For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (Brandeis, J., concurring).
The opinions of other Justices today have set out in admirable and thorough detail the origins and judicial history of the Eighth Amendment's guarantee against the infliction of cruel and unusual punishments, [n1] and the origin and judicial history of capital punishment. [n2] There [p307] is thus no need for me to review the historical materials here, and what I have to say can, therefore, be briefly stated. Legislatures -- state and federal -- have sometimes specified that the penalty of death shall be the mandatory punishment for every person convicted of engaging in certain designated criminal conduct. Congress, for example, has provided that anyone convicted of acting as a spy for the enemy in time of war shall be put to death. [n3] The Rhode Island Legislature has ordained the death penalty for a life term prisoner who commits murder. [n4] Massachusetts has passed a law imposing the death penalty upon anyone convicted of murder in the commission of a forcible rape. [n5] An Ohio law imposes the mandatory penalty of death upon the assassin of the President of the United States or the Governor of a State. [n6]
If we were reviewing death sentences imposed under these or similar laws, we would be faced with the need to decide whether capital punishment is unconstitutional for all crimes and under all circumstances. We would need to decide whether a legislature -- state or federal -- could constitutionally determine that certain criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator, and that, despite the inconclusive empirical evidence, [n7] only [p308] the automatic penalty of death will provide maximum deterrence.
On that score I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.
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