Walton v. Arizona/Dissent Brennan

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. #fn-s-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. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); cf. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193, 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 BLACKMUN'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, 96 S.Ct. 2909, 2972-2973, 49     L.Ed.2d 859 (1976) (dissenting opinion) (citations and      footnote omitted).

See also Furman v. Georgia, 408 U.S. 238, 257-306, 92 S.Ct. 2726, 2735-2760, 33 L.Ed.2d 346 (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, 96 S.Ct. 2978, 2991, 49 L.Ed.2d     944 (1976) (joint 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, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). #fn-s-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, 102 S.Ct., at 878 (O'CONNOR, J., concurring). But today's decisions reflect, if anything, the opposing concern that States ought to be able to executepris oners with as little interference as possible from our established Eighth Amendment doctrine.