Motion for Leave to File and Brief Amici Curiae on Behalf of Bennett et al.

    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, 

STATE OF GEORGIA, 
Respondent. 

No. 69-5003 

On Writ of Certiorari to the Supreme Court of Georgia. 

WILLIAM HENRY FURMAN, 
Petitioner, 

STATE OF GEORGIA, 
Respondent. 

No. 68-5027 

On Writ of Certiorari to the Supreme Court of California. 

EARNEST JAMES AIKENS, JR., 
Petitioner, 

STATE OF CALIFORNIA, 
Respondent. 

No. 69-5031 

On Writ of Certiorari to the Court of Criminal Appeals of Texas. 

ELMER BRANCH, 
Petitioner, 

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 ........ To Ce a LE 1 

Brief Amici Curiae on Behalf of James V. Bennett, 

Clinton. LE. Duffy, Robert G, Sarver, Hany C. 

Tinsley and Lawrence BE. Wilson ................s. 5 

Opinions Below... o.oo lve 5 

Jutisdicfion: oo... te 6 

Interest of AMICH CUNIAe «ono, oo lobie. sasmerisdnvgserbins 6 

Argument nl A a nai nh J 

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 Dees Not Deter ...... 8 

C. The Death Pensliy Is a Tremendous 

Human Waste... o.oo iota. 10 

D. The Imposition of the Death Penalty Ad- 

mits.of No Briors ..... oe ives 11 

E. The Death Penalty Hampers Effective Ad- 

ministration of Our Prison System .._.... 11 

FF. The Death Penglty Is Barbaric 12 

CONCIB ION: oii iio ei iose case och 14  



  

TABLE OF AUTHORITIES CITED 

Cases Page 

Alkens v. California, No. 63-5027, 70 Cal. 2d 

70) All See Ue Se CR I a a Cl 1. 6 

Branch v. Texas, No. 69-5031, 447 S.W.2d 932.2, 6 

Furman v. Georgia, No, 69-5003, 225 Ga. 233.2, 16 

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, 
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. 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 VV. Bennett, Clinton T. Dully, 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  



  

ss 

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. 

   



i ra 

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, 

Attorneys for Movants.  



    

 



seen 

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 Amici 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-  



  

ren 

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. 

   



RL; 

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- 

tinguishes a man who, after having exhausted all ap- 

  

  

 



  

— 

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 out of all statistical proportion, race. 

This 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 imposed makes a mockery of the 

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- 

   



a 

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 death penalty had absolutely 

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 the 

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- 

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 

helped install a lethal gas chamber at San Quentin and 
later killed three people. He was sentenced to death 

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- 

  

   



  

swe] Oo 

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 have 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 

on abolition 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. 

   



Se; |, TR 

It 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. The Imposition of the Death Penalty Admits of No Errors. 

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- 

  
   



  

S| 

some experience, and 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 for and the carrying out of the death penalty. 

A brief description of the methods of legalizing killing 

now employed by various jurisdictions in the United 

States seems appropriate. 

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 

   



may be broken and the rope may 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 

  

    
   



  

  

eh, WE 

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, 

HILBERT P. ZARKY, 

MARC I. HAYUTIN, 

Attorneys for Amici Curiae. 

  

  

 



 



 



Service of the within and receipt of a copy 

thereof is hereby admitted this 

of August, A.D. 1971.