Justice Brennan had agreed to join a short dissent from the denial of certiorari in Rudolph v

4.2.12 WC: 191694 Justice Brennan had agreed to join a short dissent from the denial of certiorari in Rudolph v. Alabama (1963)—a case involving imposition of the death penalty on a black man who was convicted of raping a white woman. Justice William O. Douglas signed on as well. The dissenters invited the bar to address the following questions, which they deemed “relevant and worthy of argument and consideration”: 1. In light of the trend both in the country and throughout the world against punishing rape by death, does the imposition of the death penalty by those States which retain it for rape violate “evolving standards of decency that mark the progress of [our] maturing society,” or “standards of decency more or less universally accepted’? 2. Is the taking of human life to protect a value other than human life consistent with the constitutional proscription against “punishments which by their excessive...severity are greatly disproportional to the offenses charged’? 3. Can the permissible aims of punishment (e.g., deterrence, isolation, rehabilitation) be achieved as effectively by punishing rape less severely than by death (e.g., by life imprisonment); if so, does the imposition of the death penalty for rape constitute “unnecessary cruelty’? As soon as the dissent was published, there was an immediate reaction. Conservative journalists had a field day lambasting the very notion that a court could strike down as unconstitutional a long-standing punishment that is explicitly referred to in the Constitution. One extreme criticism appeared in the New Hampshire Union Leader under the banner headline “U.S. Supreme Court Trio Encourages Rape”: In a decision handed down last week three U.S. Supreme Court justices, Goldberg, Brennan, Douglas, raised the question of whether it was proper to condemn a man to death for the crime of rape if there has been no endangering of the life of the victim. This incredible opinion, of course, can serve only to encourage would-be rapists. These fiends, freed from the fear of the death penalty for their foul deed, . . .will be inclined to take a chance. Thus, not content with forbidding our schoolchildren to pray in school, not content with banishing Bible reading from our schools, and not content letting every type of filthy book be published, at least three members of the Supreme Court are now out to encourage rape. The editorial did not mention that New Hampshire had abolished the death penalty for rape generations ago and had one of the lowest rates of rape in the country—far lower than states that still executed convicted rapists. 161 HOUSE_OVERSIGHT_017248