1. How does Justice Stewart justify his conclusion that capital punishment is a permissible form of punishment?

2. What is the moral principle that is the fundamental basis of Justice Brennan’s dissent?

3. Does Justice Marshall believe that retribution provides a moral justification for capital punishment? Why or why not?

Opinion of Justices Stewart, Powell, and Stevens C. We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question. The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule imposed a mandatory death sentence on all convicted murderers., And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy..