furman georgia argued january decided june together jackson georgia certiorari branch texas certiorari criminal appeals texas imposition carrying death penalty cases held constitute cruel unusual punishment violation eighth fourteenth amendments reversed remanded anthony amsterdam argued cause petitioner brief clarence mayfield michael meltsner jack greenberg james nabrit iii jack himmelstein elizabeth dubois greenberg argued cause petitioner brief meltsner amsterdam nabrit himmelstein dubois melvyn carson bruder argued cause filed brief petitioner dorothy beasley assistant attorney general georgia argued cause respondent nos briefs arthur bolton attorney general harold hill executive assistant attorney general courtney wilder stanton assistant attorney general andrew ryan charles alan wright argued cause respondent brief crawford martin attorney general texas nola white first assistant attorney general alfred walker executive assistant attorney general robert flowers glenn brown assistant attorneys general theodore sendak attorney general david givens deputy attorney general filed brief state indiana amicus curiae urging affirmance paul raymond stone filed brief west virginia council churches et al amici curiae urging reversal nos john havelock attorney general filed brief state alaska amicus curiae nos briefs amici curiae three cases filed gerald gottlieb melvin wulf sanford jay rosen american civil liberties union leo pfeffer synagogue council america et al chauncey eskridge mario obledo leroy clark nathaniel jones vernon jordan national association advancement colored people et al michael disalle edmund brown et al hilbert zarky marc hayutin james bennett et al per curiam petitioner convicted murder georgia sentenced death pursuant code ann supp effective prior july petitioner convicted rape georgia sentenced death pursuant code ann supp effective prior july petitioner convicted rape texas sentenced death pursuant tex penal code art crim app certiorari granted limited following question imposition carrying death penalty cases constitute cruel unusual punishment violation eighth fourteenth amendments holds imposition carrying death penalty cases constitute cruel unusual punishment violation eighth fourteenth amendments judgment case therefore reversed insofar leaves undisturbed death sentence imposed cases remanded proceedings ordered justice douglas concurring three cases death penalty imposed one murder two rape determination whether penalty death lighter punishment left state discretion judge jury three cases trial jury petitions certiorari granted limited question whether imposition execution death penalty constitute cruel unusual punishment within meaning eighth amendment applied fourteenth vote vacate judgment believing exaction death penalty violate eighth fourteenth amendments requirements due process ban cruel unusual punishment settled louisiana ex rel francis resweber burton dissenting robinson california also settled proscription cruel unusual punishments forbids judicial imposition well imposition legislature weems congressman bingham proposing fourteenth amendment maintained privileges immunities citizens protected fourteenth amendment included protection cruel unusual punishments instances state injustice oppression already occurred state legislation union flagrant violations guarantied privileges citizens national government furnished furnish law remedy whatever contrary express letter constitution cruel unusual punishments inflicted state laws within union upon citizens crimes committed sacred duty done government provided remedy provide none cong globe assumed decisions punishment death cruel unless manner execution said inhuman barbarous kemmler also said opinions proscription cruel unusual punishments fastened obsolete may acquire meaning public opinion becomes enlightened humane justice weems supra like statement made trop dulles eighth amendment must draw meaning evolving standards decency mark progress maturing society generality law inflicting capital punishment one thing may said validity law books may done law application may lead quite different conclusions seem incontestable death penalty inflicted one defendant unusual discriminates reason race religion wealth social position class imposed procedure gives room play prejudices evidence provision english bill rights language eighth amendment taken concerned primarily selective irregular application harsh penalties aim forbid arbitrary discriminatory penalties severe nature following norman conquest england old system penalties ensured equality crime punishment suddenly disappeared time systematic judicial records kept demise almost complete exception certain grave crimes punishment death outlawry arbitrary fine replaced discretionary amercement although amercement discretionary character allowed circumstances case taken account level cash penalties decreased increased accordingly amercement presented opportunity excessive oppressive fines problem excessive amercements became prevalent three chapters magna carta devoted regulation maitland said chapter likely clause magna carta grateful mass people chapter clearly stipulated fundamental law prohibition excessiveness punishments free man shall amerced trivial offence except accordance degree offence serious offence shall amerced according gravity saving livelihood merchant likewise saving merchandise way villein shall amerced saving wainage fall mercy none aforesaid amercements shall imposed except testimony reputable men neighborhood smith south carolina objected words cruel unusual punishments import indefinite livermore clause seems express great deal humanity account objection seems meaning think necessary meant terms excessive bail judges understood excessive fines lies determine cruel unusual punishment inflicted sometimes necessary hang man villains often deserve whipping perhaps ears cut future prevented inflicting punishments cruel lenient mode correcting vice deterring others commission invented prudent legislature adopt security done restrained making necessary laws declaration kind mcgautha california noted country almost beginning rebellion rule imposing mandatory death sentence convicted murderers first attempted remedy restrict death penalty defined offenses premeditated murder ibid juries took law hands refused convict capital offense order meet problem jury nullification legislatures try refine definition capital homicides instead adopted method forthrightly granting juries discretion exercising fact ibid refused find constitutional dimensions argument exercise discretion send person death given standards discretion exercised recent witness hearings subcommittee house committee judiciary ernest van den haag testifying et stated penalty fine imprisonment death penalty unfairly unjustly applied vice case penalty process inflicted unfair inflict unequal penalties equally guilty parties innocent parties regardless penalty emphasis supplied imprisoned mcgautha holding indeed seeds present cases mcgautha juries judges case may practically untrammeled discretion let accused live insist die justice field dissenting vermont said state may indeed make drinking one drop liquor offence punished imprisonment cruelty count drops single glass make thereby thousand offences thus extend punishment drinking single glass liquor imprisonment almost indefinite duration legislature may classes uniformly systematically judge jury may class prejudice sets apart community increasing recognition fact basic theme equal protection implicit cruel unusual punishments penalty considered unusually imposed administered arbitrarily discriminatorily authors add extreme rarity applicable death penalty provisions put use raises strong inference arbitrariness president commission law enforcement administration justice recently concluded finally evidence imposition death sentence exercise dispensing power courts executive follow discriminatory patterns death sentence disproportionately imposed carried poor negro members unpopular groups application death penalty unequal executed poor young ignorant cases involved codefendants texas law given separate trials several instances white negro white sentenced life imprisonment term years negro given death penalty another ethnic disparity found type sentence imposed rape negro convicted rape far likely get death penalty term sentence whereas whites latins far likely get term sentence death penalty capital punishment fail justification punishment invented many inherent defects unequal punishment way applied rich poor defendant wealth position never goes electric chair gallows juries intentionally favor rich law theoretically impartial defendant ample means able case presented every favorable aspect poor defendant often lawyer assigned sometimes assignment considered part political patronage usually lawyer assigned experience whatever capital case jackson black convicted rape white woman years old psychiatrist said jackson average education average intelligence imbecile schizophrenic psychotic traits product environmental influences competent stand trial jackson entered house husband left work held scissors neck wife demanding money find none struggle ensued scissors battle lost raped jackson keeping scissors pressed neck appear traumatic impact victim bruised abrased struggle hospitalized jackson convict escaped work gang area result sentence auto theft large three days time committed several offenses burglary auto theft assault battery furman black killed householder seeking enter home night furman shot deceased closed door years old finished sixth grade school pending trial committed georgia central state hospital psychiatric examination plea insanity tendered counsel superintendent reported unanimous staff diagnostic conference concluded patient retain present diagnosis mental deficiency mild moderate psychotic episodes associated convulsive disorder physicians agreed present patient psychotic capable cooperating counsel preparation defense staff believed need psychiatric hospitalization treatment later superintendent reported staff diagnosis mental deficiency mild moderate psychotic episodes associated convulsive disorder concluded however furman psychotic present knows right wrong able cooperate counsel preparing defense branch black entered rural home widow white slept raped holding arm throat thereupon demanded money minutes widow searched money finding little left jackson said widow told anyone happened return kill record barren medical psychiatric evidence showing injury result branch attack previously convicted felony theft found borderline mental deficient well average iq texas prison inmates equivalent five half years grade school education dull intelligence lowest fourth percentile class say facts disclosed records defendants sentenced death black yet task restricted effort divine motives impelled death penalties rather deal system law justice leaves uncontrolled discretion judges juries determination whether defendants committing crimes die imprisoned laws standards govern selection penalty people live die dependent whim one man irving brant given detailed account bloody assizes reign terror occupied closing years rule charles ii opening years regime james ii lord chief justice george jeffreys nobody knows many hundreds men innocent unproved guilt jeffreys sent deaths pseudo trials followed feeble stupid attempt seize throne ordeal ended scores executed awaiting hangman three counties absent home uprising evidence guilt mere death considered much mild villagers farmers rounded raids directions high sheriff provide ax cleaver furnace cauldron boil heads quarters soil boil therewith half bushel traitor tar tar sufficient number spears poles fix heads quarters along highways one crossed good part northern england guidance story bloody assizes widely known americans helped place constitutional limitations crime treason produce bar cruel unusual punishments polemics led various guarantees freedom place compared tremendous thrust trial execution sidney hundreds judicial murders committed jeffreys fellow judges totally inconceivable free american republic american imagine sidney place executed putting paper closet words later came express basic principles republican government unless barred fundamental law legal rulings permitted result easily employed person whose political opinions challenged party power bill rights nation committed equal protection laws permissible caste aspect law enforcement yet know discretion judges juries imposing death penalty enables penalty selectively applied feeding prejudices accused poor despised lacking political clout member suspect unpopular minority saving social position may protected position ancient hindu law brahman exempt capital punishment law enerally law books punishment increased severity social status diminished fear taken practice position partially result making death penalty discretionary partially result ability rich purchase services respected resourceful legal talent nation high service rendered cruel unusual punishment clause eighth amendment require legislatures write penal laws evenhanded nonselective nonarbitrary require judges see general laws applied sparsely selectively spottily unpopular groups law stated anyone making exempt death penalty plainly fall law terms said blacks never went beyond fifth grade school made less year unpopular unstable people executed law overall view reaches result practice sanctity law terms provides thus discretionary statutes unconstitutional operation pregnant discrimination discrimination ingredient compatible idea equal protection laws implicit ban cruel unusual punishments law nondiscriminatory face may applied way violate equal protection clause fourteenth amendment yick wo hopkins conceivably might fate mandatory death penalty equal lesser sentences imposed elite harsher one minorities members lower castes whether mandatory death penalty otherwise constitutional question reach concur judgments footnotes granucci cruel unusual punishments inflicted original meaning rev sess english historical documents browning ed thorpe federal state constitutions delaware maryland new hampshire north carolina massachusetts pennsylvania south carolina thorpe supra set annals cong respect class offenses difficulty obtaining convictions general england may hold axiom law requires amendment conduct juries silent protest people undue severity strongly exemplified case prosecutions forgery capital felony vain charge proved juries condemn men gallows offense punishment proportion crime mitigate sentence brought verdicts guilty consequence law changed secondary punishments substituted penalty death forger better chance acquittal criminal thus power juries possess refusing put law force words lord john russell cause amending many bad laws judges administered professional bigotry important useful consequence laws totally repugnant feelings community made long prevail england forsyth history trial jury ed trend universally applauded early england law made possible impose death sentence stealing five shillings bill abolishing penalty finally enacted geo house lords lord ellenborough said lordships look particular measure consideration ask seriously maintained exemplary punishment best suited prevent commission crime punishment might cases inflicted enactments law sought repealed cottages industrious poverty protected security poor peasant wife leave home daily labours return articles furniture clothes possess besides carry backs safe enacting punishment death leaving discretion crown inflict punishment circumstances case may require satisfied much mistaken lordships satisfied object attained least possible expenditure law termed bloody law means admit better test consideration number persons executed offences description contained present bill lordships told extremely true number small circumstance urged reason repeal law lordships induced consent repeal beg call consideration number innocent persons might plundered property destroyed midnight murderers law sought repealed existence law upon retail trade commercial country depends one consent put jeopardy debate house lords apr pp longman hurst rees orme brown london introduced cong celler abolish executions state introduced cong celler provide interim stay executions state contains following proposed finding congress hereby finds exists serious question whether infliction death penalty amounts cruel unusual punishment violation eighth fourteenth amendments constitution whether death penalty inflicted discriminatorily upon members racial minorities violation fourteenth amendment constitution either case whether congress exercise authority section fourteenth amendment prohibit use death penalty tension decision today mcgautha highlights view correctness justice brennan dissent case joined think eighth fourteenth amendments prohibit imposition death penalty petitioners among capriciously selected random handful upon sentence death fact imposed opinion justice stewart post meaningful basis distinguishing cases death penalty imposed many cases opinion justice white post statements complete agreement due process clause fourteenth amendment render unconstitutional capital sentencing procedures purposely constructed allow maximum possible variation one case next provide mechanism prevent consciously maximized variation reflecting merely random arbitrary choice mcgautha california brennan dissenting goldberg dershowitz declaring death penalty unconstitutional harv rev challenge crime free society koeninger capital punishment texas crime delin bedau death penalty america rev ed stated race offender final disposition less discussion statistical symbols see bedau supra although may host factors race involved frequency distribution something chance operated years produce racial difference basis study possible indict judicial public processes prior death row responsible association negroes higher frequency executions entirely correct assume time appearance death row negroes discriminated pardon board many unknown presently immeasurable factors prevent making definitive statements relationship nevertheless association statistically present suspicion racial discrimination hardly avoided relationship appeared kind suspicion allayed existence relationship although proving differential bias pardon boards years since strongly suggests bias existed life death sing sing crime america see johnson negro crime annals see spellman political theory ancient india drekmeier kingship community early india cf prettyman death disparity representation capital cases raises doubts capital punishment abolished nine james avery saved electrocution attorney made timely objection selection jury use yellow white tickets aubry williams sent death jury selected precisely manner imposing extreme penalty uneven fashion problem proper representation problem money claimed lawyer ability true rich able lawyers rich poor usually well represented poor often best attorneys appointed defend defendant afford hire attorney good one disadvantage certainly william fikes despite anomalous position finds today received effective intelligent defense attorneys received attorney family scraped together enough money hire matter ability attorney must found prepared spend precious hours basic commodity sell case seldom fully compensates often brings fee public conception time effort devoted attorneys indigent cases case added responsibility man life depend upon outcome exacts heavy toll mr question presented cases whether death today punishment crime cruel unusual consequently virtue eighth fourteenth amendments beyond power state inflict almost century ago observed ifficulty attend effort define exactness extent constitutional provision provides cruel unusual punishments shall inflicted wilkerson utah less years ago noted exact scope constitutional phrase cruel unusual detailed trop dulles statements remain true today cruel unusual punishments clause like great clauses constitution susceptible precise definition yet know values ideals embodies basic scheme government know also clause imposes upon duty issue properly presented determine constitutional validity challenged punishment whatever punishment may cases hat issue confronts us task resolving inescapably little evidence framers intent including cruel unusual punishments clause among restraints upon new government enumerated bill rights absence restraint body constitution alluded far know debates two state ratifying conventions massachusetts convention holmes protested gives additional glare horror gloomy circumstances consideration congress ascertain point determine kind punishments shall inflicted persons convicted crimes nowhere restrained inventing cruel punishments annexing crimes constitutional check racks gibbets may amongst mild instruments discipline elliot debates ed congress general powers may fully go business human legislation may legislate criminal cases treason lowest offence petty larceny may define crimes prescribe punishments definition crimes trust directed wise representatives governed come punishments latitude left dependence put virtue representatives says virginia bill rights excessive bail required excessive fines imposed cruel unusual punishments inflicted therefore calling gentlemen compose congress define punishments without control find sentiments similar bill rights let loose depart genius country business legislation members congress loose restriction imposing excessive fines demanding excessive bail inflicting cruel unusual punishments prohibited virginia declaration rights distinguished ancestors admit tortures cruel barbarous punishment addition quite clear holmes henry focused wholly upon necessity restrain legislative power recognized congress ascertain point determine kinds punishments shall inflicted persons convicted crimes insisted congress must limited power punish accordingly called constitutional check ensure come punishments latitude left dependence put virtue representatives evidence framers intent appears debates first congress adoption bill rights noted weems cruel unusual punishments clause received little debate extent discussion two opponents clause house representatives smith south carolina objected words cruel unusual punishments import indefinite livermore eighth amendment seems express great deal humanity account objection seems meaning think necessary cruel unusual punishment inflicted sometimes necessary hang man villains often deserve whipping perhaps ears cut future prevented inflicting punishments cruel lenient mode correcting vice deterring others commission invented prudent legislature adopt security done restrained making necessary laws declaration kind question put eighth amendment agreed considerable majority annals cong several conclusions thus emerge history adoption clause know framers concern directed specifically exercise legislative power included bill rights prohibition upon cruel unusual punishments precisely legislature otherwise unfettered power prescribe punishments crimes yet know exactly framers thought cruel unusual punishments certainly intended ban torturous punishments available evidence support conclusion torturous punishments outlawed livermore comments demonstrate framers well aware reach clause limited proscription unspeakable atrocities intend simply forbid punishments considered cruel unusual time import clause indeed indefinite good reason constitutional provision enacted true experience evils general language therefore necessarily confined form evil theretofore taken time works changes brings existence new conditions purposes therefore principle vital must capable wider application mischief gave birth weems almost years occasion refer clause see pervear commonwealth wall early cases pointed weems supra undertake provide exhaustive definition cruel unusual punishments proceeded primarily looking backwards examples fix meaning clause concluding simply punishment cruel unusual similar punishments considered cruel unusual time bill rights adopted wilkerson utah instance found safe affirm punishments torture others line unnecessary cruelty forbidden punishments torture labeled atrocities cases criminal embowelled alive beheaded quartered cases public dissection burning alive similarly kemmler declared punishment prescribed offence laws state manifestly cruel unusual burning stake crucifixion breaking wheel like duty courts adjudge penalties within constitutional prohibition observed commenting upon passage quoted wilkerson utah supra applying manifestly cruel unusual test unishments cruel involve torture lingering death punishment death cruel within meaning word used constitution implies something inhuman barbarous something mere extinguishment life historical interpretation cruel unusual punishments clause prevailed clause effectively read bill rights noted weems supra interpretation led story conclude provision seem wholly unnecessary free government since scarcely possible department government authorize justify atrocious conduct cooley book constitutional limitations said apparently struggle effect given ancient examples inconsequence dread enlightened times hesitate advance definite views result judicial application interpretation surprising state example upheld constitutionality whipping post comparison barbarities quartering hanging chains castration easily reduced insignificance weems decisively repudiated historical interpretation clause returning intention framers rel ied conditions existed constitution adopted framers knew government people instituted constitution imitate conduct arbitrary monarchs abuse power might indeed apprehended manifested provisions practices shock sensibilities men clause guards abuse power contrary implications wilkerson utah supra kemmler supra prohibition clause confine penalties punishment inflicted stuarts although opponents bill rights felt sure spirit liberty trusted ideals represented debased legislation framers disagreed patrick henry believed take chances predominant political impulse distrust power insisted constitutional limitations abuse surely intended register fear forms abuse went practice stuarts surely jealousy power saner justification men action practical sagacious beset vain imagining must come exercises cruelty laws inflicted bodily pain mutilation power legislature great unlimited give criminal character actions men power unlimited fix terms imprisonment accompaniments might potent instrument cruelty put hands power believed power might tempted cruelty motive clause attribute intelligent providence advocates think intended prohibit practices like stuarts prevent exact repetition history think possibility coercive cruelty exercised forms punishment overlooked concede power exercises disclaim right assert judgment legislature expediency laws right oppose judicial power legislative power define crimes fix punishment unless power encounters exercise constitutional prohibition case discretion legal duty strictly defined imperative direction invoked judicial enforcement clause evaded invoking obvious truth legislatures power prescribe punishments crimes precisely reason clause appears bill rights difficulty arises rather formulating legal principles applied courts legislatively prescribed punishment challenged cruel unusual formulating constitutional principles must avoid insertion judicial conception wisdom propriety weems yet must guise judicial restraint abdicate fundamental responsibility enforce bill rights constitution indeed easy application deficient efficacy power general principles little value converted precedent impotent lifeless formulas rights declared words might lost reality cruel unusual punishments clause become short little good advice trop dulles ii indeed simple task required merely measure challenged punishment history long condemned narrow unwarranted view clause however left behind century task today complex know words clause precise scope static know therefore clause must draw meaning evolving standards decency mark progress maturing society knowledge course beginning inquiry trop dulles supra said question whether penalty subjects individual fate forbidden principle civilized treatment guaranteed clause also said challenged punishment must examined light basic prohibition inhuman treatment embodied clause said finally basic concept underlying clause nothing less dignity man state power punish clause stands assure power exercised within limits civilized standards formulation course yield principles assessing constitutional validity particular punishments nevertheless even though little occasion give precise content clause principles recognized cases inherent clause sufficient permit judicial determination whether challenged punishment comports human dignity primary principle punishment must severe degrading dignity human beings pain certainly may factor judgment infliction extremely severe punishment often entail physical suffering see weems yet framers also knew exercises cruelty laws inflicted bodily pain mutilation even though may involved physical mistreatment primitive torture trop dulles supra severe mental pain may inherent infliction particular punishment see weems supra indeed one conclusions underlying holding plurality trop dulles punishment expatriation violates clause physical mental suffering inherent punishment cadena temporal see nn supra obvious basis decision weems punishment cruel unusual presence pain however comprehended judgment extreme severity punishment makes degrading dignity human beings barbaric punishments condemned history punishments inflict torture rack thumbscrew iron boot stretching limbs like course attended acute pain suffering vermont field dissenting consider condemned however realize pain involved reason true significance punishments treat members human race nonhumans objects toyed discarded thus inconsistent fundamental premise clause even vilest criminal remains human possessed common human dignity infliction extremely severe punishment like one weems circumstance degradation omitted may reflect attitude person punished entitled recognition fellow human attitude may apparent apart severity punishment louisiana ex rel francis resweber example unsuccessful electrocution although caused mental anguish physical pain result unforeseeable accident failure intentional however punishment like torture degrading indecent amount refusal accord criminal human status indeed punishment may degrading human dignity solely punishment state may punish person mentally ill leper afflicted venereal disease addicted narcotics robinson california inflict punishment disease treat individual diseased thing rather sick human punishment severe abstract irrelevant ven one day prison cruel unusual punishment crime common cold finally course punishment may degrading simply reason enormity prime example expatriation punishment primitive torture trop dulles necessarily involves denial society individual existence member human community determining whether punishment comports human dignity aided also second principle inherent clause state must arbitrarily inflict severe punishment principle derives notion state respect human dignity without reason inflicts upon people severe punishment inflict upon others indeed words cruel unusual punishments imply condemnation arbitrary infliction severe punishments know english history clause reveals particular concern establishment safeguard arbitrary punishments see granucci cruel unusual punishments inflicted original meaning rev principle recognized cases wilkerson utah reviewed various treatises military law order demonstrate custom war shooting common method inflicting punishment death basis concluded cruel unusual punishments forbidden constitution authorities referred treatises military law quite sufficient show punishment shooting mode executing death penalty crime murder first degree included category within meaning clause soldiers convicted desertion capital military offenses great majority cases sentenced shot ceremony occasions given great fulness writers upon subject wilkerson utah suggests severe punishment inflicted great majority cases legally available little likelihood state inflicting arbitrarily however infliction severe punishment something different generally done cases trop dulles substantial likelihood state contrary requirements regularity fairness embodied clause inflicting punishment arbitrarily principle especially important today scant danger given political processes enlightened democracy extremely severe punishments widely applied significant function clause therefore protect danger arbitrary infliction third principle inherent clause severe punishment must unacceptable contemporary society rejection society course strong indication severe punishment comport human dignity applying principle however must make certain judicial determination objective possible thus example weems trop dulles suggest one factor may considered existence punishment jurisdictions wilkerson utah supra suggests another factor considered historic usage punishment trop dulles supra combined present acceptance past usage observing death penalty employed throughout history day still widely accepted said violate constitutional concept cruelty robinson california involved infliction punishment narcotics addiction went step concluding simply light contemporary human knowledge law made criminal offense disease doubtless universally thought infliction cruel unusual punishment question principle whether objective indicators conclude contemporary society considers severe punishment unacceptable accordingly judicial task review history challenged punishment examine society present practices respect use legislative authorization course establish acceptance acceptability severe punishment measured availability might become offensive society never inflicted use final principle inherent clause severe punishment must excessive punishment excessive principle unnecessary infliction severe punishment state comport human dignity nothing pointless infliction suffering significantly less severe punishment adequate achieve purposes punishment inflicted cf robinson california supra douglas concurring trop dulles supra brennan concurring punishment inflicted unnecessary therefore excessive principle first appeared cases justice field dissent vermont took position clause directed punishments character mentioned torturous punishments punishments excessive length severity greatly disproportioned offences charged whole inhibition excessive either bail required fine imposed punishment inflicted four principles may determine whether particular punishment cruel unusual primary principle believe supplies essential predicate application others punishment must severity degrading human dignity paradigm violation principle infliction torturous punishment type clause always prohibited yet unlikely state moment history robinson california pass law providing infliction punishment indeed punishment ever may said principles unlikely confront severe punishment obviously inflicted wholly arbitrary fashion state engage reign blind terror likely called upon review severe punishment clearly totally rejected throughout society legislature able even authorize infliction punishment finally likely consider severe punishment patently unnecessary state today inflict severe punishment knowing reason whatever short unlikely occasion determine punishment fatally offensive one principle since bill rights adopted adjudged three punishments within prohibition clause see weems years chains hard painful labor trop dulles expatriation robinson california imprisonment narcotics addiction punishment course degrading human dignity none said conclusively fatally offensive one principles rather cruel unusual punishments seriously implicated several principles application principles combination supported judgment indeed surprising function principles simply provide means determine whether challenged punishment comports human dignity therefore interrelated cases convergence justify conclusion punishment cruel unusual test ordinarily cumulative one punishment unusually severe strong probability inflicted arbitrarily substantially rejected contemporary society reason believe serves penal purpose effectively less severe punishment continued infliction punishment violates command clause state may inflict inhuman uncivilized punishments upon convicted crimes iii punishment challenged cases death death course traditional punishment trop dulles supra one employed throughout history constitutional background accordingly appropriate subject inquiry first textual consideration raised bill rights fifth amendment declares particular crime punishable death person charged crime entitled certain procedural protections thus infer framers recognized existence common punishment however make inference intended exempt particular punishment express prohibition cruel unusual punishments clause indication debates clause special exception made death anything indication contrary livermore specifically mentioned death candidate future proscription clause see supra finally advance analysis insist framers believe adoption bill rights immediately prevent infliction punishment death neither believe immediately prevent infliction corporal punishments although common time see supra acknowledged impermissible also consideration decided three cases involving constitutional challenges particular methods inflicting punishment wilkerson utah kemmler expressing cases historical view clause see supra approved death shooting death electrocution wilkerson concluded shooting common method execution see supra kemmler held clause apply louisiana ex rel francis resweber supra approved second attempt electrocution first failed said fourteenth amendment prohibit due process clause execution state cruel manner abortive attempt make subsequent execution cruel constitutional sense execution three decisions thus reveal ruling upon various methods inflicting death assumed past death constitutionally permissible punishment past assumptions however sufficient limit scope examination punishment today constitutionality death cruel unusual punishments clause first time avoid question recalling past cases never directly considered question whether deliberate infliction death today consistent command clause state may inflict punishments comport human dignity analyze punishment death terms principles set cumulative test lead denial human dignity state arbitrarily subject person unusually severe punishment society indicated regard acceptable shown serve penal purpose effectively significantly less drastic punishment principles test death today cruel unusual punishment death unique punishment society strongly affirms sanctity life surprisingly common view death ultimate sanction natural human feeling appears us national debate punishment general imprisonment comparable debate punishment death punishment continuously restricted see infra state yet abolished prisons abolished punishment still inflict death reserve heinous crimes juries course always treated death cases differently governors exercising commutation powers criminal defendants view practicing lawyers know defended persons charged capital offenses often goal possible avoid death penalty griffin illinois burton minton dissenting legislatures required particular procedures trials automatic appeals applicable death cases universal experience administration criminal justice charged capital offenses granted special considerations ibid see williams florida require juries death cases almost always treats death cases class apart unfortunate effect punishment upon functioning judicial process well known punishment similar effect explanation uniqueness death extreme severity death today unusually severe punishment unusual pain finality enormity existing punishment comparable death terms physical mental suffering although information conclusive appears method available guarantees immediate painless death since discontinuance flogging constitutionally permissible punishment jackson bishop death remains punishment may involve conscious infliction physical pain addition know mental pain inseparable part practice punishing criminals death prospect pending execution exacts frightful toll inevitable long wait imposition sentence actual infliction death cf ex parte medley california pointed process carrying verdict death often degrading brutalizing human spirit constitute psychological torture people anderson cal indeed justice frankfurter noted onset insanity awaiting execution death sentence rare phenomenon solesbee balkcom dissenting opinion fate fear distress expatriate subjected trop dulles exist greater degree person confined prison awaiting death unusual severity death manifested clearly finality enormity death respects class expatriation example punishment destroys individual political existence centuries development strips citizen status national international political community puts existence jeopardy expatriation thus inherently entails total destruction individual status organized society short expatriate lost right rights yet demonstrably expatriation fate worse death frankfurter dissenting although death like expatriation destroys individual political existence status organized society unlike expatriation death also destroys existence least possibility expatriate future regain right rights death forecloses even possibility death truly awesome punishment calculated killing human state involves nature denial executed person humanity contrast plight person punished imprisonment evident individual prison lose right rights prisoner retains example constitutional rights free exercise religion free cruel unusual punishments treatment person purposes due process law equal protection laws prisoner remains member human family moreover retains right access courts punishment irrevocable apart common charge grounded upon recognition human fallibility punishment death must inevitably inflicted upon innocent men know death lot men whose convictions unconstitutionally secured view later retroactively applied holdings punishment may unconstitutionally inflicted see witherspoon illinois yet finality death precludes relief executed person indeed lost right rights one century proponent punishing criminals death declared man hung end relations execution way saying fit world take chance elsewhere comparison punishments today deliberate extinguishment human life state uniquely degrading human dignity hesitate hold ground alone death today cruel unusual punishment death punishment longstanding usage acceptance country therefore turn second principle state may arbitrarily inflict unusually severe punishment outstanding characteristic present practice punishing criminals death infrequency resort evidence conclusive death ordinary punishment crime steady decline infliction punishment every decade since earliest period accurate statistics available executions averaged per year average years total executions since yet population number capital crimes committed increased greatly past four decades contemporary rarity infliction punishment thus end result decline rarity plainly revealed examination years last period statistics available time average death sentences imposed year nearly number however carried many precluded commutations life term years transfers mental institutions insanity resentences life term years grants new trials orders resentencing dismissals indictments reversals convictions deaths suicide natural causes january death row population december span executions consequently additions death row also executed annual average short country might executed one criminal week fact course far fewer executed even moratorium executions began executions totaled average less one per week number dwindled seven one execution two country million people inflicts unusually severe punishment times year inference strong punishment regularly fairly applied dispel indeed require clear showing nonarbitrary infliction although exact figures available know thousands murders rapes committed annually death authorized punishment crimes however rate infliction characterized freakishly spectacularly rare simply rare take purest sophistry deny death inflicted minute fraction cases much rarer infliction death punishment death inflicted trivial number cases legally available conclusion virtually inescapable inflicted arbitrarily indeed smacks little lottery system claim however rarity evidence arbitrariness informed selectivity death inflicted say extreme cases informed selectivity course value denigrated yet presumably make precisely claim executions per year five even one may many per year strengthen claim rate infliction low level highly implausible worst criminals criminals commit worst crimes selected punishment one yet suggested rational basis differentiate terms die many go prison crimes criminals simply admit distinction drawn finely explain ground execution tiny sample eligible certainly laws provide punishment attempt draw distinction cases laws apply necessarily extreme distinction credible fact example petitioner furman crime illustrates extreme nearly murderers murders also extreme furthermore procedures death cases rather resulting selection extreme cases punishment actually sanction arbitrary selection held juries may make decision whether impose death sentence wholly unguided standards governing decision mcgautha california words procedures constructed guard totally capricious selection criminals punishment death although difficult imagine facts necessary order prove death brother stewart puts wantonly freakishly inflicted need conclude arbitrary infliction patently obvious considering punishment isolated light one principle probability arbitrariness sufficiently substantial relied upon combination principles reaching judgment constitutionality punishment strong probability unusually severe degrading punishment inflicted arbitrarily may well expect society disapprove infliction turn therefore third principle examination history present operation american practice punishing criminals death reveals punishment almost totally rejected contemporary society add brother marshall comprehensive treatment english american history punishment emphasize however one significant conclusion emerges history beginning nation punishment death stirred acute public controversy although pragmatic arguments punishment frequently advanced longstanding heated controversy explained solely result differences practical wisdom particular government policy bottom battle waged moral grounds country debated whether society dignity individual value without fundamental inconsistency follow practice deliberately putting members death nations western world struggle punishment one ancient deeply rooted beliefs retribution atonement vengeance one hand beliefs personal value dignity common man born democratic movement eighteenth century well beliefs scientific approach understanding motive forces human conduct result growth sciences behavior nineteenth twentieth centuries essentially moral conflict forms backdrop past changes present operation system imposing death punishment crime practice punishing criminals death changed greatly years one significant change methods inflicting death although country never embraced violent repulsive methods employed england long time rely almost exclusively upon gallows firing squad since development supposedly humane methods electrocution late century lethal gas however hanging shooting virtually ceased concern decency human dignity moreover compelled changes circumstances surrounding execution longer society countenance spectacle public executions thought desirable deterrent criminal behavior others today reject public executions debasing brutalizing us also significant drastic decrease crimes punishment death actually inflicted esoteric capital crimes remain books since murder rape accounted nearly total executions murder alone addition crime capital murder limited noted mcgautha california country rebellion rule imposing mandatory death sentence convicted murderers initially rebellion resulted legislative definitions distinguished degrees murder retaining mandatory death sentence murder first degree yet new legislative criterion isolating crimes appropriately punishable death soon proved unsuccessful concept malice aforethought means separating murder manslaughter distinction degrees murder confusing uncertain practice even clear cases murder juries continued take law hands felt death inappropriate punishment simply refused convict capital offense phenomenon jury nullification thus remained counteract rigors mandatory death sentences bowing reality legislatures try refine definition capital homicides instead adopted method forthrightly granting juries discretion exercising fact ibid consequence virtually death sentences today discretionarily imposed finally significant nine longer inflict punishment death circumstances five others restricted extremely rare crimes thus although death penalty employed throughout history trop dulles fact history punishment one successive restriction common punishment become context continuing moral debate increasingly rare evolution punishment evidences inevitable part american scene proved progressively troublesome national conscience result movement current system administering punishment death sentences rarely imposed death even rarely inflicted course people responsible rarity imposition carrying punishment juries express ing conscience community ultimate question life death witherspoon illinois able bring vote death mere cases among thousands tried year punishment available governors elected acting us regularly commuted substantial number sentences society insists upon due process law end person unjustly put death thus ensuring many sentences carried sum made death rare punishment today progressive decline current rarity infliction death demonstrate society seriously questions appropriateness punishment today point many legislatures authorize death punishment certain crimes substantial segments public reflected opinion polls referendum votes continue support yet availability punishment statutory authorization well polls referenda amount simply approval authorization simply underscores extent society fact rejected punishment unusually severe punishment authorized application society refusal inflicted save instances inference compelling reluctance inflict indeed likelihood great punishment tolerated disuse objective indicator society view unusually severe punishment society today society inflict death upon small sample eligible criminals rejection hardly complete without becoming absolute least must conclude contemporary society views punishment substantial doubt final principle considered unusually severe degrading punishment may excessive view purposes inflicted principle related others strong probability state arbitrarily inflicting unusually severe punishment subject grave societal doubts likely also punishment shown serving penal purpose served equally well less severe punishment primary claim death necessary punishment prevents commission capital crimes effectively less severe punishment first part claim infliction death necessary stop individuals executed committing crimes sufficient answer criminal convicted capital crime poses danger society effective administration state pardon parole laws delay deny release prison techniques isolation eliminate minimize danger remains confined significant argument threat death prevents commission capital crimes deters potential criminals deterred threat imprisonment argument based upon evidence threat death superior deterrent indeed brother marshall establishes available evidence uniformly indicates although conclusively prove threat death greater deterrent effect threat imprisonment argue however entitled rely upon common human experience experience say supports conclusion death must effective deterrent less severe punishment people fear death argument runs threat death must greatest deterrent important focus upon precise import argument denied many probably capital crimes deterred threat punishment thus argument apply think rationally commission capital crimes particularly true potential criminal argument must consider risk punishment also distinguish two possible punishments concern particular type potential criminal rational person commit capital crime knowing punishment imprisonment may well rest life commit crime knowing punishment death face assumption persons exist implausible event argument appraised abstract presented theoretical question whether imaginable circumstances threat death might greater deterrent commission capital crimes threat imprisonment concerned practice punishing criminals death exists today proponents argument necessarily admit validity depends upon existence system punishment death invariably swiftly imposed system course satisfies neither condition rational person contemplating murder rape confronted certainty speedy death slightest possibility executed distant future risk death remote improbable contrast risk imprisonment near great short whatever speculative validity assumption threat death superior deterrent reason believe currently administered punishment death necessary deter commission capital crimes whatever might case substantially eligible criminals quickly put death unverifiable possibilities insufficient basis upon conclude threat death today greater deterrent efficacy threat imprisonment however another aspect argument punishment death necessary protection society infliction death urge serves manifest community outrage commission crime say concrete public expression moral indignation inculcates respect law helps assure peaceful community moreover told punishment death exert widespread moralizing influence upon community values also satisfies popular demand grievous condemnation abhorrent crimes thus prevents disorder lynching attempts private citizens take law hands question however whether death serves supposed purposes punishment whether death serves effectively imprisonment evidence whatever utilization imprisonment rather death encourages private blood feuds disorders surely danger execution handful criminals year prevent assertion death alone sufficiently emphatic denunciation capital crimes suffers defect capital crimes require punishment death order provide moral reinforcement basic values community values undermined death rarely inflicted upon criminals commit crimes furthermore certainly doubtful infliction death state fact strengthen community moral code deliberate extinguishment human life effect likely tends lower respect life brutalize values longer carry public executions event claim simply means one purpose punishment indicate social disapproval crime serve purpose laws distribute punishments according gravity crimes punish severely crimes society regards serious purpose justify particular punishment upper limit severity substantial reason believe punishment death currently administered necessary protection society purpose suggested one independent protection society retribution shortly stated retribution context means criminals put death deserve although difficult believe state today wishes proclaim adherence naked vengeance trop dulles brennan concurring claim reliance upon statutory authorization death fit punishment capital crimes retributive purpose justifies infliction past judged statutory authorization death considered fit punishment crime forgery first federal criminal statute provided mandatory death penalty crime act april stat obviously concepts justice change immutable moral order requires death murderers rapists claim death punishment necessarily refers existence certain public beliefs claim must capital crimes death alone comports society notion proper punishment administered today however punishment death justified necessary means exacting retribution criminals overwhelming number criminals commit capital crimes go prison concluded death serves purpose retribution effectively imprisonment asserted public belief murderers rapists deserve die flatly inconsistent execution random history punishment death country shows society wishes prevent crime desire kill criminals simply get even sum punishment death inconsistent four principles death unusually severe degrading punishment strong probability inflicted arbitrarily rejection contemporary society virtually total reason believe serves penal purpose effectively less severe punishment imprisonment function principles enable determine whether punishment comports human dignity death quite simply iv country founded memories stuart horrors fresh severe corporal punishments common death unique punishment practice punishing criminals death moreover widespread large acceptable society indeed without developed prison systems frequently workable alternative since time successive restrictions imposed background continuing moral controversy drastically curtailed use punishment today death uniquely unusually severe punishment examined principles applicable cruel unusual punishments clause death stands condemned fatally offensive human dignity punishment death therefore cruel unusual may longer inflict punishment crimes rather kill arbitrary handful criminals year confine prison state thereby suffers nothing loses power purpose punishment fulfilled crime repressed penalties tormenting severity repetition prevented hope given reformation criminal weems concur judgments eighth amendment provides excessive bail shall required excessive fines imposed cruel unusual punishments inflicted emphasis added cruel unusual punishments clause fully applicable due process clause fourteenth amendment robinson california gideon wainwright malloy hogan powell texas henry continued congress may introduce practice civil law preference common law may introduce practice france spain germany torturing extort confession crime say might well draw examples countries great britain tell necessity strengthening arm government must criminal equity extort confession torture order punish still relentless severity lost undone elliot debates ed significant response henry plea george nicholas simply bill rights ineffective means restraining legislative power prescribe punishments gentleman says constitution power make laws define crimes prescribe punishments consequently free torture security torture virginia declaration rights might tortured repeatedly infringed disregarded elliot debates supra george mason replied worthy gentleman mistaken assertion virginia bill rights prohibit torture one clause expressly provided man give evidence worthy gentleman must know countries torture used evidence extorted criminal another clause bill rights provided cruel unusual punishments shall inflicted therefore torture included prohibition nicholas acknowledged virginia bill rights contain prohibition gentleman right respect practice extorting confession criminal countries torture used still saw security arising bill rights separate constitution frequently violated impunity ibid referred mention cruel unusual punishments clause debates state legislatures ratification bill rights elided portion livermore remarks reads meant terms excessive bail judges understood excessive fines lies determine since livermore ask similar rhetorical questions cruel unusual punishments clause unclear whether included clause objection eighth amendment seems meaning indeed first federal criminal statute enacted first congress prescribed lashes larceny receiving stolen goods one hour pillory perjury act apr stat many state courts feeling constrained thereto incidences history weems apparently taking position one expressed opinion provision apply punishment fine imprisonment inflicted whipping post pillory burning stake breaking wheel etc ibid another said ordinarily terms imply something inhuman barbarous torture like cases selected certain tyrannical acts english monarchs illustrating meaning clause extent prohibition earlier emphasized point kemmler even stating narrow historical interpretation clause english declaration rights reference acts executive judicial departments government england language question used constitution state new york intended particularly operate upon legislature state whose control punishment crime almost wholly confided punishment prescribed offence laws state manifestly cruel unusual duty courts adjudge penalties within constitutional prohibition think equally true clause application congress emphasis added indeed weems refused even comment upon decisions state courts based upon sentences courts upon constitutional validity laws clause may therefore progressive fastened obsolete may acquire meaning public opinion becomes enlightened humane justice weems may even cruelty pain omitted must bear chain night day condemned painful well hard labor painful labor may mean exact measure must something hard labor may hard labor pressed point pain prison bars chains removed true twelve years goes perpetual limitation liberty forever kept shadow crime forever kept within voice view criminal magistrate able change domicil without giving notice authority immediately charge surveillance without permission writing may seek even scenes among people retrieve fall rectitude even hope taken subject tormenting regulations tangible iron bars stone walls oppress much continuity deprive essential liberty punishment offensive cardinal principles constitution stands subjects individual fate fear distress knows discriminations may established proscriptions may directed cause existence native land may terminated may subject banishment fate universally decried civilized people stateless condition deplored international community democracies answer suggest disastrous consequences fate may brought bear stateless person threat makes punishment obnoxious trop dulles cf brennan concurring supposed consequences greatest weight terms ultimate impact petitioner unknown unknowable indeed truth may live life minor inconvenience nevertheless denied impact expatriation especially statelessness upshot may severe expatriation respect constitutes especially demoralizing sanction uncertainty consequent psychological hurt must accompany one becomes outcast land must reckoned substantial factor ultimate judgment cruel excess imprisonment accompanies follows imprisonment unusual character punishments come condemnation bill rights account degree kind weems may involved physical mistreatment primitive torture instead total destruction individual status organized society form punishment primitive torture destroys individual political existence centuries development punishment strips citizen status national international political community existence sufferance country happens find one country may accord rights presumably long remained country enjoy limited rights alien country need stateless furthermore enjoyment even limited rights alien might subject termination time reason deportation short expatriate lost right rights trop dulles phrase constitution taken directly english declaration rights specific incident giving rise provision perjury trial titus oates none punishments inflicted upon oates amounted torture context oates case cruel unusual seems meant severe punishment unauthorized statute within jurisdiction impose granucci cruel unusual punishments inflicted original meaning rev thus irregularity anomaly oates treatment extreme goldberg dershowitz declaring death penalty unconstitutional harv rev although english provision intended restrain judicial executive power see supra principle course fully applicable clause primarily restraint upon legislative power case philippine territory struck punishment ha fellow american legislation weems examining punishments imposed philippine law similar well serious crimes declared contrast exhibit ed difference unrestrained power exercised spirit constitutional limitations formed establish justice trop dulles supra law congress punishing wartime desertion expatriation held unconstitutional emphasized civilized nations world virtual unanimity statelessness imposed punishment crime severe punishment inflicted elsewhere serious crimes punished less severely strong inference state exercising arbitrary unrestrained power weems supra summarized holding wilkerson utah follows pointed death usual punishment murder prevailed territory many years inflicted shooting also mode execution usual military law hence concluded forbidden constitution cruel unusual said trop dulles supra occasions consider meaning clause precise distinctions cruelty unusualness seem drawn word unusual meaning apart word cruel however meaning ordinary one signifying something different generally done statements prior cases indicating word unusual distinct meaning perceive nothing unusual punishment pervear commonwealth wall judgment mankind punishment unusual cruel one vermont field dissenting unusual character weems supra punishment inflicted certainly unusual ex rel milwaukee social democratic pub burleson brandeis dissenting punishment inflicted unusual character far known unprecedented american legal history precedent cruel unusual unlawful louisiana ex rel francis resweber burton dissenting sure imprisonment ninety days abstract punishment either cruel unusual robinson california danger subjective judgment acute question posed whether punishment shocks fundamental instincts civilized man louisiana ex rel francis resweber supra burton dissenting whether man right feeling heart refrain shuddering vermont supra field dissenting whether cry horror rise every civilized christian community country ibid justice frankfurter concurring opinion louisiana ex rel francis resweber supra instructive warned finding personal disapproval reflection less prevailing condemnation enforcing private view rather consensus society opinion purposes due process standard enjoined constitution conclusions follows bring believe state procedure offends principle justice rooted traditions conscience people say repugnant conscience mankind yet nowhere opinion explanation arrived conclusions cf louisiana ex rel francis resweber supra traditional humanity modern law forbids infliction unnecessary pain execution death sentence may fact appeared earlier pervear commonwealth stated perceive nothing excessive cruel unusual punishment object law protect community manifold evils intemperance mode adopted prohibiting penalties sale keeping sale intoxicating liquors without license usual mode adopted many perhaps wholly within discretion state legislatures justice field apparently based conclusion upon intuitive sense punishment disproportionate criminal moral guilt although also observed punishment greatly beyond anything required humane law offences vermont cf trop dulles since wartime desertion punishable death argument penalty denationalization excessive relation gravity crime state thereby suffers nothing loses power purpose punishment fulfilled crime repressed penalties tormenting severity repetition prevented hope given reformation criminal weems principle severe punishment must excessive course mean severe punishment constitutional merely necessary state example inflict punishment condemned history punishment matter necessary intolerably offensive human dignity point simply unnecessary infliction suffering also offensive human dignity fifth amendment provides person shall held answer capital otherwise infamous crime unless presentment indictment grand jury shall person subject offence twice put jeopardy life limb deprived life liberty property without due process law emphasis added one course contends reference fifth amendment jeopardy limb provides perpetual constitutional sanction corporal punishments branding earcropping common punishments bill rights adopted cf infra california pointed respect california constitution constitution expressly proscribes cruel unusual punishments mere speculation conjecture ascribe framers intent exempt capital punishment compass provision solely time death penalty commonly accepted provided elsewhere constitution special safeguards application people anderson cal cf mcgautha california separate opinion black clause forbids cruel unusual punishments view words read outlaw capital punishment penalty common use authorized law countries ancestors came time clause adopted inconceivable framers intended end capital punishment clause expressly noted constitutionality punishment challenged wilkerson utah indeed may contention made absence statutory sanction sentencing possessed authority prescribe mode execution cf mcelvaine brush held case kemmler legislature state new york determined electrocution inflict cruel unusual punishment courts sustained determination unable perceive state thereby abridged privileges immunities petitioner deprived due process law also asserted constitution prohibits cruelty inherent method punishment prohibit necessary suffering involved method employed extinguish life humanely authority cited assertion event distinction drawn appears meaningless nondeath case trop dulles said day still widely accepted death said violate constitutional concept cruelty emphasis added statement course left open future constitutionality punishment life stake course another important factor creating extraordinary situation difference capital offenses basis differentiation law diverse ways distinction becomes relevant williams georgia frankfurter penalty death like state judges tempted strain evidence even close cases law order give doubtfully condemned man another chance stein new york jackson death cases doubts presented resolved favor accused andres reed justice harlan expressed point strongly concede whatever process due offender faced fine prison sentence necessarily satisfies requirements constitution capital case distinction means novel negligible literally life death reid covert concurring result course many years distinguished death cases others purposes constitutional right counsel see powell alabama betts brady bute illinois see report royal commission capital punishment pp hearings subcommittee criminal laws procedures senate committee judiciary testimony clinton duffy barnes teeters new horizons criminology ed chessman trial ordeal disalle power life death duffy hirschberg men women eshelman death row chaplain hammer life death lamott chronicles san quentin lawes life death sing sing rubin cruel unusual punishment death penalty crime delin comment death penalty cases rev brief amici curiae filed james bennett clinton duffy robert sarver harry tinsley lawrence wilson see barnes teeters supra ed camus reflections guillotine camus resistance rebellion death duffy hirschberg supra hammer supra rubin law criminal correction bluestone mcgahee reaction extreme stress impending death execution amer psychiatry gottlieb capital punishment crime delin west medicine capital punishment hearings subcommittee criminal laws procedures senate committee judiciary ziferstein crime punishment center magazine comment death penalty cases rev note mental suffering sentence death cruel unusual punishment iowa rev state course purposely impose lengthy waiting period order inflict suffering impact upon individual less severe account answer assert long delays exist condemned criminals avail full panoply legal rights right subjected inhuman treatment course played right pursue due process law apart plain truth society demands even wishes criminal legal avenues explored execution finally carried recognized trop expatriation punishment short death death however distinguished ground still widely accepted ibid stephen capital punishments fraser magazine department justice national prisoner statistics capital punishment last execution took place june commutations averaged per year ibid transfers mental institutions averaged three per year ibid four methods disposition averaged per year ibid specific figures available starting resentences grants new trials orders resentencing dismissals indictments reversals convictions deaths suicide natural causes national prisoner statistics executions june national prisoner statistics capital punishment national prisoner statistics supra period prisoners entered death row including returned following new trials treatment mental institutions dispositions execution leaving prisoners might executed actually ibid victim surprised furman act burglarizing victim home middle night escaping furman killed victim one pistol shot fired closed kitchen door outside trial furman gave version killing got charged murder admit admit going folks home caught coming back backing wire floor coming backwards fell back intend kill nobody know behind door gun went know nothing murder arrested gun went floor got ran app admission open accused period involved commission criminal act home deceased accidentally tripped wire leaving premises causing gun go together facts circumstances surrounding death deceased violent means sufficient support verdict guilty murder furman state sellin death penalty report model penal code project american law institute eight still employ hanging method execution one utah also employs shooting nine accounted less executions since national prisoner statistics supra alaska hawaii iowa maine michigan minnesota oregon west virginia wisconsin abolished death punishment crimes addition california held punishment unconstitutional state counterpart cruel unusual punishments clause people anderson cal new mexico new york north dakota rhode island vermont almost totally abolished death punishment crimes national prisoner statistics supra indeed five might well considered de facto abolition north dakota rhode island restricted punishment respectively carried execution since least executions new york vermont new mexico since restricted punishment respectively january none five even single prisoner sentence death addition six retaining punishment books generally applicable form made virtually use since idaho montana nebraska new hampshire south dakota wyoming carried total executions january six total three prisoners sentences death hence assuming executions years state averaged one execution every years also limited argument death necessary punishment criminals already serving subject sentence life imprisonment punishment available imprisonment said criminals nothing lose committing crimes accordingly threat death sole deterrent life imprisonment misnomer today rarely ever crimes carry mandatory life sentence without possibility parole possibility ensures criminals reach point crimes free consequences moreover argument simply assertion threat death effective deterrent threat increased imprisonment denial release parole noted simply evidence support justice stewart concurring penalty death differs forms criminal punishment degree kind unique total irrevocability unique rejection rehabilitation convict basic purpose criminal justice unique finally absolute renunciation embodied concept humanity reasons least two brothers concluded infliction death penalty constitutionally impermissible circumstances eighth fourteenth amendments case strong one find unnecessary reach ultimate question decide see ashwander tennessee valley authority brandeis concurring opinions justices today set admirable thorough detail origins judicial history eighth amendment guarantee infliction cruel unusual punishments origin judicial history capital punishment thus need review historical materials say therefore briefly stated legislatures state federal sometimes specified penalty death shall mandatory punishment every person convicted engaging certain designated criminal conduct congress example provided anyone convicted acting spy enemy time war shall put death rhode island legislature ordained death penalty life term prisoner commits murder massachusetts passed law imposing death penalty upon anyone convicted murder commission forcible rape ohio law imposes mandatory penalty death upon assassin president governor state reviewing death sentences imposed similar laws faced need decide whether capital punishment unconstitutional crimes circumstances need decide whether legislature state federal constitutionally determine certain criminal conduct atrocious society interest deterrence retribution wholly outweighs considerations reform rehabilitation perpetrator despite inconclusive empirical evidence automatic penalty death provide maximum deterrence score say agree retribution constitutionally impermissible ingredient imposition punishment instinct retribution part nature man channeling instinct administration criminal justice serves important purpose promoting stability society governed law people begin believe organized society unwilling unable impose upon criminal offenders punishment deserve sown seeds anarchy vigilante justice lynch law constitutionality capital punishment abstract however us cases georgia texas legislatures provided death penalty shall imposed upon found guilty forcible rape georgia legislature ordained death shall automatic punishment murder word neither state made legislative determination forcible rape murder deterred imposing penalty death upon perpetrate offenses justice white tellingly puts legislative frustrated penalty never imposed post instead death sentences us product legal system brings believe within core eighth amendment guarantee cruel unusual punishments guarantee applicable fourteenth amendment robinson california first place clear sentences cruel sense excessively go beyond degree kind punishments state legislatures determined necessary weems second place equally clear sentences unusual sense penalty death infrequently imposed murder imposition rape extraordinarily rare rest conclusion upon two propositions alone death sentences cruel unusual way struck lightning cruel unusual people convicted rapes murders many reprehensible petitioners among capriciously selected random handful upon sentence death fact imposed concurring brothers demonstrated basis discerned selection sentenced die constitutionally impermissible basis race see mclaughlin florida racial discrimination proved put one side simply conclude eighth fourteenth amendments tolerate infliction sentence death legal systems permit unique penalty wantonly freakishly imposed reasons concur judgments see dissenting opinion chief justice post concurring opinion justice douglas ante concurring opinion justice brennan ante concurring opinion justice marshall post dissenting opinion justice blackmun post dissenting opinion justice powell post see dissenting opinion chief justice post concurring opinion justice brennan ante concurring opinion justice marshall post dissenting opinion justice powell post laws ann mass laws ohio rev code tit many statistical studies comparing crime rates jurisdictions without capital punishment jurisdictions abolition capital punishment indicated little measurable deterrent effect see bedau death penalty america rev remains uncertainty however difficulty identifying holding constant relevant variables see comment death penalty cases rev see also dissenting opinion chief justice post concurring opinion justice marshall post georgia law time conviction sentencing petitioner left jury choice death penalty life imprisonment imprisonment labor penitentiary less one year years code ann supp effective prior july current georgia provision punishment forcible rape continues leave broad sentencing leeway crim code rev effective july texas law petitioner sentenced provides person guilty rape shall punished death confinement penitentiary life term years less five texas penal code art georgia law petitioner sentenced left jury choice death penalty life imprisonment code ann supp effective prior july current georgia law provides similar sentencing leeway crim code rev effective july see dissenting opinion chief justice post concurring opinion justice brennan ante petitioner branch sentenced death texas july petitioner furman sentenced death georgia september petitioner jackson sentenced death georgia december former attorney general testified congress small capricious selection offenders put death persons convicted crimes imprisoned statement attorney general clark hearings subcommittee criminal laws procedures senate committee judiciary mcgautha california dealt claims due process equal protection clauses fourteenth amendment expressly declined case consider claims constitutional guarantee cruel unusual punishments see limited grant certiorari see concurring opinion justice douglas ante concurring opinion justice marshall post cf note study california penalty jury cases stan rev dissenting opinion chief justice post justice white concurring facial constitutionality statutes requiring imposition death penalty murder narrowly defined categories murder rape present quite different issues eighth amendment posed cases us joining judgments therefore intimate death penalty unconstitutional per se system capital punishment comport eighth amendment question ably argued several brethren presented cases need decided narrower question address concerns constitutionality capital punishment statutes legislature authorizes imposition death penalty murder rape legislature mandate penalty particular class kind case legislative frustrated penalty never imposed delegates judges juries decisions cases penalty utilized judges juries ordered death penalty infrequency odds much imposition execution penalty respect convicted murderer rapist context must consider whether execution petitioners violate eighth amendment begin consider near truism death penalty seldom imposed cease credible deterrent measurably contribute end punishment criminal justice system perhaps true matter infrequently convicted rape murder executed penalty imposed disproportionate crime executed may deserve exactly received also clear executed defendants finally completely incapacitated committing rape murder crime imposition penalty reaches certain degree infrequency doubtful existing general need retribution measurably satisfied said confidence society need specific deterrence justifies death many like circumstances life imprisonment shorter prison terms judged sufficient community values measurably reinforced authorizing penalty rarely invoked important major goal criminal law deter others punishing convicted criminal substantially served penalty seldom invoked ceases credible threat essential influence conduct others present purposes accept morality utility punishing one person influence another accept also effectiveness punishment generally need reject death penalty effective deterrent lesser punishment common sense experience tell us laws become ineffective measures controlling human conduct death penalty unless imposed sufficient frequency make little contribution deterring crimes may exacted imposition execution death penalty obviously cruel dictionary sense penalty considered cruel unusual punishment constitutional sense thought justified social ends deemed serve moment ceases realistically purposes however emerging question whether imposition circumstances violate eighth amendment view imposition pointless needless extinction life marginal contributions discernible social public purposes penalty negligible returns state patently excessive cruel unusual punishment violative eighth amendment also judgment point reached respect capital punishment presently administered statutes involved cases concededly difficult prove general proposition capital punishment however administered effectively serves ends criminal law imprisonment however may avoid conclusion statutes us administered penalty infrequently imposed threat execution attenuated substantial service criminal justice need restate facts figures appear opinions brethren prove conclusion data like brethren must arrive judgment state conclusion based years almost daily exposure facts circumstances hundreds hundreds federal state criminal cases involving crimes death authorized penalty conclusion said death penalty exacted great infrequency even atrocious crimes meaningful basis distinguishing cases imposed many cases short policy vesting sentencing authority primarily juries decision largely motivated desire mitigate harshness law bring community judgment bear sentence well guilt innocence effectively achieved aims capital punishment within confines statutes us practical purposes run course judicial review definition often involves conflict judicial legislative judgment constitution means requires respect eighth amendment cases come us different posture seems conceded amendment imposes obligations judiciary judge constitutionality punishment punishments amendment bar whether legislatively approved inevitably occasions differ congress state legislatures respect validity punishment also cases shall strongly disagree among unfortunately one see case different kind many others although may wider impact provoke sharper disagreement respect add past present legislative judgment respect death penalty loses much force viewed light recurring practice delegating sentencing authority jury fact jury discretion without violating trust statutory policy may refuse impose death penalty matter circumstances crime legislative policy thus necessarily defined legislatively authorized juries judges exercising discretion regularly conferred upon judgment done cases violated eighth amendment concur judgments justice marshall concurring three cases present question whether death penalty cruel unusual punishment prohibited eighth amendment constitution furman convicted murder shooting father five children discovered furman broken home early one morning nos involve state convictions forcible rape jackson found guilty rape course robbery victim home rape accomplished held pointed ends scissors victim throat branch also convicted rape committed victim home weapon utilized physical force threats physical force employed criminal acts confronted ugly vicious reprehensible acts sheer brutality minimized called upon condone penalized conduct asked examine penalty imposed petitioners determine whether violates eighth amendment question whether condone rape murder surely whether capital punishment punishment longer consistent therefore violative eighth amendment elasticity constitutional provision consideration presents dangers little much hence must proceed caution answer question presented first examining historical derivation eighth amendment construction given past exploring history attributes capital punishment country answer question presented objectivity proper measure candor critical inquiry relevant material must marshaled sorted forthrightly examined must precise standards judgment utilizing exacting examining relevant material light standards candor compels confess oblivious fact truly matter life death involve lives three petitioners almost condemned men women country currently awaiting execution fact affect ultimate decision necessitates decision free possibility error eighth amendment ban cruel unusual punishments derives english law john whitgift archbishop canterbury turned high commission permanent ecclesiastical commission began use torture extract confessions persons suspected various offenses sir robert beale protested cruel barbarous torture violated magna carta protests made vain cruel punishments confined accused crimes notoriously applied even greater relish convicted blackstone described ghastly detail myriad inhumane forms punishment imposed persons found guilty large number offenses death course usual result treason trials bloody assizes followed abortive rebellion duke monmouth marked culmination parade horrors historians believe event finally spurred adoption english bill rights containing progenitor prohibition cruel unusual punishments conduct lord chief justice jeffreys trials described insane lust cruelty stimulated orders king james ii assizes received wide publicity puritan pamphleteers doubtless influence adoption cruel unusual punishments clause legislative history english bill rights indicates assizes may critical adoption clause widely thought william mary orange crossed channel invade england james ii fled parliament summoned session committee appointed draft general statements containing things absolutely necessary considered better securing religion laws liberties initial draft bill rights prohibited illegal punishments later draft referred infliction james ii illegal cruel punishments declared cruel unusual punishments prohibited use word unusual final draft appears inadvertent legislative history led least one legal historian conclude cruel unusual punishments clause bill rights first objection imposition punishments unauthorized statute outside jurisdiction sentencing second reiteration english policy disproportionate penalties primarily reaction torture high commission harsh sentences assizes whether english bill rights prohibition cruel unusual punishments properly read response excessive illegal punishments reaction barbaric objectionable modes punishment doubt whatever borrowing language including eighth amendment founding fathers intended outlaw torture cruel punishments precise language used eighth amendment first appeared america june virginia declaration rights read excessive bail required excessive fines imposed cruel unusual punishments inflicted language drawn verbatim english bill rights adopted similar clauses evidence debates various state conventions called upon ratify constitution great concern omission prohibition torture cruel punishments virginia convention offers clues founding fathers mind prohibiting cruel unusual punishments one point george mason advocated adoption bill rights patrick henry concurred stating constitution best barriers human rights thrown away additional reason bill rights congress general powers may fully go business human legislation may legislate criminal cases treason lowest offence petty larceny may define crimes prescribe punishments definition crimes trust directed wise representatives governed come punishments latitude left dependence put virtue representatives says bill rights excessive bail required excessive fines imposed cruel unusual punishments inflicted therefore calling gentlemen compose congress prescribe trials define punishments without control find sentiments similar bill rights let loose depart genius country business legislation members congress loose restriction imposing excessive fines demanding excessive bail inflicting cruel unusual punishments prohibited declaration rights distinguished ancestors admit tortures cruel barbarous punishment congress may introduce practice civil law preference common law may introduce practice france spain germany torturing extort confession crime say might well draw examples countries great britain tell necessity strengthening arm government must criminal equity extort confession torture order punish still relentless severity lost undone thus history clause clearly establishes intended prohibit cruel punishments must turn case law discover manner courts given meaning term cruel ii squarely face task interpreting cruel unusual punishments language first time wilkerson utah although language received cursory examination several prior cases see pervear commonwealth wall wilkerson unanimously upheld sentence public execution shooting imposed pursuant conviction premeditated murder opinion justice clifford wrote difficulty attend effort define exactness extent constitutional provision provides cruel unusual punishments shall inflicted safe affirm punishments torture others line unnecessary cruelty forbidden amendment constitution eleven years passed faced challenge specific punishment eighth amendment case kemmler chief justice fuller wrote opinion unanimous upholding electrocution permissible mode punishment ostensibly held eighth amendment apply apparent nature punishment involved examined due process clause fourteenth amendment held punishment objectionable today kemmler stands primarily proposition punishment necessarily unconstitutional simply unusual long legislature humane purpose selecting two years later vermont reaffirmed eighth amendment applicable found guilty counts selling liquor violation vermont law fine offense costs prosecution imposed committed prison fine costs paid provided paid specified date confined house corrections days approximately years hard labor three justices field harlan brewer dissented maintained cruel unusual punishments clause applicable case violated justice field wrote designation cruel unusual true usually applied punishments inflict torture rack thumbscrew iron boot stretching limbs like attended acute pain suffering inhibition directed punishments character mentioned punishments excessive length severity greatly disproportioned offences charged whole inhibition excessive used approach seven years later landmark case weems weems officer bureau coast guard transportation government philippine islands convicted falsifying public official document sentenced years incarceration hard labor chains ankles unusual loss civil rights perpetual surveillance called upon determine whether cruel unusual punishment found emphasized constitution ephemeral enactment one designed meet passing occasions recognizing ime works changes brings existence new conditions purposes commented application constitution contemplation may striking penalty imposed weems examined punishment relation offense compared punishment inflicted crimes imposed jurisdictions concluded punishment excessive justices white holmes dissented argued cruel unusual prohibition meant prohibit things objectionable time constitution adopted weems landmark case represents first time invalidated penalty prescribed legislature particular offense made plain beyond reasonable doubt excessive punishments objectionable inherently cruel thus apparent dissenters position become opinion weems weems followed two cases added little knowledge scope cruel unusual language badders ex rel milwaukee social democratic publishing burleson came another landmark case louisiana ex rel francis resweber francis convicted murder sentenced electrocuted first time current passed mechanical failure die thereafter francis sought prevent second electrocution ground cruel unusual punishment eight members assumed applicability eighth amendment virtually unanimous agreeing traditional humanity modern law forbids infliction unnecessary pain split whether francis circumstances forced undergo excessive pain five members treated case like kemmler held legislature adopted electrocution humane purpose thwarted desire reduce pain suffering cases may inadvertently increased suffering one particular case four dissenters felt case remanded facts weems concerned excessive punishments resweber perhaps significant analysis cruel unusual punishment questions first advocated dissenters last firmly entrenched minds entire trop dulles marked next major cruel unusual punishment case trop american declared lost citizenship reason conviction wartime desertion writing justices black douglas whittaker chief justice warren concluded loss citizenship amounted cruel unusual punishment violated eighth amendment emphasizing flexibility inherent words cruel unusual chief justice wrote amendment must draw meaning evolving standards decency mark progress maturing society approach problem utilized weems scrutinized severity penalty relation offense examined practices civilized nations world concluded involuntary statelessness excessive therefore unconstitutional punishment justice frankfurter dissenting urged expatriation punishment even excessive criticized conclusion arrived chief justice approach eighth amendment question identical whereas trop majority failed agree whether loss citizenship cruel unusual punishment four years later majority agree robinson california sentence days imprisonment violation california statute making crime addicted use narcotics cruel unusual justice stewart writing opinion reiterated said weems chief justice warren wrote trop cruel unusual punishment clause static concept one must continually light contemporary human knowledge fact penalty attack days evidences willingness carefully examine possible excessiveness punishment given case even involved penalty familiar widely accepted distinguished robinson powell texas sustained conviction drunkenness public place fine four justices dissented ground robinson controlling analysis cases conclusion whether punishment excessive differed powell marked last time prior today decision occasion construe meaning term cruel unusual punishment several principles emerge prior cases serve beacon enlightened decision instant cases iii perhaps important principle analyzing cruel unusual punishment questions one reiterated prior opinions cruel unusual language must draw meaning evolving standards decency mark progress maturing society thus penalty permissible one time nation history necessarily permissible today fact therefore individual justices may past expressed opinion death penalty constitutional binding us fair reading wilkerson utah supra kemmler supra louisiana ex rel francis resweber supra certainly indicate acceptance sub silentio capital punishment constitutionally permissible several justices also expressed individual opinions death penalty constitutional yet justices others times expressed concern capital punishment holding directly point nature eighth amendment dictate unless recent decision existed stare decisis bow changing values question constitutionality capital punishment given moment history remain open faced open question must establish standards decision decisions discussed previous section imply punishment may deemed cruel unusual one four distinct reasons first certain punishments inherently involve much physical pain suffering civilized people tolerate use rack thumbscrew modes torture see vermont field dissenting regardless public sentiment respect imposition one punishments particular case one moment history constitution prohibits punishments barred since adoption bill rights second punishments unusual signifying previously unknown penalties given offense cf ex rel milwaukee social democratic publishing burleson brandeis dissenting punishments intended serve humane purpose may constitutionally permissible kemmler louisiana ex rel francis resweber prior decisions leave open question much word unusual adds word cruel previously indicated use word unusual english bill rights inadvertent nothing history eighth amendment give flesh intended meaning light meager history exist one suppose innovative punishment probably constitutional cruel punishment superseded need decide question however capital punishment certainly recent phenomenon third penalty may cruel unusual excessive serves valid legislative purpose weems supra decisions previously discussed replete assertions one primary functions cruel unusual punishments clause prevent excessive unnecessary penalties wilkerson utah vermont field dissenting weems louisiana ex rel francis resweber supra punishments unconstitutional even though popular sentiment may favor chief justice justice powell seek ignore minimize aspect prior decisions since justice field first suggested whole inhibition prohibition cruel unusual punishments excessive vermont steadfastly maintained penalty unconstitutional whenever unnecessarily harsh cruel founders country intended fellow citizens believed eighth amendment provided basis decision robinson california supra plurality opinion chief justice warren trop dulles supra decision weems supra see also bradford enquiry far punishment death necessary pennsylvania reprinted legal hist also noted cruel unusual language eighth amendment immediately follows language prohibits excessive bail excessive fines entire thrust eighth amendment short excessive fourth punishment excessive serves valid legislative purpose still may invalid popular sentiment abhors example evidence clearly demonstrated capital punishment served valid legislative purposes punishment nevertheless unconstitutional citizens found morally unacceptable general abhorrence part public effect equate modern punishment barred since adoption eighth amendment prior cases striking penalty ground notion changing values requires recognize existence immediately obvious since capital punishment recent phenomenon violates constitution excessive unnecessary abhorrent currently existing moral values must proceed history capital punishment iv capital punishment used penalize various forms conduct members society since beginnings civilization precise origins difficult perceive evidence roots lie violent retaliation members tribe group tribe group persons committing hostile acts toward group members thus infliction death penalty objectionable conduct appears beginnings private vengeance individuals gradually ceded personal prerogatives sovereign power sovereign accepted authority punish wrongdoing part divine right rule individual vengeance gave way vengeance state capital punishment became public function capital punishment worked way laws various countries inflicted variety macabre horrific ways reign henry ii english law first recognized crime personal affair victim perpetrator early history capital punishment england set forth mcgautha california need repeated english law recognized eight major capital crimes treason petty treason killing husband wife murder larceny robbery burglary rape arson tudor stuart kings added many crimes list punishable death nearly george ii added nearly george iii increased number shortly capital offenses numbered included crimes person property even public peace england may retrospect look particularly brutal blackstone points england fairly civilized compared rest europe capital punishment common penalty american colonies capitall lawes dating drawn massachusetts bay colony first written expression capital offenses known exist country laws make following crimes capital offenses idolatry witchcraft blasphemy murder assault sudden anger sodomy buggery adultery statutory rape rape manstealing perjury capital trial rebellion crime accompanied reference old testament indicate source known certainty exactly even laws enacted drafted vigorously laws enforced know colonies variety laws spanned spectrum severity century list crimes became much less theocratic much secular average colony capital crimes far fewer existed england part reason scarcity labor colonies still many executions ith county jails inadequate insecure criminal population seemed best controlled death mutilation fines even century opposition capital punishment colonies great act william penn prescribed death premeditated murder treason although reform long lived philadelphia society relieving distressed prisoners organized followed years later philadelphia society alleviating miseries public prisons groups pressured reform penal laws including capital offenses benjamin rush soon drafted america first reasoned argument capital punishment entitled enquiry effects public punishments upon criminals upon society william bradford attorney general pennsylvania later attorney general conducted enquiry far punishment death necessary pennsylvania concluded doubtful whether capital punishment necessary information obtained immediately eliminated offenses except high treason murder enquiries rush bradford pennsylvania movement toward abolition death penalty little immediate impact practices early governors george dewitt clinton daniel tompkins unsuccessfully urged new york legislature modify end capital punishment period edward livingston american lawyer later became secretary state minister france president andrew jackson appointed louisiana legislature draft new penal code center proposal total abolition capital punishment introductory report system penal law prepared state louisiana contained systematic rebuttal arguments favoring capital punishment drafted published work tremendous impetus abolition movement next half century rising tide sentiment capital punishment pennsylvania abolished public executions two years later report capital punishment made maine legislature published led law prohibited executive issuing warrant execution within one year criminal sentenced courts totally discretionary character law odds almost prior practices maine law resulted little enforcement death penalty surprising since legislature idea passing law affirmative burden placed governor issue warrant one full year trial effective deterrent exercise power law spread throughout new england led michigan first state abolish capital punishment feeling grew literature period pointed agony condemned man expressed philosophy repentance atoned worst crimes true repentance derived fear harmony nature societies abolition existed massachusetts new york pennsylvania tennessee ohio alabama louisiana indiana iowa new york massachusetts pennsylvania constantly abolition bills legislatures rhode island followed footsteps michigan partially abolished capital punishment wisconsin totally abolished death penalty following year abolish death penalty greatly reduced scope ew outside south one two capital offenses addition treason murder civil war halted much abolition furor one historian said fter civil war men finer sensibilities revolted execution fellow seemed hardened blunted attention previously given abolition diverted prison reform abolitionist movement still existed however maine abolished death penalty restored abolished iowa abolished capital punishment colorado began erratic period de facto abolition revival kansas also abolished de facto law one great success abolitionist movement period almost complete elimination mandatory capital punishment legislatures formally gave juries discretion refrain imposing death penalty phenomenon jury nullification juries refused convict cases believed death inappropriate penalty experienced tennessee first state give juries discretion laws quickly followed suit curtis new york introduced federal bill ultimately became law reduced number federal capital offenses treason murder rape gave jury sentencing discretion murder rape cases become abolitionist jurisdictions nervous tension world war four reinstituted capital punishment promising movements came grinding halt period following first world war abolitionist movement never regained momentum easy ascertain movement lost vigor certainly much attention diverted penal reform economic crisis depression exhausting years struggle world war ii also executions frequent public spectacles became infrequent private affairs manner inflicting death changed horrors punishment therefore somewhat diminished minds general public recent years renewed interest modifying capital punishment new york moved toward abolition several bill introduced senate abolish capital punishment federal crimes died committee present time district columbia federal jurisdictions authorize death penalty least one crime fruitless attempt categorize approach capital punishment taken various sufficient note murder crime often punished death followed kidnaping treason rape capital offense federal system foregoing history demonstrates capital punishment carried europe america tempered considerably times history strong abolitionist movements existed never completely successful union one time abolished death penalty partial success however especially reducing number capital crimes replacing mandatory death sentences jury discretion developing humane methods conducting executions historical foray leads question faced whether american society reached point abolition dependent successful grass roots movement particular jurisdictions demanded eighth amendment answer question must first examine whether death penalty today tantamount excessive punishment order assess whether death excessive unnecessary penalty necessary consider reasons legislature might select punishment one offenses examine whether less severe penalties satisfy legitimate legislative wants well capital punishment death penalty unnecessary cruelty therefore unconstitutional six purposes conceivably served capital punishment retribution deterrence prevention repetitive criminal acts encouragement guilty pleas confessions eugenics economy considered seriatim concept retribution one misunderstood criminal jurisprudence principal source confusion derives fact dealing concept people confuse question men fact punish question justifies men punishing men may punish number reasons one reason punishment morally good morally justifiable someone broken law thus correctly said breaking law sine qua non punishment words tolerate punishment imposed one deviates norm established criminal law fact state may seek retribution broken laws mean retribution may become state sole end punishing jurisprudence always accepted deterrence general deterrence individual recidivism isolation dangerous persons rehabilitation proper goals punishment see trop dulles brennan concurring retaliation vengeance retribution roundly condemned intolerable aspirations government free society punishment retribution condemned scholars centuries eighth amendment adopted prevent punishment becoming synonymous vengeance weems course holding weems punishment violated eighth amendment contrasted penalties provided offenses concluded contrast shows different exercises legislative judgment greater condemns sentence case cruel unusual exhibits difference unrestrained power exercised spirit constitutional limitations formed establish justice state thereby suffers nothing loses power purpose punishment fulfilled crime repressed penalties tormenting severity repetition prevented hope given reformation criminal emphasis added preserve integrity eighth amendment consistently denigrated retribution permissible goal punishment undoubtedly correct demand vengeance part many persons community one convicted particularly offensive act times cry heard morality requires vengeance evidence society abhorrence act eighth amendment insulation baser selves cruel unusual language limits avenues vengeance channeled language empty return rack tortures possible given case justice story wrote eighth amendment limitation punishment seem wholly unnecessary free government since scarcely possible department government authorize justify atrocious conduct reach opposite conclusion free society men recognize inherent weaknesses seek compensate means constitution history eighth amendment supports conclusion retribution sake improper hotly contested issue regarding capital punishment whether better life imprisonment deterrent crime contrary position argued firm opinion death penalty severe sanction life imprisonment admittedly persons rather die languish prison lifetime whether able choose death alternative far different question presented whether state impose death punishment death irrevocable life imprisonment death course makes rehabilitation impossible life imprisonment short death always viewed ultimate sanction seems perfectly reasonable continue view must kept mind question considered simply whether capital punishment deterrent whether better deterrent life imprisonment complex problem determining deterrent efficacy death penalty capital punishment obviously failed deterrent murder committed number failures number successes one ever know many people refrained murder fear hanged nub problem exacerbated paucity useful data fortunate countries however generally considered world reliable statistics two strongest arguments favor capital punishment deterrent logical hypotheses devoid evidentiary support persuasive nonetheless first proposition best stated sir james stephen punishment deters men effectually committing crimes punishment death one propositions difficult prove simply obvious proof make possible display ingenuity arguing whole experience mankind direction threat instant death one resort always made absolute necessity producing result one goes certain inevitable death except compulsion put matter way ever yet criminal sentenced death brought die refuse offer commutation sentence severest secondary punishment surely man give life secondary punishment however terrible hope death death terrors described forcibly abolitionists attempt disprove hypotheses amassing statistical evidence demonstrate correlation criminal activity existence nonexistence capital sanction almost evidence involves crime murder since murder punishable death jurisdictions offenses almost executions since pursuant murder convictions thorsten sellin one leading authorities capital punishment urged death penalty deters prospective murderers following hypotheses true murders less frequent death penalty abolished factors equal comparisons nature must made among alike possible respects character population social economic condition etc order introduce factors known influence murder rates serious manner present one murders increase death penalty abolished decline restored deterrent effect greatest therefore affect murder rates powerfully communities crime occurred consequences strongly brought home population law enforcement officers safer murderous attacks death penalty without omitted sellin statistics demonstrate correlation murder rate presence absence capital sanction compares similar characteristics finds irrespective position capital punishment similar murder rates new england example correlation executions homicide rates true midwestern others studied nations great britain acknowledged validity sellin statistics sellin also concludes abolition reintroduction death penalty effect homicide rates various involved conclusion borne others made similar inquiries experience countries despite problems statistics sellin evidence relied upon international studies capital punishment statistics also show deterrent effect capital punishment greater communities executions take place communities fact evidence imposition capital punishment may actually encourage crime rather deter police law enforcement officers strongest advocates capital punishment evidence overwhelming police safer communities retain sanction abolished also substantial body data showing existence death penalty virtually effect homicide rate prisons persons sentenced death murderers murderers tend model prisoners sum support theory capital punishment effective deterrent found hypotheses began occasional stories specific individual deterred contemplated criminal act claims specific deterrence often spurious however may counterbalanced tendency capital punishment incite certain crimes nations committee studied capital punishment found generally agreed retentionists abolitionists whatever opinions validity comparative studies deterrence data exist show correlation existence capital punishment lower rates capital crime despite fact abolitionists proved beyond reasonable doubt succeeded showing clear convincing evidence capital punishment necessary deterrent crime society must shirk judicial responsibilities failed accept presently existing statistics demanded proof may possess proof anyone ever hope assemble subject even proof forthcoming believe enough evidence presently available decision case william bradford studied utility death penalty pennsylvania found probably deterrent effect evidence needed edward livingston reached similar conclusion respect deterrence upon completion study louisiana virtually every study since undertaken reached result light massive amount evidence us see alternative conclude capital punishment justified basis deterrent effect much must said death penalty device prevent recidivism obvious murderer executed possibly commit another offense fact however murderers extremely unlikely commit crimes either prison upon release part first offenders released prison known become model citizens furthermore persons commit capital crimes executed respect sentenced die critical note jury never asked determine whether likely recidivists light facts capital punishment justified purely basis preventing recidivism considered excessive general need obliterate capital offenders demonstrated specific need individual cases three final purposes may underlie utilization capital sanction encouraging guilty pleas confessions eugenics reducing state expenditures may dealt quickly death penalty used encourage guilty pleas thus deter suspects exercising rights sixth amendment jury trials unconstitutional jackson elimination little impair state bargaining position criminal cases since life imprisonment remains severe sanction used leverage bargaining pleas confessions exchange either charges lesser offenses recommendations leniency moreover extent capital punishment used encourage confessions guilty pleas used punishment purposes state justifies capital punishment utility part conviction process profess rely capital punishment deterrent state system structured twin goals obtaining guilty pleas confessions imposing imprisonment maximum sanction since life imprisonment sufficient bargaining purposes death penalty excessive used purposes light previous discussion deterrence suggestions concerning eugenic benefits capital punishment obviously meritless pointed even attempt made discover capital offenders likely recidivists let alone positively incurable test procedure presently exists incurables screened benefit treatment one hand due process seem require procedure demonstrate incurability execution hand equal protection seemingly require incurables executed cf skinner oklahoma addition cruel unusual language require life imprisonment treatment sterilization inadequate eugenic purposes importantly nation never formally professed eugenic goals history world look kindly eugenics one purposes legislatures say forthrightly design procedures serve goal time conclude virtually everyone else looked problem capital punishment defended basis eugenic purposes argument cheaper execute capital offender imprison life even assuming argument true support capital sanction simply incorrect disproportionate amount money spent prisons attributable death row condemned men productive members prison community although executions expensive appeals often automatic courts admittedly spend time death cases trial selection jurors likely become costly problem capital case defense counsel reasonably exhaust every possible means save client execution matter long trial takes period conviction execution inordinate number collateral attacks conviction attempts obtain executive clemency exhaust time money effort state also continual assertions condemned prisoner gone insane formally established policy executing insane persons great sums money may spent detecting curing mental illness order perform execution since one wants responsibility execution condemned man likely passed back forth doctors custodial officials courts like ball entire process costly said done doubt costs execute man keep prison life one conclusion drawn death penalty excessive unnecessary punishment violates eighth amendment statistical evidence convincing beyond doubt persuasive improper point take judicial notice fact years men labored demonstrate capital punishment serves purpose life imprisonment serve equally well done great success little evidence adduced prove contrary point reached deference legislatures tantamount abdication judicial roles factfinders judges ultimate arbiters constitution know point presumption constitutionality accorded legislative acts gives way realistic assessment acts point comes sufficient evidence available judges determine whether legislature acted wisely whether rational basis whatsoever acting evidence us rational basis concluding capital punishment excessive therefore violates eighth amendment vi addition even capital punishment excessive nonetheless violates eighth amendment morally unacceptable people time history judging whether given penalty morally acceptable courts said punishment valid unless shocks conscience sense justice people judge frank noted problems inherent use measuring stick reduces sentence cruel unusual must reasonably good assurances sentence offends common conscience context standard community attitude usually unknowable resembles slithery shadow since one seldom learn accurately community majority actually feels even public opinion poll inconclusive case like words question must deal whether substantial proportion american citizens today polled opine capital punishment barbarously cruel whether find light information presently available suggest respect test unconstitutionality people required act rationally respect judgment violation eighth amendment totally dependent predictable subjective emotional reactions informed citizens often noted american citizens know almost nothing capital punishment conclusions arrived preceding section supporting evidence critical informed judgment morality death penalty death penalty effective deterrent life imprisonment convicted murderers rarely executed usually sentenced term prison convicted murderers usually model prisoners almost always become citizens upon release prison costs executing capital offender exceed costs imprisoning life prison convict sentence death performs none useful functions life prisoners perform attempt made sentencing process ferret likely recidivists execution death penalty may actually stimulate criminal activity information almost surely convince average citizen death penalty unwise problem arises whether convince penalty morally reprehensible problem arises fact public desire retribution even though goal legislature constitutionally pursue sole justification capital punishment might influence citizenry view morality capital punishment solution problem lies fact one ever seriously advanced retribution legitimate goal society defenses capital punishment always mounted deterrent similar theories surprising people country urged past prisons rehabilitate well isolate offenders people injected sense purpose penology believe stage history american people ever knowingly support purposeless vengeance thus believe great mass citizens conclude basis material already considered death penalty immoral therefore unconstitutional information needs supplementing believe following facts serve convince even hesitant citizens condemn death sanction capital punishment imposed discriminatorily certain identifiable classes people evidence innocent people executed innocence proved death penalty wreaks havoc entire criminal justice system facts considered briefly regarding discrimination said usually poor illiterate underprivileged member minority group man without means defended attorney becomes society sacrificial lamb indeed look bare statistics regarding executions enough betray much discrimination total persons executed since white negro executions murder executed murderers white negro persons including whites negroes executed rape immediately apparent negroes executed far often whites proportion percentage population studies indicate higher rate execution among negroes partially due higher rate crime evidence racial discrimination racial discriminations surprising mcgautha california held committing untrammeled discretion jury power pronounce life death capital cases offensive anything constitution open invitation discrimination also overwhelming evidence death penalty employed men women women executed since men met similar fate difficult understand women received favored treatment since purposes allegedly served capital punishment seemingly equally applicable sexes also evident burden capital punishment falls upon poor ignorant underprivileged members society poor members minority groups least able voice complaints capital punishment impotence leaves victims sanction wealthier person escape long capital sanction used forlorn easily forgotten members society legislators content maintain status quo change draw attention problem concern might develop ignorance perpetuated apathy soon becomes mate today situation americans know little executed unaware potential dangers executing innocent man beyond reasonable doubt burden proof criminal cases intended protect innocent know various studies shown people whose innocence later convincingly established convicted sentenced death proving one innocence jury finding guilt almost impossible reviewing courts willing entertain kinds collateral attacks sentence death involved rarely dispute jury interpretation evidence perhaps innocent man found guilty must depend good faith prosecutor office help establish innocence evidence however prosecutors welcome idea convictions labored hard secure overturned cooperation highly unlikely matter careful courts possibility perjured testimony mistaken honest testimony human error remain real way judging many innocent persons executed certain whether many open question made difficult loss knowledgeable crime convicted surely long capital punishment remains part penal law difficult ascertain certainty degree death penalty discriminatorily imposed number innocent persons sentenced die one conclusion penalty universally accepted tends distort course criminal law justice frankfurter said strongly capital punishment life hazard trial sensationalizes whole thing almost unwittingly effect juries bar public judiciary regard bad think scientifically claim deterrence worth much whatever proof may judgment outweigh social loss due inherent sensationalism trial life assuming knowledge facts presently available regarding capital punishment average citizen opinion find shocking conscience sense justice reason alone capital punishment stand vii arrive conclusion death penalty violates eighth amendment engage long tedious journey amount information assembled sorted enormous yet firmly believe deviated slightest principles began time history streets nation cities inspire fear despair rather pride hope difficult maintain objectivity concern fellow citizens measure country greatness ability retain compassion time crisis nation recorded history man greater tradition revering justice fair treatment citizens times turmoil confusion tension country stands tallest troubled times country clings fundamental principles cherishes constitutional heritage rejects simple solutions compromise values lie roots democratic system striking capital punishment malign system government contrary pays homage free society right triumph difficult times civilization record magnificent advancement recognizing humanity fellow beings pay highest tribute achieve major milestone long road barbarism join approximately jurisdictions world celebrate regard civilization humanity shunning capital punishment concur judgments appendices ii iii follow appendix opinion marshall concurring abolition death penalty year year partial complete year year state abolition abolition restoration reabolition appendix ii opinion marshall concurring crude homicide death rates per population number executions certain american year mass rates exec rates exec appendix iii opinion marshall concurring crude homicide death rates per population number executions certain american year iowa neb rate ex rate ex rate ex death penalty retained persons found guilty killing peace officer acting line duty prisoners life sentence murder guard inmate confinement escaping confinement death penalty retained persons convicted murder commit second unrelated murder murder law enforcement officer prison employee performance duties office death penalty retained treason partial abolition voted put effect death penalty retained rape death penalty retained treason death penalty retained treason murder committed prisoner serving life sentence murder death penalty retained persons convicted committing murder serving life sentence offense based national prisoner statistics capital punishment maine totally abolished death penalty rhode island severely limited imposition based ali supra michigan minnesota wisconsin completely abolished capital punishment north dakota severely restricted use iowa north dakota south dakota admitted national death registration area respectively south dakota introduced death penalty based ali supra see also certiorari also granted fourth case aikens california writ dismissed california held capital punishment violates state constitution see people anderson cal cert denied california decision reduced slightly number persons currently awaiting execution parl ser lord chancellor gardiner compare louisiana ex rel francis resweber frankfurter concurring frankfurter law men see anderson cal mosk concurring cf mcgautha california separate opinion black witherspoon illinois white dissenting see generally frankel book review harv rev granucci cruel unusual punishments inflicted original meaning rev ibid beale views conveyed england america first written american law reverend nathaniel ward wrote body liberties massachusetts bay colony clause work read bodilie punishments allow amongst us none inhumane barbarous cruel schwartz bill rights documentary history blackstone commentaries see also chitty criminal law ed sherman cruel unusual punishments inflicted crime delin content capital punishment means retribution crimes english also provided attainder dead law immediate inseparable concomitant death sentence consequences attainder forfeiture real personal estates corruption blood attainted person inherit land hereditaments retain possessed transmit descent heir descents also obstructed whenever posterity derived title one attained blackstone commentaries story constitution ed trevelyan history england reissue granucci supra reaching conclusion professor granucci relies primarily trial titus oates impetus behind adoption clause oates minister church england proclaimed existence plot assassinate king charles ii tried perjury convicted sentenced fine marks life imprisonment whippings pillorying four times year defrocking oates petitioned house commons house lords release judgment house lords rejected petition minority members concluded king bench jurisdiction compel defrocking punishments barbarous inhumane unchristian unauthorized law house commons agreed dissenting lords author also relies dictionary definition cruel meant severe hard century support conclusion ibid historians reach conclusion reading history cruel unusual punishments clause indicating reaction inhumane punishments professor granucci reaches conclusion finding draftsmen constitution misread british history erroneously relied blackstone granucci supra clear however prior adoption amendment feeling safeguard cruelty needed feeling support past practices see supra accompanying text grannucci supra schwartz supra see delaware declaration rights maryland declaration rights massachusetts declaration rights new hampshire bill rights schwartz supra see elliot debates ed see also schwartz supra elliot supra comment george mason misinterprets criticism leveled patrick henry evidence intention prohibit torture like prohibiting cruel unusual punishments annals cong recognition fact prohibition cruel unusual punishments flexible prohibition may change meaning mores society change may eventually bar certain punishments barred constitution adopted ibid remarks livermore new hampshire also evidence general opinion time eighth amendment adopted prohibited every punishment evidently necessary bradford enquiry far punishment death necessary pennsylvania reprinted legal hist new york appeals recognized unusual nature execution attributed legislative desire minimize pain persons executed prohibition cruel unusual punishments relevant weems found philippine bill rights however borrowed eighth amendment constitution meaning ibid ibid justice black expressed similar point view separate opinion mcgautha california badders found guilty seven counts using mails part scheme defraud sentenced concurrent sentences fine count summarily rejected claim sentence cruel unusual punishment ex rel milwaukee social democratic publishing burleson upheld denial mailing privileges newspaper allegedly printed articles conveying false reports conduct first world war intent cause disloyalty justice brandeis dissented indicated belief punishment unusual possibly excessive weems nothing either cases demonstrating departure approach used weems adding anything justice frankfurter member unwilling make assumption however like chief justice fuller kemmler examined propriety punishment due process clause fourteenth amendment justice powell makes clear justice frankfurter analysis different form brethren substance test fundamentally identical used rest english law required second attempt execution first attempt failed radzinowicz history english criminal law justice brennan concurred concluded statute authorizing deprivations citizenship exceeded congress legislative powers robinson california removes lingering doubts whether eighth amendment prohibition cruel unusual punishments binding see also powell texas trop dulles see also weems robinson california see also supra mcgautha california separate opinion black trop dulles supra warren frankfurter dissenting see louisiana ex rel francis resweber burton dissenting trop dulles supra warren rudolph alabama goldberg dissenting denial certiorari frankfurter law men violation principle stare decisis decision capital punishment violates eighth amendment last case implied capital punishment still permissible trop dulles supra implication purely dictum also made context flexible analysis recognized public opinion changed validity penalty trop dulles nearly years old years change many minds many things justice powell suggests however recent decisions witherspoon illinois mcgautha california imply capital punishment constitutionally permissible viewed way amount little academic exercise view distorts rule four decides cases issues consider order see generes douglas dissenting many reasons four members might wanted consider issues presented cases considering difficult question us intend catalogue reasons suffice note believe decisions way fairly used support inference whatever instant cases already disposed sub silentio ancel problem death penalty capital punishment sellin ed scott history capital punishment scott supra ancel supra code hammurabi one first known laws recognized concept eye eye consequently accepted death appropriate punishment homicide block may god mercy scott supra prior time laws alfred provided one willfully slayed another die least certain circumstances stephen history criminal law england punishment apparently left largely private enforcement plucknett concise history common law ed introduction bedau death penalty america rev ibid blackstone commentaries many persons actually executed committing capital offenses known see bedau supra radzinowicz history english criminal law sellin two myths history capital punishment crim benefit clergy mitigated harshness law somewhat concept arose struggle church state originally provided members clergy tried ecclesiastical courts eventually first offenders entitled benefit clergy bedau supra haskins capitall lawes harv sch bull compare haskins supra powers crime punishment early massachusetts see also bedau supra filler movements abolish death penalty annals acad pol soc sci ibid ibid footnotes omitted ibid bedau supra unknown reason pennsylvania adopted harsher penal code england upon william penn death evidence however increase crime filler supra pennsylvania eliminated capital punishment except murder first degree included willful deliberate premeditated killings death penalty mandatory crime stat virginia followed pennsylvania lead enacted similar legislation followed suit filler supra reprinted legal hist advice large measure followed see supra one scholar noted early abolition movement lacked leadership major public figures bedau supra ibid filler supra see scott supra filler supra davis movement abolish capital punishment america hist rev filler supra capital punishment abolished crimes treason law enacted go effect davis supra filler supra ibid bedau supra davis supra kansas restored see appendix opinion infra see mcgautha california filler supra see also winston executions since country offenses discretionary death penalty bedau courts constitution capital punishment utah rev see supra filler supra sellin executions capital punishment sellin ed nations department economic social affairs capital punishment pt ii pp new york authorizes death penalty murder police officer murder life term prisoner penal code see generally bedau supra nine authorize capital punishment circumstances alaska hawaii iowa maine michigan minnesota oregon west virginia wisconsin puerto rico virgin islands also provision capital punishment bedau supra severely restrict imposition death penalty new mexico stat ann new york penal code north dakota cent code rhode island laws vermont stat tit supp california state judiciary declared capital punishment invalid see supra see generally hearings subcommittee criminal laws procedures senate committee judiciary sess extensive compilations capital crimes particular found bedau supra brief petitioner app aikens california attempt made break capital offenses categories finkel survey capital offenses capital punishment sellin ed bedau supra ibid see also ralph warden see hart murder principles punishment england nw rev report royal commission capital punishment cmd pp see generally reichert capital punishment reconsidered see beccaria crimes punishment tr paolucci archbold practice pleading evidence criminal cases pp waterman ed see rudolph alabama goldberg dissenting denial certiorari trop dulles warren brennan concurring morissette williams new york powell texas said never held anything constitution requires penal sanctions designed solely achieve therapeutic rehabilitative effects course correct since deterrence isolation clearly recognized proper trop dulles supra brennan concurring absolutely nothing language rationale holding powell texas implies retribution sake proper legislative aim punishing see vellenga christianity death penalty bedau supra hook death sentence bedau supra see also ehrenzweig psychoanalysis insanity plea clues problems criminal responsibility insanity death cell yale story constitution ed note death penalty cases rev note justice revenge dick rev royal commission supra barzun favor capital punishment bedau supra hook supra see commonwealth elliott musmanno dissenting frankfurter law men assertion life imprisonment may somehow cruel death usually rejected frivolous hence confess surprise finding assertion made various ways today opinions merit contention much undercut even retributive motive imposing capital punishment event better response assertion former pennsylvania justice musmanno dissent commonwealth elliott supra one judges lower indicated bench sentence life imprisonment regarded lesser penalty death challenge statement categorically stated universal truth stretching nadir zenith regardless circumstances one wants die person may instant spiritual physical agony express desire death anodyne intolerable pain desire never always reserve realization silken cord life broken mere wishing person actual extremity dropping precipice life desperately reach crag time cling even moment awful eternity silence slings arrows outrageous fortune life yet sweet death always cruel see bedau deterrence death penalty reconsideration crim royal commission supra nations supra great advantage country compare abolitionist retentionist geographic economic cultural similarities reprinted royal commission supra nations supra see bedau supra sellin death penalty report model penal code project american law institute ali morris thoughts capital punishment rev bar sellin supra crimes might include lesser forms homicide homicide child lunatic laws crimes executions bedau supra sutherland murder death penalty crim crim ali supra bedau supra executions chosen purposes comparison whatever impact capital punishment surely forcefully felt punishment actually imposed see appendix ii opinion infra see appendix iii opinion infra nations supra royal commission supra accord vold extent trend capital crimes annals acad pol soc sci sellin supra see guillot abolition restoration death penalty missouri bedau supra cobin abolition restoration death penalty delaware bedau supra sellin supra royal commission supra nations supra one problem statistics century especially suspect another de jure abolition may preceded de facto abolition distorted figures also noted figures several reflect homicide convictions rather homicide rates royal commission supra nations supra hayner cranor death penalty washington state annals acad pol soc sci graves doctor looks capital punishment med arts sci dann deterrent effect capital punishment bull friends social service series committee philanthropic labor philadelphia yearly meeting friends savitz study capital punishment crim nations supra graves supra hearings supra testimony duffy statement west reik compulsion confess mccafferty major trends use capital punishment fed capital punishment may provide outlet suicidal impulses means achieving notoriety example see gerstein prosecutor looks capital punishment crim hoover statements favor death penalty bedau supra younger capital punishment sharp medicine reconsidered see symposium capital punishment district attorneys assn state new york statement herman head homicide bureau new york city district attorney office sellin supra koeninger capital punishment texas crime delin sellin death penalty protect municipal police bedau supra nations supra lawes life death sing sing mcgee capital punishment seen correctional administrator fed june survey international penal penitentiary commission cited sellin supra sellin prisons homicides capital punishment sellin ed cf akman homicides assaults canadian prisons capital punishment supra argument made reason good record murderers likely recidivists executed however evidence show choosing life death sentences juries select lesser penalties persons believe unlikely commit future crimes nations supra eshelman riley death row chaplain supported also overwhelming statistics showing extremely low rate recidivism convicted murderers released prison royal commission supra app sellin supra nations supra see question deterrence bedau supra ibid note death penalty cases rev see supra nations supra see nn supra accompanying text see supra accompanying text graves doctor looks capital punishment med arts sci royal commission supra schuessler deterrent influence death penalty annals acad pol soc sci nations supra wolfgang patterns criminal homicide one assume deterrence enhanced capital punishment increased deterrence effective respect premeditating murderer hired killer plots crime committing people rarely expect caught usually assume caught either acquitted sentenced prison fairly dependable assumption since reliable estimate one person executed every capital murders known police hart murder principles punishment england nw rev capital punishment deter anybody must certain result criminal act cf ex parte medley must also follow swiftly upon completion offense complicated due process system justice see question deterrence bedau supra disalle trends abolition capital punishment toledo rev ironic persons like deter least fear death penalty recognize fact sellin address canadian society abolition death penalty crim proceedings section criminal law aba disalle reaching conclusion maintain agreement portion stephen hypothesis suggests convicted criminals fear death fear life imprisonment stated earlier death penalty severe sanction error hypothesis lies assumption men fear death imprisonment convicted necessarily must weigh potential penalties prior committing criminal acts conform behavior insure caught receive lesser penalty extremely unlikely much thought given penalties act committed even preceding explains thought lead deterrence see supra see royal commission supra app jackson applies criteria articulated duncan louisiana see barzun favor capital punishment bedau supra see death punishment bedau supra caldwell death penalty retained annals acad pol soc sci johnson selective factors capital punishment social forces sellin capital punishment fed surprised lack merit eugenic arguments simply evidence mentally ill persons commit capital offenses constitute psychiatric entity distinct mentally disordered patients respond readily treatment cruvant waldrop murderer mental institution annals acad pol soc sci caldwell supra mcgee supra mcgee supra bailey rehabilitation death row bedau supra thomas life take ed stein new york jackson cf reid covert harlan concurring result see witherspoon illinois slovenko penalty sometimes death antioch review see caritativo california others well author opinion practice seemed strange way spend money see arnold symbols government slovenko supra eshelman riley death row chaplain caldwell supra mcgee supra sellin supra analysis parallels ways analysis used striking legislation ground violates fourteenth amendment concepts substantive due process see packer making punishment fit crime harv rev one difference however capital punishment unconstitutional excessive unnecessary punishment irrational concepts cruel unusual punishment substantive due process become close merge substantive due process argument stated following manner capital punishment deprives individual fundamental right right life johnson zerbst state needs compelling interest justify see note death penalty cases rev thus stated substantive due process argument reiterates essentially primary purpose cruel unusual punishments clause eighth amendment punishment may severe necessary serve legitimate interests state chief justice asserts hold capital punishment unconstitutional excessive next determine whether prison sentence rather sentence also excessive whether fine equally well fine may correct determinations made cases persons challenging penalty bear heavy burden demonstrating excessive cases arise years inquiry years public debate years marshaling evidence burden placed challenging capital punishment greater convinced met burden whether similar burden prove great future cases question resolve time rosenberg frank cert denied see also kasper brittain cert denied shocking sense justice people morris shock moral sense people repouille schmidt judge learned hand wrote standard good moral character nationality act judged generally accepted moral conventions current time judge frank later author rosenberg opinion similar standard adopted dissented repouille urged correct standard attitude ethical leaders light rosenberg apparent judge frank require much broader based moral approbation striking punishment cruel unusual merely holding conduct evidence bad moral character legislative act rosenberg supra see repouille supra witherspoon illinois cited public opinion poll showed american people favored capital punishment opposed polls shown great fluctuation see americans think death penalty bedau supra fact constitutionality capital punishment turns opinion informed citizenry undercuts argument since legislature voice people retention capital punishment must represent people people executed past decade capital punishment subject rarely brought attention average american lack exposure problem likely lead indifference indifference ignorance result preservation status quo whether desirable desired might argued choosing remain indifferent uninformed citizens reflect judgment capital punishment really question utility morality one therefore great concern attractive face correct argument requires choice remain ignorant indifferent viable one turn requires knowledgeable choice therefore imperative constitutional purposes attempt discern probable opinion informed electorate cf packer making punishment fit crime harv rev gold psychiatric review capital punishment forensic sci koestler reflections hanging cf duffy hirshberg men women hearings supra statement disalle national prisoner statistics capital punishment ibid ibid alexander abolition capital punishment proceedings congress correction american correctional association baltimore criminal justice general aspects bedau supra bedau death sentences new jersey rutgers rev clark crime america hochkammer capital punishment controversy crim johnson negro crime annals acad pol soc sci johnson selective factors capital punishment social forces nations supra williams death penalty negro crisis wolfgang cohen crime race conceptions misconceptions wolfgang kelly nolde comparison executed commuted among admissions death row crim justice douglas explores discriminatory application death penalty great length ante national prisoner statistics capital punishment men kill four five times frequently women see wolfgang sociological analysis criminal homicide bedau supra hence irregular see four five times many men executed women statistics show startlingly greater disparity however nations supra criminal justice general aspects bedau supra bedau capital punishment oregon rev bedau death sentences new jersey rutgers rev clark crime america duffy hirshberg men women carter smith death penalty california statistical composite portrait crime delin hearings supra statement west koeninger capital punishment texas crime delin mcgee supra see borchard convicting innocent frank frank guilty gardner last resort three books examine cases innocent persons sentenced die none innocents actually executed however bedau abstracted cases occurring since wrongful conviction murder alleged usually proved beyond doubt almost every case convictions sustained appeal bedau seriously contends innocent persons actually executed murder errors justice capital punishment bedau supra see also black crisis capital punishment md rev hirschberg wrongful convictions rocky mt rev pollak errors justice annals acad pol soc sci gardner last resort justice douglas recognized fact wrote one reviews records criminal trials need look long find instance issue guilt innocence hangs delicate balance judge denies stay execution capital case often wonders innocent man going death doubts exist system criminal justice work efficiency machine errors made innocent well guilty people sometimes punished believe better ten guilty people set free one innocent man unjustly imprisoned yet sad truth cog machine often slips memories fail mistaken identifications made wield power life death police officer witness prosecutor juror even judge become overzealous concern criminals brought justice times venal combination police witness foreword frank frank guilty ehrmann death penalty administration justice annals acad pol soc sci frankfurter law men eshelman riley death row chaplain mccafferty major trends use capital punishment fed pp quoting glueck harvard university justice powell suggests conclusion speculative certainly correct mere recognition truth undercut validity conclusion justice powell concedes judges somehow know certain punishments longer acceptable society example refers branding pillorying whence comes knowledge answer comes intuition human beings fellow human beings longer tolerate punishments agree wholeheartedly implication brother powell opinion judges free strike penalties find personally offensive disagree suggestion improper judges ask whether specific punishment morally acceptable american public contrary current thought judges lived lives isolated broad range human experience come contact many people many ways life many philosophies learned share fellow human beings common views morality drawing experience considering vast range people views encountered judges conclude people knowingly tolerate specific penalty light costs conclusion entitled weight see frankel book review harv rev judges find assistance determining whether objective rather subjective referring attitudes persons citizens consider ethical leaders see repouille frank dissenting must also admit confused point brother powell seeks make regarding underprivileged members society stating solve problems context case even many agree opining poor ignorant racial minorities hapless society executed executed real reason satisfy vague notion society cry vengeance knowing things people country care urgently disagree much crime much killing much hatred country legislatures eradicate elements lives utilizing capital punishment valid purpose sanction public surely accept constitutional chief justice justice powell point however capital punishment us long time purpose served evidence served none agree american people hardened embittered want take life one performs even basest criminal act knowing execution nothing bloodlust experience fellow citizens rather found earnestly desire system punishments make sense order morally justifiable system see generally arnold criminal trial symbol public morality criminal justice time howard ed clark crime america jurisdictions de facto abolition others de jure hearings supra statement disalle see generally patrick status capital punishment world perspective crim nations supra brief petitioner app aikens california chief justice burger justice blackmun justice powell justice rehnquist join dissenting outset important note two members justice brennan justice marshall concluded eighth amendment prohibits capital punishment crimes circumstances justice douglas also determined death penalty contravenes eighth amendment although read opinion necessarily requiring final abolition penalty reasons set forth parts opinion conclude constitutional prohibition cruel unusual punishments construed bar imposition punishment death justice stewart justice white concluded petitioners death sentences must set aside prevailing sentencing practices comply eighth amendment reasons set forth part opinion believe approach fundamentally misconceives nature eighth amendment guarantee flies directly face controlling authority extremely recent vintage possessed legislative power either join justice brennan justice marshall least restrict use capital punishment small category heinous crimes constitutional inquiry however must divorced personal feelings morality efficacy death penalty confined meaning applicability uncertain language eighth amendment novelty called upon interpret constitutional provision less fundamental guarantees ban cruel unusual punishments one difficult translate judicially manageable terms widely divergent views amendment expressed today opinions reveal haze surrounds constitutional command yet essential role seize upon enigmatic character guarantee invitation enact personal predilections law although eighth amendment literally reads prohibiting punishments cruel unusual history compels conclusion constitution prohibits punishments extreme barbarous cruelty regardless frequently infrequently imposed persuasive analysis parliament adoption english bill rights unquestioned source eighth amendment wording suggests prohibition cruel unusual punishments included therein aversion severe punishments legally authorized within jurisdiction courts impose extent term unusual importance english version apparently intended reference illegal punishments every indication framers eighth amendment intended give phrase meaning far different english precursor records debates several state conventions called ratify draft constitution submitted prior addition bill rights show framers exclusive concern absence ban tortures later inclusion cruel unusual punishments clause response objections discussion interrelationship terms cruel unusual nothing debates supporting inference founding fathers receptive torturous excessively cruel punishments even usual character authorized law cases decided eighth amendment consistent tone ratifying debates wilkerson utah held execution shooting prohibited mode carrying sentence death speaking meaning cruel unusual punishments clause stated safe affirm punishments torture others line unnecessary cruelty forbidden amendment constitution case kemmler held eighth amendment inapplicable added following dictum punishment prescribed offence laws state manifestly cruel unusual burning stake crucifixion breaking wheel like duty courts adjudge penalties within prohibition new york constitution think equally true eighth amendment application congress punishments cruel involve torture lingering death punishment death cruel within meaning word used constitution implies something inhuman barbarous something mere extinguishment life opinions subsequent cases also speak extreme cruelty though sum substance constitutional prohibition see vermont field dissenting weems louisiana ex rel francis resweber summarized chief justice warren plurality opinion trop dulles whether word unusual qualitative meaning different cruel clear occasions consider meaning phrase precise distinctions cruelty unusualness seem drawn see weems supra vermont supra wilkerson utah supra cases indicate simply examines particular punishment involved light basic prohibition inhuman treatment without regard subtleties meaning might latent word unusual ii counsel petitioners properly concede capital punishment impermissibly cruel time adoption eighth amendment records debates indicate founding fathers limited concern prevention torture also clear language constitution thought whatever elimination capital punishment opening sentence fifth amendment guarantee death penalty imposed unless presentment indictment grand jury double jeopardy clause fifth amendment prohibition twice put jeopardy life offense similarly due process clause commands due process law accused deprived life liberty property thus explicit language constitution affirmatively acknowledges legal power impose capital punishment expressly implication acknowledge legal power impose various punishments banned cruel since since eighth amendment adopted day fifth amendment hardly needs establish death penalty cruel constitutional sense time years since enactment eighth amendment single decision cast slightest shadow doubt constitutionality capital punishment rejecting eighth amendment attacks particular modes execution implicitly denied capital punishment impermissibly cruel constitutional sense wilkerson utah louisiana ex rel francis resweber kemmler dictum years since chief justice warren speaking four members stated without equivocation whatever arguments may capital punishment moral grounds terms accomplishing purposes punishment forceful death penalty employed throughout history day still widely accepted said violate constitutional concept cruelty trop dulles eighth amendment forbids cruel unusual punishments view words read outlaw capital punishment penalty common use authorized law countries ancestors came time amendment adopted inconceivable framers intended end capital punishment amendment mcgautha california separate opinion recognizing instant evolution law seems fair ask factors changed capital punishment cruel constitutional sense past apparent change constitutional significance nature punishment twentieth century modes execution surely involve greater physical suffering means employed time eighth amendment adoption although man awaiting execution must inevitably experience extraordinary mental anguish one suggests anguish materially different experienced condemned men even though protracted appellate review processes greatly increased waiting time death row sure ordeal condemned man may thought cruel sense suffering thought cruel constitution proscribed every punishment producing severe emotional stress capital punishment clearly impermissible however inquiry end reasons unrelated change intrinsic cruelty eighth amendment prohibition fairly limited punishments thought excessively cruel barbarous time adoption eighth amendment punishment inordinately cruel sense must deal cases chiefly perceived society characterizing standard extreme cruelty merely descriptive necessarily embodies moral judgment standard remains applicability must change basic mores society change notion new eighth amendment adjudication weems referred apparent approval opinion commentators clause constitution may therefore progressive fastened obsolete may acquire meaning public opinion becomes enlightened humane justice chief justice warren writing plurality opinion trop dulles supra stated amendment must draw meaning evolving standards decency mark progress maturing society nevertheless never actually held punishment become impermissibly cruel due shift weight accepted social values suggested judicially manageable criteria measuring shift moral consensus quiescence area attributed fact democratic society legislatures courts constituted respond consequently moral values people reason early commentators suggested cruel unusual punishments clause unnecessary constitutional provision acknowledged principal brief petitioners constitutional contemplation fact legislature responds public opinion immediately reflects society standards decency accordingly punishments branding cutting ears commonplace time adoption constitution passed penal scene without judicial intervention became basically offensive people legislatures responded sentiment beyond doubt today called upon review punishments find excessively cruel say complete assurance contemporary society universally rejects bizarre penalties however speculation probable reaction punishments significant critical fact never hold mode punishment authorized domestic legislature cruel fundamentally odds basic notions decency cf weems supra judicial findings impermissible cruelty limited part offensive punishments devised without specific authority prison officials legislatures see jackson bishop wright mcmann paucity judicial decisions invalidating legislatively prescribed punishments powerful evidence country legislatures fact responsive albeit belatedly times changes social attitudes moral values suggest validity legislatively authorized punishments presents justiciable issue eighth amendment rather primacy legislative role narrowly confines scope judicial inquiry whether provable whether true times democracy legislative judgment presumed embody basic standards decency prevailing society presumption negated unambiguous compelling evidence legislative default iii obvious indications capital punishment offends conscience society degree traditional deference legislative judgment must abandoned punishment burning stake everyone ineffably find repugnant civilized standards punishment roundly condemned aberrant legislatures retained statute books capital punishment authorized statute district columbia federal courts commission certain crimes four occasions last years congress added list federal crimes punishable death looking reliable indicia contemporary attitude none trustworthy advanced one conceivable source evidence legislatures abdicated essentially barometric role respect community values public opinion polls many past decade addressed question capital punishment without assessing reliability polls intimating judicial reliance ever placed need noted reported results shown nothing approximating universal condemnation capital punishment might lead us suspect legislatures general lost touch current social values counsel petitioners rely different body empirical evidence argue effect number cases death penalty imposed compared number cases statutorily available reflects general revulsion toward penalty lead repeal generally widely enforced gainsaid choice juries sometimes judges death penalty imposed far fewer half cases available go characterize rate imposition freakishly rare petitioners insist unwarranted hyperbole regardless characterization rate imposition impel conclusion capital punishment regarded intolerably cruel uncivilized argued capital cases juries recommended mercy given expression civilized values effectively renounced legislative authorization capital punishment time argued juries made awesome decision send men deaths acted arbitrarily without sensitivity prevailing standards decency explanation infrequency imposition capital punishment unsupported known facts inconsistent principle everything ever said functioning juries capital cases mcgautha california supra decided one year ago held mandate due process clause fourteenth amendment juries given instructions death penalty imposed reviewing autonomy juries traditionally exercised capital cases noting practical difficulties framing manageable instructions concluded judicially articulated standards needed insure responsible decision penalty nothing mcgautha licenses capital juries act arbitrarily assumes acted past contrary assumption underlying mcgautha ruling juries act due regard consequences decision responsibility juries deciding capital cases system justice nowhere better described witherspoon illinois supra jury must choose life imprisonment capital punishment little must nothing less express conscience community ultimate question life death one important functions jury perform making selection maintain link contemporary community values penal system link without determination punishment hardly reflect evolving standards decency mark progress maturing society emphasis added course unrealistic assume juries perfectly consistent choosing cases death penalty imposed human institution performs perfect consistency doubtless prisoners death row tried different jury different state sense fate controlled fortuitous circumstance however element fortuity stand indictment either general functioning juries capital cases integrity jury decisions individual cases empirical basis concluding juries generally failed discharge good faith responsibility described witherspoon choosing life death individual cases according dictates community values rate imposition death sentences falls far short providing requisite unambiguous evidence legislatures congress turned backs current evolving standards decency continuing make death penalty available selective imposition evidences rejection capital punishment cases imposed surely evidences correlative affirmation penalty cases imposed absent clear indication continued imposition death penalty selective basis violative prevailing standards civilized conduct eighth amendment said interdict use two cases asked rule narrower question whether capital punishment offends eighth amendment imposed punishment crime forcible rape true death penalty authorized rape fewer murder even applied sparingly rape murder reasons aptly brought opinion justice powell post believe differences elevated level eighth amendment distinction blunt constitutional command sharpened carve neat distinctions corresponding categories crimes defined legislatures iv capital punishment also attacked violative eighth amendment ground needed achieve legitimate penal aims thus unnecessarily cruel pure policy matter approach much recommend seeks give dimension eighth amendment never intended promotes line inquiry never pursued eighth amendment noted included bill rights guard use torturous inhuman punishments limited efficacy one speak adoption eighth amendment asserted often necessary use cruel punishments deter crimes among favoring amendment sentiment expressed punishment extreme cruelty ever justified expediency dominant theme eighth amendment debates ends criminal laws justify use measures extreme cruelty achieve cf rochin california apparent seed unnecessary cruelty argument following language quoted earlier found wilkerson utah supra difficulty attend effort define exactness extent constitutional provision provides cruel unusual punishments shall inflicted safe affirm punishments torture others line unnecessary cruelty forbidden amendment constitution emphasis added apart isolated uses word unnecessary nothing cases suggests courts make determination efficacy punishments decision weems supra contrary weems held crime falsifying public documents punishment imposed philippine code years imprisonment hard labor shackles followed perpetual surveillance loss voting rights loss right hold public office loss right change domicile freely violative eighth amendment case generally regarded holding punishment may excessively cruel within meaning eighth amendment grossly proportion severity crime view decision primarily reaction mode punishment characterization holding readily apparent decision grew overwhelming abhorrence imposition particular penalty particular crime making essentially moral judgment dispassionate assessment need penalty specifically disclaimed right assert judgment legislature expediency laws thus apart fact weems concerned crime committed well punishment imposed case marks departure largely unarticulate standard extreme cruelty however intractable standard may eighth amendment constitutional provision addressed social utility command enlightened principles penology always followed pursuing necessity approach becomes even apparent involves matters outside purview eighth amendment two several aims punishment generally associated capital punishment retribution deterrence argued retribution discounted eighth amendment seeks eliminate authority suggesting eighth amendment intended purge law retributive elements consistently assumed retribution legitimate dimension punishment crimes see williams new york lovett frankfurter concurring furthermore responsible legal thinkers widely varying persuasions debated sociological philosophical aspects retribution question generations neither side able convince reading great deal eighth amendment hold punishments authorized legislatures constitutionally reflect retributive purpose less esoteric less controversial question whether death penalty acts superior deterrent favoring abolition find evidence favoring retention start intuitive notion capital punishment act effective deterrent note convincing evidence escape empirical stalemate sought placing burden proof concluding failed demonstrate capital punishment effective deterrent life imprisonment numerous justifications advanced shifting burden without rhetorical appeal however arguments descended established constitutional principles born urge bypass unresolved factual question comparative deterrence matter lends precise measurement shift burden provide illusory solution enormously complex problem proper put test demonstrating deterrent value capital punishment well ask prove need life imprisonment punishment yet know convincing evidence life imprisonment effective deterrent years imprisonment even parking ticket effective deterrent parking ticket fact go far challenge notion punishments deter crime unable adduce convincing proof rebutting assertions follow punishments suspect cruel unusual within meaning constitution contrary submit questions raised necessity approach beyond pale judicial inquiry eighth amendment today ruled capital punishment per se violative eighth amendment ruled punishment barred particular class classes crimes substantially similar concurring opinions justice stewart justice white necessary support judgment setting aside petitioners sentences stop short reaching ultimate question actual scope ruling take embodied concurring opinions entirely clear much however seems apparent legislatures continue authorize capital punishment crimes juries judges longer permitted make sentencing determination manner past approach urged oral arguments briefs misconceives nature constitutional command cruel unusual punishments disregards controlling case law demands rigidity capital cases possible achievement regarded welcome change indeed contrary seems case earlier stated eighth amendment forbids imposition punishments cruel inhumane violate society standards civilized conduct amendment prohibit punishments unable prove necessary deter control crime amendment concerned process state determines particular punishment imposed particular case amendment assuredly speak power legislatures confer sentencing discretion juries rather fix sentences statute critical factor concurring opinions justice stewart justice white infrequency penalty imposed factor taken evidence society abhorrence capital punishment inference petitioners draw earmark deteriorated system sentencing concluded petitioners sentences must set aside punishment impermissibly cruel juries judges failed exercise sentencing discretion acceptable fashion sure recitation cast eighth amendment terms petitioners sentences cruel exceed legislatures deemed necessary cases petitioners sentences unusual exceed imposed cases application words eighth amendment suggests capital punishment made satisfy eighth amendment values rate imposition somehow multiplied seemingly follows flexible sentencing system created legislatures carried juries judges yielded mercy eighth amendment stand implications approach mildly ironical example measure eighth amendment elimination juries witherspoon illinois seen retrospect setback evolving standards decency mark progress maturing society trop dulles novel formulation eighth amendment principles albeit necessary satisfy terms limited grant certiorari lie heart concurring opinions decisive grievance opinions translated eighth amendment terms present system discretionary sentencing capital cases failed produce evenhanded justice problem sentenced die selection process followed rational pattern claim arbitrariness lacking empirical support also manifestly fails establish death penalty cruel unusual punishment eighth amendment included bill rights assure certain types punishments never imposed channelize sentencing process approach concurring opinions antecedent eighth amendment cases essentially exclusively procedural due process argument ground decision plainly foreclosed well misplaced one year ago mcgautha california upheld prevailing system sentencing capital cases concluded light history experience present limitations human knowledge find quite impossible say committing untrammeled discretion jury power pronounce life death capital cases offensive anything constitution although decision mcgautha technically confined dictates due process clause fourteenth amendment rather eighth amendment made applicable due process clause fourteenth amendment disingenuous suggest today ruling done anything less overrule mcgautha guise eighth amendment adjudication may thought appropriate subordinate principles stare decisis subject sensitive capital punishment stakes high external considerations less weighty last year pattern decisionmaking little inspire confidence stability law undertake make definitive statement parameters ruling clear state legislatures congress wish maintain availability capital punishment significant statutory changes made since two pivotal concurring opinions turn assumption punishment death meted random unpredictable manner legislative bodies may seek bring laws compliance ruling providing standards juries judges follow determining sentence capital cases narrowly defining crimes penalty imposed standards devised crimes meticulously defined result detrimental however justice harlan opinion mcgautha convincingly demonstrates past efforts identify fact cases penalty imposed uniformly unsuccessful one problem factors determine whether sentence death appropriate penalty particular cases complex compressed within limits simple formula report royal commission capital punishment cmd stated mcgautha infinite variety cases facets case make general standards either meaningless statement obvious jury need even assuming suitable guidelines established assurance sentencing patterns change long juries possessed power determine sentence bring verdict guilt charge carrying lesser sentence juries inhibited exercise powers past thus unless mcgautha misjudged experience history little reason believe sentencing standards form substantially alter discretionary character prevailing system sentencing capital cases system may fall short perfection yet shown different system produce satisfactory results real change clearly brought legislatures provided mandatory death sentences way deny juries opportunity bring verdict lesser charge system death sentence avoided verdict acquittal alternative legislatures safely pursue today ruling preferred opt total abolition seems remarkable basic trust lay jurors keystone system criminal justice suggested take sensitive important decisions away easily persuaded mandatory sentences death without intervening ameliorating impact lay jurors arbitrary doctrinaire violate constitution infrequency death penalties imposed jurors attests cautious discriminating reservation penalty extreme cases thought nothing clearer history noted mcgautha one year ago american abhorrence rule imposing mandatory death sentence convicted murderers concurring opinion justice marshall shows ante century movement away mandatory death sentences marked enlightened introduction flexibility sentencing process recognized individual culpability always measured category crime committed change sentencing practice greeted humanizing development see winston cf calton utah see also andres frankfurter concurring see history ignored suggested eighth amendment demands elimination sensitive feature sentencing system general matter evolution penal concepts country marked great progress results crowned significant success anywhere whole spectrum criminal justice fresh ideas deserve sober analysis sentencing correctional area ranks high list widely accepted mandatory sentences crimes best serve ends criminal justice system long process drawing away blind imposition uniform sentences every person convicted particular offense confronted argument perhaps implying legislatures may determine sentence death appropriate without intervening evaluation jurors judges approach threatens turn back progress penal reform moved recently slow rate absorb significant setbacks vi since majority ultimate issue presented cases future capital punishment country left uncertain limbo rather providing final unambiguous answer basic constitutional question collective impact majority ruling demand undetermined measure change various state legislatures congress endorse process decisionmaking yielded today result restraints result imposes legislative action altogether displeased legislative bodies given opportunity indeed unavoidable responsibility make thorough entire subject capital punishment today opinions demonstrate nothing else starkly show area legislatures act far effectively courts legislatures free eliminate capital punishment specific crimes carve limited exceptions general abolition penalty without adherence conceptual strictures eighth amendment legislatures make assessment deterrent influence capital punishment generally affecting commission specific types crimes legislatures come doubt efficacy capital punishment abolish either completely selective basis new evidence persuades acted unwisely reverse field reinstate penalty extent thought warranted eighth amendment ruling judges made flexibility discriminating precision trend toward limiting use capital punishment phenomenon urged give great weight hardly points way judicial solution country written constitution rather change generally come legislative action often trial basis retention penalty certain limited classes crimes virtually nowhere change wrought crude tool eighth amendment complete unconditional abolition capital punishment country judicial fiat undermined careful progress legislative trend foreclosed inquiry many yet unanswered questions area quite apart limitations eighth amendment preference legislative action justified inability courts participate debate level controversy focused case capital punishment product legal dialectic rests primarily factual claims truth tested conventional judicial processes five opinions support judgments differ many respects share willingness make sweeping factual assertions unsupported empirical data concerning manner imposition effectiveness capital punishment country legislatures opportunity make penetrating study claims familiar effective tools available us highest judicial duty recognize limits judicial power permit democratic processes deal matters falling outside limits hydraulic pressure holmes spoke generated cases great import propelled go beyond limits judicial power fortunately leaving room legislative judgment see infra see granucci cruel unusual punishments inflicted original meaning rev earlier drafts bill rights used phrase cruel illegal thought change cruel unusual wording inadvertent intended work change meaning ibid historical background english bill rights set forth opinion justice marshall ante intimated opinion justice douglas ante term unusual included english bill rights protest discriminatory application punishments minorities however history capital punishment england dramatically reveals premium placed equal justice either bill rights time richard death penalty authorized england treason felonies except larceny mayhem exception persons entitled benefit clergy subject penalty lenient penalty upon commission felony benefit clergy grew exemption clergy jurisdiction lay courts exemption expanded include assistants clergymen male read although numerous felonies deemed nonclergyable disparity punishments imposed educated uneducated remained felonies early century see stephen history criminal law england et seq see elliot debates ed see bluestone mcgahee reaction extreme stress impending death execution psychiatry see story constitution ed cooley constitutional limitations ed see also joseph story capital punishment ed hogan rev brief petitioner aikens california cert dismissed see post plainly foundation justice black strong views subject expressed recently mcgautha california separate opinion see department justice national prisoner statistics capital punishment since publication department justice report capital punishment judicially abolished california people anderson cal cert denied capital punishment longer authorized alaska california hawaii iowa maine michigan minnesota oregon west virginia wisconsin see act pub tit iv stat act pub tit xi stat act stat act stat see also opinion justice blackmun post poll indicated polled favored capital punishment opposed opinion poll found favor opposed opinion see erskine polls capital punishment public opinion quarterly jury plays predominant role sentencing capital cases country available evidence indicates judge determines sentence death penalty imposed slightly greater frequency jury makes determination kalven zeisel american jury decade average persons per year received death sentence ranging low high persons received death sentence department justice national prisoner statistics capital punishment see also bedau death penalty america fed although accurate figures difficult obtain thought convicted murder sentenced death authorized see mcgee capital punishment seen correctional administrator fed pp bedau death sentences new jersey rutgers rev florida division corrections seventh biennial report july june kalven zeisel american jury rate imposition rape crimes made punishable death certain considerably lower see florida division corrections seventh biennial report supra partington incidence death penalty rape virginia lee rev counsel petitioners make conclusory statement hose selected die poor powerless personally ugly socially unacceptable brief petitioner however sources cited contain empirical findings undermine general premise juries impose death penalty extreme cases one study discerned statistically noticeable difference rate imposition blue collar white collar defendants study otherwise concludes juries follow rational patterns imposing sentence death note study california penalty jury cases stan rev see also kalven zeisel american jury statistics also cited show death penalty imposed racially discriminatory manner statistics suggest least historical matter negroes sentenced death greater frequency whites several particularly crime interracial rape see koeninger capital punishment texas crime delin note capital punishment virginia rev statute authorizes discretionary imposition particular penalty particular crime used primarily defendants certain race pattern use fairly explained reference race defendants equal protection clause fourteenth amendment forbids continued enforcement statute existing form cf yick wo hopkins gomillion lightfoot establish statutory authorization particular penalty inconsistent dictates equal protection clause enough show applied distant past statistics referred us cover periods negroes systematically excluded jury service racial segregation official policy many data recent vintage essential see maxwell bishop vacated statistical survey expected bring forth absolute irrefutable proof discriminatory pattern imposition strong showing made taking relevant factors account must noted equal protection claim totally distinct eighth amendment question grant certiorari limited cases evidence discriminatory pattern enforcement imply use particular punishment morally repugnant violate eighth amendment jackson georgia branch texas rape punishable death federal courts committed within special maritime territorial jurisdiction authorizing capital punishment rape alabama arkansas florida georgia kentucky louisiana maryland mississippi missouri nevada north carolina oklahoma south carolina tennessee texas virginia see supra annals cong remarks livermore petitioner francis sentenced electrocuted crime murder placed electric chair executioner threw switch due mechanical difficulty death result new death warrant issued fixing second date execution held proposed execution constitute cruel unusual punishment double jeopardy serious claim disproportionality presented cases murder forcible rape always regarded among serious crimes said punishment death proportion severity crimes decision robinson california viewed extension disproportionality doctrine eighth amendment held statute making crime punishable imprisonment narcotics addict violated eighth amendment effect ruled status addict criminal act criminal punishment imposed addiction exceeds penal power made analysis necessity imprisonment means curbing addiction see packer making punishment fit crime harv rev see hart aims criminal law law contemp prob packer limits criminal sanction cohen reason law report royal commission capital punishment cmd pp hart murder principles punishment england nw rev hart law liberty morality see sellin homicides retentionist abolitionist capital punishment et seq sellin ed schuessler deterrent influence death penalty annals see hoover statements favor death penalty bedau death penalty america rev ed allen capital punishment protection mine death penalty america supra see also hart nw rev supra bedau death penalty america supra see powell texas marshall plurality opinion see menninger crime punishment much concurring opinion justice douglas similarly suggests sentencing system rather punishment constitutionally infirm however opinion also indicates wake decision mcgautha california validity sentencing process longer open question see concurring opinion justice stewart ante concurring opinion justice white ante see concurring opinion justice stewart ante cf concurring opinion justice white ante point heavily emphasized opinion justice stewart justice white however since justice white allows statutes providing mandatory death penalty narrowly defined categories crimes appears concerned regularized sentencing process aggregate number death sentences imposed crimes see supra pointed opinion mcgautha two alternatives substantially equivalent see patrick status capital punishment world perspective crim england example legislation limited capital punishment murder treason piracy violence dockyards arson military offenses murder abolition death penalty act eliminated penalty murder trial basis pub acts abolition made permanent see parl ser parl ser canada also undertaken limited abolition experimental basis stats canada eliz northern securities dissenting opinion justice blackmun dissenting join respective opinions chief justice justice powell justice rehnquist add following somewhat personal comments cases provide excruciating agony spirit yield one depth distaste antipathy indeed abhorrence death penalty aspects physical distress fear moral judgment exercised finite minds distaste buttressed belief capital punishment serves useful purpose demonstrated violates childhood training life experiences compatible philosophical convictions able develop antagonistic sense reverence life legislator vote death penalty policy reasons argued counsel respective petitioners expressed adopted several opinions filed justices vote reverse judgments lived many years state death penalty effectively abolished carried last execution february capital punishment never part life state exist far determine state purely statistical deterrence point view neither worse better abolition concurring opinions observe statistics prove little anything state citizens accepted fact death penalty arsenal possible punishments crime perhaps alone among present members judicial record member appeals first struggled silently issue capital punishment feguer cert denied defendant case may one last executed federal auspices struggled issue refrained comment writing en banc pope vacated upon acknowledgment solicitor general error revealed subsequently decided jackson remanded finally maxwell bishop vacated remanded sua sponte grounds raised revealed solitarily panel distress concern jackson bishop hesitancy writing panel opinion held use strap trusties upon fellow arkansas prisoners violation eighth amendment however punishment imposed several concurring opinions acknowledge must today capital punishment accepted assumed unconstitutional per se eighth amendment fourteenth amendment either flat implicit holding unanimous wilkerson utah unanimous kemmler weems members majority addressed issue louisiana ex rel francis resweber chief justice warren speaking three others justices black douglas whittaker trop dulles denial certiorari rudolph alabama however justices douglas brennan goldberg heard argument respect imposition ultimate penalty convicted rapist neither taken endangered human life justice black mcgautha california decided last term may suddenly however course decision opposite way evidently persuaded somehow passage time taken us place greater maturity outlook argument plausible may persuasive one year since mcgautha eight years since rudolph years since trop years since francis presented nothing demonstrates significant movement kind brief periods decided time strike death penalty much reason cited cases decided refrained action occasions recognized certainly subscribe proposition cruel unusual punishments clause may acquire meaning public opinion becomes enlightened humane justice weems chief justice warren plurality referred evolving standards decency mark progress maturing society trop dulles jefferson expressed thought well problem however indicated suddenness perception progress human attitude since decisions short ago reverse judgments cases course easy choice easier strike balance favor life death comforting relax thoughts perhaps rationalizations compassionate decision maturing society moral right thing thereby convince moving road toward human decency value life even though life taken another others grievously scarred another others families less barbaric year ago wilkerson kemmler weems francis trop rudolph mcgautha respectively decided good argument makes sense good argument makes sense legislative executive way judicial expedient said legislator sponsor vote legislation abolishing death penalty chief executive sovereign state sorely tempted exercise executive clemency governor rockefeller arkansas recently departed office legislative branch state federal government secondarily executive branch authority responsibility kind action lies authority taken judiciary modern guise eighth amendment issue sit cases however legislator responsive least part constituents task must frequently emphasized pass upon constitutionality legislation enacted challenged sole task judges allow personal preferences wisdom legislative congressional action distaste action guide judicial decision cases temptations cross policy line great fact today decision reveals almost irresistible view somewhat propelled toward result interim decision california one justice dissenting death penalty violative state constitution people anderson cal far aware first time death penalty entirety nullified judicial decision cf ralph warden cert denied post california moral problem profound one prisoners death row state california course right construe constitution construction however hardly precedent federal adjudication trust fully appreciates decides cases way today capital punishment laws district columbia struck also provisions federal statutory structure permit death penalty apparently voided longer capital punishment possible suspect among crimes treason assassination president vice president stand elected positions assassination member congress espionage rape within special maritime jurisdiction aircraft motor vehicle destruction death occurs explosives offenses death results train wrecking aircraft piracy also jeopardy perhaps death penalty provisions various articles uniform code military justice seem discarded without passing reference reasons circumstances prompted enactment recent retention face efforts repeal passing interest note voting facts respect recent federal death penalty legislation aircraft piracy statute enacted september senate vote august announced senators chavez fulbright neuberger symington absent present four vote yea also announced side aisle senator butler ill senators beall carlson morton absent detained four present vote affirmative announcements therefore indicate true vote cong rec house passed bill without recorded vote cong rec presidential assassination statute approved august without recorded votes cong rec omnibus crime control act approved january title iv thereof added congressional assassination statute recorded house vote october voting paired cong rec senate vote october voting announced favoring bill cong rec final votes conference recorded cong rec impossible believe many house senate including might add outstanding leaders prominent candidates higher office callously unaware insensitive constitutional overtones legislation type answer course elected representatives people far conscious temper times maturing society contemporary demands man dignity sit cloistered took settled death penalty always unconstitutional members congress suspect surprised giant stride today reservations expressed brother stewart read opinion brother white shares command support namely capital punishment may unconstitutional long mandatorily imposed result fear statutes struck today state legislatures prescribe death penalty specified crimes without alternative imposition lesser punishment discretion judge jury case may approach seems encourages legislation regressive antique mold eliminates element mercy imposition punishment thought passed beyond point criminology long ago without interest also note although several concurring opinions acknowledge heinous atrocious character offenses committed petitioners none opinions makes reference misery petitioners crimes occasioned victims families victims communities offenses took place arguments respective petitioners particularly oral arguments similarly curiously devoid reference victims risk course comment opens one charge emphasizing retributive see williams new york nevertheless cases offenses innocent victims perpetrated fact terror occasioned fear stalks streets many cities today perhaps deserve entirely overlooked let us hope decision terror imposed forgotten upon visited society reap benefits magnanimity although personally may rejoice result find difficult accept justify matter history law constitutional pronouncement fear overstepped sought achieved end stat laws see trenerry murder minnesota obvious think efforts behalf maxwell thus continuing case reappearing fact death penalty rather life imprisonment received rape conviction fact makes decisional process case kind particularly excruciating author personally convinced rightness capital punishment questions effective deterrent advisability capital punishment policy matter ordinarily resolved legislature executive clemency judiciary note notice may worth death penalty rape remains available federal statutes designated observed fellow judges join comment outset let us put one side death penalty index constitutional limit punishment whatever arguments may capital punishment moral grounds terms accomplishing purposes punishment forceful death penalty employed throughout history day still widely accepted said violate constitutional concept cruelty eighth amendment forbids cruel unusual punishments view words read outlaw capital punishment penalty common use authorized law countries ancestors came time amendment adopted inconceivable framers intended end capital punishment amendment although people urged amend constitution interpretation keep abreast modern ideas never believed lifetime judges system legislative power men look constitutions sanctimonious reverence deem like ark covenant sacred touched ascribe men preceding age wisdom human suppose beyond amendment knew age well belonged labored deserved well country like present without experience present forty years experience government worth century say rise dead know laws institutions must go hand hand progress human mind becomes developed enlightened new discoveries made new truths disclosed manners opinions change change circumstances institutions must advance also keep pace times might well require man wear still coat fitted boy civilized society remain ever regimen barbarous ancestors let us follow examples weakly believe one generation capable another taking care ordering affairs let us sister done avail reason experience correct crude essays first unexperienced although wise virtuous councils lastly let us provide constitution revision stated periods letter samuel kercheval july writings thomas jefferson memorial ed justice powell chief justice justice blackmun justice rehnquist join dissenting granted certiorari cases consider whether death penalty longer permissible form punishment judgment five justices death penalty customarily prescribed implemented country today offends constitutional prohibition cruel unusual punishments reasons judgment stated five separate opinions expressing many separate rationales view none opinions provides constitutionally adequate foundation decision justice douglas concludes capital punishment incompatible notions equal protection finds implicit eighth amendment ante justice brennan bases judgment primarily thesis penalty comport human dignity ante justice stewart concludes penalty applied wanton freakish manner ante justice white infrequency penalty imposed renders use unconstitutional ante justice marshall finds capital punishment impermissible form punishment morally unacceptable excessive ante although central theme petitioners presentations cases imposition death penalty per se unconstitutional two today opinions explicitly conclude sweeping determination mandated constitution justice brennan justice marshall call abolition existing state federal capital punishment statutes intimate well capital statute devised future might comport eighth amendment practical consequences three opinions less certain least purport render impermissible every possible statutory scheme use capital punishment legislatures might hereafter devise insofar latter opinions fail least explicitly go far petitioners contentions carry reservations attributable willingness accept portion petitioners thesis reasons cogently set chief justice dissenting opinion ante reasons stated elsewhere opinion find brothers judgments unpersuasive judgments dispositive shall focus primarily broader ground upon petitions cases premised foundations disagreement broader thesis equally applicable concurring opinions therefore endeavor treat one separately attempt predict forms capital statutes may avoid condemnation future variety views expressed collective majority today difficult task performed controlling opinions must go unanswered cases presenting limited inquiries arise whatever uncertainties may hereafter surface several consequences today decision unmistakably clear decision plainly one greatest importance judgment removes death sentences previously imposed persons awaiting punishment state federal prisons throughout country least present also bars federal government seeking sentences death defendants awaiting trial charges capital punishment heretofore potential alternative happy event countable constitutes however visible consequence decision less measurable certainly less significance shattering effect collection views root principles stare decisis federalism judicial restraint importantly separation powers rejects decisive clearest evidence framers constitution authors fourteenth amendment believed documents posed barrier death penalty also brushes aside unbroken line precedent reaffirming heretofore virtually unquestioned constitutionality capital punishment pervasiveness constitutional ruling sought petitioners accepted varying degrees five members today departure established precedent invalidates staggering number state federal laws capital punishment laws less district columbia nullified addition numerous provisions criminal code uniform code military justice also voided judgment wipes laws presently existence denies congress legislatures power adopt new policies contrary policy selected indeed view two brothers people state must denied prerogative amend constitutions provide capital punishment even selectively heinous crime terms constitutional role impact majority ruling greater decision encroaches upon area squarely within historic prerogative legislative branch state federal protect citizenry designation penalties prohibitable conduct sort judgment legislative branch competent make judiciary throughout history justices emphasized gravity decisions invalidating legislative judgments admonishing nine men sit bench duty especially called upon apply expansive due process cruel unusual punishment rubrics recall case name deciding constitutional questions subordinated national local democratic processes extent turning address thesis petitioners case capital punishment thesis proved least large measure persuasive majority first set principles counsel sweeping decision constitution poses first obstacle petitioners argument capital punishment per se unconstitutional relevant provisions fifth eighth fourteenth amendments first provides part person shall held answer capital otherwise infamous crime unless presentment indictment grand jury shall person subject offence twice put jeopardy life limb deprived life liberty property without due process law eighth amendment adopted time fifth proscribes cruel unusual punishments effort discern meaning much written history opinions elsewhere history need restated since whatever punishments framers constitution may intended prohibit cruel unusual language slightest doubt intended absolute bar government authority impose death penalty mcgautha california separate opinion black much made clear three references capital punishment fifth amendment indeed body proposed eighth amendment also provided first crimes act death penalty number offenses stat course specific prohibitions within bill rights limitations exercise power affirmative grant power government therefore read several references capital punishment foreclosing considering whether death penalty particular case offends eighth fourteenth amendments cruel unusual punishments due process law static concepts whose meaning scope sealed time writing designed dynamic gain meaning application specific circumstances many contemplated authors flexibility application broad concepts one hallmarks system government free read constitution meaning plainly variance language language fifth fourteenth amendments history eighth amendment confirm beyond doubt death penalty considered constitutionally permissible punishment however within historic process constitutional adjudication challenge imposition death penalty barbaric manner penalty wholly disproportionate particular criminal act making judgment case may consider contemporary standards extent relevant weighing punishment eighth amendment standard basis consonant history precedent petitioners demand cases seek nothing less total abolition capital punishment judicial fiat ii petitioners assert constitutional issue open one uncontrolled prior decisions view several cases decided eighth amendment assuming constitutionality death penalty without focusing squarely upon issue believe case law easily cast aside numerous occasions assumed asserted constitutionality capital punishment several cases assumption provided necessary foundation decision issue whether particular means carrying capital sentence allowed stand decisions necessarily premised assumption method exacting penalty permissible issue first capital case eighth amendment invoked wilkerson utah whether carrying death sentence public shooting cruel unusual punishment unanimous upheld form execution noting first punishment distinguished mode infliction pretended counsel prisoner cruel unusual went hold cruel unusual punishments forbidden constitution authorities quite sufficient show punishment shooting mode executing death penalty crime murder first degree included category punishments cruel involve torture lingering death punishment death cruel within meaning word used constitution implies something inhuman barbarous something mere extinguishment life case us call examination punishments except death traditional humanity modern law forbids infliction unnecessary pain execution death sentence cruelty constitution protects convicted man cruelty inherent method punishment necessary suffering involved method employed extinguish life humanely four dissenting justices although finding second attempt execution impermissibly cruel expressly recognized validity capital punishment determining whether proposed procedure unconstitutional must measure lawful electrocution electrocution instantaneous inflicted state conformity due process law consideration execution shall instantaneous substantially painless punishment shall reduced nearly possible death original emphasis addition cases constitutionality death penalty necessary foundation decision today undertake absolute abolition death penalty also must reject opinions cases stipulating assuming constitutionality capital punishment trop dulles weems white joined holmes dissenting see also mcgautha california separate opinion black robinson california douglas concurring plurality opinion trop dulles supra special interest since opinion large measure provides foundation present attack death penalty anomalous standard urged petitioners evolving standards decency mark progress maturing society derived opinion unqualifiedly rejects arguments chief justice warren joined justices black douglas whittaker stated flatly outset let us put one side death penalty index constitutional limit punishment whatever arguments may capital punishment moral grounds terms accomplishing purposes punishment forceful death penalty employed throughout history day still widely accepted said violate constitutional concept cruelty state power punish eighth amendment stands assure power exercised within limits civilized standards fines imprisonment even execution may imposed depending upon enormity crime technique outside bounds traditional penalties constitutionally suspect recent precedents witherspoon illinois mcgautha california supra also premised significant degree constitutionality death penalty scope review cases limited questions involving procedures selecting juries regulating deliberations capital cases opinions singularly academic exercise members prepared times find constitution complete prohibition death penalty especially true justice harlan opinion mcgautha full review history capital punishment concluded find quite impossible say committing untrammeled discretion jury power pronounce life death capital cases offensive anything constitution perhaps enough said demonstrate unswerving position taken opinions spanning last hundred years virtually every occasion opinion touched question constitutionality death penalty asserted affirmatively tacitly assumed constitution prohibit penalty justice today dissented consistent reading constitution petitioners cases fairly avoid weight substantial body precedent merely asserting prior decision precisely point stare decisis doctrine founded principle surely applies exists long line cases endorsing necessarily assuming validity particular matter constitutional interpretation green frankfurter concurring expressions unchallenged belief constitutionality capital punishment may justify summary disposition constitutional question us views expressed joined years less justices therefore merit greatest respect resolve set views aside indeed heavy burden iii petitioners seek avoid authority foregoing cases weight express recognition constitution reasoning withstand analysis thesis petitioners case derives several opinions members recognized dynamic nature prohibition cruel unusual punishments final meaning words set rather use words chief justice warren speaking plurality trop dulles words amendment precise scope static amendment must draw meaning evolving standards decency mark progress maturing society whether one views question one due process cruel unusual punishment convenience case issue essentially fundamental premise upon either standard based notions constitutes cruel unusual punishment due process evolve neither congress state legislature today tolerate pillorying branding cropping nailing ears punishments existence colonial era however punishment prescribed courts certainly enjoin execution see jackson bishop likewise approve method implementation death sentence found involve unnecessary cruelty light presently available alternatives similarly may well process evolving attitude respect application death sentence particular crimes see mcgautha california douglas dissenting asked consider permissibility several methods employed carrying death sentence asked least part core submission cases determine whether penalty might grossly excessive punishment specific criminal conduct either inquiry call discriminating evaluation particular means relationship particular conduct punishment petitioners principal argument goes far beyond traditional process inclusion exclusion instead argument insists unprecedented constitutional rule absolute prohibition capital punishment crime regardless depravity impact society calling precipitate final judicial end form penalty offensive evolving standards decency petitioners abandon traditional refined approach consistently followed prior eighth amendment precedents saying effect evolutionary process come suddenly end ultimate wisdom appropriateness capital punishment circumstances future generations somehow revealed prior opinions point great clarity reasons us sit particular time act restraint assuming contrary century precedent know answer time come first language applicable provision provides great leeway underlying social policies felt vital importance temptation read personal preference constitution understandably great easy propound subjective standards wise policy rubric less universally held standards decency see trop dulles warren frankfurter dissenting louisiana ex rel francis resweber frankfurter concurring weems mckenna second consideration dictating judicial arises proper recognition respective roles legislative judicial branches designation punishments crimes matter peculiarly within sphere state federal legislative bodies see kemmler trop dulles asked encroach legislative prerogative well counseled proceed utmost reticence review legislative choices performance duty enforce constitution characterized appropriately justice holmes gravest delicate duty called perform blodgett holden separate opinion much graver duty asked pass constitutionality single penalty facts single case instead urged overturn legislative judgments state legislatures well congress majority able claim weems appreciates fullest wide range power legislature possesses adapt penal laws conditions may exist punish crimes men according forms frequency think eloquent statement essential separation powers limitation prerogative found admonition justice frankfurter dissenting trop articulation traditional view takes added significance undertakes nullify legislative judgments congress always basic power congress enact legislation challenged appropriate approach judicial review congressional legislation power congress pass statute challenged function determine whether legislative action lies clearly outside constitutional grant power may fairly referred making determination sits judgment action branch government keeping unto must constitutional system final determination power act rigorous observance difference limits power wise exercise power questions authority questions prudence requires alert appreciation decisive subtle relationship two concepts easily coalesce less require disciplined adhere difference easy stand aloof allow want wisdom prevail disregard one strongly held view wise conduct affairs business pronounce policy must observe fastidious regard limitations power precludes giving effect notions wise politic essence observance judicial oath constitution authorized judges sit judgment wisdom congress executive branch iv although determining range available punishments particular crime legislative function presence cruel unusual punishments clause within bill rights requires context specific case courts decide whether particular acts congress offend amendment due process clause fourteenth amendment imposes judiciary similar obligation scrutinize state legislation proper exercise constitutional obligation cases us today must founded full recognition several considerations set forth affirmative references capital punishment constitution prevailing precedents limitations exercise power imposed tested principles judicial duty avoid encroachment powers conferred upon state federal legislatures face considerations conclusive objective demonstrations warrant holding capital punishment per se unconstitutional burden seeking sweeping decision formidable obstacles almost insuperable viewed perspective believe must case death penalty falls far short petitioners contentions premised indicated view concepts embodied eighth fourteenth amendments evolve present skill persistence list objective indicators said demonstrate prevailing standards human decency progressed final point requiring hold cases time capital punishment unconstitutional briefly summarized proffered indicia contemporary standards decency include following worldwide trend toward disuse death penalty ii reflection scholarly literature progressive rejection capital punishment founded essentially moral opposition treatment iii decreasing numbers executions last years especially last decade iv small number death sentences rendered relation number cases might imposed indication public abhorrence penalty reflected circumstances executions longer public affairs foregoing incomplete summary touches major bases petitioners presentation although appropriate consideration objective evidence petitioners strongly urge two additional propositions contend first penalty survives public condemnation infrequency arbitrariness discriminatory nature application second longer exists legitimate justification utilization ultimate penalty contentions proved persuasive several justices constituting majority deserve separate consideration considered ensuing sections turning arguments first address argument based objective factors attempt discern contemporary standards decency review objective factors must take account several overriding considerations petitioners choose discount ignore democracy first indicator public attitude must always found legislative judgments people chosen representatives justice marshall opinion today catalogues salient statistics forty district columbia federal government still authorize death penalty wide variety crimes number remained relatively static since end world war ante mean however capital punishment become forgotten issue legislative arena recently january congress approved death penalty congressional assassination congress added death penalty presidential vice presidential assassinations additionally aircraft piracy statute passed also carries death penalty justice blackmun dissenting opinion catalogues impressive ease statutes approved ante converse side bill proposing abolition capital punishment federal crimes introduced failed reach senate floor state level new york among recently undertaken reconsideration capital crimes law passed restricted use capital punishment crimes murder police officer murder person serving sentence life imprisonment penal code pause state loss understand urging pursue course absolute abolition matter constitutional judgment draw support new york experience also case respect recent legislative activity canada great britain new york decision restrict availability death penalty product refined discriminating legislative judgment reflecting total rejection capital punishment inherently cruel desire limit circumstances legislative judgment deems retention public interest legislative flexibility permitted contrary course petitioners urge follow addition new york experience number undertaken reconsideration capital punishment recent years four penalty put vote people public referenda means likely supply objective evidence community standards oregon referendum seeking abolition capital punishment failed subsequently approved two years later penalty approved colorado wide margin massachusetts advisory referendum voters likewise recommended retention penalty approximately voters illinois approved penalty addition national commission reform federal criminal laws reports legislative committees massachusetts pennsylvania maryland recommended abolition committees new jersey florida recommended retention legislative views summarized professor hugo bedau compilation sources capital punishment entitled death penalty america legislative representatives think two score still death penalty may inferred fate bills repeal modify death penalty filed recent years legislatures half dozen instances bills emerged committee vote none except delaware become law bills brought floor legislatures vote instances even close second even direct source information reflecting public attitude toward capital punishment jury witherspoon illinois justice stewart joined justices brennan marshall characterized jury historic function sentencing process following terms jury given broad discretion decide whether death proper penalty given case juror general views capital punishment play inevitable role decision man opposes death penalty less one favors make discretionary judgment entrusted state thus obey oath takes juror guided neither rule standard jury must choose life imprisonment capital punishment little must nothing less express conscience community ultimate question life death ne important functions jury perform making selection maintain link contemporary community values penal system link without determination punishment hardly reflect evolving standards decency mark progress maturing society trop dulles one must conclude contrary petitioners submission indicators likely reflect public view legislative bodies state referenda juries actual responsibility support contention evolving standards decency require total abolition capital punishment indeed weight evidence indicates public generally accepted either morality social merit views passionately advocated articulate spokesmen abolition however one may assess amorphous ebb flow public opinion generally volatile issue type inquiry lies periphery core judicial process constitutional cases assessment popular opinion essentially legislative judicial function petitioners seek salvage thesis arguing infrequency discriminatory nature actual resort ultimate penalty tend diffuse public opposition told penalty imposed exclusively uninfluential minorities poor powerless personally ugly socially unacceptable urged pattern application assures large segments public either uninformed unconcerned reason measure punishment prevailing moral standards implicitly argument concedes unsoundness petitioners contention examined part iv objective evidence shows present widespread community rejection death penalty said effect capital punishment presently offends citizenry public offended penalty enforced nondiscriminatory manner significant percentage charged capital crimes public thereby made aware moral issues surrounding capital punishment rather merely registering objective indicators judicial balance asked ultimately rest constitutional determination prediction regarding subjective judgments mass people hypothetical assumptions may may realistic apart impermissibility basing constitutional judgment magnitude speculative assumptions argument suffers defects petitioners urge engage speculation certain public experience revulsion execute many sentenced capital offenders year executed seems likely public reaction rather characterized undifferentiated rejection depend upon facts circumstances surrounding particular case members know petitions appeals come us regularly brutish revolting murders continue occur disquieting frequency indeed murders commonplace society sensational receive significant sustained publicity hardly suggested highly publicized murder cases several senseless assassinations numerous shocking multiple murders stained country recent history public exhibited signs revulsion thought executing convicted murderers public outcry know quite contrary furthermore little reason suspect public reaction differ significantly response less publicized murders certainly arguable many murders senselessness barbarousness evoke public demand death penalty rather public rejection alternative rational basis arguing public reaction crimes muted murderer rich powerful demand ultimate sanction might well greater wealthy killer hardly sympathetic figure might specific cases capital punishment regarded excessive shocking conscience community hardly argued public dissatisfaction penalty particular cases translate demand absolute abolition pursuing foregoing speculation suggest relevant appropriate disposition cases purpose digression indicate judicial decisions founded speculations assumptions however appealing may seem discrimination argument rest alone projection assumed effect public opinion frequent executions much also made undeniable fact death penalty greater impact lower economic strata society include relatively higher percentage persons minority racial ethnic group backgrounds argument drawn fact part merely extension speculative approach pursued petitioners public revulsion suppressed callous apathy penalty affect persons white middle class constitutes majority country aspect however adds little infrequency rationalization public apathy found unpersuasive justice marshall opinion today demonstrates argument troubling aspect contention average citizen aware disproportionate burden capital punishment borne poor ignorant underprivileged find penalty shocking conscience sense justice stand use ante argument like apathy rationale calls speculation part also illuminates quicksands upon asked base decision indeed two contentions seem require contradictory assumptions regarding public moral attitude toward capital punishment apathy argument predicated assumption penalty used less influential elements society public fully aware tolerates use capital punishment callous indifference offenders sentenced justice marshall argument hand rests contrary assumption public know penalty enforced public educated fact find punishment intolerable ante neither assumption claim entirely accurate portrayal public attitude acceptance capital punishment might consequence hardened apathy based knowledge infrequent uneven application others acceptance may grow ignorance significantly however neither supposition acknowledges basic flaw certainly claim justified criminal sanction falls heavily relatively impoverished underprivileged elements society every society always subject greater pressure commit crimes fewer constraints affluent fellow citizens indeed tragic byproduct social economic deprivation argument constitutional proportions eighth fourteenth amendment discriminatory impact argument made equal force logic respect sentenced prison terms due process clause admits distinction deprivation life deprivation liberty discriminatory impact renders capital punishment cruel unusual likewise renders invalid prescribed penalties crimes violence root causes higher incidence criminal penalties minorities poor cured abolishing system penalties indeed society viable system criminal justice sanctions abolished ameliorated commit crimes happen underprivileged basic problem results penalties imposed criminal conduct social economic factors plagued humanity since beginning recorded history frustrating efforts create country time perfect society poor minorities underprivileged causes underlying problem unrelated constitutional issue finally yet another theory abolishing death penalty reflected varying degrees concurring opinions today predicated discriminatory impact argument quite apart measuring public acceptance rejection death penalty standards decency rationale justice douglas finds punishment cruel unusual arbitrarily invoked finds basic theme equal protection implicit eighth amendment amendment violated jury sentencing may characterized arbitrary discriminatory ante justice stewart purport rely notions equal protection also rests primarily views history arbitrariness ante whatever may facts respect jury sentencing argument calls reconsideration standards aspects decision mcgautha california although unmistakable thrust opinions today see reason reassess standards question considered carefully justice harlan opinion last term recently reaffirmed historic dedication entrusting sentencing function jury untrammeled discretion difficult see hold entire process constitutionally defective eighth amendment reasons find little merit various discrimination arguments least several lights cast cases although presented petitioners today different argument premised equal protection clause might well made negro defendant instance demonstrate members race singled severe punishment others charged offense constitutional violation might established contention made maxwell bishop vacated remanded grounds eighth circuit asked issue writ habeas corpus setting aside death sentence imposed negro defendant convicted rape case substantial statistical evidence introduced tending show pronounced disproportion number negroes receiving death sentences rape parts arkansas elsewhere south evidence excluded found insufficient show discrimination sentencing maxwell trial justice blackmun sitting appeals eighth circuit concluded petitioner argument interesting one disposed say validity weight certain situations like trial however feel argument validity pertinent application maxwell case yet ready condemn upset result reached every case negro rape defendant state arkansas basis broad theories social statistical injustice say ground suspicion death penalty rape may discriminatorily applied decades large area whose statutes provide recognizable indicators improper state practice past automatically invalidate procedure present final comment racial discrimination problem seems appropriate possibility racial bias trial sentencing process diminished recent years segregation society decades past contributed substantially severity punishment interracial crimes longer prevalent country likewise day past juries represent minority group elements community assurance fair trials citizens greater today previous time history standards criminal justice evolved manner favorable accused discriminatory imposition capital punishment far less likely today past vi petitioner branch texas lesser extent petitioners cases us today urge capital punishment cruel unusual longer serves rational legislative interests turning consider whether traditional aims punishment justify death penalty make clear context approach aspect cases first find support language constitution history cases arising view may invalidate category penalties deem less severe penalties adequate serve ends penology cases affirm authority prohibit punishments cruelly inhumane wilkerson utah kemmler punishments cruelly excessive disproportionate particular crimes see part vii infra precedents afford basis striking particular form punishment may persuaded means less stringent equally efficacious secondly free question justifications use capital punishment heavy burden rest attack legislatures judgments prove lack rational justifications long held legislative decisions area lie within special competency branch entitled presumption validity see trop dulles louisiana ex rel francis resweber frankfurter concurring weems kemmler come consider subject reservations expressed two justifications often cited retention capital punishment concept retribution though popular centuries criticized unworthy civilized people yet acknowledged existence retributive element criminal sanctions never heretofore found impermissible williams new york justice black stated retribution longer dominant objective criminal law reformation rehabilitation offenders become important goals criminal jurisprudence retribution alone may seem unworthy justification moral sense utility system criminal justice requiring public support long recognized lord justice denning master rolls appeal england testified subject british royal commission capital punishment many inclined test efficacy punishment solely value deterrent narrow view punishment way society expresses denunciation wrong order maintain respect law essential punishment inflicted grave crimes adequately reflect revulsion felt great majority citizens mistake consider objects punishment deterrent reformative preventive nothing else send prison man guilty motor manslaughter disqualify driving public opinion content truth crimes outrageous society insists adequate punishment deserves irrespective whether deterrent deterrence appealing justification although opinions differ widely indeed deterrence issue lies heart much debate abolitionists retentionists statistical studies based primarily trends abolished penalty tend support view death penalty proved superior deterrent dispute validity conclusion pointing studies show death penalty deterrent effect categories crimes basis literature studies currently available find agreement conclusions drawn royal commission following exhaustive study issue general conclusion reach careful review evidence able obtain deterrent effect capital punishment may stated follows prima facie penalty death likely stronger effect deterrent normal human beings form punishment evidence though convincing statistical evidence fact effect operate universally uniformly many offenders limited may often negligible accordingly important view question perspective base penal policy relation murder exaggerated estimates uniquely deterrent force death penalty still raging debate validity deterrence justification penal sanctions reached sufficiently clear conclusions permit said sanctions ineffective particular context particular group people able appreciate consequences acts vii two cases us today juries imposed sentences death convictions rape cases urged hold even capital punishment permissible crimes cruel unusual punishment crime petitioners cases rely opinions holding eighth amendment addition prohibiting punishments deemed barbarous inhumane also condemns punishments greatly disproportionate crime charged reading amendment first expressed justice field dissenting opinion vermont case defendant charged large number violations vermont liquor laws received fine excess jail sentence fine paid majority refused consider question ground eighth amendment apply dissent carefully examining history amendment fourteenth concluded prohibition binding vermont directed punishments excessive length severity greatly disproportioned offences charged weems adopted justice field view defendant weems charged falsifying government documents sentenced serve years cadena temporal punishment included carrying chains wrists ankles perpetual loss right vote hold office finding sentence grossly excessive length condition imprisonment struck notion disproportionality particular sentences may cruelly excessive particular crimes cited approval recent decisions see robinson california trop dulles see also howard fleming cases providing rationale gauging constitutionality capital sentences imposed rape also indicate existence necessary limitations judicial function use limiting terms various expressions test found opinions grossly excessive greatly disproportionate emphasizes power strike punishments excessive must exercised greatest circumspection noted earlier nothing history cruel unusual punishments clause indicates may properly utilized judiciary strike punishments authorized legislatures imposed juries extraordinary case empowered sit sentencing review implementing personal views members proper role penology usurp function committed legislative branch beyond power competency operating within narrow limits find quite impossible declare death sentence grossly excessive rapes rape widely recognized among serious violent crimes witnessed fact punishable death life imprisonment several reasons rape stands high list serious crimes well known widely viewed atrocious intrusions upon privacy dignity victim never crime committed accidentally rarely said unpremeditated often victim suffers serious physical injury psychological impact often great physical consequences real sense threat types injury always present reasons reasons arguing abolition death penalty altogether excessiveness rationale provides basis rejection penalty rape cases argument death penalty rape lacks rational justification less severe punishments might viewed accomplishing proper goals penology inapposite considering per se abolition see part vi supra state knowledge respect deterrent value sentence crime inconclusive moreover said concept retribution applies equal force crime rape many cases sordid heinous nature particular crime demeaning humiliating often physically psychologically traumatic call public condemnation period country history frequency crime increasing alarmingly indeed grave event take whatever deterrent retributive weight death penalty retains less sweeping applications disproportionality concept suggested recently fourth circuit struck death sentence ralph warden holding death penalty appropriate punishment rape life endangered chief judge haynsworth joined panel opinion wrote separately denying state maryland petition rehearing order make clear basis joinder stated appropriate test whether life endangered whether victim fact suffered grievous physical psychological harm see rudolph alabama dissent denial certiorari seems tests depart established principles also raise serious practical problems cases victim life endangered distinguished danger found threat serious injury implicit definition rape victim either forced submission physical violence threat violence certainly test provide little comfort either rape defendants cases presently us criminal acts accomplished violent struggle petitioner jackson held scissors blade victim neck petitioner branch less difficulty subduing victim assailants threatened kill victims see justice douglas opinion ante alternate test limiting penalty cases victim suffers physical emotional harm might present even greater problems application physical effects may seen objectively measured emotional impact may impossible gauge particular point time extent duration psychological trauma may known ascertainable prior date trial reject attempts establish specific categories cases death penalty may deemed excessive view groping toward appropriate application eighth amendment view disproportionality test may used either strike death penalty rape altogether install tribunal sentencing review test may find application peculiar circumstances specific cases utilization limited rare case death penalty rendered crime technically falling within legislatively defined class factually falling outside likely legislative intent creating category specific rape cases specific homicides well imagined conduct accused render ultimate penalty grossly excessive punishment although approach may seem painfully slow inadequate wish assume activist legislative role reforming criminal punishments approach dictated prior opinions due recognition limitations judicial power approach rather majority pervasive less refined judgment marks appropriate course eighth amendment viii return overriding question cases whether acting conformity constitution justify judgment abolish capital punishment heretofore known country important keep focus enormity step undertaken today invalidate hundreds state federal laws deprives jurisdictions power legislate respect capital punishment future except manner consistent cloudily outlined views justices purport undertake total abolition nothing short amendment constitution reverse judgments meanwhile flexibility foreclosed normal democratic process well opportunities several respond people expressed ballot referenda massachusetts illinois colorado shut sobering disadvantage constitutional adjudication magnitude universality permanence judgment enduring merit legislative action responsiveness democratic process revision change mistaken judgments may corrected refinements perfected england canada critical choices made studies canvassing competing views countries revisions may made light experience recently presidential commission consider part overall study crime country whether death penalty abolished commission unanimous recommendation follows question whether capital punishment appropriate sanction policy decision made state retained types offenses available strictly limited law enforced nondiscriminatory manner procedures review death sentences fair expeditious state finds administer penalty manner death penalty imposed carried effect penalty abandoned national commission reform federal criminal laws also considered capital punishment issue introductory commentary final report sharp division existed within commission subject capital punishment although majority favored abolition consideration question directed propriety retention abolition legislative matter suggestion difference opinion existing among commission members generally across country resolved one stroke decision similar activity today evident state level undertaken special legislative committees public ballot others deference respect views justices differ seems studies country elsewhere suggest matter policy precedent classic case exercise allegiance judicial restraint know case greater gravity delicacy attached duty called perform whenever legislation state federal challenged constitutional grounds seems sweeping judicial action undertaken today reflects basic lack faith confidence democratic process many may regret failure legislative bodies address capital punishment issue greater frankness effectiveness many might decry failure either abolish penalty entirely selectively establish standards enforcement impatience slowness even unresponsiveness legislatures justification judicial intrusion upon historic powers rarely appropriate opportunity heed philosophy justice oliver wendell holmes justice frankfurter reminded trop whole justice holmes work thirty years service constant reminder power invalidate legislation must exercised either constitutional theory art government stood sole bulwark unwisdom excesses moment justice douglas holds eighth amendment requires legislatures write penal laws evenhanded nonarbitrary requires judges see general laws applied sparsely selectively spottily unpopular groups ante import rationale existing laws must fall remains theoretically possible state congress devise statute capable withstanding claim discriminatory application justice stewart addition reserving judgment least four presently existing statutes ante indicates statutes making capital punishment mandatory category crime providing means assuring wanton freakish application ante present difficult question reach today justice white somewhat different reasons appears come conclusion mandatory system punishment might prove acceptable ante brief selective references opinion note opinions justices obviously adequately summarize thoughtful scholarly views set forth full opinions tried merely select seem respective points primary emphasis majority opinions statutes permit capital punishment variety crimes constitutionality mandatory statutes remains undecided see concurring opinions justice stewart justice white since rhode island capital statute murder life term prisoner mandatory law state struck virtue decision today thorough presentation history cruel unusual punishment clause see justice marshall opinion today ante see also weems white dissenting vermont field dissenting granucci cruel unusual punishments inflicted original meaning rev pointed eighth amendment applied federal government power relation state action limited protecting privileges immunities assuring due process law within fourteenth amendment standard purposes due process held whether state exerted authority within limits fundamental principles liberty justice lie base civil political institutions state georgia placed great emphasis discussion kemmler urged instant cases decided expansive tests due process rather cruel unusual punishments clause per se irrespective whether decisions viewed incorporating eighth amendment see robinson california powell texas seems clear tests applying two provisions fundamentally identical compare justice frankfurter test louisiana ex rel francis resweber concurring opinion chief justice warren test trop dulles justice white stated death method punishment prescribed law course painful sense cruel infliction punishment clearly prohibited word cruel although word manifestly intended forbid resort barbarous unnecessary methods bodily torture executing even penalty death see part iii infra plurality opinion indicates denationalization never explicitly sanctioned government never tested constitution day seems scarcely arguable loss citizenship within eighth amendment prohibition disproportionate offense capital first year independence constitutional dialectic empty reason seriously urged loss citizenship fate worse death brennan dissenting constitutionality per se capital punishment assumed almost without question recently members expressed desire consider constitutionality death penalty respect imposition specific crimes rudolph alabama dissent denial certiorari brief respondent branch texas implicit assumption mcgautha california acceptability death form punishment must prove troublesome urge total abolition presents even severe problem stare decisis justices treat eighth amendment essentially process prohibition justice douglas stating imprisoned mcgautha ante concludes capital punishment unacceptable precisely procedure governing imposition arbitrary discriminatory justice stewart taking dissimilar tack merits disposes mcgautha reference indicating applicable question arose due process clause ante justice white also finds death penalty intolerable process implementation makes attempt distinguish mcgautha clear holding reasons expressed chief justice opinion mcgautha simply distinguished ante various opinions fact overrule recent precedent number includes justices participated wilkerson utah kemmler louisiana ex rel francis well joined plurality dissenting opinions trop dissenting opinion weems see supra see ex parte wilson see part vii infra see sellin death penalty report model penal code project american law institute nations department economic social affairs capital punishment national commission reform federal criminal laws working papers literature moral question legion representative collections strongly held views sides may found bedau death penalty america rev ed royal commission capital punishment minutes evidence department justice national prisoner statistics capital punishment executions executions since june president commission law enforcement administration justice challenge crime free society salient characteristic capital punishment infrequently applied petitioners concede must little weight given lack executions recent years de facto moratorium existed five years cases challenging procedures implementing capital sentence mcgautha california witherspoon illinois infrequency executions years moratorium became fully effective may attributable part decisions giving expanded scope criminal procedural protections bill rights especially fourth fifth amendments miranda arizona mapp ohio additionally decisions early amplifying scope federal habeas corpus remedy also may help account reduction number executions fay noia townsend sain major effect either expanded procedural protections extended collateral remedies may well simply postpone date execution capital offenders thereby leaving ultimately moratorium limbo exact figure number death sentences imposed sentencing authorities judge jury various jurisdictions difficult determine national prisoner statistics hereafter nps show numbers persons received state federal prisons sentence death number however account may sentenced retained local facilities pendency appeals accepting reservation nps figures minimum recent statistics show least persons sentenced death decade nps supra fully reliable statistics available nationwide ratio death sentences cases death statutorily permissible punishment oral argument counsel petitioner estimated ratio one tr oral arg furman georgia others found higher correlation see mcgee capital punishment seen correctional administrator fed pp one every five persons convicted murder received death penalty california bedau death sentences new jersey rutgers rev persons charged murder received death sentence new jersey received death sentence also kalven ziesel american jury murder cases resulted death sentences three representative years see also koeninger capital punishment texas crime delin see people anderson cal cert denied goldberg dershowitz declaring death penalty unconstitutional harv rev see frankfurter law men reprint testimony royal commission capital punishment nine abolished capital punishment without resort courts see bedau supra california state abolish capital punishment judicially people anderson supra hearings subcommittee criminal laws procedures senate committee judiciary sess canada recently undertaken experiment similar conducted england abolishing death penalty crimes stats canada eliz however capital punishment still prescribed crimes including murder police officer corrections official treason piracy great britain many years controversy death penalty undertook experiment abolition murder abolition death penalty act pub acts although abolition murder became final penalty retained several crimes including treason piracy dockyards arson see infra see bedau supra ibid approximately voters approved death penalty see bedau death penalty america fed pp national commission supra bedau supra see state davis connecticut pointed state legislature considered question abolition sessions specifically declined abolish death penalty every time see also mcgautha california williams new york murphy dissenting criminal courts jury sits representative community douglas judges holmes law science science law harv rev see supra tr oral arg aikens california although petition certiorari case dismissed oral argument aikens california counsel argued case furman stated outset argument equally applicable case national prisoner statistics supra fbi uniform crime reports pp public opinion polls little probative relevance corroborate substantially conclusion derived examining legislative activity jury sentencing opinion capital punishment fairly divided louisiana ex rel francis resweber frankfurter concurring see witherspoon illinois poll finding favor death penalty opposed goldberg dershowitz supra poll shows favor retention percentage bedau death penalty america rev ed bedau death penalty america fed pp petitioners suggest judicial branch reflects prevailing standards human decency society may relevant note conclusion reached state courts recent years question acceptability capital punishment last five years alone since de facto moratorium executions began see supra appellate courts passed constitutionality death penalty eighth amendment similar provisions state constitutions every except california people anderson cal cert denied found penalty constitutional year recent decision issue alabama arizona colorado connecticut delaware florida georgia illinois kansas kentucky louisiana maryland missouri nebraska nevada new jersey new mexico north carolina ohio oklahoma south carolina texas utah virginia washington majority state opinions give issue summary exposition many considered question length indeed considered issue evolving standards rubric see state davis state crook la bartholomey state md state alvarez neb state pace every federal passed issue ruled death penalty per se unconstitutional see ralph warden jackson dickson cert denied brief petitioner although aikens case longer us see supra petitioners furman jackson incorporated petitioner brief aikens reference see brief petitioner pp brief petitioner pp available statistics indicate convicted murderers executed highest annual total year since statistics become available nps supra year chosen petitioners stating thesis fact murderers executed year submit palpable public conscience nation profoundly fundamentally revolted death penalty murder abolished forthwith atavistic horror brief petitioner see supra murders certainly crimes committed persons classifiable underprivileged many crimes violence committed professional criminals willingly choose prey upon society easy remunerative way life moreover terms underprivileged poor powerless relative inexact often conveying subjective connotations vary widely depending upon viewpoint purpose user similarly justice white exhibits concern lack meaningful basis distinguishing cases death penalty imposed many cases ante justice brennan justice marshall treat arbitrariness question manner handled petitioners element approach calling total abolition morissette justice jackson spoke tardy unfinished substitution deterrence reformation place retaliation vengeance motivation public prosecution also noted penalties invasions rights property high consequence public demand retribution see also massiah white dissenting noting existence profound dispute whether punish deter rehabilitate cure robinson california douglas concurring louisiana ex rel francis resweber justice frankfurter admonition empowered act simply feeling revulsion state insistence pound flesh lovett frankfurter concurring unishment presupposes offense necessarily act previously declared criminal act retribution exacted royal commission capital punishment minutes evidence report royal commission capital punishment cmd cohen reason law packer limits criminal sanction hart aims criminal law law contemp prob authorities collected comment death penalty cases rev competing contentions summarized working papers national commission reform federal criminal laws supra see also persuasive treatment issue karl menninger crime punishment see bedau death penalty america rev ed national commission supra see sellin supra countervailing considerations tending undercut force professor sellin statistical studies collected national commission supra bedau supra hart murder principles punishment england nw rev report royal commission supra worthy note heart argument legitimate justifications impliedly repudiated last term majority dissenting opinions mcgautha california argument case centered proposition due process requires standards governing jury exercise sentencing function elucidated justice brennan dissent made clear whatever standards might thought exist arise list justifications death penalty retribution deterrence etc standards exist controversy last term hollow one indeed jackson georgia branch texas justice harlan joined justice brewer dissented separately agreed state inflicted cruel unusual punishment addition rape capital offense statutes prescribe life imprisonment permissible punishment least category rape also indicative seriousness crime rape viewed fact nine abolished death punishment crime maximum term years rape murder statistical studies shown average prison term served rapists longer category offense murder macdonald rape offenders victims packer making punishment fit crime harv rev see macdonald supra chambliss types deviance effectiveness legal sanctions rev fbi uniform crime reports incidence rape rose see text accompanying nn supra see supra see supra recent legislative activity new york state serves underline preferability legislative action constitutional adjudication new york abolished death penalty murder leaving crimes penalty still available see text accompanying supra april bill restored death penalty considered state assembly several hours heated debate bill narrowly defeated vote times apr seven years disuse death penalty representatives people state come finally rest question capital punishment decision product popular undone exercise democratic process flexibility permitted abolition even though absolute flows constitutional adjudication president commission law enforcement administration justice challenge crime free society chaired nicholas katzenbach attorney general text report stated among things abolition death penalty widely debated impossible say certainty whether capital punishment significantly reduces incidence heinous crimes hatever views one may efficacy death penalty deterrent clearly undesirable impact administration criminal justice members commission agree present situation administration death penalty many intolerable ibid member presidential commission subscribed recommendations views quoted final report national commission reform federal criminal laws american law institute years study decided take official position question capital punishment although advisory committee favored abolition vote council evenly divided agreement many undoubtedly retain punishment therefore institute efforts directed toward providing standards implementation ali model penal code tent draft see text accompanying nn supra blodgett holden separate opinion holmes see also trop dulles frankfurter dissenting awesome power invalidate legislation practice bounded prudence discerning limits constitutional function must exercised utmost restraint mr judgments today strike penalty nation legislators thought necessary since country founded brothers douglas brennan marshall one fell swoop invalidate laws enacted congress state legislatures consign limbo unconstitutionality single rubric penalties offenses varied unique murder piracy mutiny highjacking desertion face enemy brothers stewart white asserting reliance limited rationale reluctance judges juries actually impose death penalty majority capital cases join judgments cases whatever precise rationale today holding necessarily brings sharp relief fundamental question role judicial review democratic society government elected representatives people power federal judiciary whose members constitutionally insulated responsiveness popular declare invalid laws duly enacted popular branches government answer course found hamilton federalist paper chief justice marshall classic opinion marbury madison cranch story since bears summarization sovereignty resides ultimately people whole adopting written constitution nation subsequently adding amendments instrument granted certain powers national government denied powers national state governments courts exercising judicial function conferred upon art iii constitution assess case whether particular legislative enactment within authority granted constitution enacting body whether runs afoul limitation placed constitution authority body theory people spoken constitution therefore commands superior commands legislature merely agent people founding fathers thus wisely sought best worlds undeniable benefits democratic individual rights protected possible excesses form government courts cases properly entrusted constitution last word short constitutional amendment whether law passed legislature conforms constitution courts general particular last word admonition justice stone dissenting butler must constantly borne mind hile unconstitutional exercise power executive legislative branches government subject judicial restraint check upon exercise power sense disposition mankind whether rulers impose opinions inclinations rule conduct others energetically supported best worst feelings incident human nature hardly ever kept restraint anything want power liberty task judging constitutional cases imposed art iii reason avoided must surely approached deepest humility genuine deference legislative judgment today decision invalidate capital punishment respectfully submit significantly lacking attributes reasons well stated opinions chief justice justice blackmun justice powell conclude decision holding unconstitutional capital punishment act judgment rather act completely ignores strictures justice holmes writing years ago baldwin missouri yet adequately expressed anxiety feel ever increasing scope given fourteenth amendment cutting believe constitutional rights decisions stand see hardly limit sky invalidating rights happen strike majority reason undesirable believe amendment intended give us carte blanche embody economic moral beliefs prohibitions yet think narrower reason seems justify present earlier decisions referred course words due process law taken literal meaning application case late deny given much extended artificial signification still remember great caution shown constitution limiting power slow construe clause fourteenth amendment committing guide discretion validity whatever laws may pass dissenting opinion use due process clause disable protection society crime quite dangerous delicate use federal judicial power use disable social economic experimentation ashcraft tennessee dissenting opinion philosophy framers best described one ablest greatest number james madison federalist framing government administered men men great difficulty lies must first enable government controul governed next place oblige control nature judicial review pointed justice stone dissent butler case makes courts least subject madisonian check event shall best motives expand judicial authority beyond limits contemplated framers reason judicial surely implied expressed condition grant authority judicial review holding cases reached believe complete disregard implied condition