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Fifty years ago Clarence Darrow, probably the greatest criminal defense lawyer in American history and a leading opponent of capital punishment, observed: The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to determine the results of punishment. If the object is assumed, it is a matter of conjecture as to what will be most likely to bring the result. If it can be shown that any form of punishment would bring the immediate result, it would be impossible to show its indirect result although indirect results are as certain as direct ones. Even if all of this could be clearly proven, the world would be no nearer the solution. Questions of this sort, or perhaps of any sort, are not settled by reason; they are settled by prejudices and sentiments or by emotion. When they are settled they do not stay settled, for the emotions change as new stimuli are applied to the machine. At the time Darrow made these observations a few years after the first World War - four abolitionist states had just reinstituted capital punishment and the abolition movement had lost its momentum in other states. But the movement did achieve one lasting success - the almost complete elimination of mandatory capital punishments. The result of this humanitarian effort, however, was to make the imposition of the death penalty exceedingly rare, haphazard and capricious - and lead to the Supreme Court's June, 1972 decision in Furman v. Georgia where the five holdovers from the Warren Court [Brennan, Douglas, Marshall, Stewart, and White] ruled, over the bitter dissents of the four Nixon appointees [Burger, Blackman, Powell, and Rehnquist] that the current discretionary, random, arbitrary administration of the death penalty constitutes "cruel and unusual" punishment in violation of the Eighth and Fourteenth Amendments.


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