JUSTICES BRENNAN & MARSHALLJustices Brennan and Marshall were constitutionally opposed to the death penalty - no matter the circumstance. In Justice Brennan's opinion, he compared the administration of the death penalty to the “barbaric punishments condemned by history.”(1) These included severely painful punishments such as the thumbscrew and the iron boot. He next argued that the state should not arbitrarily apply such a severe and morally reprehensible punishment. Furthermore, he showed that the infrequency with which courts administered the death penalty demonstrated it was an outdated process that no longer reflected the moral consensus of society; he explained, “the belief murderers and rapists deserve to die is inconsistent with the execution of a random few.” (2) Lastly, he argued that the death penalty serves no purpose of punishment more effectively than a less severe one, such as life in prison. (3)
Justice Marshall concurred most heavily with Justice Brennan’s final point, as he argued that capital punishment was “unconstitutionally excessive” because it did not carry out any legitimate objective of punishment. He viewed retribution for its own sake as improper and cited no statistics showing the deterrent effect of the death penalty.(4) |
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JUSTICES DOUGLAS, STEWART & WHITEJustices Douglas, Stewart, and White disagreed with the premise that the death penalty per se was unconstitutional. (5) They argued that the sentencing procedure of the day was constitutionally defective and “pregnant with discrimination.” (6) They acknowledged the adverse selection of black and poor defendants to be sentenced to death. (7) Justice Stewart famously stated that “death sentences are cruel and unusual in the same way being struck by lightning is cruel and unusual.” (8) He thought those sentenced to death were the unfortunate victims of sheer bad luck. All concurred that in the present day, there was no meaningful way to discern who should and who should not be put to death.
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CHIEF JUSTICE BURGER and JUSTICES BLACKMUN, POWELL & REHNQUISTThe dissenters argued against the majority on the grounds that the death penalty was a widely accepted practice at the time of the adoption of the Constitution and, therefore, could not be unconstitutional. They acknowledged the declining frequency with which the courts applied it in present-day but attributed it to the idea that the courts should only impose such a severe sentence on the most wantonly vile criminals. (9) Finally, they argued that about a year earlier, the Supreme Court had decided that jury discretion should suffice; thus, the courts did not violate due process under the 14th amendment. (10) In accordance, they argued it was all too common and dangerous to read personal preference into the constitutionality of a matter and was not in keeping with their duty to the Supreme Court and the American people. (11)
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