votes. 111 Cong.Rec. 14103,
18026, and 20239.
C. The Omnibus Crime Control Act of 1970 was approved January
2, 1971. Title IV thereof added the congressional assassination statute that is
now 18 U.S.C. § 351. The recorded House vote on October 7, 1970, was 341-26,
with 63 not voting and 62 of those paired. 116 Cong.Rec. 35363-35364. The
Senate vote on October 8
Page 408 U. S. 413
was 59-0, with 41 not voting, but with 21 of these announced
as favoring the bill. 116 Cong.Rec. 35743. Final votes after conference were
not recorded. 116 Cong.Rec. 42150, 42199.
It is impossible for me to believe that the many lawyer-members
of the House and Senate -- including, I might add, outstanding leaders and
prominent candidates for higher office -- were callously unaware and
insensitive of constitutional overtones in legislation of this type. The
answer, of course, is that, in 1961, in 1965, and in 1970, these elected
representatives of the people -- far more conscious of the temper of the times,
of the maturing of society, and of the contemporary demands for man's dignity
than are we who sit cloistered on this Court -- took it as settled that the
death penalty then, as it always had been, was not, in itself,
unconstitutional. Some of those Members of Congress, I suspect, will be
surprised at this Court's giant stride today.
9. If the reservations expressed by my Brother STEWART
(which, as I read his opinion, my Brother WHITE s) were to command support,
namely, that capital punishment may not be unconstitutional so long as it be
mandatorily imposed, the result, I fear, will be that statutes struck down
today will be reenacted by state legislatures to prescribe the death penalty
for specified crimes without any alternative for the imposition of a lesser
punishment in the discretion of the judge or jury, as the case may be. This
approach, it seems to me, encourages legislation that is regressive and of an
antique mold, for it eliminates the element of mercy in the imposition of
punishment. I thought we had passed beyond that point in our criminology long
ago.
10. It is not without interest, also, to note that, although
the several concurring opinions acknowledge the heinous and atrocious character
of the offenses committed by the petitioners, none of those opinions makes
Page 408 U. S. 414
reference to the misery the petitioners' crimes occasioned
to the victims, to the families of the victims, and to the communities where
the offenses took place. The arguments for the respective petitioners,
particularly the oral arguments, were similarly and curiously devoid of
reference to the victims. There is risk, of course, in a comment such as this,
for it opens one to the charge of emphasizing the retributive. But see
Williams v. New York, 337 U. S. 241, 337 U. S. 248 (1949). Nevertheless, these cases are here
because offenses to innocent victims were perpetrated. This fact, and the
terror that occasioned it, and the fear that stalks the streets of many of our
cities today perhaps deserve not to be entirely overlooked. Let us hope that,
with the Court's decision, the terror imposed will be forgotten by those upon
whom it was visited, and that our society will reap the hoped-for benefits of
magnanimity.
Although personally I may rejoice at the Court's result, I
find it difficult to accept or to justify as a matter of history, of law, or of
constitutional pronouncement. I fear the Court has overstepped. It has sought
and has achieved an end.
Minn.Stat. § 609.10 (1971).
Minn.Laws 1911, c. 387.
See W.
Trenerry, Murder in Minnesota 163-167 (1962).
"It is obvious, we think, that the efforts on behalf of
Maxwell would not thus be continuing, and his case reappearing in this court
were it not for the fact that it is the death penalty, rather than life
imprisonment, which he received on his rape conviction. This fact makes the
decisional process in a case of this kind particularly excruciating for the
author of this opinion[11] who is not personally
convinced of the rightness of capital punishment and who questions it as an
effective deterrent. But the advisability of capital punishment is a policy
matter ordinarily to be resolved by the legislature or through executive
clemency, and not by the judiciary. We note, for what that notice may be worth,
that the death penalty for rape remains available under federal statutes. 18
U.S.C. § 203; 10 U.S.C. § 920(a)."
The designated footnote observed that my fellow judges did
not join in my comment.
"At the outset, let us put to one side the death
penalty as an index of the constitutional limit on punishment. Whatever the
arguments may be against capital punishment, both on moral grounds and in terms
of accomplishing the purposes of punishment -- and they are forceful -- the
death penalty has been employed throughout our history, and, in a day when it
is still widely accepted, it cannot be said to violate the constitutional
concept of cruelty. . . ."
"The Eighth Amendment forbids 'cruel and unusual
punishments.' In my view, these words cannot be read to outlaw capital
punishment, because that penalty was in common use and authorized by law here
and in the countries from which our ancestors came at the time the Amendment
was adopted. It is inconceivable to me that the framers intended to end capital
punishment by the Amendment. Although some people have urged that this Court
should amend the Constitution by interpretation to keep it abreast of modern ideas,
I have never believed that lifetime judges in our system have any such
legislative power."
"Some men look at constitutions with sanctimonious
reverence, and deem them like the ark of the covenant, too sacred to be
touched. They ascribe to the men of the preceding age a wisdom more than human,
and suppose what they did to be beyond amendment. I knew that age well; I
belonged to it, and labored with it. It deserved well of its country. It was
very like the present, but without the experience of the present; and forty
years of experience in government is worth a century of book-reading; and this
they would say themselves, were they to rise from the dead. . . . I know . . .
that laws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed, more enlightened, as new discoveries are
made, new truths disclosed, and manners and opinions change with the change of
circumstances, institutions must advance also, and keep pace with the times. We
might as well require a man to wear still the coat which fitted him when a boy
as civilized society to remain ever under the regimen of their barbarous
ancestors. . . . Let us follow no such examples, nor weakly believe that one
generation is not as capable as another of taking care of itself, and of
ordering its own affairs. Let us, as our sister States have done, avail
ourselves of our reason and experience, to correct the crude essays of our
first and unexperienced, although wise virtuous, and well-meaning councils. And
lastly, let us provide in our Constitution for its revision at stated
periods."
Letter to Samuel Kercheval, July 12, 1816, 15 The Writings
of Thomas Jefferson 40-42 (Memorial ed. 1904).
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.
The Court granted certiorari in these cases to consider
whether the death penalty is any longer a permissible form of punishment. 403
U.S. 952 (1971). It is the judgment of five Justices that the death penalty, as
customarily prescribed and implemented in this country today, offends the
constitutional prohibition against cruel and unusual punishments. The reasons
for that judgment are stated in five separate opinions, expressing as many
separate rationales. In my view, none of these opinions provides a
constitutionally adequate foundation for the Court's decision.
Page 408 U. S. 415
MR. JUSTICE DOUGLAS concludes that capital punishment is
incompatible with notions of "equal protection" that he finds to be
"implicit" in the Eighth Amendment. Ante at 408 U. S. 257. MR. JUSTICE BRENNAN bases his judgment
primarily on the thesis that the penalty "does not comport with human
dignity." Ante at 408 U. S. 270. MR. JUSTICE STEWART concludes that the penalty
is applied in a "wanton" and "freakish" manner. Ante at 408 U. S. 310. For MR. JUSTICE WHITE, it is the
"infrequency" with which the penalty is imposed that renders its use
unconstitutional. Ante at 408 U. S. 313. MR. JUSTICE MARSHALL finds that capital
punishment is an impermissible form of punishment because it is "morally
unacceptable" and "excessive." Ante at 408 U. S. 360, 408 U. S. 358.
Although the central theme of petitioners' presentations in
these cases is that the imposition of the death penalty is per se unconstitutional,
only two of today's opinions explicitly conclude that so sweeping a
determination is mandated by the Constitution. Both MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL call for the abolition of all existing state and federal
capital punishment statutes. They intimate as well that no capital statute
could be devised in the future that might comport with the Eighth Amendment.
While the practical consequences of the other three opinions are less certain,
they at least do not purport to render impermissible every possible statutory
scheme for the use of capital punishment that legislatures might hereafter
devise. [Footnote 8/1] Insofar as these latter opinions fail, at least
explicitly,
Page 408 U. S. 416
to go as far as petitioners' contentions would carry them,
their reservations are attributable to a willingness to accept only a portion
of petitioners' thesis. For the reasons cogently set out in the CHIEF JUSTICE's
dissenting opinion (ante at 408 U. S. 396-403), and for reasons stated elsewhere in this
opinion, I find my Brothers' "less than absolute abolition" judgments
unpersuasive. Because those judgments are, for me, not dispositive, I shall
focus primarily on the broader ground upon which the petitions in these cases
are premised. The foundations of my disagreement with that broader thesis are
equally applicable to each of the concurring opinions. I will, therefore, not
endeavor to treat each one separately. Nor will I attempt to predict what forms
of capital statutes, if any, may avoid condemnation in the future under the
variety of views expressed by the collective majority today. That difficult
task, not performed in any of the controlling opinions, must go unanswered
until other cases presenting these more limited inquiries arise.
Whatever uncertainties may hereafter surface, several of the
consequences of today's decision are unmistakably clear. The decision is
plainly one of the greatest importance.
Page 408 U. S. 417
The Court's judgment removes the death sentences previously
imposed on some 600 persons awaiting punishment in state and federal prisons
throughout the country. At least for the present, it also bars the States and
the Federal Government from seeking sentences of death for defendants awaiting
trial on charges for which capital punishment was heretofore a potential
alternative. The happy event for these countable few constitutes, however, only
the most visible consequence of this decision. Less measurable, but certainly
of no less significance, is the shattering effect this collection of views has
on the root principles of stare decisis, federalism, judicial
restraint, and -- most importantly -- separation of powers.
The Court rejects as not decisive the clearest evidence that
the Framers of the Constitution and the authors of the Fourteenth Amendment
believed that those documents posed no barrier to the death penalty. The Court
also brushes aside an unbroken line of precedent reaffirming the heretofore
virtually unquestioned constitutionality of capital punishment. Because of the
pervasiveness of the constitutional ruling sought by petitioners, and accepted
in varying degrees by five members of the Court, today's departure from
established precedent invalidates a staggering number of state and federal
laws. The capital punishment laws of no less than 39 States [Footnote 8/2] and the District of Columbia are nullified. In
addition, numerous provisions of the Criminal Code of the United States and of
the Uniform Code of Military
Page 408 U. S. 418
Justice also are voided. The
Court's judgment not only wipes out laws presently in existence, but denies to
Congress and to the legislatures of the 50 States the power to adopt new
policies contrary to the policy selected by the Court. Indeed, it is the view
of two of my Brothers that the people of each State must be denied the
prerogative to amend their constitutions to provide for capital punishment even
selectively for the most heinous crime.
In terms of the constitutional role of this Court, the
impact of the majority's ruling is all the greater because the decision
encroaches upon an area squarely within the historic prerogative of the
legislative branch -- both state and federal -- to protect the citizenry
through the designation of penalties for prohibitable conduct. It is the very
sort of judgment that the legislative branch is competent to make, and for
which the judiciary is ill-equipped. Throughout our history, Justices of this
Court have emphasized the gravity of decisions invalidating legislative
judgments, admonishing the nine men who sit on this bench of the duty of
self-restraint, especially when called upon to apply the expansive due process
and cruel and unusual punishment rubrics. I can recall no case in which, in the
name of deciding constitutional questions, this Court has subordinated national
and local democratic processes to such an extent. Before turning to address the
thesis of petitioners' case against capital punishment -- a thesis that has
proved, at least in large measure, persuasive to a majority of this Court -- I
first will set out the principles that counsel against the Court's sweeping
decision.
I
The Constitution itself poses the first obstacle to
petitioners' argument that capital punishment is per se unconstitutional.
The relevant provisions are the Fifth,
Page 408 U. S. 419
Eighth, and Fourteenth Amendments. The first of these
provides in part:
"No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury
. . . ; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; . . . nor be deprived of life, liberty, or property,
without due process of law. . . ."
Thus, the Federal Government's power was restricted in order
to guarantee those charged with crimes that the prosecution would have only a
single opportunity to seek imposition of the death penalty, and that the death
penalty could not be exacted without due process and a grand jury indictment.
The Fourteenth Amendment, adopted about 77 years after the Bill of Rights,
imposed the due process limitation of the Fifth Amendment upon the States'
power to authorize capital punishment.
The Eighth Amendment, adopted at the same time as the Fifth,
proscribes "cruel and unusual" punishments. In an effort to discern
its meaning, much has been written about its history in the opinions of this
Court and elsewhere. [Footnote 8/3] That history need not be restated here since,
whatever punishments the Framers of the Constitution may have intended to
prohibit under the "cruel and unusual" language, there cannot be the
slightest doubt that they intended no absolute bar on the Government's
authority to impose the death penalty. McGautha v.
Page 408 U. S. 420
California, 402 U. S. 183, 402 U. S. 226 (1971) (separate opinion of Black, J.). As
much is made clear by the three references to capital punishment in the Fifth
Amendment. Indeed, the same body that proposed the Eighth Amendment also
provided, in the first Crimes Act of 1790, for the death penalty for a number
of offenses. 1 Stat. 112.
Of course, the specific prohibitions within the Bill of
Rights are limitations on the exercise of power; they are not an affirmative grant
of power to the Government. I, therefore, do not read the several references to
capital punishment as foreclosing this Court from considering whether the death
penalty in a particular case offends the Eighth and Fourteenth Amendments. Nor
are "cruel and unusual punishments" and "due process of
law" static concepts whose meaning and scope were sealed at the time of
their writing. They were designed to be dynamic and to gain meaning through
application to specific circumstances, many of which were not contemplated by
their authors. While flexibility in the application of these broad concepts is
one of the hallmarks of our system of government, the Court is not free to read
into the Constitution a meaning that is plainly at variance with its language.
Both the language of the Fifth and Fourteenth Amendments and the history of the
Eighth Amendment confirm beyond doubt that the death penalty was considered to
be a constitutionally permissible punishment. It is, however, within the
historic process of constitutional adjudication to challenge the imposition of
the death penalty in some barbaric manner or as a penalty wholly
disproportionate to a particular criminal act. And in making such a judgment in
a case before it, a court may consider contemporary standards to the extent
they are relevant. While this weighing of a punishment against the Eighth
Amendment standard on a case-by-case basis is consonant with history and
precedent, it is not what
Page 408 U. S. 421
petitioners demand in these cases. They seek nothing less
than the total abolition of capital punishment by judicial fiat.
II
Petitioners assert that the constitutional issue is an open
one uncontrolled by prior decisions of this Court. They view the several cases
decided under the Eighth Amendment as assuming the constitutionality of the
death penalty without focusing squarely upon the issue. I do not believe that
the case law can be so easily cast aside. The Court on numerous occasions has
both assumed and asserted the constitutionality of capital punishment. In
several cases, that assumption provided a necessary foundation for the
decision, as the issue was whether a particular means of carrying out a capital
sentence would be allowed to stand. Each of those decisions necessarily was
premised on the assumption that some method of exacting the penalty was
permissible.
The issue in the first capital case in which the Eighth
Amendment was invoked, Wilkerson v. Utah, 99 U. S. 130 (1879), was whether carrying out a death
sentence by public shooting was cruel and unusual punishment. A unanimous Court
upheld that form of execution, noting first that the punishment itself, as
distinguished from the mode of its infliction, was "not pretended by the
counsel of the prisoner" (id. at 99 U. S. 137) to be cruel and unusual. The Court went on to
hold that:
"Cruel and unusual punishments are forbidden by the Constitution,
but the authorities . . . are quite sufficient to show that the punishment of
shooting as a mode of executing the death penalty for the crime of murder in
the first degree is not included in that category. . . ."
Id. at 99 U. S. 134-135.
Eleven years later, in In re Kemmler, 136 U. S. 436 (1890), the Court again faced a question
involving the
Page 408 U. S. 422
method of carrying out a capital sentence. On review of a
denial of habeas corpus relief by the Supreme Court of New York, this Court was
called on to decide whether electrocution, which only very recently had been
adopted by the New York Legislature as a means of execution, was impermissibly
cruel and unusual in violation of the Fourteenth Amendment. [Footnote 8/4] Chief Justice Fuller, speaking for the entire
Court, ruled in favor of the State. Electrocution had been selected by the
legislature, after careful investigation, as "the most humane and
practical method known to modern science of carrying into effect the sentence
of death." Id. at 136 U. S. 444. The Court drew a clear line between the penalty
itself and the mode of its execution:
"Punishments are cruel when they involve torture or a
lingering death; but the punishment of death
Page 408 U. S. 423
is not cruel, within the meaning of that word as used in the
Constitution. It implies there something inhuman and barbarous, something more
than the mere extinguishment of life."
Id. at 136 U. S. 447.
More than 50 years later, in Louisiana ex rel.
Francis v. Resweber, 329 U. S. 459 (1947), the Court considered a case in
which, due to a mechanical malfunction, Louisiana's initial attempt to
electrocute a convicted murderer had failed. Petitioner sought to block a
second attempt to execute the sentence on the ground that to do so would
constitute cruel and unusual punishment. In the plurality opinion written by
Mr. Justice Reed, concurred in by Chief Justice Vinson and Justices Black and
Jackson, relief was denied. Again the Court focused on the manner of execution,
never questioning the propriety of the death sentence itself.
"The case before us does not call for an examination
into any punishments except that of death. . . . The traditional humanity of
modern Anglo-American law forbids the infliction of unnecessary pain in the
execution of the death sentence. . . . "
". . . The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the method of punishment, not
the necessary suffering involved in any method employed to extinguish life
humanely."
Id. at 329 U. S. 463-464. Mr. Justice Frankfurter, unwilling to
dispose of the case under the Eighth Amendment's specific prohibition, approved
the second execution attempt under the Due Process Clause. He concluded that
"a State may be found to deny a person due process by
treating even one guilty of crime in a manner that violates standards of
Page 408 U. S. 424
decency more or less universally accepted, though not when
it treats him by a mode about which opinion is fairly divided."
Id. at 329 U. S. 469-470.
The four dissenting Justices, although finding a second
attempt at execution to be impermissibly cruel, expressly recognized the
validity of capital punishment:
"In determining whether the proposed procedure is
unconstitutional, we must measure it against a lawful electrocution. . . .
Electrocution, when instantaneous, can be inflicted by a state
in conformity with due process of law. . . . "
"The all-important consideration is that the execution
shall be so instantaneous and substantially painless that the punishment shall
be reduced, as nearly as possible, to no more than that of death itself."
Id. at
474 (original emphasis).
Each of these cases involved the affirmance of a death
sentence where its validity was attacked as violating the Eighth Amendment.
Five opinions were written in these three cases, expressing the views of 23
Justices. While, in the narrowest sense, it is correct to say that in none was
there a frontal attack upon the constitutionality of the death penalty, each
opinion went well beyond an unarticulated assumption of validity. The power of
the States to impose capital punishment was repeatedly and expressly
recognized.
In addition to these cases in which the constitutionality of
the death penalty was a necessary foundation for the decision, those who today
would have this Court undertake the absolute abolition of the death penalty
also must reject the opinions of other cases stipulating or assuming the
constitutionality of capital punishment. Trop v. Dulles, 356 U. S. 86, 356 U. S. 99, 356 U. S. 100 (1958); Weems v. United States, 217 U. S. 349, 217 U. S. 382, 217 U. S. 409 (1910)
Page 408 U. S. 425
(White, J., joined by Holmes, J., dissenting). [Footnote 8/5] See also McGautha v. California, 402
U.S. at 402 U. S. 226 (separate opinion of Black, J.); Robinson
v. California, 370 U. S. 660, 370 U. S. 676 (1962) (DOUGLAS, J., concurring).
The plurality opinion in Trop v. Dulles, supra, is
of special interest, since it is this opinion, in large measure, that provides
the foundation for the present attack on the death penalty. [Footnote 8/6] It is anomalous that the standard urged by
petitioners -- "evolving standards of decency that mark the progress of a
maturing society" (356 U.S. at 356 U. S. 101) -- should be derived from an opinion that so
unqualifiedly rejects their arguments. Chief Justice Warren, joined by Justices
Black, DOUGLAS, and Whittaker, stated flatly:
"At the outset, let us put to one side the death
penalty as an index of the constitutional limit on punishment. Whatever the
arguments may be against capital punishment, both on moral grounds and in terms
of accomplishing the purposes of punishment -- and they are forceful -- the
death penalty has been employed throughout our history, and, in a day when it
is still widely accepted, it cannot be said to violate the constitutional
concept of cruelty."
Id. at 356 U. S. 99. The issue in Trop was whether
forfeiture of citizenship was a cruel and unusual punishment when imposed on
Page 408 U. S. 426
a wartime deserter who had gone "over the hill"
for less than a day and had willingly surrendered. In examining the
consequences of the relatively novel punishment of denationalization, [Footnote 8/7] Chief Justice Warren drew a line between
"traditional" and "unusual" penalties:
"While the State has the power to punish, the [Eighth]
Amendment stands to assure that this power be exercised within the limits of
civilized standards. Fines, imprisonment and even execution may be imposed
depending upon the enormity of the crime, but any technique outside the bounds
of these traditional penalties is constitutionally suspect."
Id. at 356 U. S. 100. The plurality's repeated disclaimers of any
attack on capital punishment itself must be viewed as more than offhand dicta
since, those views were written in direct response to the strong language in
Mr. Justice Frankfurter's dissent arguing that denationalization could not be a
disproportionate penalty for a concededly capital offense. [Footnote 8/8]
The most recent precedents of this Court -- Witherspoon
v. Illinois, 391 U. S. 510 (1968), and McGautha v. California,
supra -- are also premised to a significant degree on the
constitutionality of the death penalty. While the scope of review in both cases
was limited to questions involving the procedures for selecting juries
Page 408 U. S. 427
and regulating their deliberations in capital cases, [Footnote 8/9] those opinions were "singularly academic
exercise[s]" [Footnote 8/10] if the members of this Court were prepared at
those times to find in the Constitution the complete prohibition of the death
penalty. This is especially true of Mr. Justice Harlan's opinion for the Court
in McGautha, in which, after a full review of the history of
capital punishment, he concluded that
"we find it quite impossible
to say that committing to the untrammeled discretion of the jury the power to
pronounce life or death in capital cases is offensive to anything in the
Constitution."
Id. at 402 U. S. 207. [Footnote 8/11]
Page 408 U. S. 428
Perhaps enough has been said to demonstrate the unswerving
position that this Court has taken in opinions spanning the last hundred years.
On virtually every occasion that any opinion has touched on the question of the
constitutionality of the death penalty, it has been asserted affirmatively, or
tacitly assumed, that the Constitution does not prohibit the penalty. No
Justice of the Court, until today, has dissented from this consistent reading
of the Constitution. The petitioners in these cases now before the Court cannot
fairly avoid the weight of this substantial body of precedent merely by
asserting that there is no prior decision precisely in point. Stare
decisis, if it is a doctrine founded on principle, surely applies
where there exists a long line of cases endorsing or necessarily assuming the
validity of a particular matter of constitutional interpretation. Green
v. United States, 356 U. S. 165, 356 U. S. 189-193 (1958) (Frankfurter, J., concurring). While
these oft-repeated expressions of unchallenged belief in the constitutionality
of capital punishment may not justify a summary disposition of the
constitutional question before us, they are views expressed and joined in over
the years by no less than 29 Justices of this Court, and therefore merit the
greatest respect. [Footnote 8/12] Those who now resolve to set those views aside
indeed have a heavy burden.
III
Petitioners seek to avoid the authority of the foregoing
cases, and the weight of express recognition in the Constitution itself, by
reasoning which will not withstand analysis. The thesis of petitioners' case
derives from several opinions in which members of this Court
Page 408 U. S. 429
have recognized the dynamic nature of the prohibition
against cruel and unusual punishments. The final meaning of those words was not
set in 1791. Rather, to use the words of Chief Justice Warren speaking for a
plurality of the Court in Trop v. Dulles, 356 U.S. at 356 U. S. 100-101:
"[T]he words of the Amendment are not precise, and . .
. their scope is not static. The Amendment must draw its meaning from the
evolving standards of decency that mark the progress of a maturing
society."
But this was not new doctrine. It was the approach to the
Eighth Amendment taken by Mr. Justice McKenna in his opinion for the Court
in Weems v. United States, 217 U. S. 349 (1910). Writing for four Justices sitting
as the majority of the six-man Court deciding the case, he concluded that the
clause must be "progressive"; it is not "fastened to the
obsolete, but may acquire meaning as public opinion becomes enlightened by a
humane justice." Id. at 217 U. S. 378. The same test was offered by Mr. Justice
Frankfurter in his separate concurrence in Louisiana ex rel. Francis v.
Resweber, 329 U.S. at 329 U. S. 469. While he rejected the notion that the
Fourteenth Amendment made the Eighth Amendment fully applicable to the States,
he nonetheless found as a matter of due process that the States were prohibited
from "treating even one guilty of crime in a manner that violates
standards of decency more or less universally accepted."
Whether one views the question as one of due process or of
cruel and unusual punishment, as I do for convenience in this case, the issue
is essentially the same. [Footnote 8/13] The fundamental premise upon which either
standard is based is that notions of what constitute cruel and unusual
punishment or due process do evolve.
Page 408 U. S. 430
Neither the Congress nor any state legislature would today
tolerate pillorying, branding, or cropping or nailing of the ears --
punishments that were in existence during our colonial era. [Footnote 8/14] Should, however, any such punishment be prescribed,
the courts would certainly enjoin its execution. See Jackson v. Bishop, 404
F.2d 571 (CA8 1968). Likewise, no court would approve any method of
implementation of the death sentence found to involve unnecessary cruelty in
light of presently available alternatives. Similarly, there may well be a
process of evolving attitude with respect to the application of the death
sentence for particular crimes. [Footnote 8/15] See McGautha v. California, 402
U.S. at 402 U. S. 242 (DOUGLAS, J., dissenting). But we are not
asked to consider the permissibility of any of the several methods employed in
carrying out the death sentence. Nor are we asked, at least as part of the core
submission in these cases, to determine whether the penalty might be a grossly
excessive punishment for some specific criminal conduct. Either inquiry would
call for a discriminating evaluation of particular means, or of the
relationship between particular conduct and its punishment. Petitioners'
principal argument goes far beyond the traditional process of case-by-case
inclusion and exclusion. Instead the argument insists on an unprecedented
constitutional rule of absolute prohibition of capital punishment for any
crime, regardless of its depravity and impact on society. In calling for a
precipitate and final judicial end to this form of penalty as offensive to
evolving standards of decency, petitioners would have this Court abandon the
traditional and more refined approach consistently followed in its prior Eighth
Amendment precedents. What they are saying, in effect, is that the evolutionary
Page 408 U. S. 431
process has come suddenly to an end; that the ultimate
wisdom as to the appropriateness of capital punishment under all circumstances,
and for all future generations, has somehow been revealed.
The prior opinions of this Court point with great clarity to
reasons why those of us who sit on this Court at a particular time should act
with restraint before assuming, contrary to a century of precedent, that we now
know the answer for all time to come. First, where, as here, the language of
the applicable provision provides great leeway, and where the underlying social
policies are felt to be of vital importance, the temptation to read personal
preference into the Constitution is understandably great. It is too easy to
propound our subjective standards of wise policy under the rubric of more or
less universally held standards of decency. See Trop v. Dulles, 356
U.S. at 356 U. S. 103 (Warren, C.J.), 356 U. S. 119-120 (Frankfurter, J., dissenting); Louisiana
ex rel. Francis v. Resweber, 329 U.S. at 329 U. S. 470-471 (Frankfurter, J., concurring); Weems
v. United States, 217 U.S. at 217 U. S. 378-379 (McKenna, J.).
The second consideration dictating judicial self-restraint
arises from a proper recognition of the respective roles of the legislative and
judicial branches. The designation of punishments for crimes is a matter
peculiarly within the sphere of the state and federal legislative bodies. See,
e.g., In re Kemmler, 136 U.S. at 136 U. S. 447; Trop v. Dulles, 356 U.S.
at 356 U. S. 103. When asked to encroach on the legislative
prerogative we are well counseled to proceed with the utmost reticence. The
review of legislative choices, in the performance of our duty to enforce the
Constitution, has been characterized most appropriately by Mr. Justice Holmes
as "the gravest and most delicate duty that this Court is called on to
perform." Blodgett v. Holden, 275 U. S. 142, 275 U. S. 147-148 (1927) (separate opinion).
Page 408 U. S. 432
How much graver is that duty when we are not asked to pass
on the constitutionality of a single penalty under the facts of a single case,
but instead are urged to overturn the legislative judgments of 40 state
legislatures as well as those of Congress. In so doing, is the majority able to
claim, as did the Court in Weems, that it appreciates
"to the fullest the wide range
of power that the legislature possesses to adapt its penal laws to conditions
as they may exist and punish the crimes of men according to their forms and
frequency?"
217 U.S. at 217 U. S. 379. I think not. No more eloquent statement of the
essential separation of powers limitation on our prerogative can be found than
the admonition of Mr. Justice Frankfurter, dissenting in Trop. His
articulation of the traditional view takes on added significance where the
Court undertakes to nullify the legislative judgments of the Congress and
four-fifths of the States.
"What is always basic when the power of Congress to
enact legislation is challenged is the appropriate approach to judicial review
of congressional legislation. . . . When the power of Congress to pass a
statute is challenged, the function of this Court is to determine whether legislative
action lies clearly outside the constitutional grant of power to which it has
been, or may fairly be, referred. In making this determination, the Court sits
in judgment on the action of a coordinate branch of the Government while
keeping unto itself -- as it must under our constitutional system -- the final
determination of its own power to act. . . . "
"Rigorous observance of the difference between limits
of power and wise exercise of power -- between questions of authority and
questions of prudence -- requires the most alert appreciation of this decisive
but subtle relationship of two concepts that too easily coalesce. No less does
it require a
Page 408 U. S. 433
disciplined will to adhere to the difference. It is not easy
to stand aloof and allow want of wisdom to prevail, to disregard one's own
strongly held view of what is wise in the conduct of affairs. But it is not the
business of this Court to pronounce policy. It must observe a fastidious regard
for limitations on its own power, and this precludes the Court's giving effect
to its own notions of what is wise or politic. That self-restraint is of the
essence in the observance of the judicial oath, for the Constitution has not
authorized the judges to sit in judgment on the wisdom of what Congress and the
Executive Branch do."
356 U.S. at 356 U. S. 119-120. See also Mr. Justice
White's dissenting opinion in Weems v. United States, 217 U.S.
at 382.
IV
Although determining the range of available punishments for
a particular crime is a legislative function, the very presence of the Cruel
and Unusual Punishments Clause within the Bill of Rights requires, in the
context of a specific case, that courts decide whether particular acts of the
Congress offend that Amendment. The Due Process Clause of the Fourteenth
Amendment imposes on the judiciary a similar obligation to scrutinize state
legislation. But the proper exercise of that constitutional obligation in the
cases before us today must be founded on a full recognition of the several
considerations set forth above -- the affirmative references to capital
punishment in the Constitution, the prevailing precedents of this Court, the
limitations on the exercise of our power imposed by tested principles of
judicial self-restraint, and the duty to avoid encroachment on the powers
conferred upon state and federal legislatures. In the face of these
considerations, only the most conclusive
Page 408 U. S. 434
of objective demonstrations could warrant this Court in
holding capital punishment per se unconstitutional. The burden
of seeking so sweeping a decision against such formidable obstacles is almost
insuperable. Viewed from this perspective, as I believe it must be, the case
against the death penalty falls far short.
Petitioners' contentions are premised, as indicated above,
on the long-accepted view that concepts embodied in the Eighth and Fourteenth
Amendments evolve. They present, with skill and persistence, a list of
"objective indicators" which are said to demonstrate that prevailing
standards of human decency have progressed to the final point of requiring the
Court to hold, for all cases and for all time, that capital punishment is
unconstitutional.
Briefly summarized, these proffered indicia of contemporary
standards of decency include the following: (i) a worldwide trend toward the
disuse of the death penalty; [Footnote 8/16] (ii) the reflection in the scholarly literature
of a progressive rejection of capital punishment founded essentially on moral
opposition to such treatment; [Footnote 8/17] (iii) the decreasing numbers of executions over
the last 40 years, and especially over the last decade; [Footnote 8/18] (iv) the
Page 408 U. S. 435
small number of death sentences rendered in relation to the
number of cases in which they might have been imposed; [Footnote 8/19] and (v) the indication of public abhorrence of
Page 408 U. S. 436
the penalty reflected in the circumstance that executions
are no longer public affairs. [Footnote 8/20] The foregoing is an incomplete summary, but it
touches the major bases of petitioners' presentation. Although they are not
appropriate for consideration as objective evidence, petitioners strongly urge
two additional propositions. They contend, first, that the penalty survives
public condemnation only through the infrequency, arbitrariness, and
discriminatory nature of its application, and, second, that there no longer
exists any legitimate justification for the utilization of the ultimate
penalty. These contentions, which have proved persuasive to several of the
Justices constituting the majority, deserve separate consideration, and will be
considered in the ensuing sections. Before turning to those arguments, I first
address the argument based on "objective" factors.
Any attempt to discern contemporary standards of decency
through the review of objective factors must take into account several
overriding considerations which petitioners choose to discount or ignore. In a
democracy,
Page 408 U. S. 437
the first indicator of the public's attitude must always be
found in the legislative judgments of the people's chosen representatives. MR.
JUSTICE MARSHALL's opinion today catalogues the salient statistics. Forty
States, [Footnote 8/21] the District of Columbia, and the Federal
Government still authorize the death penalty for a wide variety of crimes. That
number has remained relatively static since the end of World War I. Ante at 408 U. S. 339-341. That does not mean, however, that capital
punishment has become a forgotten issue in the legislative arena. As recently
as January, 1971, Congress approved the death penalty for congressional
assassination. 18 U.S.C. § 351. In 1965, Congress added the death penalty for presidential
and vice presidential assassinations. 18 U.S.C. § 1751. Additionally, the
aircraft piracy statute passed in 1961 also carries the death penalty. 49
U.S.C. § 1472(i). MR. JUSTICE BLACKMUN's dissenting opinion catalogues the
impressive ease with which each of these statutes was approved. Ante at 408 U. S. 412-413. On the converse side, a bill proposing the
abolition of capital punishment for all federal crimes was introduced in 1967,
but failed to reach the Senate floor. [Footnote 8/22]
At the state level, New York, among other States, has
recently undertaken reconsideration of its capital crimes. A law passed in 1965
restricted the use of capital punishment to the crimes of murder of a police
officer and murder by a person serving a sentence of life imprisonment. N.Y.Penal Code § 125.30 (1967).
I pause here to state that I am at a loss to understand
Page 408 U. S. 438
how those urging this Court to pursue a course of absolute abolition
as a matter of constitutional judgment can draw any support from the New York
experience. As is also the case with respect to recent legislative activity in
Canada [Footnote 8/23] and Great Britain, [Footnote 8/24] New York's decision to restrict the availability
of the death penalty is a product of refined and discriminating legislative
judgment, reflecting not the total rejection of capital punishment as
inherently cruel, but a desire to limit it to those circumstances in which
legislative judgment deems retention to be in the public interest. No such
legislative flexibility is permitted by the contrary course petitioners urge
this Court to follow. [Footnote 8/25] In addition to the New York experience, a
number of other States have undertaken reconsideration of capital punishment in
recent years. In four States, the penalty has been put to a vote of the people
through public referenda -- a means likely to supply objective evidence of
community standards. In Oregon, a referendum seeking abolition of capital
punishment failed in 1958, but was subsequently approved in 1964. [Footnote 8/26] Two years later, the penalty was approved in
Colorado by a wide margin. [Footnote 8/27]
Page 408 U. S. 439
In Massachusetts in 1968, in an advisory referendum, the
voters there likewise recommended retention of the penalty. In 1970,
approximately 64% of the voters in Illinois approved the penalty. [Footnote 8/28] In addition, the National Commission on Reform
of Federal Criminal Laws reports that legislative committees in Massachusetts,
Pennsylvania, and Maryland recommended abolition, while committees in New
Jersey and Florida recommended retention. [Footnote 8/29] The legislative views of other States have been
summarized by Professor Hugo Bedau in his compilation of sources on capital
punishment entitled The Death Penalty in America:
"What our legislative representatives think in the two
score states which still have the death penalty may be inferred from the fate
of the bills to repeal or modify the death penalty filed during recent years in
the legislatures of more than half of these states. In about a dozen instances,
the bills emerged from committee for a vote. But in none except Delaware did
they become law. In those states where these bills were brought to the floor of
the legislatures, the vote in most instances wasn't even close. [Footnote 8/30]"
This recent history of activity with respect to legislation
concerning the death penalty abundantly refutes the abolitionist position.
The second and even more direct source of information
Page 408 U. S. 440
reflecting the public's attitude toward capital punishment
is the jury. In Witherspoon v. Illinois, 391 U. S. 510 (1968), MR. JUSTICE STEWART, joined by
JUSTICES BRENNAN and MARSHALL, characterized the jury's historic function in
the sentencing process in the following terms:
"[T]he jury is given broad discretion to decide whether
or not death is 'the proper penalty' in a given case, and a juror's general
views about capital punishment play an inevitable role in any such
decision."
"A man who opposes the death penalty, no less than one
who favors it, can make the discretionary judgment entrusted to him by the
State, and can thus obey the oath he takes as a juror. . . . Guided by neither
rule nor standard, . . . a jury that must choose between life imprisonment and
capital punishment can do little more -- and must do nothing less -- than
express the conscience of the community on the ultimate question of life or
death."
"[O]ne of the most important functions any jury can
perform in making such a selection is to maintain a link between contemporary
community values and the penal system -- a link without which the determination
of punishment could hardly reflect 'the evolving standards of decency that mark
the progress of a maturing society.' Trop v. Dulles, . . . [Footnote 8/31]"
Any attempt to discern, therefore, where the prevailing
standards of decency lie must take careful account of
Page 408 U. S. 441
the jury's response to the question of capital punishment.
During the 1960's, juries returned in excess of a thousand death sentences, a
rate of approximately two per week. Whether it is true that death sentences
were returned in less than 10% of the cases, as petitioners estimate, or
whether some higher percentage is more accurate, [Footnote 8/32] these totals simply do not support petitioners'
assertion at oral argument that "the death penalty is virtually
unanimously repudiated and condemned by the conscience of contemporary
society." [Footnote 8/33] It is also worthy of note that the annual rate
of death sentences has remained relatively constant over the last 10 years, and
that the figure for 1970 --127 sentences -- is the highest annual total since
1961. [Footnote 8/34] It is true that the sentencing rate might be
expected to rise, rather than remain constant, when the number of violent
crimes increases as it has in this country. [Footnote 8/35] And it may be conceded that the constancy in
these statistics indicates the unwillingness of juries to demand the ultimate
penalty in many cases where it might be imposed. But these considerations fall
short of indicating that juries are imposing the death penalty with such rarity
as to justify this Court in reading into this circumstance a public rejection
of capital punishment. [Footnote 8/36]
Page 408 U. S. 442
One must conclude, contrary to petitioners' submission, that
the indicators most likely to reflect the public's view -- legislative bodies,
state referenda and the juries which have the actual responsibility -- do not
support the contention that evolving standards of decency require total
abolition of capital punishment. [Footnote 8/37] Indeed,
Page 408 U. S. 443
the weight of the evidence indicates that the public
generally has not accepted either the morality or the social merit of the views
so passionately advocated by the articulate spokesmen for abolition. But
however one may assess the amorphous ebb and flow of public opinion generally
on this volatile issue, this type of inquiry lies at the periphery -- not the
core -- of the judicial process in constitutional cases. The assessment of
popular opinion is essentially a legislative, not a judicial, function.
V
Petitioners seek to salvage their thesis by arguing that the
infrequency and discriminatory nature of the actual resort to the ultimate
penalty tend to diffuse public opposition. We are told that the penalty is
imposed exclusively on uninfluential minorities -- "the poor and
powerless, personally ugly and socially unacceptable." [Footnote 8/38] It is urged that this pattern of application assures
that large segments of the public will be either uninformed or unconcerned, and
will have no reason to measure the punishment against prevailing moral
standards.
Implicitly, this argument concedes the unsoundness of
petitioners' contention, examined above under 408 U. S. that objective evidence shows a present and
widespread community rejection of the death penalty. It is now said,
Page 408 U. S. 444
in effect, not that capital punishment presently offends our
citizenry, but that the public would be offended if the penalty were enforced
in a nondiscriminatory manner against a significant percentage of those charged
with capital crimes, and if the public were thereby made aware of the moral
issues surrounding capital punishment. Rather than merely registering the
objective indicators on a judicial balance, we are asked ultimately to rest a
far-reaching constitutional determination on a prediction regarding the
subjective judgments of the mass of our people under hypothetical assumptions
that may or may not be realistic.
Apart from the impermissibility of basing a constitutional
judgment of this magnitude on such speculative assumptions, the argument
suffers from other defects. If, as petitioners urge, we are to engage in
speculation, it is not at all certain that the public would experience
deep-felt revulsion if the States were to execute as many sentenced capital
offenders this year as they executed in the mid-1930's. [Footnote 8/39] It seems more likely that public reaction,
rather than being characterized by undifferentiated rejection, would depend
upon the facts and circumstances surrounding each particular case.
Members of this Court know, from the petitions and appeals
that come before us regularly, that brutish and revolting murders continue to
occur with disquieting frequency. Indeed, murders are so commonplace
Page 408 U. S. 445
in our society that only the most sensational receive
significant and sustained publicity. It could hardly be suggested that in any
of these highly publicized murder cases -- the several senseless assassinations
or the too numerous shocking multiple murders that have stained this country's
recent history -- the public has exhibited any signs of "revulsion"
at the thought of executing the convicted murderers. The public outcry, as we
all know, has been quite to the contrary. Furthermore, there is little reason
to suspect that the public's reaction would differ significantly in response to
other less publicized murder. It is certainly arguable that many such murders,
because of their senselessness or barbarousness, would evoke a public demand
for the death penalty, rather than a public rejection of that alternative. Nor
is there any rational basis for arguing that the public reaction to any of
these crimes would be muted if the murderer were "rich and powerful."
The demand for the ultimate sanction might well be greater, as a wealthy killer
is hardly a sympathetic figure. While there might be specific cases in which
capital punishment would be regarded as excessive and shocking to the
conscience of the community, it can hardly be argued that the public's
dissatisfaction with the penalty in particular cases would translate into a
demand for absolute abolition.
In pursuing the foregoing speculation, I do not suggest that
it is relevant to the appropriate disposition of these cases. The purpose of
the digression is to indicate that judicial decisions cannot be founded on such
speculations and assumptions, however appealing they may seem.
But the discrimination argument does not rest alone on a
projection of the assumed effect on public opinion of more frequent executions.
Much also is made of the undeniable fact that the death penalty has a greater
impact on the lower economic strata of society, which
Page 408 U. S. 446
include a relatively higher percentage of persons of
minority racial and ethnic group backgrounds. The argument drawn from this fact
is two-pronged. In part, it is merely an extension of the speculative approach
pursued by petitioners, i.e., that public revulsion is
suppressed in callous apathy because the penalty does not affect persons from
the white middle class which constitutes the majority in this country. This
aspect, however, adds little to the infrequency rationalization for public
apathy which I have found unpersuasive.
As MR. JUSTICE MARSHALL's opinion today demonstrates, the argument
does have a more troubling aspect. It is his contention that if the average
citizen were aware of the disproportionate burden of capital punishment borne
by the "poor, the ignorant, and the underprivileged," he would find
the penalty "shocking to his conscience and sense of justice," and
would not stand for its further use. Ante at 408 U. S. 365-366, 408 U. S. 369. This argument, like the apathy rationale, calls
for further speculation on the part of the Court. It also illuminates the
quicksands upon which we are asked to base this decision. Indeed, the two
contentions seem to require contradictory assumptions regarding the public's
moral attitude toward capital punishment. The apathy argument is predicated on
the assumption that the penalty is used against the less influential elements
of society, that the public is fully aware of this, and that it tolerates use
of capital punishment only because of a callous indifference to the offenders
who are sentenced. MR. JUSTICE MARSHALL's argument, on the other hand, rests on
the contrary assumption that the public does not know against whom the penalty is
enforced, and that, if the public were educated to this fact, it would find the
punishment intolerable. Ante at 408 U. S. 369. Neither assumption can claim to be an entirely
accurate portrayal of public attitude; for some, acceptance of capital
punishment might be a consequence
Page 408 U. S. 447
of hardened apathy based on the knowledge of infrequent and
uneven application, while for others, acceptance may grow only out of ignorance.
More significantly, however, neither supposition acknowledges what, for me, is
a more basic flaw.
Certainly the claim is justified that this criminal sanction
falls more heavily on the relatively impoverished and underprivileged elements
of society. The "have-nots" in every society always have been subject
to greater pressure to commit crimes and to fewer constraints than their more
affluent fellow citizens. This is, indeed, a tragic byproduct of social and
economic deprivation, but it is not an argument of constitutional proportions
under the Eighth or Fourteenth Amendment. The same discriminatory impact
argument could be made with equal force and logic with respect to those
sentenced to prison terms. The Due Process Clause admits of no distinction between
the deprivation of "life" and the deprivation of "liberty."
If discriminatory impact renders capital punishment cruel and unusual, it
likewise renders invalid most of the prescribed penalties for crimes of
violence. The root causes of the higher incidence of criminal penalties on
"minorities and the poor" will not be cured by abolishing the system
of penalties. Nor, indeed, could any society have a viable system of criminal
justice if sanctions were abolished or ameliorated because most of those who commit
crimes happen to be underprivileged. The basic problem results not from the
penalties imposed for criminal conduct, but from social and economic factors
that have plagued humanity since the beginning of recorded history, frustrating
all efforts to create in any country at any time the perfect society in which
there are no "poor," no "minorities" and no
"underprivileged." [Footnote 8/40]
Page 408 U. S. 448
The causes underlying this problem are unrelated to the
constitutional issue before the Court.
Finally, yet another theory for abolishing the death penalty
-- reflected in varying degrees in each of the concurring opinions today -- is
predicated on the discriminatory impact argument. Quite apart from measuring
the public's acceptance or rejection of the death penalty under the
"standards of decency" rationale, MR. JUSTICE DOUGLAS finds the
punishment cruel and unusual because it is "arbitrarily" invoked. He
finds that "the basic theme of equal protection is implicit" in the
Eighth Amendment, and that the Amendment is violated when jury sentencing may
be characterized as arbitrary or discriminatory. Ante at 408 U. S. 249. While MR. JUSTICE STEWART does not purport to
rely on notions of equal protection, he also rests primarily on what he views
to be a history of arbitrariness. Ante at 408 U. S. 309-310. [Footnote 8/41] Whatever may be the facts with respect to jury
sentencing, this argument calls for a reconsideration of the
"standards" aspects of the Court's decision in McGautha v.
California, 402 U. S. 183 (1971). Although that is the unmistakable
thrust of these opinions today, I see no reason to reassess the standards
question considered so carefully in Mr. Justice Harlan's opinion for the Court
Page 408 U. S. 449
last Term. Having so recently reaffirmed our historic
dedication to entrusting the sentencing function to the jury's
"untrammeled discretion" (id. at 402 U. S. 207), it is difficult to see how the Court can now
hold the entire process constitutionally defective under the Eighth Amendment.
For all of these reasons, I find little merit in the various discrimination
arguments, at least in the several lights in which they have been cast in these
cases.
Although not presented by any of the petitioners today, a
different argument, premised on the Equal Protection Clause, might well be
made. If a Negro defendant, for instance, could demonstrate that members of his
race were being singled out for more severe punishment than others charged with
the same offense, a constitutional violation might be established. This was the
contention made in Maxwell v. Bishop, 398 F.2d 138 (CA8
1968), vacated and remanded on other grounds, 398 U. S. 262 (1970), in which the Eighth Circuit was asked
to issue a writ of habeas corpus setting aside a death sentence imposed on a
Negro defendant convicted of rape. In that case, substantial statistical
evidence was introduced tending to show a pronounced disproportion in the
number of Negroes receiving death sentences for rape in parts of Arkansas and
elsewhere in the South. That evidence was not excluded, but was found to be
insufficient to show discrimination in sentencing in Maxwell s trial. MR.
JUSTICE BLACKMUN, then sitting on the Court of Appeals for the Eighth Circuit,
concluded:
"The petitioner's argument is an interesting one, and
we are not disposed to say that it could not have some validity and weight in
certain situations. Like the trial court, however . . . we feel that the
argument does not have validity and pertinent application to Maxwell's
case."
"* * * *
Page 408 U. S. 450
"
"We are not yet ready to condemn and upset the result
reached in every case of a Negro rape defendant in the State of Arkansas on the
basis of broad theories of social and statistical injustice. . . ."
"* * * *"
"We do not say that there is no ground for suspicion
that the death penalty for rape may have been discriminatorily applied over the
decades in that large area of states whose statutes provide for it. There are
recognizable indicators of this. But . . . improper state practice of the past
does not automatically invalidate a procedure of the present. . . ."
Id. at
147-148.
I agree that discriminatory application of the death penalty
in the past, admittedly indefensible, is no justification for holding today
that capital punishment is invalid in all cases in which sentences were handed
out to members of the class discriminated against. But Maxwell does point the
way to a means of raising the equal protection challenge that is more consonant
with precedent and the Constitution's mandates than the several courses pursued
by today's concurring opinions.
A final comment on the racial discrimination problem seems
appropriate. The possibility of racial bias in the trial and sentencing process
has diminished in recent years. The segregation of our society in decades past,
which contributed substantially to the severity of punishment for interracial
crimes, is now no longer prevalent in this country. Likewise, the day is past
when juries do not represent the minority group elements of the community. The
assurance of fair trials for all citizens is greater today than at any previous
time in our history. Because standards of criminal justice have
"evolved" in a manner favorable to the accused, discriminatory
imposition of capital punishment is far less likely today than in the past.
Page 408 U. S. 451
VI
Petitioner in Branch v. Texas, No. 69-5031,
and, to a lesser extent, the petitioners in the other cases before us today, urge
that capital punishment is cruel and unusual because it no longer serves any
rational legislative interests. Before turning to consider whether any of the
traditional aims of punishment justify the death penalty, I should make clear
the context in which I approach this aspect of the cases.
First, I find no support -- in the language of the
Constitution, in its history, or in the cases arising under it -- for the view
that this Court may invalidate a category of penalties because we deem less
severe penalties adequate to serve the ends of penology. While the cases affirm
our authority to prohibit punishments that are cruelly inhumane (e.g.,
Wilkerson v. Utah, 99 U.S. at 99 U. S. 135-136; In re Kemmler, 136 U.S.
at 136 U. S. 447), and punishments that are cruelly excessive in
that they are disproportionate to particular crimes (see 408 U. S. infra), the precedents of this Court
afford no basis for striking down a particular form of punishment because we
may be persuaded that means less stringent would be equally efficacious.
Secondly, if we were free to question the justifications for
the use of capital punishment, a heavy burden would rest on those who attack
the legislatures' judgments to prove the lack of rational justifications. This
Court has long held that legislative decisions in this area, which lie within
the special competency of that branch, are entitled to a presumption of
validity. See, e.g., Trop v. Dulles, 356 U.S. at 356 U. S. 103; Louisiana ex rel. Francis v. Resweber, 329
U.S. at 329 U. S. 470 (Frankfurter, J., concurring); Weems
v. United States, 217 U.S. at 217 U. S. 378-379; In re Kemmler, 136 U.S.
at 136 U. S. 449.
Page 408 U. S. 452
I come now to consider, subject to the reservation above
expressed, the two justifications most often cited for the retention of capital
punishment. The concept of retribution -- though popular for centuries -- is
now criticized as unworthy of a civilized people. Yet this Court has
acknowledged the existence of a retributive element in criminal sanctions, and
has never heretofore found it impermissible. In Williams v. New York, 337 U. S. 241 (1949), Mr. Justice Black stated that,
"Retribution is no longer the dominant objective of the
criminal law. Reformation and rehabilitation of offenders have become important
goals of criminal jurisprudence."
Id. at 337 U. S. 248. It is clear, however, that the Court did not
reject retribution altogether. The record in that case indicated that one of
the reasons why the trial judge imposed the death penalty was his sense of
revulsion at the "shocking details of the crime." Id. at 337 U. S. 244. Although his motivation was clearly
retributive, the Court upheld the trial judge's sentence. [Footnote 8/42] Similarly, MR. JUSTICE MARSHALL noted in his
plurality opinion in Powell v. Texas, 392 U. S. 514, 392 U. S. 530 (1968), that this Court
"has never held that anything
in the Constitution requires that penal sanctions be designed solely to achieve
therapeutic or rehabilitative effects. [Footnote 8/43] "
Page 408 U. S. 453
While retribution alone may seem an unworthy justification
in a moral sense, its utility in a system of criminal justice requiring public
support has long been recognized. Lord Justice Denning, now Master of the Rolls
of the Court of Appeal in England, testified on this subject before the British
Royal Commission on Capital Punishment:
"Many are inclined to test the efficacy of punishment
solely by its value as a deterrent: but this is too narrow a view. Punishment
is the way in which society expresses its denunciation of wrongdoing, and, in
order to maintain respect for law, it is essential that the punishment
inflicted for grave crimes should adequately reflect the revulsion felt by the
great majority of citizens for them. It is a mistake to consider the objects of
punishment as being deterrent or reformative or preventive, and nothing else.
If this were so, we should not send to prison a man who was guilty of motor
manslaughter, but only disqualify him from driving; but would public opinion be
content with this? The truth is that some crimes are so outrageous that society
insists on adequate punishment, because the wrongdoer deserves it, irrespective
of whether it is a deterrent or not. [Footnote 8/44]"
The view expressed by Lord Denning was cited approvingly in
the Royal Commission's Report, recognizing "a
Page 408 U. S. 454
strong and widespread demand for retribution." [Footnote 8/45] MR. JUSTICE STEWART makes much the same point
in his opinion today when he concludes that expression of man's retributive
instincts in the sentencing process "serves an important purpose in
promoting the stability of a society governed by law." Ante at 408 U. S. 308. The view, moreover, is not without respectable
support in the jurisprudential literature in this country, [Footnote 8/46] despite a substantial body of opinion to the
contrary. [Footnote 8/47] And it is conceded on all sides that, not
infrequently, cases arise that are so shocking or offensive that the public
demands the ultimate penalty for the transgressor.
Deterrence is a more appealing justification, although
opinions again differ widely. Indeed, the deterrence issue lies at the heart of
much of the debate between the abolitionists and retentionists. [Footnote 8/48] Statistical studies, based primarily on trends
in States that have abolished the penalty, tend to support the view that the
death penalty has not been proved to be a superior deterrent. [Footnote 8/49] Some dispute the validity of this conclusion, [Footnote 8/50] pointing
Page 408 U. S. 455
out that the studies do not show that the death penalty has
no deterrent effect on any categories of crimes. On the basis of the literature
and studies currently available, I find myself in agreement with the
conclusions drawn by the Royal Commission following its exhaustive study of
this issue:
"The general conclusion which we reach, after careful
review of all the evidence we have been able to obtain as to the deterrent
effect of capital punishment, may be stated as follows. Prima facie, the
penalty of death is likely to have a stronger effect as a deterrent to normal
human beings than any other form of punishment, and there is some evidence
(though no convincing statistical evidence) that this is in fact so. But this
effect does not operate universally or uniformly, and there are many offenders
on whom it is limited and may often be negligible. It is accordingly important
to view this question in a just perspective, and not base a penal policy in
relation to murder on exaggerated estimates of the uniquely deterrent force of
the death penalty. [Footnote 8/51]"
Only recently, this Court was called on to consider the
deterrence argument in relation to punishment by fines for public drunkenness. Powell
v. Texas, 392 U. S. 514 (1968). The Court was unwilling to strike
down the Texas statute on grounds that it lacked a rational foundation. What MR.
JUSTICE MARSHALL said there would seem to have equal applicability in this
case:
"The long-standing and still raging debate over the
validity of the deterrence justification for penal sanctions has not reached
any sufficiently clear conclusions to permit it to be said that such sanctions
are ineffective in any particular context or for any
Page 408 U. S. 456
particular group of people who are able to appreciate the consequences
of their acts. . . ."
Id. at 392 U. S. 531.
As I noted at the outset of this section, legislative
judgments as to the efficacy of particular punishments are presumptively
rational, and may not be struck down under the Eighth Amendment because this
Court may think that some alternative sanction would be more appropriate. Even
if such judgments were within the judicial prerogative, petitioners have failed
to show that there exist no justifications for the legislative enactments
challenged in these cases. [Footnote 8/52] While the evidence and arguments advanced by
petitioners might have proved profoundly persuasive if addressed to a
legislative body, they do not approach the showing traditionally required
before a court declares that the legislature has acted irrationally.
VII
In two of the cases before us today, juries imposed
sentences of death after convictions for rape. [Footnote 8/53] In these cases, we are urged to hold that, even
if capital punishment is permissible for some crimes, it is a cruel and unusual
punishment for this crime. Petitioners in these cases rely on the Court's
opinions holding that the Eighth Amendment, in addition to prohibiting
punishments
Page 408 U. S. 457
deemed barbarous and inhumane, also condemns punishments
that are greatly disproportionate to the crime charged. This reading of the
Amendment was first expressed by Mr. Justice Field in his dissenting opinion
in O'Neil v. Vermont, 144 U. S. 323, 144 U. S. 337 (1892), a case in which a defendant charged
with a large number of violations of Vermont's liquor laws received a fine in
excess of $6,600, or a 54-year jail sentence if the fine was not paid. The
majority refused to consider the question on the ground that the Eighth Amendment
did not apply to the States. The dissent, after carefully examining the history
of that Amendment and the Fourteenth, concluded that its prohibition was
binding on Vermont and that it was directed against "all punishments
which, by their excessive length or severity, are greatly disproportioned to
the offences charged." Id. at 144 U. S. 339-340. [Footnote 8/54]
The Court, in Weems v. United States, 217 U. S. 349 (1910), adopted Mr. Justice Field's view.
The defendant in Weems, charged with falsifying Government
documents, had been sentenced to serve 15 years in cadena temporal, a
punishment which included carrying chains at the wrists and ankles and the
perpetual loss of the right to vote and hold office. Finding the sentence
grossly excessive in length and condition of imprisonment, the Court struck it
down. This notion of disproportionality -- that particular sentences may be
cruelly excessive for particular crimes -- has been cited with approval in more
recent decisions of this Court. See Robinson v. California, 370
U.S. at 370 U. S. 667; Trop v. Dulles, 356 U.S.
at 356 U. S. 100; see also Howard v. Fleming, 191 U. S. 126, 191 U. S. 135-136 (1903).
These cases, while providing a rationale for gauging the constitutionality
of capital sentences imposed for rape,
Page 408 U. S. 458
also indicate the existence of necessary limitations on the
judicial function. The use of limiting terms in the various expressions of this
test found in the opinions -- grossly excessive, greatly disproportionate
-- emphasizes that the Court's power to strike down punishments as excessive
must be exercised with the greatest circumspection. As I have noted earlier,
nothing in the history of the Cruel and Unusual Punishments Clause indicates
that it may properly be utilized by the judiciary to strike down punishment
authorized by legislatures and imposed by juries -- in any but the
extraordinary case. This Court is not empowered to sit as a court of sentencing
review, implementing the personal views of its members on the proper role of
penology. To do so is to usurp a function committed to the Legislative Branch
and beyond the power and competency of this Court.
Operating within these narrow limits, I find it quite impossible
to declare the death sentence grossly excessive for all rapes. Rape is widely
recognized as among the most serious of violent crimes, as witnessed by the
very fact that it is punishable by death in 16 States and by life imprisonment
in most other States. [Footnote 8/55] The several reasons why rape stands so high on
the list of serious crimes are well known: it is widely viewed as the most
atrocious of intrusions upon the privacy and dignity of the victim; never is
the crime committed accidentally; rarely can it be said to be unpremeditated;
Page 408 U. S. 459
often the victim suffers serious physical injury; the
psychological impact can often be as great as the physical consequences; in a
real sense, the threat of both types of injury is always present. [Footnote 8/56] For these reasons, and for the reasons arguing
against abolition of the death penalty altogether, the excessiveness rationale
provides no basis for rejection of the penalty for rape in all cases.
The argument that the death penalty for rape lacks rational
justification because less severe punishments might be viewed as accomplishing
the proper goals of penology is as inapposite here as it was in
considering per se abolition. See 408 U. S. @ The state of knowledge with respect to the
deterrent value of the sentence for this crime is inconclusive. [Footnote 8/57] Moreover, what has been said about the concept
of retribution applies with equal force where the crime is rape. There are many
cases in which the sordid, heinous nature of a particular crime, demeaning.
humiliating, and often physically or psychologically traumatic, will call for
public condemnation. In a period in our country's history when the frequency of
this crime is increasing alarmingly, [Footnote 8/58] it is indeed a grave event for the Court to
take from the States whatever deterrent and retributive weight the death
penalty retains.
Other less sweeping applications of the disproportionality
concept have been suggested. Recently the Fourth Circuit struck down a death
sentence in Ralph v. Warden, 438 F.2d 786 (1970), holding that
the death penalty was an appropriate punishment for rape
Page 408 U. S. 460
only where life is "endangered." Chief Judge
Haynsworth, who joined in the panel's opinion, wrote separately in denying the
State of Maryland's petition for rehearing in order to make clear the basis for
his joinder. He stated that, for him, the appropriate test was not whether life
was endangered, but whether the victim in fact suffered "grievous physical
or psychological harm." Id. at 794. See Rudolph
v. Alabama, 375 U. S. 88 (1963) (dissent from the denial of
certiorari).
It seems to me that both of these tests depart from
established principles and also raise serious practical problems. How are those
cases in which the victim's life is endangered to be distinguished from those
in which no danger is found? The threat of serious injury is implicit in the
definition of rape; the victim is either forced into submission by physical
violence or by the threat of violence. Certainly that test would provide little
comfort for either of the rape defendants in the cases presently before us.
Both criminal acts were accomplished only after a violent struggle. Petitioner
Jackson held a scissors blade against his victim's neck. Petitioner Branch had
less difficulty subduing his 65-year-old victim. Both assailants threatened to
kill their victims. See MR. JUSTICE DOUGLAS' opinion, ante at 408 U. S. 252-253. The alternate test, limiting the penalty to
cases in which the victim suffers physical or emotional harm, might present
even greater problems of application. While most physical effects may be seen
and objectively measured, the emotional impact may be impossible to gauge at
any particular point in time. The extent and duration of psychological trauma
may not be known or ascertainable prior to the date of trial.
While I reject each of these attempts to establish specific
categories of cases in which the death penalty may be deemed excessive, I view
them as groping
Page 408 U. S. 461
toward what is for me the appropriate application of the
Eighth Amendment. While, in my view, the disproportionality test may not be
used either to strike down the death penalty for rape altogether or to install
the Court as a tribunal for sentencing review, that test may find its
application in the peculiar circumstances of specific cases. Its utilization
should be limited to the rare case in which the death penalty is rendered for a
crime technically falling within the legislatively defined class but factually
falling outside the likely legislative intent in creating the category.
Specific rape cases (and specific homicides as well) can be imagined in which
the conduct of the accused would render the ultimate penalty a grossly
excessive punishment. Although this case-by-case approach may seem painfully
slow and inadequate to those who wish the Court to assume an activist
legislative role in reforming criminal punishments, it is the approach dictated
both by our prior opinions and by a due recognition of the limitations of
judicial power. This approach, rather than the majority's more pervasive and
less refined judgment, marks for me the appropriate course under the Eighth
Amendment.
VIII
I now return to the overriding question in these cases:
whether this Court, acting in conformity with the Constitution, can justify its
judgment to abolish capital punishment as heretofore known in this country. It
is important to keep in focus the enormity of the step undertaken by the Court today.
Not only does it invalidate hundreds of state and federal laws, it deprives
those jurisdictions of the power to legislate with respect to capital
punishment in the future except in a manner consistent with the cloudily
outlined views of those Justices who do not purport to undertake total
abolition.
Page 408 U. S. 462
Nothing short of an amendment to the United States
Constitution can reverse the Court's judgments. Meanwhile, all flexibility is
foreclosed. The normal democratic process, as well as the opportunities for the
several States to respond to the will of their people expressed through ballot
referenda (as in Massachusetts, Illinois, and Colorado), [Footnote 8/59] 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 [Footnote 8/60] and Canada, [Footnote 8/61] critical choices were made after studies
canvassing all competing views, and in those countries revisions may be made in
light of experience. [Footnote 8/62] As recently as 1967, a presidential commission
did consider, as part of an overall study of crime in this country, whether the
death penalty should be abolished.
Page 408 U. S. 463
The commission's unanimous recommendation was as follows:
"The question whether capital punishment is an
appropriate sanction is a policy decision to be made by each State. Where it is
retained, the types of offenses for which it is available should be strictly
limited, and the law should be enforced in an evenhanded and nondiscriminatory
manner, with procedures for review of death sentences that are fair and
expeditious. When a State finds that it cannot administer the penalty in such a
manner, or that the death penalty is being imposed but not carried into effect,
the penalty should be abandoned. [Footnote 8/63]"
The thrust of the Commission's recommendation, as presently
relevant, is that this question "is a policy decision to be made by each
State." There is no hint that this decision could or should be made by the
judicial branch.
The National Commission on Reform of Federal Criminal Laws
also considered the capital punishment issue. The introductory commentary of
its final report states that "a sharp division [existed] within the
Commission on the subject of capital punishment," although a
Page 408 U. S. 464
majority favored its abolition. [Footnote 8/64] Again, consideration of the question was
directed to the propriety of retention or abolition as a legislative matter.
There was no suggestion that the difference of opinion existing among
commission members, and generally across the country, could or should be
resolved in one stroke by a decision of this Court. [Footnote 8/65] Similar activity was, before today, evident at
the state level with reevaluation having been undertaken by special legislative
committees in some States and by public ballot in others. [Footnote 8/66]
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. [Footnote 8/67] It seems to me that the sweeping judicial
action undertaken today reflects a
Page 408 U. S. 465
basic lack of faith and confidence in the democratic
process. Many may regret, as I do, the failure of some legislative bodies to
address the capital punishment issue with greater 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. Rarely has
there been a more appropriate opportunity for this Court to heed the philosophy
of Mr. Justice Oliver Wendell Holmes. As Mr. Justice Frankfurter reminded the Court
in Trop:
"[T]he whole of [Mr. Justice Holmes'] work during his
thirty years of service on this Court should be a constant reminder that the
power to invalidate legislation must not be exercised as if, either in
constitutional theory or in the art of government, it stood as the sole bulwark
against unwisdom or excesses of the moment."
356 U.S. at 356 U. S. 128.
MR. JUSTICE DOUGLAS holds only that
"the Eighth Amendment
[requires] legislatures to write penal laws that are evenhanded, nonselective,
and nonarbitrary, and [requires] judges to see to it that general laws are not
applied sparsely, selectively, and spottily to unpopular groups."
Ante at 408 U. S. 256. The import of this rationale is that, while all
existing laws must fall, it remains theoretically possible for a State or
Congress to devise a statute capable of withstanding a claim of discriminatory
application. MR. JUSTICE STEWART, in addition to reserving judgment on at least
four presently existing statutes (ante at 408 U. S. 307), indicates that statutes making capital
punishment mandatory for any category of crime, or providing some other means
of assuring against "wanton" and "freakish" application (ante at 408 U. S. 310), would present a difficult question that he
does not reach today. MR. JUSTICE WHITE, for somewhat different reasons,
appears to come to the conclusion that a mandatory system of punishment might
prove acceptable. Ante p. 408 U. S. 310.
The brief and selective references, in my opinion above and
in this note, to the opinions of other Justices obviously do not adequately
summarize the thoughtful and scholarly views set forth in their full opinions.
I have tried merely to select what seem to me to be the respective points of
primary emphasis in each of the majority's opinions.
While statutes in 40 States permit capital punishment for a
variety of crimes, the constitutionality of a very few mandatory statutes
remains undecided. See concurring opinions by MR. JUSTICE
STEWART and MR. JUSTICE WHITE. Since Rhode Island's only capital statute --
murder by a life term prisoner -- is mandatory, no law in that State is struck
down by virtue of the Court's decision today.
For a thorough presentation of the history of the Cruel and
Unusual Punishment Clause see MR. JUSTICE MARSHALL's opinion
today, ante at 408 U. S. 316-328. See also Weems v. United States, 217 U. S. 349, 217 U. S. 389-409 (1910) (White, J., dissenting); O'Neil
v. Vermont, 144 U. S. 323, 144 U. S. 337 (1892) (Field, J., dissenting); Cranucci,
"Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning,
57 Calif.L.Rev. 839 (1969).
The Court pointed out that the Eighth Amendment applied only
to the Federal Government, and not to the States. The Court's power in relation
to state action was limited to protecting privileges and immunities and to
assuring due process of law, both within the Fourteenth Amendment. The standard
-- for purposes of due process -- was held to be whether the State had exerted
its authority, "within the limits of those fundamental principles of
liberty and justice which lie at the base of all our civil and political
institutions." 136 U.S. at 136 U. S. 448. The State of Georgia, in No. 69-5003 and No.
69-5030, has placed great emphasis on this discussion in In re Kemmler, 136 U. S. 436 (1890), and has urged that the instant
cases should all be decided under the more expansive tests of due process,
rather than under the Cruel and Unusual Punishments Clause per se. Irrespective
whether the decisions of this Court are viewed as "incorporating" the
Eighth Amendment (see Robinson v. California, 370 U. S. 660 (1962); Powell v. Texas, 392 U. S. 514 (1968)), it seems clear that the tests for
applying these two provisions are fundamentally identical. Compare Mr.
Justice Frankfurter's test in Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 470 (1947) (concurring opinion), with Mr.
Chief Justice Warren's test in Trop v. Dulles, 356 U. S. 86, 356 U. S. 100-101 (1958).
Mr. Justice White stated:
"Death was a well-known method of punishment prescribed
by law, and it was, of course, painful, and, in that sense, was cruel. But the
infliction of this punishment was clearly not prohibited by the word cruel,
although that word manifestly was intended to forbid the resort to barbarous
and unnecessary methods of bodily torture, in executing even the penalty of
death."
217 U.S. at 217 U. S. 409.
See 408 U. S. infra.
In footnote 32, at 356 U. S. 100-101, the plurality opinion indicates that
denationalization "was never explicitly sanctioned by this Government
until 1940, and never tested against the Constitution until this day."
"It seems scarcely arguable that loss of citizenship is
within the Eighth Amendment's prohibition because disproportionate to an
offense that is capital and has been so from the first year of Independence. .
. . Is constitutional dialectic so empty of reason that it can be seriously
urged that loss of citizenship is a fate worse than death?"
Id. at
125.
398 U. S. 936 (1970); 402 U.S. at 402 U. S. 306 (BRENNAN, J., dissenting). While the
constitutionality per se of capital punishment has been
assumed almost without question, recently members of this Court have expressed the
desire to consider the constitutionality of the death penalty with respect to
its imposition for specific crimes. Rudolph v. Alabama, 375 U. S. 889 (1963) (dissent from the denial of certiorari).
Brief for Respondent in Branch v. Texas, No.
69-5031, p. 6.
While the implicit assumption in McGautha v.
California, 402 U. S. 183 (1971), of the acceptability of death as a
form of punishment must prove troublesome for those who urge total abolition,
it presents an even more severe problem of stare decisis for
those Justices who treat the Eighth Amendment essentially as a process
prohibition. MR. JUSTICE DOUGLAS, while stating that the Court is "now
imprisoned in . . . McGautha" (ante at 408 U. S. 248), concludes that capital punishment is
unacceptable precisely because the procedure governing its imposition is
arbitrary and discriminatory. MR. JUSTICE STEWART, taking a not dissimilar tack
on the merits, disposes of McGautha in a footnote reference
indicating that it is not applicable because the question there arose under the
Due Process Clause. Ante at 408 U. S. 310 n. 12. MR. JUSTICE WHITE, who also finds
the death penalty intolerable because of the process for its implementation,
makes no attempt to distinguish McGautha's clear holding. For
the reasons expressed in the CHIEF JUSTICE's opinion, McGautha simply
cannot be distinguished. Ante at 408 U. S. 399-403. These various opinions would, in fact,
overrule that recent precedent.
This number includes all the Justices who participated
in Wilkerson v. Utah, 99 U. S. 130 (1879), Kemmler, and Louisiana
ex rel. Francis as well as those who joined in the plurality and
dissenting opinions in Trop and the dissenting opinion
in Weems.
See n. 4, supra.
See, e.g., Ex parte Wilson, 114 U. S. 417, 114 U. S. 427-428 (1885).
See 408 U. S. infra.
See, e.g., T.
Sellin, The Death Penalty, A Report for the Model Penal Code Project of the
American Law Institute (1959); United Nations, Department of Economic and Social
Affairs, Capital Punishment (1968); 2 National Commission on Reform of Federal
Criminal Laws, Working Papers, 1351 n. 13 (1970).
The literature on the moral question is legion.
Representative collections of the strongly held views on both sides may be
found in H. Bedau, The Death Penalty in America (1967 rev. ed.), and in Royal
Commission on Capital Punishment, Minutes of Evidence (1949-1953).
Department of Justice, National Prisoner Statistics No. 46,
Capital Punishment 1930-1970 (Aug. 1971) (191 executions during the 1960's; no
executions since June 2, 1967); President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in a Free Society 143 (1967)
("[t]he most salient characteristic of capital punishment is that it is
infrequently applied").
Petitioners concede, as they must, that little weight can be
given to the lack of executions in recent years. A de facto moratorium
has existed for five years now while cases challenging the procedures for
implementing the capital sentence have been reexamined by this Court. McGautha
v. California, 402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U. S. 510 (1968). The infrequency of executions
during the years before the moratorium became fully effective may be
attributable in part to decisions of this Court giving expanded scope to the
criminal procedural protections of the Bill of Rights, especially under the
Fourth and Fifth Amendments. E.g., Miranda v. Arizona, 384 U. S. 436 (1966); Mapp v. Ohio, 367 U. S. 643 (1961). Additionally, decisions of the early 1960's amplifying the
scope of the federal habeas corpus remedy also may help account for a reduction
in the number of executions. E.g., Fay v. Noia, 372 U. S, 391
(1963); Townsend v. Sain, 372 U. S. 293 (1963). The major effect of either expanded
procedural protections or extended collateral remedies may well have been
simply to postpone the date of execution for some capital offenders, thereby
leaving them ultimately in the moratorium limbo.
An exact figure for the number of death sentences imposed by
the sentencing authorities -- judge or jury -- in the various jurisdictions is
difficult to determine. But the National Prisoner Statistics (hereafter NPS)
show the numbers of persons received at the state and federal prisons under
sentence of death. This number, however, does not account for those who may have
been sentenced and retained in local facilities during the pendency of their
appeals. Accepting with this reservation the NPS figures as a minimum, the most
recent statistics show that at least 1,057 persons were sentenced to death
during the decade of the 1960's. NPS, supra, n. 18, at 9.
No fully reliable statistics are available on the nationwide
ratio of death sentences to cases in which death was a statutorily permissible
punishment. At oral argument, counsel for petitioner in No. 69-5003 estimated
that the ratio is 12 or 13 to one. Tr. of Oral Arg. in Furman v.
Georgia, No. 69-5003, p. 11. Others have found a higher
correlation. See McGee, Capital Punishment as Seen by a
Correctional Administrator, 28 Fed. Prob., No. 2, pp. 11, 12 (1964) (one out of
every five, or 20%, of persons convicted of murder received the death penalty
in California); Bedau, Death Sentences in New Jersey 1907-1960, 19 Rutgers
L.Rev. 1 (1964) (between 1916 and 1955, 157 out of 652 persons charged with
murder received the death sentence in New Jersey -- about 20%; between 1956 and
1960, 13 out of 61 received the death sentence -- also about 20%); H. Kalven
& H. Ziesel, The American Jury 435-436 (1966) (21 of 111 murder cases
resulted in death sentences during three representative years during the
mid-1950's); see also Koeninger, Capital Punishment in Texas,
1924-1968, 15 Crime & Delin. 132 (1969).
See, e.g., People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, cert. denied, 406
U.S. 958 (1972); Goldberg & Dershowitz, Declaring the Death Penalty
Unconstitutional, 83 Harv.L.Rev. 1773, 1783 (1970). But see F.
Frankfurter, Of Law and Men 97-98 (1956) (reprint of testimony before the Royal
Commission on Capital Punishment).
Nine States have abolished capital punishment without resort
to the courts. See H. Bedau, supra, n. 17, at
39. California has been the only State to abolish capital punishment
judicially. People v. Anderson, supra.
Hearings on S. 1760 before the Subcommittee on Criminal Laws
and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess.
(1968).
Canada has recently undertaken a five-year experiment --
similar to that conducted in England -- abolishing the death penalty for most
crimes. Stats. of Canada 1967-1968, 16 & 17 Eliz. 2, c. 15, p. 145.
However, capital punishment is still prescribed for some crimes, including
murder of a police officer or corrections official, treason, and piracy.
Great Britain, after many years of controversy over the
death penalty, undertook a five-year experiment in abolition in 1965. Murder
(Abolition of Death Penalty) Act 1965, 2 Pub.Gen.Acts, c. 71,
p. 1577. Although abolition for murder became final in 1969, the penalty
was retained for several crimes, including treason, piracy, and dockyards
arson.
See n. 62, infra.
See Bedau, supra, n.
17, at 233.
Ibid. (approximately
65% of the voters approved the death penalty).
See Bedau,
The Death Penalty in America, 35 Fed.Prob., No. 2, pp. 32, 34 (1971).
National Commission, supra, n. 16, at 1365.
Bedau, supra, n. 17, at 232. See,
e.g., State v. Davis, 158 Conn. 341, 356-359, 260 A.2d 587, 595-596
(1969), in which the Connecticut Supreme Court pointed out that the state
legislature had considered the question of abolition during the 1961, 1963,
1965, 1967, and 1969 sessions, and had "specifically declined to abolish
the death penalty" every time.
391 U.S. at 391 U. S. 519 and n. 15. See also McGautha v.
California, 402 U.S. at 402 U. S. 201-202; Williams v. New York, 337 U. S. 241, 253 (1949) (Murphy, J., dissenting) ("[i]n
our criminal courts, the jury sits as the representative of the
community"); W. Douglas, We the Judges 389 (1956); Holmes, Law in Science
and Science in Law, 12 Harv.L.Rev. 443, 460 (1899).
See n. 19, supra.
Tr. of Oral Arg. in Aikens v. California, No.
68-5027, p. 21. Although the petition for certiorari in this case was dismissed
after oral argument, Aikens v. California, 406 U. S. 813 (1972), the same counsel argued both this
case and Furman. He stated at the outset that his argument was
equally applicable to each ease.
National Prisoner Statistics, supra, n. 18.
FBI, Uniform Crime Reports -- 1970, pp. 7-14 (1971).
Public opinion polls, while of little probative relevance,
corroborate substantially the conclusion derived from examining legislative
activity and jury sentencing -- opinion on capital punishment is "fairly
divided." Louisiana ex rel. Francis v. Resweber, 329 U.S.
at 329 U. S. 470 (Frankfurter, J., concurring). See,
e.g., Witherspoon v. Illinois, 391 U.S. at 391 U. S. 520 n. 16 (1966 poll finding 42% in favor of
the death penalty and 47% opposed); Goldberg & Dershowitz, supra, n.
20, at 1781 n. 39 (1969 poll shows 51% in favor of retention -- the same
percentage as in 1960); H. Bedau, The Death Penalty in America 231-241 (1967
rev. ed.); Bedau, The Death Penalty in America, 35 Fed. Prob., No. 2, pp. 32,
34-35 (1971).
If, as petitioners suggest, the judicial branch itself
reflects the prevailing standards of human decency in our society, it may be relevant
to note the conclusion reached by state courts in recent years on the question
of the acceptability of capital punishment. In the last five years alone, since
the de facto "moratorium" on executions began (see n.
18, supra), the appellate courts of 26 States have passed on the
constitutionality of the death penalty under the Eighth Amendment and under
similar provisions of most state constitutions. Every court, except the
California Supreme Court, People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, cert. denied, 406
U.S. 958 (1972), has found the penalty to be constitutional. Those States, and
the year of the most recent decision on the issue, are: Alabama (1971); Arizona
(1969); Colorado (1967); Connecticut (1969); Delaware (1971); Florida (1969);
Georgia (1971); Illinois (1970); Kansas (1968); Kentucky (1971); Louisiana
(1971); Maryland (1971); Missouri (1971); Nebraska (1967); Nevada (1970); New Jersey
(1971); New Mexico (1969); North Carolina (1972); Ohio (1971); Oklahoma (1971);
South Carolina (1970); Texas (1971); Utah (1969); Virginia (1971); Washington
(1971). While the majority of these state court opinions do not give the issue
more than summary exposition, many have considered the question at some length,
and, indeed, some have considered the issue under the "evolving
standards" rubric. See, e.g., State v. Davis, 158 Conn.
341, 356-359, 260 A.2d 587, 595-596 (1969); State v. Crook, 253
La. 961, 967-970, 221 So. 2d 473, 475-476 (1969); Bartholomey v. State, 260
Md. 504, 273 A.2d 164 (1971); State v. Alvarez, 182 Neb. 358,
366-367, 154 N.W.2d 746, 751752 (1967); State v. Pace, 80
N. M. 364, 371-372, 456 P.2d 197, 204-205 (1969). Every federal court that has
passed on the issue has ruled that the death penalty is not per se unconstitutional. See,
e.g., Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970); Jackson
v. Dickson, 325 F.2d 573, 575 (CA9 1963), cert. denied, 377
U.S. 957 (1964).
Brief for Petitioner in No. 68-5027, p. 51. Although the
Aikens case is no longer before us (see n. 33, supra), the
petitioners in Furman and Jackson have
incorporated petitioner's brief in Aikens by reference. See Brief
for Petitioner in No. 69-5003, pp. 11-12; Brief for Petitioner in No. 69-5030,
pp. 11-12.
In 1935, available statistics indicate that 184 convicted
murderers were executed. That is the highest, annual total for any year since
statistics have become available. NPS, supra, n. 18. The year
1935 is chosen by petitioners in stating their thesis:
"If, in fact, 184 murderers were to be executed in this
year 1971, we submit it is palpable that the public conscience of the Nation
would be profoundly and fundamentally revolted, and that the death penalty for
murder would be abolished forthwith as the atavistic horror that it is."
Brief for Petitioner in No. 68-5027, p. 26 (see n.
38, supra).
Not all murders, and certainly not all crimes, are committed
by persons classifiable as "underprivileged." Many crimes of violence
are committed by professional criminals who willingly choose to prey upon
society as an easy and remunerative way of life. Moreover, the terms
"underprivileged," the "poor" and the "powerless"
are relative and inexact, often conveying subjective connotations which vary
widely depending upon the viewpoint and purpose of the user.
Similarly, MR. JUSTICE WHITE exhibits concern for a lack of
any "meaningful basis for distinguishing the few cases in which [the death
penalty] is imposed from the many cases in which it is not." Ante at 408 U. S. 313. MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL
treat the arbitrariness question in the same manner that it is handled by
petitioners -- as an element of the approach calling for total abolition.
In Morissette v. United States, 342 U. S. 246 (1952), Mr. Justice Jackson spoke of the
"tardy and unfinished substitution of deterrence and reformation in place
of retaliation and vengeance as the motivation for public
prosecution." Id. at 342 U. S. 251. He also noted that the penalties for invasions
of the rights of property are high as a consequence of the "public demand
for retribution." Id. at 342 U. S. 260.
See also Massiah v. United States, 377 U. S. 201, 377 U. S. 207 (1964) (WHITE, J., dissenting) (noting the
existence of a "profound dispute about whether we should punish, deter,
rehabilitate or cure"); Robinson v. California, 370 U.S.
at 370 U. S. 674 (DOUGLAS, J., concurring); Louisiana
ex rel. Francis v. Resweber, 329 U.S. at 329 U. S. 470-471 (Mr. Justice Frankfurter's admonition that
the Court is not empowered to act simply because of a "feeling of
revulsion against a State's insistence on its pound of flesh"); United
States v. Lovett, 328 U. S. 303, 328 U. S. 324 (1946) (Frankfurter, J., concurring)
("[p]unishment presupposes an offense, not necessarily an act previously
declared criminal, but an act for which retribution is exacted").
Royal Commission on Capital Punishment, Minutes of Evidence
207 (1949-1953).
Report of Royal Commission on Capital Punishment, 1949-1953,
Cmd. 8932, � 53, p. 18.
M. Cohen, Reason and Law 50 (1950); H. Packer, The Limits of
the Criminal Sanction 11-12 (1968); Hart, The Aims of the Criminal Law, 23 Law
& Contemp. Prob. 401 (1958).
The authorities are collected in Comment, The Death Penalty
Cases, 56 Calif.L.Rev. 1268, 1297-1301 (1968). The competing contentions are
summarized in the Working Papers of the National Commission on Reform of
Federal Criminal Laws, supra, n. 16, at 1358-1359. See
also the persuasive treatment of this issue by Dr. Karl Menninger in
The Crime of Punishment 190-218 (1966).
See, e.g., H.
Bedau, The Death Penalty in America 260 (1967 rev. ed.); National
Commission, supra, n. 16, at 1352.
See Sellin, supra, n.
16, at 152.
The countervailing considerations, tending to undercut the
force of Professor Sellin's statistical studies, are collected in National
Commission, supra, n. 16, at 1354; Bedau, supra, n.
48, at 265-266; Hart, Murder and the Principles of Punishment: England and the
United States, 52 Nw.U.L.Rev. 433, 455-460 (1957).
Report of the Royal Commission, supra, n.
45, � 68, at 24.
It is worthy of note that the heart of the argument here --
that there are no legitimate justifications -- was impliedly repudiated last
Term by both the majority and dissenting opinions in McGautha v.
California, 402 U. S. 183 (1971). The argument in that case centered
on the proposition that due process requires that the standards governing the
jury's exercise of its sentencing function be elucidated. As MR. JUSTICE
BRENNAN's dissent made clear, whatever standards might be thought to exist
arise out of the list of justifications for the death penalty -- retribution,
deterrence, etc. Id. at 402 U. S. 284. If no such standards exist, the controversy
last Term was a hollow one indeed.
Jackson v. Georgia, No. 69-5030; Branch v.
Texas, No. 69-5031.
Mr. Justice Harlan, joined by Mr. Justice Brewer, dissented
separately, but agreed that the State had inflicted a cruel and unusual
punishment. Id. at 144 U. S. 371.
In addition to the States in which rape is a capital offense,
statutes in 28 States prescribe life imprisonment as a permissible punishment
for at least some category of rape. Also indicative of the seriousness with
which the crime of rape is viewed, is the fact that, in nine of the 10 States
that have abolished death as a punishment for any crime, the maximum term of
years for rape is the same as for first-degree murder. Statistical studies have
shown that the average prison term served by rapists is longer than for any
category of offense other than murder. J. MacDonald, Rape -- Offenders and
Their Victims 298 (1971).
Id. at
63-64; Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1077
(1964).
See MacDonald, supra, n.
55, at 314; Chambliss, Types of Deviance and the Effectiveness of Legal
Sanctions, 1967 Wis.L.Rev. 703.
FBI, Uniform Crime Report -- 1970, p. 14 (1971) (during the
1960's, the incidence of rape rose 121%).
See text
accompanying nn. 27 & 28, supra.
See n. 24, supra.
See n. 23, supra.
Recent legislative activity in New York State serves to
underline the preferability of legislative action over constitutional adjudication.
New York abolished the death penalty for murder in 1965, leaving only a few
crimes for which the penalty is still available. See text
accompanying n. 25, supra. On April 27, 1972, a bill that
would have restored the death penalty was considered by the State Assembly.
After several hours of heated debate, the bill was narrowly defeated by a vote
of 65 to 59. N.Y. Times, Apr. 28, 1972, p. 1, col. 1. After seven years of
disuse of the death penalty, the representatives of the people in that State
had not come finally to rest on the question of capital punishment. Because the
1965 decision had been the product of the popular will, it could have been
undone by an exercise of the same democratic process. No such flexibility is
permitted when abolition, even though not absolute, flows from constitutional
adjudication.
President's Commission on Law Enforcement and Administration
of Justice, The Challenge of Crime in a Free Society 143 (1967) (chaired by
Nicholas Katzenbach, then Attorney General of the United States). The text of
the Report stated, among other things, that the abolition of the death penalty
"is being widely debated in the States"; that it is "impossible
to say with certainty whether capital punishment significantly reduces the
incidence of heinous crimes"; that "[w]hatever views one may have on
the efficacy of the death penalty as a deterrent, it clearly has an undesirable
impact on the administration of criminal justice"; and that "[a]ll
members of the Commission agree that the present situation in the
administration of the death penalty in many States is intolerable." Ibid. As
a member of this Presidential Commission I subscribed then, and do now, to the
recommendations and views above quoted.
Final Report of the National Commission on Reform of Federal
Criminal Laws 310 (1971).
The American Law Institute, after years of study, decided
not to take an official position on the question of capital punishment,
although the Advisory Committee favored abolition by a vote of 18-2. The
Council was more evenly divided, but all were in agreement that many States
would undoubtedly retain the punishment and that, therefore, the Institute's
efforts should be directed toward providing standards for its implementation.
ALI, Model Penal Code 65 (Tent. draft No. 9, 1959).
See text
accompanying nn. 26 through 30, supra.
Blodgett v. Holden, 275 U. S. 142, 275 U. S. 148 (1927) (separate opinion of Holmes,
J.). See also Trop v. Dulles, 356 U.S. at 356 U. S. 128 (Frankfurter, J., dissenting):
"The awesome power of this Court to invalidate . . . legislation,
because in practice it is bounded only by our own prudence in discerning the
limits of the Court's constitutional function, must be exercised with the
utmost restraint."
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR.
JUSTICE BLACKMUN, and MR. JUSTICE POWELL join, dissenting.
The Court's judgments today strike down a penalty that our
Nation's legislators have thought necessary since our country was founded. My
Brothers DOUGLAS, BRENNAN, and MARSHALL would, at one fell swoop, invalidate laws
enacted by Congress and 40 of the 50 state legislatures, and would consign to
the limbo of unconstitutionality under a single rubric penalties for offenses
as varied and unique as murder, piracy, mutiny, highjacking, and desertion in
the face of the enemy. My Brothers STEWART and WHITE, asserting reliance on a
more limited rationale -- the reluctance of judges and juries actually to
impose the death penalty in the majority of capital
Page 408 U. S. 466
cases -- join in the judgments in these cases. Whatever its
precise rationale, today's holding necessarily brings into sharp relief the
fundamental question of the role of judicial review in a democratic society.
How can government by the elected representatives of the people coexist 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?
The answer, of course, is found in Hamilton's Federalist
Paper No. 78 and in Chief Justice Marshall's classic opinion in Marbury v. Madison, 1 Cranch 137 (1803). An oft-told
story since then, it bears summarization once more. Sovereignty resides
ultimately in the people as a whole and, by adopting through their States a
written Constitution for the Nation and subsequently adding amendments to that
instrument, they have both granted certain powers to the National Government, and
denied other powers to the National and the State Governments. Courts are
exercising no more than the judicial function conferred upon them by Art. III
of the Constitution when they assess, in a case before them, whether or not a
particular legislative enactment is within the authority granted by the
Constitution to the enacting body, and whether it runs afoul of some limitation
placed by the Constitution on the authority of that body. For the theory is
that the people themselves have spoken in the Constitution, and therefore its
commands are superior to the commands of the legislature, which is merely an
agent of the people.
The Founding Fathers thus wisely sought to have the best of
both worlds, the undeniable benefits of both democratic self-government and
individual rights protected against possible excesses of that form of
government.
The courts in cases properly before them have been entrusted
under the Constitution with the last word, short of constitutional amendment,
as to whether a law passed
Page 408 U. S. 467
by the legislature conforms to the Constitution. But just
because courts in general, and this Court in particular, do have the last word,
the admonition of Mr. Justice Stone dissenting in United States v.
Butler must be constantly borne in mind:
"[W]hile unconstitutional exercise of power by the
executive and legislative branches of the government is subject to judicial
restraint, the only check upon our own exercise of power is our own sense of
self-restraint."
297 U. S. 297 U.S. 1, 297 U. S. 78-79 (1936).
Rigorous attention to the limits of this Court's authority
is likewise enjoined because of the natural desire that beguiles judges along
with other human beings into imposing their own views of goodness, truth, and
justice upon others. Judges differ only in that they have the power, if not the
authority, to enforce their desires. This is doubtless why nearly two centuries
of judicial precedent from this Court counsel the sparing use of that power.
The most expansive reading of the leading constitutional cases does not
remotely suggest that this Court has been granted a roving commission, either
by the Founding Fathers or by the framers of the Fourteenth Amendment, to
strike down laws that are based upon notions of policy or morality suddenly
found unacceptable by a majority of this Court. The Framers of the Constitution
would doubtless have agreed with the great English political philosopher John
Stuart Mill when he observed:
"The disposition of mankind, whether as rulers or as
fellow-citizens, to impose their own opinions and inclinations as a rule of
conduct on others, is so energetically supported by some of the best and by
some of the worst feelings incident to human nature, that it is hardly ever
kept under restraint by anything but want of power."
On Liberty 28 (1885).
Page 408 U. S. 468
A separate reason for deference to the legislative judgment
is the consequence of human error on the part of the judiciary with respect to
the constitutional issue before it. Human error there is bound to be, judges
being men and women, and men and women being what they are. But an error in
mistakenly sustaining the constitutionality of a particular enactment, while
wrongfully depriving the individual of a right secured to him by the
Constitution, nonetheless does so by simply letting stand a duly enacted law of
a democratically chosen legislative body. The error resulting from a mistaken
upholding of an individual's constitutional claim against the validity of a
legislative enactment is a good deal more serious. For the result in such a
case is not to leave standing a law duly enacted by a representative assembly,
but to impose upon the Nation the judicial fiat of a majority of a court of
judges whose connection with the popular will is remote, at best.
The task of judging constitutional cases imposed by Art. III
cannot for this reason be avoided, but it must surely be approached with the
deepest humility and genuine deference to legislative judgment. Today's
decision to invalidate capital punishment is, I respectfully submit,
significantly lacking in those attributes. For the reasons well stated in the
opinions of THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE POWELL, I
conclude that this decision holding unconstitutional capital punishment is not
an act of judgment, but rather an act of will. It completely ignores the
strictures of Mr. Justice Holmes, writing more than 40 years ago in Baldwin
v. Missouri:
"I have not yet adequately expressed the more than
anxiety that I feel at the ever increasing scope given to the Fourteenth
Amendment in cutting down what I believe to be the constitutional rights of the
States. As the decisions now stand, I see hardly
Page 408 U. S. 469
any limit but the sky to the invalidating of those rights if
they happen to strike a majority of this Court as for any reason undesirable. I
cannot believe that the Amendment was intended to give us carte blanche to
embody our economic or moral beliefs in its prohibitions. Yet I can think of no
narrower reason that seems to me to justify the present and the earlier
decisions to which I have referred. Of course, the words 'due process of law,'
if taken in their literal meaning, have no application to this case; and while
it is too late to deny that they have been given a much more extended and
artificial signification, still we ought to remember the great caution shown by
the Constitution in limiting the power of the States, and should be slow to
construe the clause in the Fourteenth Amendment as committing to the Court,
with no guide but the Court's own discretion, the validity of whatever laws the
States may pass."
281 U. S. 281 U.S. 586, 281 U. S. 595 (1930) (dissenting opinion).
More than 20 years ago, Justice Jackson made a similar
observation with respect to this Court's restriction of the States in the
enforcement of their own criminal laws:
"The use of the due process clause to disable the
States in protection of society from crime is quite as dangerous and delicate a
use of federal judicial power as to use it to disable them from social or
economic experimentation."
Ashcraft v. Tennessee, 322 U. S. 143, 322 U. S. 174 (1944) (dissenting opinion).
If there can be said to be one dominant theme in the
Constitution, perhaps more fully articulated in the Federalist Papers than in
the instrument itself, it is the notion of checks and balances. The Framers
were well aware of the natural desire of office holders as well as others to
seek to expand the scope and authority of their
Page 408 U. S. 470
particular office at the expense of others. They sought to
provide against success in such efforts by erecting adequate checks and
balances in the form of grants of authority to each branch of the government in
order to counteract and prevent usurpation on the part of the others.
This philosophy of the Framers is best described by one of
the ablest and greatest of their number, James Madison, in Federalist No. 51:
"In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable the
government to controul the governed; and in the next place, oblige it to
controul itself."
Madison's observation applies to the Judicial Branch with at
least as much force as to the Legislative and Executive Branches. While
overreaching by the Legislative and Executive Branches may result in the
sacrifice of individual protections that the Constitution was designed to
secure against action of the State, judicial overreaching may result in
sacrifice of the equally important right of the people to govern themselves.
The Due Process and Equal Protection Clauses of the Fourteenth Amendment were
"never intended to destroy the States' power to govern themselves."
Black, J., in Oregon v. Mitchell, 400 U. S. 112, 400 U. S. 126 (1970).
The very nature of judicial review, as pointed out by
Justice Stone in his dissent in the Butler case, makes the
courts the least subject to Madisonian check in the event that they shall, for
the best of motives, expand judicial authority beyond the limits contemplated
by the Framers. It is for this reason that judicial self-restraint is surely an
implied, if not an expressed, condition of the grant of authority of judicial review.
The Court's holding in these cases has been reached, I believe, in complete
disregard of that implied condition.