William J. Brennan

“ The question, however, is not whether death serves these supposed purposes of punishment, but whether death serves them more effectively than imprisonment. There is no evidence whatever that utilization of imprisonment, rather than death, encourages private blood feuds and other disorders. Surely if there were such a danger, the execution of a handful of criminals each year would not prevent it. The assertion that death alone is a sufficiently emphatic denunciation for capital crimes suffers from the same defect. ”

“ The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself. Expatriation, for example, is a punishment that "destroys for the individual the political existence that was centuries in the development," that "strips the citizen of his status in the national and international political community," and that puts " [h] is very existence" in jeopardy. Expatriation thus inherently entails "the total destruction of the individual's status in organized society." ”

“ The basic concept underlying the [Clause] is nothing less than the dignity of man. While the State has the power to punish, the [Clause] stands to assure that this power be exercised within the limits of civilized standards. Id. at 100. At bottom, then, the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is "cruel and unusual," therefore, if it does not comport with human dignity. ”

“ That there may be as many as 50 per year does not strengthen the claim. When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible. ”

“ In the United States, as in other nations of the western world, the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance, on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries. ”

“ This natural human feeling appears all about us. There has been no national debate about punishment, in general or by imprisonment comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, see infra at 296-298, nor has any State yet abolished prisons, as some have abolished this punishment. And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. ”

“ The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random [p305] few. As the history of the punishment of death in this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them. ”

“ It is no answer to assert that long delays exist only because condemned criminals avail themselves of their full panoply of legal rights. The right not to be subjected to inhuman treatment cannot, of course, be played off against the right to pursue due process of law, but, apart from that, the plain truth is that it is society that demands, even against the wishes of the criminal, that all legal avenues be explored before the execution is finally carried out.↑ . It was recognized in Trop itself that expatriation is a "punishment short of death." ”

“ Governors, elected by and acting for us, have regularly commuted a substantial number of those sentences. And it is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out. ”

“ Death, of course, is a "traditional" punishment, Trop v. Dulles, supra, at 100, one that "has been employed throughout our history," id. at 99, and its constitutional [p283] background is accordingly an appropriate subject of inquiry.
There is, first, a textual consideration raised by the Bill of Rights itself. The Fifth Amendment declares that if a particular crime is punishable by death, a person charged with that crime is entitled to certain procedural protections. [27] We can thus infer that the Framers recognized the existence of what was then a common punishment. ”

“ LIVERMORE. — The [Eighth Amendment] seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. . . . No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off ”

“ They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline. 2 J. Elliot's Debates 111 (2d ed. 1876) . Holmes' fear that Congress would have unlimited power to prescribe punishments for crimes was echoed by Patrick Henry at the Virginia convention:
. . . Congress, from their general powers, may fully go into business of human legislation. ”

“ Referring to cases in which "prominence [was] given to the power of the legislature to define crimes and their punishment," the Court said:
We concede the power in most of its exercises. We disclaim the right to assert a judgment [p268] against that of the legislature of the expediency of the laws or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. ”

“ The result of this movement is our current system of administering the punishment, under which death sentences are rarely imposed and death is even more rarely inflicted. It is, of course, "We, the People" who are responsible for the rarity both of the imposition and the carrying out of this punishment. Juries, "express [ing] the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U.S. at 519, have been able to bring themselves to vote for death in a mere 100 or so cases among the thousands tried each year where the punishment is available. ”

“ They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation. ”

“ It is the universal experience in the administration of criminal justice that those charged with capital offenses are granted special considerations. Ibid. See Williams v. Florida, 399 U.S. 78, 103 (1970) (all States require juries of 12 in death cases) . This Court, too, almost [p287] always treats death cases as a class apart. [34] And the unfortunate effect of this punishment upon the functioning of the judicial process is well known; no other punishment has a similar effect. ”

“ Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly [p297] more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtually ceased. ”

“ Soldiers convicted of desertion or other capital military offenses are, in the great majority of cases, sentenced to be shot, and the ceremony for such occasions is given in great fulness by the writers upon the subject of courts-martial. ”