Brennan Defends Death Penalty Dissents : Justice Calls It Denial of Humanity, Vows to Continue Opposition

Times Staff Writer

Supreme Court Justice William J. Brennan Jr. defended his staunch opposition to capital punishment Monday, vowing to continue to dissent against the death penalty despite the contrary views of the court majority and the American public.

“The calculated killing of a human being by the state involves, by its very nature, an absolute denial of the executed person’s humanity,” Brennan said in a speech in San Francisco.

“The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity,” he said. ". . . The fatal constitutional infirmity of capital punishment is that it treats members of the human race as non-humans, as objects to be toyed with and discarded.”

Honor to Tobriner


Brennan’s forceful reaffirmation of his views was expressed in an address at Hastings College of Law in honor of the late Justice Mathew O. Tobriner of the California Supreme Court. A copy of the text was released in Washington.

Since the high court approved the reinstatement of capital punishment in 1976, Brennan, along with Justice Thurgood Marshall, has remained adamantly opposed to the death penalty, dissenting in all capital cases on the grounds that capital punishment violates Eighth Amendment guarantees against cruel and unusual punishment.

Last April, Brennan urged the court to consider whether electrocutions should be barred as a method of imposing the death penalty because they induce “unnecessary pain and suffering.”

His condemnation of the death penalty was aired as the state Supreme Court finds itself in a swirl of controversy over the issue. Critics point out that in the eight years since capital punishment was restored in California, no executions have taken place. The court has affirmed only three death sentences while reversing 35, and 187 people are now on Death Row.


Brennan acknowledged that most of the high court disagrees with his views on capital punishment--"not to mention, it would seem, a majority of my fellow countrymen"--and that some might find his repeated dissents on the issue “simply contrary, tiresome or quixotic.”

But he stressed that the court, in interpreting the Constitution, is not irrevocably bound to legal precedent and should be flexible enough to reverse itself when need be.

Brennan conceded that a judge “has a role in seeking out the community’s interpretation” of the Constitution. But he said that when a justice sees such an interpretation as a departure from the “essential meaning” of the Constitution, he is bound by a larger duty to dissent.

“On this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived,” he said.

The 79-year-old Brennan is the court’s senior member and is regarded as the most liberal of the nine justices. He is a frequent and outspoken dissenter, and his views often clash with those of the moderately conservative majority.

Last term, he cast dissents in 38 of the 139 signed opinions issued by the court--more than any other justice.