Justice Tom Clark’s concurrence, GIdeon v Wainwright – 1963 US

Source: Gideon v Wainwright (1963)

I must conclude here, as in Kinsella, supra, that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of “liberty” just as for deprival of “life,” and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved.
♦ How can the Fourteenth Amendment tolerate a procedure which it condemns in capital cases on the ground that deprival of liberty may be less onerous than deprival of life – a value judgment not universally accepted 3 – or that only the latter deprival is irrevocable? ♦
I can find no acceptable rationalization for such a result, and I therefore concur in the judgment of the Court.

Would someone please explain the meaning of Justice Tom Clark’s entire rhetorical question (that I surrounded with diamonds)? For example, tolerate and condemns are antonyms.

Also, how does the italicised make sense? Does the latter deprival refer to the deprival of life? But deprival of life (ie death) is always irrevocable, so what’s the problem or question here?

Yet deprival of liberty can be revocable (eg prisoners are deprived of many of their liberties, but this deprival is revoked upon their release back into society)? So one can validly argue that it’s less onerous?

Answer

… what’s the problem or question here?

You have missed an important word: only.

How can the Fourteenth Amendment tolerate a procedure which it
condemns in capital cases on the ground that deprival of liberty may
be less onerous than deprival of life – a value judgment not
universally accepted — or that only the latter deprival is
irrevocable?

… on the ground … that only the latter deprival (i.e. deprival of life) is irrevocable

That is, why should we not regard the deprival of liberty as irrevocable as well?

The passage does not say this, but: one can never recover the time during which one was not free. A man who is wrongly convicted and then spends most of his adult life in prison has irrevocably lost those years during which he might have been engaged in the pursuit of happiness.

P.S. A paraphrase:

In matters relating to the deprival of liberty, how can we be expected to accept the view that the Fourteenth Amendment tolerates there a procedure which it condemns in matters relating to deprival of life? Those who would argue that we should accept that the Fourteenth Amendment distinguishes between life and liberty, tolerating for the one what it condemns for the other, are basing their arguments on an assumption that the deprival of liberty is less onerous (a value judgment not universally accepted) or on the assumption that the deprival of liberty is not irrevocable.

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