Furman v. Georgia/Concurrence Stewart
MR. JUSTICE STEWART, concurring.
The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.
For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (Brandeis, J., concurring).
The opinions of other Justices today have set out in admirable and thorough detail the origins and judicial history of the Eighth Amendment's guarantee against the infliction of cruel and unusual punishments,  and the origin and judicial history of capital punishment.  There [p307] is thus no need for me to review the historical materials here, and what I have to say can, therefore, be briefly stated. Legislatures — state and federal — have sometimes specified that the penalty of death shall be the mandatory punishment for every person convicted of engaging in certain designated criminal conduct. Congress, for example, has provided that anyone convicted of acting as a spy for the enemy in time of war shall be put to death.  The Rhode Island Legislature has ordained the death penalty for a life term prisoner who commits murder.  Massachusetts has passed a law imposing the death penalty upon anyone convicted of murder in the commission of a forcible rape.  An Ohio law imposes the mandatory penalty of death upon the assassin of the President of the United States or the Governor of a State. 
If we were reviewing death sentences imposed under these or similar laws, we would be faced with the need to decide whether capital punishment is unconstitutional for all crimes and under all circumstances. We would need to decide whether a legislature — state or federal — could constitutionally determine that certain criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator, and that, despite the inconclusive empirical evidence,  only [p308] the automatic penalty of death will provide maximum deterrence.
On that score I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.
The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape.  And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder.  In a word, neither State [p309] has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses. As MR. JUSTICE WHITE so tellingly puts it, the "legislative will is not frustrated if the penalty is never imposed." Post at 311.
Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660. In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. Weems v. United States, 217 U.S. 349. In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare.  But I do not rest my conclusion upon these two propositions alone.
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968,  many just as reprehensible as these, the petitioners are among a capriciously [p310] selected random handful upon whom the sentence of death has in fact been imposed.  My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.  See McLaughlin v. Florida, 379 U.S. 184. But racial discrimination has not been proved,  and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.
For these reasons I concur in the judgments of the Court.
^ . See , post, at 376-379; concurring opinion of MR. JUSTICE DOUGLAS, ante at 242-244; concurring opinion of MR. JUSTICE BRENNAN, ante at 258-269; concurring opinion of MR. JUSTICE MARSHALL, post at 316-328; dissenting opinion of MR. JUSTICE BLACKMUN, post at 407-409; dissenting opinion of MR. JUSTICE POWELL, post at 421-427.
^ . See dissenting opinion of THE CHIEF JUSTICE, post at 380; concurring opinion of MR. JUSTICE BRENNAN, ante at 282-285; concurring opinion of MR. JUSTICE MARSHALL, post at 333-341; dissenting opinion of MR. JUSTICE POWELL, post at 421-424.
^ . 10 U.S.C. § 906.
^ . R.I.Gen.Laws Ann. § 11-23-2.
^ . Mass.Gen.Laws Ann., c. 265, § 2.
^ . Ohio Rev.Code Ann., Tit. 29, §§ 2901.09 and 2901.10.
^ . Many statistical studies — comparing crime rates in jurisdictions with and without capital punishment and in jurisdictions before and after abolition of capital punishment — have indicated that there is little, if any, measurable deterrent effect. See H. Bedau, The Death Penalty in America 258-332 (1967 rev. ed.). There remains uncertainty, however, because of the difficulty of identifying and holding constant all other relevant variables. See Comment, The Death Penalty Cases, 56 Calif.L.Rev. 1268, 1275-1292. See also dissenting opinion of THE CHIEF JUSTICE, post at 395; concurring opinion of MR. JUSTICE MARSHALL, post at 346-354.
^ . Georgia law, at the time of the conviction and sentencing of the petitioner in No. 69-5030, left the jury a choice between the death penalty, life imprisonment, or "imprisonment and labor in the penitentiary for not less than one year nor more than 20 years." Ga.Code Ann. § 26-1302 (Supp. 1971) (effective prior to July l, 1969). The current Georgia provision for the punishment of forcible rape continues to leave the same broad sentencing leeway. Ga.Crim.Code § 26-2001 (1971 rev.) (effective July l, 1969). Texas law, under which the petitioner in No. 69-5031 was sentenced, provides that a "person guilty of rape shall be punished by death or by confinement in the penitentiary for life, or for any term of years not less than five." Texas Penal Code, Art. 1189.
^ . Georgia law, under which the petitioner in No. 69-5003 was sentenced, left the jury a choice between the death penalty and life imprisonment. Ga.Code Ann. § 26-1005 (Supp. 1971) (effective prior to July 1, 1969). Current Georgia law provides for similar sentencing leeway. Ga.Crim.Code § 26-1101 (1971 rev.) (effective July 1, 1969).
^ . See dissenting opinion of THE CHIEF JUSTICE, post at 386-387, n. 11; concurring opinion of MR. JUSTICE BRENNAN, ante at 291-293.
^ . Petitioner Branch was sentenced to death in a Texas court on July 26, 1967. Petitioner Furman was sentenced to death in a Georgia court on September 20, 1968. Petitioner Jackson was sentenced to death in a Georgia court on December 10, 1968.
^ . A former United States Attorney General has testified before the Congress that only a "small and capricious selection of offenders have been put to death. Most persons convicted of the same crimes have been imprisoned." Statement by Attorney General Clark in Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 93.
In McGautha v. California, 402 U.S. 183, the Court dealt with claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We expressly declined in that case to consider claims under the constitutional guarantee against cruel and unusual punishments. See 398 U.S. 936 (limited grant of certiorari).
^ . See concurring opinion of MR. JUSTICE DOUGLAS, ante, at 249-251; concurring opinion of MR. JUSTICE MARSHALL, post at 366 n. 155.
^ . Cf. Note, A Study of the California Penalty Jury in First-Degree-Murder Cases, 21 Stan.L.Rev. 1297 (1969); dissenting opinion of THE CHIEF JUSTICE, post at 389-390, n. 12.