No. 88-7351

[June 27, 1990]

Justice Brennan, with whom Justice Marshall joins, dissenting. [n.1]

The Court's most cavalier application today of longstanding Eighth Amendment doctrines developed over the course of two decades of careful and sustained inquiry, when added to the host of other recent examples of crabbed application of doctrine in the death penalty context, see, e.g., Blystone v. Pennsylvania, 494 U.S. (1990); Boyde v. California, 494 U.S. (1990); cf. Saffle v. Parks, 494 U.S. (1990); Sawyer v. Smith, ante, p., suggests that this Court is losing sight of its responsibility to ensure that the ultimate criminal sanction is meted out only in accordance with constitutional principle. While I join Justice Black mun's dissenting opinions in today's decisions, I also adhere to my view that the death penalty is in all circumstances a cruel and unusual punishment:

"The fatal constitutional infirmity in the punishment of death is that it treats 'members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the [Cruel and Unusual Punishments] Clause that even the vilest criminal remains a human being possessed of common human dignity.' As such it is a penalty that 'subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause].' I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. 'Justice of this kind is obviously no less shocking than the crime itself, and the new "official" murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.'" Gregg v. Georgia, 428 U.S. 153, 230-231 (1976) (dissenting opinion) (citations and footnote omitted).

See Furman v. Georgia, 408 U.S. 238, 257-306 (1972) (concurring opinion).

Even if I did not believe that the death penalty is wholly inconsistent with the constitutional principle of human dignity, I would agree that the concern for human dignity lying at the core of the Eighth Amendment requires that a decision to impose the death penalty be made only after an assessment of its propriety in each individual case.

"A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

Thus "a system of capital punishment at once [must be] consistent and principled but also humane and sensible to the uniqueness of the individual." Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). [n.2]

In the past, "this Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake." Id., at 118 (O'Connor, J., concurring). But today's decisions reflect, if anything, the opposing concern that States ought to be able to execute prisoners with as little interference as possible from our established Eighth Amendment doctrine.


1 [This opinion applies also to No. 89-189, Lewis v. Jeffers, post, at .]

2 Justice Scalia's separate opinion dismissing the settled principle underlying Lockett v. Ohio, 438 U.S. 586 (1978), based on the assertion that this doctrinal principle cannot be reconciled with that underlying Furman v. Georgia, 408 U.S. 238 (1976), reflects a misdescription and apparent misunderstanding of our doctrine. Justice Scalia's concern that the Lockett principle is not commanded by the explicit text of the Eighth Amendment has long been rejected by this Court; it is well established that the Eighth Amendment's proscription of cruel and unusual punishments "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958); see Weems v. United States, 217 U.S. 349, 378 (1910). The Lockett and Furman principles speak to different concerns underlying our notion of civilized punishment; the Lockett rule flows primarily from the Amendment's core concern for human dignity, see Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), whereas the Furman principle reflects the understanding that the Amendment commands that punishment not be meted out in a wholly arbitrary and irrational manner. Id., at 303. Our cases have applied these principles together to "insis[t] that capital punishment be imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (emphasis added); see, e.g., Penry v. Lynaugh, 492 U.S. 302, 319, 326-328 , (1989). See generally post, at 711 (Stevens, J., dissenting).