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4.2.12
WC: 191694

I set to work on the capital punishment project but found no suggestion in the case law that any court had ever considered the death penalty to be of questionable constitutionality. Just five years earlier, Chief Justice Earl Warren had written in Trop v. Dulles (1958) that “whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted it cannot be said to violate the constitutional concept of cruelty.”

I duly reported this to Justice Goldberg, suggesting that if even the liberal chief justice believed that the death penalty was constitutional, what chance did he have of getting a serious hearing for his view that the cruel and unusual punishment clause should now be construed to prohibit the imposition of capital punishment? Justice Goldberg asked me to talk to Justice Brennan and see what his views were. Unless Justice Brennan agreed to join, the entire project would be scuttled, since Justice Goldberg, the Court’s rookie, did not want to “be out there alone,” against the chief justice and the rest of the Court.

I had previously met Justice Brennan several times over the preceding few years, since his son, Bill, was my classmate and moot-court partner at Yale Law School. I had also had lunch several times with the justice and his friend Judge David Bazelon. But none of our discussions had been substantive, and I nervously anticipated the task of discussing an important issue with one of my judicial heroes.

I brought a rough draft of the memorandum I was working on to the meeting, but Justice Brennan did not want to look at it then. He asked me to describe the results of my research to him, promising to read the memorandum later. I stated the nascent constitutional case against the death penalty as best I could. I told him that Weems v. United States could be read as recognizing the following tests for whether punishment was “cruel and unusual”: (1) giving full weight to reasonable legislative findings, a punishment is cruel and unusual if a less severe one can as effectively achieve the permissible ends of punishment (that is, deterrence, isolation, rehabilitation, or whatever the contemporary society considers the permissible objectives of punishment);
(2) regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if it offends the contemporary sense of decency (for example, torture); (3) regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if the evil it produces is disproportionally
higher than the harm it seeks to prevent (for example, the death penalty for economic crimes).

In addition to these abstract formulations, I also told Justice Brennan that my research had disclosed a widespread pattern of unequal application of the death penalty on racial grounds. I cited national prison statistics showing that between 1937 and 1951, 233 Blacks were executed for rape in the United States, while only 26 whites were executed for that crime, though Whites committed many more rapes than Blacks.

Justice Brennan encouraged me to continue my research, without making any promise that he would join any action by Justice Goldberg. Several weeks later, Justice Goldberg told me that

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