3. The United States Supreme Court, 1972.
Numero Uno—“I love your verses with all my heart, dear Miss Barrett,—and this is no off-hand complimentary letter that I shall write,—whatever else, no prompt matter-of-course recognition of your genius, and there a graceful and natural end of the thing. Since the day last week when I first read your poems, I quite laugh to remember how I have been turning and turning again in my mind what I should be able to tell you of their effect upon me, for in the first flush of delight I thought I would this once get out of my habit of purely passive enjoyment, when I do really enjoy, and thoroughly justify my admiration—perhaps even, as a loyal fellow-craftsman should, try and find fault and do you some little good to be proud of hereafter!—but nothing comes of it all—so into me has it gone, and part of me has it become, this great living poetry of yours, not a flower of which but took root and grew—Oh, how different that is from lying to be dried and pressed flat, and prized highly, and put in a book with a proper account at top and bottom, and shut up and put away … and the book called a ‘Flora,’ besides! After all, I need not give up the thought of doing that, too, in time; because even now, talking with whoever is worthy, I can give a reason for my faith in one and another excellence, the fresh strange music, the affluent language, the exquisite pathos and true new brave thought; but in this addressing myself to you—your own self, and for the first time, my feeling rises altogether. I do, as I say, love these books with all my heart—and I love you too. Do you know I was once not very far from seeing—really seeing you? Mr. Kenyon said to me one morning ‘Would you like to see Miss Barrett?’ then he went to announce me,—then he returned … you were too unwell, and now it is years ago, and I feel as at some untoward passage in my travels, as if I had been close, so close, to some world’s-wonder in chapel or crypt, only a screen to push and I might have entered, but there was some slight, so it now seems, slight and just sufficient bar to admission, and the half-opened door shut, and I went home my thousands of miles, and the sight was never to be?Well, these Poems were to be, and this true thankful joy and pride with which I feel myself,
Yours ever faithfully,
50 Wimpole St.
E.B.B. to R.B.
50 Wimpole Street: Jan. 11, 1845.
I thank you, dear Mr. Browning, from the bottom of my heart. You meant to give me pleasure by your letter—and even if the object had not been answered, I ought still to thank you. But it is thoroughly answered. Such a letter from such a hand! Sympathy is dear—very dear to me: but the sympathy of a poet, and of such a poet, is the quintessence of sympathy to me! Will you take back my gratitude for it?—agreeing, too, that of all the commerce done in the world, from Tyre to Carthage, the exchange of sympathy for gratitude is the most princely thing!
For the rest you draw me on with your kindness. It is difficult to get rid of people when you once have given them too much pleasure—that is a fact, and we will not stop for the moral of it. What I was going to say—after a little natural hesitation—is, that if ever you emerge without inconvenient effort from your ‘passive state,’ and will tell me of such faults as rise to the surface and strike you as important in my poems, (for of course, I do not think of troubling you with criticism in detail) you will confer a lasting obligation on me, and one which I shall value so much, that I covet it at a distance. I do not pretend to any extraordinary meekness under criticism and it is possible enough that I might not be altogether obedient to yours. But with my high respect for your power in your Art and for your experience as an artist, it would be quite impossible for me to hear a general observation of yours on what appear to you my master-faults, without being the better for it hereafter in some way. I ask for only a sentence or two of general observation—and I do not ask even for that, so as to tease you—but in the humble, low voice, which is so excellent a thing in women—particularly when they go a-begging! The most frequent general criticism I receive, is, I think, upon the style,—’if I would but change my style’! But that is an objection (isn’t it?) to the writer bodily? Buffon says, and every sincere writer must feel, that ‘Le style c’est l’homme‘; a fact, however, scarcely calculated to lessen the objection with certain critics.
Is it indeed true that I was so near to the pleasure and honour of making your acquaintance? and can it be true that you look back upon the lost opportunity with any regret? But—you know—if you had entered the ‘crypt,’ you might have caught cold, or been tired to death, and wished yourself ‘a thousand miles off;’ which would have been worse than travelling them. It is not my interest, however, to put such thoughts in your head about its being ‘all for the best’; and I would rather hope (as I do) that what I lost by one chance I may recover by some future one. Winters shut me up as they do dormouse’s eyes; in the spring, we shall see: and I am so much better that I seem turning round to the outward world again. And in the meantime I have learnt to know your voice, not merely from the poetry but from the kindness in it. Mr. Kenyon often speaks of you—dear Mr. Kenyon!—who most unspeakably, or only speakably with tears in my eyes,—has been my friend and helper, and my book’s friend and helper! critic and sympathiser, true friend of all hours! You know him well enough, I think, to understand that I must be grateful to him.
I am writing too much,—and notwithstanding that I am writing too much, I will write of one thing more. I will say that I am your debtor, not only for this cordial letter and for all the pleasure which came with it, but in other ways, and those the highest: and I will say that while I live to follow this divine art of poetry, in proportion to my love for it and my devotion to it, I must be a devout admirer and student of your works. This is in my heart to say to you—and I say it.
And, for the rest, I am proud to remain
Your obliged and faithful
Elizabeth B. Barrett.
Robert Browning, Esq.
New Cross, Hatcham, Surrey.
R.B. to E.B.B.
New Cross, Hatcham, Surrey.
Jan. 13, 1845.
Dear Miss Barrett,—I just shall say, in as few words as I can, that you make me very happy, and that, now the beginning is over, I dare say I shall do better, because my poor praise, number one, was nearly as felicitously brought out, as a certain tribute to no less a personage than Tasso, which I was amused with at Rome some weeks ago, in a neat pencilling on the plaister-wall by his tomb at Sant’Onofrio—’Alla cara memoria—di—(please fancy solemn interspaces and grave capital letters at the new lines) di—Torquato Tasso—il Dottore Bernardini—offriva—il seguente Carme—O tu‘—and no more,—the good man, it should seem, breaking down with the overload of love here! But my ‘O tu’—was breathed out most sincerely, and now you have taken it in gracious part, the rest will come after. Only,—and which is why I write now—it looks as if I have introduced some phrase or other about ‘your faults’ so cleverly as to give exactly the opposite meaning to what I meant, which was, that in my first ardour I had thought to tell you of everything which impressed me in your verses, down, even, to whatever ‘faults’ I could find,—a good earnest, when I had got to them, that I had left out not much between—as if some Mr. Fellows were to say, in the overflow of his first enthusiasm of rewarded adventure: ‘I will describe you all the outer life and ways of these Lycians, down to their very sandal-thongs,’ whereto the be-corresponded one rejoins—’Shall I get next week, then, your dissertation on sandal-thongs’? Yes, and a little about the ‘Olympian Horses,’ and God-charioteers as well!
What ‘struck me as faults,’ were not matters on the removal of which, one was to have—poetry, or high poetry,—but the very highest poetry, so I thought, and that, to universal recognition. For myself, or any artist, in many of the cases there would be a positive loss of time, peculiar artist’s pleasure—for an instructed eye loves to see where the brush has dipped twice in a lustrous colour, has lain insistingly along a favourite outline, dwelt lovingly in a grand shadow; for these ‘too muches’ for the everybody’s picture are so many helps to the making out the real painter’s picture as he had it in his brain. And all of the Titian’s Naples Magdalen must have once been golden in its degree to justify that heap of hair in her hands—the only gold effected now!
But about this soon—for night is drawing on and I go out, yet cannot, quiet at conscience, till I report (to myself, for I never said it to you, I think) that your poetry must be, cannot but be, infinitely more to me than mine to you—for you do what I always wanted, hoped to do, and only seem now likely to do for the first time. You speak out, you,—I only make men and women speak—give you truth broken into prismatic hues, and fear the pure white light, even if it is in me, but I am going to try; so it will be no small comfort to have your company just now, seeing that when you have your men and women aforesaid, you are busied with them, whereas it seems bleak, melancholy work, this talking to the wind (for I have begun)—yet I don’t think I shall let you hear, after all, the savage things about Popes and imaginative religions that I must say.
See how I go on and on to you, I who, whenever now and then pulled, by the head and hair, into letter-writing, get sorrowfully on for a line or two, as the cognate creature urged on by stick and string, and then come down ‘flop’ upon the sweet haven of page one, line last, as serene as the sleep of the virtuous! You will never more, I hope, talk of ‘the honour of my acquaintance,’ but I will joyfully wait for the delight of your friendship, and the spring, and my Chapel-sight after all!
Ever yours most faithfully,
For Mr. Kenyon—I have a convenient theory about him, and his otherwise quite unaccountable kindness to me; but ’tis quite night now, and they call me.
E.B.B. to R.B.
50 Wimpole Street: Jan. 15, 1845.
Dear Mr. Browning,—The fault was clearly with me and not with you.
When I had an Italian master, years ago, he told me that there was an unpronounceable English word which absolutely expressed me, and which he would say in his own tongue, as he could not in mine—’testa lunga.’ Of course, the signor meant headlong!—and now I have had enough to tame me, and might be expected to stand still in my stall. But you see I do not. Headlong I was at first, and headlong I continue—precipitously rushing forward through all manner of nettles and briars instead of keeping the path; guessing at the meaning of unknown words instead of looking into the dictionary—tearing open letters, and never untying a string,—and expecting everything to be done in a minute, and the thunder to be as quick as the lightning. And so, at your half word I flew at the whole one, with all its possible consequences, and wrote what you read. Our common friend, as I think he is, Mr. Horne, is often forced to entreat me into patience and coolness of purpose, though his only intercourse with me has been by letter. And, by the way, you will be sorry to hear that during his stay in Germany he has been ‘headlong’ (out of a metaphor) twice; once, in falling from the Drachenfels, when he only just saved himself by catching at a vine; and once quite lately, at Christmas, in a fall on the ice of the Elbe in skating, when he dislocated his left shoulder in a very painful manner. He is doing quite well, I believe, but it was sad to have such a shadow from the German Christmas tree, and he a stranger.
In art, however, I understand that it does not do to be headlong, but patient and laborious—and there is a love strong enough, even in me, to overcome nature. I apprehend what you mean in the criticism you just intimate, and shall turn it over and over in my mind until I get practical good from it. What no mere critic sees, but what you, an artist, know, is the difference between the thing desired and the thing attained, between the idea in the writer’s mind and the ειδωλον cast off in his work. All the effort—the quick’ning of the breath and beating of the heart in pursuit, which is ruffling and injurious to the general effect of a composition; all which you call ‘insistency,’ and which many would call superfluity, and which is superfluous in a sense—you can pardon, because you understand. The great chasm between the thing I say, and the thing I would say, would be quite dispiriting to me, in spite even of such kindnesses as yours, if the desire did not master the despondency. ‘Oh for a horse with wings!’ It is wrong of me to write so of myself—only you put your finger on the root of a fault, which has, to my fancy, been a little misapprehended. I do not say everything I think (as has been said of me by master-critics) but I take every means to say what I think, which is different!—or I fancy so!
In one thing, however, you are wrong. Why should you deny the full measure of my delight and benefit from your writings? I could tell you why you should not. You have in your vision two worlds, or to use the language of the schools of the day, you are both subjective and objective in the habits of your mind. You can deal both with abstract thought and with human passion in the most passionate sense. Thus, you have an immense grasp in Art; and no one at all accustomed to consider the usual forms of it, could help regarding with reverence and gladness the gradual expansion of your powers. Then you are ‘masculine’ to the height—and I, as a woman, have studied some of your gestures of language and intonation wistfully, as a thing beyond me far! and the more admirable for being beyond.
Of your new work I hear with delight. How good of you to tell me. And it is not dramatic in the strict sense, I am to understand—(am I right in understanding so?) and you speak, in your own person ‘to the winds’? no—but to the thousand living sympathies which will awake to hear you. A great dramatic power may develop itself otherwise than in the formal drama; and I have been guilty of wishing, before this hour (for reasons which I will not thrust upon you after all my tedious writing), that you would give the public a poem unassociated directly or indirectly with the stage, for a trial on the popular heart. I reverence the drama, but—
But I break in on myself out of consideration for you. I might have done it, you will think, before. I vex your ‘serene sleep of the virtuous’ like a nightmare. Do not say ‘No.’ I am sure I do! As to the vain parlance of the world, I did not talk of the ‘honour of your acquaintance’ without a true sense of honour, indeed; but I shall willingly exchange it all (and now, if you please, at this moment, for fear of worldly mutabilities) for the ‘delight of your friendship.’
Believe me, therefore, dear Mr. Browning,
Faithfully yours, and gratefully,
Elizabeth B. Barrett.
For Mr. Kenyon’s kindness, as I see it, no theory will account. I class it with mesmerism for that reason.
R.B. to E.B.B.
New Cross, Hatcham, Monday Night.
[Post-mark, January 28, 1845.]
Dear Miss Barrett,—Your books lie on my table here, at arm’s length from me, in this old room where I sit all day: and when my head aches or wanders or strikes work, as it now or then will, I take my chance for either green-covered volume, as if it were so much fresh trefoil to feel in one’s hands this winter-time,—and round I turn, and, putting a decisive elbow on three or four half-done-with ‘Bells’ of mine, read, read, read, and just as I have shut up the book and walked to the window, I recollect that you wanted me to find faults there, and that, in an unwise hour, I engaged to do so. Meantime, the days go by (the whitethroat is come and sings now) and as I would not have you ‘look down on me from your white heights’ as promise breaker, evader, or forgetter, if I could help: and as, if I am very candid and contrite, you may find it in your heart to write to me again—who knows?—I shall say at once that the said faults cannot be lost, must be somewhere, and shall be faithfully brought you back whenever they turn up,—as people tell one of missing matters. I am rather exacting, myself, with my own gentle audience, and get to say spiteful things about them when they are backward in their dues of appreciation—but really, really—could I be quite sure that anybody as good as—I must go on, I suppose, and say—as myself, even, were honestly to feel towards me as I do, towards the writer of ‘Bertha,’ and the ‘Drama,’ and the ‘Duchess,’ and the ‘Page’ and—the whole two volumes, I should be paid after a fashion, I know.
One thing I can do—pencil, if you like, and annotate, and dissertate upon that I love most and least—I think I can do it, that is.
Here an odd memory comes—of a friend who,—volunteering such a service to a sonnet-writing somebody, gave him a taste of his quality in a side-column of short criticisms on sonnet the First, and starting off the beginning three lines with, of course, ‘bad, worse, worst’—made by a generous mintage of words to meet the sudden run of his epithets, ‘worser, worserer, worserest’ pay off the second terzet in full—no ‘badder, badderer, badderest’ fell to the Second’s allowance, and ‘worser’ &c. answered the demands of the Third; ‘worster, worsterer, worsterest’ supplied the emergency of the Fourth; and, bestowing his last ‘worserestest and worstestest’ on lines 13 and 14, my friend (slapping his forehead like an emptied strong-box) frankly declared himself bankrupt, and honourably incompetent, to satisfy the reasonable expectations of the rest of the series!
What an illustration of the law by which opposite ideas suggest opposite, and contrary images come together!
See now, how, of that ‘Friendship’ you offer me (and here Juliet’s word rises to my lips)—I feel sure once and for ever. I have got already, I see, into this little pet-handwriting of mine (not anyone else’s) which scratches on as if theatrical copyists (ah me!) and Bradbury and Evans’ Reader were not! But you shall get something better than this nonsense one day, if you will have patience with me—hardly better, though, because this does me real good, gives real relief, to write. After all, you know nothing, next to nothing of me, and that stops me. Spring is to come, however!
If you hate writing to me as I hate writing to nearly everybody, I pray you never write—if you do, as you say, care for anything I have done. I will simply assure you, that meaning to begin work in deep earnest, begin without affectation, God knows,—I do not know what will help me more than hearing from you,—and therefore, if you do not so very much hate it, I know I shall hear from you—and very little more about your ‘tiring me.’
Ever yours faithfully,
E.B.B. to R.B.
50 Walpole Street: Feb. 3, 1845.
[Transcriber’s Note: So in original. Should be “Wimpole Street.”]
Why how could I hate to write to you, dear Mr. Browning? Could you believe in such a thing? If nobody likes writing to everybody (except such professional letter writers as you and I are not), yet everybody likes writing to somebody, and it would be strange and contradictory if I were not always delighted both to hear from you and to write to you, this talking upon paper being as good a social pleasure as another, when our means are somewhat straitened. As for me, I have done most of my talking by post of late years—as people shut up in dungeons take up with scrawling mottoes on the walls. Not that I write to many in the way of regular correspondence, as our friend Mr. Horne predicates of me in his romances (which is mere romancing!), but that there are a few who will write and be written to by me without a sense of injury. Dear Miss Mitford, for instance. You do not know her, I think, personally, although she was the first to tell me (when I was very ill and insensible to all the glories of the world except poetry), of the grand scene in ‘Pippa Passes.’ She has filled a large drawer in this room with delightful letters, heart-warm and soul-warm, … driftings of nature (if sunshine could drift like snow), and which, if they should ever fall the way of all writing, into print, would assume the folio shape as a matter of course, and take rank on the lowest shelf of libraries, with Benedictine editions of the Fathers, κ.τ.λ. I write this to you to show how I can have pleasure in letters, and never think them too long, nor too frequent, nor too illegible from being written in little ‘pet hands.’ I can read any MS. except the writing on the pyramids. And if you will only promise to treat me en bon camarade, without reference to the conventionalities of ‘ladies and gentlemen,’ taking no thought for your sentences (nor for mine), nor for your blots (nor for mine), nor for your blunt speaking (nor for mine), nor for your badd speling (nor for mine), and if you agree to send me a blotted thought whenever you are in the mind for it, and with as little ceremony and less legibility than you would think it necessary to employ towards your printer—why, then, I am ready to sign and seal the contract, and to rejoice in being ‘articled’ as your correspondent. Only don’t let us have any constraint, any ceremony! Don’t be civil to me when you feel rude,—nor loquacious when you incline to silence,—nor yielding in the manners when you are perverse in the mind. See how out of the world I am! Suffer me to profit by it in almost the only profitable circumstance, and let us rest from the bowing and the courtesying, you and I, on each side. You will find me an honest man on the whole, if rather hasty and prejudging, which is a different thing from prejudice at the worst. And we have great sympathies in common, and I am inclined to look up to you in many things, and to learn as much of everything as you will teach me. On the other hand you must prepare yourself to forbear and to forgive—will you? While I throw off the ceremony, I hold the faster to the kindness.
Is it true, as you say, that I ‘know so “little”‘ of you? And is it true, as others say, that the productions of an artist do not partake of his real nature, … that in the minor sense, man is not made in the image of God? It is not true, to my mind—and therefore it is not true that I know little of you, except in as far as it is true (which I believe) that your greatest works are to come. Need I assure you that I shall always hear with the deepest interest every word you will say to me of what you are doing or about to do? I hear of the ‘old room’ and the ‘”Bells” lying about,’ with an interest which you may guess at, perhaps. And when you tell me besides, of my poems being there, and of your caring for them so much beyond the tide-mark of my hopes, the pleasure rounds itself into a charm, and prevents its own expression. Overjoyed I am with this cordial sympathy—but it is better, I feel, to try to justify it by future work than to thank you for it now. I think—if I may dare to name myself with you in the poetic relation—that we both have high views of the Art we follow, and stedfast purpose in the pursuit of it, and that we should not, either of us, be likely to be thrown from the course, by the casting of any Atalanta-ball of speedy popularity. But I do not know, I cannot guess, whether you are liable to be pained deeply by hard criticism and cold neglect, such as original writers like yourself are too often exposed to—or whether the love of Art is enough for you, and the exercise of Art the filling joy of your life. Not that praise must not always, of necessity, be delightful to the artist, but that it may be redundant to his content. Do you think so? or not? It appears to me that poets who, like Keats, are highly susceptible to criticism, must be jealous, in their own persons, of the future honour of their works. Because, if a work is worthy, honour must follow it, though the worker should not live to see that following overtaking. Now, is it not enough that the work be honoured—enough I mean, for the worker? And is it not enough to keep down a poet’s ordinary wearing anxieties, to think, that if his work be worthy it will have honour, and, if not, that ‘Sparta must have nobler sons than he’? I am writing nothing applicable, I see, to anything in question, but when one falls into a favourite train of thought, one indulges oneself in thinking on. I began in thinking and wondering what sort of artistic constitution you had, being determined, as you may observe (with a sarcastic smile at the impertinence), to set about knowing as much as possible of you immediately. Then you spoke of your ‘gentle audience’ (you began), and I, who know that you have not one but many enthusiastic admirers—the ‘fit and few’ in the intense meaning—yet not the diffused fame which will come to you presently, wrote on, down the margin of the subject, till I parted from it altogether. But, after all, we are on the proper matter of sympathy. And after all, and after all that has been said and mused upon the ‘natural ills,’ the anxiety, and wearing out experienced by the true artist,—is not the goodimmeasurably greater than the evil? Is it not great good, and great joy? For my part, I wonder sometimes—I surprise myself wondering—how without such an object and purpose of life, people find it worth while to live at all. And, for happiness—why, my only idea of happiness, as far as my personal enjoyment is concerned, (but I have been straightened in some respects and in comparison with the majority of livers!) lies deep in poetry and its associations. And then, the escape from pangs of heart and bodily weakness—when you throw off yourself—what you feel to be yourself—into another atmosphere and into other relations where your life may spread its wings out new, and gather on every separate plume a brightness from the sun of the sun! Is it possible that imaginative writers should be so fond of depreciating and lamenting over their own destiny? Possible, certainly—but reasonable, not at all—and grateful, less than anything!
My faults, my faults—Shall I help you? Ah—you see them too well, I fear. And do you know that I also have something of your feeling about ‘being about to begin,’ or I should dare to praise you for having it. But in you, it is different—it is, in you, a virtue. When Prometheus had recounted a long list of sorrows to be endured by Io, and declared at last that he was μηδεπω εν προοιμιοις,2 poor Io burst out crying. And when the author of ‘Paracelsus’ and the ‘Bells and Pomegranates’ says that he is only ‘going to begin’ we may well (to take ‘the opposite idea,’ as you write) rejoice and clap our hands. Yet I believe that, whatever you may have done, you will do what is greater. It is my faith for you.
And how I should like to know what poets have been your sponsors, ‘to promise and vow’ for you,—and whether you have held true to early tastes, or leapt violently from them, and what books you read, and what hours you write in. How curious I could prove myself!—(if it isn’t proved already).
But this is too much indeed, past all bearing, I suspect. Well, but if I ever write to you again—I mean, if you wish it—it may be in the other extreme of shortness. So do not take me for a born heroine of Richardson, or think that I sin always to this length, else,—you might indeed repent your quotation from Juliet—which I guessed at once—and of course—
I have no joy in this contract to-day!
It is too unadvised, too rash and sudden.
Ever faithfully yours,
Elizabeth B. Barrett.” Elizabeth Barrett Browning, Robert Browning, The Letters of Robert Browning and Elizabeth Barrett; Volume I, 1845-6. http://www.gutenberg.org/
Numero Dos—“Mr. Darwin’s long-standing and well-earned scientific eminence probably renders him indifferent to that social notoriety which passes by the name of success; but if the calm spirit of the philosopher have not yet wholly superseded the ambition and the vanity of the carnal man within him, he must be well satisfied with the results of his venture in publishing the Origin of Species. Overflowing the narrow bounds of purely scientific circles, the ‘species question’ divides with Italy and the Volunteers the attention of general society. Everybody has read Mr. Darwin’s book, or, at least, has given an opinion upon its merits or demerits; pietists, whether lay or ecclesiastic, decry it with the mild railing which sounds so charitable; bigots denounce it with ignorant invective; old ladies of both sexes consider it a decidedly dangerous book, and even savants, who have no better mud to throw, quote antiquated writers to show that its author is no better than an ape himself; while every philosophical thinker hails it as a veritable Whitworth gun in the armoury of liberalism; and all competent naturalists and physiologists, whatever their opinions as to the ultimate fate of the doctrines put forth, acknowledge that the work in which they are embodied is a solid contribution to knowledge and inaugurates a new epoch in natural history.Nor has the discussion of the subject been restrained within the limits of conversation. When the public is eager and interested, reviewers must minister to its wants; and the genuine littérateur is too much in the habit of acquiring his knowledge from the book he judges as the Abyssinian is said to provide himself with steaks from the ox which carries him to be withheld from criticism of a profound scientific work by the mere want of the requisite preliminary scientific acquirement; while, on the other hand, the men of science who wish well to the new views, no less than those who dispute their validity, have naturally sought opportunities of expressing their opinions. Hence it is not surprising that almost all the critical journals have noticed Mr. Darwin’s work at greater or less length; and so many disquisitions, of every degree of excellence, from the poor product of ignorance, too often stimulated by prejudice, to the fair and thoughtful essay of the candid student of Nature, have appeared, that it seems an almost hopeless task to attempt to say anything new upon the question.
But it may be doubted if the knowledge and acumen of prejudged scientific opponents, and the subtlety of orthodox special pleaders, have yet exerted their full force in mystifying the real issues of the great controversy which has been set afoot, and whose end is hardly likely to be seen by this generation; so that, at this eleventh hour, and even failing anything new, it may be useful to state afresh that which is true, and to put the fundamental positions advocated by Mr. Darwin in such a form that they may be grasped by those whose special studies lie in other directions. And the adoption of this course may be the more advisable, because, notwithstanding its great deserts, and indeed partly on account of them, the Origin of Species is by no means an easy book to read if by reading is implied the full comprehension of an author’s meaning.
We do not speak jestingly in saying that it is Mr. Darwin’s misfortune to know more about the question he has taken up than any man living. Personally and practically exercised in zoology, in minute anatomy, in geology; a student of geographical distribution, not on maps and in museums only, but by long voyages and laborious collection; having largely advanced each of these branches of science, and having spent many years in gathering and sifting materials for his present work, the store of accurately registered facts upon which the author of the “Origin of Species” is able to draw at will is prodigious.
But this very superabundance of matter must have been embarrassing to a writer who, for the present, can only put forward an abstract of his views; and thence it arises, perhaps, that notwithstanding the clearness of the style, those who attempt fairly to digest the book find much of it a sort of intellectual pemmican a mass of facts crushed and pounded into shape, rather than held together by the ordinary medium of an obvious logical bond; due attention will, without doubt, discover this bond, but it is often hard to find.
Again, from sheer want of room, much has to be taken for granted which might readily enough be proved; and hence, while the adept, who can supply the missing links in the evidence from his own knowledge, discovers fresh proof of the singular thoroughness with which all difficulties have been considered and all unjustifiable suppositions avoided, at every reperusal of Mr. Darwin’s pregnant paragraphs, the novice in biology is apt to complain of the frequency of what he fancies is gratuitous assumption.
Thus while it may be doubted if, for some years, any one is likely to be competent to pronounce judgment on all the issues raised by Mr. Darwin, there is assuredly abundant room for him, who, assuming the humbler, though perhaps as useful, office of an interpreter between the “Origin of Species” and the public, contents himself with endeavouring to point out the nature of the problems which it discusses; to distinguish between the ascertained facts and the theoretical views which it contains; and finally, to show the extent to which the explanation it offers satisfies the requirements of scientific logic. At any rate, it is this office which we purpose to undertake in the following pages.
It may be safely assumed that our readers have a general conception of the nature of the objects to which the word “species” is applied; but it has, perhaps, occurred to a few, even to those who are naturalists ex professo, to reflect, that, as commonly employed, the term has a double sense and denotes two very different orders of relations. When we call a group of animals, or of plants, a species, we may imply thereby, either that all these animals or plants have some common peculiarity of form or structure; or, we may mean that they possess some common functional character. That part of biological science which deals with form and structure is called Morphology that which concerns itself with function, Physiology so that we may conveniently speak of these two senses, or aspects, of “species” the one as morphological, the other as physiological. Regarded from the former point of view, a species is nothing more than a kind of animal or plant, which is distinctly definable from all others, by certain constant, and not merely sexual, morphological peculiarities. Thus horses form a species, because the group of animals to which that name is applied is distinguished from all others in the world by the following constantly associated characters. They have1, A vertebral column; 2, Mammæ; 3, A placental embryo; 4, Four legs; 5, A single well-developed toe in each foot provided with a hoof; 6, A bushy tail; and 7, Callosities on the inner sides of both the fore and the hind legs. The asses, again, form a distinct species, because, with the same characters, as far as the fifth in the above list, all asses have tufted tails, and have callosities only on the inner side of the fore-legs. If animals were discovered having the general characters of the horse, but sometimes with callosities only on the fore-legs, and more or less tufted tails; or animals having the general characters of the ass, but with more or less bushy tails, and sometimes with callosities on both pairs of legs, besides being intermediate in other respects the two species would have to be merged into one. They could no longer be regarded as morphologically distinct species, for they would not be distinctly definable one from the other.
However bare and simple this definition of species may appear
to be, we confidently appeal to all practical naturalists, whether zoologists, botanists, or palæontologists, to say if, in the vast majority of cases, they know, or mean to affirm anything more of the group of animals or plants they so denominate than what has just been stated. Even the most decided advocates of the received doctrines respecting species admit this.
“I apprehend,” says Professor Owen,* “that few naturalists nowadays, in describing and proposing a name for what they call ‘a new species,‘ use that term to signify what was meant by it twenty or thirty years ago; that is, an originally distinct creation, maintaining its primitive distinction by obstructive generative peculiarities. The proposer of the new species now intends to state no more than he actually knows; as, for example, that the differences on which he founds the specific character are constant in individuals of both sexes, so far as observation has reached; and that they are not due to domestication or to artificially superinduced external circumstances, or to any outward influence within his cognizance; that the species is wild, or is such as it appears by Nature.”
If we consider, in fact, that by far the largest proportion of recorded existing species are known only by the study of their skins, or bones, or other lifeless exuviæ; that we are acquainted with none, or next to none, of their physiological peculiarities, beyond those which can be deduced from their structure, or are open to cursory observation; and that we cannot hope to learn more of any of those extinct forms of life which now constitute no inconsiderable proportion of the known Flora and Fauna of the world: it is obvious that the definitions of these species can be only of a purely structural, or morphological, character. It is probable that naturalists would have avoided much confusion of ideas if they had more frequently borne the necessary limitations of our knowledge in mind. But while it may safely be admitted that we are acquainted with only the morphological characters of the vast majority of species the functional or physiological, peculiarities of a few have been carefully investigated, and the result of that study forms a large and most interesting portion of the physiology of reproduction.
The student of Nature wonders the more and is astonished the less, the more conversant he becomes with her operations; but of all the perennial miracles she offers to his inspection, perhaps the most worthy of admiration is the development of a plant or of an animal from its embryo. Examine the recently laid egg of some common animal, such as a salamander or newt. It is a minute spheroid in which the best microscope will reveal nothing but a structureless
* On the Osteology of the Chimpanzees and Orangs. Transactions of the Zoological Society, 1858.
sac, enclosing a glairy fluid, holding granules in suspension. But strange possibilities lie dormant in that semi-fluid globule. Let a moderate supply of warmth reach its watery cradle, and the plastic matter undergoes changes so rapid, yet so steady and purpose-like in their succession, that one can only compare them to those operated by a skilled modeller upon a formless lump of clay. As with an invisible trowel, the mass is divided and subdivided into smaller and smaller portions, until it is reduced to an aggregation of granules not too large to build withal the finest fabrics of the nascent organism. And, then, it is as if a delicate finger traced out the line to be occupied by the spinal column, and moulded the contour of the body; pinching up the head at one end, the tail at the other, and fashioning flank and limb into due salamandrine proportions, in so artistic a way, that, after watching the process hour by hour, one is almost involuntarily possessed by the notion, that some more subtle aid to vision than an achromatic, would show the hidden artist, with his plan before him, striving with skilful manipulation to perfect his work.
As life advances, and the young amphibian ranges the waters, the terror of his insect contemporaries, not only are the nutritious particles supplied by its prey, by the addition of which to its frame, growth takes place, laid down, each in its proper spot, and in such due proportion to the rest, as to reproduce the form, the colour, and the size, characteristic of the parental stock; but even the wonderful powers of reproducing lost parts possessed by these animals are controlled by the same governing tendency. Cut off the legs, the tail, the jaws, separately or all together, and, as Spallanzani showed long ago, these parts not only grow again, but the redintegrated limb is formed on the same type as those which were lost. The new jaw, or leg, is a newt’s, and never by any accident more like that of a frog. What is true of the newt is true of every animal and of every plant; the acorn tends to build itself up again into a woodland giant such as that from whose twig it fell; the spore of the humblest lichen reproduces the green or brown incrustation which gave it birth; and at the other end of the scale of life, the child that resembled neither the paternal nor the maternal side of the house would be regarded as a kind of monster.
So that the one end to which, in all living beings, the formative impulse is tending the one scheme which the Archæus of the old speculators strives to carry out, seems to be to mould the offspring into the likeness of the parent. It is the first great law of reproduction, that the offspring tends to resemble its parent or parents, more closely than anything else.
Science will some day show us how this law is a necessary consequence of the more general laws which govern matter; but, for
the present, more can hardly be said than that it appears to be in harmony with them. We know that the phænomena of vitality are not something apart from other physical phænomena, but one with them; and matter and force are the two names of the one artist who fashions the living as well as the lifeless. Hence living bodies should obey the same great laws as other matter nor, throughout Nature, is there a law of wider application than this, that a body impelled by two forces takes the direction of their resultant. But living bodies may be regarded as nothing but extremely complex bundles of forces held in a mass of matter, as the complex forces of a magnet are held in the steel by its coercive force; and, since the differences of sex are comparatively slight, or, in other words, the sum of the forces in each has a very similar tendency, their resultant, the offspring, may reasonably be expected to deviate but little from a course parallel to either, or to both.
Represent the reason of the law to ourselves by what physical metaphor or analogy we will, however, the great matter is to apprehend its existence and the importance of the consequences deducible from it. For things which are like to the same are like to one another; and if; in a great series of generations, every offspring is like its parent, it follows that all the offspring and all the parents must be like one another; and that, given an original parental stock, with the opportunity of undisturbed multiplication, the law in question necessitates the production, in course of time, of an indefinitely large group, the whole of the members of which are at once very similar and are blood relations, having descended from the same parent, or pair of parents. The proof that all the members of any given group of animals, or plants, had thus descended, would be ordinarily considered sufficient to entitle them to the rank of physiological species, for most physiologists consider species to be definable as “the offspring of a single primitive stock.”
But though it is quite true that all those groups we call species may, according to the known laws of reproduction, have descended from a single stock, and though it is very likely they really have done so, yet this conclusion rests on deduction and can hardly hope to establish itself upon a basis of observation. And the primitiveness of the supposed single stock, which, after all, is the essential part of the matter, is not only a hypothesis, but one which has not a shadow of foundation, if by “primitive” be meant “independent of any other living being.” A scientific definition, of which an unwarrantable hypothesis forms an essential part, carries its condemnation within itself; but, even supposing such a definition were, in form, tenable, the physiologist who should attempt to apply it in Nature would soon find himself involved in great, if not inextricable, difficulties. As we have said, it is indubitable that offspring tend to resemble the parental organism,
but it is equally true that the similarity attained never amounts to identity either in form or in structure. There is always a certain amount of deviation, not only from the precise characters of a single parent, but when, as in most animals and many plants, the sexes are lodged in distinct individuals, from an exact mean between the two parents. And indeed, on general principles, this slight deviation seems as intelligible as the general similarity, if we reflect how complex the co-operating “bundles of forces” are, and how improbable it is that, in any case, their true resultant shall coincide with any mean between the more obvious characters of the two parents. Whatever be its cause, however, the co-existence of this tendency to minor variation with the tendency to general similarity, is of vast importance in its bearing on the question of the origin of species.
As a general rule, the extent to which an offspring differs from its parent is slight enough; but, occasionally, the amount of difference is much more strongly marked, and then the divergent offspring receives the name of a Variety. Multitudes, of what there is every reason to believe are such varieties, are known, but the origin of very few has been accurately recorded, and of these we will select two as more especially illustrative of the main features of variation. The first of them is that of the “Ancon” or “Otter” sheep, of which a careful account is given by Colonel David Humphreys, F.R.S., in a letter to Sir Joseph Banks, published in the “Philosophical Transactions” for 1813. It appears that one Seth Wright, the proprietor of a farm on the banks of the Charles River, in Massachusetts, possessed a flock of fifteen ewes and a ram of the ordinary kind. In the year 1791, one of the ewes presented her owner with a male lamb, differing, for no assignable reason, from its parents by a proportionally long body and short bandy legs, whence it was unable to emulate its relatives in those sportive leaps over the neighbours’ fences, in which they were in the habit of indulging, much to the good farmer’s vexation.
The second case is that detailed by a no less unexceptionable authority than Réaumur, in his “Art de faire éclore les Poulets.” A Maltese couple, named Kelleia, whose hands and feet were constructed upon the ordinary human model, had born to them a son, Gratio, who possessed six perfectly movable fingers on each hand, and six toes, not quite so well formed, on each foot. No cause could be assigned for the appearance of this unusual variety of the human species.
Two circumstances are well worthy of remark in both these cases. In each, the variety appears to have arisen in full force, and, as it were, per saltum; a wide and definite difference appealing, at once, between the Ancon ram and the ordi-
nary sheep; between the six-fingered and six-toed Gratio Kelleia and ordinary men. In neither case is it possible to point out any obvious reason for the appearance of the variety. Doubtless there were determining causes for these as for all other phænomena; but they do not appear, and we can be tolerably certain that what are ordinarily understood as changes in physical conditions, as in climate, in food, or the like, did not take place and had nothing to do with the matter. It was no case of what is commonly called adaptation to circumstances; but, to use a conveniently erroneous phrase, the variations arose spontaneously. The fruitless search after final causes leads their pursuers a long way; but even those hardy teleologists, who are ready to break through all the laws of physics in chase of their favourite will-o’-the-wisp, may be puzzled to discover what purpose could be attained by the stunted legs of Seth Wright’s ram or the hexadactyle members of Gratio Kelleia.
Varieties then arise we know not why; and it is more than probable that the majority of varieties have arisen in this “spontaneous” manner, though we are, of course, far from denying that they may be traced, in some cases, to distinct external influences; which are assuredly competent to alter the character of the tegumentary covering, to change colour, to increase or diminish the size of muscles, to modify constitution, and, among plants, to give rise to the metamorphosis of stamens into petals, and so forth. But however they may have arisen, what especially interests us at present is, to remark that, once in existence, many varieties obey the fundamental law of reproduction that like tends to produce like; and their offspring exemplify it by tending to exhibit the same deviation from the parental stock as themselves. Indeed, there seems to be, in many instances, a prepotent influence about a newly-arisen variety which gives it what one may call an unfair advantage over the normal descendants from the same stock. This is strikingly exemplified by the case of Gratio Kelleia, who married a woman with the ordinary pentadactyle extremities, and had by her four children, Salvator, George, André, and Marie. Of these children Salvator, the eldest boy, had six fingers and six toes, like his father; the second and third, also boys, had five fingers and five toes, like their mother, though the hands and feet of George were slightly deformed. The last, a girl, had five fingers and five toes, but the thumbs were slightly deformed. The variety thus reproduced itself purely in the eldest, while the normal type reproduced itself purely in the third, and almost purely in the second and last: so that it would seem, at first, as if the normal type were more powerful than the variety. But all these children grew up and intermarried with normal wives and husband, and then, note what took place: Salvator had four children, three of
whom exhibited the hexadactyle members of their grandfather and father, while the youngest had the pentadactyle limbs of the mother and grandmother; so that here, notwithstanding a double pentadactyle dilution of the blood, the hexadactyle variety had the best of it. The same pre-potency of the variety was still more markedly exemplified in the progeny of two of the other children, Marie and George. Marie (whose thumbs only were deformed) gave birth to a boy with six toes, and three other normally formed children; but George, who was not quite so pure a pentadactyle, begot, first, two girls, each of whom had six fingers and toes; then a girl with six fingers on each hand and six toes on the right foot, but only five toes on the left; and lastly, a boy with only five fingers and toes. In these instances, therefore, the variety, as it were, leaped over one generation to reproduce itself in full force in the next. Finally, the purely pentadactyle André was the father of many children, not one of whom departed from the normal parental type.
If a variation which approaches the nature of a monstrosity can strive thus forcibly to reproduce itself, it is not wonderful that less aberrant modifications should tend to be preserved even more strongly; and the history of the Ancon sheep is, in this respect, particularly instructive. With the “cuteness” characteristic of their nation, the neighbours of the Massachusetts farmer imagined it would be an excellent thing if all his sheep were imbued with the stay-at-home tendencies enforced by Nature upon the newly-arrived ram; and they advised Wright to kill the old patriarch of his fold, and install the Ancon ram in his place. The result justified their sagacious anticipations, and coincided very nearly with what occurred to the progeny of Gratio Kelleia. The young lambs were almost always either pure Ancons, or pure ordinary sheep.* But when sufficient Ancon sheep were obtained to interbreed with one another, it was found that the offspring was always pure Ancon. Colonel Humphreys, in fact, states that he was acquainted with only “one questionable case of a contrary nature.” Here, then, is a remarkable and well-established instance, not only of a very distinct race being established per saltum, but of that race
* Colonel Humphreys’ statements are exceedingly explicit on this point: “When an Ancon ewe is impregnated by a common ram, the increase resembles wholly either the ewe or the ram. The increase of the common ewe impregnated by an Ancon ram follows entirely the one or the other, without blending any of the distinguishing and essential peculiarities of both. Frequent instances have happened where common ewes have had twins by Ancon rams, when one exhibited the complete marks and features of the ewe, the other of the ram. The contrast has been rendered singularly striking, when one short-legged and one long-legged lamb, produced at a birth, have been seen sucking the dam at the same time.” Philosophical Transactions, 1813, Pt. I. pp. 89, 90.
breeding “true” at once, and showing no mixed forms, even when crossed with another breed.
By taking care to select Ancons of both sexes, for breeding from, it thus became easy to establish an extremely well-marked race; so peculiar that, even when herded with other sheep, it was noted that the Ancons kept together. And there is every reason to believe that the existence of this breed might have been indefinitely protracted; but the introduction of the Merino sheep, which were not only very superior to the Ancons in wool and meat, but quite as quiet and orderly, led to the complete neglect of the new breed, so that, in 1813, Colonel Humphreys found it difficult to obtain the specimen, the skeleton of which was presented to Sir Joseph Banks. We believe that, for many years, no remnant of it has existed in the United States.
Gratio Kelleia was not the progenitor of a race of six-fingered men, as Seth Wright’s ram became a nation of Ancon sheep, though the tendency of the variety to perpetuate itself appears to have been fully as strong in the one case as in the other. And the reason of the difference is not far to seek. Seth Wright took care not to weaken the Ancon blood by matching his Ancon ewes with any but males of the same variety, while Gratio Kelleia’s sons were too far removed from the patriarchal times to intermarry with their sisters; and his grand-children seem not to have been attracted by their six-fingered cousins. In other words, in the one example a race was produced, because, for several generations, care was taken to select both parents of the breeding stock from animals exhibiting a tendency to vary in the same direction; while, in the other, no race was evolved, because no such selection was exercised. A race is a propagated variety; and as, by the laws of reproduction, offspring tend to assume the parental forms, they will be more likely to propagate a variation exhibited by both parents than that possessed by only one.
There is no organ of the body of an animal which may not, and does not, occasionally, vary more or less from the normal type; and there is no variation which may not be transmitted and which, if selectively transmitted, may not become the foundation of a race. This great truth, sometimes forgotten by philosophers, has long been familiar to practical agriculturists and breeders; and upon it rest all the methods of improving the breeds of domestic animals, which, for the last century, have been followed with so much success in England. Colour, form, size, texture of hair or wool, proportions of various parts, strength or weakness of constitution, tendency to fatten or to remain lean, to give much or little milk, speed, strength, temper, intelligence, special instincts; there is not one of these characters
whose transmission is not an every-day occurrence within the experience of cattle-breeders, stock-farmers, horse-dealers, and dog and poultry fanciers. Nay, it is only the other day that an eminent physiologist, Dr. Brown-Séquard, communicated to the Royal Society his discovery that epilepsy, artificially produced in guinea-pigs, by a means which he has discovered, is transmitted to their offspring.
But a race, once produced, is no more a fixed and immutable entity than the stock whence it sprang; variations arise among its members, and as these variations are transmitted like any others, new races may be developed out of the pre-existing one ad infinitum, or, at least, within any limit at present determined. Given sufficient time and sufficiently careful selection, and the multitude of races which may arise from a common stock is as astonishing as are the extreme structural differences which they may present. A remarkable example of this is to be found in the rock-pigeon, which Mr. Darwin has, in our opinion, satisfactorily demonstrated to be the progenitor of all our domestic pigeons, of which there are certainly more than a hundred well-marked races. The most noteworthy of these races are, the four great stocks known to the “fancy” as tumblers, pouters, carriers, and fantails; birds which not only differ most singularly in size, colour, and habits, but in the form of the beak and of the skull: in the proportions of the beak to the skull; in the number of tail-feathers; in the absolute and relative size of the feet; in the presence or absence of the uropygial gland; in the number of vertebræ in the back; in short, in precisely those characters in which the genera and species of birds differ from one another.
And it is most remarkable and instructive to observe, that none of these races can be shown to have been originated by the action of changes in what are commonly called external circumstances, upon the wild rock-pigeon. On the contrary, from time immemorial pigeon-fanciers have had essentially similar methods of treating their pets, which have been housed, fed, protected and cared for in much the same way in all pigeonries. In fact, there is no case better adapted than that of the pigeons to refute the doctrine which one sees put forth on high authority, that “no other characters than those founded on the development of bone for the attachment of muscles” are capable of variation. In precise contradiction of this hasty assertion, Mr. Darwin’s researches prove that the skeleton of the wings in domestic pigeons has hardly varied at all from that of the wild type; while, on the other hand, it is in exactly those respects, such as the relative length of the beak and skull, the number of the vertebræ, and the number of the tail-feathers,
in which muscular exertion can have no important influence, that the utmost amount of variation has taken place.
We have said that the following out of the properties exhibited by physiological species would lead us into difficulties, and at this point they begin to be obvious; for if, as the result of spontaneous variation and of selective breeding, the progeny of a common stock may become separated into groups distinguished from one another by constant, not sexual, morphological characters, it is clear that the physiological definition of species is likely to clash with the morphological definition. No one would hesitate to describe the pouter and the tumbler as distinct species, if they were found fossil, or if their skins and skeletons were imported, as those of exotic wild birds commonly are and without doubt, if considered alone, they are good and distinct morphological species. On the other hand, they are not physiological species, for they are descended from a common stock, the rock-pigeon.
Under these circumstances, as it is admitted on all sides that races occur in Nature, how are we to know whether any apparently distinct animals are really of different physiological species, or not, seeing that the amount of morphological difference is no safe guide? Is there any test of a physiological species? The usual answer of physiologists is in the affirmative. It is said that such a test is to be found in the phænomena of hybridisation in the results of crossing races, as compared with the results of crossing species.
So far as the evidence goes at present, individuals, of what are certainly known to be mere races produced by selection, however distinct they may appear to be, not only breed freely together, but the offspring of such crossed races are perfectly fertile with one another. Thus, the spaniel and the greyhound, the dray-horse and the Arab, the pouter and the tumbler, breed together with perfect freedom, and their mongrels, if matched with other mongrels of the same kind, are equally fertile.
On the other hand, there can be no doubt that the individuals of many natural species are either absolutely infertile if crossed with individuals of other species, or, if they give rise to hybrid offspring, the hybrids so produced are infertile when paired together. The horse and the ass, for instance, if so crossed, give rise to the mule, and there is no certain evidence of offspring ever having been produced by a male and female mule. The unions of the rock-pigeon and the ring-pigeon appear to be equally barren of result. Here, then, says the physiologist, we have a means of distinguishing any two true species from any two varieties. If a male and a female, selected from each group, produce offspring, and that offspring is fertile with others pro-
duced in the same way, the groups are races and not species. If, on the other hand, no result ensues, or if the offspring are infertile with others produced in the same way, they are true physiological species. The test would be an admirable one, if, in the first place, it were always practicable to apply it, and if, in the second, it always yielded results susceptible of a definite interpretation. Unfortunately, in the great majority of cases, this touchstone for species is wholly inapplicable.
The constitution of many wild animals is so altered by confinement that they will not breed even with their own females, so that the negative results obtained from crosses are of no value; and the antipathy of wild animals of different species for one another, or even of wild and tame members of the same species, is ordinarily so great, that it is hopeless to look for such unions in Nature. The hermaphrodism of most plants, the difficulty in the way of insuring the absence of their own or the proper working of other pollen, are obstacles of no less magnitude in applying the test to them. And, in both animals and plants, is superadded the further difficulty, that experiments must be continued over a long time for the purpose of ascertaining the fertility of the mongrel or hybrid progeny, as well as of the first crosses from which they spring.
Not only do these great practical difficulties lie in the way of applying the hybridisation test, but even when this oracle can be questioned, its replies are sometimes as doubtful as those of Delphi. For example, cases are cited by Mr. Darwin, of plants which are more fertile with the pollen of another species than with their own; and there are others, such as certain Fuci, the male element of which will fertilise the ovule of a plant of distinct species, while the males of the latter species are ineffective with the females of the first. So that, in the last-named instance, a physiologist, who should cross the two species in one way, would decide that they were true species; while another, who should cross them in the reverse way, would, with equal justice, according to the rule, pronounce them to be mere races. Several plants, which there is great reason to believe are mere varieties, are almost sterile when crossed; while both animals and plants, which have always been regarded by naturalists as of distinct species, turn out, when the test is applied, to be perfectly fertile. Again, the sterility or fertility of crosses seems to bear no relation to the structural resemblances or differences of the members of any two groups.
Mr. Darwin has discussed this question with singular ability and circumspection, and his conclusions are summed up as follows, at page 276 of his work:
“First crosses between forms sufficiently distinct to be ranked as
species, and their hybrids, are very generally, but not universally, sterile. The sterility is of all degrees, and is often so slight that the two most careful experimentalists who have ever lived have come to diametrically opposite conclusions in ranking forms by this test. The sterility is innately variable in individuals of the same species, and is eminently susceptible of favourable and unfavourable conditions. The degree of sterility does not strictly follow systematic affinity, but is governed by several curious and complex laws. It is generally different and sometimes widely different, in reciprocal crosses between the same two species. It is not always equal in degree in a first cross, and in the hybrid produced from this cross.
“In the same manner as in grafting trees, the capacity of one species or variety to take on another is incidental on generally unknown differences in their vegetative systems; so in crossing, the greater or less facility of one species to unite with another is incidental on unknown differences in their reproductive systems. There is no more reason to think that species have been specially endowed with various degrees of sterility to prevent them crossing and breeding in Nature, than to think that trees have been specially endowed with various and somewhat analogous degrees of difficulty in being grafted together, in order to prevent them becoming inarched in our forests.
“The sterility of first crosses between pure species, which have their reproductive systems perfect, seems to depend on several circumstances; in some cases largely on the early death of the embryo. The sterility of hybrids which have their reproductive systems imperfect, and which have had this system and their whole organisation disturbed by being compounded of two distinct species, seems closely allied to that sterility which so frequently affects pure species when their natural conditions of life have been disturbed. This view is supported by a parallelism of another kind: namely, that the crossing of forms, only slightly different, is favourable to the vigour and fertility of the offspring; and that slight changes in the conditions of life are apparently favourable to the vigour and fertility of all organic beings. It is not surprising that the degree of difficulty in uniting two species, and the degree of sterility of their hybrid offspring, should generally correspond, though due to distinct causes; for both depend on the amount of difference of some kind between the species which are crossed. Nor is it surprising that the facility of effecting a first cross, the fertility of hybrids produced from it, and the capacity of being grafted together though this latter capacity evidently depends on widely different circumstances should all run to a certain extent parallel with the systematic affinity of the forms which are subjected to experiment; for systematic affinity attempts to express all kinds of resemblance between all species.
“First crosses between forms known to be varieties, or sufficiently alike to be considered as varieties, and their mongrel offspring, are very generally, but not quite universally, fertile. Nor is this nearly general and perfect fertility surprising, when we remember how liable we are to argue in a circle with respect to varieties in a state of Nature; and when we remember that the greater number of varieties have been
produced under domestication by the selection of mere external differences, and not of differences in the reproductive system. In all other respects, excluding fertility, there is a close general resemblance between hybrids and mongrels.” (pp. 276-8).
We fully agree with the general tenor of this weighty passage; but forcible as are these arguments, and little as the value of fertility or infertility as a test of species may be, it must not be forgotten that the really important fact, so far as the inquiry into the origin of species goes, is, that there are such things in Nature as groups of animals and of plants, the members of which are incapable of fertile union with those of other groups; and that there are such things as hybrids, which are absolutely sterile when crossed with other hybrids. For, if such phænomena as these were exhibited by only two of those assemblages of living objects, to which the name of species (whether it be used in its physiological or in its morphological sense) is given, it would have to be accounted for by any theory of the origin of species, and every theory which could not account for it would be, so far, imperfect.
Up to this point, we have been dealing with matters of fact, and the statements which we have laid before the reader would, to the best of our knowledge, be admitted to contain a fair exposition of what is at present known respecting the essential properties of species, by all who have studied the question. And whatever may be his theoretical views, no naturalist will probably be disposed to demur to the following summary of that exposition:
Living beings, whether animals or plants, are divisible into multitudes of distinctly definable kinds, which are morphological species. They are also divisible into groups of individuals, which breed freely together, tending to reproduce their like, and are physiological species. Normally resembling their parents, the offspring of members of these species are still liable to vary; and the variation may be perpetuated by selection, as a race, which race, in many cases, presents all the characteristics of a morphological species. But it is not as yet proved that a race ever exhibits, when crossed with another race of the same species, those phænomena of hybridisation which are exhibited by many species when crossed with other species. On the other hand, not only is it not proved that all species give rise to hybrids infertile inter se, but there is much reason to believe that, in crossing, species exhibit every gradation from perfect sterility to perfect fertility.
Such are the most essential characteristics of species. Even were man not one of them a member of the same system and subject to the same laws the question of their origin, their causal connexion, that is, with the other phænomena of the uni-
verse, must have attracted his attention, as soon as his intelligence had raised itself above the level of his daily wants.
Indeed history relates that such was the case, and has embalmed for us the speculations upon the origin of living beings, which were among the earliest products of the dawning intellectual activity of man. In those early days positive knowledge was not to be had, but the craving after it needed, at all hazards, to be satisfied, and according to the country, or the turn of thought, of the speculator, the suggestion that all living things arose from the mud of the Nile, from a primeval egg, or from some more anthropomorphic agency, afforded a sufficient resting-place for his curiosity. The myths of Paganism are as dead as Osiris or Zeus, and the man who should revive them, in opposition to the knowledge of our time, would be justly laughed to scorn; but the coeval imaginations current among the rude inhabitants of Palestine, recorded by writers whose very name and age are admitted by every scholar to be unknown, have unfortunately not yet shared their fate, but, even at this day, are regarded by nine-tenths of the civilised world as the authoritative standard of fact and the criterion of the justice of scientific conclusions, in all that relates to the origin of things, and, among them, of species. In this nineteenth century, as at the dawn of modern physical science, the cosmogony of the semi-barbarous Hebrew is the incubus of the philosopher and the opprobrium of the orthodox. Who shall number the patient and earnest seekers after truth, from the days of Galileo until now, whose lives have been embittered and their good name blasted by the mistaken zeal of Bibliolaters? Who shall count the host of weaker men whose sense of truth has been destroyed in the effort to harmonise impossibilities whose life has been wasted in the attempt to force the generous new wine of Science into the old bottles of Judaism, compelled by the outcry of the same strong party?
It is true that if philosophers have suffered, their cause has been amply avenged. Extinguished theologians lie about the cradle of every science as the strangled snakes beside that of Hercules; and history records that whenever science and orthodoxy have been fairly opposed, the latter has been forced to retire from the lists, bleeding and crushed if not annihilated; scotched, if not slain. But orthodoxy is the Bourbon of the world of thought. It learns not, neither can it forget; and though, at present, bewildered and afraid to move, it is as willing as ever to insist that the first chapter of Genesis contains the beginning and the end of sound science; and to visit, with such petty thunderbolts as its half-paralysed hands can hurl, those who refuse to degrade Nature to the level of primitive Judaism.
Philosophers, on the other hand, have no such aggressive ten-
dencies. With eyes fixed on the noble goal to which “per aspera et ardua” they tend, they may, now and then, be stirred to momentary wrath by the unnecessary obstacles with which the ignorant, or the malicious, encumber, if they cannot bar, the difficult path; but why should their souls be deeply vexed? The majesty of Fact is on their side, and the elemental forces of Nature are working for them. Not a star comes to the meridian at its calculated time but testifies to the justice of their methods their beliefs are “one with the falling rain and with the growing corn.” By doubt they are established, and open inquiry is their bosom friend. Such men have no fear of traditions however venerable, and no respect for them when they become mischievous and obstructive; but they have better than mere antiquarian business in hand, and if dogmas, which ought to be fossil but are not, are not forced upon their notice, they are too happy to treat them as non-existent.
The hypotheses respecting the origin of species which profess to stand upon a scientific basis, and, as such, alone demand serious attention, are of two kinds. The one, the “special creation” hypothesis, presumes every species to have originated from one or more stocks, these not being the result of the modification of any other form of living matter or arising by natural agencies but being produced, as such, by a supernatural creative act.
The other, the so-called “transmutation” hypothesis, considers that all existing species are the result of the modification of pre-existing species, and those of their predecessors, by agencies similar to those which at the present day produce varieties and races, and therefore in an altogether natural way; and it is a probable, though not a necessary consequence of this hypothesis, that all living beings have arisen from a single stock. With respect to the origin of this primitive stock, or stocks, the doctrine of the origin of species is obviously not necessarily concerned. The transmutation hypothesis, for example, is perfectly consistent either with the conception of a special creation of the primitive germ, or with the supposition of its having arisen, as a modification of inorganic matter, by natural causes.
The doctrine of special creation owes its existence very largely to the supposed necessity of making science accord with the Hebrew cosmogony; but it is curious to observe that, as the doctrine is at present maintained by men of science, it is as hopelessly inconsistent with the Hebrew view as any other hypothesis.
If there be any result which has come more clearly out of geological investigation than another, it is, that the vast series of extinct animals and plants is not divisible, as it was once supposed to be, into distinct groups, separated by sharply-marked boundaries.
There are no great gulfs between epochs and formations no successive periods marked by the appearance of plants, of water animals, and of land animals, en masse.Every year adds to the list of links between what the older geologists supposed to be widely separated epochs: witness the crags linking the drift with older tertiaries; the Maestricht beds linking the tertiaries with the chalk; the St. Cassian beds exhibiting an abundant fauna of mixed mesozoic and palæozoic types, in rocks of an epoch once supposed to be eminently poor in life; witness, lastly, the incessant disputes as to whether a given stratum shall be reckoned devonian or carboniferous, silurian or devonian, cambrian or silurian.
This truth is further illustrated in a most interesting manner by the impartial and highly competent testimony of M. Pictet, from whose calculations of what percentage of the genera of animals, existing in any formation, lived during the preceding formation, it results that in no case is the proportion less than one-third, or 33 per cent. It is the triassic formation, or the commencement of the mesozoic epoch, which has received the smallest inheritance from preceding ages. The other formations not uncommonly exhibit 60, 80, or even 94 per cent. of genera in common with those whose remains are imbedded in their predecessor. Not only is this true, but the subdivisions of each formation exhibit new species characteristic of, and found only in, them; and, in many cases, as in the lias for example, the separate beds of these subdivisions are distinguished by well-marked and peculiar forms of life. A section, a hundred feet thick, will exhibit, at different heights, a dozen species of ammonite, none of which passes beyond its particular zone of limestone, or clay, into the zone below it or into that above it; so that those who adopt the doctrine of special creation must be prepared to admit, that at intervals of time, corresponding with the thickness of these beds, the Creator thought fit to interfere with the natural course of events for the purpose of making a new ammonite. It is not easy to transplant oneself into the frame of mind of those who can accept such a conclusion as this, on any evidence short of absolute demonstration; and it is difficult to see what is to be gained by so doing, since, as we have said, it is obvious that such a view of the origin of living beings is utterly opposed to the Hebrew cosmogony. Deserving no aid from the powerful arm of Bibliolatry, then, does the received form of the hypothesis of special creation derive any support from science or sound logic? Assuredly not much. The arguments brought forward in its favour all take one form: If species were not supernaturally created, we cannot understand the facts x or y, or z; we cannot understand the structure of animals or plants, unless we suppose they were contrived
for special ends; we cannot understand the structure of the eye, except by supposing it to have been made to see with; we cannot understand instincts, unless we suppose animals to have been miraculously endowed with them.
As a question of dialectics, it must be admitted that this sort of reasoning is not very formidable to those who are not to be frightened by consequences. It is an argumentum ad ignorantiam take this explanation or be ignorant. But suppose we prefer to admit our ignorance rather than adopt a hypothesis at variance with all the teachings of Nature? Or, suppose for a moment we admit the explanation, and then seriously ask ourselves how much the wiser are we; what does the explanation explain? Is it any more than a grandiloquent way of announcing the fact, that we really know nothing about the matter? A phænomenon is explained when it is shown to be a case of some general law of Nature; but the supernatural interposition of the Creator can, by the nature of the case, exemplify no law, and if species have really arisen in this way, it is absurd to attempt to discuss their origin.
Or, lastly, let us ask ourselves whether any amount of evidence which the nature of our faculties permits us to attain, can justify us in asserting that any phænomenon is out of the reach of natural causation. To this end it is obviously necessary that we should know all the consequences to which all possible combinations, continued through unlimited time, can give rise. If we knew these, and found none competent to originate species, we should have good ground for denying their origin by natural causation. Till we know them, any hypothesis is better than one which involves us in such miserable presumption.
But the hypothesis of special creation is not only a mere specious mask for our ignorance; its existence in Biology marks the youth and imperfection of the science. For what is the history of every science but the history of the elimination of the notion of creative, or other interferences, with the natural order of the phænomena which are the subject-matter of that science? When Astronomy was young “the morning stars sang together for joy,” and the planets were guided in their courses by celestial hands. Now, the harmony of the stars has resolved itself into gravitation according to the inverse squares of the distances, and the orbits of the planets are deducible from the laws of the forces which allow a schoolboy’s stone to break a window. The lightning was the angel of the Lord; but it has pleased Providence, in these modern times, that science should make it the humble messenger of man, and we know that every flash that shimmers about the horizon on a summer’s evening is determined by ascertainable conditions, and that its direction and brightness
might, if our knowledge of these were great enough, have been calculated.
The solvency of great mercantile companies rests on the validity of the laws which have been ascertained to govern the seeming irregularity of that human life which the moralist bewails as the most uncertain of things; plague, pestilence, and famine are admitted, by all but fools, to be the natural result of causes for the most part fully within human control, and not the unavoidable tortures inflicted by wrathful Omnipotence upon His helpless handiwork.
Harmonious order governing eternally continuous progress the web and woof of matter and force interweaving by slow degrees, without a broken thread, that veil which lies between us and the Infinite that universe which alone we know or can know; such is the picture which science draws of the world, and in proportion as any part of that picture is in unison with the rest, so may we feel sure that it is rightly painted. Shall Biology alone remain out of harmony with her sister sciences?
Such arguments against the hypothesis of the direct creation of species as these are plainly enough deducible from general considerations; but there are, in addition, phænomena exhibited by species themselves, and yet not so much a part of their very essence as to have required earlier mention, which are in the highest degree perplexing, if we adopt the popularly accepted hypothesis. Such are the facts of distribution in space and in time; the singular phænomena brought to light by the study of development; the structural relations of species upon which our systems of classification are founded; the great doctrines of philosophical anatomy, such as that of homology, or of the community of structural plan exhibited by large groups of species differing very widely in their habits and functions.
The species of animals which inhabit the sea on opposite sides of the isthmus of Panama are wholly distinct the animals and plants which inhabit islands are commonly distinct from those of the neighbouring mainlands, and yet have a similarity of aspect. The mammals of the latest tertiary epoch in the Old and New Worlds belong to the same genera, or family groups, as those which now inhabit the same great geographical area. The crocodilian reptiles which existed in the earliest secondary epoch were similar in general structure to those now living, but exhibit slight differences in their vertebræ, nasal passages, and one or two other points. The guinea-pig has teeth which are shed before it is born, and hence can never subserve the masticatory purpose for which they seem contrived, and, in like manner, the female dugong has tusks which never cut the gum. All the members of the same great group run through similar conditions in their
development, and all their parts, in the adult state, are arranged according to the same plan. Man is more like a gorilla than a gorilla is like a lemur. Such are a few, taken at random, among the multitudes of similar facts which modern research has established; but when the student seeks for an explanation of them from the supporters of the received hypothesis of the origin of species, the reply he receives is, in substance, of Oriental simplicity and brevity”Mashallah! it so pleases God!” There are different species on opposite sides of the isthmus of Panama, because they were created different on the two sides. The pliocene mammals are like the existing ones, because such was the plan of creation; and we find rudimental organs and similarity of plan, because it has pleased the Creator to set before Himself a “divine exemplar or archetype,” and to copy it in His works; and somewhat ill, those who hold this view imply, in some of them. That such verbal hocus-pocus should be received as science will one day be regarded as evidence of the low state of intelligence in the nineteenth century, just as we amuse ourselves with the phraseology about Nature’s abhorrence of a vacuum, wherewith Torricellis compatriots were satisfied to explain the rise of water in a pump. And be it recollected that this sort of satisfaction works not only negative but positive ill, by discouraging inquiry, and so depriving man of the usufruct of one of the most fertile fields of his great patrimony, Nature.
The objections to the doctrine of the origin of species by special creation which have been detailed, must have occurred, with more or less force, to the mind of every one who has seriously and independently considered the subject. It is therefore no wonder that, from time to time, this hypothesis should have been met by counter hypotheses, all as well, and some better founded than itself; and it is curious to remark that the inventors of the opposing views seem to have been led into them as much by the knowledge of geology, as by their acquaintance with biology. In fact, when the mind has once admitted the conception of the gradual production of the present physical state of our globe, by natural causes operating through long ages of time, it will be little disposed to allow that living beings have made their appearance in another way, and the speculations of De Maillet and his successors are the natural complement of Scilla’s demonstration of the true nature of fossils.
A contemporary of Newton and of Leibnitz, sharing therefore in the intellectual activity of the remarkable age which witnessed the birth of modern physical science, Benoît de Maillet spent a long life as a consular agent of the French Government in various Mediterranean ports. For sixteen years, in fact, he held the office of Consul-General in Egypt, and the wonderful phænomena
offered by the valley of the Nile appear to have strongly impressed his mind, to have directed his attention to all facts of a similar order which came within his observation, and to have led him to speculate on the origin of the present condition of our globe and of its inhabitants. But, with all his ardour for science, De Maillet seems to have hesitated to publish views which, notwithstanding the ingenious attempts to reconcile them with the Hebrew hypothesis contained in the preface to “Telliamed,” were hardly likely to be received with favour by his contemporaries.
But a short time had elapsed since more than one of the great anatomists and physicists of the Italian school had paid dearly for their endeavours to dissipate some of the prevalent errors; and their illustrious pupil, Harvey, the founder of modern physiology, had not fared so well, in a country less oppressed by the benumbing influences of theology, as to tempt any man to follow his example. Probably not uninfluenced by these considerations, his Catholic majesty’s Consul-General for Egypt kept his theories to himself throughout a long life, for “Telliamed,” the only scientific work which is known to have proceeded from his pen, was not printed till 1735, when its author had reached the ripe age of seventy-nine; and though De Maillet lived three years longer, his book was not given to the world before 1748. Even then it was anonymous to those who were not in the secret of the anagrammatic character of its title; and the preface and dedication are so worded as, in case of necessity, to give the printer a fair chance of falling back on the excuse that the work was intended for a mere jeu d’esprit.
The speculations of the suppositious Indian sage, though quite as sound as those of many a “Mosaic Geology,” which sells exceedingly well, have no great value if we consider them by the light of modern science. The waters are supposed to have originally covered the whole globe; to have deposited the rocky masses which compose its mountains by processes comparable to those which are now forming mud, sand, and shingle; and then to have gradually lowered their level, leaving the spoils of their animal and vegetable inhabitants embedded in the strata. As the dry land appeared, certain of the aquatic animals are supposed to have taken to it, and to have become gradually adapted to terrestrial and aerial modes of existence. But if we regard the general tenor and style of the reasoning in relation to the state of knowledge of the day, two circumstances appear very well worthy of remark. The first, that De Maillet had a notion of the modifiability of living forms (though without any precise information on the subject), and how such modifiability might account for the origin of species; the second, that he very clearly apprehended
the great modern geological doctrine, so strongly insisted upon by Hutton, and so ably and comprehensively expounded by Lyell, that we must look to existing causes for the explanation of past geological events. Indeed, the following passage of the preface, in which De Maillet is supposed to speak of the Indian philosopher Telliamed, his alter ego, might have been written by the most philosophical uniformitarian of the present day:
“Ce qu’il y a d’étonnant, est que pour arriver à ces connoissances il semble avoir perverti l’ordre naturel, puisqu’au lieu de s’attacher d’abord à rechercher l’origine de notre globe il a commencé par travailler à s’instruire de la nature. Mais à l’entendre, ce renversement de l’ordre a été pour lui l’effet d’un génie favorable qui l’a conduit pas à pas et comme par la main aux découvertes les plus sublimes. C’est en décomposant la substance de ce globe par une anatomie exacte de toutes ses parties qu’il a premièrement appris de quelles matières il était composé et quels arrangemens ces mêmes matières observaient entre elles. Ces lumières jointes à l’esprit de comparaison toujours nécessaire à quiconque entreprend de percer les voiles dont la nature aime à se cacher, ont servi de guide à notre philosophe pour parvenir à des connoissances plus intéressantes. Par la matière et l’arrangement de ces compositions il prétend avoir reconnu quelle est la véritable origine de ce globe que nous habitons, comment et par qui il a été formé.” (pp. xix. xx).
But De Maillet was before his age, and as could hardly fail to happen to one who speculated on a zoological and botanical question before Linnæus, and on a physiological problem before Haller, he fell into great errors here and there; and hence, perhaps, the general neglect of his work. Robinet’s speculations are rather behind, than in advance of, those of De Maillet; and though Linnæus may have played with the hypothesis of transmutation, it obtained no serious support until Lamarck adopted it, and advocated it with great ability in his “Philosophie Zoologique.”
Impelled towards the hypothesis of the transmutation of species, partly by his general cosmological and geological views; partly by the conception of a graduated, though irregularly branching, scale of being, which had arisen out of his profound study of plants and of the lower forms of animal life, Lamarck, whose general line of thought often closely resembles that of De Maillet, made a great advance upon the crude and merely speculative manner in which that writer deals with the question of the origin of living beings, by endeavouring to find physical causes competent to effect that change of one species into another, which De Maillet had only supposed to occur. And Lamarck conceived that he had found in Nature such causes, amply sufficient for the purpose in view. It is a physiological fact, he says, that organs are increased in size by action, atrophied by inaction; it is another
physiological fact that modifications produced are transmissible to offspring. Change the actions of an animal, therefore, and you will change its structure, by increasing the development of the parts newly brought into use and by the diminution of those less used; but by altering the circumstances which surround it you will alter its actions, and hence, in the long run, change of circumstance must produce change of organisation. All the species of animals, therefore, are, in Lamarck’s view, the result of the indirect action of changes of circumstance, upon those primitive germs which he considered to have originally arisen, by spontaneous generation, within the waters of the globe. It is curious, however, that Lamarck should insist so strongly* as he has done, that circumstances never in any degree directly modify the form or the organisation of animals, but only operate by changing their wants and consequently their actions; for he thereby brings upon himself the obvious question, How, then, do plants, which cannot be said to have wants or actions, become modified? To this he replies, that they are modified by the changes in their nutritive processes, which are effected by changing circumstances; and it does not seem to have occurred to him that such changes might be as well supposed to take place among animals.
When we have said that Lamarck felt that mere speculation was not the way to arrive at the origin of species, but that it was necessary, in order to the establishment of any sound theory on the subject, to discover by observation or otherwise, some vera causa, competent to give rise to them; that he affirmed the true order of classification to coincide with the order of their development one from another; that he insisted on the necessity of allowing sufficient time, very strongly; and that all the varieties of instinct and reason were traced back by him to the same cause as that which has given rise to species, we have enumerated his chief contributions to the advance of the question. On the other hand, from his ignorance of any power in Nature competent to modify the structure of animals, except the development of parts, or atrophy of them, in consequence of a change of needs, Lamarck was led to attach infinitely greater weight than it deserves to this agency, and the absurdities into which he was led have met with deserved condemnation. Of the struggle for existence, on which, as we shall see, Mr. Darwin lays such great stress, he had no conception; indeed, he doubts whether there really are such things as extinct species, unless they be such large animals as may have met their death at the hands of man; and so little does he dream of there being any other destructive causes at work, that, in discussing
* See Phil. Zoologique, vol. 1, p. 222, et seq.
the possible existence of fossil shells, he asks, “Pourquoi d’ailleurs seroient-ils perdues dès que l’homme n’a pu opérer leur destruction?” (“Phil. Zool.,” vol. i. p. 77.) Of the influence of selection Lamarck has as little notion, and he makes no use of the wonderful phænomena which are exhibited by domesticated animals, and illustrate its powers. The vast influence of Cuvier was employed against the Lamarckian views, and, as the untenability of some of his conclusions was easily shown, his doctrines sank under the opprobrium of scientific, as well as of theological, heterodoxy. Nor have the efforts made of late years to revive them tended to re-establish their credit in the minds of sound thinkers acquainted with the facts of the case; indeed it may be doubted whether Lamarck has not suffered more from his friends than from his foes.
Two years ago, in fact, though we venture to question if even the strongest supporters of the special creation hypothesis had not, now and then, an uneasy consciousness that all was not right, their position seemed more impregnable than ever, if not by its own inherent strength, at any rate by the obvious failure of all the attempts which had been made to carry it. On the other hand, however much the few, who thought deeply on the question of species, might be repelled by the generally received dogmas, they saw no way of escaping from them save by the adoption of suppositions so little justified by experiment or by observation as to be at least equally distasteful.
The choice lay between two absurdities and a middle condition of uneasy scepticism; which last, however unpleasant and unsatisfactory, was obviously the only justifiable state of mind under the circumstances.
Such being the general ferment in the minds of naturalists, it is no wonder that they mustered strong in the rooms of the Linnæan Society, on the 1st of July of the year 1858, to hear two papers by authors living on opposite sides of the globe, working out their results independently, and yet professing to have discovered one and the same solution of all the problems connected with species. The one of these authors was an able naturalist, Mr. Wallace, who had been employed for some years in studying the productions of the islands of the Indian Archipelago, and who had forwarded a memoir embodying his views to Mr. Darwin, for communication to the Linnæan Society. On perusing the essay, Mr. Darwin was not a little surprised to find that it embodied some of the leading ideas of a great work which he had been preparing for twenty years, and parts of which, containing a development of the very same views, had been perused by his private friends fifteen or sixteen years before. Perplexed in what manner to do full justice both to his friend and to himself, Mr. Darwin placed the matter in the hands of Dr. Hooker and Sir Charles
Lyell, by whose advice he communicated a brief abstract of his own views to the Linnæan Society, at the same time that Mr. Wallace’s paper was read. Of that abstract, the work on the “Origin of Species” is an enlargement; but a complete statement of Mr. Darwin’s doctrine is looked for in the large and well-illustrated work which he is said to be preparing for publication.
The Darwinian hypothesis has the merit of being eminently simple and comprehensible in principle, and its essential positions may be stated in a very few words: all species have been produced by the development of varieties from common stocks; by the conversion of these, first into permanent races and then into new species, by the process of natural selection, which process is essentially identical with that artificial selection by which man has originated the races of domestic animals the struggle for existence taking the place of man, and exerting, in the case of natural selection, that selective action which he performs in artificial selection.
The evidence brought forward by Mr. Darwin in support of his hypothesis is of three kinds. First, he endeavours to prove that species may be originated by selection; secondly, he attempts to show that natural causes are competent to exert selection; and thirdly, he tries to prove that the most remarkable and apparently anomalous phænomena exhibited by the distribution, development, and mutual relations of species, can be shown to be deducible from the general doctrine of their origin, which he propounds, combined with the known facts of geological change; and that, even if all these phænomena are not at present explicable by it, none are necessarily inconsistent with it.
There cannot be a doubt that the method of inquiry which Mr. Darwin has adopted is not only rigorously in accordance with the canons of scientific logic, but that it is the only adequate method. Critics exclusively trained in classics or in mathematics, who have never determined a scientific fact in their lives by induction from experiment or observation, prate learnedly about Mr. Darwin’s method, which is not inductive enough, not Baconian enough, forsooth, for them. But even if practical acquaintance with the process of scientific investigation is denied them, they may learn, by the perusal of Mr. Mill’s admirable chapter “On the Deductive Method,” that there are multitudes of scientific inquiries in which the method of pure induction helps the investigator but a very little way.
“The mode of investigation,” (says Mr. Mill) “which from the proved inapplicability of direct methods of observation and experiment, remains to us as the main source of the knowledge we possess, or can acquire, respecting the conditions and laws of recurrence of the more
complex phænomena, is called, in its most general expression, the deductive method, and consists of three operations: the first, one of direct induction; the second, of ratiocination; and the third, of verification.”
Now, the conditions which have determined the existence of species are not only exceedingly complex, but, so far as the great majority of them are concerned, are necessarily beyond our cognisance. But what Mr. Darwin has attempted to do is in exact accordance with the rule laid down by Mr. Mill; he has endeavoured to determine certain great facts inductively, by observation and experiment; he has then reasoned from the data thus furnished; and lastly, he has tested the validity of his ratiocination by comparing his deductions with the observed facts of Nature. Inductively, Mr. Darwin endeavours to prove that species arise in a given way. Deductively, he desires to show that, if they arise in that way, the facts of distribution, development, classification, &c., may be accounted for, i.e. may be deduced from their mode of origin, combined with admitted changes in physical geography and climate, during an indefinite period. And this explanation, or coincidence of observed with deduced facts, is, so far as it extends, a verification of the Darwinian view.
There is no fault to be found with Mr. Darwin’s method, then; but it is another question whether he has fulfilled all the conditions imposed by that method. Is it satisfactorily proved, in fact, that species may be originated by selection? that there is such a thing as natural selection? that none of the phænomena exhibited by species are inconsistent with the origin of species in this way? If these questions can be answered in the affirmative, Mr. Darwin’s view steps out of the rank of hypotheses into those of proved theories; but, so long as the evidence at present adduced falls short of enforcing that affirmation, so long, to our minds, must the new doctrine be content to remain among the former an extremely valuable, and in the highest degree probable, doctrine, indeed the only extant hypothesis which is worth anything in a scientific point of view; but still a hypothesis, and not yet the theory of species.
After much consideration, and with assuredly no bias against Mr. Darwin’s views, it is our clear conviction that, as the evidence stands, it is not absolutely proven that a group of animals, having all the characters exhibited by species in Nature, has ever been originated by selection, whether artificial or natural. Groups having the morphological character of species distinct and permanent races in fact have been so produced over and over again; but there is no positive evidence, at present, that any group of animals has, by variation and selective breeding, given rise to
another group which was, even in the least degree, infertile with the first. Mr. Darwin is perfectly aware of this weak point, and brings forward a multitude of ingenious and important arguments to diminish the force of the objection. We admit the value of these arguments to their fullest extent; nay, we will go so far as to express our belief that experiments, conducted by a skilful physiologist, would very probably obtain the desired production of mutually more or less infertile breeds from a common stock, in a comparatively few years; but still, as the case stands at present, this “little rift within the lute” is not to be disguised nor overlooked.
In the remainder of Mr. Darwin’s argument our own private ingenuity has not hitherto enabled us to pick holes of any great importance; and judging by what we hear and read, other adventurers in the same field do not seem to have been much more fortunate. It has been urged, for instance, that in his chapters on the struggle for existence and on natural selection, Mr. Darwin does not so much prove that natural selection does occur, as that it must occur; but, in fact, no other sort of demonstration is attainable. A race does not attract our attention in Nature until it has, in all probability, existed for a considerable time, and then it is too late to inquire into the conditions of its origin. Again, it is said that there is no real analogy between the selection which takes place under domestication, by human influence, and any operation which can be effected by Nature, for man interferes intelligently. Reduced to its elements, this argument implies that an effect produced with trouble by an intelligent agent must, a fortiori, be more troublesome, if not impossible, to an unintelligent agent. Even putting aside the question whether Nature, acting as she does according to definite and invariable laws, can be rightly called an unintelligent agent, such a position as this is wholly untenable. Mix salt and sand, and it shall puzzle the wisest of men, with his mere natural appliances, to separate all the grains of sand from all the grains of salt; but a shower of rain will effect the same object in ten minutes. And so, while man may find it tax all his intelligence to separate any variety which arises, and to breed selectively from it, the destructive agencies incessantly at work in Nature, if they find one variety to be more soluble in circumstances than the other, will inevitably, in the long run, eliminate it.
A frequent and a just objection to the Lamarckian hypothesis of the transmutation of species is based upon the absence of transitional forms between many species. But against the Darwinian hypothesis this argument has no force. Indeed, one of the most valuable and suggestive parts of Mr. Darwin’s work is that in which he proves, that the frequent absence of transitions is a necessary consequence of his doctrine, and that the stock whence
two or more species have sprung, need in no respect be intermediate between these species. If any two species have arisen from a common stock in the same way as the carrier and the pouter, say, have arisen from the rock-pigeon, then the common stock of these two species need be no more intermediate between the two than the rock-pigeon is between the carrier and pouter. Clearly appreciate the force of this analogy, and all the arguments against the origin of species by selection, based on the absence of transitional forms, fall to the ground. And Mr. Darwin’s position might, we think, have been even stronger than it is if he had not embarrassed himself with the aphorism, “Natura non facit saltum,” which turns up so often in his pages. We believe, as we have said above, that Nature does make jumps now and then, and a recognition of the fact is of no small importance in disposing of many minor objections to the doctrine of transmutation.
But we must pause. The discussion of Mr. Darwin’s arguments in detail would lead us far beyond the limits within which we proposed, at starting, to confine this article. Our object has been attained if we have given an intelligible, however brief, account of the established facts connected with species, and of the relation of the explanation of those facts offered by Mr. Darwin to the theoretical views held by his predecessors and his contemporaries, and, above all, to the requirements of scientific logic. We have ventured to point out that it does not, as yet, satisfy all those requirements; but we do not hesitate to assert that it is as superior to any preceding or contemporary hypothesis, in the extent of observational and experimental basis on which it rests, in its rigorously scientific method, and in its power of explaining biological phænomena, as was the hypothesis of Copernicus to the speculations of Ptolemy. But the planetary orbits turned out to be not quite circular after all, and, grand as was the service Copernicus rendered to science, Kepler and Newton had to come after him. What if the orbit of Darwinism should be a little too circular? What if species should offer residual phænomena, here and there, not explicable by natural selection? Twenty years hence naturalists may be in a position to say whether this is, or is not, the case; but in either event they will owe the author of The Origin of Species an immense debt of gratitude. We should leave a very wrong impression on the reader’s mind if we permitted him to suppose that the value of that work depends wholly on the ultimate justification of the theoretical views which it contains. On the contrary, if they were disproved to-morrow, the book would still be the best of its kind the most compendious statement of well-sifted facts bearing on the doctrine of species that has ever appeared. The chapters on Variation, on the Struggle for Existence, on Instinct, on Hybridism, on the Imperfection of the Geological Record, on Geographical Distribution, have not only no equals, but, so far as our knowledge goes, no competitors, within the range of biological literature. And viewed as a whole, we do not believe that, since the publication of Von Baer’s Researches on Development, thirty years ago, any work has appeared calculated to exert so large an influence, not only on the future of Biology, but in extending the domination of Science over regions of thought into which she has, as yet, hardly penetrated.” Thomas Henry Huxley, “Darwin on the Origin of Species;” a review of On the Origin of Species by means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life, Westminster Review, 1860. http://darwin-online.org.uk/
403 U.S. 952 (1971). The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL have filed separate opinions in support of the judgments. THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST have filed separate dissenting opinions.
MR. JUSTICE DOUGLAS, concurring.
In these three cases the death penalty was imposed, one of them for murder, and two for rape. In each, the determination of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge or of the jury. In each of the three cases, the trial was to a jury. They are here on petitions for certiorari which we granted limited to the question whether the imposition and execution of the death penalty constitute “cruel and unusual punishment” within the meaning of the Eighth Amendment as applied to the States by the Fourteenth. [Footnote 1] I vote to vacate each judgment, believing that the exaction of the death penalty does violate the Eighth and Fourteenth Amendments.
That the requirements of due process ban cruel and unusual punishment is now settled. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 463, and 329 U. S. 473-474 (Burton, J., dissenting); Robinson v. California, 370 U. S. 660, 370 U. S. 667. It is also settled that the proscription of cruel and unusual punishments forbids the judicial imposition of them as well as their imposition by the legislature. Weems v. United States, 217 U. S. 349, 217 U. S. 378-382.
Congressman Bingham, in proposing the Fourteenth Amendment, maintained that “the privileges or immunities of citizens of the United States,” as protected by the Fourteenth Amendment, included protection against “cruel and unusual punishments:”
“[M]any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, ‘cruel and unusual punishments’ have been inflicted under State laws within this Union upon citizens not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy, and could provide none.”
Cong. Globe, 39th Cong., 1st Sess., 2542.
Whether the privileges and immunities route is followed or the due process route, the result is the same.
It has been assumed in our decisions that punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In re Kemmler, 136 U. S. 436, 136 U. S. 447. It is also said in our opinions
that the proscription of cruel and unusual punishments “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, supra, at 217 U. S. 378. A like statement was made in Trop v. Dulles, 356 U. S. 86, 356 U. S. 101, that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.
It would seem to be incontestable that the death penalty inflicted on one defendant is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.
There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties, and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature: [Footnote 2]
“Following the Norman conquest of England in 1066, the old system of penalties, which ensured equality between crime and punishment, suddenly disappeared. By the time systematic judicial records were kept, its demise was almost complete. With the exception of certain grave crimes for which the punishment was death or outlawry, the arbitrary fine was replaced by a discretionary
amercement. Although amercement’s discretionary character allowed the circumstances of each case to be taken into account, and the level of cash penalties to be decreased or increased accordingly, the amercement presented an opportunity for excessive or oppressive fines.”
“The problem of excessive amercements became so prevalent that three chapters of the Magna Carta were devoted to their regulation. Maitland said of Chapter 14 that, ‘very likely, there was no clause in the Magna Carta more grateful to the mass of the people.’ Chapter 14 clearly stipulated as fundamental law a prohibition of excessiveness in punishments: ”
” A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence, and for a serious offence, he shall be amerced according to its gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the same way, a villein shall be amerced saving his wainage, if they fall into our mercy. And none of the aforesaid amercements shall be imposed except by the testimony of reputable men of the neighborhood.”
The English Bill of Rights, enacted December 16, 1689, stated that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [Footnote 3] These were the words chosen for our Eighth Amendment. A like provision had been in Virginia’s Constitution of 1776, [Footnote 4] and in the constitutions
of seven other States. [Footnote 5] The Northwest Ordinance, enacted under the Articles of Confederation, included a prohibition of cruel and unusual punishments. [Footnote 6] But the debates of the First Congress on the Bill of Rights throw little light on its intended meaning. All that appears is the following: [Footnote 7]
“Mr. SMITH, of South Carolina, objected to the words ‘nor cruel and unusual punishments,’ the import of them being too indefinite.”
“Mr. LIVERMORE: The clause seems to express a great deal of humanity, on which account I have no objection to it; but, as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.”
The words “cruel and unusual” certainly include penalties
that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is “cruel and unusual” to apply the death penalty — or any other penalty — selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board. [Footnote 8] Judge Tuttle, indeed, made abundantly clear in Novak v. Beto, 43 F.2d 661, 673-679 (CA5) (concurring in part and dissenting in part), that solitary confinement may at times be “cruel and unusual” punishment. Cf. Ex parte Medley, 134 U. S. 160; Brooks v. Florida, 389 U. S. 413.
The Court in McGautha v. California, 402 U. S. 183, 402 U. S. 198, noted that, in this country, there was almost from the beginning a “rebellion against the common law rule imposing a mandatory death sentence on all convicted
murderers.” The first attempted remedy was to restrict the death penalty to defined offenses such as “premeditated” murder. [Footnote 9] Ibid. But juries “took the
law into their own hands,” and refused to convict on the capital offense. Id. at 402 U. S. 199.
“In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact.”
The Court concluded:
“In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”
Id. at 402 U. S. 207.
The Court refused to find constitutional dimensions in the argument that those who exercise their discretion to send a person to death should be given standards by which that discretion should be exercised. Id. at 402 U. S. 207-208.
A recent witness at the Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 2d Sess., Ernest van den Haag, testifying on H.R. 8414 et al., [Footnote 10] stated:
“Any penalty, a fine, imprisonment or the death penalty could be unfairly or unjustly applied. The
vice in this case is not in the penalty, but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty is.”
Id. at 116-117. (Emphasis supplied.)
But those who advance that argument overlook McGautha, supra.
We are now imprisoned in the McGautha holding. Indeed, the seeds of the present cases are in McGautha. Juries (or judges, as the case may be) have practically untrammeled discretion to let an accused live or insist that he die. [Footnote 11]
“The State may, indeed, make the drinking of one drop of liquor an offence to be punished by imprisonment, but it would be an unheard-of cruelty if it should count the drops in a single glass and make thereby a thousand offences, and thus extend the punishment for drinking the single glass of liquor to an imprisonment of almost indefinite duration.”
What the legislature may not do for all classes uniformly and systematically a judge or jury may not do for a class that prejudice sets apart from the community.
There is increasing recognition of the fact that the basic theme of equal protection is implicit in “cruel and unusual” punishments. “A penalty . . . should be considered unusually’ imposed if it is administered arbitrarily or discriminatorily.” [Footnote 12] The same authors add that “[t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.” [Footnote 13] The President’s Commission on Law Enforcement and Administration of Justice recently concluded: [Footnote 14]
“Finally, there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed, and carried out on the
poor, the Negro, and the members of unpopular groups.”
A study of capital cases in Texas from 1924 to 1968 reached the following conclusions: [Footnote 15]
“Application of the death penalty is unequal: most of those executed were poor, young, and ignorant.”
“* * * *”
“Seventy-five of the 460 cases involved codefendants, who, under Texas law, were given separate trials. In several instances where a white and a Negro were co-defendants, the white was sentenced to life imprisonment or a term of years, and the Negro was given the death penalty.”
“Another ethnic disparity is found in the type of sentence imposed for rape. The Negro convicted of rape is far more likely to get the death penalty than a term sentence, whereas whites and Latins are far more likely to get a term sentence than the death penalty.”
Warden Lewis E. Lawes of Sing Sing said: [Footnote 16]
“Not only does capital punishment fail in its justification, but no punishment could be invented with so many inherent defects. It is an unequal punishment in the way it is applied to the rich and to the poor. The defendant of wealth and position never goes to the electric chair or to the gallows. Juries do not intentionally favour the rich, the law is theoretically impartial, but the defendant with ample means is able to have his case presented with every favourable aspect, while the poor defendant often has a lawyer assigned by the court. Sometimes such assignment is considered part of political patronage; usually the lawyer assigned has had no experience whatever in a capital case.”
Former Attorney General Ramsey Clark has said, “It is the poor, the sick, the ignorant, the powerless and the hated who are executed.” [Footnote 17] One searches our chronicles
in vain for the execution of any member of the affluent strata of this society. The Leopolds and Loebs are given prison terms, not sentenced to death.
Jackson, a black, convicted of the rape of a white woman, was 21 years old. A court-appointed psychiatrist said that Jackson was of average education and average intelligence, that he was not an imbecile, or schizophrenic, or psychotic, that his traits were the product of environmental influences, and that he was competent to stand trial. Jackson had entered the house after the husband left for work. He held scissors against the neck of the wife, demanding money. She could find none, and a struggle ensued for the scissors, a battle which she lost, and she was then raped, Jackson keeping the scissors pressed against her neck. While there did not appear to be any long-term traumatic impact on the victim, she was bruised and abrased in the struggle, but was not hospitalized. Jackson was a convict who had escaped from a work gang in the area, a result of a three-year sentence for auto theft. He was at large for three days and during that time had committed several other offenses — burglary, auto theft, and assault and battery.
Furman, a black, killed a householder while seeking to enter the home at night. Furman shot the deceased through a closed door. He was 26 years old and had finished the sixth grade in school. Pending trial, he was committed to the Georgia Central State Hospital for a psychiatric examination on his plea of insanity tendered by court-appointed counsel. The superintendent reported that a unanimous staff diagnostic conference had concluded “that this patient should retain his present diagnosis of Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder.” The physicians agreed that “at present the patient is not psychotic, but he is not capable of cooperating with his counsel in the preparation of his
defense”; and the staff believed “that he is in need of further psychiatric hospitalization and treatment.”
Later, the superintendent reported that the staff diagnosis was Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder. He concluded, however, that Furman was “not psychotic at present, knows right from wrong and is able to cooperate with his counsel in preparing his defense.”
Branch, a black, entered the rural home of a 65-year-old widow, a white, while she slept and raped her, holding his arm against her throat. Thereupon he demanded money, and for 30 minutes or more, the widow searched for money, finding little. As he left, Jackson said if the widow told anyone what happened, he would return and kill her. The record is barren of any medical or psychiatric evidence showing injury to her as a result of Branch’s attack.
He had previously been convicted of felony theft and found to be a borderline mental deficient and well below the average IQ of Texas prison inmates. He had the equivalent of five and a half years of grade school education. He had a “dull intelligence,” and was in the lowest fourth percentile of his class.
We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws, no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.
Irving Brant has given a detailed account of the Bloody Assizes, the reign of terror that occupied the
closing years of the rule of Charles II and the opening years of the regime of James II (the Lord Chief Justice was George Jeffreys):
“Nobody knows how many hundreds of men, innocent or of unproved guilt, Jeffreys sent to their deaths in the pseudo trials that followed Monmouth’s feeble and stupid attempt to seize the throne. When the ordeal ended, scores had been executed and 1,260 were awaiting the hangman in three counties. To be absent from home during the uprising was evidence of guilt. Mere death was considered much too mild for the villagers and farmers rounded up in these raids. The directions to a high sheriff were to provide an ax, a cleaver,”
“a furnace or cauldron to boil their heads and quarters, and soil to boil therewith, half a bushel to each traitor, and tar to tar them with, and a sufficient number of spears and poles to fix their heads and quarters”
“along the highways. One could have crossed a good part of northern England by their guidance.”
“The story of The Bloody Assizes, widely known to Americans, helped to place constitutional limitations on the crime of treason and to produce a bar against cruel and unusual punishments. But in the polemics that led to the various guarantees of freedom, it had no place compared with the tremendous thrust of the trial and execution of Sidney. The hundreds of judicial murders committed by Jeffreys and his fellow judges were totally inconceivable in a free American republic, but any American could imagine himself in Sidney’s place — executed for putting on paper, in his closet, words that later on came to express the basic principles of republican government. Unless barred by fundamental law, the legal rulings that permitted this
result could easily be employed against any person whose political opinions challenged the party in power.”
The Bill of Rights 154-155 (1965).
Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based not on equal justice, but on discrimination. In those days, the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. Id. at 155-163. But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against “cruel and unusual punishments” contained in the Eighth Amendment.
In a Nation committed to equal protection of the laws there is no permissible “caste” aspect [Footnote 18] of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. In ancient Hindu, law a Brahman was exempt from capital punishment, [Footnote 19] and, under that law, “[g]enerally, in the law books, punishment increased in severity as social status diminished.” [Footnote 20] We have, I fear, taken in practice the same position, partially as a result of making the death penalty
discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.
The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.
A law that stated that anyone making more than $50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms said that blacks, those who never went beyond the fifth grade in school, those who made less than $3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which, in the overall view, reaches that result in practice [Footnote 21] has no more sanctity than a law which in terms provides the same.
Thus, these discretionary statutes are unconstitutional
in their operation. They are pregnant with discrimination, and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on “cruel and unusual” punishments.
Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356. Such conceivably might be the fate of a mandatory death penalty, where equal or lesser sentences were imposed on the elite, a harsher one on the minorities or members of the lower castes. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach.
I concur in the judgments of the Court.
* Together with No. 69-5030, Jackson v. Georgia, on certiorari to the same court, and No. 69-5031, Branch v. Texas, on certiorari to the Court of Criminal Appeals of Texas.[Footnote 1]
The opinion of the Supreme Court of Georgia affirming Furman’s conviction of murder and sentence of death is reported in 225 Ga. 253, 167 S.E.2d 628, and its opinion affirming Jackson’s conviction of rape and sentence of death is reported in 225 Ga. 790, 171 S.E.2d 501. The conviction of Branch of rape and the sentence of death were affirmed by the Court of Criminal Appeals of Texas and reported in 447 S.W.2d 932.[Footnote 2]
Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839, 845-846 (1969).[Footnote 3]
1 W. & M., Sess. 2, c. 2; 8 English Historical Documents, 166 1714, p. 122 (A. Browning ed. 1953).[Footnote 4]
F. Thorpe, Federal & State Constitutions 3813 (1909).[Footnote 5]
Delaware, Maryland, New Hampshire, North Carolina, Massachusetts, Pennsylvania, and South Carolina. 1 Thorpe, supra, n 4, at 569; 3 id. at 1688, 1892; 4 id. at 2457; 5 id. at 2788, 3101; 6 id. at 3264.[Footnote 6]
Set out in 1 U.S.C. XXXIX-XLI.[Footnote 7]
Annals of Cong. 754 (1789).[Footnote 8]
“When, in respect of any class of offenses, the difficulty of obtaining convictions is at all general in England, we may hold it as an axiom that the law requires amendment. Such conduct in juries is the silent protest of the people against its undue severity. This was strongly exemplified in the case of prosecutions for the forgery of banknotes, when it was a capital felony. It was in vain that the charge was proved. Juries would not condemn men to the gallows for an offense of which the punishment was out of all proportion to the crime; and, as they could not mitigate the sentence, they brought in verdicts of Not Guilty. The consequence was that the law was changed; and when secondary punishments were substituted for the penalty of death, a forger had no better chance of an acquittal than any other criminal. Thus it is that the power which juries possess of refusing to put the law in force has, in the words of Lord John Russell,”
“been the cause of amending many bad laws which the judges would have administered with professional bigotry, and, above all, it has this important and useful consequence that laws totally repugnant to the feelings of the community for which they are made can not long prevail in England.”
W. Forsyth, History of Trial by Jury 367-368 (2d ed. 1971).[Footnote 9]
This trend was not universally applauded. In the early 1800’s, England had a law that made it possible to impose the death sentence for stealing five shillings or more. 3 W. & M., c. 9, § 1. When a bill for abolishing that penalty (finally enacted in 1827, 7 & 8 Geo. 4, c. 27) was before the House of Lords in 1813, Lord Ellenborough said:
“If your Lordships look to t.he particular measure now under consideration, can it, I ask, be seriously maintained, that the most exemplary punishment, and the best suited to prevent the commission of this crime, ought not to be a punishment which might in some cases be inflicted? How, but by the enactments of the law now sought to be repealed, are the cottages of industrious poverty protected? What other security has a poor peasant, when he and his wife leave their home for their daily labours, that, on their return, their few articles of furniture or of clothes which they possess besides those which they carry on their backs, will be safe? . . . [B]y the enacting of the punishment of death, and leaving it to the discretion of the Crown to inflict that punishment or not, as the circumstances of the case may require, I am satisfied, and I am much mistaken if your Lordships are not satisfied, that this object is attained with the least possible expenditure. That the law is, as it has been termed, a bloody law, I can by no means admit. Can there be a better test than by a consideration of the number of persons who have been executed for offences of the description contained in the present Bill? Your Lordships are told what is extremely true, that this number is very small, and this very circumstance is urged as a reason for a repeal of the law; but, before your Lordships are induced to consent to such repeal, I beg to call to your consideration the number of innocent persons who might have been plundered of their property or destroyed by midnight murderers if the law now sought to be repealed had not been in existence — a law upon which all the retail trade of this commercial country depends, and which I, for one, will not consent to be put in jeopardy.”
Debate in House of Lords, Apr. 2, 1813, pp. 23-24 (Longman, Hurst, Rees, Orme, & Brown, Paternoster-Row, London 1816).[Footnote 10]
H.R. 3243, 92d Cong., 1st Sess., introduced by Cong. Celler, would abolish all executions by the United States or by any State.
H.R. 8414, 92d Cong., 1st Sess., introduced by Cong. Celler, would provide an interim stay of all executions by the United States or by any State and contains the following proposed finding:
“Congress hereby finds that there exists serious question — ”
“(a) whether the infliction of the death penalty amounts to cruel and unusual punishment in violation of the eighth and fourteenth amendments to the Constitution; and”
“(b) whether the death penalty is inflicted discriminatorily upon members of racial minorities, in violation of the fourteenth amendment to the Constitution,”
“and, in either case, whether Congress should exercise its authority under section 5 of the fourteenth amendment to prohibit the use of the death penalty.”
There is the naive view that capital punishment as “meted out in our courts, is the antithesis of barbarism.” See Henry Paolucci, New York Times, May 27, 1972, p. 29, col. 1. But the Leopolds and Loebs, the Harry Thaws, the Dr. Sheppards and the Dr. Finchs of our society are never executed — only those in the lower strata, only those who are members of an unpopular minority or the poor and despised.[Footnote 11]
The tension between our decision today and McGautha highlights, in my view, the correctness of MR. JUSTICE BRENNAN’s dissent in that case, which I joined. 402 U.S. at 402 U. S. 248. I should think that if the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on petitioners because they are “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed,” opinion of MR. JUSTICE STEWART, post, at 408 U. S. 309-310, or because
“there is no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not,”
opinion of MR. JUSTICE WHITE, post, at 408 U. S. 313, statements with which I am in complete agreement — then the Due Process Clause of the Fourteenth Amendment would render unconstitutional
“capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and [that] provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice.”Footnote 12]
Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1790.[Footnote 13]
Id. at 1792.[Footnote 14]
The Challenge of Crime in a Free Society 143 (1967).[Footnote 15]
Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132, 141 (1969).
In H. Bedau, The Death Penalty in America 474 (1967 rev. ed.), it is stated:
RACE OF THE OFFENDER BY FINAL DISPOSITION
Final Negro White Total
Disposition N % N % N %
Executed 130 88.4 210 79.8 340 82.9
Commuted 17 11.6 53 20.2 70 17.1
Total 147 100.0 263 100.0 410 100.0
X^2=4.33; P less than .05. (For discussion of statistical symbols, see Bedau, supra, at 469.)
“Although there may be a host of factors other than race involved in this frequency distribution, something more than chance has operated over the years to produce this racial difference. On the basis of this study it is not possible to indict the judicial and other public processes prior to the death row as responsible for the association between Negroes and higher frequency of executions; nor is it entirely correct to assume that from the time of their appearance on death row Negroes are discriminated against by the Pardon Board. Too many unknown or presently immeasurable factors prevent our making definitive statements about the relationship. Nevertheless, because the Negro/high-execution association is statistically present, some suspicion of racial discrimination can hardly be avoided. If such a relationship had not appeared, this kind of suspicion could have been allayed; the existence of the relationship, although not proving differential bias by the Pardon Boards over the years since 1914, strongly suggests that such bias has existed.”
The latter was a study in Pennsylvania of people on death row between 1914 and 1958, made by Wolfgang, Kelly, & Nolde and printed in 53 J.Crim.L.C. & P.S. 301 (1962). And see Hartung, Trends in the Use of Capital Punishment, 284 Annals 8, 14-17 (1952).[Footnote 16]
Life and Death in Sing Sing 155-160 (1928).[Footnote 17]
Crime in America 335 (1970).[Footnote 18]
See Johnson, The Negro and Crime, 217 Annals 93 (1941).[Footnote 19]
See J. Spellman, Political Theory of Ancient India 112 (1964).[Footnote 20]
C. Drekmeier, Kingship and Community in Early India 233 (1962).[Footnote 21]
Cf. B. Prettyman, Jr., Death and The Supreme Court 296-297 (1961).
“The disparity of representation in capital cases raises doubts about capital punishment itself, which has been abolished in only nine states. If a James Avery [345 U.S. 559] can be saved from electrocution because his attorney made timely objection to the selection of a jury by the use of yellow and white tickets, while an Aubry Williams [ 345 U. S. 349 U.S. 375] can be sent to his death by a jury selected in precisely the same manner, we are imposing our most extreme penalty in an uneven fashion.”
“The problem of proper representation is not a problem of money, as some have claimed, but of a lawyer’s ability, and it is not true that only the rich have able lawyers. Both the rich and the poor usually are well represented — the poor because, more often than not, the best attorneys are appointed to defend them. It is the middle-class defendant, who can afford to hire an attorney but not a very good one, who is at a disadvantage. Certainly William Fikes [ 352 U. S. 352 U.S. 191], despite the anomalous position in which he finds himself today, received as effective and intelligent a defense from his court-appointed attorneys as he would have received from an attorney his family had scraped together enough money to hire.”
“And it is not only a matter of ability. An attorney must be found who is prepared to spend precious hours — the basic commodity he has to sell — on a case that seldom fully compensates him and often brings him no fee at all. The public has no conception of the time and effort devoted by attorneys to indigent cases. And, in a first-degree case, the added responsibility of having a man’s life depend upon the outcome exacts a heavy toll.”
MR. JUSTICE BRENNAN, concurring.
The question presented in these cases is whether death is today a punishment for crime that is “cruel and unusual” and consequently, by virtue of the Eighth and Fourteenth Amendments, beyond the power of the State to inflict. [Footnote 2/1]
Almost a century ago, this Court observed that
“[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted.”
Wilkerson v. Utah, 99 U. S. 130, 99 U. S. 135-136 (1879). Less than 15 years ago, it was again noted that “[t]he exact scope of the constitutional phrase cruel and unusual’ has not been detailed by this Court.” Trop v. Dulles, 356 U. S. 86, 356 U. S. 99(1958). Those statement remain true today. The Cruel and Unusual Punishments Clause, like the other great clauses of the Constitution, is not susceptible of precise definition. Yet we know that the values and ideals it embodies are basic to our scheme of government. And we know also that the Clause imposes upon this Court the duty, when the issue is properly presented, to determine the constitutional validity of a challenged punishment, whatever that punishment may be. In these cases, “[t]hat issue confronts us, and the task of resolving it is inescapably ours.” Id. at 356 U. S. 103.
We have very little evidence of the Framers’ intent in including the Cruel and Unusual Punishments Clause among those restraints upon the new Government enumerated in the Bill of Rights. The absence of such a restraint from the body of the Constitution was alluded to, so far as we now know, in the debates of only two of the state ratifying conventions. In the Massachusetts convention, Mr. Holmes protested:
“What gives an additional glare of horror to these gloomy circumstances is the consideration that Congress have to ascertain, point out, and determine,
what kind of punishments shall be inflicted on persons convicted of crimes. They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.”
2 J. Elliot’s Debates 111 (2d ed. 1876). Holmes’ fear that Congress would have unlimited power to prescribe punishments for crimes was echoed by Patrick Henry at the Virginia convention:
“. . . Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our [Virginia] bill of rights. — ‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Are you not, therefore, now calling on those gentlemen who are to compose Congress, to . . . define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more — you depart from the genius of your country. . . . ”
“In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your [Virginia] declaration of rights. What has distinguished our ancestors? —
That they would not admit of tortures, or cruel and barbarous punishment.”
3 id. at 447. [Footnote 2/2]
These two statements shed some light on what the Framers meant by “cruel and unusual punishments.” Holmes referred to “the most cruel and unheard-of punishments,” Henry to “tortures, or cruel and barbarous punishment.” It does not follow, however, that the Framers were exclusively concerned with prohibiting torturous punishments. Holmes and Henry were objecting to the absence of a Bill of Rights, and they cited to support their objections the unrestrained legislative power to prescribe punishments for crimes. Certainly we may suppose that they invoked the specter of the most drastic punishments a legislature might devise.
In addition, it is quite clear that Holmes and Henry focused wholly upon the necessity to restrain the legislative power. Because they recognized “that Congress have to ascertain, point out, and determine what kinds of punishments shall be inflicted on persons convicted of crimes,” they insisted that Congress must be limited in its power to punish. Accordingly, they
called for a “constitutional check” that would ensure that “when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.” [Footnote 2/3]
The only further evidence of he Framers’ intent appears from the debates in the First Congress on the adoption of the Bill of Rights. [Footnote 2/4] As the Court noted in Weems v. United States, 217 U. S. 349, 217 U. S. 368 (1910),
the Cruel and Unusual Punishments Clause “received very little debate.” The extent of the discussion, by two opponents of the Clause in the House of Representatives, was this:
“Mr. SMITH, of South Carolina, objected to the words ‘nor cruel and unusual punishments,’ the import of them being too indefinite.”
“Mr. LIVERMORE. — The [Eighth Amendment] seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. . . . No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.”
“The question was put on the [Eighth Amendment], and it was agreed to by a considerable majority.”
1 Annals of Cong. 754 (1789). [Footnote 2/5]
Livermore thus agreed with Holmes and Henry that the Cruel and Unusual Punishments Clause imposed a limitation upon the legislative power to prescribe punishments.
However, in contrast to Holmes and Henry, who were supporting the Clause, Livermore, opposing it, did not refer to punishments that were considered barbarous and torturous. Instead, he objected that the Clause might someday prevent the legislature from inflicting what were then quite common and, in his view, “necessary” punishments — death, whipping, and earcropping. [Footnote 2/6] The only inference to be drawn from Livermore’s statement is that the “considerable majority” was prepared to run that risk. No member of the House rose to reply that the Clause was intended merely to prohibit torture.
Several conclusions thus emerge from the history of the adoption of the Clause. We know that the Framers’ concern was directed specifically at the exercise of legislative power. They included in the Bill of Rights a prohibition upon “cruel and unusual punishments” precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes. Yet we cannot now know exactly what the Framers thought “cruel and unusual punishments” were. Certainly they intended to ban torturous punishments, but the available evidence does not support the further conclusion that only torturous punishments were to be outlawed. As Livermore’s comments demonstrate, the Framers were well aware that the reach of the Clause was not limited to the proscription of unspeakable atrocities. Nor did they intend simply to forbid punishments considered “cruel and unusual” at the time. The “import” of the Clause is, indeed, “indefinite,” and for good reason. A constitutional provision
“is enacted, it is true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.”
Weems v. United States, 217 U.S. at 217 U. S. 373.
It was almost 80 years before this Court had occasion to refer to the Clause. See Pervear v. The Commonwealth, 5 Wall. 475, 72 U. S. 479-480 (1867). These early cases, as the Court pointed out in Weems v. United States, supra, at 217 U. S. 369, did not undertake to provide “an exhaustive definition” of “cruel and unusual punishments.” Most of them proceeded primarily by “looking backwards for examples by which to fix the meaning of the clause,” id. at 217 U. S. 377, concluding simply that a punishment would be “cruel and unusual” if it were similar to punishments considered “cruel and unusual” at the time the Bill of Rights was adopted. [Footnote 2/7] In Wilkerson v. Utah, 99 U.S. at 99 U. S. 136, for instance, the Court found it “safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden.” The “punishments of torture,” which the Court labeled “atrocities,” were cases where the criminal “was embowelled alive, beheaded, and quartered,” and cases “of public dissection . . . and burning alive.” Id. at 99 U. S. 135. Similarly, in In re Kemmler,
“if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.”
The Court then observed, commenting upon the passage just quoted from Wilkerson v. Utah, supra, and applying the “manifestly cruel and unusual” test, that
“[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”
136 U.S. at 136 U. S. 447.
Had this “historical” interpretation of the Cruel and Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of Rights. As the Court noted in Weems v. United States, supra, at 217 U. S. 371, this interpretation led Story to conclude
“that the provision ‘would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct.'”
And Cooley, in his book, Constitutional Limitations, said the Court,
“apparently in a struggle between the effect to be given to ancient examples and the inconsequence of a dread of them in these enlightened times, . . . hesitate[d] to advance definite views.”
Id. at 217 U. S. 375. The result of a judicial application of this interpretation was not surprising. A state court, for example, upheld the constitutionality of the whipping post: “In comparison with the barbarities of quartering, hanging in chains, castration, etc.,’ it was easily reduced to insignificance.” Id. at 217 U. S. 377.
But this Court in Weems decisively repudiated the “historical” interpretation of the Clause. The Court, returning to the intention of the Framers, “rel[ied] on the conditions which existed when the Constitution was adopted.” And the Framers knew
“that government by the people instituted by the Constitution would not imitate the conduct of arbitrary monarchs. The abuse of power might, indeed, be apprehended, but not that it would be manifested in provisions or practices which would shock the sensibilities of men.”
Id. at 217 U. S. 375. The Clause, then, guards against “[t]he abuse of power”; contrary to the implications in Wilkerson v. Utah, supra, and In re Kemmler, supra, the prohibition of the Clause is not “confine[d] . . . to such penalties and punishment as were inflicted by the Stuarts.” 217 U.S. at 217 U. S. 372. Although opponents of the Bill of Rights “felt sure that the spirit of liberty could be trusted, and that its ideals would be represented, not debased, by legislation,” ibid., the Framers disagreed:
“[Patrick] Henry and those who believed as he did would take no chances. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their [jealousy] of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation. With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they
might, what more potent instrument of cruelty could be put into the hands of power? And it was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the [Stuarts’,] or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked.”
Id. at 217 U. S. 372-373.
The Court in Weems thus recognized that this “restraint upon legislatures” possesses an “expansive and vital character” that is “essential . . . to the rule of law and the maintenance of individual freedom.'” Id. at 217 U. S. 376-377. Accordingly, the responsibility lies with the courts to make certain that the prohibition of the Clause is enforced. [Footnote 2/8] Referring to cases in which “prominence [was] given to the power of the legislature to define crimes and their punishment,” the Court said:
“We concede the power in most of its exercises. We disclaim the right to assert a judgment
against that of the legislature of the expediency of the laws or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked.”
In short, this Court finally adopted the Framers’ view of the Clause as a “constitutional check” to ensure that, “when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.” That, indeed, is the only view consonant with our constitutional form of government. If the judicial conclusion that a punishment is “cruel and unusual” “depend[ed] upon virtually unanimous condemnation of the penalty at issue,” then,
“[l]ike no other constitutional provision, [the Clause’s] only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom.”
We know that the Framers did not envision “so narrow a role for this basic guaranty of human rights.” Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1782 (1970). The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, “may not be submitted to vote; [it] depend[s] on the outcome of no elections.”
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied
by the courts.”
Judicial enforcement of the Clause, then, cannot be evaded by invoking the obvious truth that legislatures have the power to prescribe punishments for crimes. That is precisely the reason the Clause appears in the Bill of Rights. The difficulty arises, rather, in formulating the “legal principles to be applied by the courts” when a legislatively prescribed punishment is challenged as “cruel and unusual.” In formulating those constitutional principles, we must avoid the insertion of “judicial conception[s] of . . . wisdom or propriety,” Weems v. United States, 217 U.S. at 217 U. S. 379, yet we must not, in the guise of “judicial restraint,” abdicate our fundamental responsibility to enforce the Bill of Rights. Were we to do so, the “constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.” Id. at 217 U. S. 373. The Cruel and Unusual Punishments Clause would become, in short, “little more than good advice.” Trop v. Dulles, 356 U.S. at 356 U. S. 104.
Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the Clause, however, was left behind with the 19th century. Our task today is more complex. We know “that the words of the [Clause] are not precise, and that their scope is not static.” We know, therefore, that the Clause “must draw its meaning from the evolving standards of decency that mark the progress
In Trop v. Dulles, supra, at 356 U. S. 99, it was said that “[t]he question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause].” It was also said that a challenged punishment must be examined “in light of the basic prohibition against inhuman treatment” embodied in the Clause. Id. at 356 U. S. 100 n. 32. It was said, finally, that:
“The basic concept underlying the [Clause] is nothing less than the dignity of man. While the State has the power to punish, the [Clause] stands to assure that this power be exercised within the limits of civilized standards.”
Id. at 356 U. S. 100. At bottom, then, the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is “cruel and unusual,” therefore, if it does not comport with human dignity.
This formulation, of course, does not, of itself, yield principles for assessing the constitutional validity of particular punishments. Nevertheless, even though “[t]his Court has had little occasion to give precise content to the [Clause],” ibid., there are principles recognized in our cases and inherent in the Clause sufficient to permit a judicial determination whether a challenged punishment comports with human dignity.
The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. The infliction of an extremely severe punishment will often entail physical suffering. See Weems v. United States, 217 U.S. at 217 U. S. 366. [Footnote 2/11] Yet the Framers also knew “that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.” Id. at 217 U. S. 372. Even though “[t]here may be involved no physical mistreatment, no primitive torture,” Trop v. Dulles, supra, at 356 U. S. 101, severe mental pain may be inherent in the infliction of a particular punishment. See Weems v. United States, supra, at 217 U. S. 366. [Footnote 2/12] That, indeed, was one of the conclusions underlying the holding of the plurality in Trop v. Dulles that the punishment of expatriation violates the Clause. [Footnote 2/13] And the
physical and mental suffering inherent in the punishment of cadena temporal, see nn. 11-12, supra, was an obvious basis for the Court’s decision in Weems v. United States that the punishment was “cruel and unusual.” [Footnote 2/14]
More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings. The barbaric punishments condemned by history, “punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and the like,” are, of course, “attended with acute pain and suffering.” O’Neil v. Vermont, 144 U. S. 323, 144 U. S. 339 (1892) (Field, J., dissenting). When we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat
members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.
The infliction of an extremely severe punishment, then, like the one before the Court in Weems v. Unite States, from which “[n]o circumstance of degradation [was] omitted,” 217 U.S. at 217 U. S. 366, may reflect the attitude that the person punished is not entitled to recognition as a fellow human being. That attitude may be apparent apart from the severity of the punishment itself. In Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 464 (1947), for example, the unsuccessful electrocution, although it caused “mental anguish and physical pain,” was the result of “an unforeseeable accident.” Had the failure been intentional, however, the punishment would have been, like torture, so degrading and indecent as to amount to a refusal to accord the criminal human status. Indeed, a punishment may be degrading to human dignity solely because it is a punishment. A State may not punish a person for being “mentally ill, or a leper, or . . . afflicted with a venereal disease,” or for being addicted to narcotics. Robinson v. California, 370 U. S. 660, 370 U. S. 666 (1962). To inflict punishment for having a disease is to treat the individual as a diseased thing, rather than as a sick human being. That the punishment is not severe, “in the abstract,” is irrelevant; “[e]ven one day in prison would be a cruel and unusual punishment for the crime’ of having a common cold.” Id. at 370 U. S. 667. Finally, of course, a punishment may be degrading simply by reason of its enormity. A prime example is expatriation, a “punishment more primitive than torture,” Trop v. Dulles, 356 U.S. at 356 U. S. 101, for it necessarily involves a
denial by society of the individual’s existence as a member of the human community. [Footnote 2/15]
In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause — that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words “cruel and unusual punishments” imply condemnation of the arbitrary infliction of severe punishments. And, as we now know, the English history of the Clause [Footnote 2/16] reveals a particular concern with the establishment of a safeguard against arbitrary punishments. See Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839, 857-860 (1969). [Footnote 2/17]
This principle has been recognized in our cases. [Footnote 2/18] In Wilkerson v. Utah, 99 U.S. at 99 U. S. 133-134, the Court reviewed various treatises on military law in order to demonstrate that, under “the custom of war,” shooting was a common method of inflicting the punishment of death. On that basis, the Court concluded:
“Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to [treatises on military law] are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that
category, within the meaning of the [Clause]. Soldiers convicted of desertion or other capital military offenses are, in the great majority of cases, sentenced to be shot, and the ceremony for such occasions is given in great fulness by the writers upon the subject of courts-martial.”
As Wilkerson v. Utah suggests, when a severe punishment is inflicted “in the great majority of cases” in which it is legally available, there is little likelihood that the State is inflicting it arbitrarily. If, however, the infliction of a severe punishment is “something different from that which is generally done” in such cases, Trop v. Dulles, 356 U.S. at 356 U. S. 101 n. 32, [Footnote 2/20] there is a substantial
likelihood that the State, contrary to the requirements of regularity and fairness embodied in the Clause, is inflicting the punishment arbitrarily. This principle is especially important today. There is scant danger, given the political processes “in an enlightened democracy such as ours,” id. at 356 U. S. 100, that extremely severe punishments will be widely applied. The more significant function of the Clause, therefore, is to protect against the danger of their arbitrary infliction.
A third principle inherent in the Clause is that a severe punishment must not be unacceptable to contemporary society. Rejection by society, of course, is a strong indication that a severe punishment doe not comport with human dignity. In applying this principle, however, we must make certain that the judicial determination is as objective as possible. [Footnote 2/21]
Thus, for example, Weems v. United States, 217 U.S. at 217 U. S. 380, and Trop v. Dulles, 356 U.S. at 356 U. S. 102-103, suggest that one factor that may be considered is the existence of the punishment in jurisdictions other than those before the Court. Wilkerson v. Utah, supra, suggests that another factor to be considered is the historic usage of the punishment. [Footnote 2/22] Trop v. Dulles, supra, at 356 U. S. 99, combined present acceptance with past usage by observing that
“the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”
In Robinson v. California, 370 U.S. at 370 U. S. 666, which involved the infliction of punishment for narcotics addiction, the Court went a step further, concluding simply that,
“in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment.”
The question under this principle, then, is whether there are objective indicators from which a court can conclude that contemporary society considers a severe punishment unacceptable. Accordingly, the judicial
task is to review the history of a challenged punishment and to examine society’s present practices with respect to its use. Legislative authorization, of course, does not establish acceptance. The acceptability of a severe punishment is measured not by its availability, for it might become so offensive to society as never to be inflicted, but by its use.
The final principle inherent in the Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: the infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, cf. Robinson v. California, supra, at 370 U. S. 666; id. at 370 U. S. 677 (DOUGLAS, J., concurring); Trop v. Dulles, supra, at 356 U. S. 114 (BRENNAN, J., concurring), the punishment inflicted is unnecessary, and therefore excessive.
“[The Clause] is directed not only against punishments of the character mentioned [torturous punishments], but against all punishments which, by
their excessive length or severity, are greatly disproportioned to the offences charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted.”
Id. at 144 U. S. 339-340. Although the determination that a severe punishment is excessive may be grounded in a judgment that it is disproportionate to the crime, [Footnote 2/24] the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment. This view of the principle was explicitly recognized by the Court in Weems v. United States, supra. There the Court, reviewing a severe punishment inflicted for the falsification of an official record, found that
“the highest punishment possible for a crime which may cause the loss of many thousand[s] of dollars, and to prevent which the duty of the State should be as eager as to prevent the perversion of truth in a public document, is not greater than that which may be imposed for falsifying a single item of a public account.”
Id. at 217 U. S. 381. Stating that “this contrast shows more than different exercises of legislative judgment,” the Court concluded that the punishment was unnecessarily severe in view of the purposes for which it was imposed. Ibid. [Footnote 2/25]
There are, then, four principles by which we may determine whether a particular punishment is “cruel and unusual.” The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not, by its severity, be degrading to human dignity. The paradigm violation of this principle would be the infliction of a torturous punishment of the type that the Clause has always prohibited. Yet “[i]t is unlikely that any State at this moment in history,” Robinson v. California, 370 U.S. at 370 U. S. 666, would pass a law providing for the infliction of such a punishment. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such a punishment. Nor, finally, is it likely that this Court will have to consider a severe punishment that is patently unnecessary; no State today would inflict a severe punishment knowing that there was no reason whatever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under any one principle.
Since the Bill of Rights was adopted, this Court has adjudged only three punishments to be within the prohibition of the Clause. See Weems v. United States, 217 U. S. 349 (1910) (12 years in chains at hard and painful labor); Trop v. Dulles, 356 U. S. 86 (1958) (expatriation); Robinson v. California, 370 U. S. 660 (1962) (imprisonment for narcotics addiction). Each punishment, of course, was degrading to human dignity, but of none could it be said conclusively that it was fatally offensive under one or the other of the principles. Rather, these “cruel and unusual punishments” seriously implicated several of the principles, and it was the application of the principles in combination that supported the judgment. That, indeed, is not surprising. The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is “cruel and unusual.” The test, then, will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.
The punishment challenged in these cases is death. Death, of course, is a “traditional” punishment, Trop v. Dulles, supra, at 356 U. S. 100, one that “has been employed throughout our history,” id. at 356 U. S. 99, and its constitutional
background is accordingly an appropriate subject of inquiry.
There is, first, a textual consideration raised by the Bill of Rights itself. The Fifth Amendment declares that if a particular crime is punishable by death, a person charged with that crime is entitled to certain procedural protections. [Footnote 2/27] We can thus infer that the Framers recognized the existence of what was then a common punishment. We cannot, however, make the further inference that they intended to exempt this particular punishment from the express prohibition of the Cruel and Unusual Punishment Clause. [Footnote 2/28] Nor is there any indication in the debates on the Clause that a special exception was to be made for death. If anything, the indication is to the contrary, for Livermore specifically mentioned death as a candidate for future proscription under the Clause. See supra at 408 U. S. 262. Finally, it does not advance analysis to insist that the Framers did not believe that adoption
of the Bill of Rights would immediately prevent the infliction of the punishment of death; neither did they believe that it would immediately prevent the infliction of other corporal punishments that, although common at the time, see n. 6, supra, are now acknowledged to be impermissible. [Footnote 2/29]
There is also the consideration that this Court has decided three cases involving constitutional challenges to particular methods of inflicting this punishment. In Wilkerson v. Utah, 99 U. S. 130 (1879), and In re Kemmler, 136 U. S. 436 (1890), the Court, expressing in both cases the since-rejected “historical” view of the Clause, see supra at 408 U. S. 264-265, approved death by shooting and death by electrocution. In Wilkerson, the Court concluded that shooting was a common method of execution, see supra at 408 U. S. 275-276; [Footnote 2/30] in Kemmler, the Court held that the Clause did not apply to the States, 136 U.S. at 136 U. S. 447-449. [Footnote 2/31]
In Louisiana ex rel. Francis v. Resweber, supra, the Court approved a second attempt at electrocution after the first had failed. It was said that “[t]he Fourteenth [Amendment] would prohibit by its due process clause execution by a state in a cruel manner,” 329 U.S. at 329 U. S. 463, but that the abortive attempt did not make the “subsequent execution any more cruel in the constitutional sense than any other execution,” id. at 329 U. S. 464. [Footnote 2/32] These three decisions thus reveal that the Court, while ruling upon various methods of inflicting death, has assumed in the past that death was a constitutionally permissible punishment. [Footnote 2/33] Past assumptions, however, are not sufficient to limit the scope of our examination of this punishment today. The constitutionality of death itself under the Cruel and Unusual Punishments Clause is before this Court for the first time; we cannot avoid the question by recalling past cases that never directly considered it.
The question, then, is whether the deliberate infliction of death is today consistent with the command of the Clause that the State may not inflict punishments that do not comport with human dignity. I will analyze the punishment of death in terms of the principles
set out above and the cumulative test to which they lead: it is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Under these principles and this test, death is today a “cruel and unusual” punishment. Death is a unique punishment in the United States. In a society that so strongly affirms the sanctity of life, not surprisingly, the common view is that death is the ultimate sanction. This natural human feeling appears all about us. There has been no national debate about punishment, in general or by imprisonment comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, see infra at 408 U. S. 296-298, nor has any State yet abolished prisons, as some have abolished this punishment. And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. Criminal defendants are of the same view.
“As all practicing lawyers know who have defended persons charged with capital offenses, often the only goal possible is to avoid the death penalty.”
Griffin v. Illinois, 351 U. S. 12, 351 U. S. 28 (1956) (Burton and Minton, JJ., dissenting). Some legislatures have required particular procedures, such as two-stage trials and automatic appeals, applicable only in death cases.
“It is the universal experience in the administration of criminal justice that those charged with capital offenses are granted special considerations.”
always treats death cases as a class apart. [Footnote 2/34] And the unfortunate effect of this punishment upon the functioning of the judicial process is well known; no other punishment has a similar effect.
The only explanation for the uniqueness of death is its extreme severity. Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering. Although our information is not conclusive, it appears that there is no method available that guarantees an immediate and painless death. [Footnote 2/35] Since the discontinuance
of flogging as a constitutionally permissible punishment, Jackson v. Bishop, 404 F.2d 571 (CA8 1968), death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. Cf. Ex parte Medley, 134 U. S. 160, 134 U. S. 172 (1890). As the California Supreme Court pointed out, “the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.” People v. Anderson, 6 Cal.3d 28, 649, 493 P.2d 880, 894 (1972). [Footnote 2/36] Indeed, as Mr. Justice Frankfurter noted, “the onset of insanity while awaiting
execution of a death sentence is not a rare phenomenon.” Solesbee v. Balkcom, 339 U. S. 9, 339 U. S. 14 (1950) (dissenting opinion). The “fate of ever-increasing fear and distress” to which the expatriate is subjected, Trop v. Dulles, 356 U.S. at 356 U. S. 102, can only exist to a greater degree for a person confined in prison awaiting death. [Footnote 2/37]
The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself. Expatriation, for example, is a punishment that “destroys for the individual the political existence that was centuries in the development,” that “strips the citizen of his status in the national and international political community,” and that puts “[h]is very existence” in jeopardy. Expatriation thus inherently entails “the total destruction of the individual’s status in organized society.” Id. at 101. “In short, the expatriate has lost the right to have rights.” Id. at 102. Yet, demonstrably, expatriation is not “a fate worse than death.” Id. at 125 (Frankfurter, J., dissenting). [Footnote 2/38] Although death, like expatriation, destroys the
individual’s “political existence” and his “status in organized society,” it does more, for, unlike expatriation, death also destroys “[h]is very existence.” There is, too, at least the possibility that the expatriate will, in the future, regain “the right to have rights.” Death forecloses even that possibility.
Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose “the right to have rights.” A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a “person” for purposes of due process of law and the equal protection of the laws. A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, see Witherspoon v. Illinois, 391 U. S. 510 (1968), yet the finality of death precludes relief. An executed person has indeed “lost the right to have rights.” As one 19th century proponent of punishing criminals by death declared,
“When a man is hung, there is an end of our relations with him. His execution is a way of saying, ‘You are not fit for this world, take your chance elsewhere.’ [Footnote 2/39] ”
In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity. I would not hesitate to hold, on that ground alone, that death is today a “cruel and unusual” punishment, were it not that death is a punishment of longstanding usage and acceptance in this country. I therefore turn to the second principle — that the State may not arbitrarily inflict an unusually severe punishment.
The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime.
There has been a steady decline in the infliction of this punishment in every decade since the 1930’s, the earliest period for which accurate statistics are available. In the 1930’s, executions averaged 167 per year; in the 1940’s, the average was 128; in the 1950’s, it was 72; and in the years 1960-1962, it was 48. There have been a total of 46 executions since then, 36 of them in 1963-1964. [Footnote 2/40] Yet our population and the number of capital crimes committed have increased greatly over the past four decades. The contemporary rarity of the infliction of this punishment is thus the end result of a long-continued decline. That rarity is plainly revealed by an examination of the years 1961-1970, the last 10-year period for which statistics are available. During that time, an average of 106 death sentences
was imposed each year. [Footnote 2/41] Not nearly that number, however, could be carried out, for many were precluded by commutations to life or a term of Years, [Footnote 2/42] transfers to mental institutions because of insanity, [Footnote 2/43] resentences to life or a term of years, grants of new trials and orders for resentencing, dismissals of indictments and reversals of convictions, and deaths by suicide and natural causes. [Footnote 2/44] On January 1, 1961, the death row population was 21; on December 31, 1970, it was 608; during that span, there were 135 executions. [Footnote 2/45] Consequently, had the 389 additions to death row also been executed, the annual average would have been 52. [Footnote 2/46] In short, the country
might, at most, have executed one criminal each week. In fact, of course, far fewer were executed. Even before the moratorium on executions began in 1967, executions totaled only 42 in 1961 and 47 in 1962, an average of less than one per week; the number dwindled to 21 in 1963, to 15 in 1964, and to seven in 1965; in 1966, there was one execution, and in 1967, there were two. [Footnote 2/47]
When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction.
Although there are no exact figures available, we know that thousands of murders and rapes are committed annually in States where death is an authorized punishment for those crimes. However the rate of infliction is characterized — as “freakishly” or “spectacularly” rare, or simply as rare — it would take the purest sophistry to deny that death is inflicted in only a minute fraction of these cases. How much rarer, after all, could the infliction of death be?
When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The States claim, however, that this rarity is evidence not of arbitrariness, but of informed selectivity: death is inflicted, they say, only in “extreme” cases.
Informed selectivity, of course, is a value not to be denigrated. Yet presumably the States could make precisely the same claim if there were 10 executions per
year, or five, or even if there were but one. That there may be as many as 50 per year does not strengthen the claim. When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible. Certainly the laws that provide for this punishment do not attempt to draw that distinction; all cases to which the laws apply are necessarily “extreme.” Nor is the distinction credible in fact. If, for example, petitioner Furman or his crime illustrates the “extreme,” then nearly all murderers and their murders are also “extreme.” [Footnote 2/48] Furthermore, our procedures in death cases,
rather than resulting in the selection of “extreme” cases for this punishment, actually sanction an arbitrary selection. For this Court has held that juries may, as they do, make the decision whether to impose a death sentence wholly unguided by standards governing that decision. McGautha v. California, 402 U. S. 183, 402 U. S. 196-208 (1971). In other words, our procedures are not constructed to guard against the totally capricious selection of criminals for the punishment of death.
Although it is difficult to imagine what further facts would be necessary in order to prove that death is, as my Brother STEWART puts it, “wantonly and . . . freakishly” inflicted, I need not conclude that arbitrary infliction is patently obvious. I am not considering this punishment by the isolated light of one principle. The probability of arbitrariness is sufficiently substantial that it can be relied upon, in combination with the other principles, in reaching a judgment on the constitutionality of this punishment.
When there is a strong probability that an unusually severe and degrading punishment is being inflicted arbitrarily, we may well expect that society will disapprove of its infliction. I turn, therefore, to the third principle. An examination of the history and present operation of the American practice of punishing criminals by death reveals that this punishment has been almost totally rejected by contemporary society.
I cannot add to my Brother MARSHALL’s comprehensive treatment of the English and American history of
this punishment. I emphasize, however, one significant conclusion that emerges from that history. From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world,
the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance, on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries. [Footnote 2/49]
It is this essentially moral conflict that forms the backdrop for the past changes in, and the present operation of, our system of imposing death as a punishment for crime.
Our practice of punishing criminals by death has changed greatly over the years. One significant change has been in our methods of inflicting death. Although this country never embraced the more violent and repulsive methods employed in England, we did for a long time rely almost exclusively upon the gallows and the firing squad. Since the development of the supposedly
more humane methods of electrocution late in the 19th century and lethal gas in the 20th, however, hanging and shooting have virtually ceased. [Footnote 2/50] Our concern for decency and human dignity, moreover, has compelled changes in the circumstances surrounding the execution itself. No longer does our society countenance the spectacle of public executions, once thought desirable as a deterrent to criminal behavior by others. Today we reject public executions as debasing and brutalizing to us all.
Also significant is the drastic decrease in the crimes for which the punishment of death is actually inflicted. While esoteric capital crimes remain on the books, since 1930, murder and rape have accounted for nearly 99% of the total executions, and murder alone for about 87%. [Footnote 2/51] In addition, the crime of capital murder has itself been limited. As the Court noted in McGautha v. California, 402 U.S. at 402 U. S. 198, there was in this country a “rebellion against the common law rule imposing a mandatory death sentence on all convicted murderers.” Initially, that rebellion resulted in legislative definitions that distinguished between degrees of murder, retaining the mandatory death sentence only for murder in the first degree. Yet
“[t]his new legislative criterion for isolating crimes appropriately punishable by death soon proved as unsuccessful as the concept of ‘malice aforethought,'”
ibid., the common law means of separating murder from manslaughter. Not only was the distinction between degrees of murder confusing and uncertain in practice, but, even in clear cases of first-degree murder, juries continued to take the law into
their own hands: if they felt that death was an inappropriate punishment, “they simply refused to convict of the capital offense.” Id. at 402 U. S. 199. The phenomenon of jury nullification thus remained to counteract the rigors of mandatory death sentences. Bowing to reality,
“legislatures did not try, as before, to refine further the definition of capital homicides. Instead, they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact.”
Ibid. In consequence, virtually all death sentences today are discretionarily imposed. Finally, it is significant that nine States no longer inflict the punishment of death under any circumstances, [Footnote 2/52] and five others have restricted it to extremely rare crimes. [Footnote 2/53]
Thus, although “the death penalty has been employed throughout our history,” Trop v. Dulles, 356 U.S. at 356 U. S. 99, in fact the history of this punishment is one of successive restriction. What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare. The evolution of this punishment evidences not that it is an inevitable part of the American scene, but that it has proved progressively more troublesome to the national conscience. The result of this movement is our current system of administering the punishment, under which death sentences are rarely imposed and death is even more rarely inflicted. It is, of course, “We, the People” who are responsible for the rarity both of the imposition and the carrying out of this punishment. Juries, “express[ing] the conscience of the community on the ultimate question of life or death,” Witherspoon v. Illinois, 391 U.S. at 391 U. S. 519, have been able to bring themselves to vote for death in a mere 100 or so cases among the thousands tried each year where the punishment is available. Governors, elected by and acting for us, have regularly commuted a substantial number of those sentences. And it is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out. In sum, we have made death a rare punishment today.
The progressive decline in, and the current rarity of, the infliction of death demonstrate that our society seriously questions the appropriateness of this punishment today. The States point out that many legislatures authorize death as the punishment for certain crimes, and that substantial segments of the public, as reflected in opinion polls and referendum votes, continue to support it. Yet the availability of this punishment through statutory authorization, as well as the polls and referenda,
which amount simply to approval of that authorization, simply underscores the extent to which our society has, in fact, rejected this punishment. When an unusually severe punishment is authorized for wide-scale application but not, because of society’s refusal, inflicted save in a few instances, the inference is compelling that there is a deep-seated reluctance to inflict it. Indeed, the likelihood is great that the punishment is tolerated only because of its disuse. The objective indicator of society’s view of an unusually severe punishment is what society does with it, and today society will inflict death upon only a small sample of the eligible criminals. Rejection could hardly be more complete without becoming absolute. At the very least, I must conclude that contemporary society views this punishment with substantial doubt.
The final principle to be considered is that an unusually severe and degrading punishment may not be excessive in view of the purposes for which it is inflicted. This principle, too, is related to the others. When there is a strong probability that the State is arbitrarily inflicting an unusually severe punishment that is subject to grave societal doubts, it is likely also that the punishment cannot be shown to be serving any penal purpose that could not be served equally well by some less severe punishment.
The States’ primary claim is that death is a necessary punishment because it prevents the commission of capital crimes more effectively than any less severe punishment. The first part of this claim is that the infliction of death is necessary to stop the individuals executed from committing further crimes. The sufficient answer to this is that, if a criminal convicted of a capital crime poses a danger to society, effective administration of the State’s pardon and parole laws can delay or deny his release from prison, and techniques of isolation can eliminate
or minimize the danger while he remains confined. The more significant argument is that the threat of death prevents the commission of capital crimes because it deters potential criminals who would not be deterred by the threat of imprisonment. The argument is not based upon evidence that the threat of death is a superior deterrent. Indeed, as my Brother MARSHALL establishes, the available evidence uniformly indicates, although it does not conclusively prove, that the threat of death has no greater deterrent effect than the threat of imprisonment. The States argue, however, that they are entitled to rely upon common human experience, and that experience, they say, supports the conclusion that death must be a more effective deterrent than any less severe punishment. Because people fear death the most, the argument runs, the threat of death must be the greatest deterrent.
It is important to focus upon the precise import of this argument. It is not denied that many, and probably most, capital crimes cannot be deterred by the threat of punishment. Thus, the argument can apply only to those who think rationally about the commission of capital crimes. Particularly is that true when the potential criminal, under this argument, must not only consider the risk of punishment, but also distinguish between two possible punishments. The concern, then, is with a particular type of potential criminal, the rational person who will commit a capital crime knowing that the punishment is long-term imprisonment, which may well be for the rest of his life, but will not commit the crime knowing that the punishment is death. On the face of it, the assumption that such persons exist is implausible.
In any event, this argument cannot be appraised in the abstract. We are not presented with the theoretical question whether, under any imaginable circumstances, the
threat of death might be a greater deterrent to the commission of capital crimes than the threat of imprisonment. We are concerned with the practice of punishing criminals by death as it exists in the United States today. Proponents of this argument necessarily admit that its validity depends upon the existence of a system in which the punishment of death is invariably and swiftly imposed. Our system, of course, satisfies neither condition. A rational person contemplating a murder or rape is confronted not with the certainty of a speedy death, but with the slightest possibility that he will be executed in the distant future. The risk of death is remote and improbable; in contrast, the risk of long-term imprisonment is near and great. In short, whatever the speculative validity of the assumption that the threat of death is a superior deterrent, there is no reason to believe that, as currently administered, the punishment of death is necessary to deter the commission of capital crimes. Whatever might be the case were all or substantially all eligible criminals quickly put to death, unverifiable possibilities are an insufficient basis upon which to conclude that the threat of death today has any greater deterrent efficacy than the threat of imprisonment. [Footnote 2/54]
There is, however, another aspect to the argument that the punishment of death is necessary for the protection of society. The infliction of death, the States urge, serves to manifest the community’s outrage at the commission of the crime. It is, they say, a concrete public expression of moral indignation that inculcates respect for the law and helps assure a more peaceful community. Moreover, we are told, not only does the punishment of death exert this widespread moralizing influence upon community values, it also satisfies the popular demand for grievous condemnation of abhorrent crimes, and thus prevents disorder, lynching, and attempts by private citizens to take the law into their own hands.
The question, however, is not whether death serves these supposed purposes of punishment, but whether death serves them more effectively than imprisonment. There is no evidence whatever that utilization of imprisonment, rather than death, encourages private blood feuds and other disorders. Surely if there were such a danger, the execution of a handful of criminals each year would not prevent it. The assertion that death alone is a sufficiently emphatic denunciation for capital crimes suffers from the same defect. If capital crimes require the punishment of death in order to provide moral reinforcement for the basic values of the community, those values can only be undermined when death is so rarely inflicted upon the criminals who commit the crimes. Furthermore, it is certainly doubtful that the infliction of death by the State does, in fact, strengthen the community’s moral code; if the deliberate extinguishment of human life has any effect at all, it more likely tends to lower our respect for life and brutalize our values. That, after all, is why we no longer carry out public executions. In any event, this claim simply means that one purpose of punishment is to indicate social disapproval of crime. To serve that purpose, our
laws distribute punishments according to the gravity of crimes, and punish more severely the crimes society regards as more serious. That purpose cannot justify any particular punishment as the upper limit of severity.
There is, then, no substantial reason to believe that the punishment of death, as currently administered, is necessary for the protection of society. The only other purpose suggested, one that is independent of protection for society, is retribution. Shortly stated, retribution in this context means that criminals are put to death because they deserve it.
Although it is difficult to believe that any State today wishes to proclaim adherence to “naked vengeance,” Trop v. Dulles, 356 U.S. at 356 U. S. 112 (BRENNAN, J., concurring), the States claim, in reliance upon its statutory authorization, that death is the only fit punishment for capital crimes and that this retributive purpose justifies its infliction. In the past, judged by its statutory authorization, death was considered the only fit punishment for the crime of forgery, for the first federal criminal statute provided a mandatory death penalty for that crime. Act of April 30, 1790, § 14, 1 Stat. 115. Obviously, concepts of justice change; no immutable moral order requires death for murderers and rapists. The claim that death is a just punishment necessarily refers to the existence of certain public beliefs. The claim must be that, for capital crimes, death alone comports with society’s notion of proper punishment. As administered today, however, the punishment of death cannot be justified as a necessary means of exacting retribution from criminals. When the overwhelming number af criminals who commit capital crimes go to prison, it cannot be concluded that death serves the purpose of retribution more effectively than imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random
few. As the history of the punishment of death in this country shows, our society wishes to prevent crime; we have no desire to kill criminals simply to get even with them.
In sum, the punishment of death is inconsistent with all four principles: death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.
When this country was founded, memories of the Stuart horrors were fresh and severe corporal punishments were common. Death was not then a unique punishment. The practice of punishing criminals by death, moreover, was widespread and by and large acceptable to society. Indeed, without developed prison systems, there was frequently no workable alternative. Since that time, successive restrictions, imposed against the background of a continuing moral controversy, have drastically curtailed the use of this punishment. Today death is a uniquely and unusually severe punishment. When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore “cruel and unusual,” and the States may no longer inflict it as a punishment for crimes. Rather than kill an arbitrary handful of criminals each year, the States will confine them in prison.
“The State thereby suffers nothing and loses no power. The purpose of punishment is fulfilled, crime
is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.”
Weems v. United States, 217 U.S. at 217 U. S. 381.
I concur in the judgments of the Court.[Footnote 2/1]
The Eighth Amendment provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
(Emphasis added.) The Cruel and Unusual Punishments Clause is fully applicable to the States through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U. S. 660 (1962); Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 342 (1963); Malloy v. Hogan, 378 U. S. 1, 378 U. S. 6 n. 6 (1964); Powell v. Texas, 392 U. S. 514 (1968).[Footnote 2/2]
“But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany — of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.”
3 J. Elliot’s Debates 447-448 (2d ed. 1876). Although these remarks have been cited as evidence that the Framers considered only torturous punishments to be “cruel and unusual,” it is obvious that Henry was referring to the use of torture for the purpose of eliciting confessions from suspected criminals. Indeed, in the ensuing colloquy, see n. 3, infra. George Mason responded that the use of torture was prohibited by the right against self-incrimination contained in the Virginia Bill of Rights.[Footnote 2/3]
It is significant that the response to Henry’s plea, by George Nicholas, was simply that a Bill of Rights would be ineffective as a means of restraining the legislative power to prescribe punishments:
“But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments, and that, consequently, we are not free from torture. . . . If we had no security against torture but our [Virginia] declaration of rights, we might be tortured tomorrow, for it has been repeatedly infringed and disregarded.”
3 J. Elliot’s Debates, supra, at 451. George Mason misinterpreted Nicholas’ response to Henry:
“Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the [Virginia] bill of rights did not prohibit torture, for that one clause expressly provided that no man can give evidence against himself, and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”
Id. at 452. Nicholas concluded the colloquy by making his point again:
“Mr. NICHOLAS acknowledged the [Virginia] bill of rights to contain that prohibition, and that the gentleman was right with respect to the practice of extorting confession from the criminal in those countries where torture is used; but still he saw no security arising from the bill of rights as separate from the Constitution, for that it had been frequently violated with impunity.”
Ibid. There was thus no denial that the legislative power should be restrained; the dispute was whether a Bill of Rights would provide a realistic restraint. The Framers, obviously, believed it would.[Footnote 2/4]
We have not been referred to any mention of the Cruel and Unusual Punishments Clause in the debates of the state legislatures on ratification of the Bill of Rights.[Footnote 2/5]
The elided portion of Livermore’s remarks reads:
“What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine.”
Since Livermore did not ask similar rhetorical questions about the Cruel and Unusual Punishments Clause, it is unclear whether he included the Clause in his objection that the Eighth Amendment “seems to have no meaning in it.”[Footnote 2/6]
Indeed, the first federal criminal statute, enacted by the First Congress, prescribed 39 lashes for larceny and for receiving stolen goods, and one hour in the pillory for perjury. Act of Apr. 30, 1790, §§ 16-18, 1 Stat. 116.[Footnote 2/7]
“expressed the opinion that the provision did not apply to punishment by ‘fine or imprisonment or both, but such as that inflicted at the whipping post, in the pillory, burning at the stake, breaking on the wheel,’ etc.”
Ibid. Another court
“said that, ordinarily, the terms imply something inhuman and barbarous, torture and the like. . . . Other cases . . . selected certain tyrannical acts of the English monarchs as illustrating the meaning of the clause and the extent of its prohibition.”
Id. at 217 U. S. 368.[Footnote 2/8]
The Court had earlier emphasized this point in In re Kemmler, 136 U. S. 436 (1890), even while stating the narrow, “historical” interpretation of the Clause:
“This [English] Declaration of Rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question as used in the constitution of the State of New York was intended particularly to operate upon the legislature of the State, to whose control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, . . . it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition. And we think this equally true of the [Clause], in its application to Congress.”
Id. at 136 U. S. 446-447 (emphasis added).[Footnote 2/9]
Indeed, the Court in Weems refused even to comment upon some decisions from state courts because they were “based upon sentences of courts, not upon the constitutional validity of laws.” 217 U.S. at 217 U. S. 377.[Footnote 2/10]
“may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”
Weems v. United States, 217 U.S. at 217 U. S. 378.[Footnote 2/11]
“It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor. What painful labor may mean we have no exact measure. It must be something more than hard labor. It may be hard labor pressed to the point of pain.”[Footnote 2/12]
“His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the ‘authority immediately in charge of his surveillance,’ and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him, and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty.”[Footnote 2/13]
“This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.”
“[I]t can be supposed that the consequences of greatest weight, in terms of ultimate impact on the petitioner, are unknown and unknowable. Indeed, in truth, he may live out his life with but minor inconvenience. . . . Nevertheless, it cannot be denied that the impact of expatriation — especially where statelessness is the upshot — may be severe. Expatriation, in this respect, constitutes an especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment.”[Footnote 2/14]
“It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation of the bill of rights, both on account of their degree and kind.”
Weems v. United States, 217 U.S. at 217 U. S. 377.[Footnote 2/15]
“There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.”
Trop v. Dulles, 356 U.S. at 356 U. S. 101-102.[Footnote 2/16]
“The phrase in our Constitution was taken directly from the English Declaration of Rights of . . . .” Id. at 356 U. S. 100.[Footnote 2/17]
The specific incident giving rise to the provision was the perjury trial of Titus Oates in 1685.
“None of the punishments inflicted upon Oates amounted to torture. . . . In the context of the Oates’ case, ‘cruel and unusual’ seems to have meant a severe punishment unauthorized by statute and not within the jurisdiction of the court to impose.”
Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839, 859 (1969). Thus, “[t]he irregularity and anomaly of Oates’ treatment was extreme.” Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1789 n. 74 (1970). Although the English provision was intended to restrain the judicial and executive power, see n. 8, supra, the principle is, of course, fully applicable under our Clause, which is primarily a restraint upon the legislative power.[Footnote 2/18]
In a case from the Philippine Territory, the Court struck down a punishment that “ha[d] no fellow in American legislation.” Weems v. United States, 217 U.S. at 217 U. S. 377. After examining the punishments imposed, under both United States and Philippine law, for similar as well as more serious crimes, id. at 217 U. S. 380-381, the Court declared that the “contrast”
“exhibit[ed] a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice,”
id. at 217 U. S. 381. And in Trop v. Dulles, supra, in which a law of Congress punishing wartime desertion by expatriation was held unconstitutional, it was emphasized that “[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” Id. at 356 U. S. 102. When a severe punishment is not inflicted elsewhere, or when more serious crimes are punished less severely, there is a strong inference that the State is exercising arbitrary, “unrestrained power.”[Footnote 2/19]
“The court pointed out that death was an usual punishment for murder, that it prevailed in the Territory for many years, and was inflicted by shooting, also that that mode of execution was usual under military law. It was hence concluded that it was not forbidden by the Constitution of the United States as cruel or unusual.”[Footnote 2/20]
It was said in Trop v. Dulles, supra, at 356 U. S. 100-101, n. 32, that,
“[o]n the few occasions this Court has had to consider the meaning of the [Clause], precise distinctions between cruelty and unusualness do not seem to have been drawn. . . . If the word ‘unusual’ is to have any meaning apart from the word ‘cruel,’ however, the meaning should be the ordinary one, signifying something different from that which is generally done.”
There are other statements in prior cases indicating that the word “unusual” has a distinct meaning: “We perceive nothing . . . unusual in this [punishment].” Pervear v. The Commonwealth, 5 Wall. 475, 72 U. S. 480 (1867). “[T]he judgment of mankind would be that the punishment was not only an unusual, but a cruel one. . . .” O’Neil v. Vermont, 144 U. S. 323, 144 U. S. 340 (1892) (Field, J., dissenting). “It is unusual in its character.” Weems v. United States, supra, at 217 U. S. 377. “And the punishment inflicted . . . is certainly unusual.” United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 255 U. S. 430 (1921) (Brandeis, J., dissenting). “The punishment inflicted is not only unusual in character; it is, so far as known, unprecedented in American legal history.” Id. at 255 U. S. 435. “There is no precedent for it. What then is it, if it be not cruel, unusual and unlawful?” Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 479 (1947) (Burton, J., dissenting). “To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.” Robinson v. California, 370 U.S. at 370 U. S. 667.
It is fair to conclude from these statements that “[w]hether the word unusual’ has any qualitative meaning different from `cruel’ is not clear.” Trop v. Dulles, supra, at 356 U. S. 100 n. 32. The question, in any event, is of minor significance; this Court has never attempted to explicate the meaning of the Clause simply by parsing its words.[Footnote 2/21]
The danger of subjective judgment is acute if the question posed is whether a punishment “shocks the most fundamental instincts of civilized man,” Louisiana ex rel. Francis v. Resweber, supra, at 329 U. S. 473 (Burton, J., dissenting), or whether “any man of right feeling and heart can refrain from shuddering,” O’Neil v. Vermont, supra, at 144 U. S. 340 (Field, J., dissenting), or whether “a cry of horror would rise from every civilized and Christian community of the country,” ibid. Mr. Justice Frankfurter’s concurring opinion in Louisiana ex rel. Francis v. Resweber, supra, is instructive. He warned “against finding in personal disapproval a reflection of more or less prevailing condemnation” and against
“enforcing . . . private view[s], rather than that consensus of society’s opinion which, for purposes of due process, is the standard enjoined by the Constitution.”
Id. at 329 U. S. 471. His conclusions were as follows:
“I cannot bring myself to believe that [the State’s procedure] . . . offends a principle of justice ‘rooted in the traditions and conscience of our people.'”
Id. at 329 U. S. 470. “. . . I cannot say that it would be repugnant to the conscience of mankind.'” Id. at 329 U. S. 471. Yet nowhere in the opinion is there any explanation of how he arrived at those conclusions.[Footnote 2/22]
Cf. Louisiana ex rel. Francis v. Resweber, supra, at 329 U. S. 463: “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.”[Footnote 2/23]
It may, in fact, have appeared earlier. In Pervear v. The Commonwealth, 5 Wall. at 72 U. S. 480, the Court stated:
“We perceive nothing excessive, or cruel, or unusual in this [punishment]. The object of the law was to protect the community against the manifold evils of intemperance. The mode adopted, of prohibiting under penalties the sale and keeping for sale of intoxicating liquors without license, is the usual mode adopted in many, perhaps, all of the States. It is wholly within the discretion of State legislatures.”
This discussion suggests that the Court viewed the punishment as reasonably related to the purposes for which it was inflicted.[Footnote 2/24]
Mr. Justice Field apparently based his conclusion upon an intuitive sense that the punishment was disproportionate to the criminal’s moral guilt, although he also observed that “the punishment was greatly beyond anything required by any humane law for the offences,” O’Neil v. Vermont, 144 U.S. at 144 U. S. 340. Cf. Trop v. Dulles, 356 U.S. at 356 U. S. 99:
“Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime.”[Footnote 2/25]
“The State thereby suffers nothing, and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.”
Weems v. United States, 217 U.S. at 217 U. S. 381.[Footnote 2/26]
The principle that a severe punishment must not be excessive does not, of course, mean that a severe punishment is constitutional merely because it is necessary. A State could not now, for example, inflict a punishment condemned by history, for any such punishment, no matter how necessary, would be intolerably offensive to human dignity. The point is simply that the unnecessary infliction of suffering is also offensive to human dignity.[Footnote 2/27]
The Fifth Amendment provides:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law. . . .”
(Emphasis added.)[Footnote 2/28]
No one, of course, now contends that the reference in the Fifth Amendment to “jeopardy of . . . limb” provides perpetual constitutional sanction for such corporal punishments as branding and ear-cropping, which were common punishments when the Bill of Rights was adopted. But cf. n. 29, infra. As the California Supreme Court pointed out with respect to the California Constitution:
“The Constitution expressly proscribes cruel or unusual punishments. It would be mere speculation and conjecture to ascribe to the framers an intent to exempt capital punishment from the compass of that provision solely because, at a time when the death penalty was commonly accepted, they provided elsewhere in the Constitution for special safeguards in its application.”
People v. Anderson, 6 Cal. 3d 628, 639, 493 P.2d 880, 887 (1972).[Footnote 2/29]
“The [Clause] forbids ‘cruel and unusual punishments.’ In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the [Clause] was adopted. It is inconceivable to me that the framers intended to end capital punishment by the [Clause].”
Under this view, of course, any punishment that was in common use in 1791 is forever exempt from the Clause.[Footnote 2/30]
The Court expressly noted that the constitutionality of the punishment itself was not challenged. Wilkerson v. Utah, 99 U.S. at 99 U. S. 136-137. Indeed, it may be that the only contention made was that, in the absence of statutory sanction, the sentencing “court possessed no authority to prescribe the mode of execution.” Id. at 99 U. S. 137.[Footnote 2/31]
“We held in the case of Kemmler . . . that, as the legislature of the State of New York had determined that [electrocution] did not inflict cruel and unusual punishment, and its courts had sustained that determination, we were unable to perceive that the State had thereby abridged the privileges or immunities of petitioner or deprived him of due process of law.”[Footnote 2/32]
It was also asserted that the Constitution prohibits “cruelty inherent in the method of punishment,” but does not prohibit “the necessary suffering involved in any method employed to extinguish life humanely.” 329 U.S. at 329 U. S. 464. No authority was cited for this assertion, and, in any event, the distinction drawn appears to be meaningless.[Footnote 2/33]
In a non-death case, Trop v. Dulles, it was said that, “in a day when it is still widely accepted, [death] cannot be said to violate the constitutional concept of cruelty.” 356 U.S. at 356 U. S. 99 (emphasis added). This statement, of course, left open the future constitutionality of the punishment.[Footnote 2/34]
“That life is at stake is, of course, another important factor in creating the extraordinary situation. The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant.”
“When the penalty is death, we, like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance.”
Stein v. New York, 346 U. S. 156, 346 U. S. 196 (1953) (Jackson, J.). “In death cases doubts such as those presented here should be resolved in favor of the accused.” Andres v. United States, 333 U. S. 740, 333 U. S. 752 (1948) (Reed, J.). Mr. Justice Harlan expressed the point strongly:
“I do not concede that whatever process is ‘due”an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. The distinction is by no means novel, . . . nor is it negligible, being literally that between life and death.”
Reid v. Covert, 354 U. S. 1, 354 U. S. 77 (1957) (concurring in result). And, of course, for many years, this Court distinguished death cases from all others for purposes of the constitutional right to counsel. See Powell v. Alabama, 287 U. S. 45 (1932); Betts v. Brady, 316 U. S. 455 (1942); Bute v. Illinois, 333 U. S. 640 (1948).[Footnote 2/35]
See Report of Royal Commission on Capital Punishment 1949-1953, �� 700-789, pp. 246-273 (1953); Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 19-21 (1968) (testimony of Clinton Duffy); H. Barnes & N. Teeters, New Horizons in Criminology 306-309 (3d ed. 1959); C. Chessman, Trial by Ordeal 195-202 (1955); M. DiSalle, The Power of Life and Death 84-85 (1965); C. Duffy & A. Hirschberg, 88 Men and 2 Women 13-14 (1962); B. Eshelman, Death Row Chaplain 26-29, 101-104, 159-164 (1962); R. Hammer, Between Life and Death 208-212 (1969); K. Lamott, Chronicles of San Quentin 228-231 (1961); L. Lawes, Life and Death in Sing Sing 170-171 (1928); Rubin, The Supreme Court, Cruel and Unusual Punishment, and the Death Penalty, 15 Crime & Delin. 121, 128-129 (1969); Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1338-1341 (1968); Brief amici curiae filed by James V. Bennett, Clinton T. Duffy, Robert G. Sarver, Harry C. Tinsley, and Lawrence E. Wilson 12-14.[Footnote 2/36]
See Barnes & Teeters, supra, at 309-311 (3d ed. 1959); Camus, Reflections on the Guillotine, in A. Camus, Resistance, Rebellion, and Death 131, 151-156 (1960); C. Duffy & A. Hirschberg, supra, at 68-70, 254 (1962); Hammer, supra, at 222-235, 244-250, 269-272 (1969); S. Rubin, The Law of Criminal Correction 340 (1963); Bluestone & McGahee, Reaction to Extreme Stress: Impending Death by Execution, 119 Amer.J.Psychiatry 393 (1962); Gottlieb, Capital Punishment, 15 Crime & Delin. 1, 8-10 (1969); West, Medicine and Capital Punishment, in Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 124 (1968); Ziferstein, Crime and Punishment, The Center Magazine 84 (Jan. 1968); Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1342 (1968); Note, Mental Suffering under Sentence of Death: A Cruel and Unusual Punishment, 57 Iowa L.Rev. 814 (1972).[Footnote 2/37]
The State, of course, does not purposely impose the lengthy waiting period in order to inflict further suffering. The impact upon the individual is not the less severe on that account. It is no answer to assert that long delays exist only because condemned criminals avail themselves of their full panoply of legal rights. The right not to be subjected to inhuman treatment cannot, of course, be played off against the right to pursue due process of law, but, apart from that, the plain truth is that it is society that demands, even against the wishes of the criminal, that all legal avenues be explored before the execution is finally carried out.[Footnote 2/38]
It was recognized in Trop itself that expatriation is a “punishment short of death.” 356 U.S. at 356 U. S. 99. Death, however, was distinguished on the ground that it was “still widely accepted.” Ibid.[Footnote 2/39]
Stephen, Capital Punishments, 69 Fraser’s Magazine 753, 763 (1864).[Footnote 2/40]
From 1930 to 1939: 155, 153, 140, 160, 168, 199, 195, 147, 190, 160. From 1940 to 1949: 124, 123, 147, 131, 120, 117, 131, 153, 119, 119. From 1950 to 1959: 82, 105, 83, 62, 81, 76, 65, 65, 49, 49. From 1960 to 1967: 56, 42, 47, 21, 15, 7, 1, 2. Department of Justice, National Prisoner Statistics No. 46, Capital Punishment 1930-1970, p. 8 (Aug. 1971). The last execution in the United States took place on June 2, 1967. Id. at 4.[Footnote 2/41]
1961 — 140; 1962 — 103; 1963 — 93; 1964 — 106; 1965 — 86; 1966 — 118; 1967 — 85; 1968 — 102; 1969 — 97; 1970 — 127. Id. at 9.[Footnote 2/42]
Commutations averaged about 18 per year. 1961 — 17; 1962 — 27; 1963 — 16; 1964 — 9; 1965 — 19; 1966 — 17; 1967 — 13; 1968 — 16; 1969 — 20; 1970 — 29. Ibid.[Footnote 2/43]
Transfers to mental institutions averaged about three per year. 1961 — 3; 1962 — 4; 1963 — 1; 1964 — 3; 1965 — 4; 1966 — 3; 1967 — 3; 1968 — 2; 1969 — 1; 1970 — 5. Ibid.[Footnote 2/44]
These four methods of disposition averaged about 44 per year. 1961 — 31, 1962 — 30; 1963 — 32; 1964 — 58; 1965 — 39; 1966 — 33; 1967 — 53; 1968 — 59; 1969 — 64; 1970 — 42. Ibid. Specific figures are available starting with 1967. Resentences: 1967 — 7; 1968 — 18; 1969 — 12; 1970 — 14. Grants of new trials and orders for resentencing: 1967 — 31; 1968 — 21; 1969 — 13; 1970 — 9. Dismissals of indictments and reversals of convictions: 1967 — 12; 1968 — 19; 1969 — 33; 1970 — 17. Deaths by suicide and natural causes: 1967 — 2; 1968 — 1; 1969 — 5; 1970 — 2. National Prisoner Statistics No. 42, Executions 1930-1967, p. 13 (June 1968); National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 12 (Aug. 1969); National Prisoner statistics, supra, n. 40, at 14-15.[Footnote 2/45]
Id. at 9.[Footnote 2/46]
During that 10-year period, 1,177 prisoners entered death row, including 120 who were returned following new trials or treatment at mental institutions. There were 653 dispositions other than by execution, leaving 524 prisoners who might have been executed, of whom 135 actually were. Ibid.[Footnote 2/47]
Id. at 8.[Footnote 2/48]
The victim surprised Furman in the act of burglarizing the victim’s home in the middle of the night. While escaping, Furman killed the victim with one pistol shot fired through the closed kitchen door from the outside. At the trial, Furman gave his version of the killing:
“They got me charged with murder and I admit, I admit going to these folks’ home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn’t intend to kill nobody. I didn’t know they was behind the door. The gun went off and I didn’t know nothing about no murder until they arrested me, and when the gun went off, I was down on the floor, and I got up and ran. That’s all to it.”
App. 555. The Georgia Supreme Court accepted that version:
“The admission in open court by the accused . . . that, during the period in which he was involved in the commission of a criminal act at the home of the deceased, he accidentally tripped over a wire in leaving the premises causing the gun to go off, together with other facts and circumstances surrounding the death of the deceased by violent means, was sufficient to support the verdict of guilty of murder. . . .”
Furman v. State, 225 Ga. 253, 254, 167 S.E.2d 628, 629 (1969). About Furman himself, the jury knew only that he was black and that, according to his statement at trial, he was 26 years old and worked at “Superior Upholstery.” App. 54. It took the jury one hour and 35 minutes to return a verdict of guilt and a sentence of death. Id. at 64-65.[Footnote 2/49]
T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959).[Footnote 2/50]
Eight States still employ hanging as the method of execution, and one, Utah, also employs shooting. These nine States have accounted for less than 3% of the executions in the United States since 1930. National Prisoner Statistics, supra, n. 40, at 10-11.[Footnote 2/51]
Id. at 8[Footnote 2/52]
Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia, and Wisconsin have abolished death as a punishment for crimes. Id. at 50. In addition, the California Supreme Court held the punishment unconstitutional under the state counterpart of the Cruel and Unusual Punishments Clause. People v. Anderson, 6 Cal.3d 628, 493 P.2d 880 (1972).[Footnote 2/53]
New Mexico, New York, North Dakota, Rhode Island, and Vermont have almost totally abolished death as a punishment for crimes. National Prisoner Statistics, supra, n. 40, at 50. Indeed, these five States might well be considered de facto abolition States. North Dakota and Rhode Island, which restricted the punishment in 1915 and 1852, respectively, have not carried out an execution since at least 1930, id. at 10; nor have there been any executions in New York, Vermont, or New Mexico since they restricted the punishment in 1965, 1965, and 1969, respectively, id. at 10-11. As of January 1, 1971, none of the five States had even a single prisoner under sentence of death. Id. at 18-19.
In addition, six States, while retaining the punishment on the books in generally applicable form, have made virtually no use of it. Since 1930, Idaho, Montana, Nebraska, New Hampshire, South Dakota, and Wyoming have carried out a total of 22 executions. Id. at 10-11. As of January 1, 1971, these six States had a total of three prisoners under sentences of death. Id. at 18-19. Hence, assuming 25 executions in 42 years, each State averaged about one execution every 10 years.[Footnote 2/54]
There is also the more limited argument that death is a necessary punishment when criminals are already serving or subject to a sentence of life imprisonment. If the only punishment available is further imprisonment, it is said, those criminals will have nothing to lose by committing further crimes, and accordingly, the threat of death is the sole deterrent. But “life” imprisonment is a misnomer today. Rarely, if ever, do crimes carry a mandatory life sentence without possibility of parole. That possibility ensures that criminals do not reach the point where further crimes are free of consequences. Moreover, if this argument is simply an assertion that the threat of death is a more effective deterrent than the threat of increased imprisonment by denial of release on parole, then, as noted above, there is simply no evidence to support. it.
MR. JUSTICE STEWART, concurring.
The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.
For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 347 (Brandeis, J., concurring).
The opinions of other Justices today have set out in admirable and thorough detail the origins and judicial history of the Eighth Amendment’s guarantee against the infliction of cruel and unusual punishments, [Footnote 3/1] and the origin and judicial history of capital punishment. [Footnote 3/2] There
is thus no need for me to review the historical materials here, and what I have to say can, therefore, be briefly stated. Legislatures — state and federal — have sometimes specified that the penalty of death shall be the mandatory punishment for every person convicted of engaging in certain designated criminal conduct. Congress, for example, has provided that anyone convicted of acting as a spy for the enemy in time of war shall be put to death. [Footnote 3/3] The Rhode Island Legislature has ordained the death penalty for a life term prisoner who commits murder. [Footnote 3/4] Massachusetts has passed a law imposing the death penalty upon anyone convicted of murder in the commission of a forcible rape. [Footnote 3/5] An Ohio law imposes the mandatory penalty of death upon the assassin of the President of the United States or the Governor of a State. [Footnote 3/6]
If we were reviewing death sentences imposed under these or similar laws, we would be faced with the need to decide whether capital punishment is unconstitutional for all crimes and under all circumstances. We would need to decide whether a legislature — state or federal — could constitutionally determine that certain criminal conduct is so atrocious that society’s interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator, and that, despite the inconclusive empirical evidence, [Footnote 3/7] only
the automatic penalty of death will provide maximum deterrence.
On that score I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.
The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape. [Footnote 3/8] And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder. [Footnote 3/9] In a word, neither State
has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses. As MR. JUSTICE WHITE so tellingly puts it, the “legislative will is not frustrated if the penalty is never imposed.” Post at 408 U. S. 311.
Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment’s guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. Robinson v. California, 370 U. S. 660. In the first place, it is clear that these sentences are “cruel” in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. Weems v. United States, 217 U. S. 349. In the second place, it is equally clear that these sentences are “unusual” in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. [Footnote 3/10] But I do not rest my conclusion upon these two propositions alone.
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, [Footnote 3/11] many just as reprehensible as these, the petitioners are among a capriciously
selected random handful upon whom the sentence of death has in fact been imposed. [Footnote 3/12] My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. [Footnote 3/13] See McLaughlin v. Florida, 379 U. S. 184. But racial discrimination has not been proved, [Footnote 3/14] and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.
For these reasons I concur in the judgments of the Court.[Footnote 3/1]
See , post, at 408 U. S. 376-379; concurring opinion of MR. JUSTICE DOUGLAS, ante at 408 U. S. 242-244; concurring opinion of MR. JUSTICE BRENNAN, ante at 258-269; concurring opinion of MR. JUSTICE MARSHALL, post at 408 U. S. 316-328; dissenting opinion of MR. JUSTICE BLACKMUN, post at 408 U. S. 407-409; dissenting opinion of MR. JUSTICE POWELL, post at 408 U. S. 421-427.[Footnote 3/2]
See dissenting opinion of THE CHIEF JUSTICE, post at 408 U. S. 380; concurring opinion of MR. JUSTICE BRENNAN, ante at 408 U. S. 282-285; concurring opinion of MR. JUSTICE MARSHALL, post at 408 U. S. 333-341; dissenting opinion of MR. JUSTICE POWELL, post at 408 U. S. 421-424.[Footnote 3/3]
10 U.S.C. § 906.[Footnote 3/4]
R.I.Gen.Laws Ann. § 11-23-2.[Footnote 3/5]
Mass.Gen.Laws Ann., c. 265, § 2.[Footnote 3/6]
Ohio Rev.Code Ann., Tit. 29, §§ 2901.09 and 2901.10.[Footnote 3/7]
Many statistical studies — comparing crime rates in jurisdictions with and without capital punishment and in jurisdictions before and after abolition of capital punishment — have indicated that there is little, if any, measurable deterrent effect. See H. Bedau, The Death Penalty in America 258-332 (1967 rev. ed.). There remains uncertainty, however, because of the difficulty of identifying and holding constant all other relevant variables. See Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1275-1292. See also dissenting opinion of THE CHIEF JUSTICE, post at 408 U. S. 395; concurring opinion of MR. JUSTICE MARSHALL, post at 408 U. S. 346-354.[Footnote 3/8]
Georgia law, at the time of the conviction and sentencing of the petitioner in No. 69-5030, left the jury a choice between the death penalty, life imprisonment, or “imprisonment and labor in the penitentiary for not less than one year nor more than 20 years.” Ga.Code Ann. § 26-1302 (Supp. 1971) (effective prior to July l, 1969). The current Georgia provision for the punishment of forcible rape continues to leave the same broad sentencing leeway. Ga.Crim.Code § 26-2001 (1971 rev.) (effective July l, 1969). Texas law, under which the petitioner in No. 69-5031 was sentenced, provides that a “person guilty of rape shall be punished by death or by confinement in the penitentiary for life, or for any term of years not less than five.” Texas Penal Code, Art. 1189.[Footnote 3/9]
Georgia law, under which the petitioner in No. 69-5003 was sentenced, left the jury a choice between the death penalty and life imprisonment. Ga.Code Ann. § 26-1005 (Supp. 1971) (effective prior to July 1, 1969). Current Georgia law provides for similar sentencing leeway. Ga.Crim.Code § 26-1101 (1971 rev.) (effective July 1, 1969).[Footnote 3/10] Footnote 3/11]
Petitioner Branch was sentenced to death in a Texas court on July 26, 1967. Petitioner Furman was sentenced to death in a Georgia court on September 20, 1968. Petitioner Jackson was sentenced to death in a Georgia court on December 10, 1968.[Footnote 3/12]
A former United States Attorney General has testified before the Congress that only a “small and capricious selection of offenders have been put to death. Most persons convicted of the same crimes have been imprisoned.” Statement by Attorney General Clark in Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 93.
In McGautha v. California, 402 U. S. 183, the Court dealt with claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We expressly declined in that case to consider claims under the constitutional guarantee against cruel and unusual punishments. See 398 U. S. 936 (limited grant of certiorari).[Footnote 3/13] Footnote 3/14]
Cf. Note, A Study of the California Penalty Jury in First-Degree-Murder Cases, 21 Stan.L.Rev. 1297 (1969); dissenting opinion of THE CHIEF JUSTICE, post at 408 U. S. 389-390, n. 12.
MR. JUSTICE WHITE, concurring.
The facial constitutionality of statutes requiring the imposition of the death penalty for first-degree murder, for more narrowly defined categories of murder, or for rape would present quite different issues under the Eighth Amendment than are posed by the cases before us. In joining the Court’s judgments, therefore, I do not at all
intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided.
The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment.
I begin with what I consider a near truism: that the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system. It is perhaps true that, no matter how infrequently those convicted of rape or murder are executed, the penalty so imposed is not disproportionate to the crime and those executed may deserve exactly what they received. It would also be clear that executed defendants are finally and completely incapacitated from again committing rape or murder or any other crime. But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied. Nor could it be said with confidence that society’s need for specific deterrence justifies death
for so few when, for so many in like circumstances, life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.
Most important, a major goal of the criminal law — to deter others by punishing the convicted criminal — would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. For present purposes, I accept the morality and utility of punishing one person to influence another. I accept also the effectiveness of punishment generally, and need not reject the death penalty as a more effective deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct, and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.
The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.
It is also my judgment that this point has been reached with respect to capital punishment as it is presently administered
under the statutes involved in these cases. Concededly, it is difficult to prove as a general proposition that capital punishment, however administered, more effectively serves the ends of the criminal law than does imprisonment. But however that may be, I cannot avoid the conclusion that, as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.
I need not restate the facts and figures that appear in the opinions of my Brethren. Nor can I “prove” my conclusion from these data. But, like my Brethren, I must arrive at judgment; and I can do no more than state a conclusion based on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty. That conclusion, as I have said, is that the death penalty is exacted with great infrequency even for the most atrocious crimes, and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. The short of it is that the policy of vesting sentencing authority primarily in juries — a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence — has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has, for all practical purposes, run its course.
Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the
constitutionality of punishment, and that there are punishments that the Amendment would bar whether legislatively approved or not. Inevitably, then, there will be occasions when we will differ with Congress or state legislatures with respect to the validity of punishment. There will also be cases in which we shall strongly disagree among ourselves. Unfortunately, this is one of them. But, as I see it, this case is no different in kind from many others, although it may have wider impact and provoke sharper disagreement.
In this respect, I add only that past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime. Legislative “policy” is thus necessarily defined not by what is legislatively authorized, but by what juries and judges do in exercising the discretion so regularly conferred upon them. In my judgment, what was done in these cases violated the Eighth Amendment.
I concur in the judgments of the Court.
MR. JUSTICE MARSHALL, concurring.
These three cases present the question whether the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. [Footnote 4/1]
In No. 69-5003, Furman was convicted of murder for shooting the father of five children when he discovered that Furman had broken into his home early one morning. Nos. 69-5030 and 69-5031 involve state convictions for forcible rape. Jackson was found guilty of rape during the course of a robbery in the victim’s home. The rape was accomplished as he held the pointed ends of scissors at the victim’s throat. Branch also was convicted of a rape committed in the victim’s home. No weapon was utilized, but physical force and threats of physical force were employed.
The criminal acts with which we are confronted are ugly, vicious, reprehensible acts. Their sheer brutality cannot and should not be minimized. But we are not called upon to condone the penalized conduct; we are asked only to examine the penalty imposed on each of the petitioners and to determine whether or not it violates the Eighth Amendment. The question then is not whether we condone rape or murder, for surely we do not; it is whether capital punishment is “a punishment no longer consistent with our own self-respect” [Footnote 4/2] and, therefore, violative of the Eighth Amendment.
The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint. [Footnote 4/3] Hence, we must proceed with caution to answer the question presented. [Footnote 4/4] By first examining the historical derivation of the Eighth Amendment and
the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint.
Candor is critical to such an inquiry. All relevant material must be marshaled and sorted and forthrightly examined. We must not only be precise as to the standards of judgment that we are utilizing, but exacting in examining the relevant material in light of those standards.
Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error.
The Eighth Amendment’s ban against cruel and unusual punishments derives from English law. In 1583, John Whitgift, Archbishop of Canterbury, turned the High Commission into a permanent ecclesiastical court, and the Commission began to use torture to extract confessions from persons suspected of various offenses. [Footnote 4/5] Sir Robert Beale protested that cruel and barbarous torture violated Magna Carta, but his protests were made in vain. [Footnote 4/6]
Cruel punishments were not confined to those accused of crimes, but were notoriously applied with even greater relish to those who were convicted. Blackstone described in ghastly detail the myriad of inhumane forms of punishment imposed on persons found guilty of any of a large number of offenses. [Footnote 4/7] Death, of course, was the usual result. [Footnote 4/8]
The treason trials of 1685 — the “Bloody Assizes” — which followed an abortive rebellion by the Duke of Monmouth, marked the culmination of the parade of horrors, and most historians believe that it was this event that finally spurred the adoption of the English Bill of Rights containing the progenitor of our prohibition against cruel and unusual punishments. [Footnote 4/9] The conduct of Lord Chief Justice Jeffreys at those trials has been described as an “insane lust for cruelty” which was “stimulated by orders from the King” (James II). [Footnote 4/10] The assizes received wide publicity from Puritan pamphleteers, and doubtless had some influence on the adoption of a cruel and unusual punishments clause. But,
the legislative history of the English Bill of Rights of 1689 indicates that the assizes may not have been as critical to the adoption of the clause as is widely thought. After William and Mary of Orange crossed the channel to invade England, James II fled. Parliament was summoned into session, and a committee was appointed to draft general statements containing “such things as are absolutely necessary to be considered for the better securing of our religion, laws and liberties.” [Footnote 4/11] An initial draft of the Bill of Rights prohibited “illegal” punishments, but a later draft referred to the infliction by James II of “illegal and cruel” punishments, and declared “cruel and unusual” punishments to be prohibited. [Footnote 4/12] The use of the word “unusual” in the final draft appears to be inadvertent.
This legislative history has led at least one legal historian to conclude
“that the cruel and unusual punishments clause of the Bill of Rights of 1689 was, first, an objection to the imposition of punishments that were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties, [Footnote 4/13]”
and not primarily a reaction to the torture of the High Commission, harsh sentences, or the assizes.
Whether the English Bill of Rights prohibition against cruel and unusual punishments is properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or as both, there is no doubt whatever that, in borrowing the language and in including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments. [Footnote 4/14]
The precise language used in the Eighth Amendment first appeared in America on June 12, 1776, in Virginia’s “Declaration of Rights,” § 9 of which read: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [Footnote 4/15] This language was drawn verbatim from the English Bill of Rights of 1689. Other States adopted similar clauses, [Footnote 4/16] and there is evidence in the debates of the various state conventions that were
called upon to ratify the Constitution of great concern for the omission of any prohibition against torture or other cruel punishments. [Footnote 4/17]
The Virginia Convention offers some clues as to what the Founding Fathers had in mind in prohibiting cruel and unusual punishments. At one point, George Mason advocated the adoption of a Bill of Rights, and Patrick Henry concurred, stating:
“By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? . . . Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our bill of rights. — ‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more — you depart from the genius of your country. . . . ”
“In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting
cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished our ancestors. — That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany — of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone. [Footnote 4/18]”
Henry’s statement indicates that he wished to insure that “relentless severity” would be prohibited by the Constitution. Other expressions with respect to the proposed Eighth Amendment by Members of the First Congress indicate that they shared Henry’s view of the need for and purpose of the Cruel and Unusual Punishments Clause. [Footnote 4/19]
Thus, the history of the clause clearly establishes that it was intended to prohibit cruel punishments. We must now turn to the case law to discover the manner in which courts have given meaning to the term “cruel.”
This Court did not squarely face the task of interpreting the cruel and unusual punishments language for the first time until Wilkerson v. Utah, 9 U. S. 130 (1879), although the language received a cursory examination in several prior cases. See, e.g., 72 U. S. Commonwealth, 5 Wall. 475 (1867). In Wilkerson, the Court unanimously upheld a sentence of public execution by shooting imposed pursuant to a conviction for premeditated murder. In his opinion for the Court, Mr. Justice Clifford wrote:
“Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.”
99 U.S. at 99 U. S. 135-136. Thus, the Court found that unnecessary cruelty was no more permissible than torture. To determine whether the punishment under attack was unnecessarily cruel, the Court examined the history of the Utah Territory and the then-current writings on capital punishment, and compared this Nation’s practices with those of other countries. It is apparent that the Court felt it could not dispose of the question simply by referring to traditional practices; instead, it felt bound to examine developing thought.
Eleven years passed before the Court again faced a challenge to a specific punishment under the Eighth
Amendment. In the case of In re Kemmler, 136 U. S. 436 (1890), Chief Justice Fuller wrote an opinion for a unanimous Court upholding electrocution as a permissible mode of punishment. While the Court ostensibly held that the Eighth Amendment did not apply to the States, it is very apparent that the nature of the punishment involved was examined under the Due Process Clause of the Fourteenth Amendment. The Court held that the punishment was not objectionable. Today, Kemmler stands primarily for the proposition that a punishment is not necessarily unconstitutional simply because it is unusual, so long as the legislature has a humane purpose in selecting it. [Footnote 4/20]
Two years later, in O’Neil v. Vermont, 144 U. S. 323 (1892), the Court reaffirmed that the Eighth Amendment was not applicable to the States. O’Neil was found guilty on 307 counts of selling liquor in violation of Vermont law. A fine of $6,140 ($20 for each offense) and the costs of prosecution ($497.96) were imposed. O’Neil was committed to prison until the fine and the costs were paid, and the court provided that, if they were not paid before a specified date, O’Neil was to be confined in the house of corrections for 19,914 days (approximately 54 years) at hard labor. Three Justices — Field, Harlan, and Brewer — dissented. They maintained not only that the Cruel and Unusual Punishments Clause was applicable to the States, but that, in O’Neil’s case, it had been violated. Mr. Justice Field wrote:
“That designation [cruel and unusual], it is true, is usually applied to punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and the like, which
are attended with acute pain and suffering. . . . The inhibition is directed not only against punishments of the character mentioned, but against all punishments which, by their excessive length or severity, are greatly disproportioned to the offences charged. The whole inhibition is against that which is excessive. . . .”
Id. at 144 U. S. 339-340.
In Howard v. Fleming, 191 U. S. 126 (1903), the Court, in essence, followed the approach advocated by the dissenters in O’Neil. In rejecting the claim that 10-year sentences for conspiracy to defraud were cruel and unusual, the Court (per Mr. Justice Brewer) considered the nature of the crime, the purpose of the law, and the length of the sentence imposed.
The Court used the same approach seven years later in the landmark case of Weems v. United States, 217 U. S. 349 (1910). Weems, an officer of the Bureau of Coast Guard and Transportation of the United States Government of the Philippine Islands, was convicted of falsifying a “public and official document.” He was sentenced to 15 years’ incarceration at hard labor with chains on his ankles, to an unusual loss of his civil rights, and to perpetual surveillance. Called upon to determine whether this was a cruel and unusual punishment, the Court found that it was. [Footnote 4/21] The Court emphasized that the Constitution was not an “ephemeral” enactment, or one “designed to meet passing occasions.” [Footnote 4/22] Recognizing that “[t]ime works changes, [and] brings into existence new conditions and purposes,” [Footnote 4/23] the Court commented that, “[i]n the application of a constitution . . .
our contemplation cannot be only of what has been, but of what may be.” [Footnote 4/24]
In striking down the penalty imposed on Weems, the Court examined the punishment in relation to the offense, compared the punishment to those inflicted for other crimes and to those imposed in other jurisdictions, and concluded that the punishment was excessive. [Footnote 4/25] Justices White and Holmes dissented, and argued that the cruel and unusual prohibition was meant to prohibit only those things that were objectionable at the time the Constitution was adopted. [Footnote 4/26]
Weems is a landmark case because it represents the first time that the Court invalidated a penalty prescribed by a legislature for a particular offense. The Court made it plain beyond any reasonable doubt that excessive punishments were as objectionable a those that were inherently cruel. Thus, it is apparent that the dissenters’ position in O’Neil had become the opinion of the Court in Weems.
Weems was followed by two cases that added little to our knowledge of the scope of the cruel and unusual language, Badders v. United States, 240 U. S. 391 (1916), and United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407 (1921). [Footnote 4/27] Then
came another landmark case, Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947).
Francis had been convicted of murder and sentenced to be electrocuted. The first time the current passed through him, there was a mechanical failure, and he did not die. Thereafter, Francis sought to prevent a second electrocution on the ground that it would be a cruel and unusual punishment. Eight members of the Court assumed the applicability of the Eighth Amendment to the States. [Footnote 4/28] The Court was virtually unanimous in agreeing that “[t]he traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain,” [Footnote 4/29] but split 5-4 on whether Francis would, under the circumstances, be forced to undergo any excessive pain. Five members of the Court treated the case like In re Kemmler, and held that the legislature adopted electrocution for a humane purpose, and that its will should not be thwarted because, in its desire to reduce pain and suffering in most cases, it may have inadvertently increased suffering in one particular case. [Footnote 4/30]
The four dissenters felt that the case should be remanded for further facts.
As in Weems, the Court was concerned with excessive punishments. Resweber is perhaps most significant because the analysis of cruel and unusual punishment questions first advocated by the dissenters in O’Neil was at last firmly entrenched in the minds of an entire Court.
Trop v. Dulles, 356 U. S. 86 (1958), marked the next major cruel and unusual punishment case in this Court. Trop, a native-born American, was declared to have lost his citizenship by reason of a conviction by court-martial for wartime desertion. Writing for himself and Justices Black, DOUGLAS, and Whittaker, Chief Justice Warren concluded that loss of citizenship amounted to a cruel and unusual punishment that violated the Eighth Amendment. [Footnote 4/31]
Emphasizing the flexibility inherent in the words “cruel and unusual,” the Chief Justice wrote that “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” [Footnote 4/32] His approach to the problem was that utilized by the Court in Weems: he scrutinized the severity of the penalty in relation to the offense, examined the practices of other civilized nations of the world, and concluded that involuntary statelessness was an excessive and, therefore, an unconstitutional punishment. Justice Frankfurter, dissenting, urged that expatriation was not punishment, and that even if it were, it was not excessive. While he criticized the conclusion arrived at by the Chief Justice, his approach to the Eighth Amendment question was identical.
Whereas, in Trop, a majority of the Court failed to agree on whether loss of citizenship was a cruel and unusual punishment, four years later, a majority did agree in Robinson v. California, 370 U. S. 660 (1962), that a sentence of 90 days’ imprisonment for violation of a California statute making it a crime to “be addicted to the use of narcotics” was cruel and unusual. MR. JUSTICE STEWART, writing the opinion of the Court, reiterated what the Court had said in Weems and what Chief Justice Warren wrote in Trop — that the cruel and unusual punishment clause was not a static concept, but one that must be continually reexamined “in the light of contemporary human knowledge.” [Footnote 4/33] The fact that the penalty under attack was only 90 days evidences the Court’s willingness to carefully examine the possible excessiveness of punishment in a given case even where what is involved is a penalty that is familiar and widely accepted. [Footnote 4/34]
We distinguished Robinson in Powell v. Texas, 392 U. S. 514 (1968), where we sustained a conviction for drunkenness in a public place and a fine of $20. Four Justices dissented on the ground that Robinson was controlling. The analysis in both cases was the same; only the conclusion as to whether or not the punishment was excessive differed. Powell marked the last time prior to today’s decision that the Court has had occasion to construe the meaning of the term “cruel and unusual” punishment.
Several principles emerge from these prior cases and serve as a beacon to an enlightened decision in the instant cases.
Perhaps the most important principle in analyzing “cruel and unusual” punishment questions is one that is reiterated again and again in the prior opinions of the Court: i.e., the cruel and unusual language “must draw its meaning from the evolving standard of decency that mark the progress of a maturing society.” [Footnote 4/35] Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.
The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us. A fair reading of Wilkerson v. Utah, supra; In re Kemmler, supra; and Louisiana ex rel. Francis v. Resweber, supra, would certainly indicate an acceptance sub silentio of capital punishment as constitutionally permissible. Several Justices have also expressed their individual opinions that the death penalty is constitutional. [Footnote 4/36] Yet, some of these same Justices and others have at times expressed concern over capital punishment. [Footnote 4/37]
There is no holding directly in point, and the very nature of the Eighth Amendment would dictate that, unless a very recent decision existed, stare decisis would bow to changing values, and the question of the constitutionality of capital punishment at a given moment in history would remain open.
Faced with an open question, we must establish our standards for decision. The decisions discussed in the previous section imply that a punishment may be deemed cruel and unusual for any one of four distinct reasons.
First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them — e.g., use of the rack, the thumbscrew, or other modes of torture. See O’Neil v. Vermont, 144 U.S. at 144 U. S. 339(Field, J., dissenting). Regardless of public sentiment with respect to imposition of one of these punishments in a particular case or at any one moment in history, the Constitution prohibits it. These are punishments that have been barred since the adoption of the Bill of Rights.
Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offense. Cf. United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. at 255 U. S. 435 (Brandeis, J., dissenting). If these punishments are intended to serve a humane purpose, they may be constitutionally permissible. In re Kemmler, 136 U.S. at 136 U. S. 447; Louisiana ex rel. Francis v. Resweber, 329 U.S. at 329 U. S. 464. Prior decisions leave open the question of just how much the word “unusual” adds to the word “cruel.” I have previously indicated that use of the word “unusual” in the English Bill of Rights of 1689 was inadvertent, and there is nothing in the history of the Eighth Amendment to give flesh to its intended meaning. In light of the meager history that does exist, one would suppose that an innovative punishment would probably be constitutional if no more cruel than that punishment which it superseded. We need not decide this question here, however, for capital punishment is certainly not a recent phenomenon.
Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose. Weems v. United States, supra. The decisions previously discussed are replete with assertions that one of the primary functions of the cruel and unusual punishments clause is to prevent excessive or unnecessary penalties, e.g., Wilkerson v. Utah, 99 U.S. at 99 U. S. 134; O’Neil v. Vermont, 144 U.S. at 144 U. S. 339-340 (Field, J., dissenting); Weems v. United States, 217 U.S. at 217 U. S. 381; Louisiana ex rel. Francis v. Resweber, supra; these punishments are unconstitutional even though popular sentiment may favor them. Both THE CHIEF JUSTICE and MR. JUSTICE POWELL seek to ignore or to minimize this aspect of the Court’s prior decisions. But, since Mr. Justice Field first suggested that “[t]he whole inhibition [of the prohibition against cruel and unusual punishments]
is against that which is excessive,” O’Neil v. Vermont, 144 U.S. at 144 U. S. 340, this Court has steadfastly maintained that a penalty is unconstitutional whenever it is unnecessarily harsh or cruel. This is what the Founders of this country intended; this is what their fellow citizens believed the Eighth Amendment provided; and this was the basis for our decision in Robinson v. California, supra, for the plurality opinion by Mr. Chief Justice Warren in Trop v. Dulles, supra, and for the Court’s decision in Weems v. United States, supra. See also W. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (1793), reprinted in 12 Am.J.Legal Hist. 122, 127 (1968). It should also be noted that the “cruel and unusual” language of the Eighth Amendment immediately follows language that prohibits excessive bail and excessive fines. The entire thrust of the Eighth Amendment is, in short, against “that which is excessive.”
Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it. For example, if the evidence clearly demonstrated that capital punishment served valid legislative purposes, such punishment would, nevertheless, be unconstitutional if citizens found it to be morally unacceptable. A general abhorrence on the part of the public would, in effect, equate a modern punishment with those barred since the adoption of the Eighth Amendment. There are no prior cases in this Court striking down a penalty on this ground, but the very notion of changing values requires that we recognize its existence.
It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or
unnecessary, or because it is abhorrent to currently existing moral values.
We must proceed to the history of capital punishment in the United States.
Capital punishment has been used to penalize various forms of conduct by members of society since the beginnings of civilization. Its precise origins are difficult to perceive, but there is some evidence that its roots lie in violent retaliation by members of a tribe or group, or by the tribe or group itself, against persons committing hostile acts toward group members. [Footnote 4/38] Thus, infliction of death as a penalty for objectionable conduct appears to have its beginnings in private vengeance. [Footnote 4/39]
As individuals gradually ceded their personal prerogatives to a sovereign power, the sovereign accepted the authority to punish wrongdoing as part of its “divine right” to rule. Individual vengeance gave way to the vengeance of the state, and capital punishment became a public function. [Footnote 4/40] Capital punishment worked its way into the laws of various countries, [Footnote 4/41] and was inflicted in a variety of macabre and horrific ways. [Footnote 4/42]
It was during the reign of Henry II (1154-1189) that English law first recognized that crime was more than a personal affair between the victim and the perpetrator. [Footnote 4/43]
By 1500, English law recognized eight major capital crimes: treason, petty treason (killing of husband by his wife), murder, larceny, robbery, burglary, rape, and arson. [Footnote 4/44] Tudor and Stuart kings added many more crimes to the list of those punishable by death, and, by 1688, there were nearly 50. [Footnote 4/45] George II (1727-1760) added nearly 36 more, and George III (1760-1820) increased the number by 60. [Footnote 4/46]
By shortly after 1800, capital offenses numbered more than 200, and not only included crimes against person and property, but even some against the public peace. While England may, in retrospect, look particularly brutal, Blackstone points out that England was fairly civilized when compared to the rest of Europe. [Footnote 4/47]
Capital punishment was not as common a penalty in the American Colonies. “The Capitall Lawes of New England,” dating from 1636, were drawn by the Massachusetts Bay Colony, and are the first written expression of capital offenses known to exist in this country. These laws make the following crimes capital offenses: idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, manstealing, perjury in a capital trial, and rebellion. Each crime is accompanied by a reference to the Old Testament to indicate its source. [Footnote 4/48] It is not known with any certainty exactly when, or even if, these laws were enacted as drafted; and, if so, just how vigorously these laws were enforced. [Footnote 4/49] We do know that the other Colonies had a variety of laws that spanned the spectrum of severity. [Footnote 4/50]
By the 18th century, the list of crimes became much less theocratic and much more secular. In the average colony, there were 12 capital crimes. [Footnote 4/51] This was far fewer than existed in England, and part of the reason was that there was a scarcity of labor in the Colonies. [Footnote 4/52] Still, there were many executions, because “[w]ith county jails inadequate and insecure, the criminal population seemed best controlled by death, mutilation, and fines.” [Footnote 4/53]
Even in the 17th century, there was some opposition
to capital punishment in some of the colonies. In his “Great Act” of 1682, William Penn prescribed death only for premeditated murder and treason, [Footnote 4/54] although his reform was not long-lived. [Footnote 4/55]
In 1776 the Philadelphia Society for Relieving Distressed Prisoners organized, and it was followed 11 years later by the Philadelphia Society for Alleviating the Miseries of Public Prisons. [Footnote 4/56] These groups pressured for reform of all penal laws, including capital offenses. Dr. Benjamin Rush soon drafted America’s first reasoned argument against capital punishment, entitled An Enquiry into the Effects of Public Punishments upon Criminals and upon Society. [Footnote 4/57] In 1793, William Bradford, the Attorney General of Pennsylvania and later Attorney General of the United States, conducted “An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania.” [Footnote 4/58] He concluded that it was doubtful whether capital punishment was at all necessary, and that, until more information could be obtained, it should be immediately eliminated for all offenses except high treason and murder. [Footnote 4/59]
The “Enquiries” of Rush and Bradford and the Pennsylvania movement toward abolition of the death
penalty had little immediate impact on the practices of other States. [Footnote 4/60] But in the early 1800’s, Governors George and DeWitt Clinton and Daniel Tompkins unsuccessfully urged the New York Legislature to modify or end capital punishment. During this same period, Edward Livingston, an American lawyer who later became Secretary of State and Minister to France under President Andrew Jackson, was appointed by the Louisiana Legislature to draft a new penal code. At the center of his proposal was “the total abolition of capital punishment.” [Footnote 4/61] His Introductory Report to the System of Penal Law Prepared for the State of Louisiana [Footnote 4/62] contained a systematic rebuttal of all arguments favoring capital punishment. Drafted in 1824, it was not published until 1833. This work was a tremendous impetus to the abolition movement for the next half century.
During the 1830’s, there was a rising tide of sentiment against capital punishment. In 1834, Pennsylvania abolished public executions, [Footnote 4/63] and, two years later, The Report on Capital Punishment Made to the Maine Legislature was published. It led to a law that prohibited the executive from issuing a warrant for execution within one year after a criminal was sentenced by the courts. The totally discretionary character of the law was at odds with almost all prior practices. The “Maine Law” resulted in little enforcement of the death penalty, which was not surprising, since the legislature’s idea in passing the law was that the affirmative burden placed on the governor to issue a warrant one full year
or more after a trial would be an effective deterrent to exercise of his power. [Footnote 4/64] The law spread throughout New England, and led to Michigan’s being the first State to abolish capital punishment in 1846. [Footnote 4/65]
Anti-capital-punishment feeling grew in the 1840’s as the literature of the period pointed out the agony of the condemned man and expressed the philosophy that repentance atoned for the worst crimes, and that true repentance derived not from fear, but from harmony with nature. [Footnote 4/66]
By 1850, societies for abolition existed in Massachusetts, New York, Pennsylvania, Tennessee, Ohio, Alabama, Louisiana, Indiana, and Iowa. [Footnote 4/67] New York, Massachusetts, and Pennsylvania constantly had abolition bills before their legislatures. In 1852, Rhode Island followed in the footsteps of Michigan and partially abolished capital punishment. [Footnote 4/68] Wisconsin totally abolished the death penalty the following year. [Footnote 4/69] Those States that did not abolish the death penalty greatly reduced its scope, and “[f]ew states outside the South had more than one or two . . . capital offenses” in addition to treason and murder. [Footnote 4/70]
But the Civil War halted much of the abolition furor. One historian has said that,
“[a]fter the Civil War, men’s finer sensibilities, which had once been revolted by the execution of a fellow being, seemed hardened and
blunted. [Footnote 4/71]”
Some of the attention previously given to abolition was diverted to prison reform. An abolitionist movement still existed, however. Maine abolished the death penalty in 1876, restored it in 1883, and abolished it again in 1887; Iowa abolished capital punishment from 1872-1878; Colorado began an erratic period of de facto abolition and revival in 1872; and Kansas also abolished it de facto in 1872, and by law in 1907. [Footnote 4/72]
One great success of the abolitionist movement in the period from 1830-1900 was almost complete elimination of mandatory capital punishment. Before the legislatures formally gave juries discretion to refrain from imposing the death penalty, the phenomenon of “jury nullification,” in which juries refused to convict in cases in which they believed that death was an inappropriate penalty, was experienced. [Footnote 4/73] Tennessee was the first State to give juries discretion, Tenn.Laws 1837-1838, c. 29, but other States quickly followed suit. Then, Rep. Curtis of New York introduced a federal bill that ultimately became law in 1897 which reduced the number of federal capital offenses from 60 to 3 (treason, murder, and rape) and gave the jury sentencing discretion in murder and rape cases. [Footnote 4/74]
By 1917, 12 States had become abolitionist jurisdictions. [Footnote 4/75] But, under the nervous tension of World War I,
four of these States reinstituted capital punishment and promising movements in other State came grinding to a halt. [Footnote 4/76] During the period following the First World War, the abolitionist movement never regained its momentum.
It is not easy to ascertain why the movement lost its vigor. Certainly, much attention was diverted from penal reform during the economic crisis of the depression and the exhausting years of struggle during World War II. Also, executions, which had once been frequent public spectacles, became infrequent private affairs. The manner of inflicting death changed, and the horrors of the punishment were, therefore, somewhat diminished in the minds of the general public. [Footnote 4/77]
In recent years, there has been renewed interest in modifying capital punishment. New York has moved toward abolition, [Footnote 4/78] as have several other States. [Footnote 4/79] In 1967, a bill was introduced in the Senate to abolish
capital punishment for all federal crimes, but it died in committee. [Footnote 4/80]
At the present time, 41 States, the District of Columbia, and other federal jurisdictions authorize the death penalty for at least one crime. It would be fruitless to attempt here to categorize the approach to capital punishment taken by the various States. [Footnote 4/81] It is sufficient to note that murder is the crime most often punished by death, followed by kidnaping and treason. [Footnote 4/82] Rape is a capital offense in 16 States and the federal system. [Footnote 4/83]
The foregoing history demonstrates that capital punishment was carried from Europe to America but, once here, was tempered considerably. At times in our history, strong abolitionist movements have existed. But they have never been completely successful, as no more than one-quarter of the States of the Union have, at any one time, abolished the death penalty. They have had partial success, however, especially in reducing the number of capital crimes, replacing mandatory death sentences with jury discretion, and developing more humane methods of conducting executions.
This is where our historical foray leads. The question now to be faced is whether American society has
reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment. To answer this question, we must first examine whether or not the death penalty is today tantamount to excessive punishment.
In order to assess whether or not death is an excessive or unnecessary penalty, it is necessary to consider the reasons why a legislature might select it as punishment for one or more offenses, and examine whether less severe penalties would satisfy the legitimate legislative wants as well as capital punishment. If they would, then the death penalty is unnecessary cruelty, and, therefore, unconstitutional.
There are six purposes conceivably served by capital punishment: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions, eugenics, and economy. These are considered seriatim below.
A. The concept of retribution is one of the most misunderstood in all of our criminal jurisprudence. The principal source of confusion derives from the fact that, in dealing with the concept, most people confuse the question “why do men in fact punish?” with the question “what justifies men in punishing?” [Footnote 4/84] Men may punish for any number of reasons, but the one reason that punishment is morally good or morally justifiable is that someone has broken the law. Thus, it can correctly be said that breaking the law is the sine qua non of punishment, or, in other words, that we only
tolerate punishment as it is imposed on one who deviates from the norm established by the criminal law.
The fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State’s sole end in punishing. Our jurisprudence has always accepted deterrence in general, deterrence of individual recidivism, isolation of dangerous persons, and rehabilitation as proper goals of punishment. See Trop v. Dulles, 356 U.S. at 356 U. S. 111 (BRENNAN, J., concurring). Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society.
Punishment as retribution has been condemned by scholars for centuries, [Footnote 4/85] and the Eighth Amendment itself was adopted to prevent punishment from becoming synonymous with vengeance.
In Weems v. United States, 217 U.S. at 217 U. S. 381, the Court, in the course of holding that Weems’ punishment violated the Eighth Amendment, contrasted it with penalties provided for other offenses, and concluded:
“[T]his contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice. The State thereby suffers nothing, and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.”
It is plain that the view of the Weems Court was that punishment for the sake of retribution was not permissible under the Eighth Amendment. This is the only view that the Court could have taken if the “cruel and unusual” language were to be given any meaning. Retribution surely underlies the imposition of some punishment on one who commits a criminal act. But the fact that some punishment may be imposed does not mean that any punishment is permissible. If retribution alone could serve as a justification for any particular penalty, then all penalties selected by the legislature would, by definition, be acceptable means for designating society’s moral approbation of a particular act. The “cruel and unusual” language would thus be read out of the Constitution, and the fears of Patrick Henry and the other Founding Fathers would become realities. To preserve the integrity of the Eighth Amendment, the Court has consistently denigrated retribution as a permissible goal of punishment. [Footnote 4/86] It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times, a cry is heard that morality requires vengeance to evidence
society’s abhorrence of the act. [Footnote 4/87] But the Eighth Amendment is our insulation from our baser selves. The “cruel and unusual” language limits the avenues through which vengeance can be channeled. Were this not so, the language would be empty, and a return to the rack and other tortures would be possible in a given case.
Mr. Justice Story wrote that the Eighth Amendment’s limitation on punishment
“would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct. [Footnote 4/88]”
I would reach an opposite conclusion — that only in a free society would men recognize their inherent weaknesses and seek to compensate for them by means of a Constitution.
The history of the Eighth Amendment supports only the conclusion that retribution for its own sake is improper.
B. The most hotly contested issue regarding capital punishment is whether it is better than life imprisonment as a deterrent to crime. [Footnote 4/89]
While the contrary position has been argued, [Footnote 4/90] it is my firm opinion that the death penalty is a more severe sanction than life imprisonment. Admittedly, there are
some persons who would rather die than languish in prison for a lifetime. But, whether or not they should be able to choose death as an alternative is a far different question from that presented here — i.e., whether the State can impose death as a punishment. Death is irrevocable; life imprisonment is not. Death, of course, makes rehabilitation impossible; life imprisonment does not. In short, death has always been viewed as the ultimate sanction, and it seems perfectly reasonable to continue to view it as such. [Footnote 4/91]
It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is
a deterrent, but whether it is a better deterrent than life imprisonment. [Footnote 4/92]
There is no more complex problem than determining the deterrent efficacy of the death penalty.
“Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged. [Footnote 4/93]”
This is the nub of the problem, and it is exacerbated by the paucity of useful data. The United States is more fortunate than most countries, however, in that it has what are generally considered to be the world’s most reliable statistics. [Footnote 4/94]
The two strongest arguments in favor of capital punishment as a deterrent are both logical hypotheses devoid of evidentiary support, but persuasive nonetheless. The first proposition was best stated by Sir James Stephen in 1864:
“No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove simply because they are, in themselves, more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. . . . No one goes to certain
inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal who, when sentenced to death and brought out to die, would refuse the offer of a commutation of his sentence for the severest secondary punishment? Surely not. Why is this? It can only be because ‘All that a man has will he give for his life.’ In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly. [Footnote 4/95]”
This hypothesis relates to the use of capital punishment as a deterrent for any crime. The second proposition is that,
“life imprisonment is the maximum penalty for a crime such as murder, an offender who is serving a life sentence cannot then be deterred from murdering a fellow inmate or a prison officer. [Footnote 4/96]”
This hypothesis advocates a limited deterrent effect under particular circumstances.
Abolitionists attempt to disprove these hypotheses by amassing statistical evidence to demonstrate that there is no correlation between criminal activity and the existence or nonexistence of a capital sanction. Almost all of the evidence involves the crime of murder, since murder is punishable by death in more jurisdictions than are other offenses, [Footnote 4/97] and almost 90% of all executions since 1930 have been pursuant to murder convictions. [Footnote 4/98]
Thorsten Sellin, one of the leading authorities on capital punishment, has urged that, if the death penalty
deters prospective murderers, the following hypotheses should be true:
“(a) Murders should be less frequent in states that have the death penalty than in those that have abolished it, other factors being equal. Comparisons of this nature must be made among states that are as alike as possible in all other respects — character of population, social and economic condition, etc. — in order not to introduce factors known to influence murder rates in a serious manner but present in only one of these states.”
“(b) Murders should increase when the death penalty is abolished, and should decline when it is restored.”
“(c) The deterrent effect should be greatest, and should therefore affect murder rates most powerfully, in those communities where the crime occurred and its consequences are most strongly brought home to the population.”
“(d) Law enforcement officers would be safer from murderous attacks in states that have the death penalty than in those without it. [Footnote 4/99]”
Sellin’s evidence indicates that not one of these propositions is true. This evidence has its problems, however. One is that there are no accurate figures for capital murders; there are only figures on homicides, and they, of course, include noncapital killings. [Footnote 4/100] A second problem is that certain murders undoubtedly are misinterpreted as accidental deaths or suicides, and there
is no way of estimating the number of such undetected crimes. A third problem is that not all homicides are reported. Despite these difficulties, most authorities have assumed that the proportion of capital murders in a State’s or nation’s homicide statistics remains reasonably constant, [Footnote 4/101] and that the homicide statistics are therefore useful.
Sellin’s statistics demonstrate that there is no correlation between the murder rate and the presence or absence of the capital sanction. He compares States that have similar characteristics and finds that, irrespective of their position on capital punishment, they have similar murder rates. In the New England States, for example, there is no correlation between executions [Footnote 4/102] and homicide rates. [Footnote 4/103] The same is true for Midwestern States, [Footnote 4/104] and for all others studied. Both the United Nations [Footnote 4/105] and Great Britain [Footnote 4/106] have acknowledged the validity of Sellin’s statistics.
Sellin also concludes that abolition and/or reintroduction of the death penalty had no effect on the homicide rates of the various States involved. [Footnote 4/107] This conclusion is borne out by others who have made similar
inquiries [Footnote 4/108] and by the experience of other countries. [Footnote 4/109] Despite problems with the statistics, [Footnote 4/110] Sellin’s evidence has been relied upon in international studies of capital punishment. [Footnote 4/111]
Statistics also show that the deterrent effect of capital punishment is no greater in those communities where executions take place than in other communities. [Footnote 4/112] In fact, there is some evidence that imposition of capital punishment may actually encourage crime, rather than deter it. [Footnote 4/113] And, while police and law enforcement officers
are the strongest advocates of capital punishment, [Footnote 4/114] the evidence is overwhelming that police are no safer in communities that retain the sanction than in those that have abolished it. [Footnote 4/115]
There is also a substantial body of data showing that the existence of the death penalty has virtually no effect on the homicide rate in prisons. [Footnote 4/116] Most of the persons sentenced to death are murderers, and murderers tend to be model prisoners. [Footnote 4/117]
In sum, the only support for the theory that capital punishment is an effective deterrent is found in the hypotheses with which we began and the occasional stories about a specific individual being deterred from doing a contemplated criminal act. [Footnote 4/118] These claims of specific deterrence are often spurious, [Footnote 4/119] however, and may be more than counterbalanced by the tendency of capital punishment to incite certain crimes. [Footnote 4/120]
The United Nations Committee that studied capital punishment found that
“[i]t is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime. [Footnote 4/121]”
Despite the fact that abolitionists have not proved non-deterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society. This is all that they must do. We would shirk our judicial responsibilities if we failed to accept the presently existing statistics and demanded more proof. It may be that we now possess all the proof that anyone could ever hope to assemble on the subject. But, even if further proof were to be forthcoming, I believe there is more than enough evidence presently available for a decision in this case.
In 1793, William Bradford studied the utility of the death penalty in Pennsylvania and found that it probably had no deterrent effect, but that more evidence
was needed. [Footnote 4/122] Edward Livingston reached a similar conclusion with respect to deterrence in 1833 upon completion of his study for Louisiana. [Footnote 4/123] Virtually every study that has since been undertaken has reached the same result. [Footnote 4/124]
In light of the massive amount of evidence before us, I see no alternative but to conclude that capital punishment cannot be justified on the basis of its deterrent effect. [Footnote 4/125]
C. Much of what must be said about the death penalty as a device to prevent recidivism is obvious — if a murderer is executed, he cannot possibly commit another offense. The fact is, however, that murderers are extremely unlikely to commit other crimes, either in prison or upon their release. [Footnote 4/126] For the most part, they are first offenders, and, when released from prison, they are known to become model citizens. [Footnote 4/127] Furthermore, most persons who commit capital crimes are not executed. With respect to those who are sentenced to die, it is critical to note that the jury is never asked to determine whether they are likely to be recidivists. In light of thee facts, if capital punishment were justified purely on the basis of preventing recidivism, it would have to be considered to be excessive; no general need to obliterate all capital offenders could have been demonstrated, nor any specific need in individual cases.
D. The three final purposes which may underlie utilization of a capital sanction — encouraging guilty pleas and confessions, eugenics, and reducing state expenditures — may be dealt with quickly. If the death penalty is used to encourage guilty pleas, and thus to deter suspects from exercising their rights under the Sixth Amendment to jury trials, it is unconstitutional. United States
v. Jackson, 390 U. S. 570 (1968). [Footnote 4/128] Its elimination would do little to impair the State’s bargaining position in criminal cases, since life imprisonment remains a severe sanction which can be used as leverage for bargaining for pleas or confessions in exchange either for charges of lesser offenses or recommendations of leniency.
Moreover, to the extent that capital punishment is used to encourage confessions and guilty pleas, it is not being used for punishment purposes. A State that justifies capital punishment on its utility as part of the conviction process could not profess to rely on capital punishment as a deterrent. Such a State’s system would be structured with twin goals only: obtaining guilty pleas and confessions and imposing imprisonment as the maximum sanction. Since life imprisonment is sufficient for bargaining purposes, the death penalty is excessive if used for the same purposes.
In light of the previous discussion on deterrence, any suggestions concerning the eugenic benefits of capital punishment are obviously meritless. [Footnote 4/129] As I pointed out above, there is not even any attempt made to discover which capital offenders are likely to be recidivists, let alone which are positively incurable. No test or procedure presently exists by which incurables can be screened from those who would benefit from treatment. On the one hand, due process would seem to require that we have some procedure to demonstrate incurability before execution; and, on the other hand, equal protection would then seemingly require that all incurables be executed, cf. Skinner v. Oklahoma, 316 U. S. 535 (1942). In addition, the “cruel and unusual” language
would require that life imprisonment, treatment, and sterilization be inadequate for eugenic purposes. More importantly, this Nation has never formally professed eugenic goals, and the history of the world does not look kindly on them. If eugenics is one of our purposes, then the legislatures should say so forthrightly and design procedures to serve this goal. Until such time, I can only conclude, as has virtually everyone else who has looked at the problem, [Footnote 4/130] that capital punishment cannot be defended on the basis of any eugenic purposes.
As for the argument that it is cheaper to execute a capital offender than to imprison him for life, even assuming that such an argument, if true, would support. a capital sanction, it is simply incorrect. A disproportionate amount of money spent on prisons is attributable to death row. [Footnote 4/131] Condemned men are not productive members of the prison community, although they could be, [Footnote 4/132] and executions are expensive. [Footnote 4/133] Appeals are often automatic, and courts admittedly spend more time with death cases. [Footnote 4/134]
At trial, the selection of jurors is likely to become a costly, time-consuming problem in a capital case, [Footnote 4/135] and defense counsel will reasonably exhaust every possible means to save his client from execution, no matter how long the trial takes.
During the period between conviction and execution, there are an inordinate number of collateral attacks on the conviction and attempts to obtain executive clemency, all of which exhaust the time, money, and effort of the State. There are also continual assertions that the condemned prisoner has gone insane. [Footnote 4/136] Because there is a formally established policy of not executing insane persons, [Footnote 4/137] great sums of money may be spent on detecting and curing mental illness in order to perform the execution. [Footnote 4/138] Since no one wants the responsibility for the execution, the condemned man is likely to be passed back and forth from doctors to custodial officials to courts like a ping-pong ball. [Footnote 4/139] The entire process is very costly.
When all is said and done, there can be no doubt that it costs more to execute a man than to keep him in prison for life. [Footnote 4/140]
E. There is but one conclusion that can be drawn from all of this — i.e., the death penalty is an excessive and unnecessary punishment that violates the Eighth
Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive. It is not improper at this point to take judicial notice of the fact that, for more than 200 years, men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally well. And they have done so with great success. Little, if any, evidence has been adduced to prove the contrary. The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the Constitution. We know that, at some point, the presumption of constitutionality accorded legislative acts gives way to a realistic assessment of those acts. This point comes when there is sufficient evidence available so that judges can determine not whether the legislature acted wisely, but whether it had any rational basis whatsoever for acting. We have this evidence before us now. There is no rational basis for concluding that capital punishment is not excessive. It therefore violates the Eighth Amendment. [Footnote 4/141]
In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.
In judging whether or not a given penalty is morally acceptable, most courts have said that the punishment is valid unless “it shocks the conscience and sense of justice of the people.” [Footnote 4/142]
Judge Frank once noted the problems inherent in the use of such a measuring stick:
“[The court,] before it reduces a sentence as ‘cruel and unusual,’ must have reasonably good assurances that the sentence offends the ‘common conscience.’ And, in any context, such a standard — the community’s attitude — is usually an unknowable. It resembles a slithery shadow, since one can seldom learn, at all accurately, what the community, or a majority, actually feels. Even a carefully taken ‘public opinion poll’ would be inconclusive in a case like this. [Footnote 4/143]”
While a public opinion poll obviously is of some assistance in indicating public acceptance or rejection of a specific penalty, [Footnote 4/144] its utility cannot be very great. This is because whether or not a punishment is cruel and unusual depends not on whether its mere mention “shocks the conscience and sense of justice of the people,” but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable. [Footnote 4/145]
In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.
This is not to suggest that, with respect to this test of unconstitutionality, people are required to act rationally; they are not. With respect to this judgment, a violation of the Eighth Amendment is totally dependent on the predictable subjective, emotional reactions of informed citizens. [Footnote 4/146]
It has often been noted that American citizens know almost nothing about capital punishment. [Footnote 4/147] Some of the conclusions arrived at in the preceding section and the supporting evidence would be critical to an informed judgment on the morality of the death penalty: e.g., that the death penalty is no more effective a deterrent than life imprisonment, that convicted murderers are
rarely executed, but are usually sentenced to a term in prison; that convicted murderers usually are model prisoners, and that they almost always become law-abiding citizens upon their release from prison; that the costs of executing a capital offender exceed the costs of imprisoning him for life; that, while in prison, a convict under sentence of death performs none of the useful functions that life prisoners perform; that no attempt is made in the sentencing process to ferret out likely recidivists for execution; and that the death penalty may actually stimulate criminal activity.
This information would almost surely convince the average citizen that the death penalty was unwise, but a problem arises as to whether it would convince him that the penalty was morally reprehensible. This problem arises from the fact that the public’s desire for retribution, even though this is a goal that the legislature cannot constitutionally pursue as is sole justification for capital punishment, might influence the citizenry’s view of the morality of capital punishment. The solution to the problem lies in the fact that no one has ever seriously advanced retribution as a legitimate goal of our society. Defenses of capital punishment are always mounted on deterrent or other similar theories. This should not be surprising. It is the people of this country who have urged in the past that prisons rehabilitate as well as isolate offenders, and it is the people who have injected a sense of purpose into our penology. I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral, and therefore unconstitutional.
But, if this information needs supplementing, I believe that the following facts would serve to convince
even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system. Each of these facts is considered briefly below.
Regarding discrimination, it has been said that
“[i]t is usually the poor, the illiterate, the underprivileged, the member of the minority group — the man who, because he is without means, and is defended by a court-appointed attorney — who becomes society’s sacrificial lamb. . . . [Footnote 4/148] Indeed, a look at the bare statistics regarding executions is enough to betray much of the discrimination. A total of 3,859 persons have been executed since 1930, of whom 1,751 were white and 2,066 were Negro. [Footnote 4/149] Of the executions, 3,334 were for murder; 1,664 of the executed murderers were white and 1,630 were Negro; [Footnote 4/150] 455 persons, including 48 whites and 405 Negroes, were executed for rape. [Footnote 4/151] It is immediately apparent that Negroes were executed far more often than whites in proportion to their percentage of the population. Studies indicate that, while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination. [Footnote 4/152]
Racial or other discriminations should not be surprising. In McGautha v. California, 402 U.S. at 402 U. S. 207, this Court held”
“that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is [not] offensive to anything in the Constitution.”
This was an open invitation to discrimination.
There is also overwhelming evidence that the death penalty is employed against men, and not women. Only 32 women have been executed since 1930, while 3,827 men have met a similar fate. [Footnote 4/153] It is difficult to understand why women have received such favored treatment, since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes. [Footnote 4/154]
It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged
members of society. [Footnote 4/155] It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo, because change would draw attention to the problem and concern might develop. Ignorance is perpetuated, and apathy soon becomes its mate, and we have today’s situation.
Just as Americans know little about who is executed and why, they are unaware of the potential dangers of executing an innocent man. Our “beyond a reasonable doubt” burden of proof in criminal cases is intended to protect the innocent, but we know it is not foolproof. Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death. [Footnote 4/156]
Proving one’s innocence after a jury finding of guilt is almost impossible. While reviewing courts are willing to entertain all kinds of collateral attacks where a sentence of death is involved, they very rarely dispute the jury’s interpretation of the evidence. This is, perhaps, as it should be. But if an innocent man has been found guilty, he must then depend on the good faith of the prosecutor’s office to help him establish his innocence. There is evidence, however, that prosecutors do not welcome the idea of having convictions, which they labored hard to secure, overturned, and that their cooperation is highly unlikely. [Footnote 4/157]
No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. [Footnote 4/158] We have no way of
judging how many innocent persons have been executed, but we can be certain that there were some. Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law.
While it is difficult to ascertain with certainty the degree to which the death penalty is discriminatorily imposed or the number of innocent persons sentenced to die, there is one conclusion about the penalty that is universally accepted — i.e., it “tends to distort the course of the criminal law.” [Footnote 4/159] As Mr. Justice Frankfurter said:
“I am strongly against capital punishment. . . . When life is at hazard in a trial, it sensationalizes the whole thing almost unwittingly; the effect on juries, the Bar, the public, the Judiciary, I regard as very bad. I think scientifically the claim of deterrence is not worth much. Whatever proof there may be, in my judgment, does not outweigh the social loss due to the inherent sensationalism of a trial for life. [Footnote 4/160] ”
The deleterious effects of the death penalty are also felt otherwise than at trial. For example, its very existence “inevitably sabotages a social or institutional program of reformation.” [Footnote 4/161] In short
“[t]he presence of the death penalty as the keystone of our penal system bedevils the administration of criminal justice all the way down the line, and is the stumbling block in the path of general reform and of the treatment of crime and criminals. [Footnote 4/162]”
Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. [Footnote 4/163] For this reason alone, capital punishment cannot stand.
To arrive at the conclusion that the death penalty violates the Eighth Amendment, we have had to engage in a long and tedious journey. The amount of information that we have assembled and sorted is enormous.
Yet I firmly believe that we have not deviated in the slightest from the principles with which we began.
At a time in our history when the streets of the Nation’s cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But the measure of a country’s greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.
In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” [Footnote 4/164] and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment. [Footnote 4/165]
I concur in the judgments of the Court.[Appendices I, II, and III follow.] Footnote 4/1]
Certiorari was also granted in a fourth case, Aikens v. California, No. 68-5027, but the writ was dismissed after the California Supreme Court held that capital punishment violates the State Constitution. 406 U. S. 813. See People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, cert. denied, 406 U.S. 958 (1972). The California decision reduced by slightly more than 100 the number of persons currently awaiting execution.[Footnote 4/2]
268 Parl.Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor Gardiner).[Footnote 4/3]
Compare, e.g., Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 470 (1947) (Frankfurter, J., concurring), with F. Frankfurter, Of Law and Men 81 (1956). See In re Anderson, 69 Cal.2d 613, 634-635, 447 P.2d 117, 131-132 (1968) (Mosk, J., concurring); cf. McGautha v. California, 402 U. S. 183, 402 U. S. 226 (1971) (separate opinion of Black, J.); Witherspoon v. Illinois, 391 U. S. 510, 391 U. S. 542 (1968) (WHITE, J., dissenting).[Footnote 4/4]
See generally Frankel, Book Review, 85 Harv.L.Rev. 354, 362 (1971).[Footnote 4/5]
Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839, 848 (1969).[Footnote 4/6]
Ibid. Beale’s views were conveyed from England to America, and were first written into American law by the Reverend Nathaniel Ward, who wrote the Body of Liberties for the Massachusetts Bay Colony. Clause 46 of that work read: “For bodilie punishments we allow amongst us none that are inhumane, Barbarous or cruel.” 1 B. Schwartz, The Bill of Rights: A Documentary History 71, 77 (1971).[Footnote 4/7]
4 W. Blackstone, Commentaries *376-377. See also 1 J. Chitty, The Criminal Law 785-786 (5th ed. 1847); Sherman, “. . . Nor Cruel and Unusual Punishments Inflicted,” 14 Crime & Delin. 73, 74 (1968).[Footnote 4/8]
Not content with capital punishment as a means of retribution for crimes, the English also provided for attainder (“dead in law”) as the immediate and inseparable concomitant of the death sentence. The consequences of attainder were forfeiture of real and personal estates and corruption of blood. An attainted person could not inherit land or other hereditaments, nor retain those he possessed, nor transmit them by descent to any heir. Descents were also obstructed whenever posterity derived a title through one who was attainted. 4 W. Blackstone, Commentaries *380-381.[Footnote 4/9]
E.g., 2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891).[Footnote 4/10]
2 G. Trevelyan, History of England 467 (1952 reissue).[Footnote 4/11]
Granucci, supra, n. 5, at 854.[Footnote 4/12]
Id. at 855.[Footnote 4/13]
Id. at 860. In reaching this conclusion, Professor Granucci relies primarily on the trial of Titus Oates as the impetus behind the adoption of the clause. Oates was a minister of the Church of England who proclaimed the existence of a plot to assassinate King Charles II. He was tried for perjury, convicted, and sentenced to a fine of 2,000 marks, life imprisonment, whippings, pillorying four times a year, and defrocking. Oates petitioned both the House of Commons and the House of Lords for release from judgment. The House of Lords rejected his petition, but a minority of its members concluded that the King’s Bench had no jurisdiction to compel defrocking, and that the other punishments were barbarous, inhumane, unchristian, and unauthorized by law. The House of Commons agreed with the dissenting Lords. Id. at 857-859.
The author also relies on the dictionary definition of “cruel,” which meant “severe” or “hard” in the 17th century, to support his conclusion. Ibid.[Footnote 4/14]
Most historians reach this conclusion by reading the history of the Cruel and Unusual Punishments Clause as indicating that it was a reaction to inhumane punishments. Professor Granucci reaches the same conclusion by finding that the draftsmen of the Constitution misread the British history and erroneously relied on Blackstone. Granucci, supra, n. 5, at 862-865. It is clear, however, that, prior to the adoption of the Amendment, there was some feeling that a safeguard against cruelty was needed, and that this feeling had support in past practices. See n. 6, supra, and accompanying text.[Footnote 4/15]
^15, Grannucci, supra, n. 5, at 840; 1 Schwartz, supra, n. 6, at 276, 278.[Footnote 4/16]
See, e.g., Delaware Declaration of Rights (1776), Maryland Declaration of Rights (1776), Massachusetts Declaration of Rights (1780), and New Hampshire Bill of Rights (1783). 1 Schwartz, supra, n. 6, at 276, 278; 279, 281; 337, 343; 374, 379.[Footnote 4/17]
See 2 J. Elliot’s Debates 111 (2d ed. 1876); 3 id. at 47-481. See also, 2 Schwartz, supra, n. 6, at 629, 674, 762, 852, 968.[Footnote 4/18]
3 Elliot, supra, n. 17, at 446-448. A comment by George Mason which misinterprets a criticism leveled at himself and Patrick Henry is further evidence of the intention to prohibit torture and the like by prohibiting cruel and unusual punishments. Id. at 452.[Footnote 4/19]
Annals of Cong. 782-783 (1789). There is some recognition of the fact that a prohibition against cruel and unusual punishments is a flexible prohibition that may change in meaning as the mores of a society change, and that may eventually bar certain punishments not barred when the Constitution was adopted. Ibid. (remarks of Mr. Livermore of New Hampshire). There is also evidence that the general opinion at the time the Eighth Amendment was adopted was that it prohibited every punishment that was not “evidently necessary.” W. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (1793), reprinted in 12 Am.J.Legal Hist. 122, 127 (1968).[Footnote 4/20]
The New York Court of Appeals had recognized the unusual nature of the execution, but attributed it to a legislative desire to minimize the pain of persons executed.[Footnote 4/21]
The prohibition against cruel and unusual punishments relevant to Weems was that found in the Philippine Bill of Rights. It was, however, borrowed from the Eighth Amendment to the United States Constitution, and had the same meaning. 217 U.S. at 217 U. S. 367.[Footnote 4/22]
Id. at 217 U. S. 373.[Footnote 4/23]
Id. at 217 U. S. 381.[Footnote 4/26] Footnote 4/27]
Badders was found guilty on seven counts of using the mails as part of a scheme to defraud. He was sentenced to concurrent five-year sentences and to a $1,000 fine on each count. The Court summarily rejected his claim that the sentence was a cruel and unusual punishment. In United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407 (1921), the Court upheld the denial of second-class mailing privileges to a newspaper that had allegedly printed articles conveying false reports of United States conduct during the First World War with intent to cause disloyalty. Mr. Justice Brandeis dissented, and indicated his belief that the “punishment” was unusual and possibly excessive under Weems v. United States, 217 U. S. 349 (1910). There is nothing in either of these cases demonstrating a departure from the approach used in Weems, or adding anything to it.[Footnote 4/28]
Mr. Justice Frankfurter was the only member of the Court unwilling to make this assumption. However, like Chief Justice Fuller in In re Kemmler, 136 U. S. 436 (1890), he examined the propriety of the punishment under the Due Process Clause of the Fourteenth Amendment. 329 U.S. at 329 U. S. 471. As MR. JUSTICE POWELL makes clear, Mr. Justice Frankfurter’s analysis was different only in form from that of his Brethren; in substance, his test was fundamentally identical to that used by the rest of the Court.[Footnote 4/29]
Id. at 329 U. S. 463.[Footnote 4/30]
English law required a second attempt at execution if the first attempt failed. L. Radzinowicz, A History of English Criminal Law 185-186 (1948).[Footnote 4/31]
MR. JUSTICE BRENNAN concurred, and concluded that the statute authorizing deprivations of citizenship exceeded Congress’ legislative powers. 356 U.S. at 356 U. S. 114.[Footnote 4/32]
Id. at 356 U. S. 101.[Footnote 4/33]
370 U.S. at 370 U. S. 666.[Footnote 4/34]
Robinson v. California, 370 U. S. 660 (1962), removes any lingering doubts as to whether the Eighth Amendment’s prohibition against cruel and unusual punishments is binding on the States. See also Powell v. Texas, 392 U. S. 514 (1968).[Footnote 4/35] Footnote 4/36] Footnote 4/37]
See, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S. at 329 U. S. 474 (Burton, J., dissenting); Trop v. Dulles, supra, at 356 U. S. 99 (Warren, C.J.); Rudolph v. Alabama, 375 U. S. 889 (1963) (Goldberg, J., dissenting from denial of certiorari); F. Frankfurter, Of Law and Men 81 (1956).
There is no violation of the principle of stare decisis in a decision that capital punishment now violates the Eighth Amendment. The last case that implied that capital punishment was still permissible was Trop v. Dulles, supra, at 356 U. S. 99. Not only was the implication purely dictum, but it was also made in the context of a flexible analysis that recognized that, as public opinion changed, the validity of the penalty would have to be reexamined. Trop v. Dulles is nearly 15 years old now, and 15 years change many minds about many things. MR. JUSTICE POWELL suggests, however, that our recent decisions in Witherspoon v. Illinois, 391 U. S. 510 (1968), and McGautha v. California, 402 U. S. 183 (1971), imply that capital punishment is constitutionally permissible because, if they are viewed any other way, they amount to little more than an academic exercise. In my view, this distorts the “rule of four” by which this Court decides which cases and which issues it will consider, and in what order. See United States v. Generes, 405 U. S. 93, 405 U. S. 113 (1972) (DOUGLAS, J., dissenting). There are many reasons why four members of the Court might have wanted to consider the issues presented in those cases before considering the difficult question that is now before us. While I do not intend to catalogue these reasons here, it should suffice to note that I do not believe that those decisions can, in any way, fairly be used to support any inference whatever that the instant cases have already been disposed of sub silentio.[Footnote 4/38]
Ancel, The Problem of the Death Penalty, in Capital Punishment 4-5 (T. Sellin ed. 1967); G. Scott, The History of Capital Punishment 1 (1950).[Footnote 4/39]
Scott, supra, n. 38, at 1.[Footnote 4/40]
Id. at 2; Ancel, supra, n. 38, at 4-5.[Footnote 4/41]
The Code of Hammurabi is one of the first known laws to have recognized the concept of an “eye for an eye,” and consequently to have accepted death as an appropriate punishment for homicide. E. Block, And May God Have Mercy . . . 13-14 (1962).[Footnote 4/42]
Scott, supra, n. 38, at 19-33.[Footnote 4/43]
Id. at 5. Prior to this time, the laws of Alfred (871-901) provided that one who willfully slayed another should die, at least under certain circumstances. 3 J. Stephen, History of the Criminal Law of England 24 (1883). But punishment was apparently left largely to private enforcement.[Footnote 4/44]
T. Plucknett, A Concise History of the Common Law 424-454 (5th ed. 1956).[Footnote 4/45]
Introduction in H. Bedau, The Death Penalty in America 1 (1967 rev. ed.).[Footnote 4/46]
4 W. Blackstone, Commentaries *377. How many persons were actually executed for committing capital offenses is not known. See Bedau, supra, n. 45, at 3; L. Radzinowicz, A History of English Criminal Law 151, 153 (1948); Sellin, Two Myths in the History of Capital Punishment, 50 J.Crim.L.C. & P.S. 114 (1959). “Benefit of clergy” mitigated the harshness of the law somewhat. This concept arose from the struggle between church and state and originally provided that members of the clergy should be tried in ecclesiastical courts. Eventually, all first offenders were entitled to “benefit of clergy.” Bedau, supra, at 4.[Footnote 4/48]
G. Haskins, The Capitall Lawes of New England, Harv.L.Sch.Bull. 111 (Feb. 1956).[Footnote 4/49]
Compare Haskins, supra, n. 48, with E. Powers, Crime and Punishment in Early Massachusetts, 1620-1692 (1966). See also Bedau, supra, n. 45, at 5.[Footnote 4/50]
Id. at 6.[Footnote 4/51]
Filler, Movements to Abolish the Death Penalty in the United States, 284 Annals Am.Acad.Pol. & Soc.Sci. 124 (1952).[Footnote 4/52]
Ibid. (footnotes omitted).[Footnote 4/54]
Ibid.; Bedau, supra, n. 45, at 6.[Footnote 4/55]
For an unknown reason, Pennsylvania adopted the harsher penal code of England upon William Penn’s death in 1718. There was no evidence, however of an increase in crime between 1682 and 1718. Filler, supra, n. 51, at 124. In 1794, Pennsylvania eliminated capital punishment except for “murder of the first degree,” which included all “willful, deliberate or premeditated” killings. The death penalty was mandatory for this crime. Pa.Stat. 1794, c. 1777. Virginia followed Pennsylvania’s lead and enacted similar legislation. Other States followed suit.[Footnote 4/56]
Filler, supra, n. 51, at 124.[Footnote 4/57]
Id. at 124-125.[Footnote 4/58]
Reprinted in 12 Am.J.Legal Hist. 122 (1968).[Footnote 4/59]
His advice was in large measure followed. See n. 55, supra.[Footnote 4/60]
One scholar has noted that the early abolition movement in the United States lacked the leadership of major public figures. Bedau, supra, n. 45, at 8.[Footnote 4/61]
Ibid.; Filler, supra, n. 51, at 126-127.[Footnote 4/62]
See Scott, supra, n. 38, at 114-116.[Footnote 4/63]
Filler, supra, n. 51, at 127.[Footnote 4/64]
Davis, The Movement to Abolish Capital Punishment in America, 1787-1861, 63 Am.Hist.Rev. 23, 33 (1957).[Footnote 4/65]
Filler, supra, n. 51, at 128. Capital punishment was abolished for all crimes but treason. The law was enacted in 1846, but did not go into effect until 1847.[Footnote 4/66]
Davis, supra, n. 64, at 29-30.[Footnote 4/67]
Filler, supra, n. 51, at 129.[Footnote 4/68]
Id. at 130.[Footnote 4/69]
Bedau, supra, n. 45, at 10.[Footnote 4/71]
Davis, supra, n. 64, at 46.[Footnote 4/72]
Kansas restored it in 1935. See Appendix I to this opinion, infra at 408 U. S. 372.[Footnote 4/73]
See McGautha v. California, 402 U.S. at 402 U. S. 199.[Footnote 4/74]
Filler, supra, n. 51, at 133. See also Winston v. United States, 172 U. S. 303 (1899). More than 90% of the executions since 1930 in this country have been for offenses with a discretionary death penalty. Bedau, The Courts, the Constitution, and Capital Punishment, 1968 Utah L.Rev. 201, 204.[Footnote 4/75]
See n. 72, supra.[Footnote 4/76]
Filler, supra, n. 51, at 134.[Footnote 4/77]
Sellin, Executions in the United States, in Capital Punishment 35 T. Sellin ed. (1967); United Nations, Department of Economic and Social Affairs, Capital Punishment, Pt. II, �� 82-85, pp. 101-102 (1968).[Footnote 4/78]
New York authorizes the death penalty only for murder of a police officer or for murder by a life term prisoner. N.Y.Penal Code § 125.30 (1967).[Footnote 4/79]
See generally Bedau, supra, n. 74. Nine States do not authorize capital punishment under any circumstances: Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Oregon, West Virginia, and Wisconsin. Puerto Rico and the Virgin Islands also have no provision for capital punishment. Bedau, supra, n. 45, at 39. Those States that severely restrict the imposition of the death penalty are: New Mexico, N.M.Stat.Ann. § 40A-29-2.1 (1972); New York, N.Y.Penal Code § 125.30 (1967); North Dakota, N.D.Cent.Code §§ 12-07-01, 12-27-13 (1960); Rhode Island, R.I.Gen.Laws § 1123-2 (1970); Vermont, Vt.Stat.Ann., Tit. 13, § 2303 (Supp. 1971). California is the only State in which the judiciary has declared capital punishment to be invalid. See n. 1, supra.[Footnote 4/80]
See generally Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. (1968).[Footnote 4/81]
Extensive compilations of the capital crimes in particular States can be found in Bedau, supra, n. 45, at 39-52, and in the Brief for the Petitioner in No. 68-5027, App. G (Aikens v. California, 406 U. S. 813 (1972)). An attempt is made to break down capital offenses into categories in Finkel, A Survey of Capital Offenses, in Capital Punishment 22 (T. Sellin ed. 1967).[Footnote 4/82]
Bedau, supra, n. 45, at 43.[Footnote 4/83]
Ibid. See also Ralph v. Warden, 438 F.2d 786, 791-792 (CA4 1970).[Footnote 4/84]
See Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw.U.L.Rev. 433, 448 (1957); Report of Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, �� 52-53, PP. 17-18 (1953). See generally, Reichert, Capital Punishment Reconsidered, 47 Ky.L.J. 397, 399 (1959).[Footnote 4/85]
See, e.g., C. Beccaria, On Crimes and Punishment (tr. by H. Paolucci 1963); 1 Archibold, On the Practice, Pleading, and Evidence in Criminal Cases §§ 11-17, pp. XV-XIX (T. Waterman 7th ed. 1860).[Footnote 4/86]
See, e.g., Rudolph v. Alabama, 375 U. S. 889 (1963) (Goldberg, J., dissenting from denial of certiorari); Trop v. Dulles, 356 U.S. at 356 U. S. 97 (Warren, C.J.), 356 U. S. 113 (BRENNAN, J., concurring); Morissette v. United States, 342 U. S. 246 (1952); Williams v. New York, 337 U. S. 241 (1949). In Powell v. Texas, 392 U.S. at 392 U. S. 530, we said:
“This Court has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects. . . .”
This is, of course, correct, since deterrence and isolation are clearly recognized as proper. E.g., Trop v. Dulles, supra, at 356 U. S. 111 (BRENNAN, J., concurring). There is absolutely nothing in the language, the rationale, or the holding of Powell v. Texas, that implies that retribution for its own sake is a proper legislative aim in punishing.[Footnote 4/87]
See, e.g., Vellenga, Christianity and The Death Penalty, in Bedau, supra, n. 45, at 123-130; Hook, The Death Sentence, in Bedau, supra, at 146-154. See also Ehrenzweig, A Psychoanalysis of the Insanity Plea — Clues to the Problems of Criminal Responsibility and Insanity in the Death Cell, 73 Yale L.J. 425, 433-439 (1964).[Footnote 4/88]
2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891).[Footnote 4/89]
Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1275 (1968); Note, Justice or Revenge?, 60 Dick.L.Rev. 342, 343 (1956); Royal Commission, supra, n. 84, � 55, at 18.[Footnote 4/90]
Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154, 163; Hook, supra, n. 87, at 152.[Footnote 4/91]
See Commonwealth v. Elliott, 371 Pa. 70, 78, 89 A.2d 782, 786 (1952) (Musmanno, J., dissenting); F. Frankfurter, Of Law and Men 101 (1956). The assertion that life imprisonment may somehow be more cruel than death is usually rejected as frivolous. Hence, I confess to surprise at finding the assertion being made in various ways in today’s opinions. If there were any merit to the contention, it would do much to undercut even the retributive motive for imposing capital punishment. In any event, there is no better response to such an assertion than that of former Pennsylvania Supreme Court Justice Musmanno in his dissent in Commonwealth v. Elliott, supra, at 79-80, 89 A.2d at 787:
“One of the judges of the lower court indicated from the bench that a sentence of life imprisonment is not to be regarded as a leaser penalty than that of death. I challenge that statement categorically. It can be stated as a universal truth stretching from nadir to zenith that, regardless of circumstances, no one wants to die. Some person may, in an instant of spiritual or physical agony express a desire for death as an anodyne from intolerable pain, but that desire is never full-hearted, because there is always the reserve of realization that the silken cord of life is not broken by a mere wishing. There is no person in the actual extremity of dropping from the precipice of life who does not desperately reach for a crag of time to which to cling even for a moment against the awful eternity of silence below. With all its ‘slings and arrows of outrageous fortune,’ life is yet sweet and death is always cruel.”
Attention should also be given to the hypothesis of Sir James Stephen, quoted in the text, infra at 408 U. S. 347-348.[Footnote 4/92]
See Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 J.Crim.L.C. & P.S. 539, 542 (1970).[Footnote 4/93]
Royal Commission, supra, n. 84, � 59, at 20.[Footnote 4/94]
United Nations, supra, n. 77, 1134, at 117. The great advantage that this country has is that it can compare abolitionist and retentionist States with geographic, economic, and cultural similarities.[Footnote 4/95]
Reprinted in Royal Commission, supra, n. 84, � 57, at 19.[Footnote 4/96]
United Nations, supra, n. 77, � 139, at 118.[Footnote 4/97]
See Bedau, supra, n. 45, at 43.[Footnote 4/98]
T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (ALI) 5 (1959); Morris, Thoughts on Capital Punishment, 35 Wash.L.Rev. & St. Bar J. 335, 340 (1960).[Footnote 4/99]
Sellin, supra, n. 98, at 21.[Footnote 4/100]
Such crimes might include lesser forms of homicide or homicide by a child or a lunatic. Id. at 22; The Laws, The Crimes, and The Executions, in Bedau, supra, n. 45, at 32, 61.[Footnote 4/101]
Sutherland, Murder and the Death Penalty, 15 J.Crim.L. & Crim. 522 (1925); ALI, supra, n. 98, at 22; Bedau, supra, n. 45, at 73.[Footnote 4/102]
Executions were chosen for purposes of comparison because whatever impact capital punishment had would surely be most forcefully felt where punishment was actually imposed.[Footnote 4/103]
See Appendix II to this opinion, infra at 408 U. S. 373.[Footnote 4/104]
See Appendix III to this opinion, infra at 408 U. S. 374.[Footnote 4/105]
United Nations, supra, n. 77, � 134, at 117.[Footnote 4/106]
Royal Commission, supra, n. 84, at 349-351. Accord, Vold, Extent and Trend of Capital Crimes in United States, 284 Annals Am.Acad.Pol. & Soc.Sci. 1, 4 (1952).[Footnote 4/107]
Sellin, supra, n. 98, at 34.[Footnote 4/108]
See, e.g., Guillot, Abolition and Restoration of the Death Penalty in Missouri, in Bedau, supra, n. 45, at 351, 358-359; Cobin, Abolition and Restoration of the Death Penalty in Delaware, in Bedau, supra, at 359, 371-372.[Footnote 4/109]
Sellin, supra, n. 98, at 38-39; Royal Commission, supra, n. 84, at 353; United Nations, supra, n. 77, 130-136, at 116-118.[Footnote 4/110]
One problem is that the statistics for the 19th century are especially suspect; another is that de jure abolition may have been preceded by de facto abolition which would have distorted the figures. It should also be noted that the figures for several States reflect homicide convictions, rather than homicide rates.[Footnote 4/111]
Royal Commission, supra, n. 84, � 65, at 23; 346-349; United Nations, supra, n. 77, 132, at 117.[Footnote 4/112]
Hayner & Cranor, The Death Penalty in Washington State, 284 Annals Am.Acad.Pol. & Soc.Sci. 101 (1952); Graves, A Doctor Looks at Capital Punishment 10 Med.Arts & Sci. 137 (1956); Dann, The Deterrent Effect of Capital Punishment, Bull. 29, Friends Social Service Series, Committee on Philanthropic Labor and Philadelphia Yearly Meeting of Friends (1935); Savitz, A Study in Capital Punishment, 49 J.Crim.L.C. & P.S. 338 (1958); United Nations, supra, n. 77, � 135, at 118.[Footnote 4/113]
Graves, supra, n. 112; Hearings, supra, n. 80, at 23 (testimony of C. Duffy), 126 (statement of Dr. West); T. Reik, The Compulsion to Confess 474 (1959); McCafferty, Major Trends in the Use of Capital Punishment, 25 Fed.Prob., No. 3, P. 15 (Sept. 1961). Capital punishment may provide an outlet for suicidal impulses or a means of achieving notoriety, for example.[Footnote 4/114]
See, e.g., Gerstein, A Prosecutor Looks at Capital Punishment, 51 J.Crim.L.C. & P.S. 252 (1960); Hoover, Statements in Favor of the Death Penalty, in Bedau, supra, n. 45, at 130; Younger, Capital Punishment: A Sharp Medicine Reconsidered, 42 A.B.A.J. 113 (1956). But see Symposium on Capital Punishment, District Attorneys’ Assn. of State of New York, Jan. 27, 1961, 7 N.Y.L.F. 249, 267 (1961) (statement of A. Herman, head of the homicide bureau of the New York City District Attorney’s office).[Footnote 4/115]
Sellin, supra, n. 98, at 56-58; Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969); Sellin, Does the Death Penalty Protect Municipal Police, in Bedau, supra, n. 45, at 284; United Nations, supra, n. 77, � 136, at 118.[Footnote 4/116]
L. Lawes, Life and Death in Sing Sing 150 (1928); McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed.Prob., No. 2, p. 11 (June 1964); 1950 Survey of the International Penal and Penitentiary Commission, cited in Sellin, supra, n. 98, at 70-72; Sellin, Prisons Homicides, in Capital Punishment 154 (T. Sellin ed. 1967); cf. Akman, Homicides and Assaults in Canadian Prisons, in Capital Punishment, supra, at 161-168. The argument can be made that the reason for the good record of murderers is that those who are likely to be recidivists are executed. There is, however, no evidence to show that, in choosing between life and death sentences, juries select the lesser penalties for those persons they believe are unlikely to commit future crimes.[Footnote 4/117]
E.g., United Nations, supra, n. 77, � 144, at 119; B. Eshelman & F. Riley, Death Row Chaplain 224 (1962). This is supported also by overwhelming statistics showing an extremely low rate of recidivism for convicted murderers who are released from prison. Royal Commission, supra, n. 84, App. 15, at 486-491; Sellin, supra, n. 98, at 72-79; United Nations, supra, n. 77, � 144, at 119.[Footnote 4/118]
See, e.g., The Question of Deterrence, in Bedau, supra, n. 45, at 267.[Footnote 4/119]
Ibid. and n. 11; Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1282-1283 (1968).[Footnote 4/120]
See n. 113, supra.[Footnote 4/121]
United Nations, supra, n. 77, � 159, at 123.[Footnote 4/122]
See nn. 58 and 59, supra, and accompanying text.[Footnote 4/123]
See n. 62, supra, and accompanying text.[Footnote 4/124]
Graves, A Doctor Looks at Capital Punishment, 10 Med.Arts. & Sci. 137 (1956); Royal Commission, supra, n. 84, � 60, at 20-21; Schuessler, The Deterrent Influence of the Death Penalty, 284 Annals Am.Acad.Pol. & Soc.Sci. 54 (1952); United Nations, supra, n. 77, � 142, at 119; M. Wolfgang, Patterns in Criminal Homicide (1958).
One would assume that if deterrence were enhanced by capital punishment, the increased deterrence would be most effective with respect to the premeditating murderer or the hired killer who plots his crime before committing it. But such people rarely expect to be caught, and usually assume that, if they are caught, they will either be acquitted or sentenced to prison. This is a fairly dependable assumption, since a reliable estimate is that one person is executed for every 100 capital murders known to the police. Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw.U.L.Rev. 433, 444-445 (1957). For capital punishment to deter anybody, it must be a certain result of a criminal act, cf. Ex parte Medley, 134 U. S. 160 (1890), and it is not. It must also follow swiftly upon completion of the offense, and it cannot in our complicated due process system of justice. See, e.g., The Question of Deterrence, in Bedau, supra, n. 45, at 258, 271-272; DiSalle, Trends in the Abolition of Capital Punishment, 1969 U.Toledo L.Rev. 1, 4. It is ironic that those persons whom we would like to deter the most have the least to fear from the death penalty, and recognize that fact. Sellin, Address for Canadian Society for Abolition of the Death Penalty, Feb. 7, 1965, in 8 Crim.L.Q. 36, 48 (1966); Proceedings of the Section of Criminal Law of the ABA, Aug. 24, 1959, p. 7 (M. DiSalle).[Footnote 4/125]
In reaching this conclusion, I maintain agreement with that portion of Stephen’s hypothesis that suggests that convicted criminals fear death more than they fear life imprisonment. As I stated earlier, the death penalty is a more severe sanction. The error in the hypothesis lies in its assumption that, because men fear death more than imprisonment after they are convicted, they necessarily must weigh potential penalties prior to committing criminal acts, and that they will conform their behavior so as to insure that, if caught, they will receive the lesser penalty. It is extremely unlikely that much thought is given to penalties before the act is committed, and, even if it were, the preceding footnote explains why such thought would not lead to deterrence.[Footnote 4/126]
See n. 117, supra.[Footnote 4/127]
See, e.g., Royal Commission, supra, n. 84, App. 15, at 486-491.[Footnote 4/128] Footnote 4/129]
See, e.g., Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154.[Footnote 4/130]
See, e.g., Death as a Punishment, in Bedau, supra, at 214, 226-228; Caldwell, Why is the Death Penalty Retained?, 284 Annals Am.Acad.Pol. & Soc.Sci. 45, 50 (1952); Johnson, Selective Factors in Capital Punishment, 36 Social Forces 165, 169 (1957); Sellin, Capital Punishment, 25 Fed.Prob., No. 3, p. 3 (Sept. 1961). We should not be surprised at the lack of merit in the eugenic arguments. There simply is no evidence that mentally ill persons who commit capital offenses constitute a psychiatric entity distinct from other mentally disordered patients, or that they do not respond as readily to treatment. Cruvant & Waldrop, The Murderer in the Mental Institution, 284 Annals Am.Acad.Pol. & Soc.Sci. 35, 43 (1952).[Footnote 4/131]
Caldwell, supra, n. 130, at 48; McGee, supra, n. 116.[Footnote 4/132]
McGee, supra, at 13-14; Bailey, Rehabilitation on Death Row, in Bedau, supra, n. 45, at 556.[Footnote 4/133]
T. Thomas, This Life We Take 20 (3d ed. 1965).[Footnote 4/134] Footnote 4/135]
See, e.g., Witherspoon v. Illinois, 391 U. S. 510 (1968).[Footnote 4/136]
Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch Review 351 (1964).[Footnote 4/137]
See, e.g., Caritativo v. California, 357 U. S. 549 (1958).[Footnote 4/138]
To others, as well as to the author of this opinion, this practice has seemed a strange way to spend money. See, e.g., T. Arnold, The Symbols of Government 10-13 (1935).[Footnote 4/139]
Slovenko, supra, n. 136, at 363.[Footnote 4/140]
B. Eshelman & F. Riley, Death Row Chaplain 226 (1962); Caldwell, supra, n. 130, at 48; McGee, supra, n. 116, at 13; Sellin, supra, n. 130, at 3 (Sept. 1961).[Footnote 4/141]
This analysis parallels in some ways the analysis used in striking down legislation on the ground that it violates Fourteenth Amendment concepts of substantive due process. See Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1074 (1964). There is one difference, however. Capital punishment is unconstitutional because it is excessive and unnecessary punishment, not because it is irrational.
The concepts of cruel and unusual punishment and substantive due process become so close as to merge when the substantive due process argument is stated in the following manner: because capital punishment deprives an individual of a fundamental right (i.e., the right to life), Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462 (1938), the State needs a compelling interest to justify it. See Note, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1324-1354 (1968). Thus stated, the substantive due process argument reiterates what is essentially the primary purpose of the Cruel and Unusual Punishments Clause of the Eighth Amendment — i.e., punishment may not be more severe than is necessary to serve the legitimate interests of the State.
THE CHIEF JUSTICE asserts that if we hold that capital punishment is unconstitutional because it is excessive, we will next have to determine whether a 10-year prison sentence rather than a five-year sentence, is also excessive, or whether a $5 fine would not do equally well as a $10 fine. He may be correct that such determinations will have to be made, but, as in these cases, those persons challenging the penalty will bear a heavy burden of demonstrating that it is excessive. These cases arise after 200 years of inquiry, 200 years of public debate and 200 years of marshaling evidence. The burden placed on those challenging capital punishment could not have been greater. I am convinced that they have met their burden. Whether a similar burden will prove too great in future cases is a question that we can resolve in time.[Footnote 4/142]
United States v. Rosenberg, 195 F.2d 583, 608 (CA2) (Frank, J.), cert. denied, 344 U.S. 838 (1952). See also Kasper v. Brittain, 245 F.2d 92, 96 (CA6), cert. denied, 355 U.S. 834 (1957) (“shocking to the sense of justice”); People v. Morris, 80 Mich. 634, 639, 45 N.W. 591, 592 (1890) (“shock the moral sense of the people”). In Repouille v. United States, 165 F.2d 152 (CA2 1947), and Schmidt v. United States, 177 F.2d 450, 451 (CA2 1949), Judge Learned Hand wrote that the standard of “good moral character” in the Nationality Act was to be judged by “the generally accepted moral conventions current at the time.” 165 F.2d at 153. Judge Frank, who was later to author the Rosenberg opinion, in which a similar standard was adopted, dissented in Repouille and urged that the correct standard was the “attitude of our ethical leaders.” 165 F.2d at 154. In light of Rosenberg, it is apparent that Judge Frank would require a much broader based moral approbation before striking down a punishment as cruel and unusual than he would for merely holding that conduct was evidence of bad moral character under a legislative act. 1[Footnote 4/143]
United States v. Rosenberg, supra, at 608.[Footnote 4/144]
See Repouille v. United States, supra, at 153. In Witherspoon v. Illinois, 391 U.S. at 391 U. S. 520, the Court cited a public opinion poll that showed that 42% of the American people favored capital punishment, while 47% opposed it. But the polls have shown great fluctuation. See What Do Americans Think of the Death Penalty?, in Bedau, supra, n. 45, at 231-241.[Footnote 4/145]
The fact that the constitutionality of capital punishment turns on the opinion of an informed citizenry undercuts the argument that, since the legislature is the voice of the people, its retention of capital punishment must represent the will of the people. So few people have been executed in the past decade that capital punishment is a subject only rarely brought to the attention of the average American. Lack of exposure to the problem is likely to lead to indifference, and indifference and ignorance result in preservation of the status quo, whether or not that is desirable, or desired.
It might be argued that, in choosing to remain indifferent and uninformed, citizens reflect their judgment that capital punishment is really a question of utility, not morality, and not one, therefore. of great concern. As attractive as this is on its face, it cannot be correct, because such an argument requires that the choice to remain ignorant or indifferent be a viable one. That, in turn, requires that it be a knowledgeable choice. It is therefore imperative for constitutional purposes to attempt to discern the probable opinion of an informed electorate.[Footnote 4/146]
Cf. Packer, Making the Punishment Fit the Crime, 77 Harv.L.Rev. 1071, 1076 (1964).[Footnote 4/147]
E.g., Gold, A Psychiatric Review of Capital Punishment, 6 J. Forensic Sci. 465, 466 (1961); A. Koestler, Reflections on Hanging 164 (1957); cf. C. Duffy & A. Hirshberg, 88 Men and 2 Women 257-258 (1962).[Footnote 4/148]
Hearings, supra, n. 80, at 11 (statement of M. DiSalle).[Footnote 4/149]
National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 7 (Aug. 1969).[Footnote 4/150]
Alexander, The Abolition of Capital Punishment, Proceedings of the 96th Congress of Correction of the American Correctional Association, Baltimore, Md., 57 (1966); Criminal Justice: The General Aspects, in Bedau, supra, n. 45, at 405, 411-414; Bedau. Death Sentences in New Jersey, 1907-1960, 19 Rutgers L.Rev. 1, 18-21, 52-53 (1964); R. Clark, Crime in America 335 (1970); Hochkammer, The Capital Punishment Controversy, 60 J.Crim.L.C. & P.S. 360, 361-362 (1969); Johnson, The Negro and Crime, 217 Annals Am.Acad.Pol. & Soc.Sci. 93, 95, 99 (1941); Johnson, Selective Factors in Capital Punishment, 36 Social Forces 165 (1957); United Nations, supra, n. 77, � 69, at 98; Williams, The Death Penalty and the Negro, 67 Crisis 501, 511 (1960); M. Wolfgang & B. Cohen, Crime and Race: Conceptions and Misconceptions 77, 80-81, 85-86 (1970); Wolfgang, Kelly, & Nolde, Comparison of the Executed and the Commuted Among Admissions to Death Row, 53 J.Crim.L.C. & P.S. 301 (1962). MR. JUSTICE DOUGLAS explores the discriminatory application of the death penalty at great length, ante at 408 U. S. 249-257.[Footnote 4/153]
National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 28 (Aug. 1969).[Footnote 4/154]
Men kill between four and five times more frequently than women. See Wolfgang, A Sociological Analysis of Criminal Homicide, in Bedau, supra, n. 45, at 74, 75. Hence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however. United Nations, supra, n. 77, 67, at 97-98.[Footnote 4/155]
Criminal Justice: The General Aspects, in Bedau, supra, at 405, 411; Bedau, Capital Punishment in Oregon, 1903-64, 45 Ore.L.Rev. 1 (1965); Bedau, Death Sentences in New Jersey, 1907-1960, 19 Rutgers L.Rev. 1 (1964); R. Clark, Crime in America 335 (1970); C. Duffy & A. Hirshberg, 88 Men and 2 Women 256-257 (1962); Carter & Smith, The Death Penalty in California: A Statistical and Composite Portrait, 15 Crime & Delin. 62 (1969); Hearings, supra, n. 80, at 124-125 (statement of Dr. West); Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969); McGee, supra, n. 116, at 11-12.[Footnote 4/156]
See, e.g., E. Borchard, Convicting the Innocent (1932); J. Frank & B. Frank, Not Guilty (1957); E. Gardner, Court of Last Resort (1952). These three books examine cases in which innocent persons were sentenced to die. None of the innocents was actually executed, however. Bedau has abstracted 74 cases occurring in the United States since 1893 in which a wrongful conviction for murder was alleged and usually proved “beyond doubt.” In almost every case, the convictions were sustained on appeal. Bedau seriously contends that innocent persons were actually executed. Murder, Errors of Justice, and Capital Punishment, in Bedau, supra, n. 45, at 434, 438. See also Black, The Crisis in Capital Punishment, 31 Md.L.Rev. 289 (1971); Hirschberg, Wrongful Convictions, 13 Rocky Mt.L.Rev. 20 (1940); Pollak, The Errors of Justice, 284 Annals Am.Acad.Pol. & Soc.Sci. 115 (1952).[Footnote 4/157]
E. Gardner, Court of Last Resort 178 (1952).[Footnote 4/158]
MR. JUSTICE DOUGLAS recognized this fact when he wrote:
“One who reviews the records of criminal trials need not look long to find an instance where the issue of guilt or innocence hangs in delicate balance. A judge who denies a stay of execution in a capital case often wonders if an innocent man is going to his death. . . . ”
“Those doubts exist because our system of criminal justice does not work with the efficiency of a machine — errors are made and innocent as well as guilty people are sometimes punished. . . . ”
“. . . We believe that it is better for ten guilty people to be set free than for one innocent man to be unjustly imprisoned.”
“Yet the sad truth is that a cog in the machine often slip: memories fail; mistaken identifications are made; those who wield the power of life and death itself — the police officer, the witness, the prosecutor, the juror, and even the judge — become overzealous in their concern that criminals be brought to justice. And at times there is a venal combination between the police and a witness.”
Foreword, J. Frank & B. Frank, Not Guilty 11-12 (1957).
There has been an “incredible lag” between the development of modern scientific methods of investigation and their application to criminal cases. When modern methodology is available, prosecutors have the resources to utilize it, whereas defense counsel often may not. Lassers, Proof of Guilt in Capital Cases — An Unscience, 58 J.Crim.L.C. & P.S. 310 (1967). This increases the chances of error.[Footnote 4/159]
Ehrmann, The Death Penalty and the Administration of Justice, 284 Annals Am.Acad.Pol. & Soc.Sci. 73, 83 (1952).[Footnote 4/160]
F. Frankfurter, Of Law and Men 81 (1956).[Footnote 4/161]
B. Eshelman & F. Riley, Death Row Chaplain 222 (1962).[Footnote 4/162]
McCafferty, Major Trends in the Use of Capital Punishment, 25 Fed.Prob., No. 3, pp. 15, 21 (Sept. 1961) (quoting Dr. S. Glueck of Harvard University).[Footnote 4/163]
MR. JUSTICE POWELL suggests that this conclusion is speculative, and he is certainly correct. But the mere recognition of this truth does not undercut the validity of the conclusion. MR. JUSTICE POWELL himself concedes that judges somehow know that certain punishments are no longer acceptable in our society; for example, he refers to branding and pillorying. Whence comes this knowledge? The answer is that it comes from our intuition as human beings that our fellow human beings no longer will tolerate such punishments
I agree wholeheartedly with the implication in my Brother POWELL’s opinion that judges are not free to strike down penalties that they find personally offensive. But I disagree with his suggestion that it is improper for judges to ask themselves whether a specific punishment is morally acceptable to the American public. Contrary to some current thought, judges have not lived lives isolated from a broad range of human experience. They have come into contact with many people, many ways of life, and many philosophies. They have learned to share with their fellow human beings common views of morality. If, after drawing on this experience and considering the vast range of people and views that they have encountered, judges conclude that these people would not knowingly tolerate a specific penalty in light of its costs, then this conclusion is entitled to weight. See Frankel, Book Review, 85 Harv.L.Rev. 354 (1971). Judges can find assistance in determining whether they are being objective, rather than subjective, by referring to the attitudes of the persons whom most citizens consider our “ethical leaders.” See Repouille v. United States, 165 F.2d at 154 (Frank, J., dissenting).
I must also admit that I am confused as to the point that my Brother POWELL seeks to make regarding the underprivileged members of our society. If he is stating that this Court cannot solve all of their problems in the context of this case, or even many of them, I would agree with him. But if he is opining that it is only the poor, the ignorant, the racial minorities, and the hapless in our society who are executed; that they are executed for no real reason other than to satisfy some vague notion of society’s cry for vengeance; and that, knowing these things, the people of this country would not care, then I most urgently disagree.
There is too much crime, too much killing, too much hatred in this country. If the legislatures could eradicate these elements from our lives by utilizing capital punishment, then there would be a valid purpose for the sanction, and the public would surely accept it. It would be constitutional. As THE CHIEF JUSTICE and MR. JUSTICE POWELL point out, however, capital punishment has been with us a long time. What purpose has it served? The evidence is that it has served none. I cannot agree that the American people have been so hardened, so embittered, that they want to take the life of one who performs even the basest criminal act knowing that the execution is nothing more than bloodlust. This has not been my experience with my fellow citizens. Rather, I have found that they earnestly desire their system of punishments to make sense in order that it can be a morally justifiable system. See generally Arnold, The Criminal Trial As a Symbol of Public Morality, in Criminal Justice In Our Time 137 (A. Howard ed. 1967).” United States Supreme Court, Furman v. Georgia; majority opinions, 1972. https://supreme.justia.com/