Motion to Vacate Order Staying Elections Issued by the District Court

    In  T h e

& t t p r m e  (Erntrt nf tfye United U t o e a

No,68-5027 ,

EARNEST J. AIKENS, JR.,
v. Petitioner

CALIFORNIA,
Respondent

No.69-5003,

WILLIAM H. FURMAN, 
v .

GEORGIA,

No.69-5030;

Petitioner

Respondent

LUCIOUS JACKSON, 
v .

GEORGIA,

JR, ,
Petitioner 

___ Respondent

On Writs of Certiorari to the 
Supreme Court of Georgia and 
Supreme Court of California

BRIEF AMICI CURIAE OF THE 
WEST VIRGINIA COUNCIL OF CHURCHES, 
CHRISTIAN CHURCH (DISCIPLES)

IN WEST VIRGINIA, and 
UNITED METHODIST CHURCH,
WEST VIRGINIA CONFERENCE

PAUL RAYMOND STONE,
Attorney for Amici 
1901 Huber Road 
Charleston, W.Va.



TABLE OF CONTENTS

Page

Statement of Amici Interest ......... 2

Argument

I. Capital Punishment is Cruel 
and Unusual punishment in the 
Sense, among other things,that 
its Imposition infringes the 
P r i s o n e r s 1 Religious Freedom 
in a manner which constitutes 
Mental Cruelty ............. .......  3

II. Other Bases of Mental Cruelty 
resulting from the Death 
Penalty .....................

Conclusion .......... ...................... 19

i



TABLE OF AUTHOR STIES
Page

Cases :

Founding Church of Scientology v. U.S.,U09
F.2d llii6 (DC Cir.1969) .................... . 5

Glenn r. Wilkinson, 309 F.Supp.iill(DC Mo.l9?0).. 3

Holt v. Sarver, 309 F. Supp 362(ED Ark.1970).... 19

In re Jenison, 375 US li* (1963)................. 18

Jackson v. Bishop, kOh F.2d571 (8thCir,1968)..15,1?

Jackson v. Bishop (Dist.Ct.opin.),268 F.Supp
80U (E.D. Ark.1967)...... ..................  16

NAACP v. Button, 371 US kl$ (1963).... . k

People v. Woody, 39h P.2d 813 (196U).......... 18

Robinson v. California, 370 US 660 (1962)..... 3

Sinclair v. Henderson, No.3002f>(Nov.l7,
1970-5th cir.)..... . 1?

aiarp v. Sigler, U08 F.2d 966(8th Cir.1969)... 3

axerbert v. Varner, 37k US 398 (1963)...... k,9,18

Solesbee v. Balkom, 339 US 9 (1950)........  15

State v. Gee Jon, 211 P.2d 676 (1923)....  17

Trap v. Dulles, 356 US 86 (1958)......... 7,8,11
U.S. v. Ballard, 322 US 78 (19UU)........  5,6
Weems v. U.S., 217 US 3U9 (1910) ...........  8

West Virginia State Board of Education v.
Barnette, 319 US 62U (I9h3)............. li

i i



TABLE OF AUTHORITIES 
(Continued)

Page
Constitutions;

Constitution of the United States,
First Amendment ..................... ...... 3

Other Authorities;
Bluestone and McGahee, "Reaction to Extreme 

Stress; Impending Death by Execution",
American Journal of Psychiatry, Nov. 1962.. 15

Crime in the United States (FBI-Uniform
Crime Reports),1959 through 1969 .......... 12

Harvard Law Review 83:1773 (June 1970).......  13

Jour.Crim.Law,Cr.& Police Science 60^|^9 ^

Lamott, "Chronicles of San Quentin-Ihe
Biography of a Prison" (McKay Publirising 
Company)- 1 9 6 1 ........ ................7,16,17

Marcus and Weissbrodt, "The Death Penalty 
Cases", 56 Calif. Law Rev.1268 et aeq.
(Aug.-Nov.1968)  ... ....... 17

New Testament (RSF), Luke 23*it3 ........... 10
Roper Opinion Poll, Feb.9, 1958 ...... U;
'Hie Death Penalty in America (Bedau, 1968) ... 13
Wisconsin Law Rev., Vol.1966,p.217 (1966) ... 18At pp.280,281

i i i



In The

SUPREME COURT OF THE UNITED STATES

October Term, 1970

No .68-5027,

EARNEST J. AIKENS, JR. 
v .

CALIFORNIA,
___________

Petitioner, 

Respondent.

WILLIAM H. FURMAN,
v . Petitioner}

GEORGIA,
Respondent.

No.69-5030.

LUCIOUS JACKSON, 
v .

GEORGIA,

JR. ,
Petitioner, 

Respondent.

On Writs of Certiorari to the 
Supreme Court of Georgia and 
Supreme Court of California

BRIEF AMICI CURIAE OF THE 
WEST VIRGINIA COUNCIL OF CHURCHES, 
CHRISTIAN CHURCH (DISCIPLES)

IN WEST VIRGINIA, and 
UNITED METHODIST CHURCH,
WEST VIRGINIA CONFERENCE



2

Statement of the Interest of Amici

The West Virginia Council of Churches
is an organization whose affiliate members 
represent all the major Protestant denom­
inations in the St at e,participating with the 
Roman Catholic Archdiocese of Wheeling; 
its Division of Life and Work is its arm 
in the Council's concern with major moral 
and social issues of our time. The West 
Virginia Council of Churches is on record 
with a strong stand against the imposition 
of capital punishment.

The Christian Action and Community- 
Service Department (of which counsel for 
the amici is a member) of the Christian 
Church (Disciples) in West Virginia, is 
the Church's action arm in its stand on 
moral issues in the secular world; the 
Disciples of Christ is the first major 
Protestant denomination having its origins 
in the United States. The World Convention 
of the Disciples of Christ has resolved 
strongly against capital punishment, as 
being morally defenseless.

The United Methodist Church has had a 
long history of involvement in helping 
solve America's problems; its Board of 
Social Concerns of the West Virginia Annual 
Conference represents it in the stand taken 
herein--which reflects the opposition,both 
state and national--of Methodists against 
the death penalty.

Consent of all parties has been secured 
for the submission of this amici curiae 
brief (letters thereof are filed with the 
Clerk of the Court).



3

ARGUMENT
i.

CAPITAL PUNISHMENT IS CRUEL AND UNUSUAL 
PUNISHMENT IN THE SENSE *AMONG OTHER THINGS, 
THAT ITS IMPOSITION INFRINGES THE PRISONERS1 
RELIGIOUS FREEDOM UNDER THE FIRST AMENDMENT 
IN A MANNER WHICH CONSTITUTES MENTAL CRUELTY

The First Amendment to the United States 
Const!tution, in addition to providing for 
freedom of speech 5 is the source of our 
precious heritage of religious freedom (in­
cluding the right to be free from unnecessary 
prohibitions on the exercise of our religion);

Congress shall make no law respecting 
an establishment of religion, nor 
prohibiting the free exercise thereof.
(emphasis supplied)

It is so wel1-settled, as not to require 
citation, that the foregoing is also a re­
straint on state action (as is the cruel and 
unusual punishment proviso, by operation of 
the Fourteenth Amendment').

It is conceded that there are limits on 
the right to exercise one * s religious be- 
11e f , but these limitations have heretofore

1 Robinson v. California, 370 U.S, 860 (1962)

2 Sharp v, Sigler, U08 F. 2d 966(8th C i r .1969) ; 
Journal of Criminal Law, Criminologys and 
Police Science 60:299 (Sept.1969). C f .Glenn 
v . Wilkinson,3 09 F .S u p p .All,H17,418 (DC,Mo. 
1970),but even in this case, it is noted,



4

been judicially applied--and , we submit, 
should continue to be appli ed--only to 
situations where the practice or the exer­
cise of the claimed religious right in some 
way interferes with a "compelling state 
interest"^ (e .g . , the safety or welfare of 
others, including considerations of prison 
discipline, etc.).

We respectfully submit that there cannot 
be a sufficiently-overriding state interest 
in perpetuating the death penalty when due 
regard is also taken of the right of a pris­
oner to the free exercise of his religion 
involved in his efforts--whi1e incarcerated 
--to seek his own spiritual salvation(or 
conversion experience), which is taught as 
fundamental by all of the major Protestant 
denominations, as well as in the Roman 
Catholic and other faiths. The "snuffing 
out" of the prisoner's life will deprive him 
of all further earthly opportunity to strive 
toward such salvation, even though knowledge 
of its attai nment--pri or to death --may not 
be the subject of absolute certainty (even 
St.Paul expressed a fear of being found 
"wanting", in the final analysis, based on 
his own scriptural assertions).

access to Catholic clergy and rites,which 
were theretofore not provided, were ordered 
by the court for the prisoner(who was on 
death r o w ) .

 ̂ Sherbert v. Verner3 374 U.S. 398,406(1963); 
NAACP V. Button, 371 U.S. 415,438(1963); West 
Virginia State Board of Education v. Barnette, 
319 U.S. 624,644 (1943 ) .



5

The state, in its provision for prison 
chaplains and allowance of devotionals ,etc ., 
has recognized some sort of obligation in re­
spect to the spiritual needs of its death row 
inmates by providing a limited amount of help 
to a prisoner in his efforts toward an exer­
cise of his religious beliefs; however, viewed 
in a critical light and with discerning judg­
ment, this activity on the part of the state 
is quite superficial and perfunctory when com­
pared with the actual spiritual needs of most 
of its death row inmates. There is no substi­
tute for the element of time (i.e., the right 
of the prisoner to be free from the premature 
ending of his life at the hands of the state, 
which also ends all his temporal efforts of 
continued striving toward spiritual progress 
in ultimately finding God); the killing in the 
execution chamber of unredeemed men represents 
one of the major evils inherent in capital 
punishment, and makes a mockery and travesty 
of our protestations--under the aegis of our 
major Fai ths--of the redemptive capacity of 
man (indeed, it is utterly inconsistent with 
one of our basic Christian tenets that any man 
is potentially salvageable . ...with the possible 
exception of those who have committed the so- 
called "unpardonable sin" of blasphemy against 
the Holy Ghost which is not a capital offense 
under the laws of any of our states!)

It is noted that the wisdom or logic under­
lying a particular religion--the free exercise 
of which is sought--!' s not a proper matter for 
the courts to impugn , absent any i nfri ngement 
on health or safety as a result thereof4 .

4 U.S. v. Ballard, 322. U.S. 78 (1944) ; see 
Founding Church of Scientology v. U . £>OJ4u9
F.2d 1146 (D.CoCir.1969).



6

A belief may be "incredible, if not prepos­
terous ̂ ....in respect to a claimed religious 
freedom.

It matters not whether the acquisition 
of salvation, or conversion, while still on 
earth and alive is sound doctrine~~theolog- 
cally speaki ng--or whether the truth is that 
we may all be given a "second chance" by a 
beneficent God in the hereafter; it would be 
considerably more spiritually palatable (and 
conducive to tranquility, rather than the in­
herently cruel state of mental anguish now 
suffered by death row inmates) were this 
beneficence to take the form of a favorable 
ruling by the U . S .Supreme Court. A favorable 
ruling would certainly be in consonance with 
the Eighth and Fourteenth Amendments (as a 
result of relief of the mental and spiritual 
cruelty due to the adverse psychological 
pressures involved in the formidable , permanent 
deprivation-through the execution of death-- 
of the First Amendment right to a continued 
opportunity to exercise religious efforts 
toward salvation). We submit that the word 
"free" in the First Amendment--whi1e not 
implying a right to be free from incarceration 
--clearly imports a right to seek one's salva­
tion free from any impending urgency and 
inhibition of one's religious thought processes 
as a result of the specter of the electric 
chair or gas chamber. Not only is the oppres­
sive (i ndeed ,pani cky) environment generated by 
these implements of execution--and their 
portent for ending the prisoner's life-- 
unconducive to the prisoner's effective effort 
toward spiritual salvation, but the awesome,
5 U 0S . v .Ballard,supra, at page 87.



7

imminent act of the executioner, as well, 
creates an almost insurmountable barrier to 
the necessary positive state of mind (i .e . , 
thoughts of love, charity, benevolence ,and 
graciousness, etc., rather than of hatred 
and malice, as naturally directed against 
society and particularly toward the state 
and its executioner by the prisoner when 6 
contemplating his imminent untimely doom).

It should be especially noted that mental 
cruelty is wi thi n the ambit of the cruel and 
unusual punishment concept. In Trop v . Dulles, 
356 U.S. 8 6, the Uni ted States Supreme Court 
held in 1 958 that psychological distress is 
covered by such concept, in holding a sentence 
of expatriation to be violative of such con­
stitutional pri ncipie .

6 Chronicles of San Quentin--The Biography 
of a Prison, Kenneth L a mo tt, 1961 (McKay 
Publishing Co.), p.231, contains a description 
of the effect which his impending execution 
was having on a Negro man named Robert 0. 
Pierce: " * * * he got a mirror fragment and
cut his throat as he kneeled to receive the^ 
Protestant chaplain*s last benediction 
As he was dragged into the death chamber, he 
said 'I’m innocent, God, you know I'm innocent. 
Please,Lord, I am.' After a moment, 'All right, 
God, if you want to let me go, I won't curse 
y o u . ' The blood from the gash in his neck was 
spreading over his white shirt as he was for­
cibly strapped into the chair. As the door was 
locked, the witnesses heard him scream, 'God, 
you son of a bitch, don't let me go like this.



8

The cruel and unusual punishment proviso 
of the Eighth Amendment is a fluid, dynamic 
concept that is responsive to changing times 
and conditions, and is not a static, fixed 
concept that means no more than that origi­
nally ascribed to it. The U.S. Supreme Court 
has acknowledged this important fact on more 
than one occasion; in commenting upon the 
elasticity of the cruel and unusual punish­
ment concept, the Court stated that it "must 
draw its meaning from the evolving standards 
of decency that mark the progress of a 
maturi ng society."?

The Supreme Court,in Weems v. U.S,, 217 
U.S. 349,378, a case involving the cruel and 
unusual punishment concept, stated as far 
back as the year 1910 that constitutional 
protection expands "as public opinion becomes 
enlightened by a humane justice." The Court 
in the cases at Bar is simply being asked to 
scrutinize capital punishment in all of its 
aspects of cruelty--in the light of modern 
knowledge and understanding concerning the 
circumstances and application of the death 
penalty--and, under our presently evolved 
standards of decency, to vitiate this inher­
ently cruel, and increasingly unusual, 
punishment in favor of the at least equal1y 
effecti ve deterrent, life imprisonment.

Indeed, the concepts previously discussed, 
as well as those hereinafter noted (not to 
foreclose others which the Court sua sponte 
may realistically envisage) will more than 
serve to counterbalance any claimed "compell­
ing interest" on the part of the state.

7 Tvop v. Dulles, supra, at pages 100,101.



9

The "compelling interest" on the part of 
the state which needs to be shown in just­
ification of the deprivation of a basic 
constitutional right was the subject of the 
Supreme Court's decision in Sherbert v. 
Verner, supra, and a long line of cases 
--both before and after Sherbert--vihi ch not 
only involved basic religious freedom,but 
other constitutional rights,as well.

Mental cruelty having been shown to be 
within the scope of the basic constitutional 
right to be free from the infliction of 
"cruel and unusual punishment" in the Eighth 
Amendment (operative on the states through 
the Fourteenth Amendment), the question is 
posed: What could be more cruel than.depriv­
ing prisoners--most of whom are oriented in 
the prevailing tradition of spiritual salva­
tion attainable only before death--of the 
opportunity to realize the most important 
goal of all? It matters not, from a legal 
standpoint, whether such goal is attainable 
in an individual case--were the prisoner to 
live out the balance of his natural life, 
unfettered by the hand of the executioner-- 
or, for that matter, whether such goal is 
still attainable after death (as some believe 
to be a possibility), the crucial fact is 
that it constitutes mental cruelty of the 
worst sort to deprive a prisoner (by the 
premature ending of his life by the state) 
of the tranquility inherent in the knowledge 
that his available t i m e--i n which he can 
continue to seek his Deity, within the frame­
work of his own religious heritage--is not 
going to be cut short!



10

Although the Scriptures note that "the 
wages of sin is death" (meaning death of 
the soul, of course, as all must die a 
physical death), it is possible for some 
to be expiated in the "twinkling of an 
eye" (as was the thief on the Cross, St. 
Dismas, who was told by Jesus, "Truly,I say 
to you, today you will be with me in Para­
dise"^). It is respectfully submitted that 
it is not asking too much of the Court to 
assume that countless death row inmates 
will not be so fortunate in so short a time 
(as was the case of the prisoner on the 
third cross .')

It may be argued, in the case of atheis­
tic or agnostic death row inmates, that 
equal protection concepts would preclude 
the Court's acceptance of this religious 
cruelty facet of Eighth (and Fourteenth) 
Amendment concepts, on the ground of 
preferential treatment; however, the cruel 
and unusual punishment proviso must be 
weighed in terms of its actual effect on a 
substantial number of death row inmates (if 
found to constitute cruel and unusual punish­
ment in such case, equal protection under 
the Fourteenth Amendment would dictate 
according irreligious condemned men the 
right to life also....certai nly the latter 
need the benefit of a continued right to 
life as much as anyone if our own basic 
religious heritage in this country--which so 
strongly emphasizes sal vageabi 1 i t,y--i s to 
be given any meaning at all!)

New Testament (Revised Standard Version), 
Luke 23:43



n

H .

OTHER BASES OF MENTAL CRUELTY 
RESULTING FROM THE DEATH PENALTY

There are many other reasons whereby, 
under the circumstances obtaining in these 
cases, the imposition of the death penalty 
is causative of mental anguish--and ,hence, 
mental cruelty. As noted hereinbefore, 
mental cruelty is substantially within the 
ambit of the cruel and unusual punishment 
prohibition. See Trap v. Dulles3 supra, at 
pages 101 , 1 0 2.

Capital punishment has a particularly 
invidious nature, because it is unfair and 
unjust in its imposition and application.
It generates highly aggravated feelings of 
mental anguish (hence, mental cruelty) on 
the part of condemned men who, for the most 
part, are from 1 ess-favored ethnic and socio­
economic groups in our country (the condemned 
men in these cases at Bar are each Negro; 
they are all poor, as witnessed by this^ 
Court's permission for them to proceed in 
forma pauperis).

For the condemned prisoner who knows that 
he is the subject of invidious discrimination 
as a member of a disfavored ethnic or socio­
economic group whose members (as the prisoners 
herein) receive a disproportionately large 
share of death sentences, compared to the 
general population, capital punishment is thus 
also promotive of a special kind of mental 
suffering (far over and above that generated 
by fear of execution alone in those decidedly 
few condemned persons of relatively higher 
soci al strata ) !



12

Also promotive of mental anguish is the 
prisoner's realization that his death is 
really useless, and accomplishes nothing, 
as a deterrent to serious crime9 . A careful 
survey of the FBI Uniform Crime Reports 3 for 
the years 1959 through 1969 (1970 figures 
were not available at the time this brief 
was prepared, such figures being released 
in mid-August of the year following the re­
ported year) most decidedly shows that 
capital punishment is no deterrent to capital 
crime. These significant statistics show that 
the State of Georgia (in which the prisoners 
Furman and Jackson were given the death sent­
ence) has had a markedly higher murder and 
non-negligent homicide rate than that of an 
abolition State, Wisconsin, the latter State 
haying similar population (as well as popul­
ation density) character!'stics--the latter 
factor being the presently-recognized factor 
in causality having the most important sig­
nificance to the incidence of serious crime. 
Perhaps of even greater significance is a 
comparison of the rates of serious crime of 
the two largest cities in these respective 
States (Atlanta visavis Milwaukee) which are 
quite revealing in showing a virtually over­
whelming difference in the murder and non- 
negl igent homicide rates (Atlanta ,wi th a 
population similar to that of Milwaukee, 
having a markedly higher rate!) The same 
phenomenon is again noted when comparing 
South Dakota (having capital punishment) 
with its near perfect counterpart, North 
Dakota (which does not have capital punish­
ment)! The Court should take judicial notice

9 Crime in the United States (FBI Uniform 
Crime Reports), 1959-1969



13

of all the factors relevant to capital pun­
ishment, including the best available stat­
istics (which show clearly that the death 
penalty does not deter capital crime), as 
former Justice Arthur Goldberg urged'®. The 
Court, in viewing such statistics, may be 
tempted to conclude that capital punishment 
is an inducement to the commission of capital 
crime in many instances. Actually, when one 
carefully compares the best available data, 
as between abolition and non-abolition states 
having similar characteristics (population 
density ,etc .) , one finds many more instances 
of lower serious crime rates in abolition 
states--in cases where there is any appreciable 
di fference at all.

Former Justice Goldberg, as noted, indicated 
a duty of the Court to consider all available 
data in respect to the indication that capital 
punishment is disproportionately and, hence, an 
excessi vely severe puni shment in relation to 
its ostensible social effect (i.e., its assumed 
deterrence , etc .)

Bedau, in his notable work, The Death Penalty 
in America (1968), which includes Professor 
Thorsten Sellin's findings, as well as those of 
other experts in this field, notes that capital 
punishment has been so found; the basis of the 
best available evidence (and we should decidedly 
use what we have, even though it does not attain 
the degree of precision necessary to a chemical 
equation) clearly shows that capital punishment 
is no deterrent to capital crime11.

^® Harvard Law Review, 83:1773 (June 1970).

In Bedau's work, page 284, Dr. Sellin states
"Anyone who carefully examines the * data is



14

The inmates of death row--at least through 
the "jailhouse 1awyers"--are well aware of 
the fact that capital punishment does not 
deter capital crime which, It is respectfully 
submitted, is more than a considerable source 
of additional mental anguish for death row 
i inma tes ,

It is not at all comforting, either, to 
note that Roper!s opi ni on polls--i n showing a 
myriad of up and down changes in public sent­
iment about capital punishment-showed that 
a majority of Americans was opposed to the 
death penalty on February 9, 1958 . In the 
latter connection, it is also noteworthy that 
a large majority of this world's civilized 
governments--other than Communist countries 
and dictatorships-- have abolished capital 
puni shment f

It is also substantially promotive of men­
tal angui sh--hence , mental cruelty--for the 
condemned prisoner who knows that his death 
will extinguish all legal rights, including 
all future rights flowing from evolved con­
cepts of due process J *, when the condemned 
man compares his own situation with that of 
a fellow-prisoner who is under a life sent­
ence for the same type of crime (the latter 
person maintains a continued right to release 
if facts showing innocence are uncovered, or 
at least a right to a new trial in the event 
of future changes in legal concepts applic­
able to his case (for example. In respect to 
the changing law as to invalidity of con”
bound to arrive at the conclusion that the 
death penalty,as we use it,exercises no in­
fluence on the extent ***of capital crimes.

Due process rights follow the prisoner12



15

victions because of changing legal concepts 
as to whether a confession--strenuously 
objected to at trial, but admitted anyway-- 
was really involuntary).

It is also a source of considerable men­
tal anguish to the condemned man,in compar­
ison to the situation where life imprison­
ment is the sentence, because of the fact 
that an inordinate amount of mental suffer­
ing will visit his loved ones--family and 
relati ves--wi th the resulting social stigma 
(irrespective of the peer group from which 
such may emanate) which ordinarily will 
require more than one generation to "live 
down"!

All of the foregoing are but few of the 
many facets of extreme mental cruelty in­
volved in the imposition and carrying out 
of the death penalty.

Moreover--and of extremely important 
significance--is the fact that the death 
row environment is causative of severe 
psychosis, and other types of mental ill­
ness'? Many adverse psychotic symptoms were 
noted in article based on a study in this 
respect by Dr. Harvey Bluestone and Carl 
L. McGahee,"Reaction to Extreme Stress: 
Impending Death by Execution"3 published 
in the American Journal of Psychiatry, 
November ,1 962. Additionally of significance 
in showing the callousness of those respon­
sible for executing the death sentence--and 
note the valid, common law precept that no 
insane man is to be executed--is the case 
through the prison walls •,Jackson v .Bishop, 
i+04 F . 2d 571,576 (8th Cir.1968 ).

13 Sotesbee v.Balkom,339 U.S. 9,14 (1950),



16

of a condemned man in the California prison 
at San Quentin, which is described in the 
work of Lamott in his Chronicles of San 
Quentin--The Biography of a Prison (David 
McKay C o . ,I n c . , 1961), at page 229:

"Not long ago one condemned man 
had to undergo two series of electric 
shock treatments before he was judged 
to be sufficiently in touch with 
reality to be killed" (by lethal gas)

What of this man's mental condition prior 
to this formidable electric shock treatment? 
If he was in fact insane, which the above 
indicates to be the case, the state has no 
business of trying to "jack him up" hurried­
ly so that he can immediately undergo a 
horrible death by hydrogen cyanide. It 
should also be especially noted that the 
lower Federal court in Jackson v. Bishop3 
268 F.Supp. 804 (E.D. Ark.1967) held that 
the use of an electric shocking device in 
prison to punish inmates is violative of 
the cruel and unusual punishment provision 
of the Eighth Amendment (in connection with 
such prohibition, any electric shocking 
device which causes convulsions and un~ 
consciousness--which occur during electric 
shock treatment of insane persons--should 
be likewise enjoined, particularly if its 
end result is an immediate execution in the 
gas chamber!)

dissenting opinion, Frankfurter,!.
It was reported in the press that the 

last victim of California's gas chamber 
had attempted suicide prior to his exec­
ution; suicidal ideation,in psychiatric 
parlance, is practically a determinative 
indicium of severe mental illness.



17

Capital punishment also generates an over­
whelming amount of mental angui sh--hence, mental 
cruelty--in the prisoner's anticipation of form­
idable physical pain involved (the physical pain 
itself,of course, being intrinsically cruel).Two 
authors of the leading law review article "The 
Death Penalty Cases" in 56 Calif. Law Rev.1268 
(1968) noted what appears to be an inordinate 
amount of prolonged consciousness (hence,pain) 
in the executions of two of America's most fa­
mous felons (at pages 1339 and 1341 thereof).
It is also noteworthy that these authors imply 
strong agreement with one of your a m i c i ’s basic 
underlying premises in the first part of this 
brief that capital punishment infringes reli­
gious freedom rights of a prisoner who i_s_ or 
who might become religious (page 1363).

In the case of Jackson v . Bisho-p,it is also 
extremely significant that the court,speaking 
through then-Circuit Judge Blackmun, found cor­
poral punishment to violate constitutional 
proscriptions against cruel and unusual punish­
ment. A fortiorari the considerably more harsh, 
tremendously more painful, execution of death 
should be abolished, using similar considerations 
It is noted that corporal punishment was not 
held to be violative of the cruel punishment 
concept several generations ago when such proviso 
was formulated (a judicial abrogation of capital 
punishment now accordingly appears more than ad­
equately warranted!)

Capital punishment, by electrocution or by 
gas ‘ 7 is fraught with the possibility of further 
cruelty by unbridled administrative prerogative 
in its application. Although electrocution often 
results in a cruel burning (literally) of the 
prisoner, lethal gas may also constitute a hor­
rible method of prolonged suffering/5The death 
row environment is also being scrutinized by the 
5th Circuit {Sinclair v. Henderson, Nov 17,1970; No .30025)

P. 2d 676 ( 1 923 )
Chronicles of San Quentin,supra,page 228.



18

This Court has heretofore acknowledged 
an obligation to thoroughly consider and 
evaluate--free from the judicial strictures 
of yesteryear--al1 the relevant factors and 
circumstances (including many of those not 
theretofore thought to be judicially cogni­
zable) in a determination of whether or not 
a "compelling state interest" exists for a 
particular puni shment. The Uni ted States 
Supreme Court in In re Jenison,375 U.S. 14 
(1 963) --a case i nvolvi ng a woman's
refusal to perform service on a jury (due 
to the proscription in the Sermon on the 
Mount, "Judge not, that you be not judged") 
-- remanded the matter to the state court 
for further consideration in the light of 
Sherbert v. Verner, supra.

The California appel1 ate court has also 
acknowledged that a "compel 1i ng state int- 
eresf'must be shown before a particular 
puni shment can be held consti tutional b .

The opinions articulated by another 
commentator,that there must be a compel 1i ng 
state i nterest shown when the validi ty of 
a 1 aw or regulation is in question, are 
also worthy of note .

Capital puni shment is utterly devoid of 
any rehabilitative value. Its carrying out 
--within the prison setting--also stif1es 
efforts of the authorities to rehabi1i tate 
prisoners incarcerated for other than capital 
offenses, because of i ts implied admission 
of failure to rehabilitate and its manifest 
di sregard for the sanctity of human life.

^  People v. Woody3394 P.2d 813 (1964)
17 wigoon&in Law Review Vol. 1966 3 p.280 

et seq.



19

Dr,Sheldon Glueck, the noted Harvard 
penologist, condemns capital punishment 
for its adverse consequences on otherwise 
valid rehabilitative efforts as to those 
prisoners not under a death sentence, by 
stating that the death penalty "bedevils 
the administration of criminal justice and 
is the stumbling block in the path of 
general reform in the treatment of crime 
and criminals". In Bolt v. Sarver} 309 
F.Supp.362 (E , D. Ark.1 970), a Federal court 
held that the entire penitentiary system of 
Arkansas was violative of cruel and unusual 
punishment concepts, noting that an effect­
ive plan of rehabiTitation--which was 
1acki ng--i s necessary to constitutional 
validity.

CONCLUSION

The Court is respectfully requested to 
use its inherent power of judicial notice, 
in gathering to itself al1 of the relevant 
facts which bear on the physical and mental 
cruelty of the death penalty. It is submit­
ted that the nature of capital punishment, ■ 
and the formidable circumstances and burdens 
attendant thereupon, render it unconsti­
tutional in violation of the proscription 
against cruelty (including mental cruelty 
resulting from the imminent deprivation of 
religious freedoms). For the foregoing 
reasons, the amici urge that the judgments 
below be reversed, thus letting God work 
his natural, benevolent purposes in this 
world f

Respectfu11y submitted,

Paul Raymond Stone, 
Attorney for Amici

D a te d:A u g .25,1971 1901 Huber Road
Charleston, W.Va.