Furman v. Georgia/Concurrence Marshall IV

Furman v. Georgia
Concurring Opinion, Section IV by Thurgood Marshall
Introduction I II III IV V VI VII Appendices

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.[1] Thus, infliction of death as a penalty for objectionable conduct appears to have its beginnings in private vengeance.[2]

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.[3] Capital punishment worked its way into the laws of various countries,[4] and was inflicted in a variety of macabre and horrific ways.[5]

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.[6] [408 U.S. 238, 334] The early history of capital punishment in England is set forth in McGautha v. California, 402 U.S. 183, 197 -200 (1971), and need not be repeated here.

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.[7] Tudor and Stuart kings added many more crimes to the list of those punishable by death, and by 1688 there were nearly 50.[8] George II (1727-1760) added nearly 36 more, and George III (1760-1820) increased the number by 60.[9]

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.[10] [408 U.S. 238, 335]

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.[11] 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.[12] We do know that the other Colonies had a variety of laws that spanned the spectrum of severity.[13]

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.[14] This was far fewer than existed in England, and part of the reason was that there was a scarcity of labor in the Colonies.[15] Still, there were many executions, because "[w]ith county jails inadequate and insecure, the criminal population seemed best controlled by death, mutilation, and fines."[16]

Even in the 17th century, there was some opposition [408 U.S. 238, 336] to capital punishment in some of the colonies. In his "Great Act" of 1682, William Penn prescribed death only for premeditated murder and treason,[17] although his reform was not long lived.[18]

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.[19] 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.[20] 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."[21] 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.[22]

The "Enquiries" of Rush and Bradford and the Pennsylvania movement toward abolition of the death [408 U.S. 238, 337] penalty had little immediate impact on the practices of other States.[23] 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."[24] His Introductory Report to the System of Penal Law Prepared for the State of Louisiana[25] 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,[26] 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 [408 U.S. 238, 338] or more after a trial would be an effective deterrent to exercise of his power.[27] The law spread throughout New England and led to Michigan's being the first State to abolish capital punishment in 1846.[28]

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.[29]

By 1850, societies for abolition existed in Massachusetts, New York, Pennsylvania, Tennessee, Ohio, Alabama, Louisiana, Indiana, and Iowa.[30] 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.[31] Wisconsin totally abolished the death penalty the following year.[32] 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.[33]

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 [408 U.S. 238, 339] blunted."[34] 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.[35]

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.[36] 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.[37]

By 1917 12 States had become abolitionist jurisdictions.[38] But, under the nervous tension of World War I, [408 U.S. 238, 340] four of these States reinstituted capital punishment and promising movements in other States came grinding to a halt.[39] 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.[40]

In recent years there has been renewed interest in modifying capital punishment. New York has moved toward abolition,[41] as have several other States.[42] In 1967, a bill was introduced in the Senate to abolish [408 U.S. 238, 341] capital punishment for all federal crimes, but it died in committee.[43]

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.[44] It is sufficient to note that murder is the crime most often punished by death, followed by kidnaping and treason.[45] Rape is a capital offense in 16 States and the federal system.[46]

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 [408 U.S. 238, 342] 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.


  1. 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).
  2. Scott, supra, n. 38, at 1.
  3. Id., at 2; Ancel, supra, n. 38, at 4-5.
  4. 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).
  5. Scott, supra, n. 38, at 19-33.
  6. 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.
  7. T. Plucknett, A Concise History of the Common Law 424-454 (5th ed. 1956).
  8. Introduction in H. Bedau, The Death Penalty in America 1 (1967 rev. ed.).
  9. Ibid.
  10. 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.
  11. G. Haskins, The Capitall Lawes of New-England, Harv. L. Sch. Bull. 10-11 (Feb. 1956).
  12. 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.
  13. Id., at 6.
  14. Filler, Movements to Abolish the Death Penalty in the United States, 284 Annals Am. Acad. Pol. & Soc. Sci. 124 (1952).
  15. Ibid.
  16. Ibid. (footnotes omitted).
  17. Ibid.; Bedau, supra, n. 45, at 6.
  18. 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.
  19. Filler, supra, n. 51, at 124.
  20. Id., at 124-125.
  21. Reprinted in 12 Am. J. Legal Hist. 122 (1968).
  22. His advice was in large measure followed. See n. 55, supra.
  23. 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.
  24. Ibid.; Filler, supra, n. 51, at 126-127.
  25. See Scott, supra, n. 38, at 114-116.
  26. Filler, supra, n. 51, at 127.
  27. Davis, The Movement to Abolish Capital Punishment in America, 1787-1861, 63 Am. Hist. Rev. 23, 33 (1957).
  28. 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.
  29. Davis, supra, n. 64, at 29-30.
  30. Filler, supra, n. 51, at 129.
  31. Id., at 130.
  32. Ibid.
  33. Bedau, supra, n. 45, at 10.
  34. Davis, supra, n. 64, at 46.
  35. Kansas restored it in 1935. See Appendix I to this opinion, infra, at 372.
  36. See McGautha v. California, 402 U.S., at 199 .
  37. 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.
  38. See n. 72, supra.
  39. Filler, supra, n. 51, at 134.
  40. 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).
  41. 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).
  42. 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 11-23-2 (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.
  43. 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).
  44. 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).
  45. Bedau, supra, n. 45, at 43.
  46. Ibid. See also Ralph v. Warden, 438 F.2d 786, 791-792 (CA4 1970).