Fowler v. North Carolina Brief for Petitioner
Public Court Documents
January 13, 1975
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Brief Collection, LDF Court Filings. Fowler v. North Carolina Brief for Petitioner, 1975. 12cacb4c-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2e180470-26b3-4bcf-bb6b-b03ce651999f/fowler-v-north-carolina-brief-for-petitioner. Accessed October 09, 2025.
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IN THE
uprem e C ourt of tlje U n ite
OCTOBER TERM 1974
Streets Coart, U, S. j
F I L E Q j
■ JAtf I§ 1315
I
iA Jfi.CLSfX
No. 73-7031
JESSE THURMAN FOWLER,
Petitioner,
v.
NORTH CAROLINA,
R esponden t.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF NORTH CAROLINA
BRIEF FOR PETITIONER
JACK GREENBERG
JAMES M. NABRIT, III
DAVID E. KENDALL
PEGGY C. DAVIS
10 Columbus Circle
New York, N.Y. 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ADAM STEIN
CHARLES L. BECTON
Chambers, Stein, Ferguson & Lanning
157 East Rosemary Street
Chapel Hill, North Carolina 27514
Attorneys for Petitioner
Washington, D.C, • CLB PUBLISHERS' • LAW P R IN TIN G CO. • (202) 393-0625
"W
.
TABLE OF CONTENTS
OPINIONS BELOW ........................................................................ 1
JURISDICTION ...................................... 2
CONSTITUTIONAL AND STATUTORY PRO
VISIONS INVOLVED .................................................... . . 2
QUESTION PRESENTED ........................................................... 4
STATEMENT OF THE CASE ............................ 4
HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW .......... .............. .. . 14
SUMMARY OF ARGUMENT ....................... 15
ARGUMENT:
I. INTRODUCTION ................................. 16
II. THE ARBITRARY INFLICTION OF
DEATH ...................................... 26
A. Prosecutorial Charging Discretion .................... 45
B. Plea Bargaining .................... 53
C. Jury Discretion ................. 62
D. Executive Clemency .....................................................95
III. THE EXCESSIVE CRUELTY OF DEATH .................. 102
A. The Standard of Judicial Review ............ 103
B. The Justifiability of the Penalty of
Death ....................................................................... 121
C. Public Acceptance of the Penalty of
Death ........................................ 130
CONCLUSION .............................................................................. 140
APPENDIX A: Capital Punishment Statutes Enacted
Since Furman v. G eorgia ............................................. la
APPENDIX B: North Carolina Defendants Sen
tenced to Death Under the Procedures Estab
lished by State v, Waddell ........................................................ lb
( 0
Page
APPENDIX C: Representative North Carolina Hom
icide Cases ...............................................................................lc
APPENDIX D: Worldwide Trends in the Use of the
Death Penalty ........................................................................... Id
APPENDIX E: The Evidence Concerning the
Deterrent Efficacy of the Death Penalty ............................ le
TABLE OF AUTHORITIES
Cases:
Andres v. United States, 333 U.S. 740 (1 9 4 8 ) ..................91,117
Bartholomey v. State, _____ Md. ______, 297 A.2d
696 (1972) ............................................................................... 16
Bates v. City of Little Rock, 361 U.S. 516 (1960) .................. 121
Bell v. Burson, 402 U.S. 535 (1971) 101
Betts v. Brady, 316 U.S. 455 (1942) ........................................H6
Blodgett v. Holden, 275 U.S. 142 (1927) .............................. 105
Boykin v. Alabama, 395 U.S. 238 (1969) .............................. 138
Brady v. United States, 397 U.S. 742 (1970) ....................... 61
Branzburg v. Hayes, 408 U.S. 665 (1972) ............................... 47
Carrington v. Rash, 380 U.S. 89 (1965) ................................. 121
Chambers v. Mississippi, 410 U.S. 284 (1973) .............................40
Commonwealth v. A Juvenile, 1973 Mass. Adv. Sh.
1199, 300 N.E.2d 434 (1973) .............................................. 40
Commonwealth v. Johnson, Mass. Sup. Jud. Ct. No.
15,428 ....................................................................................... 22
Cooper v. Aaron, 358 U.S. 1 (1958) ...................................... 106
Costello v. United States, 350 U.S. 359 (1956) ....................... 47
Davis v. Wechsler, 263 U.S. 22 (1923) ...................................... 40
( ii)
Page
Edwards v. South Carolina, 372 U.S. 229 (1 9 6 3 )____. . . . 121
Eisenstadt v. Baird, 405 U.S. 438 (1972) ............................ .. . 120
Ex parte Kemmler, 136 U.S. 436 (1890) ............... .. . 127
Funicello v. New Jersey, 403 U.S. 948 (1971) ............... .. . 24
Furman v. Georgia, 408 U.S. 238 (1972) .......... .. 16,27,39,40,43,
50,75,105,107,
Page
108,109,110,114,
118,120,121,125,
133,135
Gideon v. Wainwright, 372 U.S. 335 (1963) ..........................116
Godden v. Hales, 2 Show. K.B. 475, 89 Eng. Rep.
1050, 11 Howell St. Tr. 1197 (Trinity Term, 2
Jac. 2) (1686) ...................................................................... . 29
Graham v. State, 253 Ark. 462, 486 S.W.2d 678
(1972) ......................... 17
Hamilton v. Alabama, 368 U.S. 52 (1961) ............................ 117
Hernandez v. Texas, 347 U.S. 475 (1954) ...............................44
In re Kemmler, 136 U.S. 436 (1890) ............................28
Jackson v. Denno, 378 U.S. 368 (1964) .................... .40,75
Jemigan v. State, 10 N.C. App. 562, 179 S.E.2d
788 (1971) ................................. 96
Johnson v. Avery, 393 U.S. 483 (1969)
Johnson v. Louisiana, 406 U.S. 356 (1972) .................... 116
Lane v. Wilson, 307 U.S. 268 (1939) ..........................................40
Maher v. People, 10 Mich. 212 (1862) .......... ........................ .89
McCants v. S tate ,_____ Ala_______, 274 So.2d 303
(1973) ..................................................................................... . 1 6
McGautha v. California, 402 U.S. 183 (1971) ............. 39,61,91
McGinnis v. Royster, 410 U.S. 263 (1973) . . . . . . . . . . . . 114
Mempa v. Rhay, 389 U.S. 128 (1967) .............................. .. 40
Menthen v. State, 502 P.2d 1304 (Okla. Ct. Cr.
App. 1972) 16
Moore v. Illinois, 408 U.S. 786 (1972) ...................................... 16
N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S.
288 (1964) ............................................................................ 120
North Carolina v. Alford, 400 U.S. 25 (1970) .......... .............. 56
Parker v. North Carolina, 397 U.S. 790 (1970) .......................56
People v. Anderson, 6 Cal.3d 628, 493 P.2d 880
(1972) I l l
Peterson v. State, 268 So.2d 335 (Miss. 1972) ....................... 17
Pope v. United States, 392 U.S. 651 (1968) ............................ 24
Powell v. Alabama, 287 U.S. 45 (1932) . ............................... 116
Reed v. State, 267 So.2d 70 (Fla. 1972) ................................. 17
Reid v. Covert, 354 U.S. 1 (1957).............................................. 117
Robinson v. California, 370 U.S. 660 (1962) ............... 109,111
Russell v. United States, 369 U.S. 749 (1 9 6 2 ) ......................... 47
Shapiro v. Thompson, 394 U.S. 618 (1969) .......................... 121
Shelton v. Tucker, 364 U.S. 479 (1 9 6 0 ) ................................. 121
Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535(1942) ..................................................................... 106,109
Solesbee v. Balkom, 339 U.S. 9 (1950) 112
Stanley v. Illinois, 405 U.S. 645 (1972) ................................. 101
State v. Allen, 279 N.C. 115, 181 S.E.2d 453
(1971) ...................................................................................48,78
State v. Arnold, 264 N.C. 348, 141 S.E.2d 473
(1965) 90
State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241
(1969) , rev’d on other grounds, 403 U.S. 948
(1971) 80,81
State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526
(1970) ...................................................................................... 90
State v. Baldwin, 184 N.C. 789, 114 S.E. 837
(1922)
( i v )
Page
74
State v. Baldwin, 152 N.C. 822, 68 S.E. 148 (1910) . 67,71,74,
84,87,88
State v. Barber, 270 N.C. 222, 154 S.E.2d 104
(1967)............... ....................... ........................ ................... • - 74
State v. Barrett, 132 N.C. 1005, 43 S.E. 832 (1903) . . . 82,84
State v. Beaclium, 220 N.C. 531, 17 S.E.2d 674
(1941) .......... .........................................................74
State v. Beard, 207 N.C. 673, 178 S.E. 242 (1935) ................ 48
State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967) . 67,74,85
State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922) . 70,71,74
82,88
State v. Bentley, 223 N.C. 563, 27 S.E.2d 738
(1943) .................................................................. .. 78,79
State v. Benton, 276 N.C. 641, 174 S.E.2d 793
(1970) ....................................................................... 66,78
State v. Bishop, 131 N.C. 733, 42 S.E. 836 (1902) .......... 73
State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431
(1973) . ............................................................................. 15,18
State v. Blevins, 138 N.C. 668, 50 S.E. 763 (1905) .......... 85
State v. Bolin, 281 N.C. 415, 189 S.E.2d 235
(1972) ................................. 82
State v. Booker, 123 N.C. 713, 31 S.E. 376 (1898) .......... 72
State v. Bowser, 214 N.C. 249, 199 S.E. 31 (1938) .......... 72
State v. Boyd, N.C. Sup. Ct. No. 7, Spring Term
1974 50
State v. Boyd, 278 N.C. 682, 180 S.E.2d 794
(1971) ............ 82,85
State v. Bright, 215 N.C. 537, 2 S.E.2d 541 (1939) .......... 74
State v. Briggs, 20 N.C. App. 368, 201 S.E.2d 580
(1974) ......................................... 88
State v. Brinkley, 183 N.C. 720, 110 S.E. 783
(1922) .......... 74
State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974) 72,73,88,93
(v)
Page
State v. Brittain, 89 N.C. 481 (1 8 8 3 ) ................................. 81,94
State v. Brown, 227 N.C. 383, 42 S.E.2d 402
(1947) .................. .................................................................. 63
State v. Bryant, 213 N.C. 752, 197 S.E. 530 (1938) .......... 83
State v. Bryant, 280 N.C. 551, 187 S.E.2d 111
(1972) 78,80
State v. Bryson, 173 N.C. 803, 92 S.E. 698 (1917) .......... 78
State v. Calloway, 1 N.C. App. 150, 160 S.E.2d 501
(1968) 82
State v. Camp, 266 N.C. 626, 146 S.E.2d 643
(1966) 74
State v. Carland, 90 N.C. 668 (1884) ...................................... g2
State v. Carter, 76 N.C. 20 (1877) 87
State v. Casey, 159 N.C. 472, 74 S.E. 625 (1912) ............... 49
State v. Chance, Wake County Super. Ct. No.
74-Cr-696 (Sept. 16, 1974) ................................................ 59
State v. Chance, 281 N.C. 746, 191 S.E.2d 65
(1972) 18
State v. Chavis, 80 N.C. 353 (1879) 63,85,89
State v. Childress, 228 N.C. 208, 45 S.E.2d 42
(1947) .................................................................................... 63
State v. Church, 229 N.C. 718, 51 S.E.2d 345
(1949) ............ 74
State v. Cole, 132 N.C. 1069, 44 S.E. 391 (1903) ..............67,73
State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1972) .......... 74
State v. Cooper, 273 N.C. 51, 159 S.E.2d 305
(1968) ............................................................................... 86,88
State v. Cox, 153 N.C. 638, 69 S.E. 419 (1910) ............71,85,86
State v. Cox, 201 N.C. 357, 160 S.E. 358 (1931) 63
State v. Crisp, 170 N.C. 785, 87 S.E. 511 (1916) 85
( v i )
Page
Page
State v. Crowder, 285 N.C. 42, 203 S.E.2d 38
(1974) 18
State v. Cuckovich, 485 S.W.2d 16 (Mo. 1972) .................... 17
State v. Curry, 46 N.C. 280 (1854) ...................................... . 89
State v. Daniels, 134 N.C. 671, 46 S.E. 991 (1 9 0 4 ) .......... 70
State v. Davis, 225 N.C. 117, 33 S.E. 2d 623 (1945) 84
State v. Deboise, Wake County Super. Ct. No.
73-Cr-29233 (Oct. 22, 1973) 60
State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d
130 (1943) ......................................................................... . . 6 5
State v. Dickerson, 298 A.2d 761 (Del. 1972) ....................... 21
State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974) 18
State v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972) 18
State v. Downey, 253 N.C. 348, 117 S.E.2d 39
(1960) ............ 71
State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132
(1970) ................................................... 64
State v. Duboise, 279 N.C. 73, 181 S.E.2d 393
(1971) ....................... 63,71,72
State v. Duncan, 282 N.C. 412, 193 S.E.2d 65
(1972) ..................................................................................... 90
State v. Ellis, 101 N.C. 765, 7 S.E. 704 (1888) .......... 85,87,89
State v. Evans, 198 N.C. 82, 150 S.E. 678 (1929) .............. 72
State v. Faison, No. 5-550-57, Bergen Cty. Ct., Nov.
21, 1958 . ............... 55
State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961) 66,72
State v. Feaganes, 272 N.C. 246, 158 S.E.2d 89
(1967) 74
Page
State v. Ferguson, 17 N.C. App. 367, 194 S.E.2d
217 (1973) ...............................................................................73
State v. Finch, 177 N.C. 599, 99 S.E. 409 (1919) ..................86
State v. Flonnory, 31 Ohio St.2d 134, 285 N.E.2d
726 (1972) ................................................................................ 17
State v. Fountain, 282 N.C. 58, 191 S.E.2d 674
(1972) ........................................................................................ 70
State v. Foust, 258 N.C. 453, 128 S.E.2d 889
(1 9 6 3 ) .....................................................................................66,74
State v. Fowler, 285 N.C. 90, 203 S.E.2d 803
(1974) ............................................................................... 1,14,18
State v. Fowler, 250 N.C. 595, 108 S.E.2d 892
(1952) .................................................................................... 83
State v. Fowler, 151 N.C. 731, 66 S.E. 567 (1909) .......... 79
State v. Franks, Wake County Super. Ct. No.
73-Cr-15922 (Nov. 26, 1973) 60
State v. Freeman, 280 N.C. 622, 187 S.E.2d 59
(1972) .................................................................................... 64
State v. Freeman, 275 N.C. 662, 170 S.E.2d 461
(1969) 64,71,79,82,83,88
State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894) . 68,72,90,94
State v. Garland, 138 N.C. 675, 50 S.E. 853 (1905) .......... 86
State v. Gause, 227 N.C. 26, 40 S.E.2d 463 (1946) .......... 64
State v. Gentry, 125 N.C. 733, 34 S.E. 706 (1899) .......... 74
State v. Gladden, 279 N.C. 566, 184 S.E.2d 249
(1971) 84
State v. Glenn, 198 N.C. 79, 150 S.E. 663 (1929) ............... 85
State v. Goldston, Wake County Super. Ct. No.
73-Cr-73020 (May 24, 1974) .............................................. 59
State v. Gooch, 94 N.C. 987 (1886) 89
State v. Goode, 249 N.C. 632, 107 S.E.2d 70
(1959) ............ 84
State v. Gordon, 241 N.C. 356, 85 S.E.2d 322
(1955) 69
State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957) .......... 80
State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953) _____ 47
State v. Griffin, 280 N.C. 142, 185 S.E.2d 149
(1971) ............... 63
State v. Hairston, 280 N.C. 220, 185 S.E.2d 633
(1972) ............................ 63
State v. Hall, 214 N.C. 639, 200 S.E. 375 (1939) ............... 79
State v. Hamby, 275 N.C. 674, 174 S.E.2d 385
(1970)............... ........ 90
State v. Hamby, 281 N.C. 743, 191 S.E.2d 66
0972) .............................. 18
State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d
159 (1973) ............................................................................. 72
State v. Hamlin, Wake County Super. Ct. No.
74-Cr-l 1895 (April 12, 1974) 58
State v. Hammonds, 216 N.C. 67, 3 S.E.2d 439
( I939) ............................................................................... 73,81
State v. Harris, Wake County Super. Ct. No.
73-Cr-76418 (Aug. 19, 1974) 58
State v. Harris, 223 N.C. 697, 28 S.E.2d 232 (1943) .......... 81
State v. Helms, 284 N.C. 508, 201 S.E.2d 850
0974) .................................................................................... 81
State v. Henderson, 285 N.C. 1, 203 S.E.2d 10
(1974), petition for cert, filed sub nom.
Henderson v. North Carolina, U.S.S.C. No.
73-6853 (June 8, 1974) ................................................ 18,50
State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954) .......... 63
State v. Hightower, 226 N.C. 62, 36 S.E.2d 649
(1946) .................................................................................... 69
State v. Hill, 20 N.C. 491 (1839) 87
State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844
(1974)
( i x)
Page
18
State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516
(1973) 81
State v. Jackson, 284 N.C. 383, 200 S.E.2d 596
(1973) ............................ 71,82,84,85
State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721
(1974) .......................................................................... 14,18,19
State v. Jarrott, 23 N.C. 76 (1840) ....................................... 49,87
State v. Jennings, 276 N.C. 157, 171 S.E.2d 447
(1970) ..................................................................... 84,86,87,88
State v. Johnson, 23 N.C. 354 (1840) 81,86,87
State v. Johnson, 278 N.C. 252, 179 S.E.2d 429
(1971) .................................................................. 84
State v. Johnson, 270 N.C. 215, 154 S.E.2d 48
(1967) 83
State v. Johnson, 218 N.C. 604, 12 S.E.2d 278
(1940) 79
State v. Leroy Johnson, Wake County Super. Ct.
No. 74-Cr-7160 (March 8, 1974) 58
State v. Otha Johnson, Wake County Super. Ct. No.
73-Cr-44188 (April 22, 1974) 59
State v. Jones, 249 N.C. 134, 105 S.E.2d 513 (1958)............... 58
State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971) .......... 73
State v. Kenneth Jones, Wake County Super. Ct.
No. 74-Cr-697 (September 16, 1974) 59
State v. Lacy Jones, Wake County Super. Ct. No.
73-Cr-698 (Sept. 16, 1974) ................................................ 59
State v. Kea, 256 N.C. 492, 124 S.E.2d 174 (1962) .......... 66
State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934) . . . . . 88
State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968) . . . 83,84
(x)
Page
State v. Knight, 248 N.C. 384, 103 S.E.2d 452
(1958) ..................... 62,63,64,77
State v. Lamm, 232 N.C. 402, 61 S,E.2d 188
(1950) .................... 72,73
State v. Locklear, 118 N.C. 1154, 24 S.E. 410
(1896) . ............. 68,90,94
State v. Loesch, 237 N.C. 611, 75 S.E.2d 654
(1953) ......................................... 47
State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959) ............. 64
State v. Marshall, 208 N.C. 127, 179 S.E. 427
(1935) 84,85
State v. Martin, Pa. Sup. Ct. No. 44 (March Term,
1974) ------- . . ............. .. . .................................... 22
State v. Matheson, 225 N.C. 109, 33 S.E.2d 590
(1945) 73
State v. Matthews, 142 N.C. 621, 55 S.E. 342 (1906) ____63,78
State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945) .......... 63
State v. McDonald, 249 N.C. 419, 106 S.E.2d 477
(1959) 85
State v. McDowell, 145 N.C. 563, 59 S.E. 690
(1907) .......... .. . ................................................................... 71
State v. McMillan, 233 N.C. 630, 65 S.E.2d 212
(1951) . 93
State v. Meares, 222 N.C. 436, 23 S.E.2d 311
(1942) .................................................................................... 82
State v. Mercer, 275 N.C. 108, 165 S.E.2d 328
(1969) 66,82
State v. Merrick, 171 N.C. 788, 88 S.E. 501 (1916) 64,80,87,89
State v. Miller, 112 N.C. 878, 17 S.E. 167 (1893) ................... 71
(xi)
Page
State v. Miller, 197 N.C. 445, 149 S.E. 590 (1929) _____ 72
State v. Miller, 281 N.C. 740, 190 S.E.2d 841
(1972) ............. 18
State v. Monk, No. 13, New Hanover County, Fall
Term, 1974 ............................................................................ 46
State v. Moore, 275 N.C. 198, 166 S.E.2d 652
(1969) . . .......................................................................... 65,66
State v. Morgan, 245 N.C. 215, 95 S.E.2d 507
(1956) . ......................................... 74
State v. Mosley, 213 N.C. 304, 195 S.E. 830 (1938) . . . 85,88
State v. Newsome, 195 N.C. 552, 143 S.E. 187
(1928) . . . . .......................................................................... 64
State v. Noell, 284 N.C. 670, 202 S.E.2d 750 ....................... 18
State v. Old, 272 N.C. 42, 157 S.E.2d 651 (1967) ............... 73
State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938) . . . 66,71
State v. Perry, 276 N.C. 339, 172 S.E.2d 541
(1970) ................................................................................ 70,73
State v. Perry, 209 N.C. 604, 184 S.E. 545 (1936) .......... 64
State v. Phillips, 264 N.C. 508, 142 S.E.2d 337
(1965) 64,71
State v. Phillips, 262 N.C. 723, 138 S.E.2d 626
(1964) .................................................................................. 88
State v. Poole, 285 N.C. 108, 203 S.E.2d 786
(1974) ............................................................................. 50,73
State v. Prince, 223 N.C. 392, 26 S.E.2d 875
(1943) ........................................................................ 71,82,83
State v. Propst, 274 N.C. 62, 161 S.E.2d 560
(1968) . . .................... 69,72,90
State v. Quick, 150 N.C. 820, 64 S.E. 168 (1909) ............... 78
Page
State v. Ramey, 273 N.C. 325, 160 S.E.2d 56
(1968) . . ............................................................. 86
( x i i i )
State v. Ramos, Wake County Super. Ct. No.
73-Cr-30623 (June 4, 1973) . . . ;...................................... 59
State v. Ratliff, 199 N.C. 9, 153 S.E. 605 (1930) ............... 79
State v. Reams, 277 N.C. 391, 178 S.E.2d 65
(1970) . . . . . . . . . . . . . . . . .................. 70,72,73
State v. Reynolds, 212 N.C. 37, 192 S.E. 871
(1937) ................................................................................... 74
State v. Rhodes, _____ Mont. _____ , 524 P.2d
1095 (1974) ................................................................ 17,21,39
State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899) . . . 66,73
State v. Richardson, 14 N.C. App. 86, 187 S.E.2d
435 (1972) ............................................................................. 82
State v. Riera, 276 N.C. 361, 172 S.E.2d 535
(1970) .................................................................................... 65
State v. Robbins, 275 N.C. 537, 169 S.E.2d 858
(1969) 69
State v. Robertson, 210 N.C. 266, 186 S.E. 247
(1936) 78
State v. Robertson, 166 N.C. 356, 81 S.E. 689
(1914) .................................................................................... 72
State v. Robinson, 213 N.C. 273, 195 S.E. 824
(1938) .......... 80,83,85
State v. Robinson, 188 N.C. 784, 125 S.E. 617
(1924) ............................................................................... 64,86
State v. Roseman, 279 N.C. 573, 184 S.E.2d 289
(1971) .................................................................................... 63
State v. Rowe, 155 N.C. 436, 71 S.E. 332 (1911) ............... 79
State v. Roy, 233 N.C. 558, 64 S.E.2d 840 (1951) . . . 48,80
State v. Rummage, 19 N.C. App. 239, 193 S.E.2d
475 (1972) ............................................................................ 74
State v. Rummage, 280 N.C. 51, 185 S.E.2d 221
(1971)
Page
85
State v. Russell, 233 N.C. 487, 64 S.E.2d 579
(1951) ....................................................................................... 74
State v. Sanders, 276 N.C. 598, 174 S.E.2d 487
(1970) , rev’d on other grounds, 403 U.S. 948
(1971) ....................................................................................... 72
State v. Santor, Wake County Super. Ct. No.
73-Cr-68725 (July 15, 1974) .............................................. 59
State v. Satterfield, 207 N.C. 118, 176 S.E. 466
(1934) .................................................................................... 63
State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955) ............ 63
State v. Sinclair, 263 La. 377, 268 So.2d 514
(1972) .................................................................................... 16
State v. Sizemore, 52 N.C. 206 (1 8 5 9 ) .................................... 88
State v. Smith, Del. Sup. Ct. No. 52, 1974 (July 31,
1 9 7 4 ) ................................... 21
State v. Smith, Wake County Super. Ct. No.
73-Cr-54092 (February 25, 1974) 59
State v. Smith, 221 N.C. 278, 20 S.E.2d 313 (1942) . 67,69,90
State v. Sparks, _____ N.C. ______, 207 S.E.2d712
(1974) ................................................................................... 18,71
State v. Speights, _____ S.C .______, 208 S.E.2d 43
(1974) ................................................................................... 17,21
State v. Spicer, 285 N.C. 274, 204 S.E.2d 641
(1974) .................................................................................... 46
State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909) 63
State v. Stephenson, Wake County Super. Ct. No.
73-Cr-27254 (April 29, 1974) 60
State v. Stitt, 146 N.C. 643, 61 S.E. 566 (1908) .................... 69
(xiv)
Page
State v. Streeton, 231 N.C. 301, 56 S.E,2d 649
(1949) ................................................................................ 67
State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924
(1949) .................... ......................... ........................ 74
State v. Taylor, 226 N.C. 286, 37 S.E.2d 901
(1946) 74
State v. Terrell, 212 N.C. 145, 193 S.E. 161 (1937) .......... 85
State v. Terry, 485 S.W.2d 3 (Mo. 1972) 16
State v. Thomas, 184 N.C. 757, 114 S.E. 834
(1922) ............... 81,86
State v. Thomas, 118 N.C. 1113, 24 S.E. 431
(1896) .................................................................................... 73
State v. Tilley, 18 N.C. App. 300, 196 S.E.2d 816
(1973) 75
State v. Todd, 264 N.C. 524, 142 S.E.2d 154
(1965) 64,82,84
State v. Turner, Wake County Super. Ct. No.
73-Cr-20787 (April 18, 1974) ......................................... 60
State v. Vann, 162 N.C. 534, 77 S.E. 295 (1913) ................. 71
State v. Van Landingham, 283 N.C. 589, 197
S.E.2d 539 (1973) ................................................................ 73
State v. Vestal, 283 N.C. 249, 195 S.E.2d 297
(1973) 79
State v. Waddell, 282 N.C. 431, 194 S.E.2d 19
(1973) ............................................................. 2,15,18,19,21,23
State v. Wagoner, 249 N.C. 637, -107 S.E.2d 83
(1959) .................................................................................... 65
State v. Walker, 173 N.C. 780, 92 S.E. 327 (1917) 73
State v. Walters, 275 N.C. 615, 170 S.E.2d 484
(1969) .................................................................................... 71
State v. Watkins, 283 N.C. 504, 196 S.E.2d 750
(1973) ................. 18,83,84
State v. Weatherspoon, Wake County Super. Ct. No.
73-Cr-38571 (Oct. 12, 1973) ................................................ 59
(XV)
Page
State v. Webb, 20 N.C. App. 199, 200 S.E.2d 840
(1973) ...................................... .............................................80
State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68
(1972) 18
State v. Will, 18 N.C. 121 (1834) .......................................... 88
State v. Williams, 185 N.C. 685, 116 S.E. 736
(1923) ....................................................................................... 80
State v. Winford, 279 N.C. 58, 181 S.E.2d 423
(1971) ............................................................................... 82>84
State v. Wingler, 238 N.C. 485, 78 S.E.2d 303
(1953) .................................................................................... 74
State v. Winkle, Utah Sup. Ct. No. 13280 (Nov. 18,
1974) 22
State v. Woods, 278 N.C. 210, 179 S.E.2d 358
(1971) 86
State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129
(1971) .................. ............................................................... • 64
State v. Wright, Wake County Super. Ct. No.
73-Cr-41760 (Nov. 7, 1974) 59
State v. Wynn, 278 N.C. 513, 180 S.E.2d 135
(1971) .................................................................................... 86
State v. Yarborough, 8 N.C. 78 (1820) ................................. 86
State v. Yates, 155 N.C. 450, 71 S.E. 317 (1911) ............... 74
Stewart v. Massachusetts, 408 U.S. 845 (1972) ..................... 16
Thomas v. Leeke, 403 U.S. 948 (1971) ................................. 24
Tiger v. Texas, 310 U.S. 141 (1940) 114
Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969) ................................. 120
Tollett v. Henderson, 411 U.S. 258 (1973) ............................ 56
Trop v. Dulles, 356 U.S. 86 (1958) ......................26,103,106,115
( x v i )
Page
( x v i i )
United States v. Calandra, 414 U.S. 338 (1974) ............... .. 47
United States v. Carolene Products Co., 304 U.S.
144 (1938) ..................................................................... 106,107
United States v. Jackson, 390 U.S. 570 (1968) ..................23,61
United States v. N ixon,_____ U .S ._____ , 94 S.Ct.
3090 (1974) .......................................................................... 106
Wktts v. Indiana, 338 U.S. 49 (1 9 4 9 ) ...................................... 94
Weems v. United States, 217 U.S. 349 (1910)28,103,105,109,110
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943) ........................................................... 104
Williams v. Georgia, 349 U.S. 375 (1955) ............................... 117
Winters v. New York, 333 U.S. 507 (1948) .......................... 104
Witherspoon v. Illinois, 391 U.S. 510 (1968) . . . 25,76,77,117
Yick Wo v. Hopkins, 118 U.S. 356 (1 8 8 6 ) ............................... 53
Statutes:
1 U.S.C. §XXXVII-XXXVIII (1 9 6 4 ) .......................................... 35
28 U.S.C. § 1257(3) (1970) ........................................................ 2
Ark. Code Ann., §41-4714 (1973 Supp.) ................................. 96
California Constitution, Art 5, §8 (1974 West Cum.
Supp.) ...................................................................................... 96
Conn. Gen. Stat. Rev. § 18-24a (1970) ......................................96
Delaware Constitution, Art. 7, § 1 ..............................................96
Delaware Declaration of Rights of 1776, § 16 (1
Del. Code Ann. § 83 (1953)) .............................................. 35
Ga. Code § 27-2534,1(1) (7) (1973) ...................................... 127
Idaho Constitution, Art. 4, § 7 ................................................ 96
Mass. Gen. Laws Ann. c. 265 § 2 ........................................... 40
Nebraska Constitution, Art. 4, § 13 ......................................... 96
New Mex. Stat. Ann. §40A-2-l (2d Repl. Vol. 1972) .......... 17
New Mex. Stat. Ann. §40A-29-2 (1973 Supp.) .................... 17
Page
( x v i i i )
New Mex. Stat. Ann. §40A-29-2.1 (1969 Supp.) .................... 17
New York Constitution, Art. 4, §4 ......................................... 96
N.C. Acts 1893, c. 85 ................................................................ 66
North Carolina Constitution, Art. Ill, § 5(6) .......................... 95
N.C. Gen Stat. §7A-61 (1973 cum. su p p .) ................................. 46
N.C. Gen. Stat. § 14-17 (repl. vol. 1969) 2,19,20,62,64,65
N.C. Gen Stat. § 14-18 (repl. vol. 1969) ............................ 62,66
N.C. Gen. Stat. § 14-21 (repl. vol. 1969) 19
N.C. Gen. Stat. § 14-52 (repl. vol. 1969) 19,20
N.C. Gen. Stat. § 14-58 (repl. vol. 1969) 19,20
N.C. Gen. Stat. § 15-169 (repl. vol. 1969) 80
N.C. Gen. Stat. §15-187 (repl. vol. 1969) 7
N.C. Gen. Stat. § 15-188 (repl. vol. 1969) 62,79
N.C. Gen. Stat. § 15-170 (repl. vol. 1969) 2
N.C. Gen. Stat. § 15-172 (repl. vol. 1969) 64
Pennsylvania Constitution, Art. 4, § 9 .................................... 96
Rhode Island Gen. Laws § 11-23-2 (1969) ............................ 17
Rhode Island Public Law 1973 (Ex. Sess.), Ch. 280,
§1 ......................................................................................... 17
United States Constitution, Eighth Amonment .................. passim
United States Constitution, Fourteenth A m endm ent.....................2
Utah Code Ann. §77-62-2 (1968) ........................................... 96
Utah Constitution, Art. 7, § 12 ................................................. 96
Other Authorities:
Allen, Capital Punishment: Your Protection and
Mine, in BEDAU, THE DEATH PENALTY IN
AMERICA 135 (rev. ed. 1967) ........................................... 128
Alschuler, The Prosecutor’s Role in Plea Bargaining,
36 U. CHI. L. REV. 50 (1966) ......................................... 55
Ancel, The Problem o f the Death Penalty, in
SELLIN, ed., CAPITAL PUNISHMENT 3 (1967) . . 122,139
1 ANNALS OF CONGRESS (1st Cong., 1st Sess.
1789)
Page
38,39
( x i x )
Auerbach, Common Myths About Capital Criminals
and Their Victims, 3 GEORGIA JOURNAL OF
CORRECTIONS 41 (1974) .......................... .................... ,137
BAILYN, THE IDEOLOGICAL ORIGINS OF THE
AMERICAN REVOLUTION (1967) ................................ 37
Baker & DeLong, The Prosecuting Attorney, 24 J,
CRIM. L. & CRIM. 1025 (1934) ...................................... 48
BARNES & TEETERS, NEW HORIZONS IN
CRIMINOLOGY (3rd ed. 1959) ......................................... 135
Barzun, In Favor o f Capital Punishment, 31 AM.
SCHOLAR 181 (1962) ........................................................ 119
BAXTER, BASIC DOCUMENTS OF ENGLISH
HISTORY 159 (1968) 28
Bedau, A Social Philosopher Looks at the Death
Penalty, 123 AM. J. PSYCHIATRY 1361 (1967) .......... 137
Bedau, Capital Punishment in Oregon, 1903-1964,45
ORE. L. REV. 1 (1 9 6 5 ) ........................................................ 138
Bedau, The Courts, The Constitution, and Capital
Punishment, 1968 UTAH L. REV. 201 .................... 123
BEDAU, THE DEATH PENALTY IN AMERICA
(rev. ed. 1967) 24,91,118,122,123,136
Bedau, Death Sentences In New Jersey 1907-1960,
19 RUTGERS L. REV. 1 (1963) ....................... 55,91,97,122,
136,138
Bedau, The Issue o f Capital Punishment, 53
CURRENT HISTORY (No. 312) 82 (Aug.
1967) ............................................................................. . . . 1 1 8
BEHRE, A BRIEF HISTORY OF CAPITAL
PUNISHMENT IN NORTH CAROLINA (N.C.
Dept, of Corrections 1973) ........................................... .. . 98
Bennett, Delaware Abolishes Capital Punishment, 49
J. CRIM. L., CRIM. & POL. SCI. 156(1958) .................... 91
Bennett, A Historic Move: Delaware Abolishes
Capital Punishment, 44 A.B.A.J. 1053 (1958) .................. 91
32 BIENNIAL REPORT OF THE ATTORNEY
GENERAL OF THE STATE OF NORTH
CAROLINA 1952-1954 (1954)
Page
51
33 BIENNIAL REPORT OF THE ATTORNEY
GENERAL OF THE STATE OF NORTH
CAROLINA 1954-1956 (1 9 5 6 )........................................... 51
BLACK, CAPITAL PUNISHMENT: THE
INEVITABILITY OF CAPRICE AND MISTAKE
(1974) .................. 42,56,57,65,75,76,81,89,100,101,108,116
Black, Crisis in Capital Punishment, 31 MD. L.
REV. 289 (1971) 75,108
4 BLACKSTONE, COMMENTARIES ON THE
LAWS OF ENGLAND (1st ed. 1769) ............................... 37
BLOCK, AND MAY GOD HAVE MERCY...
(1962) .................................................................................... 108
BORCHARD, CONVICTING THE INNOCENT
(1932) .................................................................................... 108
Bluestone & McGahee, Reaction to Extreme Stress:
Impending Death by Execution, 119 AM. J.
PSYCHIATRY 393 (1962) ................................................. 111
BOK, STAR WORMWOOD (1959) 119
BOWERS, EXECUTIONS IN AMERICA (1974) 126,129,130,137
Brief Amicus Curiae of the Committee of Psy
chiatrists for Evaluation of the Death Penalty, in
Aikens v. California, 406 U.S. 813 [No. 68-5027] 129
Brief for the N.A.A.C.P. Legal Defense and
Educational Fund, Inc., and the National Office
for the Rights of the Indigent, as Amici Curiae, in
Boykin v. Alabama, 395 U.S. 238 (1969) [O.T.
1968, No. 642] 138
Browning, The New Death Penalty Statutes: Per
petuating a Costly Myth, 9 GONZAGA L. REV.
651 (1974) ............................................................................. 45
BROWNING, ENGLISH HISTORICAL DOCU
MENTS, 1660-1714 (1953) ...............................................28,31
BYE, CAPITAL PUNISHMENT IN THE UNITED
STATES (1919) 135
Caldwell, Why Is the Death Penalty Retained? 284
ANNALS 45 (1952) ............................................................... H 9
CALVERT, CAPITAL PUNISHMENT IN THE
TWENTIETH CENTURY (1927) ........................................ I 19
(xx)
Page
Camus, Reflections on the Guillotine, in CAMUS,
RESISTANCE, REBELLION AND DEATH 131
(Mod. Lib. 1963) .................. .............. .. 107,110,139
CANADA, HOUSE OF COMMONS, IV DEBATES,
27th Pari, 2d Sess. (16 Eliz. II), 4370 (Nov. 16,
1967) 119
CARDOZO, LAW AND LITERATURE (1931) .................... 76
Carney & Fuller, A Study o f Plea Bargaining in
Murder Cases in Massachusetts, 3 SUFF. L.
REV. 292 (1969) ................................................................ 54
Carter & Smith, The Death Penalty in California: A
Statistical and Composite Portrait, 15 CRIME
ANDDELINQ. 132(1969) . . 1 3 8
Chambliss, Types o f Deviance and the Effectiveness
o f Legal Sanctions 1967, WISC. L. REV. 703 .................. 130
CHESSMAN, TRIAL BY ORDEAL, 1955 . . 113
CLARK, CRIME IN AMERICA (1970) 108,136,137
CLARK, THE LATER STUARTS, 1660-1714
(1934) .................................................................................... 31
Coakley, Capital Punishment, 1 AM. CRIM. L. Q.
27 (1963) ............................................................................... 119
Cohen, The Need for Capital Punishment, 20
CHITTY’S L. J. 86 (1972) ................................................ 119
Coley, A Letter From Death Row, 3 JURIS
DOCTOR 19 (Dec. 1973) ................................................... 113
Controversy Over Capital Punishment: Pro & Con,
52 CONG. DIGEST 1 (1974) 119
Coon, The Indictment Process and Reduced
Charges, 40 N.Y. ST. BAR J. 434 (1968) .......................... 54
DAVIS, DISCRETIONARY JUSTICE: A PRELIM
INARY INQUIRY (1971) ............................................. 45
The Death Penalty in the United States, 9
GREENBAG 129 (1897) 91
DeMent, A Plea for the Condemned, 29 ALA.
LAWYER 440 (1968) 43
( x x i )
Page
( x x i i )
DiSalle, Trends in the Abolition o f Capital Punish
ment, 1 U. TOLEDO L. REV. 1 (1969) .......................... 44
DOSTOEVSKY, THE IDIOT (Mod. Lib. 1935) ....................... 113
DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN
(1962) ................................................................ 43,113,135,137
Editorial, Genesis and Capital Punishment, 66
CHRISTIAN CENTURY 335 (March 28, 1973) .......... 119
Ehrmann, For Whom the Chair Waits, 26 FED.
PROB. No. 1 14(1962) 119
2 ELLIOT’S DEBATES (2d ed. 1863) ....................... 38
3 ELLIOT’S DEBATES (2d ed. 1863) .................. 38,104
FATTAH, A STUDY OF THE DETERRENT
EFFECT OF CAPITAL PUNISHMENT WITH
SPECIAL REFERENCE TO THE CANADIAN
SITUATION Department Of The Solicitor
General, Canada, Research Centre Report [No.] 2
(1972) ................................................................................... .130
Ferguson, Formulation o f Enforcement Policy: An
Anatomy o f the Prosecutor’s Discretion Prior to
Accusation, 11 RUTGERS L. REV. 507 (1957) .......... 48
Filler, Movements to Abolish the Death Penalty in
the United States, 284 ANNALS 124 (1952) .................. 135
Gallemore & Panton, Inmate Response to Lengthy
Death Row Confinement, 129 AM. J. PSYCHIA
TRY 81 (1972) .......................................................................112
Gardner, Helping the Innocent, 17 U.C.L.A. L.
REV. 535 (1970) 108
Garfinkel, Research Note on Inter- and Intra-Racial
Homicides, 27 SOCIAL FORCES 369 (1949) 136,137
Glazer & Zeigler, Use o f the Death Penalty v. Outrage
at Murder, 20 CRIME AND DELINQUENCY 333
(1974) ...................................................................................... I30
Gold, A Psychiatric Review o f Capital Punishment, 6
J. FORENSIC SCI. 465 (1961) ..............................................I35
Goldberg, Equality and Governmental Action, 39
N.Y.U.L. REV. 205 (1964) 138
Page
( x x i i i )
GOLDSTEIN, THE INSANITY DEFENSE (1967) . . . . . . . 81
Goldstein, The State and the Accused: Balance o f
Advantage in Criminal Procedure, 69 YALE L.
J. 1149 (1960) ................................. ....................... . . . . . 4 7
Gottlieb, Capital Punishment, 15 CRIME &
DELINQ. 1 (1969) ........................................................ .. . 135
GOWERS, A LIFE FOR A LIFE (1956) ............................... 119
Grariucci, “Nor Cruel and Unusual Punishments
Inflicted:” The Original Meaning, 57 CALIF. L.
REV. 839 (1969) ............................................................. 30,36
Hamer, The Execution o f Robert H. White by
Hydrocyanic Acid Gas, 95 J. AM. MED. ASSN.
661 (1930) ............................................................................ 113
Hartung, Trends in the Use o f Capital Punishment
284 ANNALS 9 (1952) ............ 136
Heath, Plea Bargaining - Justice O ff the Record, 9
WASHBURN U. L. REV. 430 (1970) ............................... 60
Hogan, Murder by Perjury, 30 FORDHAM L. REV.
285 (1961) ............................................................................ 108
Holmes, The Path o f the Law, 10 HARV. L. REV.
457 (1897) ............................................................................ 25
Hook, The Death Sentence, in BEDAU, THE
DEATH PENALTY IN AMERICA (rev. ed.
1967) 119
Hoover, Statements in Favor o f the Death Penalty,
in BEDAU, THE DEATH PENALTY IN
AMERICA (rev. ed. 1967) ................................................... 128
HUGHES & FRIES, CROWN AND PARLIAMENT
IN TUDOR-STUART ENGLAND 291 (1959) 29
Johnson, The Negro and Crime, 217 ANNALS 93
(1941) ......................................................................................136
Johnson, Selective Factors in Capital Punishment,
36 SOCIAL FORCES, 165 (1957) ............... 97,136,138
Kakoulis, The Myths o f Capital Punishment,
REPORT NO. CR-13, CENTER FOR RESPON
S I BL E PSYCHOLOGY, BROOKLYN
COLLEGE, C.U.N.Y. (1974)
Page
130
( x x i v )
KALVEN & ZEISEL, THE AMERICAN JURY
(1966) ........................................................................ 57,91,133
Kazis, Jewish Tradition and Capital Punishment, 6
TRENDS 6 (Nov.-Dee. 1973) 119
KENYON, THE STUART CONSTITUTION,
1603-1688(1966)................................................................... 29
KEVORKIAN, MEDICAL RESEARCH AND THE
DEATH PENALTY (1960) ................................................. 113
Kinney, In Defense o f Capital Punishment, 54 KY.
L. J. 742 (1966) ................................................................... 119
KOESTLER, REFLECTIONS ON HANGING
(Amer. ed. 1957) ......................................................119,122,135
Knowlton, Problems o f Jury Discretion in Capital
Cases, 101 U. PA. L. REV. 1009 (1953) .......................... 90
Koeninger, Capital Punishment in Texas, 1924-1968,
15 CRIME &DELINQ. 62(1969) ...................................... 138
LANDON, THE TRIUMPH OF THE LAWYERS:
THEIR ROLE IN ENGLISH POLITICS
1678-1689 (1969) ................................................................ 31
Lavinsky, Executive Clemency: Study o f a Deci
sional Problem Arising in the Terminal Stages o f
the Criminal Process, 42 CHI.-KENT L. REV. 13
(1965) .............................................................................. 98,100
LA WES, LIFE AND DEATH IN SING SING (1928) 138
LAWES, TWENTY THOUSAND YEARS IN SING
SING (1932) .......................................................................43,138
LEVINE (ed.), DEATH ROW - AN AFFIR
MATION OF LIFE (1972) ................................................. 113
LEVY, ORIGINS OF THE FIFTH AMENDMENT
(1968) .................................................................................... 37
LUMMUS, THE TRIAL JUDGE (1937) ................................. 55
2 MACAULAY, THE HISTORY OF ENGLAND
FROM THE ACCESSION OF JAMES II (1850) 29
3 MACAULAY, THE HISTORY OF ENGLAND
FROM THE ACCESSION OF JAMES II (1850) . . . 31,34
Page
( x x v )
Mackey, The Inutility o f Mandatory Capital Punish
ment: An Historical Note, 54 B.U.L.REV. 32
(1974) . .......................................................................... 91,133
MATTICK, THE UNEXAMINED DEATH (1966) .................. 136
McCafferty, Major Trends in the Use o f Capital
Punishment, 25 FED. PROB. 15 No. 3 (1 9 6 1 ) ............... 91
McDermott, Some Crimes Demand the Death
Penalty, 11 POLICE 4 (Mar.-April 1967) .......................119
McGee, Capital Punishment as Seen by a Correct
ional Administrator, 28 FED. PROB. No. 2 11
(1964) ............................................................................ 119,138
MILLER, PROSECUTION: THE DECISION TO
CHARGE A SUSPECT WITH A CRIME (1969) . . . 48,52
Milligan, A Protestant’s View o f the Death Penalty,
in BEDAU, THE DEATH PENALTY IN
AMERICA 175 (Rev. ed. 1967) ......................................... 119
Mills, The Prosecutor: Charging and “Bargaining,”
1966 U. ILL. L. F. 511 ..................................................... 48
MOLEY, POLITICS AND CRIMINAL PROSE
CUTION (1929) 45
MORISON (ed.), RECORDS OF THE SUFFOLK
COUNTY COURT, 1671-1680 (1933) 35
NATIONAL COMMISSION ON LAW OBSERV
ANCE AND ENFORCEMENT, REPORT ON
PROSECUTION (1931) 45
2 NATIONAL COMMISSION ON REFORM OF
FEDERAL CRIMINAL LAWS, WORKING
PAPERS (G.P.O. 1970) 118
National Council on Crime and Delinquency, Board
of Trustees, Policy Statement on Capital Punish
ment, 10 CRIME &DELINQ. 105 (1964) ......................... 119
Neithercutt, Parole Violation Patterns and Com
mitment Offense, 9 J. RESEARCH CRIME &
DELINQ. 87 (1972) ............................................................. 1:4
NEWMAN, CONVICTION: THE DETERMINATION
OF GUILT OR INNOCENCE WITHOUT TRIAL
('19661 41,56,57,60,61
Page
( x x v i )
New York Times, Dec. 12, 1974 ............................................ 115
Note, Executive Gemency in Capital Cases, 39
N.Y.U. L. REV. 136 (1964) ................................. .. 95,97,99
Note, Mandatory Death: State v. Waddell, 4 N.C.
CENT. L. J. 292 (1974) ...................................................... 45
Note, Mental Suffering Under Sentence o f Death: A
Cruel and Unusual Punishment, 57 IOWA L.
REV. 814 (1972) 111,112
Note, Private Prosecution: A Remedy for District
Attorneys’ Unwarranted Inaction, 65 YALE L.
J. 209 (1955) ........................................................................ 48
Note, Prosecutorial Discretion, 21 DePAUL L. REV.
485 (1971-1972) .................................................................. 48
Note, Prosecutor’s Discretion, 103 U. PA. L. REV.
1057 (1955) .................... 48
Note, The Two-Trial System in Capital Cases, 39
N.Y.U. L. REV. 50 (1964) ................................................. 90
Ordinance of 1787, The Northwest Territorial
Government, Art. II (Confederation Congress,
July 13, 1787) 35
5 PARL. HIST. ENG. (1688-1704) (Cobbett ed.
Page
1 8 0 9 ) ............................................................. 28,30,31,32,33,34
PENNSYLVANIA, JOINT LEGISLATIVE COM
MITTEE ON CAPITAL PUNISHMENT, REPORT
(1961) ....................................................................................... 136
Petition for Writ of Certiorari, in Eberheart v.
Georgia, No. 74-5174 (filed August 19, 1974) .................. 131
Phelps, Rhode Island’s Threat Against Murder, 18 J.
CRIM. L. & CRIM. 552 (1928) ......................................... 91
PIERREPOINT, EXECUTIONER: PIERREPOINT
(1974) .................................................................................... 44
II PLOSCOWE (ed.), MANUAL FOR PROS
ECUTING ATTORNEYS (1956) ...................................... 48
Poliak, The Errors o f Justice, 284 THE ANNALS
115 (1952) .......................................................................... 108
15 POPULAR GOVERNMENT (January 1949) 93
( x x v i i )
PRESIDENT’S COMMISSION ON LAW ENFORCE
MENT AND ADMINISTRATION OF JUSTICE,
REPORT: THE CHALLENGE OF CRIME IN A
FREE SOCIETY (G.PO. 1967) ............... ........................... 136
PRESIDENT’S COMMISSION ON LAW ENFORCE
MENT AND ADMINISTRATION OF JUSTICE,
TASK FORCE REPORT: THE COURTS (1967) .......... 54
RADZINOWICZ, A HISTORY OF ENGLISH
CRIMINAL LAW AND ITS ADMINISTRATION
FROM 1750 (1948) ..................................................... 91,116
Rosenbloom, Report o f a Case o f Chronic Hydro
cyanic Acid Poisoning, 8 J. LAB. & CLIN.
MED. 258 (1923) ............................................................... 113
Rosett, Discretion, Severity and Legality in Criminal
Justice, 46 SO. CALIF. L. REV. 12 (1972) .......... 41,52,58
1 ROWLAND, LIFE OF GEORGE MASON (1892) .......... 38
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IN THE
Supreme Court of tljr ®niteb States.
OCTOBER TERM 1974
No. 73-7031
JESSE THURMAN FOWLER,
Petitioner,
v.
NORTH CAROLINA,
R espondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF NORTH CAROLINA
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the Supreme Court of North Carolina
affirming petitioner’s conviction of first degree murder
and sentence of death by lethal gas is reported at 285
N.C. 90, 203 S.E.2d 803 (A. 88-104). The oral opinion
2
of the Superior Court of Wake County finding
petitioner guilty and sentencing him to die is
unreported, and appears at A. 5-7.
JURISDICTION
The jurisdiction of this Court rests upon 28 U.S.C.
§ 1257 (3)( 1970), the petitioner having asserted below
and asserting here a deprivation of rights secured by the
Constitution of the United States.
The judgement of the Supreme Court of North
Carolina was entered on April 22, 1974. (A. 104-105).
The petition for certiorari was filed on July 9, 1974,
and was granted on October 29, 1974. (A. 105).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Eighth Amendment to the
Constitution of the United States, which provides:
“Excessive bail shall not be required nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.”
It also involves the Due Process Clause of the
Fourteenth Amendment.
It further involves N.C. Gen. Stat. § § 14-17, 15-187,
15-188 (repl. vol. 1969), as construed in S ta te v.
Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), which
provide:
“ § 14-17. M urder in the fir s t and second degree
defined; pu n ish m en t .—A murder which shall be
3
perpetrated by means of poison, lying in wait,
imprisonment, starving, torture, or by any other
kind of willful, deliberate and premeditated killing,
or which shall be committed in the perpetration or
attempt to perpetrate any arson, rape, robbery,
burglary or other felony, shall be deemed to be
murder in the first degree and shall be punished
with death: Provided, if at the time of rendering
its verdict in open court, the jury shall so
recommend the punishment shall be imprisonment
for life in the State’s prison, and the court shall so
instruct the jury. All other kinds of murder shall
be deemed murder in the second degree, and shall
be punished with imprisonment of not less than
two nor more than thirty years in the State’s
prison.
§ 15-188. M anner and place o f e xe c u tio n .—The
mode of executing a death sentence must in every
case be by causing the convict or felon to inhale
lethal gas of sufficient quantity to cause death,
and the administration of such lethal gas must be
continued until such convict or felon is dead; and
when any person, convict or felon shall be
sentenced by any court of the State having
competent jurisdiction to be so executed, such
punishment shall only be inflicted within a
permanent death chamber which the super
intendent of the State penitentiary is hereby
authorized and directed to provide within the walls
of the North Carolina penitentiary at Raleigh,
North Carolina. The superintendent of the State
penitentiary shall also cause to be provided, in
conformity with this article and approved by the
Governor and Council of State, the necessary
applicances for the infliction of the punishment of
death in accordance with the requirements of this
article.”
4
QUESTION PRESENTED
Does the imposition and carrying out of the
sentence of death for the crime of murder under the
law of North Carolina violate the Eighth or Fourteenth
Amendment to the Constitution of the United States?
STATEMENT OF THE CASE
Following a jury trial in the Superior Court of Wake
County, petitioner Jesse Thurman Fowler, a 24-year old
black man (A. 3), was sentenced on September 27,
1973, to die for the first degree murder of an
acquaintance, Mr. John Griffin.
This July 1, 1973, shooting grew out of an argument
between Griffin and petitioner over a dice game and a
fist fight earlier in the day. The two men were
long-time friends who “were rather well acquainted”
and who “partied together most of the time.” (A. 16).
They had lived together in Washington, D.C., during
1969, and petitioner had gotten a job for Griffin.
(Ib id .).1 Witnesses for both the State and petitioner
'Petitioner described their relationship:
“I have been knowing John Griffin since about ’60. I met
him in Raleigh. I knew him well when I went to
Washington, D.C. in 1969; we socialized together . . . . John
came up to Washington and stayed with me for about three
or four months. I got him a job at the same place I was
working in General Maintenance — cleaning apartments and
cutting grass. During the two years I have been back in
Raleigh I have seen him several times off and on.” (A. 51).
5
testified that Griffin had a reputation for contentious
ness.2
On the day of the altercations which led to the
shooting, a fishing expedition had been planned which
never materialized. (A. 34-35). That morning, petitioner
2 One Johnny Dolby, called by the State, testified that
“ [s]ome folks say John [Griffin] will knock you in the head if
you turn your back (A. 16), and added that “when he started to
drinking, John Griffin had a big mouth” (A. 17). Sylvester Jones,
testifying for the defense, gave a similar description:
“Q- [defense counsel] You indicated in response to the
solicitor’s question - he asked you had you ever had a
fight with John Griffin and you said not exactly. What sort
of conflict, if any, had you ever had with John Griffin?
A. We had an argument. I don’t know if he was jiving or
serious or what, you know. Seem like most of the guys
that I hang around with, be around my house at the time,
something will be done and say something. We don’t know
if they want to fight or what. John Griffin and I had
arguments, over money, over girls — things like that. Like
he did get in a lot of arguments. Like I said, I don’t know
if he was serious or what, you know. Like you can half
understand. You don’t know if he is serious at times or
what, you know. He like to talk a whole lot. He would
shoot a lot of bull. I was not afraid of John Griffin.
Q. Did you take much of what he said seriously?
A. All depends on what, on how I was. If I was sober, I
would look at him and laugh but if I had been drinking
and half mad myself, I didn’t take it.” (A. 42).
Another defense witness, Charles Gene Rogers, asserted:
“John Griffin was prone to get involved in fights. I have
been knowing John Griffin a pretty good while. He had a
lot of fights and a lot of arguments. Well, I would say he
could cause some danger, he had a big mouth. Well, I
didn t take seriously what he said because I have been
knowing John. I know that he always runs off at the
mouth and continues to get whopped a lot by his mouth.”
(A. 47).
6
had been drinking rum and scotch at the house of one
Wilbert Carter (A. 52), and then had joined in a
basketball game. When the game broke up, petitioner,
Griffin, one Sylvester Jones, and several other persons
went to Jones’ house where they began “drinking beer”
and “shooting dice for money.” (A. 38). Jones left the
game to go to the bathroom and asked petitioner to
watch his ten dollar bill; when Jones returned, the bill
was gone, and he twice demanded to know where his
money was. Jones then stood up and declared, “I
wasn’t playing. I want to know where my money was.”
{Ibid.). Griffin said nothing, and petitioner told him to
give Jones his money. {Ibid.). Griffin remarked that he
“didn’t have to steal” (A. 39), returned the ten dollar bill
to Jones (A. 38-39), and the game continued without
further incident. (A. 41).
During the afternoon, petitioner left the dice game
and went to the King’s Lounge, where he spent a few
hours with his wife and a friend, drinking beer and
dozing. (A. 43, 45, 53-54). Griffin and Jones entered
the King’s Lounge, and began drinking together at a
table. When petitioner went to play the jukebox,
Griffin called him over and told him “if he pulled that
shit like he pulled this morning, that he was going to
kick his ass.” (A. 39). Petitioner replied that Griffin
“wasn’t going to do nothing to him,” and Griffin
invited him outside. {Ibid.). Sylvester Jones testified:
“When John invited [petitioner] . . . out, John
went out the door first. [Petitioner] . . . came
behind. When they got outside, John turned around
and hit [petitioner] . . . and knocked him down. I
was the third one to go outside. John Griffin hit
[petitioner] . . . in the face somewhere. When he
7
knocked him down, I don’t know if he kneed him
or kicked him, but his nose started bleeding then.
That is when I broke it up. [Petitioner] . . . went
on the side of the building. I don’t know where he
went. I didn’t see him no more. John Griffin came
up to me then and asked me for my pistol. He
knew that I had a pistol. At the time, I did not
have it on me. So I told him, you know, I
couldn’t do that.” (A. 39-40). 3
3 Jones also testified that petitioner “said nothing to John to
make John think that he needed to have a gun, after I broke the
fight up.” (A. 42). Another witness to the fight, Charles Gene
Rogers, testified:
“ . . . I saw John Griffin turn around and it appears that he
hit somebody. When I got up close, he was down on him
with his knee, seemed like he kneed him, too, after he hit
him and so I didn’t stop to see what it was. I was going to
my car and a fellow pulled John Griffin off of this fellow
but at the time I didn’t know it was Huck [petitioner]. I
didn’t know Huck was on the ground because I couldn’t
see who John Griffin hit. Then as he was pulling him,
Huck went around the building holding his dead down,
which I still didn’t know it was him and then John Griffin
told the fellow that had pulled him up to let him have a
pistol that he was going to kill - well, he used some foul
language at the time and he asked him a couple of times
for his pistol. So I got in my car and as I was going around
the King’s Lounge, going out, I seen that it was Huck.
Then I recognized it was Huck and 1 told him, I said, ‘Man,
you better go ahead on because John Griffin is trying to
get a pistol to kill you.’ ” (A. 46).
Another witness to the fight, James McIntosh, gave a similar
description:
“Well, they were coming out of the door and I was trying
to get in. So all of a sudden — John Griffin hit him
[petitioner].” (A. 45).
Petitioner also testified that Griffin hit him in the face just as
he walked out the door. (A. 54).
8
Petitioner left the King’s Lounge, stopped at his
home briefly, and then set out to see his sister-in-law.
(A. 55). Shortly thereafter, Johnny Dolby, a nephew of
Griffin’s, stopped his car and picked petitioner up.
(A. 13, 48). When Dolby remarked upon petitioner’s
bloody shirt, petitioner replied that he had been in a
fight with John Griffin. (A. 13). Dolby testified that
petitioner appeared to have been drinking and that his
eyes were red. (A. 15). As they drove along Branch
Street, they observed Griffin and two of his daughters
talking to Mrs. Mary Raines; although neither Dolby
nor petitioner called to him, Griffin walked toward
them and Dolby stopped the car in the street. (A. 17).
Griffin “snatched the door of the car open,” but closed
it again after Dolby remonstrated with him. (A. 14).
Griffin declared to petitioner, “I don’t want to fight
you no more. I want you to go home” {ibid.), and
petitioner said nothing (A. 17). Dolby concluded that
this was simply “big talk” on Griffin’s part (A. 49); he
testified that although he did not know whether Griffin
had been drinking, “ [i]t sounded like he might have
been” (A. 17). Petitioner then asked Dolby to drive him
home (A. 14), but after Dolby had driven about half a
block, petitioner had him stop, and petitioner left the
car and walked back in the direction of Griffin {ibid.).
Eyewitness accounts of what happened next differ.
Mrs. Mary Raines, who had been conversing with
Griffin when Dolby’s car stopped on Branch Street
heard Griffin say to a man in the car “I am tired of
you all bugging me.” (A. 9). A few minutes after the
car drove away, she testified that two men came
running up from the direction in which the car had
gone and that one of them fired two shots at Griffin
9
“and then I heard the gun say ‘Click, click.’ ” (A. 9).4
Mrs. Raines did not know the men in the car, although
she assumed they were Griffin’s “friends” (A. 9), and
she could not identify petitioner as the person who did
the shooting (A. 10).
An acquaintance of petitioner’s, Charles McCoy,
testified that as he was walking to his home on Branch
Street at about dusk on July 1, he heard Griffin declare
to petitioner and another man in a car, “take him on
home before I make him use what he has in his
pocket.” (A. 20). A few minutes later, McCoy noticed
petitioner walking along Branch Street from the
direction in which the car had driven away. He testified
that “I think [petitioner] . . . stopped [Griffin’s
daughter] . . . and asked where was John [Griffin].”
(A. 19). McCoy, who was walking toward petitioner,
felt someone bump him from behind and saw that
Griffin was standing or crouching behind him. He then
observed petitioner, who was three to four feet away
(ibid.), step to the side and fire a pistol twice at
Griffin. McCoy, who sustained powder bums on his left
hand, saw petitioner walk away, as Griffin stumbled
down the embankment to the apartment below. (Ibid.).
Griffin’s nine-year old daughter, Paula, testified that
shortly before the shooting, petitioner had walked up
to her and asked her where her father was. When she
told him she didn’t know, she saw him fire two shots
at Griffin: “ [a]t the time that Jesse stepped off to the
side [to shoot], Daddy was coming up close behind
4 There was no other testimony concerning the identity of the
second man who, according to Mrs. Raines, accompanied the
armed man.
10
McCoy.” (A. 33). Griffin’s eleven-year old daughter,
Jonice, also testified to seeing petitioner fire two shots
at Griffin; just before the shooting, she observed Griffin
“hiding” (A. 31) behind McCoy and advancing toward
petitioner:
“I saw my father hiding behind McCoy. McCoy
was walking toward his house. My father was
walking behind him, crouched down . . . . I saw
my father get behind Mr. McCoy when Jesse came
out of the car . . . . My father got behind McCoy,
and started tipping behind him.” (A. 32).5
After the shooting,6 petitioner walked away,
stopping at the King’s Lounge for a drink (A. 59); he
returned home, then talked to Sylvester Jones, stating
that he had shot John Griffin and wanted to turn
himself in “but . . . . he was kind of scared.” (A. 41).
Jones accompanied petitioner to the police station.
Petitioner was interrogated by Raleigh Police Detective
D.C. Williams early on the morning of July 2. Williams
5 The testimony of all the witnesses leaves it exceedingly
unclear whether, when Griffin was “hiding” behind McCoy, he
was advancing toward petitioner or retreating away from
petitioner. The testimony does make clear that, at the time of
the shooting, Griffin and petitioner must have been very close
together. (McCoy testified that “John [Griffin] bumped into the
back of me” just before the shooting. (A. 19). He also testified
that petitioner was standing “three to four feet from me” when
Griffin was shot and that the discharge from petitioner’s pistol
caused powder burns on his hand. (Ibid.).)
6 Before Griffin died, he declared in response to Raleigh
policeman Kenneth Johnson’s question that “ ‘Jesse Fowler’ ”
had shot him. (A. 23). There was no testimony as to whether
Griffin was armed at the time he was shot.
II
testified that “I smelled the odor of intoxicants on his
breath” (A. 29) and that petitioner’s eyes were “real
bloodshoot” (ibid.), but he added that petitioner
“appeared to me to be in complete control of both his
mental and physical faculties” (ibid.). A laceration on
petitioner’s nose which Williams observed was later
determined to indicate a broken nose. (Ib id .). Williams
testified at some length concerning the statement
petitioner made:
“First of all, Mr. Fowler advised me that he
wanted me to know and understand that when he
shot John Griffin, he was drunk. He told me that
he had gotten drunk on Saturday night. When he
got up around 11:00 a.m. on Sunday, he had
started drinking again. Stated since Saturday night
he had drunk approximately sixteen beers, one
pint of scotch, approximately one quart of wine;
that after he had gotten up on Sunday, he went to
Sylvester Jones’ house, started playing dice.
Shortly after he got there Sylvester Jones got up
and went to the bathroom and left ten dollars
lying on the floor; that when Sylvester returned, it
was gone, the ten dollars on the floor. When
Sylvester returned an argument started between
Jesse and John Griffin over the ten dollars. Said
[nothing] resulted from this argument.
After they left . . . Jess Fowler and his wife went
to King’s Lounge on Rock Quarry Road sometime
around 6:00 p.m. After they had arrived there,
John Griffin and Sylvester Jones came in and
started drinking beer. Said Jesse went to play a
record on the juke box and John Griffin came
over to his table and wanted to start an argument
again in reference to the ten dollars at the dice
game.
12
John Griffin asked Jesse Fowler to come outside
and to fight him. Mr. Fowler stated that he went
outside and just as soon as he walked out the
door, John Griffin hit him in the face, knocking
him down and causing his nose to start bleeding
real bad. Sylvester Jones at this time came over
and stopped the fight and that Jesse Fowler and
his wife went home. Stated at this time he had a
.38 caliber pistol in his pocket with him.7 After
going home and staying a few minutes, he headed
for Walnut Terrace to see a friend . . . .
When he got to Lenoir Street, Ronald [sic] Dolby
picked him up and drove him to Walnut Terrace
and they got to Branch Street; they saw John
Griffin again on the sidewalk. Stated John Griffin
came over to the car, opened the car door and
wanted to fight him again. At this time, he told
Dolby to let him out of the car so he would not
get into any trouble. Stated that he started
walking away and John came after him.
When John came after him, this is Mr. Fowler
doing the talking — I turned and shot at him and
missed. I then shot at him again and hit him. I
dropped the gun and walked away.
At this time, I am high off beer and wine, but I
know what I am doing and I am in my right state
of mind.” (A. 28-29).8
7Petitioner had this pistol in his possession during the entire
day. (A. 45, 52, 61). Witnesses testified that it was the normal
practice of petitioner and his friends to carry pistols with them
when they went fishing in order to be able to kill snakes. (A. 35,
38).
8 Petitioner testified that Detective Williams’ recapitulation of
petitioner’s oral statement of July 2 was “pretty much the same
thing” he related at the police station. (A. 60).
13
Petitioner presented nine witnesses in his defense and
also testified at length himself. He admitted the
shooting, but claimed it had been in self-defense:
“John [Griffin] was headed directly down the
street toward where I was standing. So I put my
hand in my pocket and he pushed Charles McCoy
in the back and I pulled my gun out of my pocket
and I shot it one time. I kind of shot it up like in
the air. I was not trying to hit anybody. I was
hoping that, you know, he was turning backward.
Before I fired I saw John crouched behind McCoy
for a couple of seconds or so. Charles was still
between me and John. Then that is when John
pushed McCoy and said, ‘Nigger, I am going to
make you use what you have got in your pocket.’
That is when I pulled my gun out and shot hoping
he would turn around and go back. So he didn’t
turn. Looked like he was running faster toward me
and that is when I put the gun down like this and
shot him. When I shot the second time, I was as
far from him as from here to that Officer. After I
shot the gun, I presumed it hit him. I didn’t know
because he turned around and looked like he
started running back down the street. I put my
gun down by my side and walked across the street
here.” (A. 57-58).9
9 On cross-examination, the following exchange occurred
between petitioner and the Solicitor:
“Q. Why did you feel it was necessary to use that gun
instead of using your fists or running away; why did you
have to use that gun?
A. Like I said, the first thing came to my mind John had
been asking for a pistol and said that he was going to kill
me. I just took my gun out and shot. If he had one to
shoot me, he kept coming [sic]. So I shot the second time
down and he turned around and 1 said, well must not have
nothing [sic] and I turned around and walked off.
(continued)
14
Petitioner asserted that he “thought he [Griffin] was
going to do something to me” (A. 58) and that he had
heard Griffin “was trying to get a gun” (ib id .).10
At the conclusion of the testimony, the court
instructed the jury it could return a verdict of not
guilty, guilty of voluntary mansalughter, guilty of
second degree murder, or guilty of first degree murder.
(A. 83-84). The jury found petitioner guilty of first
degree murder, and the court thereupon sentenced him
to die. Petitioner’s conviction and sentence were
affirmed by a divided Supreme Court of North Carolina
on April 10, 1974. 285 N.C. 90, 203 S.E.2d 803.
(A. 88-104).
HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW
On appeal to the Supreme Court of North Carolina,
petitioner’s Assignment of Error Number 9 asserted that
“ [t]he imposition and the carrying out of the death
(footnote continued from proceeding page)
I didn’t see a gun. When I saw John coming toward me
behind Charles, I did not want to fight anymore. My
intention was to get on away from there.
Q. Weren’t you pretty hot about the fact that John Griffin
had mashed up your nose, kneed you in the face, kicked
you when he had you down on the ground in front of
your friends down in front of King’s Lounge, sort of
humiliated you?
A. Nothing but a little fight. A fight that I lost. It won’t
[sic] the first one that I had lost.” (A. 65-66).
10Three other witnesses testified that Griffin had asked for a
pistol immediately after the fight outside the King’s Lounge.
(A. 40, 44, 46).
15
penalty in this case is cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments
to the Constitution of the United States . . . (A. 88).
The Supreme Court of North Carolina explicitly
rejected this contention and sustained the constitu
tionality of petitioner’s death sentence, citing its prior
decisions in S ta te v. Waddell, 282 N.C. 431, 194 S.E.2d
19 (1973); S ta te v. B lackm on , 284 N.C. 1, 199 S.E.2d
431- (1973); and S ta te v. Jarrette, 284 N.C. 625, 202
S.E.2d 721 (1974). (A. 103-104).
SUMMARY OF ARGUMENT
I.
While “mandatory” in form, the North Carolina
procedure for processing capital cases involves a series
of uncontrolled discretionary judgements that operate
to spare the lives of some defendants while others in
similar circumstances are sentenced to die. As admin
istered through such a system, the penalty of death is a
cruel and unusual punishment because it has fallen in
this case, and will inevitably fall, arbitrarily upon the
isolated defendant, exceptional for his failure to arouse
the conscience of one of many participants in the
criminal justice process who have explicit or disguised
power to spare his life.
II.
The punishment of death inflicted in this manner
also violates the Eighth Amendment because it is
16
excessive and affronts the principle of human worth
embodied in the prohibition of cruel and unusual
punishments. No legitimate penal purpose of the State
justifies the extreme cruelty of extinguishing human
life; and this is in fact the verdict of Twentieth Century
American history upon the death penalty. Repudiated
in general application, it is tolerated only when imposed
upon a random few. But the Eighth Amendment stands
to assure that irregular and arbitrary exceptions are not
made to the limitations imposed by contemporary
standards of decency upon the State’s power to punish.
ARGUMENT
I.
INTRODUCTION
In Furm an v. Georgia, 408 U.S. 238 (1972), and its
companion cases, this Court ruled that “the imposition
and carrying out of the death penalty in these cases
constitutes cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments.” Id . at
239-240. The Court accordingly entered orders vacating
the death sentences of 125 condemned men in 26
States.11
On remand, these orders were effectuated;12 and
state courts also granted sentencing relief to other men
11 See Stewart v. Massachusetts, 408 U.S. 845 (1972) and
companion cases, 408 U.S. 932-941 (1972); Moore v. Illinois,
408 U.S. 786 (1972).
12See, -e.g., McCants v. State, _____ Ala. ______ , 274 So.2d
303 (1973); State v. Sinclair, 263 La. 377, 268 So.2d 514
(1972); Bartholomey v. State, _____ Md. ______, 297 A.2d 696
(1972); State v. Terry, 485 S.W.2d 3 (Mo. 1972); Menthen v.
State, 502 P.2d 1304 (Okla. Ct. Cr. App. 1972).
17
condemned to die before Furm an under statutes which
provided for the discretionary imposition of the death
penalty by juries or trial judges.13 The result of these
decisions was almost universally to forbid the infliction
of capital punishment in the absence of new legislation.
See, e.g., S ta te v. R hodes, _____ Mont. _____ , 524
P.2d 1095 (1974); S ta te v. Speights, _____ S.C .______ ,
208 S.E.2d 43 (1974). Thirty States subsequently
enacted some form of death penalty legislation,14
commonly providing for a narrower range of capital
offenses than those States maintained before F urm an .15
13 See, e.g., Graham v. State, 253 Ark. 462, 486 S.W.2d 678
(1972); Reed v. State, 267 So.2d 70 (Fla. 1972); Peterson v.
State, 268 So.2d 335 (Miss. 1972); State v. Cuckovich, 485
S.W.2d 16 (Mo. 1972); State v. Flonnory, 31 Ohio St.2d 134,
285 N.E.2d 726 (1972).
14The statutes are summarized in Appendix A, pp. la-68a
infra.
lsWith two exceptions, these States have either reduced the
number of capital crimes, narrowed the definition. of crimes for
which the death penalty is retained, or done both. Before
Furman, Rhode Island Gen. Laws §11-23-2 (1969) provided a
death penalty for murder by a life-term prisoner. Rhode Island
Public Law 1973 (Ex. Sess.), ch. 280, §1 amended this section
to provide the death penalty for murder by anyone “while
committed to confinement to the adult correctional institutions
or the state reformatory for women.” Before Furman, New Mex.
Stat. Ann. §40A-29-2.1 (2d repl. vol. 1972) provided the death
penalty “for the crime of killing a police officer or prison or jail
guard while in the performance of his duties and . . . if the jury
recommends the death penalty when the defendant commits a
second capital felony after time for due deliberation following
commission of a capital felony.” New Mex. Stat. Ann. § 40A-29-2
(1973 supp.) now provides the death penalty for a “capital
felony,” and New Mex. Stat. Ann. § 40A-2-1 defines first degree
murder and specifies that this crime is a “capital felony.” See
Appendix A, pp. 55a and 42a-43a /n/ra.
18
North Carolina, however, took a very different
course.16 Although the North Carolina Supreme Court
had previously vacated several death sentences on
Furm an grounds,17 it ruled prospectively in S ta te v.
Waddell, 282 N.C. 431, 194 S.E.2d 19 (January 18,
1973), by a vote of four to three,18 that the death
16See note 22 infra.
17See, e.g., State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431
(1973); State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973);
State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68 (1972); State
v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972); State v. Chance,
281 N.C. 746, 191 SJE.2d 65 (1972); State v. Hamby, 281 N.C.
743, 191 S.E.2d 66 (1972); State v. Miller, 281 N.C. 740, 190
S.E.2d 841 (1972).
18Chief Justice Bobbitt, Chief Justice-Elect Sharp, and Mr.
Justice Higgins dissented in State v. Waddell, 282 N.C. 431, 194
S.E.2d 19, 30-48 (1972) from the majority’s interpretation of
Furman, and have dissented from each subsequent affirmance of
a death penalty on Waddell grounds. See State v. Sparks,--------
N.C. _____ , 207 S.E.2d 712, 720 (1974); State v. Honeycutt,
285 N.C. 174, 203 S.E.2d 844, 849 (1974); State v. Fowler, 285
N.C. 90, 203 S.E.2d 803, 815 (1974) (A. 104); State v. Crowder,
285 N.C. 42, 203 S.E.2d 38, 47 (1974); State v. Henderson, 285
N.C. 1, 203 S.E.2d 10, 27 (1974); State v. Dillard, 285 N.C. 72,
203 S.E.2d 6, 9 (1974); State v. Noell, 284 N.C. 670, 202
S.E.2d 750, 770 (1974); State v. Jarrette, 284 N.C. 625, 202
S.E.2d 721, 747-750 (1974).
“I do not think any death sentence may be constitutionally
inflicted unless our General Assembly strikes from our
present statutes the provisions which leave to the unbridled
discretion of a jury whether the punishment shall be death
or life imprisonment . . . . [T]his Court has no right to
ignore, delete or repeal these provisions, which were put
there by the General Assembly as an integral part of its
plan for the punishment of crimes for which the death
(continued)
19
penalty could continue to be imposed for North
Carolina’s four pre-Furman capital crimes19 without the
enactment of new legislation, in Waddell, the appellant
had been condemned to die for rape under a statute,
N.C. Gen. Stat. §14-21 (repl. vol. 1969), which
provided:
“ [e] very person who is convicted of ravishing and
carnally knowing any female of the age of twelve
years or more by force and against her will, or
who is convicted of unlawfully and carnally
knowing and abusing any female child under the
age of twelve years, shall suffer death: Provided, if
the jury shall so recommend at the time of
rendering its verdict in open court, the punishment
(footnote continued from proceeding page)
sentence was permissible. Furman did not repeal them. This
Court has no right to repeal them.”
State v. Waddell, supra, 194 S.E.2d at 31 (dissenting opinion of
Chief Justice Bobbitt) (emphasis in original).
“The question of capital punishment . . . is one of
momentous public policy . . . . It is not for this Court to
declare either by unanimous decision or by four-three
division.”
State v. Jarrette, supra, 202 S.E.2d at 750 (dissenting opinion of
Chief Justice-Elect Sharp).
“The fixing of punishment for crime is a legislative
function.”
State v. Waddell, supra, 194 S.E.2d at 44 (dissenting opinion of
Mr. Justice Higgins).
19At the time of Waddell, a death penalty was authorized as
the punishment for first degree murder, N.C. Gen. Stat. §14-17
(repl. vol. 1969); rape, N.C. Gen. Stat. §14-21 (repl. vol. 1969);
first degree burglary, N.C. Gen. Stat. §14-52 (repl. vol. 1969);
and arson, N.C. Gen. Stat. §14-58 (repl. vol. 1969).
20
shall be imprisonment for life in the State’s prison,
and the court shall so instruct the jury.”20
20The other North Carolina statutes authorizing the imposi
tion of the death penalty contained similar provisions empower
ing the jury to make a binding recommendation of mercy:
“A murder which shall be perpetrated by means of poison,
lying in wait, imprisonment, starving, torture, or by any
other kind of willful, deliberate and premeditated
killing, or which shall be committed in the perpetration or
attempt to perpetrate any arson, rape, robbery, burglary or
other felony, shall be deemed to be murder in the first
degree and shall be punished with death: Provided, if at the
time of rendering its verdict in open court, the jury shall so
recommend, the punishment shall be imprisonment for life
in the State’s prison, and the court shall so instruct the
jury. All other kinds of murder shall be deemed murder in
the second degree, and shall be punished with imprison
ment of not less than two nor more than thirty years in
the State’s prison.”
North Carolina General Statutes § 14-17 (repl. vol. 1969);
“Any person convicted, according to due course of law, of
the crime of burglary in the first degree shall suffer death:
Provided, if the jury when rendering its verdict in open
court shall so recommend, the punishment shall be
imprisonment for life in the State’s prison, and the court
shall so instruct the jury. Anyone so convicted of burglary
in the second degree shall suffer imprisonment in the
State’s prison for life, or for a term of years, in the
discretion of the court.”
North Carolina General Statutes §14-52 (repl. vol. 1969);
“Any person convicted according to due course of law of
the crime of arson shall suffer death: Provided, if the jury
shall so recommend, at the time of rendering its verdict in
open court, the punishment shall be imprisonment for life
in the State’s prison, and the court shall so instruct the
jury.”
North Carolina General Statutes §14-58 (repl. vol. 1969).
21
After analyzing the opinions of the concurring Justices
in F urm an,21 the Waddell majority concluded that
“capital punishment has not been declared unconstitu
tional per se ,” 194 S.E,2d at 25, and that “ [i]t is the
proviso [authorizing the jury to recommend mercy in a
capital case] and the proviso alone — which creates the
discretionary difficulty condemned by the Furm an
decision.” 194 S.E.2d at 26-27. The majority held that
Furm an invalidated on ly this proviso, and that the
remainder of §14-21, providing a “mandatory” death
penalty for rape, was fully operative:22
21“ [S]ince the decision in Furman is not grounded on prior
decisions of the Court, the scope of that holding must be gleaned
from the separate opinions of the Justices themselves.” State v.
Waddell, 282 N.C. 431, 194 S.E.2d 19, 23 (1973).
22The Delaware Supreme Court also ruled initially that the
effect of Furman was to invalidate the provisions of that State’s
capital punishment laws which empowered the jury to
recommend mercy, leaving a “mandatory” death penalty for first
degree murder. State v. Dickerson, 298 A.2d 761 (Del. 1972).
However, Dickerson has been nullified (although not explicitly
overruled) by a later decision which applies a subsequently
enacted Delaware statute retrospectively to forbid the subjection
of any defendants to the Dickerson “mandatory” death penalty.
State v. Smith, Del. Sup. Ct. No. 52, 1974 (July 31,1974).
Trial court rulings similarly “severing” discretionary capital
punishment statutes to create “mandatory” death penalties have
been reversed by state supreme courts in Montana and South
Carolina, in decisions which held the capital punishment
provisions o f these S ta tes’ pr e-Furman statutes
wholly inoperative. State v. Rhodes, _____ Mont. ______, 524
P.2d 1095 (1974); State v. Speights, ____ S.C. ______ , 208
S.E.2d 43 (1974). The Utah Supreme Court has reversed a similar
(continued)
22
“It is the proviso which confers upon juries the
discretion to send one defendant to death and
another to prison for life for the same crime
committed under substantially similar circum
stances. This, and only this, is what Furm an
condemns as violative of the Eighth and
Fourteenth Amendments. The proviso, then, can
no longer be given effect as part of the law of
North Carolina. This leaves in effect the original
statute making the death sentence mandatory
upon a conviction of rape, and forbids an
instruction to the jury that it may, in its
discretion, fix a different punishment.
[W]e hold that the effect of the Furm an decision
upon the law of North Carolina concerning the
punishment for rape, murder in the first degree,
arson and burglary in the first degree is this: Upon
the trial of any defendant so charged, the trial
judge may not instruct the jury that it may in its
discretion add to its verdict of guilty a recom
mendation that defendant be sentenced to life
imprisonment. The trial judge should charge on the
constituent elements of the offense set out in the
bill of indictment and instruct the jury under what
circumstances a verdict of guilty or not guilty
should be returned. Upon the return of a verdict
of guilty of any such offense, the court must
pronounce a sentence of death. The punishment to
be imposed for these capital felonies is no longer a
discretionary question for the jury and therefore
(footnote continued from proceeding: page)
ruling although its decision appears to permit some form of dis
cretionary capital punishment, notwithstanding Furman. State
v. Winkle, Utah Sup. Ct. No. 13280 (Nov. 18, 1974).
Similar severability decisions by trial courts are now pending
on appeal in state supreme courts. State v. Martin, Pa. Sup. Ct.
No. 44 (March Term 1974); Commonwealth v. Johnson, Mass.
Sup. Jud. Ct. No. 15, 428.
23
no longer a proper subject for an instruction by
the judge.”
194 S.E.2d at 28-29.23 Under the procedure thus
established, at least 52 defendants24 have been
sentenced to die in North Carolina for offenses
committed between January 18, 1973 (the date of the
Waddell decision) and April 8, 1974 (the date when a
new North Carolina capital punishment statute went
into, effect).25
Petitioner’s case presents the single question whether
he and the more than half a hundred other persons
condemned to die pursuant to Waddell can constitu
tionally be put to death. To the extent that Waddell
represents the mere decision of a state-law question of
statutory severability — however tortuous,26 and
23The court held, however, that appellant Waddell could not
be sentenced to death consistently with the ex post facto clauses
of the federal and state constitutions. State v. Waddell, 282 N.C.
431, 194 S.E.2d 19, 29 (1973).
24 See Appendix B, pp. lb-7b infra.
25 This statute was enacted on April 8, 1974 effective
immediately. It repealed the death penalty for first degree
burglary and arson, divided the crime of rape into “first degree
rape” and “second degree rape” and retained the death penalty
only for “first degree rape,” and retained the death penalty for
first degree murder. The new statute does not, by its terms, have
retrospective application. See Appendix A, pp. 45a-46a infra.
26 See United States v. Jackson, 390 U.S. 570, 580 (1968):
“ [i] t is one thing to fill a minor gap in a statute — to
extrapolate from its general design details that were
inadvertently omitted. It is quite another thing to create
from whole cloth a complex and completely novel
procedure and to thrust it upon unwilling defendants for
the sole purpose of rescuing a statute from a charge of
unconstitutionality.”
24
however exemplary of the kind of “luck-of-the-draw
justice”27 through which life is forfeited by fortuity28
whenever capital punishment is practiced — it is of
course unreviewable here. But this is not the first time
in recent years that this Court has encountered uses of
state-law severability doctrine to emasculate a constitu
tional decision forbidding the imposition and carrying
out of impermissible death sentences. Funicello v. N ew
Jersey, 403 U.S. 948 (1971) (alternative ground);
Thomas v. L eeke , 403 U.S. 948 (1971).29 Such uses
27BEDAU, THE DEATH PENALTY IN AMERICA 411 rev.
ed. 1967).
26See note 63 infra.
29These two cases involved provisions of New Jersey and
South Carolina law which allowed capitally-charged defendants to
avoid the possibility of a death sentence by pleading non vult (in
New Jersey) or guilty (in South Carolina), and thus affronted the
rulings in United States v. Jackson, 390 U.S. 570 (1968), and
Pope v. United States. 392 U.S. 651 (1968). The South Carolina
Supreme Court in Thomas recognized the incompatibility of its
State’s statutory guilty-plea scheme with the constitutional
principle of Jackson, but held that the result was to invalidate
and sever the guilty-plea provision, leaving the death penalty
standing. The New Jersey Supreme Court attempted to
distinguish Jackson but held alternatively that, if Jackson did
invalidate New Jersey’s non vult provision, that provision rather
than the death penalty would be rendered inoperative. In both
cases, then, the state-court reaction to decisions of this Court
invalidating a composite statutory death-sentencing procedure
under which unknown numbers of capital defendants had
escaped the death penalty while others had unconstitutionally
been sentenced (and many sent) to their deaths, was to sever the
escape clause, treat it as though it had never existed for
constitutional as well as state-law purposes, and condemn those
denied its benefits to die. In both cases, this Court rejected the
device, and reversed.
25
require the Court to look beyond state-law doctrinal
adjustments and to apply the Constitution to the
realities of what the state courts “do in fact.” Holmes,
The Path o f the Law , 10 HARV. L. REV. 457, 461
(1897).
What Waddell has done in fact is to change the rules,
but not the nature or the result, of the “ghastly . . .
lottery”30 prohibited by Furm an. During the quarter of
a century between the enactments of the recommenda-
tion-of-mercy provisos by the North Carolina legislature
and the date of Waddell, countless men died and others
guilty of identical crimes were spared from death
pursuant to one form of arbitrary selective procedure
which — as the North Carolina Supreme Court itself
concludes — fell unmistakably under F u rm a n ’s prohibi
tion. The response of four Justices of that court is to
say essentially that, because the persons spared should
not have been spared (under an appropriate elaboration
of state severability theory), the fact that they were
spared is to be disregarded in determining whether the
continued application of the pr e-Furman statute
authorizing capital punishment would be arbitrary and
selective, and hence a cruel and unusual punishment, in
the wake of Furm an. Henceforth, d iffe ren t arbitrary
selective procedures are to be used to decide whether
particular defendants are or are not “fit to live” ;31 that
^West, Medicine and Capital Punishment in Hearings Before the
Subcommittee on Criminal Laws and Procedures o f the Senate
Committee on the Judiciary, 90th Cong., 2d Sess. on S. 1760, To
Abolish the Death Penalty (March 20-21 and July 2, 1968) 124,
125 (G.P.O. 1970).
31 Witherspoon v. Illinois, 391 U.S. 510, 521 n.19 (1968).
26
intractable judgment is to be made in numerous covert
ways which conceal while increasing the irregularity,
irrationality, and irresponsibility of the life-or-death
decisions. (See Part II, pp. 26-101 infra.) Moreover, the
historical lesson learned through decades of overtly
discretionary capital sentencing - that the death
penalty is no longer “widely accepted,”32 but is instead
resoundingly repudiated by the institutions of criminal
justice that have actually borne the terrible respon
sibility for choosing between life and death as the
disposition for even the most heinous of offenders (see
Part III, pp. 102-140 infra) — is to be ignored, as
though it never happened. With all respect, this result is
heedless of F urm an, heedless of reality and history, and
forbidden by the Eighth and Fourteenth Amendments.
II.
THE ARBITRARY INFLICTION OF DEATH
Although the prevailing Furm an opinions differ
somewhat in regard to the questions left unanswered by
the square holding of that case, each opinion condemns
at least any system of capital punishment in which
some persons are chosen to live and others identically
situated are consigned to die by irregular and erratic
32Trop v. Dulles, 356 U.S. 86, 99 (1958) (plurality opinion of
Chief Justice Warren).
27
selective processes.33 Furm an thus accords contem
porary recognition to a central historic concern of the
33The concurring opinions of Mr. Justice Brennan (408 U.S. at
257-306) and Mr. Justice Marshall (408 U.S. at 314-373) shared
the view that the death penalty is unconstitutional per se
regardless of the presence or absence of selectivity in the
procedural system through which it is administered.
Mr. Justice Douglas did not reach the question “ [w]hether a
mandatory death penalty would . . . be constitutional” if it were
in fact applied wholly non-selectively, 408 U.S. at 257, but held
the death sentences under review in Furman and companion
cases incompatible “with the idea of equal protection of the laws
that is implicit in the ban on ‘cruel and unusual’ punishments,”
ibid., because they were “imposed pursuant to a procedure that
gives room for the play of . . . prejudices,” 408 U.S. at 242, and
allows the application of capital punishment “selectively to
minorities whose numbers are few, who are outcasts of society,
and who are unpopular, but whom society is willing to see suffer
though it would not countenance general application of the
same penalty across the board.” 408 U.S. at 245.
Mr. Justice Stewart found it “unnecessary to reach the
ultimate question” whether “ the infliction of the death penalty
is constitutionally impermissible in all circumstances,” 408 U.S.
at 306, since he found that the death sentences under review
were returned “under legal systems that permit this unique
penalty to be . . . wantonly and . . . freakishly imposed,” 408
U.S. at 310, and therefore violated the Eighth and Fourteenth
Amendments. “ [0 ]f all of the people convicted of rapes and
murders . . ., many just as reprehensible as these, the petitioners
are among a capriciously selected random handful upon whom
the sentence of death has in fact been imposed.” 408 U.S. at
309-310 (footnote ommitted).
Mr. Justice White declined to consider the question whether
“the death penalty is unconstitutional per se," 408 U.S. at 311,
and held only that capital punishment was unconstitutional when
it “is exacted with great infrequency even for the most atrocious
crimes and . . . [when] there is no meaningful basis for
distinguishing the few cases in which it is imposed from the
many cases in which it is not.” 408 U.S. at 313.
28
Eighth Amendment: “that government by the people,
instituted by the Constitution, . . . not imitate the
conduct of arbitrary monarchs.” Weems v. U nited
States, 217 U.S. 349, 376 (1910).
As this Court has recognized,34 the Cruel and
Unusual Punishments Clause of the Eighth Amendment
is derived from the almost identically worded Tenth
Clause of the English Bill of Rights of 1689.35 The
preamble to the Bill of Rights declared that James II
had endeavored to “subvert” the “laws and liberties of
this kingdom” by arbitrarily “assuming and exercising a
power of dispensing with and suspending of laws and
the execution of laws, without consent of parlia
34In re Kemmler, 136 U.S. 436, 446 (1890).
35 Modern historical scholarship lends support to this con
clusion. See SCHWARTZ, THE BILL OL RIGHTS: A DOCU
MENTARY HISTORY 41 (1971). The “Declaration of Rights,”
which William and Mary signed on February 13, 1689, before
their coronation, was reenacted with minor additions as a statute
(the “Bill of Rights”) by Parliament later that year. 1 W. & M.,
sess. 2, ch. 2 (1689), VI STAT. OF THE REALM 142-145. See
also 5 PARL. HIST. ENG. 483490 (1688-1704) (Cobbett ed.
1809); BROWNING, ENGLISH HISTORIC DOCUMENTS
1660-1714 122-128 (1953); BAXTER, BASIC DOCUMENTS OF
ENGLISH HISTORY 159 (1968). Clause 10 provides: “That
excessive bail ought not to be required, nor excessive fines
imposed; nor cruel and unusual punishments inflicted.” 5 PARL.
HIST. ENG. 485 (1688-1704) (Cobbett ed. 1809). The Eighth
Amendment provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.”
29
ment.”36 The first two Clauses accordingly declared
such conduct on the part of the King and the royal
360 f particular concern to Parliament was James II’s claim
that the royal prerogative authorized him to ignore the statutes
prescribing religious qualifications for the holding of public
office, 4 THOMSON, A CONSTITUTIONAL HISTORY OF
ENGLAND, 1642-1801 87, 89 (1938), and to imprison subjects
when no statute or common law principle authorized such a
punishment, 2 MACAULAY, THE HISTORY OF ENGLAND
FROM THE ACCESSION OF JAMES II 515 (1850). This royal
claim was facilitated by the 1686 decision of the King’s Bench in
Godden v. Hales, 2 Show. K.B. 475, 89 Eng. Rep. 1050, 11
Howell St. Tr. 1197 (Trinity Term, 2 Jac. 2) (1686), a collusive
action arranged by James II before handpicked judges to secure
judicial approval of the royal power arbitrarily to disregard the
enactments of Parliament. KENYON, THE STUART CONSTITU
TION, 1603-1688 420-426 (1966). The Court ruled: “That the
laws of England are the King’s laws, That therefore it is an
inseparable prerogative in the Kings of England to dispense with
penal laws in particular cases and upon particular reasons, That of
those reasons and those necessities the King himself is the sole
judge.” 11 Howell St. Tr. at 1199. This decision confirmed the
Parliamentary belief “ that the Crown must be limited, controlled,
and [made] inferior to the laws of the land,” HUGHES &
FRIES, CROWN AND PARLIAMENT IN TUDOR-STUART
ENGLAND 291 (1959); the realization by both Whigs and Tories
“of the inadequacy of the laws of Parliament to withstand the
attacks of the King was the beginning of their rejection of James
and the real commencement of the revolution of 1688.” Id. at
294.
30
judges illegal,37 and Clause 10 prohibited the infliction
of “cruel and unusual punishments.” The legislative
history of this provision makes clear that it was
intended to prohibit the infliction of harsh punishments
that were arbitrarily imposed.38
While the Bill of Rights was pending in Parliament,
an Anglican clergyman, Titus Oates, appealed his 1685
perjury conviction to the House of Lords. Oates had
37 These two Clauses flatly overruled Godden v. Hales, supra
note 36, declaring:
“ 1. That the pretended power of suspending of laws, or the
execution of laws, by regal authority, without consent of
parliament, is illegal. 2. That the pretended power of
dispensing with laws, or the execution of laws, by regal
authority, as it hath been assumed and exercised of late, is
illegal.”
5 PARL. HIST. ENG. 485 (1688-1704) (Cobbett ed. 1809). A
significant new phrase was also added to the Coronation Oath:
henceforth, the ascending monarch was to swear to govern
according to “ the statutes in Parliament agreed upon, and the
laws and customs of the same.” WILLIAMS, THE EIGHT
EENTH-CENTURY CONSTITUTION, 1688-1815: DOCU
MENTS AND COMMENTARY 3, 37 (1960). “The oath in its
previous form had pledged the King to ‘grant and keep’ the laws
and customs ‘granted’ by his predecessor. If the laws were merely
the King’s grants, then it might be contended that he could
revoke them. Henceforth, it was plain that he was bound by the
laws.” 4 THOMSON, A CONSTITUTIONAL HISTORY OF
ENGLAND, 1642-1801 176-177 (1938).
38 Granucci, “Nor Cruel and Unusual Punishments Inflicted:’
The Original Meaning, 57 CALIF. L. REV. 839, 859 (1969);
Wheeler, Toward a Theory o f Limited Punishment: An
Examination o f the Eighth Amendment, 24 STAN. L. REV. 838,
844 (1972).
31
been convicted in the King’s Bench of giving false
testimony during the “Popish Plot” trials of 1678-1679,
and had been sentenced to be defrocked, to serve a
term of life imprisonment, to pay a large fine, to be
twice severely whipped, and to be pilloried four times a
year.39 This punishment was harsh,40 discriminatory and
arbitrary in the extreme — a manifest attempt to avenge
Oates’ anti-Catholic intrigues against James II (who had
then been Duke of York) by the imposition of
punishments that were both unauthorized by statute
and outside the jurisdiction of the sentencing court.41
39For discussions of this phase of the Oates case, see CLARK,
THE LATER STUARTS, 1660-1714 88-92 (1934); BROWNING,
ENGLISH HISTORICAL DOCUMENTS, 1660-1714 12-15
(1953); 4 THOMSON, A CONSTITUTIONAL HISTORY OF
ENGLAND, 1642-1801 61-65 (1938); LANDON, THE TRI
UMPH OF THE LAWYERS: THEIR ROLE IN ENGLISH
POLITICS, 1678-1689 181-183 (1969).
'“ The lengthy flogging prescribed for Oates was apparently
intended to be fatal: “ the court, having no power to hang him,
plainly intended that he should be flogged to death.” 4
THOMSON, A CONSTITUTIONAL HISTORY OF ENGLAND
1642-1801 142 (1938). This was tire contemporary under
standing of the court’s intent. In 1689, the House of Commons
resolved “ [t] hat it was illegal, cruel, and of dangerous example
that a freeman [Oates] should be whipped in such a barbarous
manner, as, in all probability, would determine in death.” 5
PARL. HIST. ENG. 387 (1688-1704) (Cobbett ed. 1809).
41Imprisonment for life could not at that time be imposed for
perjury (a misdemeanor), 4 THOMSON, A CONSTITUTIONAL
HISTORY OF ENGLAND, 1660-1801 142 (1938); and “ [o]nly
a spiritual court could degrade a priest,” ibid. According to
Macaulay, “that the sentence [imposed on Oates] was illegal was
a proposition that admitted of no dispute.” 3 MACAULAY, THE
HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES
II 308 (1850).
32
Oates’ conviction and sentence were affirmed in the
House of Lords, with thirteen of the Members
dissenting strongly on the grounds that these punish
ments were “cruel, barbarous, and illegal” and “con
trary to the Declaration [of Rights] of the 12th of
Feb. last . . . whereby it doth appear, that excessive Bail
ought not to be required, nor excessive Fines imposed,
nor cruel nor unusual punishments inflicted.”42 Oates
425 PARL. HIST. ENG. 291-292 (1688-1704) (Cobbett ed.
1809). This dissent declared:
“ 1. ‘For that the King’s-bench, being a temporal court,
made it part of the Judgment, That Titus Oates, being a
clerk, should, for his perjuries, be divested of his canonical
and priestly habit, and to continue divested all his life:
which is a matter wholly out of their power, belonging to
the ecclesiastical courts only. 2. For that the said
Judgments are barbarous, inhuman, and unchristian. And
there is no precedents [sic] to warrant the punishments of
whipping, and committing to prison for life, for the crime
of perjury; which yet were but part of the punishments
inflicted upon him . . . 4. For that this will be an
encouragement, and an allowance, for giving the like cruel,
barbarous, and illegal Judgments hereafter, unless this
Judgment be reversed. 5. Because sir John Holt, sir Henry
Pollexfen, the two Chief Justices, and sir Robert Atkins
chief baron, with six Judges more (being all that were then
present), for these and many other Reasons, did, before us,
solemnly deliver their Opinions; and unanimously declare,
That the said Judgments were contrary to law, and ancient
practice; and therefore erroneous, and ought to be reversed.
6. Because it was contrary to the Declaration of the 12th
of Feb. last, which was ordered by the lords spiritual and
temporal, and commons, then assembled; and by their
Declaration ingrossed in parchment, and inrolled among the
Records of parliament, and recorded in Chancery; whereby
it doth appear, that excessive Bail ought not to be
required, nor excessive Fines imposed, nor cruel and
unusual punishments inflicted.’ ”
33
then sought relief in the House of Commons, where his
cause was strongly taken up by militant Protestants,
who secured passage of a resolution “That Bills be
brought in to reverse the Judgments against Mr.
Oates . . . as cruel and illegal.”43 Sir William Williams
declared during the debate on this bill: “ let any man
give us a precedent to square with that Judgment. It
makes the Judges arbitrary, and hereafter the Judges
may- be most injurious in punishing.”44 When a
deadlock occurred with the House of Lords over a
collateral matter,45 one of the floor managers from the
Lords (whose bill gave Oates more limited relief than
the Commons bill) admitted that the Oates judgment
was illegal but declared that Oates deserved punishment
for his libels. A Member of Commons responded:
“ ‘Be it so. This bill gives him no indemnity. We
are quite willing that, if he is guilty, he shall be
punished. But for him, and for all Englishmen, we
demand that punishments shall be regulated by
435 PARL. HIST. ENG. 296 (1688-1704)(Cobbett ed. 1809).
44Id. at 294.
4sThe Commons had also declared that the perjury judgements
against Oates were “corrupt.” 5 PARL. HIST. ENG. 392
(1688-1704) (Cobbett ed. 1809), and it was this allegation that
the Lords would not agree to. Id. at 394.
34
law, and not by the arbitrary discretion of any
tribunal.’ ”46
By the time of the framing of the American Bill of
Rights, eight States had adopted prohibitions of “cruel
and unusual punishments” that were modeled upon
^ 3 MACAULAY, THE HISTORY OF ENGLAND FROM
THE ACCESSION OF JAMES II 310 (1850). The floor managers
of the Commons bill reported back to the House of Commons
on their difficulties in securing an acceptable compromise bill
from the House of Lords:
“ the commons had hoped, that, after the Declaration [of
Rights] presented to their majesties upon their accepting
the crown (wherein their lordships had joined with the
commons in complaining of the cruel and illegal punish
ments of the last reign; and in asserting it to be the ancient
right of the people of England, that they should not be
subjected to cruel and unusual punishments; and that no
judgments to the prejudice of the people in that kind
ought in any-wise to be drawn into consequence, or
example); and after this Declaration had been so lately
renewed in that part of the Bill of Rights which the lords
had agreed to; they should not have seen Judgments of this
nature affirmed, and been put under a necessity of sending
up a Bill for reversing them; since those Declarations will
not only be useless, but of pernicious consequence to the
people, if, so soon after, such Judgments as these stand
affirmed, and be not taken to be cruel and illegal within
the meaning of those Declarations—That the commons had
a particular regard to these Judgments, amongst others,
when that Declaration was first made; and must insist upon
it, that they are erroneous, cruel, illegal, and of ill example
to future ages.. . . That it was surely of ill example for a
temporal court to give judgment, ‘That a clerk be divested
of his canonical habits; and continue so divested during his
life.’ That it was of ill example, and illegal, that a
Judgment of perpetual imprisonment should be given in a
case, where there is no express law to warrant it.”
5 PARL. HIST. ENG. 386-387 (1688-1704) (Cobbett ed. 1809).
Oates was pardoned by King William before the differences
between Commons and Lords were finally resolved. Id. at 399.
35
Clause 10 of the English Bill of Rights,47 and the
federal government had inserted a similar provision into
the Northwest Ordinance of 1787.48 Because early
American legal history is so obscure, it is not possible
to know exactly what the draftsmen of these provisions
intended 49 However, whatever else such clauses were
47Virginia Constitution of 1776, Declaration of Rights, §9 (7
THORPE, FEDERAL AND STATE CONSTITUTIONS 3813
(1909); (see also RUTLAND, THE BIRTH OF THE BILL OF
RIGHTS OF 1791 35-36, 232 (1955)); Delaware Declaration of
Rights of 1776, §16 (1 Del. Code Ann. §83 (1953)); North
Carolina Constitution of 1776, § 10 (5 THORPE, supra, at 2788);
Maryland Constitution of 1776, § 22 (3 THORPE, supra, at 1688);
Massachusetts Constituion of 1780, art. 26 (3 THORPE, supra.
at 1892); NeT Hampshire Constitution of 1784, §33 (4
THORPE, supra, ut 2457); Pennsylvania Constitution of 1790, art.
- 9 , §13 (“ . . . nor cruel punishments inflicted”) (5 THORPE,
supra, at 3101); South Carolina Constitution of 1790, art. 9, §4
(“ . . . nor cruel punishments inflicted”) (6 THORPE, supra, at
3264). Cf. Vermont Constitution of 1777, ch. 2, § 35 (6 THORPE,
supra, at 3747): “To deter more effectually from the
commission of crimes, by continued visible punishment of long
duration, and to make sanguinary punishments less necessary;
houses ought to be provided for punishing, by hard labor, those
who shall be convicted of crimes . . . . ”
480rdinance of 1787, The Northwest Territorial Government,
art. II (Confederation Congress, July 13, 1787): “All fines shall
be moderate; and no cruel or unusual punishments shall be
inflicted.” See 1 U.S.C. xxxvii-xxxviii (1964).
49“Legal development is probably the least known aspect of
American colonial history. Judicial opinions were not recorded in
the colonies, no year books were issued, and the printed materials
for legal and judicial history have been so scanty as to preclude
the more cautious historians from dealing with this important
side of colonial life.” MORISON (ed.), RECORDS OF THE
SUFFOLK COUNTY COURT, 1671-1680 unpaginated preface
(1933).
36
intended to prohibit, it is unlikely that they were not
intended to guard against the arbitrary infliction of
harsh punishments. For there is evidence that the
colonists were concerned with this issue. In 1635,
Governor John Winthrop described the attempts of the
Massachusetts Bay Colonists to draft a comprehensive
criminal code in order to limit the discretion of the
magistrates: “The deputies having conceived great
danger to our state in regard that our magistrates, for
want of positive laws, in many cases, might proceed
according to their discretions, it was agreed, that some
men should be appointed to frame a body of grounds
of laws, in resemblance to a Magna Charta, which being
allowed by some of the ministers and the general court,
should be received for fundamental laws.”50 The
writings of Blackstone, whose influence on the
development of colonial American law was enormous,51
had echoed the 1689 Parliamentary debates concerning
the Oates case by stressing the fact that English law did
not allow the arbitrary infliction of punishment:
“it is moreover one of the glories of our English
law, that the nature, though not always the quality
or degree, of punishment is ascertained for every
offence; and that it is not left in the breast of any
judge, nor even of a jury, to alter that judgment,
50 WHITMORE, COLONIAL LAWS OF MASSACHUSETTS
1630-1686 5 (1889).
slGranucci, “Nor Cruel and Unusual Punishments Inflicted: ”
The Original Meaning, SI CALIF. L. REV. 839, 862 (1969).
Edmund Burke announced to Parliament in 1775 that almost as
many copies of Blackstone’s Commentaries had been sold in the
American colonies as in Great Britain. SUTHERLAND, THE
LAW AT HARVARD 25 (1967).
37
which the law has beforehand ordained, for every
subject alike, without respect of persons. For, if
judgments were to be the private opinions of the
judge, men would then be slave to their
magistrates; and would live in society, without
knowing exactly the conditions and obligations
which it lays them under . . . . [Wjhere an estab
lished penalty is annexed to crimes, the criminal
may read their certain consequence in that law,
which ought to be the unvaried rule, as it is the
inflexible judge of his actions.”52
Finally, the American statesmen who framed the state
and federal prohibitions on cruel and unusual punish
ments in the late Eighteenth Century typically believed
that their rebellion against Britain had been justified in
order to preserve their inherited English civil rights and
political freedoms:53 “ from a purely legal interpreta
tion, the American Revolution itself, as the Americans
saw it, was largely the result of England’s disregard of
the common-law rights of the Colonists.”54 It therefore
appears unlikely that they would consciously have
524 BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 371-372 (1st ed. 1769).
53See BAILYN, THE IDEOLOGICAL ORIGINS OF THE
AMERICAN REVOLUTION 1-54 (1967).
^LEVY, ORIGINS OF THE FIFTH AMENDMENT 337
(1968).
38
rejected or limited any of their traditional liberties,55
including the right against arbitrary infliction of harsh
punishments. George Mason, the author of both the
Virginia Declaration of Rights and the amendments
proposed to Congress by the Virginia ratifying conven
tion,56 stressed the necessity of limiting all forms of
American governmental authority by such guarantees of
individual liberty:
“In the declaration of rights which that country
[Great Britain] has established, the truth is, they
55The legislative history of adoption of the Eighth Amend
ment is sparse and not particularly illuminating as to the
purposes of the Framers. See 2 ELLIOT’S DEBATES 111 (2d
ed. 1863); 3 ELLIOT’S DEBATES 447-448, 451, 452 (2d ed.
1863); 1 ANNALS OF CONGRESS 754 (1st Cong., 1st Sess.
1789). There is evidence, however, that in certain ratifying
conventions, opponents of the Constitution feared that, without
a Bill of Rights, Congress would be free to devise whatever
criminal punishments it wished and that tortures might be
instituted. Patrick Henry, for example, declared to the Virginia
Convention: “when we come to punishments, no latitude ought
to be left, nor dependence put on the virtue of representatives
[in Congress] . . . . Are you not, therefore, now calling on those
gentlemen who are to compose Congress, to prescribe trials and
define punishments without this control [a constitutional
prohibition on “cruel and unusual punishments” ]? . . . .You let
them loose; you do more — you depart from the genius of your
country.” 3 ELLIOT’S DEBATES 447-448 (2d ed. 1863). There
is thus some evidence that the Framers were concerned to limit
the discretion of legislators to devise punishments, and there is
no indication whatsoever in any of the debates that they would
have approved an arbitrary freedom on the part of magistrates to
impose criminal punishments.
56See 1 ROWLAND, LIFE OF GEORGE MASON 234-250
(1892).
39
have gone no farther than to raise a barrier against
the power of the Crown; the power of the
legislature is left altogether indefinite . . . .
But although . . . it may not be thought necessary
to provide limits for the legislative power in that
country, yet a different opinion prevails in the
United States. The people of many states have
thought it necessary to raise barriers against power
in all forms and departments of Government. . .
1 ANNALS OF CONGRESS 436 (1st Cong., 1st Sess.
1789).
The arbitrary infliction of death which this Court
condemned in Furm an and companion cases arose, of
course, from various procedures57 whereby juries (or
judges) were given the option to sentence convicted
capital offenders to life (or term) imprisonment or
death.58 But — particularly in the light of M cG autha v.
California, 402 U.S. 183 (1971) — it is impossible to
read Furm an as prohibiting only the explicit statutory
annunciation of jury discretion to impose alternative
sentences of imprisonment or capital punishment.
Surely Furm an and the Eighth Amendment forbid any
arbitrarily selective imposition of the “unique penalty”
of death,59 whatever the source or mechanism of the
arbitrariness. See C om m onw ealth v. A Juvenile, 1973
S7For a description of some of these variations, see State v.
Rhodes______ Mont_______, 524 P.2d 1095, 1099 (1974).
ssSee McGautha v. California, 402 U.S. 183, 197-203 (1971).
59Furman v. Georgia, supra, 408 U.S. at 310 (concurring
opinion of Mr. Justice Stewart).
40
Mass. Adv. Sh. 1199, 300 N.E.2d 434 (1973).60 The
particular m e th o d of selecting some men to die while
others in like cases live with “no meaningful basis for
distinguishing” among them61 cannot be thought
constitutionally decisive. For the Federal Constitution is
not ordinarily concerned with the forms of state
procedure, but with their result. See, e.g., Chambers v.
Mississippi, 410 U.S. 284, 302-303 (1973); M em pa v.
R hay, 389 U.S. 128, 135-137 (1967); Jackson v.
Denno, 378 U.S. 368, 391 n.19 (1964), It “nullifies
sophisticated as well as simple-minded modes” of
producing unconstitutional consequences. Lane v. Wil
son, 307 U.S. 268, 275 (1939). Federal constitutional
guarantees cannot — as Justice Holmes wrote in another
context — “be evaded by attempting a distinction” of
form without a difference in substance. Davis v.
Wechsler, 263 U.S. 22, 24 (1923).
^ In Commonwalth v. A Juvenile, the Massachusetts Supreme
Judicial Court held a “mandatory” death penalty statute
unconstitutional under the Eighth Amendment where death was
the “mandatory” punishment for a specified crime but
discretionary mechanisms existed by which a trial court could
avoid subjecting a particular defendant to that “mandatory”
sentence. The case involved a juvenile who had been condemned
under a statute which made death the “mandatory” punishment
for rape-murder. The Court held that when a juvenile could be
adjudicated either as an adult for rape-murder (in which case, the
death sentence was mandatory, see Mass. Gen. Laws Ann. c.
265 §2) or as a juvenile (in which case no death sentence could
be imposed), a death sentence imposed pursuant to the adult
“mandatory” statute could not be affirmed, since Furman
invalidated “discretionary imposition of the death sentence.” 300
N.E.2d at 442 (emphasis in original).
61Furman v. Georgia, supra, 408 U.S. at 313 (concurring
opinion of Mr. Justice White).
41
To be sure, W addell’s annulment of the North
Carolina “recommendation” statute ostensibly made
death the exclusive punishment for first degree murder,
rape, first degree burglary and arson. But the
implementation of the death sentence for this broad
range of offenses inevitably required the exercise of vast
and uncontrolled selective discretion by district attor
neys, trial judges, juries and the Governor in choosing
which defendants would live and which would die in
cases where the death penalty was potentially applicable
after Waddell. Language requires that the several
practices through which unrestrained and arbitrary
discretion infects the administration of the death
penalty under Waddell be described separately, as we
shall do in the following subsections of this brief. But
the practices plainly operate cumulatively to produce
the kind of extreme uncertainty and unpredictability in
the infliction of the death penalty that violates
F urm an’s ban.
“There is . . . danger in treating any one stage [of
the criminal justice process] as if it were a
self-contained system rather than merely one
decision in an ongoing process of interrelated
decisions and consequences of decisions. An
assumption, explicit or implied, that adjudication
is in fact a quasi-automatic, nondiscretionary
process, turning solely on matters of sufficient
evidence, is a gross oversimplification . . . .”
NEWMAN, CONVICTION: THE DETERMINATION
OF GUILT OR INNOCENCE WITHOUT TRIAL 150
(1966).62 Thus as demonstrated by Professor Charles
62See also Rosett, Discretion, Severity and Legality in
Criminal Justice, 46 SO. CALIF. L. REV. 12, 14-15 (1972).
42
Black in his recent trenchant analysis,63 the result of
63BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE (1974). Professor Black points
out the numerous discretionary decisions made at every stage of
the criminal justice process, with life and death consequences,
and emphasizes:
“Regarding each of these choices, through all the range,
one of two things, or perhaps both, may be true.
First, the choice made may be a mistaken one. The
defendant may not have committed the act of which he is
found guilty; the factors which ought properly to induce a
prosecutor to accept a plea to a lesser offense may have
been present, though he refused to do so; the defendant
may have been ‘insane’ in the way the law requires for
exculpation, though the jury found that he was not. And
so on.
Secondly, there may either be no legal standards governing
the making of the choice, or the standards verbally set up
by the legal system for the making of the choice may be so
vague, at least in part of their range, as to be only apparent
standards, in truth furnishing no direction and leaving the
actual choice quite arbitrary.
These two possibilities have an interesting (and, in the
circumstances, tragic) relationship. The concept of mistake
fades out as the standard grows more and more vague and
unintelligible. There is no vagueness problem about the
question ‘Did Y hit Z on the head with a piece of pipe?’ It
is, for just that reason, easily possible to conceive of what
it means to be ‘mistaken’ in answering this question; one is
‘mistaken’ if one answers it ‘yes’ when in fact Y did not
hit Z with the pipe. It is even fairly clear what it means to
be ‘mistaken’ in answering the question ‘Did Y intend to
kill Z?’ Conscious intents are facts; the difference here
really is that, for obvious reasons, mistake is more likely in
the second case than in the first, for it is hard or
impossible to be confident of coming down on the right
side of a question about past psychological fact.
(continued)
43
numerous interrelated arbitrary processes in the admin
istration of the death penalty in North Carolina is
exactly the result condemned by Furm an: death
sentences which are “wantonly and . . . freakishly im
posed.” Furman v. Georgia, supra, 408 U.S. at 310
(concurring opinion of Mr. Justice Stewart).
And this means not merely that a few men die for
crimes no more atrocious than the crimes of many who
are .spared.64 It means also that society’s most extreme
and irremediable punishment is likely to be practiced
principally upon the outcast of society. Discrimination
is inseparable from arbitrariness wherever social atti-
(footnote continued from proceeding page)
It is very different when one comes to the question, ‘Was
the action of which the defendant was found guilty
performed in such a manner as to evidence an ‘abandoned
and malignant heart’?’ (This phrase figures importantly in
homicide law.) This question has the same grammatical
form as a clearcut factual question; actually, through a
considerable part of its range, it is not at all clear what it
means. It sets up, in this range, not a standard but a
pseudo-standard. One cannot, strictly speaking, be mistaken
in answering it, at least within a considerable range,
because to be mistaken is to be on the wrong side of a
line, and there is no real line here. But that, in turn, means
that the ‘test’ may often be no test at all, but merely an
invitation to arbitrariness and passion, or even to the
influence of dark unconscious factors.
‘Mistake’ and ‘arbitrariness’ therefore are reciprocally
related.”
Id. at 19-21 (emphasis in original).
64 See, e.g., LA WES, TWENTY THOUSAND YEARS IN SING
SING 302, 307-310 (1932); DUFFY & HIRSHBERG, 88 MEN
AND 2 WOMEN 254-255 (1962); De Ment, A Plea for the
Condemned, 29 ALA. LAWYER 440, 440-441 n.2 (1968)
(quoting Commissioner A. Frank Lee, of the Alabama Board of
Corrections).
44
tudes make men or groups unequal or unpopular. That
had not ceased to be the case in England three
centuries after Titus Oates,65 and it assuredly has not
ceased in this country where “ [t]hroughout our history
differences in race and color have defined easily
indentifiable groups which have at times required the
aid of the courts in securing equal treatment under the
laws.”66 “It is the poor, the illiterate, the underpriv
ileged, the member of the minority group who is
usually sacrificed by society’s lack of concern.”67 To
believe that this discrimination can be ended or
controlled by the annulment of forthright jury
discretion in capital sentencing in North Carolina blinks
reality. For,
“discretion in the imposition of the death penalty
will continue to be exercised in the prosecuting
attorney’s decision concerning the wording of the
charge; the grand jury’s decision concerning the
65PIERREPOINT, EXECUTIONER: PIERREPOINT 211
(1974):
“As long as reprieves for the death sentence existed, the
reason for a reprieve was always fundamentally political: an
execution here would incite too much sympathy for the
victim and must be respited; an execution there will show
that the Home Secretary means business. The public were
allowed to blow like the wind for one popular reprieve of a
favourite from Hampstead, and stay dead calm about an
unattractive strangling in Ashton-under-Lyne precisely
because the same basic inconsistency was being operated
for the policy reprieves. The trouble with the death
sentence has always been that nobody wanted it for
everybody, but everybody differed about who should get
off.”
66Hernandez v. Texas, 347 U.S. 475, 478 (1954).
67DiSalle, Trends in the Abolition o f Capital Punishment, 1 U.
TOLEDO L. REV. 1, 12-13 (1969). See also text and notes at
notes 226-227, infra.
45
allegations of the indictment; the jury’s findings
concerning the existence of defenses, [and]
elements of the crim e. . and the governor’s
decision whether to commute the death sentence if
one results. Since discretion will not be substan
tially restricted under the new [procedure] . . . ,
but merely shifted to other parts of the criminal
justice process, there is little reason to expect that
disproportionate application to minorities and poor
people will not continue.”68
A. Prosecutorial Charging Discretion
As long ago as 1931, the Wickersham Commission
reported that “ [t]he Prosecutor [is] the real arbiter of
what laws shall be enforced and against whom .. . .”69
68Browning, The New Death Penalty Statutes: Perpetuating a
Costly Myth, 9 GONZAGA L. REV. 651, 661-662 (1974). See
also Note, Mandatory Death: State v. Waddell, 4 N.C. CENT. L.
J. 292, 298 (1974).
69 NATIONAL COMMISSION ON LAW OBSERVANCE
AND ENFORCEMENT, REPORT ON PROSECUTION 19
(1931). See also DAVIS, DISCRETIONARY JUSTICE: A
PRELIMINARY INQUIRY 188-214 (1971); authorities collected
in note 74 infra. Cf. MOLEY, POLITICS AND CRIMINAL
PROSECUTION vii (1929):
. I have attempted to indicate the very great
importance of the public prosecutor, a fact which is
particularly American. The sheriff and the coroner, the
grand jury, and finally the petit jury, products of a long
historical evolution, have quite faded into insignificance.
Likewise, both the examining magistrate and the trial judge
in state courts, partially through their own lack of
capacity, partly through legal limitations upon their
powers, and largely because they have no means for
knowing what they should know about the cases before
them, perform no dominant role. In the midst of the decay
and impotence of his official associates, the prosecutor rises
to a definite mastery. To a considerable extent, he is
police, prosecutor, magistrate, grand jury, petit jury, and
judge in one.”
46
In North Carolina, the prosecuting attorney (called the
Solicitor) is charged with the duty to “prepare the trial
dockets, [and] prosecute in the name of the State all
criminal actions requiring prosecution in the superior
and district courts of his district,” N.C. Gen. Stat.
§ 7 A-61 (1973 cum. supp.) (emphasis added). He is
thereby given broad and essentially unreviewable
authority to initiate and terminate prosecutions,70 Sta te
70A recent death penalty case, where the conviction and
sentence were vacated and a new trial ordered because of
procedural error, illustrates the Solicitor’s charging discretion
under Waddell. In State v. Spicer, 285 N.C. 274, 204 S.E.2d 641
(1974), two persons were tried and convicted for murder during
the course of an armed robbery. A third person, one Bradford,
had helped to plan the robbery and was to share in its proceeds,
but he was not charged in the murder although his testimony
“permitted the jury to make a finding that he was an accomplice
either in the robbery or the murder, or both.” 204 S.E.2d at
647. The Court described Bradford’s criminal role in the
following fashion:
“ the State’s witness Bradford made the admission to the
officers, ‘I stated that I initiated the proposition concerning
the hit of Christian Brothers Poultry. It was my idea.’ He
again stated he expected his cut. . . .
The evidence discloses that the witness Bradford originated
the plan to rob his employer and explained the setup at
the plant.”
Ibid. The other two persons involved in the robbery, Spicer and
one Isaac Monk, were convicted of first degree murder and
sentenced to die. Spicer’s conviction has been, as indicated,
reversed on grounds permitting a retrial and a new death
sentence, while Monk’s conviction and death sentence are now
pending on appeal in the North Carolina Supreme Court. State v.
Monk, No. 13, New Hanover County, Fall Term, 1974.
47
v. Loesch, 237 N.C. 611, 75 S.E.2d 654, 656 (1953),71
including not only absolute discretion whether and
what to charge,72 but also absolute discretion to bring
an indicted defendant to trial upon lesser charges than
those set forth in the indictment even if the evidence
71The Court also ruled in State v. Loesch, that the Attorney
General had no supervisory jurisdiction over the several Solicitors
of the State, whose offices were established by Article III,
Section 18 of the State Constitution. “ [T]he duty of the
Attorney General in so far as it extends to the solicitors of the
State is purely advisory. The Attorney General has no
constitutional authority to issue a directive to any other
constitutional officer concerning his legal duties.” 75 S.E.2d at
656.
72The grand jury provides no significant check upon
prosecutorial discretion since — except in a few extraordinary
cases — it is heavily dominated by the prosecuting attorney.
See, e.g., Goldstein, The State and the Accused: Balance o f
Advantage in Criminal Procedure, 69 YALE L. J. 1149, 1171
(1960), and authorities cited; Shannon, The Grand Jury, True
Tribunal o f the People or Administrative Agency o f the
Prosecutor? 2 NEW MEXICO L. REV. 141, 170 (1972); Note,
Private Prosecution: A Remedy for District Attorneys’ Unwar
ranted Inaction, 65 YALE L. J. 209, 212-213 (1955). Indeed, it
is dubious that even the most conscientious grand juror, zealous
to perform the grand jury’s function of providing “ ‘a fair
method for instituting criminal proceedings against persons
believed to have committed crimes,’ ” Costello v. United States,
350 U.S. 359, 362 (1956) (as quoted in Russell v. United States,
369 U.S. 749, 761 (1962)); accord: State v. Greer, 238 N.C.
325, 77 S.E.2d 917, 918-919 (1953), by inquiring “into the
existence of possible criminal conduct and [returning] . . . only
well-founded indictments,” Branzburg v. Hayes, 408 U.S. 665,
688 (1972); see also United States v. Calandra, 414 U.S. 338,
343 (1974), would suppose that this function called upon him to
return an indictment upon charges greater than those sought by
the prosecutor. And, as we shall shortly see under North Carolina
law, if a grand jury did return such an indictment, the prosecutor
could elect not to prosecute the offense charged, but only a
lesser included offense. See text and note at note 73 infra.
48
shows that a greater crime has been committed, Sta te v.
Allen, 279 N.C. 115, 181 S.E.2d 453, 455 (1971);73
and see S ta te v. R o y , 233 N.C. 558, 64 S.E.2d 840,
841 (1951).74
73In State v. Allen, the Court affirmed a second degree
burglary conviction in a case where the sole question presented
on appeal was “ ‘Did the trial court commit error by placing the
defendant on trial for burglary in the second degree when all the
evidence tended to show burglary in the first degree?’ ” 181
S.E.2d at 455. The appellant was charged by indictment with
first degree burglary, but at trial the solicitor announced he
would seek no verdict greater than burglar}' in the second degree.
The Supreme Court of North Carolina ruled that “the solicitor
has the authority to elect not to try the defendant on the
maximum degree of the offense charged but to put him on trial
for the lesser degree thereof and lesser offenses included
therein. . . . The effect of such election by the solicitor,
announced as in this instance, is that of a verdict of not guilty
upon the maximum degree of the offense charged, leaving for
trial the lesser degree and the lesser included offenses.” Ibid.
14 Cf. Note, Prosecutorial Discretion, 21 DePAUL L. REV.
485, 486 (1971-1972):
“ [t] he limitations of a prosecutor’s discretion are some
what nebulous, and, in general, undefined. He has the
authority by law to enforce certain laws by prosecuting
offenders. Whom he chooses to prosecute, what he charges
them with, whether he charges them at all, whether he
later drops the charges or recommends a lower sentence at
the time of trial are all within the prosecutor’s exercise of
discretion.”
See also MILLER, PROSECUTION: THE DECISION TO
CHARGE A SUSPECT WITH A CRIME 154-172, 293-350
(1969); 2 PLOSCOWE (ed ), MANUAL FOR PROSECUTING
ATTORNEYS 315-320 (1956); Baker & DeLong, The Prose
cuting Attorney, 24 J. CRIM. L. & CRIM. 1025 (1934);
Ferguson, Formulation o f Enforcement Policy: An Anatomy o f
the Prosecutor’s Discretion Prior to Accusation, 11 RUTGERS L.
REV. 507 (1957); Mills, The Prosecutor: Charging and
“Bargaining,” 1966 U. ILL. L. F. 511; Note, Prosecutor’s
Discretion, 103 U. PA. L. REV. 1057 (1955); Note, Private
Prosecution: A Remedy for District Attorneys’ Unwarranted
Inaction, 65 YALE L. J. 209, 209-215 (1955).
49
The North Carolina courts steadfastly refuse to
review prosecutorial decisions. The leading case is State
v. Casey, 159 N.C. 472, 74 S.E. 625 (1912), where an
appellant, prosecuted and convicted for second degree
murder by poisoning, argued that there was no evidence
of this crime; that she was either guilty of first degree
murder or not guilty of any offense. The North
Carolina Supreme Court rejected this contention,
commenting that the appellant had no “privilege to be
tried for the capital felony” and concluding that “if the
solicitor erred, it is an error in favor of the prisoner, of
which she cannot justly complain.” 74 S.E. at 625. And
following Waddell, the court in Sta te v. Jarrette, 284
N.C. 625, 202 S.E.2d 721, 742 (1974), flatly rejected
the contention that the Eighth and the Fourteenth
Amendments required any circumscription of the
discretion of the Solicitor in capital cases:
“the Constitution of the United States does not
require a state, in the enforcement of its criminal
laws, so to hedge its prosecuting attorney about
with ‘guidelines’ that he becomes a mere auto
maton, acting on the impulse of a computer and
treating all persons accused of criminal conduct
exactly alike.”
The consequence of this unfettered prosecutorial
discretion is, of course, that different Solicitors may
utilize different standards in deciding whether to
initiate capital or noncapital prosecutions. Without any
guidance whatsoever,75 a Solicitor is free to make the
lsCf. Wechsler, The Challenge o f a Model Penal Code, 65
HARV. L. REV. 1097, 1102 (1952):
“ [a] society that holds, as we do, to belief in law cannot
regard with unconcern the fact that prosecuting agencies
can exercise so large an influence on dispositions that
involve the penal sanction, without reference to any norms
but those that they may create for themselves.”
50
decision whether an indictment will be sought for first
or second degree murder or manslaughter,76 for rape or
assault with intent to rape, for first or second degree
burglary. He may thus “without violating [his] . . . trust
or any statutory policy . . . refuse to [seek] . . . the
death penalty no matter what the circumstances of the
crime.” Furm an v. Georgia, supra, 408 U.S. at 314
(concurring opinion of Mr. Justice White). This
unconstrained discretion doubtless accounts in consider
able part for the striking fact that there have been only
three convictions77 of first degree burglary during a full
year of W addell’s implementation in a State where there
were about forty convictions annually for this crime in
76A s we demonstrate at pp. 65-76 infra, the distinctions
among these offenses as they may apply to particular factual
situations are largely intangible and judgmental.
11 State v. Poole, rev’d for insufficient evidence, 285 N.C. 108,
203 S.E.2d 786 (1974); State v. Henderson, 285 N.C. 1, 203
S.E.2d 10(1974), petition for cert, filed sub nom. Henderson v.
North Carolina, U.S.S.C. No. 73-6853 (June 8, 1974); State v.
Boyd, N.C. Sup. Ct. No. 7, Spring Term 1974, (pending on
appeal). In State v. Henderson, supra, the defendant was also
convicted of and sentenced to die for rape; and in State v. Boyd,
supra, the jury was unable to agree on a homicide verdict after it
was instructed that it could find the defendant guilty of second
degree murder.
51
the recent past,78 and where 39,210 “burglaries and
housebreakings” were reported in 19 7 2.79 The conclu
sion is inescapable that Solicitors have simply not
regarded first degree burglary as a crime deserving
death, and have not initiated first degree burglary
78In 1955, the North Carolina Department of Justice ceased
to report separate statistics for persons convicted of first degree
burglary and of second degree burglary. In 1952, there were 47
convictions for first degree burglary in Superior Court (with 15
“Other dispositions”) and 5 convictions in “inferior court” (with
64 “Other dispositions” there). 32 BIENNIAL REPORT OF THE
ATTORNEY GENERAL OF THE STATE OF NORTH CAR
OLINA 1952-1954 515, 521 (1954). In 1953, there were 33
convictions for first degree burglary in Superior Court (with 10
“Other dispositions”) and 4 convictions in “inferior court” (with
49 “Other dispositions” there). Ibid. In 1954, there were 35
convictions for first degree burglary in Superior Court (with 26
“Other dispositions”) and 9 convictions in “inferior court” (with
61 “Other dispositions” there). 33 BIENNIAL REPORT OF THE
ATTORNEY GENERAL OF THE STATE OF NORTH CAR
OLINA 1954-1956 377, 379 (1956). “Other dispositions” is
nowhere defined; since the total of convictions and “Other
dispositions” represents “cases disposed of in the Superior and
inferior courts of the State,” 32 BIENNIAL REPORT OF THE
ATTORNEY GENERAL OF THE STATE OF NORTH CAR
OLINA 1952-1954 510 (1954), “Other dispositions” apparently
includes acquittals and nol pros’s.
79UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, CRIME IN THE UNITED
STATES 1972 74 (Aug. 1973). The Uniform Crime Reports, of
course, reflect reported crimes, not convictions; and the reported
“burglaries and housebreakings” doubtless exceed the total
number of statutory first degree burglaries which occurred in the
State during 1972. Nevertheless, it cannot rationally be imagined
that only three first degree burglars were apprehended in North
Carolina during a twelve month period.
52
prosecutions in cases where they might have obtained
convictions for this crime.
The inconsequential number of first degree burglary
convictions under the Waddell regime is hardly
surprising, since the exercise of prosecutorial discretion
to blunt the impact of “mandatory” penalties in
sympathetic cases has been one of the most significant
phenomena observed in the enforcement of such
statutes: “ [a] charge may be reduced to avoid infliction
of punishment harm that administrative officials regard
as too severe in relation to the suspect’s conduct.
Usually, a less serious offense is charged because
conviction of the maximum offense carries a statutory
mandatory minimum sentence.”80
As with the death-penalty statutes struck down in
Furman, it is not necessary to conclude that North
Carolina’s capital laws are being intentionally adminis
tered “with an evil eye and an unequal hand,” T ick Wo
80 MILLER, PROSECUTION: THE DECISION TO CHARGE
A SUSPECT WITH A CRIME 207 (1969). Cf. Rosett, Discretion,
Severity and Legality in Criminal Justice, 46 SO. CALIF. L.
REV. 12, 49 (1972):
“ [o] fficials tend to respond to the undue harshness of
punishments provided by the law by seeking discretion to
avoid the imposition of that harshness in most cases. Yet,
ironically, it is when the system is particularly severe that
discretion may be most abusive and the temptation to act
unjustly becomes greater. When the system is severe,
discretionary decision-making becomes unacceptable be
cause it reposes excessive authority in the hands of an
often unsupervised individual official. In such a situation,
the advantages of legal rules and process become
exaggerated.”
53
v. H opkins, 118 U.S. 356, 373-374 (1886). The point
rather is that their implementation is necessarily and
unavoidably arbitrary. Since no standards exist to
regularize the exercise of prosecutorial discretion, there
is nothing to guarantee that some defendants, like
petitioner, will not be capitally charged while other
defendants, probably guilty of similar conduct, are
prosecuted for second degree murder or manslaughter.
Although the choice of charge is quite literally the
difference between life and death, that choice is a
completely uncontrolled, discretionary decision of the
Solicitor.
B. Plea Bargaining
Another point of entrance for arbitrariness in the
administration of capital punishment in North Carolina
under the Waddell procedures is the unfettered power
of the Solicitor to accept a plea of guilty to a lesser or
other non-capital offense from a capitally charged
defendant, and/or to nol pros a capital indictment.
Exercise of this discretionary power undercuts the
“mandatory” nature of the death penalty for first
degree murder as effectively as the practice of
selectively charging homicide defendants with second
degree murder or manslaughter at the outset. The
guilty-plea process is unregulated by law, and the
discretion of a Solicitor to accept a plea to a lesser
offense in a capital case is therefore quite as
untrammelled as the freedom of a jury to recommend
mercy in a pre-Waddell capital prosecution.
54
Plea bargaining is pervasive in the criminal justice
system; guilty pleas are said to account for up to ninety
per cent of all criminal convictions.81 Indeed, in view of
the judicial resources available, the systematic and
extensive practice of plea bargaining appears inevitable:
“ [i] f all the defendants should combine to refuse
to plead guilty, and should dare to hold out, they
could break down the administration of criminal
justice in any state in the Union. But they dare
not hold out, for such as were tried and convicted
81 PRESIDENT’S COMMISSION ON LAW ENFORCEMENT
AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT: THE COURTS 9 (1967). See also Coon, The
Indictment Process and Reduced Charges, 40 N.Y. ST. BAR J.
434 (1968). A study of the indictments for first and second
degree murder in Massachusetts between 1956 and 1965 which
received a final disposition in terms of guilt or innocence
revealed that 221 out of 326 defendants (67.8%) entered a guilty
plea and that 93.2% of these guilty pleas were to a lesser charge.
Carney & Fuller, A Study o f Plea Bargaining in Murder Cases in
Massachusetts, 3 SUFF. L. REV. 292, 299 (1969). The study
concluded that:
“ there is a wide disparity among the courts in terms of the
proportion of guilty pleas in murder cases. This finding
indicates that the practice of plea bargaining is far from
uniform. It also underscores the potential risk inherent in
such an informal and invisible process as plea bargaining.
For example, a defendant indicted for first degree murder
in one court may have a very good chance of negotiating a
plea of guilty to second degree murder, while in another
court such a possibility may be minimal. The implications
of this are serious, since conviction for first degree murder
may well result in a sentence of death. . . . Therefore, it
seems crucial that the practice of plea bargaining be
governed by specific and explicit guidelines that could be
systematically and consistently applied from court to
court.”
Id. at 307.
55
could hope for no leniency. The prosecutor is like
a man armed with a revolver who is cornered by a
mob. A concerted rush would overwhelm
him . . . . The truth is that a criminal court can
operate only by inducing the great mass of
actually guilty defendants to plead guilty.”82
Because homicide cases are likely to take up a great
deal of time in preparation and trial, they are
particularly likely to be settled by plea bargaining.83
And the fact that the harshness of a death sentence
creates a relatively great risk that a conviction will be
reversed on appeal for procedural error provides an
additional incentive for plea bargaining in capital cases:
“ ‘[s]ince time immemorial. . . [prosecutors] will
prefer to get a definite conviction, without the
tremendous expense that goes with a murder trial,
the taking of a chance that a jury may not
convict, or that some technical error will be made
in the heat of trial which will result in a reversal
by an Appellate Court.’ ”84
82LUMMUS, THE TRIAL JUDGE 46 (1937).
83 In the words of one prosecutor:
“ ‘A murder case ties up a courtroom for a week, or at
least for three days. We are naturally more anxious to
bargain for guilty pleas in murder cases than we are in
cases that might take fifteen minutes at trial.’ ”
Pittsburgh First Assistant District Attorney James G. Dunn,
quoted in Alschuler, The Prosecutor’s Role in Plea Bargaining, 36
U. CHI. L. REV. 50, 55 (1966).
MBedau, Death Sentences in New Jersey 1907-1960, 19
RUTGERS L. REV. 1, 30 (1963) (quoting opinion of Judge C.
Conrad Schneider, State v. Faison, No. 5-550-57, Bergen Cty.
Ct., Nov. 21, 1958).
56
Plea bargaining almost inevitably involves a reduction
in charge or sentence: “ [a] promise by the prosecutor
of sentence leniency or a charge reduction as a
concession for a plea of guilty is a major characteristic
of the negotiated plea process.”85 This Court is not
unfamiliar with guilty pleas to lesser included offenses
entered by North Carolina defendants charged with
capital crimes, who thereby escaped possible death
penalties. N orth Carolina v. A lford , 400 U.S. 25
(197Q);86 Parker v. N orth Carolina, 397 U.S. 790
(1970). Such cases are a commonplace of “capital”
justice. See, e.g., Tollett v. Henderson, 411 U.S. 258
(1973). Indeed, the prosecutor’s attitude toward
plea-bargaining in the case of a death-charged defendant
is “probably the most widely significant choice
separating the doomed from those who . . . go to
prison.”87 That attitude in turn reflects fundamentally
the prosecutor’s choice to insist upon or to remit the
punishment of death. For his willingness to offer or
accept a lesser plea (and how much lesser) responds not
85NEWMAN, CONVICTION: THE DETERMINATION OF
GUILT OR INNOCENCE WITHOUT TRIAL 29 (1966).
86In North Carolina v. Alford, the Court noted that “the State
had a strong case of first-degree murder against Alford. Whether
he realized or disbelieved his guilt, he insisted on his plea because
in his view he had absolutely nothing to gain by a trial and much
to gain by pleading. Because of the overwhelming evidence
against him, a trial was precisely what neither Alford nor his
attorney desired.” 400 U.S. at 37.
87BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 43 (1974).
57
merely to his estimate of trial costs and contingencies
but also to his wholly discretionary judgment —
sometimes reasoned, sometimes “gut,” sometimes prin
cipled and independent, sometimes politically opportun
istic, but always selective and subject to the influence
of factors which remain “demeaningly trivial compared
to the stakes”88 — as to whether the particular offense
or offender deserves capital punishment.89
Furthermore, an ostensibly “mandatory” death penal
ty statute is especially likely to result in the selective
allowance of guilty pleas to lesser included offenses,
since “ [m]any prosecutors and judges . . . support the
practice as both necessary and desirable . . . to achieve
sentencing flexibility which would sometimes be
prevented by mandatory sentences.”90 The negotiated
88
This phrase was used by the late Professor Harry Kalven, Jr.,
and by Hans Zeisel to describe the factors affecting capital
sentencing by juries before Furman. KALVEN & ZEISEL, THE
AMERICAN JURY 448-449 (1966). It is equally apt to describe
the factors influencing the prosecutor’s plea-bargaining discretion
after Furman and Waddell.
89 See BLACK, CAPITAL PUNISHMENT: THE INEVITABIL
ITY OF CAPRICE AND MISTAKE 41-44 (1974). Cf. note 91
infra.
^NEWMAN, CONVICTION: THE DETERMINATION OF
GUILT OR INNOCENCE WITHOUT TRIAL 102 (1966). Cf.
Steinberg & Paulsen, A Conversation with Defense Counsel on
Problems o f a Criminal Defense, 7 PRAC. LAW No. 5, 25, 31-32
(1961):
“ [tjhese plea bargains perform a useful function. We have
to remember that our sentencing laws are for the most part
savage, archaic, and make very little sense. The penalties
they set are frequently too tough . . . . The negotiated plea
is a way by which prosecutors can make value judgments.
They can take some of the inhumanity out of the law in
certain situations.”
58
plea is “the means by which . . . [a prosecutor] can
avoid the unacceptably rigorous application of the letter
of the law.”91 Prosecutors
“declare without hesitation that one of their goals
in the [plea] bargaining process is to nullify harsh,
‘unrealistic’ penalties that legislators have pre
scribed for certain crimes.”92
It is clear that a great many capitally charged
defendants in North Carolina have been allowed to
plead guilty to lesser offenses and thus to escape the
threat of a death penalty.93 In other cases, however,
91Rosett, Discretion, Severity and Legality in Criminal Justice,
46 SO. CALIF. L. REV. 12, 25 (1972). See also Worgan &
Paulsen, The Position o f a Prosecutor in a Criminal Case — A
Conversation with a Prosecuting Attorney, 1 PRAC. LAW. No.
7, 44, 53 (1961):
“ [i] n many cases we believe we mitigate the harshness of
the letter of the law by taking a guilty plea. We make such
decisions only after much careful thought and I think we
make them in a way that the community generally
approves.”
92Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U.
CHI. L. REV. 50, 54 (1966). See also 2 PLOSCOWE (ed.),
MANUAL FOR PROSECUTING ATTORNEYS 319 (1956);
Coon, The Indictment Process and Reduced Charges, N.Y. ST.
BAR J. 434, 438 (1968).
93See, e.g., the following 17 cases: State v. Hamlin, Wake
County Super. Ct. No. 74-Cr-l 1895 (April 1, 1974, indictment
for first degree murder; April 12, 1974, guilty plea to second
degree murder, sentence of 15-20 years); State v. Leroy Johnson,
Wake County Super. Ct. No. 74-Cr-7160 (February 25, 1974,
indictment for first degree murder; March 8, 1974, guilty plea to
second degree murder, sentence of 10 years); State v. Harris,
Wake County Super. Ct. No. 73-Cr-76418 (February 11, 1974,
(continued)
59
solicitors have wanted and achieved nothing less than a
(footnote continued from proceeding page)
indictment for rape; August 19, 1974, guilty plea to assault on a
female, sentence of 1 year); State v. Santor, Wake County Super.
Ct. No. 73-Cr-68725 (February 11, 1974, indictment for first
degree murder; July 15, 1974, guilty plea to voluntary
manslaughter, sentence of 20 years); State v. Lacy Jones, Wake
County Super. Ct. No. 73-Cr-698 (January 21, 1974, indictment
for rape; September 16, 1974, guilty plea to assault on a female,
sentence of 1 year); State v. Kenneth Jones, Wake County Super.
Ct. No. 74-Cr-697 (January 21, 1974, indictment for rape;
September 16, 1974, guilty plea to assault with intent to inflict
serious injury, sentence of 1 year); State v. Chance, Wake County
Super. Ct. No. 74-Cr-696 (January 21, 1974, indictment for rape;
September 16, 1974, guilty plea to assault on a female, sentence
of 1 year); State v. Goldston, Wake County Super. Ct. No.
73-Cr-73020 (January 7, 1974, indictment for first degree
murder; May 24, 1974, guilty plea to voluntary manslaughter,
sentence of 7 to 10 years); State v. Smith, Wake County Super.
Ct. No. 73-Cr-54092 (October 29, 1973, indictment for first
degree burglary; February 25, 1974, guilty plea to breaking and
entering with intent to commit larceny, sentence of 7-10 years
suspended with probation); State v. Otha Johnson, Wake County
Super. Ct. No. 73-Cr-44188 (August 30, 1973, indictment for
first degree murder; April 22, 1974, guilty plea to voluntary
manslaughter, sentence of 14-18 years); State v. Wright, Wake
County Super. Ct. No. 73-Cr-41760 (August 30, 1973,
indictment for rape; November 7, 1974, guilty plea to assault on
a female, sentence of time served); State v. Weatherspoon, Wake
County Super. Ct. No. 73-Cr-38571 (August 30, 1973,
indictment for first degree burglary; October 12, 1973, guilty
plea to felonious breaking and entering, sentence of 1-2 years);
State v. Ramos, Wake County Super. Ct. No. 73-Cr-30623 (May
29, 1973, indictment for first degree burglary; June 4, 1973,
guilty plea to non-felonious breaking and entering, sentence of 2
years suspended with 5 years probation); State v. DeBoise, Wake
(continued)
60
capital conviction and sentence.
Plea bargaining under a “mandatory” statute is
frequently said to “provide the opportunity to
individualize justice . . . . Certain mandatory provisions
of the statutes which in a particular situation seem
unduly harsh may be avoided and a punishment
selected which is best suited to the defendant who has
already acknowledged his guilt.”94 The result of this
process, however, is thoroughly to vitiate the uniform
operation of the statute:
(footnote continued from proceeding page)
County Super. Ct. No. 73-Cr-29233 (May 29, 1973, indictment
for first degree burglary; October 22, 1973, guilty plea to
felonious breaking and entering, sentence of 4 years suspended
with probation); State v. Stephenson, Wake County Super. Ct.
No. 73-Cr-27254 (May 29, 1973, indictment for rape; April 29,
1974, guilty plea to assault with intent to commit rape, sentence
of 10 years); State v. Franks, Wake County Super. Ct. No
73-Cr-20787 (April 24, 1973, indictment for rape; April 18,
1974, guilty plea to assault with intent to commit rape, sentence
of 10 years); State v. Franks, Wake County Super. St. No.
73-Cr-15922 (April 9, 1973, indictment for first degree murder;
November 26, 1973, guilty plea to voluntary manslaughter,
sentence of 20 years). These cases, terminated by a guilty plea to
a non-capital offense, were initiated by capital indictments
returned in one of North Carolina’s one hundred counties
(Wake), the county in which petitioner was indicted, for offenses
allegedly committed during the January 18, 1973 — April 8,
1974 period when the capital procedures mandated by State v.
Waddell were in effect.
^Heath, Plea Bargaining - Justice O ff the Record, 9
WASHBURN U. L. REV. 430, 455 (1970). See also NEWMAN,
CONVICTION: THE DETERMINATION OF GUILT OR INNO
CENCE WITHOUT TRIAL 98 (1966):
“ [c]harge reduction offers the court an opportunity to
individualize justice by distinguishing between technically
similar cases in both sentence and conviction label,
especially when sentencing discretion is denied by legisla
tively fixed terms.”
61
“ [i]n both Michigan and Kansas, where mandatory
sentences for particular crimes are common, plea
negotiation not only is a widespread practice
considered necessary to obtain guilty pleas but is
generally accepted by both prosecution and the
trial courts as desirable in situations where charge
reduction is necessary to avoid overly severe
sentences.”95
Such a practice — by which some defendants indicted
fo r ' capital offenses are permitted to escape with
sentences less harsh than death as the result of plea
negotiations conducted in the unlimited discretion of
the prosecutor — may be thought necessary and proper,
and it is doubtless inevitable, to achieve “individu
alized” and “humane” justice under the exceedingly
broad range of death penalties made “mandatory” in
North Carolina by Waddell. But in the very process of
“ameliorating the severity of the more extreme
punishment,” U nited States v. Jackson, 390 U.S. 570,
582 (1968), it reintroduces exactly the kind of
arbitrary selectivity condemned in Furm an ,96
95NEWMAN, CONVICTION: THE DETERMINATION OF
GUILT OR INNOCENCE WITHOUT TRIAL 41 (1966).
“A major characteristic of criminal justice administration
particularly in jurisdictions characterized by legislatively
fixed sentences, is charge reduction to elicit a plea of
guilty.”
Id. at 76.
96Although properly supervised plea bargaining may not
violate Due Process, see Brady v. United States, 397 U.S. 742,
750-755 (1970), the result of plea bargaining practices may
nevertheless render the administration of a capital punishment
statute invalid under Furman v. Georgia. This is so for the same
reason that the approval of standardless jury sentencing under
the Due Process Clause in McGautha v. California, 402 U.S. 183
(1971), did not imply (as the subsequent Furman decision made
clear) that the results of such a procedure complied with the
Eighth Amendment.
62
C. Jury Discretion
Despite the annulment of explicit sentencing dis
cretion following a first degree murder conviction, a
North Carolina jury still has broad license to spare the
life of a capital defendant. It may do so by convicting
him of a lesser homicide offense, an attempt or an
assault, or by recognizing some amorphously defined
defense as a justification or mitigation of the offense, as
well as by acquitting him altogether in the teeth of the
evidence. Although this jury discretion is less straight
forward than under North Carolina’s pre-Waddell capital
procedure, it is equally selective, and its greater
diffusion merely injects greater arbitrariness into the
disposition of capital offenders at the trial stage.
North Carolina General Statutes § 15-170 (repl. vol.
1969) provides that:
“ [ujpon the trial of any indictment the prisoner
may be convicted of the crime charged therein or
of a less degree of the same crime. . . .”
Petitioner’s jury was charged on manslaughter, second
degree murder, and first degree murder (A. 69-84),
thereby giving it a de fac to sentencing power to impose
any punishment from a term of four months
imprisonment (N.C. Gen. Stat. § 14-18 (repl. vol.
1969)) to a “mandatory” death penalty (N.C. Gen.
Stat. § 14-17 (repl. vol. 1969)). The instructions given
to this jury are representative of those utilized in most
cases where a defendant is charged with “premeditated
and deliberated” first degree murder; and a charge on
lesser included offenses is not infrequently given even in
cases of first degree murder allegedly committed during
a felony, see S tate v. Knight, 248 N.C. 384, 103 S.E.2d
63
452 (1958), or by poisoning, see S ta te v. M atthews,
142 N.C. 621, 55 S.E. 342 (1906). For not only is it
the rule that a defendant may demand a lesser-
included-offense instruction as a matter of right
whenever any evidence could conceivably support a
lesser conviction,97 but — as we shall see below98 — no
effective restraint is imposed upon the trial judge’s
submission of lessers to the jury in the absence of any
such evidence.
97“I f . . . there is any evidence, or if any inference can be
fairly deduced therefrom, tending to show one of the lower
grades of murder, it is then the duty of the trial court under
appropriate instructions to submit that view to the jury.” State
v. Knight, 248 N.C. 384, 103 S.E.2d 452, 456 (1958) (quoting
State v. Spivey, 151 N.C. 676, 65 S.E. 995, 999 (1909)); State
v. Childress, 228 N.C. 208, 45 S.E.2d 42, 44 (1947). If there is
no evidence at all that a defendant was guilty of a lesser included
offense, a defendant may not be able to demand such a charge as
a matter of right, State v. Griffin, 280 N.C. 142, 185 S.E.2d
149, 151 (1971); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393,
397 (1971); State v. Roseman, 279 N.C. 573, 184 S.E.2d 289,
294 (1971); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545, 547
(1954) ; State v. Brown, 227 N.C. 383, 42 S.E.2d 402, 404
(1947); State v. Cox, 201 N.C. 357, 160 S.E. 358, 360 (1931),
and a trial judge has discretion to charge that a defendant is
either guilty of the capital crime or not guilty of any crime,
State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, 642-643
(1972); State v. Scales, 242 N.C. 400, 87 S.E.2d 916, 921
(1955) ; State v. Mays, 225 N.C. 486, 35 S.E.2d 494, 496 (1945);
State v. Satterfield, 207 N.C. 118, 176 S.E. 466, 467-468
(1934); State v. Chavis, 80 N.C. 353, 357-358 (1879). However,
if a lesser-included offense charge is given in such a situation, and
if a defendant is convicted of the lesser without evidentiary
support, the conviction will nevertheless be affirmed on appeal.
See State v. Matthews, 142 N.C. 621, 55 S.E. 342 (1906),
discussed in text at p. 78 infra.
9&See text and notes at notes 117-119 infra.
64
The Supreme Court of North Carolina has frequently
reversed convictions for capital first degree murder"
because the trial court failed to give a charge on second
degree murder,* 100 voluntary manslaughter,101 or involun
tary manslaughter.102 Indeed, the right to a lesser-
included-offense charge is considered so important in
"The rule in North Carolina is that “the judge’s failure to
submit the question of defendant’s guilt of the lesser included
offense is not cured by a verdict convicting the defendant of the
highest offense charged in the bill,” State v. Freeman, 275 N.C.
662, 170 S.E.2d 461, 465 (1969).
100State v. Knight, 248 N.C. 384, 103 S.E.2d 452 (1958);
State v. Game, 227 N.C. 26, 40 S.E.2d 463 (1946); State v.
Perry, 209 N.C. 604, 184 S.E. 545 (1936); State v. Newsome,
195 N.C. 552, 143 S.E. 187 (1928). When the State attempts to
prove “willful, deliberate and premeditated killing,” N.C. Gen.
Stat. §14-17 (repl. vol. 1969), which did not occur during the
course of a felony and was not committed by poison or lying in
wait, the jury may decline to return a first degree verdict and
convict instead for second degree murder, since “the jury before
whom the offender is tried shall determine in their verdict
whether the crime is murder in the first degree or second
degree,” N.C. Gen. Stat. §15-172 (repl. vol. 1969), and since
“the jury alone may determine whether an intentional killing has
been established where no judicial admission of the fact is made
by the defendant.” State v. Todd, 264 N.C. 524, 142 S.E.2d
154, 158 (1965). Cf State v. Phillips, 264 N.C. 508, 142 S.E.2d
337, 341-343 (1965); State v. Drake, 8 N.C. App. 214, 174
S.E.2d 132, 135 (1970).
101State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959); State
v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924); State v.
Merrick, 171 N.C. 788, 88 S.E. 501 (1916). Cf. State v.
Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969).
102State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Cf.
State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972); State v.
Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969).
65
North Carolina that its omission is held to be reversible
error even when the defendant fails to request it. State
v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1910); S ta te v.
Wagoner, 249 N.C. 637, 107 S.E.2d 83 (1959). See
State v. Moore, 275 N.C. 198, 166 S.E.2d 652, 661
(1969); Sta te v. DeGraffenreid, 223 N.C. 461, 27
S.E.2d 130, 132 (1943). Trial judges are therefore
advised to err on the side of inclusion; and, once
lesser-offense instructions on second degree murder and
manslaughter are included in a first degree murder trial,
the jury is given essentially unrestricted discretion to
convict alternatively for any of the three crimes. The
definitions of the respective offenses under North
Carolina law do not distinguish them except in terms of
vague, intangible and elusive elements that remain as
intractable to objective fact-finding as they are inviting
to “any amount of purely ‘discretionary’ decision.” 103
North Carolina General Statutes § 14-17 (repl. vol.
1969) defines as murder in the first degree any
“murder which shall be perpetrated by means of
poison, lying in wait, imprisonment, starving,
torture, or by any other kind of willful, deliberate
and premeditated killing, or which shall be
committed in the perpetration or attempt to
perpetrate any arson, rape, robbery, burglary or
other felony.”
It then declares second degree murder to be “ [a] 11
103 BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 47 (1974).
66
other kinds of murder.”104 Thus, in a case like
petitioner’s, “ [mjurder in the first degree is the
unlawful killing of a human being with malice,
premeditation, and deliberation.” State v. Moore, 275
N.C. 198, 166 S.E.2d 652,, 657 (1969). See also S ta te
v. Faust, 254 N.C. 101, 118 S.E.2d 769, 771-773
(1961); State v. Payne, 213 N.C. 719, 197 S.E. 573,
579 (1938). “Murder in the second degree is the
unlawful killing of a human being with malice, but
without premeditation and deliberation.” S ta te v. Foust,
258 N.C. 453, 128 S.E.2d 889, 892 (1963). See also
State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 337
(1969); State v. Sm ith , 221 N.C. 278, 20 S.E.2d 313,
320 (1942).105 Manslaughter is not defined by statute106
but has been declared judicially to be “the unlawful
killing of a human being without malice and without
premeditation and deliberation.” State v. Kea, 256 N.C.
104The crime of murder was divided into two degrees in 1893.
See N.C. Acts 1893, ch. 85. Since this date, the common law
definition of murder as an unlawful and malicious killing has
been applicable only to second degree murder; and to constitute
statutory first degree murder, “the killing must be ‘wilful,
deliberate, and premeditated.’ ” State v. Rhyne, 124 N.C. 847,
33 S.E. 128, 129 (1899). Before 1893, “ [a]ny unlawful killing
of a human being with malice aforethought, express or implied,
was murder and was punishable by death.” State v. Benton, 276
N.C. 641, 174 S.E.2d 793, 803 (1970).
105“Murder in the first degree is sometimes defined as murder
in the second degree plus premeditation,” State v. Benton, 276
N.C. 641, 174 S.E,2d 793, 804 (1970).
106North Carolina General Statutes §14-18 (repl. vol. 1969)
merely provides that the punishment for “manslaughter” shall be
imprisonment “ for not less than four months nor more than
twenty years.”
67
492, 124 S.E.2d 174, 175 (1962). See also S ta te v.
Benge, 272 N.C. 261, 158 S.E.2d 70, 72 (1967); State
v. Baldwin, 152 N.C. 822, 68 S.E. 148, 151 (1910).
The constituent elements that mark the lines between
first and second degree murder and manslaughter are
extraordinarily hazy and amorphous. “The crime of
murder in the first degree is distinguished by a mental
process or psychological condition none [too] . . . easy
of expression.” Sta te v. Sm ith , 221 N.C. 278, 20 S.E.2d
313, 320 (1942). Indeed, the North Carolina Supreme
Court has declared that the reason for the statutory
division of murder into two degrees in 1893 was to
“select . . . out of all murders denounced by the
common law those deemed more heinous on account of
the mode of their perpetration.” Sta te v. Streeton, 231
N.C. 301, 56 S.E.2d 649, 652 (1949). See also S tate v.
Cole, 132 N.C. 1069, 44 S.E. 391, 393 (1903).
“The passage of the Act of 1893 marks an era in
the judicial history of the state. As far as we can
ascertain, every other state had previously divided
the common-law kind of murder into two classes.
The theory upon which this change has been made
is that the law will always be executed more
faithfully when it is in accord with an enlightened
idea of justice. Public sentiment has revolted at the
thought of placing on a level in the courts one
who is provoked by insulting words (not deemed
by the common law as any provocation whatever)
to kill another with a deadly weapon, with him
who waylays and shoots another in order to rob
him of his money, or poisons him to gratify an old
grudge. So long as artificial proof of malice is
allowed to raise the presumption of murder, this
new law will fail to accomplish the object for
which it was framed . . . . It is not the severity of
68
laws, but the certainty of their execution, that
accomplishes the end that should be always in
view in enforcing them. Heretofore public opinion
has approved, and often applauded, the conduct of
juries in disregarding the instructions of judges as
to the technical weight to be given to the use of a
deadly weapon. The consequence has been that, a
lax administration of the law being tolerated in
such cases, other juries have constituted themselves
judges of the law as well as of the facts, when
proof has shown a more heinous offense. The
experience of a few years will probably demon
strate here, as elsewhere, that fewer criminals will
escape under a law which is in accord with the
public sense of justice than under one which
makes no discrimination between offenses differing
widely in the degree of moral turpitude exhib
ited.”
State v. Fuller, 114 N.C. 885, 19 S.E. 797, 802
(1894).107
m Cf State v. Locklear, 118 N.C. 1154, 24 S.E. 410, 411
(1896) (emphasis in original):
“the act of 1893 says in express terms that the jury before
whom the case is tried shall determine the degree of
murder. And we do not understand this to mean an
unbridled, arbitrary, or mob finding, any more than it was
before the statute. Even before the act of 1893 we all
know that it was within the power of the jury to acquit
and turn loose a prisoner, no matter how guilty he might
be, and the court was powerless. In fact, it is alleged that
they often did this. But is is expected they will find the
facts, and apply them to the law given by the court,
determine whether the prisoner is guilty or not, and, if
guilty, in what degree. We see no reason why they should
act differently now to what they did before the statute,
and we do not believe they are any more disposed to take
the law in their own hands in deciding cases under the act
of 1893 than they were before.”
69
First degree murder is defined broadly, though
vaguely:
“ ‘[m]alice aforethought’ was a term used in
defining murder prior to the adoption of the
statute dividing murder into degrees. As then used
it did not mean an actual, express or preconceived
disposition; but imported an intent, at the
moment, to do without lawful authority, and
without the pressure of necessity, that which the
law forbade . . . . As used in . . . G.S. § 14-17, the
term ‘premeditation and deliberation’ is more
comprehensive and embraces all that is meant by
‘aforethought’, and more.”
State v. H ightower, 226 N.C. 62, 36 S.E.2d 649, 650
(1946).108 The difference between first and second
degree murder turns on the presence or absence of
“premeditation” and “deliberation” :
“ [p] remeditation means ‘thought beforehand for
some length of time, however short.’
‘Deliberation means that the act is done in [a]
cool state of blood. It does not mean brooding
over it or reflecting upon it for a week, a day or
an hour, or any other appreciable length of time,
but it means an intention to kill,109 executed by
the defendant in a cool state of blood, in
lmSee also State v. Smith, 221 N.C. 278, 20 S.E.2d 313, 320
(1942):
“ [a]s pointed out by the Attorney General, ‘aforethought
is defined as “premeditated” (Century, Webster), and
“premeditated” is defined as “deliberate.” ’ ”
109The intention to kill which is required for first degree
murder, see, e.g., State v. Robbins, 275 N.C. 537, 169 S.E.2d
858, 861 (1969); State v. Stitt, 146 N.C. 643, 61 S.E. 566, 567
(1908), is sometimes said to be merely an element of
premeditation and deliberation. State v. Propst, 274 N.C. 62, 161
S.E.2d 560, 567 (1968); c f State v. Gordon, 241 N.C. 356, 85
S.E.2d 322, 324 (1955).
70
furtherance of a fixed design to gratify a feeling of
revenge, or to accomplish some unlawful purpose,
and not under the influence of a violent passion,
suddenly aroused by some lawful or just cause or
legal provocation.’ ”
State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 71
(1970) (quoting Sta te v. Benson, 183 N.C. 795, 111
S.E. 869, 871 (1922)). See also S tate v. Fountain, 282
N.C. 58, 191 S.E.2d 674, 683 (1972); State v. Benson,
supra. “ ‘No fixed length of time is required for the
mental processes of premeditation and delibera
tion . . . and it is sufficient if these processes occur prior
to, and not simultaneously with, the killing,’ ” Sta te v.
Perry, 276 N.C. 339, 172 S.E.2d 541, 547 (1970)
(quoting 4 STRONG, NORTH CAROLINA INDEX 196
(2d ed. 1958)). The determination whether “premedita
tion” and “deliberation” exist is necessarily given over
almost entirely to the intuition of the jury110 because
these elements “are not usually susceptible of direct
proof, and are therefore susceptible of proof by
110
“The line which separates felonious homicides committed
. . . without premeditation, from those accompanied by the
additional mental condition called ‘premeditation,’ is
shadowy and difficult to fix. The law cannot safely
prescribe any uniform and universal rule in regard thereto.
As in questions of negligence and the like, it can only
define the term, and submit the question of its existence to
the jury. It is well settled that the state of mind, intent,
sanity, etc., is always a question of fact for the jury.”
State v. Daniels, 134 N.C. 671, 46 S.E. 991, 993 (1904). See
also note 111 infra.
71
circumstances from which the facts sought to be proved
may be inferred.” Sta te v. Walters, 275 N.C. 615, 170
S.E.2d 484, 490 (1969).
“Malice,” the factor that separates murder from
manslaughter, is equally a matter of inference - and
often of inference (or presumption) from the same
basic facts that might support the jury’s inference of
premeditation and deliberation.111
lhSee, e.g„ State v. Duboise, 279 N.C. 73, 181 S.E.2d 393,
398-399 (1971) (alternative ground), and cases cited.
For example, the North Carolina cases say that malice is
“implied” {see State v. Benson, 183 N.C. 795, 111 S.E. 869, 871
(1922), quoted in text pp. 72-74 infra; and see, e.g., State v. Payne,
213 N.C. 719, 197 S.E. 573, 579 (1938); State v. Cox, 153 N.C.
638, 69 S.E. 419, 421 (1910); State v. McDowell, 145 N.C. 563,
59 S.E. 690, 692 (1907)) or “presumed” {see State v. Sparks,
_____ N.C. _____ , 207 S.E.2d 712, 719 (1974); State v.
Phillips, 264 N.C. 508, 142 S.E.2d 337, 341 (1965)) whenever
the defendant’s intentional discharge of a deadly weapon results
in death. This principle plainly involves an evidentiary presump
tion that throws upon the defendant the burden of proving
(either through the presentation of evidence or through the
appearance of mitigating circumstances in the State’s case, e.g..
State v. Vann, 162 N.C. 534, 77 S.E. 295, 298 (1913)) that a
killing with a firearm was non-malicious. State v. Jackson, 284
N.C. 383, 200 S.E.2d 596, 599-600 (1973); State v. Freeman,
275 N.C. 662, 170 S.E.2d 461, 464 (1969); State v. Prince, 223
N.C. 392, 26 S.E.2d 875, 876 (1943), and cases cited. Whether it
also means that the prosecution is always entitled to a second
degree murder submission in a case where the defendant is armed
with a firearm is unclear. State v. Downey, 253 N.C. 348, 117
S.E.2d 39, 43 (1960), implies this conclusion, although earlier
cases suggest the contrary. See State v. Baldwin, 152 N.C. 822,
68 S.E. 148, 151-152 (1910); State v. Miller, 112 N.C. 878, 17
S.E. 167, 168-169 (1893).
(continued)
72
“Malice is not only hatred, ill will or spite, as it is
(footnote continued from proceeding page)
Since State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894), the
North Carolina Supreme Court has consistently iterated the rule
that premeditation and deliberation — unlike malice— are not
“presumed” from an intentional discharge of a deadly weapon
resulting in death. E.g., State v. Reams, 277 N.C. 391, 178
S.E.2d 65, 71 (1970). As expressed in Fuller, this doctrine
seemed to forbid a permissive inference, as well as a presumption,
of premeditation and deliberation. However, later expressions of
the Fuller rule speak only of the impropriety of a “presump
tion,” see e.g., State v. Reams, supra, 178 S.E.2d at 71; State v.
Faust, 254 N.C. 101, 118 S.E.2d 769, 772 (1961); State v.
Lamm, 232 N.C. 402, 61 S.E.2d 188, 190 (1950); State v.
Bowser, 214 N.C. 249, 199 S.E. 31, 33 (1938); State v. Miller,
197 N.C. 445, 149 S.E. 590, 592 (1929); cf. State v. Booker,
123 N.C. 713, 31 S.E. 376, 380 (1898), and of the shift of the
burden of proof which a true presumption implies, cf. State v.
Propst, 274 N.C. 62, 161 S.E.2d 560, 566-568 (1968). Collateral
doctrinal developments have undercut the notion that an
inference of premeditation and deliberation may not be drawn
from intentional use of a deadly weapon: “ [p] remeditation and
deliberation are not usually susceptible to direct proof but must
be established from the circumstances surrounding the homi
cide.” State v. Sanders, 276 N.C. 598, 174 S.E.2d 487, 499
(1970), rev’d on other grounds, 403 U.S. 948 (1971); see also
State v. Britt, 285 N.C. 256, 204 S.E.2d 817, 822 (1974); State
v. Evans, 198 N.C. 82, 150 S.E. 678, 679-680 (1929); State v.
Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 160 (1973). The
jury is to determine premeditation and deliberation from “ ‘all
the attendant circumstances’ ” under which the homicide is
committed, State v. Bowser, 214 N.C. 249, 199 S.E. 31, 34
(1938), including “the manner of the killing, [the defendant’s]
. . . acts and conduct attending its commission,” State v.
Robertson, 166 N.C. 356, 81 S.E. 689, 692 (1914); any “vicious
and brutal circumstances,” State v. Duboise, 279 N.C. 73, 181
(continued)
73
ordinarily understood — to be sure that is malice
(footnote continued from proceeding page)
S.E.2d 393, 399 (1971); and the “use of grossly excessive force,”
State v. Britt, 285 N.C. 256, 204 S.E.2d 817, 822 (1974)
(quoting State v. Van Landingham, 283 N.C. 589, 197 S.E.2d
539, 545 (1973)). “ [P] remeditation and deliberation may be
inferred from a vicious and brutal slaying of a human being.”
State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 71 (1970). Thus,
it is no surprise that the North Carolina Supreme Court has
abandoned its early occasional practice of reversing first degree
murder convictions (see State v. Cole, 132 N.C. 1069, 44 S.E.
391 (1903); State v. Bishop, 131 N.C. 733, 42 S.E. 836 (1902)
(alternative ground); State v. Rhyne, 124 N.C. 847, 33 S.E. 128
(1899); State v. Thomas 118 N.C. 1113, 24 S.E. 431 (1896)
(alternative ground) ) for insufficiency of evidence of premedita
tion and deliberation. Not since 1903 has a North Carolina
appellate court held evidence insufficient to permit a finding of
premeditation and deliberation, and therefore to support a first
degree murder conviction — even though reversals for insufficient
evidence of matters such as identity are common, e.q., State v.
Poole, 285 N.W. 108, 203 S.E.2d 786 (1974) (capital burglary);
State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971) (second
degree murder). Numerous cases sustain first degree murder
verdicts where virtually nothing more than an unprovoked killing
with a deadly weapon was established by the prosecution. See,
e.g., State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970); State
v. Old, 272 N.C. 42, 157 S.E.2d 651 (1967); State v. Lamm, 232
N.C. 402, 61 S.E.2d 188 (1950); State v. Matheson, 225 N.C.
109, 33 S.E.2d 590 (1945); State v. Hammonds, 216 N.C. 67, 3
S.E.2d 439 (1939); State v. Walker, 173 N.C. 780, 92 S.E. 327
(1917); State v. Ferguson, 17 N.C. App. 367, 194 S.E.2d 217
(1973).
The upshot, then, is that, in all but perhaps the rarest case of
a killing by a defendant armed with a deadly weapon, no judicial
control is exercised over the power of the jury to convict of any
offense from manslaughter through first degree murder. The jury
may or may not infer premeditation and deliberation from the
same evidence which gives rise to the presumption of malice; and
it may or may not find that presumption overcome to its
“satisfaction” (see pp. 82-83 infra) by evidence of mitigation.
74
- but it also means that condition of mind which
prompts a person to take the life of another
without just cause, excuse or justification . . . . It
may be shown by evidence of hatred, ill will, or
dislike, and it is implied in law from the killing
with a deadly weapon. . . .”
State v. Benson, 183 N.C. 795, 111 S.E. 869, 871
(1922).112 See also S ta te v. Foust, 258 N.C. 453, 128
S.E.2d 889, 893 (1963); State v. Baldwin, 152 N.C.
112Proof of a fight between the decedent and the defendant or
threats uttered by the decedent to the defendant is often
sufficient to negate the inference of malice. See, e.g., the
following cases in which defendant was convicted of man
slaughter: State v. Benge, 272 N.C. 261, 158 S.E.2d 70, 70-72
(1967); State v. Camp, 266 N.C. 626, 146 S.E.2d 643, -644-645
(1966); State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924, 925
(1949); State v. Church, 229 N.C. 718, 51 S.E.2d 345, 346
(1949); State v. Beachum, 220 N.C. 531, 17 S.E.2d 674, 675
(1941); State v. Bright, 215 N.C. 537, 2 S.E.2d 541, 542 (1939);
State v. Reynolds, 212 N.C. 37, 192 S.E. 871, 871 (1937); State
v. Baldwin, 184 N.C. 789, 114 S.E. 837, 838 (1922); State v.
Yates, 155 N.C. 450, 71 S.E. 317, 317-318 (1911). However, a
verdict of second degree murder is often affirmed in cases arising
out of similar factual circumstances. See, e.g., the following cases
in which defendant was convicted of second degree murder; State
v. Cole, 280 N.C. 398, 185 S.E.2d 833, 833-834 (1972); State v.
Feaganes, 272 N.C. 246, 158 S.E.2d 89, 89-90 (1967); State v.
Barber, 270 N.C. 222, 154 S.E.2d 104, 105-107 (1967); State v.
Morgan, 245 N.C. 215, 95 S.E.2d 507, 507-508 (1956); State v.
Wingler, 238 N.C. 485, 78 S.E.2d 303, 305-306 (1953); State v.
Russell, 233 N.C. 487, 64 S.E.2d 579, 580 (1951); State v.
Taylor, 226 N.C. 286, 37 S.E.2d 901, 901-902 (1946); State v.
Brinkley, 183 N.C. 720, 110 S.E. 783, 785-786 (1922); State v.
Gentry, 125 N.C. 733, 34 S.E. 706, 706-707 (1899); State v.
Rummage, 19 N.C. App. 239, 193 S.E.2d 475 (1972).
75
822, 68 S.E. 148, 151 (1910); State v. Tilley, 18 N.C.
App. 300, 196 S.E.2d 816, 818 (1973).
Definitions of this kind allow a jury almost complete
freedom to return a capital or non-capital verdict not
only upon the same evidence but upon the same factual
interpretation of the evidence, finding or declining to
find “premeditation,” “deliberation” or “malice” in
accordance with the desired sentencing consequences.
To .recognize this obvious truth is not to impugn the
fidelity of jurors to their oaths but only to
acknowledge that they are human. See Jackson v.
Denno, 378 U.S. 368, 388-389 (1964). Legal formula
tions spelling the difference between life and death in
terms that are “refractory to the best-instructed human
understanding”113 do not merely permit — they
imperatively require — the exercise of non-objective,
non-factual, discretionary judgments and “the play
o f . . . prejudices.”114 “ [I]n a great many close cases, no
matter how patiently the judge tries to explain to the
jury that which he himself only cloudily understands,
the net result must be that twelve laypersons have no
alternative to using their general sense of the equities of
the matter.”115 Long ago, Justice (then Chief Judge)
Cardozo recognized that the obscure distinctions
between capital and non-capital grades of homicide — in
particular, the concept of premeditation and deliber-
113Black, Crisis in Capital Punishment, 31 MD. L. REV. 289,
299 (1971).
w Furman v. Georgia, supra, 408 U.S. at 242 (concurring
opinion of Mr. Justice Douglas).
11SBLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 49-50 (1974).
76
ation — amounted largely to an indirect “dispensing
power” of mercy:
. . the distinction [between first and second
degree murder] is much too vague to be continued
in our l a w. . . . [t]he statute is framed
along the lines of a defective and unreal
psychology. . . . What we have is merely a privilege
offered to the jury to find the lesser degree when
the suddenness of the intent, the vehemence of the
passion, seems to call irresistibly for the exercise
of mercy. I have no objection to giving them this
dispensing power, but it should be given to them
directly and not in a mystifying cloud of words.
The present distinction is so obscure that no jury
hearing it for the first time can fairly be expected
to understand it. I am not at all sure that I
understand it myself after trying to apply it for
many years and after diligent study of what has
been written in the books. Upon the basis of this
fine distinction with its obscure and mystifying
psychology, scores of men have gone to their
death.”116
116CARDOZO, LAW AND LITERATURE 99-101 (1931). To
speak of a “dispensing power,” of course, is to describe only the
benign half of what juries do when they “answer ‘yes’ or ‘no’ to
the question whether this defendant was fit to live,” Witherspoon
v. Illinois, 391 U.S. 510, 521 n.20 (1968). A “yes” answer, “ like
the decision of the prosecutor to accept a plea of guilty in the
plea-bargaining process, sounds good; somebody escapes death.
The trouble is that if you turn the coin around, somebody else
suffers death because the jury did not find him guilty of a lesser
offense rather than of the capital charge. And if the jury’s milder
verdict may be a function of its sympathies, then its sterner
verdict, by inevitable logic, may be a function of its lack of
sympathy.” BLACK, CAPITAL PUNISHMENT, THE INEVITA-
(continued)
77
We have already seen that the “privilege” described
by Justice Cardozo “to find the lesser degree” must be
afforded to the jury under North Carolina law when
there is “any evidence, or . . . any inference . . .
therefrom”117 of an unpremeditated or a non-malicious
killing, within the vague contours of those unillumina
ting terms. But even that is not the whole story of the
trial judge’s or the jury’s discretion in regard to lessers.
For. in North Carolina, a jury may also be charged on a
lesser included offense where there is no evidence to
(footnote continued from proceeding page)
BILITY OF CAPRICE AND MISTAKE 47 (1974) (emphasis in
original).
Although it seems superfluous to make this point after
Furman, we may note that the oft-quoted passage in
Witherspoon v. Illinois, supra, regarding the jury’s function in
maintaining “a link between contemporary community values
and the penal system,” 391 U.S. at 519 n.15, did not state or
imply the propriety of a system under which different juries
decided whether different defendants were fit to live or die
according to the particular reflection of community values
fortuitously mirrored by the particular jury. The Witherspoon
passage rather carefully states that, where a legislature has left
the life-or-death sentencing choice to be made by juries without
any guiding principles, preferences or standards, the juries’
function is to reflect community attitudes regarding the death
penalty — with the consequence that the reflection may not be
distorted by improper jury-selection practices. The “where”
clause in this analysis is a description of Illinois law (not
challenged in Witherspoon): it is not a prescription for desirable
or constitutional jury performance.
niState v. Knight, 248 N.C. 384, 103 S.E.2d 452, 456
(1958), quoted more fully in note 97 supra.
78
support such a charge, and a conviction for the lesser
offense will be sustained on appeal.118 Sta te v. B enton ,
276 N.C. 641, 174 S.E.2d 793 (1970); Sta te v.
Robertson, 210 N.C. 266, 186 S.E. 247 (1936)] S ta te v.
Bryson, 173 N.C. 803, 92 S.E. 698 (1917). In Sta te v.
M atthews, 142 N.C. 621, 55 S.E. 342 (1906), for
example, the appellant, who had been convicted of
second degree murder, claimed that an indictment for
murder by poisoning necessarily implied that he was
either guilty of first degree murder or innocent of any
crime. The Court affirmed, stating that such a
conviction was within the power of the jury, 55 S.E. at
343, and that “whatever the reasoning of the jury, the
prisoner has no cause to complain that he was not
convicted of the higher offense.” 55 S.E. at 344. In
State v. Quick, 150 N.C. 820, 64 S.E. 168, 170 (1909),
the Court held that the giving of a manslaughter charge
in a first degree murder case had been proper:
“ [sjuppose the court erroneously submitted to the
jury a view of the case not supported by evidence
whereby the jury were permitted, if they saw fit,
to convict of manslaughter instead of murder,
118 The Supreme Court of North Carolina has occasionally
disapproved of this practice, State v. Bryant, 280 N.C. 551, 187
S.E.2d 111, 114 (1972); State v. Allen, 279 N.C. 115, 181
S.E.2d 453, 457 (1971); State v. Bentley, 223 N.C. 563, 27
S.E.2d 738, 741 (1943), but it has never reversed a conviction of
a lesser included offense on the ground that there was no
evidence to justify submitting such an offense to the jury.
79
what right has the defendant to complain? It is an
error prejudicial to the state, and not to him.” 119
In State v. Bentley, 223 N.C. 563, 27 S.E.2d 738, 740
(1943), the Court declared:
“ [i] f we are to understand the appellant to base
his demand for discharge merely on the fact that
the jury by an act of grace has found him guilty
of a minor offense, of which there is no evidence,
instead of the more serious offense charged, this is
to look a gift horse in the mouth; more especially,
since the conclusion that there is no evidence must
be reached by conceding that all the evidence,
including the admission of the defendant, points to
a graver crime. Such verdicts occur now and
then, despite the efforts of the courts to
discourage them. When they do, although illogical
or even incongruous, since they are favorable to
the accused, it is settled law that they will not be
disturbed.”
The jury has the further statutory power in felony
cases to find a defendant guilty of either an attempt to
commit the crime charged in the indictment or an
assault with intent to commit that crime. North
Carolina General Statutes § 15-170 (repl. vol. 1969)
provides:
119“An error on the side of mercy is not reversible . . . . ” State
v. Fowler, 151 N.C. 731,66 S.E. 567, 567 (1909). Accord: State
v. Rowe, 155 N.C. 436, 71 S.E. 332, 337 (1911). See also State
v. Vestal, 283 N.C. 249, 195 S.E.2d 297, 299-300 (1973); State
v. Freeman, 275 N.C. 662, 170 S.E.2d 461, 466 (1969); State v.
Johnson, 218 N.C. 604, 12 S.E.2d 278, 288 (1940); State v.
Hall, 214 N.C. 639, 200 S.E. 375, 377 (1939); State v. Ratliff,
199 N.C. 9, 153 S.E. 605, 606 (1930).
80
“ [u]pon the trial of any indictment the prisoner
may be convicted of the crime charged therein . . .
or of an attempt to commit the crime so charged,
or of an attempt to commit a less degree of the
same crime.”
And N.C. Gen. Stat. § 15-169 (repl. vol. 1969) provides
that:
“ [o]n the trial of any person for . . . any felony
whatsoever, when the crime charged includes an
assault against the person, it is lawful for the jury
to acquit of the felony and to find a verdict of
guilty of assault against the person indicted, if the
evidence warrants such a finding . . . .”
Failure of the trial court to instruct the jury on
attempt or assault may be reversible error. Sta te v.
Williams, 185 N.C. 685, 116 S.E. 736 (1923).120
Additional avenues for avoidance of a “mandatory”
death penalty for first degree murder are provided by
the power of North Carolina juries to allow a variety of
indefinitely defined defenses, justifications and mitiga
tions to the capital charge. These include the complete
defenses of self-defense (or defense of others), Sta te v.
Robinson, 213 N.C. 273, 195 S.E. 824, 829 (1938),
and insanity, Sta te v. A tk inson , 275 N.C. 288, 167
S.E.2d 241, 256-257 (1969); provocation and passion,
State v. Merrick, 171 N.C. 788, 88 S.E. 501, 503
lwSee also State v. Green, 246 N.C. 717, 100 S.E.2d 52,
53-54 (1957); State v. Roy, 233 N.C. 558, 64 S.E.2d 846, 841
(1951); State v. Webb, 20 N.C. App. 199, 200 S,E.2d 840, 841
(1973). Cf State v. Bryant, 280 N.C. 551, 187 S.E.2d 111,
116-118 (1972) (dissenting opinion of Mr. Chief Justice
Bobbitt). “ An assault with intent to commit rape is a lesser
degree of the felony and crime of rape. It is well settled with us
that an indictment for rape includes an assault with intent to
commit rape.” State v. Green, 246 N.C. 717, 100 S.E.2d 52, 54
(1957).
81
(1916); Sta te v. Johnson, 23 N.C. 354, 359, 362
(1840); and “imperfect” self-defense, Sta te v. Thomas,
184 N.C. 757, 114 S.E. 834, 836 (1922), which serve
to reduce murder to manslaughter — doctrines of
particular significance because “every practitioner, who
has had any experience in the trial of capital cases,
knows how prone juries are to compromise a capital
case upon the middle ground of manslaughter,” Sta te v.
Brittain, 89 N.C. 481, 501 (1883); and intoxication,
which may avert at least a conviction of murder in the
first degree, Sta te v. H am m onds, 216 N.C. 67, 3 S.E.2d
439, 446-447 (1939). Each of these doctrines involves
an “affirmative” defense which the jury may or may
not choose to accept upon the evidence urged by the
defendant to support it; each requires largely subjective
judgments by jurors in the application of principles of
the greatest vagueness and imprecision;121 and the
121,fhe contours of each North Carolina doctrine mentioned
above are described in the following paragraphs, with the
exception of insanity. Concerning the implications of the insanity
defense as a means of avoiding capital punishment, see BLACK,
CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE
AND MISTAKE 50-55 (1974). North Carolina employs the
traditional M’Naghten test of legal insanity, State v. Humphrey,
283 N.C. 570, 196 S.E.2d 516, 518-519 (1973), whose
amorphousness is notorious, see, e.g., GOLDSTEIN, THE
INSANITY DEFENSE 44-66 (1967). And two ancillary North
Carolina doctrines effectively consign the insanity defense to the
complete discretion of the jury. First, the quantum of evidence
suggesting mental abnormality which is ordinarily necessary to
raise the issue for the jury’s consideration is extremely small, c f
State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, 256-257
(1969), rev’d on other grounds, 403 U.S. 948 (1971); State v.
Harris, 223 N.C. 697, 28 S.E.2d 232, 237 (1943), except,
perhaps, where the nature of the testimony is not directed to the
M’Naghten issue, see State v. Helms, 284 N.C. 508, 201 S.E.2d
850, 852-853 (1974). Second, the burden of proof upon the
issue is the “satisfaction of the jury” test (see pp. 82-83 infra),
and “ [t] he jury alone is the judge of its satisfaction.” State v.
Harris, supra, 28 S.E.2d at 237-238.
82
peculiar North Carolina burden of proof on these issues
- evidence “sufficient to satisfy” the jury - explicitly
invites the making of those judgments in a wholly
discretionary, non-objective manner.
“ [The North Carolina] cases enunciate and
reiterate the rule — established in our law for over
one hundred years, State v. Willis, 63 N.C. 26
(1868) — that when the burden rests upon an
accused to establish an affirmative defense or to
rebut the presumption of malice which the
evidence has raised against him, the quantum of
proof is to the satisfaction of the jury — not by
the greater weight of the evidence nor beyond a
reasonable doubt — bu t sim ply to the satisfaction
o f the jury. Even proof by the greater weight of
the evidence — a bare preponderance of the proof
— may be sufficient to satisfy the jury, and the
jury alone determines by what evidence it is
satisfied.”
State v. Freeman, 275 N.C. 662, 170 S.E.2d 461, 464
(1969) (emphasis in original).122 “ [T]he intensity of the
122See also State v. Jackson, 284 N.C. 383, 200 S.E.2d 596,
599-600 (1973); State v. Bolin, 281 N.C. 415, 189 S.E.2d 235,
242 (1972); State v. Boyd, 278 N.C. 682, 180 S.E.2d 794, 797
(1971); State v. Winford, 279 N.C. 58, 181 S.E.2d 423, 428
(1971); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 333
(1969); State v. Todd, 264 N.C. 524, 142 S.E.2d 154, 158
(1965); State v. Prince, 223 N.C. 392, 26 S.E.2d 875, 876
(1943); State v. Meares, 222 N.C. 436, 23 S.E.2d 311, 312
(1942); State v. Benson, 183 N.C. 795, 111 S.E. 869, 871
(1922); State v. Garland, 90 N.C. 668, 674-675 (1884); State v.
Calloway, 1 N.C. App. 150, 160 S.E.2d 501, 503 (1968); State
v. Richardson, 14 N.C. App. 86, 187 S.E.2d 435, 437 (1972);
and see State v. Barrett, 132 N.C. 1005, 43 S.E. 832, 833 (1903)
(disapproving instructions that an affirmative defense must be
established by the “greater proof’ or “ stronger proof’).
83
proof required to ‘satisfy the jury’ . . . cannot be
defined by the court as being ‘less than,’ ‘the same as,’
or ‘more than’ the greater weight of the evidence or the
preponderance of the evidence,” STANSBURY,
NORTH CAROLINA EVIDENCE §214 (2d ed. 1963),
because “the jury alone is the judge” of what satisfies
it, Sta te v. Prince, 223 N.C. 392, 265. E.2d 875, 876
(1943). Therefore, the “ ‘accepted formula and the one
that should be used i f risk o f error is to be avoided, is
that the defendant has the burden of proving his
defense (or mitigation) “to the satisfaction of the jury
— not by the greater weight of the evidence nor beyond
a reasonable doubt — but simply to the satisfaction of
the jury.” ’ ” S ta te v. Freeman, supra, 170 S.E.2d at
464 (quoting STANSBURY, op. cit. supra (emphasis in
opinion)).
The elements of which the jury must be thus
“satisfied” are characteristically impressionistic. In
assessing petitioner’s claim of self-defense, for example,
his trial jurors were called upon to decide whether, at
the time of the incident with a man who had beaten
him bloody that afternoon, petitioner had a “reason
able” apprehension of the necessity to kill in order to
avoid suffering death or great bodily harm. See State v.
Watkins, 283 N.C. 504, 196 S.E.2d 750, 754 (1973);
State v. K irby, 273 N.C. 306, 160 S.E.2d 24, 27
(1968); Sta te v. Johnson, 270 N.C. 215, 154 S.E.2d 48,
52 (1967); State v. Fowler, 250 N.C. 595, 108 S.E.2d
892, 894 (1959); Sta te v. Bryant, 213 N.C. 752, 197
S.E. 530, 533 (1938); Sta te v. R obinson, 213 N.C. 273,
195 S.E. 824, 828 (1938). The application of this
principle in the context of a case where the defendant
seeks to prove that a prior fight with the decedent was
84
resumed just before the killing obviously presents
peculiar difficulties. See S ta te v. Winford, 279 N.C. 58,
181 S.E.2d 423 (1971); State v. Baldwin, 152 N.C.
822, 68 S.E. 148 (1910).
“ [0]ne may kill in defense of himself, or his
family, when not actually necessary to prevent
death or great bodily harm, if he believes it to be
necessary and has a reasonable ground for the
belief.”
State v. Marshall, 208 N.C. 127, 179 S.E. 427, 428
(193 5).123 See, e.g., S ta te v. Gladden, 279 N.C. 566,
184 S.E.2d 249, 253 (1971); Sta te v. Todd, 264 N.C.
524, 142 S.E.2d 154, 159 (1965). However, the
defendant must not have been the “aggressor,” State v.
Jackson, 284 N.C. 383, 200 S.E.2d 596, 601 (1973) -
a notion apparently involving concepts of relative
“fault”123 124 — and he must have “used no more force
123 The Marshall case is frequently cited as the leading modern
exposition of the law of self-defense in North Carolina. A more
recent summary is found in State v. Jackson, 284 N.C. 383, 200
S.E.2d 596, 600-601 (1973). See also State v. Jennings, 276 N.C.
157, 171 S.E.2d 447, 450-453 (1970); State v. Kirby, 273 N.C.
306, 160 S.E.2d 24, 26-29 (1968); State v. Goode, 249 N.C. 632,
107 S.E.2d 70, 71-72 (1959); State v. Barrett, 132 N.C. 1005,
43 S.E. 832, 832-835 (1903).
124The North Carolina cases abound with statements that, in
order to prevail on a claim of self-defense, a defendant must have
been “without fault” in provoking the assault against which he
defends. See, e.g., State v. Watkins 283 N.C. 504, 196 S.E.2d
750, 755 (1973); State v. Winford, 279 N.C. 58, 181 S.E.2d 423,
429-431 (1971); State v. Wynn, 278 N.C. 513, 180 S.E.2d 135,
139 (1971); State v. Johnson, 278 N.C. 252, 179 S.E.2d 429,
432 (1971); State v. Davis, 225 N.C. 117, 33 S.E.2d 623, 624
(continued)
85
than was or reasonably appeared necessary under the
circumstances to protect himself from death or great
bodily harm,” Sta te v. B oyd , 278 N.C. 682, 180 S.E.2d
794, 797 (1971). The use of “excessive force” defeats a
claim of self-defense;125 but one who uses excessive
force may nevertheless prevail upon the partial defense
of im perfect self-defense, which reduces murder — even
by an intentional killing — to manslaughter, Sta te v.
Rummage, 280 N.C. 51, 185 S.E.2d 221, 225 (1971);
(footnote continued from proceeding page)
(1945); State v. Robinson, 213 N.C. 273, 195 S.E. 824, 828-830
(1938); State v. Blevins, 138 N.C. 668, 50 S.E. 763, 764 (1905).
In State v. Crisp, 170 N.C. 785, 87 S.E. 511 (1916), the North
Carolina Supreme Court refined the fault concept (“ ‘ a perfect
right of self-defense can only obtain and avail where the party
pleading it acted from necessity and was wholly free from wrong
or blame in occasioning or producing the necessity which
required his actions,’ ” 87 S.E. at 514) by recognizing degrees of
fault: if a defendant begins an affray with the intention of
inflicting great bodily harm, his right of self-defense is lost and
the killing is murder; but if he begins or provokes the affray with
some lesser assault or verbal abuse, his right of self-defense is
rendered “imperfect,” ibid., and he is guilty of manslaughter.
The Crisp principle, turning the right of self-defense upon moral
blame-worthiness, has deep roots in North Carolina law. See, e.g.,
State v. Chavis, 80 N.C. 353, 358 (1879); State v. Ellis, 101 N.C.
765, 7 S.E. 704, 705 (1888).
12sState v. Jackson, 284 N.C. 383, 200 S.E.2d 596, 601
(1973). See also, e.g., State v. Benge, 272 N.C. 261, 158 S.E.2d
70, 72 (1967); State v. McDonald, 249 N.C. 419, 106 S.E.2d
477, 478 (1959); State v. Mosley, 213 N.C. 304, 195 S.E. 830,
832 (1938); State v. Terrell, 212 N.C. 145, 193 S.E. 161, 164
(1937); State v. Marshall, 208 N.C. 127, 179 S.E. 427, 428
(1935); State v. Glenn, 198 N.C. 79, 150 S.E. 663, 664 (1929);
State v. Cox, 153 N.C. 638, 69 S.E. 419, 422 (1910).
86
State v. Wynn, 278 N.C. 513, 180 S.E. 2d 135, 139
(1971); S ta te v. Cooper, 273 N.C. 51, 159 S.E.2d 305,
309 (1968); Sta te v. Robinson, 188 N.C. 784, 125 S.E.
617, 619 (1924); Sta te v. Cox, 153 N.C. 638, 69 S.E.
419, 422 (1910). See also S tate v. Woods, 278 N.C.
210, 179 S.E.2d 358, 363 (1971); State v. R am ey, 273
N.C. 325, 160 S.E.2d 56, 59 (1968). Moreover, one
who kills under the impulse of an unreasonable fear of
death or serious bodily harm may also claim imperfect
self-defense, reducing murder to manslaughter. State v.
Thomas, 184 N.C. 757, 114 S.E. 834, 836-837
(1922);126 and see S tate v. Jennings, 276 N.C. 157, 171
S.E.2d 447, 450 (1970).
Another partial defense that may result in a
manslaughter verdict is provocation and passion. The
North Carolina version of this doctrine is complex.
Provocation alone (isolated from the passion that it
may arouse) is held not to preclude malice but only to
rebut the presumption of malice arising from an
intentional killing with a deadly weapon. S ta te v. * 124
126In addition to the “excessive force” and “unreasonable
fear” varieties of imperfect self-defense, North Carolina law
recognizes other situations in which a killing may be
nonmalicious, and hence merely manslaughter, because the
defendant’s use of deadly force was self-protective although not
legally justifiable under the doctrines pertaining to self-defense.
See State v. Finch, 111 N.C. 599, 99 S.E. 409, 414 (1919);
State v. Yarborough, 8 N.C. 78, 85 (1820). One such situation is
the permutation of the “aggressor” doctrine described in note
124 supra. Another is the situation in which the defendant fails
to comply with the “safe-retreat” requirement for perfect
self-defense. See State v. Garland, 138 N.C. 675, 50 S.E. 853,
854-855 (1905); c f State v. Johnson, 23 N.C. 354, 364 (1840).
87
Johnson, 23 N.C. 354, 359 (1840). Passion aroused by
provocation, on the other hand, is said to be legally
exclusive of malice: “ [i]n law they cannot co-exist.”
Id. at 362. The psychological explanation offered by
the early cases is that passion renders an individual
heedless of the dictate of reason not to kill. See S ta te
v. Hill, 20 N.C. 491, 496 (1839); S ta te v. Baldwin, 152
N.C. 822, 68 S.E. 148, 151-152 (1910). But even from
the.outset the doctrine has been seen as an “indulgence
of the law,” S ta te v. Hill, supra, 20 N.C. at 496, “a
condescension to the frailty of the human frame,” ibid.
“In mitigating the offence to manslaughter where death
ensues upon a sudden rencounter of this sort, the law
shews its indulgence to that frailty of human nature
which urges men, before they have an opportunity for
reflection, to a compliance with those common notions
of honour which forbid either to give way to, or
acknowledge the superior prowess of, the other.” Sta te
v. Jarrott, 23 N.C. 76, 85 (1840). See also S ta te v.
Merrick, 171 N.C. 788, 88 S.E. 501, 503 (1916). As
might be expected of a moralistic conception of this
nature, its rules are fine-spun and casuistic. The North
Carolina Supreme Court has declared that “ ‘ “ passion”
means any of the emotions of the mind known as rage,
anger, hatred, furious resentment, or terror, rendering
the mind incapable of cool reflection’ . . . . ‘Passion is
not limited to rage, anger, or resentment. It may be
fear, terror, or, according to some decisions, “exci
tement” or “nervousness,” ’ ” Sta te v. Jennings, 276
N.C. 157, 171 S.E.2d 447, 450 (1970). Passion must
spring from provocation, S ta te v. Carter, 16 N.C. 20,
22-23 (1877); “slight” provocation is insufficient, Sta te
v. Ellis, 101 N.C. 765, 7 S.E. 704, 705 (1888); see
88
S ta te v. Keaton, 206 N.C. 682, 175 S.E. 296, 298
(1934); the provoking conduct must in theory “amount
to an actual or threatened assault,” S ta te v. Benson,
183 N.C. 795, 111 S.E. 869, 871 (1922); see also S ta te
v. M osley, 213 N.C. 304, 195 S.E. 830, 832-833
(1938).127 North Carolina appellate courts have man
aged to remain within these rules with only a little
straining;128 but trial courts and juries have ignored
them entirely.129 Passion is sometimes said to be
synonymous with “heat of blood,” S ta te v. Jennings,
276 N.C. 157, 171 S.E.2d 447, 449 (1970); S ta te v.
Cooper, 273 N.C. 51, 159 S.E.2d 305, 309 (1968); but
then again it is said that “ ‘cool state of blood’ does
not mean the absence of passion and emotion . . . .”
Sta te v. B ritt, 285 N.C. 256, 204 S.E.2d 817, 822
(1974). The sum of the doctrine is to make murder or
127The provoking conduct need not, however, amount to a
felonious assault, State v. Will, 18 N.C. 121, 169 (1834), and it
need not have threatened the defendant’s life, State v. Sizemore,
52 N.C. 206, 209 (1859).
128See, e.g., State v. Baldwin, 152 N.C. 822, 68 S.E. 148
(1910) (unlawful arrest by the victim who “shoved” the
defendant held adequate provocation); State v. Briggs, 20 N.C.
App. 368, 201 S.E.2d 580 (1974) (victim’s actions of breaking
defendant’s car window and inserting the upper part of his body
into the car held adequate provocation).
129See, e.g., State v. Freeman, 275 N.C. 662, 170 S.E.2d 461
(1969) (victim threatened defendant, ran away, returned with his
hand in his pocket; defendant who shot victim convicted of
manslaughter); State v. Phillips, 262 N.C. 723, 138 S.E.2d 626
(1964) (victim opened door of car containing defendant and
woman friend; defendant who shot victim convicted of
manslaughter).
89
manslaughter liability depend essentially upon the jury’s
empathy with the defendant on trial:
“reason should, at the time of the act, be disturbed
or obscured by passion to an extent which might
render ordinary men, of fair average disposition,
liable to act rashly or without due deliberation or
reflection, and from passion rather than judgment.”
State v. M errick, 171 N.C. 788, 88 S.E. 501, 503
(1916) (quoting M aher v. People, 10 Mich. 212, 220
(1862)).130
These several doctrines, of course, do not exhaust the
non-capital options available to petitioner’s jury. Jurors
in his case or like cases, applying legal principles that
leave the widest latitude for subjective judgment and
the “natural human tendency to see facts and to
evaluate evidence in a manner leading to a desired
conclusion,” 131 might have returned verdicts ranging
1 Provocation may also be held inadequate where the
defendant’s response is disproportionately severe. State v. Ellis,
101 N.C. 765, 7 S.E. 704, 705 (1888); State v. Chavis, 80 N.C.
353, 358 (1879); State v. Curry, 46 N.C. 280, 287 (1854). Cf
State v. Gooch, 94 N.C. 987, 1010 (1886).
131BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 46 (1974).
90
from second degree murder132 to acquittal,133 in order
132Alcohol was implicated in petitioner’s case (A. 14-15,
28-29, 52, 54), as it is in so many homicide cases. See
WOLFGANG, PATTERNS IN CRIMINAL HOMICIDE 165-166,
323 (1966). Its involvement required consideration by the jury
on the question of the premeditation and deliberation requisite
for a capital, first degree murder conviction.
“ . . . [W] hether intoxication and premeditation can coexist
depends upon the degree of inebriety and its effect upon
the mind and passions. ‘No inference of the absence of
deliberation and premeditation arises from intoxication, as
a matter of law.’ State v. Murphy, 157 N.C. 614, 619, 72
S.E. 1075, 1077. ‘[A] person may be excited, intoxicated
and emotionally upset, and still have the capability to
formulate the necessary plan, design, or intention to
commit murder in the first degree.’ ”
State v. Hamby, 275 N.C. 674, 174 S.E.2d 385, 387 (1970). See
also State v. Duncan, 282 N.C. 412, 193 S.E.2d 65, 69-70
(1972); State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526,
532-533 (1970); State v. Propst, 274 N.C. 62, 161 S.E.2d 560,
567-568 (1968); State v. Arnold, 264 N.C. 348, 141 S.E.2d 473,
474-475 (1965); State v. Smith, 221 N.C. 278, 20 S.E.2d 313,
321 (1942).
133Jury acquittals motivated solely to evade “mandatory”
death sentences are an historical commonplace in the administra
tion of “capital” justice. See, e.g., State v. Fuller, 114 N.C. 885,
19 S.E. 797, 802 (1894), quoted in text at pp. 67-68, supra;
State v. Locklear, 118 N.C. 1154, 24 S.E. 410, 411 (1896),
quoted in note 107, supra; Rnowlton, Problems o f Jury
Discretion in Capital Cases, 101 U. PA. L. Rev. 1009, 1102 n.18
(1953); Note, The Two-Trial System in Capital Cases, 39
N.Y.U. L. REV. 50, 52 (1964); ZEISEL, SOME DATA ON
JUROR ATTITUDES TOWARDS CAPITAL PUNISHMENT 2-3
(Center for Studies in Criminal Justice, 1968); Smith, Capital
Punishment, 59 ALBANY L.J. 232, 241 (1899); Shipley,Does
Capital Punishment Preven t Convictions? 43 AM. L. REV. 321 (1909).
(continued)
91
to avoid the death penalty. The inevitable propensity of
In McGautha v. California, 402 U.S. 183 (1971), this Court
noted the “rebellion against the common-law rule imposing a
mandatory death sentence on all convicted murderers,” id. at
198, and the fact that “jurors on occasion took the law into
their own hands in [murder] cases which were ‘willful,
deliberate, and premeditated’ in any view of that phrase, but
which nevertheless were clearly inappropriate for the death
penalty. In such cases they simply refused to convict of the
capital offense,” id. at 199. See also Andres v. United States, 333
U.S. 740, 753 (1948) (concurring opinion of Justice
Frankfurter); KALVEN & ZEISEL, THE AMERICAN JURY
306-312 (1966); Mackey, The Inutility o f Mandatory Capital
Punishment: An Historical Note, 54 B.U. L. REV. 32 (1974). Cf.
ROYAL COMMISSION ON CAPITAL PUNISHMENT
1949-1953, REPORT f f 27-29 (H.M.S.O. 1953) [Cmd. 8932];
1 RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW
AND ITS ADMINISTRATION FROM 1750 154-160 (1948).
“ [B]y far the most pronounced argument in favor of ending
mandatory death penalties, echoed on every side, was the
extreme difficulty of obtaining convictions in cases where a
conviction is tantamount to a death sentence.” BEDAU, THE
DEATH PENALTY IN AMERICA 27 (rev. ed. 1967). This fact is
cited by scholars as a reason for a particular jurisdiction’s shift
from a mandatory to a discretionary system of death sentencing
or for a decline in a jurisdiction’s conviction rate. See, e.g., The
Death Penalty in the United States, 9 GREENBAG 129 (1897)
(New York); McCafferty, Major Trends in the Use o f Capital
Punishment, 25 FED. PROB. No. 3 15 (1961) (District of
Columbia); Bedau, Death Sentences in New Jersey 1907-1960, 19
RUTGERS L. REV. 1, 28-31 (1965) (New Jersey); Phelps,
Rhode Island’s Threat Against Murder, 18 J. CRIM. L. & CRIM.
552 (1928) (Rhode Island); Bennett A Historic Move: Delaware
Abolishes Capital Punishment, 44 A.B.A.J. 1053 (1958), and
(continued)
92
any “mandatory” death-sentencing regime to produce
this sort of selective evasion by juries is, of course,
enhanced when the death penalty is made “mandatory”
for a broad range of offenses including all first degree
(footnote continued from proceeding page)
Bennett Delaware Abolishes Capital Punishment, 49 J. CRIM. L.,
CRIM. & POL. SCI. 156 (1958) (Delaware).
Cf. Wicker, “Christmas on the New Death Row,” N. Y. Times,
Dec. 25, 1973, at 18, col. 1:
“Raleigh, N.C. Dec. 24 . . . In January, 1973, the North
Carolina Supreme Court ruled that the Federal Supreme
Court had made it unconstitutional for a jury to
recommend mercy, hence life imprisonment rather than
death, for an arbitrary number of those convicted of
first-degree murder, arson, rape or burglary; . . . Around
here, some are still heaving sighs of relief at the case of a
black man charged with breaking into a house and stealing
about $10 worth of food. The house was occupied, the
break-in occurred at night, so the offense was first-degree
burglary. Perhaps influenced by the only alternative
available, the jury acquitted him, thus sparing him
Christmas on the new Death Row but raising the question
how mandatory death sentences can be considered an im
provement on cruel and unusual punishment.”
93
murders, rapes, first degree burglaries and arsons.134 It is
encouraged, and all but explicitly condoned, by the
North Carolina Supreme Court’s ruling - which appears
to have no other purpose or effect than to invite the
exercise of jury discretion - that capital jurors may be
informed of the consequences of their supposedly
“mandatory” verdict and its alternatives. S ta te v. Britt,
285 N.C. 256, 204 S.E.2d 817 (1974). There, the court
held that if “ the jury is confused or uncertain as to
whether one of its permissive verdicts would result in a
mandatory death sentence . . . sufficient compelling reas
on exists to justify [the trial judge’s] . . . informing the
jury of the consequences of their possible verdicts.”
204 S.E.2d at 828. The court additionally ruled that
“ [c]ounsel may, in his argument to the jury, in any
134Indeed, there is evidence that North Carolina adopted a
discretionary form of capital sentencing in order to avoid
unwarranted acquittals for these crimes by juries who did not
want to see sympathetic defendants executed. In 1949, the
Special Commission for the Improvement of the Administration
of Justice in North Carolina reported that:
“ [o]nly three other states now have the mandatory death
penalty and we believe its retention will be definitely
harmful. Quite frequently, juries refuse to convict for rape
or first degree murder because, from all the circumstances,
they do not believe the defendant, though guilty, should
suffer death. The result is that verdicts are returned hardly
in harmony with evidence. [A discretionary death penalty]
. . . is already in effect in respect to the crimes of burglary
and arson. There is much testimony that it has proved
beneficial in such cases.”
15 POPULAR GOVERNMENT 13 (January, 1949). A discretion
ary capital sentencing procedure was adopted shortly thereafter.
See also State v. McMillan, 233 N.C. 630, 65 S.E.2d 212, 213
(1951).
94
case, read or state to the jury a statute or other rule of
law relevant to such case, including the statutory
provision fixing the punishment for the offense
charged. . . . ” The defense attorney is not forbidden,
“in his argument to the jury [to] . . . inform or remind
the jury that the death penalty must be imposed in the
event it should return a verdict of guilty upon a capital
charge.” Id . at 829.
The manner in which juries function in capital cases
— particularly when they are told explicitly what is at
stake — has been judicially noticed by the Supreme
Court of North Carolina135 and cannot realistically be
ignored by this Court.136 We venture to say that not a
year passes when the certiorari process does not present
a multitude of cases, rationally undifferentiable from
petitioner’s, in which a jury has returned a verdict of
second degree murder or less. An altercation in a bar -
a separation and renewed meeting of the combatants —
some alcohol — a gun: the ingredients are tragically
common. They form the backdrop of innumerable
killings, crimes whose gravity no one can doubt, but
which differing juries have immemorially treated as
manslaughter, second degree murder, or first degree
murder upon grounds that can only be described as
inscrutable. The law reports of North Carolina are full
of such cases where the verdict was less than first
degree.137 Spectroscopic color-matching of particular
13BState v. Locklear, 118 N.C. 1154, 24 S.E. 410, 411 (1896),
quoted in note 107 supra; State v. Fuller, 114 N.C. 885, 19 S.E.
797, 802 (1894), quoted in text at pp. 67-68, supra; State v.
Brittain, 89 N.C. 481, 501 (1883), quoted in text at p. 81,
supra.
l36Cf. Watts v. Indiana, 338 U.S. 49, 52 (1949) (plurality
opinion of Mr. Justice Frankfurter).
7 We collect some of the cases in Appendix C, pp. lc-4c
infra.
95
cases with petitioner’s undoubtedly discloses all of the
more or less subtle differences of which the
multifariousness of human existence is made. But it is
impossible to read any number of these cases and deny
the purely discretionary character of the jury judgments
they reflect.
D. Executive Clemency
The North Carolina Constitution provides that:
“ [T]he Governor may grant reprieves, commuta
tions, and pardons, after conviction, for all
offenses (except in cases of impeachment), upon
such conditions as he may think proper, subject to
regulations prescribed by law relative to the
manner of applying for pardons.”
Article III, § 5(6). Governors of the State have, by the
exercise of this clemency power, spared the lives of a
substantial proportion of condemned prisoners. Between
1903 and 1963, the sentences of 235 out of a total of
358 condemned prisoners were commuted.138 The chief
executive thus commuted 65.6% of North Carolina
death sentences over a sixty year period.
The Governor’s discretion to spare the lives of
condemned felons is absolute. The Constitution reserves
to the legislature only the right to prescribe the
“manner of applying for pardons;” otherwise, the
Governor may grant or deny clemency as he chooses,
subject to “such conditions as he may think proper.”
138Note, Executive Clemency in Capital Cases, 39 N.Y.U. L.
REV. 136, 192 (1964). See notes 146, 147 infra.
96
The North Carolina Court of Appeals has said with
regard to the analogous executive power to grant
paroles (a power originally conferred upon the
Governor by Article III) that:
“ [i] n a matter which historically, in this State at
least, has been considered a function of the
executive branch and which by its nature involves
a large number of intangibles, rigid guide lines are
neither necessary nor desirable.”
Jernigan v. State, 10 N.C. App. 562, 179 S.E.2d 788,
792 (1971).
This conception of executive clemency is, of course,
widespread; but it may be noted that the authority of
the Governor of North Carolina in its exercise is less
encumbered than that of the governors of many States.
Several of the States which retain the death penalty
have chosen to place some or all of the authority to
make the clemency decision in the hands of a pardon
board or executive council,139 while others require
periodic reports to legislative bodies on the exercise of
executive clemency,140 open hearings,141 preparation of
reasoned decisions on each application,142 or, in certain
kinds of cases, the advice of judicial authorities.143 The
129See, e.g., Conn. Gen. Stat. Rev. §18-24a (1970); Idaho
Const, art. 4, § 7; Utah Code Ann. §77-62-2 (1968); Neb Const,
art. 4, § 13.
140See, e.g., N. Y. Const, art. 4, §4; Ark. Code Ann.
§ 41-4714 (1973 supp.).
141iSee, e.g., Idaho Const, art. 4 §7; Neb. Const, art. 4, §13;
Pa. Const, art. 4, § 9.
142See, e.g., Del. Const, art. 7, § 1; Utah Const, art. 7, § 12.
143See California Const, art 5, § 8 (1974 West cum. supp.).
97
North Carolina procedure requires none of these
things.144
Under laws providing for a “mandatory” death
penalty, grants of clemency have been considerably
more frequent than under procedures giving juries
explicit discretion to sentence convicted capital defen
dants to life or death. A 1957 study of the imposition
of capital punishment in North Carolina noted a
pronounced decline in the number of commutations of
death sentences after the 1941 and 1949 statutory
amendments which enabled juries to impose sentences
of either life imprisonment or death for the four crimes
that had theretofore carried “mandatory” death penal
ties.145 A 1973 report on the history of the death
144North Carolina has, however, adopted the practice of
announcing reasons for the grant, but not for the denial, of
executive clemency. Note, Executive Qemency in Capital Cases,
39 N.Y.U. L. REV. 136, 158 (1964).
145Johnson, Selective Factors in Capital Punishment, 36
SOCIAL FORCES 165, 166-167 (1957). A study of the history
of the death penalty in New Jersey also found evidence that
clemency is afforded more frequently under a “mandatory”
system than under a discretionary system. See Bedau, Death
Sentences in New Jersey 1907-1960, 19 RUTGERS L. REV. 1
(1964). During the years when the death penalty was mandatory
(1907-1915), there were 42 executions and 11 death sentences
commuted, a ratio of 11/42 or 26.2%. Id. at 10. However, during
the years 1916-1960, when a discretionary system of capital
punishment was in effect, there were 115 executions and 22
commutations, for a ratio of 22/115 or 19.1%. Ibid.
98
penalty in the State found that while 64%146 of
condemned defendants escaped execution between 1910
and 1948, the percentage of those escaping execution
dropped to 38% for the 1949-1962 period, when a
discretionary death penalty was in effect for all
“capital” crimes.147
The apparent explanation for this phenomenon is
that in a “mandatory” system, the clemency authority
undertakes to compensate for mitigating factors which,
while insufficient to justify a verdict of not guilty, are
nevertheless viewed by society as meriting some mercy
in the imposition of sentence. Clemency serves “as a
vehicle for the expression of society’s compassion, as an
outlet from the rigorous inflexibility of [the] . . .
judicial system.”148 One study has noted:
“ [i]n a jurisdiction which provides for the
sentence of death unless the jury recommends
146BEHRE, A BRIEF HISTORY OF CAPITAL PUNISHMENT
IN NORTH CAROLINA, Tables 2 and 3 (N.C. Dept, of
Corrections 19734- This 64% figure is slightly different from the
commutation rate cited in the N. Y. U. Law Review study, p. 95
supra, because the years surveyed (1903-1963 in the N.Y.U.
Review study; 1910-1948 in the Behre study) were not identical.
Another study of executive clemency in North Carolina reveals
that of the 304 death sentences imposed between July 1, 1938,
and December 31, 1953, 229 were commuted by the Governor,
for a 77.1% clemency rate during this period. Johnson, supra
note 145, at 166.
147BEHRE, op. cit. supra note 146, at Tables 2 and 3.
148Lavinsky, Executive Gemency: Study o f a Decisional
Problem Arising in the Terminal Stages o f the Giminal Process,
42 CHI.-KENT L. REV. 13, 38 (1965).
99
m ercy, the judge being bound by the ju ry ’s
recom m endation to im pose a sentence, the clem en
cy au tho rity w ould norm ally refrain from reweigh
ing the m itigating evidence presented a t the trial.
Obviously, the ju ry has here had the opportun ity
to assess extenuating circum stances apart from the
issue o f guilt. I t is the belief o f m any tha t this
function o f the ju ry strips the clem ency au thority
o f m uch o f its pow er in capital cases.” 149
If this observation is correct, the “ m andatory” death
penalty created by Sta te v. Waddell is calculated to
result in m ore frequent grants o f executive clem ency as
the G overnor effectively takes over where the jury
leaves off. N ot surprisingly, the clem ency process will
simply m irror the ju ry sentencing process condem ned in
Furman, w ith Governors granting o r denying com m uta
tion according to standards th a t are unexplained,
unreviewable, and changeable w henever different incum
bents take office.150
149Note, Executive Qemency in Capital Cases, 39 N.Y.U.L.
REV. 136, 165-166 (1964) (footnote omitted).
lsoSee the studies cited in note 145 supra. A system which
places uncontrolled powers of commutation in the hands of a
single official is arbitrary by definition. It can also be
demonstrated that such a system is likely to be discriminatory in
effect. A comparison of the executed and the commuted among
condemned prisoners in Pennsylvania between 1914 and 1958
revealed that “ less than 15 percent of the death-row offenders
with court-appointed counsel received commutation of sentence
compared to over 25 percent of those offenders with private
counsel” (this differential was characterized as statistically
significant for black, but not for white defendants) and that
“there is reason to suspect — and statistically significant evidence
(continued)
100
“For clemency knows no standards that are
invocable as a matter of law. To the saved, this is
mercy, of a quality not strained. To those who
leam they are to die, it is irrational choice for
death — the final such choice in a long series.” 151
The various forms of arbitrary selectivity remaining
in North Carolina’s “mandatory” death penalty pro
cedure thus insure that there will be no meaningful
basis for distinguishing the few cases in which the death
penalty is imposed from the many cases in which it is
not. We do not suggest by the foregoing analysis that
the selective discretion present at any of the separate
stages of the criminal process would be constitutionally
(footnote continued from proceeding page)
to support the suspicion — that Negroes have not received equal
consideration for commutation of the death penalty.” Wolfgang,
Kelly & Nolde, Comparison o f the Executed and the Commuted
Among Admissions to Death Row, 53 J. CRIM. L., CRIM. &
POL. SCI. 301, 309, 311 (1962).
A study of executive clemency in Illinois concluded:
“ [c]ertain troublesome patterns seem to suggest themselves
from an analysis of the referent Illinois commutation cases.
It seems that much depends upon mere luck! What kind of
attorney happens to be appointed by the state? How
zealous is he in delaying execution through legal maneuvers
and in generating publicity and public pressure? Of what
logical relevance to life and death is a public relations
campaign?”
Lavinsky, Executive Gemency: Study o f a Decisional Problem
Arising in the Terminal Stages o f the Criminal Process, 42
CHI.-KENT L. REV. 13, 39 (1965).
1S1BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 74 (1974).
101
objectionable in a non-capital case152 or even th a t any
one form o f discretion w ould necessarily be enough to
invalidate a death penalty under the Eighth A m end
ment. But the arbitrariness o f the entire procedural
system is cum ulative; and the gauntlet which a capitally
charged defendant m ust now run is fully as unpredic
table — its results equally capricious — as under the
pre-Furman, pre-Waddell system . A t no po in t in the
process is a visible and deliberative life-death choice
required; y e t the inevitable discretionary decisions can
only be m ore freakish and w anton inasm uch as they are
disguised and m ore diffused. This deadly lo tte ry brings
petitioner’s death sentence to the heart o f the historic
concerns o f the E ighth A m endm ent as recognized in
Furman.
152BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 33 (1974):
“ [o]ur legal system is simply saturated, at all levels, with
the ideas that requirements of fairness, certainty, and so on
— all the things we mean when we say ‘due process of law’
— vary with the seriousness of the interest at stake, and
that, as a corollary, imposition of the penalty of death
carries with it a more exacting requirement than other
punitive action of the political society.”
Cf Bell v. Burson, 402 U.S. 535, 540 (1971); Stanley v. Illinois,
405 U.S. 645, 650-651 (1972). See also pp. 115-117 infra.
102
m.
THE EXCESSIVE CRUELTY OF DEATH
There are additional reasons why the death penalty
reinstated by Waddell violates the essential guarantees
of the Eighth and Fourteenth Amendments. These
reasons are interrelated in the prevailing Furm an
opinions, and we treat them together here. Essentially,
Furman reviewed the history of this country’s use of
the punishment of death and concluded that, although
the extreme penalty was then authorized by law in
•forty-one American States (and by the federal govern
ment and the District of Columbia), it was in fact so
rarely and so arbitrarily inflicted under discretionary
sentencing procedures that it constituted a cruel and
unusual punishment. This was so because the occasional
and virtually random extinction of human life was a
cruelty compounded by inequity, and because the very
randomness and rarity of the punishment belied any
claim that it fulfilled an accepted or acceptable penal
purpose.
In Part II of this brief, we have demonstrated that
the use of the death penalty remains arbitrary, random
and occasional under North Carolina’s post -Furman,
purportedly “mandatory” system of capital sentencing
because that system provides numerous mechanisms
which express and implement the unwillingness of
prosecutors, judges, juries and the Governor to accept a
general, uniform and even-handed application of the
penalty. These mechanisms and their use continue to be
the means by which a punishment incapable of general
103
or substantial application is reserved for visitation on a
mute and disfavored few. That sort of application of a
penalty is one of the hallmarks of a cruel and unusual
punishment in the Eighth Amendment sense. In this
Part III, we examine the several relevant hallmarks and
submit that they collectively condemn the penalty of
death. Such an examination should, however, begin
with consideration of the proper standards of judicial
review of a penalty challenged under the Eighth
Amendment.'
A. The Standard of Judicial Review
We start with the “elementary” tru th53 that
legislative authorization of a punishment does not
establish its conformity to Eighth Amendment prin
ciples of decency.153 154 If this were otherwise, the Eighth
Amendment would be “little more than good advice”
from the Founding Fathers to future legislators. Trop v.
Dulles, 356 U.S. 86, 104 (1958) (plurality opinion of
153Weems v. United States, 217 U.S. 349, 379 (1910).
154 Trop v. Dulles, 356 U.S. 86, 103 (1958) (plurality opinion
of Chief Justice Warren):
“ [w]e are oath-bound to defend the Constitution. This
obligation requires that [legislative] .. . enactments be
judged by the standards of the Constitution. The Judiciary
has the duty of implementing the constitutional safeguards
that protect individual rights.”
104
Chief Justice Warren.)155 “The very purpose of a Bill of
Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the
courts.” West Virginia S ta te Board o f Education v.
Barnette, 319 U.S. 624, 638 (1943).
This basic postulate is the source of the most delicate
problem of Eighth Amendment adjudication: striking
the balance between respect for the primary legislative
power to define crimes and fix sanctions156 and the
diligence commanded by the constitutional role of the
judiciary to protect and preserve the Constitution’s
155George Mason, who drafted the 1776 Virginia Declaration
of Rights, see note 56 supra, which contained a prohibition of
cruel and unusual punishments that was almost identical to that
of Clause 10 of the English Bill of Rights of 1689 and to the
Eighth Amendment, declared in the Virginia ratifying convention
that it was necessary to limit the arbitrary punishing power of all
branches of government. See pp. 38-39 supra. Patrick Henry
strongly agreed that Congress should not be allowed to “define
punishments without this control.” 3 ELLIOT’S DEBATES 447
(2d ed. 1863). See note 55 supra.
156In this litigation we deal, of course, with a decision to
maintain capital punishment that was made by a bare majority of
the North Carolina Supreme Court through the application of
state-law severability doctrines to a state statute. Nevertheless,
that decision speaks with the voice of North Carolina for federal
constitutional purposes. See Winters v. New York, 333 U.S. 507,
512-515 (1948); Cohen v. California, 403 U.S. 15, 23-24 n.5
(1971).
105
guarantees of individual rights against governmental -
that is, necessarily, majoritarian - overreaching.157 The
inescapable tension and its resolution were described
with as much precision as the subject permits in Weems
v. U nited States, 217 U.S. 349, 378-379 (1909):
“ • • • prominence is given to the power of the
legislature to define crimes and their punishment.
We concede the power in most of its exercises. We
disclaim the right to assert a judgment against that
of the legislature, of the expediency of the laws,
or the right to oppose the judicial power to the
legislative power to define crimes and fix their
punishment, unless that power encounters in its
exercise a constitutional prohibition. In such cases,
not our discretion, but our legal duty, strictly
defined and imperative in its direction, is invoked.
Then the legislative power is- brought to the
judgment of a power superior to it for the instant.
And for the proper exercise of such power there
must be a comprehension of all that the legislature
did or could take into account, — that is, a
consideration of the mischief and the remedy.
However, there is a certain subordination of the
judiciary to the legislature. The function of the
legislature is primary, its exercise fortified by
i57Furman v. Georgia, supra, 408 U.S. at 431 (dissenting
opinion of Mr. Justice Powell) (citing Blodgett v. Holden, 275
U.S. 142, 147-148 (1927) (concurring opinion)):
“ [tjhe review of legislative choices, in the performance of
our duty to enforce the Constitution, has been character
ized most appropriately by Mr. Justice Holmes as ‘the
gravest and most delicate duty that the Court is called on
to perform.’ ”
106
presumptions of right and legality, and is not to be
interfered with lightly, nor by any judicial
conception of its wisdom or propriety. They have
no limitations, we repeat, but constitutional ones,
and what those are the judiciary must judge.”
Thus, although a fitting deference to legislative will
and to the autonomy of the States is always required,
this Court bears the responsibility, placed exclusively
upon it in the last analysis, to define and uphold the
specific limitations which a written Constitution has
erected as the boundaries beyond which no action or
decision of American government may go.158
There are circumstances under which the danger is
particularly great that legislative judgment will not duly
heed the constitutional rights of individuals. Here
judicial scrutiny of legislation ought to be commensur-
ately exacting. See Sk inner v. O klahom a ex rel.
Williamson, 316 U.S. 535, 541 (1942). This is most
frequently the case where statutes fall harshly only
upon “discrete and insular minorities,” U nited S ta tes v.
Carolene Products Co., 304 U.S. 144, 153 n.4 (1938),
158 Cooper v. Aaron, 358 U.S. 1, 18 (1958):
“ [i] n 1803, Chief Justice Marshall, speaking for a
unanimous Court, referring to the Constitution as ‘the
fundamental and paramount law of the nation,’ declared in
the notable case of Marbury v. Madison, 1 Cranch 137,
177, that ‘It is emphatically the province and duty of
the judicial department to say what the law is.’ This
decision declared the basic principle that the federal
judiciary is supreme in the exposition of the law of the
Constitution, and that principle has ever since been
respected by this Court and the Country as a permanent
and indispensable feature of our constitutional system.”
See also United States v. Nixon, _____ U.S. ______ , 94 S.Ct.
3090, 3106 (1974).
107
and where their operation takes a form that “restricts
those political processes which can ordinarily be
expected to bring about the repeal of undesirable
legislation,” id. at 152 n.4. It is especially the case
where cruel criminal punishments are applied to a very
few: that is, in circumstances where the Eighth
Amendment may be colorably invoked. And in the
present case, additional considerations arising from the
unique nature of the punishment of death require an
uniquely stringent standard of judicial review under
“the evolving standards of decency that mark the
progress of a maturing society,” Trap v. Dulles, supra,
356 U.S., at 101.
First, “ [ t ] he basic concept underlying the Eighth
Amendment is nothing less than the dignity of man.”
Id. at 100. The Amendment stands to assure that
respect for individual human life and dignity restricts
the state’s responses to even the most culpable criminal
conduct. Yet the decision to use capital punishment on
a man implies a judgment that his dignity and worth
may be denied absolutely, that his “ ‘life ceases to be
sacred when it is thought useful to kill him.’ 5,159 Such
a judgment deliberately to extinguish human life159 160 —
159Francart, quoted by Camus, Reflections on the Guillotine,
in CAMUS, RESISTANCE, REBELLION AND DEATH 131, 176
(Mod. lib . 1963).
160“Death is tmly an awesome punishment. The calculated
killing of a human being by the State involves, by its very
nature, a denial of the executed person’s humanity.. . . An
executed person has indeed Tost the right to have rights.”
Furman v. Georgia, supra, 408 U.S. at 290 (concurring opinion
of Mr. Justice Brennan).
108
to employ a sanction that necessarily denies the very
value upon which the Eighth Amendment rests —
imperatively calls upon “the obligations [of] . . . the
judiciary to judge the constitutionality of punishment”
from an independent perspective. Furman v. Georgia,
supra, 408 U.S. at 313-314 (concurring opinion of Mr.
Justice White).
Second, the death penalty bears an awesome and
irrevocable finality161 incomparable with other punish
ments.162 This Court has said of sterilization that
“ [t]here is no redemption for the individual whom the
law touches.” Skinner v. Oklahoma ex rel. Williamson,
supra, 316 U.S. at 541. That is literally true of capital
punishment. No eloquence can embellish, nor human
mind entirely conceive, death’s utter irreversibility.163 New
161“Capital punishment is an evil, unless justified [because]
. . . it extinguishes, after untellable suffering, the most mysterious
and wonderful thing we know, human life.” Black, Crisis in
Capital Punishment, 31 MD. L. REV. 289, 291 (1971).
162Thus, the declaration of Lafayette that infliction of the
death penalty should be suspended “until. . . the infallibility of
human judgment is demonstrated.” Quoted in Poliak, The Errors
o f Justice, 284 ANNALS 115 (1952), and CLARK, CRIME IN
AMERICA 334 (1970). The quotation has also been attributed
to Jefferson. See BLOCK, AND MAY GOD HAVE MERCY. . . 1
(1962). See also Rubin, The Supreme Court, Cruel and Unusual
Punishment, and the Death Penalty, 15 CRIME & DELINQ. 121,
130-131 (1969).
163“Human justice can never be infallible. No matter how
conscientiously courts operate, there still exists a possibility
that an innocent person may, due to a combination of
circumstances that defeat justice, be sentenced to death
and even executed. That possibility is made abundantly
clear when one considers the many instances in which
innocent persons have been saved from the extreme penalty
either by the last minute discovery of new evidence or by a
commutation followed perhaps after many years in prison
by the discovery of the real criminal.”
(continued)
109
knowledge, second thought, calmer passions, lessons of
experience — every known corrective for the inevitable
errors of judgment in penological, political, and
constitutional experimentation comes too late.164
Third, any balancing process which sets out to weigh
the penalty of death in the pans of the Eighth
Amendment must begin with the proposition that
capital punishment is self-evidently cruel within every
meaning of that word which a civilized, Twentieth-Cen
tury society can accept.165 We do not deal here with a
punishment that can be considered cruel only in
relation to the conduct that it is used to regulate, cf.
R obinson v. California, 370 U.S. 660, 667 (1 962 )-
(footnote continued from proceeding page)
SELLIN, THE DEATH PENALTY, 63 (1959), published as an
appendix to AMERICAN LAW INSTITUTE, MODEL PENAL
CODE, Tent. Draft No. 9 (May 8, 1959). See also Hogan, Murder
by Perjury, 30 FORDHAM L. REV. 285 (1961); BORCHARD,
CONVICTING THE INNOCENT 294-303, 309-316 (1932);
Gardner, Helping the Innocent, 17 U.C.L.A. L. REV. 535
(1970).
16441 [D] eath is different. . . it is irrevocable in quite a distinct
sense from the general irrevocability of all happenings. If a
mistake of any kind is discovered, it is too late. In every way
and for every purpose, it is too late.” BLACK, CAPITAL
PUNISHMENT: THE INEVITABILITY OF CAPRICE AND
MISTAKE 32 (1974).
165The evolutionary character of Eighth Amendment standards
no longer needs argument. The Clause is “progressive, and is not
fastened to the obsolete, but may acquire meaning as public
opinion becomes enlightened by a humane justice.” Weems v.
United States, 217 U.S. 349, 378 (1910). See also Furman v.
Georgia, supra, 408 U.S. at 242 (concurring opinion of Mr.
Justice Douglas; id. at 264-269 (concurring opinion of Mr.
Justice Brennan); id. at 325-328 (concurring opinion of Mr.
Justice Marshall); id. at 383 (dissenting opinion of Chief Justice
Burger); id. at 409 (dissenting opinion of Mr. Justice Blackmun);
id. at 429 (dissenting opinion of Mr. Justice Powell.)
110
cruel in “consideration of the mischief and the remedy” ,
Weems v. U nited States, supra, 217 U.S. at 373.166
“The imposition and execution of the death
penalty are obviously cruel in the dictionary sense.
But the penalty has not been considered cruel and
unusual in the constitutional sense because it was
thought justified by the social ends it was deemed
to serve.”
Furman v. Georgia, supra, 408 U.S. at 314 (concurring
opinion of Mr. Justice White).
It is not an overstatement to describe confinement
under sentence of death as exquisite psychological
^Nevertheless, Camus’ point deserves note:
“ [In considering the argument from lex talionis] let us
leave aside the fact that the law of retaliation is
inapplicable and that it would seem just as excessive to
punish the incendiary by setting fire to his house as it
would be insufficient to punish the thief by deducting
from his bank account a sum equal to his theft. Let us
admit that it is just and necessary to compensate for the
murder of the victim by the death of the murderer. But
beheading is not simply death. It is just as different, in
essence, from the privation of life, as a concentration camp
is from prison. It is a murder, to be sure, and one that
arithmetically pays for the murder committed. But it adds
to death a rule, a public premeditation known to the
future victim, an organization, in short, which is itself a
source of moral sufferings more terrible than death. Hence
there is no equivalence. Many laws consider a premeditated
crime more serious than a crime of pure violence. But what
then is capital punishment but the most premeditated of
murders, to which no criminal’s deed, however calculated it
may be, can be compared? For there to be an equivalence,
the death penalty would have to punish a criminal who had
warned his victim of the date at which he would inflict a
horrible death on him and who, from that moment
onward, had confined him at his mercy for months. Such a
monster is not encountered in private life.”
Camus, Reflections on the Guillotine, in CAMUS,
RESISTANCE, REBELLION AND DEATH 131,
151-152 (Mod. Lib. 1963).
I l l
torture. See People v. A nderson , 6 Cal.3d 628, 493
P.2d 880, 894 (1972). With the commendable motive —
and under the inescapable obligation — of striving to
avoid erroneous or illegal executions, Twentieth-Century
American justice has prolonged that torture. Of 608
persons under sentence of death at the end of 1970,
302 had been on Death Row for more than three years,
165 for more than five years, 81 for more than seven
years, and 67 for more than eight years.167 “ [C]on-
temporary human knowledge”168 of the nature of
suffering and its effects upon the human mind teaches
that over such extended periods the familiar manifesta
tions of immediate terror cease as the extraordinary
anxiety and pain of condemnation find other outlets.
Anguish can no longer be conceived as some enormous
multiple of the pain of a broken bone or a crushed
fingernail, because human beings cannot tolerate many
such multiplications without severe personality distor
tions such as the denial of reality.169 The effects of
these coping mechanisms observed in Death Row
prisoners are acute;170 the alternative is emotional
167UNITED STATES DEPARTMENT OF JUSTICE, BUREAU
OF PRISONS, NATIONAL PRISONER STATISTICS, Bulletin
No. 46, Capital Punishment 1930-1970 42 (August, 1971).
16SRobinson v. California, 370 U.S. 660, 666 (1972).
169See, Note, Mental Suffering Under Sentence o f Death: A
Cruel and Unusual Punishment, 57 IOWA L. REV. 814, 827
(1972).
1705ee Bluestone & McGahee, Reaction to Extreme Stress:
Impending Death by Execution, 119 AM. J. PSYCHIATRY 393
(1962).
112
breakdown.171
The torture is perhaps more nearly comprehensible in
the words of those who have suffered it:
“My feeling toward being on death row is
unlimited. I can go on and on telling you the
different feelings I experience being on Death
Row. But I’m going to make it brief, because I can
take the 68,634,000 square miles of the Pacific
Ocean and put it into ink, and take all the trees in
America and put them into pencils and paper, and
still, it won’t be enough material to express my
feeling towards being on death row. My feeling
being on death row is like no tomorrow. When I
go into deep meditation, I can see life and feel the
freedom that the universe has to offer, but when I
come out of it, it’s like being in the middle of a
nightmare. So you can see why my thoughts has
no end.
171 An evaluation of eight North Carolina death row inmates
revealed that three, or thirty-five percent, had made “relatively
poor adjustments, with obvious deterioration.” Gallemore &
Panton, Inmate Responses to Lengthy Death Row Confinement,
129 AM. J. PSYCHIATRY 81, 82, 1972. One of these had
developed a complex delusional system; another became
increasingly self-destructive and a third was constantly under
medication “with varying degrees of unsustained relief’ and was
once hospitalized for drug overdose. Id. at 82-83. See also West,
Medicine and Capital Punishment, in Hearings Before the
Subcommittee on Criminal Laws and Procedures o f the Senate
Committee on the Judiciary, 90th Cong., 2d Sess., on S. 1760,
To Abolish the Death Penalty (March 20-21 and July 2, 1968)
124, 125, 127 (G.P.O. 1970); Note, Mental Suffering Under
Sentence o f Death: A Cruel and Unusual Punishment, 57 IOWA
L. REV. 814 (1972); Solesbee v. Balkcom, 339 U.S. 9, 14
(1950) (dissenting opinion of Justice Frankfurter).
113
I feel as tho the world is caving in on me.”172
The physical and psychological pain of execution itself
— whether life is destroyed by gas, by electrocution, or
by other means — is, of course, unmeasurable.173 It is
172Coley, A Letter from Death Row, 3 JURIS DOCTOR 19
(Dec. 1973). Cf DOSTOEVSKY, THE IDIOT 20 (Mod. Lib.
1935). See generally LEVINE (ed.), DEATH ROW..AN AFFIR
MATION OF LIFE (1972); CHESSMAN, TRIAL BY ORDEAL 3
(1955):
“Eve witnessed the disintegration of the minds of the
men around me. I’ve seen these men naked on the floor,
rolling in their own excrement. Eve listened as they
smashed and shattered the sinks and toilets and fixtures in
their cells. Eve heard their prayers and their screams and
their curses. Eve observed their bodies being removed after
they had destroyed themselves. Eve read their pathetic
pleas for mercy.”
173A11 medical witnesses agree that it takes a few seconds for
the condemned man to lose consciousness after inhaling lethal
gas. See Hamer, The Execution o f Robert H. White by
Hydrocyanic Acid Gas, 95 J. AM. MED. ASSN. 661 (1930);
Rosenbloom, Report o f a Case o f Chronic Hydrocyanic Acid
Poisoning, 8 J. LAB. & CLIN. MED. 258 (1923); ROYAL
COMMISSION ON CAPITAL PUNISHMENT 1949-1953, RE
PORT 251-256 (H.M.S.O. 1953) [Cmd. 8932]. Other scientists
assert that the condemned man is conscious for a longer time
and dies by slow agonizing strangulation. KEVORKIAN,
MEDICAL RESEARCH AND THE DEATH PENALTY 18-19
(1960). See also Schmitt & Schmitt, The Nature o f the Nerve
Impulse: The Effect o f Cyanides Upon Medullated Nerves (Pt. 2),
97 AM. J. PHYSIOLOGY 302, 302-304 (1931). Cf DUFFY &
HIRSHBERG, 88 MEN AND 2 WOMEN 102-103 (1962):
“ [t]he warden gives the executioner the signal and, out of
sight of the witnesses, the executioner presses the lever that
allows the cyanide gas eggs to mix with the distilled water
(continued)
114
one of the questions to which capital punishment cuts
off an answer, leaving only such scant comfort or
nagging doubt as speculation may provide. “Although
our information is not conclusive, it appears that there is
no method available that guarantees an immediate and
painless death.” Furman v. Georgia, supra, 408 U.S. at
287 (concurring opinion of Mr. Justice Brennan). Here
again, the ordinary deference due to legislative
judgment encounters the objection that legislators, in
common with all other men, simply cannot know
significant facts on which advised, dispassionate judg
ment ought to turn at least in part. The decision to kill
a human being is intractably a decision to do an act
whose most immediate major consequences are unknow
able. No amount of legislative inquiries or knowledge
can close up that gap (com pare, e.g., M cGinnis v.
Royster, 410 U.S. 263 (1973)), and all a legislature’s
“groping efforts” at experimenting with the penalty of
death (compare, e.g., Tigner v. Texas, 310 U.S. 141,
148 (1940)) will not provide its members or mankind
more information on the subject.
(footnote continued from proceeding page)
and sulphuric acid. In a matter of seconds the prisoner is
unconscious. At first there is extreme evidence of horror,
pain, strangling. The eyes pop, they turn purple, they
drool. It is a horrible sight. Witnesses faint. It finally is as
though he has gone to sleep. The body, however, is not
disfigured or mutilated in any way.”
Evidence regarding the experience of electrocution is similarly
inconclusive. A French scientist, Dr. L. G. V. Rota, has said “I
do not believe that anyone killed by electrocution dies instantly,
no matter how weak the subject may be.” Quoted in SCOTT,
THE HISTORY OF CAPITAL PUNISHMENT 219 (1950).
115
Fourth, the compatibility of the death penalty with
Eighth Amendment values is called into question by
its de jure or de fac to abandonment among civilized
nations.174 Capital punishment has been abolished by
most of the countries of Western Europe and the
Western Hemisphere,175 and is now in virtual disuse
throughout the world.176 A penalty thus progressively
repudiated on a world-wide scale surely warrants close
and critical examination when tested by the constitu
tional standards of decency of a Nation whose citizens
would be widely appalled to believe it laggard in the
enlightened administration of justice.177
F ifth , long-standing traditions defining the judicial
role in capital cases recognize the need for close
174Despite a wave of terrorist bombings in 1974, the British
House of Commons decisively rejected a measure to reinstitute
the death penalty in Great Britian for terrorist murders. N.Y.
Times, Dec. 12, 1974, at 7, col. 1.
17SAn analysis of world-wide trends in the authorization and
use of the penalty of death is contained in Appendix D, pp. Id -
6d infra.
176“Those countries retaining the death penalty report that in
practice it is only exceptionally applied and frequently the
persons condemned are later pardoned by executive authority.”
UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL, Note
by the Secretary-General, Capital Punishment (E/4947) 3
(February 23, 1971).
177In declaring denationalization a cruel and unusual punish
ment, the Court relied in part upon the fact that “ [t]he civilized
nations of the world [were] . . . in virtual unanimity that
statelessness is not to be imposed as punishment for crime.”
Trop. v. Dulles, supra, 356 U.S. at 102.
116
scrutiny of the punishment of death. The principle of
strict construction in favorem vitae runs deep in
Anglo-American history,178 and is only one exemplifica
tion of the special safeguards that apply in legal
proceedings when life is at stake:
“ [a] 11 the state legal systems in one way or another —
by requiring jury unanimity, by forbidding pleas of
guilty to a capital offense, by providing for
automatic appeals, and so on — have recognized
this distinction, quite without compulsion from
the national Supreme Court. But when such
compulsion was needed it has been forthcoming.
For many years our federal Supreme Court
required of the states that they invariably assign
counsel in capital cases, while leaving the question
of counsel in noncapital cases open to variation
based on special circumstances; the fact that at last
the Court decided counsel should be required in all
serious criminal cases does not impair the force of
the earlier cases as establishing national recognition
of the immense difference between imprisonment
and death. On the other side of the coin, the
Supreme Court has several times upheld, as not
violating any federal guarantee, state laws imposing
more stringent requirements for trial in capital
cases than in other cases.”179
l™See 1 RADZINOWICZ, A HISTORY OF ENGLISH
CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750
83-106 (1948).
179BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY
OF CAPRICE AND MISTAKE 34 (1974). Profesessor Black
refers, of course, to the evolution from Powell v. Alabama, 278
U.S. 45 (1932), through Betts v. Brady, 316 U.S. 455 (1942), to
Gideon v. Wainwright, 372 U.S. 335 (1963); and to such cases as
Johnson v. Louisiana, 406 U.S. 356 (1972).
117
Review of procedural issues in death cases has been
pursued under a policy of resolving legal “doubts . . . in
favor of the accused,” 180 and capital convictions
generally have been scrutinized on appeal with an
avowedly strict eye for error.181 At a time when the
other considerations we have enumerated raise the
question of the continuing constitutional validity of the
death penalty itself, it is appropriate that the same
strict scrutiny be turned upon that question.
Finally, in suggesting that sort of scrutiny, we ask no
more of the Court than society itself demands. Other
punishments — even punishments of extreme severity —
are and have long been accepted without the
extraordinary controversy, the collective soul-searching,
and the parade of elaborate justifications and rationaliza
tions that have accompanied the peculiar institution of
capital punishment. Despite the relatively minuscule
number of its victims 182 the justifiability of the death
penalty has been the subject of continuing and heated
Andres v. United States, 333 U.S. 740, 752 (1948). See
also, e.g., Williams v. Georgia, 349 U.S. 375, 391 (1955);
Hamilton v. Alabama, 368 U.S. 52, 55 (1961); Witherspoon v.
Illinois, 391 U.S. 510, 521 n.20 (1968); Reid v. Covert, 354
U.S. 1, 45-46 (1957) (concurring opinion of Justice Frankfurter);
id. at 77 (concurring opinion of Justice Harlan).
181 Browning, The New Death Penalty Statutes: Perpetuating a
Costly Myth, 9 GONZAGA L. REV. 651, 659 (1974), and
authorities cited.
182In 1970 nearly 80,000 persons were admitted to state and
federal adult correctional facilities, only 127 of whom were
under sentence of death. UNITED STATES DEPARTMENT OF
JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATIS
TICS 1973 358, 465 (August 1973).
118
debate183 in religious, academic, legislative and law
enforcement circles and among the general public. It is
surely the case that “ [a]t the very le a s t . . .
contemporary society views this punishment with
substantial doubt.” Furman v. Georgia, supra, 408 U.S.
at 300 (concurring opinion of Mr. Justice Brennan).
The moral character of this debate is as significant as
its prevalence. The opposition to capital punishment —
frequently voiced by religious denominations,184 among
others — has been vigorously asserted on the basis of
“fundamental moral and societal values in our civiliza
183The arguments for and against capital punishment have
been frequently catalogued. See, e.g., Vialet, Capital Punishment:
Pro and Con Arguments (United States, Library of Congress,
Legislative Reference Service, mimeo, August 3, 1966), reprinted
in Hearings Before the Subcommittee on Criminal Laws and
Procedures o f the Senate Committee on the Judiciary, 90th
Cong., 2d Sess., on S. 1760, To Abolish the Death Penalty
(March 20-21 and July 2, 1968) 172-200 (G.P.O. 1970);
BEDAU, THE DEATH PENALTY IN AMERICA 120-123 (rev.
ed. 1967); 2 NATIONAL COMMISSION ON REFORM OF
FEDERAL CRIMINAL LAWS, WORKING PAPERS 1350-1363
(G.P.O. 1970). See notes 184-186 infra.
184For a description of the positions taken by various religious
groups in opposition to capital punishment, see Bedau, The Issue
o f Capital Punishment, 53 CURRENT HISTORY No. 312 82,
84-85 August 1967).
119
tion and in our society.”185 Proponents of the death
penalty have responded with equal moral fervor.186
Surely no other criminal sanction has evoked such
passionate, ceaseless philosophical argument. * 6
185Canadian Prime Minister Lester B. Pearson, addressing the
House of Commons in support of a bill restricting the death
penalty for murder in Canada. CANADA, HOUSE OF
COMMONS, IV DEBATES, 27th Pari., 2d Sess. (16 Eliz. II)
4370 (Nov. 16, 1967). For similar expressions, see, e.g., Kazis,
Jewish Tradition and Capital Punishment, 6 TRENDS 6
(Nov.-Dee. 1973); Editorial, Genesis and Capital Punishment. 66
CHRISTIAN CENTURY 355 (March 28, 1973); Controversy
Over Capital Punishment: Pro & Con, 52 CONG. DIGEST 1, 10,
12, 16, 20, 26 (1974); National Council on Crime and
Delinquency Policy Statement on Capital Punishment, 10 CRIME
& DELINQ. 105 (1964); McGee, Capital Punishment as Seen by
a Correctional Administrator, 28 FED. PROB. No. 2 11 (1964);
Milligan, A Protestant’s View o f the Death Penalty, in BEDAU,
THE DEATH PENALTY IN AMERICA 175 (rev. ed. 1967);
Ehrmann, For Whom the Chair Waits, 26 FED. PROB. No. 1 14
(1962); BOK, STAR WORMWOOD (1959); CALVERT,
CAPITAL PUNISHMENT IN THE TWENTIETH CENTURY
(1927); GOWERS, A LIFE FOR A LIFE (1956); KOESTLER,
REFLECTIONS ON HANGING (Amer. ed. 1957)
lS6See, e.g., Vellenga, Christianity and the Death Penalty, 6
CHRISTIANITY TODAY 7 (Oct. 12, 1959); Hon. Samuel
Leibowitz, in Symposium on Capital Punishment, 7 N.Y.L.F. 249,
289-296 (1961); Controversy Over Capital Punishment: Pro &
Con, 52 CONG. DIGEST 1, 11, 13, 15, 21, 25 (1974); Kinney,
In Defense o f Capital Punishment, 54 KY. L. J. 742 (1966);
McDermott, Some Crimes Demand the Death Penalty, 11
POLICE 4 (Mar.-April, 1967); Caldwell, Why Is the Death
Penalty Retained? 284 ANNALS 45 (1952); Coakley, Capital
Punishment, 1 AM. CRIM. L. Q. 27 (1963); Cohen, The Need
for Capital Punishment, 20 CHITTY’S LJ. 86 (1972); Hook, The
Death Sentence, in BEDAU, THE DEATH PENALTY IN
AMERICA 146 (rev. ed. 1967); Barzun, In Favor o f Capital
Punishment, 31 AM. SCHOLAR 181 (1962).
120
Agonizings of this sort that can neither be resolved
nor stilled suggest a widespread perception that there is
something fundamentally questionable about the pen
alty of death. In view of the extreme infrequency of its
use, the troubled concerns which the punishment
invariably arouses can only be explained by its uniquely
and profoundly problematic aspects: its dissonance with
the basic values of our society. For reasons to which we
shall return — reasons having to do primarily with the
rarity and secrecy of the actual use of the death
penalty and with the outcast character of those
subjected to it187 — the problematic aspects of capital
punishment have not stayed state and federal legis
latures from enacting it. But those aspects particularly
warrant independent and stringent examination of the
death penalty by this Court at a moment when the
Nation, which has not executed a man or woman for
seven and a half years, agonizes once again upon the
brink.
Such an examination requires that the Court
determine whether the manifest cruelty of taking
human life is or is not “justified by the social ends it
[is] . . . deemed to serve.”188 Because of the unique
character of the death penalty,189 those justifications
must be real and substantial;190and they must conform
l9nSee pp. 134 - 139, infra.
18SFurman v. Georgia, supra, 408 U.S. at 312 (concurring
opinion of Mr. Justice White).
m See pp. 107 - 120 supra.
190C/. N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288,
307-308 (1964) (involving the right of association). See also
Eisenstadt v. Baird, 405 U.S. 438 (1972); Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969).
121
to the fashion in which the penalty is applied in fact.191
If “less drastic means for achieving the same basic
purpose” 192 are available, the State must use them
rather than indulge in the “pointless and needless
extinction of life with only marginal contributions to
any discernible social or public purposes.”193 This much
is implied in “the duty of [the] . . . Court to determine
whether the action [of killing people] bears a
reasonable relationship to the achievement of the
governmental purpose asserted as its justification,”194 or
whether, conversely, the punishment o f death is
excessive195 and therefore unconstitutional.
B. THE JUSTIFIABILITY OF THE PENALTY
OF DEATH
Criminal punishments are traditionally justified by
five related but separable objectives: reformation and
19lC f Edwards v. South Carolina, 372 U.S. 229, 236-237
(1963) (involving the right of free speech). See also e.g., Shapiro
v. Thompson, 394 U.S. 618, 631 (1969); Carrington v. Rash, 380
U.S. 89, 94-96 (1965).
192Shelton v. Tucker, 364 U.S. 479, 488 (1960) (involving the
right of association).
192Furman v. Georgia, supra, 408 U.S. at 312 (concurring
opinion of Mr. Justice White).
19*Bates v. City o f Little Rock, 361 U.S. 516, 525 (1960)
(involving the right of association).
195Furman v. Georgia, supra, 408 U.S. at 279-280, 300-305
(concurring opinion of Mr. Justice Brennan); id. at 309
(concurring opinion of Mr. Justice Stewart); id. at 312-313
(concurring opinion of Mr. Justice White); id. at 331-332,
342-359 (concurring opinion of Mr. Justice Marshall).
122
rehabilitation, moral reinforcement or reprobation,
isolation or specific deterrence, retribution, and deter
rence. It is not enough, however, that the death penalty
simply implement one or more of these goals. It must
be demonstrated that this uniquely harsh punishment is
better fitted to the effectuation of the permissible
purposes of the criminal law than other kinds of
available criminal penalties.
Of the first two of these objectives, little need be
said. Clearly “reformation . . . can have no applica
tion where the death penalty is exacted.”196 The
imposition and execution of a death sentence are not
designed to serve as instruments for the redemption of
criminal offenders: to the contrary, they represent a
determination that the offender is unredeemable.197
Similarly, the moral reinforcement or reprobation
function provides no substantial justification for the
unique harshness of the death penalty.198 While this
196r o y a l c o m m issio n o n c a p it a l pu n ish m e n t
1949-1953, REPORT 18 (H.M.S.O. 1953) [Cmd. 8932]. See also
SELLIN, THE DEATH PENALTY 69-79 (1959), published as an
appendix to AMERICAN LAW INSTITUTE, MODEL PENAL
CODE, Tent. Draft No. 9 (May 8, 1959); KOESTLER,
REFLECTIONS ON HANGING 144-152 (Amer. ed. 1957);
BEDAU, THE DEATH PENALTY IN AMERICA 395-405 (rev.
ed. 1967); Bedau, Death Sentences in New Jersey 1907-1960, 19
RUTGERS L. REV. 1, 47 (1964).
191 Cf Stephen, Capital Punishment, 69 FRASER’S
MAGAZINE 753, 763 (1864): “When a man is hung, there is an
end of our relations with him. His execution is a way of saying,
You are not fit for this world. Take your chance elsewhere.’ ”
m See Ancel, The Problem o f the Death Penalty, in SELLIN,
CAPITAL PUNISHMENT 3, 16-17, 19 (1967).
123
objective doubtless requires that the most serious crimes
be punished most seriously, “ [gjrading punishments
according to the severity of the crime does not require
that the upper limit of severity be the death
penalty.”199 This objective contains no commensur-
ability standard whereby the relative efficacy of the
death penalty and life imprisonment can be judged. A
severe punishment of any kind enforces equally the
restraints of the criminal law.
While the death penalty may have once been
necessary to control dangerous criminals, the develop
ment of a penitentiary system in the Nineteenth
Century has provided an alternative means of containing
such persons.200 Moreover, there is evidence that
199BEDAU, THE DEATH PENALTY IN AMERICA 268 (rev.
ed. 1967).
200See Bedau, The Courts, The Constitution, and Capital
Punishment, 1968 UTAH L. REV. 201, 232:
“ [i]n 1790, when the eighth amendment was adopted
(and even more so in earlier centuries, when ‘cruel and
unusual punishments’ were first prohibited in England)
only two types of punishment were available to cope with
serious offenses: death (with or without aggravations) and
banishment, or ‘transportation,’ to the colonies or some
other remote and relatively uninhabited region. Imprison
ment, as something more than a mode of temporary
detention prior to trial or as punishment for a minor
offense, was entirely unknown at the time anywhere in
Europe or America. How could anyone in 1790 sensibly
have demanded that the ‘evolving standards of decency’
required there and then imprisonment rather than death for
felons? There were no prisons, no trained custodial and
administrative officers, no parole system, no statutes to
authorize creating any of these, no public disposition to
obtain them — in short, none of the attitudes,facilities and
(continued)
124
convicted murderers are less likely to engage in future
criminal behavior than are other classes of offenders.201
The execution of criminal defendants to insure their
(footnote continued from proceeding page)
personnel obviously necessary to run a system of long term
incarceration. Today, of course, banishment is no alter
native at all. Instead, imprisonment is an entirely
commonplace practice and a viable alternative to banish
ment and death for every serious crime. However inhumane
and brutal imprisonment may be (and there is no doubt
that in practice it often is), involuntary incarceration under
close supervision may still be a necessary ‘cruelty’ in most
cases involving the commission of violent crimes. The
undeniably greater severity of death as a punishment over
imprisonment is, ceteris paribus, sufficient by itself to
establish its greater cruelty.”
There are now in this country, 4,401 state, federal and local
correctional facilities employing more than 70,000 people.
UNITED STATES DEPARTMENT OF JUSTICE, SOURCEBOOK
OF CRIMINAL JUSTICE STATISTICS 1973 108-109 (August
1973).
201A study of parole violation found that “ [t] he percentage of
Willful Homicide violators returned to prison on new commit
ments . . . [was], with one exception (Alcohol Laws Violations),
the lowest in any offender group.” Neithercutt, Parole Violation
Patterns and Commitment Offense, 9 J. RESEARCH CRIME &
DELINQ. 87, 90 (1972). The murderer has also been found to
have “a lower ‘criminality level’ than the non-murderer [while]
in the prison population.” Waldo, The “Criminality Level” o f
Incarcerated Murderers and Non-Murderers 60 J. CRIM L.,
CRIM. & POL. SCI. 60, 70 (1970). Of twenty-six homicides
committed in American prisons in 1964, only two were
committed by inmates serving sentences for capital murder.
Sellin, Homicides and Assaults in American Prisons, 1964, 31
ACTA CRIMINOLOGIAE ET MEDICINAE LEGALIS
JAPONICA 139 (1965).
125
effective isolation from society is an excessive punish
ment since less drastic means now exist to protect
society (and are customarily used, for example, to
constrain homicide defendants whose mental condition
renders them incompetent to stand trial). Although the
death penalty effectuates the goal of isolation of
offenders, it is an unnecessarily harsh mechanism for
obtaining this result.
The fourth traditional goal of criminal punishments is
retribution, the achievement of the ancient talionis
principle.
“The instinct for retribution is part of the nature
of man, and channeling that instinct in the
administration of criminal justice serves an impor
tant purpose in promoting the stability of a
society governed by law. When people begin to
believe that organized society is unwilling or
unable to impose upon criminal offenders the
punishment they ‘deserve,’ then there are sown the
seeds of anarchy - of self-help, vigilante justice,
and lynch law.”
Furman v. Georgia, supra, 408 U.S. at 308 (concurring
opinion of Mr. Justice Stewart). The question of how
far retribution, standing alone, is a legitimate goal of
the criminal law in the mid-1970’s is a complex one; but
this case does not present that question for decision,
since the death penalty as it is administered under the
Waddell decree is not retributive in any meaningful
way:
“the issue . . . is n o t . . . whether it is fair or just
that one who takes another person’s life should
lose his own. Whatever you think about that
proposition it is clear that we do not and cannot
act upon it generally in the administration of the
penal law. The problem rather is whether a small
126
and highly random sample of people who commit
murder or other comparably serious offenses ought
to be despatched, while most of those convicted of
such crimes are dealt with by imprisonment.”202
The concept of retribution requires both a factual
equivalency and a procedural regularity in the imposi
tion of punishment203 which are simply not present in the
administration of the death penalty for first degree
murder, as we have demonstrated in Part II supra. While
the Waddell death penalty might be sought to be justified
indirectly in light of a retributive goal as a device to
forestall private acts of vengeance, there is no empirical
evidence that lynch law increases as executions decline.
In fact, the relation between the lynching rate and the
execution rate appears to be more one of direct than
inverse proportionality, as the following statistics
demonstrate: 204 205
Known Executions204
Decade Legal Illegal
1890’s 1,214 1,540
1900’s 1,176 885
1910’s 1,031 621
1920’s 1,162 315
1930’s 1,667 130
1940’s 1,284 5
1950’s 717 22°5
202Professor Herbert Wechsler, in Symposium on Capital
Punishment, 7 N.Y.L.F. 249, 255 (1961).
203See also Sellin, The Inevitable End o f Capital Punishment,
in SELLIN, CAPITAL PUNISHMENT 239, 243 (1967):
“if we conservatively assume that there are now about
2500 capital murders annually in the United States and but
seven executions, it is obvious that a life for a life is rarely
taken.”
204BOWERS, EXECUTIONS IN AMERICA 40 (1974).
205Available data on illegal executions ended in 1956
Ibid:
127
There is yet another sense in which the death penalty
can be said to bear no meaningful relation to the goal
of retribution, for the lex talionis affords no com-
mensurability standard. The attempts of various post-
Furman statutes to authorize the death penalty for
“outrageously or wantonly vile, horrible or inhuman”
killings206 attest to this difficulty. For surely there is no
retributive logic to justify the simple asphyxiation or
electrocution of a defendant who has committed an
atrocious crime: such a crime demands a far harsher
punishment (under this logic) than the “mere
extinguishment of life,” E x parte Kemmler, 136 U.S.
436, 447 (1890) But such punishments are clearly
forbidden by the Eighth Amendment. With these
constitutional limitations, it cannot be asserted that any
particular penalty is more supportable by a retributive
purpose than any other penalty.
The most frequently voiced justification for the
death penalty is the deterrence of capital crimes
However, as the empirical findings collected in Appendix
E to this brief, pp. le-lOe infra, conclusively
demonstrate, there is no credible evidence — despite the
most exhaustive inquiry into the subject — that the death
206Ga. Code § 27-2534.1 (1) (7) (1973). See Appendix A, p. 22a
infra.
128
penalty is a deterrent superior to lesser punishments.207
The conclusions set forth in Appendix E may be briefly
summarized. Official and scholarly inquiries have
concluded overwhelmingly that use or disuse of the death
penalty has no effect upon the frequency of criminal
homicide. This conclusion is based on the following
statistical evidence.
Death penalty jurisdictions do not have a lower
rate of criminal homicide than abolition jurisdic
tions.
Given two states otherwise similar in factors
that might affect homicide rates, and differing in
that one employs capital punishment while the
other does not, the abolition state does not show
any consistently higher rate of criminal homicide.
20TThe few published claims of deterrent efficacy are based
upon impressionistic accounts of law enforcement officers and do
not explain the failure of the death penalty to affect crime rates.
See, e.g., Hoover, Statements in Favor o f the Death Penalty, in
BEDAU, THE DEATH PENALTY IN AMERICA 130 (rev. ed.
1967); Allen, Capital Punishment: Your Protection and Mine, in
BEDAU, THE DEATH PENALTY IN AMERICA 135 (rev. ed.
1967). We know of only one research-based claim of the deterrent
efficacy of the death penalty. It is based upon unpublished findings
but has been alluded to in a recent article as “indicating] that
each execution prevents between 8 and 20 murders.” Tullock,
Does Punishment Deter Crime?, THE PUBLIC INTEREST No. 36
103, 108 (1974), referring to Ehrlich, The Deterrent Effect o f
Capital Punishment: A Question o f Life and Death, “to be
published” in THE AMERICAN ECONOMIC REVIEW, id, at 111.
Tullock goes on to say that: . . unfortunately, the data available
for this study were not what one would hope for, so not as much
reliance can be put upon [the] . . . results as one normally would
give to work by such a sophisticated econometrician.” Id. at 108.
129
In jurisdictions which abolish the death penalty,
abolition has no influence on the rate of criminal
homicide.
Jurisdictions which reintroduce the death pen
alty after having abolished it do not show a
decreased rate of criminal homicide after reintro
duction.
Prisoners and prison personnel do not suffer a
higher rate of criminal assault and homicide from
life-term prisoners in abolition jurisdictions than in
death penalty jurisdictions.
The same conclusion has been reached with regard to
the “mandatory” death penalty; “no indication” has
been found “that the mandatory death penalty [is] . . .
a more effective deterrent of homicide than discretion
ary capital punishment.”208
These findings are not surprising. For, in the first
place, “crimes are committed for reasons other than a
rational weighing of consequences.”209 And, in the
second place, the very aberrational, violent behavior to
which the death penalty is now exclusively applied is less
deterrabie than any other human behavior, whether the
sanction is death or imprisonment:
“ [t]he deterrence argument requires that man
be an essentially rational being, weighing all the
possible consequences of his acts and rating the
desirability of each possible consequence. Whether
or not this view of man is generally true is
L o w e r s , e x e c u t io n s in Am e r ic a 160 ( 1974).
209Brief Amicus Curiae of the Committee of Psychiatrists for
Evaluation of the Death Penalty, in Aikens v. California, 406 U.S.
813 [No. 68-5027] pp. 6-7.
130
debatable, but in the instance of murderers it is
most certainly untrue.”210
C. Public Acceptance of the Penalty of Death
Against the background of this evidence that the
death penalty is excessive and unserviceable in terms of
210KAKOULLIS, THE MYTHS OF CAPITAL PUNISHMENT 2
(<CENTER FOR RESPONSIBLE PSYCHOLOGY, BROOKLYN
COLLEGE, C.U.N.Y., Report No. 13, 1974). See also Chambliss,
Types o f Deviance and the Effectiveness o f Legal Sanctions, 1967
Wise. L. REV. 703; FATTAH, A STUDY OF THE DETERRENT
EFFECT OF CAPITAL PUNISHMENT WITH SPECIAL
REFERENCE TO THE CANADIAN SITUATION 31-38 (Depart
ment of the Solicitor General, Canada, Research Centre Report No.
2, 1972). Indeed, there is strong evidence that the death penalty
may service to incite murder. It has been reported that in the
seventeenth and eighteenth centuries there was an “epidemic of
indirect suicides [in Norway and Denmark] .. . when depressed
people committed murder in order to be put to death . . . .” Id. at
39. In both countries laws were passed specifically exempting such
people from the death penalty. “The law passed in Denmark in
1767 abandoned the death penalty in cases where (melancholy and
other dimal persons (committed murder) for the exclusive purpose
of losing their lives).” Ibid. Moreover, there is evidence that even
the limited publicity surrounding an execution “has a ‘brutalizing’
effect on the population that more than offset [s] any deterrent
effects” by causing an increase in the incidence of homicide in the
periods immediately surrounding executions. BOWERS, EXECU
TIONS IN AMERICA 20 (1974). See also Glaser & Zeigler, Use o f
the Death Penalty v. Outrage at Murder, 20 CRIME & DELINQ.
333(1974).
131
the legitimate goals of the criminal justice system, we
ask the Court to look again at the use society has made
of it. For although the facts warrant a judicial judgment
of excessiveness, the Court need not rely solely on its
own appraisal of them. Society itself has pronounced a
judgment, by its actions if not by its words. That
judgment is that the penalty of death is both excessive
and unacceptable.
To be sure, thirty jurisdictions have enacted
death-penalty legislation since Furman (narrower, in all
but two cases, than their pre-Furman authorizations of
capital punishment).211 But, in every case, the legisla
ture has preserved or created a wide range of selective
mechanisms by which the death penalty can be avoided
in most cases. Some States have expressly conferred
life-or-death sentencing discretion upon capital juries,
to be exercised pursuant to standards that purport to
confine such discretion but do not do so in fact.212
Other States allow escape from “mandatory” death
penalties through a variety of preconviction and
postconviction outlets like those of North Carolina
which we have described in Part II at pp. 45-100 supra.
In this setting at least, the number of legislative
authorizations is not — as Furman properly held — an
appropriate test of acceptability of a harsh punishment.
For acceptability is measured by what an enlightened
public conscience will allow the law actually to do, not
what it will permit a statute to threaten vaguely.213 And
211See note 15, supra] Appendix A, pp. 42a-43a, 55a infra.
212See Petition for Writ of Certiorari, 17 Eberheart v. Georgia,
No. 74-5174 (filed August 19, 1974) pp. 32-36.
213“The objective indicator of society’s view of an unusually
severe punishment is what society does with it . . . .” Furman v.
Georgia, supra, 408 U.S. at 300 (concurring opinion of Mr.
Justice Brennan).
132
the authors of even purportedly “mandatory” legislation
— legislation written to be administered through
discretionary judgments of prosecutors, judges, juries,
and the Governor — can hardly be unaware that they
are not in fact ordaining death except in a fraction of
the cases covered by the statute.214 Prosecutors may be
relied upon to “avoid the unacceptably rigorous
application of the letter of the law”215 by filing and
accepting pleas to non-capital charges216 with the
2UCf. Vidmar & Ellsworth, Public Opinion and the Death
Penalty, 26 STAN. L. REV. 1245, 1252 (1974):
“ [a] s reported previously, a substantial 59 percent of the
public now favors capital punishment in principle. No more
than 39 percent of the same persons, however, could say,
‘If guilt were proven, I could always vote guilty even
though the defendant would automatically receive the
death penalty.’ Another 16 percent agreed with the
statement, ‘I could never vote guilty, even if guilt were
proven, knowing that the defendant would automatically
receive the death penalty.’ And a larger percent agreed
that, ‘I could not say in all cases, even if guilt were proven,
that I would vote guilty, knowing the defendant would
automatically receive the death penalty.’
Thus, by 49-39 percent, the American people indicate that
in actual practice they would individually oppose the
automatic imposition of the death penalty if a person were
proven guilty of a crime such as murder.
The clear implication of these results is that while people
feel that capital punishment is the most effective deterrent
to crimes that take the life of other persons, there should
be much latitude in the way the death sentence is handed
out. The public wants to have the death penalty on the
books, but would use it sparingly and by no means as an
automatic punishment for a capital crime.”
21sSee text at note 91 supra.
216See pp. 45-61 supra.
133
acquiescence (where required) of trial judges.211 * * * * * 217 Juries
can be counted on to make sentencing decisions “under
the guise of resolving issues of evidential doubt.”218 At
the end of the judicial process, the Governor may be
expected to provide “an outlet from the rigorous
inflexibility”219 of “mandatory” capital punishment.
We are left, then, with the history of the past as
prelude to the future. What that history shows is a
rejection of the death penalty that “could hardly be
more complete without becoming absolute.”220 Given a
choice of punishing “capital” offenders by death or
something less, American systems of criminal justice
have chosen against death for all but a scant handful of
offenders.
“Although the number cannot be determined with
precision, no one can doubt that in each of the
211 See pp. 57,61 supra.
218KALVEN & ZEISEL, THE AMERICAN JURY 427 (1966).
We have seen, indeed, that jury acquittals motivated by a desire
to avoid capital punishment under “mandatory” sentencing
schemes provided a major impetus for the replacement of those
schemes with overtly “discretionary” ones during the late
Nineteenth and early Twentieth Centuries. See note 133 supra.
Cf Mackey, The Inutility o f Mandatory Capital Punishment: An
Historical Note, 54 B.U.L. REV. 32, 35 (1974):
“ [a] ntebellum Americans . . . whose experience with
mandatory capital punishment was extensive, tended to
account it a dangerous failure. They were satisfied that
mandatory capital punishment did indeed have a deterrent
effect; it deterred jurors from convicting palpably guilty
men.”
2l9See text at note 148 supra.
22aPunnan v. Georgia, supra, 408 U.S. at 300 (concurring
opinion of Mr. Justice Brennan).
134
years involved [1930-1959], with executions rang
ing from 199 to 48, there were literally thousands
of prosecutions that could legally have ended in a
capital judgment.
The conclusion . . . is inescapable that punishment
of death is inflicted in the United States on a bare
sample of the culprits whose conduct makes them
eligible for its imposition . . . .
[ T ] his experience reveals a deep reluctance in our
culture to employ the final sanction. . . ,”221
This reluctance “to impose or authorize the carrying
out of a death sentence”222 is the more eloquent
because of the context in which it has occurred. For it
is fair to say that the conditions of administration of
capital punishment during the past several decades have
been such as to promote its public acceptability to the
fullest extent consistent with its nature and the tenor
of the public conscience. In the first place, every
American execution since 1936 has taken place in
secret, isolated by law from the public eye and
221Professor Herbert Wechsler, in Symposium on Capital
Punishment,! N.Y.L. F. 249, 252-253 (1961).
^R ESID E N T’S COMMISSION ON LAW ENFORCEMENT
AND ADMINISTRATION OF JUSTICE, REPORT: THE
CHALLENGE OF CRIME IN A FREE SOCIETY 143 (G.P.O.
1967).
135
conscience.223 Indeed, there are but a handful of people
in this Nation who have witnessed an execution and can
speak with authority to the proposition that:
. . if people were to witness the decay of the
waiting man, to hear his cries and watch his final
struggles, they would be affronted in then-
consciences, and in their standards of humanity
and of human dignity and decency.”224
The rarity and secrecy of executions account for the
fact that, although it is everywhere agreed that the
cruelty of a death sentence is such that its imposition
requires extraordinary justification, the wealth of
research and theoretical debate on the subject of capital
punishment is largely ignored. The often noted fact that
. . American citizens know almost nothing about
capital punishment”225 reflects two circumstances: we
223The first American State to abolish public executions was
Pennsylvania, in 1834. See Filler, Movements to Abolish the Death
Penalty in the United States, 284 ANNALS 124, 127 (1952).
Public execution terminated in England in 1868, see TUTTLE,
THE CRUSADE AGAINST CAPITAL PUNISHMENT IN GREAT
BRITAIN 20 (1961); and such executions were progressively
outlawed in the United States throughout the Nineteenth Century,
see BYE, CAPITAL PUNISHMENT IN THE UNITED STATES 6
(1919). The last public execution in the country seems to have
occurred in Kentucky in 1936. BARNES & TEETERS, NEW
HORIZONS IN CRIMINOLOGY 307 (3rd ed. 1959).
224Gottlieb, Capital Punishment, 15 CRIME & DEL1NQ. 1, 6
(1969). See West, Medicine and Capital Punishment, in Hearings
Before the Subcommittee on Criminal Laws and Procedures o f the
Senate Committee on the Judiciary, 90th Cong. 2d Sess., on S.
1760, To Abolish the Death Penalty (March 20-21 and July 2,
1968) 124, 125 (G.P.O. 1970).
22sFurman v. Georgia, supra, 408 U.S. at 362 (concurring
opinion of Mr. Justice Marshall) (citing Gold, A Psychiatric Review
o f Capital Punishment, 6 J. FORENSIC SCI. 465, 466 (1961);
KOESTLER, REFLECTIONS ON HANGING 164 (Amer. ed.
1957); and DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN
257-258(1962)).
136
are protected by disuse and by official secrecy from its
reality; and, as a consequence, there is no incentive to
examine rigorously its justifiability.
But the death penalty also knows a different and less
innocent kind of isolation from public consciousness
and conscience. It is a fact of human nature that we
respond more readily to wrongs committed against
those with whom we identify - those most like
ourselves in appearance, background and mores. Con
versely, wrongs we would not tolerate when done to
our own kith or kind are tolerable when inflicted on
those we despise or can ignore. The strong extant
evidence and observations that the death penalty has
been disproportionately applied to racial minorities226 * 143
226Racial discrimination in the imposition of capital punish
ment has been borne out in a number of discrete and limited but
careful studies. Johnson, The Negro and Crime, 217 ANNALS 93
(1941); Garfmkel, Research Note on Inter- and Intra-Racial
Homicides, 27 SOCIAL FORCES 369 (1949); Johnson, Selective
Factors in Capital Punishment, 36 SOCIAL FORCES 165 (1957);
Wolfgang, Kelly & Nolde, Comparison o f the Executed and the
Commuted Among Admissions to Death Row, 53 J. CRIM. L.,
CRIM. & POL. SCI. 301 (1962); Bedau, Death Sentences in New
Jersey 1907-1960, 19 RUTGERS L. REV. 1, 18-21, 52-53
(1964). Moreover, it has seemed apparent to responsible
commissions and individuals studying the administration of the
death penalty in this country. PRESIDENT’S COMMISSION ON
LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE,
REPORT: THE CHALLENGE OF CRIME IN A FREE SOCIETY
143 (G.P.O. 1967); PENNSYLVANIA, JOINT LEGISLATIVE
COMMITTEE ON CAPITAL PUNISHMENT, REPORT 14-15
(1961); UNITED NATIONS, DEPARTMENT OF ECONOMIC
AND SOCIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/
SD/9-10) 32, 98 (1968); BEDAU, THE DEATH PENALTY IN
AMERICA 411413 (rev. ed. 1967); CLARK, CRIME IN
AMERICA 335 (1970); MATTICK, THE UNEXAMINED DEATH
5, 17 (1966); WOLFGANG & COHEN, CRIME AND RACE:
CONCEPTIONS AND MISCONCEPTIONS 77, 80-81 (1970);
Hartung, Trends in the Use o f Capital Punishment, 284 ANNALS
8, 14-17 (1952); Bedau, A Social Philosopher Looks at the Death
137
and to the poor227 therefore cannot be ignored in
(footnote continued from proceeding page)
Penalty, 123 AM. J. PSYCHIATRY 1361, 1362 (1967); and see
Rubin, Disparity and Equality o f Sentences — A Constitutional
Challenge, 40 F.R.D. 55, 66-68 (1967); BOWERS, EXECUTIONS
IN AMERICA 71-120 (1974); Auerbach, Common Myths About
Capital Criminals and Their Victims, 3 GEORGIA J. COR
RECTIONS 41 (1974). Evidence of discrimination has been
equally strong when the sentencing systems under study were
ostensibly mandatory:
“ .. . although we have no empirical evidence that the
mandatory death penalty is superior to discretionary
sentencing as a deterrent to murder, we have seen that it
has been associated with higher levels of execution, with
comparable levels of racial discrimination, and, very likely,
with reduced levels of capital convictions. In view of this
evidence, it would appear that the adoption of the
mandatory death penalty would mean a greater sacrifice of
human life, continued discrimination against blacks, and
the inability to convict some guilty offenders, without any
deterrent benefit.”
BOWERS, op. cit. supra, at 162; see also Garfinkel, supra.
The following are the total numbers of persons executed between
1930 and 1970, broken down by offense and race, as they appear
in UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, NATIONAL PRISONER STATISTICS, Bulletin No. 46,
Capital Punishment 1930-1970 12 (August, 1971):
Murder Rape
White 1664(49.9%) 48(10.5%)
Negro 1630(48.9%) 405(89.1%)
Other 40( 1.2%) 2( 0.4%)
3334(100%) 455(100%)
Other Total
39(55.7%) 1751(45.4%)
31(44.3%) 2066(53.5%)
0( 0.0%) 42( 1.1%)
70(100%) 3859(100%)
227“It is the poor, the sick, the ignorant, the powerless and
the hated who are executed.” CLARK, CRIME IN AMERICA
335 (1970). See DUFFY & HIRSHBERG, 88 MEN AND 2
(continued)
138
assessing the quality of such acceptance as the penalty
has had. For present purposes, it matters little whether
these disproportions are the result of discrimination,
passive lack of empathy, inadequacy of defense
resources 228, or some more benign explanations. The
very fact of the disproportion means that public response
(footnote continued from proceeding page)
WOMEN 256-257 (1962); LAWES, TWENTY THOUSAND
YEARS IN SING SING 302 (1932); LAWES, LIFE AND DEATH
IN SING SING 155 (1928); WEIHOFEN, THE URGE TO PUNISH
164-165 (1956); West, Medicine and Capital Punishment, in
Hearings Before the Subcommittee on Criminal Laws and
Procedures o f the Senate Committee on the Judiciary, 90th Cong.,
2d Sess., on S. 1760, To Abolish the Death Penalty (March 20-21
and July 2, 1968) 124, 125 (G.P.O. 1970); McGee, Capital
Punishment as Seen by a Correctional Administrator, 28 FED.
PROB.No.2 11, 12 (1964).
The characteristics of the inmates of death row are described in
Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS
L. REV. 1 (1964); Bedau, Capital Punishment in Oregon,
1903-1964, 45 ORE. L. REV. 1 (1965); Carter & Smith, The
Death Penalty in California: A Statistical and Composite Portrait,
15 CRIME & DELINQ. 62 (1969); Johnson, Selective Factors in
Capital Punishment, 36 SOCIAL FORCES 165 (1957); Koeninger,
Capital Punishment in Texas, 1924-1968, 15 CRIME & DELINQ.
132 (1969). And see Brief for the N.A.A.C.P. Legal Defense and
Educational Fund, Inc., and the National Office for the Rights of
the Indigent, as Amici Curiae, in Boykin v. Alabama, 395 U.S. 238
(1969) [O.T. 1968, No. 642], p. 7 n.8.
228For a review of the disadvantages under which defense of an
indigent, low or moderate income person must be conducted,
see Goldberg, Equality and Governmental Action, 39 N.Y.U.L.
REV. 205,218-224(1964).
139
to the enormity of the decision to kill a fellow human
being is blunted. To the average citizen and the citizen of
influence, death remains a penalty for them , not for us.
. At this point, description of the acceptance of capital
punishment by contemporary society becomes appro
priately cyclical. For infrequent, racially and socially
disproportionate application of the death penalty is
maintained by the very attitudes it has helped to create.
A harsh penalty, unacceptable in general application, is
inflicted on the powerless and the unpopular while
more sympathetic and attractive classes of defendants
are spared. Thus applied, the residue of the penalty is
acceptable to the public, which feels no pressure to
restrict its broad availability on the statute books. The
broad availability of the penalty in turn creates
consistent pressure upon prosecutors, jurors, judges, and
Governors, to take advantage of a variety of selective
mechanisms to avert the punishment from all but an
impotent and anonymous few.
This pattern of use, in turn, makes the justifications
of capital punishment even more hollow. Reluctant,
unpredictable and spotty application of the death
penalty deprives it of the least capacity to serve its
supposed penal functions. As a deterrent, it is wholly
incredible; as a disabler, it is as useless and fortuitous as
it is necessary; as an instrument of retribution, it is
inadequate, haphazard, and unjust. The few men whom it
kills die for no reason; they are executed “in the name of
a theory in which the executioners do not believe.” 229
Distaste for the penalty grows, and fewer men are killed
as society “watch[es] without impatience its gradual
disap p earan ce. ” 230
229Camus, Reflections on the Guillotine, in CAMUS,
RESISTANCE, REBELLION AND DEATH 131, 141 (Mod. Lib.
1963).
230An cel, The Problem o f the Death Penalty, in SELLIN,
CAPITAL PUNISHMENT 3 (1967).
140
The cycle can be broken only if the Eighth
Amendment is employed in its most vital and essential
function: to assure that principles of human decency
are universally enforced, even — and especially — where
rare and random application of a punishment makes their
occasional violation virtually invisible except to the
condemned.
CONCLUSION
Petitioner’s death sentence is a cruel and unusual
punishment forbidden by the Eighth and Fourteenth
Amendments. The judgment of the North Carolina
Supreme Court should therefore be reversed.
Respectfully submitted,
JACK GREENBERG
JAMES M. NABRIT, III
DAVID E. KENDALL
PEGGY C. DAVIS
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ADAM STEIN
CHARLES L. BECTON
Chambers, Stein, Ferguson & Fanning
157 East Rosemary Street
Chapel Hill, North Carolina 27514
A tto rn eys fo r Petitioner
la
APPENDIX A
CAPITAL PUNISHMENT STATUTES ENACTED SINCE
FURMAN v. GEORGIA
ARIZONA
Arizona provides the death penalty for some cases of
first degree murder.
The punishment for first degree murder is either
death or life imprisonment. Ariz. Rev. Stat. §13-
543(A). The choice between these alternative penalties
is made by the trial judge after a separate, post
conviction sentencing hearing. Ariz. Rev. Stat.
§ 13-454(A). The judge must return a special verdict
setting forth his findings as to the existence or
non-existence of each of a number of specified
aggravating and mitigating circumstances. Ariz. Rev.
Stat. § 13-454(C). The burden of establishing aggravat
ing circumstances rests on the State, while the burden
of establishing mitigating circumstances rests on the
defendant. Ariz. Rev. Stat. § 13-454(B). In neither case
is the requisite quantum of proof stated.
In determining whether to impose a life or death
sentence:
“the court shall take into account the mitigating
circumstances enumerated in subsections E and F
and shall impose a sentence of death if the court
finds one or more of the aggravating circumstances
enumerated in subsection E and that there are no
mitigating circumstances sufficiently substantial to
call for leniency.”
Ariz. Rev. Stat. § 13-454(D).
The following “aggravating circumstances” are set
forth in Ariz. Rev. Stat. § 13-454(E):
2a
“ 1. The defendant has been convicted of
another offense in the United States for which
under Arizona law a sentence of life imprisonment
or death was imposable.
2. The defendant was previously convicted of a
felony in the United States involving the use or
threat of violence on another person.
3. In the commission of the offense the
defendant knowingly created a grave risk of death
to another person or persons in addition to the
victim of the offense.
4. The defendant procured the commission of
the offense by payment, or promise of payment,
of anything of pecuniary value.
5. The defendant committed the offense as
consideration for the receipt, or in expectation of
the receipt, of anything of pecuniary value.
6. The defendant committed the offense in an
especially heinous, cruel, or depraved manner.”
The following “mitigating circumstances” are set
forth in Ariz. Rev. Stat. § 13-454(F):
“ 1. His capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the
requirements of law was significantly impaired, but
not so impaired as to constitute a defense to
prosecution.
2. He was under unusual and substantial duress,
although not such as to constitute a defense to
prosecution.
3. He was a principal, under § 13-452, Arizona
Revised Statutes, in the offense, which was
committed by another, but his participation was
relatively minor, although not so minor as to
constitute a defense to prosecution.
3 a
4. He could not reasonably have foreseen that
his conduct in the course of the commission of the
offense for which he was convicted would cause,
or would create a grave risk of causing, death to
another person.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases, although plea negotiation is regulated in other
ways by Ariz. Rev. Stat., Rule 17.4. The Governor’s
clemency power in capital cases is left unaltered.
This statute became effective on August 8, 1973.
ARKANSAS
Arkansas provides the death penalty for some cases
of “capital felonies.” “Capital felonies” are defined by
Ark. Code §41-4702 as (1) treason, and (2) an
“unlawful killing” either (a) during the commission or
attempted commission of enumerated felonies, or (b) of
policemen or other enumerated public officers in the
line of duty, or of “any public official or any candidate
for public office” when the killing is perpetrated “from
a premeditated design to effect the death of the person
killed or of any other human being,” or (c) of two or
more persons pursuant to a similar “premediated
design,” or (d) by a person already under sentence of
death or life imprisonment.
The punishment for a “capital felony” is either death
or life imprisonment. Ark. Code §41-4706. The choice
between these alternative penalties is made by a jury
after a separate, post-conviction sentencing hearing.
4 a
Ark. Code §41-4710(b). The jury must return a special
verdict setting forth its findings as to the existence or
non-existence of each of a number of specified
aggravating and mitigating circumstances. Ark. Code
§41-4710(e).
The jury must also set forth in its verdict its
conclusion:
“(i) whether beyond a reasonable doubt suffi
cient aggravating circumstances . . . exist to
justify a sentence of death; [and]
(ii) whether sufficient mitigating circum
stances . . . exist to justify a sentence of life
imprisonment. . . .”
Ark. Code §4710(d); see also Ark. Code §4710(e).
And the jury must “render a sentence based upon”
these conclusions. Ark. Code § 4710(d). When “the jury
in its discretion finds mitigating circumstances . . . and
determines that these mitigating circumstances preclude
the imposition of death . . . , then such crime” is
punished by life imprisonment. Ark. Code §41-4703.
The following “aggravating circumstances” are set
forth in Ark. Code §41-4711:
“(a) the capital felony was committed by a
person under sentence of imprisonment;
(b) the defendant was previously convicted of
another capital felony or of a felony involving the
use or threat of violence to the person;
(c) the defendant in the commission of the
capital felony knowingly created a great risk of
death to one (1) or more persons in addition to
the victim;
(d) The capital felony was committed for the
purpose of avoiding or preventing a lawful arrest
or effecting an escape from custody;
5 a
(e) the capital felony was committed for
pecuniary gain; and
(f) the capital felony was committed for the
purpose of disrupting or hindering the lawful
exercise of any governmental function, political
function or the enforcement of laws.”
The following “mitigating circumstances” are set
forth in Ark. Code §41-4712:
“(a) the capital felony was committed while the
defendant was under extreme mental or emotional
disturbance;
(b) the capital felony was committed while the
defendant was acting under unusual pressures or
influences, or under the domination of another
person;
(c) the capital felony was committed while the
capacity of the defendant to appreciate the
wrongfulness of his conduct, or to conform his
conduct to the requirements of law was impaired
as a result of mental disease or defect, intoxication
or drug abuse;
(d) the youth of the defendant at the time of
the commission of the capital felony; or
(e) the capital felony was committed by
another person and the defendant was an accom
plice or his participation relatively minor.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. Certain procedural and reporting requirements are
imposed upon the Governor in the exercise of his
clemency power, Ark. Code §41-4714, but his absolute
6a
discretion to grant or deny commutation is left
unaltered.
This statute became effective on July 24, 1973.
CALIFORNIA
California provides the death penalty for some cases
of first degree murder (Cal. Penal Code § 190.1 (West
Supp. 1974)), for some cases of kidnapping for ransom
(Cal. Penal Code §209 (West Supp. 1974)), for some
cases of deadly assault by a life-term inmate (Cal. Penal
Code §4500 (West Supp. 1974)), and for some cases of
trainwrecking (Cal. Penal Code §219 (West Supp. 1974)).
The punishment for these crimes is either death or
life imprisonment. Cal. Penal Code §§ 190.1, 209, 219,
4500 (West Supp. 1974). In cases of first degree
murder, the choice between these alternative penalties is
made by a jury (or by the trial judge if a jury is waived
by the defendant) after a separate, post-conviction
sentencing hearing. Cal. Penal Code §190.1. The jury
must return a special verdict setting forth its finding as
to the existence or non-existence of each of the
“special circumstances” charged. “In case of a reasona
ble doubt whether a special circumstance is true, the
defendant is entitled to a finding that it is not true.”
Cal. Penal Code §190.1. However, the burden of
proving or disproving “special circumstances” is not
allocated, except that “ [w] herever a special circumstance
requires proof of the commission or attempted
commission of a crime, such crime shall be charged and
proved pursuant to the general law applying to the trial
and conviction of a crime.” Cal. Penal Code § 190.1. In
7a
cases of kidnapping for ransom and trainwrecking, the
penalty is death where “any person subjected to any
such act suffers death.” Cal. Penal Code §§209, 219.
In cases of deadly assault by a life-term inmate, the
penalty is death where the victim is a non-inmate who
dies within a year and a day “as a proximate result” of
the assault. Cal. Penal Code §4500. The bifurcated trial
procedures of Cal. Penal Code §190.1 are apparently
not applicable to the offenses of kidnapping for
ransom, trainwrecking or deadly assault by a life-term
inmate.
The following “special circumstances” are set forth in
Cal. Penal Code § 190.1:
“(a) The murder was intentional and was
carried out pursuant to an agreement with the
defendant. . . .
(b) The defendant personally committed the act
which caused the death of the victim and any of
the following additional circumstances exist:
(1) The victim is a peace officer . . . who, while
engaged in the performance of his duty, was
intentionally killed, and the defendant knew or
reasonably should have known that such victim
was a peace officer engaged in the performance of
his duties.
(2) The murder was willful, deliberate and
premeditated and the victim was a witness to a
crime who was intentionally killed for the purpose
of preventing his testimony in any criminal
proceeding.
(3) The murder was willful, deliberate and
premeditated and was committed during the
commission or attempted commission of any of
the following crimes:
8a
(i) Robbery . . .
(ii) Kidnapping . . .
(iii) Rape by force or violence, . . . or by threat
of great and immediate bodily harm . . .
(iv) The performance of lewd or lascivious acts
upon the person of a child under the age
of 14 . . .
(v) Burglary . . . of an inhabited dwelling hous
ing entered by the defendant with an
intent to commit grand or petit larceny or
rape.
(4) The defendant has in this or in any prior
proceeding been convicted of more than one
offense of murder of the first or second degree.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on January 1, 1974.
COLORADO
Colorado provides the death penalty for some cases
of “class 1 felonies.” Sec. 4, Col. S.B. No. 46 (1974
sess.) First degree murder, Col. Rev. Stat. 1963
§40-3-102 (1971 Supp.) and first degree kidnapping,
Col. Rev. Stat. 1963 §40-3-301 are defined as “class 1
felonies.”
The punishment for a “class 1 felony” is either death
or life imprisonment, Sec. 4, Col. S.B. No. 46 (1974
9a
sess.). The choice between these alternative penalties is
made by the trial jury (or the trial court, if a jury was
waived) after a separate, post-conviction sentencing
hearing. Ibid. The jury must return a verdict making a
“finding” as to the existence or nonexistence of
“aggravating factors” (specified in §4(5)) and “mitigat
ing factors” (specified in §4(6)). The burden of
establishing “aggravating” or “mitigating” factors is not
allocated, and in neither case is the requisite quantum
of proof stated.
“If the sentencing hearing results in a verdict or
finding that none of the factors set forth in
subsection (5) of this section exist and that one or
more of the factors set forth in subsection (6) of
this section do exist, the court shall sentence the
defendant to death. If the sentencing hearing
results in a verdict or finding that none of the
aggravating factors set forth in subsection (6) of
this section exist or that one or more of the
mitigating factors set forth in subsection (5) of
this section do exist, the court shall sentence the
defendant to life imprisonment. If the sentencing
hearing is before a jury and the verdict is not
unanimous, the jury shall be discharged, and the
court shall sentence the defendant to life imprison
ment.”
Sec. 4(4), Col. S.B. No. 46 (1974 sess.).
The following “mitigating factors” are set forth in
subsection (5), which provides that “ [t ] he court shall
not impose the sentence of death on the defendant if
the sentencing hearing results in a verdict or finding
that at the time of the offense:
(a) He was under the age of eighteen; or
(b) His capacity to appreciate wrongfulness
[sic] of his conduct or to conform his conduct to
10a
the requirements of law was significantly impaired,
but not so impaired as to constitute a defense to
prosecution; or
(c) He was under unusual and substantial
duress, although not such duress as to constitute a
defense to prosecution; or
(d) He was a principal in the offense, which was
committed by another, but his participation was
relatively minor, although not so minor as to
constitute a defense to prosecution; or
(e) He could not reasonably have foreseen that
his conduct in the course of the commission of the
offense for which he was convicted would cause,
or would create a grave risk of causing, death to
another person.”
Sec. 4(5), Col. S.B. No. 46 (1974 sess.).
The following “aggravating factors” are set forth in
subsection (6), which provides that “ [i] f no factor set
forth in subsection (5) of this section is present, the
court shall sentence the defendant to death if the
sentencing hearing results in a verdict or finding that:
(a) The defendant has previously been convicted
by a court of this or any other state, or of the
United States, of an offense for which a sentence
of life imprisonment or death was imposed under
the laws of this state or could have been imposed
under the laws of this state if such offense had
occurred within this state; or
(b) He killed his intended victim or another, at
any place within or without the confines of a
penal or correctional institution, and such killing
occurred subsequent to his conviction of a class 1,
2, or 3 felony and while serving a sentence
imposed upon him pursuant thereto; or
(c) He intentionally killed a person he knew to
be a peace officer, fireman, or correctional official.
11a
The term “peace officer” as used in this section
means only a regularly appointed police officer of
a city, marshal of a town, sheriff, undersheriff, or
deputy sheriff of a county, state patrol officer, or
agent of the Colorado bureau of investigation; or
(d) He intentionally killed a person kidnapped
or being held as a hostage by him or by anyone
associated with him; or
(e) He has been a party to an agreement in
furtherance of which a person has been inten
tionally killed; or
(f) He committed the offense while lying in
wait, from ambush, or by use of an explosive or
incendiary device. As used herein, explosive or
incendiary device means:
(i) Dynamite and all other forms of high
explosives;
(ii) Any explosive bomb, grenade, missile, or
similar device; or
(iii) Any incendiary bomb or grenade, fire
bomb, or similar device, including any
device which consists of or includes a
breakable container including a flammable
liquid or compound, and a wick composed
of any material which, when ignited, is
capable of igniting such flammable liquid
or compound, and can be carried or
thrown by one individual acting alone.
(g) He committed a class 1, 2, or 3 felony and,
in the course of or in furtherance of such or
immediate flight therefrom, he intentionally caused
the death of a person, other than one of the
participants; or
(h) In the commission of the offense, he
knowingly created a grave risk of death to another
person in addition to the victim of the offense; or
12a
(i) He committed the offense in an especially
heinous, cruel, or depraved manner.”
Sec. 4(6), Col. S.B. No. 46 (1974 sess.).
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute was approved in a referendum on
November 5, 1974, and becomes effective on January
1, 1975.
CONNECTICUT
Connecticut provides the death penalty for some
cases of “capital felonies.” “Capital felonies” are
defined by Conn. Gen. Stat. §53a-45 (3) (P.A. 73-137,
[1973] Conn. Leg. Serv. 184 (West)) as (1) “murder”
either (a) of policemen or other enumerated public
officers in the line of duty, or (b) committed for
“pecuniary gain,” or (c) committed by one who was
previously convicted of murder, or (d) committed by
one who is presently serving a life sentence for any
crime, or (e) of a kidnap victim, and (2) as “the illegal
sale, for gain, of cocaine, heroin or methadone to a
person who dies as a direct result of the use by him of
such cocaine, heroin or methadone, provided such seller
was not, at the time of such sale, a drug-dependent
person.”
13a
The punishment for a “capital felony” is either death
or life imprisonment. Conn. Gen. Stat. § 53a-45(4)(e)
(P.A. 73-137, [1973] Conn. Leg. Serv. 184 (West)).
The choice between these alternative penalties is made
by the trial judge or a jury after a separate,
post-conviction sentencing hearing. Conn. Gen. Stat.
§ 53a-45(4)(b). (Such hearing is not held, however, if
the State stipulates that no “aggravating factors” are
present or that one or more “mitigating factors” are
present. Conn. Gen. Stat. § 53a-45(4)(b)). The judge or
jury must return a special verdict setting forth its
findings as to the existence or non-existence of each of
a number of specified aggravating and mitigating
circumstances. Conn. Gen. Stat. § 53a-45(4)(b). The
burden of establishing aggravating circumstances rests
on the State, while the burden of establishing mitigating
circumstances rests on the defendant. Conn. Gen. Stat.
§ 53a-45(4)(c). In neither case is the requisite quantum
of proof stated.
If the jury or, if there is no jury, the court finds that
one or more of the aggravating circumstances exists and
that none of the mitigating circumstances exists, “the
court shall sentence the defendant to death.” If the
jury or, if there is no jury, the court finds that none of
the aggravating circumstances exists or that one or more
of the mitigating circumstances exists, “the court shall
impose the sentence for a class A felony [life
imprisonment].” Conn. Gen. Stat. §53a-45(e).
The following “aggravating circumstances” are set
forth in Conn. Gen. Stat. § 53a-45(4)(g):
“(1) the defendant committed the offense
during the commission or attempted commission
of, or during the immediate flight from the
14a
commission or attempted commission of, a felony
and he had previously been convicted of the same
felony; or
(2) the defendant committed the offense after
having been convicted of two or more state
offenses or two or more federal offenses or of one
or more state offenses and one or more federal
offenses for each of which a penalty of more than
one year imprisonment may be imposed, which
offenses were committed on different occasions
and which involved the infliction of serious bodily
injury upon another person; or
(3) the defendant committed the offense and in
such commission knowingly created a grave risk of
death to another person in addition to the victim
of the offense; or
(4) the defendant committed the offense in an
especially heinous, cruel or depraved manner; or
(5) the defendant procured the commission of
the olfense by payment, or promise of payment,
of anything of pecuniary value; or
(6) the defendant committed the offense as
consideration for the receipt, or in expectation of
the receipt, of anything of pecuniary value.”
The following “mitigating circumstances” are set
forth in Conn. Gen. Stat. § 53a-45(4)(f):
“(1) [the defendant] . . . was under the age of
eighteen or
(2) [the defendant’s] . . . mental capacity was
significantly impaired or his ability to conform his
conduct to the requirements of law was signifi
cantly impaired but not so impaired in either case
as to constitute a defense to prosecution or
(3) [the defendant] . . . was under unusual and
substantial duress, although not such duress as to
constitute a defense to prosecution or
15a
(4) [the defendant] . . . wa s criminatlly liable
under sections 53a-8 and 53a-10 of the 1971
noncumulative supplement to the general statutes
and section 53a-9 of the 1969 supplement to the
general statutes for the offense, which was
committed by another, but his participation in
such offense was relatively minor, although not so
minor as to constitute a defense to prosecution or
(5) [the defendant] . . . could not reasonably
have foreseen that his conduct in the course of
commission of the offense of which he was
convicted would cause, or would create a grave
risk of causing death to another person.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on October 1, 1973.
DELAWARE
Delaware provides the death penalty for first degree
murder. H.B. No. 429, 127th General Assembly (March
29, 1974). “First degree” murder is defined by 11 Del.
Code §636 (1974) as a killing where a defendant:
“(1) . . . intentionally causes the death of another
person;
(2) in the course of and in furtherance of the
commission or attempted commission of a felony or
immediate flight therefrom . . . recklessly causes the
death of another person;
16a
(3) intentionally causes another person to commit
suicide by force or duress;
(4) . . . recklessly causes the death of a law
enforcement officer, Corrections employee or fire
man while such officer is in the lawful performance
of his duties;
(5) . . . causes the death of another person by the
use of or detonation of any bomb or similar destruc
tive device;
• (6) . . . with criminal negligence, causes the death
of another person in the course of and in furtherance
of the commission or attempted commission of rape,
kidnapping, arson in the first degree, robbery in the
first degree, or immediate flight therefrom;
(7) . . . causes the death of another person in
order to avoid or prevent the lawful arrest of any
person, or in the course of and in furtherance of the
commission or attempted commission of escape in
the second degree or escape after conviction.”
“In any case in which a person is convicted of first
degree murder the Court shall impose a sentence of
death.” 11 Del. Code §4209(1) (1974).
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on March 29, 1974.
FLORIDA
Florida provides the death penalty for some cases of
first degree murder, (Fla. Stat. Ann. § 782.04(1 )(a)
17a
(cum. supp. 1974)), and for some cases of rape
committed by a person seventeen years of age or older
upon a child under the age of eleven (Fla. Stat. Ann.
§794.01(1) (cum. supp. 1974)).
The punishment for both of these crimes is either
death or life imprisonment. Fla. Stat. Ann.
§775.082(1). The choice between these alternative
penalties is made ultimately by the trial judge after a
separate, post-conviction sentencing hearing (although
the sentencing proceeding may be conducted before
either a judge or jury at the defendant’s preference). If
a jury has been requested, it renders to the court an
advisory sentence as to
“(a) Whether sufficient aggravating circum
stances exist as enumerated in [921.141] sub
section (6) and
(b) Whether sufficient mitigating circumstances
exist as enumerated in [921.141] subsection (7)
which outweigh aggravating circumstances found to
exist, and
(c) Based on these considerations whether the
defendant should be sentenced to life or death.”
Fla. Stat. Ann. §921.141(2). However, “ [no tw ith
standing the recommendation of a majority of the
jury,” the trial judge has unfettered discretion to enter
a sentence of life imprisonment or death. If he imposes
a sentence of death, however, he must prepare a written
report setting forth his findings as to the existence or
non-existence of a number of specified aggravating and
mitigating circumstances. In choosing between the
alternative penalties of life and death, the court (like
the jury) must weigh the aggravating and mitigating
circumstances and determine which outweighs the
other. Fla. Stat. Ann. §921.141(3). The burden of
18a
establishing aggravating or mitigating circumstances is
not allocated.
“If the court does not make the findings requiring
the death sentence, the court shall impose sentence of
life imprisonment in accordance with section 775.082.”
Fla. Stat. Ann. §921.141(4). The statute provides for
automatic review of a judgment of conviction and
sentence of death in the Florida Supreme Court. Fla.
Stat. Ann. §921.141(5). See generally S ta te v. D ixo n ,
283 So.2d 1 (Fla. 1973).
The following “aggravating circumstances” are set
forth in Fla. Stat. Ann. §921.141(6):
“(a) The capital felony was committed by a
person under sentence of imprisonment;
(b) The defendant was previously convicted of
another capital felony or of a felony involving the
use or threat of violence to the person;
(c) The defendant knowingly created a great
risk of death to many persons;
(d) The capital felony was committed while the
defendant was engaged or was an accomplice in
the commission of, or an attempt to commit, or
flight after committing or attempting to commit
any robbery, rape, arson, burglary, kidnapping
aircraft piracy, or the unlawful throwing, placing
or discharging of a destructive device or bomb;
(e) The capital felony was committed for the
purpose of avoiding or preventing a lawful arrest
or effecting an escape from custody;
(f) The capital felony was committed for
pecuniary gain;
(g) The capital felony was committed to disrupt
or hinder the lawful exercise of any governmental
function or the enforcement of laws;
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(h) The capital felony was especially heinous,
atrocious or cruel.”
The following “mitigating circumstances” are set
forth in Fla. Stat. Ann. §921.141(7):
“(a) The defendant has no significant history of
prior criminal activity;
(b) The capital felony was committed while the
defendant was under the influence of extreme
mental or emotional disturbance;
(c) The victim was a participant in the
defendant’s conduct or consented to the act;
(d) The defendant was an accomplice in the
capital felony committed by another person and
his participation was relatively minor;
(e) The defendant acted under extreme duress
or under the substantial domination of another
person;
(f) The capacity of the defendant to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law was substan
tially impaired;
(g) The age of the defendant at the time of the
crime.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on December 8, 1972.
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GEORGIA
Georgia provides the death penalty for some cases of
aircraft hijacking, treason, murder, rape, armed robbery,
and kidnapping.
The punishment for these crimes is either death or
“imprisonment as provided by law.” Ga. Code
§26-3102 (supp. 1973). The choice between these
alternative penalties is made by the jury (or the trial
judge if the defendant waived a jury). In cases of
murder, rape, armed robbery or kidnapping, the choice
is made after a separate, post-conviction sentencing
hearing. In order to impose the death penalty for any
of these crimes, the judge or jury must specifically
designate (in writing) “the aggravating circumstance or
circumstances which it found beyond a reasonable
doubt.” Ga. Code § 27-2534.1(c) (supp. 1973). The
burden of establishing aggravating or mitigating circum
stances is not allocated. Ga. Code § 27-2534.1(a)
provides that a death sentence may be imposed “in any
case” for the offenses of aircraft hijacking or treason,
with no necessity for the trier of fact to make a
specific finding of an “aggravating circumstance.” See
also Ga. Code §26-3102. In such a case, the jury need
only make a written “recommendation” of death in
order to impose a death sentence. It is unclear from the
statute whether a bifurcated trial is to be used for the
trial of these crimes.
In any case where a death penalty is imposed, “the
sentence shall be reviewed on the record by the
Supreme Court of Georgia.” Ga. Code §27-2537(a).
With regard to sentence, the Court is to determine:
21a
“(1) Whether the sentence of death was im
posed under the influence of passion, prejudice, or
any other arbitrary factor, and
(2) Whether, in cases other than treason or
aircraft hijacking, the evidence supports the jury’s
or judge’s finding of a statutory aggravating
circumstance as enumerated in Code section
27-2534.1(b), and
(3) Whether the sentence of death is excessive
or disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant.”
Ga. Code § 27-2537(c). The Supreme Court “shall
include in its decision a reference to those similar cases
which it took into consideration. In addition to its
authority regarding correction of errors, the court, with
regard to review of death sentences, shall be authorized
to:
“(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case
for resentencing by the trial judge based on the
record and argument of counsel. The records of
those similar cases referred to by the Supreme
Court of Georgia in its decision, and the extracts
prepared hereinafter provided for, shall be pro
vided to the resentencing judge for his considera
tion.”
Ga. Code §27-2537(e).
The following “aggravating circumstances” are set
forth in Ga. Code § 27-2534.1(b):
“(1) The offense of murder, rape, armed
robbery, or kidnapping was committed by a person
with a prior record of conviction for a capital
felony, or the offense of murder was committed
by a person who has a substantial history of
serious assaultive criminal convictions.
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(2) The offense of murder, rape, armed rob
bery, or kidnapping was committed while the
offender was engaged in the commission of
another capital felony, or aggravated battery, or
the offense of murder was committed while the
offender was engaged in the commission of
burglary or arson in the first degree.
(3) The offender by his act of murder, armed
robbery, or kidnapping knowingly created a great
risk of death to more than one person in a public
place by means of a weapon or device which
would normally be hazardous to the lives of more
than one person.
(4) The offender committed the offense of
murder for himself or another, for the purpose of
receiving money or any other thing of monetary
value.
(5) The murder of a judicial officer, former
judicial officer, district attorney or solicitor during
or because of the exercise of his official duty.
(6) The offender caused or directed another to
commit murder or committed murder as an agent
or employee of another person.
(7) The offense of murder, rape, armed rob
bery, or kidnapping was outrageously or wantonly
vile, horrible or inhuman in that it involved
torture, deprativy of mind, or an aggravated
battery to the victim.
(8) The offense of murder was committed
against any peace officer, corrections employee or
fireman while engaged in the performance of his
official duties.
(9) The offense of murder was committed by a
person in, or who has escaped from, the lawful
custody of a peace officer or place of lawful
confinement.
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(10) The murder was committed for the
purpose of avoiding, interfering with, or preventing
a lawful arrest or custody in a place of lawful
confinement, of himself or another.”
No list of “mitigating circumstances” is provided in
the statute (Ga. Code §27-2531.1(b) states, however;
that “the judge shall consider, or he shall include in his
instructions to the jury for it to consider, any
mitigating circumstances . . . otherwise authorized by
law.. . .” )
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on March 28, 1973.
IDAHO
Idaho provides the death penalty for first degree
murder. Idaho Code § 18-4004 (supp. 1973). “First
degree murder” is defined by Idaho Code § 18-4003 as
“[a] 11 murder which is perpetrated by means of poison,
or lying in wait, torture, or by any other kind of wilful
deliberate and premeditated killing,” “ [a]ny murder of
any peace officer of this state or of any municipal
corporation or political subdivision thereof, when the
officer is acting in line of duty, and is known or should
be known by the perpetrator of the murder to be an
officer so acting,” and “ [a]ny murder committed by a
person under a sentence for murder of the first or
second degree.”
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No new capital procedure is established.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on March 27, 1973.
ILLINOIS
The punishment for first degree murder is either
death or life imprisonment. The choice between these
alternative penalties is made by a panel of three judges,
convened by the chief judge of the circuit, after a
separate, post-conviction sentencing hearing. 111. Rev.
Stat. ch. 38, §9-1 -(e) (1974). The panel must determine
if any of the special circumstances warranting the death
penalty exist. The burden of proving that the crime
falls within one of the statutory categories for which a
death sentence is authorized is on the State; and the
State must prove this “beyond a reasonable doubt.”
111. Rev. Stat. ch. 38, § 1005-8-1A (1974).
If a majority of the panel determines that any of the
special circumstances occurred, “then the court shall
sentence the defendant to death unless a majority of
the judges of such court determines that there are
compelling reasons for mercy and that the defendant
should not be sentenced to death.” 111. Rev. Stat. ch.
38, §1005-8-1A (1974). In cases where the death
sentence is imposed, a special two stage appeal is
provided:
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“In the first stage, the case shall be considered
as are all other criminal appeals and the court shall
determine whether there are errors occurring at the
trial of the case which require that the findings of
the trial court be reversed or modified. If the
appellate court, in the second stage of the appeal,
finds any evidence that the sentence of death was
the result of discrimination, the appellate court
shall modify the sentence to life imprisonment.
In determining whether there is evidence of
discrimination in sentencing the defendant to
death, the appellate court shall consider whether
the death sentence, considering both the crime and
the defendant was disproportionate or the result of
discrimination based on race, creed, sex or
economic status.”
111. Rev. Stat. ch. 38, 1005-8-1A (1974).
The following special circumstances are set forth in
111. Stat. ch. 38, 1005-8-1A (1974):
“(1) The murdered individual was a peace
officer or fireman killed in the course of
performing his official duties; or
(2) The murdered individual was an employee
of an institution or facility of the Department of
Corrections, or its successor agency, killed in the
course of performing his official duties, or was
otherwise present in such institution or facility
with the knowledge and approval of the chief
administrative officer thereof; or
(3) Such person has been convicted of murder
ing two or more individuals under Section 9-1 of
the Criminal Code of 1961, as amended, or under
any law of the United States or of any State
which is substantially identical to Subsection (a) of
Section 9-1 of the Criminal Code of 1961, as
amended, regardless of whether the deaths oc
curred as the result of the same act or of several
related or unrelated acts; or
26a
(4) The murdered individual was killed as a
result of the hijacking of an airplane, train, ship,
bus or other public conveyance; or
(5) The person committed the murder pursuant
to a contract, agreement or understanding by
which he was to receive money or anything of
value in return for committing the murder; or
(6) The murdered individual was killed in the
course of a robbery, rape, aggravated kidnapping,
arson or when death occurs following the
commission of indecent liberties with a child by a
party to the crime.”
No list of “mitigating circumstances” (the “compel
ling reasons for mercy” [111. Rev. Stat. ch. 38,
§ 1005-8-1A (1974)]) is provided in the statute.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases although plea bargaining is regulated in other ways
by 111. Rev. Stat. ch. 110A §402 (1971). The
Governor’s clemency power in capital cases is left
unaltered.
This statute became effective on July 1, 1974.
INDIANA
Indiana provides the death penalty for some cases of
first degree murder.
The punishment for first degree murder is either
death or life imprisonment. Ind. Ann. Stat. § 10-3401
(a) (supp. 1973). No new capital trial procedure is
established. The penalty for first degree murder is life
2 7 a
imprisonment unless one of the circumstances enu
merated in Ind. Ann. Stat. § 10-3041 (b) (supp. 1973) is
found to exist.
The following special circumstances are set forth in
Ind. Ann. Stat. § 10-3401(b) (supp. 1973):
“(1) Killing purposely and with premediated
malice a police officer, corrections employee or
fireman acting in line of duty.
(2) Killing a human being by the unlawful and
malicious detonation of an explosive.
(3) Killing a human being while perpetrating or
attempting to perpetrate rape, arson, robbery, or
burglary by a person who has had a prior
unrelated conviction of rape, arson, robbery, or
burglary.
(4) Killing a human being while perpetrating or
attempting to perpetrate a kidnapping.
(5) Killing a human being while perpetrating or
attempting to perpetrate any seizure or exercise of
control, by force or violence or threat of force or
violence and with wrongful intent, of an aircraft,
train, bus, ship, or other commercial vehicle.
(6) Killing a human being purposely and with
premeditated malice:
(i) by a person lying in wait;
(ii) by a person hired to kill;
(iii) by a person who has previously been
convicted of murder; or
(iv) by a person who is serving a life sentence.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. While
the statute provides that an indictment under
§10-3041(b) may not charge a lesser included offense,
28a
it explicitly provides that “in all situations to which
this subsection applies, the jury, or the trial judge if
there be no jury, may find the defendant guilty of
second degree murder or voluntary or involuntary
manslaughter.” Ind. Ann. Stat. § 10-3401(b). Plea
bargains to lesser included offenses are not prohibited
in capital cases; and the Governor’s clemency power in
capital cases is left unaltered.
This statute became effective on April 24, 1973.
KENTUCKY
Kentucky provides the death penalty for kidnapping
where the defendant does not “voluntarily release the
victim alive, substantially unharmed, and in a safe place
prior to trial” (Sec. 76(2) of the new Kentucky criminal
code [H.B. No. 232, Reg. Sess. 1974, amending Ky. Rev.
Stat. c. 507]), and for some cases of murder [Sec. 61(2)
of the new Kentucky criminal code (H.B. No. 232, Reg.
Sess. 1974, amending Ky. Rev. Stat. c. 507)].
Kidnapping is defined by §76(1) as the unlawful restraint
of another person with intent:
“(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commis
sion of a felony; or
(c) To inflict bodily injury or to terrorize the
victim or another; or
(d) To interfere with the performance of a
governmental or political function; or
(e) To use him as a shield or hostage.”
2 9 a
The punishment for murder is either death or
imprisonment for twenty years to life. The punishment
is life unless one of the following circumstances exists:
“(a) The defendant’s act of killing was inten
tional and was for profit or hire;
(b) The defendant’s act of killing was inten
tional, and occurred during the commission of
arson in the first degree, robbery in the first
degree, burglary in the first degree, or rape in the
first degree;
(c) The defendant’s act of killing was inten
tional and the defendant was a prisoner and the
victim was a prison employee engaged at the time
of the act in the performance of his duties;
(d) The defendant’s act of killing was inten
tional and the death was caused through use of a
destructive device, as defined in KRS 237.030(1);
or
(e) The defendant’s act or acts of killing were
intentional and resulted in multiple deaths.
(f) The defendant’s act of killing was inten
tional and the victim was a police officer, sheriff
or deputy sheriff engaged at the time of the act in
the lawful performance of his duties.”
Sec. 61(a) of the new Kentucky criminal code (H.B.
No. 232, Reg. Sess. 1974, amending Ky. Rev. Stat.
c. 507).
No new capital procedure is established. “When a
person is convicted of a capital offense he shall have his
punishment fixed at death. However, any crime
classified as a capital offense may at the discretion of
the state be prosecuted as a Class A felony, provided
such election to so prosecute is made at the time of
indictment.” Sec. 275(1) of the new Kentucky criminal
3 0 a
code (H.V. No. 232, Reg. Sess. 1974, amending Ky.
Rev. Stat. Chap. 507).
No other standards are provided to govern prosecu
torial discretion in seeking and filing capital charges.
Convictions of lesser included offenses and negotiated
pleas to lesser included offenses are not prohibited in
capital cases. The Governor’s clemency power in capital
cases is left unaltered.
This statute becomes effective on January 1, 1975.
LOUISIANA
Louisiana provides the death penalty for first deree
murder (La. Rev. Stat. Ann. § 14:30 (supp. 1974)), for
“aggravated rape” (La. Rev. Stat. Ann. § 14:42), for
treason (La. Rev. Stat. Ann. §14:113), and for
“aggravated kidnapping” (La. Rev. Stat. Ann. §14:44).
“First degree” murder is defined by La. Rev. Stat. Ann.
§ 14:30 (Supp. 1974) as “the killing of a human being:
“(1) When the offender has a specific intent to
kill or to inflict great bodily harm and is engaged
in the perpetration or attempted perpetration of
aggravated kidnapping, aggravated rape or armed
robbery; or
(2) When the offender has a specific intent to
kill, or to inflict great bodily harm upon, a
fireman or a peace officer who was engaged in the
performance of his lawful duties; or
(3) Where the offender has a specific intent to
kill or to inflict great bodily harm and has
previously been convicted of an unrelated murder
or is serving a life sentence; or
3 1 a
(4) When the offender has a specific intent to
kill or to inflict great bodily harm upon more than
one person,
(5) When the offender has specific intent to
commit murder and has been offered or has
received anything of value for committing the
murder.”
“Aggravated rape” is defined by La. Rev. Stat. Ann.
§ 14:22 as:
“a rape committed where the sexual intercourse is
deemed to be without the lawful consent of the
female because it is committed under any one or
more of the following circumstances:
(1) Where the female resists the act to the
utmost, but her resistance is overcome by force.
(2) Where she is prevented from resisting the
act by threats of great and immediate bodily harm,
accompanied by apparent power of execution.
(3) Where she is under the age of twelve
years. . . . ”
“Treason” is defined by La. Rev. Stat. Ann. §14:113
“the levying of war against the United States or
the State of Louisiana, adhering to enemies of the
United States or the State of Louisiana, or giving
such aid and comfort.”
“Aggravated kidnapping” is defined by La. Rev. Stat.
Ann. § 14:44 as:
“the doing of any of the following acts with the
intent thereby to force the victim, or some other
person, to give up anything of apparent present or
prospective value, or to grant any advantage or
immunity, in order to secure a release of the
person under the offender’s actual or apparent
control:
3 2 a
(1) The forcible seizing and carrying of any
person from one place to another; or
(2) The enticing or persuading of any person to
go from one place to another; or
(3) The imprisoning or forcible secreting of any
person.”
This section also provides that if the kidnap victim is
liberated unharmed before sentence is imposed, the
death sentence may not be imposed.
Article 817 of the Louisiana Code of Criminal
Procedure provides that in a capital case, a jury may
not make “ [a]ny qualification. . . or addition to a
verdict of guilty beyond a specification of the offense
as to which the verdict is found.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Article
598 of the Louisiana Code of Criminal Procedure
permits conviction of lesser included offenses in a
capital case; and Article 814 specifies the “responsive
verdicts” which may be returned in any capital case: in
first degree murder cases-guilty, guilty of second
degree murder, guilty of manslaughter, not guilty (Art.
814(A)(1)); in aggravated rape cases-guilty, guilty of
attempted aggravated rape, guilty of simple rape, not
guilty (Art. 814(A)(8)); in aggravated kidnapping
cases-guilty, guilty of simple kidnapping, not guilty
(Art. 814(A)( 15)). No “responsive verdicts” are speci
fied for treason cases. While Article 557 prohibits guilty
pleas to capital charges, negotiated pleas to lesser
included offenses are not prohibited in capital cases.
The Governor’s clemency power in capital cases is left
unaltered.
These statutes were or became effective on July 2,
1973.
MISSISSIPPI
3 3 a
Mississippi provides the death penalty for unlawful
carnal knowledge of a female under the age of 12 by a
person of the age of 18 or older (Miss. Code §97-3-65,
as amended by S.B. No. 2341, Reg. Sess. 1974, §8), for
aircraft piracy (defined as “the seizure or exercise of
control, by force or violence or threat of force or
violence, of any aircraft within the airspace jurisdiction
of the State . . .” [S.B. No. 2341, Reg. Sess. 1974 §2],
and for “capital murder” (Miss. Code §97-3-21, as
amended by S.B. No. 2341, Reg. Sess. 1974, §7).
“Capital murder” is defined by Miss. Code §97-3-19(2),
as amended by S.B. No. 2341, Reg. Sess. 1974, §6, as
“the killing of a human being without the authority of
law . . . in the following cases:
(a) murder which is perpetrated by killing a
peace officer [as defined] or fireman while such
officer or fireman is acting in his official capacity
or by reason of an act performed in his official
capacity, and with knowledge that the victim was
a peace officer or fireman . . . ;
(b) murder which is perpetrated by a person
who is under sentence of life imprisonment;
(c) murder which is perpetrated by use or
detonation of a bomb or explosive device;
(d) murder which is perpetrated by any person
who has been offered or has received anything of
value for committing the murder, and all parties to
such a murder, are guilty as principals;
(e) when done with or without any design to
effect death, by any person engaged in the
commission of the crime of rape, burglary,
kidnapping, arson or robbery, or in any attempt to
commit such felonies;
3 4 a
(f) murder which is perpetrated by the killing
of any elected official of a county, municipal,
state or federal government with knowledge that
the victim was such public official.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. A capital
charge must be alleged by citation of the relevant
statutory section in the indictment; and, when a capital
charge is so alleged, the judge “shall grant no
instruction for the state or the defendant which
instructs the jury as to their discretion to convict the
accused of the commission of an offense not
specifically set forth in the indictment.” (Miss. Code
§97-3-19(3), as amended by S.B. No. 2341, Reg. Sess.
1974, §6.) Negotiated pleas to lesser included offenses
are not prohibited in capital cases. The Governor’s
clemency power in capital cases is left unaltered.
This statute became effective on April 23, 1974.
MONTANA
Montana provides the death penalty for some cases
of “aggravated kidnapping” (those in which “the victim
is dead as a result of the criminal conduct”) [Mont. Rev.
Codes Ann. §94-5-304, as amended, c. 126, 43rd
Legislative Assembly (March 13, 1974)], and for some
cases of “deliberate homicide” (Mont. Rev. Codes Ann.
§94-5-102(2)). “Deliberate homicide” is defined by
Mont. Rev. Codes Ann. §94-5-102(1) as a criminal
homicide which
“(a) . . . is committed purposely or knowingly; or
(b) . . . is committed while the offender is
35a
engaged in or is an accomplice in the commission
of, or' an attempt to commit, or flight after
committing or attempting to commit robbery,
sexual intercourse without consent, arson, bur
glary, kidnaping, felonious escape or any other
felony which involves the use or threat of physical
force or violence against any individual.”
Montana Revised Codes Annotated §94-5-103 provides
that what would otherwise be “deliberate homicide” is
“mitigated deliberate homicide,” punishable by up to
forty years imprisonment, “when a homicide which
would otherwise be deliberate homicide is committed
under the influence of extreme mental or emotional
stress for which there is reasonable explanation or excuse.
The reasonableness of such explanation or excuse shall be
determined from the viewpoint of a reasonable person in
the actor’s situation.”
The punishment for a “deliberate homicide” is either
death or “imprisonment in the state prison for any
term not to exceed one hundred (100) years.” Mont.
Rev. Codes Ann. §94-5-102(2). The death sentence is to
be imposed by the court if the “deliberate homicide”
involves one of the circumstances enumerated in Mont.
Rev. Codes Ann. §94-5-105(1). No procedure is set forth
for finding these circumstances, and the burden of
establishing them is not allocated. Mont. Rev. Codes Ann.
§94-5-105(1) (Spec. Crim. Code Supp. 1973), as
amended, c. 262, 43rd Legislative Assembly (March 21,
1974) provides that “ [W]hen a defendant is convicted of
the offense of deliberate homicide the court shall impose
a sentence of death in the following circumstances, unless
there are mitigating circumstances:
3 6 a
(a) The deliberate homicide was committed by
a person serving a sentence of imprisonment in the
state prison; or
(b) The defendant was previously convicted of
another deliberate homicide; or
(c) The deliberate homicide was committed by
means of torture; or
(d) The deliberate homicide was committed by
a person lying in wait or ambush; or
(e) The deliberate homicide was committed as a
part of a scheme or operation which, if completed,
would result in the death of more than one
person.”
“Mitigating circumstances” are not defined by
statute.
Mont. Rev. Codes Ann. §94-5-105(2) (Spec. Crim.
Code Supp. 1973), as amended, c. 262 43rd
Legislative Assembly (March 21, 1974), provides that
“ [n]ot withstanding the provisions of subsection (1)
and regardless of circumstances, when a defendant is
convicted of the offense of deliberate homicide under
subsection (l)(a) of section 94-5-102 in which the
victim was a peace officer killed while performing his
duty the court shall impose a sentence of death.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on January 1, 1974,
with amendments effective on March 11, 1974, and
July 1, 1974.
37a
NEBRASKA
Nebraska provides the death penalty for some cases
of first degree murder.
The punishment for first degree murder is either
death or life imprisonment. The choice between these
alternative penalties is made by a judge or panel of
judges after a separate, post-conviction sentencing
hearing. Neb. Rev. Stat. §29-2522 (supp. 1973). The
judge or judges must return a special verdict setting
forth his or their findings as to the existence or
non-existence of a number of specified aggravating and
mitigating circumstances. Neb. Rev. Stat. §29-2522(2)
(supp. 1973). The burden of establishing aggravating or
mitigating circumstances is not allocated. In determining
whether to impose a life or death sentence, the judge or
judges must consider:
(1) Whether sufficient aggravating circumstances
exist to justify imposition of a sentence of death;
or
(2) Whether sufficient litigating circumstances
exist which approach or exceed the weight given
to the aggravating circumstances.
Automatic review of death sentences in the Nebraska
Supreme Court is provided by Neb. Rev. Stat.
§29-2524, and this section also authorizes that Court
to reduce death sentences to sentences of life
imprisonment.
The following “aggravating circumstances” are set
forth in Neb. Rev. Stat. §29-2523(1):
“(a) The offender was previously convicted of
another murder or a crime involving the use or
threat of violence to the person, or has a
38a
substantial history of serious assaultive or terroriz
ing criminal activity;
(b) The murder was committed in an apparent
effort to conceal the identity of the perpetrator of
a crime;
(c) The murder was committed for hire, or for
pecuniary gain, or the defendant hired another to
commit the murder for the defendant;
(d) The murder was especially heinous, atro
cious, cruel, or manifested exceptional depravity
by ordinary standards of morality and intelligence;
(e) At the time the murder was committed, the
offender also committed another murder;
(f) The offender knowingly created a great risk
of death to at least several persons;
(g) The victim was a law enforcement officer or
a public servant having custody of the offender of
another; or
(h) The crime was committed to disrupt or
hinder the lawful exercise of any governmental
function or the enforcement of the laws.”
The following ‘‘mitigating circumstances” are set
forth in Neb. Rev. Stat. §29-2523(2):
(a) The offender has no significant history of
prior criminal activity;
(b) The offender acted under unusual pressures
or influences or under the domination of another
person;
(c) The crime was committed while the of
fender was under the influence of extreme mental
or emotional disturbance;
(d) The age of the defendant at the time of the
crime;
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(e) The offender was an accomplice in the
crime committed by another person and his
participation was relatively minor;
(f) The victim was a participant in the de
fendant’s conduct or consented to the act; or
(g) At the time of the crime, the capacity of
the defendant to appreciate the wrongfulness of
his conduct or to conform his conduct to the
requirements of law was impaired as a result of
mental illness, mental defect, or intoxication.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on April 20, 1973.
NEVADA
Nevada provides the death penalty for ‘‘capital
murder” , Nev. Rev. Stat. §200-030(5) (1973). “Capital
murder” is defined by Nev. Rev. Stat. §200-030(1) as
“murder” which is perpetrated by:
“(a) Killing a peace officer or fireman:
(1) While such officer or fireman is acting in
his official capacity or by reason of an act
performed in his official capacity; and
(2) With knowledge that the victim is or was
a peace officer or fireman.
(b) A person who is under sentence of life
imprisonment without possibility of parole;
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(c) Executing a contract to kill. For purposes of
this paragraph ‘contract to kill’ means an agree
ment, with or without consideration, whereby one
or more of the parties to the agreement commits
murder. All parties to a contract to kill are guilty
as principals;
(d) Use or detonation of a bomb or explosive
device;
(e) Killing more than one person as the result
of a common plan, scheme or design.”
First Degree murder, punished by life imprisonment,
is “Murder which is:
(a) Perpetrated by means of poison, or lying in
wait, torture, or by any other kind of willful,
deliberate and premediated killing;
(b) Committed in the penetration or attempted
perpetration or rape, kidnapping, arson, robbery,
burglary or sexual molestation of a child under the
age of 14 years; or
(c) Committed to avoid or prevent the lawful
arrest of any person by a peace officer or to effect
the escape of any person from legal custody.”
Nev. Rev. Stat. § 200-030(2). Murder of the second
degree, punishable by not less than five years
imprisonment, is all other kinds of murder. Nev. Rev.
Stat. §200-030(3).
“The jury before whom any person indicted for
murder is tried shall, if they find such person guilty
thereof, designate by their verdict whether such person
is guilty of capital murder or murder of the first or
second degree.” Nev. Rev. Stat. §200-030(4) (1973).
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
41a
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on July 1, 1973.
NEW HAMPSHIRE
New Hampshire provides the death penalty tor
“capital murder.” N.H. c. 34, 1974 General Court
Spec. Sess. (April 3, 1974) amending N.H. Rev. Stat.
Ann., §630:1 (I). “Capital murder” is defined by
c. 34, 1974 General Court Spec. Sess. (April 3, 1974)
amending N.H. Rev. Stat. Ann., §630, as “knowingly
causing the death of:
(a) A law enforcement officer [as defined]
acting in the line of duty;
(b) Another before, after, while engaged in the
commission of, or while attempting to commit
kidnapping as that offense is defined in RSA
633:1;
(c) Another by criminally soliciting a person to
cause said death or after having been criminally
solicited by another for his personal pecuniary
gain.”
No new capital procedure is provided.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on April 15, 1974.
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NEW MEXICO
New Mexico provides the death penalty for “first
degree” murder. N.M. Stat. Ann. §§40A-2-l, 40A-20-2
(supp. 1973). “First degree” murder is defined by N.M.
Stat. Ann. §40A-2-l as any murder perpetrated:
“(1) by any kind of willful, deliberate and
premediated killing;
' (2) by means of poison, lying in wait or
torture;
(3) in the commission of or attempt to commit
any felony;
(4) by any act greatly dangerous to the lives of
others, indicating a depraved mind regardless of
human life; or
(5) from a deliberate and premediated design
unlawfully and maliciously to effect the death of
any human being.
Second degree murder “consists of all other murder,”
N.M. Stat. Ann. §40A-2-l(B) committed with “malice”
but without “premeditation” or “deliberation” . Torres v.
State, 39 N. Mex. 191, 43 P.2d 929, 930-931 (1935).
Manslaughter is defined as “the unlawful killing of a
human being without malice.” N.M. Stat. Ann.,
§ 40A-2-3.
“When a defendant has been convicted of a capital
felony, the judge shall sentence that person to death.”
N.M. Stat. Ann., § 40A-29-2 (supp. 1973). However,
New Mexico utilizes an “open” indictment for murder
(N.M. R. Crim. Proc. 5(d) (N.M. Stat. Ann.,
§41 -23-5(d)), and N.M. R. Crim. Proc. 8 (N.M. Stat.
Ann., §41-23-8)), and the jury determines the degree of
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the homicide, see S ta te v. Burrus, 38 N. Mex. 293 462,
35 P.2d 285, 289-290 (1934); Sta te v. Bentford, 39
N. Mex. 293, 46 P.2d 658 (1935); Sta te v. Wickman, 29
N.M. 198, 43 P.2d 933 (1935); Sta te v. H orton, 59
N.M. 257, 258 P.2d 371 (1953). The jury must
ordinarily decide in a homicide case whether a
defendant is guilty of first degree murder, second
degree murder, or manslaughter.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on March 20, 1973.
NEW YORK
New York provides the death penalty for “murder in
the first degree.” “First degree” murder is defined by
Penal Law § 125.27, added by § 5 of S. 21028 (Cal. No.
1548) (Ass. B. 11474-A), N.Y. Laws 1974, as a crime
in which a person, who is over eighteen years old,
“ [w]ith intent to cause the death of another
person . . . causes the death of such person; and
[e] ither:
(i) the victim was a police officer . . . [as
defined] who was killed in the course of
performing his official duties, and the
defendant knew or reasonably should have
known, that the victim was a police officer;
or
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(ii) the victim was an employee of a state
correctional institution or was an employee
of a local correctional facility . . . [as de
fined] who was killed in the course of
performing his official duties, and the
defendant knew or reasonably should have
known that the victim was an employee of
a state correctional institutional or a local
correctional facility; or
. (iii) at the time of the commission of the
crime, the defendant was confined in a
state correctional institution, or was other
wise in custody upon a sentence for the
term of his natural life, or upon a sentence
commuted to one of natural life, or upon a
sentence for an indeterminate term the
maximum of which was natural life, or at
the time of the commission of the crime,
the defendant had escaped from such
confinement or custody and had not yet
been returned to such confinement or
custody.”
“When a person is convicted of murder in the first
degree as defined in section 125.27, the court shall
sentence the defendant to death.” Penal Law § 60.06
(added by S. 21028 (Cal. No. 1548) (Ass. B 11474-A),
N.Y. Laws 1974). However, Penal Law § 125.27(2)
provides that for any prosecution for murder in the
first degree, “it is an affirmative defense that:
“(a) The defendant acted under the influence of
extreme emotional disturbance for which there was
a reasonable explanation or excuse, the reasonable
ness of which is to be determined from the
viewpoint of a person in the defendant’s situation
under the circumstances as the defendant believed
them to be. Nothing contained in this paragraph
4 5 a
shall constitute a defense to a prosecution for, or
preclude a conviction of, manslaughter in the first
degree or any other crime except murder in the
second degree; or
(b) The defendant’s conduct consisted of caus
ing or aiding, without the use of duress or
deception, another person to commit suicide.
Nothing contained in this paragraph shall consti
tute a defense to a prosecution for, or preclude
the conviction of, manslaughter in the second
degree or any other crime except murder in the
second degree.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. While a
defendant is not allowed to enter a plea of guilty to
murder in the first degree (Penal Law §§220.10(6), as
amended by § 10 of S. 21028 (Cal. No. 1548) (Ass. B.
11474-A), N.Y. Laws 1974), convictions of lesser
included offenses and negotiated pleas to lesser included
offenses are not prohibited in capital cases. The
Governor’s clemency power in capital cases is left
unaltered.
This statute became effective on September 1, 1974.
NORTH CAROLINA
North Carolina provides the death penalty for
“first degree” murder (§1, c. 1201, S.B. 157, 1973
Session (2d Session, 1974)) amending N.C. Gen. Stat.
§14-17 (repl. vol. 1969), and for “first degree” rape (§2,
c. 1201, S.B. 157, 1973 Session (2d Session 1974))
amending N.C. Gen. Stat. §1421 (repl. vol. 196). First
4 6 a
degree” murder is defined by § 1, c. 1201, S.B. 157, 1973
Session (2d Session, 1974) as “ [a] murder which shall be
perpetrated by means of poison, lying in wait,
imprisonment, starving, torture, or by any other kind of
willful, deliberate and premeditated killing, or which shall
be committed in the perpetration or attempt to
perpetrate any arson, rape, robbery, kidnapping, burglary7
or other felony.” “First degree” rape is defined by §2,
Chap. 1201, S.B. 157, 1973 Session (2d Session 1974) as
a rape by a person more than sixteen years old upon “a
virtuous female child under the age of twelve years” or as
a rape in which “the rape victim [regardless of age] had
her submission procured by the use of a deadly weapon,
or by the infliction of serious bodily injury to her.”
No new capital procedure is provided.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on April 8, 1974.
OHIO
Ohio provides the death penalty for some cases of
“aggravated murder.”
The punishment for aggravated murder is either
death or life imprisonment. Ohio Rev. Code Ann.
§ 2929.02(A) (Page Spec. Supp. 1973). The choice
between these alternative penalties is made by the trial
4 7 a
judge (or by a three judge panel if the defendant
waived a jury trial and was tried by a three judge panel)
after a separate, post-conviction sentencing hearing.
Ohio Rev. Code Ann. § 2929.03(C) (Page Spec. Supp.
1973). If the jury finds a defendant guilty of murder
and if the indictment contained an allegation of an
“aggravating circumstance” , then the trial judge (or the
three judge panel where the defendant has waived a
jury trial) is to pronounce a death sentence unless he
determines that one of the enumerated mitigating
circumstances exist. The burden of establishing aggravat
ing circumstances rests on the State, and their existence
must be established at trial “beyond a reasonable
doubt.” Ohio Rev. Code Ann. §2929.04(A) (Page Spec.
Supp. 1973). Despite the proof beyond a reasonable
doubt of one of the aggravating circumstances, the death
penalty is precluded if one or more of the enumerated
mitigating circumstances is established by “a preponder
ance of the evidence.” Ohio Rev. Code Ann.
§2929.04(B) (Page Spec. Supp. 1973).
The following “aggravating circumstances” are set
forth in Ohio Rev. Code Ann. §2929.04(A)( Page Spec.
Supp. 1973):
“(1) The offense was the assassination of the
president of the United States or person in line of
succession to the presidency, or of the governor or
lieutenant governor of this state, or of the
president-elect or vice president-elect of the United
States, or the governor-elect or lieutenant gover
nor-elect of this state, or of a candidate for any of
the foregoing offices. For purposes of this division,
a person is a candidate if he has been nominated
for election according to law, or if he has filed a
petition or petitions according to law to have his
name placed on the ballot in a primary or general
election, or if he campaigns as a write-in candidate
in a primary or general election.
4 8 a
(2) The offense was committed for hire.
(3) The offense was committed for the purpose
of escaping detention, apprehension, trial, or
punishment for another offense committed by the
offender.
(4) The offense was committed while the
offender was a prisoner in a detention facility as
defined in section 2921.01 of the Revised Code.
(5) The offender has previously been convicted
of an offense of which the gist was the purposeful
killing of or attempt to kill another, committed
prior to the offense at bar, or the offense at bar
was part of a course of conduct involving the
purposeful killing of or attempt to kill two or
more persons by the offender.
(6) The victim of the offense was a law
enforcement officer whom the offender knew to
be such, and either the victim was engaged in his
duties at the time of the offense, or it was the
offender’s specific purpose to kill a law enforce
ment officer.
(7) The offense was committed while the
offender was committing, attempting to commit,
or fleeing immediately after committing or at
tempting to commit kidnapping, rape, aggravated
arson, aggravating robbery, or aggravated bur
glary.”
The following “mitigating circumstances” are set
forth in Ohio Rev. Code Ann. § 2929.04(B) (Page Spec.
Supp. 1973):
“(1) The victim of the offense induced or
facilitated it.
(2) It is unlikely that the offense would have
been committed, but for the fact that the offender
was under duress, coercion, or strong provocation.
(3) The offense was primarily the product of
the offender’s psychosis or mental deficiency,
4 9 a
though such condition is insufficient to establish
the defense of insanity.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas of
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on December 22, 1972.
OKLAHOMA
Oklahoma provides the death penalty for first degree
murder. Okla. Stat. tit. 21, §701.3. “First degree”
murder is defined by Okla. Stat. tit. 21, §701.1, as
“ [hjomicide, when perpetrated without authority of
law and with a premeditated design to effect the death
of the person killed, or of any other human being, . . .”
in the following cases:
“ 1. When perpetrated against any peace officer,
prosecuting attorney, corrections employee or
fireman while engaged in the performance of his
official duties;
2. When perpetrated by one committing or
attempting to commit rape, kidnapping for the
purpose of extortion, arson in the first degree,
armed robbery or when death occurs following the
sexual molestation of a child under the age of
sixteen (16) years;
3. When perpetrated against any witness sub
poenaed to testify at any preliminary hearing, trial
or grand jury proceeding against the defendant
who kills or procures the killing of the witness, or
5 0 a
when perpetrated against any human being while
intending to kill such witness;
4. When perpetrated against the President or
Vice President of the United States of America,
any official in the line of succession to the
Presidency of the United States of America, the
Governor or Lieutenant Governor of this state, a
judge of any appellate court or court of record of
this state, or any person actively engaged in a
campaign for the office of the Presidency or Vice
Presidency of the United States of America;
5. When perpetrated by any person engaged in
the pirating of an aircraft, train, bus or other
commercial vehicle for hire which regularly
transports passengers;
6. When perpetrated by a person who effects
the death of a human being in exchange for
money or any other thing of value, or by the
person procuring the killing;
7. Murder by a person under a sentence of life
imprisonment in the penitentiary;
8. When perpetrated against two or more
persons arising out of the same transaction or
occurrence or series of events closely related in
time and location;
9. When perpetrated against a child while in
violation of Section 843, Title 21 of the Oklahoma
Statutes; and
10. Intentional murder by the unlawful and
malicious use of a bomb or of any similar
explosive.”
In a jury trial, “the jury shall determine only
whether the defendant is guilty or not guilty of murder
m the first degree and upon a finding of guilt shall so
indicate on their verdict and state affirmatively in their
51a
verdict that the defendant shall suffer death.” Okla.
Stat. tit. 21, §701.3. In a bench trial or after a guilty
plea, the judge determines whether the defendant is
guilty of first degree murder and, if so, “shall enter a
judgment and sentence of death.” Ibid.
When reviewing a death sentence, the Court of
Criminal Appeals (if “there are no errors of law in the
record requiring a reversal or modification”) must
conduct
“an evidentiary hearing, the purpose of which will
be to determine if the sentence of death comports
with the principles of due process and equal
protection of the law. Upon the hearing the Court
shall determine whether the sentence of death was
a result of discrimination based on race, creed,
economic condition, social position, class or sex of
the defendant or any other arbitrary fact; and the
Court shall specifically determine whether the
sentence of death is substantially disproportionate
to the penalty imposed in similar cases, considering
both the crime and the defendant.”
Okla. Stat. tit. 21, §701.5. If the Court determines
“that the sentence of death is discriminatory or is
substantially disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant, [ it] . . .shall modify the sentence of death to
life in the penitentiary at hard labor.” Okla. Stat. tit.
21, §701.6.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. “In a
jury trial, nothing in [the] . . . section [punishing first
degree murder with death and providing that the jury
shall determine only whether the defendant is guilty or
not guilty of first degree murder] shall preclude the
5 2 a
trial judge from instructing the jury regarding lesser and
included offenses and lesser degrees of homicide if the
evidence warrants such instructions; but in every
instance where an instruction authorizes the jury to
consider lesser and included offenses and lesser degrees
of homicide, the judge shall state into the record his
reasons for giving the instruction based upon the
evidence adduced at trial,” Okla. Stat. tit. 21, §701.3.
Negotiated pleas to lesser included offenses are not
prohibited in capital cases. The Governor’s clemency
power in capital cases is left unaltered.
This statute became effective on May 17, 1973.
PENNSYLVANIA
Pennsylvania provides the death penalty for some
cases of first degree murder.
The punishment for first degree murder is either
death or life imprisonment. Pa. Act No. 46, 158th
General Assembly (March 26, 1974) enacting tit. 18,
c. 13, §1311(d). The choice between these alternative
penalties is made by the jury after a separate,
post-conviction sentencing hearing. The jury must
return its verdict based on its findings as to the
existence or non-existence of specified aggravating and
mitigating circumstances. The burden of establishing
aggravating circumstances rests on the State, and their
existence must be established beyond a reasonable
doubt. Mitigating circumstances must be proved by a
preponderance of the evidence. Pa. Act No. 46, 158th
General Assembly (March 2w, 1974) enacting tit. 18, c.
13, §1311(c)).
53a
In determining whether to impose a life or death
sentence, agreement by the jury upon aggravating or
mitigating circumstances must be unanimous, and if the
jury is unable to agree, the court is directed to impose
a sentence of life imprisonment. If the jury finds at
least one aggravating circumstance and no mitigating
circumstances, the court is to impose a death sentence.
Id ., enacting tit. 18, c. 13 §1311(d). If the jury finds
at least one mitigating circumstance or if it finds no
aggravating or mitigating circumstances, a sentence of
life imprisonment is to be imposed. Id . , enacting tit.
18, c. 13, §1311(d). Automatic review of death
sentences in the Pennsylvania Supreme Court is
provided. Id ., enacting tit. 18, c. 13, § 1311(g).
The following “aggravating circumstances” are set
forth in Pa. Act. No. 46, 158th General Assembly
(March 26, 1974) enacting tit. 18, c, 13, §1311(d)(1):
“(i) The victim was a fireman, peace officer or
public servant concerned in official deten
tion as defined in section 5121 of this title
(relating to escape), who was killed in the
performance of his duties.
(ii) The defendant paid or was paid by
another person or had contracted to pay
or be paid by another person or had
conspired to pay or be paid by another
person for the killing of the victim.
(iii) The victim was being held by the
defendant for ransom or reward, or as a
shield or hostage.
(iv) The death of the victim occurred while
defendant was engaged in the hijacking of
an aircraft.
5 4 a
(v) The victim was a witness to a murder or
other felony committed by the defendant
and was killed for the purpose of
preventing his testimony against the de
fendant in any grand jury or criminal
proceeding involving such offenses.
(vi) The defendant committed a killing while
in the perpetration of a felony.
(vii) In the commission of the offense the
defendant knowingly created a grave risk
of death to another person in addition to
the victim of the offense.
(viii) The offense was committed by means of
torture.
(ix) The defendant has been convicted of
another Federal or State offense, com
mitted either before or at the time of the
offense at issue, for which a sentence of
life imprisonment or death was imposable
or the defendant was undergoing a sen
tence of life imprisonment for any reason
at the time of the commission of the
offense.”
The following “mitigating circumstances” are set
forth in Pa. Act. No. 46, 158th General Assembly
(March 26, 1974) enacting tit. 18, c. 13, §1311(d)(2):
“(i) The age, lack of maturity, or youth of the
defendant at the time of the killing.
(ii) The victim was a participant in or
consented to the defendant’s conduct as set
forth in section 1311(d) of this title or was
a participant in or consented to the killing.
(iii) The defendant was under duress although
not such duress as to constitute a defense
to prosecution. . . .”
5 5 a
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on March 26, 1974.
RHODE ISLAND
Rhode Island provides the death penalty for
murder committed by a prison inmate. Rhode Island
General Laws Annotated § 11-23-2 (Supp. 1973) provides
that “ [e]very person who shall commit murder while
committed to confinement to the adult correctional
institutions or the state reformatory for women shall be
punished by death. The punishment of death shall be
inflicted by the administration of a lethal gas.”
No new capital procedure is provided.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on June 26, 1973.
SOUTH CAROLINA
South Carolina provides the death penalty for some
cases of murder.
5 6 a
The punishment for murder is either death or life
imprisonment. Section 1 of Act 1109 (R. 1276,
S. 270), S.C. Laws 1974, amending S.C. Code §16-52
(1962). The death penalty is imposed on those found
guilty of murder under specified circumstances. Life
imprisonment is imposed on all other types of murder.
No new capital procedure is provided.
Section 3 of this Act provides that “ [t]he Supreme
Court shall review each conviction of a capital offense
by any court in this State.”
The following circumstances requiring the death
penalty are set forth in Section 1 of Act 1109 (R.
1276, S. 270), S.C. Laws 1974, amending S.C. Code
§ 16-52 (1962):
(1) Murder committed while in the commission
of the following crimes or acts: (a) rape; (b)
assault with intent to ravish; (c) kidnapping; (d)
burglary; (e) robbery while armed with a deadly
weapon; (f) larceny with use of a deadly weapon;
(g) housebreaking; (h) killing by poison; (i) lying
in wait.
(2) Murder committed for hire based on some
consideration of value.
(3) Murder of a law enforcement officer or
correctional officer while acting in the line of
duty.
(4) The person convicted of committing the
murder has previously been convicted of murder,
or was convicted of commiting more than one
murder.
(5) Murder that is willful, deliberate and
premeditated.”
57a
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on July 2, 1974.
TENNESSEE
Tennessee provides the death penalty for rape of a
victim under 12 years of age (Tenn. Code Ann.
§39-3702, as amended by Public Chap. 461, Tenn.
Laws 1974) and for first degree murder (Tenn. Code
Ann. §39-2402, as amended by Public Chap. 462,
Tenn. Laws 1974). “First degree” murder is defined by
Tenn. Code Ann. §39-2402, as amended by Public
Chap. 462, Tenn. Laws 1974, as an act committed by
an individual wherein:
(1) he commits a willful, deliberate, malicious
and premeditated killing or murder;
(2) he commits a willful, deliberate and malici
ous killing or murder, and:
(a) the victim is an employee of the
Department of Correction having custody of the
actor,
(b) the victim is a prison inmate in custody
with the actor,
(c) the victim is known to the actor to be a
peace officer or fireman acting in the course of
his employment,
(d) the victim is a judge acting in the course
of his judicial duties,
5 8 a
(e) the victim is a popularly elected public
official,
(f) the offense is committed for hire; or
attempting to evade law enforcement officials.
(3) he hires ahother to commit a willful,
deliberate, malicious and premediated killing or
murder, and such hiring causes the death of the
victim; or
(4) he commits a willful, deliberate and malici
ous killing or murder during the perpetration of
any arson, rape, robbery, burglary, larceny,
kidnapping, aircraft piracy, or unlawful throwing,
placing, or discharging of a destructive device or
bomb.”
“When a person is convicted of the crime of murder
in the first degree, or as an accessory before the fact of
such a crime, it shall be the duty of the jury convicting
him in their verdict to fix his punishment at death as
provided by law.” Tenn. Code Ann. §39-2406, as
amended by Public Chap. 462, Tenn. Laws 1974.
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
These statutes became effective on February 27,
1974.
TEXAS
Texas provides the death penalty for some cases of
“capital murder.” “Capital murder” is defined by Tex.
Pen. Code § 19.03(a) as a killing where:
59a
“(1) The person murders a peace officer or
fireman who is acting in the lawful discharge of an
official duty and who the person knows is a peace
officer or fireman;
(2) The person intentionally commits the mur
der in the course of committing or attempting to
commit kidnapping, burglary, robbery, aggravated
rape, or arson;
(3) The person commits the murder for re
muneration or the promise of remuneration or
employs another to commit the murder for
remuneration or the promise of remuneration;
(4) The person commits the murder while
escaping or attempting to escape from a penal
institution; or
(5) The person, while incarcerated in a penal
institution, murders another who is employed in
the operation of the penal institution.”
The punishment for “capital murder” is either death
or life imprisonment. The choice between these
alternative penalties is made by a jury after the trial in
a separate sentencing hearing. Tex. Code Crim. Proc.
Art. 37.071(a). At this post-conviction hearing, the jury
must return a special verdict setting forth its findings
on three specified issues:
(1) whether the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result;
(2) whether there is a probability that the
defendant would commit criminal acts of violence
that would constitute a continuing threat to
society; and
6 0 a
(3) if raised by the evidence, whether the
conduct of the defendant in killing the deceased
was unreasonable in response to the provocation, if
any, by the deceased.”
Tex. Code Crim. Procs Art. 37.071(b).
The State must prove each of these three issues
beyond a reasonable doubt (Tex. Code Crim. Proc. Art.
37.071(c)), and the jury must unanimously return a
“yes” answer to each of these issues to impose a death
sentence. Ten “no” votes on any one of the issues are
sufficient to prevent the imposition of a death sentence.
Tex. Code Crim. Proc. Art. 37.071(d).
“If the jury returns an affirmative finding on each
issue submitted . . . the court shall sentence the de
fendant to death. If the jury returns a negative finding
on any issue . . . the court shall sentence the defendant
to confinement in the Texas Department of Corrections
for life.” Tex. Code Crim. Proc. Art. 37.071(e).
Automatic review of death sentences is provided in
the Texas Court of Criminal Appeals. Tex. Code Crim.
Proc. Art. 37.071(f).
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. In a
“capital murder” case, the jury is given explicit power
to convict of “capital murder,” “murder,” or “any
other lesser offense.” Tex. Pen. Code § 19.03(c).
Negotiated pleas to lesser included offenses are not
prohibited in capital cases. The Governor’s clemency
power in capital cases is left unaltered.
This statute became effective on June 14, 1973.
61a
UTAH
Utah provides the death penalty for some cases of
first degree murder and for some cases of “aggravated
kidnappings,” crimes which are deemed to be “capital
felonies” . “First degree” murder is defined by Utah
Code Ann. §76-5-202(1) as an act in which “the actor
intentionally or knowingly causes the death of another
under any of the following [aggravating] circumstances:
(a) The homicide was committed by a convict
under sentence of imprisonment.
(b) At the time the homicide was committed
the actor also committed another homicide.
(c) The actor knowingly created a great risk of
death to a person other than the victim and the
actor.
(d) The homicide was committed while the
actor was engaged in the commission of, or an
attempt to commit, or flight after committing or
attempting to commit, robbery, rape, forcible
sodomy, or aggravated sexual assault or arson,
burglary, or kidnapping.
(e) The homicide was committed for the
purpose of avoiding or preventing an arrest by a
peace officer acting under color of legal authority
or for the purpose of effecting an escape from
lawful custody.
(f) The homicide was committed for pecuniary
or other personal gain.
(g) After having previously been convicted of
first or second degree murder.
(h) The homicide was committed upon a child
under the age of twelve years as the result of
physical abuse or neglect.”
6 2 a
“Aggravated kidnapping” is defined by Utah Code Ann.
§ 76-5-302 as an act in which a person “intentionally or
knowingly, by force, threat, or deceit, detains or
restrains another against his will with intent:
(a) To hold for ransom or reward, or as a shield
or hostage, or to compel a third person to engage
in particular conduct or to forbear from engaging
in particular conduct;
. (b) To facilitate the commission, attempted
commission, or flight after commission or at
tempted commission of a felony; or
(c) To inflict bodily injury on or to terrorize
the victim or another; or
(d) To interfere with the performance of any
governmental or political function.”
Aggravated kidnapping is reduced to “a felony of the
first degree” (rather than a “capital felony”) if the
victim is released “alive and in a safe place before
trial.” Utah Code Ann. §76-5-302(3).
The punishment for “capital felonies” is either death
or life imprisonment. Utah Code Ann. §76-3-207(2).
The choice between these alternative penalties is made
by the trial judge or jury after a separate, post
conviction sentencing hearing. Utah Code Ann.
§76-3-207(1). The judge or jury must render a decision
as to whether the death sentence is to be imposed after
weighing the aggravating and mitigating circumstances.
The statute provides no formula for weighing aggravat
ing factors against mitigating ones, and the burden of
establishing aggravating or mitigating circumstances is
not allocated.
“If the jury reports unanimous agreement to impose
the sentence of death, the court shall discharge the jury
63a
and shall impose the sentence of death. If the jury is
unable to reach a unanimous verdict imposing the
sentence of death, the court shall discharge the jury and
impose the sentence of life imprisonment.” Utah Code
Ann. §76-3-207(2).
The Utah Supreme Court is authorized to review the
appropriateness of death sentences, and “if it finds
prejudicial error in the sentencing proceeding only, may
set aside the sentence of death and remand the case to
the trial court, in which event the trial court shall
impose the sentence of life imprisonment.” Utah Code
Ann. §76-3-207(3).
“Aggravating circumstances” include those enu
merated in the definition of first degree murder (Utah
Code Ann. §76-5-202(1)).
The following “mitigating circumstances” are set
forth in Utah Code Ann. §76-3-207(1):
“(a) The defendant has no significant history of
prior criminal activity;
(b) The murder was committed while the
defendant was under the influence of extreme
mental or emotional disturbance;
(c) The defendant acted under extreme duress
or under the substantial domination of another
person;
(d) At the time of the murder, the capacity of
the defendant to appreciate the criminality (wrong
fulness) of his conduct or to conform his conduct
to the requirement of law was substantially
impaired as a result of mental disease, intoxication,
or influence of drugs;
(e) The youth of the defendant at the time of
the crime;
6 4 a
(f) The defendant was an accomplice in the
murder committed by another person and his
participation was relatively minor;
(g) And any other fact in mitigation of the
penalty.”
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on July 1, 1973.
WYOMING
Wyoming provides the death penalty for some cases
of first degree murder.
The punishment for first degree murder is either
death or life imprisonment. Death is imposed “if the
trier of fact finds the [murder in the first degree]. . .
involvefd] the following course of conduct:
(i) Murder of any peace officer, corrections
employee or fireman acting in the line of
duty;
(ii) A murder committed for profit or reward
of any kind by a defendant after being
hired by any person, or the employment or
inducement of another to commit murder;
(iii) Intentional murder by the unlawful and
malicious use or detonation of any explo
sive;
(iv) Murder committed by a person who had
previously been convicted of murder in the
first or second degree;
65a
(v) Murder committed by a defendant while
under the sentence of life imprisonment;
(vi) Murder committed in the perpetration of
or attempt to perpetrate a rape where the
defendant had previously been convicted of
rape; murder committed in the perpetration
of or attempt to perpetrate arson where
the defendant had previously been con
victed of arson; murder committed in the
perpetration of or attempt to perpetrate a
robbery where the defendant had previ
ously been convicted of a robbery; murder
committed in the perpetration of or
attempt to perpetrate a burglary where the
defendant had previously been convicted of
a burglary;
(vii) Murder of any person perpetrated in the
course of a kidnapping;
(viii) Murder in the course of the hijacking of a
commercial airplane, train, bus, boat or
other commercial vehicle;
(ix) Murder committed by a defendant to
conceal his identity or to conceal the fact
of the commission of a crime, or to
suppress evidence;
(x) Murder of two or more persons in one
series of related events.”
Wyo. Stat. Ann. §6-54(b) (supp. 1973).
It appears that the guilt and sentence determina
tion will ordinarily be made simultaneously, since Wyo.
Stat. Ann. §6-54(c) (supp. 1973) provides that only for
the courses of conduct specified in sub-sections (iv), (v),
and (vi) of Wyo. Stat. Ann. §6-54(b) (supp. 1973) will
the determination relevant to sentence (that the
defendant had a prior conviction) be made at a
separate, post-conviction proceeding.
6 6 a
Automatic review of death sentences is provided in
the Wyoming Supreme Court. Wyo. Stat. Ann. § 6-54(d)
(supp. 1973).
No standards are provided to govern prosecutorial
discretion in seeking and filing capital charges. Convic
tions of lesser included offenses and negotiated pleas to
lesser included offenses are not prohibited in capital
cases. The Governor’s clemency power in capital cases is
left unaltered.
This statute became effective on February 24, 1973.
lb
APPENDIX B
NORTH CAROLINA DEFENDANTS SENTENCED
TO DEATH UNDER THE PROCEDURES
ESTABLISHED BY STATE v. WADDELL
1. H enry N. Jarrette : Union County Super. Ct. Nos.
73-Cr-1342, 73-Cr-1339, 73-Cr-2843, 73-Cr-1341
(June 21, 1973) (death sentence for first degree
murder and rape); aff’d 284 N.C. 625, 202 S.E.2d
721 (1974); pending on petition fo r cert., U.S.
Sup. Ct. No. 73-6877 (filed June 11, 1974).
2. A lbert Crowder, J r .: Wake County Super. Ct. No.
73-Cr-14190 (July 18, 1973) (death sentence for
first degree murder); a f f ’d 285 N.C. 42, 203 S.E.2d
38 (1974); pending on pe tition fo r cert., U.St Sup.
Ct. No. 73-6878 (filed June 11, 1974).
3. David Earl Dillard'. Robeson County Super. Ct.
No. 73-Cr-5807 (Aug. 1, 1973) (death sentence for
first degree murder); a f f ’d 285 N.C. 203 S.E.2d 5
(1974); pending on pe tition fo r cert., U.S. Sup. Ct.
No. 74-6875 (filed June 11, 1974).
4. T o m m y NoelT. Orange County Super. Ct. No.
73-Cr-4142 (Aug. 3, 1973) (death sentence for
rape); a f f ’d 284 N.C. 670, 202 S.E.2d 750 (1974);
pending on petition fo r cert., U.S. Sup. Ct. No.
73-6876 (filed June 11, 1974).
5. Isaac Sherill M o n k : New Hanover County Super. Ct.
No. 73-Cr-5871 (Aug. 1973) (death sentence for
first degree murder); appeal pendm g N.C. Sup. Ct.
No. 34 (Fall Term, 1973).
2b
6. A lto n James H enderson: Alamance County Super.
Ct. No. 73-Cr-7771 (Sept. 5, 1973) (death
sentence for first degree burglary and rape); a f f ’d
285 N.C. 1, 203 S.E.2d 10 (1974); pending on
petition fo r cert., U.S. Sup. Ct. No. 73-6853 (filed
June 8, 1974).
7. Jesee Thurman F ow ler: Wake County Super. Ct.
No. 73-Cr-41907 (Sept. 24, 1973) (death sentence
• for first degree murder); a f f ’d 285 N.C. 90, 203
S.E.2d 803 (1974); cert, granted Oct. 29, 1974, U.S.
Sup. Ct. No. 73-7031.
8. Billy H o n e y c u tt: Duplin County Super. Ct. No.
73-Cr-3822 (Oct. 5, 1973) (death sentence for first
degree murder) a f f ’d 285 N.C. 184, 203 S.E.2d
844 pending on petition fo r cert., U.S.
Sup. Ct. No. 73-7032 (filed July 9, 1974).
9. Mamie Lee Ward: Edgecombe County Super. Ct.
No. 73-Cr-6706 (Sept. 19, 1973) (death sentence
for first degree murder); appeal pending, N.C. Sup.
Ct. No. 30 (Spring Term, 1974).
10. M ickey B e ll: Robeson County Super. Ct. No.
73-Cr-12351 (Oct. 18, 1973) (death sentence for
first degree murder); appeal pending, N.C. Sup. Ct.
No. 27 (Spring Term, 1975).
11. Kelly Dean Sparks: Guilford County Super. Ct.
No. 73-Cr-19776 (Nov. 1, 1973) (death sentence
for first degree murder); a f f ’d _____ N.C.
207 S.E.2d 71 (1974).
12. Earl Jerom e White: Alamance County Super. Ct.
No. 73-Cr-12672 (Dec. 6, 1973)(Death sentence for
first degree murder); appeal pending, N.C. Sup. Ct.
No. 83 (Spring Term, 1974).
3b
13. Vernon Brown: Edgecombe County Super. Ct. No.
73-Cr-7378 (Dec. 9, 1973) (death sentence for
rape); appeal pending, N.C. Sup. Ct. No. 15 (Fall
Term, 1974).
14. B obby Hines: Edgecombe County Super. Ct. No.
73-Cr-7238 (Dec. 9, 1973) (death sentence for
rape); appeal pending, N.C. Sup. Ct. No. 15 (Fall
Term, 1974).
15. Jesse Lee Walston: Edgecombe County Super. Ct.
No. 73-Cr-7239 (Dec. 9, 1973) (death sentence for
rape); appeal pending, N.C. Sup. Ct. No. 15 (Fall
Term, 1974).
16. George Vick: Beaufort County Super. Ct. No.
73-Cr-5687 (Dec. 12, 1973) (death sentence for
rape); appeal pending, N.C. Sup. Ct. No. 15 (Fall
Term, 1974).
17. Frank Pruitt: Cumberland County Super. Ct. Nos.
73-C r-35545, 73-C r-35546, 73-Cr-35547,
73-Cr-35548 (Jan. 29, 1974) (death sentence for
first degree murder and arson); appeal pending,
N.C. Sup. Ct. No. 24 (Spring Term, 1974).
18. Reginald Renard Lam pkins: Forsyth County
Super. Ct. No. 73-Cr-43023 (Jan. 18, 1974) (death
sentence for rape); appeal pending, N.C. Sup. Ct.
No. 22 (Spring Term, 1974)
19. Vernon Junior Woods: Catawba County Super. Ct.
Nos. 73-Cr-20545, 73-Cr-20546, 73-Cr-20547 (Jan.
29, 1974) (death sentence for first degree murder
and rape); appeal pending, N.C. Sup. Ct. No. 25
(Spring Term, 1974).
4b
20. B ryant H enry Williams, Jr.: Wake County Super.
Ct. No. 73-Cr-32521 (Jan. 31, 1974) (death
sentence for rape); appeal pending, N.C. Sup. Ct.
No. 25 (Spring Term, 1975).
21. George James P atterson : Forsyth County Super.
Ct. No. 73-Cr-22457 (Feb. 5, 1974) (death
sentence for first degree murder); appeal pending,
N.C. Sup. Ct. No. 29 (Spring Term, 3 974).
22. Lawrence M cCall: Transylvania County Super. Ct.
Nos. 73-Cr-1821 and 73-Cr-1829 (Feb. 9, 1974)
(death sentence for first degree murder); appeal
pending, N.C. Sup. Ct. No. 28 (Fall Term, 1974)
23. James A very: Bertie County Super. Ct. No.
73- Cr-2247 (Feb. 17, 1974) (death sentence for
first degree murder); appeal pending N.C. Sup. Ct.
No. 27 (Fall Term, 1974).
24. A lexander M cLaughlin : Robeson County Super.
Ct. Nos. 73-Cr-18024, 74-Cr-228, 74-Cr-229,
74- Cr-230, 74-Cr-231 and 74-Cr-232 (Feb. 28,
1974) (death sentences for first degree murder and
arson); appeal pending, N.C. Sup. Ct. No. 29 (Fall
Term, 1974).
25. Michael B urns: Onslow County Super. Ct. No.
74-Cr-1012 (Mar. 1, 1974) (death sentence for
rape).
26. R obert Gary B o c k : Moore County Super. Ct. No.
73-Cr-6324 (Mar. 8, 1974) (death sentence for first
degree murder).
27. Ernest Arm strong: Harnett County Super. Ct. No.
73-Cr-10951 (Mar. 21, 1974) (death sentence for
rape).
5b
28. Ernest John Vinson: Wilson County Super. Ct. No.
73- Cr-9325 (Mar. 27, 1974) (death sentence for
rape).
29. Frank James Silver: Nash County Super. Ct. No.
74- Cr-192 (April 4, 1974) (death sentence for first
degree murder).
30. John R ichard Stegm ann: Cumberland County
Super. Ct. No. 73-Cr-30527 (May 16, 1974 (death
sentence for rape).
31. Richard G ordon : Mecklinberg County Super. Ct.
Nos 73-Cr-56187 and 73-Cr-56188 (May 29, 1974)
(death sentence for first degree murder).
32. T im o thy Wesley R obbins: Guilford County Super.
Ct. Nos. 74-Cr-19674, 74-Cr-19770 and
74-Cr-19771 (May 31, 1974) (death sentence for
first degree murder).
33. Charles D. Thom pson: Rutherford County Super.
Ct. No. 74-Cr-1222 (June 1, 1974) (death sentence
for first degree murder).
34. Wayne Foddrell: Caswell County Super. Ct. No.
73- Cr-1439 (June 7, 1974) (death sentence for
rape).
35. R o ze ll O xendine H unt: Anson County Super. Ct.
No. 74-Cr-1538 (June 13, 1974) (death sentence
for first degree murder).
36. Crawford Dean Low ery: Alamance County Super.
Ct. No. 73-Cr-8718 (June 13, 1974) (death
sentence for rape).
37. Fernando H unt: Vance County Super. Ct. Nos.
74- Cr-550, 74-Cr-551 and 74-Cr-552 (June 13,
1974) (death sentence for rape).
6b
38. Ernest R ay Sim m ons: Nash County Super. Ct. No.
74-Cr-194 (June 14, 1974) (death sentence for
first degree murder).
39. Tharroy Davis: Lenoir County Super. Ct. Nos.
74-Cr-l 102, 74-Cr-l 103 (June 16, 1974) (death
sentence for first degree murder).
40. Joseph Clinton Foster: Lenoir County Super. Ct.
Nos. 74-Cr-l248, 74-Cr-1249 (June 16, 1974)
(death sentence for first degree murder).
41. Thurman Lee Strickland: Ouslow County Super.
Ct. Nos. 74-Cr-3671, 74-Cr-3672, 74-Cr-l 0568
(June 29, 1974) (death sentence for first degree
murder).
42. Johnny H ennesy B oyd: Lincoln County Super. Ct.
No. 74-Cr-4806 (July 27, 1974) (death sentence
for first degree burglary).
43. B obby Clinton Foster: Mecklinberg County Super.
Ct. Nos. 74-Cr-l 600, 74-Cr-1601 (Nov. 22,
1974) (death sentence for first degree murder).
44. Thomas T,ee King: Gaston County Super. Ct. No.
74-Cr-4357 (Aug. 1, 1974) (death sentence for
first degree murder).
45. Joseph King: Gaston County Super. Ct. No.
74-Cr-4358 (Aug. 1, 1974) (death sentence for
first degree murder).
46. Roger Lawrence Wetmore: Rowan County Super.
Ct. No. 74-Cr-2010 (Aug. 2, 1974) (death sentence
for first degree murder).
47. R onnie Young: Mecklinberg County Super. Ct.
Nos. 73-Cr-56206, 73-Cr-56207 (Aug. 8, 1974)
(death sentence for first degree murder).
7b
48. Joe Lewis W hite: Scotland County Super. Ct. No.
74-Cr-2Q07 (Aug. 15, 1974) (death sentence for
first degree murder).
49. Jam es Edward Britt: Robeson County Super. Ct.
No. 73-Cr-6567 (Sept. 20, 1974) (death sentence
for first degree murder).
50. Larry Bernard: New Hanover County Super. Ct. No.
73-Cr-20420 (Oct. 3, 1974) (death sentence for
rape).
51. Pinkney Thomas M itchell, Jr.: Gaston County
Super. Ct. No. 74-Cr-9519 (Oct. 30, 1974) (death
sentence for first degree murder).
52. David B. Sm ith : Mecklinberg County Super. Ct.
Nos. 74-Cr-l 598, 74-Cr-1599 (Nov. 22, 1974)
(death sentence for first degree murder).
lc
APPENDIX C
REPRESENTATIVE NORTH CAROLINA
HOMICIDE CASES
In the following cases, which present a variety of
factual elements resembling those of petitioner’s case,
juries chose to convict the defendants of less than first
degree murder. In some of these cases, the lesser
convictions were reversed on appeal for trial errors
which, when corrected, might have produced disposi
tions even more favorable to the defendants.
Second Degree M urder Convictions
State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1972).
State v. Rum m age, 280 N.C. 51, 185 S.E.2d 221
(1971), a f f ’d on rem and, 17 N.C. App. 239, 193
S.E.2d 475 (1972).
State v. Fields, 279 N.C. 460, 183 S.E.2d 666 (1971).
Sta te v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971).
State v. B oyd, 278 N.C. 682, 180 S.E.2d 794 (1971).
State v. K irby, 273 N.C. 306, 160 S.E.2d 24 (1968).
State v. Feaganes, 272 N.C. 246, 158 S.E.2d 89 (1967).
State v. Barber, 270 N.C. 222, 154 S.E.2d 104 (1967).
State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967).
Sta te v. Kea, 256 N.C. 492, 124 S.E.2d 174 (1962).
State r. D ow ney, 253 N.C. 348, 117 S.E.2d 39 (1960).
State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83 (1959).
State v. Morgan, 245 N.C. 215, 95 S.E.2d 507 (1956).
State v. Wingler, 238 N.C. 485, 78 S.E.2d 303 (1953).
State v. Russell, 233 N.C. 487, 64 S.E.2d 579 (1951).
State v. Taylor, 226 N.C. 286, 37 S.E.2d 901 (1946).
2 c
State v. Miller, 223 N.C. 184, 25 S.E.2d 623 (1943).
Sta te v. Terrell, 212 N.C. 145, 193 S.E. 161 (1937).
State v. G odwin, 211 N.C. 419, 190 S.E. 761 (1937).
Sta te v. H olland, 193 N.C. 713, 138 S.E. 8 (1927).
State v. B rinkley, 183 N.C. 720, 110 S.E. 783 (1922).
Sta te v. Evans, 177 N.C. 564, 98 S.E. 788 (1919).
Sta te v. Johnson, 176 N.C. 722, 97 S.E. 14 (1918).
State v. G entry, 125 N.C. 733, 34 S.E. 706 (1899).
Sta te v. Gibbs, 5 N.C. App. 457, 168 S.E.2d 507
(1969) .
Manslaughter Convictions
S ta te v. D ooley, 285 N.C. 158, 203 S.E.2d 815 (1974).
Sta te v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971).
Sta te v. Gladden, 279 N.C. 566, 184 S.E.2d 249
(1971).
Sta te v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971).
Sta te v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971).
Sta te v. Jennings, 276 N.C. 157, 171 S.E.2d 447,
(1970) a f f ’d on remand, 279 N.C. 604, 184 S.E.2d 254
(1971) .
Sta te v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968).
Sta te v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967).
State v. Price, 271 N.C. 521, 157 S.E.2d (1967).
State v. Miller, 267 N.C. 409, 148 S.E.2d 279 (1966).
Sta te v. Camp, 266 N.C. 626, 146 S.E.2d 643 (1966).
State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).
State v. Johnson, 261 N.C. 727, 195 S.E.2d 824
(1964).
Sta te v. Davis, 259 N.C. 138, 129 S.E.2d 894 (1963).
State v. Gay, 251 N.C. 78, 110 S.E.2d 458 (1959).
State v. Fowler, 250 N.C. 595, 108 S.E.2d 892 (1959).
State v. M angum , 245 N.C. 323, 96 S.E.2d 39 (1956).
3c
State v. Ellis, 241 N.C. 702, 86 S.E.2d 272 (1955).
State v. S treet, 241 N.C. 689, 86 S.E.2d 277 (1955).
State v. R aw ley , 237 N.C. 233, 74 S.E.2d 620 (1953).
State v. Washington, 234 N.C. 531, 67 S.E.2d 498
(1951).
State v. Sally, 233 N.C. 225, 63 S.E.2d 151 (1951).
State v. Suddreth , 230 N.C. 239, 52 S.E.2d 924 (1949).
State v. Church, 229 N.C. 718, 51 S.E.2d 345 (1949).
State v. Grant, 228 N.C. 522, 46 S.E.2d 318 (1948).
State v. Correll, 228 N.C. 28, 44 S.E.2d 334 (1947).
State v. Pennell, 224 N.C. 622, 31 S.E.2d 857 (1944).
State v. Baker, 222 N.C. 428, 23 S.E.2d 340 (1942).
State v. D eG raffenreid, 222 N.C. 113, 22 S.E.2d 217
(1942).
State v. Lefevers, 221 N.C. 184, 19 S.E.2d 488 (1942).
State v. Beachum , 220 N.C. 531, 17 S.E.2d 674 (1941).
State v. R o d d ey , 219 N.C. 532, 14 S.E.2d 526 (1941).
State v. Shepherd, 220 N.C. 377, 17 S.E.2d 469
(1941).
State v. Bright, 215 N.C. 537, 2 S.E.2d 541 (1939).
State v. Bryant, 213 N.C. 752, 197 S.E. 530 (1938).
State v. R eynolds, 212 N.C. 37, 192 S.E. 871 (1937).
State v. Thornton, 211 N.C. 413, 190 S.E. 758 (1937).
State v. Marshall, 208 N.C. 127, 179 S.E. 427 (1935).
State v. B ost, 192 N.C. 1, 133 S.E. 176 (1926).
State v. Jones, 188 N.C. 142, 124 S.E. 121 (1924).
State v. Baldwin, 184 N.C. 789, 114 S.E. 837 (1922).
State v. Carraway, 181 N.C. 561, 107 S.E. 142 (1921).
State v. Davis, 175 N.C. 723, 95 S.E. 48 (1918).
State v. H and, 170 N.C. 703, 86 S.E. 1005 (1915).
State v. Pollard, 168 N.C. 116, 83 S.E. 167 (1914).
State v. Yates, 155 N.C. 450, 71 S.E. 317 (1911).
State v. R ow e, 155 N.C. 436, 71 S.E. 332 (1911).
4c
Sta te v. H ough, 138 N.C. 663, 50 S.E. 709 (1905).
Sta te v. Sum ner, 130 N.C. 718, 41 S.E. 803 (1902).
Sta te v. Walker, 22 N.C. App. 22, 205 S.E.2d 328
(1974).
Sta te v. Barrett, 20 N.C. App. 419, 201 S.E.2d 553
(1974).
Sta te v. Davis, 18 N.C. App. 436, 197 S.E.2d 6 (1973).
Sta te v. Brice, 17 N.C. App. 189, 193 S.E.2d 299
(1972).
Sta te v. L y n n , 16 N.C. App. 566, 192 S.E.2d 608
(1972).
Sta te v. Jefferies, 16 N.C. App. 235, 192 S.E.2d 104
(1972).
Sta te v. Davis, 15 N.C. App. 395, 190 S.E.2d 434
(1972).
State v. Edwards, 8 N.C. App. 296, 174 S.E.2d 28
(1970).
State v. C lontz, 6 N.C. App. 587, 170 S.E.2d 624
(1969).
Sta te v. H urdle, 5 N.C. App. 610, 169 S.E.2d 17
(1969).
Sta te v. Hardee, 3 N.C. App. 426, 165 S.E.2d 43
(1969).
Id
APPENDIX D
WORLDWIDE TRENDS IN THE
USE OF THE DEATH PENALTY
In a report for the United Nations Department of
Economic and Social Affairs describing developments in
the use of the death penalty during the years 1961 to
1965, Professor Norval Morris summarized his findings
as follows:
. . [t]here is an over-all tendency in the world
towards fewer executions. This is the result of less
frequent use of the death penalty in those States
whose statutes provide for that penalty, and of a
steady movement towards legislative abolition of
capital punishment.” ld
In a 1971 supplemental report to the Economic and
Social Council, the Secretary-General of the United
Nations concluded:
“ . . . [t]here is still a clear trend towards total
abolition. Most countries are gradually restricting
the number of offences for which the death
penalty can be applied and a few have totally
abolished capital offences even in wartime. Those
countries retaining the death penalty report that in
practice it is only exceptionally applied and
frequently the persons condemned are later
pardoned by executive authority. . . .”2d
ldUNITED NATIONS, DEPARTMENT OF ECONOMIC AND
SOCIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/SD/9-10)
81-82 (1968) [hereafter cited as UNITED NATIONS].
2dUNITED n a t io n s , eco n o m ic a n d so c ia l c o u n c il ,
Note by the Secretary-General, Capital Punishment (E/4947) 3
(February 23, 1971) [hereafter cited as Secretary-General’s Note].
2d
A variety of factors hamper somewhat any attempt
to generalize upon the data summarized by these
statements. No study has successfully sought data from
all jurisdictions competent to retain or abolish capital
punishment; many otherwise abolitionist jurisdictions
retain the death penalty for extraordinary offenses or
emergency circumstances; several jurisdictions have
failed to reflect de fac to abolition in positive law.3d A
consideration of trends over the last two centuries,
moreover, is complicated by the movements of several
jurisdictions which have abolished the death penalty
and subsequently reintroduced it.
Nonetheless, when these vacillating movements are
put out of account by focusing upon countries which
have abolished capital punishment and never restored it
(and when “abolition” is used to mean the termination
of capital punishment for the ordinary violent civilian
crimes: murder, rape, robbery, arson, and kidnaping),
definite historical trends are clearly apparent.
Table I lists abolitionist jurisdictions outside the
United States by year of de jure abolition, except for
Lichtenstein, Luxembourg, Nicaragua, and Surinam, for
which the last execution year is given to mark the
beginning of de fac to abolition.4d
3dS<?£? UNITED NATIONS 8-9; Patrick, The Status o f Capital
Punishment: A World Perspective, 56 J. CRIM. L., CRIM. &POL.
SCI. 397, 405 (1965) [hereafter cited as Patrick].
4dNine of the listed jurisdictions retain execution as the
penalty for certain extraordinary civil offenses (the four
Australian jurisdictions, Canada, Israel, Nepal, New Zealand, and
United Kingdom); eight permit the death penalty in wartime or
under military law (Brazil, Denmark, Finland, Italy, Netherlands,
Norway, Sweden and Switzerland); and two executed Nazi
collaborators after World War II (Netherlands and Norway).
3d
TABLE I5d
Worldwide Abolition
ARGENTINA 1922 LICHTENSTEIN 17987d
AUSTRALIA (Federal) 1945 LUXEMBOURG 18217d 9d
New South Wales 1955 MEXICO (Federal) 1931
Queensland 1922 29 of 32 States 1931-1970
Tasmania 1968 MONACO
AUSTRIA 1968 MOZAMBIQUE 1867
BELGIUM 18636d NEPAL 1950
BOLIVIA 1961 NETHERLANDS 1886
BRAZIL 1946 Antilles 1957
CANADA 19678d NEW ZEALAND 1961
COLUMBIA 1910 NICARAGUA 18927d
COSTA RICA 1880 NORWAY 1905
DENMARK 1930 PANAMA 1915
DOMINICAN REPUBLIC 1924 PORTUGAL 1867
EUCADOR 1897 SAN MARINO 1848
FINLAND 1949 SURINAM 192710d
GERMANY, West 1949 SWEDEN 1921
GREENLAND 1954 SWITZERLAND 1942
HONDURAS 1957 UNITED KINGDOM
ICELAND 1940 Great Britain 1965
INDIA Northern Ireland 1966
Travencore 1944 URUGUAY 1907
ISRAEL 1954 VATICAN CITY STATE
TALY 1944 VENEZUELA 1863
5(1 Sources for this table are: UNITED NATIONS; Secretary-
General’s Note; ANCEL, THE DEATH PENALTY IN EURO
PEAN COUNTRIES (Council of Europe, European Committee
on Crime Problems, 1962) [hereafter cited as ANCEL]; JOYCE,
CAPITAL PUNISHMENT: A WORLD VIEW (1961); UNIVER
SITY OF COIMBRA, FACULTY OF LAW, PANA DE MORTE
(1967); Patrick.
^Excludes one soldier executed in 1918.
ldDe facto only; date is last execution.
^Statute abolishing capital punishment for murder expires
in 1977 if not renewed.
9dExcludes one.
10dExcludes one.
4d
Chart I displays the data contained in Table I.
Although, as of 1970, abolitionist jurisdictions com
prised far less than half of all the nations of the world,
there is evidence of a definite, continuing, long-term,
accelerating, worldwide trend toward ending the use of
the penalty of death. Every decade since 1800 has
shown growth in the total number of abolitionist
jurisdictions; and during the past century the number of
jurisdictions abandoning capital punishment in any
given decade has been greater than the number in the
preceding decade.
Actual use of the death penalty is exceedingly
rare.lld Estimates of the total number of executions in
the world today must necessarily remain speculative,
but the figure probably does not much exceed the 560
executions estimated to have occurred in London and
lldpatrick, whose execution figures appear to be somewhat
high (see note 12d infra), found that out of 89 countries which
made legal provision for the death penalty during the period
1958-1962, there were 36 which executed not a single human
being through the five-year period. Patrick 409. See also UNITED
(continued)
5d
Middlesex alone each year during the mid-sixteenth
century.12 d These figures are assuredly very crude, but
in general terms they mark the magnitude of the trend
(footnote continued from proceeding page)
NATIONS 96. Patrick reports 13 additional countries which
conducted fewer than one execution per year; 24 countries which
conducted one to five executions; 10 countries which conducted
between fifty and one hundred executions. Patrick 409. The
Republic of South Africa appears to be the known world leader in
executions, averaging about one hundred per year. Kahn, The
Death Penalty in South Africa, 18 TYDKSKRIF VIR HEDEND-
AAGES ROMEINS-HOLLANDSE REG. 108, 116-118 (1970)
[hereafter cited as Kahn].
12dThe derivation of the average annual figure of 560 for the last
decade of the reign of Henry VIII and throughout the reign of
Edward VI is set forth in 1 RADZINOWICZ, A HISTORY OF
ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM
1750 142 n.20 (1948).
An annual average total of about 535 executions is reported
for the period 1958-1962 by Patrick, for the major capital-
punishment countries of the world, excluding the communist
nations and eleven non-communist nations (some of them
relatively populous). Patrick 408. However, there are reasons to
believe that this figure is inaccurately large. Where there is
overlapping between the numbers of executions reported by
Patrick and the presumably more reliable numbers gathered by the
United Nations Department of Economic and Social Affairs for the
two periods 1956-1960 and 1961-1965, Patrick’s figures are
consistently higher. See UNITED NATIONS 43-44 96-97. The two
reports may be consistent, of course, if executions peaked strongly
in the middle of the 1956-1965 period, but there is no reason to
suppose such a peaking. Second, Patrick does not disclose the
terms of his inquiries to his correspondents; and it is entirely
possible that his reports include executions in political and military
(continued)
tow ard d e fa c t o a b o litio n .1311
(footnote continued from proceeding page)
contexts which should be put out of account for present purposes.
Third (a relatively small matter), Patrick’s own columnar figures do
not total to 535.3, as he says, but to 517.1. Patrick 398-404.
In any event the figures today are almost certainly lower than
those for 1962-1963. The United States contributed 48.6
executions per year to Patrick’s total, id. at 404; and we know
that there have been no executions in this country since 1967.
Among the nations reporting to the United Nations for both the
1956-1960 and the 1961-1965 periods, there was a sharp decline
in executions from the first to the second period (UNITED
NATIONS 96-97); a number of nations have abolished capital
punishment de jure since 1962; and the only country in the
world where it is definitively known that executions have been
on the increase is the Republic of South Africa (Kahn, 116; and
compare Van Niekerk, The Administration o f Justice, Law Reform
and Jurisprudence, [1967] ANNUAL SURVEY OF SOUTH
AFRICAN LAW 444, 471-472, with Patrick). Projecting the 40%
decrease found in the United Nations figures for countries which
reported during both of its reporting periods, and assuming that
the extent to which American executions have exceeded the 40%
rate more than offsets the increase in South Africa, there would be
fewer than 200 executions a year today in the countries studied by
Patrick. We would have to nearly treble that figure, in
consideration of the communist and eleven non-communist
countries—surely a generous allowance—in order to bring the world
total to 560.
n °See ANCEL 12: “Abolition in law has in almost all cases been
preceded by abolition in practice. . . .”
le
APPENDIX E
THE EVIDENCE CONCERNING THE
DETERRENT EFFICACY OF THE
DEATH PENALTY
This appendix describes the findings of the numerous
studies conducted during recent decades concerning the
deterrent efficacy of capital punishment. Part A sets
forth the conclusions of social scientists who have
tested statistically the hypothesis that capital punish
ment is superior to imprisonment as a deterrent of the
crime of murder. Part B evaluates the anecdotal
impressions of law enforcement officers on the same
subject.
A. The Statistical Evidence
It is no exaggeration to report that scientific studies
of the deterrent effect of capital punishment speak with
rare and compelling unanimity. Recent studies are
presaged by the conclusions of George B. Void in 1932
that “the death penalty does not and can not prevent
crime either specifically in regard to murder or more
generally in regard to other kinds of crime,” le and
Robert H. Dann in 1935 that “the homicide rate can
never be materially affected, one way or the other, by
the present program of executions. . . .”2e
leVold, Can the Death Penalty Prevent Crime?, 12 PRISON
J. No. 4 4,9(1932).
2eDann, The Deterrent Effect o f Capital Punishment,
FRIENDS SOCIAL SERVICE SERIES, Bulletin No. 29 (Third
Month) 19 (1935).
2e
A number of post-war studies were based on the data
collected during the intensive efforts of the British
Royal Commission on Capital Punishment, between
1949 and 1953.3e That data led all informed students
of the subject to conclude: “it is not true to say that
capital punishment is in practice a greater deterrent
than other forms of severe punishment.”4® The
conclusion of the Commission itself, confined as it was
by its limited terms of reference, was: “ [i]t is . . . im
portant . . . not to base a penal policy in relation to
murder on exaggerated estimates of the uniquely
deterrent force of the death penalty.”5e And the
Commission carefully noted that “it is impossible to
arrive confidently at any firm conclusion about the
deterrent effect of the death penalty, or indeed of any
form of punishment.”6® But this caution and its
technically delimited conclusion do not obscure the
Commission’s assessment of the statistical evidence
before it:
“ . . . [we] agree with Professor Sellin that the
only conclusion which can be drawn from the
figures is that there is no clear evidence of any
influence of the death penalty on the homicide
3eSee ROYAL COMMISSION ON CAPITAL PUNISHMENT
1949-1953, REPORT (H.M.S.O. 1953) [Cmd. 8932] [hereinafter
cited as ROYAL COMMISSION].
4eGARDINER, CAPITAL PUNISHMENT AS A DETER
RENT: AND THE ALTERNATIVE 31 (1956). Accord:
GOWERS, A LIFE FOR A LIFE 138 (1956); Hart, Murder and
the Principles o f Punishment: England and the United States, 52
NW. U.L.REV. 433, 458 (1957). See also KOESTLER,
REFLECTIONS ON HANGING 59 (Amer. ed. 1957).
5eROYAL COMMISSION 24.
6eIbid.
3e
rates of these States [principally neighboring
abolitionist and retentionist jurisdictions of the
United States, systematically studied by Sellin]
and that, ‘whether the death penalty is used or not
and whether executions are frequent or not, both
death-penalty States and abolition States show
rates which suggest that these rates are conditioned
by other factors than the death penalty.’ ”
. . [t]he general conclusion which we have
reached is that there is no clear evidence in any of
the figures we have examined that the abolition of
capital punishment has led to an increase in the
homicide rate, or that its reintroduction has led to
a fall.”7e
The conclusion of the more recent study made under
the auspices of the European Committee on Crime
Problems of the Council of Europe is in full accord
with the Royal Commission’s findings. “Even a cursory
examination of the statistics on the subject for [Council
of Europe]. . .countries shows that they give no positive
indication regarding the value of capital punishment as
a deterrent”.86
Contemporary criminologists who have studied deter
rence and the death penalty in the United States speak
with one voice in summarizing their conclusions from
the evidence:
“Capital punishment has had no appreciable
influence on the murder rate in the states which
have been investigated.”96 * 83
ls Id. at 23.
8eANCEL, THE DEATH PENALTY IN EUROPEAN COUN
TRIES 45-46.(Council of Europe, European Committee on Crime
Problems, (1962)).
9eAndenaes, Does Punishment Deter Crime? 11 CRIM. L. Q. 76,
83 (1968).
4e
“Capital punishment does not act as an effective
deterrent to murder.” 10e
“Capital punishment is ineffective in deterring
murder.” lle
“The use or non-use of capital punishment has
no effect on the number of murders committed
within a state or the nation.”12e
“The evidence indicates that [the death penalty
for murder]. . .has no discernible effects in the
United States.”13e
“Statistical findings and case studies converge to
disprove the claim that the death penalty has any
special deterrent value.” 14®
“The death penalty, as we use it, exercises no
influence on the extent or fluctuating rates of
capital crimes.”15®
“The studies [of capital punishment] suggest no
discernible relationship between the presence of
the death penalty and homicide rates.”16®
10eChambliss, Types o f Deviance and the Effectiveness o f
Legal Sanctions, 1967 WISC. L. REV. 703,706.
lleDoleschal, The Deterrent Effect o f Legal Punishment: A
Review o f Literature, 1 INFORMATION REVIEW ON CRIME &
DELINQ. No. 7 7(1969).
12®LUNDEN, THE DEATH PENALTY 22 (1960).
13eReckless, The Use o f the Death Penalty A Factual
Statement, 15 CRIME & DELINQ. 43, 52 (1969).
14eSchuessler, The Deterrent Influence o f the Death Penalty,
284 ANNALS 54, 62 (1952).
15eSELLIN, THE DEATH PENALTY (1959), published as an
appendix to AMERICAN LAW INSTITUTE, MODEL PENAL
CODE, Tent. Draft No. 9 (May 8, 1959) 63 [hereafter cited as
SELLIN (1959)].
16eZIMRING, PERSPECTIVES ON DETERRENCE 17 (Nat’l
Institute of Mental Health, January 1971).
5e
“The capital punishment controversy has pro
duced the most reliable information on the general
deterrent effect of a criminal sanction. It now
seems established and accepted that . . . the death
penalty makes no difference to the homicide
rate.”176
These general conclusions rest upon the following
results of statistical inquiries into specific aspects of the
deterrence question:
Death penalty jurisdictions do not have a lower
rate of criminal homicide than abolition jurisdic
tions.18®
Given two states otherwise similar in factors
that might affect homicide rates, and differing in
that one employs capital punishment while the
other does not, the abolition state does not show
any consistently higher rate of criminal homi
cide.19®
In jurisdictions which reintroduce the death
penalty after having abolished it do not show a
decreased rate of criminal homicide.20e
Jurisdictions which reintroduce the death pen
alty after having abolished it do not show a
17eMorris and Zimring, Deterrence and Corrections, 381
ANNALS 137, 143 (1969).
18eSchuessler, supra note 14e, at 57; Reckless, supra note
13e, at Table 9.
19eSELLIN (1959) 23-24; SELLIN, CAPITAL PUNISHMENT
135-138 (1967) [hereafter cited as SELLIN (1967)].
20eFATTAH, A STUDY OF THE DETERRENT EFFECT OF
CAPITAL PUNISHMENT WITH SPECIAL REFERENCE TO
THE CANADIAN SITUATION (Department of the Solicitor
General, Canada, Research Centre Report No. 2, 1972) [hereafter
cited as FATTAH] ; SELLIN (1959) 34-38. SELLIN (1967)
122-124; Samuelson, Why Was Capital Punishment Restored in
Delaware?,60 J. CRIM. L„ CRIM. & POL. SCI. 148, 150-151
(1969).
6e
decreased rate of criminal homicide after reintro
duction.21e
Police officers on duty do not suffer a higher
rate of criminal assault and homicide in abolition
jurisdictions than in death penalty jurisdictions.22®
Prisoners and prison personnel do not suffer a
higher rate of criminal assault and homicide from
life-term prisoners in abolition jurisdictions than in
death penalty jurisdictions.23®
A post -Furman investigation of the operation of
mandatory death penalty provisions in “all jurisdic
tions for which homicide rates are available for at
least three years before and after the change from
mandatory to discretionary capital punishment for
murder” “found no indication that the mandatory
death penalty was a more effective deterrent of
homicide than discretionary capital punish
ment.”24®
21eSELLIN (1959) 34-38; SELLIN (1967) 122-124; Samuel-
son, note 20e supra, at 150-151.
22eSellin, Does the Death Penalty Protect Municipal Police?,
in BEDAU, THE DEATH PENALTY IN AMERICA 294-301
(rev. ed. 1967) [hereafter cited as BEDAU1; Campion, Does the
Death Penalty Protect the State Police?, in BEDAU 301-315.
^MASSACHUSETTS SPECIAL COMMISSION ESTAB
LISHED FOR THE PURPOSE OF INVESTIGATING AND
STUDYING THE ABOLITION OF THE DEATH PENALTY IN
CAPITAL CASES, REPORT AND RECOMMENDATIONS
21-22 (1958); SELLIN (1967) 154-160; Sellin, Homicides and
Assaults in American Prisons, 1964, 31 ACTA CRIMINOLOGIAE
ET MEDICINAE LEGALIS JAPONICA 139 (1965).
24®BOWERS, EXECUTIONS IN AMERICA 160 (1974).
7e
B. Impressions of Law Enforcement Officers
Law enforcement officers frequently dismiss the
statistical evidence set forth above because they say
that it fails to prove that the threat of capital
punishment never deterred a murder which would have
occurred if imprisonment had been the only risk run by
the murderer.256 Police spokesmen invariably base their
own belief in the deterrent efficacy of the death
penalty entirely upon impressionistic bases,26e and
upon the quoted statements of criminals (made to
police officers following their arrests) claiming that they
carried toy guns in robberies out of fear of the death
penalty.27e It would be improper, certainly, to reject
the intuitions of the police out of hand, or to assert
categorically that the fear of death never has dissuaded
any putative murderer from his crime. However, several
circumstances render these police opinions gravely
suspect as a foundation for the present-day American
use of death as a penalty for first-degree murder.
First, correctional officials, whose knowledge of
criminal offenders is at least as informed as that of the
police, generally do not believe that the death penalty
25eE.g., Hoover, Statements in Favor o f the Death Penalty, in
BEDAU 130; Allen, Capital Punishment: Your Protection and
Mine, in BEDAU 135.
26eSee ROYAL COMMISSION 18-24; CANADA, JOINT
COMMITTEE OF THE SENATE AND HOUSE OF COMMONS
ON CAPITAL AND CORPORAL PUNISHMENT AND LOT
TERIES; REPORT f f 29-33, 43-50 (1956); NEW JERSEY,
COMMISSION TO STUDY CAPITAL PUNISHMENT, REPORT
8-9 (1964).
22eE.g., Desky, Should Capital Punishment be Abolished in
California?, 39 THE COMMONWEALTH 19, 23 (November 11,
1963).
8e
is a superior deterrent to imprisonment.28® They and
other knowledgeable observers agree that a very large
proportion of the crimes which are defined by law as
first-degree murders and made punishable by death are
not the product of rational choice which the threat of
the extreme penalty can deter.29e Second, when a
murder is the product of rational choice in the sense
that it can be affected by the threat of punishment, the
threat of death punishment is so attenuated by its
uncertainty as to become minimally significant.306
Third, the number of “toy gun” incidents and similar
cases in which criminals assert that their behavior was
affected by the threat of the death penalty remains * 105
28eDUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN 257
(1962); Testimony of Clinton T. Duffy, in Hearings Before the
Subcommittee on Criminal Laws and Procedures o f the Senate
Committee on the Judiciary, 90th Cong., 2d Sess., on S.1760, To
Abolish the Death Penalty (March 20-21 and July 2, 1968) 22-23
(G.P.O. 1970) [hereafter cited as Hearings]; Thomas, Attitudes
o f Wardens Toward the Death Penalty, in BEDAU 242. And see
National Council on Crime and Delinquency, Board of Trustees,
Policy Statement on Capital Punishment, 10 CRIME & DELINQ.
105 (1964).
29eLAWES, LIFE AND DEATH IN SING SING 144-145
(1928); Testimony of Clinton T. Duffy, in Hearings, at 23; DUFFY
& HIRSHBERG, 88 MEN AND 2 WOMEN 256 (1962); see
WEIHOFEN, THE URGE TO PUNISH 150-152 (1956); PLAFAIR
& SINGTON, THE OFFENDERS 228 (1957); Statement of
Attorney General Ramsey Clark, in Hearings, at 92; Ancel, The
Problem o f the Death Penalty in SELLIN (1967) 3, 17; (1967);
Sellin, The Inevitable End o f Capital Punishment, in SELLIN
(1967) 239, 249-250; McNamara, Statement Against Capital
Punishment, in BEDAU 182, 185-185; Schuessler, The Deterrent
Influence o f the Death Penalty, 284 ANNALS 54, 61-62 (1952);
Caldwell, Why Is The Death Penalty Retained?, 284 ANNALS 45,
51 (1952).
30e5'ee WEIHOFEN, THE URGE TO PUNISH 159-164
(1956); BEDAU 270.
9e
uncounted, but (even if the reports are reliable)316
these cases must be few, since they register no impact
upon any known comparison of homicide rates in
abolition and death-penalty jurisdictions or eras. See
Part A, supra. Of course, it may be that such cases are
offset by the equally unknown number of instances of
the clinically documented converse phenomenon of
“suicide-by-homicide” : that is, the cases of killers who
kill .in order to force society to kill them in return.32e
In any event, one thing seems plain. The police
impressions and anecdotes do not point to any factor,
unaccounted for by the statistical studies, which would
explain why the studies consistently fail to reflect
appreciable deterrent effects of the death penalty if
they exist.
Finally, when inmates were examined in an experi
mental context by psychiatrists rather than by law
enforcement officers, (and thus without substantial
danger that the interviews were distorted by implicit
coercive influences) quite different opinions were
expressed: 124
31cThey seem unlikely to be very reliable, since an arrested
man will understandably tell a policeman what he thinks the
policeman wants to hear. See Testimony of Clinton T. Duffy, in
Hearings, at 23.
32eWest, Medicine and Capital Punishment, in Hearings, at
124, 126-127; SELLIN (1959) 65-69; BEDAU 264 n.7; Gold,
Suicide, Homicide, and the Socialization o f Aggression, 63 AM. J.
SOCIOLOGY 651 (1958); Neiberg, Murder and Suicide, 4
ARCH. CRIM. PSYCHODYNAMICS 253 (1961); OHIO LEGIS
LATIVE SERVICE COMMISSION, STAFF RESEARCH RE
PORT No. 46, CAPITAL PUNISHMENT 49 (1961); FATTAH
39-40.
lOe
“ [ t ] he population interviewed gave no support to
the concept that capital punishment deters major
crime.”33e
33ePakola & Sadoff, Capital Punishment: A Deterrent for
Major Crime?, in GOVERNOR’S STUDY COMMISSION ON
CAPITAL PUNISHMENT, REPORT 115, 126-127 (Common
wealth of Pennsylvania 1973).