480
Thomas, J., concurring
253 (Douglas, J., concurring).2 In his opinion concurring in the Court's judgment that the death penalty in these cases was unconstitutional, Justice Douglas stressed the potential role of racial and other illegitimate prejudices in a system where sentencing juries have boundless discretion. He thought it cruel and unusual to apply the death penalty "selectively to minorities . . . whom society is willing to see suffer though it would not countenance general application of the same penalty across the board." Id., at 245. Citing studies and reports suggesting that "[t]he death sentence [was] disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups," especially in cases of rape, id., at 249-250 (internal quotation marks omitted), Justice Douglas concluded that
"the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position." Id., at 255.
Justice Marshall echoed these concerns. See id., at 364- 366 (concurring opinion). He wrote that "[r]acial or other discriminations [in sentencing] should not be surprising," because, in his view, the Court's earlier decision in McGautha v. California, 402 U. S. 183 (1971), upholding a procedure that had "committ[ed] to the untrammeled discretion of the jury the power to pronounce life or death," id., at 207, was "an open invitation to discrimination," 408 U. S., at 365. Justice Stewart also agreed that "if any basis can be discerned
2 Furman was surprised to discover the victim at home and, while trying to escape, accidentally tripped over a wire, causing his pistol to fire a single shot through a closed door, thereby killing the victim. See 408 U. S., at 294-295, n. 48 (Brennan, J., concurring).
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