Justice Brennan, while concurring with four other Justices, presents a slightly different rationale for his decision. Similar to Justice Douglas, he too delves into the history of the adoption of the relevant clauses. He states that the prime concern of the Framers of the particular law was toward the proper execution of legislative power. The Framers included in the Bill of Rights document a deterrent to “cruel and unusual punishments” because the legislature would otherwise have had the unregulated power to set down penalties for violent crimes. Since the Framers of the Bill of Rights did not specifically mention what entails “cruel and unusual punishments”, it can only be taken that they intended to prohibit harsh, cruel and barbaric punishments. But the evidence does not in anyway suggest that the death penalty does not fit these descriptions.
Justice Stewart utilizes a few key legal precedents and their associated literature to present his case. He starts his presentation with the following words,
“The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. For these and other reasons, at least two of my Brothers have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments.” (Supreme Court Collection, Cornell University Law School)
He further draws focus to the particular legal provisions in the state of Georgia which was the prosecuting party in this case. Justice Stewart asserts that the Georgia Legislature has not provided that capital punishment should compulsorily be imposed on all who are guilty of rape and murder. Such being the case, where the state has not made a legislative determination that such criminal offences as rape and murder can only be prevented by subjecting the perpetrator to death, the arguments against its imposition grow substantially.
Justice White is another one among the concurring five. Without dwelling on the humane aspects of the case in point, Justice White focuses on the technical issues posed by a death penalty verdict. That the death penalty can never sufficiently satisfy its purposes of deterring further crimes, he believes, is a truism. Moreover, he also states that the frequency with which perpetrators of rape and murder are put to execution should be considered in making broader judgments about the efficacy of this deterrent. For one thing those executed can no longer commit crimes. But what is not obvious is the fact that once the frequency of such sentencing diminishes to marginal levels, then it is as well that one can do away with the concept of death penalty, for the deterrence is in the popular awareness of the punishment and the lesser frequency of it makes it ineffective. Continuing, Justice White makes a valid observation that the life imprisonment (rigorous or otherwise) is as good a deterrent in terms of achieving its judicial end. He further explains why the death penalty would be inconsistent with the Eighth Amendment to the Constitution, thus:
“The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment inviolate of the Eighth Amendment.” (Supreme Court Collection, Cornell University Law School)