238 POWELL, J., dissenting petitioners demand in these cases. They seek nothing less than the total abolition of capital punishment by judicial fiat. II Petitioners assert that the constitutional issue is an open one uncontrolled by prior decisions of this Court. They view the several cases decided under the Eighth Amendment as assuming the constitutionality of the death penalty without focusing squarely upon the issue. I do not believe that the case law can be so easily cast aside. The Court on numerous occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the issue was whether a particular means of carrying out a capital sentence would be allowed to stand. Each of those decisions necessarily was premised on the assumption that some method of exacting the penalty was permissible. The issue in the first capital case in which the Eighth Amendment was invoked, Wilkerson v. Utah, 99 U. S. 130 (1879), was whether carrying out a death sentence by public shooting was cruel and unusual punishment. A unanimous Court upheld that form of execution, noting first that the punishment itself, as distinguished from the mode of its infliction, was "not pretended by the counsel of the prisoner" (id., at 137) to be cruel and unusual. The Court went on to hold that: "Cruel and unusual punishments are forbidden by the Constitution, but the authorities . . . are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category . . . ." Id., at 134-135. Eleven years later, in In re Kemmler, 136 U. S. 436 (1890), the Court again faced a question involving the POWELL, J., dissenting 408 U.S. On re method of carrying out a capital sentence. view of a denial of habeas corpus relief by the Supreme Court of New York, this Court was called on to decide whether electrocution, which only very recently had been adopted by the New York Legislature as a means of execution, was impermissibly cruel and unusual in violation of the Fourteenth Amendment. Chief Justice Fuller, speaking for the entire Court, ruled in favor of the State. Electrocution had been selected by the legislature, after careful investigation, as "the most humane and practical method known to modern science of carrying into effect the sentence of death." Id., at 444. The Court drew a clear line between the penalty itself and the mode of its execution: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death * The Court pointed out that the Eighth Amendment applied only to the Federal Government and not to the States. The Court's power in relation to state action was limited to protecting privileges and immunities and to assuring due process of law, both within the Fourteenth Amendment. The standard-for purposes of due processwas held to be whether the State had exerted its authority, "within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." 136 U. S., at 448. The State of Georgia, in No. 69-5003 and No. 69-5030, has placed great emphasis on this discussion in In re Kemmler, 136 U. S. 436 (1890), and has urged that the instant cases should all be decided under the more expansive tests of due process rather than under the Cruel and Unusual Punishments Clause per se. Irrespective whether the decisions of this Court are viewed as "incorporating" the Eighth Amendment (see Robinson v. California, 370 U. S. 660 (1962); Powell v. Texas, 392 U. S. 514 (1968)), it seems clear that the tests for applying these two provisions are fundamentally identical. Compare Mr. Justice Frankfurter's test in Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 470 (1947) (concurring opinion), with Mr. Chief Justice Warren's test in Trop v. Dulles, 356 U. S. 86, 100-101 (1958). 238 POWELL, J., dissenting is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Id., at 447. More than 50 years later, in Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), the Court considered a case in which, due to a mechanical malfunction, Louisiana's initial attempt to electrocute a convicted murderer had failed. Petitioner sought to block a second attempt to execute the sentence on the ground that to do so would constitute cruel and unusual punishment. In the plurality opinion written by Mr. Justice Reed, concurred in by Chief Justice Vinson and Justices Black and Jackson, relief was denied. Again the Court focused on the manner of execution, never questioning the propriety of the death sentence itself. "The case before us does not call for an exam- ". . . The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Id., at 463-464. Mr. Justice Frankfurter, unwilling to dispose of the case under the Eighth Amendment's specific prohibition, approved the second execution attempt under the Due Process Clause. He concluded that "a State may be found to deny a person due process by treating even one guilty of crime in a manner that violates standards of POWELL, J., dissenting 408 U.S. decency more or less universally accepted though not when it treats him by a mode about which opinion is fairly divided." Id., at 469-470. The four dissenting Justices, although finding a second attempt at execution to be impermissibly cruel, expressly recognized the validity of capital punishment: “In determining whether the proposed procedure is unconstitutional, we must measure it against a lawful electrocution. . . . Electrocution, when instantaneous, can be inflicted by a state in conformity with due process of law. . . . "The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself." Id., at 474 (original emphasis). Each of these cases involved the affirmance of a death sentence where its validity was attacked as violating the Eighth Amendment. Five opinions were written in these three cases, expressing the views of 23 Justices. While in the narrowest sense it is correct to say that in none was there a frontal attack upon the constitutionality of the death penalty, each opinion went well beyond an unarticulated assumption of validity. The power of the States to impose capital punishment was repeatedly and expressly recognized. In addition to these cases in which the constitutionality of the death penalty was a necessary foundation for the decision, those who today would have this Court undertake the absolute abolition of the death penalty also must reject the opinions of other cases stipulating or assuming the constitutionality of capital punishment. Trop v. Dulles, 356 U. S. 86, 99, 100 (1958); Weems v. United States, 217 U. S. 349, 382, 409 (1910) 238 POWELL, J., dissenting See also (White, J., joined by Holmes, J., dissenting). McGautha v. California, 402 U. S., at 226 (separate opinion of Black, J.); Robinson v. California, 370 U. S. 660, 676 (1962) (DOUGLAS, J., concurring). The plurality opinion in Trop v. Dulles, supra, is of special interest since it is this opinion, in large measure, that provides the foundation for the present attack on the death penalty. It is anomalous that the standard urged by petitioners "evolving standards of decency that mark the progress of a maturing society" (356 U. S., at 101)—should be derived from an opinion that so unqualifiedly rejects their arguments. Chief Justice Warren, joined by Justices Black, DOUGLAS, and Whittaker, stated flatly: "At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment and they are forceful-the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty." Id., at 99. The issue in Trop was whether forfeiture of citizenship was a cruel and unusual punishment when imposed on 5 Mr. Justice White stated: "Death was a well-known method of punishment prescribed by law, and it was of course painful, and in that sense was cruel. But the infliction of this punishment was clearly not prohibited by the word cruel, although that word manifestly was intended to forbid the resort to barbarous and unnecessary methods of bodily torture, in executing even the penalty of death." 217 U. S., at 409. 6 See Part III, infra. |