Capital punishment

“ The very fact that death punishment is more shocking than any other to the imagination, necessarily renders the Courts of Justice more scrupulous in requiring the fullest evidence of guilt. Even that which is the greatest objection to capital punishment, the impossibility of correcting an error once committed, must make, and does make, juries and Judges more careful in forming their opinion, and more jealous in their scrutiny of the evidence. ”

“ And touching this matter, we also think that the abolishment of capital punishment will be one of the forced consequences of solitary confinement; the alarm which this punishment inspires the generation who at this moment people the prisons and the galleys, being such, that many among these incorrigibles prefer to incur the highest penalty known to the law, than imprisonment in a cell; then, doubtless, the punishment of death ought to be suppressed, in order to sweep away this last and frightful alternative. ”

“ 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. ”

“ 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. ”

“ In 1837, 1 Vic. ch. 23, she began, by abolishing the pillory entirely;—and ch. 84, capital punishment is abolished, in all cases of forgery;—ch. 85, capital punishment is inflicted, for administering poison, or doing [Pg 209] bodily injury with intent to mutilate; but other acts, with intent to murder, or maim, or disfigure, are punished with different degrees of transportation and imprisonment.—Ch. 86 takes away capital punishment, in burglary, unless accompanied with violence.—Ch. 87 takes away capital punishment, in case of robbery, unless attended with cutting or wounding. ”

“ Therefore, we should oppose capital punishment by inculcating this knowledge to all men, especially to hangmen’s managers and sympathizers who wrongfully think they are maintaining their position, thanks only to capital punishment. ”

“ That public opinion should be so shocked by the execution of capital punishment, that only the most atrocious murders are thus punished—the sentence, where there is any real extenuation at all, being habitually commuted nowadays—is a condition which would hardly have suggested itself even to the most alert imaginations in an age where small thefts were constantly punished by death. ”

“ Yet even such a lot as this, because there is no one moment at which the suffering is of terrifying intensity, and, above all, because it does not contain the element, so imposing to the imagination, of the unknown, is universally reputed a milder punishment than death—stands in all codes as a mitigation of the capital penalty, and is thankfully accepted as such. ”

“ The bankers, for instance, who petitioned Parliament to abolish capital punishment for forgery, did so, as they said, because they found by experience that the infliction of death, or the possibility of its infliction, prevented the prosecution, the conviction, and the punishment of the criminal ”

“ This problem arises from the fact that the public's desire for retribution, even though this is a goal that the legislature cannot constitutionally pursue as its sole justification for capital punishment, might influence the citizenry's view of the morality of capital punishment. The solution to the problem lies in the fact that no one has ever seriously advanced retribution as a legitimate goal of our society. Defenses of capital punishment are always mounted on deterrent or other similar theories. ”

“ If the time should ever come when the infliction of less severe penalties will suffice to punish crime and safeguard life and property, then capital punishment should be abolished, but that time does not seem to be at hand yet.
If the State has the right to deprive a criminal of life, a fortiori it may inflict lesser punishments, such as flogging and imprisonment. Indeed, certain persons who have authority over others, such as fathers of a family, captains of vessels at sea, and schoolmasters, have the power to inflict smaller punishments in moderation on delinquents under their authority. ”

“ Was there ever yet a criminal who, when sentenced to death and brought out to die, would refuse the offer of a commutation of his sentence for the severest secondary punishment? Surely not. Why is this? It can only be because `All that a man has will he give for his life.' In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly." 95
This hypothesis relates to the use of capital punishment as a deterrent for any crime. ”

“ That the scruple to convict diminishes the certainty of punishment, and therefore raises hopes of impunity, is illustrated by the case of two American brothers who, desirous to perpetrate a murder, waited till their victim had left their State, in which capital punishment had been abolished, and had betaken himself to a State which still retained it, before they ventured to execute their criminal intention. ”

“ Most people approve of capital punishment, but most people wouldn’t do the hangman’s job. ”

“ In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available. ”

“ So few people have been executed in the past decade that capital punishment is [408 U.S. 238, 362] a subject only rarely brought to the attention of the average American. Lack of exposure to the problem is likely to lead to indifference, and indifference and ignorance result in preservation of the status quo, whether or not that is desirable, or desired.
It might be argued that in choosing to remain indifferent and uninformed, citizens reflect their judgment that capital punishment is really a question of utility, not morality, and not one, therefore, of great concern. ”

“ The apathy argument is predicated on the assumption that the penalty is used against the less influential elements of society, that the public is fully aware of this, and that it tolerates use of capital punishment only because of a callous indifference to the offenders who are sentenced. ”

“ All punishments or penal remedies for crime, except capital punishment, may be considered from two points of view: First, as they regard Society; secondly, as they regard the offender.
Where capital punishment is resorted to, the sole end in view is the protection of Society. The malefactor being put to death, there can be no thought of his amendment. And so far as this particular criminal is concerned, Society is henceforth in safety. ”

“ For the right of capital punishment belongs to the State as such, to the public authority, and so before punishment is inflicted it should be proved that the crime was committed by the person charged, and judicial sentence according to law should be passed upon him. In certain cases when the ordinary process of law cannot be followed, and there is danger in delay, the public authority might empower anyone to kill a notorious criminal, but in settled times and ordinarily this should not be done. ”

“ The appropriation for the criminal judiciary department furnishes me another opportunity of again proffering my warmest wishes for the abolition of capital punishment, which the uncertainty of human comprehension renders so alarming, and which must particularly appall those generations who have so irretrievably suffered from the furies of parties ”

“ Capital punishment is the rule, and is almost invariably inflicted in cases of the refusal to pay proper fines, for which demand has been made in correct form, and after a reasonable length of time has been given in which to raise the sum demanded, in punishment of adultery, manslaughter, the putting of another in the position of an accomplice in case of murder or death in feud, or for wounds, provided the culprit be not a kinsman or person closely related by marriage. ”

“ The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution. ”

“ Later, when I had studied the subject more broadly, in considering the effect of the death penalty upon the community at large and as a measure for the protection of society, I could not escape the conviction that in the civilized world of to-day capital punishment is indefensible. ”

“ Justice Powell, according to his official biographer, ultimately concluded that capital punishment: “ ‘serves no useful purpose.’ The United States was ‘unique among the industrialized nations of the West in maintaining the death penalty,’ and it was enforced so rarely that it could not deter. More important, the haggling and delay and seemingly endless litigation in every capital case brought the law itself into disre­ pute.” ”

“ III There are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned. It is not a punishment, such as burning at the stake, that everyone would ineffably find to be repugnant to all civilized standards. Nor is it a punishment so roundly condemned that only a few aberrant legislatures have retained it on the statute books. Capital punishment is authorized by statute in 40 States, the District of Columbia, and in the federal courts for the commission of certain crimes. ”

“ Lord Justice Denning, now Master of the Rolls of the Court of Appeal in England, testified on this subject before the British Royal Commission on Capital Punishment:
Many are inclined to test the efficacy of punishment solely by its value as a deterrent: but this is too narrow a view. Punishment is the way in which society expresses its denunciation of wrongdoing, and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. ”

“ I come now to consider, subject to the reservation above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution — though popular for centuries — is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions, and has never heretofore found it impermissible. ”

“ Capital punishment has been abolished in all our States, and in all European countries except Spain, Portugal, and Russia. Life-imprisonment has taken its place; without pardoning power anywhere, even when the plea of insanity has been sustained. A great gain in our jurisprudence latterly is, making the proved intent and effort to kill identical before the law with successful murder. ”

“ It is the deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind. ”

“ Escape from this empirical stalemate is sought by placing the burden of proof on the States and concluding that they have failed to demonstrate that capital punishment is a more effective deterrent than life imprisonment. ”

“ Two of the several aims of punishment are generally associated with capital punishment — retribution and deterrence. It is argued that retribution can be discounted because that, after all, is what the Eighth Amendment seeks to eliminate. There is no authority suggesting that the Eighth Amendment was intended to purge the law of its retributive elements, and the Court has consistently assumed that retribution is a legitimate dimension of the punishment of crimes. ”

“ At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. C. 9, 1 Stat. 112 (1790) . The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... ”

“ The mind of man offers more resistance to violence and to extreme but brief pains than it does to time and to incessant weariness; for whilst it can, so to speak, gather itself together for a moment to repel the former, its vigorous elasticity is insufficient to resist the long and repeated action of the latter. In the [174] case of capital punishment, each example presented of it is all that a single crime affords; in penal servitude for life, a single crime serves to present numerous and lasting warnings. ”

“ Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment...the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. ”

“ 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. ”