246 THE JUSTICE SYSTEM JOURNAL
The other justices in the majority, all holdovers from the Warren Court, did not
believe the death penalty unconstitutional per se. Justice Douglas contended in his
concurrence that the death penalty violated equal protection, as it had been imposed
“arbitrarily and discriminatorily” because it was administered so rarely and most often
against the poor and minorities (
Furman, at 249). Justices Stewart and White large-
ly agreed with Justice Douglas. Although Justice Stewart was not convinced that
racial discrimination had been proven regarding the death penalty, he was persuaded
that “this unique penalty [was] so wantonly and so freakishly imposed” that it violat-
ed the Eighth Amendment (
Furman, at 310). And Justice White determined that the
social end of deterrence once used to justify the death penalty no longer sufficed, in
large part because it was infrequently administered.
The theme running through all the dissenting opinions was that legislatures, not
courts, should decide the parameters of the death penalty. Basing his decision on both
the intent of the Framers of the Eighth Amendment and evolving standards of decen-
cy, Chief Justice Burger, joined by Justices Blackmun, Powell, and Rehnquist, conclud-
ed that the death penalty was not a cruel or unusual punishment in a constitutional
sense. Accordingly, legislatures must determine whether death is an appropriate crim-
inal sanction, with limited exceptions for “punishments that are so cruel and inhu-
mane as to violate society’s standards of civilized conduct” (
Furman, at 397). Justice
Powell, also joined by all the other dissenters, asserted that stare decisis dictated a rul-
ing in favor of the death penalty, and that “[n]o Justice of the Court, until today, has
dissented from this consistent reading of the Constitution” (
Furman, at 428). Justice
Rehnquist, again joined by all of the other dissenters, similarly argued for judicial
restraint, and he also made an argument against incorporation of the Bill of Rights:
“The Due Process and Equal Protection Clauses of the Fourteenth Amendment were
never intended to destroy the States’ power to govern themselves” (
Furman, at 470).
Justice Blackmun considered his dissent “personal” comments, and none of the
other dissenters joined in those comments (
Furman, at 405). As he put it, “Although
personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as
a matter of history, of law, or of constitutional pronouncement” (
Furman, at 414).
Though morally opposed to the death penalty, Justice Blackmun said that the decision
whether or not to use it was for the nonjudicial branches of government. Interestingly,
Justice Blackmun eventually was to change his mind on the constitutionality of the
death penalty
, stating in a dissent fr
om denial of cer
tiorari, “Ther
e is little doubt now
that
Fur
man’s
essential holding was cor
rect” (
Callins v
. Collins
, 1994, at 1147).
In sum, while all five justices in the
Fur
man
majority believed Geor
gia’s and
T
exas’s death penalty laws were unconstitutional, thus providing a judicial stay of its
imposition acr
oss the nation, only two deemed the death penalty unconstitutional
per se. The four dissenters clearly envisioned the death penalty as a viable, constitu
-
tional option. It also appear
ed that the three justices in the majority who did not
view the death penalty as per se unconstitutional might be persuaded that a mor
e
carefully drafted and administered death penalty statute would pass constitutional