dissenting.
Ordinarily I would have no hestitation joining the majority of my colleagues in denying the petition for certiorari in this case. The questions presented in the petition are of importance only to petitioner himself and therefore are not suitable candidates for the exercise of our discretionary jurisdiction. But in a larger sense, the case raises significant issues about the administration of capital punishment statutes in this country, and reflects the increasing tendency to postpone or delay the enforcement of those constitutionally valid statutes. Because I think stronger measures are called for than the mere denial of certiorari in a case such as this, I would grant the petition for certiorari so that the case can be fully briefed and argued.
A mere recital of the facts of this case illustrates the delay to which I have referred. Petitioner was convicted by a jury in 1973 of murdering six members of a family, after raping and torturing some members of that family. He was sentenced to death under Georgia’s capital punishment statute, a statute expressly held constitutional in Gregg v. Georgia, 428 U. S. 153 (1976). The sentence was affirmed by the Supreme Court of Georgia, Coleman v. State, 237 Ga. 84, 226 S. E. 2d 911 (1976), and this Court denied the first petition for certiorari. Coleman v. Georgia, 431 U. S. 909, rehearing denied, 431 U. S. 961 (1977). Petitioner subse*957quently sought state collateral relief, which was denied by the state habeas court. The Georgia Supreme Court then denied his application for a writ of probable cause to appeal. Petitioner has now filed his second petition for certiorari in this Court. Because petitioner has had a full opportunity to have his claims considered on direct review by both the Supreme Court of Georgia and this Court and on collateral review by the state courts of Georgia, and because the issues presented are not substantial, it is not surprising that the majority of the Court votes to deny the petition for certiorari.
I dissent not because I believe that petitioner has made any showing in the Georgia courts that he was deprived of any rights secured to him by the United States Constitution, but rather because our mere denial of certiorari will not in all likelihood end the already protracted litigation in this case. If petitioner follows the path of many of his predecessors, he will now turn to a single-judge federal habeas court, alleging anew some or all of the reasons which he urges here for granting the petition for certiorari. If he fails to impress the particular United States District Court in which his habeas petition is filed, he may upon the issuance of a certificate of probable cause appeal to a United States Court of Appeals. And throughout this exhaustive appeal process, any single judge having jurisdiction over the case may of course stay the execution of the penalty pending further review. 28 U. S. C. § 1651. Given so many bites at the apple, the odds favor petitioner finding some court willing to vacate his death sentence because in its view his trial or sentence was not free from constitutional error. See Estelle v. Jurek, 450 U. S. 1014 (1981) (Rehnquist, J., dissenting).
It seems to me that we have thus reached a stalemate in the administration of federal constitutional law. Although this Court has determined that capital punishment statutes do not violate the Constitution, Gregg v. Georgia, supra, and although 30-odd States have enacted such statutes, apparently in the belief that they constitute sound social policy, the ex*958istence of the death penalty in this country is virtually an illusion. Since 1976, hundreds of juries have sentenced hundreds of persons to death, presumably in the belief that the death penalty in those circumstances is warranted, yet virtually nothing happens except endlessly drawn out legal proceedings such as those adverted to above. Of the hundreds of prisoners condemned to die who languish on the various “death rows,” few of them appear to face any imminent prospect of their sentence being executed. Indeed, in the five years since Gregg v. Georgia, there has been only one execution of a defendant who has persisted in his attack upon his sentence. See Spenkelink v. Wainwright, 442 U. S. 1301 (1979) (Rehnquist, J., in chambers). My in-chambers opinion in that case describes some of the many avenues of relief which can be pursued by one sentenced to death.
I do not think that this Court can continue to evade some responsibility for this mockery of our criminal justice system. Perhaps out of a desire to avoid even the possibility of a “Bloody Assizes,” this Court and the lower federal courts have converted the constitutional limits upon imposition of the death penalty by the States and the Federal Government into arcane niceties which parallel the equity court practices described in Charles Dickens’ “Bleak House.” Even though we have upheld the constitutionality of capital punishment statutes, I fear that by our recent actions we have mistakenly sent a signal to the lower state and federal courts that the actual imposition of the death sentence is to be avoided at all costs.
That surely was not the intent of the opinion of Justices Stewart, Powell, and Stevens in Gregg v. Georgia. That opinion recognized that capital punishment is said to serve two principal social purposes — retribution and the deterrence of capital crimes by prospective offenders. It went on to explain:
“The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which *959properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. . . .
“In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.” 428 U. S., at 186-187.1
What troubles me is that this Court, by constantly tinkering with the principles laid down in the five death penalty cases decided in 1976, together with the natural reluctance of state and federal habeas judges to rule against an inmate on death row, has made it virtually impossible for States to enforce with reasonable promptness their constitutionally valid capital punishment statutes. When society promises to punish by death certain criminal conduct, and then the courts fail to do so, the courts not only lessen the deterrent effect of the threat of capital punishment, they undermine the integrity of the entire criminal justice system. To be *960sure, the importance of procedural protections to an accused should not be minimized, particularly in light of the irreversibility of the death sentence. But it seems to me that when this Court surrounds capital defendants with numerous procedural protections unheard of for other crimes and then pristinely denies a petition for certiorari in a case such as this, it in effect all but prevents the States from imposing a death sentence on a defendant who has been fairly tried by a jury of peers. As Justice Jackson stated in Stein v. New York, 346 U. S. 156, 197 (1953): “The petitioners have had fair trial and fair review. The people of the State are also entitled to due process of law.”
The other principal purpose of capital punishment is retribution. The testimony of Lord Justice Denning, then Master of the Rolls of the Court of Appeal in England, before the Royal Commission on Capital Punishment answers those who insist that respect for the “sanctity of life” compels the end of the death sentence for any crime, no matter how heinous. He explained:
“Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.” Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950), quoted in Gregg v. Georgia, 428 U. S., at 184, n. 30.
There can be little doubt that delay in the enforcement of capital punishment frustrates the purpose of retribution. As *961the opinion in Gregg stated, “ ‘[w]hen people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve” then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.’ ” Id., at 183, quoting Furman v. Georgia, 408 U. S. 238, 308 (1972) (Stewart, J., concurring). San Francisco experienced vigilante justice during the Gold Rush in the middle part of the last century; the mining towns of Montana experienced it a short time later; and it is still with us as a result of the series of unsolved slayings of Negro children in Atlanta.2
In thinking about capital punishment, it is important to remember that the preservation of some degree of liberty for all demands that government restrain the few who kill law-abiding members of the community. As Judge Learned Hand long ago recognized:
“And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the *962possession of only a savage few; as we have learned to our sorrow.” The Spirit of Liberty 190 (3d ed. 1960).
James Madison made the same point in this now famous passage from Federalist Paper No. 51:
“But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Federalist Papers 322 (1961). (Emphasis supplied.)
I believe we have in our judicial decisions focused so much on controlling the government that we have lost sight of the equally important objective of enabling the government to control the governed. When our systems of administering criminal justice cannot provide security to our people in the streets or in their homes, we are rapidly approaching the state of savagery which Learned Hand describes. In Atlanta, we cannot protect our small children at play. In the Nation’s Capital, law enforcement authorities cannot protect the lives of employees of this very Court who live four blocks from the building in which we sit and deliberate the constitutionality of capital punishment.3
*963In light of the foregoing, I do not believe it is a responsible exercise of our certiorari jurisdiction to blithely deny petitions for certiorari in cases where petitioners have been sentenced to death and present for review claims which seem on their face to have little merit, and which have been extensively considered by state and federal courts on both direct and collateral review. The 5-year history of death sentences, as opposed to execution of those sentences, is a matter with respect to which no Member of this Court can be unaware. If capital punishment is indeed constitutional when imposed for the taking of the life of another human being, we cannot responsibly discharge our duty by pris-tinely denying a petition such as this, realizing full well that our action will simply further protract the litigation.
Accordingly, I believe that the petition should be granted in order that this Court may deal with all of petitioner’s claims on their merits. If after full briefing and argument the Court decides to affirm, the provisions of 28 U. S. C. § 2244 (e) would come into operation. That section provides in pertinent part:
“In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of certio-rari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein . . . .”
See Neil v. Biggers, 409 U. S. 188 (1972).
*964Thus the jurisdiction of the federal courts over petitioner’s sentence of death would be at an end, and unless the appropriate state officials commuted petitioner’s sentence, it would presumably be carried out. In any event, the decision would then be in the hands of the State which had initially imposed the death penalty, not in the hands of the federal courts.
That same opinion once again rejected the argument that evolving “standards of decency” demand the end of the death penalty, as if the role of judges, as opposed to democratically elected legislatures, is to “divine” what are “decent” societal values. The opinion made clear that recent developments — such as the enactment of capital punishment statutes by 35 States — had undercut that argument. “Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.” 428 U. S., at 179-180.
A recent article in the Washington Star, Mar. 21, 1981, p. 1, cols. 3-4, illustrates this growing problem. It reads:
“ATLANTA (AP) — Two gun-wielding men were arrested yesterday at the start of a housing project’s self-defense patrol to protect youngsters against Atlanta’s child killers.
“Younger members of the patrol, who carried baseball bats, were not stopped but those carrying weapons were questioned by police. The two arrested were charged with possession of deadly weapons at a public gathering. . . .
“Israel Green, who heads the project’s tenants’ association, called for national support of the patrol’s right to carry arms.
“ ‘We cannot stop them (killers) by consulting psychics, by having seances, by prayer vigils or by lighting little candles or forms of distracting activity that is not directly connected to the problems we face,’ Green saici in a statement. ‘We have to face these killers in the real world.’ ”
When the issue of capital punishment arises, one is reminded of Judge Parker, a well-known judge who sat in the Western District of Arkansas for more than 20 years, and had to deal with the outlaws of his time and place. He had earned the reputation of a “hanging judge.” Of the several biographies written of him, J. Gregory & R. Strictland, Hell on the Border 28 (1971) makes the following statement:
“It did not seem to Judge Parker to be an act of cruelty to sentence such blood-thirsty men to die. ‘I never hanged a man/ he said when lying on his death bed, ‘I never hanged a man. It is the law. The good ladies who carry flowers and jellies to criminals mean well. There is no *963doubt of that, but what mistaken, goodness! Back of the sentimentality are the motives of sincere pity and charity, sadly misdirected. They see the convict alone, perhaps chained in his cell; they forget the crime he perpetrated and the family he made husbandless and fatherless by his assassin work.’ ”