-·.

1st DRAFT

SUPREME COURT OF THE UNITED STATES'

No. 68-5027

Petitioner On Writ of Certiorari to the· Earnest James Aikens, Jr.,]

' Supreme Court of Cali-v. f . orma.

State of California.

[May -, 1972]

Memorandum of MR. JusTICE PowELL.

The Court granted certiorari in these cases to con­sider whether the death penalty is any longer a per­missible form of punishment consistent with the constitutional prohibition against cruel and unusual punishments. 403 U. S. 952 (1971). The question is one of grave importance. Our decision, whatever the ultimate resolution, will affect directly the lives of some 700 pers6ns presently under sentence of death in state and federal prisons. It will likewise affect all those throughout the country awaiting trial on charges for which capital punishment is a potential alternative. The impact on these countable few, however, consti­tutes only the most visible consequence which will flow from the resolution of the question we are now called on to decide. Less measurable, but of no less signifi­cance, are the potentially shattering effects these cases may have on the root principles of stare decisis, federal­ism, judicial restraint and-most importantly-separa­tion of powers.

We are urged to reject as not decisive the clearest evidence that the Framers of the Constitution and the authors of the Fourteenth Amendment believed that those documents posed no barrier to the death penalty. We also are asked to set aside an unbroken line of precedent reaffirming the heretofore virtually unques-

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2 AIKENS v. CALIFORNIA

tioned constitutionality of capital punishment. Because of the pervasiveness of the constitutional ruling sought by these petitioners, this suggested departure from estab­lished precedent would of necessity invalidate a stag­gering number of state and federal laws. The capital punishment laws of no less than 40 States and the Dis­trict of Columbia would be nullified. In addition, a dozen provisions of the Criminal Code of the United States and 10 sections of the Uniform Code of Military Justice would be voided. The judgment we arc asked to make would not only ·wipe out laws presently in existence, but would hereafter deny to Congress and to· the legislatures of the 50 Rtates the power to adopt new policies on this most difficult question contrary to the policy selected by this Court. Indeed, it would deny to the people within each State the prerogative to amend their own constitutions to provide for capital punishment even selectively for the most heinous crimes.

In terms of the constitutional role of this Court. the· impact is all the greater because the decision we face· arises in an area squarely within the historic preroga­tive of the legislative branch-both state and federal­to protect the citizenry through the designation of pen­alties for prohibitable conduct. It is the very sort of judgment that the legislative branch is com Jetent to ma ·e and for which the judiciary is ill-equipped .. Throughout our history, Justices of this Court have emphasized the gravity of decisions invalidating legisla­tive JUdgments, admonishing the nine men who sit m1 tliis Bench of the duty of self restramt, especially when called upon to apply the expansive clue rocess anCT crue an unusua pums unent rubrics. I can recall no case m whiCh, m the name of deCichng constitutiOnal questions, this Court has been asked to subordinate na­tional and local democratic processes to such an extent~

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I

The Constitution itself plainly indicates that capital punishment is not per se unconstitutional. The relevant provisions are the Fifth, Eighth , a.ncl Fourteenth Amend­ments. The first of these provides in part:

"No person shall be held to answer for a capital, or otherwise infamous offense, unless on a present­ment or indictment of a Grand Jury ... ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ... nor be deprived of life, liberty or property 'vithout clue process of law .... "

Thus, the Federal Government's power "·as restricted in order to guarantee those charged with crimes that the death penalty could not be exacted without due process or without the impramateur of a grand jury, and that the prosecution would have only a single op­portunity to convict. The Fourteenth Amendment, adopted some 77 years after the Bill of Rights, imposed these clue process limitations of the Fifth Amendment upon the States' power to impose capital punishment.

The Eighth Amendment, adopted at the same time as the Fifth, proscribes "cruel and unusual" punish­ments. In an effort to discern its meaning, much has been written in the opinions of the Court and elsewhere about the history predating the passage of the Eighth Amendment_! That history need not be restated here

1 For n thorough prrRcntnt ion of the history of the Cruel nnd Unusual Punishment Clausr sre 1\11~ . .TusTI<'E MARSHALL's opinion today, at 3-9. Scr :-tlso Weems v. United States, 217 U.S. 349, 389-409 (1910) (Whitr, .T. , di>'>'rntiug;); O'Neil v. l'mnont. 1-!4 U. 8. 323, 337 (1892) (Firld, J., cli~scnting); Robinson v. California, 370 U. S. 660 (19o2); Grrmurci, Nor Crnrl ::md Unusu:-tl Punishments Inflicted: The Orig;innl Mc:-tning, 57 Cnlif. L. R ev. 839 (1969).

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since, whatever the Framers of the Constitution may have intended to prohibit under the "cruel and unusual" language, there cannot be the slightest doubt whether they intended to provide an absolute bar on the Gov­ernment's authority to impose the death penalty . .L11cGautha v. California, 402 U. S. 183, 226 (1971) (Black, J., concurring). As much is made clear by the three references to capital punishment in the Fifth Amendment.~ Indeed, the same body that proposed the Eighth Amendment also provided, in the First Crime Act of 1790, for the death penalty for a number of offenses including murder. 1 Stat. 112.

Of course, the specific prohibitions within the Bill of Rights are limitations on the exercise of power; they are not an affirmative grant of power to the Govern­ment. I, therefore, do not read the several references to capital punishment as foreclosing this Court from considering whether the death penalty in a particular case offends the Eighth and Fourteenth Amendments. Nor are "cruel and unusual punishment" and "due process of law" static concepts whose meaning and scope were sealed at the time of their writing. They are designed to be dynamic and to gain meaning through application to specific circumstances, many of which

2 Additionally, Art. I, § 9, of the Constitution, prohibiting bills of attainder, buttresses the conclusion that capital punishmrnt was an ingrained element of criminal]1tmishment when the Constitution was written. A bill of attainder, as it was primarily known at common lmv, was a legislati\·e declaration of guilt calling for the puniRhment of death. While legislative punishments less than dt'ath were also prohibited by our Constitution, the 11rimary thrust of the prohibition was to bar legislative dmth sentences. The bar was against the forum of punishment; not a~J:ainst the punishment itself. See Ex 1Jarte Garland, i1 U. S. (4 Wall.) 333 (1867); Cummings v. Mis­souri, i1 U. S. (4 Wall.) 277 (1867); Norville, Bill of Attainder­A Rediscovered Weapon Against Discriminatory Legislation, 26 Ore. L. Rev. 78, 86-89 (1947).

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were not contemplated by their authors. While flexi­bility in the application of these broad concepts is one of the hallmarks of our system of government, the Court-in the name of "evolving standards"-is not free to read into the Constitution a meaning which is plainly at variance with its manifest intent. Both the language of the Fifth and Fourteenth Amendments and the history of the Eighth Amendment confirm that the death sentence is not a proscribed form of punishment. Its imposition in some barbaric form or as a penalty wholly disproportionate to the particular criminal act may be adjudged to be cruel and unusual. 3 In making­such a judgment in a case before it, a court may con­sider contemporary standards to the extent they are relevant. While this weighing of a punishment against the Eighth Amendment standard on a case-by-case basis is within the historic process of constitutional adjudi­cation, it is not what 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 '"'hether a particular sentence would be allowed to stand.

The first death case in which the Eighth Amendment

3 Sec Part s II and VII , infra.

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6 AIKENS v . CALIFORNIA

was invoked was Wilkinson v. Utah, 90 U.S. 130 (1878) . A defendant in a territorial court in Utah was found guilty of first degree murder and the judge sentenced him to be "publicly shot until ... dead." I d., at 131. The question before the Court was whether that form of car­rying out a death sentence was cruel and unusual pun­ishment. Noting first that the punishment itself, as distinguished from the mode of its infliction , was "not pretended by the counsel for the prisoner" ( id., at 136-137) to be cruel and unusual, a unanimous Court held:

"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.

Several years later, in In re Kemrnler, 136 U. S. 436· ( 1890), the Court again faced a question involving the method of carrying out a capital sentence. A New York jury had found the petitioner guilty of first-degree mur­der and was sentenced to die by electrocution. On review of a denial of habeas corpus relief by the Supreme Court of New York, this Court was called on to decide whether electrocution, which had only very recently been adopted by the New York Legislature as its means of execution, was impermissibly cruel and unusual in violation of the Fourteenth Amendment.1 Chief Justice Fuller, speaking

~The Court pointed out tktt thr Eighth Amendment applird only to Congress n.ncl not to thr Statrs. The Court's power in relation to st!l t e action \\·as limitrd to protecting priYilcges [tnd immunities !lncl to a~mring dur prorc~~ of lnw, both within the Fourteenth Arncnclrncnt. The trsl-for purposrs of due prorrss-was held to br whether the State hnd rxrrted its nuthority , ""·ithin the limits of tho~c funclamcntnl prinriplrs of liberty and jnstirc which lie at the base of all our ci,·it and political institutions." 1:36 U . S. , at 448. The State of Georgi!l, in No. 69-5003 and No. 69-5030, has placed

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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 bebvccn the penalty itself and the mode of its execution:

"Punishments are cruel vv·hen they involve torture or a lingering death; but the punishment of death is 110t cruel, ·within the meaning of that word as used in the Constitution. It implies something inhuman and barbarous, something more than the mere ex­tinguishment of life." I d., at 447.

A third case exploring the relationship between capital punishment and the Eighth Amendment is Francis v. Resweber, 329 U. S. 459 (1947). The petitioner, a con­victed murderer, " 'as sentenced to death by electrocution. Due to a mechanical failure, the State's first attempt to electrocute him failed. He sought to block a re­execution of the sentence on the ground that to subject him again to the sentence 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,

great cmphnsis on thi~ di~cURRion in Kcmmler and has urged thnt the instnnt. cnses ~hould all br drridrd undrr the more expansive tests of dur prorr~~ rathrr than thr Crurl :1nd Fnu~wd l'uni~hmrnt Clau~r per se. Irrri"pcct in~ whcthrr t hr dreision~ of this Court arc virwed as "incorporating" the Eighth Amrndmrnt. (~rc Robinson v. Cali­fo.rnia, 3i0 U.S. 660 (1962); Pwell v. Texas, 392 U.S. 514 (1968)), it serms clrar that thr tests for applying these two provisions are fundamrntnlly identiral. Compare l\f r . .Ju~t icr Frankfurter's test in Francis \". Resv·ebe.r, 329 U. S. 458, 471 (1947), with Chief Jw;tirc· Warren's trst in 'l'rop v. Dulles, 356 U.S. 86, 100-101 (1958) .

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never questioning the propriety of the death sentence itself.

"The case before us does not call for · an exam­ination into any punishments except that of death. . . . The traditional humanity of modern Anglo-American law forbids the infliction of un­necessary pain in the execution of the death sentence ....

"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.

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 decency more or less universally accepted though not when it treats him by a mode about which opinion is fairly divided." I d., at 469-470.

The dissenting opinion, authored by Mr. Justice Bur­ton, with whom Justices DouGLAS, Murphy, and Rutledge joined, found re-execution to be impermissibly cruel. Yet the opinion 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

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nearly as possible, to no more than that of death itself." !d., at 474.

Each of these cases involved the affirmance of a death sentence where its validity was attacked as violative of standards underlying 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 necesssary founda­tion, those who today would have this Court abolish the death penalty also must reject the opinions in other cases stipulating or asuming the constitutionality of cap­ital punishment. Trop v. Dulles, 356 U. S. 86, 99, 100 ( 1957); W eems v. United States, 217 U. S. 349, 382, 409 ( 1910) (White, J. , joined by Holmes, J. , dissenting)." See also M cGautha v. California, 402 U. S. 183, 226 ( 1971) (Black, J. , concurring); Robinson v. California, 370 U. S. 660, 676 (1962) (DouGLAS, J. , concurring).

The plurality opinion in Trop v. Dulles, supra, is of especial interest since it is this opinion, in large measure, provides the foundation for the present attack on the death penalty.0 It is anomalous that the standard pegged by petitioners--"evolving standards of decency that

s 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 it was cruel. But the infliction of this punishmeJJt was clearly not prohibited by the word cruel, although that word manifc~tly was int ended to forbid the resort to barbarous and unnecessary methods of bodily torture, in executing e\·cn the penalty of death." 217 U.S., at 409 .

G Sec Part III , infra .

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mark the progress of a maturing society" (356 U. S., at 101 )-should be derived from an opinion which so un­qualifiedly rejects their arguments. Chief Justice War­ren, joined by Justices Black, DorGLAS, 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 "·as whether forfeiture of citizenship was a cruel and unusual punishment "·hen imposed on a wartime deserter, who had gone "over the hill" for· less than a day and had 'villingly surrendered. In exam­ining the consequences of the relatively novel punish­·ment 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 constitutiona.11y suspect." Id., at 100.

The plurality's repeated disclaimers of any attack on capital punishment itself must be viewed as more than

7 In footnote 32, al 100-101 the plurality opinion indicntE'~ that denationalization "was never explicitly sanctioned by this Govern­ment until 1040 and neycr tcstrd againRt the Constitution until this day."

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off-hand dicta since those vie\\'S "·ere \\Titten apparently as a rebuttal to the strong language in Mr. Justice Frank­furter's dissent arguing that denationalization could not be a disproportionate penalty for a concededly capital offense.8

The most recent precedents of this Court-WWler­spoon v. Illi110is, 391 U. S. 510 (1968), and McGautha v. California, 403 U. S. 183 (1971)-are also premised to a significant degree on the constitutionality of the death penalty. While the scope of review in both cases "·as limited to questions involving the procedures for selecting juries and regulating their deliberations in cap­ital cases, those opinions were "singularly academic exer­cises" n 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 M c­Gautha, 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." !d., at 207.' 0

Perhaps enough has been said to demonstrate the unswerving position that this Court has taken in opin­ions spanning the last hullClred years. On virtually every

8 "It ~eemH SC[lrcel)· ar~ruablc that loss of citizenship is within thr­Eighth Ammdment's prohibition berau~c cli~proportionatc to an offen~c that is C[lpit[l] and has bern >'O from thr first year of Inde­J1Cndrnre . . . . r~ Constitutional dinleri ir so empty of reason that it ran be RNiou~l:v urged that los:; of citizrn~hip is a, fate wor~e­thnn clmth?" !d., at 125.

n Brirf for HeRpondent in Bmnch v. Texas, No. 69-5031, at 6. 10 ·while the ~rrnnt of ccrtiomri in thc~c ca~es was specifically

limited, 398 U.S. 93() (1970): 402 U.S., at 30(i (Mn .• TUR'l'ICE BHEK­

KAN'& clis:;enting; opinion), they arc nonetheless indicative of the hcrrtoforc nlmo~t unquestioned belief that the penalty was not per se unconstitutional.

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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 Con­titution does not prohibit the penalty. No Justice of the Court, until today, has dissented from this consistent reading of the Constitution. The petitioners in these­cases now before the Court cannot fairly avoid the weight of this impressive 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, as I have supposed, 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. 11 Those who now urge us to set those views aside indeed have a heavy burden.

11 This number includes nil the .Just ices who pnrticipnted in Wil-1.-·inson, Kemmler, and Francis as well as those who joined in the plurality and dissenting opinions in T1'0p and the dissenting opinion in Weems. The imprcssi,·e list of Justices who have joined in sus­taining this view is worth reciting here. They arc, in chronological order:

Clifford Swayne Miller Field Strong Bradley Hunt Waite Harlan Gray

Blatchford Lamar Fuller Brewer White Holme Black Reed Frankfurter DouGLAS

Murphy Jackson Rutledge Burton Vinson Clark Harlan Warren ·whittaker

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III

Petitioners seck to avoid the authority of the fore-· going cases, and the weight of express recognition in the language of 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 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 then Chief Justice Warren speaking for a plurality of the Court in Trap v. Dulles, 356 U. S., at 100-101:

"[T]he \vords of the Amendment are not precise, and ... their scope is not static. The Amendment must draw its meaning from the revolving 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 hearing 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 to human justice." !d., at 378. The same test was offered by Mr. Justice Frankfurter in his separate concurrence in 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 anyone guilty of a crime in a manner that violates standards of decency more or less generally accepted."

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Whether one views the question as one of clue process or of cruel and unusual punishment, as I do for purposes of convenience in this case, the issue is essentially the same. 1 ~ The fundamental premise upon \vhich either rationale is based is that standards as to what consti­tutes cruel and unusual punishment or due process do evolve. Neither the Congress nor the legislature of any State would today tolerate pillorying, branding, whip­ping, or cropping or nailing of the cars-punishments which were in existence during our colonial era."' But should any such punishment be prescribed the courts would certainly enjoin its execution. See Jackson v. Bishop, 404 F. 2d 571 (CAS 1968). Likewise no court would validate any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives. Similarly, there may well be an evolving community attitude with respect to the application of the death sentence for particular crimes." Sec ll1cGautha v. California, 402 U. S., at 242 (DorGLAS, J., dissenting).

But the concept of an evolving meaning to be found in these expansive provisions of the Constitution con­notes consideration of facts and circumstances as well as progressive changes in community standards. The pro­hibition of cruel or disproportionate punishments as offensive to standards of decency reflecting the basic "dignity of man" '" calls for a discriminating case-by­case evaluation of particular crimes and punishments. Y ct petitioners' principal argument in the name of evolv­ing standards, paradoxically, eschews this traditional process of case-by-case inclusion and exclusion. Instead the argument insists upon the absolute prohibition of

'~Sec n. 4, supra. 1 3 Scc, e. g., Ex ]Jarte Wilson, 114 U.S. 417,427-428 (1885). 11 Sec Part VII, infra. 1 " 'Prop v. Dulles, 356 U. S., at 100.

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capital punishment for any crime from hc11ceforward. In calling for a judicial end to this form of penalty al­together, petitioners repudiate the basic premise of their case that standards do evolve.

The prior opinions of this Court upon which the claims in this case are founded counsel against this absolutist approach to the Eighth Amendment. To the contrary, they point with great clarity to the reasons which should compel lifetime Justices of this Court to act with re­straint in applying the Cruel and Unusual Punishment Clause. First. where, as hero, the language of the appli­cable provision provides great leeway and where tHe un­derlyll1g social poliCies arc felt to be of vital importance, tile temptation to read personal reference into the Con­sti u wn IS always great and 'uclo-es must tem) . 1eir j uc gments with special caution to avoid bending to that temptation. lt IS too easy to propound our subjective standards of w1se policy under the rubric of more or less umvcrsally held standards of decency. See Trap "'v. Dulles, 356 U. S., at 103 (Chief Justice Warren), 119 (Mr. Justice Frankfurter); Francis v. Resweber, 329 U. S., at 470-471 (Mr. Justice Frankfurter); Weems Y.

United States, 217 U. S., at 378- 379 (Mr. Justice McKenna).

The second consideration dictating judicial self-re­straint arises from a proper recognition of the respective roles of the legislative and judicial branches. The des­ignation of pumshments for crimes is a matter )ecu ' y wit 1111 1e sp 1cre o 10 state and federal legislative bodies. See, e. g., In re Kemmler, 136 U. S., at 447; Trap v. Dulles, 356 U. S., at 103. When asked to en­croach on the legislative prerogative we are well coun­seled to proceed with the utmost reticence. The review of legislative choices, in the performance of our duty to enforce the Constitution, has been characterized most appropriately by Mr. Justice Holmes as "the gravest

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and most delicate duty that the Court is called on to perform." Blodgett v. Holden, 275 U. S. 142, 147- 148 (1927) (separate concurrence in which Justices Brandeis, Sanford, and Stone joined).

How much graver is the duty when we arc not asked to 1)ass on the constitutionality of a single penalty under the facts of a single case but instead arc urged to over­turn the legislative judgments of Congress and 40 state legislatures? In so doing would we be able to claim, as did the Court in Weems, that we appreciate "to the fullest the wide range of power that the legislature possesses to adapt its penal laws to conditions as they exist and punish crimes of men according to their forms and frequency"? 217 U. S., at 379. I think not. No more cogent statement of the essential separation of pmvers limitations on our prerogative can be found than the admonition of Mr. Justice Frankfurter, dissenting in Trop. His eloquent statement of the traditional view takes on added significance where we arc asked to nullify the legislative judgments of the Congress and four-fifths of the States.

"What is ahvays basic when the pmYer of Con­gress to enact legislation is challenged is the appro­priate approach to judicial review of congressional legislation . . . . When the power of Congress to pass a statute is challenged, the function of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judg­ment of the action of a co-ordinate branch of the Government while keeping unto itself- as it must under our Constitutional system-the final deter­mination of its own power to act. . . .

"Rigorous observation of the difference between limits of power and the wise exercise of power-

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bet"veen questions of authority and questions of prudence-requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for lim­itation of its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Con­stitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do." 356 U. S., at 119-120.

See also Mr. Justice White's dissenting opinion, in which Mr. Justice Holmes joined, in W eerns v. United States, 217 U. S., at 382.

IV The considerations set forth above-the affirmative

references to capital punishment in the Constitution, stare decisis, judicial restraint, separation of powers in both a state and federal context-are dispositive of this case. In the face of these considerations, I can perceive of no basis for this Court assuming the power in 1972 to hold as per se unconstitutional what almost every judge and legislator has considered to be constitutional since 1791. This expression of my views, therefore, properly could end at this point. Yet, in these cases which have attracted national attention and in which prominent ele­ments of the legal profession as well as other groups in our country are urging the Court to do what the legis­lative branch and the people have declined to do, it may be appropriate to express my opinion as to the

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submitted factual basis of petitioners' argument. Their contentions are premised, as indicated above, on the long-accepted view that the concepts embodied in the Eighth and Fourteenth Amendments do evolve. Peti­tioners then assert, in effect, that the process of evolu­tion on the issue before the Court has ended. Petitioners present, with skill and persistence, a list of "objective indicators" which are said to demonstrate tha.t prevailing standards of human decency have progressed to the final point of requiring this Court to hold, for all cases and for all time, that capital punishment is unconstitutional While these factors might prove profoundly convincing if addressed to a legislative body, it can hardly be said that in sum they constitute proof, acceptable to a court, of the proposition for which they are asserted.

Briefly summarized, these proferred indicia of con­temporary standards of decency include the following: (i) a IYOrldwide trend toward the disuse of the death penalty; lt. (ii) the reflection in the scholarly literature of a progressive rejection of capital punishment founded essentially on moral opposition to such treatment; 17

(iii) the decreasing numbers of executions over the last 40 years and especially over the last decade; ,~. ( iv) the

' a Src, e. g., Rrllin , Thr Drnth Prnalt!·, in ALI , Model Prnal Code (Tent. Draft No. 9) (1059) : Unitrd Nations Drp:utment of Eco­nomic and Soria! Affair~ . Cnpitnl Puni~hment (1968); 2 Nationnl Comm'n on Rdorm of Fedrral Criminal L:t\\'R, \Vorkin~ Paper~. 1351 n. 18 (1970) .

. ,. The litrraturc on the moral qurstion i~ legion. Representative collections of the ~irongl!· held view~ on both siclrs may be found in H. Becbu, Thr Drnth Prnalt~· in America (1967), an in Royal Comm'n on Captial Punishmrnt , l\Iinute~ of F:1·idcnce (1949-1953).

18 United State~ Department of .Jm;tice , Bureau of Pri~onR , Na­tional Pri~oncr Statistic~ No. 46 , Capital PuniHhmrnt 1980-19i0 (Aug. 1971) (191 execution~ during the 1960's; no cxrculions since .Tunr ~~ 196i); Prrsident's Comm'n on Law Enforcrmrnt :1nd Admin. of Justice, Report, The Clwllengr of Crime in a Free Society 143

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AIKENS v. CALIFOHNIA 19

small number of death sentences rendered in relation to the number of cases in which it might have been im­posed; '" and ( v) the indication of public abhorrence of

(1967). ("Thr mo~t ~nlirnt chnraetrristic of enpilal puni~hment is thnt it i>< infrNJltl'nil~· applird.")

Petitionrr~ roncrdr, aH t hr~· mu~t, that ]itt lr "·right can br gi,·rn to the lnrk of rxccut iom in rrcrnt year~. A de facto moratorium has rxistrcl for fiye )'Cflr~ nm\· \rhilr cn~r~ chnllrnging the procedures for implrmrnting the rnpi1:d ~entrncc haYr bren re-exnminrd by this Court. ltJ rGa.utlw v. California. supra; Witherspoon v. Illinois, S1t]Jra. The freqnrnry of exrrntion has brrn further diminishecl­nlthough to n lr~~ mrasmahlr drgrer-hy drci~ions on this Court giYing rxpandrd Rrope to thr rriminnl proreclurnl protrctions of the Bill of Rights, especially undrr the Fourth nnd Fifth Amendmrnt. E. g., Mimnda v. A11'zona. 8il-l U. 8. 436 (196G) ; Mapp v. Ohio, 8(i7 U. S. 643 (1961). Add it ionall~·, rrcrnt clerisionR amplif~·ing the ::;rope of the frdcrnl hnbraH corpuH remedy, undoubtedly han• :d~o cont.ribulccl to ihe rrdnrtion in thr number of cxrculions. E. g.,

Fay v. Noia, 372 U.S. 391 (196.)); 'l'mcnsend v. Sain , 372 U. 8. 29;) ( 1068).

1 0 An cxnct figmr for the munber of clrath ~rnlencrs impo~ccl by thr srntrncing authoritie~-.iudgr or jury-in thr ,·nriou~ jmiHdiction~

is difficult to cletrrminc. But thr N:ttiona\ Pri"onrr StatiHtirs show t hr number~ of prrson~ rerri,wl n t the st n t c a ncl feel ern\ prisons undrr ~entrncr of dratb. Thi" number, ho\I'C\'N. dors not nrrount for tho;;c who mny hnve hrPn ~C'ntrnced and rrtnined in !oral farili-1ies during thr prndcn('~' of their npprnl~. Accepting with this re'irn·at ion the NPS figurr~ a~ a minimum. the mo~t recent Rtati~t irs Hhm,· th;tt nt lm~t 1,057 per~on~ were ~rntenrrd to denth during the dernde of the 19(i0'~. NPS, supm, n. 1.S, at 9.

No fully relinblc slnti~tic~ are fl\ ':lilnblr on i he nntionwic\r ratio of clenth sentcnre~ to casrs in which denth ,,·ns a stntutorily J1C'r­mi~~iblr puni~hment. At oral argument, coun~c\ for petitioner in No. G9-5003 c~timatec\ that thr ratio j,.; 12 or 13 to one. Transcript of om! nrgnmenl in Furman v. Georoia, No. G9-5003, at 11. Others kwr found a highrr correlation. Ree 1\feGrc, Capitnl Punishment n~ Seen b~· n Corrretional Admini,.;tmtor, 2R Fed. Prob. (~o. 2) 11, 12 (196.J.) (one out of eHry fi,·r, or 20% of pcro~ns ronvirted of murder rreri,·rc\ the death pen:tlty in California); Bcclau, Death Srntcnces in New .TeN'Y 1907-1960, 19 Rutgcr::; L. Rev. 1 (1964) (between 1916 nne\ 1955, 157 out of 652 per~ons charged with murder

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20 AIKENS v. CALIFORNIA

the penalty reflected in the circumstance that executions arc no longer public affairs. 20 The foregoing is an in­complete summary but it touches the major bases of petitioners' presentation. Added to the scales must also be the strongly urged propositions, first, that the penalty survives public condemnation only through the infre­quency, arbitrariness and discriminatory nature of its application, and, second, that there no longer exists any legitimate justifications for the invocation of the ultimate penalty. These contentions deserve separate considera­tion and will be addressed in the ensuing sections.

Any attempt to discern contemporary standards of decency through the review of objective factors must take into account :::everal overriding considerations which petitioners choose to discount or ignore. In a democracy the first indicator of the public's attitude must always be found in the legislative judgments of the pcople's• chosen representatives. MR. JusTICE MARSHALL's opin­ion today catalogues the salient statistics. Forty States/1

the District of Columbia, and the Federal Government

received the death Rentence in New Jersey-about 20%; between 1956 and 1960, 13 out of 61 received the death sentence-also about 20%); H. Kalven & H. Zicsel, The American Jury 435-436 (1965) (21 of 111 mureiN cnRes rrsulted in death sentences during three representative ycnrs during the mid-1950's); sec nlso Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delinq. 132 (1960).

20 See, e. g., California v. Anderson, No. 13,617 (Cnlif, S. C., Feb. 18, 1972), cert. denied,- U.S.- (1972) (~lip op., at 17-19); Goldberg & Dershowitz, Declaring the Death Penalty Unconstitu­tional, 83 IIarv. L. Rev. 1773, 1783 (1970). But see F. Frank­furter, Of Law and Men 97-9R (1956) (reprint o[ testimony before the Royal Comm'n on Capital Puni~lunent).

21 Nine States hayc nbolished capital punishment without reRort to the courts. Sec II. Beclnu, supra, n. 17, at 39. California has been the only State to abolish capital punishment judicially. Cali­fornia v. Anderson, No. 13,517 (Calif. S. C., Feb. 18, 1972), cert. denied,- U.S.- (1972).

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AIKENS v. CALIFORNIA 21

still authorize the death penalty for a wide variety of crimes. That number has remained relatively static since the end of World War I. Opinion by MH. JusTICE

MAHSHALL, at 26. That does not mean, however, that capital punishmeut has become a forgotten issue in the legislative arena. As recently as 1965 Congress added the death penalty for presidential and vice presidential assassinations. 18 U. S. C. § 1751. A bill proposing the abolition of capital punishment for all federal crimes was introduced in 1967 but failed to reach the Senate floor. 2 ~ The State of New York, in reconsidering its capital crimes, has recently restricted the use of capital punishment to the crimes of murder of a police officer and murder by a person serving a sentence of life im­prisonment. N. Y. Penal Code § 125.30 (McKinney's 1967).

I pause here to reiterate that I am at a loss to under­stand how those urging this Court to pursue a course of absolute abolition as a matter of constitutional judg­ment can draw any support from the New York ex­perience. As is also the case with respect to recent legislative activity in Canada 2 3 and Great Britain,24

N e'" York's decision to restrict the availability of the

22 Hearing:; on S. 1760 before the Subcommittee on Criminal Laws and Procedure of the Senate Committee on the Judiciary (1968).

23 Canada has recently undertaken a five-year experiment-similar to that conducted in England-abolishing the dea th penalty for most crimes. I Acts of Canada (16 & 17 Eliz. II) 145 (1967). However, capital punishment is still prescribed for c;omc crimes, including murder of a JlOlice officer or corrections official, treason , and piracy.

24 Grrat Britain , after many yea rs of coutrovcr:;y over the drath penalty, undertook a five-year experiment in abolition in 1965. Murder (Abolition of Death Penally) Act 1965, 2 Pub. Gen. Acts, c. 71, p. 1577. Although abolition becamr final in 1969, the penalty was retained for seYrral crimes , including trca :;on , piracy, and dock­yard~ arson .

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22 AIKENS v. CALIFOHNIA

death penalty is a product of refined and discriminating legislative j uclgmen t, reflecting not the total rejection of capital punishment as inherently cruel, but indicating a desire to limit it to those circumstances in which legis­lative judgment deems retention to be in the public interest. No such legislative flexibility is permitted by the contrary course petitioners urge this Court to follow.""

In addition to the New York experience, a number of other States have undertaken reconsideration of capital punishment in recent years. In four States the penalty has been put to a vote of the people through public referenda-a means likely to supply objective evidence of community feeling. In Oregon a referendum seeking abolition of capital punishment failed in 1958 but was subsequently approved in 1964.~n Two years later the penalty was approved in Colorado by a wide margi11."7

In Massachusetts, in 1968, in an advisory referendum, the voters there likewise recommended retention of the penalty. In 1970, approximately 64~ of the voters in Illinois approved the penalty."' In addition, the N a­tiona] Commission on Reform of Federal Criminal Laws reports that legislative committees in Massachusetts, Pem1sylvania, and Maryland recommended abolition, while committees in New Jersey and Florida recom­mended retention."n The legislative vie"·s of other States have been summarized by Professor Hugo Bedau in his compilation of sources on capital punishment en­titled The Death Penalty in America:

"\Yhat our legislative representatives think in the two score states which still have the death penalty

~r. Sec n. 51, infra. zn Src H. Brdau, wpm, n. 17, at 233. 27 Ibid. (approximately G5% of the Yotrrs appro\·c:cl thr drath

p(•nalty). ~8 See Brdau, The: Drat h Prn~tlty in America, 35 Frcl. Prob. (No.

2) 32, 35 (1971). 20 Nat!. Comm'n, supra, n. 15, at 1355.

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AIKENS v. CALIFORNIA 23

may b0 inferred from the fate of the bills to repeal or modify the death penalty filed during recent years in the legislatures of more than half of these states. In about a dozen instances, the bills emerged from committee for a vote. But in n~))lt' 0xcept Dela,,·arc did they become la\\". In those stat0s where these bills \Yere brought to the floor of the legislatures, the vote i11 most instances wasn't ev0n close." ""

This recent history of activity \\"ith resp0ct to legislation concerning the death penalty provides no support for the abolitionist position.

The second and even more direct source of information reflecting the public's attitude toward capital punish­ment is the jury. In Witherspoon v. Illinois, 391 U. S. 510 (1968), MR. JusTICE STEvVART, with whom Justices BRENNAN and MAHSHALL joined, characterized the jury's historic function in the sentencing process in the follo\\"­ing terms:

"[T]he jury is given broad discretion to decide \Yhether or not death is 'the proper penalty' in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision.

"A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. . . . Guiclecl by neither rule nor standard, ... a jury that must choose between life imprisonment and capital pun-

'10 H. Brclau. wpm, n. 17, al2!32. Src, e.(!., Connecticut\'. Davis, 158 Conn. 341, 356-359 , 260 A. 2d 587, 595-596 (1969), in which the Connerlirut Ruprrmr Court points out that the state legi~latur<.' had ron~idrred the que~tion of abolition clming the 1961, 1963, 1965, 1967, :-tnd 1969 ses~ion~ :-tnd had "specifically declined to abolish the death penalty" every time.

24

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AIKENS v. CALIFOH NIA

ishment can do little more-and must do nothing less-than express the conscience of the community on the ultimate question of life or death.

"[O]ne of the most important functions any jury can perform in making such a selection is to main­tain a link between contemporary community values and the penal system-a link without which the de­termination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, ... " ~ 1

Any attempt to discern, therefore, where the prevail­ing standards of decency lie must take careful account of the jury's response to the question of capital punish­ment. During the 1960's juries returned in excess of a thousand death sentences, a rate of approximately two per week. Whether it is true that death sentences were returned in less than 107o of the cases as petitioners estimate or whether some higher percentage is more accurate, 32 these totals simply do not support petitioners' assertion at oral argument that "the death penalty is virtually unanimously repudiated and condemned by the conscience of contemporary society." :l~ It is also \Yorthy of note that the annual rate of death sentences has remained relatively constant over the last 10 years and that the figure for 1970-127 sentences-is the

31 /d., at 519 and n. 15. See also McGautha v. California, 402 U.S., at 201-202; Williams v. New York, 337 U.S. 241, 253 (1949) (Murphy, J., dissenting) ("In our criminal courts the jnry sits as the representative of the community."); W. Douglris, We thr Judges 389 (1956); Holmes, Law in Srienrc and Science in Law, 12 Harv. L. Rev. 443, 460 (1899).

32 See n. 19, supra. 33 Transcript of Oral Argmnrnt in Aikens v. California, No. 68-

5027, at 21.

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AIKENS v. CALIFORNIA 25

highest annual total since 1961.'<1 It is true that tho sentencing rate might be expected to rise, rather than remain constant, when the crime rate accelerates as it undoubtedly has in this country. And it may be con­ceded that the constancy in these statistics indicates the unwillingness of juries to demand the ultimate pen­alty in many cases where it might be imposed. But these considerations fall short of indicating that juries are imposing the death penalty with such rarity as to justify this Court in reading into these sentences a public rejection of the death penalty.35

One must conclude, contrary to petitioners' submis­sion, that the indicators most likely to reflect the pub­lic's view-legislative bodies, state referenda and the juries which have the actual responsibility-do not sup­port the contention that evolving standards of decency require total abolition of capital punishment.36 Indeed,

34 The annual totals provided by the Bureau of Prisons are re­printed in footnote 19 of MR. JusTICE BRENNAN's opinion, at 32.

a5 Public opinion polls, while of little probative relevance, cor­roborate substantially the conclusion derived from examining legis­lative activity and jury sentencing-or1inion on capital punishment is "fairly divided." Francis v. Resweber, 327 U. S., at 470 (Mr. Justice Frankfurter, roncurring). See, e. g., Witherspoon v. Illinois, 391 U. S., at 520, n. 16 (1966 poll finding 42% in favor of death penalty and 47% opposed); Goldberg & Dershowitz, supra, n. 15, at 1781 n. 39 (1969 poll shows 51% in favor of retention-the same percentage as in 1961); H. Bedau, The Death Penalty in America 231-241 (1967); Bcdau, The Death Penalty in America, 35 Fed. Prob. (No. 2) 32, 34-35 (1971).

36 If, as petitioner::; suggr::;t , the judirial branch itself reflects the prevailing standards of human decency in our soriety, it may be relevant to note what conclu::;ion state courts have reached on the question of the acceptability of capital punishment in recent years. In the last fi\·r years alone, since the de facto "moratorium" on executions began (see n. 18, supra), 26 States have passed on the constitutionality of the death penalty under the Eighth Amendment

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26 AIKENS v. CALIFOUNIA

the "·eight of the evidence indicates that the public generally has not accepted either the morality Ot' the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But howcYer one may assess the amorphous ebb and flow. of public opinion generally on this volatile issue, this type of inquiry hardly lies within the judicial process of con­stitutional decision. The assessment of popular opinion is a legislative, not a judicial, function.

v Petitioners seek to salvage their thesis by arguing

that the infrequency and discriminatory nature of the

and under !:'imilnr proYi~ion" of most F<late constitutions. Evrry court, except the C:iliforni:1 Ruprrmr Court (California v. Anderson, supra, n. 20), ha~ rulrd the penalty to be constitutional. Those· Stntr~, and the year of thr mo"t recent decision on thr issue, are: Alflbmna (1971); Ariwna (19G9); Colomdo (19G7); Connecticut (1969); Dcbwarr (1971); Florida (19G9); Grorgia (1971); Illinois (1970); Kansas (106R); Krntucky (1971); Loui~iana (1971); l\Tary­land (1971); Mis~ouri (1971); Nrbraska (1967); NeY:lcb (1970); Nrw ,Ter~ry (1971): Nrw Mrxico (196!)); North Carolina (1972); Ohio (1971); Okl:1homa (1971); South Carolina (1970); Trxas (1971); Utah (19o!)); Virginia (1971); Washington (1071). While the majority of thr~r state court opinion~ do not give the i"sue more· than ~ummary expo"ition. m:m~· ha,·c considered the que,;tion at some length, and, indeed, F'omc h:wc con~idered the is"ue under the· "evoh·ing stand:1rcl~" rubric. Srr, e. g., Connecticut v. Davis, 158 Conn. 341, 356-359, 2GO A. 2d 5R7, 595-595 (1969): Louisiana v .. Crook, 253 La. 9Gl, 9G7-970, 221 So. 2d 473, 475-476 (1969); Bartholomey v. llfaryland, 260 i\Tcl. 504, 2n A. 2d 164 (1971); l\'ebraska v. Alvarez, 1R2 N'rb. 35R, :366-367, 154 N. W. 2d 74G, 751-752 (1967); New Me:rico v. Pace, SO N. M. 364, 371-372, 45G P .. 2d 197, 204-205 (1969). Of cour,-r, e\u~· federal eourt which has pa~~ecl on the i;::~ur has rulrcl that the death pennlty is not per se unconstitutional. See, r. (!., Ral7Jh Y. TVarden, 43R F. 2d 7RG, 793 (Ci\4 1971); Jackson v. Dickson, 325 F. 2d 573, 575 (CA9 1963),. crrt. denied, 377 U. S. 957 ( 1964).

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AIKENS v. CALIFORNIA 27

actual resort to the ultimate penalty tends to diffuse public opposition. We are told that the penalty is imposed exclusively on uninfiuential minorities-"the poor, the powerless, the personally ugly and socially un­acceptable." '17 It is urged that this pattern of appli­cation assures that large segments of the public will be either uninformed or will have no reason to measure the punishment against prevailing moral standards.

This argument concedes the unsoundness of peti­tioners' contention, examined above under Part IV, that objective evidence shows a present and widespread coin­munity rejection of the death penalty. It is now said, in effect, not that capital punishment presently offends our citizenry, but that the public would be offended if the penalty were enforced in a nondiscriminatory manner against a significant percentage of those charged with capital crimes and if the public were thereby made aware of the moral issues surrounding capital punish­ment. Rather than merely registering the objective in­dicators on a judicial balance, we are now asked to rest a far-reaching constitutional determination on a pre­diction regarding the subjective judgments of the mass of our people under hypothetical assumptions that may or may not be realistic.

Apart from the impermissibility of basing a consti­tutional judgment of this magnitude on such speculative assumptions, the argument suffers from other defects. If, as petitioners urge, we are to engage in speculation it is not at all certain that the public would experience deep-felt revulsion if the States were to execute as many sentenced capital offenders this year as they exe­cuted in the mid-1930's.38 It seems more likely that

31 Petitioner's Brief in No. 68-5027, at 51. 38 In 1935 ::wailable statistics indicate that 184 persons were exe­

cuted. That is the highest annual total for any year since statistics

'•

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28 AIKENS v . CALIFORNIA

public reaction, rather than being characterized by un­differentiated rejection, would depend upon the facts and circumstances surrounding each particular case.

We who sit on this Court know, from the petitions and appeals which come before us regularly, that brutish and revolting murders continue to occur with disquiet­ing frequency. Indeed, murders are so commonplace in our society that only the most sensational receive significant and sustained publicity. It could hardly be suggested that in any of these highly publicized murder cases-the several senseless assassinations or the too numerous shocking mass murders that have stained this country's recent history-the public has exhibited any signs of "revulsion" at the thought of executing the convicted murderers. The public outcry, as \Ve all know, has been quite to the contrary. Nor is there any ra­tional basis for arguing that the public reaction to any of these crimes would have been muted if the murderer has been "rich and powerful." The demand for the ultimate sanction might \vell have been greater. Fur­thermore, there is little reason to suspect that the pub­lic 's reaction \Yould differ significantly in response to other less publicized murders. It is certainly arguable that many such murders would evoke a public demand for the death penalty rather than a public rejection of that alternative. While there might be specific cases in which capital punishment would be regarded as ex­cessive and shocking to the conscience of the community, one rationally may doubt that the public's dissatisfac-

hnxe become nvnilnblc. NPS . SU]Jra , n . 18. 1935 is the ycnr chosen by petitioners in sta ting their thes i~:

"If, in fn ct, 184 mmdcrer-< were execut ed in thi~ ~·mr 19il , \YC sub­mit it i;: pnlpable thn1 the publi c conscience of the Nation would be profoundly and fundrunentnll~r revolt ed, and that t.he den1h ponnlty for murder would be nboli~hecl forthwith as the atnYistic horror that it is." Petition('r 's Brief in No. 68- 5027, at 26.

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AIKENS v. CALIFORNIA 29

tion with the penalty in particular cases would translate into a demand for absolute abolition.

In pursuing the foregoing speculation, I do not sug­gest that it is relevant to the appropriate disposition of these cases. The purpose of the digression is to in­dicate that judicial decisions cannot be founded on such quicksands of speculations and assumptions however appealing they may seem.

But the discrimination argument does not rest alone on a projection of the assumed effect of more frequent executions on public opinion. Much also is made of the undeniable fact that the death penalty has a greater impact on the lower economic strata of society, which includes a relatively higher percentage of persons of minority racial and ethnic group backgrounds. The ar­gument drawn from this fact is two-pronged. In part it is merely an extension of the speculation approach pursued by petitioners, i. e., that public revulsion is suppressed in apathy because the penalty does not affect the vocal and powerful. This aspect, however, adds little to the infrequency rationalization for public apathy which I have found unpersuasive.

As MR. JusTICE MARSHALL's opinion today demon­strates, the argument does have a more troubling as­pect. It is his contention that if the average citizen \Yere aware of the disproportionate burden of capital punishment borne by the "poor, the ignorant, and the underprivileged," he vvoulcl find the penalty "shocking to his conscience and sense of justice" and would not stand for its further use. See pp. 49-54. While this argument, like the apathy rationale, calls for specula­tion on the part of the Court, it is significant that the two contentions seem to require contradictory assump­tions. The contention that our society's failure to re­pudiate the death penalty is clue to public apathy created by the use of the penalty infrequently and against only

·.

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30 AIKENS v. CALIFORNIA

the less influential elements of society presuppo~es that the public is ·well aware that the penalty is exacted more heavily against those clements and tolerates it only because it is so limited. MR. JusTICE MARSHALL's argument, on the other hand, requires the contrary as­sumption that the public does not know against whom the penalty is enforced and that if the public were educated to this fact it would then find the punishment intolerable. See p. 48. Neither assumption, of course, can claim to be logically accurate: for some acceptance of capital punishment might be a consequence of apathy based on the knowledge of unlikely application, while for others acceptance may grow only out of ignorance. More significantly, however, neither supposition acknowl­edges what is, for me, a more basic flaw.

Certainly the claim that this criminal sanction falls more heavily on relatively impoverished minorities is justified. The "have-nots" in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens. This is, indeed, a tragic byproduct of social and economic deprivation, but it is hardly an argument of constitutional proportions under the Eighth or Four­teenth Amendment. The same discriminatory impact argument could be made with equal force and logic with respect to those sentenced to prison terms. The Due Process Clause admits of no distinction between the deprivation of "life" and the deprivation of "liberty." If discriminatory impact renders capital punishment cruel and unusual, it likewise renders invalid most of the prescribed penalties for crimes of violence. The root causes of the higher incidence of criminal penalties on "minorities and the poor" will not be cured by abol­ishing the system of penalties. Nor, indeed, could any society have a viable system of criminal justice if sane-

·.

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AIKENS v. CALIFORNIA 31

tions were abolished or ameliorated because most of those who commit crimes against their fellow citizens happen to be underprivileged. The basic problem re­sults not from the penalties imposed for criminal conduct but from social and economic factors which have plagued humanity since the beginning of recorded history, frus­trating all efforts to create in any country at any time the perfect society in which there are no "poor," no "minorities" and no "underprivileged." 39 The causes underlying this problem are unrelated to the constitu­tional issue before the Court.

Finally, yet another theory for abolishing the death penalty-reflected in MR JusTICE DouGLAs' opinion today-is predicated on the discriminatory impact argu­ment. Quite apart from measuring the public's accept­ance or rejection of the death penalty under the "standards of decency" rationale, MR. JusTICE DouGLAS finds the punishment cruel and unusual becam:e it is "arbitrarily" invoked. It is argued that "the basic theme of equal protection is implicit" (p. 8) in the Eighth Amendment, and that Amendment is violated when jury sentencing may be characterized as arbitary and discriminatory. Whatever may be the facts with respect to jury sentencing, this argument calls for a

39 Not all murders, and certainly not all crimes, are committed by persons classifiable as "underprivileged." A not insignificant per­centage of crimes of violence, ranging from murder to street mug­ging, are committed by professional criminals who willingly choose to prey upon society as an easy and remunerative way of life. More­over, the terms "underprivileged," the "poor" and the "powerless" are relative and inexact, often conveying subjective connotations which vary widely depending upon the viewpoint and purpose of the user. There are some who argue, for example, that the "under­privileged" in this country arc no longer "powerless" in terms of political influence, especially as compared with the less well-organized and less articulate "middle income" groups.

·. ~,. . r ~ . I ! •f' · ''-'t

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68-502i-l\TEMO (A)

32 AIKENS v. CALIFORNIA

reconsideration of the "standards" aspects of the Court's decision in 111cGautha v. California, 402 U.S. 183 (1971). Although that is the thrust of MR. JusTICE DouGLASr opinion today, I see no reason to reassess the standards question considered so carefully in Mr. Justi~ Harlan's opinion for the Court last Term. Having so recently recognized and sanctioned the jury's "untrammelled dis­cr·ction" (id., at 207) to impose the death penalty, it is difficult to see how the Court can now hold the entire· process constitutionally defective under the Eighth Amendment. For all of these reasons I find little merit in the various discrimination arguments at least in the several lights in \Yhich it has been cast in these cases.

Although not pressed by any of the petitioners today, a different argument, predicated on the Equal Protec­tion Clause's prohibition against discriminatory systems of punishment, might well be made. If a Negro de­fendant, for instance, could demonstrate that members of his race were being singled out for more severe pun­ishment than others charged with the same offense, a constitutional violation might be established. This was the contention made in Maxwell v. Bishop, 398 F. 2d 138 (CAS 1968), vacated and remanded on other grounds, 398 U. S. 262 (1970), in which the Eighth Circuit was asked to issue a writ of habeas corpus setting aside a death sentence imposed on a Negro defendant convicted of rape. In that case substantial statistical evidence was introduced tending to show a pronounced dispro­portion in the number of Negroes receiving death sen­tences for rape in parts of Arkansas and else•vhere in the South. That eveidence was not excluded but "as found to be insufficient to show discrimination in sen­tencing in Maxwell's trial. MR. JusTICE BLACKM'CN,

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AU<ENS v. CALIFOHNIA 33

then sitting on the Eighth Circuit Court of Appeals, concluded:

"The petitioner's argument is a11 interesting one and we are not disposed to sa.y that it could not have some validity and weight in certain circum­stances. Like the trial court, howeYer ... we feel that the argument docs not have validity and per­tinent application to Maxwell's case ....

"We are not yet ready to condemn and upset the result reached in every case of a Negro rape defendant in the State of Arkansas on the basis of broad theories of social and statistical injustice ....

"We do not say there is no ground for suspicion that the death penalty for rape may have been discriminatorily applied over the decades in that large area of states whose statutes provide for it. There arc recognizable indicators of this. But ... improper state practice of the past does not auto­matically invalidate a procedure of the present .... " !d., at 146-148.

I agree that discriminatory application of the death penalty in the past, admittedly indefensible, is no jus­tification for holding today that capital punishment in invalid in all cases in which sentences were handed out to members of the class discriminated against. But Maxwell docs point the way to a means of raising the equal protection challenge in any case in which the death penalty may have been imposcd.40

The possibility of racial discrimination in the trial and sentencing process has diminished in recent yea.rs. The

40 Sec Francis v. Rcstceber, :129 U. S. 450, 465 ( 19-1-7), in which the Court intimated that a showing that a State \\'flR permitting the impo~ition of more Rc1·ere puni~hmcnts on some convicted defend­ants than on other::; similar.ly situated would constitute a denial of equal protection.

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total segregation of our society in decades past, which contributed substantially to the severity of punishment for interracial crimes, is now no longer prevalent in this country. Likewise the day is past when juries did not represent the minority group elements of the commu­nity. The assurance of fair trials for all citizens is greater today than at any previous time in our history. Because standards of criminal justice have "evolved" in a manner favorable to the accused, discriminatory imposition of capital punishment is far less likely today than in the past.

VI Petitioner in Branch v. Texas, No. 69-5031, and to

a lesser extent the petitioners in the other cases before us today, urge that capital punishment is cruel and unusual because it no longer serves any rational legisla­tive interests. Before turning to consider whether any of the traditional aims of punishment justify the death penalty, two prefatory remarks are appropriate.

First, I find no support-in the language of the Con­stitution, in its history, or in the cases arising under it-for the view that this Court may invalidate a cate­gory of penalties because we deem less severe penalties adequate to serve the ends of penalogy. While the cases affirm our authority to prohibit punishments which are cruelly inhumane (e. g., Wilkinson v. Utah, 99 U. S., at 135-136; In 1·e Kemmler, 136 U. S., at 447), and punishments which are cruelly excessive in that they are disproportionate to particular crimes (see Part VII, infra), the precedents of this Court afford no basis for the striking dmvn of a particular form of punishment because we may be persuaded that means less, stringent would be equally efficacious.

Secondly, if we were free to question the justifications for the use of capital punishment, a heavy burden would rest on those who attack the legislatures' judgment to

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prove the lack of rational justifications. This Court has long held that legislative decisions in this area, which lies "·ithin the special competency of that branch, are entitled to a presumption of regularity. See, e. g., Trap v. Dulles, 356 U. S., at 103; Francis v. Resweber, 329 U. S., at 470 (Frankfurter, J., concurring); ·weems v. United States, 217 U. S., at 378-379; In re Kemmler, 136 U. S., at 449.

I come now to consider, subject to the reservations above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution-though popular for centuries-is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions and has never heretofore found it an impermissible basis. In Williams v. New Y ark, 337 U. S. 241 ( 1944), Mr. Justice Black stated that,

"Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of crim­inal jurisprudence." !d., at 247-248.

That the Court did not, however, reject retribution alto­gether, is made clear by the fact that the record in the case indicated that one of the reasons compelling the trial judge to impose the death penalty was the sense of revulsion he experienced because of the "shocking details of the crime." !d., at 244. It 'vas quite clear that the trial judge's sentence-upheld by this Court­was not motivated by goals of "reformation and rehabil­itation." 11 Similarly, MR. JusTICE MARSHALL noted in

4Iln Morissette v. United States, 342 U.S. 246 (1952), Mr. Jus­tice Jackson spoke of "the tardy and unfini::;hed substitution of de­terrence and reformation in place of retaliation and Yengeanre as the motiYation for public prosecution." !d., at 250-251. He also noted that the penalties for im·asion::; of the rights of property are

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36 AIKENS v. CALIFORNIA

his plurality opinion in Powell v. Texas, 392 U. S. 514, 530 (1968), that this Court "has never held that any­thillg in the Constitution req uircs that penal sanctions be designed solely to achieve therapeutic or rehabilita­tive effects." ·~

While retribution alone seems an unworthy justifica­tion in a moral sense, its utility in a system of criminal justice requiring public support long has been recognized. Lord Denning, Master of the Rolls of the Co.urt of Ap­peal in England, testified on this subject before the British Royal Commission on Capital Punishment:

"Many are inclined to test the efficacy of punish­ment solely by its value as a deterrent: but this is too narrow a view. Punishment is the way in which society expresses its denunciation of wrong doing: in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deter­rent or reformative or preventive and nothing else. If this were so, we should not send to prison a man who was guilty of motor manslaughter, but only disqualify him from driving; but would public opinion be content with this? The truth is that some crimes are so outrageous that society insists

high ns n, ronRcqucnrc of thr "public dcmnnd for retribution." !d., at. 260.

4 ~ Sec nL~o Robinson '"· California, 370 U. S. 660, 674 (1962) (DouGLAS, J .. roneurring) ; Francis v. Resweber, 329 U. S. 459, 470-471 (1947) (Mr. Ju~ticc Frankfurtrr'R ndmonition that the Court is not cmpowrrrd to art ~imp!~· brcau8r of "frclings of rcvul~ion agninst the State's in~istcnrr on it~ pound of flrRh"); United States v. Lovett, 328 1T. S. 303, 324 (1946) (Frnnkfurtcr, .J .. concurring). ("PuniRhmcnt prr~upposr~ nn offrn>'r, not nrrr~~nrily an art previ­ously derlarrd rrimin:ll. hut an art for wh.ieh rrt rihut ion i~ rxnrt cd."}

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on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deter­rent or not." "1

The view expressed by Lord Denning was cited approv­ingly in the Royal Commission's Report, recognizing "a strong and widespread demand for retribution." 44 The view, moreover, is not without respectable support in the jurisprudential literature in this country/" despite a substantial body of opinion to the contrary.'n And it is conceded on all sides that not infrequently cases arise which are so shocking or offensive that the public demands the ultimate penalty for the transgressor.

Deterrence is a more appealing justification, although opinions again differ widely. Indeed, the deterrence issue lies at the heart of much of the debate between the abolitionists and retentionists." Statistical studies, based primarily on trends in States which have abolished the penalty. tend to support the view that the death penalty has not been proved to be a superior deterrent.•H The validity of this conclusion has been disputed by

40 Royal Comm'n on Cnpti:1l Punii"hrnent , Minutes of EYidence, 207 (1949-1953) (Stntement. of Lord Denning).

44 Ro~·a l Comm'n on Cnpitnl Puni~hment, R eport, at 18, ~53 (1949-1953) (Cmd. No. 8932).

•u l\1. Cohen. Ren son nnd Law 50 (1950) ; H. Pnckcr, The Limit s of the Criminal Sm1etion 11-12 (1958); Jinrt , The Aims of the Criminnl Law, 23 Lnw & Contrmp. Prob. 401 (19.58).

•G Thr nuthorities nrc roUcrtcd in Commrnt, The Death Penalty Cn~cs, 50 Calif. L. Rev . 1268, 1297-1301 (19fi8). The competing contentions nrc summarized in the Working Pnpcrs of the Nat!. Comm'n on Reform of Frdrrnl Crim. Laws, supra. n. 11 , nt 1358-1359. Sec nl~o the persun;; i,·c trrntmrnt of this i~suc by Dr. I<nrll\fenningcr in The Crime of Punishm('J]t 190-218 (1966) .

4 7 Sec e. g .. H. Bcdnu . The Drnth Penalty in America 260 (1967) ; Nntl. Comm'n, supm, n . 16, at 1352.

1 ' Sec Sellin, Tho Drath Pcn ~1 lty , supra. n. 16, nt 19-52.

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some, H• as the studies do not support the proposition that the death penalty has no deterrent effect on any crime. On the basis of the literature and studies cur­rently available, I find myself in agreement with the conclusions drawn by the Royal Commission follo·wing its exhaustive study of this issue:

"The general conclusion which we reach, after care­ful review of all the evidence we have been able to obtain as to the deterrent effect of capital pun­ishment, may be stated as follows. Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not op­erate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. It is accordingly important to view this question in a just perspective and not base a penal policy in relation to murder on exaggerated esti­mates of the uniquely deterrent force of the death penalty.r.o

Only recently this Court was called on to consider the deterrence argument in relation to punishment by fines for public drunkenness. Powell v. Texas, 392 U. S. 514 (1968). The Court was unwilling to strike down the Texas statute on grounds that it lacked a rational foun­dation. What MR. JusTICE MARSHALL s,aid there would seem to have equal applicability in this case:

"The long-standing and still raging debate over the validity of the deterrence justification for penal

40 The countervailing considerations, tending to undercut the force of Profe:;sor Sellin'~ statistir:1l studies, arc collected in Nat!. Comm'n, supra, n. 16, at 1354; H. Bed:m, supra, n. 47, at 265-266; Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw. U. L. Rev. 433, 455-460 (1957).

50 Report of the Royal Comm'n, supm, n. 44, at 24, ,f 68.

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sanctions has not reached any sufficiently clear con­clusions to permit it to be said that such sanctions are ineffective in any particular context for any par­ticular group of people \Vho are able to appreciate the consequences of their acts .... " Id., at 531.

As stated above in Parts II, III. and IV, in view of the explicit language in the Fifth Amendment recog­nizing the permissibility of capital punishment and the repeated affirmance thereof by this Court, I do not think we are free to make the judgment urged upon us by petitioners. But even if I held a different view, I could not conclude that petitioners have carried the requisite burden of showing that there is no rational justification for the legislative enactments they would strike down. 51 If the evidence and arguments were ad­dressed to a legislative body they would deserve and command respect and support. But they fall far short of 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 upon convictions for rape.52 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. The notion that

" 1 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 di~senting opinions in McGautha v. California, 402 U. S. 18:~ (1971). The argument in that case centered on the proposition that due proce8s requires that the stand­ards governing the jury's cxerci8e of its ~:;entencing function be elucidated. A~:; lVIR. Jus·rrcB BRJmNAN's di~:;~:;ent makes clear, what­CI"Cl' standards might be thought to exist ari~e out of the list of justi­fications for the death penalty-retribution, deterrence, etc. ld., at 284. If no ~:;uch ~:; t;mdarcls exist, the controversy last Term was a hollow one indeed.

52 Jackson v. Geogria, No. 69-5030; Branch v. Texas, No. 69-5031..

..

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40 AIKENS v. CALIFORNIA

the Eighth Amendment prohibits punishments \\·hich arc deemed disproportionate finds some support in our opinions construing tho terms "cruel and unusual." 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 cha.rgod with a large number of violations of Vermont's liquor la,vs received a fine in excess of $6,600. And, if the fine was not paid, he " ·as to serve a 54-year jail sentence. The majority refused to consider the ques­tion on the ground that tho Eighth Amendment did not apply to the States. Tho dissent, after carefully exam­ining the history of that Amendment and the Fourteenth concluded that its inhibition was binding on Vermont, and that it was directed against "all punishments which by their excessive length or severity arc greatly dispro­portionate to the offenses charged." ld., at 339- 340.""

The Court, in TV eems v. United States, 217 U. S. 349 (1910), adopted Mr. Justice Field's view. Tho defend­ant in this case, charged with falsifying Government documents, had boon sentenced to serve 15 years in cadena temporal, a punishment which included ca.rrying chains at the wrists and ankles, and the perpetual loss of the right to vote and hold office. Finding tho sen­tence grossly excessive in length and condition of im­prisonment, the Court struck is clown. These expressions of disproportionality- that particular sentences may be cruelly excessive for particular crimes--have boon cited with approval in more recent decisions of this Court. Sec Robinson v. California, 370 U. S. 660, 667 (1962); 'Prop Y. Dulles, 356 U.S. 86, 100 (1958); see also Howard v. Fleming, 141 U. S. 126, 135- 136 (1903).

" 3 Mr. Jw•tire Harlan, joined by Mr . .lustier Brewer, di~~rnt cd

separately in this rase but cmtc·ut-rrd in the ronrlu~ion that the Stat~ had inflicted a cruel and mmsual punishmt'nt. !d., at 371.

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Recently the Fourth Circuit relied on the concept of eli proportionality to strike down a death sentence for rape. Ralph v. Warden, 438 F. 2d 786 (CA4 1970). Unwilling, however, to abolish the death penalty for every rape conviction, the court held the punishment excessive where lifo was not "endangered." Chief Judge H aynsworth, 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 vote. 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." ld., at 744. His separate statement is based in part on the recognition that to some extent life is always en­dangered by forcible rapo."1

We are presented then with a range of choices: should death be permitted only where the victim is in fact in­jured, or where the victim is threatened with injury, or should we preclude usc of the penalty altogether? This is precisely the sort of choice that, in my view, this Court is not qualified to make. For the sa.me rea­sons that we cannot upsct laws calling for the death sentence for homicide and other serious crimes, we are precluded from wiping away tho penalty for this par­ticular crime. The state of knowledge with respect to the deterrent value of tho sentence is indecisive."" Moreover, what has been said about the concept of retribution applies with equal force whore the crime is rape. There are many cases in which the sordid, heinous nature of a particular crime, demeaning, humiliating

r.1 l\hrDonald, Hape-Offender,.; and Their Virtims 63-64 (1971); Packer, Making the PuniRhment Fit the Crime, 77 H:uY. L. Rev .. 1071, 1077 (1964).

r.r. Sec l\IncDonald, supra, n. 5-I-, nt 314; Chambliss, Types of DrYianre :mel the Efferti,·ene~s of Leg;tl SnnrtionR, 1967 Wis. L. ReY. 703.

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and often physically traumatic, will call out for public reprobation. In a period in our country's history when the frequency of this crime is steadily increasing Gr. it would be a grave event if the Court were to take from the States whatever deterrent and retributive weight the death penalty retains.

The cases establishing the foundation for the test of excessiveness under the Eighth Amendment uniformly teach that the Court is not empowered to sit as a court of sentencing review to determine fine shadings of sever­ity in the sentences handed down by juries. We do not sit to second-guess their decisions. Nothing in the history of this country's adoption of the Cruel and Un­usual Punishment Clause indicates that it was ever viewed as a tool to be invoked by the judiciary in any but the extraordinary case. Only when the Court has found a punishment grossly excessive has it deemed affirmative action to be appropriate. "7 Without this restraint on our review of sentences, little would stand in the way of the free implementation of our personal evaluations of the proper role of penology. We then would have successfully usurped not only the legisla-

56 FB1, Uniform Crime Reports for the United States 1970, 14 (1971) (during thr 1960's the incidence of rape rose 121%).

57 While the disproportionality test may not be used either to strike down the death penalty for rape altogether or to install this Court as a tribunal of sentencing review, in my view that test may have application to specific cases. Its application should be limited to the rare, aberrant case in which the death penalty may be deemed grossly excessive. If, for example, a case were to arise involving a conviction and death sentence for "statutory" rape unaccompanied by any of the aggravating circumstances of force and violence usually associated with rape, a court might well hold-depending on the peculiar facts of the individual ca ·c--that the death sentence wns cruelly excessive. This is the teaching of the O'Neil dissent and the subsequent opinions that have followed it. Neither of the rape cases before the Court todny approaches this category of extreme excessiveness.

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tive function, but also would have imposed our views over the judgments of sentencing authorities throughout the country.

VIII

I now return to the overriding question in these cases: ''"hether this Court has the power, acting in conformity with the Constitution, to abolish capital punishment for all crimes and under all circumstances from hence­forward. It is important to keep in focus the enormity of the decision proposed. Not only would it invalidate hundreds of state and federal laws, it would deprive, those jurisdictions of the power to legislate with respect to capital punishment in the future. Nothing short of an amendment to the United States Constitution could reverse our judgment. Meanwhile, all flexibility will have been foreclosed. The normal democratic processes, as well as the opportunities for the several States to respond to the will of their people expressed through ballot referenda (as in Massachusetts, Illinois, and Col­orado),58 will be shut off.

The sobering disadvantage of constitutional adjudica­tion of this magnitude is the universality and perma­nence of the judgment. The enduring merit of legislative action is its responsiveness to the democratic process, and to revision and change: mistaken judgments may be corrected and refinements perfected. In Eng­land 59 and Canada 60 these critical choices were made after studies canvassing all competing views, and revi­sions may be made in light of experience.61

58 Sec text accompanying nn. 27 & 28, supra. " 9 Sec n. 24, supra. Go Sec n. 23, supra. 61 Recent legislative activity in New York Sta tc serves to under­

line the preferability of legislative action over constitutional adjudi­cation. New York abolished the death penalty for murder in 1965, !raving only a few crimes for which the penalty is still available. See text accompanying n. 25, wpm. On April 27, 1972, a bill, which

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As recently as 1967 a presidential commission did consider, as part of an overall study of crime in this country, whether the death penalty should be abolished. The commission's unanimous recommendation was as follO\YS:

"The question whether capital punishment is an appropriate sanction is a policy decision to be made by each State. Where it is retained, the types of offenses for which it is available should be strictly limited, and the law should be enforced in an even­handed and nondiscriminatory manner, with pro­cedures for review of death sentences that are fair and expeditious. When a State finds that it cannot administer the penalty in such a manner, or that the death penalty is being imposed but not carried into effect, the penalty should be abandoned.""~

would base restored the death penally was considC'I'ed by the Slate As~rmbly. After srvernl hours of hratrd rlrbate the bill 1ns nar­rowly defeated b~r a Yote of 65 to 59. N. Y. Times, April 28. 1972, a.t 1, rol. 1. After ~eYen year;; of di~ur of thr death penalty the repm,mtnti,·es of the people in that State had not rome finally to rest on the que~tion of capital puni~hment. Becau~e the 1965 derision hnd been the produrt of the popular will it could hnYe been undone by nn exerci~e of the same democratic processes. No such flexibilti~· would be permitted if nbolition were to flow from con­stitutional ndjudiention.

n~ Pre,;idrnt'~ Commi~><ion on Law Enforcement and Administra­tion of .Jn~tire, The Challenge of Crime in n Free Society 143 (1967) (rhairrd by Ni<·holas Kntzcnbnch, then Attorney Genernl of the United States). The text of the Report staled, among other things, that the abolition of the dcnth pen:1lty "is being widrly debated in the states"; that it is "impo~~ible to say with certainty whether ea.pital punishment ~ignificnntl~· rrciuC'es the incidence of heinous crimes"; that "whate1·er view~ one may ha1·e on the efficacy of the death penalty as a deterrent, it clearly has an unde~irable impact on the administration of criminal just icc"; that "~ome members of the Commi~sion fayor th<' abolition of rapital puni~hmcnt, while other members f:wor its retention"; and that "all member::; of the

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The thrust of the Commission's recommendation, as pres­ently relevant, is that this question "is a policy decision to be made by each state." There is no hint that this decision could or should be made by the Judicial Branch.

The National Commission on Reform of Federal Crim­inal Laws also considered the capital punishment issue. The introductory commentary of its final report states that "a sharp division [existed] within the Commis­sion on the subject of capital punishment, although a majority favored its abolition." 6~ Again, consideration of the question was directed to the propriety of retention or abolition as a legislative matter. There was no sug­gestion that the difference of opinion existing among commission members, and generally across the country, could or should be resolved in one stroke by a vote of this Court.61 Similar activity is evident at the state level with re-evaluation having been undertaken by spe­cial legislative committees in some States and by public ballot in others.6

"

We are now asked to put an end to this laudable trend of public concern. With deference and respect for the views of the Justices who differ, it seems to me

Commission agree that the present situation in th<:> administration of the death penalty in many stntes is intolerable." !d., at 143. As a member of this Presidential Commission I subscribed then, and do now, to the recommendntions and views above quoted.

63 Final Report of the Natl. Comm'n on Reform of the Federal Criminal Lmvs 310 (1971).

64 The American Law Institute, n ftcr years of study, decided not to take an official position on the question of capital punishment, although the Advisory Committee favored abolition by a vote of 18-2. The Council was more evenly divided but all were in agreement that mnny States would undoubtedly retain the puniRhment and that, tlwrefore, the Institute's efforts should be directed toward providing standnrds for its implementation. ALI, Modo! Penal Code, 65 (Tent. draft No.9, 1959).

0" Sec text accompnnying nn. 26 through 30, supra.

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that all of thes€ studies-both in this country and else­where-suggest that as a matter of policy and precedent this is a classic case for the exercise of our oft-annou11ced allegiance to judicial restraint. I know of no case in which greater gravity and delicacy has attached to the duty that this Court is called on to perform whenever legislation-state or federal-is challenged on constitu­tional grounds.nn It seems to me that the sweeping judicial action sought in these cases reflects a basic l o m and con clence in the democratic process. Many may regret, as I do, the failure of some legislative bodies to address the capital pumshment issue with greater frankness or effectiveness. Many might decry their f_~il­ure either to abolish the p'enalty entirely or selectively, to to establish nond1scnmmatory standards for its en- • forcement. But impat10nce with the slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic )Owers. Harory has ere eon a rnore appropriate opportunity for this Court to heed the philowphy of Mr. Justice Oliver Wen­dell Holmes. As Mr. Justice Frankfurther reminded the Court in Trop:

"the whole of [Mr. Justice Holmes'] work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the act of government, it stood as the sole bulwark against unwisdom or excesses of the moment." 356 U. S., at 128.

66 Blodgett v. If olden, 275 U. S. 142, 148 (1927) (Mr . .Justice Holmes, concurring). Sec also Trop v. Dulles, 356 U. S., at 128 (Mr. Justice Frnnkfurler, discicnling):

"The awesome power of this Court to invalidate ... lcgi~lation, because in practice it is bound only by our own prudence in discern­ing the limits of the Court's Constitutional function, must be exer­cised with the utmost restr:1int."