Capital Punishment, the Inevitability of Caprice and Mistake

THE MINIMUM MEANING of the 1972 Furman case (often referred to above) which declared unconstitutional the administration of capital punishment as up to then carried out, probably can be read (if one attends principally to the reasoning in the opinions of Stewart and White, the marginal Justices) as a condemnation of standardless discretion in sentencing—a discretion often lodged in the jury or judge. In the end, I hope to have convinced the reader that standardless discretion, as well as mistake-proneness, are not to be found only at the sentencing stage but permeate the whole series of choices that have to be made on the way from street to gallows; at least one more, "clemency," remains for the chapter after this. But it was natural for the states desiring somehow to retain capital punishment to try so to react as to answer specifically this objection of standardlessness in the jury's choice of sentence.