. . selectively to minorities." He found at 353 that the statutes in question under which juries could recommend the death penalty as they saw fit in murder and rape cases to be, as he said at 359, "unconstitutional in their operation. They are pregnant with discrimination." Brennan agreed, stating at 379, that "the State may not arbitrarily inflict an unusually severe punishment." Marshall cited statistics showing that negroes were executed far more often than whites in proportion to their share of the population or the number of crimes they committed. He said at 422 that "the burden of capital punishment falls upon the poor, ignorant, and the underprivileged."
Justice Potter Stewart would not rule out the constitutionality of all death penalty statutes, but found at 390 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 freakishly imposed." Justice Byron White spoke in a similar vein at 392: "the death penalty is enacted with great infrequency even for most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not."
Justices Harry Blackmun, Chief Justice Warren Burger, Lewis Powell and William Rehnquist disagreed, basically on the grounds that discrimination based on race had not been proven and that it was the function of the legislatures not the Courts to abolish capital
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