# Witherspoon v. Illinois/Dissent White

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Mr. Justice WHITE, dissenting.
The Court does not hold that imposition of the death penalty offends the Eighth Amendment. Nor does it hold that a State Legislature may not specify only death as the punishment for certain crimes, so that the penalty is imposed automatically upon a finding of guilt, with no discretion in judge or jury. Either of these holdings might furnish a satisfactory predicate for reversing this judgment. Without them, the analytic basis of the result reached by the Court is infirm; the conclusion is reached because the Court says so, not because of reasons set forth in the opinion.
The Court merely asserts that this legislative attempt to impose the death penalty on some persons convicted of murder, but not on everyone so convicted, is constitutionally unsatisfactory:
'It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal 'organized to convict.' It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.' Ante, at 521. (Citations and footnote omitted.)
The sole reason connecting the two sentences is the raw assertion that the situations are closely related. Yet the Constitution, which bars a legislative determination that everyone indicted should be convicted, and so requires the judgment of a guilt-determining body unprejudiced as to the result, speaks in entirely different terms to the determination of sentence, even when that sentence is death. The Court does not deny that the legislature can impose a particular penalty, including death, on all persons convicted of certain crimes. Why, then, should it be disabled from delegating the penalty decision to a group who will impose the death penalty more often than would a group differently chosen?
All Illinois citizens, including those who oppose the death penalty, are assured by the Constitution a fair opportunity to influence the legislature's determinations about criminal sentences. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and succeeding cases. Those opposing the death penalty have not prevailed in that forum, however. The representatives of the people of Illinois have determined that the death penalty decision should be made in individual cases by a group of those citizens without conscientious scruples about one of the sentencing alternatives provided by the legislature. This method of implementing the majority's will was presumably related to a desire to preserve the traditional policy of requiring that jury verdicts be unanimous. The legislature undoubtedly felt that if all citizens could serve on the jury, and if one citizen with especially pronounced 'scruples' could prevent a decision to impose death, the penalty would almost never be imposed. We need not decide today whether any possible delegation of the sentencing decision, for example a delegation to the surviving relatives of the victim, would be constitutionally impermissible because it would offend the conscience of civilized men. Rochin v. People of California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). The delegation by Illinois, which merely excludes those with doubts in policy about one of the punishments among which the legislature sought to have them choose, seems an entirely reasonable and sensible legislative act.
The Court may have a strong dislike for this particular sentence and it may desire to meet Mr. Koestler's standards of charity. Those are laudable motives, but hardly a substitute for the usual processes of reasoned analysis. If the Court can offer no better constitutional grounds for today's decision than those provided in the opinion, it should restrain its dislike for the death penalty and leave the decision about appropriate penalties to branches of government whose members, selected by popular vote, have an authority not extended to this Court.

## Notes

1 While I agree generally with the opinion of MR. JUSTICE BLACK, and so have joined it, I would not wholly foreclose the possibility of a showing that certain restrictions on jury membership imposed because of jury participation in penalty determination produce a jury which is not constitutionally constituted for the purpose of determining guilt.
2 The States should be aware of the ease with which they can adjust to today's decision. They continue to be permitted to impose the penalty of death on all who commit a particular crime. And replacing the requirement of unanimous jury verdicts with majority decisions about sentence should achieve roughly the same result reached by the Illinois Legislature through the procedure struck down today.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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