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Douglas, J., concurring
DOUGLAS

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vice in this case is not in the penalty but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the pen

alty is.Id., at 116–117. (Emphasis supplied.) But those who advance that argument overlook McGautha, supra.

We are now imprisoned in the McGautha holding. Indeed the seeds of the present cases are in McGautha. Juries (or judges, as the case may be) have practically untrammeled discretion to let an accused live or insist that he die. 11

members of racial minorities, in violation of the fourteenth amendment to the Constitution, "and, in either case, whether Congress should exercise its authority under section 5 of the fourteenth amendment to prohibit the use of the death penalty.”

There is the naive view that capital punishment as "meted out in our courts, is the antithesis of barbarism.” See Henry Paolucci, New York Times, May 27, 1972, p. 29, col. 1. But the Leopolds and Loebs, the Harry Thaws, the Dr. Sheppards and the Dr. Finchs of our society are never executed, only those in the lower strata, only those who are members of an unpopular minority or the poor and despised.

11 The tension between our decision today and McGautha highlights, in my view, the correctness of MR. JUSTICE BRENNAN's dissent in that case, which I joined. 402 U. S., at 248. I should think that if the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on petitioners because they are “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed,” opinion of MR. JUSTICE STEWART, post, at 309–310, or because "there is no meaningful basis for distinguishing the few cases in which {the death penalty] is imposed from the many cases in which it is not," opinion of MR. JUSTICE WHITE, post, at 313, statements with which I am in complete agreement—then the Due Process Clause of the Fourteenth Amendment would render unconstitutional "capital sentencing procedures that are purposely

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law into their own hands” and refused to convict on the capital offense. Id., at 199.

"In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in

fact.Ibid. The Court concluded: "In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.” Id., at 207.

The Court refused to find constitutional dimensions in the argument that those who exercise their discretion to send a person to death should be given standards by which that discretion should be exercised. Id., at 207-208.

A recent witness at the Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 2d Sess., Ernest van den Haag, testifying on H. R. 8414 et al.,10 stated:

“Any penalty, a fine, imprisonment or the death penalty could be unfairly or unjustly applied. The

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10 H. R. 3243, 92d Cong., 1st Sess., introduced by Cong. Celler, would abolish all executions by the United States or by any State.

H. R. 8414, 92d Cong., 1st Sess., introduced by Cong. Celler, would provide an interim stay of all executions by the United States or by any State and contains the following proposed finding:

“Congress hereby finds that there exists serious question

“(a) whether the infliction of the death penalty amounts to cruel and unusual punishment in violation of the eighth and fourteenth amendents to the Constitution; and

“(b) whether the death penalty is inflicted discriminatorily upon DOUGLAS, J., concurring

408 U.S.

murderers.” The first attempted remedy was to restrict the death penalty to defined offenses such as “premeditated” murder.' Ibid. But juries "took the

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9 This trend was not universally applauded. In the early 1800's, England had a law that made it possible to impose the death sentence for stealing five shillings or more. 3 W. & M., c. 9, § 1. When a bill for abolishing that penalty (finally enacted in 1827, 7 & 8 Geo. 4, c. 27) was before the House of Lords in 1813, Lord Ellenborough said:

"If your Lordships look to the particular measure now under consideration, can it, I ask, be seriously maintained, that the most exemplary punishment, and the best suited to prevent the commission of this crime, ought not to be a punishment which might in some cases be inflicted? How, but by the enactments of the law now sought to be repealed, are the cottages of industrious poverty protected? What other security has a poor peasant, when he and his wife leave their home for their daily labours, that on their return their few articles of furniture or of clothes which they possess besides those which they carry on their backs, will be safe? .. [B]y the enacting of the punishment of death, and leaving it to the discretion of the Crown to inflict that punishment or not, as the circumstances of the case may require, I am satisfied, and I am much mistaken if your Lordships are not satisfied, that this object is attained with the least possible expenditure. That the law is, as it has been termed, a bloody law, I can by no means admit. Can there be a better test than by a consideration of the number of persons who have been executed for offences of the description contained in the present Bill? Your Lordships are told, what is extremely true, that this number is very small; and this very circumstance is urged as a reason for a repeal of the law; but, before your Lordships are induced to consent to such repeal, I beg to call to your consideration the number of innocent persons who might have been plundered of their property or destroyed by midnight murderers, if the law now sought to be repealed had not been in existence:-a law upon which all the retail trade of this commercial country depends; and which I for one will not consent to be put in jeopardy.” Debate in House of Lords, Apr. 2, 1813, pp. 23–24 (Longman, Hurst, Rees, Orme, & Brown, Paternoster-Row, London 1816).

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alties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is "cruel and unusual” to apply the death penalty—or any other penalty—selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board. Judge Tuttle, indeed, made abundantly clear in Novak v. Beto, 453 F. 2d 661, 673–679 (CA5) (concurring in part and dissenting in part), that solitary confinement may at times be "cruel and unusual” punishment. Cf. Ex parte Medley, 134 U. S. 160; Brooks v. Florida, 389 U. S. 413.

The Court in McGautha v. California, 402 U. S. 183, 198, noted that in this country there was almost from the beginning a “rebellion against the common-law rule imposing a mandatory death sentence on all convicted

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8“When in respect of any class of offenses the difficulty of obtaining convictions is at all general in England, we may hold it as an axiom, that the law requires amendment. Such conduct in juries is the silent protest of the people against its undue severity. This was strongly exemplified in the case of prosecutions for the forgery of bank-notes, when it was a capital felony. It was in vain that the charge was proved. Juries would not condemn men to the gallows for an offense of which the punishment was out of all proportion to the crime; and as they could not mitigate the sentence they brought in verdicts of Not Guilty. The consequence was, that the law was changed; and when secondary punishments were substituted for the penalty of death, a forger had no better chance of an acquittal than any other criminal. Thus it is that the power which juries possess of refusing to put the law in force has, in the words of Lord John Russell, 'been the cause of amending many bad laws which the judges would have administered with professional bigotry, and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made, can not long prevail in England.'” W. Forsyth, History of Trial by Jury 367–368 (2d ed. 1971).

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of seven other States. The Northwest Ordinance, en

" acted under the Articles of Confederation, included a prohibition of cruel and unusual punishments. But the debates of the First Congress on the Bill of Rights throw little light on its intended meaning. All that appears is the following:

"Mr. SMITH, of South Carolina, objected to the words ‘nor cruel and unusual punishments;' the import of them being too indefinite.

“Mr. LIVERMORE: The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any decla

ration of this kind.” The words "cruel and unusual” certainly include pen

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5 Delaware, Maryland, New Hampshire, North Carolina, Massachusetts, Pennsylvania, and South Carolina. 1 Thorpe, supra, n. 4, at 569; 3 id., at 1688, 1892; 4 id., at 2457; 5 id., at 2788, 3101; 6 id., at 3264.

6 Set out in 1 U. S. C. XXXIX-XLI. 71 Annals of Cong. 754 (1789).

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