I
FOOTNOTES
1.
For a thorough presentation of the history of the
-
cruel and unusual punishment clause see Mr. Justice Marshall's
;.
;:
.,.
-::
-
-
opinion today at 3- ~.
',
See also Weems v. United States,
~·)
217 U.S. 349, 389-409 (1910) (Mr. Justiee White, dissenting);
...-;:
O'Neil' v. Vermont, 144 U.S. 323, 337 (1892) (~ee
FieldJ'Jissenting); Robinson v. California, 370 U.S. 660 (1962);
_};::) rtt 111/G'" ; ,
CreBRi~i,
The
c
e
"Nor Cruel and Unusual Punishments Inflicted: "
Ori~al
...,.
2.
Meaning, 57 Calif. L. Rev. 839 (1969).
Additionally, Art_ie-1€ I,
sectio~ 9I of the
Constitution,
prohibiting bills of attainder, buttresses the conclusion that
capital punishment was an :x1 ingrained element of criminal
punishments when the Constitution was written. A bill of
attainder, as it was primarily known at common law, was a
legislative declaration of guilt calling for the punishment of death.
While legislative punishments less than death were also prohibited
by our Constitution, the primary thrust of the prohibition was
,.
....
\
.
~
2.
.So J-CI n1
to bar legislative death sentences.
The bar was against the maftftQf
Sp4~
of punishment; not against the punishment itself.
Ex parte
Garland, 71 U. S. ( 4 Wall. ) 333 ( 1867); Cummings v. Missouri,
71 U. S. ( 4 Wall) 277 ( 1867); Norville, Bill of Attainder - A
Rediscovered Weapon Against Discri!\linatory Legislation, 26
Ore. L. Rev. 78, 86-89 (1947).
, .....
4f
l·
~
4t ....
Eighth
The Court pointed out that
the~
applied only to Congress and not to the states.
/,11
in
J-efa.l-lo>"~
lo
.s fa.l-e
Amendment
The Court's
a.c.fu,.,.
power was limited to protecting privileges and immunities
and to assuring due process of law, both within the Fourteenth
Amendment.
I
The test ;. for purposes of due process
I
Awas held
to be whether the §.tate had exerted its authority ''within the
--
limits of those fundamental principles of liberty and justice
which lie at the base of all our u civil and political institutions."
136
U.s. ,
at 448.
The state of Georgia, in No. 69-5003 and No.
69-5030, has placed great emphasis on this discussion in
-
-
Kemm•ler and has urged that the instant cases should all be
3.
decided under the more expansive tests of due process rather
thap under the cruel and unqsual punishment clause per se.
Irrespective whether the His: decisions of this Court are viewed
as ''incorporating'the Eight Amendment (see Robinsonf v.
Californ~
(1968)~
370 U.S. 660 (1962); Powell v. Texas, 392 U.S. 514
it seems clear that the tests for applying these two
()J4..
provisions
at fundamentally
identical.
Co;mpare Mr. Justice
~
\;
Frankfurter's test in Francis v. Resweber, 329 U.S. 458, 471
(1947), with Chief Justice Warren's test in Trop v. Dulles, 356 U.S.
I;
86, 100-01 (1958).
-...s
"'t
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 punishment was clearly not prohibited by
the word cruel, although that word manifestly was
intended to forbid the resort to barbarous and
unnecessary methods of bodily torture, in executing
even the penalty of death. " 217 U. S.1 at 409. ,
'
"t
See Part III infra.
l,
In footnote 32, at 100101 the plurality opinion indicates
that denationalization "was never explicitly sanctioned by this
-I
I
4.
Government until 1940 and never tested against the Constitution
until this day. •1
.
'It seems scarcely arguable that loss of citizenship
is within the Eighth Amendment's prohibition because
disproportionate to an offense that is capital and has
been so from the first year of Independence . . . kB
Is Constitutional~ dialectic so empty of
reason that it can be seriously urged that loss of
citizenship is a fate worse than death?" Id. , at 125.
'
~
Brief for Respondent in Branch v. Texas, No. 69-5031,
.
at 6.
10 (,cJh:le
~ Of eoorst the grant of certiorari in these cases was
4
specifically limited1 398 U. S. 936 (1970); 40\t, U.S. at
\
(Mr. Justice Brennan's dissenting opinion)i
indicative
+he.
,
o{ lieretofore
-t~hey
3 (')'
are nonetheless
almost unquestioned belief that the penalty
was not per se unconstitutional.
I
5
11.
This number includes all the Justices who particithose who joined in
pated in Wilkinson, Kemmler, and Francis as well as/the
plurality and dissenting opinions in Trop and the dissenting
opinion in Weems.
The impressive list of Justices who have
joined in sustaining this view is worth reciting here.
They
are, in chronological orders
Clifford
Blatchford
Murphy
Swayne
Lamar
Jackson
Miller
Fuller
Rutledge
Field
Brewer
Burton
Strong
White
Vinson
Bradley
Holmes
Clark
Hunt
Black
Harlan
Waite
Reed
Warren
Harlan
Frankfurter
Whittaker
Gray
Douglas
?
12.
~no-:ee.
13.
~ee,
.
7;;
4) supra.
e.g., Ex Parte Wilson, 114 U.S. 417,
427 y28 (1885).
14.
..SR:e Part VII; infra.
15.
Trop v. Dulles]356 U.S. at 100.
J:r."
6
li.J.J.,. Se~ ~· ![:, Sellin, The Death Penalty, in ALI, Model
Penal Code (Tent. Draft No. 9) (1959); United Nations! Department
of Economic and Social Mfairs, Capital Punishment (1968); 2
\ National Comm'n on Reform of Federal Criminal Laws, Working
Papers, 1351 n. 13 (1970).
\
\
1
J
17
~
'·
The literature on the moral question is legion.
Representative collections of the strongly held views on.
1-L
both sides may be .QQJOIIV,.Aie:fl:bilef found in Bedau, The Death
II
Penalty in America (1967), and in Royal Comm'n on Capital
Punishment, Minutes of Evidence (1949-1953).
151
~.
U.S. Dept. of Justice, Bureau of Prisons, National
Prisoner Statistics No. 46, Capital Punishment 1930-1970
(Aug. 1971) (191 executions during the 1960's; no executions
since June 2, 1967); President 0 s Comm 0 n on Law Enforcement
and Admin. of Justice, Report, The Challenge of Crime in
<:
--
<
~
"'
··.,
a oFrge<c
Society
< -..143 (1967) ("The most salient characteristic
\
of capital punishment is that it is infrequently applied.").
Petitioners concede, as they must, that little weight
can be given to the lack of executions in recent years.
A de facto moratorium has existed for five years now while
cases challenging the procedures for implementing the
capital sentence have been re-examined by this Court.
McGautha v. California, supra; Witherspoon v. Illinois,
supra.
The frequency of execution has been further
diminished--although to a less measurable degree--by
\
decisions on this Court
i~#~~~
giving expanded scope to
\
the criminal procedural protections of the Bill of Rights,
especially ~~~ under the Fourth and Fifth Amendment.
1
~'
\
Miranda v. Arizona, 384 U.S.· 436 (1966); Mapp v. Ohio,
367 U.S. 643 (1961).
Additionally, recent decisions
amplifying the scope of the federal t;,ag,e,g.s c.orpu§ remedy,
have also contributed to
undoubtedly ~4j iiidddild#ldl the reduction in the number of
~
executions.
~' Fay v. Noi~~72 U.S. 391 (1963); Townsend
v. Sain, 372 U.S. 293 (1963).
,...
____
,,
j
~.
An exact figure for the number of death sentences
\
imposed by the sentencing authorities--judge or jury--in
the various jurisdictions is difficult to determine.
But
the National Prisoner Statistics show the numbers of persons
received at the state and federal
death.
prisons under sentence of
This number 0 however, does not account for those who
may have been sentenced and retained in local facilities
\
during the pendency of their appeals.
Accepting with this
reservation the NPS figures as a minimum, the most recent
,.
\
statistics show that at least 1,057 persons were sentenced to
death during the decade of the 1960's.
NPS, supra
n~
•
,g,
~ at 9.
No fully reliable statistics are available on the
nationwide ratio of death sentences to cases in which
death was a statutorily permissible punishment.
At oral
argument, counsel for petitionerf in Pie"""""'
a 88 5927
B:~
,
No.
69-5003 estimated that the ratio• is 12 or 13 to one.
T r(~JYlC<.1.1pi- ,t; l looo"""\ ., .... "3"~~+-~·~ f=v,.me~~ .,M~(j\AJ "-'• ' 9·S~f)
Others have found a higher correlation. ~
See McGee, C~ital
-........--Punishment as Seen by a Correc,tiop.al Administx;;ator, 28 Fed.
Prob. (No. 2) 11, 12 (1964) (one out of every five, or 20%
of persons convicted of murder received the death penalty
in California); Bedau, 1:'Death
c
t~?.O,
~entences
'
c
in New Jersey
1907•
19 Rutgers L. Rev. 1 (1964) (between 1916 and 1955,
157 out of 652 persons charged with murder received the
death sentence in New Jersey--about 20%; between 1956 and
1960, 13 out of 61 received the death sentence--also about
u.•
H.'#-
"
1\
20%); Kalven & Ziesel, The American Jury 435-36 (1966) (21
of 111 murder cases resulted in death sentences during three
representative years during the mid-1950's); see
also
v
c;:
Koeninger,
Cp.p,~tal
Punishment in ,Texas, 1924-:_19,68, 15
Crime & Delinquefte~ 132 (1969).
/.\
.....
c:;;:
-
10
'"1'J
7--0
~
See, e.g., California v. Anderson, No. 13,617
(Calif. S.C., Feb. 18, 1972), cert. denied,
U.S.
(1972) (sl. op. at 17-19); Qoldberg._&_,Pershowitz,
D3.charin12
the
Death Penaltve Unconstitutional,
83 Harv. L. Rev. 1773,
c>C
sc::<
><::
;
But
see F. Frankfurter, Of Law and Men 97-98
c ,- ccu.._
1783 (1970).
(1956) (reprint of testimony before the Royal Comm'n on
Capital Punishment).
~I
~
Nine states have abolished capital punishment
~
without resort to the courts.
....-
See Bedau, supra n~te
/1
)
I
\ 1 ..
~
at 39.
California has been the only state
to abolish
...
-
capital punishment judicially.
California v. Anderson,
No. 13,617 (Calif. S.C., Feb 18, 1972), cert.
denied,
<
<
u.s.
(1972).
~~
~
lfleafings on S. 1760
,._
Laws and Proc
.~E(fore
the
~ubcpmm.,
on Qrim.
Senate( Comm. on the Judiciary (1968).
33
~.
Canada has recently undertaken a five-year exper-
iment--similar to that condocted in England--abolishing the
death penalty for most crimes.
Eliz. II) 145 (1967).
I Acts of Canada (16 & 17
However, capital punishment is
still prescribed for some crimes, including murder of a
..
!
\
JJ ~
•I
police officer or corrections official, treason, and piracy.
1-4
Great Britain, after many years of controversy over
~
the death penalty, undertook a five-year experiment in abolition in 1965.
Murder (Abolition of Death Penalty) Act
1965, 2 Pub. Gen. Acts,
C~.
71, p. 1577.
Although abolition
became final in 1969, the penalty was retained for several
crimes, including treason, piracy, and dockyards arson.
S' ee.
~$.
~"
~
~
Jl~
r\.
17
See Bedau, suQra n~"ii· at 233.
"'
~·
~d.
{approximately 65% of the voters approved the
death penalty).
?-~
~
~
Bedau, Ttc~'- Death P~ngJ.t;y in Am.,.ericc3;, 35 Fed.
Prob. (No. 2) 32, 35 (1971).
/
~.
l
~(}
-&
.
'"
Nat 1 Comm'n, suQra ) n~ ......(/". , at 1365.
J.l. #11
I
7
Bedau, suQra n~ ~· at 232.
see,.
e.g., Connecticut
356J 59, 260 A.2d 587,
v. Davis, 158 Conn. 341,
595~ 6
(1969)1
reme Court points out that the
in which the Connecticut Sup
considered the question of abolition
state legislature had
12
during the 1961, 1963, 1965, 1967 and 1969 sessions and had
"specifically declined to abolish the deat h penalty" every
time.
[\:::.-------:~
I
31
~·
ornia, 402
[
Id. at 519 & n. 15.
u.s.
1
241, 253 (1949)
See also McGautha v. Calif-
~
at 201-02; Williams v. New York, 337
(~ Murphy g 'chssenting)
(
11
u.s.
I
In our
crmminal courts the jury sits as the representative of the
community."); W. Douglas, We the Judges 389 (1956); Holmes,
Law
in Science and Science in Law,
12 Harv. L. Rev. 443,
G
e c
t
460 (1899).
I
I
3~
~.
See
n~
11 )
¥supra.
.
I
~·
..,.
\
I~
-9-:'
\
a,, h ""
v. c.~ I. l()l.~t '"' 1
Transcript of ~•••~~~ _9ral argument in No. 68-
:
11
5027p at 21.
J'l
~·
,,
The annual totals provided by the Bureau of Prisons
are reprinted in
footnote~
of Mr. Justice Brennan's
opinion, at 3~.
3..S
~.
probative e
Public opinion polls, while of little/relevancl,
corroborate substantially the conclusion derived from examining
legislative activity and jury sentencing--opinion on
capital punishment is "fairly divided."
Francis v. Resweber,
327 U.S. at 470 (Mr. Justice Frankfurter, concurring).
See, e.g., Witherspoon v. Illinois, 391 U.S. at
52~n.16
(1966 poll finding 42% in favor of death penalty and 47%
opposed); Goldberg & Dershowitz,
su~a 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 231-41 (1967); Bedau, The Death Penalty in America,
\
35 Fed. Prob. (No. 2) 32, 34-35 (1971).
l
14
36.
If, as petitioners suggest, the judicial branch
itself reflects the prevailing standards of human decency
in our society, it may be relevant to note what conclusion
state courts have reached on the question of the acceptability of capital punishment in recent years.
In the last
~
five years alone, since the
cutions began (see
n~
~ c zacto, "motatorium'~n exe-
181 supra), 26 states have passed on
~
the constitutionality of the death penalty under the Eighth
Amendment and under similar provisions of most state constitutions.
Every court, except the California Supreme
Court (California v. Anderson,
supra~ Q~20),
the penalty to be constitutional.
J •
has ruled
Those states, and the
~
year of the most recent decision on the issue, area Alabama
(1971}; Arizona (1969); Colorado (1967); Connecticut (1969);
Delaware (1971}; Florida (1969); Georgia (1971); Illinois
(1970}; Kansas (1968); Kentucky (1971); Louisiana (1971 ) ;
Maryland (1971); Missouri (1971); Nebraska (1967); Nevada
(1970); New Jersey (1971); New Mexico (1969}; North Carolina
(1972); Ohio (1971}; Oklahoma (1971); South Carolina (1970);
Texas (1971); Utah (1969}; Virginia (1971); Washington (1971).
While the majority of these state court opinions do not give
the issue more than summary exposition, many have considered
the question at some length, and, indeed, some have considered the issue under the "evolving standards" rubric.
....
~.
',.,•
See, e.g.,
15
Connecticut v. Davis, 158 Conn. 341, 356-59, 260 A.2d
t)
587, 595-95 (1969); Louisiana v. Crook, 253 La. 961, 967-
"
70, 221 So.2d 473, 475-76 (1969); Bartholomey v. Maryland,
260 Md. 504, 273 A.2d 164 (1971); Nebraska v. Alvarez, 182
Neb. 358, 366-67, 154 N.W.2d 746, 751-52 (1967); New Mexico
v. Pace, 80 N.M. 364, 371-72, 456 P.2d 197, 204-05 (1969).
Of course, every federal court which has passed on the issue
has ruled that the death penalty is not per se
.
unconstitutional~
A
I
L
~
~~ e.g., Ralph v. Warden, 438 F.2d 786, 793 (-4tll
C Af
~.1971); Jackson v. Dickson, 325 E.2d 573, 575 (9th Ci.r. CA~
1963), cert.
denied, 377 U.S. 957 (1964).
.. <
37
\
~
Petitioner's Brief in No. 68-5027 9 at 51.
~ ~~
I
In 1935 available statistics indicate that
184 persons were executed.
That is the highest annual
total for any year since statistics have become available.
I
NPS , supra
n~~.
I '
1935 is the year chosen by petitioners
in stating their thesisa
"If, in fact, fkfl 184 murderers were executed in this
year 1971, we submit it is palpable that the public
conscience of the Nation would be profoundly and
fundamentally revolted, and that the death penalty for
murder would be abolished forthwith as the atavistic
horror that it is.'~ Petitioner's Brief in No. 685027, at 26.
,.
,:/
. '·
I
It
3f
V Not all murders,
and certainly not all crimes, are com-
....
mitted by persons classifiable as "underprivileged". A nrnti
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"n
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 are
no longer "powerless" in terms of political influence, especially
as compared with the less well-organized and less articulate
"middle income" groups.
\
\
l
"'0 J~~ Francis v. Resweber, 329 U.S. 459, 465 (1947),
~
\
in which the Court intimated that a showing that a state
was permitting the imposition of more severe punishments on
some convicted defendants than on others similarly
I
situated wbailid constitute a denial of equal protection.
1
)
l
£4\
.J.a-'.
In Morissette v. United States, 342 U.S. 246 ( 1952),
Mr.. Justice Jackson spoke of "the uar¢y and unfinished
substitution of deterrence and reformation in place of retaliation and
cution."
ven~e
as the motivation for public prose-
I)-
He also' noted that the penalties
I d. ) at 250-51.
for invasions of the rights of property are high as a consequence of the "public demand for retribution."
Id. >at
260.
£4~
~.
See also Robinson v. California, 370 U.S. 660,
674 (1962) (-M:c. Just1'"ee- Douglas f ·Jconcurring); Francis v.
Resweber, 329 U.S. 459, 470-71 (1947) (Mr. Justice Frankfurter 0 s
admonition that the Court is not empowered to act simply
because of "feelings of revulsion against the State's
\
\
insistence on its pound of flesh")r United States v. Lovett,
1
328
u.s.
303, 324 (1946)
(~.
Justiee
(,}/•1
.
Frankfurter~ concurr~ng
)
("Punishment presupposes an offense, not necessarily an act
previously declared criminal, but an act for which retribution
is exacted.''').
/:•
.•.. '
,,
'-1.3
~
\
Royal Comm'n on Capital Punishment, Minutes of
\
Evidence, 207 (1949-1953) (Statement of 1;he Rt, Hon. Lord
~t±:t:e
44
~
Denning).
Royal Comm'n on Capital Punishment, Report, at 18,
fara . 53 (1949-1953) (Cmd. No. 8932).
\
l
.. '
t
~\
f.
.,
~l t:l:
Cohen, Reason and Law 50 (1950); Packer, The Limits
~
j
of the Criminal Sanction 11-12 (1968); Hart, The Aims of the
Criminal Law, 23
~(.
~.
L~
Contemp. Prob. 401 (1958).
The authorities are collected in Comment, The
Death Penalty Cases, 56 Calif. L. Rev. 1268, 1297-1301
(1968).
The competing contentions are summarized in
'f
the Working Papers of the Nat(l . Comm'n on Reform of Federal
Crim. Laws, supra
)
.
n~
11, at 1358-59.
See also the persuasive
treatment of this issue by Dr. Karl Menninger in The Crime of
Punishment 190-218 (1966).
'-11
~.
J~£·
e.g., H. Bedau, The Death Penalty in America
0
,,
260 (1967); Nat\. Comm'n, supra n~Tt• at 1352.
1
If.
See Sellin, The Death Penalty,
c
v-
supra) n~ ~'
at 19-52.
'11
~·
The countervailing considerations, tending to
undercut the force of Professor Sellin's statistical
st udie~
•"
are collected in Nat'l. Comm'n, supra n~ +?, at 1354; H.
'-
Bedau,
'
}
s~pr~ ) n~ ~·
'
I
at 265-66; Hart, Murder and the Prin-
ciples of Punishment: England and the United States, 52
~-
.~~~
t..
~
&lss-"'
0
Nw. U.L. Rev. 433 (1957) •
.)
~0
~
Report of the Royal Cornrn'n, supra ,I no-te"
•
1/1
--3t, at
24, Para. 68.
,,
~·
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
l.
dissenting opinions in McGautha v. California, 40% U.S.
183 (1971).
The argument in that case centered on the
proposition that due process requires that the standards
governing the jury's exercise of its sentencing function
be elucidated.
As Mr. Justice Brennan's dissent makes
clear, whatever standards might be thought to exist arise
out of the list of justifications for the death penalty-retribution, deterrence, etc. Id., at
,.ef,
<...tf"l .,. 1-uve.lol y
standards existJ the
argpmQRes
If no such
t a..
""'V
~hollow" indeed.
t.v(l...
last Term
s-:z.
~.
Jackson v. Georgia, No. 69-5030; Branch v. Texasw
No. 69-5031.
.sJ
~.
Mr. Justice Harlan, joined by Mf. Justice Brewer,
dissented separately in this case but concurred in the
.
r "
'
~·
\
'
....
\
j
~U#bdliiil#~l'*l##dilll~ild#ll~iliilli
conclusion that the state had inflicted a cruel and unusual
punishment.
Id.)at 371.
'
MacDonald, Rape--Offenders and Their Victims
t'\
63-64 (1971); Packer, Making
the Punishment Fit the Crime,
'(
77 Harv. L. Rev. 1071, 1077 (1964).
~s
~.
See MacDonald, supra
~
.
&f
no-te-~
at 314; Chambliss,
7
70 . ,
196i Wis.e. L. Rev. ~· #.lfJIMill
~
sc,
~
FBI, Uniform Crime Reports for the United States
1970, 14 (1971) (during the 1960's the incidence of
rape rose 1211~.
\
...,,
~
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
l
sentenc~
review,
have application
in my view that test may
jl#j~~lild
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-l
""/f\
I
depending on the peculiar facts of the individual caser-
was
that the death sentence
il cruelly excessive.
This is the
teaching of the O'Neil dissent and the subsequent opinions
Neither of the pape cases
that have followed it.
li~idi#i#dill#j##dill#i~~~~i~~
before the Court today approaches this category of extreme
excessiveness.
~
~
~'
~·
See text accompanying
See note
:11
\
supra.
t,O
.%.
l
See note ~supra.
\
~I
"
Recent legislative activity in New York State serves
to underline the preferability of legislative action over
constitutional adjudication.
New York abolished the death
penalty for murder in 1965, leaving only a few crimes for
which the penalty is still available.
nete ~ supra.
•
l
See text accompanying
~
On April 27, . 1972 ~ a bill, which would have
I
restored the death penalty was considered by the State
Assembly.
After several hours of heated debate the bill was
narrowly defeated by a vote of 65 to 59.
April 28, 1972, at 1,
~ · 1.
~.
N.Y. Times,
After seven years of
d~use of the death penalty the representtatives of the
people in that State had not come finally to rest on the
question of capital punishment.
Because the 1965 decision
had been the product of the popular will it could
have been
Be
undone by an exercise of the same democratic processes.
~
No such fl exibility would be permitted if abolition were
~
to flow from constitutional adjudication •
. •t··,' '·'
t"Z.
President's
51:.
~omm 0 n
on Law Enforcement and Admin. of
Justice, The Challenge
of Crime c in a Free Society 143 (1967)
<
~
(chaired by Nicholas Katzenbach, then Attorney General of the
United States).
The text of the Report stated, among other
things, that the abolition of the death penalty "is being
widely debated in the states"; that it is "impossible to
say with certainty whether capital punishment significantly
reduces the incidence of heinous crimesf; that "whatever
views one may have on the efficacy of the death penalty as
a deterrent, it clearly has an undesirable impact on the
administration of criminal justice"; that "some members of
the Commission favor the abolition of capital punishment,
while other members favor its retentio~and that "all members
of the Commission agree that the present situation in the
administration of the death penalty in many states is intol!d. at 143.
erable."
As a member of this Presidential
Commission I subscribed then, and do now, to the recommendation~ and
A
t.J
..5l.
views above quoted.
r{
Final Report of the Nat 1 Comm'n on Reform of the
Federal Crim. Laws 310 (1971),
f~
53'".
The American Law Institute, after years of stmdy,
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 many §tates would
~
undo~btedly
retain the punishment and that, therefore, the
Institute's efforts should be directed toward providing
r
standards for its implementation.
ALI, Model Penal Code,
65 (Tent. draft No. 9, 1959).
t.-6
st'·
(
')111. •
See text accompanying
2'-
a.G-t:-es ~
l ()
through
~supra.
t.f..
~.
Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Mr.
Justice Holmes, concurring).
See also Trop v.
v
"""""""'
Dulles~
356 U.S. at 128 (Mr. Justice Frankfurter, dissenting):
fi
"The awesome power of this Court to invalidate • . .
legislation, 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 restraint."
•""
.'