Branch v. Texas Brief for the Respondent

    r--' k t *, r- l i r \-r  A t ;  T U “  1 i \ - ( T S - - i ' i  V . :'l J ;Su Pl< !S..O U .X I W* » I » L. W I M l \  -

October Term, 1971
No. 69-5031 

* * *
E lmer B ranch,

v.
State of T exas,

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE TEXAS 
COURT OF CRIMINAL APPEALS

# *
BRIEF FOR THE RESPONDENT 

* * *
Crawford C. Martin 
Attorney General of Texas
N ola W hite 
First Assistant
Alfred 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 Alan W iught 
2500 Red River Street 
Austin, Texas 78705
Attorneys for Respondent



I N D E X

S ubject 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

Ca s e s .
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



McGautha v. California, 402 LJ.S. 
(1971) ___________________

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

Maxwell v. Bishop, 39S F.2d 138 (8th Civ. 1968) _5, 31 

Miranda v. Arizona, 384 U.S. 436 (1966)--------- 22

Ralph v. Warden, Maryland Penitentiary,
438 F.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 Stoics, 373 U.S. 1 (1963)-----  22

State ex re'i. 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

O’Neil v. Vermont, 144 U.S. 323 (1892) 24

u



Williams v. New York, 337 U.S. 241 (1949).—  13 

Witherspoon v. Illinois, 391 U.S. 510 (19G8)—5,7, 21

STATU TES:
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 AU TH O RITIES:
B edau, T iie  D eath 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, Reason and Law (1950)----------------------- 14

Comment, The Death Penalty Cases, 56 Calif.L. 
R ev. 1268 (1968)____________________________ 12

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

Deut. 1 9 :2 1 _________________________________ 25

Dcut. 2 2 :1 5 _________________________________ 25
iii



DuF±% 83 Men and 2 W omen (1062)----------- 21
25

Ex. 22:18-------------------------------------------
pw jpm s R eport of the Special Commission fob 

the Study or Abolition oe D eath P enalty in  ^  
Capital Cases (1065)------------------------------

FBI, U niform Crime R eports for the U nited 
States 1970 (1071)-----------------------------------28’ 4°

F rankfurter, The Problem of Capital Punish- 
went , in Of L aw and Men (19o6)----------------

Gerhard, Gagnon, P omeroy & Christenson, Sex 
Offenders (1965) ----------------------------------  ’

Gibbs, Crime, Punishment,and Deterrence, 48 
Sw. Soc. Sci. Q. 515 (196S)----------------------

Goldberg & Dershowitz, Declaring the Death Pen­
alty Unconstitutional, 83 H ary.L.Rev. 1773 
(1970) --------------------------------------- -

Halleck, Emotional Effects of Victimization, in 
Sexual B ehavior and the L aw 673 (Slovenko
ed. 1965) ----------------------------------------------  38

Hart, The Aims of the Criminal Law, 23 L. & 
Contem p. P p.ob. 401 (195S)------------------------

Hart, Murder and the Principles of Punishment: 
England and the United States, 52 Xw.U.L. 
R ev. 433 (1957).-----------------------------------15’17

Koeninger, Capital Punishment in Texas, 1924- 
1968, 15 Crim e  &  D el. 132 (1569)--------------— 29

iv



Macdonald, R ape—Offenders and T heir V ic­
tims (1971) _________________25,27,28,30,33,34

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

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

N ational Commission on R eform of F ederal 
Criminal L aws, F inal R eport (1971)---------  8

I
Note, The Cruel 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 Appraisal of Cruel and Unusual 
Punishment, 36 N.Y.U.L.Rev. 846 (1961)— 10,11

Ohio L egislative 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 akv.L.Rev. 1071 (1964)---------19,24,26,32,41

R oyal Commission on Capital P unishment, 
R etort 1949-1953, Cmd. No. S932 
(1953) _____________________

v
.14,15,17,18



Schwart/.. The Effect in Philadelphia of Pennsyl­
vania’* Increased Penalties for Pope and A t­
tempted Pope, 59 J. Cf.im. L., C. & P. S. 509

__________  24i. JwO )\

Scuey, T/V- S7y?/Z at Cumae—Our Criminal Law ' 
Moral Obsolescence, 17 Wayne L.Rev. 777

s

(.1071) -

Shakespeare, The Pope of LucreCe.

30

39

Sutherland & Scherl, Patterns of Response 
Among Victims of Rape, 40 Ameb. -I. 
Oethopsycht at. 503 (1970)---------------------38,39

T exas P enal Code: A P roposed R evision ( F  
Draft, 1970) ------------------------------------------  41

W illiams, Pape-Murder, in  Sexual B ehavior and 
the L aw 503 (Slovenko ed. 19G5)---------------33

W orking P apers op the National Commission 
on R eform of F ederal Criminal L aws 
(1970) __________________________8, 15> 17>18

vi



IN  THE

SUPREME COURT O r THE UN! i ED STATES
October Term, 1971 

No. 69-5031
* * *

E lmer B ranch, 

v.
State of T exas, 

# * *

Petitioner,

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, 19G7, 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. 2S), 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),



wearm* made a distinctive mark that comeum ,
foot prints found outside of Mrs. Stowe s ou •;
S  5?). Mrs. Stowe was a 65 year old * C A .  2U ;  
Defendant was a powerful young man ( . ° |
20 or 21.* !

The iury found defendant guilty and assessed death 
as the penalty. Sentence was entered according y.

SUMMARY OF ARGUMENT
I. The Framers did not intend in 

Amendment to abolish capital punishment and tin 
Court has long and firmly supposed that pumshmen 
to be^constitutional. Even if the Amendment can take 
on new meanings in tl.c 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 deba 
on the wisdom of this penalty and public opinionms 
divided the penalty is still widely accepted by the 
“ ’and by the legislatures of 41 states and the 
federal government. Retribution remains one of the 
legitimate aims of punislunent and for some cases on y 
the death penalty is appropriate retribution, leg is la ­
tures may also conclude that capital punishment 
more effective as a deterrent of crime than is any other 
nenalty Although there is no statistical evidence of 
Ihe superiority of death as a deterrent, there ts other

is some confusion U m ft f th S
age. His mothei testified n-.it a parole sum-
trial two months altei 03 1066 (A. 87) listed him as
S S o ' S ' ' * a r t 4 t r( T W :  which would have made him 
01 ot. the time of the crime.

—  2 —



the most extreme occurrences wit!es within the class.
XI. If  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. Ivape 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. I t  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. I t 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



i

pvccnt State of knowledge there is no way to know m fli
assurance wlmt the psychological consequences on . 1 •

vi-tim have been. The danger that a rape has 
posed to the victim’s life and the extent ° j  
has suffered arc legitimate considerations foi a jury, 
expressing the collective conscience of the community , 
in determining sentence hut are not oo^titutaonanimr- 
1rations on the use of capital pumshm nt. It m not true 
that most jurisdictions regard death as an ^ee  
penalty for rape and there is no trend toward aban 
doning the death penalty for rape cases.

I I I . Petitioner’s contentions that it is a denial of 
equal protection if a convicted rapist in Texas is su - 
jeet to the death penalty when he would not be^f he 
were convicted in some other state and that the Texas 
procedure giving the prosecutor discretion whethei to 
seek the death penalty is unconstitutional cannot e 
considered here. They are not within the limited grant 
7 " a r i ,  they w^re not presented in the pntrUon 
for the writ, and they were never raised in the state
courts.

a r g u m e n t

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

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

/



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 or. 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 be raised by 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 tnose 
who are personally opposed to capital punishment may 
well conclude that it violates no provision of the Con­
stitution. E.g.j State ex rel. Francis v. Fteswebcr, 329 
ITS 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 
TJ.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) (m i te ,  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. I t  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. 1S3, 226 (1971) (Black, 
J., concurring). The same Congress that proposed the

—  5 —



Eighth Amendment provided in the F irst Crime Act 
for the death penalty for treason, murder, piracy, 
counterfeiting, and other offenses. Act of April 30, 
1790, §§ 1, 3, S, 9,14, 23, 1 Slat. 112. I t  is equally clear 
that this Court in a long line of cases has spoken of 
the death penalty as if it were constitutional. E.g., 
Wither son v. Utah, 99 U.S. 130, 134-135 (1879); In  
re Kemrrlcr, 13G U.S. 436, 447 (1890); State ex rel. 
Francis v. Resivebcr, 329 U.S. 459, 464 (1947) (plu­
rality opinion) ; Trap v. Dulles, 356 U.S. 86, 99 (1958) 
(plurality opinion). Only last term the Court filled 
130 pages of the United States Beports with discus­
sion of the constitutionality of the fwocedurestused in 
imposing the death penalty, McGautha v. California, 
402 U.S. 1S3 (1971), a singularly academic exercise 
if the Constitution does not permit that penalty ever 
to be imposed. I t  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 but 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- 
mlcr, 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 ease 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^ Oi 
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 be 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.

I t  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 (196S). 
A 1969 poll finds 51% in favor of the death penalty. 
Goldberg & Dershowitz, Declaring the Death Penalty 
Unconstitutional, 83 IIarv.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 REFORM OF FEDERAL
Criminal L ames, 1347,13G3 (1970). I t is the opponents 
of the death penalty who have been, •‘active in research 
and prolific in their writings.” Ohio Legislative Serv- 
icf. Commission, Capital P unishment 31 (Stall Re­
search Report Lo. 46, 1961).

I t 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 kdau, T he D eath P enalty in  
America 233 (2d ed. 1967). In 1970, 64% of the voters 
in Illinois chose to retain capital punishment. fh e  
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 (1963) have favored its retention. 2 W orking 
P apers of the N ational 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. N ational 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 —



issue is th at -1 states am.
tain ca]hta.1 pumshiD'Uit. f
eed as r<,‘C.eioily as 1905 Con
e list of JX<feral capital cri:
■ath pen:illy’ for assassinatio

government retain eanital uums'.r^uiL ro r sotqc or 
all crimes. 1 
one more to

ident, President-elect, or Vice President of the united 
States. IS U.S.G. * 175.1, added by Act of Aug. 28, 
1965, Pub.L. S9-141, § 3, 79 Stat 5S0.

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

B edatj, T he D eath 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 Xew 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. 32-31). 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 —



1 y; -1 nve hid uncut would be impossble should it be logi^huive juu-o ,.nriit‘'l punishment, atheld that the Constitution b a i, capital pu >
V t oil civilian peacetime crimes, l i  mere is
( il-titutior al barrier to the execution of Ernest Aikens comtit.itio c be thc sawc barrier to execution
oMbVmurdcrcr of a prison guard or a President or to 
the execution of a person wlio successful y p 
bomb in a crowded 747.

Given tbe division of opinion on capital pumsh- 
, wiiii it can bar illy be said that “ evolving standards 
rfd e  W ’ n t  r i o t  it, even for an ordinary murder 
When countries with whom we share many of on 
values and our legal traditions have only^recentlymson- 
eluded that there remain some extiaoidma y 
t  which tbe death penalty must be P ~ c 1 £  
argument that to impose a sentence of death is never 
constitutional under any circumstances is seen fo 
What it is, an attempt to impose an absolutist u c  
of a debatable social policy on the states and the fc - 
eral government by way of a novel constitutional in­
terpretation.

Neither tbe language of tbe Eighth Amendmentthe 
intent of the Framers, the precedents rn this Court, 
nor, to the extent that it may be thought relevant, a 
public consensus supports the notion that capital pm - 
isliment is unconstitutional. Indeed, insofar as, tb . 
indicators show anything, they support the freedom rf  
legislatures to make their own choice on the matter 
Commentators have rejected the argument that dent 
is an unconstitutional punishment. Note, Cruel

and Unusual Punishment
Criminal La,a, 79 H ahv.L.Rev. 63a, 638-639 (1966) , 
Note, The Effectiveness of the Eighth Amendmen .

—  10 —



- |7 nr Cruel and Unusual Punishment, 3o
e V r ?r “  ' c S -S -.0  (1081). Notice Goldberg

«*> * »  stated tee eas
and * 5 M^tiV’nonalitv of capital pumsmnem, <ue
f ^ ? 9 6 9  aloue there were eight sta.e
foXC_; decisions m which the death penalty w a s  upheld couii/ decisions -1 attack. Goldberg &
against an E ighth Aimnc _ p  Uy Unnonstitu- 
Dershowitz, Z>cckr»* ^  ^
tional, S3 U aiw.L.Rev 1773, 1774 • t
of i .otf civ of the circuits have held to tne 

f ,  ii 7. As will be more fully discussed under
dd- o -p - r t iie j.’ourtb Circuit bas found
Point Two of tin , Luof. £  ^  rapes to violate
imposition oi a oeatii warden- Maryl&nd
the Eighth s ta lls

civilian peacetime crime.
Petitioner in the present ease makes a very able 

nresentation of what has been tlie usual argument by
some recent commentators against the ho'rstautronair y
of capital punishment (Branch B r - 2' 
iiallv it be-ins with the premise that the traditiona 
aims o punishment arc retribution, deterrence rso- 
lation aZd rehabilitation. But retribution is said to 
he inconsistent with modern penologica thought and 
must bo discounted for that reason (B ranchJB i.W b 
Patently a death sentence does not lehabilitate 
the offender and he can be isolated as c ^  ” lv
modern prison as by executing him. Thus the on 
legitimate object that capital punishment might seme 
^deterrence and recent statistical studies have give 
rise to a widespread belief that capital punishment

— 11 —



offers no effective deterrent relief (Branch Br. 2d). 
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 w^h,ad­
vanced concepts of behavioral science” (Branch ,Br. 
29), it runs afoul of the Eighth Amendxneht.

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 
human) tarianism 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 U.S. 464, 466 (1948). See also 
McGautha v. California, 402 U.S. 183, 221 (1971).

In  the light of history, experience, and the present 
limitations of human knowledge, cf. McGautlia v. Cali­
fornia, 402 U.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 Calip.L.Rev. 1268,

—  12 —



1349-1351 (19GS), as well as those who would require 
timt a penalty serve some other end besides retribution 
more effectively than any other less severe penally, 
Goldberg & Dershowite, Declaring the Death Penally 

ZJnconsliltUimml, S3 H akv.L.Rev. U 'm »- 
(1970), ask too much of the Eighth Amendment. 1 
Court has recognized that:

Retribution is no longer the dominant objectve of 
the criminal law. Reformation ana rehabilitation 
of offenders have become important goals ot cinn- 
inal jurisprudence.

Williams v. New York, 337 U.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, 2S4 (1971) (Bren­
nan, J., dissenting). See also Ralph v. Warden, Mary­
land Penitentiary, 438 F.2d 7S6, 791 (4th Cir. 1970).

I t  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 tlie 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 lesponsibility 
cannot be ascribed to behavior that cannot he avoided. 
See P acker, T he L imits of the Criminal Sanction 11- 
12 (196S). Perhaps one or another of these positions is

— 13 —



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 be 
lightly discounted continue to see retribution as one 
of the legitimate purposes of the criminal law. Thus 
Professor Henry M. H art wrote:

Suppose, for example, that the deterrence of of­
fenses is taken to be the chief end. I t  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 (195S). 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. H o. 
8932, at IS, t  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, T he L imits 
of THE Criminal Sanction 36-37 (196S).

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 
G r' -just retribution. Perhaps the view is unfortunate 
and backward but it is one that a legislature is con­
stitutionally free to hold.

The legislature could also reasonably think that the 
death penalty is superior .is a deterrent to any jother 
punishment. This has been at the heart of the jalooli- 
tionist ease in recent years. Statistical studies, by P ro­
fessor Thorsten Soil in 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 arm 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. H art has noted, 
“ many advocates of abolition speak as if the second 
were a warranted conclusion from the figures.” Ham, 
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 ox Capital P unishment, R eport 1949- 
1953, Cmd. No. 8932, at 22-24, n  62-G7 (1953); 2 
W orking P apers op the N ational Commission on R e­
form of F ederal Criminal L aws 1354 (1970); Gibbs, 
Crime, Punishment, and Deterrence, 48 Sw. Soc. Sci.

15



Q, 515, 51G (19GS). I t  is very difficult to be sure that 
all relevant "variables other than capital punishment 
can be eliminated. Goldberg & Dcrshowitz, Declaring 
tilc Death Penalty Unconstitutional, 83 H arv.L .R ev. 
l/7o, 1796 n. 105 (1970). F lorida, R eport of t h e  S pe ­
cial Commission  for t h e  S tudy of A bolition of D eath  
P enalty in  Capital Cases 14 (1965); O hio  L egislative 
S ervice Com m ission , Capital P u n ish m e n t  38 (Staff 
Research Report Xo. 46, 1961). I t  appears quite likely 
that homicide rates per 100,000 of population are too 
ciude an instrument to reflect all the cases in which 
the threat of a death sentence has had a deterrent effect. 
M odel P enal  Code 64-65 (Tent. Dr. Xo. 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 Sellings article 
shows that the ten-year average of annual homcide
inn non1 9 110 duriuS 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 
late would have decreased almost, exactly as in 

. ct 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

Sa}i th;9 tlie abolition of the death pen-
t h / 9 r r °  i i Lad- f en followcd hv a decrease in the geneial homicide rate, it would also have been
true that abolition resulted in an increase in the
total number or murders, and this despite the con-

—  16 —



saw-

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

Ihm .ur, T h e  D eath  P enalty  in  A merica 265-266 (2d  
ed. 1967). H. L. A. H art has made the same point based 
on British statistics. Hart, Murder and the Principles 
of Punishment: England and the United States, 52 
Nw.U.L.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 u n ish m e n t , R eport 1949- 
1953, Cmd. H o. S932, at 18, 5 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, Law 
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 N ational Com­
mission on R eform of F ederal Criminal L aws 1356 
(1970); B edau, T h e  D eath P enalty in  A merica 266- 
267 (2d cd. 1967). In addition, experienced law en­
forcement officers are virtually as one in their con-

—  17 —



viction it
See, ‘ 1 m ‘‘ is a superior deterrent 
Chief C * ™ *  of. J - Ed«ar Hoover and oreDrinWi 1 n "Rimat- -r̂i. EXALTy , / 7 .n^EDAu, i j i e Deat^
P apers I30- ^  (2d ed. 1967) ; 2 W obkixg
F ederal^ ,.'? ,  AATri0XAL Commission ox Reform of 
to seek 0, ,>■ ^AL Av,s 135o (1970). It is easy enough
io*s” 6oT l Sf“ G1'C “ lmpressionistic opin-
could, not ' W  i i ?  • 2  hers W  bought that they 
views of h& t!y the considered and unanimous
mauy yea/.; of conWfGnCefR Witeesses- who have had 
mission o v r All wjtli crinnnals.” R oyal Com- 
C m  Ro. * * * " £ ■  P unishmext, Report 1949-1953 

'2, at 21, 5 61 (1953). ’

this issue the Royal Commission drew on
of knowledge; ‘ aPPropnate one in the present state

The ge,-,/.,., i .
ful rev ,// , ?0nn +f10n which we reach, after care 
to obkd,/ /  a]1 evidence we have been able

£ y ‘ bfsteted ^ P M p u n !penalty ,,f /  ' ? f a^ d as follows. P n w a facie the
as a d o , ...... ls PPely to have a stronger effect
other R  ' ^  t0 fo rm al human bein-s than 
deuce ru l0(,^h P^^slim ent, and there is some evh 
tlw to .j,, i„ d  f .  statistical evidence)
e r a t e u n l n  act so' . u t this eftect does not nr/
offender., nn whom iTkU^nJy’ and tdei’e are m an/ i 
aegligjbJ-.. i t -!Tjn ^ t e d  and may often be 
question !ordln»Iy important toview tins
Penal PoJiJl' f Perspective and not to blse a 
estimates , r e at.10n to murder on exagyrated  
death p e n / /^ he un^ l y  deterrent f o r e f  o flh e

Id. at 24, 5 r;>j.
I f  this Con, i 

m  tbe Ro-
— 18 —

>-72



n 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. 13ut 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 U.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 be 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 Selhn 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 case (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 —



.orte(1 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, ana cveft- 
handediy aopiied to all persons found guih.y of a crime 
for which dL th  is made a possible penalty n r even to 
a reasonable proportion of them (Aikens Bi. 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.

We are told that “ standards of decency, universally 
felt,” would condemn the regular use ofthedeath  pen­
alty (Aikens Br. 24). Again it is said that if 1 
criminals were to he executed in 1971, as happened m 
1935 “ it is palpable that the public conscience of the 
Nation would he 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 
B°r 42), and that it is “ a punishment which, if applied 
rcmilariv, 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. I t  is wholly possible that 
a substantial portion of the public would think the

—  20 —



titfveli■>2'i,ncnt hypothesized by petitioners a salutary one
;tini a constructive step in toe direction of a no-non­
sense “ war on crime.” I t  is wholly possible that, as 
Warden Clinton Duffy has lamented, “ the public
doesn’t  care” one way or the other. D u ffy , 88 Men 
axi.) 2 Women 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 1 looks as a warning to all would-be 
murderers and rapists, even though application of the 
penalty is reserved for only the most serious offender^. 
I t  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 (196S). 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).

I t can he 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



.i • n ^-vrlicr cases such as M(ipp>were pending in this Court, • ^  0f  erf-

f • ’u t  t t o r l " n a l  eases, undoubtedly

*>»- *■* * - * "  -and cases such as J, , • carryin" out a
larged the possibilities for d y conyictions. A 
death sentence by " c“  was being exe-
deeade ago nearly one ! “ “ “ right to call
cuted in the United States.̂  ^
something that happen ["Aikens Br. 38). The
indescribably uncommon event (A0> )
conscience of the community as expressed ^  ^

S e S  "  “ < 5  usee / l t  ba“ e sbao™  £

crimes and applying it to the most 

xnent to the Constitution.

II. Capital Punishment in Rape t e e s  Is Justified.by 

meat.
The argument is made in this case and in 

that even if death is a constitutionally permissible 
punishment for some crimes it is cruel and unusual 
?„i s t e  or all rapes. The Jewish r e l i g i o n s e r n e  
organizations that are o .u n  here contend that death 
^ u n c o n s t i tu t io n a l  punishment for any rapes that
do not result in death (Synagogue Connell Bi. 13).



P .-'-oner in the present case argues that death is un­
constitutional as punishment in rape cases “ where 
life is not taken nor endangered” (Branch In . 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 
Jud ,re Butzner, in Ralph v. Warden, Maryland 1 eni- 
tenliary, 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. If  a rape results in loss 
of life it would he 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 cases 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 Cruel-Punishment Doctrine lay 
th# Supreme Court, 16 Stan.L.Rev. 996 (1964). There 
is ample support for the notion that the Amendment 
prohibits inherently cruel punishments—IV Ulcer son v. 
Utah, 99 U.S. 130* 135-136 (1879); In  re Kemmler,

—  23 —



I ■ • r. i 4 . • , - ' '

U.S. 436, 447 (1S90) ; State ex rel. Francis v 
Resivebcr, 329 U.S. 459, 404 (1947)-th o u g h  the death 
penalty has never been thought to run afoul of tins 
aspect of the Amendment and, for the reasons, set 
forth in Point One of this Brief, should not he 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 0 i ex 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, 3/0 
U.S. 660 (1962). There is much to he 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 pums 
ment rather than proportion. Packer, Making the Pun­
ishment Fit the Crime, 77 H arv.L.Bev. 1071, 10 75 
(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. Cum. L. C. & P . S. 509, 515 
(1968). The statistical studies on the effect of capital

—  24 —

i /  
l V '
Bv

i



puni.J mlent !iave 1been conhi ied to 1ion tic idc «and the”
are n<i i > one way or th e other 02i '.VilCL  1■tl:er capita
punis! n; le n t  ideter, rapes, jindeed pent! one r ’s belie.
that si ■ _v otfen i i f*7*S cannot be del or red by tl1U:lit o l aiij
puni.d mAt*I it ;end 1:ns related belief that th er e is litth
or no r ecidiv ism ,among rajlists (B ranch B !\ 26)—;
belief that is not as widely acceptcd as he s;ug;gcsts, sei
M acdonald, B ace— Offenders and T heir  V ictim s  014 
(1971); Gebhard, Gagnon, P omeroy & Christenson , 
S ex O ffenders 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. 
I t  also has a certain attractive logic. The Biblical ref­
erence to a life for a life, Dad. 19:21, surely was not 
meant rcstrictivcly. The death penalty was also called 
for in the ancient law for adultery, Lev. 20:21, bes­
tiality, Lx. 22:18, and rape of a betrothed woman, 
Dad. 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 Lina. 
Thus they must take the view that there is no rape 
in which the victim survives for which the criminal 
can be put to death. Xo 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 he so excessive a penalty that the Constitution 
forbids it.

I t  may he asked where in the Constitution this re­
striction on the state and federal governments can he _ 
found. We have conceded for the purposes of argument 
that a cruelly excessive punishment may he uncon­
stitutional hut there is ambiguity in speaking of a 
punishment as being proportioned to a crime. The 
punishment may he 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 ‘moral fault.’ ” Note, The Cruel and 
Unusual Punishment Clause and the bubstantive 
Criminal I jUW,  79 H a r v . L . R e v . 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 ILvnv.L.Pnv. 1071, 1077



/}•'<» 1); see also Note, <9 H arv.L.Rkv. ii:o, 612-013
(iiUo).

Society has always reg.iirtled. foreibU ra.pc as among
th,» most serious and most reprehcnsio <• .iZ crimes. I t ,
along with willful homicido ao’OTHVe • ee Loo U - assault, and
robbery are

the most threatening and the most ;grongiv con­
demned in the entire (criminal carmeni'. * * * These
four offenses are supremely tlireatci ling for c. if-

security is placed at tlie mercy of a. person intent 
on violating that security. Nothing makes; either 
the victim or the community feci 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 iiu L imits of t h e  Criminal Sanction 297 
(196S). 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. Macdonald, R ape—Offenders and T heir V ic­
tims 29S (1971). There is another, less agreeable, in­
dication of bow society views rape. Between 1S72 and 
1951, 1,19S 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 —



i nn nfiO females in the
95%. In  SS “tted T o rc ib l^ ra p e  victim awl it  
country was a ^ ’ . offcarandembainas.,-
isw cll understood tluit, V  - v ^  _f the most undcr-
ment, this oiicnse m p i CwME Imports for the
reported crimes . EGI U - -  ^  past decade is not
U nited States 19,0 14 .s the 0Uly crime of
unusual in tins vc^ec . • 1̂  ,endency to increase m
violence that lias s ion ‘u Macdonald, R apl
frequency over the las„  ÎS 25 (1971). Given these
Offenders AND Ehor extreme to say
figures, it would he 17 states are
that Congress and tlic ^  provide the death
acting unconstitutional ) forcible rapes and nn-

be sufficient for retribution.

» » “ K s t s r v a
death for rape is cruel and ^  far more often
penalty is carried out on * » ^  veiled attempt
than white rapists and t h u a t o *  ^  ^  That
to legitimize racial because, if it has any
argument comes m at this 1 f the death
validity, «  must ^ " “ d ' i t  be permissible for

against orber rapists.

•, +i ,f+bp racial argument is more prop I t  would seem that protccUon clause than to
crly directed to t h e ^ mistment clause. Sever- 
the Cruel and U sufficient relation to.
theless we will assume limited grant
the Eighth Amendment to he witmn

23 —



Undoubtedly the statistics are suggestive that juries 
jiaVe taken race into account in imposing the death pen­
ury for rape. Figures provided counsel hy the Texas 
Denartnient 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 
Ei<rht of the 42 persons now under sentence of death 
in°Texas were convicted for rape. Of these one is 
white, five arc black, and two are Latins. See also 
Kocninger, Capital Punishment in Texas, l.)~4 1968,
15 Chime &  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.b. 
1S3, 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 tills bas 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 Legioes 
receiving shorter sentences than whites for some of­
fenses and longer sentences for others. Bullock, Sig­
nificance of the Racial Factor in the Length of Prison 
Sentences, 52 J. Cium. 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 —



.  pus and when miscegenation was a crime, it is 
h ‘dly surprising that an interracial offense, and par- 
S I r l y  Si iutcrracial rape, was perceived as an esp - 
“ .Uytraumatic event and an especially senous.breach 
of the good order of the state.

In understanding these figures from the past another 
fact must be taken into account. Tire rape rate »  much 
higher among Negroes than among w  ̂ •
both in Denver and Philadelphia, based on figures 
S  eliminated any possibility of racial d.scnrmnatron 
on tire part of judges and jurors, showed m each m 
stance that tbe rape rate was 12 time, as Ing.am ong 
Negroes as among whites. Macdonald, Dape^-Qffend 
Jb / akd T h e ir  V ictim s 51-54 (1971) That t h ™  
says nothing about comparative morality of different 
races. I t  may well be a function of poverty rather 

of raCe* “ * * * [T]he rich kid can use flowers,
caudy^ wining and L L S  and a s h in y  automotive 
super-phallus to ‘seduce' the girl whom the slum lad
‘rapes.’ Seuey, The S i b y l  a t  
L a m ’s  M o ra l  O bso lescen ce , 17 W ayne L.Eev. 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 m  Denver and Phi a 
dclphia 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 tbe 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 deat 
penalty because of their race. R a l p h  v .  W a r d e n ,  M a r y -

—  30 —



fond penitentiary, 438 F.2d 786, 793 n. 24 (4th Cir. 
1670); 3 fax well v. Bishop, 393 F.2d 138, 149 (8th Cir. 
1068), vacated on other grounds 39S 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
xomi uor ot the death penal tv is difficult to estab-

In

it c~er^  ______ mge or me
r-rir 'r-tH process in deciding whether to impose capital 
punishment (Aiken* Br. 53). In  any m a t ,  a* d>« 
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 arc. 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 he inflicted in an extreme case, and 
we do not believe this is such a case. Our Constitu­
tion (section 13 of the Bill of Rights) 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 douotful that

—  31 —



i.. ■> Ti has never actually been
it represents Texas a*.. - ‘ *!U.C 0f the opinion
f  ,1 ,.vrfi ond it is quite plain on 0|followca .mu i . i '  1 , Vpiieve me ultimo-, ox
that the court simply d <■ " _ COvdd not reverse
the complaining witness- Smec
on that ground, it hunted for some seemingly piausible

ground on k ic h  it could rave the: life « | ^  “t
whom the court thought be not » ^ -  ^
sent the cose ^ d ° V l t  elu d t t  get a conviction,
had already Pref ^ t i t  a id e  the sentence, 
rather than merely setting aside

i +-rt „ -p0- vth Circuit has held, 
Petitioner argues, and t  i  _ oporti0patc to the

that ‘The death sentence is■ neither taken
crime of rape when the _  the Eighth Amend-
nor endangered ia 1 Maryland Penitentiary, 438 
Bient.” Ralph dissenting judges
F.2d 78G, 793 (4th Cn. 1 9 ™ ) - extremc impre- 
in the Fourth Circui pou A,  ̂795 professor
cision of the term  ‘‘e n d a n g e r e d ^ a t ^  ^  ^  

f n l "  ^ e n t s e T h X -  brnnan life was “ endan-

S°rCThere is a sense in which
by sexual attack, just f  £  * or by burglary

E t b ^ d i t n a h  and violence ,-dways carries the 
possibility of a fatal outcome.

. Dr:
32



a major sort, such as o£ serious physical damage or 
threats o£ injuring the victims c a l d r o n . ^  
G a g n o n , P omkbov & C h r is t e n s o n , S ka O f f e n d e r s  19b  
(1965). The most common type of rapist is

the assaultive variety. These are men whose be- ■ 
havior includes unnecessary violence; it seeni^fhat 
sexual activity alone is insufficient and m md 
for it to be maximally gratifying it must be 
accompanied by physical violence or by serious 
threat In brief, there is a strong sadistic elemen 
in these men and they often feel pronounced hos­
tility to women (and possibly to men a ls o ,  at a 
conscious or unconscious level. They generai y o 
not know their victim; they usually commit the of­
fense alone, without accomplices; preliminary at­
tempts at seduction are either absent or exti erne y 
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 deporunent. 
Lastly, there is a tendency lor 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 
dob  load to murder. Williams, iu■ Sex­
ual B ehavior axd the L aw 5G3 (Slovcnko ed. i960). 
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 oi 
physically assault his victim, and that even m 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. Macdonald, Rape—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 —



TT ~ . +n0 that the force used
or choked. Id. at 6 t H c « n -  ^  ttw g tj t l rapist ;.

vj ,,a +nr> woman ma> ut- , neck of theto suoaue w— _ rossurc on tlm neot
aid not intend * * « » 1  cause strangulation, may
victim, though at ISO. !
cause death from reflex cause.

m o th e r  or « £ *  W -  I
standard can proflahly w  Mrs. Stowe’s Me
the facts of the present c a se .^  ^  tc r  rural 
endangered when E »  • ■ !(] )l(,r <J Defendant
house in the dead of mgM a ^  ^  prototype
who was 20 or 21 yeal ’ f ist described by Geb- 
of tbe ‘‘assaultive van y ^  coramitted the offense 
hard and bis collea0 •  ̂ at  seduction, and
alone, with no P™linnnary attem pt^ ^  ^  ^
he selected Ins victim i characterized by his
events following the assault are < f l u g) _ He used
own counsel as “bizarre will with Mrs. Stowe
brute force to acc° ^  u  old and was unable to do 
( \  19). She was 6o yeaib o have never
anything because “he was^yusMo *  H s hands.
seen a man with tba ^hsbin0' penetration
• “  -  ( A. 19). P rior  o — l i s h m ^ P ^
he had Mrs. Stowe s h a r d e r  on her throat (A. 
he pressed d o w n “ coughing and choking. 
19). After the attack she i ^  hurting an over
H e bad hurt my throat a*<l a  ̂ ^ couldn’t  hardly get 
really. M ythroat was£>nt W  Branch finally left

h e t o M h e r  he would hill her if she told abou. 

W  M S W »  there a risk that the pressure on



\ t-r DOCKk midvfc cause decu.a from redox cmises? I f  he
};;»(! heard her slipping oat the back door immediately 
after he went out the front and had aeon her running 
to her son’s bouse, was there danger that he would have 
carried out his threat and. have, killed her l These are 
the kinds of questions that must he answered m this and 
every other rape case if the Fourth Circuit test should 
be 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 he answered in the 
negative? I f  the line is a constitutional one, as toe 
Ralph holding and the argument here would require, 
they will be questions that must ultimately be answ ered 
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 deatli sentence to stand. I t  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 case 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.” If  
so, any protection from the Fourth Circuit rule would 
again be illusory. Prosecutors would ask the ritual

—  35 —



questions to establish that the Me was.<*-
dangeted just its they now put a ritual 
establish penetration ^A. 2b) •

Would this be a different case if, at the 0Utb^  
the encounter, Branch bad said: “ i ’ll show j o u ^ t  
X want and I ’ll kill you, if I  have to, to get; it U W - 
A 18.)If  so, why 7 If  so, wbat 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 Amen - 
ment. A legislature may reasonably believe with P  
lessor Packer, that “ there is a s e n s e w h i c h  life 
alw7ays endangered by sexual attack.

In  the Ralph case Chief Judge Haynswprth 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 Psycholo0ica 
harm whether or not it clearly appeared that hei

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

than does the “ endangered” test and Chief Judge 
Haynswortli 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 ,rom 
this that they are constitutionally-imposed criteria.

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

—  36 —



measured, lasting  psychological harm to less casj. to 
identify and may be even more grievous. In tnc pi cen t 
rtso for example, Mrs. Starve is what Dr Seymour L 
Holiccl; refers to as an “ accidental” victim, one w i 
did not know her attacker and who made some efloi t 
resist the assault.

Snch a woman lias undergone an experience m 
she is aware of overwhelmingly angry feel- 

in".s but is helpless in dealing with them. She . 
peatedly searches her own motivations to discovc 
if there was something she might have done to pre­
vent the attack. Often she blames hursc.f for,hav 
in" 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 m normal sexual
relations.
A wide variety of pathological reactions may de­
velop following sexual assault. Women with p i -  
viously vulnerable personalities are libel} to de­
velop neurotic symptoms including anxiety at­
tacks, phobias, hypochondriasis or depression. Oc­
casionally psychotic reactions are seen. Less com­
monly transient cliaracterological difficulties such 
as excessive drinking or promiscuity appear. Ihe 
previously well adjusted woman may also become 
disturbed. I t 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 —



*. ';«.W *»- •«**': AAfni ■ -.-k.—*-. _ ̂ j/A. '*?■&. ji*£ »•*■*.' *W

i • 4*̂  &t sorno
women experience i W * J  m!^therefore , Hear 
times in their lives, uno V * - - . %vit#a or pro-
vokeAfteTtfack. Sh. is then tortured with se
accusation.c i C v - 'U o c t U  * . . , •  * y *

.• 7 v f f r r U  o f  V i c t im i z a t io n , mllallcck, Emotional E[fc,> /  (Slovenko ed.
tial Behavior and the I ; ^ , b 7  , ga,
1965). "Which Ox. c - - c0-ald be imposed'? Will 
ous” that the death P ™ ^  ^  complain of rape be-
victims, notoriously loluc* theni) he even
cause of the embariass ^; are to pe required to
more reluctant to do b0 j .  *  aV)0ut whether they 
take the stand an ie c _  relations or whether 
are interested m  “ “ b to £  fantasies? Given
they arc experienc 0 . ahle practice of try-
tie  already common and nnm o ^  effect

victim’s snsceptilnlity to 

nsvchological damage, he soundpsyo-iuiufa victims creates
The pattern of response < P ^ ere ,g an acute 

further difficulties. In  the f i ^  dismay._ The 
reaction, including s e )> incoherent, and highly
victim often lTidsais often succeeded by gross anxiety, 
volatile state. lh  s chows an outward ad-
In  the second phase the '  ■ she needs
justment. S,'^ ”  p s c td o ^ s tn m n t  covers up a 
no further * suppression. This is sue-
heavy measure of denial 11 . develops
needed by a third p h a se  m  vvhrch th e re in  ^  ^
an inner sense oJ c'“  increasingly about what
victim finds herself tlnnhi - lcss well.
has happened and 1 = or neurotic

* Scheri, Pat-

— 38 —



a s s  s ^ i S S =
X  if " ‘c o 'S c s  that all rapes involve a l a r g e r ^  
of serious psyeholcgieal damage aud r f *  U  ^  ^

i r e ^ c a S s  i V X h  it seems justified. We ea.mot yet 
say with assurance that Shakespeare was wrong whe 
he wrote in The Rape of Lv.cre.cc, that rape inflicts _

* * *thc wound that nothing healeth, _
The scar that will, despite of cure, remain.

One final argument suggested by the opinions in the 
Palnh case should he mentioned. The majority the 
thought that most jurisdictions now consider deatn an 
excessive penalty for rape, and believed that this w^ 
demonstrated “by the legislative trend to abolish cap- 
itaTpunishment for this crime and by the infrequency 
of its infliction in jurisdictions that still authonze . 
438 P.2d at 793. I t  is true that only 16 states and t 
federal government allow the death penalty oi raPe- 
This docs 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 leasons 
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. 
F B I  U n i f o r m  C r i m e  R e p o r t s  f o r  t h e  U n i t e d  S t a t e s  

197o’ 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 pumshmen 
has nothing to do with the moral or utilitarian o - 
lections 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 

TnMitvitA to favor abolition.
M o d e l  P e n a l  C o d e  64 (Tent.Dr. No. 9, 1959). This 
was also Justice Frankfurter’s position. F rankfurter , 
The Problem of Capital Punishment, m Of L a w  and 
M e n  77, 81 (1956). Those who take that view would 
he making no judgment about the excessiveness of 
the death penalty for particular crimes if they deter­
mined to reduce the classes of cases m 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 cases 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 X1 ourth 
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 he 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 Crime. 77 
H arv.L .R ev . 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 e x a s  P e n a l  C o d e : A P ro­
posed  R e v isio n  §§ 21.02, 21.03, 12.31 (Pinal Draft,

—  41 —



J

1070). 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 be 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 
be jiereeived.

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 Four 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 be attacks 
the constitutionality of article 1.14 of the T e x a s  C ode 
of  C r im in a l  P ro cedure , which commits the question of 
capital punishment initially to the discretion of the 
pi osecutor 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 
™  our position that the distinctions suggested by Judge 
Uutzner 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 

le. jui y  rather than_ a question of law for appellate courts 
as it must be it the distinction is given constitutional stature!

— 42 —



cutor hxs given advance notice of t o  intention to seek 
the death penalty.

These questions are not properly here. The writ of 
e e n S r f w a i t e d  to'whether ttic imposition and 
carrying out of the death penalty in th.s case const!- 
tutes cruel and unusual punishment. 103' U£*. "  
(1971) The matters raised by petitioner m his Po s 
TVo and Five are not within that limited question nor, 
io l that matter, were they among the six questions 
he sought to bring here in his petition foi cer loiaii. 
“ We disapprove the practice of smuggling a. riou. 
questions into a case after we grant certiorari. i vine 
v. California, 317 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 thus Cour 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, 
mid 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. 
I t  is not a mere rule of practice that prevents their 
consideration hut the limits on the jurisdiction of this 
Court in reviewing cases from state courts. 28 u.S.G. 
§ 1257(3).

—  43 —



CONCLUSION
For the reasons here given, the judgment of jh e  

Texas Court of Criminal Appeals should be ami me .
. 1Respectfully submitted, j 

C r a w fo r d  C. M a r t in

N o r a  W h i t e  
First A s s i s t a n t

A l f r e d  W a l k e r

Executive Assistant
R o b e r t  C .  F l o w e r s  
Assistant Attorney General
G l e n n  R. B r o w n  
Assistant Attorney General 
Box “ R ,” Capitol Station 
Austin, Texas 78711
C h a r l e s  A l a n  W r ig h t  
2500 Red River Street 
Austin, Texas 78705
Attorneys for Respondent

September, 1971

—  44 —