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POWELL, J., dissenting

408 U.S.

a wartime deserter who had gone "over the hill" for less than a day and had willingly surrendered. In examining the consequences of the relatively novel punishment of denationalization," Chief Justice Warren drew a line between "traditional" and "unusual" penalties:

"While the State has the power to punish, the [Eighth] Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect." Id., at 100.

The plurality's repeated disclaimers of any attack on capital punishment itself must be viewed as more than offhand dicta since those views were written in direct response to the strong language in Mr. Justice Frankfurter's dissent arguing that denationalization could not be a disproportionate penalty for a concededly capital offense.s

The most recent precedents of this Court-Witherspoon v. Illinois, 391 U. S. 510 (1968), and McGautha v. California, supra-are also premised to a significant degree on the constitutionality of the death penalty. While the scope of review in both cases was limited to questions involving the procedures for selecting juries

7 In footnote 32, at 100-101, the plurality opinion indicates that denationalization "was never explicitly sanctioned by this Government until 1940 and never tested against the Constitution until this day."

8 "It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?" Id., at 125.

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and regulating their deliberations in capital cases, those opinions were "singularly academic exercise[s]" 10 if the members of this Court were prepared at those times to find in the Constitution the complete prohibition of the death penalty. This is especially true of Mr. Justice Harlan's opinion for the Court in McGautha, in which, after a full review of the history of capital punishment, he concluded that "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 207.11

9 398 U. S. 936 (1970); 402 U. S., at 306 (BRENNAN, J., dissenting). While the constitutionality per se of capital punishment has been assumed almost without question, recently members of this Court have expressed the desire to consider the constitutionality of the death penalty with respect to its imposition for specific crimes. Rudolph v. Alabama, 375 U. S. 889 (1963) (dissent from the denial of certiorari).

10 Brief for Respondent in Branch v. Texas, No. 69-5031, p. 6. 11 While the implicit assumption in McGautha v. California, 402 U. S. 183 (1971), of the acceptability of death as a form of punishment must prove troublesome for those who urge total abolition, it presents an even more severe problem of stare decisis for those Justices who treat the Eighth Amendment essentially as a process prohibition. MR. JUSTICE DOUGLAS, while stating that the Court is "now imprisoned in . . . McGautha" (ante, at 248), concludes that capital punishment is unacceptable precisely because the procedure governing its imposition is arbitrary and discriminatory. MR. JUSTICE STEWART, taking a not dissimilar tack on the merits, disposes of McGautha in a footnote reference indicating that it is not applicable because the question there arose under the Due Process Clause. Ante, at 310 n. 12. MR. JUSTICE WHITE, who also finds the death penalty intolerable because of the process for its implementation, makes no attempt to distinguish McGautha's clear holding. For the reasons expressed in the CHIEF JUSTICE's opinion, McGautha simply cannot be distinguished. Ante, at 399-403. These various opinions would, in fact, overrule that recent precedent.

POWELL, J., dissenting

408 U.S.

Perhaps enough has been said to demonstrate the unswerving position that this Court has taken in opinions spanning the last hundred years. On virtually every occasion that any opinion has touched on the question of the constitutionality of the death penalty, it has been asserted affirmatively, or tacitly assumed, that the Constitution does not prohibit the penalty. No Justice of the Court, until today, has dissented from this consistent reading of the Constitution. The petitioners in these cases now before the Court cannot fairly avoid the weight of this substantial body of precedent merely by asserting that there is no prior decision precisely in point. Stare decisis, if it is a doctrine founded on principle, surely applies where there exists a long line of cases endorsing or necessarily assuming the validity of a particular matter of constitutional interpretation. Green v. United States, 356 U. S. 165, 189-193 (1958) (Frankfurter, J., concurring). While these oft-repeated expressions of unchallenged belief in the constitutionality of capital punishment may not justify a summary disposition of the constitutional question before us, they are views expressed and joined in over the years by no less than 29 Justices of this Court and therefore merit the greatest respect.12 Those who now resolve to set those views aside indeed have a heavy burden.

III

Petitioners seek to avoid the authority of the foregoing cases, and the weight of express recognition in the Constitution itself, by reasoning which will not withstand analysis. The thesis of petitioners' case derives from several opinions in which members of this Court

12 This number includes all the Justices who participated in Wilkerson v. Utah, 99 U. S. 130 (1879), Kemmler, and Louisiana ex rel. Francis as well as those who joined in the plurality and dissenting opinions in Trop and the dissenting opinion in Weems.

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POWELL, J., dissenting

have recognized the dynamic nature of the prohibition against cruel and unusual punishments. The final meaning of those words was not set in 1791. Rather, to use the words of Chief Justice Warren speaking for a plurality of the Court in Trop v. Dulles, 356 U. S., at 100-101:

"[T]he words of the Amendment are not precise, and . . . their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

But this was not new doctrine. It was the approach to the Eighth Amendment taken by Mr. Justice McKenna in his opinion for the Court in Weems v. United States, 217 U. S. 349 (1910). Writing for four Justices sitting as the majority of the six-man Court deciding the case, he concluded that the clause must be "progressive"; it is not "fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 378. The same test was offered by Mr. Justice Frankfurter in his separate concurrence in Louisiana ex rel. Francis v. Resweber, 329 U. S., at 469. While he rejected the notion that the Fourteenth Amendment made the Eighth Amendment fully applicable to the States, he nonetheless found as a matter of due process that the States were prohibited from "treating even one guilty of crime in a manner that violates standards of decency more or less universally accepted."

Whether one views the question as one of due process or of cruel and unusual punishment, as I do for convenience in this case, the issue is essentially the same.13 The fundamental premise upon which either standard is based is that notions of what constitutes cruel and unusual punishment or due process do evolve.

13 See n. 4, supra.

POWELL, J., dissenting

14

408 U.S.

Neither the Congress nor any state legislature would today tolerate pillorying, branding, or cropping or nailing of the ears-punishments that were in existence during our colonial era.1 Should, however, any such punishment be prescribed, the courts would certainly enjoin its execution. See Jackson v. Bishop, 404 F. 2d 571 (CA8 1968). Likewise, no court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives. Similarly, there may well be a process of evolving attitude with respect to the application of the death sentence for particular crimes.15 See McGautha v. California, 402 U. S., at 242 (Douglas, J., dissenting).

But we are not asked to consider the permissibility of any of the several methods employed in carrying out the death sentence. Nor are we asked, at least as part of the core submission in these cases, to determine whether the penalty might be a grossly excessive punishment for some specific criminal conduct. Either inquiry would call for a discriminating evaluation of particular means, or of the relationship between particular conduct and its punishment. Petitioners' prin

cipal argument goes far beyond the traditional process of case-by-case inclusion and exclusion. Instead the argument insists on an unprecedented constitutional rule of absolute prohibition of capital punishment for any crime, regardless of its depravity and impact on society. In calling for a precipitate and final judicial end to this form of penalty as offensive to evolving standards of decency, petitioners would have this Court abandon the traditional and more refined approach consistently followed in its prior Eighth Amendment precedents. What they are saying, in effect, is that the evolutionary

14 See, e. g., Ex parte Wilson, 114 U. S. 417, 427-428 (1885). 15 See Part VII, infra.

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