238 MARSHALL, J., concurring capital punishment for all federal crimes, but it died in committee.80 At the present time, 41 States, the District of Columbia, and other federal jurisdictions authorize the death penalty for at least one crime. It would be fruitless to attempt here to categorize the approach to capital punishment taken by the various States. 8: It is sufficient to note that murder is the crime most often punished by death, followed by kidnaping and treason.82 Rape is a capital offense in 16 States and the federal system.83 The foregoing history demonstrates that capital punishment was carried from Europe to America but, once here, was tempered considerably. At times in our history, strong abolitionist movements have existed. But, they have never been completely successful, as no more than one-quarter of the States of the Union have, at any one time, abolished the death penalty. They have had partial success, however, especially in reducing the number of capital crimes, replacing mandatory death sentences with jury discretion, and developing more humane methods of conducting executions. This is where our historical foray leads. The question now to be faced is whether American society has 80 See generally Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. (1968). 81 Extensive compilations of the capital crimes in particular States can be found in Bedau, supra, n. 45, at 39-52 and in the Brief for the Petitioner in No. 68-5027, App. G (Aikens v. California, 406 U. S. 813 (1972)). An attempt is made to break down capital offenses into categories in Finkel, A Survey of Capital Offenses, in Capital Punishment 22 (T. Sellin ed. 1967). 82 Bedau, supra, n. 45, at 43. 83 Ibid. See also Ralph v. Warden, 438 F. 2d 786, 791-792 (CA4 MARSHALL, J., concurring 408 U.S. 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. V 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 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). 238 MARSHALL, J., concurring 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.) 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). MARSHALL, J., concurring 408 U.S. 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.8 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 evi 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. 238 MARSHALL, J., concurring dence society's abhorrence of the act. 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.s 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 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). 88 2 J. Story, On the Constitution § 1903, p. 650 (5th ed. 1891). 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. 90 Barzun, In Favor of Capital Punishment, in Bedau, supra, n. 45, at 154, 163; Hook, supra, n. 87, at 152. |