would reduce the possiblity of its unreasonable imposition. This, coupled with sentencing guidelines, should ultimately produce a rational pattern in death sentencing. Mandating capital punishment on the basis of special findings by the jury should also promote greater uniformity and rationality. While there is no assurance that this approach would be sustained by the Supreme Court, it probably stands the best chance of success and, in addition, is to be preferred on policy grounds. It provides the best opportunity for the selective application of the death penalty to a highly serious offense in a manner that may deter other offenders, satisfy the moral standards of the community, and comport with judicial notions of rationality and fairness. APPENDIX FEDERAL CIVIL STATUTES AUTHORIZING DISCRETION IN IMPOSING CAPITAL PUNISHMENT (NONE PROVIDING STATUTORY STANDARDS) I. Statutes under which only the jury can impose death sentence: 18 U.S.C. 837 (b) (transporting explosives with intent to injure, if death results) 18 U.S.C. 1201 (a) (kidnapping, if victim not released unharmed) 21 U.S.C. 176b (selling heroin to minor) 42 U.S.C. 2272 (violating or impeding enforcement of Atomic Energy Act) 42 U.S.C. 2274, 2275, 2276 (communicating, acquiring, or tampering with restricted data with intent to injure United States) II. Statutes which provide for death penalty unless jury qualifies its verdict as "without capital punishment": 18 U.S.C. 1111 (first degree murder within federal territory) 18 U.S.C. 1114 (murder of designated federal officials) 18 U.S.C. 1751 (murder or kidnapping, if death results, of President or others in line of presidential succession) III. Statutes which provide that jury or judge trying guilt, or judge after guilty plea, may set death penalty: 18 U.S.C. 34 (destruction of aircraft or motor carrier facilities, resulting in death) 18 U.S.C. 1716 (causing death by mailing injurious substances) 18 U.S.C. 1992 (train wrecking resulting in death) [death or life, in discretion of jury or of court in case of guilty plea; no provision with respect to trial by court] 49 U.S.C. 1472 (i) (aircraft piracy) IV. Statutes which leave capital sentencing discretion to the court in all situations: 18 U.S.C. 794 (delivery of defense information to foreign government) 18 U.S.C. 2031 (rape within federal territory) 18 U.S.C. 2381 (treason) The death penalty provisions in two of the statutes in this category were held unconstitutional in United States v. Jackson, 390 U.S. 570 (1968) (18 U.S.C. 1201(a)), and Pope v. United States, 392 U.S. 651 (1968) (18 U.S.C. 2113(e)). WASHINGTON, D.C. 20540 THE LIBRARY OF CONGRESS Congressional Research Service AP 237 CAPITAL PUNISHMENT: An Analysis of the Supreme Court Decision in Furman v. Georgia, By Charles Doyle July 27, 1972 WASHINGTON, D.C. 20540 THE LIBRARY OF CONGRESS Congressional Research Service FURMAN V. GEORGIA: CRUEL AND UNUSUAL PUNISHMENT ASPECTS OF CAPITAL PUNISHMENT opinion, On June 29, 1972, the United States Supreme Court in a per curiam four Justices dissenting, held that "the imposition and carrying out of the death penalty in these cases [Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas] constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Furman v. Georgia, 40 U.S.L.W. 4923 (U.S. June 29, 1972). Furman, Jackson and Branch had all been convicted in state courts and sentenced to death under statutes giving the jury discretion to impose that penalty. The Supreme Court of Georgia had concluded that capital punishment in the case of Jackson's rape conviction and Furman's murder conviction did not constitute cruel and unusual punishments in violation of the Eighth Amendment, Furman v. State, 225 Ga. 253, 167 S.E. 2d 628 (1969); Jackson v. State, 225 Ga. 709, 171 S.E. 2d 501 (1969). The Texas Court of Criminal Appeals had reached a similar conclusion with regard to the death penalty imposed after Branch's conviction for rape, Branch v. State, 447 S.W. 2d 932 (Tex. Crim. App. 1969). The United States Supreme Court granted certiorari in these cases and in Aikens v. California, 70 Cal. 2d 369, 74 Cal. Rptr. 882, 450 P. 2a 258 (1969), to consider whether "the imposition and carrying out of the death penalty in [these cases] constitute[s] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." 403 U.S. 952 (1971). The writ of certiorari in Aikens was dismissed as moot following CRS-2 the California Supreme Court ruling in People v. Anderson, 6 Cal. 3d 628, 100 Cal. Rptr. 152, 493 P. 2d 880 (1972), cert. denied, 40 U.S.L.W. 3568 (U.S. May 30, 1972), that the imposition and infliction of the death penalty violated the California constitutional provision outlawing cruel or unusual punishments, Aikens v. California, 40 U.S.L.W. 4623 (U.S. June 7, 1972). The Court's terse per curiam holding was accompanied by nine separate opinions--five concurring and four dissenting. Only Justice Brennan and Justice Marshall felt that capital punishment was a per se violation of the Eighth and Fourteenth Amendment prohibitions against cruel and unusual punishments. Justices Douglas, White and Stewart, whose votes were required for the per curiam result, felt compelled to find only that capital punishment was imposed and carried out under circumstances that rendered it a cruel and unusual punishment. sharply not only as to the proper standards to be employed in determining whether a punishment violated the constitutional prohibition against cruel and unusual punishments but also as to how the cases under consideration ought to be resolved in light of those tests. The Justices differed For Justice Brennan, "the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is 'cruel and unusual,' therefore, if it does not comport with human dignity." 40 U.S.L.W. at 4927 (Brennan, J., concurring). "The test [of whether a punishment comports with human dignity] ... will ordinarily be a cumulative one: If a punishment CRS-3 is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman punishment upon those convicted of crimes." Id. at 4931 (Brennan, J., concurring). ... The test offered by Justice Marshall is somewhat similar. "The decisions [as to what constitutes a cruel and unusual punishment] imply that a punishment may be deemed cruel and unusual for any one of four distinct reasons. First, there are certain punishments which inherently involve so much physical pain and suffering that civilized people cannot tolerate them... Second, there are punishments which are unusual, signifying that they were previously unknown as penalties for a given offense... In light of the meager history that does exist, one would suppose that an innovative punishment would probably be constitutional if no more cruel than that punishment which it superseded... Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose... Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it." Id. at 4946947 (Marshall, J., concurring).. The concurrences of Justices Douglas, White and Stewart were less general and involved the mere articulation of those aspects of the "cruel and unusual punishments" standards which they felt invalidated the punishments imposed in the cases under consideration.. |