Read the various perspectives on the death penalty.?Evaluate each argument for validity and soundness. Discuss the structural strengths and weaknesse
Read the various perspectives on the death penalty. Evaluate each argument for validity and soundness. Discuss the structural strengths and weaknesses of each argument. Discuss who has the stronger argument? Why?
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July 3, 1976 Credit…The New York Times Archives See the article in its original context from July 3, 1976, Page 6Buy Reprints View on timesmachine TimesMachine is an exclusive benefit for home delivery and digital subscribers. About the Archive This is a digitized version of an article from The Times’s print archive, before the start of online publication in 1996. To preserve these articles as they originally appeared, The Times does not alter, edit or update them. Occasionally the digitization process introduces transcription errors or other problems; we are continuing to work to improve these archived versions.
WASHINGTON, July 2—Following are excerpts from the Supreme Court's decisions today in the death penalty cases:
We address initially the basic contentention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution.
GREGG V. GEORGIA
Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens announced the judgment of the Court and filed an opinion delivered by Mr. Justice Stewart.
The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishments. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment. But until Furman v. Georgia, 408 U.S. 238 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution.
Although the issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not constitutional per se; two Justices would have reached the opposite conclusion; and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed. We now hold that the punishment of death does not invariably violate the Constitution.
It is clear from the foregoing precedents that the Eighth Amendment has not been regarded as a static concept. As Chief Justice Warren said, in an oftquoted phrase, “[the] amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.
But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” This means, at least, that the punishment not he “excessive.” When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime.
Restraint on Legislative Power
Of course, the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.
But, while we have an obligation to insure that constitutional bounds are not overreached, we may not act as judges as we might as legislators.
Therefore, in assessing a punishment by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weights heavily in ascertaining such standards.
Deference to Legislative Decisions
The deference we owe to the decisions of the state legislatures under our Federal system is enhanced where the specification of punishments is concerned, for “these are peculiarly questions of legislative policy.” A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Constitution.
We note first that history and precedent strongly support a negative answer to this question.
The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common‐law rule imposed a mandatory death sentence on all convicted murderers. And the penalty continued to be used into the 20th century by most American states, although the breadth of the common‐law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting judges the discretion to recommend mercy.
Penalty Accepted by Framers
It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every state. Indeed, the first Congress of the United States enacted legislation providing death as the penalty for specified crimes.
For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment not invalid per se.
Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime regardless of its depravity and impact on society.
Approval by Many Americans
The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary sanction.
The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 states have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.
As we have seen, however, the Eighth Amendment demands more than that challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the amendment. Although we cannot “invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology,” the sanction imposed cannot be so Wally without penological justification that it results in the gratuitous infliction of suffering.
Retribution and Deterrence
The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self‐help to vindicate their wrongs.
Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive.
Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act. And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.
Evaluation by Legislature
In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular state the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally se
Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. When defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed.
But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.
We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.
New Sentencing Procedures
We now consider whether Georgia may impose the death penalty on the petitioner in this case.
The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily, Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor
The New York Times
Associate Justice Potter Stewart wrote the main opinion.
before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.
For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.
It is so ordered.
Mr. Justice Brennan, Dissenting
This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our bar, “moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, litre punishments on the rack, the screw and the wheel, is no longer morally tolerable in our civilized society. My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and therefore the punishment of death, for whatever crime and under all circumstances, is “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the “moral concepts” recognized in our cases and inherent in the clause is the primary moral principle that the state, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings—a punishment must not be so severe as to be degrading to human dignity. A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted
Pointless Infliction
Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.
Mr. Justice Marshall, dissenting
My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for by brethren's holding that the extinction of life is a permissible form of punishment under the cruel and unusual punishments clause.
In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. And second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable.
Since the decision in Furman, the legislatures of 35 states have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unac
Despite Popular Sentiment
Even assuming, however, that the post‐Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is in valid under the cruel and unusual punishments clause “even though popular sentiment may favor” it. The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe‐penaltylife imprisonment—would do as well.
The two purposes that sustain the death penalty as nonexcessive in the court's view are general deterrence and retribution.
The Solicitor General in his amicus brief in these cases relies heavily on a study by Isaac Ehrlich, reported a year after Furman, to support the contention that the death penalty does deter murder.
The Ehrlich study, in short, is of little, if any assistance in assessing the deterrent impact of the death penalty. The evidence I reviewed in Furman remains convincing, in my view, that “capital punishment is not necessary as a deterrent to crime in our society.” The justification for the death penalty must be found elsewhere.
Justification for Retribution
The other principal purpose said to be served by the death peenalty is retribution. The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my brothers Stewart, Powell, and Stevens, and that of my brother White in Roberts v. Louisiana. It is this notion that I find to be the most disturbing aspect of today's unfortunate decision.
The foregoing contentions — that society's expression of moral outrage through the imposition of the death penalty pre‐empts the citizenry from taking the law into its own hands and reinforces moral values—are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.
There remains for consideration, however, what might be termed the purely retributive justification for the death penalty—that the death penalty is appropriate, not because of its beneficial effect on society, but because the taking of the murderer's life is itself morally good. Some of the language of the plurality's opinion appears positively to embrace this notion of retribution for its own sake as a justfication for capital punishment.
Community Demand Not Enough
The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as the plurality reminds us, “the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society.” To be sustained under the Eighth Amendment, the death penalty must [“comport] with the basic concept of human dignity at the core of the amendment”; the objective in imposing it must be [“consistent] with our respect for the dignity of other men.” Under these standards, the taking of life “because the wrongdoer deserves it” surely must fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth.
The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court's judgment upholding the sentences of death imposed upon the petitioners in these cases.
WOODSON V. NORTH CAROLINA
Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens announced the judgment of the Court and filed an opinion delivered by Mr. Justice Stewart.
After the Furman decision the Supreme Court of North Carolina held unconstitutional the provision of the death penalty statute that gave the jury the option of returning a verdict of guilty without capital punishment, but held further that this provision was severable so that the statute survived as a mandatory death penalty law.
The North Carolina General Assembly in 1974 followed the Court's lead and enacted a new statute that was essentially unchanged from the old one except that it made the death penalty mandatory.
North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted of first‐degree murder. In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. The issue, like that explored in Furman, involves the procedure employed by the state to select persons for the unique and irreversible penalty of death.
Automatic Sentences Repudiated
The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society—jury determinations and legislative enactments—both point conclusively to the repudiation of automatic death sentences. At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where death sentence was the automatic consequence of a guilty verdict.
As we have noted today in Gregg v. Georgia, legislative measures adopted by the people's choice representatives weigh heavily in ascertaining contemporary standards of decency. The consistent course charted by the state legisla tures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penalty statutes is shared by society at large.
Still further evidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. The actions of sentencing juries suggest that under contemporary standards of decency death is viewed as an inappropriate punishment for a substantial portion of convicted first‐degree murderers.
Departure From Standards
North Carolina's mandatory death penalty statute for first‐degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments requirement that the state's power’ to punish “be exercised within the limits of civilized standards.”
A separate deficiency of North Carolina's mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. It is argued that North Carolina has remedied the inadequacies of the death penalty statutes held unconstitutional in Furman by withdrawing all sentencing discretion from juries in capital cases. But when one considers the long and consistent American experience with the death penalty in first‐degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury dis
No Standards for Jury
North Carolina's mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first‐degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury's willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman's basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize and make rationally reviewable the process for imposing a sentence of.
A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.
A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes froin consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
The Record and Circumstances
While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina's mandatory death sentence statute violated the Eighth and Fourteenth Amendments and therefore must be set aside. The judgment of the Supreme Court of North Carolina is reversed insofar as it upheld the death sentences imposed upon the petitioners, and the case is remanded for further proceedings not inconsistent with this opinion.
ROBERTS V. LOUISIANA
Mr. Justice White, with whom the Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join, dissenting.
The difference between a jury having and not having the lawful discretion to spare the life of the defendant is apparent and fundamental. It is undeniable that the unfettered discretion of the jury to save the defendant from death was a major contributing factor in the developments which led us to invalidate the death penalty in Furman v. Georgia. This factor Louisiana has now sought to eliminate by making the death penalty compulsory upon a verdict of guilty in first‐degree murder cases. As I see it, we are now in no position to rule that the state's present law, having eliminated the overt discretionary power of juries, suffers from the same constitutional infirmities which led this Court to invalidate the Georgia death penalty in Furman v. Georgia.
Considering Circumstances
I cannot conclude, as do Mr. Justice Stewart, Mr. Justice Powell, and Mr. Mr. Justice Stevens (hereinafter the plurality), that under the present Louisiana law, capital punishment will occur so seldom, discriminatorily or freakishly that it will fail to satisfy the Eighth Amendment as construed and applied in Furman v. Georgia.
The plurality holds the Lousiana statute unconstituitonal for want of separate sentencing proceeding in whir) the sentencing authority may focus on the sentence and consider some or all of the aggravating and mitigating cis cumstances. In McGautha v. California; 402 U.S. 183 (1971), after having heard the same issues argued twice before in Maxwell v. Bishop, see 395 U.S. 918 (1969), we specifically rejected the claims that a defendant's “constitutional rights were infringed by permitting the jury to impose the death penalty withoui, governing standards” and that “the jury's imposition of the death sentence in the same proceeding and verdict at determined the issue of guilt was (not). constitutionally permissible.” With re‐., pect to the necessity of a bifurcated criminal trial, we had reached essentially the same result in Spencer v. Texas, 385 U.S. 554 (1967). In spite of these cases, the plurality holds that th
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