Furman v. Georgia/Concurrence Marshall V

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

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?" 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 [408 U.S. 238, 343] 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 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, 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 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." (Emphasis added.) [408 U.S. 238, 344]

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. 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 [408 U.S. 238, 345] society's abhorrence of the act. 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." 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. 89

While the contrary position has been argued, 90 it is my firm opinion that the death penalty is a more severe sanction than life imprisonment. Admittedly, there are [408 U.S. 238, 346] 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. 91

It must be kept in mind, then, that the question to be considered is not simply whether capital punishment is [408 U.S. 238, 347] a deterrent, but whether it is a better deterrent than life imprisonment. 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." 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. 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 [408 U.S. 238, 348] 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." 95

This hypothesis relates to the use of capital punishment as a deterrent for any crime. The second proposition is that "if 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." 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, 97 and almost 90% of all executions since 1930 have been pursuant to murder convictions. 98

Thorsten Sellin, one of the leading authorities on capital punishment, has urged that if the death penalty [408 U.S. 238, 349] 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." 99 (Footnote omitted.)

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. 100 A second problem is that certain murders undoubtedly are misinterpreted as accidental deaths or suicides, and there [408 U.S. 238, 350] 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, 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 102 and homicide rates. 103 The same is true for Midwestern States, 104 and for all others studied. Both the United Nations 105 and Great Britain 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. 107 This conclusion is borne out by others who have made similar [408 U.S. 238, 351] inquiries 108 and by the experience of other countries. 109 Despite problems with the statistics, 110 Sellin's evidence has been relied upon in international studies of capital punishment. 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. 112 In fact, there is some evidence that imposition of capital punishment may actually encourage crime, rather than deter it. 113 And, while police and law enforcement officers [408 U.S. 238, 352] are the strongest advocates of capital punishment, 114 the evidence is overwhelming that police are no safer in communities that retain the sanction than in those that have abolished it. 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. 116 Most of the persons sentenced to death are murderers, and murderers tend to be model prisoners. 117 [408 U.S. 238, 353]

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. 118 These claims of specific deterrence are often spurious, 119 however, and may be more than counterbalanced by the tendency of capital punishment to incite certain crimes. 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." 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 [408 U.S. 238, 354] was needed. 122 Edward Livingston reached a similar conclusion with respect to deterrence in 1833 upon completion of his study for Louisiana. 123 Virtually every study that has since been undertaken has reached the same result. 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. 125 [408 U.S. 238, 355]

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. 126 For the most part, they are first offenders, and when released from prison they are known to become model citizens. 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 these facts, if capital punishment were justified purely on the basis of preventing recidivism, it would have to be considered to be excessive; no general need to obliterate all capital offenders could have been demonstrated, nor any specific need in individual cases.

D. The three final purposes which may underlie utilization of a capital sanction - encouraging guilty pleas and confessions, eugenics, and reducing state expenditures - may be dealt with quickly. 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 [408 U.S. 238, 356] v. Jackson, 390 U.S. 570 (1968). 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. 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 [408 U.S. 238, 357] 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, 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. 131 Condemned men are not productive members of the prison community, although they could be, 132 and executions are expensive. 133 Appeals are often automatic, and courts admittedly spend more time with death cases. 134 [408 U.S. 238, 358]

At trial, the selection of jurors is likely to become a costly, time-consuming problem in a capital case, 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. 136 Because there is a formally established policy of not executing insane persons, 137 great sums of money may be spent on detecting and curing mental illness in order to perform the execution. 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. 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. 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 [408 U.S. 238, 359] 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. 141 [408 U.S. 238, 360]


[ Footnote 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 85 ] See, e. g., C. Beccaria, On Crimes and Punishment (tr. by H. Paolucci 1963); 1 Archbold, On the Practice, Pleading, and Evidence in Criminal Cases 11-17, pp. XV-XIX (T. Waterman 7th ed. 1860).

[ Footnote 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 97 (Warren, C. J.), 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 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 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 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 88 ] 2 J. Story, On the Constitution 1903, p. 650 (5th ed. 1891).

[ Footnote 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 90 ] Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154, 163; Hook, supra, n. 87, at 152.

[ Footnote 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 lesser 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 347-348.

[ Footnote 92 ] See Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 J. Crim. L. C. & P. S. 539, 542 (1970).

[ Footnote 93 ] Royal Commission, supra, n. 84, � 59, at 20.

[ Footnote 94 ] United Nations, supra, n. 77, � 134, 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 95 ] Reprinted in Royal Commission, supra, n. 84, � 57, at 19.

[ Footnote 96 ] United Nations, supra, n. 77, � 139, at 118.

[ Footnote 97 ] See Bedau, supra, n. 45, at 43.

[ Footnote 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 99 ] Sellin, supra, n. 98, at 21.

[ Footnote 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 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 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 103 ] See Appendix II to this opinion, infra, at 373.

[ Footnote 104 ] See Appendix III to this opinion, infra, at 374.

[ Footnote 105 ] United Nations, supra, n. 77, � 134, at 117.

[ Footnote 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 107 ] Sellin, supra, n. 98, at 34.

[ Footnote 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 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 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 111 ] Royal Commission, supra, n. 84, � 65, at 23; 346-349; United Nations, supra, n. 77, � 132, at 117.

[ Footnote 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 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 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 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 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 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 118 ] See, e. g., The Question of Deterrence, in Bedau, supra, n. 45, at 267.

[ Footnote 119 ] Ibid. and n. 11; Note, The Death Penalty Cases, 56 Calif. L. Rev. 1268, 1282-1283 (1968).

[ Footnote 120 ] See n. 113, supra.

[ Footnote 121 ] United Nations, supra, n. 77, � 159, at 123.

[ Footnote 122 ] See nn. 58 and 59, supra, and accompanying text.

[ Footnote 123 ] See n. 62, supra, and accompanying text.

[ Footnote 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 125 ] In reaching this conclusion, I maintain agreement with that portion of Stephen's hypothesis that suggests that convicted criminals [408 U.S. 238, 355] 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 126 ] See n. 117, supra.

[ Footnote 127 ] See, e. g., Royal Commission, supra, n. 84, App. 15, at 486-491.

[ Footnote 128 ] Jackson applies to the States under the criteria articulated in Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

[ Footnote 129 ] See, e. g., Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154.

[ Footnote 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 131 ] Caldwell, supra, n. 130, at 48; McGee, supra, n. 116.

[ Footnote 132 ] McGee, supra, at 13-14; Bailey, Rehabilitation on Death Row, in Bedau, supra, n. 45, at 556.

[ Footnote 133 ] T. Thomas, This Life We Take 20 (3d ed. 1965).

[ Footnote 134 ] Stein v. New York, 346 U.S. 156, 196 (1953) (Jackson, J.); cf. Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring in result).

[ Footnote 135 ] See, e. g., Witherspoon v. Illinois, 391 U.S. 510 (1968).

[ Footnote 136 ] Slovenko, And the Penalty is (Sometimes) Death, 24 Antioch Review 351 (1964).

[ Footnote 137 ] See, e. g., Caritativo v. California, 357 U.S. 549 (1958).

[ Footnote 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 139 ] Slovenko, supra, n. 136, at 363.

[ Footnote 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 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, 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 [408 U.S. 238, 360] 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.