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238

MARSHALL, J., concurring

Yet, I firmly believe that we have not deviated in the slightest from the principles with which we began.

At a time in our history when the streets of the Nation's cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But, the measure of a country's greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” 164 and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.165

I concur in the judgments of the Court.

[Appendices I, II, and III follow.]

164 R. Clark, Crime in America 336 (1970).

165 Some jurisdictions have de facto abolition; others have de jure. Id., at 330; Hearings, supra, n. 80, at 9–10 (statement of M. DiSalle). See generally Patrick, The Status of Capital Punishment: A World Perspective, 56 J. Crim. L. C. & P. S. 397 (1965); United Nations, supra, n. 77, 19 10–17, 63–65, at 83–85, 96–97; Brief for Petitioner in No. 68–5027, App. E (Aikens v. California, 406 U. S. 813 (1972)). 1 Death penalty retained for persons found guilty of killing a peace officer who is acting in line of duty, and for prisoners under a life sentence who murder a guard or inmate while in confinement or while escaping from confinement.

Appendix I to opinion of MARSHALL, J., concurring 408 U.S.

APPENDIX I TO OPINION OF MARSHALL, J.,

CONCURRING

ABOLITION OF THE DEATH PENALTY IN THE UNITED

STATES: 1846–1968

(States are listed according to year most recent action was taken)

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Year of Year of

partial complete Year of Year of State

abolition abolition restoration reabolition New York.... 1965 1 Vermont

1965 2 West Virginia.

1965 Iowa

1872
1878

1965 Oregon

1914
1920

1964 Michigan

1847 3

1963 Delaware

1958

1961 Alaska

1957 Hawaii

1957 South Dakota...

1915

1939 Kansas

1907

1935 Missouri

1917

1919 Tennessee 1915 4

1919 Washington

1913

1919 Arizona 1916 5

1918 North Dakota.....

1915 6 Minnesota

1911 Colorado

1897

1901 Maine

1876
1883

1887 Wisconsin

1853 Rhode Island. ..... 1852 7

2 Death penalty retained for persons convicted of first-degree murder who commit a second "unrelated” murder, and for the first-degree murder of any law enforcement officer or prison employee who is in the performance of the duties of his office.

3 Death penalty retained for treason. Partial abolition was voted in 1846, but was not put into effect until 1847.

4 Death penalty retained for rape.
5 Death penalty retained for treason.

6 Death penalty retained for treason, and for first-degree murder committed by a prisoner who is serving a life sentence for first-degree murder.

7 Death penalty retained for persons convicted of committing murder while serving a life sentence for any offense.

Based on National Prisoner Statistics No. 45, Capital Punishment 1930–1968, p. 30 (Aug. 1969).

238

Appendix II to opinion of MARSHALL, J., concurring

APPENDIX II TO OPINION OF MARSHALL, J.,

CONCURRING

CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION, AND NUMBER OF EXECUTIONS IN CERTAIN

AMERICAN STATES: 1920–1955

.6

.2

.3

Year
Maine* N. H.

Vt.

Mass. R. I.* Conn.
Rates Exec. Rates Exec. Rates Exec.

Rates Exec. 1920 1.4 1.8

2.3
2.1 1 1.8

3.9 1 1921 2.2 2.2

1.7
2.8

3.1 2.9 2 1922 1.7 1.6

1.1
2.6

2.2
2.9

1 1923

1.7
2.7
1.4

2.8 1 3.5 3.1
1924
1.5 1.5

.6

2.7 1 2.0 3.5 1925 2.2 1.3

2.7

1.8 3.7
1.926
1.1 .9

2.2
2.0 1 3.2

2.9

1 1927 1.9 .7

.8

2.1 6 2.7 2.3 2 1928 1.6 1.3

1.4
1.9 3

2.7

2.7
1929
1.0 1.5

1.4
1.7 6 2.3 2.6

1 1930 1.8 .9

1.4
1.8

2.0 3.2 2 1931

1.4
2.1
1.1 1

2.0 2 2.2 2.7
1932
2.0

1.1

2.1 1 1.6 2.9
1933
3.3 2.7

1.6
2.5

1.9 1.8
1934
1.1 1.4

1.9

2.2 4 1.8 2.4 1935 1.4 1.0

1.8 4 1.6

1.9 1936 2.2 1.0

2.1

1.6 2 1.2 2.7 1 1937 1.4 1.8

1.8
1.9

2.3 2.0 1 1938

1.5
1.8
1.3

1.3 3 1.2 2.1 1 1939

1.2
2.3
1 .8

1.4 2 1.6 1.3
1940
1.5 1.4

.8
1.5

1.4 1.8 2 1941 1.1 .4

2.2
1.3 1 .8

2.2
1942
1.7 .2

.9

1.3 2 1.2 2.5 1943 1.7 .9

.6

.9 3 1.5 1.6 2 1944 1.5 1.1

.3
1.4

.6 1.9 1 1945 .9 .7

2.9
1.5

1.1 1.5 1 1946 1.4 .8

1.7

1.4 1 1.5 1.6 3 1947 1.2 .6

1.1 1 1.6 2 1.5 1.9
1948
1.7 1.0

.8
1.4
2.7

1 1949 1.7 1.5

1.1

.5 1.8 1950

1.5
1.3

.5
1.3

1.5 1.4
1951
2.3 .6

.5
1.0

.9

2.0 1952 1.0 1.5

1.0

1.5 1.7
1953
1.4 .9

.3
1.0

.6 1.5
1954
1.7 .5
1.6 2 1.0

1.3 1.3
1955
1.2 1.1

.5
1.2

1.7

1.3 3 * Maine has totally abolished the death penalty, and Rhode Island has severely limited its imposition. Based on ALI, supra, n. 98, at 25.

1.7

Appendix III to opinion of MARSHALL, J., concurring 408 U.S.

APPENDIX III TO OPINION OF MARSHALL, J.,

CONCURRING

CRUDE HOMICIDE DEATH RATES, PER 100,000 POPULATION, AND NUMBER OF EXECUTIONS IN CERTAIN

AMERICAN STATES: 1920–1955

Year Mich.* Ohio Ind. Minn.* Iowa Wis. * N.D.* S.D. Neb. Rate Ex. Rate Ex. Rate Ex.

Rate Ex. Rate Ex. 1920---- 5.5 6.9 3 4.7 2 3.1

1.7 **

*** 4.2 1921.--- 4.7 7.9 10 6.4 4.4

2.2

4.9 1922_ 4.3 7.3 12 5.7 2 3.6

3 1.8

4.5 1923---- 6.1 7.8 10 6.1 2.9 2.1 2 2.2

4.1 1924.--- 7.1 6.9 10 7.3 3.2 2.7

1 1.8 2.1

4.4 1925---

7.4
8.1 13 6.6 1 3.8 2.7 2 2.3 2.0

4.0 1926_--- 10.4 8.6 7 5.8 3 2.2

2.3 2.6 1.8

2.7 1927- 8.2 8.6 8 6.3 1 2.6 2.4 2.6 1.6

3.5 1928---- 7.0 8.2 7 7.0 1 2.8 2.3 2.1

1.0

3.7 1929_- 8.2 8.3 5 7.0 1 2.2 2.6 2.3 1.2

3.0 1930---- 6.7 9.3 8 6.4 1 3.8 3.2

3.1 3.5 1.9 3.5 1931---- 6.2 9.0 10 6.5 1 2.9 2.5 1 3.6 2.0 2.3

3.6 1932---- 5.7 8.1 7 6.7 2 2.9 2.9 2.8

1.2
1.6

3.7 1933---- 5.1 8.2 11 5.6 3 3.5 2.9 1.9 1.2 1.7

3.2 1934_--- 4.2 7.7 7 7.1 4 3.4 2.3 2.4

1.6 3.0

4.4 1935---- 4.2 7.1 10 4.4 2 2.6 2.0 3 1.4 2.3 2.0

3.4 1936---- 4.0 6.6 6 5.2 2 2.3 1.8 1.7 2.0 1.2 2.5 1937---- 4.6 5.7 1 4.7 5 1.6 2.2 2.2 1.6 .1

2.0 1938--- 3.4 5.1 12 4.4 8 1.6 1.4 4 2.0 2.4 .9 1.6 1939-- 3.1 4.8 10 3.8 3 1.6 1.8 1.4 1.2 2.8 2.1 1940---- 3.0 4.6 2 3.3 1.2 1.3 1 1.3 1.4 2.2 1.0 1941---

3.2
4.2 4 3.1 1 1.7
1.3 1 1.4 2.3

2.1 1942---- 3.2 4.6 2 3.2 1 1.7 1.2 1.6

1.4 .9

1.8 1943_--- 3.3 4.4 5 2.8 1.2 1.0 1.1 .6

1.4

2.4 1944.-- 3.3 3.9 2 2.8 1.4 1.7 1

.9 1.6 1.3 1945---- 3.7 4.9 7 4.0 1

1.9
1.6 1 1.6

1.0

2.0 1.2 1 1946---- 3.2 5.2 2 3.9

1
1.6
1.8 2 .9 1.5 1.1

2.1 1947---- 3.8 4.9 5 3.8 1.2 1.9

1.4 .4 1.0 1

2.2 1948---- 3.4 4.5 7 4.2 1.9 1.4

.9 .9 2.0 2.5 1 1949--- 3.5 4.4 15 3.2 3 1.1 .9 1 1.3 .7 2.3 1.8 1950---- 3.9

4.1 4 3.6 1 1.2 1.3 1.1 .5 1.1 2.9 1951---- 3.7 3.8 4 1 1.3 1.5 1.1 .5 .9

1.0 1952---- 3.3 4.0 4 3.8 1.3 1.5 1 1.6 .8 2.3 1.6 1 1953_---- 4.6 3.6 4 4.0 1.5

1.1

1.2

1.1 1.1 2.0 1954--- 3.3 3.4 4 3.2 1.0 1.0 1.1 .5 1.5

2.3 1955---- 3.3 3.1 3.1 1.1 1.2 1.1 .8 1.8 1.3

*Michigan, Minnesota, and Wisconsin have completely abolished capital punishment. North Dakota has severely restricted its use.

**Iowa, North Dakota, and South Dakota were not admitted to the national death registration area until 1923, 1924, and 1930 respectively.

***South Dakota introduced the death penalty in 1939. Based on ALI, supra, n. 98, at 28. See also id., at 32–34.

1.0

3.9

238

BURGER, C. J., dissenting

MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join, dissenting.

At the outset it is important to note that only two members of the Court, MR. JUSTICE BRENNAN and Mr. JUSTICE MARSHALL, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances. MR. JUSTICE DOUGLAS has also determined that the death penalty contravenes the Eighth Amendment, although I do not read his opinion as necessarily requiring final abolition of the penalty. For the reasons set forth in Parts I-IV of this opinion, I conclude that the constitutional prohibition against "cruel and unusual punishments” cannot be construed to bar the imposition of the punishment of death.

MR. JUSTICE STEWART and MR. JUSTICE WHITE have concluded that petitioners' death sentences must be set aside because prevailing sentencing practices do not comply with the Eighth Amendment. For the reasons set forth in Part V of this opinion, I believe this approach fundamentally misconceives the nature of the Eighth Amendment guarantee and flies directly in the face of controlling authority of extremely recent vintage.

I

If we were possessed of legislative power, I would either join with MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment. There is no novelty in being called upon to interpret a constitutional provision that is less than

1 See n. 25, infra.

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