penalty in the cases in question would constitute cruel and unusual punishment in violation of the 8th and 14th amendments. The Court thus did not hold that capital punishment per se is unconstitutional. Only two of the Justices in the majority were of this opinion. Of the remaining three, Justices Stewart and White explicity stated that they had not held the death penalty in itself unconstitutional. Rather, they concluded that, "as presently applied and administered in the United States," capital punishment constitutes a violation of the Eighth Amendment. Mr. Justice Stewart objected to the penalty being in "so wantonly and freakishly” imposed. Mr. Justice White objected specifically to-2 the recurring practice of delegating the sentencing authority These aspects of the concurring opinions of Justices Stewart and White were emphasized by the dissent of the Chief Justice. His comments bear quoting at some length. He observed: 3 Today the Court has not ruled that capital punishment is per se violative of the 8th amendment; nor has it ruled that the punishment is barred for any particular class or classes of crimes. The substantially similar concurring opinions of Mr. Justice Stewart and Mr. Justice White, which are necessary to support the judgment setting aside petitioners' sentences, stop short of reaching the ultimate question. The actual scope of the Court's ruling, which I take to be embodied in these concurring opinions, is not entirely clear. This much, however, seems apparent if the legislatures are to continue to authorize capital punishment for some crimes, juries and judges can no longer be permitted to make the sentencing determination in the same manner they have in the past. *** The critical factor in the concurring opinions of both Mr. Justice Stewart and Mr. Justice White is the infrequency with which the penalty is imposed. This factor is taken not as evidence of society's abhorrence of capital punishment— the inference that petitioners would have the Court drawbut as the earmark of a deteriorated system of sentencing. It is concluded that petitioners' sentences must be set aside, not because the punishment is impermissibly cruel, but because juries and judges have failed to exercise their sentencing discretion in acceptable fashion. * * * This novel formulation of 8th amendment principlesalbeit necessary to satisfy the terms of our limited grant of certiorari-does not lie at the heart of these concurring opinions. The decisive grievance of the opinions-not translated into 8th amendment terms-is that the present system of discretionary sentencing in capital cases has failed to produce evenhanded justice; the problem is not that too few have been sentenced to die, but that the selection process has fol 2 Furman v. Georgia, supra note 1, at 238, 314. 3 Id. at 396-401. lowed no rational pattern. . . . It is essentially and exclu- Since the two pivotal concurring opinions turn on the as- As articulated in the Furman decision, then, it appears clear that the objection of the Supreme Court to the death penalty as a punishment for certain crimes goes not to its nature but to the manner of its imposition. According to Assistant Attorney General Robert Dixon, Jr., who testified before the Subcommittee on Criminal Laws and Procedures: 4 The practical effect of Furman, therefore, appears to be to leave to the Congress and the State legislatures some leeway to devise new statutory mechanisms for the imposition of the death penalty, provided such mechanisms restrict sentencing discretion and ensure increased rationality in patterns of death sentence imposition. The Committee believes that the procedures established by this chapter meet the requirements of the Supreme Court by providing rational criteria for the imposition of the death penalty which will prevent its use in an arbitrary and capricious manner. 2. General Considerations 5 Prior to reporting on the provisions, it was necessary for the Committee to consider the more fundamental question of whether or not to retain the death penalty as one of society's available remedies against those who commit the most serious breaches of its laws. The Committee was faced with the basic issue of whether or not such a punishment is any longer appropriate for our society. After much careful consideration of all the arguments both for and against the death penalty presented in great detail in hearings before the Subcommittee on Criminal Laws and Procedures on bills to abolish as well as reinstate capital punishment, the Committee has concluded that capital punishment is indeed a valid and necessary social remedy against certain dangerous types of criminal offenders. 6 The conclusion in favor of the retention of capital punishment has its basis in the belief that the primary responsibility of society is the protection of its members so that they might live out their lives in peace and safety. Indeed, this is one of the main reasons why any society exists. Where the safety of its citizenry can no longer be guaranteed, society's basic reason for being disappears. In providing its • See Imposition of Capital Punishment, Hearings before the Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary, U.S. Senate, 93d Cong., 1st Sess. (1973). 5 See To Abolish the Death Penalty, Hearings before the Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary, U.S. Senate, 90th Cong., 2d Sess. (1968). Supra note 4, at 46-47; Hearings, p. 5229. members protection, society must do what is necessary to deter those who would break its laws and punish those who do so in an appropriate manner. It is the committee's conclusion that capital punishment applied to the most serious offenses fulfills these functions. A. Deterrence The question of the deterrent effect of capital punishment has probably been the one point most debated by those favoring the abolition of the penalty and those desiring its retention. Several studies have been conducted purporting to show the absence of any correlation between the existence of the penalty and the number of capital crimes committed in a particular jurisdiction. The argument then follows that, since there exists no such relationship, the penalty serves no legitimate social purpose and should not be imposed. If the absence of any correlation between the existence of the penalty and the frequency of capital crimes could actually be proved by these studies, the argument for abolition would be much stronger. Although entitled to consideration, however, the value of these studies is seriously diminished by the unreliability of the statistical evidence used, the contrary experience of those in the field of law enforcement, and the inherent logic of the deterrent power of the threat of death. With regard to the statistical evidence, the first and most obvious point is that those who are, in fact, deterred by the threat of the death penalty and do not commit murder are not included in the statistical data. There is no way to determine the number of such people. Secondly, even those favoring abolition agree that the available evidence on the subject of deterrence is, at best, inadequate. For example, Hugo Adam Bedau has described the difficulty in obtaining accurate data in this way: 8 In a word, there is no exact information anywhere as to the volume of capital crimes in the United States. Difficult as it is to specify the capital laws for the nation as a whole, it is impossible with the present sort of criminal statistics to specify the exact amount of capital crimes for even one jurisdiction in even one year for even one crime. Possibly the greatest difficulty with the available statistical data is that the only figure available to judge the effectiveness of capital punishment is the "murder and nonnegligent manslaughter" figure reported annually by the Federal Bureau of Investigation; and this figure does not provide sufficient evidence from which to draw a conclusion. According to Bedau: " 9 [s]ince some States have no death penalty for murder, the national totals of "murder and nonnegligent manslaughter" will exceed the number of homicides punishable by death. What is even more important, the FBI does not distinguish between total murders (or first degree murders), which alone carry the death penalty, and all lesser forms of nonnegligent criminal homicide, in particular second degree murder and voluntary manslaughter, crimes usually punished by 7 See Thorsten Sellin, "The Death Penalty; A Report for the Model Panel Code Project of the American Law Institute." The American Law Institute (1959). 8 Bedau, Hugo Adam, ed., "The Death Penalty in America, an Anthology," p. 56, Doubledav (1964). • Ibid. imprisonment. Instead, all voluntary or nonnegligent In short, the available data on this question is at best inconclusive. In the absence of reliable statistical evidence, great weight must be placed on the experience of those who are most frequently called upon to deal with murderers and potential murderers and who are thus in the best position to judge the effectiveness of the remedy-our law enforcement officials. The vast majority of these officials continue to favor the retention of the death penalty as a deterrent to violent crime. As Sheriff Peter Pitchess of Los Angeles County testified before the California Senate Committee on the Judiciary: 10 I can tell you that the overwhelming majority of people in law enforcement-the ones who are dealing with these criminals, the ones who are seeing them not as statistics but real live human beings, and who are studying their human behavior—are overwhelmingly convinced that capital punishment is a deterrent. The Honorable J. Edgar Hoover, the late Director of the Federal Bureau of Investigation, declared that: 11 11 [t]he professional law enforcement officer is convinced from In his testimony before the Subcommittee on Criminal Laws and Procedures, Mr. Edward J. Kiernan, president of the International Conference of Police Associations and a police officer with 30 years of service, discussed the criminal's fear of the death penalty and declared that: 12 sometimes the specter of that fear will stay a trigger finger at the critical moment. In his testimony, Mr. Arlen Specter, district attorney of Philadelphia, stated: 13 I believe the death penalty is an effective deterrent against murder. I say that based upon more than 7 years as district attorney of Philadelphia, and dealing with a great many cases in that capacity. We have the frequent occurrence in 10 Hearings, report and testimony on Senate Bill No. 1, 1960, Second Extraordinary Session, which proposed to abolish the death penalty in California and to substitute life imprisonment without possibility of parole. California Legislature. Senate Committee on Judiciary, p. 150 (1960). 11 The Uniform Crime Reports of the United States, Federal Bureau of Investigation, p. 14 (1959). 12 Supra note 4, at 157; Hearings, p. 6000. 13 Supra note 4, at 70; Hearings, p. 5252. the criminal courts of Philadelphia where professional burglars have expressed themselves on the point of not carrying a weapon on a burglary because of their concern there may be a scuffle, there may be a dispute, the weapon may be used and death may result, and prior to Furman, they may face the possibility of capital punishment. A frequently made argument in opposition to the idea of the death penalty as a deterrent is that most homicides are crimes of passion against which no penalty constitutes a true deterrent. Although it is true that many murders are indeed the result of passion, it is equally true that a very large number are the result of premeditation. As pointed out by Senator McClellan : 14 It is sometimes said deterrence will not work with homicide, since murders are committed in the heat of passion, when the individual does not consider the consequences of his actions. This is true in some cases, but not all. Ás I have noted, of all murders committed in 1971, 27.5 percent were either known or suspected to have taken place during the commission of a felony. Premeditation, not passion, motivated these crimes. They were not situations of uncontrollable rage. Where reason is present, the thought that one consequence of an individual's action is the forfeiture of his own life will, in most instances, serve as a deterrent. Experience has proven this point. Recently, former criminal court Judge Samuel Leibowitz of New York, an eminent jurist who presided over many capital cases, explained that, when he asked hardened criminals why they would not shoot their way out to escape capture, they would inevitably reply, "I was afraid of the hot seat, Judge.' But even where passion is involved, the awareness of the threat of capital punishment can have a restraining effect. As Senator McClellan again emphasized : 15 Indeed, even in situations involving passion, the knowledge that murder will result in the swift termination of the murderer's own life must necessarily encourage restraint and self-control. Coupled with the great weight of experience is the inherent rationality of a deterrent effect. Clearly a person will be slow to undertake an action that will result in the loss of something which he values highly. Since life itself is the most highly prized possession an individual has, he will be most hesitant to engage in conduct that will result in its forfeiture. In the words of Mr. Richard E. Gerstein before the Section of Criminal Law of the American Bar Association: 16 It is clear that for normal human beings no other punishment deters so effectively from committing murder as the punishment of death . . . [S]ince people fear death more than anything else, the death penalty is the most effective deterrent. 14 Supra note 4, at 2-3; Hearings, p. 4206. 15 Id. at 3: Hearings, p. 4207. 16 American Bar Association, Section of Criminal Law, 1959 proceedings, p. 16 (1960). |