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I can afford to admit all that is often said about the indifference of professional criminals to the gallows. Though of that indifference one-third is probably bravado and another third confidence that they shall have the luck to escape, it is quite probable that the remaining third is real. But the efficacy of a punishment which acts principally through the imagination, is chiefly to be measured by the impression it makes on those who are still innocent; by the horror with which it surrounds the first promptings of guilt; the restraining influence it exercises over the beginning of the thought which, if indulged, would become a temptation; the check which it exerts over the graded declension towards the state--never suddenly attained--in which crime no longer revolts, and punishment no longer terrifies.

As for what is called the failure of death punishment, who is able to judge of that? We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings it has saved who would have lived to be murderers if that awful association had not been thrown round the idea of murder from their earliest infancy? Let us not forget that the most imposing fact loses its power over the imagination if it is made too cheap.

When a punishment fit only for the most atrocious crimes is lavished on small offences until human feeling recoils from it, then, indeed, it ceases to intimidate, because it ceases to be believed in. The failure of capital punishment in cases of theft is easily accounted for; the thief did not believe that it would be inflicted.

He had learnt by experience that jurors would perjure themselves rather than find him guilty; that Judges would seize any excuse for not sentencing him to death, or for recommending him to mercy; and that if neither jurors nor Judges were merciful, there were still hopes from an authority above both. When things had come to this pass it was high time to give up the vain attempt.

When it is impossible to inflict a punishment, or when its infliction becomes a public scandal, the idle threat cannot too soon disappear from the statute book. And in the case of the host of offences which were formerly capital, I heartily rejoice that it did become impracticable to execute the law. If the same state of public feeling comes to exist in the case of murder; if the time comes when jurors refuse to find a murderer guilty; when Judges will not sentence him to death, or will recommend him to mercy; or when, if juries and Judges do not flinch from their duty, Home Secretaries, under pressure of deputations and memorials, shrink from theirs, and the threat becomes, as it became in the other cases, a mere brutum fulmen ; then, indeed, it may become necessary to do in this case what has been done in those--to abrogate the penalty.

That time may come--my hon. Friend thinks that it has nearly come. Much has been said of the sanctity of human life, and the absurdity of supposing that we can teach respect for life by ourselves destroying it. But I am surprised at the employment of this argument, for it is one which might be brought against any punishment whatever.

It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it?


But to this I should answer--all of us would answer--that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice. Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life.

We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall. There is one argument against capital punishment, even in extreme cases, which I cannot deny to have weight -- on which my hon. Friend justly laid great stress, and which never can be entirely got rid of. It is this -- that if by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible.

This would be indeed a serious objection if these miserable mistakes -- among the most tragical occurrences in the whole round of human affairs -- could not be made extremely rare. The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted. And this probably is the reason why the objection to an irreparable punishment began as I believe it did earlier, and is more intense and more widely diffused, in some parts of the Continent of Europe than it is here.

There are on the Continent great and enlightened countries, in which the criminal procedure is not so favorable to innocence, does not afford the same security against erroneous conviction, as it does among us; countries where the Courts of Justice seem to think they fail in their duty unless they find somebody guilty; and in their really laudable desire to hunt guilt from its hiding places, expose themselves to a serious danger of condemning the innocent. If our own procedure and Courts of Justice afforded ground for similar apprehension, I should be the first to join in withdrawing the power of inflicting irreparable punishment from such tribunals.

But we all know that the defects of our procedure are the very opposite. No human judgment is infallible; such sad cases as my hon. Friend cited will sometimes occur; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. And this suggests another consideration very germane to the question. The very fact that death punishment is more shocking than any other to the imagination, necessarily renders the Courts of Justice more scrupulous in requiring the fullest evidence of guilt.

Even that which is the greatest objection to capital punishment, the impossibility of correcting an error once committed, must make, and does make, juries and Judges more careful in forming their opinion, and more jealous in their scrutiny of the evidence. If the substitution of penal servitude for death in cases of murder should cause any declaration in this conscientious scrupulosity, there would be a great evil to set against the real, but I hope rare, advantage of being able to make reparation to a condemned person who was afterwards discovered to be innocent.

In order that the possibility of correction may be kept open wherever the chance of this sad contingency is more than infinitesimal, it is quite right that the Judge should recommend to the Crown a commutation of the sentence, not solely when the proof of guilt is open to the smallest suspicion, but whenever there remains anything unexplained and mysterious in the case, raising a desire for more light, or making it likely that further information may at some future time be obtained.

I would also suggest that whenever the sentence is commuted the grounds of the commutation should, in some authentic form, be made known to the public. Thus much I willingly concede to my hon. Judicial or Juridical punishment is to be distinguished from natural punishment, in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator. Juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.

For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens.

The penal law is a Categorical Imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: It is better that one man should die than that the whole people should perish. For if justice and righteousness perish, human life would no longer have any value in the world.

What, then, is to be said of such a proposal as to keep a criminal alive who has been condemned to death, on his being given to understand that if he agreed to certain dangerous experiments being performed upon him, he would be allowed to survive if he came happily through them? It is argued that Physicians might thus obtain new information that would be of value to the commonweal. But a court of justice would repudiate with scorn any proposal of this kind if made to it by the medical faculty; for justice would cease to be justice, if it were bartered away for any consideration whatever.

But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other. It may be rendered by saying that the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself. This is the right of retaliation jus talionis ; and properly understood, it is the only principle which in regulating a public court, as distinguished from mere private judgment, can definitely assign both the quality and the quantity of a just penalty.

All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict justice. It may appear, however, that difference of social status would not admit the application of the principle of retaliation, which is that of like with like. But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere.

Thus a pecuniary penalty on account of a verbal injury, may have no direct proportion to the injustice of slander; for one who is wealthy may be able to indulge himself in this offence for his own gratification. Yet the attack com mitted on the honor of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgment of the court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person.

In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprisonment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate retaliation after the principle of like with like. But how then would we render the statement: If you steal from another, you steal from yourself? In this way, that whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property, according to the right of retaliation.

Such a one has nothing, and can acquire nothing, but he has the Will to live; and this is only possible by others supporting him. But as the state should not do this gratuitously, he must for this purpose yield his powers to the state to be used in penal labor; and thus he falls for a time, or it may be for life, into a condition of slavery. But whoever has committed murder, must die.

There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion between Life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal.

His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable. Even if a civil society resolved to dissolve itself with the consent of all its members as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world the last murderer lying in the prison ought to be executed before the resolution was carried out.

This ought to be done in order that every one may realize the desert of his deeds, and that bloodguiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice. The equalization of punishment with crime, is therefore only possible by the cognition of the judge extending even to the penalty of death, according to the plight of retaliation.

This is manifest from the fact that it is only thus that a sentence can be pronounced over all criminals proportionate to their internal wickedness; as may be seen by considering the case when the punishment of death has to be inflicted, not on account of a murder, but on account of a political crime that can only be punished capitally.

A hypothetical case, founded on history, will illustrate this. In the last Scottish Rebellion there were various participators in it such as Balmerino and others who believed that in taking part in the rebellion they were only discharging their duty to the House of Stuart; but there were also others who were animated only by private motives and interests. Now, suppose that the judgment of the Supreme Court regarding them had been this: that everyone should have liberty to choose between the punishment of death or penal servitude for life.

In view of such an alternative, I say that the man of honor would choose death, and the knave would choose servitude. This would be the effect of their human nature as it is; for the honorable man values his honor more highly than even Life itself, whereas a knave regards a Life, although covered with shame, as better in his eyes than not to be. The former is, without gainsaying, less guilty than the other; and they can only be proportionately punished by death being inflicted equally upon them both; yet to the one it is a mild punishment when his nobler temperament is taken into account, whereas it is a hard punishment to the other in view of his baser temperament.

But, on the other hand, were they all equally condemned to penal servitude for life, the honorable man would be too severely punished, while the other, on account of his baseness of nature, would be too mildly punished. In the judgment to be pronounced over a number of criminals united in such a conspiracy, the best equalizer of punishment and crime in the form of public justice is death.

And besides all this, it has never been heard of, that a criminal condemned to death on account of a murder has complained that the sentence inflicted on him more than was right and just; and any one would treat him with scorn if he expressed himself to this effect against it. Otherwise it would be necessary to admit that although wrong and injustice are not done to the criminal by the law, yet the legislative power is not entitled to administer this mode of punishment; and if it did so, it would be in contradiction with itself.

However many they may be who have committed a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death; for so justice wills it, in accordance with the idea of the juridical power as founded on the universal laws of reason. But the number of the accomplices in such a deed might happen to be so great that the state, in resolving to be without such criminals, would be in danger of soon also being deprived of subjects.

But it will not thus dissolve itself, neither must it return to the much worse condition of nature, in which there would be no external justice. Nor, above all, should it deaden the sensibilities of the people by the spectacle of justice being exhibited in the mere carnage of a slaughtering bench.

In such circumstances the Sovereign must always be allowed to have it in his power to take the part of the judge upon himself as a case of necessity, and to deliver a judgment which, instead of the penalty of death, shall assign some other punishment to the criminals, and thereby preserve a multitude of the people. The penalty of deportation is relevant in this connection. Such a form of judgment cannot be carried out according to a public law, but only by an authoritative act of the royal prerogative, and it may only be applied as an act of grace in individual cases.

Against these doctrines, the Marquis Beccaria has given forth a different view. Moved by the compassionate sentimentality of a humane feeling, he has asserted that all capital punishment is wrong in itself and unjust. He has put forward this view on the ground that the penalty of death could not be contained in the original civil contract; for, in that case, every one of the people would have had to consent to lose his life if he murdered any of his fellow-citizens.

But, it is argued, such a consent is impossible, because no one can thus dispose of his own life. All this is mere sophistry and perversion of right. No one undergoes punishment because he has willed to be punished, but because he has willed a punishable Action; for it is in fact no punishment when any one experiences what he wills, and it is impossible for anyone to will to be punished.

To say, I will to be punished, if I murder any one, can mean nothing more than, I submit myself along with all the other citizens to the laws; and if there are any criminals among the people, these laws will include penal laws. The individual who, as a co-legislator, enacts penal law, cannot possibly be the same person who, as a subject, is punished according to the law; for, qua criminal, he cannot possibly be regarded as having a voice in the legislation, the legislator being rationally viewed as just and holy. If anyone, then, enact a penal law against himself as a criminal, it must he the pure juridically law-giving reason, which subjects him as one capable of crime, and consequently as another person, along with all the others in the civil union, to this penal law.

In other words, it is not the people taken distributively, but the tribunal of public justice, as distinct from the criminal, that prescribes capital punishment; and it is not to be viewed as if the social contract contained the promise of all the individuals to allow themselves to be punished, thus disposing of themselves and their lives. For if the right to punish must be grounded upon a promise of the wrongdoer, whereby he is to be regarded as being willing to be punished, it ought also to be left to him to find himself deserving of the punishment; and the criminal would thus be his own judge.

The chief error of this sophistry consists in regarding the judgment of the criminal himself, necessarily determined by his reason, that he is under obligation to undergo the loss of his life, as a judgment that must be grounded on a resolution of his Will to take it away himself; and thus the execution of the right in question is represented as united in one and the same person with the adjudication of the right.

There are, however, two crimes worthy of death, in respect of which it still remains doubtful whether the legislature have the right to deal with them capitally. It is the sentiment of honor that induces their perpetration. The one originates in a regard for womanly honor, the other in a regard for military honor; and in both cases there is a genuine feeling of honor incumbent on the individuals as a duty.

The former is the crime of maternal infanticide ; the latter is the crime of killing a fellow soldier in a duel. Now legislation cannot take away the shame of an illegitimate birth, nor wipe off the stain attaching from a suspicion of cowardice, to an officer who does not resist an act that would bring him into contempt, by an effort of his own that is superior to the fear of death.

Hence it appears that in such circumstances, the individuals concerned are remitted to the state of nature; and their acts in both cases must be called homicide, and not murder, which involves evil intent. In all instances the acts are undoubtedly punishable; but they cannot be punished by the supreme power with death. An illegitimate child comes into the world outside of the law which properly regulates marriage, and it is thus born beyond the pale or constitutional protection of the law. Such a child is introduced, as it were, like prohibited goods, into the commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored; nor can the shame of the mother when her unmarried confinement is known, be removed by any legal ordinance.

A subordinate officer, again, on whom an insult is inflicted, sees himself compelled by the public opinion of his associates to obtain satisfaction; and, as in the state of nature, the punishment of the offender can only be effected by a duel, in which his own life is exposed to danger, and not by means of the law in a court of justice.

The duel is therefore adopted as the means of demonstrating his courage as that characteristic upon winch the honor of his profession essentially rests; and this is done even if it should issue in the killing of his adversary. But as such a result takes place publicly and under consent of both parties, although it may be done unwillingly, it cannot properly be called murder. What then is the right in both cases as relating to criminal justice? Penal justice is here in fact brought into great straits, having apparently either to declare the notion of honor, which is certainly no mere fancy here, to be nothing in the eye of the law, or to exempt the crime from its clue punishment; and thus it would become either remiss or cruel.

The knot thus tied is to be resolved in the following way. The Categorical Imperative of penal justice, that the killing of any person contrary to the law must be punished with death, remains in force; but the legislation itself and the civil constitution generally, so long as they are still barbarous and incomplete, are at fault. And this is the reason why the subjective motive-principles of honor among the people, do not coincide with the standards which are objectively conformable to another purpose; so that the public justice issuing from the state becomes Injustice relatively to that which is upheld among the people themselves.

Edward D. Ingraham, Ch. John Stuart Mill, speech before Parliament, April 21, What is it? What are all the advantages of perpetual slavery, and how does it combat religious repentance? Mill believes that life imprisonment is less effective, yet more cruel than the death penalty.

Why does he think it is crueler? What does Mill say about countries that have judicial systems that cannot guard against erroneous executions? In the concluding section, Beccaria considers an argument for the death penalty from common consent: it is justified since nearly all countries practice it.

Explain his criticism of this argument and say whether you agree. Furman v. In the U. The death penalty statues that States adopt, though, are subject to U. Supreme Court decisions regarding whether they comply with the Constitution. Selections from seven of these are presented below. The most important of these in modern times is Furman v. Stewart argues that, in principle, the death penalty justified on the grounds of retribution—or just desert. A consequence of this decision was that the death penalty was suspended throughout the U. Georgia So long as States have fair procedures that seek to minimize arbitrariness, then death penalty sentences would be Constitutionally valid.

To that end, they recommended that such cases have trials that are split between a guilt phase and a sentencing phase. During the sentencing phase jurors would receive strict sentencing guidelines for determining whether the death penalty should be handed down. The next year in Coker v.

Georgia , the Court determined that, while the death penalty was appropriate for murder, it constituted cruel and unusual punishment for rape. The issue of racial bias in death penalty decisions was addressed in McCleskey v. Kemp Key to the case was statistical evidence indicating that persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. The court rejected the contention that racial discrimination was a factor in the specific judgment against the defendant, Warren McClesky.

McCleskey needed to show that his State acted with a discriminatory purpose in his conviction and trial, and there was no such evidence of that. Further, they held that, at most, the statistical evidence indicated a discrepancy that appeared to correlate with race. However, they concluded that apparent disparities in sentencing are an inevitable part of our criminal justice system, and the Constitution does not require that a State eliminate all potentially irrelevant factors.

In Payne v. A previous Court decision prohibited impact statements as irrelevant to the facts of the crime. Tennessee , though, the Court overturned the previous decision and ruled that such statements give a face to the victim. In Atkins v. Virginia , the Court banned the execution of the mentally retarded on the grounds that their decreased mental capacity reduces both their judgment and their responsibility.

On similar grounds, the Court ruled in Roper v. Simmons that juveniles under age 18 could not be executed. These three cases present the question whether the death penalty is a cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. In No. Jackson was found guilty of rape during the course of a robbery in the victim's home. The rape was accomplished as he held the pointed ends of scissors at the victim's throat. Branch also was convicted of a rape committed in the victim's home. No weapon was utilized, but physical force and threats of physical force were employed.

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.

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For these and other reasons, at least two of my Brothers [on the Supreme Court] have concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide. I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment.

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. The constitutionality of capital punishment in the abstract is not, however, before us in these cases.

For the Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape. And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder. In a word, neither State has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses.

As Mr. Instead, the death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment.

But I do not rest my conclusion upon these two propositions alone. These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in and , many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

If we were possessed of legislative power, I would either join with Mr. Justice Brennan and Mr. Justice Marshall [who oppose the death penalty] or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment.

The widely divergent views of the Amendment expressed in today's opinions reveal the haze that surrounds this constitutional command. Yet it is essential to our role as a court that we not seize upon the enigmatic character of the guarantee as an invitation to enact our personal predilections into law. There are no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned.

It is not a punishment, such as burning at the stake, that everyone would ineffably find to be repugnant to all civilized standards. Nor is it a punishment so roundly condemned that only a few aberrant legislatures have retained it on the statute books. Capital punishment is authorized by statute in 40 States, the District of Columbia, and in the federal courts for the commission of certain crimes.

On four occasions in the last 11 years, Congress has added to the list of federal crimes punishable by death. In looking for reliable indicia of contemporary attitude, none more trustworthy has been advanced. The world-wide trend toward limiting the use of capital punishment, a phenomenon to which we have been urged to give great weight, hardly points the way to a judicial solution in this country under a written Constitution. Rather, the change has generally come about through legislative action, often on a trial basis and with the retention of the penalty for certain limited classes of crimes.

Virtually nowhere has change been wrought by so crude a tool as the Eighth Amendment.

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The complete and unconditional abolition of capital punishment in this country by judicial fiat would have undermined the careful progress of the legislative trend and foreclosed further inquiry on many as yet unanswered questions in this area. Quite apart from the limitations of the Eighth Amendment itself, the preference for legislative action is justified by the inability of the courts to participate in the debate at the level where the controversy is focused.

The case against capital punishment is not the product of legal dialectic, but rests primarily on factual claims, the truth of which cannot be tested by conventional judicial processes. The five opinions in support of the judgments differ in many respects, but they share a willingness to make sweeping factual assertions, unsupported by empirical data, concerning the manner of imposition and effectiveness of capital punishment in this country.

Legislatures will have the opportunity to make a more penetrating study of these claims with the familiar and effective tools available to them as they are not to us. Petitioner was charged with committing armed robbery and murder on the basis of evidence that he had killed and robbed two men. At the trial stage of Georgia's bifurcated procedure, the jury found petitioner guilty of two counts of armed robbery and two counts of murder.

At the penalty stage, the judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count; that it was free to consider mitigating or aggravating circumstances, if any, as presented by the parties; and that it would not be authorized to consider imposing the death sentence unless it first found beyond a reasonable doubt 1 that the murder was committed while the offender was engaged in the commission of other capital felonies, viz. It is clear from the foregoing precedents [regarding cruel and unusual punishment] that the Eighth Amendment has not been regarded as a static concept.

As we develop below more fully, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction. But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. First, the punishment must not involve the unnecessary and wanton infliction of pain.

Second, the punishment must not be grossly out of proportion to the severity of the crime. Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given.

To the extent that this problem is inherent in jury sentencing, it may not be totally correctable. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.

The idea that a jury should be given guidance in its decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law. When erroneous instructions are given, retrial is often required.

It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations. While some have suggested that standards to guide a capital jury's sentencing deliberations are impossible to formulate, the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case.

While such standards are, by necessity somewhat general, they do provide guidance to the sentencing authority, and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner. In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.

As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding [split between a guilt phase and a sentencing phase] at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. We do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis.

Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital sentencing systems capable of meeting Furman's constitutional concerns. Justice Stewart, Mr. Justice Powell, and Mr. Those opinions hold further that, so viewed, the Clause invalidates the mandatory infliction of the death penalty, but not its infliction under sentencing procedures that Mr. Justice Stevens conclude adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.

In Furman v. That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws. While serving various sentences for murder, rape, kidnapping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz.

The Georgia Supreme Court affirmed both the conviction and sentence. Georgia, and the Court's decisions last Term in Gregg v. It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment. In Gregg, after giving due regard to such sources, the Court's judgment was that the death penalty for deliberate murder was neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime.

But the Court reserved the question of the constitutionality of the death penalty when imposed for other crimes. That question, with respect to rape of an adult woman, is now before us. We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape, by definition, does not include the death of or even the serious injury to another person.

The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over, and normally is not beyond repair. In a case such as this, confusion often arises as to the Court's proper role in reaching a decision. Our task is not to give effect to our individual views on capital punishment; rather, we must determine what the Constitution permits a State to do under its reserved powers.

In striking down the death penalty imposed upon the petitioner in this case, the Court has overstepped the bounds of proper constitutional adjudication by substituting its policy judgment for that of the state legislature. I accept that the Eighth Amendment's concept of disproportionality bars the death penalty for minor crimes.

But rape is not a minor crime; hence the Cruel and Unusual Punishments Clause does not give the Members of this Court license to engraft their conceptions of proper public policy onto the considered legislative judgments of the States. Since I cannot agree that Georgia lacked the constitutional power to impose the penalty of death for rape, I dissent from the Court's judgment.

In , petitioner, a black man, was convicted in a Georgia trial court of armed robbery and murder, arising from the killing of a white police officer during the robbery of a store. Pursuant to Georgia statutes, the jury at the penalty hearing considered the mitigating and aggravating circumstances of petitioner's conduct, and recommended the death penalty on the murder charge.

The trial court followed the recommendation, and the Georgia Supreme Court affirmed. After unsuccessfully seeking postconviction relief in state courts, petitioner sought habeas corpus relief in Federal District Court. His petition included a claim that the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. In support of the claim, petitioner proffered a statistical study the Baldus study that purports to show a disparity in the imposition of the death sentence in Georgia based on the murder victim's race and, to a lesser extent, the defendant's race.

The study is based on over 2, murder cases that occurred in Georgia during the 's, and involves data relating to the victim's race, the defendant's race, and the various combinations of such persons' races. The study indicates that black defendants who killed white victims have the greatest likelihood of receiving the death penalty. McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.

He argues that race has infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim.

In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application.

We agree with the Court of Appeals, and every other court that has considered such a challenge, that this claim must fail. The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire [i.

But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense.

McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect.

In Gregg v. Georgia, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose. At most, the Baldus study indicates a discrepancy that appears to correlate with race.

Apparent disparities in sentencing are an inevitable part of our criminal justice system. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.

McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges.

Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could -- at least in theory -- be based upon any arbitrary variable, such as the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking.

As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia.

But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated.

As Justice Brennan has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay. Petitioner Payne was convicted by a Tennessee jury of the first-degree murders of Charisse Christopher and her 2-year-old daughter, and of first-degree assault upon, with intent to murder, Charisse's 3-year-old son Nicholas. The brutal crimes were committed in the victims' apartment after Charisse resisted Payne's sexual advances. During the sentencing phase of the trial, Payne called his parents, his girlfriend, and a clinical psychologist, each of whom testified as to various mitigating aspects of his background and character.

The State called Nicholas' grandmother, who testified that the child missed his mother and baby sister. In arguing for the death penalty, the prosecutor commented on the continuing effects on Nicholas of his experience and on the effects of the crimes upon the victims' family. The jury sentenced Payne to death on each of the murder counts. The State Supreme Court affirmed, rejecting his contention that the admission of the grandmother's testimony and the State's closing argument violated his Eighth Amendment rights under Booth v.

Maryland and South Carolina v. Gathers, which held that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are per se inadmissible at a capital sentencing hearing. We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. The present case is an example of the potential for such unfairness.

The capital sentencing jury heard testimony from Payne's girlfriend that they met at church, that he was affectionate, caring, kind to her children, that he was not an abuser of drugs or alcohol, and that it was inconsistent with his character to have committed the murders. Payne's parents testified that he was a good son, and a clinical psychologist testified that Payne was an extremely polite prisoner and suffered from a low IQ.

None of this testimony was related to the circumstances of Payne's brutal crimes. In contrast, the only evidence of the impact of Payne's offenses during the sentencing phase was Nicholas' grandmother's description — in response to a single question — that the child misses his mother and baby sister. Payne argues that the Eighth Amendment commands that the jury's death sentence must be set aside because the jury heard this testimony. But the testimony illustrated quite poignantly some of the harm that Payne's killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the defendant.

We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

The novel rule that the Court announces today represents a dramatic departure from the principles that have governed our capital sentencing jurisprudence for decades. Justice Marshall is properly concerned about the majority's trivialization of the doctrine of stare decisis [i. But even if Booth and Gathers had not been decided, today's decision would represent a sharp break with past decisions. Our cases provide no support whatsoever for the majority's conclusion that the prosecutor may introduce evidence that sheds no light on the defendant's guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.

Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the sympathies or emotions of the jurors has never been considered admissible.

Thus, if a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty.

Petitioner Atkins was convicted of capital murder and related crimes by a Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, U. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes.

For example, in Godfrey v. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable —for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses— that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.

The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.

Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty. Who says so? Are the mentally retarded really more disposed and hence more likely to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality.

Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class. At age 17, respondent Simmons planned and committed a capital murder. After he had turned 18, he was sentenced to death.

His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. This Court then held, in Atkins v. Virginia, that the Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the execution of a mentally retarded person. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. These qualities often result in impetuous and ill-considered actions and decisions. In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders.

Aria Montgomery

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.

The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a year-old murderer cannot be sufficiently culpable to merit the death penalty. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty.

Indeed, the age-based line drawn by the Court is indefensibly arbitrary—it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not. Without question, there has been a global trend in recent years towards abolishing capital punishment for under offenders. His parents? Mom drank a bit when he was little, but not too much. That was how he remembered it, anyway. No, no, nothing like that. Just a few drinks a day.

Dad was a long-haul trucker. Didn't see him much. Brothers and sisters? Three biological ones. Twenty-one steps. Hey, my dad was a busy man! He got into some trouble as a kid. Set fires. The experts say that some adolescent fire setting comes from curiosity or experimentation, but most of it derives from psychosocial conflict. It can often be traced to family dysfunction: violence between a child's parents, or alcohol abuse by a parent.

The Plastimet arsonist figured that sometimes he was simply in the wrong place at the wrong time, flicked a match in the wrong direction. Really, that's all it was, he was sure of that. He was young, didn't know what he was doing. The one time, he was out in a forest aping another guy who was spraying a can of WD solvent and using a lighter to turn the spray into a torch -- but his happened to light up a large tree. Or the other time when he flicked his cigarette and it happened to set his sister's garbage can on fire, then before he knew it the side of the house was going up in flames.

Didn't mean to. Just like Plastimet. It wasn't always like that, though. He lived for a time in Thunder Bay. Both of his parents were with him then. He never lit any fires up there. The place just seemed too peaceful, life was too calm, for that. As a teenager, he got in more trouble. Drug abuse. His mother tried hiding the matches and lighters, the copy of Backdraft he watched religiously late into the night.

His dad was always on the road. As a teenager he became a ward of the Children's Aid Society, lived in a group home with other youths. Other boys were there for breaking and entering, pulling knives on family members. Got in more trouble, was picked up from the home by police for being high as a kite. Shitty buzz, man. Nearly eight years after the Plastimet fire, the arsonist felt bad about it. Regretted it. Was glad he came clean and confessed. And yet still felt some pride. Hamilton's biggest fire. He had followed media coverage at the time of the fire, but had not saved anything.

Now he wanted to find some of the newspaper articles on the fire. Maybe put a photo up on his wall. Jeff Post could only shake his head. A terrible thing, the fire. For some people around the world, he reflected, Plastimet remained the defining moment that was Hamilton. As for what drove the arsonist, well, the former detective wasn't going there. He stopped trying to figure these people out a long time ago.

He simply hoped the arsonist would not light up anything again. It mirrored the conclusions of a final report filed with Hamilton police by Sid Millin. The reports said the two investigators had concluded that the Plastimet fire had been deliberately set, and that there was no evidence to suggest a second individual was involved. The arsonist acted alone. Plastimet was no longer a cold case, it was a closed case.

You could add one intentional fire to Hamilton's and Ontario's statistics for the year Would the arsonist be charged, go to jail? Post knew that, based on what they had, in theory, there was plenty to get charges laid, get the arsonist before a judge and jury to decide his fate. Not only could the arsonist never be charged for setting the Plastimet fire, he could not have his name published in the newspaper, not even eight years after the big fire.

The reason? He didn't even qualify to be charged under the controversial Young Offenders Act. On that perfectly clear July evening in , the one holding the match in the Plastimet building was a child. Sunlight burst off the chrome of the black Harley-Davidson, its engine rumbling rudely, the low-slung rider's greying hair blowing in the wind.

The rider wore no helmet. A risk, certainly. But that was his choice. Colorado state law. He passed on the highway, whipping by dry scrub and dirt off to the side, mountains in the distance, like a ghost from another time, riding free on the road to -- to anywhere he pleased. The widow rode in the shuttle van. She was from Hamilton, golden hair, slim figure, bright face. Even now, at 51, Jacqueline Shaw at times looked like she might never stop resembling a teenage girl. Beside her, always beside her now, every possible moment, was Nathan, who was three months away from his 20th birthday, and a student at McMaster University taking a double major in communications studies and political science.

Jacqueline never imagined that the roar of a Harley would make her jaw tighten, her eyes go raw. She had encouraged Bob to buy a Harley, too. It was to be the symbol of his comeback, riding into the rest of his life. But he never picked up the bike, never fired up the engine, never parked it in front of Doc's in springtime as he planned. The volunteer driver of the shuttle was a firefighter from Colorado Springs, Local No.

He knew she was family attending the ceremony Saturday at the Fallen Fire Fighter Memorial, where firefighters would be remembered. It is the pre-eminent memorial to firefighters, an event held each fall to honour those in the United States and Canada who die from their work as firefighters. No I haven't," Jacqueline said politely, forcing a smile, trying her best to put him at ease. He spoke quietly to her, deferentially. He did not ask for her own story.

Did not hear that Jacqueline's husband had been at the centre of her life since she met him 30 years ago. Did not hear that he was a Hamilton firefighter who had died just six months earlier in her hometown, way up there in Canada, that he had been killed, slowly, by the big toxic fire. On the drive into the city, soaring mountains framed the view, shaded with dark trees, Pikes Peak standing up highest of all, its tanned bare tip lit by the sun.

Bob's old friend Paul Anderson, Jacqueline's brother-in-law, husband to her late sister Trish, was also coming to the event, arriving just in time for the ceremony. Paul smiled to himself when he saw the mountains. Many years ago, when he and Bob were kids, for some reason they had heard about it. Bob used to talk about seeing Pikes Peak someday. Never did.

Bob would have loved this place, the mountains, desert scrub, infinite mile-high sky so flawlessly blue, and the spiritual experience it all seemed to represent. Jacqueline gamely took Nathan to the top of Pikes Peak, even though she hated heights. Did some shopping, a little touring. They tried to make the best of it. It was surreal being away without Bob.

He had never felt right unless they were all together. But Jacqueline knew better. Some days were better than others, but it did not get easier. If anything it got worse, she just missed him more, every day. She was dreading Thanksgiving already. Couldn't even let the thought of Christmas enter her mind, or his February birthday. The Colorado Springs volunteers and organizers and firefighters were all so nice at the hotel. Jacqueline did all the right things, smiled the way she always did, lighting up the room, elegant and pretty and warm. She really did appreciate what they were doing. But she could never tell anyone what she was really feeling.

She did not want to be there. Couldn't they sense it? Her husband should not be honoured here, he should be here, in his dark formal uniform, spartan white gloves, chin held high, should be here to kick back and enjoy a beer with the boys after the ceremony. He should not be a name on a wall. That afternoon she and Nathan stayed away from the crowds and rested in their room, Nathan watching TV on his bed, Jacqueline's thin figure occupying a sliver of space on hers.

Aria Montgomery

Home -- that was how the minister at the memorial ceremony would describe the place the dead firefighters had travelled in spirit, to the afterworld, heaven. But Jacqueline yearned to be with Bob in their real home, wrapped in his strong arms. Early that evening, Thursday, she got a ride to the wall of honour at the Fallen Fire Fighter Memorial.

It was a chance to see it before the crowds packed the park on the day of the ceremony. She crouched down, her small fingers touched the cool smoothness of the dark granite, and then the rough letters of Robert M. Shaw's name engraved in place. Her eyes glassy, she stood and turned her back to the wall of honour and walked away, towards the lowering orange sun that was still throwing heat, now a perfect round ball of fire.

Bob visited Jacqueline in her dreams. He always would. The backdrop varies, she can't place it. But the figure is Bob's, right there in front of her. He turns towards her, but try as she might, she cannot see his face, that beautiful smiling face, ever. But she knows it's him. Early Friday, must have been 4 a. She heard Nathan shuffling in his bed, too. Friday night, a reception, Jacqueline dressed in black pants and black tank top, under a green jacket, hoop earings, greeting everyone with warmth and a smile.

Ed Stanisz was there representing the Hamilton Fire Department. Stanisz had been on the snorkel crew at Plastimet from the start. It was a festive reception, but it never lost the respectful tone of the week. Firefighters from all over the States and Canada were there, most dressed casual, some in their jeans and snug T-shirts or golf-style shirts, with things like "Houston's Bravest" written on them. Bob would have loved it. The next morning, Jacqueline, Nathan and Paul Anderson rode a tour bus to the ceremony.

Nathan kept busy pointing out landmarks, reciting facts about Pikes Peak. And Jacqueline stared out the window, her face empty, wishing it wasn't even happening. At the memorial site: flags, a long line of fire rigs, two ladders stretching into the heavens, and many firefighters in their formal dress, bright patches, hats. By 11 a. There were no clouds to block the beating sun which, at that altitude, was intense, burning right through pant legs, enough to make you pass out.

Some family members carried umbrellas to block the rays. There was no breeze, it seemed like there was no air to breathe. Jacqueline sat in her chair on the lawn among hundreds of others, wearing black pants and black and white top, holding a program over her head like a shield. Nathan kept himself occupied. The firefighters had marvelled at his composure at the funeral in Hamilton. And now, as everyone milled around prior to the ceremony, he gravitated towards his journalism career path, took photos, looked at the flags, the pomp, commenting on it as though he were not actually involved in what was taking place, like he was outside it, distracting himself by assuming the position of observer.

The ceremony itself was like a lead weight placed on Jacqueline's chest. She sat with her eyes alternately welling with tears and drying up. She looked small sitting in her chair. This was why she hadn't wanted to come. It was the funeral all over again. It had a military flavour, the pageantry, drums rat-tat-tatting, bagpipes bringing in the honour guard, a bugle played taps.

The city's vice-mayor spoke, closed his address observing that if Jesus Christ chose an occupation today, it might well be firefighting, the job was that righteous a calling. Reasons come to mind like duty, commitment, courage, sacrifice. Those are concepts our profession lives by, and sadly, they are also the reasons by which our own die. But these are things that also bring us together, as a family. Then, the names of the firefighters were read, a silver bell clanging with each, a stab to the heart over and over again.

Grim-faced firefighters dressed in their formal darks from across Canada and the United States were each assigned one family to present to. In dead silence, broken only by the rustling of leaves, a firefighter named Dareek, from the Las Vegas fire department, a tall, muscular African-American man, carried the triangular dark wood and glass case containing the folded firefighter flag to the seats in the grass where Jacqueline and Nathan sat along with Bob's old Mountain buddy, Paul Anderson.

Dareek had met them before the ceremony, was struck by how young Nathan looked.

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