IN the summer of 1963, during my tenure on the Supreme Court, I found, in reviewing the list of cases to be discussed when the court reconvened in October, six capital cases seeking review by certiorari (cases called up from lower courts for reexamination). In studying these cases, I came to the conclusion that they presented the court with an opportunity explicitly to address the constitutionality of capital punishment for the first time. I circulated to the members of the court a memorandum on this subject in which I noted that the court had never explicitly considered whether, and under what circumstances, the Eighth and 14th Amendments to the United States Constitution proscribe the death penalty. The court has, of course, implicitly decided (in every case affirming a capital conviction) that the death penalty is constitutional. But in light of the worldwide trend toward abolition, I think the court should now request argument and explicitly consider this constantly recurring issue. In my memorandum, I marshaled the arguments and precedents against the death penalty. My conclusion was twofold: The death penalty constitutes cruel and unusual punishment proscribed by the Eighth and 14th Amendments to the Constitution. If a majority of the court was unwilling to so hold, it should, in my view, rule that the death penalty could not constitutionally be imposed for an offense that did not involve the taking of human life.
When the court reconvened on the first Monday in October of 1963, a majority voted at its initial conference to reject the contentions and conclusions of my memorandum. The vote was 6 to 3. Only Justices William O. Douglas and William J. Brennan joined in support of my views.
The court then proceeded to deny certiorari in the six capital cases before it. In one of them, Rudolph v. Alabama, the petitioner was sentenced to death for rape, a horrendous offense which, however, did not involve the taking of human life. The court denied the grant of certiorari. I dissented on the ground that the death penalty was cruel and unusual punishment within the meaning of the Eighth Amendment, since there was no taking of human life. Only Justices Douglas and Brennan joined in this dissent.
Although my efforts to declare the death penalty unconstitutional were unsuccessful, an important consequence was to alert the bar to raise the issue of the constitutionality of the penalty, which previously had not been done, even in the six cases we ruled upon.
Thereafter, beginning in 1965, the constitutionality of the death penalty was raised by counsel in a wide variety of cases. Confronted squarely with the issues, the court was forced to deal with both procedural and substantive challenges to the death penalty. And from 1967 to 1977, there were no executions in the US.
In 1972, the Supreme court decided in Furman v. Georgia that the sentencing authority, judge or jury, cannot exercise untrammeled discretion to pronounce life or death in capital cases, but that rational standards must be used in this determination. In other words, mandatory sentencing laws were unconstitutional.
Since most states had mandatory sentencing laws, and these were unconstitutional, the convictions of more than 600 inmates of death cells were reversed. They were not set free, however, but resentenced. Virtually all of them were then given life imprisonment.
Litigation, however, continued involving other aspects of the imposition of the death penalty, thus keeping the moratorium in effect while the states proceeded to amend their laws to conform to the court's decision in Furman.
In 1976 in Gregg v. Georgia, the court, for the first time, squarely held that ``the death penalty does not invariably violate the cruel and unusual punishment clause of the Eighth Amendment.'' It did so by a divided vote. This was a deplorable step backward, legitimating imposition of this ultimate sanction.
Opponents of the death penalty continued to litigate, raising other issues.
In 1977, in Coker v. Georgia, the court held that the imposition of the death penalty against an individual who had committed the crime of rape, but did not take the life of the victim, was unconstitutional under the Eighth Amendment. In Coker, the court adopted my dissenting opinion in Rudolph v. Alabama, which it had rejected in 1963. This led to the resentencing of defendants convicted of such crimes. In the Supreme court, as in life in general, time works changes.
After states redrafted their capital-punishment statutes to meet the Gregg test, the court sustained these new statutes and then made it clear by decision and denial of certiorari that the states were free to proceed with execution in capital cases, as regrettably they are now doing.
So far, over 80 people convicted of capital offenses, under statutes conforming to Gregg, have been executed. Opponents of the death penalty, notwithstanding, have continued their challenge on other grounds. In Warren McCleskey v. Kemp, the death penalty was attacked on the ground, supported by substantial evidence, that it was disproportionately imposed on blacks and other minority groups. The court rejected this contention last term.
And, most recently, this past July 29, the court denied a stay of execution in John Brogdon v. Butler, Warden, which involved the question of whether a mentally defective person with a chronological age of 24 but the mentality of a 10-year-old could be executed.
Regrettably the court, in denying this stay, again reached out and touched Brogdon fatally by telephone. In this case, as in the previous one, the justices, being on vacation, were scattered here and abroad. They were polled by telephone and this poll resulted in a denial of the stay.
Indeed, it is logical to assume that, with the exception of the chief justice, who was in Washington, it is extremely unlikely that any of the associate justices had the benefit of study and review of the stay application. As I have asked before, why the rush to execution? This case could have been referred to the first conference when the court reconvened in October. The defendant, after all, was confined to a death cell, and there is no good reason why this customary practice was not followed, affording all justices access to the record and briefs and an adequate collegiate discussion of the issues raised.
In view of the present majority on the court and a potential new member whose views apparently support imposition of the death penalty, there is no likelihood that the court will soon overrule its ruling in Gregg.
And so where can opponents of the death penalty turn for relief?
The answer is Congress, state legislatures, state courts, and governors.
I am not optimistic that they will outlaw the death penalty.
Public opinion polls show that a majority of the public now favors imposition of the penalty. Congress, the legislatures, the state courts, and the governors are more than likely to follow these ``election returns.'' Nevertheless, public opinion is subject to change.
Further, there is a widespread and mistaken notion not only in public minds, but among these agencies, that the Supreme Court having spoken, this is the final word.
Not so! There is nothing in the Constitution that precludes Congress, legislatures, state courts, and governors from abolishing or not imposing the death penalty despite the Supreme Court's holdings. These bodies may go beyond the court in protecting individual freedoms, including the safeguard against cruel and unusual punishment. What they may not do is restrict or cut back on Supreme Court decisions. In other words, they may not invoke the discredited doctrines of interposition and nullification which were designed to limit constitutional safeguards mandated by the Supreme Court.
In addition Congress, under Section 5 of the 14th Amendment, may declare that capital punishment is in violation of due process. Thus, at one blow, Congress has the right to abolish capital punishment throughout the US.
Also, state legislatures and courts may interpret the language of their own constitution as outlawing the death penalty. Their right to do so is an established principle not subject to review by the Supreme Court.
And state governors may commute people sentenced to the death penalty, both on constitutional and moral grounds.
So the ball is in the court of Congress, the legislatures of the several states, their courts, and their governors.
These bodies cannot escape the reality that 1,900 people are now on death row, and that more will follow. They cannot escape the reality that the executions of such people will be nothing more than governmental mass murders.
No convincing evidence shows that imposition of the death penalty effectively deters capital offenses. Deterrence, after all, is the ultimate rationale for criminal punishment.
Albert Camus once said that ``the great civilizing step'' is to abolish the death penalty. All Western countries have done so, and many neutral and nonaligned countries as well.
The ultimate question is: Shall our nation continue to live under the archaic doctrine of ``an eye for an eye and a tooth for a tooth''?
Arthur J. Goldberg is a former associate justice of the United States Supreme Court.