Branch v. Texas Brief for the Respondent

    ke N V A IL
Supreme Court, U 

5
Cf.

IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1971

No. 69-5031 
* * *

Elmer B ranch,
Petitioner,

V.
State of Texas,

Respondent.* # *

ON WRIT OF CERTIORARI TO THE TEXAS 
COURT OF CRIMINAL APPEALS

* * *
BRIEF FOR THE RESPONDENT

* * *
Crawford C. M artin 
Attorney General of Texas
Nola W hite 
First Assistant
A lfred W alker 
Executive Assistant
R obert C. F lowers 
Assistant Attorney General
Glenn R. Brown 
Assistant Attorney General
Box “ R ,”  Capitol Station 
Austin, Texas 78711
Charles A lan W right 
2500 Red River Street 
Austin, Texas 78705
Attorneys for Respondent



I N D E X

Subject I ndex

Statement of Case_______________________________  1

Summary of Argument__________________________  2

Argument ______________________________________ 4
I. Capital punishment may reasonably be­

thought to serve the purposes of retribution 
and deterrence and is not “ cruel and un­
usual”  within the meaning of the Eighth 
Amendment_____________________________  4

II. Captal punishment in rape cases is justified 
by the seriousness of the crime and is not 
“ cruel and unusual”  within the meaning of 
the Eighth Amendment____________________22

III. The other contentions of petitioner are not
properly in issue here______________________42

Conclusion_______________________________________44

Citations

CASES:
Anderson, In re, 69 Cal.2d 613, 447 P.2d 117

(1968) ____________________________________  5

Calhoun v. State, 85 Tex.Cr. 496, 214 S.W. 335 
(1919) ______________________________________31

Fay v. Noia, 372 U.S. 391 (1963)_______________ 22

Ginsberg v. New York, 390 U.S. 629 (1968)______19
i



Irvine v. California, 347 U.S. 128 (1954)________43

Kemmler, In re, 136 U.S. 436 (1890)__________ 6, 23

McGautha v. California, 402 U.S. 183

Goesaert v. Cleary, 335 U.S. 464 (1948)________ 12

(1971) ________________________5, 6,12,13, 21, 29

Mapp v. Ohio, 367 U.S. 643 (1961)_____________ 22

Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968) _5, 31

Miranda v. Arizona, 384 U.S. 436 (1966)_______22

O’Neil v. Vermont, 144 U.S. 323 (1892)________24

Ralph v. Warden, Maryland Penitentiary,
438 P.2d 786
(4th Cir. 1970)_____11,13,23,30,32,35,36,39,41

Robinson v. California, 370 U.S. 660 (1962)_____24

Sanders v. United States, 373 U.S. 1 (1963)___ 22

State ex rel. Francis v. Resweber, 329 U.S. 459 
(1947) _________________________________ 5,6,24

Townsend v. Sain, 372 U.S. 293 (1963)_________22

Trop v. Dulles, 356 U.S. 86 (1958)__________6, 7, 24

United States v. Jackson, 390 U.S. 570 (1969)_41

Weems v. United States, 217 U.S. 349 (1910) __6, 24

Wilkerson v. Utah, 99 U.S. 130 (1879)________6, 23
ii



Witherspoon v. Illinois, 391 U.S. 510 (1968)—5, 7, 21

Williams v. New York, 337 U.S. 241 (1949)____13

STATUTES:
Act of April 30, 1790; 1 Stat. 112______________  6

18 U.S.C. § 1751______________________________  9

28 U.S.C. § 1257(3)_____   43

Texas Code of Criminal Procedure, Art. 1.14—42,43

OTHER AUTHORITIES:
B edau, T he Death P enalty in A merica

(2d ed. 1967)__________________________ 8,9,17,18

Bullock, Significance of the Racial Factor in the 
Length of Prison Sentences, 52 J. Crim . L., C. 
&P. S. 411 (1961)____________________________ 29

Cohen, L aw  W ithout Order (1970)----------------- 17

Cohen, R eason and L aw (1950)_________________ 14

Comment, The Death Penalty Gases, 56 Calie.L. 
R ev. 1268 (1968)_______________________________12

Comment, Revival of the Eighth Amendment: 
Development of Gruel-Punishment Doctrine ~by 
the Supreme. Court, 16 Stan.L.Rev. 996 (1964) 23

Deut. 1 9 :2 1 _____________________________________ 25

Deut. 2 2 :1 5 _____________________________________ 25
iii



D uffy, 88 Men and 2 W omen (1962) 

Ex. 2 2 :1 8 ___________________________

21

F lorida, R eport of the Special Commission for 
the Study of A bolition of Death P enalty in 
Capital Cases (1965)_________________________

FBI, U niform Crime R eports for the U nited 
States 1970 (1971)________________________ 28,

F rankfurter, The Problem of Capital Punish­
ment, in Of L aw and Men (1956)-----------------

Gebhard, G-agnon, P omeroy & Christenson, Sex 
Offenders (1 9 6 5 )_______________________ 25,

Gibbs, Crime, Punishment, and Deterrence, 48 
Sw. Soc. Sci. Q. 515 (1968)__________________

Goldberg & Dersbowitz, Declaring the Death Pen­
alty Unconstitutional, 83 H arv.L.Rev. 1773 
(1970) ______________________________7,11,13,

Halleck, Emotional Effects of Victimization, in 
Sexual B ehavior and the L aw 673 (Slovenko 
ed. 1965) ____________________________________

Hart, The Aims of the Criminal Law, 23 L. & 
Contemp. P rob. 401 (1958)__________________

Hart, Murder and the Principles of Punishment: 
England and the United States, 52 Nw.U.L. 
R ev. 433 (1957)___________________________15,

Koeninger, Capital Punishment in Texas, 1924- 
1968, 15 Crime & Del. 132 (1969)____________

25

16

40

40

33

15

16

38

14

17

29
IV



Lev. 20:21 25

Macdonald, R ape— Offenders and T heir V ic­
tims (1 9 7 1 )__________________ 25, 27, 28, 30, 33, 34

Model P enal Code (Proposed Official Draft 
1962) ______________________________________ 8

M odel P enal Code (Tent.Dr.No. 9, 1959)------16,40

National Commission on R eform of F ederal 
Criminal Laws, F inal R eport (1971)-----------  8

Note, The Gruel and Unusual Punishment Clause 
and the Substantive Criminal Law, 79 H arv.L. 
R ev. 635 (1966)_________________________10, 26, 27

Note, The Effectiveness of the Eighth Amend­
ment: An A.ppraisal of Cruel and Unusual 
Punishment, 36 N.Y.U.L.Rev. 846 (1961)___10,11

Ohio Legislative Service Commission, Capital 
P unishment (Staff Research Report No. 46,
1961) ______________________________________ 8,16

P acker, T he L imits of the Criminal
Sanction (1968) ---------------------------------- 13,14, 27

Packer, Making the Punishment Fit the Crime,
77 H arv.L.Rev. 1071 (1964)______ 19, 24, 26, 32, 41

R oyal Commission on Capital P unishment, 
R eport 1949-1953, Cmd. N o. 8932 
(1953) ______________________________ 14,15,17,18

v



Schwartz, The Effect in Philadelphia of Pennsyl­
vania’s Increased Penalties for Rape and A t­
tempted Rape, 59 J. Crim . L., C. & P. S. 509 
(1968) ______________________________________24

Seney, The Sibyl at Cumae—-Our Criminal Law’s 
Moral Obsolescence, 17 W ayne L .R ev. 777 
(1971) ______________________________________30

Shakespeare, The Rape of Lucrece----------------------39

Sutherland & Scherl, Patterns of Response 
Among Victims of Rape, 40 A mer. J. 
Orthopsychiat. 503 (1970)_______________38,39

Texas P enal Code: A P roposed R evision (Final 
Draft, 1970) ________________________________ 41

Williams, Rape-Murder, in Sexual B ehavior and 
the L aw 563 (Slovenko ed. 1965)-------- .-------  33

W orking P apers op the National Commission 
on R eform of F ederal Criminal Laws 
(1970) _____________________________ 8,15,17,18

vi



IN THE

SUPREME COURT OF THE UNITED STATES
October Terra, 1971

No. 69-5031
* * *

Elmek B ranch:,
Petitioner,

V.

State of Texas,
Respondent.

*  *  *

ON WRIT OF CERTIORARI TO THE TEXAS 
COURT OF CRIMINAL APPEALS

* * *

BRIEF FOR THE RESPONDENT
* * *

STATEMENT OF CASE
Shortly before 2:00 A.M. on the morning of May 

9th, 1967, Mrs. Grady Stowe was awakened by an in­
truder who had broken into her home twelve miles 
north of Vernon, Texas, in which she was alone sleep­
ing. The intruder overcame her resistance by force and 
brutally raped her. Mrs. Stowe’s vivid narrative of 
the events (A. 18-28) -was not cross-examined by the 
defense (A. 28), and defense counsel told the jury he 
had not cross-examined her “ because I feel like that 
what she said was the truth, other than possibly the 
identification”  (A. 119-120). Any doubt but that de­
fendant committed the crime was insubstantial. Mrs. 
Stowe made a positive identification of him (A. 18), 
he was arrested a short time after the crime (A. 35),



Ms clothing when he was arrested was as described by 
Mrs. Stowe (A. 24, 30), and the tennis shoes he was 
wearing made a distinctive mark that coincided with 
foot prints found outside of Mrs. Stowe’s house (A. 
41, 51). Mrs. Stowe was a 65 year old widow (A. 21). 
Defendant was a powerful young man (A. 19) aged
20 or 21.*

The jury found defendant guilty and assessed death 
as the penalty. Sentence was entered accordingly.

SUMMARY OF ARGUMENT
I. The Framers did not intend in the Eighth 

Amendment to abolish capital punishment and this 
Court has long and firmly supposed that punishment 
to be constitutional. Even if the Amendment can take 
on new meanings in the light of “ evolving standards 
of decency,”  there has been no change in standards 
that would permit holding capital punishment to be 
unconstitutional. Although there has been much debate 
on the wisdom of this penalty and public opinion is 
divided, the penalty is still widely accepted by the 
public and by the legislatures of 41 states and the 
federal government. Retribution remains one of the 
legitimate aims of punishment and for some cases only 
the death penalty is appropriate retribution. Legisla­
tures may also conclude that capital punishment is 
more effective as a deterrent of crime than is any other 
penalty. Although there is no statistical evidence of 
the superiority of death as a deterrent, there is other

*There is some confusion in the record about defendant’s 
age. His mother testified that he was 20 at the time of the 
trial two months after the rape (A. 97), but a parole sum- 
mary prepared on February 25, 1966 (A. 87) listed him as
being 20 at that time (A. 89), which would have made him
21 at the time of the crime.

— 2



evidence supporting this conclusion and there is no 
statistical evidence demonstrating that it is not su­
perior. That executions now occur less frequently than 
in the past does not show public rejection of capital 
punishment and society may permissibly keep the death 
penalty on the books to deter all crimes in a particu­
lar class while actually imposing that penalty only on 
the most extreme occurrences within the class.

II. I f  capital punishment is constitutionally per­
missible for some crimes, it is permissible for rape. 
Even assuming that the Eighth Amendment bars not 
only those punishments that are inherently cruel but 
also those that are cruelly excessive, a death sentence 
for rape does not run afoul of such a bar. The death 
penalty may be regarded as a superior deterrent for 
rape, as for murder, and there are some rapes not re­
sulting in death that are so horrible that a legislature 
may properly think that death is not disproportionate 
retribution. Rape has always been regarded as one of 
the most serious of crimes, its incidence is rising sharp­
ly, and a legislature does not act unreasonably in con­
cluding to retain the death penalty for rape. The argu­
ment that that penalty for that offense is an attempt 
to legitimize racial homicide is based on inconclusive 
figures from the past. It is illusory to speak of limit­
ing use of the death penalty to those cases in which the 
victim’s life is endangered because in a sense this is 
always so in forcible rape and there is no way to de­
termine objectively whether it was the case in any 
particular rape. It is also illusory to seek to confine 
the applicability of the death penalty to rapes in which 
the victim has suffered grievous physical or psycho­
logical harm. Again there is a sense in which every rape 
victim suffers lasting psychological harm and in the

—  3 —



present state of knowledge there is no way to know with 
assurance what the psychological consequences on a par­
ticular victim have been. The danger that a rape has 
posed to the victim’s life and the extent of harm she 
has suffered are legitimate considerations for a jury, 
expressing the collective conscience of the community, 
in determining sentence hut are not constitutional limi­
tations on the use of capital punishment. It is not true 
that most jurisdictions regard death as an excessive 
penalty for rape and there is no trend toward aban­
doning the death penalty for rape cases.

III . Petitioner’s contentions that it is a denial of 
equal protection if a convicted rapist in Texas is sub­
ject to the death penalty when he would not be if he 
were convicted in some other state and that the Texas 
procedure giving the prosecutor discretion whether to 
seek the death penalty is unconstitutional cannot be 
considered here. They are not within the limited grant 
of certiorari, they were not presented in the petition 
for the writ, and they were never raised in the state 
courts.

ARGUMENT

I. Capital Punishment May Reasonably Be Thought 
to Serve the Purposes of Retribution and Deterrence 
and Is Not “Cruel and Unusual” Within the Meaning 
of the Eighth Amendment.

Petitioner in the present case does not challenge the 
constitutionality in general of capital punishment 
(Branch Br. 9). He limits himself to the argument 
that a death sentence for certain kinds of rape, of

4-—



which, he asserts this is one, is unconstitutional. But if 
capital punishment is unconstitutional for any “ ci­
vilian, peacetime crime,”  as is claimed in some of the 
companion cases (Aikens Br. 5), it necessarily follows 
that it is unconstitutional in this case. Thus the issue 
presented in Aikens and in Furman is central to the 
present case as well and we must consider it before 
turning to the special problems that may he thought 
to he raised hy use of the death penalty in a rape case.

There is no issue before this Court of the wisdom 
or social desirability of capital punishment. These are 
questions addressed wholly to legislators. Even those 
who are personally opposed to capital punishment may 
well conclude that it violates no provision of the Con­
stitution. F.g., State ex rel. Francis v. Resweber, 329 
U.S. 459, 470 (1947) (Frankfurter, J., concurring) ; 
Maxwell v. Bishop, 398 F.2d 138, 154 (8th Cir. 1968) 
(per Blackmun, J.), vacated on other grounds 398 
U.S. 262 (1970); In re Anderson, 69 Cal.2d 613, 634- 
635, 447 P.2d 117, 131-132 (1968) (Mosk, J., concur­
ring) ; cf. McGautha v. California, 402 U.S. 183, 226 
(1971) (Black, J., concurring); Witherspoon v. Illi­
nois, 391 U.S. 510, 542 (1968) (White, J., dissenting).

In terms of the usual criteria for interpreting the 
Constitution, the case for the constitutionality of capi­
tal punishment is a very compelling one. It seems be­
yond dispute that the Framers did not intend by the 
Eighth Amendment to outlaw the death penalty, a pen­
alty that was “ in common use and authorized by law 
here and in the countries from which our ancestors 
came at the time the Amendment was adopted.”  Mc- 
Gautha v. California, 402 U.S. 183, 226 (1971) (Black, 
J., concurring). The same Congress that proposed the

—  5 —



Eighth Amendment provided in the First Crime Act 
for the death penalty for treason, murder, piracy, 
counterfeiting, and other offenses. Act of April 30, 
1790, §§ 1, 3, 8, 9,14, 23, 1 Stat. 112. It is equally clear 
that this Court in a long line of cases has spoken of 
the death penalty a,s if it were constitutional. E.g., 
Wilkerson v. Utah, 99 U.S. 130, 134-135 (1879) ; In  
re Kemmler, 136 U.S. 436, 447 (1890) ; State ex rel. 
Francis v. Besweber, 329 U.S. 459, 464 (1947) (plu­
rality opinion) ; Trop v. Dulles, 356 U.S. 86, 99 (1958) 
(plurality opinion). Only last term the Court filled 
130 pages of the United States Reports with discus­
sion of the constitutionality of the procedures used in 
imposing the death penalty, McGautha v. California, 
402 U.S. 183 (1971), a singularly academic exercise 
if  the Constitution does not permit that penalty ever 
to he imposed. It is possible to make a nice analysis of 
these cases and to decide that none of them represents 
an actual holding on the constitutionality of the death 
penalty hut even reading them for the least they are 
worth they support what is said by petitioner in Aikens.

Obviously, the Court has long and firmly sup­
posed its constitutionality; and if the question had 
been appropriately posed in Wilkerson or Kem­
mler, capital punishment plainly would have been 
sustained. The same may be true as late as Francis, 
or even Trop, * * *.

(Aikens Br. 9).

The same conclusion seems indicated even if one 
concedes that the Eighth Amendment may change its 
meaning with the passage of the years, as four Justices 
said in Weems v. United States> 217 U.S. 349, 372- 
373, 378 (1910), and the same number reiterated in

—  6



the plurality opinion in Trop v. Dulles, 356 U.S. 86, 
100-101 (1958). In the latter case it was said that

the words of the Amendment are not precise, and 
that their scope is not static. The Amendment must 
draw its meaning from the evolving standards of 
decency that mark the progress of a maturing 
society.

In that same case the plurality opinion also stated that
the death penalty has been employed throughout 
our history, and, in a day when it is still widely 
accepted, it cannot he said to violate the constitu­
tional concept of cruelty.

Id. at 99. That is no less true today. Society’s standards 
of decency have not evolved that much in the interven­
ing 13 years.

It is clear that there has been much debate about 
the efficacy and morality of capital punishment and 
that the American people are divided on this issue. 
This Court took note of a 1966 poll indicating that 
42% favor capital punishment while 47% oppose it. 
Witherspoon v. Illinois, 391 U.S. 510, 520 n. 16 (1968). 
A  1969 poll finds 51% in favor of the death penalty. 
Goldberg & Dershowitz, Declaring the Death Penalty 
Unconstitutional, 83 H abv.L.Rev. 1773, 1781 n. 39 
(1970). Whether the percentage is 42% or 51% is 
of no significance. The fact is that public opinion is 
divided with substantial support for both sides. Many 
responsible citizens favor the death penalty though 
the fight to abolish it “ has been waged with the fervor 
of a crusade”  (Aikens Br. 32). It is the abolitionists 
rather than the retentionists who have organized them­
selves into highly articulate lobbies and found repre­
sentatives in respected public figures. Memorandum on

—  7



the Capital Punishment Issue, in 2 W orking P apers 
of the National Commission on R eform of F ederal 
Criminal Laws, 1347, 1363 (1970). It is the opponents 
of the death penalty who have been, “ active in research 
and prolific in their writings.”  Ohio L egislative Serv­
ice Commission, Capital P unishment 31 (Staff Re­
search Report No. 46, 1961).

It is not only in the polls that a sharp division ap­
pears. In 1964 abolition of capital punishment carried 
with 60% of the vote in a referendum in Oregon. Two 
years later 65% of the voters in Colorado chose to re­
tain the death penalty. B edau, T he Death P enalty in 
A merica 233 (2d ed. 1967). In 1970, 64% of the voters 
in Illinois chose to retain capital punishment. The 
majority of special committees in Massachusetts 
(1958), Pennsylvania (1961), and Maryland (1962) 
have favored abolition of capital punishment while 
the majority of committees in New Jersey (1964) and 
Florida (1965) have favored its retention. 2 W orking 
P apers of the National Commission on R eform of 
F ederal Criminal L aws 1365 (1970). The commission 
that considered reform of the federal criminal laws was 
sharply divided, with a majority favoring abolition 
while other members of the commission had strongly 
held views in favor of retention. National Commission 
on R eform of F ederal Criminal L aws, F inal R eport 
310 (1971). The American Law Institute provided 
guidance for those states that wish to retain capital 
punishment, Model P enal Code § 210.6 (Proposed Of­
ficial Draft 1962), and its membership voted that the 
Institute should not take a position one way or the 
other on abolition.

Perhaps the most significant indication of public
8 —



feeling on this issue is that 41 states and the federal 
government retain capital punishment for some or 
all crimes. Indeed as recently as 1965 Congress added 
one more to the list of federal capital crimes when it 
provided the death penalty for assassination of a Pres­
ident, President-elect, or Vice President of the United 
States. 18 U.S.C. § 1751, added by Act of Aug. 28, 
1965, Pub.L. 89-141, § 3, 79 Stat 580.

What our legislative representatives think in the 
two score states which still have the death penalty 
may be inferred from the fate of the bills to repeal 
or modify the death penalty filed during recent 
years in the legislatures of more than half of these 
states. In about a dozen instances, the hills emerged 
from committee for a vote. But in none except 
Delaware did they become law. In those states 
where these hills were brought to the floor of the 
legislatures, the vote in most instances wasn’t even 
close.

B edatt, T he Death P enalty in A merica 232 (2d ed. 
1967).*

Even where the abolitionist movement has been suc­
cessful it has commonly not been totally so. Great 
Britain, Canada, and New York have seen fit to retain 
capital punishment for such varied offenses as trea­
son, murder of police and corrections officials, mur­
der by a person under life sentence, piracy with vio­
lence, and dockyard arson (Aikens Br. 32-34). These 
represent very recent legislative determinations that 
for some kinds of offenses the ultimate sanction of 
death must be available. Yet this kind of discriminating

* Subsequent to when the quoted passage was apparently 
written, though not to its publication, capital punishment 
was abolished in West Virginia and Iowa but restored in 
Delaware.

—  9



legislative judgment would be impossble should it be 
held that the Constitution bars capital punishment, at 
least for all civilian peacetime crimes. I f  there is a 
constitutional barrier to the execution of Ernest Aikens 
there would seem to be the same barrier to execution 
of the murderer of a prison guard or a President or to 
the execution of a person who successfully puts a 
bomb in a crowded 747.

Given the division of opinion on capital punish­
ment, it can hardly be said that “ evolving standards 
of decency”  now reject it, even for an ordinary murder. 
When countries with whom we share many of our 
values and our legal traditions have only recently con­
cluded that there remain some extraordinary crimes 
for which the death penalty must be preserved, the 
argument that to impose a sentence of death is never 
constitutional under any circumstances is seen for 
what it is, an attempt to impose an absolutist view 
of a debatable social policy on the states and the fed­
eral government by way of a novel constitutional in­
terpretation.

Neither the language of the Eighth Amendment, the 
intent of the Framers, the precedents in this Court, 
nor, to the extent that it may be thought relevant, a 
public consensus supports the notion that capital pun­
ishment is unconstitutional. Indeed, insofar as these 
indicators show anything, they support the freedom of 
legislatures to make their own choice on the matter. 
Commentators have rejected the argument that death 
is an unconstitutional punishment. Note, The Cruel 
and Unusual Punishment Clause and the Substantive 
Criminal Law, 79 H arv.L.Rev. 635, 638-639 (1966) ; 
Note, The Effectiveness of the Eighth Amendment:

— 10 —



An Appraisal of Gruel and Unusual Punishment, 36 
N.Y.U.L.Rev. 846, 859-860 (1961). Justice Goldberg 
and Professor Dershowitz, who have stated the ease 
against the constitutionality of capital punishment, are 
forced to note that in 1969 alone there were eight state 
court decisions in which the death penalty was upheld 
against an Eighth Amendment attack. Goldberg & 
Dersbowitz, Declaring the Death Penalty Unconstitu­
tional, 83 H arv.L.Rev. 1773, 1774 n. 6 (1970), and 
at least six of the circuits have held to the same effect. 
Id. at 1775 n. 7. As will be more fully discussed under 
Point Two of this Brief, the Fourth Circuit has found 
imposition of a death sentence in some rapes to violate 
the Eighth Amendment. Ralph v. Warden, Maryland 
Penitentiary, 438 F.2d 786 (4th Cir. 1970). It stands 
virtually alone in going that far. No court has held, as 
some of petitioners in the present cases now urge, that 
the Constitution prohibits the death penalty for any 
civilian peacetime crime.

Petitioner in the present case makes a very able 
presentation of what has been the usual argument by 
some recent commentators against the constitutionality 
of capital punishment (Branch Br. 23-29). Essen­
tially it begins with the premise that the traditional 
aim s of punishment are retribution, deterrence, iso­
lation, and rehabilitation. But retribution is said to 
be inconsistent with modern penological thought and 
must be discounted for that reason (Branch Br. 23). 
Patently a death sentence does not rehabilitate 
the offender and he can be isolated as effectively in a 
modern prison as by executing him. Thus the only 
legitimate object that capital punishment might serve 
is deterrence and recent statistical studies have given 
rise to a widespread belief that capital punishment

11 —



offers no effective deterrent relief (Braneli Br. 25). 
Since, on this analysis, “ the death penalty has no ra­
tional place in the legitimate penal policies of modern 
man”  (Branch Br. 28), and is “ inconsistent with ad­
vanced concepts o f behavioral science”  (Branch Br. 
29), it runs afoul of the Eighth Amendment.

The argument cannot he taken lightly. Conjoined 
with the moral, humanitarian, and pragmatic argu­
ments against capital punishment, it might well prove 
persuasive to a legislature considering a change in 
the law or to a governor asked to commute the sen­
tences of the condemned persons in his state. But here 
the argument must stand or fall on its own, since this 
Court is limited to the issue of constitutionality and 
cannot write into the law its notions of morality or 
humanitarianism or its pragmatic preferences. As a 
purely constitutional argument, the analysis made by 
petitioner gives too little weight to the elements of 
retribution and deterrence and it gives too much 
weight to “ advanced concepts of behavioral science.”

The Constitution does not require legislatures to 
reflect sociological insight, or shifting social stand­
ards, any more than it requires them to keep 
abreast of the latest scientific standards.

Goesaert v. Cleary, 335 TJ.S. 464, 466 (1948). See also 
McGautha v. California, 402 TJ.S. 183, 221 (1971).

In the light of history, experience, and the present 
limitations of human knowledge, cf. McGautha v. Cali­
fornia, 402 TJ.S. 183, 207 (1971), it cannot be said 
that retribution is not a legitimate end of criminal 
punishment. Those who would prohibit retribution as 
a purpose of criminal punishment altogether, Com­
ment, The Death Penalty Cases, 56 Calif.L.Rev. 1268,

— 12 —



1349-1354 (1968), as well as those who would require 
that a penalty serve some other end besides retribution 
more effectively than any other less severe penalty, 
Goldberg & Dershowitz, Declaring the Death Penalty 
Unconstitutional, 83 H arv.L.Rev. 1773, 1796-1797 
(1970), ask too much of the Eighth Amendment. This 
Court has recognized that:

Retribution is no longer the dominant objeetve of 
the criminal law. Reformation and rehabilitation 
of offenders have become important goals of crim­
inal jurisprudence.

Williams v. New York, 337 II.S. 241, 248 (1949). To 
say that retribution is no longer the dominant objec­
tive of the criminal law is quite different from saying 
that it is no longer one of the permissible objectives 
of the criminal law. The permissibility of retribution 
as an objective was suggested here as recently as Mc- 
Gautha v. California, 402 U.S. 183, 284 (1971) (Bren­
nan, J., dissenting). See also Ralph v. Warden, Mary­
land Penitentiary, 438 E.2d 786, 791 (4th Cir. 1970).

It is true that much stirring debate has been going 
on in recent years about the proper role and function 
of the criminal sanction. The utilitarians reject retri­
bution as a purpose of the criminal law on the ground 
that suffering is always evil and there is no justification 
for making convicted persons suffer unless some secu­
lar good can be shown to flow from doing so. The be- 
havioralists reject retribution because they consider 
that human conduct is determined by forces that the 
individual cannot modify and that moral responsibility 
cannot be ascribed to behavior that cannot be avoided. 
See P acker, The L imits of the Criminal Sanction 11- 
12 (1968). Perhaps one or another of these positions is

—  IB —



sound but it is hardly likely that either of them is 
written into the interstices of the Eighth Amendment.

Many thoughtful persons whose views cannot he 
lightly discounted continue to see retribution as one 
of the legitimate purposes of the criminal law. Thus 
Professor Henry M. Hart wrote:

Suppose, for example, that the deterrence of of­
fenses is taken to be the chief end. It will still be 
necessary to recognize that the rehabilitation of 
offenders, the disablement of offenders, the sharp­
ening of the community’s sense of right and wrong, 
and the satisfaction of the community’s sense of 
just retribution may all serve this end by contrib­
uting to an ultimate reduction in the number of 
crimes. Even socialized vengeance may be accorded 
a marginal role, if it is understood as the provision 
of an orderly alternative to mob violence.

Hart, The Aims of the Criminal Law, 23 L. & Contemp. 
P rob. 401 (1958). Morris R. Cohen argued that it is 
one of the functions of the criminal law to give ex­
pression to the collective feeling of revulsion toward 
certain acts, Cohen, R eason and L aw 50 (1950), and 
the Royal Commission on Capital Punishment thought 
that “ retribution must always be an essential element 
in any form of punishment.”  R oyal Commission on 
Capital P unishment, R eport 1949-1953, Cmd. Ho. 
8932, at 18, S 53 (1953). In his recent full-length study 
of this and related questions, Professor Herbert L. 
Packer has argued that it would be socially damaging 
in the extreme to discard either retribution or deter­
rence as a ground for punishment. P acker, The L imits 
of the Criminal Sanction 36-37 (1968).

The view is still widely held that for some particu­
larly serious and offensive crimes no penalty short

— 14 —



of death adequately satisfies the community’s sense 
o f just retribution. Perhaps the view is unfortunate 
and backward hut it is one that a legislature is con­
stitutionally free to hold.

The legislature could also reasonably think that the 
death penalty is superior as a deterrent to any other 
punishment. This has been at the heart of the aboli­
tionist case in recent years. Statistical studies, by Pro­
fessor Thorsten Sellin and others, have been made 
to compare the homicide rate in jurisdictions with the 
death penalty and those without it. Attempts have been 
made to refine these studies by comparing jurisdictions 
that are thought to be generally similar and by ex­
amining the experience in a particular jurisdiction 
at a time when it had the death penalty and at a time 
when it did not. These figures clearly demonstrate 
that there is no statistical proof that the death penalty 
is a superior deterrent. They do not justify the con­
clusion that the death penalty is not a superior de­
terrent, though, as Professor H. L. A. Hart has noted, 
“ many advocates of abolition speak as if  the second 
were a warranted conclusion from the figures. ’ ’ Hart, 
Murder and the Principles of Punishment: England 
and the United States, 52 N w .U .L .R ev. 433, 457 
(1957).

The reasons why these statistical studies do not 
prove that capital punishment is not a superior de­
terrent have been frequently pointed out. E.g., R oyal 
Commission on Capital P unishment, R eport 1949- 
1953, Cmd. No. 8932, at 22-24, W  62-67 (1953); 2 
W orking P apers of the National Commission on R e­
form of F ederal Criminal Laws 1354 (1970); Gibbs, 
Crime, Punishment, and Deterrence, 48 Sw. Soc. Sci.

—  15 —



Q, 515, 516 (1968). It is very difficult to be sure that 
all relevant variables other than capital punishment 
can be eliminated. Goldberg & Dershowitz, Declaring 
the Death Penalty Unconstitutional, 83 H arv.L.Rev. 
1773, 1796 n. 105 (1970). Florida, R eport of the Spe­
cial Commission for the Study of A bolition of Death 
P enalty in Capital Cases 14 (1965); Ohio Legislative 
Service Commission, Capital P unishment 38 (Staff 
Research Report No. 46, 1961). It appears quite likely 
that homicide rates per 100,000 of population are too 
crude an instrument to reflect all the cases in which 
the threat of a death sentence has had a deterrent effect. 
Model P enal Code 64-65 (Tent. Dr. No. 9, 1959).

A  leading opponent of capital punishment, Profes­
sor Hugo A. Bedau, has given an example that shows 
why the statistical findings are not inconsistent with 
the existence of a deterrent effect for capital punish­
ment.

Data reported below in Professor Sellin’s article 
shows that the ten-year average of annual homcide 
rates in Ohio fell during the 1920’s from 7.9 per 
100,000 of population to 3.8 in the 1950’s. Yet if 
the death penalty had been abolished in Ohio at 
the beginning of this period and if (let us suppose) 
abolition had been followed by a dozen or so more 
murders each year thereafter, the general homicide 
rate would have decreased almost exactly as in 
fact it has, and at no time would the rate for any 
given year be more than a tenth of one per cent 
greater than it has been. Thus, while we could 
truthfully say that the abolition of the death pen­
alty in Ohio had been followed by a decrease in 
the general homicide rate, it would also have been 
true that abolition resulted in an increase in the 
total number of murders, and this despite the eon-

— 16 —



stancy of the ratio of total homicides to murders 
(except in the first year after abolition).

B edau, The Death P enalty in A merica 265-266 (2d 
ed. 1967). H. L. A. Hart has made the same point based 
on British statistics. Hart, Murder and the Principles 
of Punishment: England and the United States, 52 
Hw .ILL.Rev. 433, 457 (1957).

Of course capital punishment is not a perfect de­
terrent. Murder, rape, and other serious crimes con­
tinue to take place despite the threat of death. We can 
number the cases in which the death penalty has failed 
as a deterrent. We cannot number its successes. R oyal 
Commission on Capital P unishment, R eport 1949- 
1953, Cmd. No. 8932, at 18,1 55 (1953). There are many 
human activities that involve risking one’s life in which 
some persons, whether for the sake of a livelihood, from 
recklessness, from pride, or from devotion to a cause, 
are willing to run the risk while others refrain because 
they do not wish to undertake the risk. Cohen, L aw 
W ithout Order 49-50 (1970).

There is some objective evidence of criminals who 
have been deterred by the existence of the death pen­
alty: robbers who have said that they used simulated 
guns or empty guns rather than take a chance of kill­
ing someone and being condemned to death; an escaped 
convict who released his hostages at the state line be­
cause he was afraid of the death penalty for kid­
napping in the neighboring state; and other instances 
of this kind. 2 W orking P apers of the National Com­
mission on R eform of F ederal Criminal L aws 1356 
(1970); B edau, T he Death P enalty in A merica 266- 
267 (2d ed. 1967). In addition, experienced law en­
forcement officers are virtually as one in their con­

17—



viction that the death penalty is a superior deterrent. 
See, e.g., the statements of J. Edgar Hoover and of 
Chief Edward J. Allen, reprinted inBEDAU, T he D eath 
P enalty in A meeioa 130-146 (2d ed. 1967); 2 W orking 
P apers of the National Commission on R eform of 
F ederal Criminal L aws 1356 (1970). It is easy enough 
to seek to dismiss these as mere “ impressionistic opin­
ions”  (Aikens Br. 60). Others have thought that they 
could not “ treat lightly the considered and unanimous 
views of these experienced witnesses, who have had 
many years of contact with criminals.”  R oyal Com­
mission on Capital P unishment, R eport 1949-1953, 
Cmd. No. 8932, at 21,1 61 (1953).

The conclusion that the Royal Commission drew on 
this issue seems an appropriate one in the present state 
of knowledge:

The general conclusion which we reach, after care­
ful review of all the evidence we have been able 
to obtain as to the deterrent effect of capital pun­
ishment, may be stated as follows. Prima facie the 
penalty of death is likely to have a stronger effect 
as a deterrent to normal human beings than any 
other form of punishment, and there is some evi­
dence (though no convincing statistical evidence) 
that this is in fact so. But this effect does not op­
erate universally or uniformly, and there are many 
offenders on whom it is limited and may often be 
negligible. It is accordingly important to view this 
question in a just perspective and not to base a 
penal policy in relation to murder on exaggerated 
estimates of the uniquely deterrent force of the 
death penalty.

Id. at 24,1 68.
I f  this Court were to reach the same conclusion as 

did the Royal Commission, it would have to say that
—  18 —



a legislature could rationally choose to retain the death 
penalty because it believed that to some extent that 
penalty is a more effective deterrent than any other 
form of punishment. But that would also be the result 
here even if there was less evidence than there is to 
support a finding of deterrent effect. In connection 
with whether obscenity has a harmful effect, the Court 
has noted that there is a growing consensus that while 
a causal link has not been demonstrated it has not been 
disproved either. In that situation, the Court said, leg­
islation that proceeds on the premise that obscenity 
is harmful has a rational basis. Ginsberg v. New York, 
390 TJ.S. 629, 641-643 (1968). At least as much can be 
said for legislation premised on the deterrent effect 
of capital punishment.

The legislative judgment inherent in provisions 
for the death penalty may he open to question, but 
that hardly seems enough to make it impermissible. 
One may wonder whether a constitution “ that does 
not enact Mr. Herbert Spencer’s Social Statics”  
can fruitfully be thought of as enacting Mr. Thor- 
sten Sellin on the death penalty.

Packer, Making the Punishment Fit the Crime, 77 
H arv.L.Rev. 1071, 1079-1080 (1964).

There is, however, another argument against the 
constitutionality of capital punishment that is men­
tioned by petitioner in this ease (Branch Br. 12) and 
that is central to the position of the petitioners in the 
companion cases. We have shown earlier that a sub­
stantial portion of the public and the great majority 
of legislatures accept death as a penalty. The argument 
now to be considered concedes that society tolerates 
having death penalty statutes on the books but that 
it would not tolerate their widespread use. It is as­

19



serted that death is a cruel and unusual punishment 
because contemporary standards of decency, univers­
ally felt, would condemn the use of death as a penalty 
if the penalty were uniformly, regularly, and even- 
handedly applied to all persons found guilty of a crime 
for which death is made a possible penalty or even to 
a reasonable proportion of them (Aikens Br. 24).

With the utmost respect for the able and dedicated 
counsel who have put forward this argument, we sub­
mit that it has even less persuasive force than do the 
more usual arguments against capital punishment that 
have already been considered. The present argument 
relies, in the first place, on an assumption that is un­
documented and that many persons would reject.

W e are told that “ standards of decency, universally 
felt,”  would condemn the regular use of the death pen­
alty (Aikens Br. 24). Again it is said that if 184 
criminals were to be executed in 1971, as happened in 
1935, “ it is palpable that the public conscience of the 
Nation would be profoundly and fundamentally re­
volted * * *”  (Aikens Br. 26). At another place it is 
said that there is “ an overwhelming national repulsion 
against actual use of the penalty of death”  (Aikens 
Br. 42), and that it is “ a punishment which, if  applied 
regularly, would make the common gorge rise”  (Aikens 
Br. 54). Finally Aikens asserts that “ if it were usually 
used, it would affront universally shared standards of 
public decency”  (Aikens Br. 61). There is a similar 
suggestion from the present petitioner (Branch Br. 
12).

The various petitioners offer no evidence whatever 
in support of this assertion. It is wholly possible that 
a substantial portion of the public would think the

— 20 —



development hypothesized by petitioners a salutary one 
and a constructive step in the direction of a no-non­
sense “ war on crime.”  It is wholly possible that, as 
Warden Clinton Duffy has lamented, “ the public 
doesn’t care”  one way or the other. D uffy, 88 Men 
and 2 W omen 258 (1962). An unsupported assertion 
remains only an assertion though it is iterated six 
times in varying and forceful language.

Even if petitioners were right in their supposition, 
it is difficult to see what that would establish as a mat­
ter of law. The public may think it wise to retain the 
death penalty on the books as a warning to all would-be 
murderers and rapists, even though application of the 
penalty is reserved for only the most serious offenders. 
It is then left to the sentencing authority, commonly 
the jury, in each particular case to “ express the con­
science of the community on the ultimate question of 
life or death.”  Witherspoon v. Illinois, 391 U.S. 510, 
519 (1968). That petitioners do not trust juries to 
perform this function and believe that a death sentence 
is given to a small number of persons arbitrarily chosen 
from a much larger group who might have been sen­
tenced to death is merely another form of the argument 
that was made and rejected in McGautha v. California, 
402 U.S. 183 (1971).

It can be conceded, as the figures of the Bureau of 
Prisons presented by the petitioners show, that there 
has been a decreasing number of executions in the last 
40 years, although the figures for the last decade are 
entitled to little weight on this point. In addition 
to the de facto moratorium that has existed for the 
last four years while cases challenging the procedures 
for and the constitutionality of capital punishment

21 —



were pending in this Court, earlier cases such as Mapp, 
Miranda, and others, which limited the kinds of evi­
dence that can be heard in criminal cases, undoubtedly 
aborted prosecutions or required vacation of convic­
tions that would otherwise have led to an execution, 
and cases such as Fay, Townsend, and Sanders en­
larged the possibilities for delay in carrying out a 
death sentence by collateral attacks on convictions. A  
decade ago nearly one person per week was being exe­
cuted in the United States. It hardly seems right to call 
something that happened that frequently “ an almost 
indescribably uncommon event”  (Aikens Br. 38). The 
conscience of the community, as expressed by those 
who impose sentence in capital cases, has taken an 
increasingly rigorous view of the extreme cases in 
which the death penalty will be used. It has shown no 
disposition to abandon the death penalty entirely. Re­
taining it on the books for classes of the most serious 
crimes and applying it to the most extreme of the cases 
that fall within those classes is consistent with both the 
conscience of the connnunity and the Eighth Amend­
ment to the Constitution.

II. Capital Punishment in Rape Cases Is Justified by 
the Seriousness of the Crime and Is Not “ Cruel and 
Unusual” Within the Meaning of the Eighth Amend­
ment.

The argument is made in this case and in Jackson 
that even if death is a constitutionally permissible 
punishment for some crimes it is cruel and unusual 
for some or all rapes. The Jewish religious and civic 
organizations that are amici here contend that death 
is an unconstitutional punishment for any rapes that 
do not result in death (Synagogue Council Br. 13).

— 22 —



Petitioner in the present ease argues that death is un­
constitutional as punishment in rape eases “ where 
life is not taken nor endangered”  (Branch Br. 28) or 
“ where no life has been taken or seriously endangered”  
(Branch Br. 29). The first of those formulations, 
“ when the victim’s life is neither taken nor endan­
gered,”  was held to be the point at which the Con­
stitution prohibits a death sentence for rape by a 
majority of the Fourth Circuit, speaking through 
Judge Butzner, in Ralph v. Warden, Maryland Peni­
tentiary, 438 F.2d 786, 793 (4th Cir. 1970). Chief 
Judge Haynsworth, concurring in the result in that 
decision, would allow a death sentence “ if the victim 
suffered grievious physical or psychological harm 
whether or not it clearly appeared that her life had 
been endangered.”  Id. at 794. I f  a rape results in loss 
of life it would be murder under the felony-murder 
doctrine and so it adds nothing to speak of allowing 
the death penalty for rapes in which a life has been 
taken. The various arguments then are that capital 
punishment is unconstitutional in any rape case, or 
in rape eases in which the victim’s life has not been 
seriously endangered, or in which her life has not 
been endangered at all, or in which she has not suf­
fered grievous physical or psychological harm.

The argument proceeds from the premise that the 
Eighth Amendment bars both those punishments that 
are inherently cruel and those that are cruelly ex­
cessive. See Comment, Revival of the Eighth Amend­
ment: Development of Gruel-Punishment Doctrine by 
the Supreme Court, 16 Stan.L.Bev. 996 (1964). There 
is ample support for the notion that the Amendment 
prohibits inherently cruel punishments— Wither son v. 
Utah, 99 U.S. 130, 135-136 (1879) ; In re Kemmler,

—  28



136 IJ.S. 436, 447 (1890) ; State ex rel. Francis v. 
Resweber, 329 U.S. 459, 464 (1947)—though the death 
penalty has never been thought to run afoul of this 
aspect of the Amendment and, for the reasons set 
forth in Point One of this Brief, should not be held 
to do so. The notion that the Amendment also bars 
cruelly excessive punishments is derived primarily 
from Weems v. United States, 217 U.S. 349 (1910), 
though it is supported also by the dissents in O’Neil v. 
Vermont, 144 U.S. 323, 340, 370-371 (1892), and by 
the decisions of the Court in Trop v. Dulles, 356 U.S. 
86 (1958) and perhaps Robinson v. California, 370 
U.S. 660 (1962). There is much to be said for the idea 
that the Weems case has been misread and that it is 
much closer to the conventional view that cruel and 
unusual punishment is a matter of mode of punish­
ment rather than proportion. Packer, Making the Pun­
ishment Fit the Crime, 77 H arv.L .R ev. 1071, 1075 
(1964). Nevertheless we assume for purposes of this 
argument that a punishment disproportionate to the 
gravity of the offense might for that reason be held 
to be cruel and unusual.

If, as is argued in Point One, a legislature could 
reasonably find that capital punishment has some de­
terrent effect on crime, it could reasonably find that 
it has some deterrent effect on rape. Though it may 
be, as argued by petitioner (Branch Br. 26), that the 
nature of sex crimes is such that any punishment has 
little or no deterrent value, “ very little is actually 
known about the relationship between rape and penal 
sanction.”  Schwartz, The Effect in Philadelphia of 
Pennsylvania’s Increased Penalties for Rape and A t­
tempted Rape, 59 J. Grim. L. C. & P. S. 509, 515 
(1968). The statistical studies on the effect of capital

_ 2 4  —



punishment have been confined to homicide and there 
are no figures one way or the other on whether capital 
punishment deters rapes. Indeed petitioner’s belief 
that sex offenders cannot be deterred by threat of any 
punishment and his related belief that there is little 
or no recidivism among rapists (Branch Br. 26)—a 
belief that is not as widely accepted as he suggests, see 
M acdonald, R ape— Offenders and T heir V ictims 314 
(1971); Gebhard, Gagnon, P omeroy & Christenson, 
Sex Offenders 193 (1965)—would, if  accepted, lead 
quite logically to the conclusion he draws, “ that- rapists 
need little rehabilitation or punishment”  (Branch Br. 
28). Society would overwhelmingly disagree.

The position of the Jewish religious organizations, 
that death is never a constitutional punishment for any 
rape, has the merit of being a clear and workable test. 
It also has a certain attractive logic. The Biblical ref­
erence to a life for a life, Deut. 19:21, surely was not 
meant restrictively. The death penalty was also called 
for in the ancient law for adultery, Lev. 20:21, bes­
tiality, Ex. 22:18, and rape of a betrothed woman, 
Deut. 22:15. But undoubtedly there is appeal to the 
notion that just retribution permits the taking of a 
life only when life has been taken.

But the Eighth Amendment did not enact the Book 
of Deuteronomy and the difficulty is in establishing that 
death is so “ greatly disproportioned”  to any rape, re­
gardless of its circumstances, that a legislature acts 
unconstitutionally if  it permits some rapists to be 
executed. The several formulations of petitioner and 
of the judges of the Fourth Circuit seek to distinguish 
among rapes for which death is an appropriate pen­
alty and those for which it is not. The Jewish re-

—  25



ligious organizations reject any distinction of this kind. 
Thus they must take the view that there is no rape 
in which the victim survives for which the criminal 
can he put to death. No matter how seriously the vic­
tim’s life was endangered, no matter how revolting and 
barbarous the circumstances of the crime, no matter 
how grievous the permanent physical and psychological 
harm visited on the victim, so the argument runs, death 
would be so excessive a penalty that the Constitution 
forbids it.

It may be asked where in the Constitution this re­
striction on the state and federal governments can be 
found. W e have conceded for the purposes of argument 
that a cruelly excessive punishment may be uncon­
stitutional but there is ambiguity in speaking of a 
punishment as being proportioned to a crime. The 
punishment may be considered “ in relation to the harm 
actually resulting from a criminal act, to the risk of 
harm caused by the actor, to the degree of temptation 
he faced, or to his 4moral fault.’ ”  Note, The Gruel and 
Unusual Punishment Clause and the Substantive 
Criminal Law, 79 H arv.L.Rev. 635, 636 (1966). To 
draw a line between rapes resulting in death and other 
murders, on the one hand, and rapes not resulting in 
death, on the other, requires looking to the first of 
these concepts to the exclusion of the other three. Other 
observers who have taken a broader outlook have 
thought that “ capital punishment for rape is justi­
fiable, if capital punishment is ever justifiable, as a 
matter of legislative choice because of the danger to 
life and limb as well as to other interests that a forcible 
sexual attack may involve.”  Packer, Making the Pun­
ishment Fit the Crime, 77 H arv.L.Rev. 1071, 1077

26



(1964) ; see also Note, 79 H arv.L.Rev. 635, 642-643 
(1966).

Society lias always regarded forcible rape as among 
the most serious and most reprehensible of crimes. It, 
along with willful homicide, aggravated assault, and 
robbery are

the most threatening and the most strongly con­
demned in the entire criminal calendar. # * These
four offenses are supremely threatening for dif­
fering reasons, but in each case one’s physical 
security is placed at the mercy of a person intent 
on violating that security. Nothing makes either 
the victim or the community feel more helpless 
than an occasion on which someone has used force 
to work his will on another. Violent injury or 
the threat of it is the brute negation of the mini­
mum that all of us—from the most self-sufficient 
to the most dependent—expect from life in organ­
ized society.

P acker, T he L imits op the Criminal Sanction 297 
(1968). Even where the death penalty is not imposed 
society shows the seriousness with which it considers 
rape by the length of sentences it imposes for this 
crime. The average time served before release is longer 
for rapists, than for men convicted of manslaughter, 
robbery, aggravated assault, or any offense other than 
murder. M acdonald, R ape— Offenders and T heir V ic­
tims 298 (1971). There is another, less agreeable, in­
dication of how society views rape. Between 1872 and 
1951, 1,198 persons suspected of rape or attempted 
rape were lynched in the United States. Id. at 301.

The incidence of rape is sharply rising. In the last 
decade the number of rapes has increased 121% and 
the rate in relation to the population has increased

27 —



95%. In 1970 36 out of every 100,000 females in the 
country was a reported forcible rape victim and it 
is well understood that, because of fear and embarrass­
ment, this offense is probably one of the most under­
reported crimes. FBI, U niform Crime R eports for the 
U nited States 1970 14 (1971). The past decade is not 
unusual in this respect. Rape is the only crime of 
violence that has shown a clear tendency to increase in 
frequency over the last century. M acdonald, R ape—  
Offenders and T heir V ictims 25 (1971). Given these 
figures, it would be doctrinaire in the extreme to say 
that Congress and the legislatures of 17 states are 
acting unconstitutionally when they provide the death 
penalty in an effort to deter all forcible rapes and im­
pose it in those cases in which a lesser penalty would not 
be sufficient for retribution.

It is appropriate to consider here the argument that 
death for rape is cruel and unusual because the death 
penalty is carried out on Negro rapists far more often 
than white rapists and thus is “ a thinly veiled attempt 
to legitimize racial homicide”  (Branch Br. 19). That 
argmnent comes in at this point because, if  it has any 
validity, it must be valid against any use of the death 
penalty for rape. Surely it would not be permissible for 
a state to legitimize racial homicide against those rap­
ists who have seriously harmed their victim or endan­
gered their lives but not against other rapists.

It would seem that the racial argument is more prop­
erly directed to the Equal Protection Clause than to 
the Cruel and Unusual Punishment Clause. Never­
theless we will assume that it has sufficient relation to. 
the Eighth Amendment to be within the limited grant 
of certiorari in this case.

28 —



Undoubtedly the statistics are suggestive that juries 
have taken race into account in imposing the death pen­
alty for rape. Figures provided counsel by the Texas 
Department of Corrections show that 97 persons have 
been executed for rape in Texas since 1924. Of these
14 were white, 80 were black, and three were Latins. 
Eight of the 42 persons now under sentence of death 
in Texas were convicted for rape. Of these one is 
white, five are black, and two are Latins. See also 
Koeninger, Capital Punishment in Texas, 1924-1968,
15 Crime & D el. 132 (1969).

We have no doubt but that race is “ constitutionally 
impermissible”  as a consideration in sentencing con­
victed offenders, McGautha v. California, 402 U.S. 
183, 207 (1971), though we think that this is true 
of all sentences:, and not merely of death sentences, 
and that it is the result of the Equal Protection Clause 
rather than of the Eighth Amendment as absorbed 
into the Due Process Clause. Clearly the figures on 
numbers of executions by race are suggestive that race 
has been considered, but this has not been a problem 
confined to rape cases or to use of the death sentence. 
Professor Henry Bullock’s sophisticated study of 
3,644 persons under prison sentence at Huntsville 
would support a conclusion that in the past race has 
played a part in sentencing in Texas, with Negroes 
receiving shorter sentences than whites for some of­
fenses and longer sentences for others. Bullock, Sig­
nificance of the Bacial Factor in the Length of Prison 
Sentences, 52 J. Crim . L., C. & P. S. 411 (1961). In 
understanding this historical fact it cannot be for­
gotten that until 1954 segregation of the races was le­
gally required in Texas. At a time when the law pro­
hibited racial intermingling even in a schoolroom or

29 —



on a bus, and when miscegenation was a crime, it is 
hardly surprising that an interracial offense, and par­
ticularly an interracial rape, was perceived as an espe- 
cially traumatic event and an especially serious breach 
of the good order of the state.

In understanding these figures from the past another 
fact must be taken into account. The rape rate is much 
higher among Negroes than among whites. Studies 
both in Denver and Philadelphia, based on figures 
that eliminated any possibility of racial discrimination 
on the part of .judges and jurors, showed in each in­
stance that the rape rate was 12 times as high among 
Negroes: as among whites. M acdonald, R ape— Offend- 
ees AND T heib Y ictims 51-54 (1971). That this is so 
says nothing about comparative morality of different 
races. It may well be a function of poverty rather 
than of race. “ * * * [T]he rich kid can use flowers, 
candy, wining and dining and a shiny automotive 
super-phallus to ‘ seduce’ the girl whom the slum kid 
‘ rapes.’ Seney, The Sibyl at Cumae—Our Criminal 
Law’s Moral Obsolescence, 17 W ayne L.Rev. 777, 793 
n. 76 (1971). I f  the disparity between the incidence of 
rape among whites and Negroes was one to twelve 
in Texas, as it was found to be in Denver and Phila­
delphia studies, then a disparity of less than one to 
six in the numbers executed is less persuasive of dis­
criminatory practices than the figures would seem at 
first blush.

Those courts that have considered the statistical 
argument about death sentences in rape cases have 
found them insufficient to show that the Negro de­
fendants who were before them received the death 
penalty because of their race. Ralph v. Warden, Mary­

—  30 —



land Penitentiary, 438 F.2d 786, 793 n. 24 (4th Cir. 
1970) ; Maxwell v. Bishop, 398 F.2d 138, 149 (8th Cir. 
1968), vacated on other grounds 398 U.S. 262 (1970). 
Even counsel who has been most imaginative in mak­
ing and seeking to document this argument concedes 
that an irrefutable statistical showing that a particu­
lar state has discriminated on racial grounds in the 
administration of the death penalty is difficult to estab­
lish, because the number of death sentences is so ex­
ceedingly small in comparison to the number of factors 
that may properly be considered at every stage of the 
criminal process in deciding whether to impose capital 
punishment (Aikens Br. 53). In any event, as the 
Eighth Circuit noted in the Maxwell case, “ improper 
state practice of the past does not automatically in­
validate a procedure of the present.”  Ibid.

If, for the reasons we have stated, the Constitution 
is not a bar against capital punishment for any rape 
case, are there some rapes that are sufficiently inof­
fensive that to impose death for them is grossly dis­
proportionate to the crime and, for that reason, cruelly 
excessive? Interestingly the Texas Court of Criminal 
Appeals has held that there are. In Calhoun v. State, 
85 Tex.Cr. 496, 503, 214 S.W. 335, 338 (1919), that court 
said:

We take it to be clear that the extreme penalty 
should only be inflicted in an extreme case, and 
we do not believe this is such a case. Our Constitu­
tion (section 13 of the Bill of Bights) forbids the 
infliction of excessive fines or cruel or unusual 
punishment.

Though the Calhoun case has never been overruled 
and is even occasionally cited, it is very doubtful that

31 —



it represents Texas law. It has never actually been 
followed and it is quite plain on the face of the opinion 
that the court simply did not believe the testimony of 
the complaining witness. Since it could not reverse 
on that ground, it hunted for some seemingly plausible 
ground on which it could save the life of a defendant 
whom the court thought to be not guilty. In fact it 
sent the case back for a new trial, at which the state 
had already predicted it could not get a conviction, 
rather than merely setting aside the sentence.

Petitioner argues, and the Fourth Circuit has held, 
that “ the death sentence is so disproportionate to the 
crime of rape when the victim’s life is neither taken 
nor endangered that it violates the Eighth Amend­
ment.”  Ralph v. Warden, Maryland Penitentiary, 438 
E.2d 786, 793 (4th Cir. 1970). The dissenting judges 
in the Fourth Circuit pointed out the extreme impre­
cision of the term “ endangered.”  Id. at 796. Professor 
Packer also has questioned how a court is to tell 
in any given case whether human life was “ endan­
gered.”

There is a sense in which life is always endangered 
by sexual attack, just as there is a sense in which 
it is always endangered by robbery, or by burglary 
of a dwelling, or by any physical assault. The 
threat of violence too is not the less a threat for 
being conditional, and violence always carries the 
possibility of a fatal outcome.

Packer, Making the Punishment Fit the Grime, 77 
H arv.L.Rev. 1071, 1077 (1964). This is consistent with 
all that is known about rape and about rapists.

Dr. Kinsey’s associates have found in their study 
that in 40% of the cases the rapists made threats of

- 3 2 - —



a major sort, such as of serious physical damage or 
threats of injuring the victim’s children. Gebhard, 
Gagnon, P omeroy & Christenson, Sex Offenders 196 
(1965). The most common type of rapist is

the assaultive variety. These are men whose be­
havior includes unnecessary violence; it seems, that 
sexual activity alone is insufficient and in order 
for it to be maximally gratifying it must be 
accompanied by physical violence or by serious 
threat. In brief, there is a strong sadistic element 
in these men and they often feel pronounced hos­
tility to women (and possibly to men also) at a 
conscious or unconscious level. They generally do 
not know their victim; they usually commit the of­
fense alone, without accomplices; preliminary at­
tempts at seduction are either absent or extremely 
brief and crude; the use of weapons is common; 
the man usually has a past history of violence; he 
seemingly selects his victim with less than normal 
regard for her age, appearance, and deportment. 
Lastly, there is a tendency for the offense to be 
accompanied by bizarre behavior including unnec­
essary and trivial threats.

Id. at 197-198. Other studies have noted that rape often 
does lead to murder. Williams, Rape-Murder, in Sex­
ual B ehavior and the L aw  563 (Slovenko ed. 1965). 
Dr. John Macdonald’s recent comprehensive examina­
tion of rapes reports that in order to secure submis­
sion and compliance, the rapist will often threaten or 
physically assault his victim, and that even in the 
absence of threats or blows the offender may convey to 
his victim by his facial appearance and general be­
havior the impression that resistance will lead to vio­
lence. M acdonald, B are— Offenders and T heir V ic­
tims 63 (1971). In a study he made of 200 rape victims 
in Denver almost half were either struck with a fist

— 33 —



or choked. Id. at 64. He finds, too, that the force nsed 
to subdue the woman may he fatal, though the rapist 
did not intend this, since pressure on the neck of the 
victim, though insufficient to cause strangulation, may 
cause death from reflex causes. Id. at 180.

Whether or not the Fourth Circuit test is a usable 
standard can profiably be considered in the light of 
the facts of the present case. Was Mrs. Stowe’s life 
endangered when Elmer Branch broke into her rural 
house in the dead of night and raped her ? Defendant, 
who was 20 or 21 years old, is virtually the prototype 
of the “ assaultive variety”  of rapist described by Gfeb- 
hard and his colleagues. He committed the offense 
alone, with no preliminary attempt at seduction, and 
he selected his victim without regard to her age. The 
events following the assault are characterized by his 
own counsel as “ bizarre”  (Branch Br. 3). He used 
brute force to accomplish his will with Mrs. Stowe 
(A. 19). She was 65 years old and was unable to do 
anything because “ he was just so strong: I have never 
seen a man with that kind of power in his hands. 
* * *”  ( A. 19). Prior to accomplishing penetration 
he had Mrs. Stowe’s head hanging off the bed while 
he pressed down harder and harder on her throat (A. 
19). After the attack she was “ coughing and choking. 
He had hurt my throat and I  was hurting all over 
really. My throat was hurting and I couldn’t hardly get 
my breath * * *”  (A. 22). When Branch finally left 
he told her he would kill her if she told about the 
attack (A. 23).

Was Mrs. Stowe’s life endangered? Was there a 
risk that he might have suffocated her had she con­
tinued to resist? Was there a risk that the pressure on

—  34 —



lier neck might cause death from reflex causes? I f  he 
had heard her slipping out the hack door immediately 
after he went out the front and had seen her running 
to her son’s house, was there danger that he would have 
carried out his threat and have killed her? These are 
the kinds of questions that must be answered in this and 
every other rape case if  the Fourth Circuit test should 
he adopted as a constitutional rule. One could reason­
ably answer each of these questions in the affirmative, 
given what we know about rape and rapists, but if 
we do so the protection supposedly afforded by the 
Fourth Circuit rule is wholly illusory. Indeed similar 
questions could just as well be answered in the affirma­
tive on the facts of the Ralph case itself. But how can 
the questions possibly or rationally be answered in the 
negative? I f  the line is a constitutional one, as the 
Ralph holding and the argument here would require, 
they will be questions that must ultimately be answered 
by appellate judges, who would be required to de­
cide in each instance whether a particular set of facts 
came within or without the area in which the victim’s 
life was “ endangered”  and the Constitution would al­
low a death sentence to stand. It seems quite odd that 
the Constitution should require appellate judges to 
speculate on what might have happened though, by 
hypothesis, it did not.

Would the ease be in a different posture if the prose­
cutor had asked Mrs. Stowe if she thought that her 
life was, in danger and she had said: “ Oh, yes. I  felt 
that if  I  didn’t give in he would certainly kill me” ? 
Or if  she had said: “ I f  he had kept his arm on my 
throat a minute longer I  would have suffocated.”  I f 
so, any protection from the Fourth Circuit rule would 
again be illusory. Prosecutors would ask the ritual

—  35



questions to establish that the victim’s life was en­
dangered just as they now put a ritual question to 
establish penetration (A. 28).

Would this be a different case if, at the outset of 
the encounter, Branch had said: “ I ’ll show you what 
I  want and I ’ll kill you, if I  have to, to get it” ? (Cf. 
A. 18.)I f  so, why? I f  so, what in the Eighth Amend­
ment requires the drawing of such subtle and meaning­
less distinctions? The Fourth Circuit test is neither 
workable, logical, nor required by the Eighth Amend­
ment. A  legislature may reasonably believe, with Pro­
fessor Packer, that “ there is a sense in which life is 
always endangered by sexual attack.”

In the Ralph case Chief Judge Haynsworth chose 
a different test. He though it was decisive that the vic­
tim’s doctor had testified that she had suffered no last­
ing physical or psychological harm, and could find

no bar in the Eighth Amendment against the im­
position of the death penalty for rape if the vic­
tim suffered grievous physical or psychological 
harm whether or not it clearly appeared that her 
life had been endangered.

438 F.2d at 795.
This appears to point to a more objective inquiry 

than does the “ endangered”  test and Chief Judge 
Haynsworth is certainly right that “ the nature, degree 
and duration of the harm have long been recognized 
as important criteria in determining the appropriate­
ness of punishment.”  Ibid. But it does not follow from 
this that they are constitutionally-imposed criteria.

The victim of any rape, as Chief Judge Haynsworth 
himself noted, “ suffers harm and great indignity.”  
Ibid. Serious physical harm can be recognized and

_ 3 6  —



measured. Lasting psychological harm is less easy to 
identify and may he even more grievous. In the present 
case, for example, Mrs. Stowe is what Dr. Seymour L. 
Halleek refers to as an “ accidental”  victim, one who 
did not know her attacker and who made some effort to 
resist the assault.

Such a woman has undergone an experience in 
which she is aware of overwhelmingly angry feel­
ings but is helpless in dealing with them. She re­
peatedly searches her own motivations to discover 
if there was something she might have done to pre­
vent the attack. Often she blames herself for hav­
ing neglected a minor defensive effort that she 
feels might have been protective. She is uncertain 
as to her role as a woman and such a role does 
appear to her at that moment as a degraded and 
helpless one. She wonders if  she will again he at­
tracted to men or interested in normal sexual 
relations.
A  wide variety of pathological reactions may de­
velop following sexual assault. Women with pre­
viously vulnerable personalities are likely to de­
velop neurotic symptoms including anxiety at­
tacks, phobias, hypochondriasis or depression. Oc­
casionally psychotic reactions are seen. Less com­
monly transient characterological difficulties such 
as excessive drinking or promiscuity appear. The 
previously well adjusted woman may also become 
disturbed. It is indeed difficult to conceive of any 
woman going through this experience without de­
veloping some symptoms. While many symptoms 
may be transient and not incapacitating those pa­
tients who relate chronic symptoms to previous 
sexual assault suggest that this is not always the 
case.
The patient’s guilt following an attack is often 
intense. Psychiatrists believe that most normal

—  37 —



women experience masochistic fantasies at some 
times in their lives. The victim may, therefore, fear 
that she might have willingly invited or pro­
voked the attack, She is then tortured with self 
accusation.

Halleck, Emotional Effects of Victimization, in Sex­
ual B ehavior and the L aw  673, 675-676 (Slovenko ed. 
1965). Which of these ill effects is sufficiently “ griev­
ous”  that the death penalty could he imposed? Will 
victims, notoriously reluctant to complain of rape be­
cause of the embarrassment it causes them, be even 
more reluctant to do so if  they are to be required to 
take the stand and he examined about whether they 
are interested in normal sexual relations or whether 
they are experiencing masochistic fantasies? Given 
the already common and unavoidable practice of try­
ing the prosecutrix, can a rule whose harmful effect 
is directly proportional to the victim’s susceptibility to 
psychological damage, be sound?

The pattern of response of rape victims creates 
further difficulties. In the first phase there is an acute 
reaction, including shock, disbelief, and dismay. The 
victim often is in an agitated, incoherent, and highly 
volatile state. This is often succeeded by gross anxiety. 
In the second phase the victim shows an outward ad­
justment. She announces all is well and says she needs 
no further help. This pseudo-adjustment covers up a 
heavy measure of denial or suppression. This is suc­
ceeded by a third phase in which the victim develops 
an inner sense of depression and a need to talk. The 
victim finds herself thinking increasingly about what 
has happened and functioning progressively less well. 
From that point either she recovers or the neurotic 
symptoms become chronic. Sutherland & Scherl, Pat­

— 38



terns of Response Among Victims of Rape, 40 A mer. 
J. Orthopsychiat. 503 (1970). Adopted of the test 
proposed by Chief Judge Havnsworth would make 
Eighth Amendment rights turn on complicated ques­
tions of this kind on which psychiatrists are only now 
beginning to grapple for answers. Given the present 
state of knowledge, a legislature does not act irration­
ally if  it concludes that all rapes involve a large risk 
of serious psychological damage and if it thus author­
izes juries to impose the death sentence in those ex­
treme cases in which it seems justified. We cannot yet 
say with assurance that Shakespeare was wrong when 
he wrote in The Rape of Lucrece that rape inflicts

* * *the wound that nothing healeth,
The sear that will, despite of cure, remain.

One final argument suggested by the opinions in the 
Ralph case should be mentioned. The majority there 
thought that most jurisdictions now consider death an 
excessive penalty for rape, and believed that this was 
demonstrated “ by the legislative trend to abolish cap­
ital punishment for this crime and by the infrequency 
of its infliction in jurisdictions that still authorize it.”  
438 E.2d at 793. It is true that only 16 states and the 
federal government allow the death penalty for rape. 
This does not show that those jurisdictions, or the 
citizens in them, would think that death is an excessive 
penalty for that crime. There are a variety of reasons 
why a state might choose to remove one or another of­
fense from the catalogue of capital crimes.

Those states that have abolished capital punishment 
entirely have not made any judgment about the ex­
cessiveness of the death penalty for rape. The incidence 
of rape is closely related to geography, and is highest

— 39 —



in the west while much less common in the northeast. 
FBI, U niform Crime R eports for the U nited States 
1970, 14 (1971). In places where rape is uncommon 
there may not he felt need to deal with it as severely 
as in other areas. A  state may have reduced the num­
ber of capital offenses for wholly pragmatic reasons, 
which have nothing to do with the supposed excessive­
ness of the penalty. What many informed persons think 
is the strongest argument against capital punishment 
has nothing to do with the moral or utilitarian ob­
jections to death sentences. This is that capital pun­
ishment sensationalizes the entire judicial process.

As astute and realistic an observer as Mr. Justice 
Jackson, observed to the Reporter shortly prior 
to his death that he opposed capital punishment 
because of its deleterious effects on the judicial 
process and stated that he would appear and urge 
the Institute to favor abolition.

M odel P enal Code 64 (Tent.Dr. No. 9, 1959). This 
was also Justice Frankfurter’s position. F rankfurter, 
The Problem of Capital Punishment, in Of L aw  and 
M en 77, 81 (1956). Those who take that view would 
be making no judgment about the excessiveness of 
the death penalty for particular crimes if they deter­
mined to reduce the classes of cases in which this ef­
fect on the judicial process might occur.

The infrequency of the infliction of the death sen­
tence in rape cases does not indicate that it is regarded 
as an excessive penalty, any more than the infrequency 
of any executions indicates a view that death for any 
crime is excessive. We have discussed that contention 
under Point One of this Brief. Here, as there, society 
is entitled to have the death penalty for rape on the 
books as a deterrent to all rapes and to have it actually

— 40—-



carried out in those extreme eases in which the con­
science of the community, speaking through the jury, 
concludes that the defendant’s life should be forfeit.

Finally, it is simply incorrect to speak, as the Fourth 
Circuit did, of “ the legislative trend to abolish capital 
punishment for this crime * * *. 438 F.2d at 793. The 
only jurisdictions in which capital punishment for rape 
has been abolished in many years have been West Vir­
ginia, where this was a part of a total abolition of 
capital punishment, and the District of Columbia, 
where the statute suffered the same defect that was 
held to be unconstitutional in United States v. Jackson, 
390 U.S. 570 (1969). See 438 F.2d at 791 n. 13.

But if, as appears to be true, for a number of years 
the situation has been relatively stable, with 19 
American jurisdictions permitting imposition of 
the death penalty for rape, then it is hard to see 
how “ evolving standards of decency,”  let alone 
“ standards of decency more or less universally ac­
cepted,”  can be said to be violated. On the evidence 
available it does not appear that this is a case 
for due process by headcount.

Packer, Making the Punishment Fit the Grime. 77 
H arv.L.Rev. 1071, 1073 (1964).

Recent events in Texas are of interest in this con­
nection. A distinguished group, sponsored by the State 
Bar of Texas and financed by the legislature, has 
worked for five years on revision of the Texas Penal 
Code. In its published draft rape would ordinarily 
have been a felony of the second degree punishable by 
not more than twelve years in prison. Aggravated rape 
would have been a felony of the first degree, punish­
able by life imprisonment. T exas P enal Code: A P ro­
posed R evision §§ 21.02, 21.03, 12.31 (Final Draft,

—  41 —



1970). But the committee that prepared the proposed 
revision, prior to its introduction in the legislature 
in 1971, itself reconsidered and concluded to retain 
death as a possible penalty for aggravated rape.*

As the Texas experience shows, responsible and en­
lightened people can and do still conclude in 1971 that 
the best interests of society require provision for the 
death penalty for some rape cases. This should he left 
a matter for choice and sound judgment by legislatures 
rather than resolved by reading into the Constitution 
of the United States limitations that cannot readily 
he perceived.

III. The Other Contentions of Petitioner Are Not 
Properly in Issue Here.

In what has gone before we have sought to deal 
with the arguments advanced by petitioner under 
Points One, Three, and Pour of his Brief. In Point 
Two he contends that to subject him to the death pen­
alty, while persons convicted of rape in many other 
states are not subject to that penalty, is a denial of 
equal protection of the laws. In Point Five he attacks 
the constitutionality of article 1.14 of the T exas Code 
op Criminal. P rocedure, which commits the question of 
capital punishment initially to the discretion of the 
prosecutor and bars a death sentence unless the prose­

*The fact that the Texas draftsmen propose to distinguish 
between simple rape and aggravated rape is not inconsistent 
with our position that the distinctions suggested by Judge 
Butzner and Chief Judge Haynsworth are not viable. Making 
these distinctions by statute permits much more precision 
than constitutional construction would provide and the dif­
ference between the two classes then becomes a question for 
the jury rather than a question of law for appellate courts, 
as it must be if the distinction is given constitutional stature.

—  42 —



cutor lias given advance notice of Ms intention to seek 
the death, penalty.

These questions are not properly here. The writ of 
certiorari was limited to whether the imposition and 
carrying out of the death penalty in this case consti­
tutes cruel and unusual punishment. 403 U .S ._
(1971). The matters raised by petitioner in his Points 
Two and Five are not witMn that limited question, nor, 
for that matter, were they among the six questions 
he sought to bring here in his petition for eertiorari. 
“ We disapprove the practice of smuggling additional 
questions into a case after we grant eertiorari.”  Irvine 
v. California, 347 U.S. 128,129 (1954).

Nevertheless the temptation to respond to them is 
strong. Those points are readily answered. Strict ad­
herence to the rules of practice of this Court seems 
less important here than resolving these matters, so 
that no false glimmer of hope is left for those con­
demned to death and no new round of stays, appeals, 
and collateral attacks begun to have these questions 
resolved.

There is, however, another objection that makes it 
improper for us to argue or for the Court to decide 
these new questions. The interstate equal protection 
argument and the attack on article 1.14 were neither 
raised nor decided at any stage of the state proceedings. 
It is not a mere rule of practice that prevents their 
consideration hut the limits on the jurisdiction of tMs 
Court in reviewing eases from state courts. 28 U.S.C. 
§ 1257(3).

—  43



CONCLUSION
For the reasons here given, the judgment of the 

Texas Court of Criminal Appeals should be affirmed.

Respectfully submitted,
Cra wford C. M artin 
Attorney General of Texas
N ola W hite 
First Assistant
A lfred W alker 
Executive Assistant
R obert C. F lowers 
Assistant Attorney General
Glenn  R. B rown 
Assistant Attorney General 
Box “ R ,”  Capitol Station 
Austin, Texas 78711
Charles A lan W right 
2500 Red River Street 
Austin, Texas 78705
Attorneys for Respondent

September, 1971