Clemons v. Mississippi/Concurrence Brennan

by William J. Brennan, Jr.

Justice BRENNAN, concurring in part and dissenting in part.

I concur in the Court's holding that the judgment of the Mississippi Supreme Court must be vacated. I join Justice BLACKMUN's separate opinion, however, rejecting the suggestion that a state court can save a death sentence by "reweighing" aggravating and mitigating circumstances. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting), I would direct that the proceedings on remand be circumscribed so as to preclude the reimposition of the death sentence.

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