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September 13, 2011

Which Furman opinion would you have joined? Why?

I suggested in class some time ago that you should read (and re-read) Furman thinking about which of the nine Justices' opinions you would have been most likely to join (assuming you had been a hypothetical additional Justice in 1972 and could only join an opinion rather than write your own).  Because I suspect we will not have enough time in class to discuss all the opinions in Furman, I wanted to created this blog space to allow/encourage folks to weigh in on which of the opinions they found most convincing or compelling.

UPDATE on 9/16:  Though she presumably did not indicate which of the Furman opinions she liked best, Justice Ruth Bader Ginsburg made some comments during a law school speech this week (as reported here) which suggest she is quite fond of what was the outcome in Furman and would like to get four more votes among the Justices on the current Supreme Court to once again halt death sentencing.

September 13, 2011 in Class activities, Pro/Con arguments surrounding the death penalty, SCOTUS cases of note, Supreme Court rulings, Who decides | Permalink


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Justice Blackmun's opinion is my personal favorite and the one most philosophically-aligned with my own beliefs.

Posted by: Steven Druckenmiller | Sep 14, 2011 11:32:11 AM

I also would have joined Justice Blackmun's opinion based on the excerpts in the book. After reading his excerpt the only note I wrote next to it was "honest".

I was not moved by Justice White's argument that since the DP is not used enough it must be cruel & unusual.

But I wrote the most incredulous comments in the margins when reading Justice Marshall's opinion. Such as: "murderers are extremely unlikely to commit other crimes" - Really??? And his declaration that the DP is "morally unacceptable to the people of the U.S. at this time" - I am glad he is able to determine with such exactitude the moral temperament of the U.S.

Posted by: Patrick McGrath | Sep 14, 2011 5:37:33 PM

I believe Justice Brennan captured the spirit of the Cruel and Unusual Punishments Clause the best. Every human, even the worst of the criminals, have intrinsic worth and, as such, should be treated with dignity — regardless of the crimes they have committed. We cannot help or change what crimes have been committed, but we, as a modern day society, should not allow the wheels of such a barbaric practice to continue spinning simply because it was spun before. For any justice that deems otherwise, I find it hypocritical for him/her to sit on the bench and declare that it is wrong for citizens to murder one another, but somehow right for citizens who are acting on behalf of the state in carrying out an execution.

Beyond the human dignity aspect of the death penalty which I believe Justice Brennan so eloquently stressed, the randomness argument is again very persuasive. To inflict some criminals, and not others for the same crime (and in some circumstances, similar fact patterns), is arbitrary indeed and one that is neither fair nor just. Considering the foundation of the judicial system is built upon the notion of justice, how embarrassing is it for our system to allow such a final act of death when the system has proven to be inherently inaccurate? As we have studied, race plays a card in determining who should and should not have the death penalty imposed on them. Socioeconomic status, too, plays a part in that those defendants who cannot afford the luxury of pursuing any and all avenues that may help them escape the punishment of death are shown to be at a great disadvantage. While the list can go on, when all is said and done, I believe the death penalty boils down to what Justice Brennan describes as “[t]he infliction of a severe punishment by the State . . . [that] is nothing more than the pointless infliction of suffering.” Suffering for suffering’s sake, not that it will ever undue the evils that the criminal has committed in the first place.

Posted by: Isabella | Sep 14, 2011 7:29:24 PM

I would have joined Justice Douglas' opinion because I liked his practicality -- he stated that the statutes were the reason to overturn this, not because of any emotional tie or feeling in opposition to the death penalty.

The opinion that made me guffaw while reading was that of Justice Stewart. "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." True, except that getting struck by lightning is a random act of mother nature, and every person that is executed through a death sentence is done so intentionally.

Posted by: Maureen F | Sep 14, 2011 7:42:20 PM

I'd like to say that I agree with the main idea fluent through the first five opinions, because I think that the arbitrariness and discrimination clearly involved in death penalty cases at the time of this opinion were intolerable. But I just don't see the connection to the Eighth Amendment's cruel and unusual clause, which is the basis for these five Justices' conclusions. I suppose the problem I have is that saying the death penalty is used arbitrarily and discriminatorily, in itself, does not seem cruel and unusual: it seems unfair. Unfairness, I think, should be assessed under the equal protection clause or due process clause of the Fourteenth Amendment. So why the Eighth Amendment? Because the Court found differently in McGautha? Or did McGautha and Crampton not make the right argument?

Personally, when I ask myself whether the death penalty is cruel and unusual I think about the execution itself: the fashion in which it is being implemented and the reason for the punishment. After all, the text says “cruel and unusual punishment” not cruel and unusual processes. Chopping a person to bits would seem cruel and unusual, but lethal injection doesn’t seem as cruel. Administering lethal injection for stealing books from the library would seem cruel, but administering it to a convicted serial killer doesn’t seem as cruel. Determining which of these are cruel or not is a difficult task in itself, so I understand why some of the Justices rely on public opinion to make their conclusions, but again, the Justices are looking at public opinion about the arbitrariness of how the sentencing process works. Which seems like a due process issue.

Douglas brings up “human dignity” and this would be a sound argument in my opinion, if he thought that killing people alone is in violation of their human dignity. But he goes on to say that the arbitrariness of the punishment, amongst other things, does not comport with human dignity.

Basically, I think the Eighth Amendment should be about the punishment itself, not about the processes leading up to the punishment, and thus it is an all-or-nothing Amendment to rest an anti-death penalty argument on. Either the penalty is cruel and unusual and then nothing (not even Gregg, et. al.) can fix it, or it is NOT cruel and unusual and you need another amendment to rely on to say that the states are not allowed to do it.

If I had to choose an opinion, I suppose I would side with Blackmun, in that he likes the outcome, but disagrees with the reasoning and activism of the Court. I would also agree with Rehnquist’s final line, stating that the Court’s holding “is not a judgment, but rather an act of will.”

Posted by: Joseph Thompson | Sep 14, 2011 9:45:15 PM

I like Justice White's opinion. When the death penalty stops serving its purpose for society, it violates the Eighth Amendment. Specifically, I liked when he said, "the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice." If the death penalty is not imposed with a level of predictability, it does not serve society effectively. I believe that from the retibutivist perspective, if not applied evenly, this mode of punishment is unjust and from the utilitarian perspective, it serves no forward-looking purpose if it is not suitably predictable.

Posted by: EW | Sep 14, 2011 10:17:23 PM

I would have joined Blackmun's opinion. I think that the cases Furman-Woodson-Lockett reek of gross judicial activism. There being numerous opinions clearly showed how each justice took a personal stand on their own beliefs instead of relying on legal arguments. The text of the Constitution clearly allows capital punishment. I'm not sure how they can reconcile the 5th's text with their interpretation of the 8th. What makes the Furman decision even worse is the lack of guidance it gave legislatures which lead to the results in Woodson and then Lockett. From 1972-78, they wasted everyone's time by legislating piecemeal.

Posted by: Marco | Sep 15, 2011 11:56:03 AM

I too liked the Blackmun opinion, mostly because he indicates his personal distaste for the death penalty as public policy but still does not think it his place to find it unconstitutional. I think Justices should be more willing to explain their policy positions even when they believe they are without the power to find a law unconstitutional. Such candor could do a wonder of good in the public arena.

Justice Rehnquist's opinion is also quite good. I think it stakes out a position on judicial modesty that is persuasive.

Posted by: Kevin S | Sep 15, 2011 12:24:29 PM

I agree with Maureen about Justice Stewart’s comparison between being executed and being struck by lightning. However, I like the reasoning that the sentences are cruel and unusual because they are cruel in kind, unusual because rare (especially for rape), and imposed arbitrarily and capriciously. I can identify with Justice White’s argument that a death sentence shouldn’t be imposed when it doesn’t serve societal ends, but I don’t think this necessarily makes a punishment unconstitutionally cruel and unusual. It would be nice if we only imposed punishments that are “of substantial service to criminal justice,” but I doubt all punishments have utilitarian aims/consequences, and I don’t think purely retributivist punishments are automatically unconstitutional.

Posted by: Shawna | Sep 15, 2011 12:44:02 PM

I like Justice Douglas' opinion, because he tells it like it is. The death penalty in these cases was "pregnant with discrimination" towards poor minorities. It's irrelevant to me if it's acceptable to society that "the poor, the sick, the ignorant, the powerless, and the hated" are killed. What is important is the arbitrary nature of the sentences here.
I sadly, must disagree with much of Marshall's opinion. I can 100% believe that the American people would knowingly support "purposeless vengeance."

I also agree with Shawna (I think?). I see the death penalty as inherently cruel, yet not all that unusual. However, it becomes unusual when it is applied in cases of rape. Perhaps applying the death sentence to poor minorities makes it extra cruel and extra unusual?

Posted by: Melissa | Sep 15, 2011 1:25:47 PM

I found the reasoning in Stewart’s opinion compelling. By stating that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Stewart was arguing that the imposition of the death penalty on defendants is as arbitrary as who gets hit by a bolt of lightning. Given the various concerns we have discussed in class regarding discretion in death penalty cases, I would have to agree with Stewart. Under the statutes in existence at the time, the death penalty was fraught with arbitrariness, discrimination, caprice, and mistake. Thus, I would have sided with Stewart’s conclusion that death sentences as applied under the legal system at that time were cruel and unusual.

Posted by: Todd Seaman | Sep 15, 2011 1:58:48 PM

My opinion is closest to that of Rehnquist’s. I want to be clear. It is obvious that the death penalty has been used infrequently, and almost certainly unfairly. That is not in question. However, I feel that many important considerations were ignored in Furman, because the debate was framed almost entirely in the context of the Constitutionality of the death penalty with regards to racial discrimination on a macro scale. The facts of that case were emotional enough to turn a normally solid bench of Justices into nine separate opinions, and I do not think that the anti-death penalty decision would have been reached in almost any other set of circumstances.

There is a whole universe of crimes for which the death penalty is applied that is not discussed here, except in Rehnquist’s dissent mentioning murder, mutiny, highjacking, and wartime desertion. Murder was only represented in this case in a miniscule form—a killing during a home invasion. There are other types of offenses for whom capital punishment is almost assumed—mass murder, for example. What about Timothy McVeigh, one of the Oklahoma City bombers? Khalid Sheikh Mohammed, the Al Qaeda operational chief, should he go before a New York jury? I cannot imagine any of the concurring opinions in Furman having used the Eighth Amendment justification at the Nuremberg Trials, had they been there—even if recent capital cases had approached practically zero. In short, I think that the Furman decision overlooked many other considerations, and therefore I agree with Rehnquist.

I want to touch on the Eight Amendment argument. I, for one, do not buy the argument of either of the Justices who emphasized the prohibition on cruel and unusual punishment as a means of abolishing capital penalties. I will go so far as to say that I believe that some Justices had made up their minds about the death penalty years before, and were shamelessly attempting to discover a new “right” hidden in the un-complex Eighth Amendment. Brennan makes a great to-do about the fact that there were an ever diminishing number of capital cases in the United States, and concludes that their decreasing number is evidence by itself that the death penalty had become unconstitutional. But what does this theory mean? That there is a threshold number of instances required to make certain punishments Constitutionally permissible? It looks like Brennan was reaching for a way to invalidate capital punishment without giving thought to the consequences of his Eighth Amendment justification. As for Justice Marshall’s belief that public support for the death penalty would drop if they were as educated on it as he was, I am aghast. It seems to me to be an unsound basis of Constitutional interpretation—or of any public policy—for the Court to rely on their impression of what a democracy would or would not support, had their fellow citizens only been as smart or as experienced as the Court.

Posted by: Ethan Evans | Sep 15, 2011 2:26:21 PM

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