# Furman v. Georgia/Concurrence Marshall III

* related portals: Supreme Court of the United States.
* sister projects: Wikipedia article.
| Introduction | I | II | III | IV | V | VI | VII | Appendices |
* Court Documents
* Case Syllabus
* Per Curiam Opinion of the Court
* Concurring Opinions Douglas Brennan Stewart White Marshall
* Dissenting Opinions Burger Blackmun Powell Rehnquist
[p329] Perhaps the most important principle in analyzing "cruel and unusual" punishment questions is one that is reiterated again and again in the prior opinions of the Court: i. e., the cruel and unusual language "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Thus, a penalty that was permissible at one time in our Nation's history is not necessarily permissible today.
The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us. A fair reading of Wilkerson v. Utah, supra; In re Kemmler, supra; and Louisiana ex rel. Francis v. Resweber, supra, would certainly indicate an acceptance sub silentio of capital punishment as constitutionally permissible. Several Justices have also expressed their individual opinions that the death penalty is constitutional. Yet, some of these same Justices and others have at times expressed concern over capital punishment. [p330] There is no holding directly in point, and the very nature of the Eighth Amendment would dictate that unless a very recent decision existed, stare decisis would bow to changing values, and the question of the constitutionality of capital punishment at a given moment in history would remain open.
Faced with an open question, we must establish our standards for decision. The decisions discussed in the previous section imply that a punishment may be deemed cruel and unusual for any one of four distinct reasons.
First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them - e. g., use of the rack, the thumbscrew, or other modes of torture. See O'Neil v. Vermont, 144 U.S., at 339 (Field, J., dissenting). Regardless of public sentiment with respect to imposition of one of these punishments in a particular case or at any one moment in history, the Constitution prohibits it. These are punishments that have been barred since the adoption of the Bill of Rights.
[p331] Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offense. Cf. United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S., at 435 (Brandeis, J., dissenting). If these punishments are intended to serve a humane purpose, they may be constitutionally permissible. In re Kemmler, 136 U.S., at 447; Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464. Prior decisions leave open the question of just how much the word "unusual" adds to the word "cruel." I have previously indicated that use of the word "unusual" in the English Bill of Rights of 1689 was inadvertent, and there is nothing in the history of the Eighth Amendment to give flesh to its intended meaning. In light of the meager history that does exist, one would suppose that an innovative punishment would probably be constitutional if no more cruel than that punishment which it superseded. We need not decide this question here, however, for capital punishment is certainly not a recent phenomenon.
Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose. Weems v. United States, supra. The decisions previously discussed are replete with assertions that one of the primary functions of the cruel and unusual punishments clause is to prevent excessive or unnecessary penalties, e. g., Wilkerson v. Utah, 99 U.S., at 134; O'Neil v. Vermont, 144 U.S., at 339-340 (Field, J., dissenting); Weems v. United States, 217 U.S., at 381; Louisiana ex rel. Francis v. Resweber, supra; these punishments are unconstitutional even though popular sentiment may favor them. Both THE CHIEF JUSTICE and MR. JUSTICE POWELL seek to ignore or to minimize this aspect of the Court's prior decisions. But, since Mr. Justice Field first suggested that "[t]he whole inhibition [of the prohibition against cruel and unusual punishments] [p332] is against that which is excessive," O'Neil v. Vermont, 144 U.S., at 340 , this Court has steadfastly maintained that a penalty is unconstitutional whenever it is unnecessarily harsh or cruel. This is what the Founders of this country intended; this is what their fellow citizens believed the Eighth Amendment provided; and this was the basis for our decision in Robinson v. California, supra, for the plurality opinion by Mr. Chief Justice Warren in Trop v. Dulles, supra, and for the Court's decision in Weems v. United States, supra. See also W. Bradford, An Enquiry How Far the Punishment of Death is Necessary in Pennsylvania (1793), reprinted in 12 Am. J. Legal Hist. 122, 127 (1968). It should also be noted that the "cruel and unusual" language of the Eighth Amendment immediately follows language that prohibits excessive bail and excessive fines. The entire thrust of the Eighth Amendment is, in short, against "that which is excessive."
Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it. For example, if the evidence clearly demonstrated that capital punishment served valid legislative purposes, such punishment would, nevertheless, be unconstitutional if citizens found it to be morally unacceptable. A general abhorrence on the part of the public would, in effect, equate a modern punishment with those barred since the adoption of the Eighth Amendment. There are no prior cases in this Court striking down a penalty on this ground, but the very notion of changing values requires that we recognize its existence.
It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or [p333] unnecessary, or because it is abhorrent to currently existing moral values.
We must proceed to the history of capital punishment in the United States.

## Footnotes

* ↑ Trop v. Dulles, 356 U.S. 86, 101 (1958). See also Weems v. United States, 217 U.S., at 373 ; Robinson v. California, 370 U.S., at 666 . See also n. 19, supra.
* ↑ E. g., McGautha v. California, 402 U.S., at 226 (separate opinion of Black, J.); Trop v. Dulles, supra, at 99 (Warren, C. J.), 125 (Frankfurter, J., dissenting).
* ↑ See, e. g., Louisiana ex rel. Francis v. Resweber, 329 U.S., at 474 (Burton, J., dissenting); Trop v. Dulles, supra, at 99 (Warren, C. J.); Rudolph v. Alabama, 375 U.S. 889 (1963) (Goldberg, J., dissenting from denial of certiorari); F. Frankfurter, Of Law and Men 81 (1956). There is no violation of the principle of stare decisis in a decision that capital punishment now violates the Eighth Amendment. The last case that implied that capital punishment was still permissible was Trop v. Dulles, supra, at 99. Not only was the implication purely dictum, but it was also made in the context of a flexible analysis that recognized that as public opinion changed, the validity of the penalty would have to be re-examined. Trop v. Dulles is nearly 15 years old now, and 15 years change many minds about many things. MR. JUSTICE POWELL suggests, however, that our recent decisions in Witherspoon v. Illinois, 391 U.S. 510 (1968), and McGautha v. California, 402 U.S. 183 (1971), imply that capital punishment is constitutionally permissible, because if they are viewed any other way they amount to little more than an academic exercise. In my view, this distorts the "rule of four" by which this Court decides which cases and which issues it will consider, and in what order. See United States v. Generes, 405 U.S. 93, 113 (1972) (DOUGLAS, J., dissenting). There are many reasons why four members of the Court might have wanted to consider the issues presented in those cases before considering the difficult question that is now before us. While I do not intend to catalogue these reasons here, it should suffice to note that I do not believe that those decisions can, in any way, fairly be used to support any inference whatever that the instant cases have already been disposed of sub silentio.