248 The making of American domestic policy
compared with only 111,000 in federal jails. Murder is a crime that is largely
subject to state law, except for those murders committed on federal property,
such as army bases, or committed in the course of federal crimes such as
drug-trafficking, kidnapping or acts of terrorism. Until 1972 the Supreme
Court had not given consideration to the constitutionality of the death pen-
alty, although the Eighth Amendment to the Constitution, passed in 1791,
had forbidden ‘cruel and unusual punishments’. The states had been free to
adopt capital punishment or not, and free to adopt the means of execution
and the conditions attached to it. In 1972 thirty-nine states and the District
of Columbia had laws enforcing capital punishment, including sixteen that
provided for the death penalty for rape as well as murder. Of the sixteen
states that punished rapists with the death penalty, thirteen were Southern
states, where there are a high proportion of blacks. The federal government
also provided for the death penalty for a number of crimes, including trea-
son, espionage, train-wrecking and aircraft piracy.
In the case of Furman v. Georgia in 1972, the Supreme Court ruled by a
majority of five to four that the death penalty was unconstitutional. How-
ever, among the five justices who took this view there was no consensus on
the grounds for outlawing the death penalty. Two justices, Brennan and
Marshall, were of the view that the death penalty was inherently unconsti-
tutional, because it was a ‘cruel and unusual punishment’. In the words of
Justice Brennan:
Death is today an unusually severe punishment, unusual in its pain, in its
finality, and in its enormity. No other existing punishment is comparable
to death in terms of physical and mental suffering... Since the discon-
tinuance of flogging as a constitutionally permissible punishment death
remains as the only punishment that may involve the conscious infliction
of physical pain. In addition, we know that mental pain is an inseparable
part of our practice of punishing criminals by death, for the prospect of
pending execution exacts a frightful toll during the inevitable long wait
between the imposition of sentence and the actual infliction of death.Justice Brennan concluded:
Today death is a uniquely and unusually severe punishment. When ex-
amined by the principles applicable under the Cruel and Unusual Pun-
ishments Clause, death stands condemned as fatally offensive to human
dignity. The punishment of death is therefore ‘cruel and unusual,’ and
the States may no longer inflict it as a punishment for crimes. Rather
than kill an arbitrary handful of criminals each year, the States will con-
fine them in prison.Three justices, however, White, Stewart and Douglas, held that the death
penalty as currently operated was unconstitutional. Their objections centred on