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Saturday, October 11, 2014

“Cruel and Unusual” remains unconscionably cruel

Death Penalty
by whatever name
US High Court Justices’ 1970s-1990s arguments still apply to a “legal” barbarity
Edited by Carolyn Bennett

“The question does the system accurately, consistently determine which defendants ‘deserve’ to die can … [never] be answered in the affirmative.”

Capital Punishment USA

Death is not only an unusually severe punishment, unusual in its pain, in its finality and in its enormity; but it serves no penal purpose more effectively than a less severe punishment. Therefore, the principle inherent in the clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment” [William J. Brennan]

Justice Brennan

William Joseph Brennan Jr. (b. April 25, 1906 – d. July 24, 1997), appointed by U.S. President Dwight D. Eisenhower, served on the Supreme Court of the United States from 1956 until 1990. He was known for “outspoken progressive views.”  Justice Brennan authored landmark case opinions including “Baker v. Carr establishing the ‘one person, one vote’ principle; New York Times Co. v. Sullivan that required ‘actual malice’ in a libel suit against those deemed ‘public figures.’ He has been described as historically one of the Court’s “most influential members.”

US Constitution
a Work in Progress

The government … devised [by the drafters of the Constitution of the United States] was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights we hold as fundamental today.…

“Some may more quietly commemorate the suffering, struggle, and sacrifice that triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled.

Supreme Court of the United States 
“I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.” [Thurgood Marshall on the occasion of U.S. Constitution’s bicentennial (1987)]

Justice Marshall

Marshall had a long record of strong support for U.S. Constitutional protection of human rights and the two justices, Marshall and Brennan, were allies on the High Court in opposing the death penalty.

Brennan and Marshall concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled four years later that the death penalty was constitutional in some circumstances.

Thurgood Marshall (b. July 2, 1908 – d. January 24, 1993), appointed by US President Lyndon Baines Johnson, served on the Supreme Court of the United States from October 1967 until October 1991.  Before coming to the high Court Marshall was a lawyer who was best known for his high success rate in arguing before the Supreme Court and for the victory in Brown v. Board of Education, a decision that desegregated public schools. He served on the United States Court of Appeals for the Second Circuit (appointed by President John F. Kennedy) and then as U.S. Solicitor General (appointed by President Johnson)

Those who wrote the Eighth Amendment knew what price their forebears had paid for a system based, not on equal justice, but on discrimination.

“In those days the target was not the blacks or the poor, but the dissenters, those who opposed absolutism in government, who struggled for a parliamentary regime, and who opposed governments’ recurring efforts to foist a particular religion on the people. Id., at 155-163.

“But the tool of capital punishment was used with vengeance against the opposition and those unpopular with the regime. One cannot read this history without realizing that the desire for equality was reflected in the ban against ‘cruel and unusual punishments’ contained in the Eighth Amendment.

“In a Nation committed to equal protection of the laws, there is no permissible ‘caste’ aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.

“In ancient Hindu law, a Brahman was exempt from capital punishment, and under that law, ‘generally, in the law books, punishment increased in severity as social status diminished.’ We have, I fear, taken in practice the same position, partially as a result of making the death penalty discretionary and partially as a result of the ability of the rich to purchase the services of the most respected and most resourceful legal talent in the Nation.

“The high service rendered by the ‘cruel and unusual’ punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, non-selective, and non-arbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.” [U.S. Supreme Court FURMAN v. GEORGIA, 408 U.S. 238 (1972) 408 U.S. 238 

Justice White

Byron Raymond White (b. June 8, 1917 – d. April 15, 2002), appointed by US President John F. Kennedy, served on the Supreme Court of the United States from 1962 until 1993. White took a middle course on the issue of the death penalty – though he was not against the death penalty in all forms – and “was one of five justices who voted in Furman v. Georgia (1972) to strike down several state capital punishment statutes, voicing concern over the arbitrary nature in which the death penalty was administered. The Furman decision ended capital punishment in the United States until 1977.”

I think this country would be much better off if we did not have capital punishment.”

“Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). … Today one of the sources of such arbitrariness is the decision of state prosecutors—which is not subject to review—to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office.” [Justice John Paul Stevens]

Justice Stevens

John Paul Stevens (b. April 20, 1920), appointed by US President Gerald Ford, served on the Supreme Court of the United States from December 19, 1975, until June 29, 2010. During his tenure, Stevens served with three Chief Justices: Warren E. Burger, William Rehnquist, and John G. Roberts.

I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds.

“… Even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, […] and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.”

[After many years’ trying] “…to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor,” he resolves, “From this day forward, I no longer shall tinker with the machinery of death.…

It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

The basic question—does the system accurately and consistently determine which defendants ‘deserve’ to die?—cannot be answered in the affirmative.

Justice Blackmun

Harold Andrew Blackmun (b. November 12, 1908 – d. March 4, 1999), appointed by US President Richard Nixon, served on the Supreme Court of the United States from 1970 until 1994.

Sources and notes


FURMAN v. GEORGIA CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 69-5003 Argued January 17, 1972, Decided June 29, 1972: Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall have filed separate opinions in support of the judgments.]


“Tinkering with the Machinery of Death: The Evolving Jurisprudence of Justice Harry Blackmun” – Justice Harry Blackmun’s long struggle to reconcile his concern for the individual, his respect for legislative and judicial process, and his awareness of the fallibility of individuals and institutions formed a jurisprudence that continues to instruct” by Melissa M. Weldon and Paul M. Shapiro, article posted February 7, 2013, http://mnbenchbar.com/2013/02/tinkering-with-the-machinery-of-death/

SUPREME COURT OF THE UNITED STATES No. 93-7054 BRUCE EDWIN CALLINS, PETITIONER v. JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION on petition for writ of certiorari to the united states court of appeals for the fifth circuit [February 22, 1994] Justice Blackmun , dissenting.

“On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.” http://www.law.cornell.edu/supct/html/93-7054.ZA1.html


A lifelong American writer and writer/activist (former academic and staffer with the U.S. government in Washington), Dr. Carolyn LaDelle Bennett is credentialed in education and print journalism and public affairs (PhD, Michigan State University, East Lansing, Michigan; MA, The American University, Washington, DC). Her work concerns itself with news and current affairs, historical contexts, and ideas particularly related to acts and consequences of U.S. foreign relations, geopolitics, human rights, war and peace, and violence and nonviolence. Dr. Bennett is an internationalist and nonpartisan progressive personally concerned with society and the common good. An educator at heart, her career began with the U.S. Peace Corps, teaching in Sierra Leone, West Africa. Since then, she has authored several books and numerous current-affairs articles; her latest book: UNCONSCIONABLE: How The World Sees Us: World News, Alternative Views, Commentary on U.S. Foreign Relations; most thoughts, articles, edited work are posted at Bennett’s Study: http://todaysinsightnews.blogspot.com/ and on her Facebook page https://www.facebook.com/carolynladelle.bennett. http://www.prweb.com/releases/2014/08UNCONSCIONABLE/prweb12131656.htm http://bookstore.xlibris.com/Products/SKU-000757788/UNCONSCIONABLE.aspx Her books are also available at independent bookstores in New York State: Lift Bridge in Brockport; Sundance in Geneseo; Dog Ears Bookstore and Literary Arts Center in Buffalo; Burlingham Books in Perry; The Bookworm in East Aurora


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