POWELL, J., dissenting 408 U.S. particular group of people who are able to appreciate the consequences of their acts. . . ." Id., at 531. As I noted at the outset of this section, legislative judgments as to the efficacy of particular punishments are presumptively rational and may not be struck down under the Eighth Amendment because this Court may think that some alternative sanction would be more appropriate. Even if such judgments were within the judicial prerogative, petitioners have failed to show that there exist no justifications for the legislative enactments challenged in these cases.52 While the evidence and arguments advanced by petitioners might have proved profoundly persuasive if addressed to a legislative body, they do not approach the showing traditionally required before a court declares that the legislature has acted irrationally. VII In two of the cases before us today juries imposed sentences of death after convictions for rape.53 In these cases we are urged to hold that even if capital punishment is permissible for some crimes, it is a cruel and unusual punishment for this crime. Petitioners in these cases rely on the Court's opinions holding that the Eighth Amendment, in addition to prohibiting punishments 52 It is worthy of note that the heart of the argument here-that there are no legitimate justifications-was impliedly repudiated last Term by both the majority and dissenting opinions in McGautha v. California, 402 U. S. 183 (1971). The argument in that case centered on the proposition that due process requires that the standards governing the jury's exercise of its sentencing function be elucidated. AS MR. JUSTICE BRENNAN's dissent made clear, whatever standards might be thought to exist arise out of the list of justifications for the death penalty-retribution, deterrence, etc. Id., at 284. If no such standards exist, the controversy last Term was a hollow one indeed. 53 Jackson v. Georgia, No. 69-5030; Branch v. Texas, No. 69-5031. 238 POWELL, J., dissenting deemed barbarous and inhumane, also condemns punishments that are greatly disproportionate to the crime charged. This reading of the Amendment was first expressed by Mr. Justice Field in his dissenting opinion in O'Neil v. Vermont, 144 U. S. 323, 337 (1892), a case in which a defendant charged with a large number of violations of Vermont's liquor laws received a fine in excess of $6,600, or a 54-year jail sentence if the fine was not paid. The majority refused to consider the question on the ground that the Eighth Amendment did not apply to the States. The dissent, after carefully examining the history of that Amendment and the Fourteenth, concluded that its prohibition was binding on Vermont and that it was directed against "all punishments which by their excessive length or severity are greatly disproportioned to the offences charged." Id., at 339–340.54 The Court, in Weems v. United States, 217 U. S. 349 (1910), adopted Mr. Justice Field's view. The defendant, in Weems, charged with falsifying Government documents, had been sentenced to serve 15 years in cadena temporal, a punishment which included carrying chains at the wrists and ankles and the perpetual loss of the right to vote and hold office. Finding the sentence grossly excessive in length and condition of imprisonment, the Court struck it down. This notion of disproportionality-that particular sentences may be cruelly excessive for particular crimes has been cited with approval in more recent decisions of this Court. See Robinson v. California, 370 U. S., at 667; Trop v. Dulles, 356 U. S., at 100; see also Howard v. Fleming, 191 U. S. 126, 135–136 (1903). These cases, while providing a rationale for gauging the constitutionality of capital sentences imposed for rape, 54 Mr. Justice Harlan, joined by Mr. Justice Brewer, dissented separately but agreed that the State had inflicted a cruel and unusual punishment. Id., at 371. POWELL, J., dissenting 408 U.S. also indicate the existence of necessary limitations on the judicial function. The use of limiting terms in the various expressions of this test found in the opinions—grossly excessive, greatly disproportionate-emphasizes that the Court's power to strike down punishments as excessive must be exercised with the greatest circumspection. As I have noted earlier, nothing in the history of the Cruel and Unusual Punishments Clause indicates that it may properly be utilized by the judiciary to strike down punishments-authorized by legislatures and imposed by juries—in any but the extraordinary case. This Court is not empowered to sit as a court of sentencing review, implementing the personal views of its members on the proper role of penology. To do so is to usurp a function committed to the Legislative Branch and beyond the power and competency of this Court. Operating within these narrow limits, I find it quite impossible to declare the death sentence grossly excessive for all rapes. Rape is widely recognized as among the most serious of violent crimes, as witnessed by the very fact that it is punishable by death in 16 States and by life imprisonment in most other States.55 The several reasons why rape stands so high on the list of serious crimes are well known: It is widely viewed as the most atrocious of intrusions upon the privacy and dignity of the victim; never is the crime committed accidentally; rarely can it be said to be unpremeditated; 55 In addition to the States in which rape is a capital offense, statutes in 28 States prescribe life imprisonment as a permissible punishment for at least some category of rape. Also indicative of the seriousness with which the crime of rape is viewed, is the fact that in nine of the 10 States that have abolished death as a punishment for any crime, the maximum term of years for rape is the same as for first-degree murder. Statistical studies have shown that the average prison term served by rapists is longer than for any category of offense other than murder. J. MacDonald, RapeOffenders and Their Victims 298 (1971). 238 POWELL, J., dissenting 56 often the victim suffers serious physical injury; the psychological impact can often be as great as the physical consequences; in a real sense, the threat of both types of injury is always present. For these reasons, and for the reasons arguing against abolition of the death penalty altogether, the excessiveness rationale provides no basis for rejection of the penalty for rape in all cases. The argument that the death penalty for rape lacks rational justification because less severe punishments might be viewed as accomplishing the proper goals of penology is as inapposite here as it was in considering per se abolition. See Part VI supra. The state of knowledge with respect to the deterrent value of the sentence for this crime is inconclusive.57 Moreover, what has been said about the concept of retribution applies with equal force where the crime is rape. There are many cases in which the sordid, heinous nature of a particular crime, demeaning. humiliating, and often physically or psychologically traumatic, will call for public condemnation. In a period in our country's history when the frequency of this crime is increasing alarmingly, it is indeed a grave event for the Court to take from the States whatever deterrent and retributive weight the death penalty retains. 58 Other less sweeping applications of the disproportionality concept have been suggested. Recently the Fourth Circuit struck down a death sentence in Ralph v. Warden, 438 F. 2d 786 (1970), holding that the death penalty was an appropriate punishment for rape 56 Id., at 63-64; Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1077 (1964). 57 See MacDonald, supra, n. 55, at 314; Chambliss, Types of Deviance and the Effectiveness of Legal Sanctions, 1967 Wis. L. Rev. 703. 58 FBI, Uniform Crime Reports-1970, p. 14 (1971) (during the 1960's the incidence of rape rose 121%). POWELL, J., dissenting 408 U.S. only where life is "endangered." Chief Judge Haynsworth, who joined in the panel's opinion, wrote separately in denying the State of Maryland's petition for rehearing in order to make clear the basis for his joinder. He stated that, for him, the appropriate test was not whether life was endangered, but whether the victim in fact suffered "grievous physical or psychological harm." Id., at 794. See Rudolph v. Alabama, 375 U. S. 889 (1963) (dissent from the denial of certiorari). It seems to me that both of these tests depart from established principles and also raise serious practical problems. How are those cases in which the victim's life is endangered to be distinguished from those in which no danger is found? The threat of serious injury is implicit in the definition of rape; the victim is either forced into submission by physical violence or by the threat of violence. Certainly that test would provide little comfort for either of the rape defendants in the cases presently before us. Both criminal acts were accomplished only after a violent struggle. Petitioner Jackson held a scissors blade against his victim's neck. Petitioner Branch had less difficulty subduing his 65-year-old victim. Both assailants threatened to kill their victims. See MR. JUSTICE DOUGLAS' opinion, ante, at 252253. The alternate test, limiting the penalty to cases in which the victim suffers physical or emotional harm, might present even greater problems of application. While most physical effects may be seen and objectively measured, the emotional impact may be impossible to gauge at any particular point in time. The extent and duration of psychological trauma may not be known or ascertainable prior to the date of trial. While I reject each of these attempts to establish specific categories of cases in which the death penalty may be deemed excessive, I view them as groping |