Furman v. Georgia/Dissent Blackmun
MR. JUSTICE BLACKMUN, dissenting.
I join the respective opinions of THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST, and add only the following, somewhat personal, comments.
1. Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible [p406] with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments.
2. Having lived for many years in a State that does not have the death penalty,  that effectively abolished it in 1911,  and that carried out its last execution on February 13, 1906,  capital punishment had never been a part of life for me. In my State, it just did not exist. So far as I can determine, the State, purely from a statistical deterrence point of view, was neither the worse nor the better for its abolition, for, as the concurring opinions observe, the statistics prove little, if anything. But the State and its citizens accepted the fact that the death penalty was not to be in the arsenal of possible punishments for any crime.
3. I, perhaps alone among the present members of the Court, am on judicial record as to this. As a member of the United States Court of Appeals, I first struggled silently with the issue of capital punishment in Feguer v. United States, 302 F.2d 214 (CA8 1962), cert. denied, 371 U.S. 872 (1962). The defendant in that case may have been one of the last to be executed under federal auspices. I struggled again with the issue, and once more refrained from comment, in my writing for an en banc court in Pope v. United States, 372 F.2d 710 (CA8 1967), vacated (upon acknowledgment by the Solicitor General of error revealed by the subsequently decided United States v. Jackson, 390 U.S. 570 (1968)) and remanded, 392 U.S. 651 (1968). Finally, in Maxwell [p407] v. Bishop, 398 F.2d 138 (CA8 1968), vacated and remanded, sua sponte, by the Court on grounds not raised below, 398 U.S. 262 (1970), I revealed, solitarily and not for the panel, my distress and concern. 398 F.2d at 153-154.  And in Jackson v. Bishop, 404 F.2d 571 (CA8 1968), I had no hesitancy in writing a panel opinion that held the use of the strap by trusties upon fellow Arkansas prisoners to be a violation of the Eighth Amendment. That, however, was in-prison punishment imposed by inmate-foremen.
4. The several concurring opinions acknowledge, as they must, that, until today, capital punishment was accepted and assumed as not unconstitutional per se under the Eighth Amendment or the Fourteenth Amendment. This is either the flat or the implicit holding of a unanimous Court in Wilkerson v. Utah, 99 U.S. 130, 134-135, in 1879; of a unanimous Court in In re Kemmler, 136 U.S. 436, 447, in 1890; of the Court in Weems v. United States, 217 U.S. 349, in 1910; of all those members of the Court, a majority, who addressed the issue in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-464, 471-472, in 1947; of Mr. Chief Justice Warren, speaking for himself and three others (Justices Black, DOUGLAS, [p408] and Whittaker) in Trop v. Dulles, 356 U.S. 86, 99, in 1958;  in the denial of certiorari in Rudolph v. Alabama, 375 U.S. 889, in 1963 (where, however, JUSTICES DOUGLAS, BRENNAN, and Goldberg would have heard argument with respect to the imposition of the ultimate penalty on a convicted rapist who had "neither taken nor endangered human life"); and of Mr. Justice Black in McGautha v. California, 402 U.S. 183, 226, decided only last Term on May 3, 1971. 
Suddenly, however, the course of decision is now the opposite way, with the Court evidently persuaded that somehow the passage of time has taken us to a place of greater maturity and outlook. The argument, plausible and high-sounding as it may be, is not persuasive, for it is only one year since McGautha, only eight and one-half years since Rudolph, 14 years since Trop, and 25 years since Francis, and we have been presented with nothing that demonstrates a significant movement of any kind in these brief periods. The Court has just decided that it is time to strike down the death penalty. There would have been as much reason to do this [p409] when any of the cited cass were decided. But the Court refrained from that action on each of those occasions.
The Court has recognized, and I certainly subscribe to the proposition, that the Cruel and Unusual Punishments Clause "may acquire meaning as public opinion becomes enlightened by a humane justice." Weems v. United States, 217 U.S. at 378. And Mr. Chief Justice Warren, for a plurality of the Court, referred to "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. at 101. Mr. Jefferson expressed the same thought well.  [p410]
My problem, however, as I have indicated, is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago.
5. To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death. It is comforting to relax in the thoughts perhaps the rationalizations — that this is the compassionate decision for a maturing society; that this is the moral and the "right" thing to do; that thereby we convince ourselves that we are moving down the road toward human decency; that we value life even though that life has taken another or others or has grievously scarred another or others and their families; and that we are less barbaric than we were in 1879, or in 1890, or in 1910, or in 1947, or in 1958, or in 1963, or a year ago, in 1971, when Wilkerson, Kemmler, Weems, Francis, Trop, Rudolph, and McGautha were, respectively, decided.
This, for me, is good argument, and it makes some sense. But it is good argument and it makes sense only in a legislative and executive way, and not as a judicial expedient. As I have said above, were I a legislator, I would do all I could to sponsor and to vote for legislation abolishing the death penalty. And were I the chief executive of a sovereign State, I would be sorely tempted to exercise executive clemency as Governor Rockefeller of Arkansas did recently just before he departed from office. There — on the Legislative Branch of the State or Federal Government, and secondarily, on the Executive Branch — is where the authority and responsibility for this kind of action lies. The authority should not be taken over by the judiciary in the modern guise of an Eighth Amendment issue.
I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. [p411] Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today's decision reveals, they are almost irresistible.
6. The Court, in my view, is somewhat propelled toward its result by the interim decision of the California Supreme Court, with one justice dissenting, that the death penalty is violative of that State's constitution. People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880 (Feb. 18, 1972). So far as I am aware, that was the first time the death penalty in its entirety has been nullified by judicial decision. Cf. Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970), cert. denied, post, p. 942. California's moral problem was a profound one, for more prisoners were on death row there than in any other State. California, of course, has the right to construe its constitution as it will. Its construction, however, is hardly a precedent for federal adjudication.
7. I trust the Court fully appreciates what it is doing when it decides these cases the way it does today. Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided. No longer is capital punishment possible, I suspect, for, among other crimes, treason, 18 U.S.C. § 2381; or assassination of the President, the Vice President, or those who stand elected to those positions, 18 U.S.C. § 1751; or assassination of a Member or member-elect of Congress, 18 U.S.C. § 351; or espionage, 18 U.S.C. § 794; [p412] or rape within the special maritime jurisdiction, 18 U.S.C. § 2031; or aircraft or motor vehicle destruction where death occurs, 18 U.S.C. § 34; or explosives offenses where death results, 18 U.S.C. §§ 844 (d) and (f); or train wrecking, 18 U.S.C. § 1992; or aircraft piracy, 49 U.S.C. § 1472(i). Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice. 10 U.S.C. §§ 885 890, 894, 899, 901, 904, 906, 913, 918, and 920. All these seem now to be discarded without a passing reference to the reasons, or the circumstances, that prompted their enactment, some very recent, and their retention in the face of efforts to repeal them.
8. It is of passing interest to note a few voting facts with respect to recent federal death penalty legislation:
A. The aircraft piracy statute, 49 U.S.C. § 1472(i), was enacted September 5, 1961. The Senate vote on August 10 was 92-0. It was announced that Senators Chavez, Fulbright, Neuberger, and Symington were absent, but that, if present, all four would vote yea. It was also announced, on the other side of the aisle, that Senator Butler was ill and that Senators Beall, Carlson, and Morton were absent or detained, but that those four, if present, would vote in the affirmative. These announcements, therefore, indicate that the true vote was 100-0. 107 Cong.Rec. 15440. The House passed the bill without recorded vote. 107 Cong.Rec. 16849.
B. The presidential assassination statute, 18 U.S.C. § 1751 was approved August 28, 1965, without recorded votes. 111 Cong.Rec. 14103, 18026, and 20239.
C. The Omnibus Crime Control Act of 1970 was approved January 2, 1971. Title IV thereof added the congressional assassination statute that is now 18 U.S.C. § 351. The recorded House vote on October 7, 1970, was 341-26, with 63 not voting and 62 of those paired. 116 Cong.Rec. 35363-35364. The Senate vote on October 8 [p413] was 59-0, with 41 not voting, but with 21 of these announced as favoring the bill. 116 Cong.Rec. 35743. Final votes after conference were not recorded. 116 Cong.Rec. 42150, 42199.
It is impossible for me to believe that the many lawyer-members of the House and Senate — including, I might add, outstanding leaders and prominent candidates for higher office — were callously unaware and insensitive of constitutional overtones in legislation of this type. The answer, of course, is that, in 1961, in 1965, and in 1970, these elected representatives of the people — far more conscious of the temper of the times, of the maturing of society, and of the contemporary demands for man's dignity than are we who sit cloistered on this Court — took it as settled that the death penalty then, as it always had been, was not, in itself, unconstitutional. Some of those Members of Congress, I suspect, will be surprised at this Court's giant stride today.
9. If the reservations expressed by my Brother STEWART (which, as I read his opinion, my Brother WHITE shares) were to command support, namely, that capital punishment may not be unconstitutional so long as it be mandatorily imposed, the result, I fear, will be that statutes struck down today will be reenacted by state legislatures to prescribe the death penalty for specified crimes without any alternative for the imposition of a lesser punishment in the discretion of the judge or jury, as the case may be. This approach, it seems to me, encourages legislation that is regressive and of an antique mold, for it eliminates the element of mercy in the imposition of punishment. I thought we had passed beyond that point in our criminology long ago.
10. It is not without interest, also, to note that, although the several concurring opinions acknowledge the heinous and atrocious character of the offenses committed by the petitioners, none of those opinions makes [p414] reference to the misery the petitioners' crimes occasioned to the victims, to the families of the victims, and to the communities where the offenses took place. The arguments for the respective petitioners, particularly the oral arguments, were similarly and curiously devoid of reference to the victims. There is risk, of course, in a comment such as this, for it opens one to the charge of emphasizing the retributive. But see Williams v. New York, 337 U.S. 241, 248 (1949). Nevertheless, these cases are here because offenses to innocent victims were perpetrated. This fact, and the terror that occasioned it, and the fear that stalks the streets of many of our cities today perhaps deserve not to be entirely overlooked. Let us hope that, with the Court's decision, the terror imposed will be forgotten by those upon whom it was visited, and that our society will reap the hoped-for benefits of magnanimity.
Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.
1^ Minn.Stat. § 609.10 (1971).
2^ Minn.Laws 1911, c. 387.
3^ See W. Trenerry, Murder in Minnesota 163-167 (1962).
4^ It is obvious, we think, that the efforts on behalf of Maxwell would not thus be continuing, and his case reappearing in this court were it not for the fact that it is the death penalty, rather than life imprisonment, which he received on his rape conviction. This fact makes the decisional process in a case of this kind particularly excruciating for the author of this opinion who is not personally convinced of the rightness of capital punishment and who questions it as an effective deterrent. But the advisability of capital punishment is a policy matter ordinarily to be resolved by the legislature or through executive clemency, and not by the judiciary. We note, for what that notice may be worth, that the death penalty for rape remains available under federal statutes. 18 U.S.C. § 203; 10 U.S.C. § 920(a).
The designated footnote observed that my fellow judges did not join in my comment.
5^ 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. . . .
6^ The Eighth Amendment forbids "cruel and unusual punishments." In my view, these words cannot be read to outlaw capital punishment, because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power.
7^ Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. . . . I know . . . that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise virtuous, and well-meaning councils. And lastly, let us provide in our Constitution for its revision at stated periods.
Letter to Samuel Kercheval, July 12, 1816, 15 The Writings of Thomas Jefferson 40-42 (Memorial ed. 1904).