238 MARSHALL, J., concurring 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 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 447; Louisiana ex rel. Francis v. Resweber, 329 U. S., at 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suppose that an innovative punishment would probably be constitutional if no more cruel than that punishment which it superseded.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 134; O'Neil v. Vermont, 144 U. S., at 339-340 (Field, J., dissenting); Weems v. United States, 217 U. S., at 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 punish MARSHALL, J., concurring 408 U.S. ments] is against that which is excessive," O'Neil v. Vermont, 144 U. S., at 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 238 MARSHALL, J., concurring unnecessary, or because it is abhorrent to currently existing moral values. We must proceed to the history of capital punishment in the United States. IV 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.38 Thus, infliction of death as a penalty for objectionable conduct appears to have its beginnings in private vengeance.3 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.40 Capital punishment worked its way into the laws of various countries," and was inflicted in a variety of macabre and horrific ways.12 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 per 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). 39 Scott, supra, n. 38, at 1. 40 Id., at 2; Ancel, supra, n. 38, at 4-5. 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). 42 Scott, supra, n. 38, at 19-33. MARSHALL, J., concurring 408 U.S. petrator.43 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.** Tudor and Stuart kings added many more crimes to the list of those punishable by death, and by 1688 there were nearly 50.45 George II (1727-1760) added nearly 36 more, and George III (1760-1820) increased the number by 60.46 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.* 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. 44 T. Plucknett, A Concise History of the Common Law 424-454 (5th ed. 1956). 45 Introduction in H. Bedau, The Death Penalty in America 1 (1967 rev. ed.). 46 Ibid. 47 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. 238 MARSHALL, J., concurring Capital punishment was not as common a penalty in the American Colonies. "The Capitall Lawes of NewEngland," 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. 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.49 We do know that the other Colonies had a variety of laws that spanned the spectrum of severity.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.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.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." 19 53 Even in the 17th century, there was some opposition 48 G. Haskins, The Capitall Lawes of New-England, Harv. L. Sch. Bull. 10-11 (Feb. 1956). 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. 50 Id., at 6. 51 Filler, Movements to Abolish the Death Penalty in the United States, 284 Annals Am. Acad. Pol. & Soc. Sci. 124 (1952). 52 Ibid. 53 Ibid. (footnotes omitted). |