Sup. Ct. La. Reported below: 455 So. 2d 659.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting from denial of certiorari.
The petitioner Jimmy L. Glass has been condemned to death by electrocution -- "that is, causing to pass through the body of the person convicted a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of the person convicted until such person is dead." La. Rev. Stat. Ann. § 15:569 (West 1981). Glass contends that "electrocution causes the gratuitous infliction of unnecessary pain and suffering and does not comport with evolving standards of human dignity," and that this method of officially sponsored execution therefore violates the Eighth and Fourteenth Amendments. Pet. for Cert. 27. The Supreme Court of Louisiana held that this claim must summarily be rejected pursuant to "clearly established principles of law" and observed that, in any event, the claim is wholly lacking in medical or scientific merit. 455 So. 2d 659, 660, 671 (1984).
I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), and would therefore grant certiorari and vacate Glass' death sentence in any event. One of the reasons I adhere to this view is my belief that the "physical and mental suffering" inherent in any method of execution is so "uniquely degrading to human dignity" that, when combined with the arbitrariness by which capital punishment is imposed, the trend of enlightened opinion, and the availability of less severe penological alternatives, the death penalty is always unconstitutional. Furman v. Georgia, 408 U.S. 238, 287-291 (1972).
Even if I thought otherwise, however, I would vote to grant certiorari. Glass' petition presents an important and unsettling
question that cuts to the very heart of the Eighth Amendment's Cruel and Unusual Punishments Clause*fn1 -- a question that demands measured judicial consideration. Of the 42 officially sponsored executions carried out since the Court's decision in Gregg v. Georgia, supra, 31 have been by means of electrocution.*fn2 And since Gregg, an ever-increasing number of condemned prisoners have contended that electrocution is a cruel and barbaric method of extinguishing human life, both per se and as compared with other available means of execution. As in this case, such claims have uniformly and summarily been rejected,*fn3 typically on the strength of this Court's opinion in In re Kemmler, 136 U.S. 436 (1890), which authorized the State of New York to proceed with the first electrocution 95 years ago. Kemmler, however, was grounded on a number of constitutional premises that have long since been rejected and on factual assumptions that appear not to have withstood the test of experience. I believe the time has come to measure electrocution against well-established contemporary Eighth Amendment principles.
Electrocution as a means of killing criminals was first authorized by the New York Legislature in 1888, and resulted from a lengthy investigation to identify "the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases."*fn4 In In re Kemmler, supra, this Court rejected a constitutional attack on New York's statute by William Kemmler, who was scheduled to be the first person put to death by electrocution. The Court emphasized that, because the Eighth Amendment was not applicable to the States, "[the] decision of the state courts sustaining the validity of the act under the state constitution is not reexaminable here." Id., at 447.*fn5 In dicta, the Court also followed a "historical" interpretation of the Cruel and Unusual Punishments Clause as it governed executions carried out by the Federal Government, suggesting that the constitutionality of a particular means of execution should be determined by reference to contemporary norms at the time the Bill of Rights was adopted. See id., at 446-447. In addition, the Court approvingly observed that the state court had concluded that "'it is within easy reach of electrical science at this day to so generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and, therefore, painless, death.'" Id., at 443 (emphasis added).
State and federal courts recurrently cite to Kemmler as having conclusively resolved that electrocution is a constitutional method of extinguishing life, and accordingly that further factual and legal
consideration of the issue is unnecessary. See n. 3, supra. But Kemmler clearly is antiquated authority. It is now well established that the Eighth Amendment applies to the States through the Fourteenth Amendment. See, e. g., Gregg v. Georgia, 428 U.S., at 168 (opinion of Stewart, POWELL, and STEVENS, JJ.); Robinson v. California, 370 U.S. 660 (1962). Moreover, the Court long ago rejected Kemmler 's "historical" interpretation of the Cruel and Unusual Punishments Clause, emphasizing instead that the prohibitions of the Clause are not "[confined] . . . to such penalties and punishment as were inflicted by the Stuarts." Weems v. United States, 217 U.S. 349, 372 (1910). This is because "[time] works changes, [and] brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth." Id., at 373. The Clause thus has an "expansive and vital character," id., at 377, that "[draws] its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).*fn6 Accordingly, Eighth Amendment claims must be evaluated "in the light of contemporary human knowledge," Robinson v. California, supra, at 666, rather than in reliance on century-old factual premises that may no longer be accurate.
To be sure, legislative decisions concerning appropriate forms of punishment are entitled to considerable deference. But in common with all constitutional guarantees, "it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power." Gregg v. Georgia, supra, at 174, n. 19 (opinion of Stewart, POWELL, and STEVENS, JJ.); see also Weems v. United States, supra, at 371-373.*fn7 "[The] Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a challenged punishment, guided by "objective
factors to the maximum possible extent." Coker v. Georgia, 433 U.S. 584, 592, 597 (1977) (plurality opinion). Thus it is firmly within the "historic process of constitutional adjudication" for courts to consider, through a "discriminating evaluation" of all available evidence, whether a particular means of carrying out the death penalty is "barbaric" and unnecessary in light ...