Aikens v. California Brief of Amici Curiae

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Suprem e C o u rt of tfje Untteii S ta te s
October T erm , 1971

No. 68-5027

ERNEST JAMES AIKENS, JR.
v.

CALIFORNIA

BRIEF OF AMICI CURIAE

SUBMITTED BY
NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE 

UNITED STATES OF AMERICA
AMERICAN FRIENDS SERVICE COMMITTEE
BOARD OF SOCIAL MINISTRY, LUTHERAN CHURCH IN 

AMERICA
CHURCH OF THE BRETHREN, GENERAL BOARD
COUNCIL FOR CHRISTIAN SOCIAL ACTION OF THE UNITED 

CHURCH OF CHRIST
DEPARTMENT OF CHURCH IN SOCIETY OF THE 

CHRISTIAN CHURCH (DISCIPLES OF CHRIST)
THE RT. REV. JOHN E. HINES, PRESIDING BISHOP OF THE 

EPISCOPAL CHURCH IN THE UNITED STATES
GENERAL BOARD OF CHRISTIAN SOCIAL CONCERNS OF 

THE UNITED METHODIST CHURCH
GREEK ORTHODOX ARCHDIOCESE OF NORTH AND SOUTH 

AMERICA
THE AMERICAN ETHICAL UNION
THE UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES 

OF AMERICA BY MRS. RALPH M. STAIR, MODERATOR AND 
WILLIAM P. THOMPSON, STATED CLERK OF THE GENERAL 
ASSEMBLY

NATIONAL CATHOLIC CONFERENCE FOR INTERRACIAL 
JUSTICE

NATIONAL COALITION OF AMERICAN NUNS
W illard J. L assers 

11 S. LaSalle Street 
Chicago, Illinois 60608 

and
E l m e r  H e r t z

120 S. LaSalle Street 
Chicago, Illinois 60603 

Attorneys for Amici

The Scheffer Press, Inc.—Andover 3-6850



TABLE OF CONTENTS 
BRIEF OF AMICI CURIAE

PAGE

Introduction ...... ...................................................... 1
Summary of Argument.......................................... .......  9
Argument ........................................................................ 10
I. The Punishment of Death is Cruel and Unusual .... 10

The moral conflict of the scrupled ju ro r ..........  13
The tria l: the role of chance.............................. 14
The trial: subjective determinations ................ 15
The voluntariness of confessions ..................... 17
Shifting judicial rules, substantive and proce­

dural ..................     20
Recent death penalty cases in this court: due

process aspects ..............................................  22
Prosecution suppression of evidence favorable 

to accused .......................................................  25
The four cases at ba r: due process aspects......  27
The death penalty and suicide............................  28
The condemned man, the wait and the execu­

tion ........................   29
Summation ...........................................................  31

Appendix
Policy Statements Opposing the Death Penalty Adopted 
by Amici and other Religious Organizations.

National Council of the Churches of Christ in the 
United States of America ..........      la



11
PAGE

TABLE OF CONTENTS
American Baptist Convention .................. ................... 3a
Lutheran Church in America......................................... 4a
Christian Churches (Disciples of Christ) .................  6a
Church of the Brethern ..............................................  7a
Mennonite Church .........    8a
The Methodist Chuch ........................ ..... .....................  8a
The Protestant Episcopal Church in the United States 

of America ..... ............................ .............. ...... .......■ • 9a
Union of American Hebrew Congregations.................  9a
Central Conference of American Rabbis ..................... 10a
United Synagogue of America ........................... ........ 10a
Unitarian Universalist Association ............................  11a
United Church of Christ ......................................... Ha
The United Presbyterian Church in the United States 

of America ........................................ .......... ....... 13a
National Catholic Conference for Interracial Justice .. 13a
The National Coalition of American Nuns .................  14a

Cases

Alcorta v. Texas, 355 U.S. 28 (1957) .........................  16
Application of Kapatos, 208 F. Supp, 883 (N.Y., 

1962) ...........................................................................  27
Ashley v. Texas, 319 F. 2d 80 (CA 5th 1963), cert, 

den., 375 U.S. 931 (1963) ........................................... 26
Barbee v. Warden, 331 F. 2d 842 (CA 4th, 1964) ......  26
Bernette v. Illinois, ......  U.S.........., 39 L. W. 3566

(June 28, 1971) .....................................  24,25



Ill
PAGE

Brady v. U. S., 397 U.S. 742 (1970) ..........................  13
Brady v. Maryland, 373 U.S. 83 (1963) ..................... 26
Chessman v. Teets, 354 U.S. 156 (1957) .......... ........... 20
Ciucci v. Illinois, 356 U.S. 571 (1958) ..................... 21
Comm. v. Chester, 337 Mass. 702, 150 N.E. 2d 914 

(1958) .........................................................................  28
Crampton v. Ohio.......... U.S........., 29 L. ed. 711

(1971) ...........     22,23
French v. State, 377 P. 2d 501 (Okla,, 1967), 397 P.

2d 909 (1963), 416 P. 2d 171 at 178 (1966) ............ 29
Giles v. Maryland, 386 U.S. 66 (1967) ........................ 19
Hunter v. Tennessee,..... . U.S......... (June 28, 1971) .. 24
Labat v. Bennett, 365 F. 2d 698 (CA 5th, 1966) ....... 19,31
Levin v. Katzenbach, 363 F. 2d 287 (D.C. Cir. 1966) .. 27
Maxwell v. Bishop, 398 U.S. 262 (1970) ............... . 22
Maxwell v. Bishop, 393 U.S. 997 (1968) ..................... 23
Maxwell v. Bishop, 385 U.S. 650 (1967) ..................... 23
McGautha v. California, ......  U.S......... , 29 L. ed. 2d

711 (1971) ................................................   22,23,27
McMullin v. Maxwell, 3 Ohio St. 2d 160, 209 N.E. 2d 

449 (1965) ..............    27
Miller v. Pate, 386 U.S. 1 (1967) ................................ 26
Moore v. 111. cert. gr. June 28, 1971 ........................  25
North Carolina v. Alford, 400 U.S. 25 (1970) ..........  13
People v. Bernette, 30 111. 2d 359, 197 N.E. 2d 436 

(1964) ...........    25
People v. Bernette et al., 45 111. 2d 227, 258 N.E. 2d 

793 (1970) ..... ............ .................... ........................... 25



IV

PAGE

People v. Chessman, 38 Cal. Kept. 2d 166 at 192, 338 
P. 2d 1001 (1959) ...................................................... 21

People v. Daniels, 71 Cal. 2d 1119, 80 Cal. Kept. 897,
459 P. 2d 225 (1969) .................................................. 21

People v. Golson, 32 111. 2d 398, 207 N.E. 2d 68 at 75 
(1965) .........................................................................  21

People v. Mutch, 93 Cal. Kept, 721, 482 P. 2d 63 
(March 24, 1971) ..................     21

People v. Tajra, 58 111. App. App. 2d 479, 208 N.E.
2d 9 (1965) ...............................    25

People v. Wilson, 29 111. 2d 82, 193 N.E. 2d 499 
(1963) .........................................................................  13

Pixley v. State, 406 P. 2d 662 (Wvo., 1965) .............. 29
Beeves v. Peyton, 384 U.S. 312 (1966) ..................... 28
State v. Giles, 245 Md. 342, 227 Atl. 2d 745 (1967) .... 19
Tajra v. Illinois, ......  U.S........., 39 L. W. 3566 (June

28, 1971) ....................................................................  24
Townsend v. Sain, 372 U.S. 293 (1963) ........................  17
Turner v. Ward, 321 F. 2d 18 (CA 10th, 1963) ......  26
U. S. ex rel Almeida v. Baldi, 195 F. 2d 815 (CA 3rd, 

1952), cert. den. 345 U.S. 904 (1953) ..................... 26
U. S. ex rel Butler v. Maronev, 319 F. 2d 622 (CA 

3rd, 1963) ..............................'.....................................  26
U. S. ex rel Meers v. Wilkins, 326 F. 2d 135 (CA 2d, 

1964) ...................        96
U. S. ex rel Montgomery v. Ragen, 86 F. Supp. 382 

(1949) .........     27
U. S. ex rel Smith v. New Jersey, 322 Fed. 2d 810 

(CA 3rd, 1968) ........................................................... 18
U. S. ex rel Smith v. Yeager, 395 Fed. 2d 245 (CA 

3rd, 1968) ............................    19



PAGE

U. S. ex rel Thompson v. Dve, 221 F. 2d 763 (CA 3rd, 
1955), cert, den., 350 U.S. 875 (1955) ..................... 26

U. S. ex rel Townsend v. Twomev, 322 F. Snpp. 158 
(1971) ............................................................ ............  18

Williams v. Illinois, 342 U.S. 934 (1952) ..................... 28
Witherspoon v. Illinois, 391 U.S. 510 (1968) ..........13, 22

S tatutes

111. Rev. Stats. (1971) C. 38, §§ 3-3(b) and 4 ........    22
111. Rev. Stats. (1953) C. 38, §769.1 ............................  28
111. Rev. Stats. (1951) C. 38, §§769 and 769.1.............  27

Other A uthorities

Bedau, The Death Penalty in America C. 6, p. 258 .... 10
Chicago Sun Times, June 9, 1971, p. 18 .....................  19
Chicago Tribune, April 13, 1967, Sec. 1, p. 8 .............. 30
Gallagher, Thomas, Invitation to a Killing (N.T. 

Herald Tribune, February 7, 1965) ........................  30
Gottlieb, Capital Punishment, 15 Crime and De­

linquency (1969) .......................................................  30
Jesse ed. Trials of Timothy John Evans et al ..........  11
MacNamara, Convicting the Innocent, 15 Crime and 

Delinquency 57 (1969) ...............    12
Mochulsky, Dostoevsky, His Life and Work, 140 

(Princeton U. Press, 1967) .....................................  31
New York Times, Dec. 30, 1969 ...............................  19
New York Times, July 23, 1971, p. 31 ......................... 30
New York Times, May 5, 1971, p. 41 ......................... 30
New York Times, July 6, 1967, p. 27 .........................  19



VI

PAGE

New York Times, April 13, 1967, p. 13 ..................... 30
New York Times, October 19, 1966, p. 19 .............. 11
Statistical Abstract of the United States, 1951, Table 

74> P- 69 ......................... ................................ ...... .....  20
Statistical Abstract of the United States, 1970, Table 

220 ............................................................................................. . 20
Sellin, The Death Penalty (1959) .......... .....................  29
Wiseman, Psychiatry and Law, “Use and Abuse of 

Psychiatry in a Murder Case.” American Journal of 
Psychiatry, October 1961, p. 289 ................... ..........  28



I n  T h e

SUPREME COURT OF THE UNITED STATES 
O c t o b e r  T e r m , 1971

No. 68-5027

ERNEST JAMES AIKENS, JR.
V.

CALIFORNIA

BRIEF OF AMICI CURIAE

SUBMITTED BY
NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE 

UNITED STATES OF AMERICA
AMERICAN FRIENDS SERVICE: COMMITTEE
BOARD OF SOCIAL MINISTRY, LUTHERAN CHURCH IN 

AMERICA
CHURCH OF THE BRETHREN, GENERAL BOARD
COUNCIL FOR CHRISTIAN SOCIAL ACTION OF THE UNITED 

CHURCH OF CHRIST
DEPARTMENT OF CHURCH IN SOCIETY OF THE 

CHRISTIAN CHURCH (DISCIPLES OF CHRIST)
THE RT. REV. JOHN E. HINES, PRESIDING BISHOP OF THE 

EPISCOPAL CHURCH IN THE UNITED STATES
GENERAL BOARD OF CHRISTIAN SOCIAL CONCERNS OF 

THE UNITED METHODIST CHURCH
GREEK ORTHODOX ARCHDIOCESE OF NORTH AND SOUTH 

AMERICA
THE AMERICAN ETHICAL UNION
THE UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES 

OF AMERICA BY MRS. RALPH M. STAIR, MODERATOR AND 
WILLIAM P. THOMPSON, STATED CLERK OF THE GENERAL 
ASSEMBLY

NATIONAL CATHOLIC CONFERENCE FOR INTERRACIAL 
JUSTICE

NATIONAL COALITION OF AMERICAN NUNS

INTRODUCTION
The above religious organizations, by their attorneys, 

Willard J. Lassers and Elmer Gertz, file this brief amici 
curiae in support of petitioner. Petitioner and respondent 
have consented to the filing of this brief.



The religious organizations represent as follows:
The legal arguments on behalf of petitioner will be pre­

sented by his counsel. There are, however, a number of 
ethical considerations of deep concern to the religious or­
ganizations. Most of these organizations formally have 
taken stands in opposition to capital punishment. In the 
appendix to this brief we include the formal statements 
of amicus National Council of the Churches of Christ in 
the United States of America, other amici religious organi­
zations and other denominations. We note additionally 
that the World Council of Churches at its International 
Conference at Addis Ababa on January 10-21, 1971, de­
clared,

“Recent events in many countries have compelled us to 
think especially about capital punishment.

“We are convinced that one significant expression, at 
this time of history, of the belief of the Christian Church 
in the sanctity and dignity of human life would be the 
promotion of common and concerted efforts towards the 
abolition of capital punishment.”

Amici desire to present views somewhat different from 
that of petitioner and other amici. These views they think 
will contribute to a more complete understanding of the 
case.

This brief while formally submitted in Aikens v. Cali­
fornia, No. 68-5027, is relevant also to the three companion 
cases, Furman v. Georgia, No. 69-5003, Jackson v. Georgia, 
No. 69-5030, and Branch v. Texas, No. 69-5031. We shall 
refer to these eases in this brief.

The National Council of the Churches of Christ in the 
United States of America is a federation of 33 national



— 3 —

denominations with an aggregate membership of about 
42,000,000. Among them are several Eastern Orthodox 
bodies and several predominantly black denominations. 
The amici other religious organizations have a total mem­
bership exceeding 26,400,000 (a portion of which is in­
cluded among the 42,000,000 just mentioned).

The amici a re :

1. NATIONAL COUNCIL OF THE CHURCHES OF 
CHRIST IN THE UNITED STATES OF AMERICA

The National Council of the Churches of Christ in the 
United States of America is a federation of thirty-three 
national denominations with an aggregate membership of 
approximately 42,000,000. Among them are several East­
ern Orthodox bodies and several predominantly black de­
nominations. The National Council of Churches is govern­
ed by a General Board of 250 members made up exclusive­
ly of representatives of the member denominations propor­
tionate to their size and support and chosen according to 
their own respective procedures. In September, 1968, the 
General Board adopted a policy statement urging the 
abolition of the death penaltj^, by a vote of 103 for, 
0 against, and 0 abstaining.

2. AMERICAN FRIENDS SERVICE COMMITTEE
The American Friends Service Committee has, since 

1917, engaged in religious, charitable, social, philanthropic 
and relief work on behalf of the several branches and divi­
sions of the Religious Society of Friends in America. 
There are approximately 123,000 Friends in the United 
States. The American Friends Service Committee, al­
though it cannot speak for all Friends, has a vital interest 
in this litigation because of Friends’ historic and continued 
opposition to the taking of human life by the State. Such



— 4 —

opposition to capital punishment goes back more than 300 
years, to the beginning of the Quaker movement and stems 
from Quaker belief that there is an element of the divine 
in every man.

3. BOARD Or SOCIAL MINISTRY, LUTHERAN 
CHURCH IN AMERICA

The Board of Social Ministry is an instrumentality of 
the Lutheran Church in America. Its object is “to inquire 
into the nature and proper obedience of the church’s minis­
try within the structures of social life . . . devoting itself in 
particular to those aspects of the church’s ministry in 
which individual and social needs are met as an expression 
of Christian responsibility for love and justice.”

The 1966 biennial convention of the Lutheran Church 
in America adopted a social statement on capital punish­
ment urging abolition of capital punishment. The Lutheran 
Church in America has 3,300,000 members in 6,225 congre­
gations in the United States and Canada.

4. CHURCH OF THE BRETHREN GENERAL 
BOARD

The Church of the Brethren General Board is the ad­
ministrative arm of the Church of the Brethren. It carries 
out policies adopted by the church’s legislative arm— 
Annual Conference—in the areas of world ministries, par­
ish ministries and general services. Among its world min­
istries are efforts to correct social injustices at home and 
abroad. The Church of the Brethren lias adopted policy 
statements opposing capital punishment on several occa­
sions, the last one being in 1959 at the Annual Conference. 
The Church of the Brethren has 200,000 members in ap­
proximately 1,000 churches.



— 5 —

5. COUNCIL FOR CHRISTIAN SOCIAL ACTION 
OF THE UNITED CHURCH OF CHRIST

The Council for Christian Social Action is an instru­
mentality of the United Church of Christ devoted to pro­
moting education and action in international, political and 
economic affairs. The Council stated its position in oppo­
sition to capital punishment in a policy statement of Janu­
ary 30, 1962. The United Church of Christ has over 2,000,- 
000 adherents.

6. DEPARTMENT OF CHURCH IN SOCIETY OF 
THE CHRISTIAN CHURCH (DISCIPLES OF 
CHRIST)

The Department of Church in Society of the Division 
of Homeland Ministries is a part of The United Christian 
Missionary Society, a national unit of the Christian Church 
(Disciples of Christ). The Christian Church has approved 
two resolutions on capital punishment in its International 
Convention. The first resolution, approved in October 
1957 at Cleveland, Ohio, stressed the need for rehabilita­
tion of criminals and indicated that “the practice of capital 
punishment stands in the way of more creative, redemptive 
and responsible treatment of crime and criminals. The 
second, “Concerning Abolition of Capital Punishment,” 
was approved in the October 1962 Assembly of the Inter­
national Convention at Los Angeles, California. This reso­
lution specifically placed the Christian Church (Disciples 
of Christ) on record as “favoring a program of rehabilita­
tion for criminal offenders rather than capital punish­
ment.”

The Christian Church (Disciples of Christ) in the Unit­
ed States and Canada has a membership of 1,600,648.



7. THE RT. REV. JOHN E, HINES,
PRESIDING BISHOP OF THE EPISCOPAL 
CHURCH IN THE UNITED STATES

The Presiding Bishop is the president of The Domestic 
and Foreign Missionary Society of The Protestant Epis­
copal Church in the United States of America which has 
7,464 parishes and missions, 11,772 ordained clergy and 
3,475,164 baptized members. The Episcopal Church at its 
1958 General Convention adopted a resolution in opposi­
tion to the death penalty.

8. GENERAL BOARD OF CHRISTIAN SOCIAL 
CONCERNS OF THE UNITED METHODIST 
CHURCH

The General Board of Christian Social Concerns is an 
instrumentality of the United Methodist Church. Its pur­
pose is to further the works of the church in the sphere 
of social affairs. The United Methodist Church at its 1960 
General Conference adopted a statement opposing the 
death penalty. The statement was revised in 1964 and is 
now part of United Methodist Social Policy. The United 
Methodists number 11,000,000 members among their 38,000 
churches which are situated in every state.

9. GREEK ORTHODOX ARCHDIOCESE OF 
NORTH AND SOUTH AMERICA

The Greek Orthodox Church expresses the belief that 
every person should be afforded every opportunity to 
establish his innocence. If he is found guilty, he should 
be afforded every opportunity to present what evidence 
he can to mitigate his guilt. The Greek Orthodox Church 
consists of 500 parishes, largely in the United States and 
Canada, and some in Central and South America. The 
membership of the Church is 1,500,000.



•— 7 —

10, THE AMERICAN ETHICAL UNION
The American Ethical Union is a federation of the Ethi­

cal Culture Societies and Fellowships in the United States, 
which, collectively constitute a liberal religious humanist 
fellowship known as the “Ethical Movement” or the “Ethi­
cal Culture Movement,”

The first Ethical Culture Society was founded in New 
York City in 1876 by Dr. Felix Adler. There are today 24 
Societies and Fellowships of the American Ethical Union 
in ten states and the District of Columbia. The American 
Ethical Union is a member of the International Humanist 
and Ethical Union, a world-wide organization, with head­
quarters in Utrecht, The Netherlands. Religious humanists 
oppose the death penalty. The American Ethical Union 
has adopted policy statements calling for its abolition, and 
Members and Leaders (Ministers) of Ethical Culture So­
cieties have been active and, in many instances, in the fore­
front of organized efforts to have the death penalty 
abolished throughout the United States.

11. THE UNITED PRESBYTERIAN CHURCH IN 
THE UNITED STATES OF AMERICA BY MRS. 
RALPH M. STAIR, MODERATOR AND 
WILLIAM P. THOMPSON, STATED CLERK 
OF THE GENERAL ASSEMBLY

The United Presbyterian Church adopted a statement 
condemning the death penalty at its 171st general assembly 
in 1959 and adopted a revised statement at the 177t,h Gen­
eral Assembly in 1965.

The United Presbyterian Church in the United States of 
America has a membership of 3,100,000. It has 8,662 
churches throughout the nation.



12. NATIONAL CATHOLIC CONFERENCE FOR 
INTERRACIAL JUSTICE

The National Catholic Conference For Interracial Jus­
tice is a service agency formed in 1960-61 out of the 
Catholic Interracial Council movement. It is an indepen­
dent “lay” agency, not an official Church agency, though it 
is recognized by the Church and maintains close relation­
ships with official national Roman Catholic agencies, with 
the leaders and structures of many local dioceses, and with 
a large number of religious orders of men and women.

Much of the energy of the Conference is devoted to mov­
ing the Catholic community more deeply into the struggle 
for interracial justice, and for the disadvantaged, and into 
cooperative work with other denominations and secular 
agencies. The Conference initiated, organized and served 
as secretariat for the historic 1963 National Conference 
on Religion and Race, involving some 70 denominational 
groups.

The Conference offers specialized services in the fields 
of employment (Project Equality), education, urban ser­
vices and is initiating a new project in the field of religious 
ministries to the police. It serves over 150 human relations 
and urban service organizations sponsored by the Roman 
Catholic community.



— 9 —

13, THE NATIONAL COALITION OF 
AMERICAN NUNS

The National Coalition of American Nuns is an organi­
zation of Roman Catholic Sisters whose purpose is to 
study and speak out on issues related to human rights and 
social conscience. The coalition was established in July, 
1969. It numbers 1,937 sisters.

SUMMARY OF ARGUMENT
The death penalty is a cruel and unusual punishment 

because of the inherent fallibility of every judicial pro­
ceedings. There is the possibility of the execution of an 
innocent man. Every stage and every aspect of the judi­
cial proceedings reveal the wrong we do when we take 
human life by judicial process: we permit the defendant 
to plead and bargain with his own life as a counter; we 
force a scrupled juror to consider a penalty he disavows. 
The outcome of a trial sometimes depends on chance fac­
tors such as the availability and admissibility of evidence; 
life or death may depend on determination of complex 
subjective questions such as motive or the voluntariness 
of a confession. The judicial rules, substantive and pro­
cedural, are shifting: men have been executed on the 
basis of rules shortly changed. The death penalty some­
times is employed as a form of suicide; thus, instead of 
decreasing murder, it may increase it. The treatment of 
the condemned man, the wait, the setting of death dates 
and granting of stays all inflict unbearable torture. The 
execution itself is ghastly.

The evils of the death penalty are not remediable. They 
are inherent and can end only with the end of capital 
punishment.



—  10 —

ARGUMENT

I.
THE PUNISHMENT OF DEATH IS CRUEL 

AND UNUSUAL
The religious organizations support petitioners in the 

case at bar and three companion cases. In view of the cer­
tiorari grant, the religious organizations will consider pri­
marily the impact of the death penalty upon the individual.

Its impact upon society we shall mention only inciden­
tally. Yet we should note that some of the most telling ar­
guments against capital punishment stress its negative so­
cial effects. Study after study has shown that it fails as a 
deterrent.1 The death penalty is a costly waste of money, 
because it protracts trials, increases the number of appeals 
and increases custodial expense. It corrodes and brutalizes 
society. Some aspects of this process we shall touch on.

We assert that the death penalty for any crime is cruel 
and unusual punishment within the meaning of the Eighth 
Amendment. We focus on the death penalty for murder, 
but our arguments apply generally with equal force to the 
death penalty for rape and other crimes.

In brief compass our contention is that life ought not to 
stand forfeit upon human judgments. Such judgments are 
necessarily fallible. This proposition we think is true at 
every level of the judicial process: the defining of capi­
tal crimes, the making of factual determinations, the weigh­
ing of subjective factors such as motive, capacity and men­
tal status. No judge and no jury is without bias; no judi­
cial proceedings exempt from flaw.

1 For representative studies, see Bedau, The Death Pen­
alty in America, Chap. 6, p. 258, et seq. (hereafter “Be­
dau”).



— 11 —

We shall review pending and recent cases, not primarily 
for the legal principles they enunciate, but for the lessons 
they teach regarding the limitations of the judicial process 
and of man himself.

Our thesis does not rest simply on the argument often 
cited for abolition of the death penalty—the possibility of 
judicial error. I t is, of course, beyond cavil that a man 
wrongly condemned has suffered cruel and unusual punish­
ment. We need not speculate, moreover, on the possibility 
of such a fearful miscarriage of justice: it has occurred.

On March 9, 1950, Timothy John Evans was hanged in 
London for the murder of his wife and baby, his appeal to 
the Court of Criminal Appeal having been dismissed (Feb­
ruary 20, 1950). A witness against him was his landlord, 
John Reginald Christie. In 1953, the bodies of Mrs. Chris­
tie and several others were found on the premises. Christie 
was convicted of the murder of Mrs. Christie and hanged.

Doubts immediately arose as to the guilt of Evans.1 On 
October 18, 1966, Queen Elizabeth II granted Evans a post­
humous pardon.2

Ordinarily, following an execution, there is no longer sus­
tained interest in a case. If an injustice has been done, it is 
beyond recall. The legal remedies for post death exonera­
tion are ill-defined. Hence, there are but few cases of official

1 For the transcript of both trials, see Trials of Timothy 
John Evans and John Reginald Hcdliday Christie, Jesse 
ed., Notable British Trials (Hodge and Co., Ltd., 1957). 
The judgment of the Court of Criminal Appeal in Rex v. 
Evans appears at p. 297. Christie did not appeal.

2 New York Times, October 19, 1966, p. 19, Col. 3.



12

recognition of judicial error. Nonetheless, there is exten­
sive literature regarding wrongful convictions in both capi­
tal and noncapital cases.1 If we continue executions, doubt­
less we shall again put to death innocent men.

But our argument is more comprehensive. We think it 
cuts deeper, that it reveals the inherent limitations of the 
judicial process, particularly in capital cases. Let us look 
to the various stages and aspects of the criminal trial to 
explore more fully its pernicious effect.

The very existence of the death penalty gives the prose­
cution an enormous advantage. Often, in exchange for a 
plea of guilty, the prosecution will drop a demand for a 
death sentence. The defendant faces a fearful choice: shall 
he hazard his life to seek acquittal? Yet the defendant 
usually does not know precisely the strengths or the weak­
nesses of the prosecution’s ease, and, consequently, lacks 
full knowledge necessary for an informed decision. Even 
if we had full pre-trial discovery in criminal proceedings, 
as we do in civil proceedings, the defendant would not be 
in a position to predict with precision the outcome of the 
trial. The outcome of every trial is uncertain.

For the defendant to make a “rational” decision when he 
bargains with the prosecution, the issue is not whether he is 
in fact “innocent” or “guilty” but rather what is the proba­
bility that he will be found guilty or not guilty. Thus, the 
innocent defendant cannot afford to dismiss the negotiating 
process without taking a cold and calculating look at the 
strength and weakness of his case as it wdll be viewed by 
the court and jury. The defendant who is “guilty”’ must do 
the same. And so must the defendant who does not know

1 See MaeNamara, Convicting the Innocent, 15 Crime and 
Delinquency 57 (1969).



13

whether he is “innocent” or “guilty”. (Thus, suppose a 
possible defense of mental incompetency or self defense.) 
The defendant may be called upon to make a crucial deci­
sion even though woefully ill-equipped to do so.

The death penalty is for some, not a punishment for 
murder, but a punishment for refusing to plead guilty to 
murder.1

Indeed, there is the grim possibility that a prosecutor 
who threatens to ask for the death penalty as a device to 
obtain a plea of guilty may feel forced to make such a de­
mand if the defendant insists upon trial. In such case the 
death penalty may be sought not because the prosecutor 
feels that it is appropriate, or that he wishes it, but as an 
unfortunate concomitant of an unsuccessful negotiating 
session.

"We are aware of the decisions in North Carolina v. Al­
ford, 400 U.S. 25 (1970) and Brady v. U.S., 397 U.S. 742 
(1970) upholding pleas of guilty against claims that they 
were induced by fear of the death penalty. The Eighth 
Amendment question here at bar, however, was not there 
before this Court. The defendants there did not receive 
death sentences. Here, the broader issue, in light of the 
certiorari grant, is the death penalty as such. Its use as a 
coercive tactic to obtain guilty pleas, and its imposition 
where the defendant declines to plead guilty and hazards 
trial, present issues different from Alford and Brady,

The moral conflict of the scrupled juror. We move to the 
jury selection stage of the trial. The decision of this Court 
in Witherspoon v. Illinois, 391 U. S. 510 (1968) bars exclu-

1 In Illinois we are aware of but one case in recent years 
where a capital sentence was imposed upon a plea of guilty, 
People v. Wilson, 29 111. 2d 82, 193 N E 2d. 499 (1963). 
Wilson was not, however, executed.



— 14

sion of veniremen simply because they have conscientious 
scruples against the death penalty. Assuming that such 
prospective jurors are not removed by peremptory chal­
lenge by the prosecution, such jurors are faced with a moral 
dilemma of substantial proportions. In what circum­
stances should they lay aside their scruples in order to en­
tertain or impose a punishment which they think morally 
wrong?

We point up this dilemma not to criticize Witherspoon. 
Many of the religious organizations participating in this 
amicus brief participated as amici in Witherspoon. We 
think that a jury selected by the Witherspoon standard is a 
fairer jury than one selected by the former rule. It does 
not, however, contain a full cross section of the public, 
since it excludes those with fixed and unchangeable scruples. 
Moreover, when a Witherspoon jury is composed wholly or 
partly of those holding scruples less fixed, a death verdict 
will be returned only where scruples are overcome.

The trial: the role of chance. We turn to the evidentiary 
phase of the criminal trial. A criminal trial is a search for 
the truth, but a stylized search conducted pursuant to rules. 
In the generality these rules operate insofar as possible to 
secure reliable, trustworthy evidence. But the very rule that 
operates to the advantage of one defendant can work to the 
disadvantage of another who may be on trial for his life. 
Assume a defense of alibi. If the alibi witness dies before 
trial, the defense collapses. If the witness lives, but hap­
pens himself to have a criminal record, his credibility may 
be destroyed and no doubt the alibi defense will fail.

Much may depend upon whether crucial evidence has 
been preserved and whether it is still available to counsel 
for the defense. This in turn may depend upon how soon 
after the crime counsel was obtained or it may depend upon



15 —

sheer matters of chance. In the fairest of trials fortune 
plays a large role, favoring now the prosecution and noAV 
the defense. Given the most skilled and diligent attorney, 
the most learned and fairest of judges, the most able of 
juries, the outcome of a criminal trial may nonetheless be 
determined by the fall of chance.

In civil litigation the parties have full opportunity to ex­
plore, in advance of trial, the opposite party’s case. In 
criminal trials, while the scope of discovery has expanded 
recently, it is generally less extensive. The defendant may 
be informed of the witnesses who may be called, but often 
has no way to compel them to reveal in advance what their 
testimony may be. True, the law directs the prosecution to 
reveal evidence favorable to the accused. But unless the 
defendant learns of the suppressed evidence by fortuitous 
events, these rules are difficult to enforce.

In the battle, the state has a full range of technical and 
scientific resources. The defendant usually is granted no 
such assistance.

Today, skilled representation is rarely enough. Success­
ful defense often requires not only skilled counsel, but also 
a corps of pathologists, chemists, physicians and other ex­
perts, if a crime is to be thoroughly explored and a full de­
fense presented. Yet the state usually provides none of this 
for the accused. The facts generally must be dug out by 
counsel.

The trial: subjective determinations. The determination 
of “objective facts” in a trial is a baffling undertaking. Ad­
ditionally, nearly every trial requires a determination of 
the subjective mental state of the accused, sometimes as 
to several issues. We know so little of the science (or art) 
of making such a determination that life should not stand 
forfeit through them.



— 16

Let us consider a case in this Court, Alcorta v. Texas. 
355 U. S. 28 (1957). Alcorta came upon his wife one eve­
ning in a parked car kissing Castilleja. Alcorta killed his 
wife. The ease came up under the law of Texas, under 
which, if Alcorta was guilty of murder without malice (a 
murder arising from “a sudden passion from an adequate 
cause”), the maximum penalty was five years. The jury, 
however, found Alcorta guilty of murder with malice. The 
sentence was death. The jury sat in judgment essentially 
on a subjective issue: What was Aleorta’s reaction to the 
scene in the car? Or, perhaps more precisely, what should 
have been the limits of his reaction had he been a reason­
able man? The issue was decided unfavorably to Alcorta. 
The difference was not only the difference between life and 
death, but the difference between a relatively mild sentence 
and death. Was the jury aware fully of the social group in 
which the Alcortas lived? Was Mrs. Alcorta’s conduct re­
garded as heinous in that group? We do not know; we do 
not know whether the jury knew.

There is another element in the case: At the trial Alcor­
ta testified that he had reason to believe that his wife had 
been intimate with Castilleja. Such testimony of course 
raises a new area of inquiry. How “reasonable” were Al- 
corta’s suspicions? In the actual ease it turned out that 
Castilleja had informed the prosecution that he had in fact 
been intimate with Mrs. Alcorta and accordingly Alcorta’s 
suspicions were well founded. This fact was not presented 
to the court and jury and, indeed, Castilleja denied having 
any more than a casual relationship with Mrs. Alcorta. Be­
cause of this act of deception, Alcorta’s conviction was up­
set by this Court.

The Alcorta jury was asked to make not an objective but 
a subjective determination. Subjective determinations take



17

a myriad of forms: Suppose, for example, a defense of 
justification. What is a “reasonable belief” that force was 
necessary in self defense? The defense of insanity and the 
defense of incapacity to form a specific intent are other il­
lustrations.

The question of subjective determinations may be viewed 
from another perspective. The Commandment is “Thou 
shalt not kill.” But not all who kill are equally culpable. 
The law establishes gradations of homicide. These grada­
tions are variously phrased from state to state (“degrees” 
of murder, etc.). Similarly, there are various defenses, like­
wise variously described. The law necessarily compresses 
these gradations and defenses into a few categories. But 
the circumstances of life are manifold, the causes of each 
homicide as complex as human personality itself.

The voluntariness of confessions. Determining the volun­
tary character of a confession, of course, requires a subjec­
tive determination. A jury is asked to judge in the quiet of 
the court room the effect of a given interrogation upon a 
man whom they do not know. They learn of him as a 
person only through the testimony of partisan witnesses, 
given under the stress of trial relating to events which 
almost invariably are hotly disputed. Consider the case 
of Charles Townsend. He was first arrested on a murder 
charge on January 1, 1954 and has been incarcerated con­
tinuously since then. He has been on death row for 16 
years, 4 months (since April 7, 1955). His case is now 
the oldest case in the nation. Counting from his first 
arrest, it is probably the longest capital case in American 
history (17 years, 7 months). His ease was last in this 
Court in 1963 (Townsend v. Sain, 372 U.S. 293).

Townsend was convicted of murder and sentenced to 
death by the Criminal Court of Cook County. Characteriz-



— 18

ed by the prosecution as a near mental defective, he was 
arrested one evening and soon began to sutler withdrawal 
symptoms. A prison physician administered scopolamine, 
a drug commonly known as “truth serum.” Within an hour 
and a half after the administration of this drug Townsend 
confessed to four murders and two robberies. He was tried 
for one murder and acquitted. He was then tried for the 
second murder and sentenced to death. The evidence of his 
guilt, apart from the confession, was simply that one Camp­
bell testified that about the middle of December (the 
murder took place on December 18, 1953), he saw Town­
send walking down the street in the vicinity of the murder 
with a brick in his hand. A pathologist testified that death 
was caused by a severe blow to the head of the deceased. 
The Supreme Court of Illinois affirmed the conviction de­
spite the meagerness of the evidence. Two dissenting jus­
tices declared the testimony inherently incredible. Town­
send, through counsel serving without fee, then sought re­
lief in the federal court charging that the state suppressed 
the fact that the drug scopolamine, which its witnesses re­
ferred to as hyoseine, was known as truth serum. After 
numerous appellate proceedings, this Court directed that 
the District Court give Townsend a hearing.

Further litigation ensued. Only this year, the District 
Court, for a second time, set aside Townsend’s conviction 
and ordered his release on bond. U. 8. ex rel Townsend v. 
Twomey, 322 F. Supp. 158 (1971). (The Seventh Circuit 
has stayed the bond release order.)

The second oldest case on death row is the case of Edgar 
Smith. Smith ^vas sentenced to death on June 4, 19'57, for 
the murder of a 14 year old girl. For years he fought 
vigorously in the courts to set aside his conviction. (For 
unsuccessful attempts, see U. S. ex rel Smith v. New Jer-



— 19 —

sey, 322 Fed. 2d 810 (CA 3rd, 1963) and V. S. ex rel Smith 
v. Yeager, 395 Fed. 2d 245 (CA 3rd, 1968). (Judge Biggs 
dissented from the denial of a plenary hearing and Judge 
Freedman from the denial of a rehearing en banc. The 
course of the litigation is traced in 395 Fed. 2d at 247).

On June 8, 1971, the United States District Court for 
New Jersey, after a plenary hearing, overturned the convic­
tion. Smith was ordered released on bond (Chicago Sun 
Times, June 9, 1971, p. 18). The Third Circuit, on an 
expedited appeal, affirmed the order setting aside the 
conviction, but declined to release Smith on bond.

Perhaps the State will seek certiorari. The merits of the 
case need not concern us. What must give us pause is that 
after 14 years a court has ruled that Smith was unjustly 
convicted. Had he been executed, the error could not have 
been righted.

The District Courts in both Townsend and Smith entered 
bond release orders. These orders illustrate another aspect 
of the death penalty: Once a defendant wins the right to 
a retrial, his case often is seen in a new perspective. The 
crime itself is no longer viewed as one warranting the death 
penalty, or the quantum of evidence of guilt seems di­
minished. Other illustrations: James V. Giles and John G, 
Giles, not long after the decisions of this Court (Giles v. 
Maryland, 386 U.S. 66 (1967)) and the Maryland Court of 
Appeals, State v. Giles, 245 Md. 342, 227 Atl. 2d 745 (1967) 
were ordered released on $10,000 bail pending retrial. (N. 
Y. Times, July 6, 1967, p. 27). Edgar Labat and Clifton A. 
Poret, sentenced to death for rape in 1953, won a retrial. 
Labat v. Bennett, 365 Fed. 2d 698 (CA 5th 1966). In 1969, 
they pleaded guilty to aggravated rape and were sentenced 
to the 16 years, 9 months already spent on death row. (N. 
Y. Times, December 30, 1969).



We have emphasized the subjective elements of every 
trial. We do not wish to rule out subjective determinations 
in criminal trials. There is a difference recognized by the 
law and recognized by mankind generally between a homi­
cide committed as the law used to say, “with malice afore­
thought” and a homicide committed innocently or negligent­
ly or even recklessly. Surely different punishments are in 
order for these various crimes. But we say, questions of 
human motivation, responsibility, ability to withstand in­
terrogation, effects of narcotics and alcohol upon the human 
system, etc., are matters of extraordinary complexity. 
Medicine generally, and psychiatry in particular, have been 
able to supply only a feeble light in some areas of these 
problems. We can, it seems to us, in good conscience recon­
cile ourselves to the necessity for the resolution of these 
questions as best they can be resolved by a court or by a 
jury. Such resolution is necessary as part of the price of 
human society. But we are tragically in error when we rest 
decisions of life and death upon these fallible judgments. 
We exact a price from the individual which society does 
not. need for its protection.

In past years, with unconscious irony, but in light of 
what we have said, not without justification, the Govern­
ment used to classify executions among the accidental 
deaths. (See Statistical Abstract of the United States, 
1951, Table 74, p. 69, Footnote 12 for 1900, 1910 and 1920.). 
Today they are classified among “homicides” by the United 
States Public Health Service. (Statistical Abstract of the 
United States, 1970, table 220, p. 145).

Shifting judicial rides, substantive and procedural. We 
turn to another area: shifting judicial concepts of the capi­
tal crime. The Caryl Chessman case is an illustration. (For 
a procedural aspect of the case, see Chessman v. Teets,



21

354 U. S. 156 (1957)). Chessman was sentenced to death 
not for murder—he killed no one—but for “kidnapping” 
during an armed robbery in which the victim suffered bodi­
ly harm.

The Supreme Court of California declared that, “It is the 
fact, not the distance, of forcible removal which constitutes 
kidnapping . . .” (People v. Chessman, 38 Cal. 2d 166 at 
192, 338 P. 2d 1001 (1959)). Nine years after Chessman was 
executed in 1960, the Supreme Court of California dis­
affirmed this construction of the statute (■People v. Daniels, 
71 Cal. 2d 1119, 80 Cal. Kept. 897, 459 P. 2d 225 (1969). 
For the latest development see People v. Mutch, 93 Calif. 
Kept. 721, 482 P. 2nd 63 (March 24, 1971).

For an analogous shift in the law, but procedural, rather 
than substantive, consider the ease of Vincent Ciueei. The 
state alleged that Ciucci shot his wife and three children in 
order to marry another woman. The state elected not to 
try Ciucci for all four murders simultaneously. Instead he 
was first tried for the murder of his wife for which he re­
ceived a sentence of twenty years. He was then tried for 
the murder of one child for which he received a sentence 
of 45 years. Not until he was tried for the murder of the 
second child did he receive the death penalty, the goal 
sought at the beginning by the state. This Court in a five 
to four decision declared that under Illinois law each mur­
der was a separate crime for which Ciucci constitutionally 
could be indicted and tried separately. (Ciucci v. Illinois, 
356 U.S. 571 (1958)). Ciucci was executed in 1962.

Not long afterward the Supreme Court of Illinois dis­
approved the practice challenged in Ciucci. People v. Gol- 
son, 32 111. 2d 398, 207 NE 2d 68 at 75 (1965).

Indeed, even before the execution of Ciucci, Illinois, in 
1961, adopted a criminal code requiring that all offenses



—  22

known to the prosecuting officer must he prosecuted in a 
single prosecution. Illinois Rev. Stats. (1971) C.38, <§§ 
3-3 (b), and 3-4). (See the comment of the Joint Commit­
tee to Revise the Illinois Criminal Code which appears after 
Section 3-3 in Smith-Hurd Illinois Statutes Annotated).

Recent death penalty cases in this court: due process 
aspects. In recent years this Court has had before it four 
cases challenging procedural aspects of capital cases. With­
erspoon v. Illinois, 391 U. S. 510 (1968); Maxwell v. Bishop, 
398 U.S. 262 (1970); McOautha v. California, 29 L. ed. 2d 
711 (1971) and Crampton v. Ohio, 29 L. ed. 2d 711 (1971). 
Every one of these cases raises grave due process ques­
tions apart from the issues presented in this Court.

Consider Witherspoon. In 1963, when the Illinois Su­
preme Court upheld Witherspoon’s death sentence, it 
granted the request of his court appointed attorney to be 
relieved of further responsibility. Witherspoon thus was 
facing the chair with substantial legal channels still open 
and a right to seek clemency, but without a lawyer. This 
Court declined a request to appoint counsel. Witherspoon 
applied to the Illinois Supreme Court to appoint counsel. 
It promptly did so but the 90 days allowed by law for cer­
tiorari had expired. Witherspoon obtained other counsel 
who conducted a protracted battle in his behalf. After these 
attorneys had exhausted their efforts, Witherspoon, still 
under sentence, from his prison cell wrote his own petition 
which he mailed to the Federal District Court. The District 
Court appointed counsel to represent him. They success­
fully carried the case here. This Court declared Wither­
spoon’s death sentence indeed unlawful and ultimately the 
Supreme Court of Illinois reduced the sentence to a prison 
term.

For Maxwell, it was a substantial struggle to obtain the 
right to appeal from the denial of Federal habeas relief



23

and to stave off execution long enough for the case to be 
heard.

The District Court denied a certificate of importance and 
a stay of the execution then set for September 2, 1966. The 
Court of Appeals declined to grant a certificate or a stay. 
Mr. Justice White granted a stay late in the evening on 
September 1. During the October Term, 1966, this Court 
ordered the Court of Appeals to consider the ease. It did 
so but denied relief. (See 385 U. S. 650 (1967), 398 Fed. 
2d 138 at 140 (1968)). Ultimately the case reached this 
Court (393 U. S. 997 (1968)) raising the two questions later 
to be decided in McGautha and Crampton. This Court, 
however, did not pass upon those issues, but rather remand­
ed the case to the lower courts for resolution of Wither­
spoon questions.

In McGautha there is a question whether McGautha or 
his co-defendant, Wilkinson, fired the fatal shot. (Me- 
Gautha, 29 L ed. 2d at 715). The Courts below appear to 
have resolved this issue against McGautha and evidently 
on this basis Wilkinson received a prison term, whereas 
McGautha received the death penalty. Suppose, however, 
as McGautha claims, the Courts are wrong? Suppose that 
Wilkinson fired the fatal shot but falsely accused McGautha 
in order to save himself?

The Crampton case is an incredible story. Crampton 
spent years in prison. In September 1967 Crampton’s wife, 
because of bis amphetamine addiction, bizarre behavior, 
and knife threats to her, persuaded him to commit himself 
to a state mental hospital. In November, 1967, a state hos­
pital physician noted on the chart: “Prognosis: Guarded. 
Dangers and Warnings: Under stress, patient could be 
dangerous to his wife.” (R. p. 20 in Crampton, 0. T. 1970, 
No. 204). Nonetheless, wdthin a month he was sent home on



24 —

Christmas furlough. He overstayed the furlough. Ap­
parently the authorities did not bother to pick him up. He 
threatened his wife; the police picked him up but released 
him. By January 17, 1968, he had murdered his wife. Yet 
a. defense of insanity was rejected. What measure of re­
sponsibility does the state bear for the death of Mrs. 
Crampton?

Near the end of the last term this Court set aside the 
death sentences and remanded for reconsideration several 
cases in light of Witherspoon. Some of these cases too are 
profoundly disturbing apart from Witherspoon questions.

Witherspoon itself declared that it was retroactive. 
Several capital defendants had eases on appeal to the Su­
preme Court of Tennessee. They sought to raise Wither­
spoon, but the 90 days then allowed by statute for filing 
bills of exceptions had expired. The Supreme Court of 
Tennessee affirmed the convictions without considering 
Witherspoon, even though it promulgated a constitutional 
rule. Apparently there was no way to raise the issue in the 
Tennessee Courts. Upon amendment of the statute, this 
Court, on certiorari, remanded for reconsideration, Hunter 
v. Temessee, ......  U.S.........  (June 28, 1971).

In Tajra v. Illinois and Bernette v. Illinois, ......  U.S.
......  39 L. W. 3566 (June 28, 1971) Martin Tajra and
Herman Bernette were indicted for murder. It was the 
state’s theory that Tajra had provided Bernette with a 
gun and sent him to carry out a robbery. Bernette entered 
the premises and in the course of the robbery committed a 
murder. Tajra and Bernette were tried separately. Tajra, 
sentenced to a prison term, appealed to the Illinois Ap­
pellate Court. Bernette was sentenced to death. On appeal 
to the Supreme Court of Illinois that Court reversed and 
remanded Bernette’s conviction for various trial errors.



25

People v, Bernette, 30 Til. 2d 359, 197 N E 2d 436 (1964). 
On Tajra’s appeal to the Illinois Appellate Court, that 
Court held that since the same errors had occurred in 
Tajra’s trial as in Bernette’s, he too was entitled to a new 
trial. People v. Tajra, 58 111. App. 2d 479, 208 N E 2d 9 
(1965).

On the second trial, Tajra was sentenced to death. This 
conviction was appealed to the Supreme Court of Illinois 
which did not exercise its power to reduce the sentence to 
a term of years. People v. Bernette et ah, 45 111. 2d. 227, 
258 N E 2d 793 (1970).

Bernette, ..... U.S....... , 39 L. W. 3566 (June 28, 1971),
a black, is a mental defective. Sometime after his convic­
tion he became mentally ill and since January, 1968, has 
been confined in an institution for the mentally ill. None­
theless, the Supreme Court of Illinois about 18 months 
after he had been removed to a mental hospital affirmed 
his conviction for murder. No note was taken, apparently, 
of the fact that he had been in a mental, institution, nor 
did the Supreme Court exercise its prerogative to reduce 
the sentence. People v. Bernette, 45 111. 2d 227, 258 N E 2d 
793 (1970).

Prosecution suppression of evidence favorable to accused. 
The Lyman Moore case now before this Court on certiorari 
Moore v. Illinois (cert. gr. June 28, 1971 No, 69-5001) is 
an instance where the prosecution was aware of but failed 
to reveal to defendant evidence favorable to him. Moore, 
now under sentence of death for murder, was arrested for 
the crime some months after it took place. In the interim 
the police sought one “Slick” who had boasted of the murder 
to a bartender shortly after the crime. The bartender in­
formed the police that prior to the boast, he had seen 
“Slick” at a time when the defendant was in a Federal



prison. Yet this information was never revealed to defense 
counsel. Had this information been revealed, the bartend­
er’s identification of the defendant as “Slick” would have 
been shaken. This fact, coupled with substantial evi­
dence that at the time of the murder Moore was at work 
in a distant portion of the Chicago area might have meant 
acquittal. (See further the amicus brief filed by present 
counsel in the Moore case).

It seems almost past belief that the prosecution would 
suppress evidence favorable to an accused in a criminal 
case. Yet there have been repeated instances of such prac­
tice even in capital cases. See e.g. Miller v. Pate, 386 U. S. 
1 (1967). (False representation of paint stains on shorts 
as blood) Brady v. Maryland, 373 TJ. S. 83 (1963). (State­
ment of accomplice that he, not defendant, had shot deceas­
ed); U. S. ex rel Thompson v. D'ye, 221 F 2d 763 (CA 3rd 
1955), cert, den., 350 U. S. 875 (1955). (Officer testified that 
defendant was not drunk. Prosecution suppressed contrary 
testimony of other officers). U. 8. ex rel. Almeida v. Baldi, 
195 F. 2d 815 (CA 3rd 1952) cert. den. 345 U. S. 904 (1953) 
(Prosecution permitted false inference that defendant fired 
fatal shot); Ashley v. Texas, 319 F. 2d 80 (CA 5th 1963), 
cert. den. 375 U.S. 931 (1963) (State failed to reveal medi­
cal report that defendant was incompetent); TJ. 8. ex rel 
Meers v. Wilkins, 326 F.2d 135 (CA 2d 1964) (Robbery. 
Prosecution failed to produce eyewitnesses who stated de­
fendant not the robber).

Barbee v. Warden, 331 F2d 842 (CA 4th, 1964) (Prose­
cution permitted false inference that defendant’s gun was 
the lethal weapon); Turner v. Ward, 321 F2d 18 (CA 10th, 
1963) (Suppression of nature of sex attacks); TJ. S. ex rel 
Butler v. Maroney, 319 F2d 622 (CA 3rd 1963) (Suppres­
sion during guilt phase of trial of evidence that a struggle



— 27 —

preceded shooting); Levin v. Katzenbach, 363 F2d 287 
(D. C. Cir. 1966) (Bank officer’s knowledge of key incidence 
suppressed); McMullin v. Maxwell, 3 Ohio St. 2d 160, 209 
N E 2d 449 (1965) (Suppression of favorable ballistics 
report); Application of Kapatos, 208 F. Supp. 883 (N. Y. 
1962) (Witness’s statement that defendant not the 
murderer); U. 8. ex rel Montgomery v. Hagen, 86 F. Supp. 
382 (1949) (Rape case. Suppression of medical report that 
no rape occurred.)

The four cases at bar: due process aspects. The four 
cases here at bar raise troublesome questions apart from. 
Witherspoon and apart from the Eighth Amendment ques­
tion. These questions are set out in the petitions for cer­
tiorari. Here we will but mention that Aikens waived jury 
trial at a time when scrupled jurors would have been ex­
cluded. Jackson and Branch were sentenced to death for 
rape. Both are black; both victims, white. Furman and 
Jackson were sentenced to death after unitary trials. Now 
the unitary trial in Georgia has been replaced by a two 
stage trial. (Brief for Respondent in Opposition to Peti­
tion for Certiorari, p. 10, in Jackson). Thus the trials of 
both Furman and Jackson, apart from McGautha, no 
longer meet Georgia standards. Should they go to their 
deaths? Furman’s trial lasted but a day.

We have mentioned above the development of the crimi­
nal law. Only a generation ago, Illinois executed two men 
without any appellate review. At that time, Illinois law 
granted a right of review in the Supreme Court of Illinois 
to everyone convicted of a felony, except -in capital cases. 
In such cases, review was only by leave of Court. 111. Rev. 
Stats. (1951), C. 38, 769 and 769.1. Review was denied
to Willard Truelove, and on November 17, 1950, comatose, 
he was dragged to the electric chair at the Cook County



— 28 —

Jail. Harry Williams similarly was denied review and 
denied a hearing on the constitutionality of the discrimi­
nation. (342 U.S. 934 (February 4, 1952)). He was exe­
cuted on March 14, 1952.

The very next year the law was changed. 111. Rev. Stats. 
(1953) C. 38, § 769.1. Today would we for a moment coun­
tenance execution without appellate review? What practi­
ces today considered just will we regard tomorrow as a 
barbarism and wonder that they persisted so long?

The death penalty mid suicide. The death penalty raises 
another deeply disturbing problem. There appear to be 
some individuals who commit murder in order to receive 
the death sentence. They ask the state to do for them what 
they hesitate to do for themselves. In these situations, the 
death penalty, rather than discouraging murder, appears 
actually to encourage it. We do not, have to speculate as to 
whether such cases arise. This Court has had first hand 
experience with the matter. Rees v. Peyton, 384 TJ. S. 312 
(1966) is such an instance. Rees was sentenced to death. 
At sentencing Rees said to the judge, “Thank you.” Coun­
sel sought review here on certiorari. After the petition had 
been filed, Rees wrote to this Court and to counsel asking 
that the petition be withdrawn and all legal efforts halted. 
The Court ordered inquiry into Rees’s mental status.

Another illustration: In 1957, Jack Chester after a long 
upsetting love affair, killed his fiance. His death sentence 
was upheld by the Supreme Judicial Court. (Common­
wealth v. Chester, 337 Mass. 702, 150 N E  2d 914) on June 
10, 1958. The sequel is related by Hr, Frederick Wiseman: 
“Chester, aware of commutation efforts on his behalf, wrote 
to the Governor asking that clemency be denied. He want­
ed death, not as punishment but as mercy.” The responsible 
authorities recommended commutation. “When told that



— 29 —

the Governor was about to approve their recommendations, 
[Chester] hanged himself.” (Wiseman, Psychiatry mid 
Law, Use and Abuse of Psychiatry in a Murder Case,” 
American Journal of Psychiatry, Oct., 1961, p. 289.

Other recent cases in which a condemned man sought 
execution are set out in the footnote.1

The condemned man, the wait and the execution. In the 
foregoing pages, we have said much about the criminal 
proceedings but little about the condemned man. How does 
he fare? As of December 31, 1968, the median elapsed time 
for prisoners then under sentence was 33.1 months (NPS

1 Andrew' Pixley filed a plea of guilty to a murder 
charge. Upon being sentenced to death, he stated he did 
not wish to appeal. After his attorneys nevertheless filed 
an appeal, he wrote to the Wyoming Supreme Court that 
he wanted no appeal and wished the attorney dismissed 
{Pixley v. State, 406 P. 2d 662, at 665, October 19, 1965). 
The Court heard the appeal nonetheless and affirmed. 
Pixley was executed on December 10, 1965.

James Donald French, a prisoner, strangled his cell­
mate. After he was sentenced to death, counsel filed an 
appeal. Judge Bussey in a concurring opinion stated the 
defendant “has urged this Court to dismiss his appeal and 
allow him to be executed, in accordance with the judg­
ment and sentence imposed upon him.” French v. State, 
377 P. 2d. 501 (Oklahoma, 1961). The Court nonetheless 
reversed. A second conviction likewise was reversed. 397 
P. 2d. 909 (Oklahoma, 1963).

At the third trial, French “freely admitted the bizarre 
details of the slaying . . . and described in minute detail 
the facts and circumstances. . . .” 416 P. 2d. 171 at 178 
(Oklahoma, 1966).

After the third conviction, French wrote to the Clerk of 
the Supreme Court asking that his court appointed at­
torney be relieved. French was executed August 10, 1966.

For earlier accounts where capital punishment has been 
employed as a form of suicide, see Sellin, The Death Pen­
alty 65 (1959).



30 —

Capital Punishment Bulletin, No. 45, August 1969) (Latest 
published). In Maryland the median was 79 months (the 
longest) and in Ohio and Kentucky, 16 months (the short­
est). Doubtless these medians have since lengthened. But 
these statistics do not convey the full horror. Generally 
it appears that men on death row are kept segregated, 
usually in small cells a few yards from the execution 
chamber. They do no work. Their opportunities for ex­
ercise and recreation are limited.1 For years a. living hu­
man being is treated as if dead. He is no longer func­
tionally a member of the community of the living. He 
lives thus for months or years. Under this regimen some 
men cease to be men.2 But the condemned is not allowed 
to end his suffering himself.3 The moments preceding the 
execution are horrible.4 The execution itself ghastly.6

1 The routine at San Quentin is described by a con­
demned man in N. Y. Times, July 23, 1971, p. 31. For the 
routine in New Jersey and New York, see N. Y. Times, 
May 5, 1971, p. 41.

2 See Gottlieb, Capital Punishment, 15 Crime and Deling. 
8 (1969).

3 Rigid suicide precautions are customary. Gottlieb, Cap­
ital Punishment, 15 Crime and Delin. 8 (1969). Amici 
Synagogue Council, et ah, in Maxivell v. Bishop, 0. T. 
1969, No. 13, make the point that the state insists not on 
death but on the opportunity to put to death a man aware 
of the event. The sick are cured and insane, if possible, 
brought to lucidity to achieve this end. This is not punish­
ment but vengeance.

4 Aaron C. Mitchell, the last man executed in California, 
we are told, was carried moaning to the gas chamber. His 
last audible words were, “I am Jesus Christ.” (N. Y. 
Times, April 13, 1967, p. 13; Chicago Tribune, April 13, 
1967, Sec. 1, p. 8).

5 See Thomas Gallagher, Invitation to a Killing, N. Y. 
Herald Tribune, February 7, 1965.



31

There is another matter we must touch on. Dostoevsky 
relates the awful events of December 22, 1849, when he 
and two comrades were led to the place of execution, or­
dered to don the white execution shirts and tied to posts. 
At the last moment, they were untied and informed that 
the Czar had spared their lives and sentenced them to 
penal servitude.1 Almost as unbelievable as the actual 
event is the nearly incredible fact that it was carefully 
planned by Czar Nicholas I personally. We would not 
impose calculated anguish in this fashion as did an auto­
crat, Yet in the course of granting a condemned man a 
full measure of due process, we inflict a pain similar to 
that inflicted on Dostoevsky. A man is condemned and an 
execution date set. A stay is granted pending appeal. The 
conviction is affirmed and a new date set. As the proceed­
ings continue, there are new dates and new stays. We do 
not for a single moment suggest that a condemned man 
be denied every access to the Courts. The bitter experi­
ence of the past makes clear that justice sometimes pre­
vails only after many lost battles. But in the course of 
doing justice we inflict agony. Not by intent, but by the 
inherent nature of the system created to do justice,2

Summation. Before concluding, we must call attention 
to the special problems of the cause eelebre. They subject 
the judicial process to a peculiar torment, and, when 
they are capital cases, raise doubts never wholly 
dispelled. Sacco and Vanzetti, the Rosenbergs and 
Chessman are cases known to all. Other cases are 
causes eelebre in their region, although not known nation-

1 For an account of the event by Dostoevsky, see Mochul- 
sky, Dostoevsky, His Life and Work, 140 (Princeton U. 
Press, 1967).

2 For but one example, consider the cases of Labat and 
Paret as related in Labat v. Bennett, 365 F. 2d. 698 (CA 
5th, 1966).



— 32

ally. So long as we retain the death penalty, men will go 
to the grave, not for what they have done, or perhaps 
not solely for what they have done, but because of who 
they are, or who the world thinks they are, or because 
of the domestic or international passions of the times.

Initially we stated as our premise the inherent fallibility 
of every judicial proceeding. We have traced a number of 
recent cases to explicate that proposition. Yet one might 
say that our thesis merely sets out a collection of dis­
parate evils, each subject to remedy, some already rem­
edied. This view misconceives the thrust of our argument. 
If we correct the evils we see today, tomorrow we would 
recognize further flaws in the proceedings of today. The 
evils of today are manifest; they must give us pause: 
the defendant’s plea bargaining with his own life; the 
scrupled juror asked to lay aside his scruples to vote for 
death; the possibility of exonerating evidence being lost or 
simply excluded by the rules of evidence; the numerous 
shocking instances of prosecution suppression of evidence 
favorable to the accused; the unsureness in judging sub­
jective questions; doubts as to the voluntariness of con­
fessions; shifting definitions of capital crimes; shifting 
concepts of due process; last minute stays of execution 
followed by subsequent reversals; the sentencing to death 
of mentally ill men. We could readily enlarge our list. To­
day we would not countenance the execution of a man 
without appellate review of his case. Tomorrow" the prac­
tices of today will seem equally unthinkable. Progress 
sometimes is slow; there is backsliding. Yet today we do 
know7 more about man than we did; we venture to think 
we are less ready to take life. Indeed, perhaps the decline 
in executions, and more recent halt, is an indication of 
our growing, awareness of our limitations.



— 33

Since 1930, we have executed 3859 persons. I t is sober­
ing to realize that scarcely any of their trials would sur­
vive review today. Witherspoon and Miranda doubtless 
would fault the majority. The 3859 men and women we 
submit have suffered cruel and unusual punishment. 
Should we continue executions when their deaths are wit­
ness to the error of the practice!

We mentioned early in our brief that the death penalty 
corrodes and brutalizes us. The foregoing* account, we 
think, reveals clearly the fashion in which the death pen­
alty degrades us. It is not only in the imposition of the 
penalty per se that we are degraded, it is also in the 
wrong's we tolerate (some just mentioned) in capital cases. 
It is not alone the condemned man who suffers a cruel 
and unusual punishment; it is we as well, we in society, 
who inflict a cruel and unusual punishment on ourselves.

In the sciences, man long ago learned that absolutes 
elude him. Every advance of knowledge teaches that the 
world is more subtle than we thought. In the macrocosm 
we learn that the universe is vaster than we thought, that 
complex phenomena occur in what we thought a void, that 
space and time once thought wholly separate are subtly 
linked. In the microcosm with each more powerful ac­
celerator we discover new subatomic particles and learn 
of more complex relationships between them.

Even logic and mathematics have not escaped. In the 
last century we learned that even one of the “self-evident 
postulates of Euclid was open to question. Today we 
accept both Euclidean and non-Euclidean geometries. In 
our day, Ernest Nagel and James R. Newman tell us,1 a

1 4 The World of Mathematics, 1668 (1956)



— 34 —

1936 paper by Kurt Goedel came as an “astonishing and 
melancholy revelation to mathematicians,” because it chal­
lenged deeply rooted preconceptions concerning mathmati- 
cal method.

If the “exact sciences” are thus inexact, what of the 
criminal law? An ordered society needs the criminal law 
for its protection; it needs incarceration for some; it does 
not need to kill anyone for its own protection.

The death penalty is cruel and unusual punishment, be­
cause the judicial procedures which would truly warrant 
and justify such a penalty are beyond man. Such judicial 
procedures are beyond man, because man is man, imperfect 
in experience, imperfect in wisdom, imperfect in under­
standing of his fellow man.

Joseph K, just before being put to death at the end of 
Kafka’s novel, The Trial, declares

“Were there arguments in his favor that had been 
overlooked? Of course, there must be. Logic is doubt­
less unshakeable, but it cannot withstand a man who 
wants to go on living. Where was the Judge whom 
he had never seen? Where the High Court to which 
he had never penetrated? He raised Ms hands and 
spread out all his fingers.” (Knopf, 19591, p. 286).

We can tolerate an imperfect justice if we do not take life, 
because of the need to protect society. But, we cannot 
tolerate imperfect justice when we inflict an irreversible 
penalty.

Moses, shortly before his death, in his final charge to 
his people declared,

“Today I offer you the choice of life and good, or 
death and evil. . . .  I offer you the choice of life or 
death, blessing or curse. Choose life. . . .” (Deut. 
30:15-19)



We ask this Court, too, to choose life and good.

Respectfully submitted,

W il l a r d  J. L a s s e r s  

11 S. LaSalle Street 
Chicago, Illinois 60603

and
E l m e r  G e r t z  

120 S. LaSalle Street 
Chicago, Illinois 60603

Attorneys for Amici

August 26, 1971



— la —

APPENDIX

Policy Statements Opposing the Death Penalty
Adopted By Amici and Other Religious Organizations
NATIONAL COUNCIL OF THE CHURCHES OF 

CHRIST IN THE UNITED STATES OF AMERICA 
POLICY STATEMENT

ABOLITION OF THE DEATH PENALTY
Adopted by the General Board 

September 13, 1968
In support of current movement to abolish the death 

penalty, the National Council of Churches hereby de­
clares its opposition to capital punishment. In so doing, 
it finds itself in substantial agreement with a number of 
member denominations which have already expressed op­
position to the death penalty.

Reasons for taking this position include the following:
(1) The belief in the worth of human life and the dig­

nity of human personality as gifts of God;
(2) A preference for rehabilitation rather than retribu­

tion in the treatment of offenders;
(3) Reluctance to assume the responsibility of arbi­

trarily terminating the life of a fellow-being solely be­
cause there has been a transgression of law;

(4) Serious question that the death penalty serves as a 
deterrent to crime, evidenced by the fact that the homi­
cide rate has not increased disproportionally in those 
states where capital punishment has been abolished;

(5) The conviction that institutionalized disregard for 
the sanctity of human life contributes to the brutaliza­
tion of society;

(6) The possibility of errors in judgment and the irre­
versibility of the penalty which make impossible any 
restitution to one who has been wrongfully executed;



— 2a

(7) Evidence that economically poor defendants, par­
ticularly members of racial minorities, are more likely to 
be executed than others because they cannot afford ex­
haustive legal defenses;

(8) The belief that not only the severity of the penalty 
but also its increasing infrequency and the ordinarily long 
delay between sentence and execution subject the con­
demned person to cruel, unnecessary and unusual punish­
ment ;

(9) The belief that the protection of society is served 
as well by measures of restraint and rehabilitation, and 
that society may actually benefit from the contribution of 
the rehabilitated offender;

(10) Our Christian commitment to seek the redemp­
tion and reconciliation of the wrong-doer, which are frus­
trated by his execution.

Seventy-five nations of the world and thirteen states of 
the United States have abolished the death penalty with 
no evident detriment to social order. It is our judgment 
that the remaining jurisdictions should move in the same 
humane direction.

In view of the foregoing, the National Council of 
Churches urges abolition of the death penalty under fed­
eral and state law in the United States, and urges mem­
ber denominations and state and local councils of churches 
actively to promote the necessary legislation to secure this 
end, particularly in the thirty-seven states which have not 
yet eliminated capital punishment.

103 For 0 Against 0 Abstentions



3a

AMERICAN BAPTIST CONVENTION 
Statement on Capital Punishment

Adopted: Rochester, New York, June 7, 1960
IV. NATIONAL AFFAIRS, 4. Capital Punishment
1. Because the Christian believes in the inherent worth 

of human personality and in the unceasing availa­
bility of God’s mercy, forgiveness, and redemptive 
power, and

2. Because the Christian wholeheartedly supports the 
emphasis in modern penology upon the process of 
creative, redemptive rehabilitation, rather than on 
punitive and primitive retribution, and

3. Because the deterrent effects of capital punishment 
are not supported by available evidence, and

4. Because the death penalty tends to brutalize the 
human spirit and the society which condones it, and

5. Because human agencies of legal justice are fallible, 
permitting the possibility of the executing of the in­
nocent,

We, therefore, recommend the abolition of capital pun­
ishment and the re-evaluation of the parole system relative 
to such cases.

Recognizing that at present some states (namely, Alas­
ka, Delaware, Hawaii, Maine, Michigan, Minnesota, North 
Dakota, Rhode Island, and Wisconsin) have abolished the 
practice, we encourage Christians to support groups and 
agencies working for its abolition in the remaining forty- 
one states.

As capital punishment is abolished, we recognize that 
society must be protected against release from prison of 
those whose unredeemed spiritual life, or whose condition 
of physical or mental health, would endanger others.

We look with favor upon the renewed efforts in our 
time to abolish capital punishment, urge our members



4a

individually, and our Monthly and Yearly Meetings to 
unite with others in the task of removing the death pen­
alty’ from the statute books of the various states, provinces 
and central or federal governments, and the United Na­
tions.

LUTHERAN CHURCH IN AMERICA
Statement On 

Capital Punishment
Adopted by the Third Biennial Convention 

K a n s a s  City, M is s o u r i  
J u n e  2 1-2 9 , 1966

Within recent years, there has been throughout North 
America a marked increase in the intensity of debate on 
the question of abolishing the death penalty. The situation 
has been accompanied by the actual abolition of capital 
punishment in ten states and two dependencies of the 
United States, qualified abolition in three states, and in six 
states a cessation in the use of the death penalty since 
1955. Although the issue of abolition has been widely 
debated in Canada in recent years, a free vote in Parlia­
ment on April 5, 1966, failed to end the legality of the 
death sentence. However, during the last two years or 
more, death sentences in Canada have been consistently 
commuted.

These developments have been accompanied by increased 
attention to the social and psychological causes of crime, 
the search for improved methods of crime prevention and 
law enforcement, efforts at revising the penal code and 
judicial process, and pressure for more adequate methods 
in the rehabilitation of convicted criminals. There has been 
a concurrent concern for persons who, because of ethnic 
or economic status, are seriously hampered in defending 
themselves in criminal proceedings. It has been increas­
ingly recognized that the socially disadvantaged are forced 
to bear a double burden: intolerable conditions of life 
which render them especially vulnerable to forces that in­
cite to crime, and the denial of equal justice through ade­
quate defense.



— 5a —

In seeking to make a responsible judgment on the ques­
tion of capital punishment, the following considerations 
must be taken into account:

1. The Right of the State to Take Life
The biblical and confessional witness asserts that the 

state is responsible under God for the protection of its 
citizens and the maintenance of justice and public order. 
For the exercise of its mandate, the state has been en­
trusted by God with the power to take human life when 
the failure to do so constitutes a clear danger to the civil 
community. The possession of this power is not, how­
ever, to be interpreted as a command from God that death 
shall necessarily be employed in punishment for crime. 
On the other hand, a decision on the part of civil govern­
ment to abolish the death penalty is not to be construed 
as a repudiation of the inherent power of the state to take 
life in the exercise of its divine mandate.

2. Human Rights and, Equality Before the Law
The state is commanded by God to wield its power for 

the sake of freedom, order and justice. The employment 
of the death penalty at present is a clear misuse of this 
mandate because (a) it falls disproportionately upon those 
least able to defend themselves, (b) it makes irrevocable 
any miscarriage of justice, and (c) it ends the possibility 
of restoring the convicted person to effective and produc­
tive citizenship.

3. The Invalidity of the Deterrence Theory
Insights from both criminal psychology and the social 

causes of crime indicate the impossibility of demonstrat­
ing a deterrent value in capital punishment. Contempo­
rary studies show no pronounced difference in the rate of 
murders and other crimes of violence between states in the 
United States which impose capital punishment and those 
bordering on them which do not.



— 6a —

In the light of the above considerations, the Lutheran 
Church in America:
urges the abolition of capital punishment;
urges the members of its congregations in those places 
where capital punishment is still a legal penalty to en­
courage their legislatures to abolish it;
urges citizens everywhere to work with persistence for 
the improvement of the total system of criminal justice, 
concerning themselves with adequate appropriations, the 
improved administration of courts and sentencing prac­
tices, adequate probation and parole resources, better penal 
and correctional institutions, and intensified study of de­
linquency and crime;
urges the continued development of a massive assault on 
those social conditions which breed hostility toward so­
ciety and disrespect for the law.

CHRISTIAN CHURCHES (DISCIPLES OF CHRIST) 
INTERNATIONAL CONVENTION
Cleveland, Ohio, October 11-16, 1967 

Statement on Capital Punishment
We believe that Christians can no longer justify support 

of the practice of capital punishment. It has become in­
creasingly clear that the certainty of apprehension and 
conviction rather than severity of punishment is the real 
deterrent to crime. Under such circumstances the death 
sentence becomes not a real protection to society but only 
a crude form of vengeance or retributive justice. Christian 
justification of punishment is always found in the hope 
of the rehabilitation of the offender; since dead people 
cannot be rehabilitated we can in no way defend capital 
punishment on Christian grounds.

In a very real sense also the practice of capital punish­
ment stands in the way of more creative, redemptive, and 
responsible treatment of crime and criminals: There is 
the danger that society by concentrating attention on the



■— 7a —

execution of a few criminals may mislead its members 
into thinking that it is dealing effectively with crime pre­
vention. Christians must insist upon the importance of 
crime prevention and the rehabilitation of offenders rather 
than upon retribution.

It should be noted that the protection of society can as 
well be achieved by the imprisonment of certain classes of 
criminals as by the death sentence. Especially in view of 
the fact that innocent men have sometimes been mistak­
enly executed, we must now reject capital punishment as a 
clumsy, vindictive, and misleading practice that has no 
place in a Christian or even partially Christian culture. 
Four states and 27 foreign countries have already out­
lawed capital punishment. We urge Christians as citizens 
to work toward the elimination of the death penalty in 
their own states.

CHURCH OF THE BRETHREN 
STATEMENT ON CAPITAL PUNISHMENT

Adopted bv 1957 Annual Conference
Because we regard human life as sacred, and because 

we believe that the sixth commandment has application to 
organized societies as well as to individuals, we stand 
ready to give our support to legislation, now proposed in 
many states, for the abolition of capital punishment.

STATEMENT ON CAPITAL PUNISHMENT
Adopted by 1959 Annual Conference, June 20, 1959

Because the Church of the Brethren holds that the 
sanctity of human life and personality is a basic Christian 
principle which the state is also committed to uphold; 
and because we believe that capital punishment does not 
really serve the ends of justice, often resulting in tragic 
and irrevocable miscarriages of justice;

We commend current efforts to abolish capital punish­
ment, and call upon Brethren everywhere to use their 
influence and their witness against it.



8a —

GENERAL CONFERENCE MENNONITE CHURCH 
CENTRAL DISTRICT CONFERENCE, GENERAL 

CONFERENCE MENNONITE CHURCH
April 23-26, 1959 annual session at Goshen, Indiana

STATEMENT ON CAPITAL PUNISHMENT
Be it resolved that the secretary of the conference be 

instructed to write to the governors of the various states 
within our conference area where capital punishment is 
practiced to register our concern that this taking of life 
be discontinued, and that a redemptive approach be exer­
cised in the treatment of all criminals.

THE METHODIST CHURCH.
Doctrine and Discipline of the
Methodist Church, 1964.
“The Methodist Social
Creed, Par. 1820. p. 661.”

“We stand for the application of the redemptive principle 
in treating law offenders and for study and action di­
rected toward the improvement of laws, correctional fa­
cilities and services, and court procedures in order to fa­
cilitate rehabilitation. For this reason we deplore capital 
punishment. We do not believe an individual should be ex­
cused for his personal responsibility to society; but we 
recognize that crime, and in particular juvenile delin­
quency leading to crime, is often a result of family failure 
and bad social conditions. Christian citizens and churches 
have a special opportunity and responsibility for creating 
those conditions of family life and social surroundings, 
wholesome recreation, vocational training, personal coun­
selling, and social adjustment by which crime may be re­
duced, and offenders rehabilitated and redeemed by God’s 
grace.”



■— 9a

THE PROTESTANT EPISCOPAL CHURCH IN THE 
UNITED STATES OF AMERICA

5th General Convention, Florida, Oct. 16, 1958.
Capital Punishment

Inasmuch, as the individual life is of infinite worth in 
the sight of Almighty God; and

Whereas, The taking of this human life falls within the 
province of Almighty God and not within the right of 
man therefore be it,

Resolved, That the General Convention goes on record 
as opposed to capital punishment.

UNION OF AMERICAN HEBREW CONGREGATIONS 
Resolution on Capital Punishment

Unanimously adopted by the 45th Biennial General As­
sembly, Miami Beach, Fla., Nov. 14-19, 1959:

We believe it to be the task of the Jew to bring our 
great spiritual and ethical heritage to bear upon the 
moral problems of contemporary society. One such prob­
lem, which challenges all who seek to apply God’s will in 
the affairs of men, is the practice of capital punishment. 
We believe that in the light of modern scientific knowledge 
and concepts of humanity, the resort to or continuation of 
capital punishment either by a state or by the national 
government is no longer morally justifiable.

We believe there is no crime for which the taking of 
human life by society is justified, and that it is the obliga­
tion of society to evolve other methods in dealing with 
crime. We pledge ourselves to join with like-minded 
Americans in trying to prevent crime by removal of its 
causes, and to foster modern methods of rehabilitation 
of the wrong doer in the spirit of the Jewish tradition of 
tshuva (repentance).

We believe, further, that the practice of capital punish­
ment serves no practical purpose. Experience in several



10a

states and nations has demonstrated that capital punish­
ment is not effective as a deterrent to crime. Moreover, 
we believe that practice debases onr entire penal system 
and brutalizes the human spirit.

We appeal to our congregants and to our co-religionists, 
and to all who cherish God’s mercy and love to join in 
efforts to eliminate this practice which lies as a stain upon 
civilization and our religious conscience.

CENTRAL CONFERENCE OF AMERICAN RABBIS
The annual convention of the Central Conference of 

American Rabbis, meeting in Chicago, Illinois, June 24-29, 
1958, approved the following statement:

The question of capital punishment is now under official 
study in several states. The Central Conference of Amer­
ican Rabbis urges the abolition of the death penalty where 
it is still in effect. We are convinced that it does not act 
as an effective deterrent to crime.

UNITED SYNAGOGUE OF AMERICA
The Executive Council of the United Synagogue of 

America on March 7, 1960 adopted the following resolu­
tion :

Judaism has always regarded capital punishment re­
pugnant to its tradition and to the most noble instincts 
of man. Even where the Bible prescribes such a punish­
ment Jewish rabbinic and ethical tradition have so inter­
preted this sanction as to make its application virtually 
impossible.

Man has been created in God’s image, and as such is 
endowed with sanctity. His life is God-,given and his life 
ends by the grace of God. No man individually or group 
of men collectively may take the life of another even in 
what may seem to be just retribution to society for a 
heinous crime.

The United Synagogue of America believes that the time 
has come for the abolition of capital punishment from the



— 11a —

statute books of all states and provinces and we urge this 
course upon the various legislatures and the governors of 
states and provinces where capital punishment is still in 
force.

UNITARIAN UNIVERSAL!ST ASSOCIATION 
MAY 13, 1961

Boston, Massachusetts 
Capital Punishment

Whereas: Respect for the value of every human life 
must be incorporated into our laws if it is to be observed 
by our people; and

Whereas: Modern justice should concern itself with re­
habilitation, not retribution; and

Whereas: It has not been proved that fear of capital 
punishment is a deterrent to crime; and

Whereas: Human judgments are not infallible, and no 
penalty should be used which cannot be revoked in case 
of error; and

Whereas: Capital punishment has not always been 
used impartially among all economic and racial groups in 
America;

Therefore Be It Resolved: That the Unitarian Uni- 
versalist Association urges its churches and fellowships 
in the United States and Canada to exert all reasonable 
efforts toward the elimination of capital punishment; and

Be It Further Resolved: That copies of this resolution 
be sent to the Governors of all states in which capital 
punishment has not yet been eliminated, and to the Ca­
nadian Minister of Justice.

UNITED CHURCH OF CHRIST
Policy Statement Adopted by the General Synod at Bos­

ton, June, 1969, on the Abolition of Capital Punishment.
Whereas, the Committee for Racial Justice, the Council 

for Christian Social Action, and the UCC Ministers for



12a

Racial and Social Justice are unalterably opposed to capi­
tal punishment and cannot remain silent regarding its con­
tinuance in our society, and

Whereas the human agencies of legal justice are fal­
lible, and

Whereas we are concerned about the disproportionate 
number of black and poor who occupy death row and, 
white or black, are victims of an evil which decent people 
of our society have too long endured and which violates 
categorically our Judeo-Christian ethic, and

Whereas this outdated and barbaric practice has been 
found to discriminate on the basis of skin color and eco­
nomic condition, and

Whereas the last-minute stay of execution of a 17-year- 
old Marie Hill in the gas chamber of North Carolina re­
minds us that one of the gross injustices in our judicial 
system is the retention of this barbaric practice,

Therefore Be It Resolved that the United Church of 
Christ commit itself to join in a nationwide campaign for 
the abolition of capital punishment and call upon other 
secular and religious institutions to join in a maximum 
effort for the abolition of capital punishment in the fol­
lowing :

a) Enlisting the support of Conferences and of other 
denominations and agencies and cooperating with existing 
eff orts to abolish capital punishment.

b) Developing legislative and other political action for 
the abolition of capital punishment.

c) Resisting efforts to reinstitute capital punishment 
in those states where it has been abolished.

d) Testing the constitutionality of laws permitting 
capital punishment.

e) Making available and assisting in the raising of 
funds to pursue the above.



— 13a —

THE UNITED PRESBYTERIAN CHURCH IN 
THE UNITED STATES OF AMERICA 

177th General Assembly, 1965
CAPITAL PUNISHMENT

1. Whereas, we believe in the sovereignty of God’s 
grace and in his power to redeem and restore the lost to 
meaningful and useful life.

2. Whereas, we further believe in the ultimate signifi­
cance of each individual person as one for whom Christ 
died.

3. Whereas, several states in this land have recently 
entered into reconsideration of capital punishment as part 
of their penal systems.

4. Whereas, we note both the grave and irrevocable 
nature of execution as punishment and that statistical 
evidence consistently asserts the failure of the death 
penalty as a deterrent of crime.

5. Therefore, the 177th General Assembly (1965) re­
affirms the action of the 171st General Assembly (1959), 
and:

a. Declares its opposition to capital punishment.
b. Calls upon the judicatories and members of The 

United Presbyterian Church in the United States of 
America to work for the abolition of the death penalty in 
their respective states.

6. Wre further call upon the legislatures of those states 
in which capital punishment is still practiced to hasten 
to eliminate this punishment from their penal code.

NATIONAL CATHOLIC CONFERENCE FOR 
INTERRACIAL JUSTICE

The National Catholic Conference for Interracial Jus­
tice seeks declaration that capital punishment is uncon­
stitutional.



14a —

The majority of those who have died and who now 
await death by capital punishment are members of mi­
nority groups. Thus, it seems a reasonable judgment that 
legal tools and equal treatment of due process are denied 
to some Americans. This in itself is unreasonable and 
harsh.

The National Catholic Conference for Interracial Jus­
tice seeks reorganization of the legal and penal systems 
which could bring about reconciliation of offenders with 
society. Reconciliation of man with himself and his fellow 
man is an ideal for which we are obliged to search.

Capital punishment is acknowledgment of our failure to 
believe in the principle of life and hope inherent in the 
heart of each human being.

Capital punishment is a cruel and unreasonable alterna­
tive to an already inhuman penal system in which the 
poor, who are oftentimes also minorities, suffer intoler­
ably.

THE NATIONAL COALITION OF AMERICAN NUNS
Capital punishment denies inherent human rights such 

as the ideal of man’s equality, the ideal of general and 
equal law, the right of due process and the manifold mal­
function of court systems which should insure these rights.

Our development in the Judeo-Christian ethic calls for 
recognition of capital punishment as cruel and unreason­
able. Attitudes, so deeply rooted in the mystery of man’s 
psyche play a prominent role in determining guilt, or in­
nocence; life and death. Contending within this psyche 
and prompting these decisions are such accidents as race, 
creed, sex, economics, etc. These variants make decisions 
on capital punishment unequal and unjust for those indi­
viduals who find themselves in subcultures of society.