Abstract

Prior to Furman v. Georgia the constitutionality of the death penalty under the eighth amendment had never received explicit consideration by the Supreme Court. Indeed, the eighth amendment itself had been interpreted and discussed at length on only ten occasions in the Court's history. It is my intention to review briefly this history, giving particular attention to the crucial case of Weems v. United States, in order to support my conclusion that under any circumstances and under any legislation the death penalty is invalid under the ban against cruel and unusual punishments.

I presented this view in a memorandum circulated to my brethren in the 1963 term. My reasoning was largely inspired by Weems and the standards it sets down for applying the cruel and unusual punishments clause. Because of the lack of a majority opinion in Furman—three Justices did not address the constitutionality of the death penalty per se but only its validity under the discretionary statutes involved in the cases—the issue appears to be destined for consideration by the courts once again. For this reason I would like to reiterate the Weems standards set out in my 1963 memorandum and apply them to the death penalty. I will then briefly discuss the Furman opinions and examine their bearing on recent proposals to make the death penalty mandatory in certain situations.

How to Cite