James v. California Brief Amicus Curiae

    IN THE
E . RO

Supreme Court
F  l  1- E

OCT 3

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1971

NO BIT1’ 5 0 2 7
EARNEST JAMES AIKENS, JR.,

Petitioner,
-vs-

THE STATE OF CALIFORNIA,
Respondent.

BRIEF AMICUS CURIAE

LUKE McKISSACK 
Attorney at Law 
6430 Sunset Boulevard 
Suite 521
Hollywood, Calif.90028 
[213] 466 7331



IN THE
SUPREME COURT 

OF THE
UNITED STATES

OCTOBER TERM, 1971 

NO.________
EARNEST JAMES AIKENS, JR.,

Petitioner,
-vs-

THE STATE OF CALIFORNIA,
Respondent.

BRIEF AMICUS CURIAE

LUKE McKISSACK 
Attorney at Law 
6430 Sunset Boulevard 
Suite 521Hollywood, Calif.90028 
[213] 466 7331



TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES............  i
PREFACE ............  vi
BRIEF AMICUS CURIAE:

I. PETITIONER IS SUBJECT TO
CRUEL AND UNUSUAL PUNISHMENT 
IN VIOLATION OF THE EIGHTH 
AND FOURTEENTH AMENDMENTS TO 
THE UNITED STATES CONSTITUTION

____ BY BEING SENTENCED TO DEATH
FOR THE CRIME OF MURDER. TO 
WIT, THE STATE OF CALIFORNIA 
IN IMPLEMENTING THOSE PENAL 
OBJECTIVES IT DEEMS LEGITIMATE 
CAN DO SO BY MEANS LESS SUBVER­
SIVE OF THE RIGHT TO LIVE - 
NAMELY BY SENTENCING PETITIONER 
TO LIFE IMPRISONMENT. . . -1-

CONCLUSION   -14-
APPENDIX

California Penal Code
§§190 and 190.1 A-l

Letters of Consent B-l



TABLE OF AUTHORITIES
PAGE

Bates v. Little Rock 
361 U.S. 516,524 
80 S.Ct. 412,417 (1960)
In re Anderson 
69 Cal.2d 613,629 
73 Cal.Rptr.21,33 (1968)
In re Estrada
63 Cal.2d 740,745
48 Cal.Rptr.172,176 (1966)
Jackson v. Bishop 
(8th Cir. 1968)
404 F .2d 571
N.A.A.C.P. v. Dutton 
371 U.S. 415,438-444 
83 S.Ct. 328,340-343 (1963)
Parrish v. Civil Service Commission 
66 Cal.2d 260,271 
57 Cal.Rptr.623 (1967)
People v. Bickler 
57 Cal.2d 788,793 
22 Cal.Rptr, 340 (1962)
People v. Daniels 
71 Cal.2d 1119,
80 Cal.Rptr. 897 (1969)
People v. Kidd 
56 Cal.2d 759,770 
16 Cal.Rptr.793 (1961)
Peoole v. Lane 
56 Cal.2d 773,736 
16 Cal.Rptr.801 (1961)

2

4,8

8

4,5,6,11

2

2

10

3

10

10

1



TABLE OF AUTHORITIES
PAGE

People v. Love 
56 Cal.2d 720,731
16 Cal.Rptr.777,782-783 (1961) 8
Powell v. Texas 392 U.S. 514
88 S.Ct. 2145 (1968) • 5
Robinson v. California 
370 U.S. 660
82 S.Ct. 1417 (1962) ' 5
Rudolph v. Alabama 
375 U.S. 889
84 S.Ct. 155,156 (1963) 4,6
Sherbert v. Verner
374 U.S. 398,404,fn.6,406
83 S.Ct. 1790,1794,fn.6,1795 2
Thomas v. Collins 
323 U.S. 516,530
65 S.Ct. 315,323 (1945) 2
Trop v. Dulles 
356 U.S. 86,100
78 S.Ct. 590 (1958) 6
Weems v. United States 217 U.S.■349
30 S.Ct. 544 (1910) 5
Wilkerson v. Utah
99 U.S. 130 (1878) 7

ii



TABLE OF AUTHORITIES
PAGE

STATUTES
CALIFORNIA PENAL CODE:

§37  12

§128 12
§129 12
§4500 12
§190 13
§190.1 13

OTHER
Borchard,
Convicting the Innocent (1932) 3
Dann, Robert H.
"The Deterrent Effect of Capital Punishment"Friends Social Service Series
Bulletin No. 29 (1935) 10
Ehrmann, Herbert B.
"The Death Penalty and the
Administration of Justice"
Annals of the Academy of Political
& Social Science
284:73-84, November, 1952 12
Frank & Frank
Not Guilty (1957) 3

iii



r

TABLE OF AUTHORITIES
PAGE

Hartung, Frank E.
On Capital Punishment
Detroit; Wayne University
Dept, of Sociology & Anthropology1951, p.22 3
Lawes, Lewis L.
Twenty Thousand Years in Sing Sing
New York: R. Long & R.R. Smith
1932, pp.146-147,156 3
O'Hara, Charles E. &
Osterburg, James W.
"Some Miscarriages of Justice Analyzed 
in the Light of Criminalistics"
Chapter 47 of An Introduction to 
Criminalistics
New York; MacMillan, 1949, pp.680-685 3
Poliak, Otto
"The Errors of Justice"
Annals of the American Academy 
of Political & Social Science 
284:115-123, November, 1952 3
Schuessler, Karl F.
"The Deterrent Influence of the Death Penalty"
Annals of the American Academy
of Political & Social Science
284: 54-62,November, 1952 10
Sellin, Thorten
"Common Sense and the Death Penalty"
Prison Journal 
October, 1932, p.12 10



TABLE OF AUTHORITIES

Sutherland & Cressey 
Principles of Criminology 
(5th Ed.1955), pp.292-295, 297
Void, G. B.
"Can the Death Penalty Prevent Crime? 
The Prison Journal 
October 1932, pp.3-8

PAGE

3,10

10



PREFACE
The presentation of this Amicus Curiae 

brief on behalf of Petitioner Aikens is generated 
by the fact that counsel represents two inmates 
on California's death row - Sirhan Sirhan and 
Jesse James Gilbert - plus one who has spent 
eleven years there and is currently awaiting 
his fifth death penalty retrial, Doyle Alva 
Terry. All of these persons stand to be 
gravely affected by this Court's decision in 
Aikens.

Previously, counsel filed an Amicus Curiae 
brief in McGautha v. California, 91 S.Ct. 1454 
(1971). Finally, counsel has presented briefs 
and made arguments against the death penalty in 
cases for many years.



I
PETITIONER IS SUBJECT TO CRUEL AND 
UNUSUAL PUNISHMENT IN VIOLATION OF 
THE EIGHTH AND FOURTEENTH AMENDMENTS 
TO THE UNITED STATES CONSTITUTION BY 
BEING SENTENCED TO DEAT I FOR THE CRIME 
OF MURDER. TO WIT, THE STATE OF 
CALIFORNIA IN IMPLEMENTING THOSE PENAL 
OBJECTIVES IT DEEMS LEGITIMATE CAN DO 
SO BY MEANS LESS SUBVERSIVE OF THE 
RIGHT TO LIVE - NAMELY BY SENTENCING 
PETITIONER TO LIFE IMPRISONMENT.
Petitioner is under sentence of death 

which will result in his execution if this 
Court does not intervene to prevent it. It 
is the position of Amicus Curiae that in our 
system of justice life is sacred and indispen­
sable to the enjoyment of all other rights 
guaranteed us under the Constitution. To 
interfere with such fundamental liberties, 
the State of California must show a "compelling



- 2 -

need" to exterminate Petitioner in order to 
effectuate the defensible purposes of the 
criminal law. As this Court declared in 
Bates v. Little Rock, 361 U.S. 516,524, 8Q 
S.Ct. 412,417 (1960),

"Where there is a significant 
encroachment upon personal liberty, 
the State may prevail only upon showing 
a subordinating interest which is 
compelling.

The loss of life indisputably involves the loss 
of all liberties, and, thus, capital punishment
remains the most far-reaching encroachment on
personal liberty known to man. Therefore, a
penalty as final as death—^ is allowable only
if those defensible purposes of the criminal
17 See also, Sherbert v. Verner, 374 U.S.398,
404 ,fn. 6,406 , 83 S.Ct. 1790,1794,fn.6,1795 (1963) 
Thomas v. Collins,323 U.S.516,530, 65 S.Ct.315, 
323 (1945); N.A.A.C.P. v. Dutton, 371 U.S.415, 
438-444, 83 S.Ct.328,340-343 (1963); Parrish v. 
Civil Service Commission,66 Cal.2d260,271, 57 Cal 
Rptr.623 (1967) .
2/ When the death sentence is meted out, effec­tively a class of persons is created who cannot 
receive the benefits of future changes in the



-3-
law can be vindicated by no alternative means 
less subversive of the right to live. Otherwise, 
the State of California will have inflicted the 
loss of life without any commensurate justifi­
cation. This argument we now proceed to analyze.3/
law which may accrue to their benefit such as 
the declaring of the "Little Lindbergh Law" 
unconstitutional which would have saved the 
life of Chessman were he still living at the 
time of the decision. [See People v. Daniels,
71 Cal.2d 1119, 80 Cal.Rptr. 897 (1969).
Moreover, it denies the ameliorative prospects 
of legislative change in the form of legalizing 
the formerly condemned behavior or diminishing 
the penalty; finally, prospects for future proof 
of innocence and pardon disappear with the defen­
dant's execution. And innocence subsequently 
discovered is not foreign to our system of 
justice. See cf., Frank & Frank, Not Guilty, 
(1957); Borchard, Convicting the Innocent (1932). 
Sutherland & Cressey, Principles of Criminology 
(5th Ed.1955),p.297; Charles E. O'Kara & James 
W. Osterburg, "Some Miscarriages of Justice 
Analyzed in the Light of Criminalistics", Chapter 
47 of An Introduction to Criminalistics (New York; 
MacMillan,1949),pp.680-685; Lewis L. Lawes, Twenty 
Thousand Years in Sing Sing,(New York: R.Long &
R.R. Smith,1932),pp.146-147,156; Frank E. Hartung, 
On Capital Punishment, Detroit; Wayne University 
Dept, of Sociology & Anthropology,1951,p.22; Otto 
Poliak, "The Errors of Justice",Annals of the 
American Academy of Political & Social Science,
284:115-123/November, 1952. Imprisonment keeps all 
of these possibilities viable. It may be that a 
person while in prison will die a natural death or 
no change will ensue but that is not a state re­
sponsibility. What is directly attributable to the 
death penalty is the eternal ineligibility for 
relief that is denied to no other prisoner.



4-
The two cardinal manifestos of the American

political and jurisprudential conscience, the
Declaration of Independence and the United States
Constitution, embody the precept that life is a
most precious commodity. The Declaration of
Independence proclaims that our Government is
indeed formed to guarantee certain inalienable
rights, most_notably "life, liberty and the
pursuit of happiness". The Fifth Amendment to
the United States Constitution provides that no
person may "be deprived of life, liberty or
property without due process of law". In both
documents, man's life is not only the first
named, but the most eminent concern of the State.
"37 While this type of inquiry is cast in due 
process terms and is not coextensive with the 
phrase "cruel and unusual" punishment, the two 
have routinely been intertwined in the analysis 
of appellate courts. See e.g., Rudolph v. Alabama, 
'375 U.S. 889, 84 S.Ct. 155,156 (1963); Jackson v. 
Bishop (8th Cir.1968) 404 F .2d 571; In re Anderson, 
69 Cal.2d 613,629, 73 Cal.Rptr.21,33 (1968).



-5-
It has been held since time immemorial that 

the State's right to punish, much less kill, 
cannot be based on whim or caprice. Weems v. 
United States, 217 U.S. 349, 30 S.Ct. 544 (1910). 
It cannot punish a man at all for his addiction 
to drugs [Robinson v. California, 370 U.S. 660,
82 S.Ct. 1417 (1962)], or for acquiring a common 
cold [ibid;667], or for simply being an alcoholic 
[cf. Powell v. Texas, 392 U.S. 514, 88 S.Ct.
2145 (1968)]. Furthermore, even the type of 
penalty is subject to considerable restraint.
For example, it has been held that whipping is 
an impermissible punishment [Jackson v. Bishop, 
supra]. Thus, there is ample precedent for re­
quiring the State to demonstrate a legitimate 
basis for the punishment imposed. Moreover, 
punishments far less severe and final than that 
sought to be imposed here have been ruled viola­
tive of the Cruel and Unusual Punishment provi­
sion in the Constitution. See Jackson v. Bishop,



- 6 -

supra, cases cited at p.580.—■̂
Chief Justice Warren declared for four 

members of this Court in Trop. v. Dulles, 356 
U.S. 86,100, 78 S.Ct. 590 (1958):

"This Court has had little occasion 
to give precise content to the Eighth 
Amendment."

and, in observing that its contents were not 
fixed, commented,

" . . . [the Eighth Amendment] must draw
its meaning from evolving standards of
decency that mark the progress of a
maturing society." [Ibid,at 101; see
also Rudolph v. Alabama,supra, at p.889;
Jackson v. Bishop,supra, at 579.]

The Chief Justice finally noted that the basic
concept enshrined in the Eighth Amendment was

"nothing less than the dignity of man".
47 It stands to reason that if an adequate 
State interest is required to render conduct 
criminal, that an adequate State interest 
is needed to justify the punishment also.



-7-
Thus, although capital punishment has been 
regarded by this Court previously [Wilkerson 
v. Utah, 99 U.S. 130 (1878)] as not violative 
of the Cruel and Unusual Punishment clause, 
this society's maturation, attested to by 
the lack of a single execution since June 2,
1967, and the preservation of over 700 persons 
who are under sentence of death, commands that 
the question be considered anew.

The right of the State of California to 
punish those who commit murder is beyond question 
But since the infliction of the death penalty 
is grave and irremediable, it is essential that 
we examine those purposes of the criminal law 
deemed justifiable by that State (California) 
in penalizing those who perpetrate crimes,in 
order to ascertain whether the State can demon­
strate a "compelling interest" in retaining 
the death penalty for homicide.

It is clear that California does not 
regard vengeance or retribution as a permissible



- 8 -

basis for incarceration or execution. In re 
Estrada, 63 Cal.2d 740,745, 48 Cal.Rptr.172, 
176 (1966). As the Court stated therein: 

"There is no place in the scheme 
for punishment for its own sake, the 
product of vengeance or retribution."

[See Michael & Wechsler on"Criminal Law and 
Its Administration" (1940), pp.6-11; Note,55 
Col.L.Rev.,pp.1039,1052; see also, In re 
Anderson,supra, at 630.]

This leaves then, as the potentially 
proper functions of punishment, isolation, 
rehabilitation and deterrence. Of those, 
California has also ruled out deterrence as 
a permissible basis for administering the 
death penalty. As the California Supreme 
Court stated in People v. Love, 56 Cal.2d 720, 
731, 16 Cal.Rptr.,777,782-783 (1961),:

"Prosecutors have often stated 
that it is necessary swiftly and



-9-
severely to punish the guilty, and 
such statements have usually been con­
sidered within the bounds of proper 
argument . . .In the present case, however,
the prosecutor went beyond merely using 
severe punishment. He stated as a fact 
the vigorously disputed proposition 
that capital punishment is a far more 
effective deterrent than imprisonment.
The Legislature has left to the absolute 
discretion of the jury the fixing of the 
punishment for first degree murder. . .
There is thus no legislative finding, 
and it is not a matter of common know­
ledge, that capital punishment is or is 
not a more effective deterrent than im­
prisonment. Since evidence on this question 
is inadmissible, argument thereon by the 
prosecution or defense could serve no use­
ful purpose, is apt to be misleading, and'



II
- 10-

is therefore improper.
(See also, People v. Bickler,57 Cal.2d 788,793,
22 Cal.Rptr, 340 (1962); People v. Lane, 56 Cal.
2d 773,786, 16 Cal.Rptr.801 (1961); People v.
Kidd, 56 Cal.2d 759,770, 16 Cal.Rptr. 793 (1961).)

The body of authorities shattering the
myth that the death penalty acts as a deterrent
is enormous.!/ Suffice it to say, as in the
case of revenge, California has decided that the
death penalty is not warranted as a deterrent
to murder. Thus, the permissible foundations
for criminal penalties which remain are isolation
and rehabilitation. To state that a murderer
may be isolated from society through incarceration
57 Thorten Sellin, "Common Sense and The Death 
Penalty", Prison Journal, October,1932, p.12; 
Sutherland & Cressey, Principles of Criminology, 
(5th Ed.1955),pp.292-295; Karl F. Schuessler,
"The Deterrent Influence of the Death Penalty", 
Annals of the American Academy of Political & 
Social Science; 284:54-62, November, 1952. G.B. 
Void, "Can the Death Penalty Prevent Crime?",
The Prison Journal, October 1932,pp.3-8; Robert 
H. Dann, "The Deterrent Effect of Capital Punish­
ment" , Friends Social Service Series, Bulletin.
No. 29, 1935.



- 11-

is to state an evident tautology. And the 
number of criminals who are capable of being 
rehabilitated through the death penalty is 
none,^/ thus the State of California does not 
have a "compelling interest" in obtaining 
Petitioner's death.

Lest it be contended that execution is 
more economical— than life imprisonment, we 
summon forth the stern admonition of Mr. Justice 
Blackmun in Jackson v. Bishop, supra. In declar­
ing whipping to be violative of the Cruel and 
Unusual Punishment provision, he resolved that: 

"We are not convinced contrarily by 
any suggestion that the State needs this 
tool for disciplinary purposes and is 
too poor to provide other accepted means 
of prisoner regulation. Humane considera­
tions and constitutional requirements are 
not, in this day, to be measured or limited 
by dollar considerations or by the thickness

67 Even those persons having profound religious 
convictions must surely concede that the 
number of resurrections appears to be minimal.



- 12-

of the prisoner's clothing[at p.580.]—' 
Although it is clear that the State cannot justi­
fy killing members of its population to avoid 
a budget increase, the swelling number of 
prisoners on death row, the lengthy nature of 
appeals, etc., suggest that it is actually more 
expensive to execute a man than to incarcerate 
him for life..§/

It is also worthy of note that the State 
of California has little trouble expressing 
itself when it deems specified behavior deserv­
ing of the death penalty. For four separate 
crimes, the California legislature has dictated 
that result..9/ In other cases, the matter
is left up to the jury without guideposts to
77 It is not necessary here to detail the various 
arguments against the death penalty such as the 
State, the "omnipresent teacher", using the death 
penalty to cheapen the respect for human life.
8/ Herbert B. Ehrmann, "The Death Penalty and 
the Administration of Justice," Annals of the 
Academy of Political & Soc.ial Science, 284:73-84, 
November, 1952.
9/ Treason [Calif.Pen.Code§37] ; Perjury procuring 
an innocent's death [Calif.Pen.Code§128]; Train 
wrecking with bodily harm [Calif.Pen.Code §219], 
Assault by a lifer causing death of a non-inmate 
[Calif.Pen.Code§4500] .



-13-
make an appropriate determination Thus,
the State of California, which has survived 
without an execution since April 12, 1967, 
has not asserted a "compelling interest" in 
exacting a human life as the penalty for murder. 
As explained above, the purposes of the criminal 
law are satisfactorily effectuated by life 
imprisonment - a means less subversive to the 
right to live. California has shown no 
"compelling interest" which would warrant 
rendering Petitioner extinct.

107 Calif.Pen. Code §§190 and 190.1.



-14-
CONCLUSION

Petitioner's sentence of death should 
be reversed.

Respectfully submitted,
J/! <An

/-UCUt
y

/ A <rJ-LUKE McKISSACK
Amicus Curiae in support 
of Petitioner



APPENDIX

1



APPENDIX

California Penal Code, Section 190:
MURDER; PUNISHMENT; DISCRETION OF JURY 
Every person guilty of murder in the first 

degree shall suffer death, or confinement in 
the state prison for life, at the discretion 
of the court or jury trying the same, and the 
matter of punishment shall be determined as 
provided in Section 190.1, and every person 
guilty of murder in the second degree is 
punishable by imprisonment in the state prison 
from five years to life.

California Penal Code, Section 190.1:
SENTENCES OF DEATH OR IMPRISONMENT 
FOR LIFE; DETERMINATION: MINORS UNDER 18
The guilt or innocence of every person 

charged with an offense for which the penalty 
is in the alternative death or imprisonment 
for life shall first be determined, without 
a finding as to penalty. If such person has 
been found guilty of an offense punishable by
1 i f *=> i m n r i  c n r i m o n f -N ~ J T--



A-2
sane on any plea of not guilty by reason of 
insanity, there shall thereupon be further 
proceedings on the issue of penalty, and the 
trier of fact shall fix the penalty. Evidence 
may be presented at the further proceedings 
on the issue of penalty, of the circumstances 
surrounding the crime, of the defendant's 
background^and history, and of any facts in 
aggravation or mitigation of the penalty. The 
determination of the penalty of life imprison­
ment or death shall be in the discretion of 
the court or jury trying the issue of fact on 
evidence presented, and the penalty fixed shall 
be expressly stated in the decision or verdict. 
The death penalty shall not be imposed, however, 
upon any person who was under the age of 18 
years at the time of the commission of the 
crime. The burden of proof as to the age of 
said person shall be upon the defendant.

If the defendant was convicted by the court 
sitting without a jury, the trier of fact shall



A-3
be the court. If the defendant was convicted 
by a plea of guilty, the trier of fact shall 
be a jury unless a jury is waived. If the 
defendant was convicted by a jury, the trier 
of fact shall be the same jury unless, for 
good cause shown, the court discharges that 
jury in which case a new jury shall be drawn 
to determine the issue of penalty.

In any case in which defendant has been 
found guilty by a jury, and the same or 
another jury, trying the issue of penalty, 
is unable to reach a unanimous verdict on 
the issue of penalty, the court shall dismiss 
the jury and either impose the punishment for 
life in lieu of ordering a new trial on the 
issue of penalty, or order a new jury impaneled 
to try the issue of penalty, but the issue of 
guilt shall not be retried by such jury.



S T A T E  O F  C A L I F O R N I A

OFFICE OF THE ATTORNEY GENERAL

Uqjartnmtt of fcsttrr
S T A T E  B U I L D I N G .  L O S  A N G E L E S  9 0 0 1 2

217 Vest First St. 
August 27 > 1971

Luke McKissack, Esq.
64-30 Sunset Blvd., Suite 521 
Los Angeles, California 90028

R e : Aikens v. California 
68-5027

Dear Mr. McKissack:
In accordance with, previous oral 

representations made to you, respondent in 
the above matter hereby gives its consent 
to your filing a brief amicus curiae in this 
case.

RMG:jd

Very truly yours,
EVELLE J. YOUNGER, Attorney General

By
Deputy Attorney General

RONALD M. GEORGE

APPENDIX B-l

cc: Anthonv G. AmafaTrlflim Eon



STANFORD L A W  SCHOOL
S ta nfo rd , C a lifo rn ia  94305

August 30, 1971

AIR MAIL-SPECIAL DELIVERY

Luke McKissack, Esq.
6430 Sunset Boulevard, Suite 521 
Los Angeles, California 90028
Ij

re• Aikens v. California
O.T. 1971, No. 68-5027

|Dear Mr. McKissack:
i
i

Pursuant to Rule 42(2), I am pleased to conse 
on^behalf of petitioner Aikens to your filing a brie

£££.iae in this matter. I understand that you w 
be unable to have the brief filed cn the due date and 
no objection to its late filing.

Sincerely,

V
AGA:mh Anthony G. Amsterdam

Hi 3



STANFORD L A W  SCHOOL
S ta n fo rd , C a l ifo r n ia  04305

August 30, 1971

AIR MAIL-SPECIAL DELIVERY

Luke McKissack, Esq.
6430 Sunset Boulevard, Suite 521 
Los Angeles, California 90023
! • Aliens v. California 

O.T. 1971, No. 68-5027
■;Dear Mr. McKissack:

Pursuant to Rule 42(2), I 
on behalf of petitioner Aikens to 
amicus curiae in this matter. I 
be unable to have the brief filed 
no objection to its late filing.

ana pleased to consent 
your filing a brief 

understand that you will 
on the due date, and have

Sincerely,

AGA:mh Anthony G. Amsterdam