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BRENNAN, J., Dissenting
Opinion
SUPREME COURT OF THE UNITED STATES
428 U.S. 153
Gregg v. Georgia
CERTIORARI TO THE SUPREME COURT OF GEORGIA
No. 74-6257
Argued: March 31, 1976 --- Decided:
July 2, 1976
MR. JUSTICE
BRENNAN, dissenting.
[*]
The Cruel and Unusual
Punishments Clause "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society."
[n1] The opinions of MR. JUSTICE STEWART, MR.
JUSTICE POWELL, and MR. JUSTICE STEVENS today hold that "evolving
standards of decency" require focus not on the essence of the
death penalty itself, but primarily upon the procedures employed
by the State to single out persons to suffer the penalty of death.
Those opinions hold further that, so viewed, the Clause
invalidates the mandatory infliction of the death penalty, but not
its infliction under sentencing procedures that MR. JUSTICE
STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS conclude
adequately safeguard against the risk that the death penalty was
imposed in an arbitrary and capricious manner.
In Furman v. Georgia,
408 U.S. 238, 257 (1972) (concurring opinion), I read "evolving
standards of decency" as requiring focus upon the essence of the
death penalty itself, and not primarily or solely upon the
procedures [p228] under which the
determination to inflict the penalty upon a particular person was
made. I there said:
From the beginning of our
Nation, the punishment of death has stirred acute public
controversy. Although pragmatic arguments for and against the
punishment have been frequently advanced, this longstanding and
heated controversy cannot be explained solely as the result of
differences over the practical wisdom of a particular government
policy. At bottom, the battle has been waged on moral grounds. The
country has debated whether a society for which the dignity of the
individual is the supreme value can, without a fundamental
inconsistency, follow the practice of deliberately putting some of
its members to death. In the United States, as in other nations of
the western world, the struggle about this punishment has been one
between ancient and deeply rooted beliefs in retribution,
atonement or vengeance, on the one hand, and, on the other,
beliefs in the personal value and dignity of the common man that
were born of the democratic movement of the eighteenth century, as
well as beliefs in the scientific approach to an understanding of
the motive forces of human conduct, which are the result of the
growth of the sciences of behavior during the nineteenth and
twentieth centuries.
It is this essentially
moral conflict that forms the backdrop for the past changes in
and the present operation of our system of imposing death as a
punishment for crime.
Id. at 296.
[n2] That continues to be my view. For the Clause
forbidding cruel and unusual punishments under our constitutional
[p229] system of government embodies
in unique degree moral principles restraining the punishments that
our civilized society may impose on those persons who transgress
its laws. Thus, I too say:
For myself, I do not
hesitate to assert the proposition that the only way the law has
progressed from the days of the rack, the screw and the wheel is
the development of moral concepts, or, as stated by the Supreme
Court . . . the application of "evolving standards of decency."
. . .
[n3]
This Court inescapably has the
duty, as the ultimate arbiter of the meaning of our Constitution,
to say whether, when individuals condemned to death stand before
our Bar, "moral concepts" require us to hold that the law has
progressed to the point where we should declare that the
punishment of death, like punishments on the rack, the screw, and
the wheel, is no longer morally tolerable in our civilized society.
[n4] My opinion in Furman v. Georgia
concluded that our civilization and the law had progressed to this
point, and that, therefore, the punishment of death, for whatever
crime and under all circumstances, is "cruel and unusual" in
violation of the Eighth and Fourteenth Amendments of the
Constitution. I shall not again canvass the reasons that led to
that conclusion. I emphasize only that foremost among the "moral
concepts" recognized in our cases and inherent in the Clause is
the primary moral principle that the State, even as it punishes,
must treat its citizens in a manner consistent with their
intrinsic worth as human beings -- a punishment must not be so
severe as to be degrading to human dignity. A judicial
determination [p230] whether the
punishment of death comports with human dignity is therefore not
only permitted, but compelled, by the Clause. 408 U.S. at 270.
I do not understand that the
Court disagrees that,
[i]n comparison to all
other punishments today . . . , the deliberate extinguishment of
human life by the State is uniquely degrading to human dignity.
Id. at 291. For three
of my Brethren hold today that mandatory infliction of the death
penalty constitutes the penalty cruel and unusual punishment. I
perceive no principled basis for this limitation. Death, for
whatever crime and under all circumstances,
is truly an awesome
punishment. The calculated killing of a human being by the State
involves, by its very nature, a denial of the executed person's
humanity. . . . An executed person has indeed "lost the right to
have rights."
Id. at 290. Death is
not only an unusually severe punishment, unusual in its pain, in
its finality, and in its enormity, but it serves no penal purpose
more effectively than a less severe punishment; therefore the
principle inherent in the Clause that prohibits pointless
infliction of excessive punishment when less severe punishment can
adequately achieve the same purposes invalidates the punishment.
Id. at 279.
The fatal constitutional
infirmity in the punishment of death is that it treats
members of the human race
as nonhumans, as objects to be toyed with and discarded. [It is]
thus inconsistent with the fundamental premise of the Clause
that even the vilest criminal remains a human being possessed of
common human dignity.
Id. at 273. As such, it
is a penalty that "subjects the individual to a fate forbidden by
the principle of civilized treatment guaranteed by the [Clause]."
[n5] I therefore would hold,
[p231] on that ground alone, that death is today a cruel
and unusual punishment prohibited by the Clause.
Justice of this kind is
obviously no less shocking than the crime itself, and the new "official"
murder, far from offering redress for the offense committed
against society, adds instead a second defilement to the first.
[n6]
I dissent from the judgments
in No. 74-6257, Gregg v. Georgia, No. 75-5706, Proffitt
v. Florida, and No. 75-5394, Jurek v. Texas, insofar as
each upholds the death sentences challenged in those cases. I
would set aside the death sentences imposed in those cases as
violative of the Eighth and Fourteenth Amendments.
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