Jackson v. Georgia Motion for Leave to File and Brief Amici Curiae

    MOTION FILED

AUG 25 1971
IN THE

Supreme Court of the United States
October Term, 1971

No. 69-5030
On Writ of Certiorari to the Supreme Court of Georgia. 

LUCIOUS JACKSON,
Petitioner,

vs.
STATE OF GEORGIA,

Respondent.

No. 69-5003
On Writ of Certiorari to the Supreme Court of Georgia. 

WILLIAM HENRY FURMAN,
Petitioner,

vs.
STATE OF GEORGIA,

Respondent.

No. 68-5027
On Writ of Certiorari to the Supreme Court of California. 

EARNEST JAMES AIKENS, JR.,
Petitioner,

vs.
STATE OF CALIFORNIA,

Respondent.

No. 69-5031
On Writ of Certiorari to the Court of Criminal Appeals of Texas. 

ELMER BRANCH,
Petitioner,

vs.
STATE OF TEXAS,

Respondent.

Motion for Leave to File Brief Amici Curiae on Behalf of 
James V. Bennett, Clinton T. Duffy, Robert G. Sarver, 
Harry C. Tinsley and Lawrence E. Wilson (No. 69-5030, 
69-5003, 69-5031) and Brief Amici Curiae.

HILBERT P. ZARKY,
MARC I. HAYUTIN,

1800 Century Park East,
Los Angeles, Calif. 90067, 

Attorneys for Amici Curiae.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622



SUBJECT INDEX
Page

Motion for Leave to File Brief Amici Curiae on 
Behalf of James V. Bennett, Clinton T. Duffy, 
Robert G. Sarver, Harry C. Tinsley and Law­
rence E. Wilson (No. 69-5030, 69-5003, 69- 
5031 ....... .................... ......... ................................  i

Brief Amici Curiae on Behalf of James V. Bennett, 
Clinton T. Duffy, Robert G. Sarver, Harry C. 
Tinsley and Lawrence E. Wilson ..... ..............  5

Opinions Below ........... ........................ ............ .......  5

Jurisdiction ...... ................................. .......... .......... 6

Interest of Amici Curiae .........................................  6

Argument .............................. ................. ...................  7
The Infliction of the Death Penalty in Each of 

the Pending Cases Would Constitute Cruel 
and Unusual Punishment in Violation of the 
Eighth and Fourteenth Amendments ............ 7
A. The Death Penalty Is Arbitrarily and Ca­

priciously Imposed  ............................. . 7
B. The Death Penalty Does Not Deter .....  8
C. The Death Penalty Is a Tremendous

Human Waste ..... ................ ......... ....... . 10
D. The Imposition of the Death Penalty Ad­

mits of No Errors ..... .......... ..................  11
E. The Death Penalty Hampers Effective Ad­

ministration of Our Prison System ___  11
F. The Death Penalty Is Barbaric ............  12

Conclusion ..................................... ........ .......... ...... 14



TABLE OF AUTHORITIES CITED

Cases Page
Aikens v. California, No. 68-5027, 70 Cal. 2d 

369 ................. .....................................................1, 6
Branch v. Texas, No. 69-5031, 447 S.W.2d 932..2, 6
Furman v. Georgia, No. 69-5003, 225 Ga. 253 .2 , 6
Jackson v. Georgia, No. 69-5030 225 Ga. 790 .. 6

Statute
United States Code, Title 28, Sec. 1257(3) .......... 6



IN THE

Supreme Court of the United States
October Term, 1971

No. 69-5030
On Writ of Certiorari to the Supreme Court of Georgia.

LUCIOUS JACKSON,

vs.
STATE OF GEORGIA,

Petitioner,

Respondent.

No. 69-5003
On Writ of Certiorari to the Supreme Court of Georgia. 

WILLIAM HENRY FURMAN,
Petitioner,

vs.
STATE OF GEORGIA,

Respondent.

No. 69-5031
On Writ of Certiorari to the Court of Criminal Appeals of Texas. 

ELMER BRANCH,
Petitioner,

vs.
STATE OF TEXAS,

Respondent.

Motion for Leave to File Brief Amici Curiae on Behalf of 
James V. Bennett, Clinton T. Duffy, Robert G. Sarver, 
Harry C. Tinsley and Lawrence E. Wilson (No. 69-5030, 
69-5003, 69-5031).

James V. Bennett, Clinton T. Duffy, Robert G. 
Sarver, Harry C. Tinsley and Lawrence E. Wilson re­
spectfully move for leave to file a brief amici curiae in 
these cases. The attorneys for each of the petitioners in 
these cases have consented to the filing of this brief. The 
Attorney General of the State of California has con­
sented to the filing of this brief in Aikens v. California, 
No. 68-5027. The Assistant Attorney General of Texas 
has stated that it is not the policy of the Attorney



•2—

General’s Office of Texas to consent to the filing of 
amicus briefs and has, consequently, failed to give the 
requested for consent in Branch v. Texas, No. 69-5031. 
The Assistant Attorney General of the State of Georgia, 
while stating that that office has no objection to our fil­
ing of an amicus brief, has not granted any express 
consent in the cases of Jackson v. Georgia, No. 69- 
5030, and Furman v. Georgia, No. 69-5003.

In view of the overwhelming importance of the ques­
tion which this Court will be required to pass on, 
amici curiae believe that this Court should have be­
fore it the expression of their views since each has had 
intensive personal experience, in an official capacity, 
with respect to operation of our penal system and the 
infliction of the death penalty.

James V. Bennett is an attorney. He was formerly 
Director of the Federal Bureau of Prisons, and pres­
ently serves as a consultant to the Bureau. He is a 
past Chairman of the Criminal Law Section of the 
American Bar Association.

Clinton T. Duffy is a former Warden of San Quen­
tin Prison, and also a former member of the California 
Adult Authority, and is a member of the Wardens As­
sociation of America.

Robert G. Sarver is an attorney. He has served as 
Commissioner of Corrections for the States of West 
Virginia and Arkansas.

Harry C. Tinsley served as Commissioner of Cor­
rections for the State of Colorado until May, 1971. He 
is a former Warden of Colorado State Prison, and is a 
member of the Wardens Association of America and of 
the American Correctional Association. He has served 
as president of both organizations.



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Lawrence E. Wilson is a former Warden of San 
Quentin Prison.

Amici have written numerous books and articles on 
criminal law and corrections, and on capital punish­
ment in particular, have testified before legislative com­
mittees concerned with the death penalty, and have 
spoken extensively on the subject. Amici have wit­
nessed hundreds of executions in the United States. 
Through years of first hand experience with the death 
penalty, its applications, its victims and its impact on 
the administration of justice and the correctional sys­
tems in our society, they have become confirmed op­
ponents of capital punishment. (In this regard it should 
be noted that amici differ in the extent of their oppo­
sition to the death penalty in that Mr. Bennett might 
permit retention of capital punishment for the most 
heinous crimes, which he has suggested might include 
assassination of the President, treason and mass murder, 
such as by bombing an airplane.) Amici Duffy, Sarver, 
Tinsley and Wilson would abolish the death penalty 
entirely. Amici are nevertheless of one mind as to the 
abolition of the death penalty in almost all cases, in­
cluding those now before the Court.

We believe that the proposed accompanying brief 
will be of assistance to the Court, and for the reasons 
stated above, we respectfully request leave to file the 
annexed brief amici curiae.

Respectfully submitted,
Hilbert P. Zarky,
Marc I. Hayutin,

A ttorneys for Movants.





—5—
IN THE

Supreme Court of the United States
October Term, 1971

No. 69-5030
On Writ of Certiorari to the Supreme Court of Georgia. 

LUCIOUS JACKSON,
Petitioner,

vs.
STATE OF GEORGIA,

Respondent.

No. 69-5003
On Writ of Certiorari to the Supreme Court of Georgia. 

WILLIAM HENRY FURMAN,
Petitioner,

vs.
STATE OF GEORGIA,

Respondent.

No. 68-5027
On Writ of Certiorari to the Supreme Court of California. 

EARNEST JAMES AIKENS, JR.,
Petitioner,

vs.
STATE OF CALIFORNIA,

Respondent.

No. 69-5031
On Writ of Certiorari to the Court of Criminal Appeals of Texas. 

ELMER BRANCH,
Petitioner,

vs.
STATE OF TEXAS,

Respondent.

Brief Amid Curiae on Behalf of James V. Bennett, Clinton T. 
Duffy, Robert G. Sarver, Harry C. Tinsley and Lawrence E. 
Wilson.

Opinions Below.
The opinion of the Supreme Court of Georgia (Jack- 

son v. Georgia, No. 69-5030) holding that the imposi­
tion of the death penalty was not in violation of the 
Eighth and Fourteenth Amendments of the Constitu-



— 6—

tion of the United States prohibiting cruel and unusual 
punishment is reported at 225 Ga. 790.

The opinion of the Supreme Court of Georgia (Fur­
man v. Georgia, No. 69-5003) holding that the im­
position of the death penalty was not in violation of 
the Eighth and Fourteenth Amendments of the Constitu­
tion of the United States prohibiting cruel and un­
usual punishment is reported at 225 Ga. 253.

The opinion of the Supreme Court of California 
(Aikens v. California, No. 68-5027) holding that the 
imposition of the death penalty was not in violation of 
the Eighth and Fourteenth Amendments of the Consti­
tution of the United States prohibiting cruel and un­
usual punishment is reported at 70 Cal. 2d 369.

The opinion of the Court of Criminal Appeals of 
Texas (Branch v. Texas, No. 69-5031) holding that 
the imposition of the death penalty was not in viola­
tion of the Eighth and Fourteenth Amendments of the 
Constitution of the United States prohibiting cruel and 
unusual punishment is not yet officially reported. Its 
opinion is reported in 447 S.W.2d 932.

Jurisdiction.
Petitions for writs of certiorari in each of the cases 

were granted on June 28, 1971, limited in each case 
to the following question, “Does the imposition and 
carrying out of the death penalty in these cases con­
stitute cruel and unusual punishment in violation of the 
Eighth and Fourteenth Amendments?” Jurisdiction of 
this Court in all cases is founded on 28 U.S.C. 1257(3).

Interest of Amici Curiae.
The interest of amici curiae has been set forth in 

the accompanying motion to file this brief and need 
not be reiterated here.



ARGUMENT.
The Infliction of the Death Penalty in Each of the 

Pending Cases Would Constitute Cruel and Un­
usual Punishment in Violation of the Eighth and 
Fourteenth Amendments.

From their personal experiences in the prison sys­
tem, amici have concluded that the infliction of the 
death penalty does not serve any proven, legitimate 
purpose which society may have in imposing punish­
ment for the commission of most capital offenses. While 
amicus James V. Bennett, as noted in the accompany­
ing motion, believes that capital punishment may be 
appropriate in certain unusual situations, all amici 
are firmly convinced that in cases involving rape or 
murder, such as are involved here, the death penalty 
cannot be justified as legitimate punishment.

A. The Death Penalty Is Arbitrarily and Capriciously Imposed.

Amici have dealth with thousands of men and some 
women condemned to death and with thousands of 
other men and women convicted of similar crimes (in 
many instances convicted of more heinous crimes than 
those who have been condemned to die for their acts) 
but who have received jail sentences. Of course, the 
facts in each case are different. Nevertheless, any ward­
en of a large prison, and certainly amici collectively, 
have vastly more experience with persons convicted 
of capital offenses than any jury, prosecutor or trial 
judge. Amici respectfully submit that they are there­
fore capable of generalizing about the crimes commit­
ted by these thousands of persons. What is it that dis- 
tinguishes those who have been condemned to die from 
those who are permitted to live? What is it that dis-

aw   I -IIIin n    "" mMi— —— f r —ffffi te m s s a s s ® 331  

tinguishes a man who, after having exhausted all ap-

— '7—



— 8—

peals must die at the_hands of the State, from the 
man who is given a chance to demonstrate his re­
habilitation after serving what is generally a 13 to 
16 year term of imprisonment, and who may there­
after become a constructive member of society ( though 
many lifers die in prison after serving 20, 30, or even 
40 years)?

Bluntly, the distinguishing characteristics are pover­
ty, ignorance" and~ouToTail statisficabWop^idn" "race. 
Tins overwhelming fact is recognized not just by prison 
and probation officials and clerics who administer last 
rites to the condemned men, but by the prisoners them­
selves, whether condemned or not. Whatever may have 
gone into a judge’s or jury’s decision to visit death rather 
than life upon a convicted man, insofar as the prison 
community is concerned, the arbitrariness with which 
the death penalty is i ro posed^inak^ 
supposedly rehabilitative system, and makes incalcula- 
bly more difficult the arduous task of rehabilitating 
those who have by their crimes demonstrated a lack of 
understanding of our concepts of justice and law.

B. The Death Penalty Does Not Deter.

Amici, and Mr. Duffy in particular, have made ex­
tensive personal efforts during the tenures of their of­
fices as wardens to determine what impact, if any, 
the death penalty has had on convicted criminals. 
Warden Duffy has interviewed hundreds of convicted 
men and women, both those who have been condemned 
to die and those who have been allowed to live. He 
has discussed the issue with prisoners who might have 
been condemned to death by the nature of their crimes, 
and prisoners whose crimes did not admit of the death 
penalty. As Warden Duffy testified in 1968 in an ap-



— 9

pearance before the sub-committee of the State Judi­
ciary Committee, the invariable answer to his questions, 
given when the prisoner has already been convicted 
and need not curry favor with jailer or prosecutor, is 
that the existence of the ̂ de^ r ’̂ m yfTW t^ 11te.lv 
no impact on the perpetrators of the various crimes, 
whether the crime involved was burglary, robbery, rape, 
kidnapping or premeditated murder. Rather, invariably, 
the criminal has acted either out of passion or with tKe 
unalterable belief that he will not be caught.

Amici wish to go on record as emphatically disavow­
ing any argument that the existence of the death penal­
ty protects the administration of our prison system.
In their opinion, any such argument is wholly falla­
cious, and the only impact of the death penalty in the 
prison community, except for those who are executed, is 
a terribly deleterious impact on prison morale—on 
both sides of the cell. On the contrary, amici are per­
sonally aware of instances of homicides within prison 
walls and even homicides by persons who have been 
involved in an official capacity with the administra- f 
tion of the death penalty, including in the case of 
Warden Duffy, a deputy sheriff who used to bring pris- 
oners to San Quentin regularly and another man who j 
helped install a lethal gas chamber at San Quentin and 
later killed three people. He was sentenced to death l 
and died in San Quentin’s gas chamber. Interviews 
with such persons again produced the invariable re­
sponse that the death penalty was the farthest thing 
from their minds when they committed their crimes.

Amici think it ironic indeed that the only argument 
in favor of the death penalty which has some claim to 
legitimacy, that of deterrence, is mocked by the very 
method of death. If it be thought that the spectacle de-



10—

scribed below would have a deterrent impact at least 
on those who must witness the awful sight, then why 
are executions conducted with only a very few wit­
nesses present and the procedures kept as secret as 
possible? This is a far cry from public executions in 
17th and 18th century England. The reasons for 
secrecy, amici submit, are clear. As is well known, 
homicides- and.other serious crimes increased after,.pub­
lic executions in England, and amici believe that even 
secreT executions in the United States promote more 
serious crimes in the community, rather than deter 
them. In addition, those who have imposed this secre­
cy ha’ve done so not out of regard for the man who 
must die, but in recognition that an execution is a de­
moralizing spectacle that degrades any person who par­
ticipates in it. Amici believe that if executions were held 
in public in America today, the public would insist  ̂
onabolition of the death penalty.

C. The Death Penalty Is a Tremendous Human Waste.

On the basis of their long years of professional ex­
perience, amici believe that most prisoners can be 
changed for the better, whatever the faults of our ex­
isting prison system. It is also statistically verifiable 
and comports with the personal experience of amici 
that persons convicted of capital offenses who are not 
executed, generally make very good prisoners. Not all 
of them are on parole. Warden Duffy alone saw 80 
men die of natural death in prison, some of whom had 
served sentences of 30 to 40 years in the ten year pe­
riod which he surveyed with complete statistics. How­
ever, those who are paroled are, in the opinion of al­
most all persons in any way involved in the adminis­
tration of our parole system, by far the best parolees.



l i ­

lt is an extreme rarity that a man who has been con­
victed of a capital offense and paroled is-  ever con­
victed of another serious offense and returned to pris­
on. To deny a chance at parole, especially in the ar­
bitrary and capricious manner in which the denial is 
now made is to sacrifice society’s legitimate interest in 
rehabilitation in favor of the base desires of some for 
retribution and vengeance.

D. Tjlie Imposition of the Death P̂enalty Admits of No Error!s.
There have been errors. Whatever the procedural 

safeguards which may be imposed by this Court and 
by various legislatures, no system can be wholly free 
from error and an innocent person once put to death 
cannot be returned to life. More frequently there are 
the last minute commutation or pardons. Amicus Ben­
nett has written graphically of his own experience in­
volving emergency telephone calls that cannot be com­
pleted and break-neck automobile rides in an attempt
to convey a message of presidential pardon before the 
executioner administered the final penalty.

E. The Death Penalty Hampers Effective Administration of 
Our Prison System.

Amici respectfully submit that the existence of capi­
tal punishment dehumanizes our system of prison ad­
ministration to such a degree that it is increasingly dif­
ficult to obtain humane and enlightened administra­
tors. Amici have personally known of numerous in­
stances of persons who are unwilling to become involved 
in administering the death penalty who are very com­
petent administrators and who are very concerned with 
the administration of our prison system. Amici have 
also known of instances of competent administrators 
resigning after the occurrence of a particularly grue­



— 12—

some experience, ana amicus Sarver stated publicly dur­
ing his tenure in office that he would not permit an 
execution to take place so long as he was in charge of 
the correctional system.

F. The Death Penalty Is Barbaric.

Since very few persons have witnessed an execution, 
very few can realize the details, which we can only de­
scribe as barbaric, which are involved in the prepara­
tion fbr,..antt''‘'1hti....,c;arrying out of the death penalty. 
A bi^ef description pf the methods of legalizing killing 
now empTOyw! ■ny*■?MiULiy juiisdictions in the United 
States seems appropriate.

1

The day before being executed, the prisoner con­
demned to death by hanging goes through the harrow­
ing experience of being weighed and measured for neck 
size and length of drop, to assure that his neck will 
break when he is hanged. The hanging itself, whether 
the prisoner is dropped through a trap, after climbing 
the traditional 13 steps, or whether he is jerked from 
the floor after having been strapped, blackcapped and 
noosed, is a very gruesome spectacle. Generally, three 
men in a small enclosure on the gallows cut taut strings; 
one of these springs the trap, while the other two are 
attached to dummy ropes. This somewhat bizarre pro­
cedure is designed to give the three officers some feel­
ing of non-responsibility for the death of their vic­
tim. The prison guard stands at the feet of the hanged 
person and holds his body steady, because during the 
first few minutes there is usually considerable strug­
gling by the condemned man as he tries to breathe. 
Sometimes his neck does not break and he strangles 
to death. His eyes pop almost out of his head, his 
tongue swells and protrudes from his mouth, his neck



— 13—

may be broken and theTTOpelnay rip large portions of 
his skin and flesh from the side of his face on which 
the noose is set. He urinates, he defecates, and his 
droppings fall to the floor while witnesses look on. 
In almost all executions at least one witness faints or 
has to be helped out of the witness room. The prisoner 
remains dangling from the end of the rope from 8 to 
14 minutes before the attending doctor climbs up a 
small ladder and listens to his heartbeat with a stetho­
scope and pronounces him dead.

In States which practice electrocution, the body of 
the condemned man is prepared beforehand with a fas­
tening, and one of his pants legs is split in order that 
an electric plate can be placed against his leg. When 
the executioner throws the switch that propels the elec­
tric current through the body of the prisoner, the vic­
tim cringes from torture, his flesh swells and his skin 
stretches to a point of breaking. He defecates, he urin­
ates, his tongue swells and his eyes pop out. In some 
cases his eyeballs rest on his cheeks; his flesh is burned 
and smells of cooked meat; sometimes a spiral of smoke 
rises from his head.

When a firing squad is the method of death, several 
rifle shots are fired, all but one of which is effective. 
As in the case of hanging and electrocution, shooting 
disfigures the body of the prisoner.

In administering death by lethal gas, the State keeps 
the prisoner in a holding cell in a separate room for 
his last few days, usually not more than 20 feet from 
the lethal gas chamber. He is dressed in blue jeans 
and a white shirt as other garments might hold a pocket 
of gas. He is accompanied 10 or 12 steps to the gas 
chamber by two officers, quickly strapped in a metal



14-

chair, a stethoscope applied and the door sealed. Out 
of sight of the witnesses the executioner, on a signal 
from the warden, presses the lever which allows the 
cyanide gas eggs to mix with the distilled water and 
sulphuric acid. At first there is extreme evidence of 
horror, pain and strangling. The prisoner’s eyes pop, 
they turn purple, they drool. Soon the prisoner is un­
conscious. It is a horrible sight, at which witnesses fre­
quently faint.

Whatever the means of death, the execution of a hu­
man being is a degrading spectacle which few can 
stomach. It is carried out in secret. The victim has 
paid his “debt to ..society”.-, by.-.suffering the ultimate ^ 
punishment; but the State is not the richer.

Conclusion.
The death penalty itself is cruel and barbarous, im­

posed on the uneducated, the poor and the black and 
brown. Its existence distorts our whole system of crim­
inal justice, brings distrust upon our courts, creates 
suspicion of the adversary system and makes the ad­
ministration of our correctional system shunned by 
constructive and humane individuals who will not be in­
volved in executing a death sentence. Almost all of 
western society save the United States has abolished 
the death penalty and the trend has become world­
wide, except for such politically torn countries as Iraq 
and some of the African nations. Amici respectfully 
submit that the death penalty has no place in the ad­
ministration of justice in the United States.



15—

For each of the reasons discussed above, the death 
sentence imposed upon petitioners in the cases before 
the Court should be invalidated.

Respectfully submitted,

H ilbert P. Zarky,
Marc I. Hayutin,

Attorneys for Amici Curiae.



Service of the within and receipt of
thereof is hereby admitted this...............
of August, A.D. 1971.

a copy 
......day