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 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.

															[ Footnote 1 ]

															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 .

															[ Footnote 2 ]

															Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The
Original Meaning, 57 Calif.L.Rev. 839, 845-846 (1969).

															[ Footnote 3 ]

															1 W. & M., Sess. 2, c. 2; 8 English Historical Documents,
166 1714, p. 122 (A. Browning ed. 1953).

															[ Footnote 4 ]

															F. Thorpe, Federal & State Constitutions 3813 (1909).

															[ Footnote 5 ]

															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.

															[ Footnote 6 ]

															Set out in 1 U.S.C. XXXIX-XLI.

															[ Footnote 7 ]

															Annals of Cong. 754 (1789).

															[ Footnote 8 ]

															"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).

															[ Footnote 9 ]

															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).

															[ Footnote 10 ]

															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.

															[ Footnote 11 ]

															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).

															[ Footnote 12 ]

															Goldberg & Dershowitz, Declaring the Death Penalty
Unconstitutional, 83 Harv.L.Rev. 1773, 1790.

															[ Footnote 13 ] Id. at 1792.

															[ Footnote 14 ]

															The Challenge of Crime in a Free Society 143 (1967).

															[ Footnote 15 ]

															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).

															[ Footnote 16 ]

															Life and Death in Sing Sing 155-160 (1928).

															[ Footnote 17 ]

															Crime in America 335 (1970).

															[ Footnote 18 ] See Johnson, The Negro and Crime, 217 Annals 93
(1941).

															[ Footnote 19 ] See J. Spellman, Political Theory of Ancient India 112
(1964).

															[ Footnote 20 ]

															C. Drekmeier, Kingship and Community in Early India 233
(1962).

															[ Footnote 21 ] 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 reply
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.

															[ Footnote 2/1 ]

															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).

															[ Footnote 2/2 ]

															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.

															[ Footnote 2/3 ]

															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.

															[ Footnote 2/4 ]

															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.

															[ Footnote 2/5 ]

															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."

															[ Footnote 2/6 ]

															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.

															[ Footnote 2/7 ]

															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 .

															[ Footnote 2/8 ]

															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).

															[ Footnote 2/9 ]

															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 .

															[ Footnote 2/10 ]

															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 .

															[ Footnote 2/11 ]

															"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."

															[ Footnote 2/12 ]

															"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."

															[ Footnote 2/13 ]

															"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."

															[ Footnote 2/14 ]

															"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 .

															[ Footnote 2/15 ]

															"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.

															[ Footnote 2/16 ]

															"The phrase in our Constitution was taken directly from the
English Declaration of Rights of [1689]. . . ." Id. at 356 U. S.
100 .

															[ Footnote 2/17 ]

															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.

															[ Footnote 2/18 ]

															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."

															[ Footnote 2/19 ]

															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."

															[ Footnote 2/20 ]

															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. [ Footnote 2/21 ]

															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. [ Footnote 2/22 ] 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."

															[ Footnote 2/23 ]

															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.

															[ Footnote 2/24 ]

															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."

															[ Footnote 2/25 ]

															"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 .

															[ Footnote 2/26 ]

															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.

															[ Footnote 2/27 ]

															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.)

															[ Footnote 2/28 ]

															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).

															[ Footnote 2/29 ] 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.

															[ Footnote 2/30 ]

															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 .

															[ Footnote 2/31 ] 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."

															[ Footnote 2/32 ]

															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.

															[ Footnote 2/33 ]

															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.

															[ Footnote 2/34 ]

															"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).

															[ Footnote 2/35 ] 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.

															[ Footnote 2/36 ] 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).

															[ Footnote 2/37 ]

															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.

															[ Footnote 2/38 ]

															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. [ Footnote 2/39 ]

															Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763
(1864).

															[ Footnote 2/40 ]

															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.

															[ Footnote 2/41 ]

															1961 -- 140; 1962 -- 103; 1963 -- 93; 1964 -- 106; 1965 -- 86;
1966 -- 118; 1967 -- 85; 1968 -- 102; 1969 -- 97; 1970 -- 127. Id. at 9.

															[ Footnote 2/42 ]

															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. [ Footnote 2/43 ]

															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. [ Footnote 2/44 ]

															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.

															[ Footnote 2/45 ] Id. at 9.

															[ Footnote 2/46 ]

															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. [ Footnote 2/47 ] Id. at 8.

															[ Footnote 2/48 ]

															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.

															[ Footnote 2/49 ]

															T. Sellin, The Death Penalty, A Report for the Model Penal Code
Project of the American Law Institute 15 (1959).

															[ Footnote 2/50 ]

															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.

															[ Footnote 2/51 ] Id. at 8

															[ Footnote 2/52 ]

															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).

															[ Footnote 2/53 ]

															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.

															[ Footnote 2/54 ]

															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.

															[ Footnote 3/1 ] 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.

															[ Footnote 3/2 ] 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.

															[ Footnote 3/3 ]

															10 U.S.C. § 906.

															[ Footnote 3/4 ]

															R.I.Gen.Laws Ann. § 11-23-2.

															[ Footnote 3/5 ]

															Mass.Gen.Laws Ann., c. 265, § 2.

															[ Footnote 3/6 ]

															Ohio Rev.Code Ann., Tit. 29, §§ 2901.09 and 2901.10.

															[ Footnote 3/7 ]

															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.

															[ Footnote 3/8 ]

															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.

															[ Footnote 3/9 ]

															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).

															[ Footnote 3/10 ] 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.

															[ Footnote 3/11 ]

															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.

															[ Footnote 3/12 ]

															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).

															[ Footnote 3/13 ] 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.

															[ Footnote 3/14 ] 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 shared 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 [ Footnote 4/1 ]

															Certiorari was also granted in a fourth case, Aikens v.
California, No. 68-5027, but the writ was dismissed after the
California Supreme Court held that capital punishment violates the
State Constitution. 406 U. S. 813 . See People v. Anderson, 6 Cal. 3d 628 ,
493 P.2d 880, cert. denied, 406 U.S. 958 (1972). The
California decision reduced by slightly more than 100 the number of
persons currently awaiting execution.

															[ Footnote 4/2 ]

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

															[ Footnote 4/3 ] 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).

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

															[ Footnote 4/5 ]

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

															[ Footnote 4/6 ] Ibid. Beale's views were conveyed from England to
America, and were first written into American law by the Reverend
Nathaniel Ward, who wrote the Body of Liberties for the
Massachusetts Bay Colony. Clause 46 of that work read: "For bodilie
punishments we allow amongst us none that are inhumane, Barbarous
or cruel." 1 B. Schwartz, The Bill of Rights: A Documentary History
71, 77 (1971).

															[ Footnote 4/7 ]

															4 W. Blackstone, Commentaries *376-377. See also 1 J.
Chitty, The Criminal Law 785-786 (5th ed. 1847); Sherman, ". . .
Nor Cruel and Unusual Punishments Inflicted," 14 Crime & Delin.
73, 74 (1968).

															[ Footnote 4/8 ]

															Not content with capital punishment as a means of retribution
for crimes, the English also provided for attainder ("dead in law")
as the immediate and inseparable concomitant of the death sentence.
The consequences of attainder were forfeiture of real and personal
estates and corruption of blood. An attainted person could not
inherit land or other hereditaments, nor retain those he possessed,
nor transmit them by descent to any heir. Descents were also
obstructed whenever posterity derived a title through one who was
attainted. 4 W. Blackstone, Commentaries *380-381.

															[ Footnote 4/9 ] E.g., 2 J. Story, On the Constitution § 1903, p. 650
(5th ed. 1891).

															[ Footnote 4/10 ]

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

															[ Footnote 4/11 ]

															Granucci, supra, n. 5, at 854.

															[ Footnote 4/12 ] Id. at 855.

															[ Footnote 4/13 ] Id. at 860. In reaching this conclusion, Professor
Granucci relies primarily on the trial of Titus Oates as the
impetus behind the adoption of the clause. Oates was a minister of
the Church of England who proclaimed the existence of a plot to
assassinate King Charles II. He was tried for perjury, convicted,
and sentenced to a fine of 2,000 marks, life imprisonment,
whippings, pillorying four times a year, and defrocking. Oates
petitioned both the House of Commons and the House of Lords for
release from judgment. The House of Lords rejected his petition,
but a minority of its members concluded that the King's Bench had
no jurisdiction to compel defrocking, and that the other
punishments were barbarous, inhumane, unchristian, and unauthorized
by law. The House of Commons agreed with the dissenting Lords. Id. at 857-859.

															The author also relies on the dictionary definition of "cruel,"
which meant "severe" or "hard" in the 17th century, to support his
conclusion. Ibid. [ Footnote 4/14 ]

															Most historians reach this conclusion by reading the history of
the Cruel and Unusual Punishments Clause as indicating that it was
a reaction to inhumane punishments. Professor Granucci reaches the
same conclusion by finding that the draftsmen of the Constitution
misread the British history and erroneously relied on Blackstone.
Granucci, supra, n. 5, at 862-865. It is clear, however,
that, prior to the adoption of the Amendment, there was some
feeling that a safeguard against cruelty was needed, and that this
feeling had support in past practices. See n. 6, supra, and accompanying text.

															[ Footnote 4/15 ]

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

															[ Footnote 4/16 ] See, e.g., Delaware Declaration of Rights (1776),
Maryland Declaration of Rights (1776), Massachusetts Declaration of
Rights (1780), and New Hampshire Bill of Rights (1783). 1 Schwartz, supra, n. 6, at 276, 278; 279, 281; 337, 343; 374,
379.

															[ Footnote 4/17 ] See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id. at 47-481. See also , 2 Schwartz, supra, n. 6, at 629, 674, 762, 852, 968.

															[ Footnote 4/18 ]

															3 Elliot, supra, n. 17, at 446-448. A comment by George
Mason which misinterprets a criticism leveled at himself and
Patrick Henry is further evidence of the intention to prohibit
torture and the like by prohibiting cruel and unusual punishments. Id. at 452.

															[ Footnote 4/19 ]

															Annals of Cong. 782-783 (1789). There is some recognition of the
fact that a prohibition against cruel and unusual punishments is a
flexible prohibition that may change in meaning as the mores of a
society change, and that may eventually bar certain punishments not
barred when the Constitution was adopted. Ibid. (remarks
of Mr. Livermore of New Hampshire). There is also evidence that the
general opinion at the time the Eighth Amendment was adopted was
that it prohibited every punishment that was not "evidently
necessary." W. Bradford, An Enquiry How Far the Punishment of Death
is Necessary in Pennsylvania (1793), reprinted in 12 Am.J.Legal
Hist. 122, 127 (1968).

															[ Footnote 4/20 ]

															The New York Court of Appeals had recognized the unusual nature
of the execution, but attributed it to a legislative desire to
minimize the pain of persons executed.

															[ Footnote 4/21 ]

															The prohibition against cruel and unusual punishments relevant
to Weems was that found in the Philippine Bill of Rights. It was,
however, borrowed from the Eighth Amendment to the United States
Constitution, and had the same meaning. 217 U.S. at 217 U. S.
367 .

															[ Footnote 4/22 ] Id. at 217 U. S.
373 .

															[ Footnote 4/23 ] Ibid. [ Footnote 4/24 ] Ibid. [ Footnote 4/25 ] Id. at 217 U. S.
381 .

															[ Footnote 4/26 ] 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).

															[ Footnote 4/27 ]

															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.

															[ Footnote 4/28 ]

															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.

															[ Footnote 4/29 ] Id. at 329 U. S.
463 .

															[ Footnote 4/30 ]

															English law required a second attempt at execution if the first
attempt failed. L. Radzinowicz, A History of English Criminal Law
185-186 (1948).

															[ Footnote 4/31 ]

															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 .

															[ Footnote 4/32 ] Id. at 356 U. S.
101 .

															[ Footnote 4/33 ]

															370 U.S. at 370 U. S.
666 .

															[ Footnote 4/34 ] 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).

															[ Footnote 4/35 ] 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. [ Footnote 4/36 ] 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).

															[ Footnote 4/37 ] 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. [ Footnote 4/38 ]

															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).

															[ Footnote 4/39 ]

															Scott, supra, n. 38, at 1.

															[ Footnote 4/40 ] Id. at 2; Ancel, supra, n. 38, at 4-5.

															[ Footnote 4/41 ]

															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).

															[ Footnote 4/42 ]

															Scott, supra, n. 38, at 19-33.

															[ Footnote 4/43 ] 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.

															[ Footnote 4/44 ]

															T. Plucknett, A Concise History of the Common Law 424-454 (5th
ed. 1956).

															[ Footnote 4/45 ]

															Introduction in H. Bedau, The Death Penalty in America 1 (1967
rev. ed.).

															[ Footnote 4/46 ] Ibid. [ Footnote 4/47 ]

															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.

															[ Footnote 4/48 ]

															G. Haskins, The Capitall Lawes of New England, Harv.L.Sch.Bull.
111 (Feb. 1956).

															[ Footnote 4/49 ] 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.

															[ Footnote 4/50 ] Id. at 6.

															[ Footnote 4/51 ]

															Filler, Movements to Abolish the Death Penalty in the United
States, 284 Annals Am.Acad.Pol. & Soc.Sci. 124 (1952).

															[ Footnote 4/52 ] Ibid. [ Footnote 4/53 ] Ibid. (footnotes omitted).

															[ Footnote 4/54 ] Ibid.; Bedau, supra, n. 45, at 6.

															[ Footnote 4/55 ]

															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.

															[ Footnote 4/56 ]

															Filler, supra, n. 51, at 124.

															[ Footnote 4/57 ] Id. at 124-125.

															[ Footnote 4/58 ]

															Reprinted in 12 Am.J.Legal Hist. 122 (1968).

															[ Footnote 4/59 ]

															His advice was in large measure followed. See n. 55, supra. [ Footnote 4/60 ]

															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.

															[ Footnote 4/61 ] Ibid.; Filler, supra, n. 51, at 126-127.

															[ Footnote 4/62 ] See Scott, supra, n. 38, at 114-116.

															[ Footnote 4/63 ]

															Filler, supra, n. 51, at 127.

															[ Footnote 4/64 ]

															Davis, The Movement to Abolish Capital Punishment in America,
1787-1861, 63 Am.Hist.Rev. 23, 33 (1957).

															[ Footnote 4/65 ]

															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.

															[ Footnote 4/66 ]

															Davis, supra, n. 64, at 29-30.

															[ Footnote 4/67 ]

															Filler, supra, n. 51, at 129.

															[ Footnote 4/68 ] Id. at 130.

															[ Footnote 4/69 ] Ibid. [ Footnote 4/70 ]

															Bedau, supra, n. 45, at 10.

															[ Footnote 4/71 ]

															Davis, supra, n. 64, at 46.

															[ Footnote 4/72 ]

															Kansas restored it in 1935. See Appendix I to this
opinion, infra at 408 U. S. 372 .

															[ Footnote 4/73 ] See McGautha v. California, 402 U.S. at 402 U. S.
199 .

															[ Footnote 4/74 ]

															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.

															[ Footnote 4/75 ] See n. 72, supra. [ Footnote 4/76 ]

															Filler, supra, n. 51, at 134.

															[ Footnote 4/77 ]

															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).

															[ Footnote 4/78 ]

															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).

															[ Footnote 4/79 ] 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. [ Footnote 4/80 ] 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).

															[ Footnote 4/81 ]

															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).

															[ Footnote 4/82 ]

															Bedau, supra, n. 45, at 43.

															[ Footnote 4/83 ] Ibid. See also Ralph v. Warden, 438 F.2d 786,
791-792 (CA4 1970).

															[ Footnote 4/84 ] 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).

															[ Footnote 4/85 ] 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).

															[ Footnote 4/86 ] 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.

															[ Footnote 4/87 ] 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).

															[ Footnote 4/88 ]

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

															[ Footnote 4/89 ]

															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.

															[ Footnote 4/90 ]

															Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154, 163; Hook, supra, n. 87, at
152.

															[ Footnote 4/91 ] 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.

															[ Footnote 4/92 ] See Bedau, Deterrence and the Death Penalty: A
Reconsideration, 61 J.Crim.L.C. & P.S. 539, 542 (1970).

															[ Footnote 4/93 ]

															Royal Commission, supra, n. 84, � 59, at 20.

															[ Footnote 4/94 ]

															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.

															[ Footnote 4/95 ]

															Reprinted in Royal Commission, supra, n. 84, � 57, at
19.

															[ Footnote 4/96 ]

															United Nations, supra, n. 77, � 139, at 118.

															[ Footnote 4/97 ] See Bedau, supra, n. 45, at 43.

															[ Footnote 4/98 ]

															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).

															[ Footnote 4/99 ]

															Sellin, supra, n. 98, at 21.

															[ Footnote 4/100 ]

															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.

															[ Footnote 4/101 ]

															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.

															[ Footnote 4/102 ]

															Executions were chosen for purposes of comparison because
whatever impact capital punishment had would surely be most
forcefully felt where punishment was actually imposed.

															[ Footnote 4/103 ] See Appendix II to this opinion, infra at 408 U. S.
373 .

															[ Footnote 4/104 ] See Appendix III to this opinion, infra at 408 U. S.
374 .

															[ Footnote 4/105 ]

															United Nations, supra, n. 77, � 134, at 117.

															[ Footnote 4/106 ]

															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).

															[ Footnote 4/107 ]

															Sellin, supra, n. 98, at 34.

															[ Footnote 4/108 ] 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.

															[ Footnote 4/109 ]

															Sellin, supra, n. 98, at 38-39; Royal Commission, supra, n. 84, at 353; United Nations, supra, n.
77, 130-136, at 116-118.

															[ Footnote 4/110 ]

															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.

															[ Footnote 4/111 ]

															Royal Commission, supra, n. 84, � 65, at 23; 346-349;
United Nations, supra, n. 77, 132, at 117.

															[ Footnote 4/112 ]

															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.

															[ Footnote 4/113 ]

															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.

															[ Footnote 4/114 ] 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).

															[ Footnote 4/115 ]

															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.

															[ Footnote 4/116 ]

															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.

															[ Footnote 4/117 ] 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.

															[ Footnote 4/118 ] See, e.g., The Question of Deterrence, in Bedau, supra, n. 45, at 267.

															[ Footnote 4/119 ] Ibid. and n. 11; Note, The Death Penalty Cases, 56
Calif.L.Rev. 1268, 1282-1283 (1968).

															[ Footnote 4/120 ] See n. 113, supra. [ Footnote 4/121 ]

															United Nations, supra, n. 77, � 159, at 123.

															[ Footnote 4/122 ] See nn. 58 and 59, supra, and accompanying
text.

															[ Footnote 4/123 ] See n. 62, supra, and accompanying text.

															[ Footnote 4/124 ]

															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).

															[ Footnote 4/125 ]

															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.

															[ Footnote 4/126 ] See n. 117, supra. [ Footnote 4/127 ] See, e.g., Royal Commission, supra, n. 84,
App. 15, at 486-491.

															[ Footnote 4/128 ] Jackson applies to the States under the criteria
articulated in Duncan v. Louisiana, 391 U.
S. 145 , 391 U. S. 149 (1968).

															[ Footnote 4/129 ] See, e.g., Barzun, In Favor of Capital Punishment, in
Bedau, supra, n. 45, at 154.

															[ Footnote 4/130 ] 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).

															[ Footnote 4/131 ]

															Caldwell, supra, n. 130, at 48; McGee, supra, n. 116.

															[ Footnote 4/132 ]

															McGee, supra, at 13-14; Bailey, Rehabilitation on Death
Row, in Bedau, supra, n. 45, at 556.

															[ Footnote 4/133 ]

															T. Thomas, This Life We Take 20 (3d ed. 1965).

															[ Footnote 4/134 ] 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).

															[ Footnote 4/135 ] See, e.g., Witherspoon v. Illinois, 391 U.
S. 510 (1968).

															[ Footnote 4/136 ]

															Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch
Review 351 (1964).

															[ Footnote 4/137 ] See, e.g., Caritativo v. California, 357 U.
S. 549 (1958).

															[ Footnote 4/138 ]

															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).

															[ Footnote 4/139 ]

															Slovenko, supra, n. 136, at 363.

															[ Footnote 4/140 ]

															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).

															[ Footnote 4/141 ]

															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.

															[ Footnote 4/142 ] 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

															[ Footnote 4/143 ] United States v. Rosenberg, supra, at 608.

															[ Footnote 4/144 ] 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.

															[ Footnote 4/145 ]

															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.

															[ Footnote 4/146 ] Cf. Packer, Making the Punishment Fit the Crime, 77
Harv.L.Rev. 1071, 1076 (1964).

															[ Footnote 4/147 ] 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).

															[ Footnote 4/148 ]

															Hearings, supra, n. 80, at 11 (statement of M.
DiSalle).

															[ Footnote 4/149 ]

															National Prisoner Statistics No. 45, Capital Punishment
1930-1968, p. 7 (Aug. 1969).

															[ Footnote 4/150 ] Ibid. [ Footnote 4/151 ] Ibid. [ Footnote 4/152 ]

															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.

															[ Footnote 4/153 ]

															National Prisoner Statistics No. 45, Capital Punishment
1930-1968, p. 28 (Aug. 1969).

															[ Footnote 4/154 ]

															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.

															[ Footnote 4/155 ]

															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.

															[ Footnote 4/156 ]

															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).

															[ Footnote 4/157 ]

															E. Gardner, Court of Last Resort 178 (1952).

															[ Footnote 4/158 ]

															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.

															[ Footnote 4/159 ]

															Ehrmann, The Death Penalty and the Administration of Justice,
284 Annals Am.Acad.Pol. & Soc.Sci. 73, 83 (1952).

															[ Footnote 4/160 ]

															F. Frankfurter, Of Law and Men 81 (1956).

															[ Footnote 4/161 ]

															B. Eshelman & F. Riley, Death Row Chaplain 222 (1962).

															[ Footnote 4/162 ]

															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).

															[ Footnote 4/163 ]

															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 share 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).

															[ Footnote 4/164 ]

															164 R. Clark, Crime in America 336 (1970).

															[ Footnote 4/165 ]

															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. 238 app1| 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:

															[ Footnote 5/1 ]

															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.

															[ Footnote 5/2 ]

															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

															[ Footnote 5/3 ]

															Death penalty retained for treason. Partial abolition was voted
in 1846, but was not put into effect until 1847.

															[ Footnote 5/4 ]

															Death penalty retained for rape.

															[ Footnote 5/5 ]

															Death penalty retained for treason

															[ Footnote 5/6 ]

															Death penalty retained for treason, and for first-degree murder
committed by a prisoner who is serving a life sentence for
first-degree murder

															[ Footnote 5/7 ]

															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. 238 app2| 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. 238 app3| 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 share 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.

															[ Footnote 6/1 ] See n. 25, infra. [ Footnote 6/2 ] 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).

															[ Footnote 6/3 ] See 2 J. Elliot's Debates 111 (2d ed. 1876); 3 id. at 447-448, 451-452.

															[ Footnote 6/4 ] But see Bluestone & McGahee, Reaction to Extreme
Stress: Impending Death by Execution, 119 Am.J.Psychiatry 393
(1962).

															[ Footnote 6/5 ] 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).

															[ Footnote 6/6 ]

															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).

															[ Footnote 6/7 ] 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.

															[ Footnote 6/8 ] 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.

															[ Footnote 6/9 ]

															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).

															[ Footnote 6/10 ]

															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).

															[ Footnote 6/11 ]

															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).

															[ Footnote 6/12 ]

															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.

															[ Footnote 6/13 ] Jackson v. Georgia, No. 65030; Branch v.
Texas, No. 69-5031.

															[ Footnote 6/14 ]

															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.

															[ Footnote 6/15 ] See n. 11, supra. [ Footnote 6/16 ]

															l Annals of Cong. 754 (1789) (remarks of Rep. Livermore).

															[ Footnote 6/17 ]

															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.

															[ Footnote 6/18 ]

															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.

															[ Footnote 6/19 ] See Packer, Making the Punishment Fit the Crime, 77
Harv. L.Rev.1071, 1075 (1964).

															[ Footnote 6/20 ] 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).

															[ Footnote 6/21 ] 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).

															[ Footnote 6/22 ] 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.

															[ Footnote 6/23 ] See Powell v. Texas, 392 U. S. 514 , 392 U. S. 531 (1968) (MARSHALL, J.) (plurality opinion).

															[ Footnote 6/24 ] See, e.g., K. Menninger, The Crime of Punishment
206-208 (1968).

															[ Footnote 6/25 ]

															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.

															[ Footnote 6/26 ] 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 .

															[ Footnote 6/27 ] 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 .

															[ Footnote 6/28 ]

															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.

															[ Footnote 6/29 ] See n. 12, supra.

															[ Footnote 6/30 ]

															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.

															[ Footnote 6/31 ] 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.

															[ Footnote 6/32 ] 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 shares) 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.

															[ Footnote 7/1 ]

															Minn.Stat. § 609.10 (1971).

															[ Footnote 7/2 ]

															Minn.Laws 1911, c. 387.

															[ Footnote 7/3 ] See W. Trenerry, Murder in Minnesota 163-167
(1962).

															[ Footnote 7/4 ]

															"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.

															[ Footnote 7/5 ]

															"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. .
. ."

															[ Footnote 7/6 ]

															"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."

															[ Footnote 7/7 ]

															"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 .

															[ Footnote 8/1 ]

															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.

															[ Footnote 8/2 ]

															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.

															[ Footnote 8/3 ]

															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).

															[ Footnote 8/4 ]

															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).

															[ Footnote 8/5 ]

															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 .

															[ Footnote 8/6 ] See 408 U. S. infra. [ Footnote 8/7 ]

															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."

															[ Footnote 8/8 ]

															"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.

															[ Footnote 8/9 ] 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).

															[ Footnote 8/10 ]

															Brief for Respondent in Branch v. Texas, No. 69-5031,
p. 6.

															[ Footnote 8/11 ]

															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.

															[ Footnote 8/12 ]

															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. [ Footnote 8/13 ] See n. 4, supra. [ Footnote 8/14 ] See, e.g., Ex parte Wilson, 114 U.
S. 417 , 114 U. S.
427 -428 (1885).

															[ Footnote 8/15 ] See 408 U. S. infra. [ Footnote 8/16 ] 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).

															[ Footnote 8/17 ]

															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).

															[ Footnote 8/18 ]

															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.

															[ Footnote 8/19 ]

															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).

															[ Footnote 8/20 ] 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).

															[ Footnote 8/21 ]

															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. [ Footnote 8/22 ]

															Hearings on S. 1760 before the Subcommittee on Criminal Laws and
Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d
Sess. (1968).

															[ Footnote 8/23 ]

															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.

															[ Footnote 8/24 ]

															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.

															[ Footnote 8/25 ] See n. 62, infra. [ Footnote 8/26 ] See Bedau, supra, n. 17, at 233.

															[ Footnote 8/27 ] Ibid. (approximately 65% of the voters approved the
death penalty).

															[ Footnote 8/28 ] See Bedau, The Death Penalty in America, 35 Fed.Prob.,
No. 2, pp. 32, 34 (1971).

															[ Footnote 8/29 ]

															National Commission, supra, n. 16, at 1365.

															[ Footnote 8/30 ]

															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.

															[ Footnote 8/31 ]

															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).

															[ Footnote 8/32 ] See n. 19, supra. [ Footnote 8/33 ]

															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.

															[ Footnote 8/34 ]

															National Prisoner Statistics, supra, n. 18.

															[ Footnote 8/35 ]

															FBI, Uniform Crime Reports -- 1970, pp. 7-14 (1971).

															[ Footnote 8/36 ]

															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).

															[ Footnote 8/37 ]

															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).

															[ Footnote 8/38 ]

															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.

															[ Footnote 8/39 ]

															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 ).

															[ Footnote 8/40 ]

															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.

															[ Footnote 8/41 ]

															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.

															[ Footnote 8/42 ]

															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 .

															[ Footnote 8/43 ] 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").

															[ Footnote 8/44 ]

															Royal Commission on Capital Punishment, Minutes of Evidence 207
(1949-1953).

															[ Footnote 8/45 ]

															Report of Royal Commission on Capital Punishment, 1949-1953,
Cmd. 8932, � 53, p. 18.

															[ Footnote 8/46 ]

															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).

															[ Footnote 8/47 ]

															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).

															[ Footnote 8/48 ] See, e.g., H. Bedau, The Death Penalty in America 260
(1967 rev. ed.); National Commission, supra, n. 16, at
1352.

															[ Footnote 8/49 ] See Sellin, supra, n. 16, at 152.

															[ Footnote 8/50 ]

															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).

															[ Footnote 8/51 ]

															Report of the Royal Commission, supra, n. 45, � 68, at
24.

															[ Footnote 8/52 ]

															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.

															[ Footnote 8/53 ] Jackson v. Georgia, No. 69-5030; Branch v.
Texas, No. 69-5031.

															[ Footnote 8/54 ]

															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 .

															[ Footnote 8/55 ]

															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).

															[ Footnote 8/56 ] Id. at 63-64; Packer, Making the Punishment Fit the
Crime, 77 Harv.L.Rev. 1071, 1077 (1964).

															[ Footnote 8/57 ] See MacDonald, supra, n. 55, at 314;
Chambliss, Types of Deviance and the Effectiveness of Legal
Sanctions, 1967 Wis.L.Rev. 703.

															[ Footnote 8/58 ]

															FBI, Uniform Crime Report -- 1970, p. 14 (1971) (during the
1960's, the incidence of rape rose 121%).

															[ Footnote 8/59 ] See text accompanying nn. 27 & 28, supra. [ Footnote 8/60 ] See n. 24, supra. [ Footnote 8/61 ] See n. 23, supra. [ Footnote 8/62 ]

															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.

															[ Footnote 8/63 ]

															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.

															[ Footnote 8/64 ]

															Final Report of the National Commission on Reform of Federal
Criminal Laws 310 (1971).

															[ Footnote 8/65 ]

															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).

															[ Footnote 8/66 ] See text accompanying nn. 26 through 30, supra.

															[ Footnote 8/67 ] 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.