1 0 6cH A Pt eR 5 ■ D e e p A n a l y s i sThe first premise—“The death penalty is a cruel and unusual punish-
ment”—obviously forms the heart of the argument. What we would expect,
then, is a good supporting argument to be put forward on its behalf. The
following argument by Supreme Court Justice Potter Stewart (in Furman v.
Georgia, 408 U.S. 239 at 309–310 [1972]) was intended to support this claim
in particular cases in which the death penalty was imposed for rape and
murder:
In the first place, it is clear that these sentences are “cruel” in the sense that
they excessively go beyond, not in degree but in kind, the punishments
that the state legislatures have determined to be necessary.... In the
second place, it is equally clear that these sentences are “unusual” in the
sense that the penalty of death is infrequently imposed for murder, and
that its imposition for rape is extraordinarily rare. But I do not rest my
conclusion upon these two propositions alone. These death sentences are
cruel and unusual in the same way that being struck by lightning is cruel
and unusual. For, of all the people convicted of rapes and murders in 1967
and 1968, many just as reprehensible as these, the petitioners are among a
capriciously selected random handful upon whom the sentence of death
has in fact been imposed. My concurring brothers [the Justices who agree
with Stewart] have demonstrated that, if any basis can be discerned for
the selection of these few to be sentenced to die, it is the constitutionally
impermissible basis of race.^6
The first sentence argues that the death penalty is cruel. The basic idea is that
punishments are cruel if they inflict harms that are much worse than what is
necessary for any legitimate and worthwhile purpose. Stewart then seems to
accept the state legislatures’ view that the death penalty does go far beyond
what is necessary. This makes it cruel.
Now let us concentrate on the part of this argument intended to show
that the death penalty is an unusual punishment. Of course, in civilized
nations, the death penalty is reserved for a small range of crimes, but this
is hardly the point at issue. The point of the argument is that the death
penalty is unusual even for those crimes that are punishable by death,
including first-degree murder. Moreover, Stewart claims that, among
those convicted of crimes punishable by death, who actually receives a
death sentence is determined either capriciously or on the basis of race.
The point seems to be that whether a person who is convicted of a capital
crime will be given the death penalty depends on the kind of legal aid he
or she receives, the prosecutor ’s willingness to offer a plea bargain, the
judge’s personality, the beliefs and attitudes of the jury, and many other
considerations. At many points in the process, choices that affect the out-
come could be based on mere whim or caprice, or even on the race of the
defendant or the victim. Why are these factors mentioned? Because, as
Stewart says, it is unconstitutional for sentencing to be based on caprice
or race.97364_ch05_ptg01_079-110.indd 106 15/11/13 9:53 AM
some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materiallyCopyright 201^3 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights,
affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.