-------------------------------------------------- Correcting the _Gregg_ Court's Error of History: Humanity, Necessity, and the Eighth Amendment -------------------------------------------------- These early summer days of 2012 mark for the United States the anniversaries of two pivotal Supreme Court cases on the death penalty. On June 29, we observed the 40th anniversary of the truly landmark decision in _Furman v. Georgia_, 408 U.S. 238 (1972), overturning all existing state and federal capital statutes and leaving open the question of whether the death penalty might, _per se_, violate the basic standards of human dignity guaranteed by the Eighth Amendment prohibition against "cruel and unusual punishments." July 2 marked the 36th anniversary of a less happy decision: _Gregg v. Georgia_, 428 U.S. 153 (1976), holding the death penalty to be constitutional under the Eighth Amendment and sketching out the general outlines of acceptable statutory schemes under which 1300 executions have taken place. From another perspective, the _Gregg_ decision and its companion cases -- taken together with the earlier ruling in _Furman_ -- have over the past 36 years spawned an amazingly intricate and, I must admit, intellectually intriguing maze of what we know as modern death penalty jurisprudence. The seductive refinements and complexities of the Court's many capital punishment cases can curiously draw in even a passionate abolitionist such as myself, making me recall the remark of one world-class scientist about the atomic bomb: "But it's splendid physics!" Simply put, the theme of this intricate jurisprudence is to establish a set of rules for identifying and executing only "the worst of the worst," as Professor Robert Blecker of New York Law School often puts it. Two cardinal rules are as follows: (1) The death penalty must be restricted to the crime of murder -- putting aside the question of certain extraordinary national security offenses such as treason or espionage -- and further limited to specific categories of aggravated murder. (2) Even for those convicted of these most serious murders, there must be a fully individualized and informed penalty determination in which a jury or trial judge must consider any aspect of a defendant's personality, background, or life history which might call for a sentence of less than death, most typically today life without parole (LWOP). In short, _Gregg_ and its companion cases of July 2, 1976 established a death penalty regime, for jurisdictions which wished to retain capital punishment at all, in which execution would be, not a routine part of the criminal justice system, but the rare exception, calling for unique and intricate substantive and procedural safeguards. Over the decades, such able and eloquent critics as Stephen Bright, Carol Steiker, and Justice John Paul Stevens (during and after his tenure on the Court) have rightly focused on the gap, or often chasm, between this ideal of a "narrowed" and carefully individualized death penalty system, and the often cruder practice "on the ground" which has sent 1300 prisoners to their deaths. The usual suspects of such scholarly and often passionate critiques include overbroad statutes failing meaningfully to narrow the scope of capital murder, as in California; ill-informed and ill-prepared attorneys who tragically never present to a jury or judge the mitigating facts of a defendant's life which would compellingly call for a verdict of life; and appellate courts tending to set a "rubber stamp" on a death sentence rather than carefully to weigh whether it fits not only the crime but the unique defendant at the bar. Over these proceedings looms also the shadow of pervasive if often unrecognized racism: the horrific heritage of the Middle Passage, of slave codes and burnings at the stake, of Jim Crow and the wounds it has left on the souls of all who partake of the good and bad in the life history of our Republic. A recent and forceful reminder was the 25th anniversary of another fateful decision: _McCleskey v. Kemp_, 481 U.S. 279 (1987), in which a closely divided Court ruled 5-4 that statistical evidence linking the probability of a death verdict to the race of the victim would not constitute a constitutional flaw unless a defendant could show discriminatory intent in his or her specific case. While these are all worthy and weighty concerns, I shall focus here on a more basic criticism of _Gregg_: it gets a basic point of history wrong, and attempts to justify a death penalty regime which by the enlightened 18th-century standards which inform the Eighth Amendment is unnecessary, and therefore "cruel and unusual." It is only fair that I give due credit to a catalytic influence who has helped to impel my quest: Justice Antonin Scalia, who urges that the interpretation of the Cruel and Unusual Punishments Clause of the Eighth Amendment should be linked to the 18th-century realities surrounding this constitutional text. The fact that Justice Scalia and I reach diametrically opposed results on the constitutionality of the death penalty may indeed confirm that interpretation remains in the eyes of the beholder, whether in 1791 or today. It is also fair and mete that I give enthusiastic credit to Justice Thurgood Marshall for presenting the gist of the argument I shall develop here: that the Eighth Amendment should be read to incorporate the widespread 18th-century view that the death penalty can be justified only if and when it is absolutely "necessary," see _Furman v. Georgia_, 408 U.S. 208, 321 n. 19 (Marshall, J., concurring). --------------------------------------------------------- 1. The _Gregg_ Court's error and the 18th-century reality --------------------------------------------------------- The Court's critical error of history occurs in a sentence quite accurate as to the state of public opinion in 1976, when there was widespread support for enacting new death penalty statutes to replace the ones struck down in _Furman_ four years earlier: Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. _Gregg_, supra, 428 U.S. 153, 180. The disputable and in my view clearly erroneous phrase here is "dating back to the 19th century," as if "the continuing debate... over the morality and utility of capital punishment" were not already taking place by 1791, when the Eighth Amendment was ratified! For a better perspective on the original context of this amendment, we might well turn to Justice James Wilson, one of the first Members of the United States Supreme Court, who in May, 1791, in carrying out his circuit duties, addressed a federal grand jury in Virginia on questions of crime and punishment: It is the opinion of some writers, highly respected for their good sense, as well as for their humanity, that capital punishments are, in no case, necessary. It is an opinion, which I am certainly well warranted in offering -- that nothing but the most absolute necessity can warrant them. _A Charge Delivered To The Grand Jury In The Circuit Court Of The United States, For The District Of Virginia, In May, 1791_, in James Wilson, _Collected Works of James Wilson_, Vol. 1, ed. Kermit L. Hall and Mark David Hall, Online Library of Liberty, E-Book edition at 254-270, at 266 . Two points are of special interest. First, Justice Wilson notes that "some writers, highly respected for their good sense, as well as for their humanity," advocate the total abolition of the death penalty. Doubtless he means to include Cesare Beccaria, whose _Essay on Crimes and Punishments_ of 1764 had galvanized the movement for criminal law reform in Europe and the new Republic of the United States. He might also have in mind Benjamin Rush, like him a Pennsylvanian, who had signed the Declaration of Independence and was now spearheading the American movement to replace capital punishment with long-term imprisonment as the appropriate penalty for murder as well as other serious felonies. Secondly, Wilson holds that "nothing but the most absolute necessity" can warrant the punishment of death. This leaves open the question of whether, in fact, Beccaria and his followers were correct that no such necessity exists, but indicates a presumption against the extreme measure of execution. Justice Wilson's view was evidently influenced by that of William Eden, 1st Baron Auckland, whose _Principles of Penal Law_ ((London: Printed for B. White and T. Cadell, 1771) p. 21, includes the following statement: Nothing, however, but the evident result of absolute necessity, can authorize the destruction of mankind by the hand of man. For Eden, to borrow a phrase favored by many American jurists of the post-_Furman_ world some two centuries later, "death is different." As he enlarges on his doctrine of "absolute necessity": The infliction of Death is therefore not to be considered in any instance, as a mode of punishment, but merely as our last melancholly resource in the extermination of those from society, whose continuance among their fellow-citizens is become inconsistent with the public safety. Id. at 22. Furthermore, for Eden, the doctrine of "absolute necessity" is not merely wise or prudent counsel to legislators, but an imperative of elementary morality and justice: It cannot be too strongly inculcated, that capital punishments, when unnecessary, are inhuman, and immoral;... Id. at 263. The uncompromising adjectives "inhuman" and "immoral" suggest that unnecessary use of the death penalty would violate the 18th-century values informing the Eighth Amendment. In 1776, five years after Eden published his book on the criminal law, the Maryland Constitution included a provision supporting this conclusion, then numbered Article 14, and now renumbered in very slightly modified form as Article 16: XIV. That sanguinary laws ought to be avoided, as far as is Consistent with the safety of the State:.... "Sanguinary laws" is a common 18th-century expression for capital statutes, literally those which "shed blood." Thus the purport of the Maryland Declaration of Rights seems much in line with Eden and Justice Wilson. Another document showing 18th-century legislative support for the "absolute necessity" test is the famous Pennsylvania statute instituting what was to become the widespread American practice of dividing the crime of murder into degrees. The preamble to this enactment, 1794 Pennsylvania Statutes c. 1766 (April 22, 1794), includes these words: And whereas it is the duty of every government to endeavour to reform, rather than exterminate offenders, and the punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety:... Interestingly, while the test of absolute necessity could be and was invoked in the 18th century to advocate the complete abolition of the death penalty, support for the test was not limited to abolitionists such as Beccaria or Pennsylvania Supreme Court Justice William Bradford. Eden, id. at 21, for example, opined: "Capital executions are in all states necessary." Justice Wilson left the question open, and the continued presence of capital punishment in Maryland and Pennsylvania after their respective constitutional and statutory declarations of 1776 and 1794, a presence continuing to this day, shows how 18th-century and later retentionists and abolitionists could agree on the necessity test, but not necessarily on the result of applying that test to a given jurisdiction at a given time. ---------------------------------------------- 2. The necessity test applied in 1791 and 2012 ---------------------------------------------- Justice Wilson, while he is very confident in stating the necessity test itself, is noncommittal as to whether abolitionists such as Beccaria and Rush are right. What are some possible motivations for this caution in 1791? One explanation suggested by Justice Wilson's law lectures of 1790-1791, a fascinating survey of the jurisprudence of his times addressed largely to a lay audience, is the almost unprecedented nature of total abolition in the world known to him: In England, in the United States, in Pennsylvania, and almost universally throughout the world, the crime of wilful and premeditated murder is and has been punished with death. Indeed it seems agreed by all, that, if a capital punishment ought to be inflicted for any crimes, this is unquestionably a crime for which it ought to be inflicted. James Wilson, James Wilson, _Collected Works of James Wilson_, Vol. 2, ed. Kermit L. Hall and Mark David Hall, Online Library of Liberty, E-Book edition at 276, . At that time, Tuscany under Grand Duke Leopold was the only well-known example of successful abolition. To call for such a categorical policy as a moral or even constitutional imperative was thus to mandate a journey into a realm largely unknown. Another factor was that the Founding Era marked the beginnings of what may be termed the American Criminal Justice Revolution, involving a shift from capital and other corporal punishments to long-term imprisonment as the "usual" punishment for serious crimes. The Eighth Amendment was adopted by the First Congress in 1789, and ratified in 1791, in the very midst of this dynamic process, with the establishment of Philadelphia's Walnut Street Prison in 1790 as a signal event. Given that the penitentiary as a replacement for the gallows in punishing serious felonies was itself a novelty, many reformers understandably wished to proceed step by step, as Justice William Bradford of the Pennsylvania urged in 1793, gaining some experience with the new system before taking on the yet more drastic novelty of total abolition for murder. In contrast to Justice Wilson's world where abolition seemed the rare exception, in 2012 we learn from Amnesty International that 97 world nations have abolished the death penalty for all crimes, while eight retain it only for "extraordinary crimes" such as treason, genocide, or certain military offenses; and 36 others have either observed moratoria on executions or entered into international commitments not to use the death penalty. This is a total of 141 countries, or over 2/3 of world nations, either abolitionist by law or declining to carry out executions in practice. As Justice Scalia would hasten to caution, simply canvassing international practice is not always a reliable way to interpret the provisions of the United States Constitution. For example, our First Amendment protects from criminalization certain forms of political expression such as Holocaust denial or the open advocacy of racism which in many other democracies would be subject to criminal prosecution. Here, however, current international practice as to the death penalty becomes relevant in applying the necessity test of Justice Wilson and other European and American writers of the Founding Era, taken as a value informing the Eighth Amendment. If capital punishment has been abolished in so many countries, as well as in 17 of our 50 States, can it really be "absolutely necessary" for the defense of society or the control of violent crime? ----------------------------------------- 3. The necessity test and strict scrutiny ----------------------------------------- A critically important point here is that if we take the absolute necessity test seriously as an 18th-century standard of civilization incorporated into the Eighth Amendment, then some portions of the _Gregg_ plurality opinion must be radically recast, leading to a different result. Specifically, Eden's recognition that death is different, and that its unnecessary infliction is not only unwise but "inhuman, and immoral," may call for a standard of strict scrutiny when reviewing this unique penalty, one in which the state must show a truly compelling interest in judicially taking the life of a subdued prisoner, an interest which could not be satisfied by some other punishment such as life without parole (LWOP). Such an elevated level of constitutional scrutiny for execution as a "suspect" penalty sets it apart from other criminal sanctions, where normally legislatures have great scope for exercising discretion, and the courts will defer to the exercise of this discretion as long as it has a rational basis and does not involve gross disproportionality between crime and punishment. As the _Gregg_ Court observed, 428 U.S. at 175: We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. One might reply that the death penalty brings into play a special version of this general rule, because as Eden tells us, the "unnecessary" use of death penalty _is_ cruelly inhumane, so that the Court must strictly scrutinize the alleged necessity. And the death penalty simply cannot withstand this scrutiny in a society where deliberate murders as well as other serious crimes are routinely punished by imprisonment. As to the basic realities of sentencing in the post-_Gregg_ era, Justice Elena Kagan writing for the Court in _Miller v. Alabama_, ___ U.S. ___, ___ (No. 10-9646, June 25, 2012, slip op. at 14, n. 7), noted that juvenile offenders receiving mandatory sentences of life without parole for murder were being subjected to the same punishment -- or, actually, in practice a generally greater one because of the longer term of confinement to be expected -- as adults convicted of similar offenses and bearing a higher level of culpability: Although adults are subject as well to the death penalty in many jurisdictions, very few offenders actually receive that sentence. See, _e.g._, Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts 2006 -- Statistical Tables, p. 28 (Table 4.4) (rev. Nov. 22, 2010). So in practice, the sentencing schemes at issue here result in juvenile homicide offenders receiving the same nominal punishment as almost all adults, even though the two classes differ significantly in moral culpability and capacity for change. Common sense informs us that although the retention of the death penalty under such a system where "almost all" homicidal offenders receive other penalties up to and including LWOP may be politically popular or legislatively widespread, it can hardly be "absolutely necessary" to the defense of society. --------------------------------------------------------- 4. Revisiting the _Furman_ plurality: An originalist view --------------------------------------------------------- The remarks of Justice Kagan for the _Miller_ Court about the infrequency of death sentences recall the concurring opinions in _Furman_ of Justices Potter Stewart and Byron White in _Furman_ focusing likewise on how the penalty of death was "infrequently imposed," see 408 U.S. 238, 309 (Stewart, J., concurring), or "rarely invoked," 408 U.S. at 311-312 (White, J., concurring. A passage from Justice Stewart's opinion is especially striking when one keeps in mind the 18th-century doctrine of absolute necessity: [T]he death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. _Robinson v. California, 370 U.S. 660 [1962]. In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. _Weems v. United States_, 217 U.S. 349 [1910]. In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and its imposition for rape is extraordinarily rare. _Furman_, supra, 408 U.S. 238, 309 (Stewart, J., concurring). From Justice Stewart's perspective in _Furman_, a legislature can hardly deem the death penalty to be "necessary" when it enacts and then leaves on the books discretionary statutes where long-term imprisonment is actually the penalty imposed for a very large majority of capital crimes. His observation in 1972 can apply just as well in 2012, when as Justice Kagan notes "almost all" adult murderers receive a sentence of imprisonment, with offenders whose homicides fall in the most aggravated categories often receiving LWOP. _Miller_, supra, ___ U.S. ___, ___ (slip op. at 14 n. 7). Justice White, in his _Furman_ concurrence, takes an approach much in the spirit of the Founding Era by focusing on the utility of a rarely enforced death penalty -- or, rather, the lack thereof -- in deterring criminal conduct: Most important, a major goal of the criminal law -- to deter others by punishing the convicted criminal -- would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. _Furman_, supra, 408 U.S. 238, 312. In linking the views of Justices Stewart and White to the legal and constitutional thought of the later 18th century, we must note a fine distinction suggested by the statements of the these two justices. For Stewart, the operation of the death penalty schemes at issue in _Furman_ suggests that the _legislature_ does not really find capital punishment to be "necessary." For White, who likewise finds that "legislative will is not frustrated if the penalty is never imposed," 408 U.S. at 311, the intuitive conclusion of an objective observer that a punishment "so seldom invoked" can have little deterrent utility is also a significant consideration. The question of who determines the "necessity" of the death penalty under the Eighth Amendment became of central importance in _Gregg_, after 35 States adopted new death penalty statutes and so emphatically signalled the Court that they indeed still considered capital punishment "necessary" -- if not penologically, one is tempted grimly to add, then at least politically. Ought the Supreme Court to bow deferentially to such legislative judgments, as Justices Stewart and White did in _Gregg_, or should it exercise the strict scrutiny that the 18th-century necessity doctrine implies, demanding under the Eighth Amendment a compelling purpose which could not otherwise be met? In a remarkable report on capital punishment cited by Justice Marshall in _Furman_, 408 at 321 n. 19 (concurring opinion), Pennsylvania Supreme Court Justice William Bradford in 1793 suggests that for a legislature to impose capital punishment where it were not "necessary" would be not only inhuman and immoral, as Eden tells us, but also unconstitutional. Thus see William Bradford, _An Enquiry, how far the Punishment of Death is necessary in Pennsylvania; with Notes and Illustrations_, reprinted in _The American Museum: or, Annual Register of Fugitive Pieces, Ancient and Modern. For the Year 1798 (Printed for Mathew Carey, Philadelphia, by W. and R. Dickson, Lancaster, 1799), at 6-8. Following an agenda in keeping with the title, Justice Bradford in this report first sets forth his doctrine that the unnecessary infliction of death would be unconstitutionally "cruel," and then explores this test of "absolute necessity" as applied to various crimes ranging from murder to robbery, burglary, counterfeiting, and horse-theft. He concludes that capital punishment may be safely abolished immediately for all crimes except deliberate murder (and possibly high treason), and that "a few years experience" with this transitional system leaving only "deliberate assassination" as a capital offense may then lead to the goal of total abolition. See Bradford, id. at 33. In the process of surveying the "delicate ground" of abolition for murder, he offers many observations on homicide and deterrence which provide an intriguing perspective from which to view the reality of capital punishment in the United States in 1972 or 2012. Here it may be helpful first to focus on Bradford's constitutional test of "absolute necessity," and then on his observations about the death penalty as a deterrent, also taking note of some kindred views from his fellow Pennsylvanian, Justice James Wilson of the United States Supreme Court. ----------------------------------------- 4.1. Justice Bradford's test of necessity ----------------------------------------- In seeking out the principles of a humane and constitutional criminal justice system, Justice Bradford, following Montesquieu and Beccaria, stated the principle that any punishment not "absolutely necessary" for the prevention of crime (by restraining the criminal or deterring others) is "a cruel and tyrannical act," id. at 6. Canvassing constitutional provisions supporting this precept, which "deserve[s] a place among the fundamental laws of every free country," he gives pride of place to the French Declaration of Rights: The enlightened patriots, who composed the first National Assembly in France, placed this check on the power of punishment, where it ought to be placed, among "the rights of a man and a citizen." They had long witnessed the ferocity of the criminal law: and they endeavored to guard against it, by declaring, in precise and definite terms, "That the law ought to establish such punishments _only_, as are _strictly_ and evidently _necessary_." Id. at 6, emphasis in original. He then turns to the language of some State constitutions adopted during the era of 1776-1793: Few of the American constitutions are sufficiently express, though they are not silent, on this subject. That of New-Hampshire declares, "That all penalties should be proportioned to the nature of the offence; and that a multitude of sanguinary punishments is impolitic and unjust; the true design of all punishment being to reform and not to exterminate mankind." The constitution of Vermont enjoins the introduction of hard labour as a punishment, in order to lessen the necessity for such as are capital: and that of Pennsylvania, framed in 1776, directed the future legislature "to reform the penal laws -- to make punishments less sanguinary, and, in some cases, more proportioned to the offences." Id. at 6. For the clearest statement of the necessity doctrine, he cites Maryland's Article XIV (now XVI): But it was in Maryland alone, that the _general_ principle was asserted; and, in the enumeration of their rights, we find it declared: "That sanguinary punishments ought to be avoided, as far as is consistent with the safety of the state." Id. at 6. Although Bradford does not directly address the Cruel and Unusual Punishments Clause of the federal Eighth Amendment, he does interpret similar prohibitions against "cruel" punishments in the constitutions of some other States to bar the unnecessary infliction of the death penalty: The other constitutions, which touch on this subject, content themselves with generally declaring, `That cruel punishments ought not to be inflicted.' But does not this involve the same principle, and implicitly prohibit every penalty which is not evidently necessary? Id. at 6. From Bradford's perspective, a constitutional provision such as the Eighth Amendment is thus highly dynamic, subjecting capital statutes to an ongoing test of necessity, a necessity which must be evaluated and re-evaluated in light of "the progress of civilization," see id. at 39. While he does not invoke the term "unconstitutional" to describe the unnecessary use of the death penalty, he clearly expresses the same concept in holding that the two legitimate purposes which might justify capital punishment are "to prevent the offender from repeating the crime, and to deter others from its commission, by the terror of the punishment," id. at 8. If, therefore, these two objects can be obtained by any penalty short of death, to take away life, in such case, seems to be an unauthorised act of power. Id. at 8. Here "unauthorised" and unconstitutional seem synonymous, especially as Bradford has expounded the doctrine of "absolute necessity" as one of the "fundamental laws" worthy of adoption by "every free country," id. at 6. Bradford's phrase "unauthorised act of power" evokes another passage where he wryly suggests that unnecessary executions would hardly be in keeping with our free institutions: One would think. that, in a nation jealous of its liberty, these important truths would never be overlooked; and, that the infliction of death, the highest act of power that man exercises over man, would seldom be prescribed, where its necessity was doubtful. Id. at 6. However, as bright as the prospects were in 1793 for criminal law reform in the new Republic, Bradford added a prophetic warning about the political and specifically legislative barriers such reform may face: Legislators feel themselves elevated above the commission of crimes which the laws proscribe: and they have too little personal interest in a system of punishments, to be critically exact in restraining its severity. The degraded class of men, who are the victims of the laws, are thrown at a distance which obscures their sufferings, and blunts the sensibility of the legislator. Id. at 8. He then describes the consequences in language as timely today as it was 219 years ago: Hence sanguinary punishments, contrived in despotic and barbarous ages, have been continued, when the progress of freedom, science, and morals, renders them unnecessary and mischievous: and laws, the offspring of a corrupt monarchy, are fostered in the bosom of a youthful republic. Id. at 8. Bradford's remarks about the risks of cruel and unnecessary "sanguinary punishments" when capital defendants "are thrown at distance which obscures their sufferings, and blunts the sensibility of the legislator," may recall the famous footnote 4 of _United States v. Carolene Products Co._, 304 U.S. 144, 152 n. 4, observing that federal courts might justifiably apply a higher level of scrutiny to legislation involving "discrete and insular minorities" with limited ability to advance their rights through the normal political process. The doctrine of necessity, as embraced by a range of 18th-century authors and constitutionalized by Bradford, often focuses on capital or "sanguinary" punishments, but is sometimes stated more sweepingly, as when he asserts that "every punishment" not "absolutely necessary" to the control of crime is "a cruel and tyrannical act," id. at 6. This raises the question, not directly addressed in Bradford's report on the death penalty, as to whether a court's level of scrutiny as to the "necessity" of a given criminal sanction should vary with the severity of the punishment under challenge. Such a varying and indeed proportionate level of scrutiny is an appealing solution to the dilemma posed, for example, by Chief Justice Warren Burger in his dissenting opinion in _Furman_, 408 U.S. 238, 396, as to whether state and federal courts striking down the death penalty as unnecessarily cruel might find themselves earnestly adjudicating the issue of whether "a $10 parking ticket is a more effective deterrent than a $5 parking ticket." If one shares the view of Eden and Bradford as well as the United States Supreme Court over the last four decades that death is a punishment unique in its severity and irrevocability, then the need for a uniquely strict level of scrutiny may easily follow. Given that the level of scrutiny to be applied in constitutional adjudication may be seen as analogous to a burden of proof, an observation made by Eden in 1771 may lend support to this conclusion: Reason and the rights of humanity demand, that the strength and strictness of proof be increased in proportion to the enormity of the crime in question. Eden, _Principles of Penal Law_, at 297. Justice Stewart, in his _Furman_ concurrence, provides another attractive way of reaching the same result when he observes that unnecessary death penalty statutes "excessively go beyond" the scope of constitutional punishment "not in degree, but in kind," 408 U.S. 238, 309. Stewart's language was prompted by a perception that the legislature had thus gone beyond its own assessment of a truly "necessary" level of punishment. From a Bradfordian perspective, when legislators enact capital statutes they sincerely but erroneously find to be "necessary," laboring for example under the social distance between policymakers and Death Row inmates which often "blunts the sensibility of the legislator" as effectively in 1976 or 2012 as in 1793, they are likewise exceeding the level of punishment required by society "not in degree, but in kind," and thus violating the Constitution. Strikingly, Bradford himself, in approaching the question of whether the death penalty is "absolutely necessary" to deter murder, focuses on how, to use the modern phrase, "death is different" for jurors, courtroom observers, and society at large as well as for accused or convicted capital offenders. His observations, although directed to the social and judicial realities of the late 18th century, are tellingly relevant to an assessment of the death penalty regime confronted by the _Furman_ plurality in 1972, or described by Justice Kagan in the _Miller_ decision of 2012. ------------------------------------------------------------ 4.2. Justice Bradford on deterrence: Swiftness and certainty ------------------------------------------------------------ In analyzing the deterrent effect of the death penalty in theory and practice, Justice Bradford focuses on two conflicting aspects of this uniquely severe penalty. First, he observes that death may have small deterrent value in societies "where the oppressions of the great drive the lower classes into penury and despair," so that "the prospect of death can be no restraint to the wretch whose life is of so little account." See Bradford, _Enquiry_, at 9. For such degraded victims of oppression, punishments of "solitary imprisonment" and "hard labour" might indeed be "more terrible and impressive," than an encounter with the executioner, id. at 9. In the State of Pennsylvania or more generally the new Republic of 1793, however, Bradford discerns a radically different social landscape where death, at least in principle, could carry a uniquely potent deterrent force: But in a nation where every man is or may be a proprietor, where labour is bountifully rewarded, and existence is a blessing of which the poorest citizen feels the value, it cannot be denied, that death is considered as the heaviest punishment the law can inflict. Id. at 9. To confirm this conclusion, Bradford paints a vivid portrait of how death is different for courtroom participants and onlookers: The impression it [capital punishment] makes on the public mind, is visible when a criminal is tried for his life. We see it in the general expectation -- in the numbers that throng the place of trial -- in the looks of the prisoner -- in the anxious attention and long deliberations of the jury -- and in the awful silence which prevails while the verdict is given in by their foreman. All these announce the inestimable value which is set on the life of the citizen. Id. at 9. In noncapital trials, however, the reality is quite different: But the reverse of this takes place when hard labour is the punishment; and the minds of all present, are free from the weight which oppressed them during the trial of a capital charge. Id. at 9. Also, in Bradford's view, for criminals as well as others, the threat of execution is more quickly and easily comprehended than that of imprisonment: The dread of death is natural, universal, impressive: and destruction is an idea so simple, that all can comprehend and estimate it: while the punishment of imprisonment and hard labour, secluded from common observation, and consisting of many parts, requires to be contemplated or felt, before its horrors can be realized. Id. at 9-10. In practice, however, the problems of administering the death penalty set the question in another light, for criminals as well as the rest of society: But, while this truth is admitted in the abstract, it cannot be denied, that the terror of death is so weakened by the hopes of impunity, that the less punishment seems a curb as strong as the greater. The prospect of escaping detection, and the hopes of an acquittal or pardon, blunt its operation, and defeat the expectations of the legislature. Experience proves, that these hopes are wonderfully strong, and they often give birth to the most fatal rashness. Id. at 10. To illustrate this "fatal rashness," Bradford, who had served as Attorney General of Pennsylvania during the years 1780-1791, told the story of two convicts, one found guilty of robbery and the other of burglary, who under a statute passed shortly after their crimes had the option of having their death sentences reduced to the new penalty of hard labor. Instead, "they obstinately refused to pray the benefit of the act, and submitted to the sentence of death in expectation of a pardon," id. at 10, note at *. This stratagem evidently depended on the understanding at that time that the Governor had the power to grant an outright pardon to a condemned prisoner, but not to commute the sentence to a lesser punishment such as the imprisonment and hard labor imposed by the new statute. As Bradford tells us, one prisoner won his gamble for freedom and received the sought pardon, while the other was executed: The unavailing regret he expressed, when his death warrant was announced, and the horrors which seized him when he was led to execution, proved at once, how terrible is the punishment of death, and how strong are the hopes of pardon! Id. at 10. If these two prisoners, already convicted of capital crimes, spurned the safe and sure escape from the hand of the executioner offered by the new statute -- one with fatal results -- then the deterrent force of the death penalty may also be attenuated in practice for the prospective offender who likely plans on not getting caught in the first place. Through the violence of the temptation, the offender over-looks the punishment, or sees it "in distant obscurity." Few, who contemplate the commission of a crime, deliberately count the cost. Id. at 10. Significantly, as Bradford will elsewhere explain, the chances for "impunity" may include not only an outright acquittal by the jury, but also what he terms a "partial acquittal" -- that is, a conviction for some lesser noncapital offense. These realities lead him to a striking conclusion: These circumstances make it doubtful, whether capital punishments are beneficial in any cases, except in such _as exclude the hopes of pardon_. Id. at 10 (emphasis in original). The hopes of "pardon" on which Bradford focuses could reasonably include not only executive clemency, but also the possibility of a lesser offense conviction by the jury sparing the defendant's life -- and, in discretionary death penalty regimes from the mid-19th century on, the possibility of a capital conviction accompanied by a penalty of imprisonment rather than death. Having presented his view that the death penalty is a uniquely powerful deterrent in theory but often ineffective in practice, he states the other side of the deterrence argument, which emphasizes not only this practical ineffectiveness but the positively brutalizing effect that executions can have on society: It is the universal opinion of the best writers on this subject, and many of them are among the most enlightened men of Europe, That the imagination is soon accustomed to overlook or despise the _degree_ of the penalty, and that the _certainty_ of it is the only effectual restraint. They contend, that capital punishments are prejudicial to society from the example of barbarity they furnish, and that they multiply crimes instead of preventing them. Id. at 10. In discussing the issue of deterrence as it relates to the crime of deliberate murder, Bradford characteristically presents some strong arguments for as well as against the death penalty. The life of the deliberate assassin can be of little worth to society: and it were better that ten such atrocious criminals, should suffer the penalty of the present system, than that one worthy citizen should perish by its abolition. Id. at 32. Two possible lines of rebuttal are available to this apparently compelling argument not unfamiliar in current debates also. The first is that not only are we ignorant of the magnitude (if any) of the net effect of executions on homicide rates; we are also ignorant of the sign or direction of that effect. Thus, based either on the 18th-century view reported by Bradford that executions actually "multiply crimes instead of preventing them," id. at 10, or on some 20th-21st century statistical studies, one could argue that it is quite possible that each ten executions have the net effect of leading to one more rather than one less murder. There is no risk-free policy for protecting innocent citizens -- even if we put aside the matter of those who may be innocently condemned and executed. Where Bradford himself finds a potential problem, however, is with the need of capital punishment, if it is to be an effective deterrent, to exclude "the hopes of impunity," id. at 32. As a possible solution to one aspect of this problem, as well as a useful device whether or not the death penalty is retained, Justice Bradford proposes a concept which will quickly become a commonplace of American jurisprudence: degrees of murder. The scope of capital liability, or of liability to suffer whatever ultimate punishment is substituted for death in an abolitionist regime, should be limited to "murder in the first degree": that is, "any wilful, premeditated, and deliberate killing." See id. at 39, n. at *. Sketching out the kind of society where so narrowing the scope of capital murder might permit the death penalty to serve as an effective deterrent, a society which views this "single crime" as "of such a nature as to exclude the hopes of pardon," Bradford evokes the fateful scene that the law is to authorize: If we seek a punishment capable of impressing a long and lasting terror, we shall find it in an execution rarely occurring -- solemnly conducted -- and inflicted in a case, where the feelings of mankind acquiesce in its justice, and do not revolt at its severity. Id. at 32-33. By 1793, however, as Bradford amply documents elsewhere in his report, the "revolt" against the "severity" of the death penalty even for the crime of deliberate murder was well underway, with a resolution of the Pennsylvania Senate (February 22, 1793) recording the serious doubts of some committee members "whether the terrible punishment of death be in any case justifiable and necessary in Pennsylvania," see id. at 39, n. at *. Indeed, Bradford's own observation that the death penalty can only be effective if citizens do not "revolt at its severity" may have been influenced by the language of Founder and abolitionist Benjamin Rush: Humanity, revolting at idea of the severity and certainty of a capital punishment, often steps in, and collects such evidence in favour of a murderer, as screens him from death altogether, or palliates his crime into manslaughter.... If the punishment of murder consisted in long confinement, and hard labour, it would be proportioned to the measure of our feelings of justice, and every member of society would be a watchman, or a magistrate, to apprehend a destroyer of human life, and to bring him to punishment." Benjamin Rush, "An Enquiry Into the Consistency of the Punishment of Murder by Death, With Reason and Revelation," in _Essays, Literary, Moral, and Philosophical_, 2nd ed. (Philadelphia: Thomas and William Bradford, 1806) 164-165. In another section of his report, Bradford presents some statistics indicating that in trials for formerly but not currently capital offenses in Pennsylvania such as burglary and robbery, both outright acquittals and "partial acquittals" (lesser offense convictions) were more likely to occur when these crimes were subject to the death penalty. In this he sees "nothing but the humane struggles of the jury to save the offender from death," id. at 24. Having sketched out his scenario for an effective death penalty restricted to the crime of first-degree murder or "deliberate assassination," in a society with a strong enough consensus in favor of this penalty "to exclude the hopes of pardon," he presents his own view of capital punishment: But while I contend that this is the most powerful curb of human governments, I do not contend that it is absolutely necessary, or that a milder one will be insufficient. It is possible, that the further diffusion of knowledge and melioration of manners, may render capital punishment unnecessary in all cases: but, until we have had more experience, it is safest to tread with caution on such delicate ground, and to proceed step by step in so great a work. A few years experience is often of more use than all the theory and rhetoric in the world. Id. at 33. In fact, while leaving the timeframe open, he anticipates "the period, when, in the progress of civilization, the punishment of death shall cease to be necessary; and the legislature of Pennsylvania, putting the key-stone to the arch, may triumph in the completion of their benevolent work." Id. at 39. Bradford's gradualist agenda for abolition thus called first for the immediate restriction of the death penalty to the new offense of murder in the first degree, actually achieved by the statute of 1794; then, after "a few years experience" with this new system, total abolition might sooner or later follow. The end of the death penalty, of course, will not end the need for society to deter atrocious murders, and especially those, such as premeditated robbery-murders to prevent the victim for identifying or testifying against the perpetrator, where the prospective penalty might exert some influence on the offender. Bradford has some sound advice on the need to make the penalty for such calculated murders truly awesome: Whatever be the punishment inflicted on the higher degrees of murder, it ought to be widely different from that of every other crime. If not different in its nature, at least let there be some circumstance in it calculated to strike the imagination -- to impress a respect for life -- and to remove the temptation which the villain otherwise has, to prevent the discovery of a less crime, by the commission of a greater. Id. at 33. Almost every State in the Union now makes available or positively mandates the punishments of life imprisonment without parole -- in Bradford's terms, "perpetual imprisonment," id. at 8 -- for aggravated murders of this type. The irrevocable loss of the hope of release from prison, except in the rare case where a miscarriage of justice is later discovered, is indeed a circumstance "calculated to strike the imagination" and "to impress a respect for life." In addition to taking the view that the death penalty could serve as an effective deterrent only if imposed and executed with a certainty excluding the hope of jury leniency or pardon, Bradford briefly considers the matter of swift punishment. Comparing execution and perpetual imprisonment, he notes the latter has the advantage "that punishment may follow quick upon the heels of the offence, without violating the sentiments of humanity and religion," id. at 8. Here "the sentiments of humanity and religion" are those which require some interval between sentence and execution in order to permit a condemned prisoner to prepare spiritually for death, typically a few weeks or months in the practice of the late 18th or early 19th century. This modest delay, which Bradford nevertheless found an argument in favor of life imprisonment as the speedier sanction, contrasts with today's "Death Row phenomenon" of many years or even decades intervening between sentence and possible execution. Bradford's colleague, Justice Wilson of the United States Supreme Court, expressed the same concern with swiftness of punishment in his address to the Virginia grand jury in 1791: When a penalty marches close in the rear of the offence, against which it is denounced; an association, strong and striking, is produced between them: and they are viewed in the inseparable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period; this connexion is considered as weak and precarious; and the execution of the law is beheld and suffered as a detached instance of severity, warranted by no cogent reason, and springing from no laudible motive." Wilson, supra, v. 1, pp. 255-256. Wilson also offers a general observation as to what is to be expected when the severity of the law exceeds the limits of humanity as perceived by a substantial segment of society: If [the perpetrator is] prosecuted and tried, the jury will probably find, or think they find, some decent ground, on which they may be justified, or at least excused, in giving a verdict of acquittal. Id. at 254. While the remarks of Bradford and Wilson regarding delays between sentence and punishment may carry a special and prophetic relevance for the "modern" death penalty era initiated by _Furman_ and _Gregg_, the remarks of these jurists about jury psychology and reluctance to convict in capital cases are equally relevant to the situation in the Founding Era or today. Let us consider these and related factors in a modern setting. ------------------------------------------------------ 4.3. Bradford's deterrence theory and modern realities ------------------------------------------------------ In Bradford's view, as we have seen, the death penalty, if "necessary" (and therefore constitutional) at all, could be so only when restricted to the crime of deliberate murder and then administered by relevant actors, including jurors and governors, in such a way as to exclude all hope of impunity for offenders -- at least once the offenders were caught. Even in 1793, was this scenario a realistic basis for legislation, or simply a compromise solution to a social and legal conundrum? As Justice Bradford's report suggests, a major barrier to immediate and total abolition of the death penalty was simply the lack of much known modern experience with such a policy, in Europe or elsewhere, with the Grand Duchy of Tuscany as the one convincing success. Proceeding "step by step," and getting the benefit of "a few years experience" before taking the final step, id. at 33, might seem like prudent common sense. The conundrum facing Bradford under his own assumptions, and which we may wonder whether or how he perceived, was that although Pennsylvania might not yet have been ripe for what seemed the radical innovation of total abolition, it had arguably already moved well beyond the point where a death penalty reserved even for first-degree murder could win the consistent assent of jurors or the general acquiescence of citizens witnessing the awful spectacular of an execution. In other words, the death penalty might already be "unnecessary" in the Pennsylvania of 1793 simply because the conditions were not present in which it could be effective, and thus possibly necessary. Three developments in Pennsylvania during the following decades tended to confirm this conclusion. First, calls for total abolition, a cause pioneered by Rush from 1787 on, continued, with Governor Simon Snyder urging this policy in 1809, and a Senate committee joining him in 1812. For a survey of these and other attempts at abolition, see Albert Post, "Early Efforts to Abolish Capital Punishment in Pennsylvania," 68 _Pennsylvania Magazine of History and Biography_ (1944) 38-53. Secondly, a perception that juries were frequently acquitting capital murder defendants despite clear evidence of guilt, or returning lesser offense convictions (e.g. manslaughter or second-degree murder) unsupported by the evidence, suggested that Rush's "revolt" against the "severity" of capital punishment was continuing. Third, far from acquiescing at the justice of the death penalty, execution crowds might either feel sympathy for a prisoner such as Susanna Cox, executed in 1809 for allegedly murdering her own infant child in the immediate aftermath of giving birth; or engage in riotous behavior, as during and after the execution of John Lechler in 1822. As reactions to these developments, we see two trends common in other States also: the advent of death qualification during the period of 1827-1832 to screen out jurors unwilling to return a capital conviction regardless of the facts; and the moving of executions in 1834 from the public square to behind jail or prison walls. Moving ahead another 140 years, how might Justice Bradford view the death penalty systems which came before the United States Supreme Court in _Furman_ and _Gregg_? And, advancing to the early 21st century, what might he say about these systems today? By 1972, the mandatory death penalty which he implicitly regards as the only possibly effective one -- since the authority for the jury to show individualized mercy to capital defendants would write into the statute the very hope of escaping death which he feels it is essential to exclude -- is almost unknown in American jurisprudence. Jury discretion to grant mercy, exercised so as to make executions quite rare, is the rule. As Justice White summarizes this situation, _Furman_, supra, 408 U.S. 238, 313 (concurring opinion): The short of it is that the policy of vesting sentencing authority primarily in juries -- a decision largely motivated by a desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence -- has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has, for all practical purposes, run its course. From a Bradfordian perspective, such a reality may justify declaring the death penalty unnecessary, and therefore unconstitutional, for two main reasons. First, the fact that life goes on and democratic institutions thrive while the death penalty is so rarely imposed and even more rarely executed indicates that this punishment can hardly be "necessary to the peace, order, and happiness of society." See Bradford, _Enquiry_ at pp. 29. Secondly, Justice Bradford's observations about deterrence in 1793, like those of Justice White in 1972, lead to the conclusion that such a rarely enforced penalty can hardly be effective enough to bring into play any convincing claim of "necessity." To bring home this latter point, we might compare two texts published 150 years apart. The first is from is John Neal's novel _Logan: A Family History_ (1822). The narrator, having described the hanging of a number of prisoners at the yardarm for piracy and the granting of a reprieve to one, expresses his support for this act of mercy. He is countered by a stranger with this argument: "...That reprieve was injudicious. Punishment should be _certain_. _Certainty_ does more than _quantity_, in penal codes, to counterbalance temptation. Were there but one man in a million pardoned, every criminal would hope that himself would be that man. Each expects the prize in a lottery." Neal, 2 _Logan: A Family History_ 9 (2 vols.), Philadelphia: H.C. Carey & I. Lea, 1822). This quote nicely fits with Justice Bradford's views as to the "fatal rashness" with which criminals will seize at any hope of impunity, for example daring a governor either to hang them or set them free rather than accepting a sure sentence of hard labor. There is also the irony that Beccaria's abolitionist argument emphasizing the deterrent efficacy of certainly rather than severity, is turned around to justify a policy of executions without mercy. The second text is from Justice Brennan's _Furman_ concurrence, 408 U.S. at 293 (1972): When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system. The contrast is that in Neal's _Logan_, the "lottery" involves the small chance that even one condemned prisoner among many may receive a pardon; in Justice Brennan's opinion, it involves the comparably small chance that a given capital offender may actually be executed. From a Bradfordian perspective, the issue is not so much that such rare use of the death penalty for people convicted of a given offense is arbitrary, as that it is obviously "unnecessary," whether or not the legislature responsible for such a statute recognizes this lack of necessity. And since the death penalty is clearly unnecessary, the proper judicial response is to declare it an "unauthorised act of power," Bradford, _Enquiry, at 8. We must now confront the intricate "narrowing" jurisprudence of the Court in _Gregg_ and subsequent cases. This jurisprudence may make the decision to impose death appear more rational and informed, and may indeed save lives here and there which might have been lost under a pre-_Furman_ regime (especially if the defendant is represented by a competent penalty phase attorney aided by an appropriate team of professionals including a mitigation specialist). However, it is in essence an attempt to invent some new rationale for a death penalty system already shown to be unnecessary, and thus in a Bradfordian view unconstitutional. If one takes seriously Eden's declaration that unnecessary executions are "inhuman, and immoral," then such an accommodation of state legislatures which may have read the three _Furman_ plurality opinions as an invitation to invent a more intricate machinery of death is a dubious achievement indeed. Further, the reality even in the most sanguinary States such as Texas excludes the rationale that Eden evidently found compelling in concluding that "Capital executions are in all states necessary." Eden, _Principles of Penal Law_, at 21. This rationale is the conviction that "[t]he proper judgment against deliberate murder, is death; and in the rigid infliction of this judgment both the safety and morality of mankind are greatly interested," id. at 222. To demonstrate this proposition, Eden offers not any analysis of 18th-century society, in the United Kingdom or elsewhere, but some Bible quotations from "the Mosaical law," and most notably a favorite text for retentionists, Genesis 9:6, "Whoso sheddeth man's blood, by man shall his blood be shed." Id. at 222-223. In a post-_Gregg_ system where most common law murders are not capital, and where even "death-eligible" offenders after their convictions are constitutionally guaranteed an informed and individualized penalty trial designed precisely to seek out any "mitigating factors" which may militate against the "rigid infliction" of death which Eden urges, of what relevance is a supposed Biblical precept honored largely in the breach? See, e.g., _Lockett v. Ohio_, 438 U.S. 586, 604-605 (1978). Today, execution rates per year over the U.S.A. as a whole are comparable to those of 50 years ago. Thus Justice Brennan, in _Furman_, noted 42 executions in 1961 and 47 in 1962; in the most recent completed years, there were 46 executions in 2010 and 43 in 2011. Since _Gregg_, along with an intricate structural and procedural apparatus for designing and managing a "constitutional" death penalty system, there have developed equally convoluted explanations as to why this system either does or does not meet "the requirements of _Furman_." There are debates about whether the system is sufficient consistent, or merciful, or both. If one must have such a system, then the jurisprudence of Justice Stevens (before he found the death penalty unconstitutional in 2008) is the most intelligible and least immoral: define capital crimes as narrowly as possible, with appellate courts carefully policing the inevitable tendencies toward legislative overbreadth and indiscriminate application; and maximize opportunities for jurors to show mercy, and for appellate tribunals to review the individualized appropriateness of death in earnest as well as in form. The fatal flaw of such a system is not that it shows too much mercy, but that it is unnecessary, and therefore unconstitutional in a situation where humanity and morality demand nothing less than total abolition. -------------------------------- 4.4. The question of retribution -------------------------------- Many of the 18th-century philosophers favoring the doctrine of necessity, including Justice Bradford, emphasize what may broadly be called the "preventive" purposes of the criminal law: to restrain actual offenders, for example by perpetual imprisonment in cases of deliberate murder; and to deter others from committing like offenses. However, it would seem an act of constitutional overreaching to read such statements as excluding any purpose of retribution: that is, of punishment as a way of holding the offender accountable and decisively communicating and reaffirming its own values in the face of an act of homicidal violence. Bradford's counsel that legislatures should keep in place a truly awesome punishment such as perpetual imprisonment for deliberate murder in order to "impress a respect for life," _Enquiry_, at 33, could be read in a preventive or retributive sense. The preventive view sees the message as directed mainly to prospective offenders (potentially anyone), while the retributive view sees it as equally directed to the offender who is held accountable, and to victims and their families whose humanity is reaffirmed. When an especially heinous murder takes place, there is also the related purpose of assuring the victim's family and community that the legal case is closed, and that the perpetrator will never be released back into society (unless at some future time shown to be actually innocent!). This purpose might be termed "legal closure" or "legal finality"; family members of murder victims often object to the common term "closure" because it may create the false impression that any punishment for the offender could end or resolve their continuing pain and loss. Whatever term we choose, this purpose, like that of retribution, can be fulfilled by a sentence of life without parole, thus avoiding any supposed necessity to kill the perpetrator. Indeed, as early as 1796, abolitionist and reformer Robert J. Turnbull of South Carolina was arguing that a "life punishment" of imprisonment mixing periods of solitude and hard labor would exact a more adequate expiation for the unspeakable crime of deliberate murder than the spectacle of death by execution. Thus see Robert J. Turnbull, _A Visit to the Philadelphia Prison; Being an accurate and particular Account Of the Wise and Humane Administration Adopted in every Part of that Building; Containing Also An Account of the Gradual Reformation and Present Improved State of the Penal Laws of Pennsylvania: With Observations on the Impolicy and Injustice of Capital Punishments. In a Letter to a Friend_ 69-70 (Dublin: Robert Dapper, 1798). From this perspective, we may consider a famous passage in the _Furman_ concurrence of Justice Stewart, 408 U.S. at 308: 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. This is a sound argument insofar as it holds that impunity for heinous offenses weakens the credibility of a criminal justice system as well as raising at least the question of whether citizens may be tempted to seek "self-help." However, while it is a sound rationale for severely punishing murderers, it is a poor one for killing them. More specifically, it is a poor reason to kill when the alternative sanction of life without parole is available to remove the offender permanently from society without the further shedding of human blood. To sum up Turnbull's conclusions some 215 years ago, LWOP is at once less cruel and sanguinary, but more relentless, as an atonement for the worst homicidal crimes. Justice Stewart's own description of the death penalty may best sum up why the 18th-century doctrine of "absolute necessity" is correct, and a mere desire from what is politely termed retribution cannot supply that necessity: The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. Id. 408 U.S. 238, 306 (Stewart, J., concurring). As defined by some recent exponents such as R. A. Duff and Dan Markel, the goal of retribution is not Stewart's "absolute renunciation of all that is embodied in our concept of humanity," but rather the affirmation of the offender's humanity, responsibility, and accountability to society for criminal conduct. As Markel summarizes two of the most important objections from this retributivist standpoint, the death penalty is "immodest" in preventing the correction of miscarriages of justice; and it "offends human dignity." See Dan Markel, "State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty," 40 _Harvard Civil Rights-Civil Liberties Law Review_ 407, 462-468 (2005). See also R. A. Duff, _Punishment, Communication, and Community_ (Oxford: Oxford University Press, 2001) 152-155. The approaches of Markel and Duff suggest that retribution, as opposed to revenge, is a penal objective or purpose incompatible with the death penalty. This leaves genuine retribution, together with deterrence, incapacitation, rehabilitation, restitution, and a final legal resolution for victims and their families, as policy goals which a legislature might seek in imposing criminal sanctions up to and including the ultimate constitutional sanction of life without parole for the most serious murders. ------------- 5. Conclusion ------------- When one returns to one of the roots of the Eighth Amendment, the doctrine of necessity excluding the death penalty unless it is truly indispensable to the defense of society, then it becomes clear that the death penalty was shown to be objectively unnecessary long before _Furman_ -- arguably by 1793, when Justice Bradford wrote his _Enquiry_. Justice Wilson, in 1791, had already noted in his charge to a Virginia grand jury that some of the most respected writers held capital punishment to be unnecessary for any crime. In one passage with resonance for a 21st-century human rights perspective, Bradford draws an analogy between the death penalty and torture: Forty years ago, the execrable practice of torture was general on the continent of Europe: and it was considered to be as necessary in the administration of justice, as capital punishments are at present. Against this cruel institution all the powers of reason and ridicule were exerted: and the folly as well as the wickedness of it has been so happily exposed, that it has either been wholly suppressed, or has become so disreputable as seldom to be exercised." Id. at 7, n. at *. With the death penalty, as with torture, mere political fashionability or the passion for revenge cannot supply a necessity which is objectively lacking for such repugnant means of "justice." A lesson of _Furman_ and _Gregg_ is that one of the most dangerous intellectual seductions and constitutional misdirections is the quest for more and more refined legal doctrines and procedures to guide us in wielding the unworthy and debasing instrument of state killing. In her observation in _Miller v. Alabama_ that "almost all" adult capital offenders actually receive sentences of LWOP, Justice Kagan vividly evokes, whether intentionally or otherwise, the plurality opinions in _Furman_ focusing on "infrequency." After 40 years in the judicial wilderness, it is time for the Court to conclude that the death penalty now violates the original 18th-century values of the Eighth Amendment because it is clearly unnecessary. Not only is it abolished for all crimes in 97 world nations including many of our closest neighbors and allies, and disfavored in law or practice by 141 in all; and also abolished in 17 of our 50 States. Additionally, it yields in an impressive preponderance of cases to LWOP even in the remaining States where it is still available. And life goes on in all of these jurisdictions. Following the 18th-century jurisprudence of Justice Bradford, and applying his precepts and values to the facts at hand, the result is clear: _Gregg_ must be overruled, and the death penalty declared unnecessary and therefore unconstitutional under the Eighth Amendment. Margo Schulter mschulter@calweb.com Sacramento, CA, USA July 6, 2012