Furman v. Georgia/Concurrence Marshall
MR. JUSTICE MARSHALL, concurring. the question whether the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. [408 U.S. 238, 315]
In No. 69-5003, Furman was convicted of murder for shooting the father of five children when he discovered that Furman had broken into his home early one morning. Nos. 69-5030 and 69-5031 involve state convictions for forcible rape. Jackson was found guilty of rape during the course of a robbery in the victim's home. The rape was accomplished as he held the pointed ends of scissors at the victim's throat. Branch also was convicted of a rape committed in the victim's home. No weapon was utilized, but physical force and threats of physical force were employed.
The criminal acts with which we are confronted are ugly, vicious, reprehensible acts. Their sheer brutality cannot and should not be minimized. But, we are not called upon to condone the penalized conduct; we are asked only to examine the penalty imposed on each of the petitioners and to determine whether or not it violates the Eighth Amendment. The question then is not whether we condone rape or murder, for surely we do not; it is whether capital punishment is "a punishment no longer consistent with our own self-respect" and, therefore, violative of the Eighth Amendment.
The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint. Hence, we must proceed with caution to answer the question presented. By first examining the historical derivation of the Eighth Amendment and [408 U.S. 238, 316] the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint.
Candor is critical to such an inquiry. All relevant material must be marshaled and sorted and forthrightly examined. We must not only be precise as to the standards of judgment that we are utilizing, but exacting in examining the relevant material in light of those standards.
Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error.
1^ Certiorari was also granted in a fourth case, Aikens v. California, No. 68-5027, but the writ was dismissed after the California Supreme Court held that capital punishment violates the State Constitution. 406 U.S. 813 . See People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, cert. denied, 406 U.S. 958 (1972). The California decision reduced by slightly more than 100 the number of persons currently awaiting execution.
2^ 268 Parl. Deb., H. L. (5th ser.) 703 (1965) (Lord Chancellor Gardiner).
3^ Compare, e. g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470 (1947) (Frankfurter, J., concurring), with F. Frankfurter, Of Law and Men 81 (1956). See In re Anderson, 69 Cal. 2d 613, 634-635, 447 P.2d 117, 131-132 (1968) (Mosk, J., concurring); cf. McGautha v. California, 402 U.S. 183, 226 (1971) (separate opinion of Black, J.); Witherspoon v. Illinois, 391 U.S. 510, 542 (1968) (WHITE, J., dissenting).
4^ See generally Frankel, Book Review, 85 Harv. L. Rev. 354, 362 (1971).