# Furman v. Georgia/Concurrence Marshall VI

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[p360] In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.
In judging whether or not a given penalty is morally acceptable, most courts have said that the punishment is valid unless "it shocks the conscience and sense of justice of the people."
[p361] Judge Frank once noted the problems inherent in the use of such a measuring stick:
   "[The court,] before it reduces a sentence as `cruel and unusual,' must have reasonably good assurances that the sentence offends the `common conscience.' And, in any context, such a standard - the community's attitude - is usually an unknowable. It resembles a slithery shadow, since one can seldom learn, at all accurately, what the community, or a majority, actually feels. Even a carefully-taken `public opinion poll' would be inconclusive in a case like this."
While a public opinion poll obviously is of some assistance in indicating public acceptance or rejection of a specific penalty, its utility cannot be very great. This is because whether or not a punishment is cruel and unusual depends, not on whether its mere mention "shocks the conscience and sense of justice of the people," but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.
[p362] In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.
This is not to suggest that with respect to this test of unconstitutionality people are required to act rationally; they are not. With respect to this judgment, a violation of the Eighth Amendment is totally dependent on the predictable subjective, emotional reactions of informed citizens.
It has often been noted that American citizens know almost nothing about capital punishment. Some of the conclusions arrived at in the preceding section and the supporting evidence would be critical to an informed judgment on the morality of the death penalty: e. g., that the death penalty is no more effective a deterrent than life imprisonment, that convicted murderers are [p363] rarely executed, but are usually sentenced to a term in prison; that convicted murderers usually are model prisoners, and that they almost always become law-abiding citizens upon their release from prison; that the costs of executing a capital offender exceed the costs of imprisoning him for life; that while in prison, a convict under sentence of death performs none of the useful functions that life prisoners perform; that no attempt is made in the sentencing process to ferret out likely recidivists for execution; and that the death penalty may actually stimulate criminal activity.
This information would almost surely convince the average citizen that the death penalty was unwise, but a problem arises as to whether it would convince him that the penalty was morally reprehensible. This problem arises from the fact that the public's desire for retribution, even though this is a goal that the legislature cannot constitutionally pursue as its sole justification for capital punishment, might influence the citizenry's view of the morality of capital punishment. The solution to the problem lies in the fact that no one has ever seriously advanced retribution as a legitimate goal of our society. Defenses of capital punishment are always mounted on deterrent or other similar theories. This should not be surprising. It is the people of this country who have urged in the past that prisons rehabilitate as well as isolate offenders, and it is the people who have injected a sense of purpose into our penology. I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional.
But, if this information needs supplementing, I believe that the following facts would serve to convince [p364] even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system. Each of these facts is considered briefly below.
Regarding discrimination, it has been said that "[i]t is usually the poor, the illiterate, the underprivileged, the member of the minority group - the man who, because he is without means, and is defended by a court-appointed attorney - who becomes society's sacrificial lamb...." Indeed, a look at the bare statistics regarding executions is enough to betray much of the discrimination. A total of 3,859 persons have been executed since 1930, of whom 1,751 were white and 2,066 were Negro. Of the executions, 3,334 were for murder; 1,664 of the executed murderers were white and 1,630 were Negro; 455 persons, including 48 whites and 405 Negroes, were executed for rape. It is immediately apparent that Negroes were executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination. [p365] Racial or other discriminations should not be surprising. In McGautha v. California, 402 U.S., at 207, this Court held "that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is [not] offensive to anything in the Constitution." This was an open invitation to discrimination.
There is also overwhelming evidence that the death penalty is employed against men and not women. Only 32 women have been executed since 1930, while 3,827 men have met a similar fate. It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes.
It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged [p366] members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo, because change would draw attention to the problem and concern might develop. Ignorance is perpetuated and apathy soon becomes its mate, and we have today's situation.
Just as Americans know little about who is executed and why, they are unaware of the potential dangers of executing an innocent man. Our "beyond a reasonable doubt" burden of proof in criminal cases is intended to protect the innocent, but we know it is not fool-proof. Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death.
[p367] Proving one's innocence after a jury finding of guilt is almost impossible. While reviewing courts are willing to entertain all kinds of collateral attacks where a sentence of death is involved, they very rarely dispute the jury's interpretation of the evidence. This is, perhaps, as it should be. But, if an innocent man has been found guilty, he must then depend on the good faith of the prosecutor's office to help him establish his innocence. There is evidence, however, that prosecutors do not welcome the idea of having convictions, which they labored hard to secure, overturned, and that their cooperation is highly unlikely.
No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of [p368] judging how many innocent persons have been executed but we can be certain that there were some. Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law.
While it is difficult to ascertain with certainty the degree to which the death penalty is discriminatorily imposed or the number of innocent persons sentenced to die, there is one conclusion about the penalty that is universally accepted - i. e., it "tends to distort the course of the criminal law." As Mr. Justice Frankfurter said:
   "I am strongly against capital punishment.... When life is at hazard in a trial, it sensationalizes the whole thing almost unwittingly; the effect on juries, the Bar, the public, the Judiciary, I regard as very bad. I think scientifically the claim of deterrence is not worth much. Whatever proof there may be in my judgment does not outweigh the social loss due to the inherent sensationalism of a trial for life."
[p369] The deleterious effects of the death penalty are also felt otherwise than at trial. For example, its very existence "inevitably sabotages a social or institutional program of reformation." In short "[t]he presence of the death penalty as the keystone of our penal system bedevils the administration of criminal justice all the way down the line and is the stumbling block in the path of general reform and of the treatment of crime and criminals."
Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone capital punishment cannot stand.

## Footnotes

* ↑ United States v. Rosenberg, 195 F.2d 583, 608 (CA2) (Frank, J.), cert. denied, 344 U.S. 838 (1952). See also Kasper v. Brittain, 245 F.2d 92, 96 (CA6), cert. denied, 355 U.S. 834 (1957) ("shocking to the sense of justice"); People v. Morris, 80 Mich. 634, 639, 45 N. W. 591, 592 (1890) ("shock the moral sense of the people"). In Repouille v. United States, 165 F.2d 152 (CA2 1947), and Schmidt v. United States, 177 F.2d 450, 451 (CA2 1949), Judge Learned Hand wrote that the standard of "good moral character" in the Nationality Act was to be judged by "the generally accepted moral conventions current at the time." 165 F.2d, at 153. Judge Frank, who was later to author the Rosenberg opinion, in which a similar standard was adopted, dissented in Repouille and urged that the correct standard was the "attitude of our ethical leaders." 165 F.2d, at 154. In light of Rosenberg, it is apparent that Judge Frank would require a much broader based moral approbation before striking down a punishment as cruel and unusual than he would for merely holding that conduct was evidence of bad moral character under a legislative act.
* ↑ United States v. Rosenberg, supra, at 608.
* ↑ See Repouille v. United States, supra, at 153. In Witherspoon v. Illinois, 391 U.S., at 520 , the Court cited a public opinion poll that showed that 42% of the American people favored capital punishment, while 47% opposed it. But the polls have shown great fluctuation. See What Do Americans Think of the Death Penalty?, in Bedau, supra, n. 45, at 231-241.
* ↑ The fact that the constitutionality of capital punishment turns on the opinion of an informed citizenry undercuts the argument that since the legislature is the voice of the people, its retention of capital punishment must represent the will of the people. So few people have been executed in the past decade that capital punishment is a subject only rarely brought to the attention of the average American. Lack of exposure to the problem is likely to lead to indifference, and indifference and ignorance result in preservation of the status quo, whether or not that is desirable, or desired. It might be argued that in choosing to remain indifferent and uninformed, citizens reflect their judgment that capital punishment is really a question of utility, not morality, and not one, therefore, of great concern. As attractive as this is on its face, it cannot be correct, because such an argument requires that the choice to remain ignorant or indifferent be a viable one. That, in turn, requires that it be a knowledgeable choice. It is therefore imperative for constitutional purposes to attempt to discern the probable opinion of an informed electorate.
* ↑ Cf. Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1076 (1964).
* ↑ E. g., Gold, A Psychiatric Review of Capital Punishment, 6 J. Forensic Sci. 465, 466 (1961); A Koestler, Reflections on Hanging 164 (1957); cf. C. Duffy & A. Hirshberg, 88 Men and 2 Women 257-258 (1962).
* ↑ Hearings, supra, n. 80, at 11 (statement of M. DiSalle).
* ↑ National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 7 (Aug. 1969).
* ↑ Ibid.
* ↑ Ibid.
* ↑ Alexander, The Abolition of Capital Punishment, Proceedings of the 96th Congress of Correction of the American Correctional Association, Baltimore, Md., 57 (1966); Criminal Justice: The General Aspects, in Bedau, supra, n. 45, at 405, 411-414; Bedau, Death Sentences in New Jersey, 1907-1960, 19 Rutgers L. Rev. 1, [408 U.S. 238, 365] 18-21, 52-53 (1964); R. Clark, Crime in America 335 (1970); Hochkammer, The Capital Punishment Controversy, 60 J. Crim. L. C. & P. S. 360, 361-362 (1969); Johnson, The Negro and Crime, 217 Annals Am. Acad. Pol. & Soc. Sci. 93, 95, 99 (1941); Johnson, Selective Factors in Capital Punishment, 36 Social Forces 165 (1957); United Nations, supra, n. 77, ¶ 69, at 98; Williams, The Death Penalty and the Negro, 67 Crisis 501, 511 (1960); M. Wolfgang & B. Cohen, Crime and Race: Conceptions and Misconceptions 77, 80-81, 85-86 (1970); Wolfgang, Kelly, & Nolde, Comparison of the Executed and the Commuted Among Admissions to Death Row, 53 J. Crim. L. C. & P. S. 301 (1962). MR. JUSTICE DOUGLAS explores the discriminatory application of the death penalty at great length, ante, at 249-257.
* ↑ National Prisoner Statistics No. 45, Capital Punishment 1930-1968, p. 28 (Aug. 1969).
* ↑ Men kill between four and five times more frequently than women. See Wolfgang, A Sociological Analysis of Criminal Homicide, in Bedau, supra, n. 45, at 74, 75. Hence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however. United Nations, supra, n. 77, ¶ 67, at 97-98.
* ↑ Criminal Justice: The General Aspects, in Bedau, supra, at 405, 411; Bedau, Capital Punishment in Oregon, 1903-64, 45 Ore. L. Rev. 1 (1965); Bedau, Death Sentences in New Jersey, 1907-1960, 19 Rutgers L. Rev. 1 (1964); R. Clark, Crime in America 335 (1970); C. Duffy & A. Hirshberg, 88 Men and 2 Women 256-257 (1962); Carter & Smith, The Death Penalty in California: A Statistical and Composite Portrait, 15 Crime & Delin. 62 (1969); Hearings, supra, n. 80, at 124-125 (statement of Dr. West); Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969); McGee, supra, n. 116, at 11-12.
* ↑ See, e. g., E. Borchard, Convicting the Innocent (1932); J. Frank & B. Frank, Not Guilty (1957); E. Gardner, Court of Last Resort (1952). These three books examine cases in which innocent persons were sentenced to die. None of the innocents was actually executed, however. Bedau has abstracted 74 cases occurring in the United States since 1893 in which a wrongful conviction for murder was alleged and usually proved "beyond doubt." In almost every case, the convictions were sustained on appeal. Bedau seriously contends that innocent persons were actually executed. Murder, Errors of Justice, and Capital Punishment, in Bedau, supra, n. 45, at 434, 438. See also Black, The Crisis in Capital Punishment, 31 Md. L. Rev. 289 (1971); Hirschberg, Wrongful Convictions, 13 Rocky Mt. L. Rev. 20 (1940); Pollak, The Errors of Justice, 284 Annals Am. Acad. Pol. & Soc. Sci. 115 (1952).
* ↑ E. Gardner, Court of Last Resort 178 (1952).
* ↑ MR. JUSTICE DOUGLAS recognized this fact when he wrote: "One who reviews the records of criminal trials need not look long to find an instance where the issue of guilt or innocence hangs in delicate balance. A judge who denies a stay of execution in a capital case often wonders if an innocent man is going to his death.... "Those doubts exist because our system of criminal justice does not work with the efficiency of a machine - errors are made and innocent as well as guilty people are sometimes punished.... "...We believe that it is better for ten guilty people to be set free than for one innocent man to be unjustly imprisoned. "Yet the sad truth is that a cog in the machine often slips: memories fail; mistaken identifications are made; those who wield the power of life and death itself - the police officer, the witness, the prosecutor, the juror, and even the judge - become overzealous in their concern that criminals be brought to justice. And at times there is a venal combination between the police and a witness." Foreword, J. Frank & B. Frank, Not Guilty 11-12 (1957). There has been an "incredible lag" between the development of modern scientific methods of investigation and their application to criminal cases. When modern methodology is available, prosecutors have the resources to utilize it, whereas defense counsel often may not. Lassers, Proof of Guilt in Capital Cases - An Unscience, 58 J. Crim. L. C. & P. S. 310 (1967). This increases the chances of error.
* ↑ Ehrmann, The Death Penalty and the Administration of Justice, 284 Annals Am. Acad. Pol. & Soc. Sci. 73, 83 (1952).
* ↑ F. Frankfurter, Of Law and Men 81 (1956).
* ↑ B. Eshelman & F. Riley, Death Row Chaplain 222 (1962).
* ↑ McCafferty, Major Trends in the Use of Capital Punishment, 25 Fed. Prob., No. 3, pp. 15, 21 (Sept. 1961) (quoting Dr. S. Glueck of Harvard University).
* ↑ MR. JUSTICE POWELL suggests that this conclusion is speculative, and he is certainly correct. But the mere recognition of this truth does not undercut the validity of the conclusion. MR. JUSTICE POWELL himself concedes that judges somehow know that certain punishments are no longer acceptable in our society; for example, he refers to branding and pillorying. Whence comes this knowledge? The answer is that it comes from our intuition as human beings that our fellow human beings no longer will tolerate such punishments. I agree wholeheartedly with the implication in my Brother POWELL'S opinion that judges are not free to strike down penalties that they find personally offensive. But, I disagree with his suggestion that it is improper for judges to ask themselves whether a specific punishment is morally acceptable to the American public. Contrary to some current thought, judges have not lived lives isolated from a broad range of human experience. They have come into contact with many people, many ways of life, and many philosophies. They have learned to share with their fellow human beings common views of morality. If, after drawing on this experience and considering the vast range of people and views that they have encountered, judges conclude that these people would not knowingly tolerate a specific penalty in light of its costs, then this conclusion is entitled to weight. See Frankel, Book Review, 85 Harv. L. Rev. 354 (1971). Judges can find assistance in determining whether they are being objective, rather than subjective, by referring to the attitudes of the persons whom most citizens consider our "ethical leaders." See Repouille v. United States, 165 F.2d, at 154 (Frank, J., dissenting). I must also admit that I am confused as to the point that my Brother POWELL seeks to make regarding the underprivileged members of our society. If he is stating that this Court cannot solve all of their problems in the context of this case, or even many of them, I would agree with him. But if he is opining that it is only the poor, the ignorant, the racial minorities, and the hapless in our society who are executed; that they are executed for no real reason other than to satisfy some vague notion of society's cry for vengeance; and that knowing these things, the people of this country would not care, then I most urgently disagree. There is too much crime, too much killing, too much hatred in this country. If the legislatures could eradicate these elements from our lives by utilizing capital punishment, then there would be a valid purpose for the sanction and the public would surely accept it. It would be constitutional. AS THE CHIEF JUSTICE and MR. JUSTICE POWELL point out, however, capital punishment has been with us a long time. What purpose has it served? The evidence is that it has served none. I cannot agree that the American people have been so hardened, so embittered that they want to take the life of one who performs even the basest criminal act knowing that the execution is nothing more than bloodlust. This has not been my experience with my fellow citizens. Rather, I have found that they earnestly desire their system of punishments to make sense in order that it can be a morally justifiable system. See generally Arnold, The Criminal Trial As a Symbol of Public Morality, in Criminal Justice In Our Time 137 (A. Howard ed. 1967).