Thurgood Marshall

“ In order to assess whether or not death is an excessive or unnecessary penalty, it is necessary to consider the reasons why a legislature might select it as punishment for one or more offenses, and examine whether less severe penalties would satisfy the legitimate legislative wants as well as capital punishment. If they would, then the death penalty is unnecessary cruelty, and, therefore, unconstitutional. ”

“ Death is irrevocable; life imprisonment is not. Death, of course, makes rehabilitation impossible; life imprisonment does not. In short, death has always been viewed as the ultimate sanction, and it seems perfectly reasonable to continue to view it as such. 91
It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is [408 U.S. 238, 347] a deterrent, but whether it is a better deterrent than life imprisonment. ”

“ The two strongest arguments in favor of capital punishment as a deterrent are both logical hypotheses devoid of evidentiary support, but persuasive nonetheless. The first proposition was best stated by Sir James Stephen in 1864:
"No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. ”

“ Despite the fact that abolitionists have not proved non-deterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society. This is all that they must do. We would shirk our judicial responsibilities if we failed to accept the presently existing statistics and demanded more proof. ”

“ The statistical evidence is not convincing beyond all doubt, but it is persuasive. It is not improper at this point to take judicial notice of the fact that for more than 200 years men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally well. ”

“ In reaching this conclusion, I maintain agreement with that portion of Stephen's hypothesis that suggests that convicted criminals [408 U.S. 238, 355] fear death more than they fear life imprisonment. As I stated earlier, the death penalty is a more severe sanction. The error in the hypothesis lies in its assumption that because men fear death more than imprisonment after they are convicted, they necessarily must weigh potential penalties prior to committing criminal acts and that they will conform their behavior so as to insure that, if caught, they will receive the lesser penalty. ”

“ Until such time, I can only conclude, as has virtually everyone else who has looked at the problem, 130 that capital punishment cannot be defended on the basis of any eugenic purposes.
As for the argument that it is cheaper to execute a capital offender than to imprison him for life, even assuming that such an argument, if true, would support a capital sanction, it is simply incorrect. A disproportionate amount of money spent on prisons is attributable to death row. 131 Condemned men are not productive members of the prison community, although they could be, 132 and executions are expensive. ”

“ THE CHIEF JUSTICE asserts that if we hold that capital punishment is unconstitutional because it is excessive, we will next have to determine whether a 10-year prison sentence rather than a five-year sentence is also excessive, or whether a $5 fine would not do equally well as a $10 fine. ”

“ If retribution alone could serve as a justification for any particular penalty, then all penalties selected by the legislature would by definition be acceptable means for designating society's moral approbation of a particular act. ”

“ In light of these facts, if capital punishment were justified purely on the basis of preventing recidivism, it would have to be considered to be excessive; no general need to obliterate all capital offenders could have been demonstrated, nor any specific need in individual cases.
D. The three final purposes which may underlie utilization of a capital sanction - encouraging guilty pleas and confessions, eugenics, and reducing state expenditures - may be dealt with quickly. ”

“ One would assume that if deterrence were enhanced by capital punishment, the increased deterrence would be most effective with respect to the premeditating murderer or the hired killer who plots his crime before committing it. But, such people rarely expect to be caught and usually assume that if they are caught they will either be acquitted or sentenced to prison. This is a fairly dependable assumption since a reliable estimate is that one person is executed for every 100 capital murders known to the police. Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw. ”

“ C. Much of what must be said about the death penalty as a device to prevent recidivism is obvious - if a murderer is executed, he cannot possibly commit another offense. The fact is, however, that murderers are extremely unlikely to commit other crimes either in prison or upon their release. 126 For the most part, they are first offenders, and when released from prison they are known to become model citizens. 127 Furthermore, most persons who commit capital crimes are not executed. ”

“ The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. . ”

“ There is also a substantial body of data showing that the existence of the death penalty has virtually no effect on the homicide rate in prisons. 116 Most of the persons sentenced to death are murderers, and murderers tend to be model prisoners. 117 [408 U.S. 238, 353]
In sum, the only support for the theory that capital punishment is an effective deterrent is found in the hypotheses with which we began and the occasional stories about a specific individual being deterred from doing a contemplated criminal act. ”

“ Statistics also show that the deterrent effect of capital punishment is no greater in those communities where executions take place than in other communities. 112 In fact, there is some evidence that imposition of capital punishment may actually encourage crime, rather than deter it. ”

“ At trial, the selection of jurors is likely to become a costly, time-consuming problem in a capital case, 135 and defense counsel will reasonably exhaust every possible means to save his client from execution, no matter how long the trial takes. ”

“ Akman, Homicides and Assaults in Canadian Prisons, in Capital Punishment, supra, at 161-168. The argument can be made that the reason for the good record of murderers is that those who are likely to be recidivists are executed. There is, however, no evidence to show that in choosing between life and death sentences juries select the lesser penalties for those persons they believe are unlikely to commit future crimes. ”

“ There are also continual assertions that the condemned prisoner has gone insane. 136 Because there is a formally established policy of not executing insane persons, 137 great sums of money may be spent on detecting and curing mental illness in order to perform the execution. 138 Since no one wants the responsibility for the execution, the condemned man is likely to be passed back and forth from doctors to custodial officials to courts like a ping-pong ball. ”

“ In the New England States, for example, there is no correlation between executions 102 and homicide rates. 103 The same is true for Midwestern States, 104 and for all others studied. Both the United Nations 105 and Great Britain 106 have acknowledged the validity of Sellin's statistics. ”