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. 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 assertion that life imprisonment may somehow be more cruel than death is usually rejected as frivolous. Cruel punishments were not confined to those accused of crimes, but were notoriously applied with even greater relish to those who were convicted. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach.
There were 653 dispositions other than by execution, leaving 524 prisoners who might have been executed, of whom 135 actually were. Whether a similar burden will prove too great in future cases is a question that we can resolve in time. Until such time, I can only conclude, as has virtually everyone else who has looked at the problem, that capital punishment cannot be defended on the basis of any eugenic purposes. Frankfurter, Of Law and Men 81 1956. 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.
We need not decide this question here, however, for capital punishment is certainly not a recent phenomenon. At times a cry is heard that morality requires vengeance to evidence society's abhorrence of the act. Continuing, Justice White makes a valid observation that the life imprisonment rigorous or otherwise is as good a deterrent in terms of achieving its judicial end. This is all that they must do. Paolucci 1963 ; 1 Archibold, On the Practice, Pleading, and Evidence in Criminal Cases §§ 11-17, pp. Several principles emerge from these prior cases and serve as a beacon to an enlightened decision in the instant cases. As in Weems, the Court was concerned with excessive punishments.
What has distinguished our ancestors? Moreover, to the extent that capital punishment is used to encourage confessions and guilty pleas, it is not being used for punishment purposes. Deaths by suicide and natural causes: 1967 -- 2; 1968 -- 1; 1969 -- 5; 1970 -- 2. 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. Justice Douglas concluded that the death penalty was disproportionately applied to people who were poor and socially disadvantaged. 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.
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. This principle first appeared in our cases in Mr. They may legislate, in criminal cases, from treason to the lowest offence -- petty larceny. Resweber, supra, the Court approved a second attempt at electrocution after the first had failed. 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. Hence, I confess to surprise at finding the assertion being made in various ways in today's opinions.
The only other purpose suggested, one that is independent of protection for society, is retribution. 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. Dulles case, that states that the choice of punishment must draw its meaning from the changing sensibilities of the broader demography and should conform to the spirit of progress and sophistication that is the sigh of a progressive society. Furman centered on the convictions and death sentences of three African American men: William Henry Furman was convicted in Georgia for murder, Lucius Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape. The totally discretionary character of the law was at odds with almost all prior practices. This principle is especially important today. Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity.
Death, in these respects, is in a class by itself. 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. 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. Racial discrimination and the death penalty. Nevertheless, it cannot be denied that the impact of expatriation -- especially where statelessness is the upshot -- may be severe. 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. 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.
The Court summarily rejected his claim that the sentence was a cruel and unusual punishment. 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. There is no rational basis for concluding that capital punishment is not excessive. . 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 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. Elliot's Debates 111 2d ed. The punishment challenged in these cases is death. 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. See also, 2 Schwartz, supra, n. Georgia is the landmark ruling that established the current debate over the death penalty and would be challenged and upheld four years later in Gregg v. That rarity is plainly revealed by an examination of the years 1961-1970, the last 10-year period for which statistics are available.
Georgia, on certiorari to the same court, and No. 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. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania 1793 , reprinted in 12 Am. For these reasons I concur in the judgments of the Court. Yet nowhere in the opinion is there any explanation of how he arrived at those conclusions.