Justice Thurgood Marshall, 1976
In Furman, I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id. at 331-332; 342-359. And second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would, in my view, reject it as morally unacceptable. Id. at 360-369.

Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U.S.C. Secs. 1472(i), (n) (1970 ed., Supp. IV). I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that, if they were better informed, they would consider it shocking, unjust, and unacceptable. 408 U.S. at 360-369. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.FN1

Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it. Id. at 331; ante at 173, 182-183 (opinion of STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, post at 353-354 (WHITE, J., dissenting). The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty -- life imprisonment -- would do as well. Furman, supra at 342 (MARSHALL, J., concurring).

Gregg v. Georgia

Argued March 31, 1976 - Decided July 2, 1976

CERTIORARI TO THE SUPREME COURT OF GEORGIA