Los Angeles County Metropolitan Transportation Authority v. Labor/Community Strategy Center Brief in Opposition to Certiorari
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January 1, 2001
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Brief Collection, LDF Court Filings. Aikens v. California, Furman v. Georgia, and Jackson v. Georgia Briefs for Petitioners, 1971. 88e46608-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/69b6ebd6-81d1-45d0-8abc-941afd86e95c/aikens-v-california-furman-v-georgia-and-jackson-v-georgia-briefs-for-petitioners. Accessed August 19, 2025.
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No. 68-5027
E a r n est J a m es A ik e n s , J r .,
—v.—
C a l ifo r n ia ,
Petitioner,
Respondent,
on w r it op certiorari to t h e s u p r e m e COURT OP CALIFORNIA
No. 69-5003
W il l ia m H e n r y F u r m a n ,
Petitioner,
— Y . —
G eorgia ,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OP GEORGIA
No. 69-5030
L u c io u s J a c k so n , J r .,
Petitioner,
—v.—
G eorgia ,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OP GEORGIA
BRIEFS FOR PETITIONERS
y-OV'i '
> '
m io is?:
IN THE t PO-LYC :
S u p re m e C o u r t o t trie U n ite d s t a t e s
No. 68-5027
EARNEST JAMES AIKENS, JR., Petitioner,
v.
CALIFORNIA, Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF CALIFORNIA
BRIEF FOR PETITIONER
J ack Greenberg
J ames M. Nabrit, iii
Charles Stephen Ralston
J ack Himmelstein
Elizabeth B. Dubois
J effry A. Mintz
Elaine R. J ones
Lynn Walker
Ann Wagner
10 Columbus Circle,
Suite 2030
New York, N.Y. 10019
J erry A. Green
273 Page Street
San Francisco, Calif. 94109
J erome B. Falk, J r.
650 California Street
Room 2920
San Francisco, California 94108
Paul N. Halvonik
593 Market Street
San Francisco, California 94108
Michael Meltsner
Columbia University Law School
435 West 116th Street
New York, New York 10027
Anthony G. Amsterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioner
(i)
TABLE OF CONTENTS
Page
OPINIONS BELOW . ......................... ..................... .. 1
JURISDICTION ................................ 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................... 2
QUESTION PRESENTED .......................................... 2
STATEMENT OF THE CASE ............................................... .. 3
HOW THE CONSTITUTIONAL QUESTION
WAS PRESENTED AND DECIDED BELOW . . . . . . . . . . . 6
SUMMARY OF ARGUMENT .................... ........................ .. 6
ARGUMENT:
I. Introduction ................................. 1
II. The Relevant Eighth Amendment Standard . ............. 13
III. The Penalty of Death .................................... 27
CONCLUSION ............................................... 61
Appendix A: Statutory Provisions Involved ............................ - la
Appendix B: Summary of the Evidence Relating to the
Killings of Mrs. Eaton and Mrs. Dodd .............................. • • • lb
A. The Eaton Killing ................................................................. 2b
B. The Dodd Killing ................................................................ 9b
Appendix C: Punishments Authorized by Law
and Usage, 1786-1800 ....................... 1c
A. Penal Laws Applicable to Freemen ...................... 1c
B. Penal Laws Applicable to Slaves . ............... ................... 16c
C. Infliction of Corporal Punishments at the
End of the Eighteenth Century ......................... .. 21c
D. Banishment ................................................................... .. ■ • 26c
Appendix D: Synopsis of the Constitutional History
of the Cruel and Unusual Punishment Clause of the
Eighth Amendment ....................................... Id
A. English Antecedents ...................... ................ ................... Id
( ii)
Page
B. Developments in America .................................................. 2d
1. Pre-Revolutionary Times ............................................. 2d
2. State Constitutions, 1776-1790 ................................... 2d
3. The Federal Constitution ............................................. 4d
Appendix E: Worldwide and National Trends in the
Use of the Death Penalty ............................................................ le
Appendix F: Available Information Relating to the
Proportion of Persons Actually Sentenced to Death
Among Those Convicted of Capital Crimes .............................. If
1. M urder................ ................................................................... 3f
2. Rape ..................................................................................... 8f
Appendix G: Provisions of the Criminal Statutes of
the United States and of the Fifty States Providing
for the Punishment of Death . . .................................................. lg
Appendix H: The Evidence Concerning the Deterrent
Efficacy of the Death Penalty...................... ............................... lh
A. The Statistical Evidence...................... ............................... lh
B. Impressions of Law Enforcement O fficers......................... 6h
Appendix I: Descriptions of American Methods
of Execution ...................... li
TABLE OF AUTHORITIES
Cases:
Abbate v. United States, 359 U.S. 187 (1959)............................... 9
Brown v. Board of Education, 347 U.S. 483 (1954).................... 15
Collins v. Johnston, 237 U.S. 502 (1 9 1 5 )...................................... 8
Dear Wing Jung v. United States, 312 F.2d 73 (9th Cir.
1962)........................ ........................... ..................................11
Ex parte Wilson, 114 U.S. 417 (1 8 8 5 )................................ 15-16, 18
Funicello v. New Jersey, __ U.S. ___, 29 L. ed. 2d 859
(1971)..........................................................................................41,63
Furman v. Georgia, O.T. 1971, No. 69-5003 ................................ 5
Goss v. Bomar, 337 F.2d 341 (6th Cir. 1 9 6 4 ).............................. 15
In re Anderson, 69 Cal. 2d 613, 447 P.2d 117, 73 Cal. Rptr.
21 (1968) .................................................................................... 6
( Hi)
Page
In re Kemmler, 136 U.S. 436 (1 8 9 0 )........................... 7, 8, 9, 11, 14
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).................... 11,15
M’Culloch v. Maryland, 4 Wheat, 316 (1819) ........................... 15
McElvaine v. Brush, 142 U.S. 155 (1 8 9 1 ) ..................................... 8
McGautha v. California, 402 U.S. 183 (1971) . . . . . . . 3, 23, 49, 53
Mackin v. United States, 117 U.S. 348 (1886) ........................... 16
Mapp v. Ohio, 367 U.S. 643 (1961) ............................................. 9
Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), vacated
on other grounds, 398 U.S. 262 (1 9 7 0 ) ................. .. 53
O’Neil v. Vermont, 144 U.S. 323 (1892) ................. .. 8, 24-25
Palko v. Connecticut, 302 U.S. 319 (1937)................................... 14
People v. Robinson, 61 Cal. 2d 820, 457 F.2d 889, 80 Cal.
Rptr. 49 (1 9 6 9 ).......................................................................... 1
People v. Stanworth, 71 Cal. 2d 820, 457 P.2d 889, 80 Cal.
Rptr. 49 (1 9 6 9 ) .......................................................................... 6
Pervear v. Massachusetts, 5 Wall. (72 U.S.) 475 (1 8 6 7 )............... 8
Powell v. Texas, 392 U.S. 514 (1968) .............................. 13, 59, 63
Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970)................. 8, 11, 23,
24, 39, 50
Robinson v. California, 370 U.S. 660 (1962)............ .. 13, 14, 15, 18
State v. Cannon, 55 Del. 585, 190 A.2d 514 (1963) . . . . . . . . 19
State ex rel. Francis v. Resweber, 329 U.S. 459 (1947) . . . . . . 8, 9
Trop v. Dulles, 356 U.S. 86 (1958) . . . 8, 9, 11, 14, 15, 18, 19, 20,
24, 26, 31, 39, 54, 57, 61, 63
United States v. Jackson, 390 U.S. 570 (1 9 6 8 ) ........................... 41
Weems v. United States, 217 U.S. 349 (1910) . . . . 7, 11, 14, 16, 17,
18, 19, 20, 24, 57
Wilkerson v. Utah, 99 U.S. 130 (1 8 7 8 )................. 8, 9, 11, 14, 25
Williams v. Florida, 399 U.S. 78 (1 9 7 0 ) ..................................... 9, 13
Williams v. New York, 337 U.S. 241 (1 9 4 9 ) ................................ 9
Williams v. Oklahoma, 358 U.S. 576 (1 9 5 9 ) ................................ 8
Witherspoon v. Illinois, 391 U.S. 510 (1968) ................. 39 ,41 ,43
(iv)
Page
Constitutional and Statutory Provisions:
Fifth Amendment, U.S. Constitution............................................. 18
Eighth Amendment, U.S. Constitution..................................... passim
Fourteenth Amendment, U.S. Constitution.........................2, 6, 7, 8,
3, 14, 53, 54
28 U.S.C. § 1257(3)........................................................................... 2
Cal. Penal Code § 187 ....................................................................... 2
Cal. Pena! Code § 188 ....................................................................... 2
Cal. Penal Code § 189 ....................................................................... 2
Cal. Penal Code § 190 ....................................................................... 2
Cal. Penal Code § 190.1 ................................................................... 2, 3
Cal. Penal Code § 1239 ................................................................... 6
Cal. Penal Code § 3604 .................................................................. 2
Cal. Penal Code §3605 ................................................................. 2,44
Act of September 24, 1789, Ch. 20, §9; 1 Stat. at L., 77 . . . . 18
I ACTS OF CANADA (16-17 Eliz. II) 145 (1967-1968) . . . . 33-34
Bill of Rights of 1689 (1 Wm. & Mary, Sess. 2, Ch. 2, Pre
amble, clause 1 0 ) ........................................................................ ' 4
Murder (Abolition of Death Penalty) Act 1965, 2 PUBLIC
GENERAL ACTS, Ch.71, p. 1577 (Nov. 8, 1965) ............... 32
II REV STAT. OF CANADA (1970) Ch. C-34 §§46, 47,
7 5 ................................................................................................... 34
4. & 5 Will. IV, Ch. 26, §§ 1 , 2 .................................................... 44
Other Authorities:
ANCEL, THE DEATH PENALTY IN EUROPEAN COUN
TRIES (Council of "Europe, European Committee on
Crime Problems, 1962) [cited as ANCEL] .................... 28, 30, 35
Appendix to the Amici Curiae Brief of the American
Friends Service Committee, et al., in Witherspoon v. Illi
nois, 391 U.S. 510 (1968) [O.T. 1967, No. 1015] ................. 32
BARNES & TEETERS, NEW HORIZONS IN CRIMINOL
OGY (3d ed. 1 9 59 )..................................................................... 44
Barry, Hanged by the Neck U ntil. . . . 2 SYDNEY L. REV.
401 (1958) ............................................................................. 27, 62
(v)
Page
Bedau, A Social Philosopher Looks at the Death Penalty,
123 AM. J. PSYCHIATRY 1361 (1 9 6 7 )...................... . . . 52, 59
Bedau, Capital Punishment in Oregon, 1903-1964, 45 ORE
L. REV. 1 (1 9 6 5 ) .............................................’.......................... 51
Bedau, Death Sentences in New Jersey 1907-1960, 19
RUTGERS L. REV. 1 (1 9 6 4 )................................... 28 ,51,52,59
Bedau, The Courts, The Constitution, and Capital Punish
ment, 1968 UTAH L. REV. 2 0 1 .......................................... 12, 55
BEDAU, THE DEATH PENALTY IN AMERICA (Rev. ed.
1967) [cited as BEDAU] ........................... 25, 31, 32, 35, 43, 44,
48, 50, 52, 59, 60, 61
Bedau, The Issue o f Capital Punishment, 53 CURRENT
HISTORY (No. 312) 82 (Aug. 1967)....................................... 32
BENTHAM, TO HIS FELLOW CITIZENS OF FRANCE
ON DEATH PUNISHMENT (1831)................................ ’ . 28, 34
BLOCK, AND MAY GOD HAVE MERCY (1962) .................... 32
BOK, STAR WORMWOOD (1 9 5 9 ) .......................................... 31,46
Brief for Petitioner, Jackson v. Georgia, O.T. 1971, No
69-5030 ..................................................................... ’ ................. 53
Brief for the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., and the National Office for the Rights of the
Indigent, as Amici Curiae, in Boykin v. Alabama, 395
U.S. 238 (1969) [O.T. 1968, No. 6 4 2 ] ..............................
BYE, CAPITAL PUNISHMENT IN THE UNITED STATES
(1919) ......................................................... 32, 44
CALVERT, CAPITAL PUNISHMENT IN THE TWENTIETH
CENTURY (1927) ..................................... ...................... 31 ,48 ,59
CALIFORNIA ASSEMBLY, REPORT OF THE SUBCOM
MITTEE OF THE JUDICIARY COMMITTEE ON CAPI
TAL PUNISHMENT (1 9 5 7 )..................................... .. 42, 60, 61
Camus, Reflections on the Guillotine in CAMUS, RESIST
ANCE, REBELLION AND DEATH (1961) [cited as
CAMUS1 • .................................................... 31-32,45,46-47,58
CANADA, HOUSE OF COMMONS, IV and V DEBATES,
27th Pari., 2d Sess. (16 Eliz. II) (1967) 33-34
(vi)
Page
CANADA, JOINT COMMITTEE OF THE SENATE AND
HOUSE OF COMMONS ON CAPITAL AND CORPORAL
PUNISHMENT AND LOTTERIES, REPORT (1956)............
CARDOZO, THE NATURE OF THE JUDICIAL PROCESS
(1921)............................................................................................
Carter & Smith, Count Down for Death 15 CRIME &
DELINQUENCY 77 (1969) .......................................................
Carter & Smith, The Death Penalty in California: A Statisti
cal and Composite Portrait, 15 CRIME AND DELIN
QUENCY 62 (1969) ...................................................................
CEYLON, SESSIONAL PAPER XIV-1959, REPORT OF
THE COMMISSION OF INQUIRY ON CAPITAL PUN
ISHMENT (1 9 5 9 )..................................................................
CLARK, CRIME IN AMERICA (1 9 7 0 )...................... 33, 51, 52,
DeMerit, A Plea for the Condemned, 29 ALA. LAWYER
440 (1968) ..................................................................................
Comment, The Death Penalty Cases, 56 CALIF. L. REV.
1268 (1968) ..................................................................................
DiSalle, Comments on Capital Punishment and Clemency,
25 OHIO ST. L. J. 71 (1964)...................... .............................
DiSalle, Trends in the Abolition o f Capital Punishment,
1 U. TOLEDO L. REV. 1 (1969) ...... .....................................
DOSTOEVSKY, THE IDIOT (Modern Library, 1 9 3 5 ) ...............
DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN
(1962).......................................................................... 50, 51, 59,
3 ELLIOT, DEBATES IN THE SEVERAL STATE CON
VENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION (2d ed. 1863)..................................................
Erskine, The Polls: Capital Punishment, 34 PUBLIC OPIN
ION QUARTERLY 290 (1970) ...............................................
FAVREAU, CAPITAL PUNISHMENT: MATERIAL RELAT
ING TO ITS PURPOSE AND VALUE (Compiled by
Hon. Guy Favreau, Canadian Minister of Justice) (Queen’s
Printer, Ottawa, 1965) [cited as FAVREAU] . .................... 31,
Filler, Movements To Abolish the Death Penalty in the
United States, 284 ANNALS 124 (1 9 5 2 ) ........................... 32,
60
15
44
51
60
56
50
12
51
51
57
60
14
39
, 60
, 44
(vii)
FORSYTH, HISTORY OF TRIAL BY JURY (2d ed.
1878) .................................................................................. ..
FRANKFURTER, OF LAW AND MEN (1956) .................
Page
22-23
. 61
Garfinkel, Research Note on Inter- and Intra-Racial Homi
cides, 27 SOCIAL FORCES 369 (1949)................................... 52
Goldberg & Dershowitz, Declaring the Death Penalty Uncon
stitutional, 83 HARV. L. REV. 1773 (1960) . . . . . 12, 23, 43, 44
Gottlieb, Capital Punishment, 15 CRIME & DELINQUENCY
1 (1969) ................. .......................... ................... ..................... 49
Gottlieb, Testing the Death Penalty, 34 SO. CALIF. L.
REV. 268 (1 9 6 1 )............................................... .. 12
Granucci, “Nor Cruel and Unusual Punishments Inflicted”:
The Original Meaning, 57 CALIF. L. REV. 839 (1969) . . . 14, 21
GOWERS, A LIFE FOR A LIFE (1956)..................................... 32
268 HANSARD, PARLIAMENTARY DEBATES (5th series)
(Lords, 43d Pari., 1st Sess., 1964-1965)................................... 7
306 HANSARD, PARLIAMENTARY DEBATES (5th Series)
(Lords, 44th Pari., 4th Sess., 1969-1970)...................... 32, 33-34
709-716 HANSARD, PARLIAMENTARY DEBATES (5th
Series) (Commons, 43d Pari., 1st Sess., 1964-1965); 268-
269 id. (Lords, 43d Pari., 1st Sess., 1964-1965) .................... 34
793 HANSARD, PARLIAMENTARY DEBATES (5th Series)
(Commons, 44th Pari., 4th Sess., 1969-1970) .................... 32, 34
Hartung, Trends in the Use o f Capital Punishment, 284
ANNALS 8 (1 9 5 2 ) .................................................... 28, 44, 50, 52
Hearings Before the Subcommittee on Criminal Laws and
Procedures o f the Senate Committee on the Judiciary,
90th Cong., 2nd Sess., on S. 1760, To Abolish the Death
Penalty (March 20-21 and July 2, 1968) (G.P.O. 1970)
[cited as Hearings]................................... 31, 32, 33, 50, 58, 59, 60
Johnson, Selective Factors in Capital Punishment, 36 SOCIAL
FORCES 165 (1957).............................................................. 51, 52
Johnson, The Negro and Crime, 217 ANNALS 93 (1941).......... 52
JOYCE, CAPITAL PUNISHMENT: A WORLD VIEW (1961) . . . 28
Kahn, The Death Penalty in South Africa, 18 TYDSKR1F
VIR HEDENDAAGSE ROMEINS-HOLLANDSE REG
108 (1970) [cited as Kahn]............................................... 28, 29, 30
Knowlton, Problems o f Jury Discretion in Capital Cases, 101
U. PA. L. REV. 1099 (1953) .................................................... 50
Koeninger, Capital Punishment in Texas, 1924-1968, 15
CRIME AND DELINQUENCY 132 (1969).............................. 51
KOESTLER, REFLECTIONS ON HANGING (Amer. ed.
1957) [cited as KOESTLER] ................................... 32, 35, 39, 59
KOESTLER & ROLPH, HANGED BY THE NECK (1961) . . . 45
Kuebler, Punishment by Death, 2 EDITORIAL RESEARCH
REPORTS (No. 3) (July 17, 1 9 6 3 ).......................................... 28
LAURENCE, A HISTORY OF CAPITAL PUNISHMENT
(1932)............ .......................................................................... 28,48
LAWES, LIFE AND DEATH IN SING SING (1928) . . . . 47, 51, 61
LAWES, TWENTY THOUSAND YEARS IN SING SING
(1932).......................................... : ...................... 26, 49, 50, 51, 57
MANGUM, THE LEGAL STATUS OF THE NEGRO (1940) . . . 52
MATTICK, THE UNEXAMINED DEATH (1966) [cited as
MATTICK].......................................................................... 27, 52, 59
McGee, Capital Punishment as Seen by a Correctional
Administrator, 28 FEDERAL PROBATION (No. 2) 11
(1964).................................................................................. 42, 51,61
MENNINGER, THE VITAL BALANCE (1963) ......................... 47
2 NATIONAL COMMISSION ON REFORM OF FEDERAL
CRIMINAL LAWS, WORKING PAPERS (G.P.O. 1970) . . . . 31
National Council on Crime & Delinquency, Board of Trust
ees, Policy Statement on Capital Punishment, 10 CRIME
AND DELINQUENCY 105 (1 9 6 4 ) .......................................... 60
NEW JERSEY, COMMISSION TO STUDY CAPITAL PUN
ISHMENT, REPORT (1964) .................................................... 60
NEW YORK STATE, TEMPORARY COMMISSION ON
REVISION OF THE PENAL LAW AND CRIMINAL
CODE, SPECIAL REPORT ON CAPITAL PUNISHMENT
(1965)........................................................................................... 60
(ix)
Note, A Study o f the California Penalty Jury in First-Degree
Murder Cases, 21 STAN. L. REV. 1297 (1 9 6 9 ) ................. 51, 52
Note, Jury Selection and the Death Penalty: Witherspoon in
the Lower Courts, 37 U. CHI. L. REV. 759 (1 9 7 0 ) ............... 41
Note, Revival o f the Eighth Amendment: Development o f
Cruel-Punishment Doctrine by the Supreme Court, 16
STAN. L. REV. 996 (1 9 6 4 ).......................................................11-12
Note, The Effectiveness o f the Eighth Amendment: An
Appraisal o f Cruel and Unusual Punishment, 36 N.Y.U.
L. REV. 846 (1 9 6 1 ) ................................................................... 11
OHIO LEGISLATIVE SERVICE COMMISSION, STAFF
RESEARCH REPORT No. 46, CAPITAL PUNISHMENT
(1961).............. 27
Patrick, The Status o f Capital Punishment: A World Perspec
tive, 56 J. CRIM. L., CRIM. & POL. SCI. 397 (1965) . . . 12,29
PENNSYLVANIA, JOINT LEGISLATIVE COMMITTEE ON
CAPITAL PUNISHMENT, REPORT (1 9 6 1 ) ...................... 52, 60
Petition for a Writ of Certiorari, in Anderson et al. v. Cali
fornia, O.T. 1968, No. 1643 Misc. [now O.T, 1971, No.
68-5007]................... .. ................................................................ 62
Petition for a Writ of Certiorari in Forcella v. New Jersey,
O.T. 1968, No. 947 Misc..................... 62
PHILLIPSON, THREE CRIMINAL LAW REFORMERS
(1923)............................................................................................ 32
PLAYFAIR & SINGTON, THE OFFENDERS (1 9 5 7 ).......... 35, 61
PRESIDENT’S COMMISSION ON LAW ENFORCEMENT
AND ADMINISTRATION OF JUSTICE, REPORT (THE
CHALLENGE OF CRIME IN A FREE SOCIETY)
(1967).................................................................................. 36, 52, 60
I RADZINOWICZ, A HISTORY OF ENGLISH CRIMI
NAL LAW AND ITS ADMINISTRATION FROM 1750
(1948)........................................................ 29,32
Recent Decision, 5 U. RICHMOND L. REV. 392 (1 9 7 1 ) .......... 12
ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949-
1953, REPORT (H.M.S.O. 1953) [Cmd. 8932] [cited as
ROYAL COMMISSION].................................................... 45, 59, 60
(x )
Rubin, Disparity and Equality o f Sentences-A Constitu
tional Challenge, 40 F.R.D. 55 (1 9 6 6 )..................................... 53
SCOTT, THE HISTORY OF CAPITAL PUNISHMENT
(1950)............................................................................................ 28
SELL1N, THE DEATH PENALTY (1959) published as an
appendix to AMERICAN LAW INSTITUTE, MODEL
PENAL CODE, Tent. Draft No. 9 (May 8, 1959) [cited
as SELLIN (1959)]........................................................... 27, 35, 59
SELLIN, CAPITAL PUNISHMENT (1967) [cited as SELLIN
(1 9 6 7 )]................................ 12, 27, 28, 31, 35, 38, 47, 55, 59, 60
2 STORY, COMMENTARIES ON THE CONSTITUTION
OF THE UNITED STATES (4th ed. 1873) ........................... 19
Supplemental Brief in Support of Petitions for Writs of Cer
tiorari, in Mathis v. New Jersey, __ U.S. ----- , 29 L. ed.
2d 885 (1971) [O.T. 1970, No. 5 0 0 6 ] ..................................... 41
Symposium on Capital Punishment, 7 N.Y. L. FORUM 247
(1961).................................................................................. 28, 42, 55
TEETERS & HEDBLOM, HANG BY THE NECK (1967) . . . . 48
The New York Times, May 4, 1 9 7 1 ............................................... 40
The New York Times, December 19, 1969 .................................. 33
The Philadelphia Sunday Bulletin, May 23, 1971 ......................... 40
TUTTLE, THE CRUSADE AGAINST CAPITAL PUNISH
MENT IN GREAT BRITAIN (1961).................................. 32, 44
UNITED NATIONS, DEPARTMENT OF ECONOMIC AND
SOCIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/
SD/9-10) (1968) [cited as UNITED NATIONS] ----- 27, 28, 29,
30, 31, 35, 50, 52, 60
UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL
(Note by the Secretary-General) Capital Punishment
(E/4947) (Feb. 23, 1971)................................................. 27, 28, 30
UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL,
Resolution 1574(E), Capital Punishment, adopted May
20, 1971 (E/RES/1574(L) May 28, 1 9 7 1 ) ............................. 31
UNITED STATES DEPARTMENT OF JUSTICE, BUREAU
OF PRISONS, NATIONAL PRISONER STATISTICS,
Bulletin No. 45, Capital Punishment 1930-1968 (August
1969 [cited as NPS (1968)] .............................. 25, 36, 37, 38, 52
(x i)
Van Niekerk, The Administration o f Justice, Law Reform
and Jurisprudence (1967) ANNUAL SURVEY OF SOUTH
AFRICAN LAW 444 . ................................................................. 30
Vialet, Capital Punishment: Pro and Con Arguments (United
States, Library of Congress, Legislative Reference Service,
Mimeo, August 3, 1966), reprinted in Hearings Before
the Subcommittee on Criminal Laws and Procedures o f
the Senate Committee on the Judiciary, 90th Cong.,
2nd Sess., on S. 1760, To Abolish the Death Penalty
(March 20-21 and July 2, 1968) (G.P.O. 1970) [cited as
Hearings] ....................................................................................... 31
WEIHOFEN, THE URGE TO PUNISH (1956) [cited as
WE1HOFEN] .......................................................................... 27, 61
West, Medicine and Capital Punishment, in Hearings Before
the Sub-Committee on Criminal Laws and Procedures
o f the Senate Committee on the Judiciary, 90th Cong.,
2nd Sess., on S. 1760, To Abolish the Death Penalty
(March 20-21 and July 2, 1968) (G.P.O. 1970) [cited as
Hearings]..................................................................... 35, 51, 57, 61
WOLFGANG & COHEN, CRIME AND RACE: CONCEP
TIONS AND MISCONCEPTIONS (1970) . .............................. 52
Wolfgang, Kelly & Nolde, Comparison o f the Executed and
Commuted Among Admissions to Death Row, 53 J.
CRIM. L., CRIM. & POL. SCI. 301 (1962)...................... 52
IN THE
Supreme Court of the United States
No. 68-5027
EARNEST JAMES AIKENS, JR., Petitioner,
v.
CALIFORNIA, Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF CALIFORNIA
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the Supreme Court of California affirm
ing petitioner’s conviction of first degree murder and sentence
of death by lethal gas is reported at 70 Cal.2d 369, 450 P.
2d 258, 74 Cal. Rptr. 882. The oral opinions of the Super
ior Court of Ventura County finding petitioner guilty and
sentencing him to die are unreported, and appear in the
trial transcript at Tr. 3372-3419 and 4980-4992.1
'Respondent has filed a motion, with petitioner’s acquiescence,
requesting that the Court consider this case upon the original record
and dispense with the printing of an Appendix. Petitioner’s brief is
required to be filed before the motion can be decided. We therefore
refer to the documents as paginated in the original record.
?
JURISDICTION
The jurisdiction of this Court rests upon 28 U.S.C. §1257
(3), the petitioner having asserted below and asserting here
a deprivation of rights secured by the Constitution of the
United States.
The judgment of the Supreme Court of California was
entered on February 18, 1969. Pursuant to Rule 22(1) of
this Court, Mr. Justice Douglas extended the time for filing
a petition for certiorari until May 30, 1969; and the peti
tion was filed on May 29, 1969.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Eighth Amendment to the Consti
tution of the United States, which provides:
“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.”
It involves the Due Process Clause of the Fourteenth
Amendment.
It further involves Cal. Penal Code §§ 187, 188, 189, 190,
190.1, 3604 and 3605, which are set forth in Appendix A
to this brief [hereafter cited as App. A, pp .____ infra], at
App. A, pp. la-3a infra 2
QUESTION PRESENTED
Does the imposition and carrying out of the death penalty
in this case constitute cruel and unusual punishment in vio
lation of the Eighth and Fourteenth Amendments?
2 Following the date of petitioner’s conviction and sentence, two
provisions of the California murder statutes were amended in partic
ulars not here relevant. The present form of the provisions is also set
forth in the same appendix, App. A, pp. 3a-4a, infra.
3
STATEMENT OF THE CASE
Following a bench trial in the Superior Court of Ventura
County, petitioner Earnest James Aikens, Jr., was convicted
of the first-degree murder of Mrs. Mary Winifred Eaton, on
April 26, 1965, and was sentenced to die for that offense.
In consolidated proceedings, he was at the same time con
victed of the first-degree murder of Mrs. Kathleen Nell Dodd
on April 3, 1962, and sentenced to life imprisonment pur
suant to Cal. Penal Code § 190.1,3 which prohibits the im
position of the death penalty upon any person who was
under the age of eighteen when the murder was committed.
Petitioner was not quite seventeen when Mrs. Dodd was
murdered, and was twenty at the time of the murder of
Mrs. Eaton.
Both of these killings were unmitigated atrocities, com
mitted during robberies and rapes of the victims after the
killer had entered their homes. Although not overwhelm
ing, the circumstantial evidence presented by the prosecu
tion was sufficient to identify petitioner as the killer. In
the penalty trial that followed his conviction of Mrs. Eaton’s
murder,4 the prosecution also showed that petitioner had
committed a third first-degree murder on June 7, 1962 and
a forcible rape on December 25, 1962. The trial court
found that:
“Earnest Aikens has since the age of eleven years
of age, or thereabouts, been involved in an almost
continuous pattern of anti-social and criminal behav
ior of one sort or another. He has graduated from
petty and minor nuisances and offenses through
more serious proceedings that have involved Juvenile
Court wardship and a commitment to Los Prietos
Boys’ School and to more recent commitments at
3App. A, pp. 2a-3a infra.
4This Court is familiar with the two-stage procedure provided by
California law for the trial of capital cases. See McGautha v. Califor
nia, 402 U.S. 183 (1971).
4
the Preston School of Industry and the Youth Train
ing School, both administered by the California
Youth Authority. In the instances of his parole
from the Authority level, his periods of surcease
from criminal behavior have been of short duration.
Now he stands convicted of two brutal, cold-blooded
and vicious killings, together with the finding that I
have here earlier made of his responsibility for a
third homicide. Interspersed with the foregoing have
been instances of assault, rape and robbery. Such
record, at the very least, demonstrated an indiffer
ent, arrogant and obvious disregard for the dignity
and value of human life and the rights of others.”
(Tr. 4987)
The court credited psychiatric findings that petitioner was
a sociopath (Tr. 4987-4989); found that he had not bene
fited from rehabilitative efforts in the past (Tr. 4988, 4991)
and was not very likely to benefit from them in the future
(Tr. 4988-4989);5 found that his criminal behavior was not
substantially explained or mitigated by his upbringing in a
fatherless and economically deprived family (Tr. 4989-4991),
but was attributable to his failure to use those opportunities
that society had given him for a free education and later
for institutional rehabilitation (Tr. 4990-4991); and, in view
of his “multiple and aggravated crimes . . . against the vic
tims . . . involved and, indeed, against society in general”
(Tr. 4992), concluded that he should be put to death (ibid).
Petitioner’s crimes were indeed aggravated. Mrs. Eaton
was a woman in her sixties, the mother of an acquaintance
of petitioner’s. While she was home alone in the middle of
the day, her house was entered; her money and a sharp
knife from her kitchen were taken; she was led to a bed
room; her arms were tied behind her with two belts; and
she was then raped and killed by several wounds of the
5 Although this last conclusion is expressed in terms of the views
of the psychiatrists, it appears that the court was itself of the same
view.
5
knife that plainly establish a deliberate and intentional
murder.
Mrs. Dodd was twenty-five years old and five months
pregnant when she was killed. Her house was entered in
the late evening, while her husband was away and her two
young children were sleeping. She ran or was taken from
the house to a railroad embankment in the area, where she
was raped. She then ran from the embankment, was over
taken in a neighbor’s driveway, and was killed by numerous
stabs of a knife that had been removed from her kitchen.
Money was also removed from Mrs. Dodd’s house.
A more detailed statement of the evidence relating to the
killings of Mrs. Eaton and Mrs. Dodd is set forth in Appen
dix B to this brief. We do not place it here because it is
lengthy and is not material to our constitutional submission
in this Court. Our submission is that the penalty of death
is a cruel and unusual punishment for the crime of first-
degree murder—or for any other civilian, peacetime crime-
no matter how aggravated. We make no claim that if the
death penalty can constitutionally be inflicted for any such
crime, it cannot be inflicted upon this petitioner.
His were ghastly crimes—as any intentional killing of a
human being is a ghastly crime-and were attended by aggra
vating features that must necessarily arouse the deepest
human instincts of loathing and repugnance. But the issue
before this Court cannot turn upon those features. This is
so because if the state may constitutionally punish peti
tioner’s crimes with death, it may also constitutionally use
death to punish murders unattended by the same features.
California’s statutes and its courts in fact do so; and we can
conceive no Eighth Amendment principle which, allowing
death punishment in the particular circumstances of this
case, could confine it to them. Cf Furman v. Georgia, O.T.
1971, No. 69-5003.
6
HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW
California’s automatic appeal statute in death penalty
cases (Cal. Penal Code § 1 239) imposes upon the California
Supreme Court an obligation to consider all legal errors
appearing in the record of a capital case. E.g., People v.
Stanworth, 71 Cal.2d 820, 457 P.2d 889, 80 Cal. Rptr. 49
(1969); People v. Robinson, 61 Cal.2d 373, 388 n. 14, 392
P.2d 970, 979 n. 14, 38 Cal. Rptr. 890, 899 n. 14 (1964).
Pursuant to that obligation, the Supreme Court here
sustained the constitutionality of the death penalty, 70 Cal.
2d at 380, 450 P.2d, at 265, 74 Cal. Rptr., at 889, under
authority of In re Anderson, 69 Cal.2d 613, 447 P.2d 117,
73 Cal. Rptr. 21 (1968), which had rejected the claim that
it was a cruel and unusual punishment forbidden by the
Eighth and Fourteenth Amendments.
SUMMARY OF ARGUMENT
The penalty of death for first-degree murder is a cruel
and unusual punishment because it affronts the basic stand
ards of decency of contemporary society. Those standards
are manifested by a number of objective indicators which
this Court can properly notice, but principally by the
extreme rarity of actual infliction of the death penalty in
the United States and the world today. Worldwide and
national abandonment of the use of capital punishment
during this century has accelerated dramatically, and has
now become nearly total.
In historical context, this development marks an over
whelming repudiation of the death penalty as an atavistic
barbarism. The penalty remains on the statute books only
to be—and because it is—rarely and unusually inflicted. So
inflicted, it is not a part of the regular machinery of the
state for the control of crime and punishment of criminals.
It is an extreme and mindless act of savagery, practiced
upon an outcast few. This is exactly the evil against which
the Eighth Amendment stands.
7
If the death penalty is declared unconstitutional, “ [t]he
State thereby suffers nothing and loses no power. The pur
pose of punishment is fulfilled, crime is repressed by penalties
of just, not tormenting, severity, its repetition is prevented,
and hope is given for the reformation of the criminal.” 6 In
the debates upon the Murder (Abolition of Death Penalty)
Bill of 1965, Lord Chancellor Gardiner made the basic point
of our argument. “When we abolished the punishment for
treason that you should be hanged, and then cut down
while still alive, and then disembowelled while still alive,
and then quartered, we did not abolish that punishment
because we sympathised with traitors, but because we took
the view that it was a punishment no longer consistent with
our self-respect.” 7 Today the death penalty in any form is
inconsistent with the self-respect of a civilized people. It is
therefore prohibited by the Eighth and Fourteenth Amend
ments.
ARGUMENT
I. INTRODUCTION
This case presents the question whether the infliction of
the penalty of death for the crime of murder, in the form
in which the death penalty is administered in California and
throughout the United States in this third quarter of the
twentieth century, is a cruel and unusual punishment for
bidden by the Eighth and Fourteenth Amendments. That
question is, we think, an open one, uncontrolled by any
prior decision of this Court. For while the Court has several
times assumed, and expressed in dicta, that “ the mere extin
guishment of life” 8 is not a constitutionally prohibited
cruel and unusual punishment, it has never focused squarely
6Weems v. United States, 217 U.S. 349, 381 (1910).
7268 HANSARD, PARLIAMENTARY DEBATES (5 th series)
(Lords, 43d Pari., 1st Sess., 1964-1965), 703 (1965).
8In re Kemmler, 136 U.S. 436, 447 (1890) (dictum).
8
upon that issue or given it the consideration warranted by
a major question arising under the Bill of Rights, particu
larly a question upon which hundreds of human lives
depend.9
9 Analysis of this Court’s prior decisions relative to capital punish
ment demonstrates the correctness of the conclusion recently reached
by the Court of Appeals for the Fourth Circuit, that “ [t]he Court has
never held directly that the death penalty is or is not cruel and unusual
punishment.” Ralph v. Warden, 438 F.2d 786, 789 (4th Cir. 1970).
In Wilkerson v. Utah, 99 U.S. 130 (1879), no constitutional conten
tion was raised on behalf of the condemned man. Id. at 136-137. The
issue presented was whether, in the absence of express statutory pro
vision, execution of a death sentence by the method of shooting was
legally authorized. The Court held that it was; and assuming what was
not questioned by Wilkerson’s counsel—that the death sentence itself
was permissible—the Court expressed the view that shooting was not a
cruel and unusual method of inflicting it. Id. at 134-136.
The cruelty of various methods of inflicting capital punishment was
also the question sought to be raised in In re Kemmler, 136 U.S. 436
(1890) (electrocution); McElvaine v. Brush, 142 U.S. 155 (1891) (soli
tary confinement preceding execution; and State ex rel. Francis v.
Resweber, 329 U.S. 459 (1947) (second electrocution after first failed
for mechanical reasons). The Kemmler and McElvaine cases were
decided upon the express ground that the Eighth Amendment did not
restrict the States (136 U.S. at 447-449; 142 U.S. at 158-159), a view
that prevailed in this Court well into the twentieth century. Pervear
v. Massachusetts, 5 Wall. (72 U.S.) 475, 479-480 (1867); O ’Neil v.
Vermont, 144 U.S. 323,331-332 (1892) (dictum); Collins v. Johnston,
237 U.S. 502, 510-51 1 (1915). Mr. Justice Frankfurter’s decisive vote
in Francis was cast on the same grounds. (329 U.S. at 466,469470.)
Thus, the Court’s expressed approval of the death penalty in the first
two cases was dictum; in the third, it was non-dispositive; and in all
three cases it was directed merely at the mode of execution of a death
sentence whose basic constitutionality was neither argued nor'atten-
tively considered.
We shall return shortly to the approval of the death penalty in Trop
v. Dulles, 356 U.S. 86, 99 (1958) (plurality opinion of Chief Justice
Warren). See pp. 26-27, infra. That too was, of course, dictum, since
no death sentence was at issue in Trop. And the general pronounce
ment that the petitioner in Williams v. Oklahoma, 358 U.S. 576 (1959),
was not denied “due process of law or any other constitutional right”
(id. at 586-587), hardly speaks to the Eighth Amendment, which was
9
We make this point at the outset for two reasons. It is,
of course, important that our Eighth Amendment con
tention against the death penalty does not ask the Court
to “depart from . . . firmly established principle,” Abbate
v. United States, 359 U.S. 187, 195 (1959), or to overturn
any “deliberately decided rule of Constitutional law,” Mapp
v. Ohio, 367 U.S. 643, 677 (1961) (Mr. Justice Harlan, dis
senting). To the contrary, the way is perfectly clear for
the Court to hold that the death penalty is a cruel and
unusual punishment consistently with the proper applica
tion of principles of stare decisis in constitutional adjudica
tion. But the matter goes further than that. In a very
practical as well as a jurisprudential sense, the Eighth Amend
ment question raised requires a judgment of first impression
from this Court.
In saying so, we do not naively suggest that the Court’s
prior opinions treat the constitutionality of capital punish
ment as debatable. Obviously, the Court has long and
firmly supposed its constitutionality; and if the question
had been appropriately posed in Wilkerson10 or Kemmler,11
capital punishment plainly would have been sustained. The
same may be true as late as Francis,12 or even Trop,13
although it is difficult to speculate what the Court would
have concluded if a square presentation of the Eighth
Amendment question had directed its attention to the enor
mous and constitutionally significant changes which the
not invoked by Williams. See also Williams v. New York, 337 U.S.
241 (1949). In summary, no discussion of the constitutionality of
capital punishment under the Eighth Amendment has ever been made
by this Court under the circumstances of focused responsibility and
consideration which entitle constitutional decisions to precedential
weight. See, e.g., Williams v. Florida, 399 U.S. 78, 90-92 (1970).
]0Wilkerson v. Utah, 99 U.S. 130 (1879), note 9 supra.
l l In re Kemmler, 136 U.S. 436 (1890), note 9 supra.
l2State ex rel. Francis v. Resweber, 329 U.S. 459 (1947), note 9,
supra.
x3Trop v. Dulles, 356 U.S. 86 (1958), note 9, supra.
10
institution of capital punishment had already undergone
between the late nineteenth century and 1947 or 1958.
Still further changes have occurred since 1958; and the
issue of the constitutionality of capital punishment today
is an altogether different issue than its validity a century
ago. Because the Court has not directly confronted the
issue during this century, it has not had occasion to con
sider the constitutional consequences of the century’s
changes; and it is for this reason that the Eighth Amend
ment question presented in 1971 must fairly be viewed
afresh, unconstrained by assumptions of the death penalty’s
validity which the Court first made in 1879 and continued
to make—without examination—twenty or a dozen years
ago.
What has happened, during the century, is an overwhelm
ing, accelerating, nation-wide and world-wide abandonment
of death as a punishment for civilian crime.14 We shall
shortly discuss the precise constitutional implications of
that evolution;15 but, upon any view, it is relevant to, and
will ultimately be decisive of, the constitutionality of capital
punishment under the Eighth Amendment. Capital punish
ment has largely gone the way of flogging and banishment,
progressively excluded by this Nation and by the civilized
nations of men from the register of legitimate penal sanc
tions. Like flogging and banishment, capital punishment is
condemned by history and will sooner or later be condemned
by this Court under the Constitution. The question is
whether that condemnation should come sooner or later.
It is whether the evolution of civility that is inexorably ren
dering the death penalty intolerable has so far advanced as
to make the Eighth Amendment take hold upon this doomed,
deadly institution; or whether the United States-following
a period of more than four years since June 2, 1967 with
out an execution—must now relapse into killing some or all
14See pp. 27-39, infra.
15See pp. 39-61, infra.
of the more than 660 men on its death rows before that
evolution reaches the stage at which their killings are estab
lished to be unconstitutional.
We put the issue in this way not because we enjoy the
presumptuous exercise of predicting history and the future
outcome of this Court’s decisions but because, inescapably,
that is the issue. No one can dispute, we believe, either the
fact of the evolution we describe or the legal consequence
that, at some point in its development, that evolution must
call into play the Cruel and Unusual Punishment Clause of
the Eighth Amendment. It must, for the same reasons that
a similar evolution has brought flogging16 and banishment17
under the Eighth Amendment’s ban. The questions then
arise: What principles should this Court use to determine
the course of historical development, and the point upon
that course, which mark a progressively repudiated punish
ment as cruel and unusual for Eighth Amendment purposes?
And with regard to capital punishment, has that course
been followed and that point been reached?
These questions are not without difficulty because, as
has frequently been noted, the Eighth Amendment itself is
not without difficulty.18 The Court’s decisions have not
undertaken to define in comprehensive terms the concept
of “cruel and unusual punishments.” 19 Different approaches
16Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968).
xlTrop v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion of
Chief Justice Warren); Dear Wing Jung v. United States, 312 F.2d 73,
75-76 (9th Cir. 1962).
18Wilkerson v. Utah, 99 U.S. 130, 135-136 (1879); In re Kemmler,
136 U.S. 436, 447 (1890); Weems v. United States, 217 U,S. 349,
370,375 (1910), Jackson v. Bishop, 404 F.2d 571, 577 (8th Cir. 1968);
Ralph v. Warden, 438 F.2d 786, 789 (4th Cir. 1970).
19Weems v. United States, 217 U.S. 349, 368-369 (1910); Trop v.
Dulles, 356 U.S. 86, 100 (1958) (plurality opinion of Chief Justice
Warren); Note, The Effectiveness o f the Eighth Amendment: An
Appraisal o f Cruel and Unusual Punishment, 36 N.Y.U.L. REV. 846
(1961); Note, Revival o f the Eighth Amendment: Development o f
12
to that concept are available which would bring the death
penalty within its prohibition. The approach taken in this
brief is narrower than others that have been persuasively
argued.20 Our approach concentrates upon the particular
characteristic of capital punishment that it shares with only
a very few other punishments, notably flogging and banish
ment which have already been constitutionally forbidden.
That characteristic is extreme contemporary rarity result
ing from a demonstrable historical movement which can
only be interpreted fairly as a mounting and today virtually
universal repudiation. Today, “ [d]eath is the rarest of all
punishments for crime.” 21 So far has its repudiation
advanced that, if the United States were in fact to execute
its 660 condemned men in 1971, it would thereby become
uncontestably the greatest killer of human beings by judi
cial process in the world—probably, the killer of more men
than all other non-communist nations of the world com
bined.22 This observation speaks strongly to the question
Cruel-Punishment Doctrine by the Supreme Court, 16 STAN. L. REV.
996 (1964); Recent Decision, 5 U. RICHMOND L. REV. 392, 393
(1971).
20Goldberg & Dershowitz, Declaring the Death Penalty Uncon
stitutional, 83 HARV. L. REV. 1773 (1970); Gottlieb, Testing the
Death Penalty, 34 SO. CALIF. L. REV. 268 (1961); Bedau, The Courts,
The Constitution, and Capital Punishment, [1968] UTAH L. REV.
201; Comment, The Death Penalty Cases, 56 CALIF. L. REV. 1268
(1968).
21 Sellin, The Inevitable End o f Capital Punishment, in SELLIN,
CAPITAL PUNISHMENT (1967) [hereafter cited as SELLIN (1967)],
239.
22Virtually no information is available concerning executions in
communist countries. Patrick reports an average of 535.3 executions
per year between 1958 and 1962 in the 89 countries using the death
penalty for which he could obtain data. Patrick, The Status o f Cap
ital Punishment: A World Perspective, 56 J. CRIM. L., CRIM. & POL.
SCI. 397,408 (1965). After subtraction of the 48.6 annual executions
that Patrick reports for the United States during this period (id. at
404), the remaining 88 countries conducted 486.7 executions annually.
They include all of the major death penalty countries of the world
except the communist nations and the following: Burma, Haiti, India,
13
whether death is a cruel and unusual punishment within the
meaning of the Constitution of a Nation which aspires to
be one of the world’s more enlightened peoples.
But our approach to the Eighth Amendment concentrates
primarily upon the evolution of the death penalty in the
United States itself. Properly viewed, that evolution has
brought this country to a stage at which the relevant consti
tutional indicators of a cruel and unusual punishment have
abundantly matured. America has had its time of “experi
mentation” 23 with the killing of men; the experiment has
led to one inexorable conclusion; and further development
can only make more manifest—at a terrible cost—what is
already manifest and manifestly fitting as a basis for judicial
application of the Constitution. To demonstrate why this
is so, we first discuss the nature of the Eighth Amendment’s
concern against cruel and unusual punishments, and then
proceed to test the death penalty in light of that concern.
II. THE RELEVANT EIGHTH AMENDMENT STANDARD
At the heart of the Eighth Amendment24 lurks an extra
ordinary dilemma whose resolution is, we think, the key to
decision of this case. The dilemma arises from the con
frontation of three basic principles.
Iran, Mali, Mexico (29 of whose 32 jurisdictions have legally abolished
the death penalty), Nicaragua, Pakistan, Sierra Leone, Sudan and the
Republic of Viet Nam. These latter countries would therefore have
to account for more than a quarter of the executions in the non
communist. world in order to bring the non-communist total, exclusive
of the United States, to 660 according to Patrick's figures. And
Patrick’s figures appear to be unduly high. See note 51, infra.
23See Powell v. Texas, 392 U.S. 514, 536-537 (1968) (plurality
opinion of Mr. Justice Marshall); Williams v. Florida, 399 U.S. 78, 138
(1970) (separate opinion of Mr. Justice Harlan).
24The Cruel and Unusual Punishment Clause of the Eighth Amend
ment is made applicable to the States through the Due Process Clause
of the Fourteenth. Robinson v. California, 370 U.S. 660 (1962), so
holds; and there can be little doubt that this Bill ot Rights guarantee,
14
First, in the context of American government, the Eighth
Amendment’s proscription of cruel and unusual punishments
forbids the legislative enactment of such punishments as
well as the judicial imposition of them. This has always
been accepted. Weems v. United States, 217 U.S. 349, 366,
378-379, 382 (1910); Trop v. Dulles, 356 U.S. 86, 103-104
(1958) (plurality opinion of Chief Justice Warren)', Robinson
v. California, 370 U.S. 660 (1962); and see Wilkerson v.
Utah, 99 U.S. 130, 133, 136-137 (1879) (dictum); In re
Kemmler, 136 U.S. 436, 446-447 (1890) (dictum).
Second, the force of the Amendment is not limited to
ihe prohibition of those atrocities that would have turned
the stomachs of the Framers in the Eighteenth Century.25
whose “basic concept . . , is nothing less than the dignity of man,”
Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion of Chief
Justice Warren), satisfies the most restrictive test for adoption as a
measure of due process. Its derivation from times anterior to Magna
Carta (see Granucci, “Nor Cruel and Unusual Punishments Inflicted: ”
The Original Meaning, 57 CALIF. L. REV. 839, 845-846 (1969))
through the Bill of Rights of 1689 (1 Wm. & Mary, sess. 2, ch. 2, pre
amble, clause 10) amply establishes that it is a “ ‘principle of justice so
rooted in the traditions and conscience of our people as to be ranked
as fundamental.’” Palko v. Connecticut, 302 U.S. 319; 325 (1937).
Tire point did not escape Patrick Henry in 1788. “What has distin
guished our ancestors?—That they would not admit of tortures, or
cruel and barbarous punishment.” 3 ELLIOT, DEBATES IN THE
SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION (1863), 447.
For convenience, we shall speak simply of the Eighth Amendment
throughout this brief, meaning thereby the Cruel and Unusual Punish
ment Clause as it measures the liberty protected by the Due Process
Clause of the Fourteenth Amendment.
25Certainly the Eighth Amendment does bar those atrocities, but
they mark only the core of minimum content of its prohibition. This
is what was meant in Wilkerson v. Utah, 99 U.S. 130, 136 (1879), by
the observation that, although the exact extent of the Cruel and
Unusual Punishment Clause is difficult of definition, “it is safe to
affirm that punishments of torture . . . , and all others in the same line
of unnecessary cruelty, are forbidden.” Wilkerson does not suggest,
as the Weems dissent seems to imply, that torture is the outer limit
of the Amendment. Weems r. United States, 217 U.S. 349,400-401
15
This conclusion is compelled by both authority and reason,
“ [I]t is a constitution we are expounding,” 26 and the Con
stitution “states or ought to state not rules for the passing
hour, but principles for an expanding future.” 27 Thus,
Trop v. Dulles, 356 U.S. 86 (1958), outlawed the hoary
penalty of banishment with the observations that the scope
of the Cruel and Unusual Punishment Clause “is not static,”
and that the “Amendment must draw its meaning from the
evolving standards of decency that mark the progress of a
maturing society.” {Id., at 101 (plurality opinion of Chief
Justice Warren).) See also Robinson v. California, 370 U.S.
660, 666 (1962) (referring to “the light of contemporary
human knowledge”); Jackson v. Bishop, 404 F.2d 571, 578-
580 (8th Cir. 1968); Goss v. Bomar, 337 F.2d 341,342-343
(6th Cir. 1964) {dictum). Such a conception of evolving
standards is a constitutional commonplace,28 and is firmly
(1910) (Mr. Justice White, dissenting). Nor could the Amendment be
so limited for the reasons stated convincingly by the majority in
Weems:
“ . . . [S] urely [the Framers] . .. intended more than to
register a fear of the forms of abuse that went out of practice
with the Stuarts. Surely, their jealousy of power had a saner
justification than that. They were men of action, practical
and sagacious, not beset with vain imagining, and it must have
come to them that there could be exercises of cruelty by
laws other than those which inflicted bodily pain or mutila
tion . . . . [1] f we are to attribute an intelligent providence
to [the Eighth Amendment’s] . . . advocates we cannot think
that it was intended to prohibit only practices like the Stuarts,
or to prevent only an exact repetition of history. We cannot
think that the possibility of a coercive cruelty being exercised
through other forms of punishment was overlooked.” (Id.
at 372-373.)
26jM’Culloch v. Maryland, 4 Wheat. 316, 407 (1819).
27CARDOZO, THE NATURE OF THE JUDICIAL PROCESS
(1921), 83.
28E.g.,Brown v. Board o f Education, 347 U.S. 483,492493 (1954)
(“In approaching this problem, we cannot turn the clock back to 1868
when the [Fourteenth] Amendment was adopted . .. .”); Ex parte Wil
son, 114 U.S. 417, 427-428 (1885) (“What punishments shall be con
sidered as infamous [for purposes of the Fifth Amendment’s indictment
16
entrenched in the jurisprudence of the Eighth Amendment
in particular. The Cruel and Unusual Punishment Clause
requirement] may be affected by the changes of public opinion from
one age to another.”) Reference was made to Wilson and to Mackin
v. United States, 117 U.S. 348, 351 (1886), in Weems v. United States,
217 U.S. 349, 378 (1910), which canvassed the subject in this frequently
quoted passage:
“Legislation, both statutory and constitutional, is enacted,
it is true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that
evil had theretofore taken. Time works changes, brings into
existence new conditions and purposes. Therefore a principle
to be vital must be capable of wider application than the
mischief which gave it birth. This is peculiarly true of con
stitutions. They are not ephemeral enactments, designed to
meet passing occasions. They are, to use the words of Chief
Justice Marshall, ‘designed to approach immortality as nearly
as human institutions can approach it.’ The future is their
care and provision for events of good and bad tendencies of
which no prophecy can be made. In the application of a
constitution, therefore, our contemplation cannot be only of
what has been but of what may be. Under any other rule a
constitution would indeed be as easy of application as it
would be deficient in efficacy and power. Its general prin
ciples would have little value and be converted by precedent
into impotent and lifeless formulas. Rights declared in words
might be lost in reality. And this has been recognized. The
meaning and vitality of the Constitution have developed
against narrow and restrictive construction. There is an
example of this in Cummings v. State o f Missouri, 4 Wall. 277,
where the prohibition against ex post facto laws was given a
more extensive application than what a minority of this
court thought had been given in Calder v. Bull, 3 Dali. 386.
See also Ex parte Garland, 4 Wall. 333. The construction of
the 14th Amendment is also an example, for it is one of the
limitations of the Constitution. In a not unthoughtful opin
ion Mr. Justice Miller expressed great doubt whether that
Amendment would ever be held as being directed against any
action of a State which did not discriminate ‘against the
negroes as a class, or on account of their race.’ Slaughterhouse
Cases, 16 Wall. 36, 81. To what extent the Amendment has
expanded beyond that limitation need not be instanced.
“There are many illustrations of resistance to narrow con
structions of the grants of power to the National Government.
One only need be noticed, and we select it because it was
made against a power which more than any other is kept
present to our minds in visible and effective action. We mean
17
“may be therefore progressive, and is not fastened to the
obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice.” Weems v. United States,
217 U.S. 349, 378 (1910).
To deny this dynamic character to the Eighth Amendment
would produce inconceivable results. Appendix C to this
brief sets forth some of the punishments legally in force
and commonly in use in this country during the period
when the Cruel and Unusual Punishment Clause was written
and adopted. If 1791 is indeed the constitutional bench
mark and if the Constitution does not forbid capital punish
ment today upon the theory that it was widely allowed by
law and practice in 1791, then the Eighth Amendment also
does not forbid today—and will never forbid—the stocks and
the pillory, public flogging, lashing and whipping on the
bare body,29 branding of cheeks and forehead with a hot
the power over interstate commerce. This power was deduced
from the eleven simple words, ‘to regulate commerce with
foreign nations and among the several States.’ The judgment
which established it was pronounced by Chief Justice Marshall
(Gibbons v. Ogden), and reversed a judgment of Chancellor
Kent, justified, as that celebrated jurist supposed, by a legis
lative practice of fourteen years and fortified by the opinions
of men familiar with the discussions which had attended the
adoption of the Constitution. Persuaded by such considera
tions the learned chancellor confidently decided that the
Congressional power related to ‘external, not to internal, com
merce,’ and adjudged that under an act of the State of New
York, Livingston and Fulton had the exclusive right of using
steamboats upon all of the navigable waters of the State. The
strength of the reasoning was not underrated. It was sup
ported, it was said, ‘by great names, by names which have all
the titles to consideration that virtue, intelligence and office
can bestow.’ The narrow construction, however, did not pre
vail, and the propriety of the arguments upon which it was
based was questioned. It was said, in effect, that they sup
ported a construction which ‘ would cripple the government
and render it unequal to the objects for which it was declared
to be instituted, and to which the powers given, as fairly
understood, render it competent’. . . (Id. at 373-375.)
29Whipping was not thought to be a particularly serious punish
ment in the late eighteenth century. “ [B]y the first Judiciary Act of
the United States, whipping was classed with moderate fines and short
18
iron, and the slitting, cropping, nailing and cutting off of
ears. Further discussion of a “static” theory of the Eighth
Amendment seems unnecessary.30
Third, in applying the Eighth Amendment to advancing
and changing times, the courts are to be guided by the
touchstone of “contemporary human knowledge,” 31 “pub
lic opinion . . . enlightened by a humane justice,” 32 and
“the evolving standards of decency that mark the progress
of a maturing society.” 33 What other standards, after all,
could possibly be used? Surely it was not the purpose of
the Eighth Amendment that succeeding generations of
judges should mirror in it their own, individual philosophies
of the criminal sanction. So, if the obsolete and eldritch
customs of 1791 are not to be perpetually controlling,
where else may judges look but to enlightened public opin
ion for conception of the “cruel and unusual punishments”
which the Constitution forbids?
And there stands the dilemma. Quite perceptibly, an
extreme difficulty must attend any process of constitutional
adjudication by which this Court subjects legislation to the
terms of imprisonment in limiting the criminal jurisdiction of the Dis
trict Courts to cases ‘where no other punishment than whipping, not
exceeding thirty stripes, a fine not exceeding one hundred dollars, or
a term of imprisonment not exceeding six months, is to be inflicted.’
Act of September 24,1789, chap. 20, § 9; 1 Stat. at L., 77.” Ex parte
Wilson, 114 U.S. 417, 427428 (1885).
30The argument has sometimes been advanced that the Eighth
Amendment cannot forbid capital punishment consistently with the
indictment clause of the Fifth, which speaks of (and, so the argument
goes, constitutionalizes) “capital . . . crime.” This reasoning, like the
static theory of the Eighth Amendment generally, proves too much.
For the double jeopardy clause of the constitution also speaks of “jeo
pardy of life or limb.” (Emphasis added.)
31 Robinson v. California, 370 U.S. 660, 666 (1962).
32 Weems v. United States, 217 U.S. 349, 378 (1910).
33Trap v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion of
Chief Justice Warren).
19
test of “enlightened public opinion,” and adjudges the
validity of a legislature’s product according to society’s
“standards of decency.” For, both in constitutional con
templation and in fact, it is the legislature, not the Court,
which responds to public opinion and immediately reflects
the society’s standards of decency. If the question asked
by the Eighth Amendment really be whether our democratic
society can tolerate the existence of any particular penal law
that is on the books, the Eighth Amendment’s answer will
always be that it can-and for the simple reason that the
law is on the books of a democratic society.34 The conclu
sion therefore seems to be required either that the Eighth
Amendment is not a judicially enforceable restriction upon
l legislation;35 or that the Weems-Trop test referring to con-
J temporary public standards of decency is not a usable mea
sure of the Amendment; or else that the question which we
have just posed is not the proper question to which the
'Amendment and the Weems-Trop test respond.
As this way of putting the matter suggests, we think that
the question-whether the maintenance of a particular harsh
penalty on the statute books is consistent with prevailing
standards of decency—is the wrong question. We suggest
what we think is the right one below. For we cannot
believe that the Eighth Amendment is not a restriction upon
34Mr. Justice Story therefore wrote that the Eighth Amendment
“would seem to be wholly unnecessary in a free government, since it
is scarcely possible that any department of such a government should
authorize or justify such atrocious conduct” as the Amendment for
bids. 2 STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES (4th ed. 1873), 623. This observation has
undoubted merit with regard to penal laws that are generally and
uniformly enforced, but it is inapplicable to selectively and rarely
enforced punishments. Precisely in regard to such “cruel and unusual
punishments,” the Amendment is most necessary.
35See State v. Cannon, 55 Del. 585,190 A.2d 514 (1963), sustaining
the punishment of whipping in an opinion which effectively denies any
judicial review of legislation under the Cruel and Unusual Punish
ment Clause.
20
cruel and unusual penal legislation rightly enforceable by
this Court. Nor can we believe that the Amendment’s pro
hibition is restricted to live disembowelment and similar
long-gone butcheries—nor, on the other hand, that it invokes
the unassisted penological impressions of particular Justices.
The Weems-Trop test is, we submit, the proper one. Com
mon standards of decency in our contemporary society do
set the limits of punishment allowable under the Eighth
Amendment. The problem is how those standards are to
be ascertained, and with regard to what specific question.
We begin with the specific question. When a man such
as Earnest Aikens comes before the Court claiming that the
law under which he was sentenced provides for an uncon
stitutional cruel and unusual punishment, the question is
not: will contemporary standards of decency allow the
existence of such a general law on the books? The ques
tion is, rather: will contemporary standards of decency
allow the general application of the law’s penalty in facfl
The distinction which we draw here lies between what
public conscience will allow the law to say and what it will
allow the law to <io-between what public decency will per
mit a penal statute to threaten and what it will allow the
law to carry out-between what common revulsion will for
bid a government to put upon its statute books as the
extreme, dire terror of the State (not to be ordinarily, regu
larly or in other than a few rare cases enforced), and what
public revulsion would forbid a government to do to its
citizens if the penalty of the law were generally, even-
handedly, non-arbitrarily enforced in all of the cases to
which it applied.
This last point-regarding general, even-handed, non-
arbitrary application—is critical. For in it lies, we think,
a large part of the need to have a Cruel and Unusual Punish
ment Clause in the Constitution, and of the need to have
courts enforce it. The government envisaged lor this coun
try by the Constitution is a democratic one, and in a demo
cracy there is little reason to fear that penal laws will be
placed upon the books which, in their general application.
21
would affront the public conscience. The real danger con-
r cerning cruel and inhuman laws is that they will be enacted
•in a form such that they can be applied sparsely and spottily
jto unhappy minorities, whose numbers are so few, whose
plight so invisible, and whose persons so unpopular, that
society can readily bear to see them suffer torments which
would not for a moment be accepted as penalties of general
.application to the populace.36
36A recent detailed analysis of the historical origins of the cruel
and unusual punishment clause of the Eighth Amendment demonstrates
that the provision of the English Bill of Rights of 1689 from which
the Eighth Amendment’s language was taken verbatim was concerned
primarily with the irregular, selective application of harsh (but not
intrinsically barbaric) punishments; and that its cardinal aim was to
forbid the oppressive exercises of a legally unregulated power to mete
out severe punishments arbitrarily. Granucci, “Nor Cruel and Unusual
Punishments Inflicted:” The Original Meaning, 57 CAL. L. REV. 839,
845-847, 852-860 (1969). To be sure, Granucci also finds that the
American Framers imperfectly understood the English background of
the Cruel and Unusual Punishment Clause, and that they were them
selves principally concerned with the problem of intrinsically barbaric
penalties. But this does not support a conclusion that the Framers
meant to wholly alter the meaning of the guarantee which they found
in t1, English traditions, or to reject protections of the citizen long
presci/ed by their English heritage.
The debates in Congress and in the ratifying conventions concern
ing the Eighth Amendment are set forth in Appendix D to this brief.
Discussion of the Cruel and Unusual Punishment Clause was notably
brief; and only one or two of those who voted for it spoke. What
they said unquestionably sustains the view that they meant to include
in the guarantee a proscription of inherently barbarous penalties. It
does not sustain the view that they meant to jettison other restrictions
upon punishment which were encompassed by the language that they
took as embodying the basic rights of the citizen evolved through the
course of English history. To the contrary, it is apparent that the
principal motive force behind inclusion of the Eighth Amendment in
the Constitution was the relatively simple and imprecise notion that
its guarantees had always been recognized as restrictions upon English
government, and that the new national government established by the
Constitution and given considerable powers over individuals could not
safely be unleashed from the same safeguards.
Herein is found the difference between the judgment
which the legislator makes, responding politically to public
conscience, and the judgment which a court must make
under the obligation that the Eighth Amendment imposes
upon it to respond rationally to public conscience. A legis
lator may not scruple to put a law on the books (still less,
to maintain an old law on the books) whose general, even-
handed, non-arbitrary application the public would abhor-
precisely because both he and the public know that it will
not be enforced generally, even-handedly, non-arbitrarily.
But a court cannot sustain such a law under the Eighth
Amendment. It cannot do so because both the Amendment
itself and our most fundamental principles of due process
and equal protection forbid American governments the
devices of arbitrariness and irregularity, even as a sop to
public conscience.
To put the matter another way, there is nothing in the
political process by which public opinion manifests itself
in legislated laws that protects the isolated individual from
being cruelly treated by the state. Public conscience often
will support laws enabling him to be so mistreated, provided
that arbitrary selection can be made in such a fashion as to
keep his numbers small and the horror of his condition
mute.37 Legislators neither must nor do take account of
37William Forsyth wrote:
“ .. . When in respect of any class of offenses the difficulty
of obtaining convictions is at all general in England, we may
hold it as an axiom, that the law requires amendment. Such
conduct in juries is the silent protest of the people against its
undue severity. This was strongly exemplified in the case of
prosecutions for the forgery of bank-notes, when it was a
capital felony. It was in vain that the charge was proved.
Juries would not condemn men to the gallows for an offense
of which the punishment was out of all proportion to the
crime; and as they could not mitigate the sentence they
brought in verdicts of Not Guilty. The consequence was, that
the law was changed; and when secondary punishments were
substituted for the penalty of death, a forger had no better
chance of an acquittal than any other criminal. Thus it is
that the power which juries possess of refusing to put the law
in force has, in the words of Lord John Russell, ‘been the
23
such individuals.38 But it is the precise business of courts
to take account of them, and to disallow under the Eighth
Amendment the application to them of penalties so harsh
that public conscience would be appalled by their less
arbitrary application.39
We shall develop this theme more fully, in the pages that
follow, with regard to the death penalty. But we have said
enough, at this point, to enable us to state our major sub
mission on behalf of Earnest Aikens. His sentence of death
for the crime of first-degree murder is an unconstitutional
cause of amending many bad laws which the judges would
have administered with professional bigotry, and above all, it
has this important and useful consequence, that laws totally
repugnant to the feelings of the community for which they
are made, can not long prevail in England.” ’
FORSYTH, HISTORY OF TRIAL BY JURY (2d ed. 1878), 367-368.
However, as this Court recognized in McGautha v. California, 402 U.S.
183 (1971) the American Legislative response to “the problem of
jury nullification” in capital cases was to substitute discretionary for
mandatory capital sentencing provisions. In this way, laws which might
be “totally repugnant to the feelings of the community” as applied to
the generality of cases could nevertheless be preserved for sporadic
application, free of the pressures of either jury nullification or public
pressure on the legislature.
38See Ralph v. Warden, 438 F.2d 786, 792 (4th Cir. 1970):
“Although the legislature has the responsibility of estab
lishing criminal penalties, subject only to constitutional limi
tations, popular acceptance or rejection of capital punishment
is reflected by the incidence of actual executions. When the
death penalty for rape is exacted with the infrequency that
the statistics disclose, there is little pressure for amendment.
Public awareness diminishes as the frequency of imposing the
penalty decreases, and legislative action is not likely to be
prompted when the consequences befall only a few prisoners.
For purposes of ascertaining evolving standards, the retention
of the death penalty for rape in the codes of some states is
less significant than its steady fall into disuse and the present
moratorium on executions.”
39A somewhat similar analysis leads Goldberg and Dershowitz to
the conclusion that “A penalty . . . should be considered ‘unusually’
imposed [in the sense of the Eighth Amendment] if it is administered
arbitrarily or discriminatorily.” Goldberg & Dershowitz,Declaring the
Death Penalty Unconstitutional, 83 HARV. L. REV. 1773,1790 (1970).
24
cruel and unusual punishment because it affronts contem
porary standards of decency, universally felt, that would
condemn the use of death as a penalty for that crime if
such a penalty were uniformly, regularly, and even-handedly
applied either to all first-degree murderers or to any rea
sonable proportion of those eligible for the penalty under
California law.40
We use the term “reasonable proportion” in order to
exclude the sort of tolerance which a law may obtain through
rare—or, in the constitutional sense, “unusual” 41—applica-
40In saying this, we do not ignore the aggravating features of
Earnest Aikens’ own case. Those features are immaterial for present
purposes, because under California law Aikens’ sentence of death need
not, and does not, depend upon them. Cases presenting the same or
worse features might result in a life sentence; cases presenting strongly
mitigating circumstances might draw down a death verdict. It is mean
ingless to ask how enlightened public opinion would react to any par
ticular case. The relevant Eighth Amendment touchstone is the
judgment of enlightened public opinion upon the use of the penalty
prescribed for the crime defined by law.
41 “Whether the word ‘unusual’ has any qualitative meaning different
from ‘cruel’ is not clear. On the few occasions this Court has had to
consider the meaning of the phrase, precise distinctions between
cruelty and unusualness do not seem to have been drawn. See Weems
v. United States,. . .; O ’Neil v. Vermont,. . .; Wilkerson v. Utah........
These cases indicate that the Court simply examines the particular
punishment involved in light of the basic prohibition against inhuman
treatment, without regard to any subtleties of meaning that might be
latent in the word ‘unusual.’ But cf. In re Kemmler,. . .; United States
ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255
U.S. 407, 430 (Brandeis, J., dissenting). If the word ‘unusual’ is to
have any meaning apart from the word ‘cruel,’ however, the meaning
should be the ordinary one, signifying something different from that
which is generally done.” Trop v. Dulles, 356 U.S. 86, 100-101 n.32
(1958) (plurality opinion of Chief Justice Warren). We think that the
constitutional word “unusual” does have some meaning, see note 36,
supra; and that in determining whether a particular punishment is
“unusual” or “different from that which is generally done,” it is nec
essary to look to the actual infliction of the punishment, not its mere
statutory authorization. See Ralph v. Warden, 438 F.2d 786, 792,
(4th Cir.1970), quoted in note 38, supra; O ’Neil v. Vermont, 144
25
tion. We do so for the reasons which we have just stated:
that is, because we believe that the Cruel and Unusual Pun
ishment Clause is designed precisely to condemn any penalty
so oppressive that it can command public acceptance only
by virtue of extremely infrequent and sporadic enforcement.
Laws are written to be enforced with practicable generality
in the cases to which they apply; and so it is a fair measure
of a law’s acceptability to imagine its general enforcement.
Let us do so with regard to capital punishment for first-
degree murder.
Let us take a very modest standard of generality and
assume that the United States were to execute 184 first-
degree murderers this year. We have chosen that figure-in
the absence of any obtainable information concerning the
number of first-degree murder convictions annually42—because
it represents the largest number of murderers executed in
the country since reliable counts began to be kept in 1930.
During the year 1935, 184 men and women were put to
death for murder in the United States.43 Of course, it is
absurd to suppose that as few first-degree murder convic
tions are returned yearly in the 1970’s as in the 1930’s; and
U.S. 323, 337, 338 (1892) (Mr. Justice Field, dissenting). Cf Wilker-
son v. Utah, 99 U.S. 130, 135 (1879), which, after recounting Black-
stone’s enumeration of the methods of execution authorized by
English law (i.e., live disembowelment, beheading and quartering),
adds: “History confirms the truth of these atrocities, but the com
mentator states that the humanity of the nation by tacit consent
allowed the mitigation of such parts of those judgments as savored of
torture or cruelty, and he states that they were seldom strictly carried
into effect.”
42 See Appendix F infra. And see Bedau, Volume and Rate o f
Capital Crimes, in BEDAU, THE DEATH PENALTY IN AMERICA
(Rev. ed. 1967) [hereafter cited as BEDAU], 56-74.
43UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, NATIONAL PRISONER STATISTICS, Bulletin No. 45,
Capital Punishment 1930-1968 (August 1969) [hereafter cited as NPS
(1968)], p. 7.
26
even in the 1930’s such knowledgeable observers as Warden
Lewis E. Lawes of Sing Sing recognized that the death
penalty was not being generally enforced.44 Nonetheless,
let us take the 1935 national high-water mark of 184 first-
degree murderers as a measure of some generality of enforce
ment of the death penalty for murder.
Imagine now 184 electrocutions and gassings in the United
States in 1971. That is four times the number of human
beings executed during any of the past ten years, and exceeds
by 50 the total number of executions for the ten-year
period.45 If, in fact, 184 murderers were to be executed
in this year 1971, we submit it is palpable that the public
conscience of the Nation would be profoundly and funda
mentally revolted, and that the death penalty for murder
would be abolished forthwith as the atavistic horror that it
is. Our detailed reasons for this submission follow. First,
we pause for one additional paragraph to make our legal
point clear.
We disagree not at all with the reasoning process, but we
dispute the factual premise—unexamined then and now
demonstrably incorrect—of the dictum announced by this
Court thirteen years ago in Trop v. Dulles, 356 U.S. 86
(1958):
. . Whatever the arguments may be against capital
punishment, both on moral grounds and in terms of
accomplishing the purposes of punishment—and they
are forceful—the death penalty has been employed
throughout our history, and, in a day when it is still
widely accepted, it cannot be said to violate the
constitutional concept of cruelty.” {Id. at 99 (plu
rality opinion of Chief Justice Warren; emphasis
added).)
44LAWES, TWENTY THOUSAND YEARS IN SING SING (1932),
306-307, quoted at note 96, infra.
45 See p. 37, infra.
27
We think that it is simply not correct that the death
penalty is today “still widely accepted.” We speak, for the
reasons that we have already stated, not of its acceptance
on the pages of the statute books, but of its acceptance in
actual usage—and of such acceptance as it does not illegiti
mately obtain by being irregularly and arbitrarily applied.
Far from being “widely accepted”, the death penalty today
is with rare public unanimity rejected and repudiated. We
proceed next to demonstrate this point and to develop its
constitutional implications.
III. THE PENALTY OF DEATH
The acceptance which a punishment is given by contem
porary society, and its acceptability under that society’s
prevailing standards of decency, may be measured by objec
tive indicators. In the case of the death penalty today,
numerous indicators point in a single direction. Language
requires that we state them one by one; but it is their plain
convergence that, we think, marks the punishment of death
as unacceptable, cruel and unusual.
(1) All informed observers of the death penalty agree in
describing a world-wide trend toward its disuse that is nothing
short of drastic.46 This has been a relatively constant long-
46UNITED NATIONS, DEPARTMENT OF ECONOMIC AND
SOCIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/SD/9-10)
(1968) [hereafter cited as UNITED NATIONS] 81-82,96-97, UNITED
NATIONS, ECONOMIC AND SOCIAL COUNCIL, Note by the
Secretary-General, Capital Punishment (E/4947) (February 23,1971),
pp. 3,10; SELLIN, THE DEATH PENALTY (1959), published as an
appendix to AMERICAN LAW INSTITUTE, MODEL PENAL CODE,
Tent. Draft No. 9 (May 8,1959) [hereafter cited as SELLIN (1959)],
4-14; Sellin, The Inevitable End o f Capital Punishment, in SELLIN,
(1967), 239-240; MATTICK, THE UNEXAMINED DEATH (1966)
[hereafter cited as MATTICK], 5-6, WEIHOFEN, THE URGE TO
PUNISH (1956) [hereafter cited as WEIHOFEN], 163-164; OHIO
LEGISLATIVE SERVICE COMMISSION, STAFF RESEARCH
REPORT No. 46, CAPITAL PUNISHMENT (1961), 16-30; Barry,
Hanged by the Neck Until. . . , 2 SYDNEY L. REV. 401,411 (1958);
28
term development, despite expectable short-term swings 47
Whereas Jeremy Bentham wrote in 1831 that “on the part
of rulers—general custom—general at least, not to say uni
versal-delivers its testimony in favour of this punishment,”4S
it is now the case that most of the nations of Western
Europe and the Western Hemisphere have legally abolished
capital punishment as a penalty for civilian crime.49 The
majority of nations in the world retain the death penalty
Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS L.
REV. 1, 9-11 (1964); Kuebler, Punishment bv Death, 2 EDITORIAL
RESEARCH REPORTS (No. 3) 527, 527-537 (July 17,1963); Hartung,
Trends in the Use o f Capital Punishment, 284 ANNALS 8 (1952);
Professor Playfair, in Symposium on Capital Punishment, 7 N.Y.L.
FORUM 247, 262 (1961).
47Appendix E to this brief describes the world trend toward
abolition of the death penalty during the past two centuries. See also
ANCEL, THE DEATH PENALTY IN EUROPEAN COUNTRIES
(Counsel of Europe, European Committee on Crime Problems, 1962)
[hereafter cited as ANCEL], 8-13; Kahn, The Death Penalty in South
Africa, 18 TYDSKRIF VIR HEDENDAAGSE ROME1NS-HOLLANDSE
REG 108, 115 (1970) [hereafter cited as Kahn]; JOYCE, CAPITAL
PUNISHMENT: A WORLD VIEW (1961), 56-193; LAURENCE, A
HISTORY OF CAPITAL PUNISHMENT (1932), 1-27.
48BENTHAM, TO HIS FELLOW CITIZENS OF FRANCE, ON
DEATH PUNISHMENT (1831), 3.
49See Appendix E to this brief. See also UNITED NATIONS 9-11,
83-87; Sellin, The Inevitable End o f Capital Punishment, in SELLIN
(1967), 240; ANCEL 13-16; SCOTT, THE HISTORY OF CAPITAL
PUNISHMENT (1950), 74-75. Since the last three works were pub
lished, capital punishment has been abolished for civilian crimes in the
United Kingdom, except for treason and a few essentially obsolete
offenses (see note 58, infra)-, in Canada, except for murder of police
and corrections officials, treason, and piracy with violence (see note 62,
infra)', in two additional Mexican states, with the result that 29 of
Mexico’s 32 jurisdictions are now abolitionist (see UNITED NATIONS,
ECONOMIC AND SOCIAL COUNCIL, Note by the Secretary-General,
Capital Punishment (E/4947) (February 23, 1971), p. 10): and in Aus
tria, even for “exceptional cases” (ibid.).
29
on the books but use it relatively infrequently.50 Estimates
of the total number of executions in the world today must
necessarily remain speculative, but the figure probably does
not much exceed the 560 executions estimated to have
occurred in London and Middlesex alone each year during
the mid-sixteenth century.51 These figures are assuredly
very crude, but in general terms they mark the magnitude
50Patrick, whose execution figures appear to be somewhat high (see
note 51 infra), found that out of 89 countries which made legal pro
vision for the death penalty during the period 1958-1962, there were
36 which executed not a single human being through the five-year
period. Patrick, The Status o f Capital Punishment: A World Perspec
tive, 56 J. CRIM. L., CRIM. & POL. SCI. 397, 409 (1965). See also
UNITED NATIONS 96. Patrick reports 13 additional countries which
conducted fewer than one execution per year; 24 countries which
conducted one to five executions; 10 countries which conducted
between fifty and one hundred executions. Patrick, op. cit. supra, at
409. The Republic of South Africa appears to be the known world
leader in executions, averaging about one hundred per year. Kahn,
116-118.
51 The derivation of the average annual figure of 560 for the last
decade of the reign of Henry VIII and throughout the reign of Edward
VI is set forth in I RADZINOWICZ, A HISTORY OF ENGLISH
CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750(1948),
142 n. 20.
As we have indicated in note 22 supra, an annual average total of
about 535 executions is reported for the period 1958-1962 by Patrick,
for the major capital-punishment countries of the world, excluding
the communist nations and eleven non-communist nations (some of
them relatively populous). Patrick, The Status o f Capital Punishment:
A World Perspective, 56 J. CRIM. L., CRIM. & POL. SCI. 397, 408
(1965). However, there are reasons to believe that this figure is inac
curately large. Where there is overlapping between the numbers of
executions reported by Patrick and the presumably more reliable
numbers gathered by the United Nations Department of Economic
and Social Affairs for the two periods 1956-1960 and 1961-1965,
Patrick’s figures are consistently higher. See UNITED NATIONS 43-
44, 96-97. The two reports may be consistent, of course, if execu
tions peaked strongly in the middle of the 1956-1965 period, but
there is no reason to suppose such a peaking. Second, Patrick does
not disclose the terms of his inquiries to his correspondents; and it is
entirely possible that his reports include executions in political and
30
of the trend toward de facto abolition.52 So far has this
trend progressed that the Secretary-General of the United
Nations recently reported to the Economic and Social Council
that: “Those countries retaining the death penalty report
that in practice it is only exceptionally applied and fre
quently the persons condemned are later pardoned by execu
tive authority.” 53 And, notwithstanding its habitual
cautiousness and deference to national sovereignty in domes
tic matters, the United Nations Economic and Social Coun
cil recently adopted a resolution affirming “that the main
military contexts which should be put out of account for present pur
poses. Third (a relatively small matter), Patrick’s own columnar figures
do not total to 535.3, as he says, but to 517.1. Patrick, op. cit., supra,
at 398-404.
In any event the figures today are almost certainly lower than
those for 1962-1963. The United States contributed 48.6 executions
per year to Patrick’s total, id. at 404; and we know that there have
been no executions in this country since 1967. Among the nations
reporting to the United Nations for both the 1956-1960 and the 1961-
1965 periods, there was a sharp decline in executions from the first
to the second period (UNITED NATIONS 96-97); a number of nations
have abolished capital punishment de jure since 1962 (see Appendix
E to this brief); and the only country in the world where it is defini
tively known that executions have been lately on the increase is the
Republic of South Africa (Kahn, 116; and compare Van Niekerk, The
Administration o f Justice, Law Reform and Jurisprudence, [1967]
ANNUAL SURVEY OF SOUTH AFRICAN LAW 444, 471-472, with
Patrick).. Projecting the 40% decrease found in the United Nations
figures for countries which reported during both of its reporting per
iods, and assuming that the extent to which American executions have
exceeded the 40% rate more than offsets the increase in South Africa,
there would be fewer than 200 executions a year today in the coun
tries studied by Patrick. We would have to nearly treble that figure,
in consideration of the communist and eleven non-communist coun
tries-surely a generous allowance-in order to bring the world total
to 560.
52See ANCEL 12: “ Abolition in law has in almost ail cases been
preceded by abolition in practice . . . .”
53UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL, Note
by the Secretary-General, Capital Punishment (E/4947) (February 23,
1971), p. 3.
31
objective to be pursued is th a t o f progressively restricting
the num ber o f offences for which capital punishm ent might
be imposed with a view to the desirability o f abolishing this
punishm ent in all countries so tha t the right to life, provided
for in Article 3 o f the Universal D eclaration o f H um an Rights
may be fully guaranteed .” 54
(2) This historical developm ent has not been a mere col
lection o f happenings unanim ated by a them e. Capital pun
ishm ent has no t simply atrophied or gone ou t o f fad in the
world, bu t has been progressively rejected in the course o f
an ideological and moral debate resonant with concerns that
are intim ately connected w ith the “ principle o f civilized
trea tm en t” and “ the dignity o f m an.” Trop v. Dulles, 356
U.S. 86, 99, 100 (1958) (plurality opinion o f C hief Justice
Warren). Any sampling o f the literature o f this debate
makes m anifest th a t—although there are entirely convincing
practical reasons for pu tting an end to the death penalty—
the principal argum ents urged to support its abolition have
always been hum anistic, and concerned w ith fundam ental
hum an decency.55 We need cite bu t a few of the m ost
obvious exam ples.56
54UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL,
Resolution 1574(L), Capital Punishment, adopted May 20, 1971 (E/
RES/1574(L), May 28, 1971).
55The arguments for and against capital punishment have been fre
quently catalogued. See, e.g., FAVREAU, CAPITAL PUNISHMENT:
MATERIAL RELATING TO ITS PURPOSE AND VALUE (compiled
by Hon. Guy Favreau, Canadian Minister of Justice) (Queen’s Printer,
Ottawa, 1965) [hereafter cited as FAVREAU], 22-35; Vialet, Capital
Punishment: Pro and Con Arguments (United States, Library of Con
gress, Legislative Reference Service, mimeo, August 3, 1966), reprinted
in Hearings Before the Subcommittee on Criminal Laws and Procedures
o f the Senate Committee on the Judiciary, 90th Cong., 2d Sess., on
S. 1760, To Abolish the Death Penalty (March 20-21 and July 2,
1968) (G.P.O. 1970) [hereafter cited as Hearings] , 172-200; UNITED
NATIONS 61-64, 115-124; BEDAU 120-231; SELLIN (1967), 3-21,
39-104; 2 NATIONAL COMMISSION ON REFORM OF FEDERAL
CRIMINAL LAWS, WORKING PAPERS (G.P.O. 1970), 1350-1363.
56BOK, STAR WORMWOOD (1959); CALVERT, CAPITAL PUN
ISHMENT IN THE TWENTIETH CENTURY (1927); Camus, Reflec-
32
It is for this reason, of course, that capital punishment,
uniquely among secular penal institutions, has become the
subject of intense concern by religious groups.57 For the
same reason, the long-enduring struggle for legal abolition
has been waged with the fervor of a crusade.58 The same
reason brought Albert Camus to call the abolition of the
deatn penalty a great civilizing step” ;59 it brought former
Attorney General Ramsey Clark to call abolition “a major
tionson the Guillotine, in CAMUS, RESISTANCE, REBELLION AND
DEATH (1961), 173 [hereafter cited as CAMUS]; GOWERS A LIFE
FOR A LIFE (1956); KOESTLER. REFLECTIONS ON HANGING
(Amer. ed. 1957) [hereafter cited as KOESTLER],
57See Bedau, The Issue o f Capital Punishment, 53 CURRENT HIS
TORY (No. 312) 82, 84-85 (Aug. 1967); Hearings 155-156. The ex
pressions of denominations are set forth in the Appendix to the
Amici Curiae Brief of the American Friends Service Committee, et. ah,
in Witherspoon v. Illinois, 391 U.S. 510 (1968) (O.T. 1967, No. 1015).
^The history of the struggle in England is recounted in 1 RAD-
ZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW AND ITS
ADMINISTRATION FROM 1750 (1948); TUTTLE, THE CRUSADE
AGAINST CAPITAL PUNISHMENT IN GREAT BRITAIN (1961);
PHILLIPSON, THREE CRIMINAL LAW REFORMERS (1923). Final
abolition came in December, 1969, when the House of Commons and
the House of Lords respectively agreed to the permanent continuation
of the abrogation of capital punishment for murder which had been
provided during an experimental five year period by the Murder
(Abolition of Death Penalty) Act 1965, [1965] 2 PUBLIC GENERAL
ACTS, ch. 71, p. 1577 (Nov. 8, 1965). See 793 HANSARD, PARLIA
MENTARY DEBATES (5th series) (Commons, 44th Pari, 4th Sess.,
1969-1970), 1294-1298 (December 16, 1969); 306 id. Lords, 44th
Pari., 4th Sess., 1969-1970), 1317-1322 (December 18, 1969). It is
true that capital punishment continues to be provided for treason, pir
acy with violence, dockyards arson and some military offenses (Pro
fessor Radzinowicz, in Hearings, at 57), but its execution for these
crimes seems unlikely. The American history appears in BYE, CAPI
TAL PUNISHMENT IN THE UNITED STATES (1919); Bedau, General
Introduction, in BEDAU 1-32; Filler,Movements to Abolish the Death
Penalty in the United States, 284 ANNALS 124 (1952). See also
BLOCK. AND MAY GOD HAVE MERCY (1962), 83-173.
33
milestone in the long road up from barbarism;” 60 and it
brought the Archbishop of Canterbury to conclude, follow
ing the abolition of capital punishment for murder in Great
Britain in 1969, that:
“Abolition of capital punishment, once and for all,
will help create a more civilized society in which to
continue the search for the causes of crime . . . I
am certain it will redound in very many ways to
the advantage and honor of the nation.” 61
We set forth these expressions not for the purpose of
convincing the Court that Albert Camus, or Ramsey Clark,
or Michael Ramsey, is correct, as a moral matter. The
point is simply that the terms they use are archetypal
reflections of the terms in which the capital punishment
controversy has been fought during the years in which
world history has progressively, and now quite thoroughly,
abandoned the death penalty. Opposition to capital punish
ment has invariably been asserted on the basis of “funda
mental moral and social values in our civilization and in our
society.” 62 For this reason, the present marked attrition
^Statement of Attorney General Ramsey Clark, in Hearings, at
91. See CLARK, CRIME IN AMERICA (1970), 336.
61 The New York Times, December 19, 1969. p. 9.
62“I have tried to show that in dealing with this issue we should
all be concerned—as I see it, primarily concerned—with the protection
of society from the crime of murder. But we are also concerned—and
this concern has been voiced by many speakers in this debate—with
certain fundamental moral and social values in our civilization and in
our society.” Prime Minister Lester B. Pearson, addressing the House
of Commons in support of a bill restricting the death penalty for
murder in Canada. CANADA, HOUSE OF COMMONS, IV DEBATES,
27th Pari., 2d Sess. (16 Eliz. II), 4370 (Nov. 16, 1967). Prime Minister
Pearson, who favors total abolition, concluded that: “ If we cannot yet
eliminate capital punishment entirely from the Canadian system of
justice, if we have not yet achieved that degree of civilization, then
let us at least take the important step toward that time which is now
open to every one of us in this house.” Id. at 4372.
Following the debate in which the Prime Minister spoke, Parlia
ment did adopt the statute, An Act to amend the Criminal Code, 16
34
of the use of capital punishment throughout the world
must be seen as something more than a sort of aimless
obsolescence. It can only fairly be seen, in the light of the
forceful struggle waged around the penalty of death, as a
repudiation.63
(3) One further point connected with the ideological his
tory of this repudiation of the death penalty bears emphasis.
The values which have been most consistently opposed to
capital punishment, and which have largely extirpated it in
the western world over the course of the last two centuries,
lie very close to the root of the Anglo-American conception
of a free and civilized society. Sellin has written that:
“ . . . the struggle about this punishment has been
one between ancient and deeply rooted beliefs in
retribution, atonement or vengeance on the one hand,
and, on the other, beliefs in the personal value and
Eliz. II, ch. 15, [1967-1968] 1 ACTS OF CANADA (16 & 17 Eliz. II)
145 (1967), whose effect is to abolish the death penalty for all mur
ders other than murders of police or corrections officers in the course
of duty. Like the English abolition act of 1965 (see note 58 supra),
the Canadian act is effective for a five-year period, and must then be
renewed to remain in force. Canada also retains on the books legis
lation providing capital punishment for treason and for piracy with
violence. II REV. ST AT. OF CANADA (1970), ch. C-34, §§46-47, 75.
The Canadian debates, like those upon the English abolition bills
in 1965 and 1969, demonstrate that the abolitionists generally drew
support from those “ fundamental moral and social values in our
civilization” invoked by Prime Minister Pearson. See CANADA,
HOUSE OF COMMONS, IV and V DEBATES, 27th Pari., 2d Sess.
(16 Eliz. II), 4077-4891 (1967); 709-716 HANSARD, PARLIAMEN
TARY DEBATES (5th series) (Commons, 43d Pari, 1st Sess., 1964-
1965), [709] 487-[716] 466 (1965); 268 and 269 id. (Lords, 43d
Pari., 1st Sess., 1964-1965), [268] 455-[269] 554 (1965); 793 id.
(Commons, 44th Pari., 4th Sess., 1969-1970), 1147-1294 (1969); 306
id. (Lords, 44th Pari., 4th Sess., 1969-1970), 1106-1318 (1969).
^Bentham accurately foretold the development: “ And, as the dis
social affections decrease in strength, and the social increase-in a word,
as civilization advances—the reluctance to contribute to the infliction
of this punishment will increase . . .” BENTHAM, TO HIS FELLOW
CITIZENS OF FRANCE, ON DEATH PUNISHMENT (1831), 5.
35
dignity of the common man that were born of the
democratic movement of the eighteenth century, as
weli as beliefs in the scientific approach to an under
standing of the motive forces of human conduct,
which are the result of the growth of the sciences
of behavior during the nineteenth and twentieth
centuries.” 64
This is not to say, of course, that no one does or can
approve the death penalty for other reasons than belief in
^SELLIN (1959) 15. See also ANCEL 9:
“The abolitionist movement began in the 18th century
under the influence of humanitarian philosophy. It is bound
up with the establishment of classical penal law, in so far as
this endeavours to substitute for vengeance and expiation the
notion of rational retribution based on the offence, to dis
tinguish between substantive law and moral law, to punish
in the interests of society and to find a coercive and correc
tive substitute in sentences of imprisonment for the old
corporal punishments.”
And see PLAYFAIR & SINGTON, THE OFFENDERS (1957), 230:
“ [T]he death penalty belongs historically to a purely pun
itive penal system, founded on the ecclesiastical notion of
the expiation of crime and expressed chiefly in violence of
an unspeakably brutal kind. This notion, during the past two
hundred years, has been in full retreat everywhere before the
advance of humanitarian and scientific influences.”
This point is borne out forcefully when one considers the professional
identifications of those who have traditionally opposed, or supported,
capital punishment:
“In the first place, it will be noted that, among the lead
ing authorities in penal science, the supporters of abolition
appreciably outnumber those who favour the retention of
capital punishment. The specialists of the social sciences,
criminologists, sociologists, penologists, psychologists, doctors
and writers on social science and criminology are, in their
great majority, abolitionists. The supporters of capital pun
ishment, apart from a number of political figures and persons
holding high public office, are generally jurists with a tradi
tional training and judges.”
UNITED NATIONS 64. Accord: id. at 124; BEDAU 122-123; and
see West, Medicine and Capital Punishment, in Hearings, at 124;
KOESTLER 21-40.
36
retribution, atonement or vengeance; but it is significant
that those beliefs have been historically the mainstays of
support for the institution of capital punishment, while the
movement for abolition has been spearheaded by concerns
derived from conceptions of the worth and dignity of the
individual. The ultimate premise and lesson of capital pun
ishment is “ ‘that a man’s life ceases to be sacred when it
is thought useful to kill him.’” 65 Little wonder that the
nations of the world most closely allied with our own in
traditions, and sharing our heritage and aspirations of respect
for the citizen, have now overwhelmingly rejected the death
penalty.66
(4) So has the United States. In this country, the decreas
ing trend of executions has been consistent and dramatic.
The National Crime Commission recently noted that:
“The most salient characteristic of capital punish
ment is that it is infrequently applied. . . . [A] 11
available data indicate that judges, juries and gov
ernors are becoming increasingly reluctant to impose
or authorize the carrying out of a death sentence.”
(PRESIDENT’S COMMISSION ON LAW ENFORCE
MENT AND ADMINISTRATION OF JUSTICE,
REPORT (THE CHALLENGE OF CRIME IN A
FREE SOCIETY) (1967), 143.)
The extent to which this is true appears upon inspection of
the highly reliable figures on executions maintained by the
Federal Bureau of Prisons since 1930. Its latest cumulative
report shows that 3,859 persons were executed under civil
authority in the United States between 1930 and 1968.
UNITED STATES DEPARTMENT OF JUSTICE,'BUREAU
OF PRISONS, NATIONAL PRISONER STATISTICS, Bulle
tin No. 45, Capital Punishment 1930-1968 (August 1969)
[hereafter cited as NPS (1968)], p. 7. Of these 3,859 men
and women, only 191 were executed during the decade of
6sFrancart, quoted in CAMUS 229.
66See Appendix E to this brief.
37
the 1960’s, only 25 since the end of 1963 (ibid.)\ and no
one has been executed in the United States during more
than four years since June 2, 1967. The trend is adequately
shown by setting out the figures for the number of execu
tions during each of the following representative years (ibid.):
Total Number of Executions
in the United States
1930 - 155 1963 - 21
1935 - 199 1964 - 15
1940 - 124 1965 - 7
1945 - 117 1966 - 1
1950 - 82 1967 - 2
1955 - 76 1968 - 0
1960 - 56 1969 - 0
1961 - 42 1970 - 0
1962 - 47
Although forty-one States, the federal government and the
District of Columbia authorize the death penalty by law for
at least one offense,67 fourteen of these forty-three jurisdic
tions have carried out no executions since I9 60.68 Nine
teen have carried out no executions since 1961.69 Twenty-
four have carried out no executions since 1962.70 Thirty
67 Appendix G to this brief collects the capital sentencing provisions
currently in force in the United States. The death penalty is not
authorized by law in Alaska, Hawaii, Iowa, Maine, Michigan, Minne
sota, Oregon, West Virginia, or Wisconsin. Puerto Rico and the Vir
gin Islands are also abolitionist. (See Appendix E to this brief, foot
note lOe.) Of the forty-three American jurisdictions which allow
capita! punishment at all, five (New Mexico, New York, North Dako
ta, Rhode Island and Vermont) restrict it severely.
^NPS (1968) 8-9: Connecticut, Delaware, Idaho, Massachusetts,
Montana, Nebraska, New Hampshire, New Mexico, North Dakota,
Rhode Island, South Dakota, Tennessee, Utah, and the District of
Columbia.
69NPS (1968) 8-9. States conducting their last executions in 1961
are Indiana, Louisiana, Maryland, Nevada and North Carolina.
^NPS (1968) 8-9. States conducting their last executions in 1962
are Illinois, Kentucky, Pennsylvania, South Carolina and Virginia.
38
have carried out no executions since 1963.71 Thirty-five
have carried out no executions since 1964.72
It is interesting to note the regional distribution of the
executions. (We shall return later to the racial figures.) Of
the 3,859 persons killed since 1930, 33 were executed by
the federal government; 608 by nine northeastern States;
403 by twelve north-central States; 509 by thirteen western
States; and 2,306 by sixteen southern States and the Dis
trict of Columbia. (Id. at 8-9.) Since 1960, the correspond
ing figures for 191 executions are as follows: federal—1;
northeastern States-17; north-central States-21; western
States—48; southern States and D.C.-104. (Ibid.) As of
December 31, 1968, there were 479 men on death row
throughout the entire country. One of these was a federal
prisoner; 62 were in the northeastern States; 67 were in the
north-central States; 114 were in the western States; and
235 were in the southern States and D.C. (Id. at 22-23.)
(5) We summarize our conclusions from the preceding
paragraphs as follows: Actual use of the death penalty
throughout the world has declined precipitously against the
background of a strong ideological controversy in which the
increasingly prevailing forces of abolition have staked their
case primarily upon the inhumanity and indecency of the
penalty. They have prevailed virtually universally—and most
notably in countries sharing our western humanist traditions
—to the extent that today, the execution of a capital sen
tence is an almost indescribably uncommon event. Within
the United States, it is plainly the most uncommon of all
punishments for crime.73 In this country, executions vary
71NPS (1968) 8-9. States conducting their last executions in 1963
are Arizona, New Jersey, New York, Ohio, Washington and the federal
jurisdiction.
^NPS (1968) 8-9. States conducting their last executions in 1964
are Arkansas, Florida, Georgia, Mississippi and Texas.
73Sellin, The Inevitable End o f Capital Punishment, in SELLIN
(1967), 239.
39
as a function of geography and are preponderate^ a southern
phenomenon; but, since 1958 at the least, executions in all
regions of the United States for any crime have been rare.
Since 1963 they have been freakishly rare.
(6) What do these almost incredible rarities in the use of
capital punishment imply for the constitutional issue before
the Court? In the first place, they obviously imply-in the
language of Trop v. Dulles, supra— that capital punishment
is not “still widely accepted” in contemporary America.
Recently, this Court cited public opinion polls indicating
that about half the American people say they believe in the
death penalty. Witherspoon v. Illinois, 391 U.S. 510, 519-
520 (1968). While it seems to us unthinkable that human
life should be taken in the name of an institution that is so
equivocally and marginally received-even in theory—as this,
we do not rely upon the polls. For the value of such polls74
is very slight as a gauge of the standards of decency to
which the Eighth Amendment bids this Court look.
This is so because opinions tapped in this fashion are
notoriously fickle and particularly unreliable after several
years without an execution.75 But it is so primarily because
the citizen who deals with a poll-taker—like the legislator
who puts or maintains a capital statute on the books—can
have his cake and eat it too. He can afford to approve the
principle of killing because in practice the persons selected
to die will be so few as to go unnoticed. The real measure
of American moral attitudes about the death penalty is
reflected in what this Nation of 200 million people does.76
74The poll results are collected in Erskine, The Polls: Capital Pun
ishment, 34 PUBLIC OPINION QUARTERLY 290 (1970).
75 Short-term swings in public opinion respond to the most recently
publicized outrageous execution or outrageous crime. “ If the last vic
tim happens to arouse pity—a feeble-minded boy for instance, unhinged
by the movies, or a mother of two children, half-crazed by gin and
jealousy-up go the ‘nays’ of mercy like a flight of doves; if he is a
cool customer like Christie, up go the ‘ayes’ like a swarm of vultures.”
KQESTLER 163.
76See Ralph v. Warden, 438 F.2d 786, 792 (4th Cir. 1970), quoted
in note 38 supra.
40
What it has done, in the years 1965-1970 inclusive, is to
execute only ten people.
Of course, stays of execution and state and federal post
conviction proceedings on behalf of condemned men affect
these figures, but not very much. In May of 1971, there
were only 648 men on death row, notwithstanding the near
cessation of executions since the end of 19 64.77 And even
this figure conveys an inflated image of the number of men
destined to be killed.78 Plainly, the processes of American
77The New York Times, May 4, 1971, p. 30.
78Since 1967, a nation-wide effort has been maintained to obtain
stays of execution for all condemned men pending disposition by this
Court of the constitutional issue now presented. As a part of that
effort, counsel for petitioner Aikens also represent several hundred
other condemned men, and are consulting with attorneys who repre
sent a large proportion of the remainder. It is our uniform experi
ence that governors will almost never give consideration to commu
tation in a capital case while judicial proceedings are pending; and
frequently they will not consider commutation so long as there is
any reason simply to defer the matter by the granting of a guber
natorial stay. As a result, the years 1967-1971 which have seen a
complete cessation of executions have also seen an almost equally
complete cessation of commutations. There have been exceptions,
of course—most notably Governor Winthrop Rockefeller’s commuta
tion of the sentences of all fifteen men on Arkansas’ death row in
December, 1970, and Governor West’s commutation of three death
sentences in South Carolina this year—but, for the most part, the
processes of commutation have not been functioning during the past
four years.
Another effect of the four-year moratorium on executions is more
difficult to document, but has impressed informed observers. The
Philadelphia Sunday Bulletin, May 23, 1971, reports:
“Jurors are finding it easier to impose the death sentence
in murder cases now because they believe it will never be car
ried out, William J. Stevens, Jr., assistant district attorney in
charge of homicides, said yesterday.
“He made the comment after a reporter pointed out that
in the last two months juries in Common Pleas courts here
have sentenced two defendants to death for first-degree mur
der, although ‘death row’ has been abolished.
“Stevens emphasized that Governor Shapp has said no
prisoner will be executed while he is in office. Prior to
41
justice through which the conscience of a people may be
glimpsed are sending very, very few men onto death row,
and taking most of them off again before execution day.
What American acceptance of the death penalty now boils
down to is that America can stomach a few legal killings a
year.
(7) One may look at these figures from another direc
tion as well. No one knows or can estimate accurately how
Shapp’s inauguration last January, the state had observed an
eight-year amnesty on imposition of the death penalty.
Easier to Impose
“ ‘With all the pronouncements against the death penalty,’
said Stevens, ‘the public’s back is up. And when the public
is assured by the governor that he will (decree amnesty for)
all death sentences, it is easier for a person to impose it.
“ ‘For me personally, it would resolve any residual doubts
when I know it’s a token gesture anyway.’”
“Stevens said some jurors also are taking a harder line
because many prisoners sentenced to life become eligible for
parole after 15 years—and the time served is decreasing
steadily.
“He said that if life sentences meant prisoners would
spend their remaining years in jail, juries would rarely impose
a death sentence. He noted that some states allow juries to
impose life sentences without parole as an alternative to
death sentences.”
On the other hand, of course, the death-row population has been
somewhat reduced by the effects of this Court’s decisions in United States
v. Jackson, 390 U.S. 570 (1968), and Witherspoon v. Illinois, 391 U.S.
510 (1969). But those effects have been minimal insofar as the
reported figure of 648 condemned men on May 4, 1971 is concerned.
It was not until June 28, 1971 that Jackson made any impact upon
the death rows of the States (Funicello v. New Jersey, ___ U .S .__ _,
29 L.ed.2d 859 (1971), and companion decisions); and Witherspoon
has been largely avoided by most of the lower courts. (Note, Jury
Selection and the Death Penalty: Witherspoon in the Lower Courts,
37 U. CHI. L. REV. 759 (1970); Supplemental Brief in Support of
Petitions for Writs of Certiorari, in Mathis v. New Jersey, ___ U.S.
___, 29 L. ed.2d 855 (1971) [O.T. 1970, No. 5006], and compan
ion cases, Appendix).
42
many convictions of capital crimes are returned in the
United States yearly.79 But we do know that thirty-six
States, the District of Columbia, and the federal jurisdiction
all retain on their books statutes of general applicability
punishing one or more offenses with death. In some States,
half a dozen or more crimes may be so punishable.80 Yet,
with all this capital armament in the arsenal of a Nation of
enormous and burgeoning population, with a growing crime
rate and a going crime scare, only a few rare men are sen
tenced to death and fewer executed.81 This phenomenon
reflects, we suggest, an overwhelming national repulsion
against actual use of the penalty of death.82 Such a repul-
79The problem and the partial figures available to us are discussed
in Appendix F to this brief.
80 Appendix G to this brief sets out the various federal and state
criminal statutes providing for the penalty of death.
81 See CALIFORNIA ASSEMBLY, REPORT OF THE SUBCOM
MITTEE OF THE JUDICIARY COMMITTEE ON CAPITAL PUNISH
MENT (1957), 27-28, which comments on the California experience
as early as 1955, when the phenomenon we are describing was far less
marked than it is today:
“ . . . In that year in California 417 non-negligent homi
cides were reported; 234 persons were charged with murder
in the superior courts; 183 were convicted of murder; 52
were convicted of murder in the first degree; 44 were sen
tenced to life imprisonment; 8 were sentenced to death; and
there were 9 executions, presumably most of them for offenses
committed in previous years. From all this the proper con
ception of the law would be not as a snare, but as a sieve.”
See also McGee, Capital Punishment as Seen by a Correctional Admin
istrator, 28 FEDERAL PROBATION (No. 2) 11, 12 (1964).
82 See Professor Herbert Wechsler, in Symposium on Capital Pun
ishment, 7 N.Y.L. FORUM 247, 252-253'(1961):
“ Although the number cannot be determined with preci
sion, no one can doubt that in each of the years involved
[1930-1959] with executions ranging from 199 to 48, there
were literally thousands of prosecutions that could legally
have ended in capital judgment.”
* * * * *
“The conclusion . . . is inescapable that punishment of
death is inflicted in the United States on a bare sample of
43
sion is all the more striking when one takes into account:
(a) that for the past several years the country has under
gone one of the most intense of its recurring periods of
public agitation about and fear of crime; (b) that for a
number of years there have been so few executions as to
provide almost no focus for the mobilization of public senti
ments against the death penalty;83 (c) that during these
years, and many more before them, American executions
have been conducted in secret, their most horrible aspects
carefully concealed from public view; (d) that the death
penalty is sponsored by the State, publicly approved by
State officials,84 and supported by claims prevalent in law-
enforcement quarters85 (although quite without basis in
fact86) that the penalty has unique penological values, par
ticularly as a deterrent. It strongly appears, we think, that
even under the most favorable conditions for capital pun
ishment—with the vices of the death penalty concealed and
its virtues inaccurately extolled—the American conscience
has repudiated it hands down.
(8) The concealment, the secrecy, with which we hide
away our executions, is doubly significant. First, it gravely
inhibits the opportunity for contemporary society to make a
the culprits whose conduct makes them eligible for its imposi
tion . . . .”
“ [T]his experience reveals a deep reluctance in our culture
to employ the final sanction . . . .”
See id. at 255; Goldberg & Dershowitz, Declaring the Death Penalty
Unconstitutional, 83 HARV. L. REV. 1773, 1783-1784 (1970); and
see Witherspoon v. Illinois, 391 U.S. 510, 521 n. 19 (1968).
83 See BEDAU 22-23.
84“The primary support today for the death penalty comes from
law enforcement groups, that is, from the police and from prosecu
tors.” BEDAU 120.
8SJ. Edgar Hoover’s several releases on the subject of the death
penalty are widely publicized examples of these claims. They are re
printed from the F.B.I. Law Enforcement Bulletin and the Uniform
Crime Reports in BEDAU 130.
86 See note 116 infra.
44
clear-sighted and fully informed judgment upon the accepta
bility of what is really being perpetrated in its name. We
assume that-whatever may be the measure of enlightened
public opinion-the constitutional standard does not refer
to opinion which is kept in the dark by suppression of the
relevant facts.87 Of course, there are perfectly good and
humane reasons for forbidding public executions, as every
American jurisdiction now does88-reasons which (as we
shall shortly see) themselves bespeak eloquently the barbarity
of capital punishment in any form. But suppression is none
theless suppression because inspired by good intentions; and,
particularly in determining what is a cruel and unusual pun
ishment within the Eighth Amendment, it can hardly be
supposed that the conscience-calming effects of suppression
are to be discounted on account of their humanity. Nor
87See Goldberg & Dershowitz, Declaring the Death Penalty Uncon
stitutional, 83 HARV. L. REV. 1773, 1783 (1970):
“Were capital punishment . . . better understood, prevail
ing moral standards might well condemn it. Indeed, it may
be that public approval of the death penalty is dependent
upon a hiding away of its grim reality.’’
88The first American State to abolish public executions was Penn
sylvania, in 1834 (see Filler, Movements to Abolish the Death Penalty
in the United States, 284 ANNALS 124, 127 (1952), the year in
which also Great Britain abolished gibbeting by 4&5 Will. IV, Ch. 26
§S1,2. Public execution terminated in England in 1868 (see TUTTLE,
THE CRUSADE AGAINST CAPITAL PUNISHMENT IN GREAT
BRITAIN (1961), 20); and such executions were progressively out
lawed in the United States throughout the nineteenth century. BYE,
CAPITAL PUNISHMENT IN THE UNITED STATES (1919). 6. The
last public execution in the country seems to have occurred in Ken
tucky in 1936. BARNES & TEETERS, NEW HORIZONS IN CRIM
INOLOGY (3d ed. 1959), 307.
Today, California and every other American jurisdiction, by law
or practice, strictly and drastically limit the number of witnesses who
may attend an execution. See Cal. Penal Code, §3605, Appendix A,
p. 3a infra', Hartung, Trends in the Use o f Capital Punishment, 284
ANNALS 8, 17 (1952); BEDAU 20-23. Even photographing of exe
cutions is ordinarily prohibited. See Carter & Smith, Count Down
for Death, 15 CRIME & DELINQUENCY 77 (1969); BEDAU 22.
45
can it be supposed that a punishment is entitled to claim
acceptability, as a demonstration of its conformance with
enlightened standards of decency, because it is so repellant
that it forces society to look away and not examine it too
closely. In Camus’ phrase: “The man who enjoys his
coffee while reading that justice has been done would spit
it out at the least detail.” 89 This is not acceptance, but
its opposite.
(9) That leads us to our second point concerning the
uniform contemporary practice of secret executions: their
concealment itself shows their repugnance of present-day
^CAMUS 187. See KOESTLER & ROLPH, HANGED BY THE
NECK (1961), 11-12:
“You could hardly have a nobler example of the true func
tion of words, namely the partial concealment of fundamentals.
The phrase ‘capital punishment’ itself is a less obvious
instance—less obvious because we have got so used to it. It
means (in England) dislocating a man’s neck by tying a six-
foot rope around it and suddenly dropping him through a
trap door with his arms and legs tied. If his neck happened
not to break—it is certain at least to dislocate—then he would
strangle, which takes longer and turns his face dark blue. In
either case he often defecates, since people usually want to
do this when they are frightened, and the huge shock to his
nervous system when the rope tightens removes the last ves
tige of self-control, together with the social need for it.
“This is not a nice picture and few of us care to be
reminded of it. Many of us can think calmly enough of cap
ital punishment, because the phrase embodies what The Times
would call ‘a decent reticence.’ The reticence has been grow
ing decently for about a century, beginning in 1868 with the
decision to hang people in private instead of making it a public
spectacle.”
(Lest this description be thought wide of the mark in a country which
generally no longer uses the gallows, it should be recalled that the
Royal Commission in 1953 recommended that England retain hanging
as a means of legal execution, because it was more humane and cer
tain than the American methods. ROYAL COMMISSION ON CAPI
TAL PUNISHMENT 1949-1953, REPORT (H.M.S.O. 1953) [Cmd.
8932] [hereafter cited as ROYAL COMMISSION], 246-261, particu
larly at 256. Concerning the American methods, see Appendix J to
this brief.
46
standards of decency. Repugnance is the only answer to
Justice Bok’s trenchant question: “Why is the State so
ashamed of its process that it must kill at dead of night,
in an isolated place, and on an unnamed day?” BOK, STAR
WORMWOOD (1959), 197. Notwithstanding that virtually
the only argument still made in the twentieth century to
support the death penalty is its supposed efficacy as a gen
eral deterrent,90 the men killed for deterrence’s sake today
are killed clandestinely, out of public view. Camus’ forth
right analysis of all that this implies is unavoidable:
As an example and for the sake of security, it
would be wiser, instead of hiding the execution, to
hold up the severed head in front of ail who are
shaving in the morning.
“Nothing of the sort happens. The State dis
guises executions and keeps silent about these state
ments and eyewitness accounts [describing the death
scene]. Hence it doesn’t believe in the exemplary
value of the penalty, except by tradition and because
it has never bothered to think about the matter
A law is applied without being thought out and the
condemned die in the name of a theory in which
the executioners do not believe. If they believed in
it, this would be obvious to all. But publicity not
only arouses sadistic instincts with incalculable reper
cussions eventually leading to another murder; it
also runs the risk of provoking revolt and disgust in
the public opinion. It would become harder to exe
cute men one after another, as is done in our coun
try today, if those executions were translated into
vivid images in the popular imagination . . . . This
is why we must approve of the position of Gambetta,
who, as an adversary of the death penalty, voted ’
against a bill involving suppression of publicity for
executions, declaring: ‘If you suppress the horror of
the spectacle, if you execute inside prisons, you will
MWe consider the bases of this argument in note 116 infra and in
Appendix H infra.
47
smother the public outburst of revolt that has taken
place of late and you will strengthen the death
penalty.’
“Indeed, one must kill publicly or confess that
one does not feel authorized to kill. If society jus
tifies the death penalty by the necessity of the
example, it must justify itself by making the public
ity necessary. It must show the executioner’s hands
each time and force everyone to look at them—the
over-delicate citizens and all those who had any
responsibility in bringing the executioner into being.
Otherwise, society admits that it kills without know
ing what it is saying or doing. Or else it admits that
such revolting ceremonies can only excite crime or
completely upset opinion.” 91
It should be noted that Camus and others who have made
the same point92 are not indulging in the sort of simplistic
argument that is sometimes attributed to them. They are
not naive enough to assert, and their point does not rest
upon the assertion, that a punishment must be publicly
91 CAMUS 186-188.
^E.g., LAWES, LIFE AND DEATH IN SING SING (1928), 153-
154; Ancel, The Problem o f the Death Penalty, in SELLIN (1967), 3,
15-16; MENNINGER, THE VITAL BALANCE (1963), 219:
“We cannot close our chamber of horrors without men
tion of the epitome of aggression in a civilized society, the
imposition of capital punishment, mercifully unseen by the
public or by those who order it. While the main argument
for the retention of capital punishment is its deterrent effect,
it is ironic that it is almost impossible for anyone to be
admitted to an execution in order to experience its deterrent
effect at close range. This argument would logically demand
that executions be open to the public, or at least be broad
cast on radio and television like other spectacles. Instead,
they are carried out in almost complete secrecy, usually in
the middle of the night. This furtiveness suggests some
awareness that the social climate has shifted to such a degree
that the community at large would not tolerate capital pun
ishment if it could actually see its official representatives tak
ing the lives of inadequate and often obviously disorganized
individuals.”
48
exhibited in order to deter. Nor do they deny that there
can be degrees of deterrence, and that society may ration
ally choose the diminished degree that is involved in private
infliction of a punishment whose public exhibition would
have untoward effects. Allowing the legitimacy of that
choice, they ask only what the choice made by our modern
society in regard to capital punishment indicates.
Plainly the decision to use capital punishment at all today
indicates both the belief that it is a superior deterrent to
even life imprisonment, and the desire to maximize the
deterrent power of the law in regard to the offenses for
which the extreme penalty is prescribed. From a deter
rent point of view, the fact “ [t]hat capital punishment is
horrible and cruel is the reason for its existence.” 93 A
society which uses a punishment of that sort with the aim
of maximizing deterrence can scarcely be expected to depre
ciate its deterrent force by hiding it-particularly in light of
its centuries-old tradition of public executions94—unless
there is some very strong countervailing force. What then
is that force? Can there be any doubt at all that it is the
force of decency?
We hide our executions because we are disgusted to look
at them, because the view of them would make men sick.
We hide them because their public display would render
them unacceptable and flout the dignity of man. Could
this Court today sustain a public execution as consistent
with the Eighth Amendment? No consideration that is
urged to support closeted executions would be lacking in
Darrow, A Comment on Capital Punishment, in LAURENCE A
HISTORY OF CAPITAL PUNISHMENT (1960), xv, xvii. See CAL
VERT, CAPITAL PUNISHMENT IN THE TWENTIETH CENTURY
(1927), 3:
“Those who believe in hanging, frankly confess it to be a
horrible and revolting practice. They maintain, however, that
it is necessary in order to protect society.”
^TEETERS & HEDBLOM, HANG BY THE NECK (1967), 19-46;
BEDAU 2, 20-22. See note 58 supra, and the works cited therein.
49
the case of a public one; and to the condemned man it
would make relatively little difference. The one way of
killing a human being is not more cruel to him than the
other, although it is intolerably more cruel to us. This
surely is because
“if people were to witness the decay of the waiting
man, to hear his cries and watch his final struggles,
they would be affronted in their consciences, and
in their standards of humanity and of human dignity
and decency. Our systematic concealment of execu
tions creates a strong inference that capital punish
ment now falls under our expanded definition of
‘cruelty,’ particularly when v/e contrast this present
custom of secrecy with the one-time public display
of executions.” 95
(10) We have said that secret executions both demonstrate
the general unacceptability of killing as a penalty for crime
in contemporary America and provide the necessary basis
for such slight and uninformed acceptance as it has. The
same is true of the rarity of executions. We have already
discussed the first of these two aspects of the virtual cessa
tion of American executions during the past several decades
(pp. 39-43, supra)', and v/e return now to the second.
Almost forty years ago, Warden Lawes made the point
that the maintenance of capital legislation on the statute
books depends upon its unenforcement.96 It is, of course,
a matter of history, recognized by this Court in McGautha
v. California, 402 U.S. 183 (1971), that public acceptabi-
9SGottlieb, Capital Punishment, 15 CRIME & DELINQUENCY 1,
6 (1969).
96LAWES, TWENTY THOUSAND YEARS IN SING SING (1932),
306-307:
“ ‘What would be the attitude of the American people if
by good or ill circumstance the ten thousand men and women
who in any one year commit our murders and manslaughters
in these United States, would all be convicted of murder,
sentenced to death, and that punishment actually inflicted?’
What, indeed, but an almost universal cry for abolition?”
50
lity of the death penalty in this country in this century has
been secured only by replacing mandatory capital penalties
with statutes allowing jury and court discretion in capital
sentencing.97 These statutes, combined with the prosecu
torial discretion at the outset of a capital case and the exe
cutive’s commutative power at the end of it, allow a “small
and capricious selection of offenders [to be] . . . put to
death.” 98 “Public awareness diminishes as the frequency
of imposing the penalty decreases, and legislative action is
not likely to be prompted when the consequences befall
only a few prisoners.” Ralph v. Warden, 438 F.2d 786, 792
(4th Cir. 1970).
(11) it is important also to note the identity of the
prisoners upon whom the consequences fall. Whose killings
today does society accept, when it accepts any? Former
Governor Michael DiSalle of Ohio has answered this ques
tion.
97There are very few crimes in the United States today which carry
a mandatory death penalty, and those few are for the most part of
the obscure sort under which no one is ever charged (treason, in
several States; perjury in a capital case, etc.) See BEDAU 48-52. And
see Hartung, Trends in the Use o f Capital Punishment, 284 ANNALS
8 (1952); Knowlton, Problems o f Jury Discretion in Capital Cases, 101
U. PA. L. REV. 1099 (1953). Outside the United States, also, man
datory capital punishment is rapidly being replaced by grants of dis
cretion. UNITED NATIONS 13, 82, 87.
98Statement of Attorney General Ramsey Clark, in Hearings, at 93:
“ A small and capricious selection of offenders have been
put to death. Most persons convicted of the same crimes have
been imprisoned only. Experienced wardens know many
prisoners serving life or less whose crimes were equally, or
more atrocious, than those of the men on death row.”
Accord: LA WES, TWENTY THOUSAND YEARS IN SING SING
(1932), 302, 307-310; DUFFY & HIRSHBERG, 88 MEN AND 2
WOMEN (1962), 254-255; Testimony of Clinton J. Duffy, in Hearings,
at 24-25; De Ment, A Plea for the Condemned, 29 ALA. LAWYER
440, 440-441 n. 2 (1968) (quoting A. Frank Lee, Commissioner,
Alabama Board of Corrections). And see BEDAU 410-411.
51
. . Generally they have one thing in common, they
are penniless, of low mental capacity, with little or
no education, and have few friends. The fact that
they have no money is of particular import in their
being condemned to death ....... It is the poor, the
illiterate, the underprivileged, the member of the
minority group, who is usually sacrificed by society’s
lack of concern.” 99
The same point has been made repeatedly by knowledge
able observers. Those who are selected to die are the poor
and powerless, personally ugly and socially unacceptable.100
In disproportionate percentages, they are also black. Racial
discrimination is strongly suggested by the national execu-
"DiSalle, Trends in the Abolition o f Capital Punishment, 1 U.
TOLEDO L. REV. 1, 12-13 (1969). See also DiSalle, Comments on
Capital Punishment and Clemency, 25 OHIO ST. L.J. 71, 72 (1964);
and Governor DiSalle’s testimony, in Hearings, at 11-12.
100“It is the poor, the sick, the ignorant, the powerless and the
hated who are executed.” CLARK, CRIME IN AMERICA (1970),
335. See DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN (1962),
256-257; LA WES, TWENTY THOUSAND YEARS IN SING SING
(1932), 302; LAWES, LIFE AND DEATH IN SING SING (1928),
155; WEIHOFEN 164-165; West, Medicine and Capital Punishment,
in Hearings, at 124, 125; McGee, Capital Punishment as Seen by a
Correctional Administrator, 28 FED. PROBATION (No. 2), 11, 12
(1964).
The characteristics of the inmates of death row are described in
Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS L.
REV. 1 (1964); Bedau, Capital Punishment in Oregon, 1903-1964, 45
ORE. L. REV. 1 (1965); Carter & Smith, The Death Penalty in Cali
fornia: A Statistical and Composite Portrait, 15 CRIME & DELIN
QUENCY 62 (1969); Johnson, Selective Factors in Capital Punish
ment, 36 SOCIAL FORCES 165 (1957); Koeninger, Capital Punish
ment in Texas, 1924-1968, 15 CRIME & DELINQUENCY 132(1969).
And see Brief for the N.A.A.C.P. Legal Defense and Educational Fund,
Inc., and the National Office for the Rights of the Indigent, as Amici
Curiae, in Boykin v. Alabama, 395 U.S. 238 (1969) [O.T. 1968, No.
642], p. 7 n. 8.
A discussion of the selective forces that operate at the penalty-trial
stage of California capital cases is found in Note, A Study o f the Cali
fornia Penalty Jury in First-Degree-Murder Cases, 21 STAN. L. REV.
1297 (1969).
52
tion figures;101 it has been borne out in a number of dis
crete and limited but carefully done studies;102 and it has
seemed apparent to responsible commissions and individuals
studying the administration of the death penalty in this
country.103 Assuredly, the proof of discrimination is
101 The following are the total number of persons executed between
1930 and 1967 (3,859), broken down by offense and race, as they
appear in NFS (1968), p. 7:
Murder Rape Other Total
White
Negro
Other
1664 (49.9%)
1630 (48.9%)
40 ( 1.2%)
48 (10.5%)
405 (89.1%)
2 ( 0.4%)
39 (55.7%)
31 (44.3%)
0 ( 0.0%)
1751 (45.4%)
2066 (53.5%)
42 ( 1.1%)
3334 (100%) 455 (100%) 70 (100%) 3859 (100%)
!02Johnson, The Negro and Crime, 217 ANNALS 93 (1941); Gar-
finkel, Research Note on Inter- and Intra-Racial Homicides, 27
SOCIAL FORCES 369 (1949); Johnson, Selective Factors in Capital
Punishment, 36 SOCIAL FORCES 165 (1057); Wolfgang, Kelly &
Nolde, Comparison o f the Executed and the Commuted Among Ad
missions to Death Row, 53 J. CRIM. L., CRIM. & POL. SCI. 301
(1962); Bedau, Death Sentences in New Jersey 1907-1960, 19 RUT
GERS L. REV. 1, 18-21, 52-53 (1964). The^Stanford Law Review
Note cited in note 100 supra does not find racial discrimination by
California juries at the penalty stage of jury-tried cases. Whether dis
crimination affects earlier or later stages in the process of selecting
the men condemned to die is not revealed in the existing literature.
Whether by reason of race or of economic and social factors corre
lated with race, whites committed to death row in the United States
have traditionally escaped the actual infliction of the death penalty
in significantly greater proportions than Negroes. See the studies
cited supra; MANGUM, THE LEGAL STATUS OF THE NEGRO
(1940), 369-370; and see McCafferty, The Death Sentence, 1960, in
BEDAU 90, 95-96.
' “ PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, REPORT (THE CHALLENGE OF
CRIME IN A FREE SOCIETY) (1967) 143; PENNSYLVANIA, JOINT
LEGISLATIVE COMMITTEE ON CAPITAL PUNISHMENT, REPORT
(1961) 14-15; UNITED NATIONS 32, 98; BEDAU 411-413; CLARK,
CRIME IN AMERICA (1970), 335; MATTICK 5, 17; WOLFGANG &
COHEN, CRIME AND RACE: CONCEPTIONS AND MISCONCEP
TIONS (1970), 77, 80-81, 85-86; Hartung, Trends in the Use o f
Capital Punishment, 284 ANNALS 8, 14-17 (3952); Bedau, A Social
Philosopher Looks at the Death Penalty, 123 AM. J. PSYCHIATRY
53
stronger in rape than in murder cases;104 and, in any case,
an irrefutable statistical showing that a particular State has
violated the Equal Protection of the Laws by consistent
racial inequality in the administration of the death penalty
is difficult to establish.105 This is so principally because
the total number of death sentences is so exceedingly small
in comparison to the number of factors which prosecuting
officials, sentencing judges and juries, correctional officials
and physicians, and commutative authorities may consider
in the exercise of the many selective judgments which fin
ally determine who shall live or die.
Where the occurrence of any phenomenon is rare and the
factors that may cause it to occur are unlimited, neither
statistics nor any other analytical tool can provide a sure
fire test for the detection of racial bias among those factors.
Thus, a State can discriminate racially and not get caught
at it if it kills men only sporadically, not too often, by
being arbitrary in selecting the victims of discrimination.
Or, to put the matter another way, if a State invokes a par
ticular penalty sufficiently rarely so that no regular pattern
of its use develops, the State may be acting discriminatorily;
it likely will be acting in a fashion such that the penalty
falls most harshly on the poor and disadvantaged; but it
surely will be acting in a way that escapes the safeguards of
the Constitution, unless the Eighth Amendment forbids.
Equal Protection and Due Process provide no judicially usable
devices to protect the individual from the arbitrariness of
the freakishly rare, harsh penalty.106 This is all the more
1361, 1362 (1967); and see Rubin, Disparity and Equality o f Sen-
tences-A Constitutional Challenge, 40 F.R.D. 55, 66-68 (1967).
104See Brief for Petitioner, Jackson v. Georgia, O.T. 1971, No. 69-
5030.
105 See Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), vacated
on other grounds, 398 U.S. 262 (1970).
106It has elsewhere been argued unsuccessfully that they do.
McGautha v. California, 402 U.S. 183 (1971); Maxwell v. Bishop,
398 F.2d 138 (8th Cir. 1968), vacated on other grounds, 398 U.S.
262 (1970).
54
reason, we believe, for application of the constitutional
guarantee against cruel and unusual punishments.
(12) But there are other consequences, as well, of the
freakishly rare use of a harsh criminal penalty. We have
pointed out above that such use escapes not only meaning
ful control under the constitutional guarantees of Equal
Protection and Due Process; it escapes also the fair scru
tiny of public conscience, with its attendant pressure to
keep the legislature acting decently. A public can easily
bear the rare, random occurrence of a punishment which,
if applied regularly, would make the common gorge rise. It
seems to us that this is just the kind of penalty at which a
prohibition of cruel and unusual punishments must aim.
Whether it happen by accident or design that penalties of
this sort fall most furiously upon the poor and friendless
and upon racial minorities, the supposed “acceptance” of
the penalty is nonetheless a product of the outcast nature
of those who bear the brunt of it. As rarely as we tolerate
the infliction of the death penalty today, we still more
rarely tolerate its infliction upon us.
That the death penalty is rare and unusual permits public
and political acceptance of its cruelty, but, for that very
reason, requires judicial condemnation under the Eighth
Amendment. Rare and uneven usage which evades the
public conscience politically demands the supervision by the
public conscience, speaking through the courts, which the
Eighth Amendment promises. This is the more true because,
we think such usage itself affronts “the dignity of man,”
Trop v. Dulles, supra, and those cherished principles of fair
and regular, nonarbitrary treatment of the citizen which the
Eighth Amendment, no less than the Fourteenth, supposes.
“ [T]he issue . . . is not . . . whether it is fair or
just that one who takes another person’s life should
lose his own. Whatever you think about that pro
position it is clear that we do not and cannot act
upon it generally in the administration of the penal
law. The problem rather is whether a small and
55
highly random sample of people who commit mur
der or other comparably serious offenses ought to be
despatched* while most of those convicted of such
crimes are dealt with by imprisonment.” 107
(13) The reasons why our society is no longer willing
generally to act upon the penal principle of a life for a life
are, in part, pragmatic. The primary pragmatic considera
tion of this sort is, of course, our modern development of
large-scale penal and correctional institutions which we must
maintain whether or not we use them for “capital” criminals,
and into which we can now also place our “capital” crim
inals if we choose.108 But it is not the mere availability of
107Professor Wechsler, in Symposium on Capital Punishment, 7
N.Y.L. FORUM 247, 255 (1961). See also Sellin, The Inevitable End
o f Capital Punishment, in SELLIN (1967), 239, 243: “ [l]f we con
servatively assume that there are now about 2500 capital murders
annually in the United States and but seven executions, it is obvious
that a life for a life is rarely taken.”
106See Bedau, The Courts, The Constitution, and Capital Punish
ment, [1968] UTAH L. REV. 201, 232:
“In 1790, when the eighth amendment was adopted (and
even more so in earlier centuries, when ‘cruel and unusual
punishments’ were first prohibited in England) only two types
of punishment were available to cope with serious offenses:
death (with or without aggravations) and banishment, or
‘transportation,’ to the colonies or some other remote and
relatively uninhabited region. Imprisonment, as something
more than a mode of temporary detention prior to trial or
as punishment for a minor offense, was entirely unknown at
the time anywhere in Europe or America. How could any
one in 1790 sensibly have demanded that the ‘evolving stand
ards of decency’ required there and then imprisonment rather
than death for felons? There were no prisons, no trained
custodial and administrative officers, no parole system, no
statutes to authorize creating any of these, no public disposi
tion to obtain them—in short, none of the attitudes, facilities
and personnel obviously necessary to run a system of long
term incarceration. Today, of course, banishment is no alter
native at all. Instead, imprisonment is an entirely common
place practice and a viable alternative to banishment and
death for every serious crime. However inhumane and bru
tal imprisonment may be (and there is no doubt that in
practice it often is), involuntary incarceration under close
56
this alternative to the penalty of death that has made our
society choose overwhelmingly to use it and to reject
capital punishment. It is the profound appreciation that,
once we have developed an alternative,109 it would be in
tolerably cruel not to use it.110
We have tocused our argument in this brief upon the word
“unusual” in the Eighth Amendment rather than upon the
word “cruel.” That is because, as we read this Court’s prior
decisions,111 they have not denied the cruelty of the death
penalty, but have assumed its constitutionality as not “un
usual.” Plainly, the death penalty is cruel. Even if it
involved no more than the calculated and deliberate exter
mination of a human life it would be cruel. “The killing of
a helpless captive is a brutally degrading experience. If
those alone who have participated in an execution could
supervision may still be a necessary ‘cruelty’ in most cases
involving the commission of violent crimes. The undeniably
greater severity of death as a punishment over imprisonment
is, ceteris paribus, sufficient by itself to establish its greater
cruelty.”
109In note 116 infra, we discuss very briefly the consideration that
are relevant to a rational choice between the alternatives of death and
imprisonment as penalties for violent crimes. That discussion is im
material here, because we could not possibly assert that the consider
ations canvassed in note 116 control the decisions of prosecutors, juries,
judges, governors and others which, in fact, determine use of one
penalty or the other. Our point here is simply the descriptive one
that each of these decisions today is made with the knowledge that
prison is an available alternative, in the sense that it is there if the
decider should decide to use it.
110See CLARK, CRIME IN AMERICA (1970), 336-337:
“ . . . There were times when self-preservation may have
necessitated [the] . . . imposition [of the death penalty].
Later, when food, clothing and shelter were scarce and
often insufficient, inordinate sacrifices by the innocent would
have been required to isolate dangerous persons from the
public. Our civilization has no such excuse.”
111 See note 9 supra.
57
vote on the death penalty, it would be abolished tomorrow.” 112
But more is involved. Uniquely among punishments, a
death sentence inflicts upon the condemned man “a fate
of ever-increasing fear and distress.” 113 114 “The devastat-
112West, Medicine and Capital Punishment, in Hearings, at 125. As
previously in briefing the Eighth Amendment question in this Court,
the problem of presenting the reality of a punishment of death has
given us great trouble. In the Brief for the N.A.A.C.P. Legal Defense
and Educational Fund, Inc., and the National Office for the Rights of
the Indigent, as Amici Curiae, in Boykin v. Alabama, 395 U.S. 238
(1969) [O.T. 1968, No. 642], pp. 29-30, we explained why we there
decided against providing the Court with published descriptions of the
commonly used American methods of execution: “ ]A]s we prepared
the materials for the appendix, we realized that their inclusion here
would certainly cause us to be charged with sensationalism and an
appeal to passion and repulsion. Such is the character of this institu
tion of killing men that it forces one who attacks it legally either to
describe with particularity what he is attacking, and be bitterly
resented, or to keep silent about it, and risk being misunderstood.
Finally, we have decided to join in the general “decent reticence,”
and to do no more than provide the Court with citations to descrip
tions of the methods of executions.”
In the present case, we have decided the matter the other way,
after much reflection in light of our different responsibilities here.
Appendix I to this brief sets forth some of the accurate and respon
sible descriptions of executions by electricity and hydrocyanic gas.
n3Trop v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion of
Chief Justice Warren). See Weems v. United States, 217 U.S. 349,
372 (1910): “ [I] t must have come to [the Framers of the Eighth
Amendment] . . . that there could be exercises of cruelty by laws
other than those which inflicted bodily pain or mutilation.”
114 Dostoevsky, who was himself condemned to die and reprieved
only shortly before his scheduled execution, gives this description:
“But the chief and the worst pain may not be in the bodily
suffering but in one’s knowing for certain that in an hour,
and then in ten minutes, and then in half a minute, and then
now, at the very moment, the soul will leave the body and
that one will cease to be a man and that that’s bound to
happen; the worst part of it is that it’s certain. When you
lay your head down under the knife and hear the knife slide
over your head, that quarter of a second is the most terrible
of all.” DOSTOEVSKY, THE IDIOT (Modern Library, 1935),
20 (original emphasis).
58
ing, degrading fear that is imposed on the condemned for
months or years is a punishment more terrible than death
” 115
(14) It is important, finally, that such rare and unusual
use as American society makes of the death penalty today
deprives it of any functional place in the rational scheme
of a state’s penal law. Harsh punishments used in this
manner cease to be instruments of public justice or of rea
soned penal policy, and hence cease to have any claim to
legitimacy that might be set off against the commands of
the Eighth Amendment. Capital punishment generally can
be shown to have no particular efficacy, in achieving the
legitimate aims of the criminal law, that less harsh penalties
do not have.116 But whatever claims of penological efficacy
llsCAMUS 200. See also id. at 199:
“ [In considering the argument from lex talionis] let us
leave aside the fact that the law of retaliation is inapplicable
and that it would seem just as excessive to punish the incin-
diary by setting fire to his house as it would be insufficient
to punish the thief by deducting from his bank account a
sum equal to his theft. Let us admit that it is just and
necessary to compensate for the murder of the victim by the
death of the murderer. But beheading is not simply death.
It is just as different, in essence, from the privation of life,
as a concentration camp is from prison, it is a murder, to
be sure, and one that arithmetically pays for the murder
committed. But it adds to death a rule, a public premedia-
tation known to the future victim, an organization, in short,
which is itself a source of moral sufferings more terrible than
death. Hence there is no equivalence. Many laws consider a
premeditated crime more serious than a crime of pure violence.
But what then is capita! punishment but the most premedi
tated of murders, to which no criminal’s deed, however cal
culated it may be, can be compared? For there to be an
equivalence, the death penalty would have to punish a crim
inal who had warned his victim of the date at which he would
inflict a horrible death on him and who, from that moment
onward, had confined him at his mercy for months. Such a
monster is not encountered in private life.”
H6The aims of the criminal law are generally stated to be ( 1) retri
bution, (2) moral reinforcement or reprobation, (3) isolation, reform
ation, rehabilitation of the offender, and (4) deterrence. To these
may be added: (5) the achievement of the first four aims efficiently
and economically.
59
might be made for the death penalty if it were generally,
regularly, fairly and even-handedly applied as a punishment
(1) Although “ jmjodern penological thought discounts retribution
in the sense of vengeance” [ROYAL COMMISSION 17), nothing in
our submission requires the Court to consider whether the States can
constitutionally pursue that aim. Cf. Powell v. Texas, 392 U.S. 514,
530 (1968). This is so for two reasons. First, the death penalty as
it is used today—to kill an arbitrarily selected handful of America’s
thousands of convicted murderers—is not even supportable by the
rationale of retribution. See note 107 supra, and accompanying text.
“Experienced wardens know many prisoners serving life or less whose
crimes were equally, or more atrocious, than those of the men on
death row.” Statement of Attorney General Ramsey Clark, in Hear
ings, at 93. See LAWES, TWENTY THOUSAND YEARS IN SING
SING (1932), 302, 307-310; DUFFY & HIRSHBERG, 88 MEN AND
2 WOMEN (1962), 254-255; Testimony of Clinton T. Duffy, in Hear
ings, at 24. Second, no assessment of the degree of punishment
necessary to effect retribution can be rationally made. Therefore, it
cannot be asserted that any particular penalty is more supportable by
retributive purposes than any other.
(2) Moral reinforcement or reprobation doubtless requires that the
most serious crimes be punished most seriously. But, obviously,
“Grading punishments according to the severity of the crime does not
require that the upper limit of severity be the death penalty.” BEDAU
268. The reprobation function, therefore, hardly needs or warrants
capital punishment. See Ancel, The Problem o f the Death Penalty,
in SELLIN, CAPITAL PUNISHMENT (1967) 3, 16-17, 19.
(3) “ [Reformation . . . can have no application where the death
penalty is exacted.” ROYAL COMMISSION 18. As for isolation, the
evidence is clear and overwhelming that, for no class of criminals, is
death required to render them socially safe. Lesser alternatives are
ample. SELLIN (1959) 69-79; KOESTLER 144-152; BEDAU 395-
405; Bedau, Death Sentences in New Jersey 1907-1960, 19 Rutgers
L. Rev. 1, 47 (1964).
(4) As for deterrence, there is simply no evidence—despite the
most exhaustive inquiry into the subject—that the death penalty is a
superior deterrent to lesser punishments. We discuss the evidence in
Appendix H to this brief; and see SELLIN (1959), 19-63; SELLIN
(1967), 135-186, 244-253; MATTICK 8028; KOESTLER 48-61, 171-
178; CALVERT, CAPITAL PUNISHMENT IN THE TWENTIETH
CENTURY (3d ed. 1928), 51-90; BEDAU 214, 258-343; Bedau, A
Social Philosopher Looks at the Death Penalty, 123 AM. J. PSYCHIA
TRY 1361, 1362 (1967); Hook, The Death Sentence, in BEDAU 146,
60
for crime, surely vanish when it is applied as the United
States now applies i t- ra re ly , irregularly, unfairly and un-
147-148, 151. A few law enforcement officials and other who support
the death penalty sometimes appear to argue that this proposition is
factually debatable. It is not, as more candid proponents of capital
punishment admit. “It is generally agreed between the retentionists
and abolitionlists, whatever their opinions about the validity of com
parative studies of deterrence, that the data which now exist show no
correlation between the existence of capital punishment and lower
rates of capital crime.” UNITED NATIONS 123. Every serious
inquiry into the death penalty has accepted this conclusion. UNITED
NATIONS 55-58, 115-1 19; ROYAL COMMISSION 18-24, 58-59,328-
380; CEYLON, SESSIONAL PAPER XIV-1959, REPORT OF THE
COMMISSION OF INQUIRY ON CAPITAL PUNISHMENT (1959),
42-52; PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, REPORT (THE CHALLENGE OF
CRIME IN A FREE SOCIETY) (1967), 143; CALIFORNIA ASSEM
BLY, REPORT OF THE SUBCOMMITTEE OF THE JUDICIARY
COMMITTEE ON CAPITAL PUNISHMENT (1957), 27-30; NEW
YORK STATE, TEMPORARY COMMISSION ON REVISION OF
THE PENAL LAW AND CRIMINAL CODE, SPECIAL REPORT ON
CAPITAL PUNISHMENT (1965), 2; PENNSYLVANIA JOINT LEGIS
LATIVE COMMITTEE ON CAPITAL PUNISHMENT, REPORT (1961),
9, 20-29; FAVREAU 36-37; and see the debates collected in SELLIN
(1967), 55-104, and in FAVEREAU, passim.
Significantly, wherever serious official inquiries have found some
support for the thesis that capital punishment may have greater deter
rent efficacy than imprisonment, that support has been found in the
impressionistic opinions of police, prosecutors and other law enforce
ment officials, unsustained by objective evidence. See CANADA,
JOINT COMMITTEE OF THE SENATE AND HOUSE OF COMMONS
ON CAPITAL PUNISHMENT, REPORT (1956). paras. 29-33. 43-50;
NEW JERSEY, COMMISSION TO STUDY CAPITAL PUNISHMENT.
REPORT (1964), 8-10; FAVREAU 4, 23. The Royal Commission
also gave some weight to such impressionistic opinions, while explicitly
recognizing that there was no objective evidence behind them. ROYAL
COMMISSION 18-24. Interestingly, corrections personnel appear very
preponderately to believe that capital punishment has no particular
deterrent efficacy. DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN
(1962), 257; Testimony of Clinton T. Duffy, in Hearings 22-23;
Thomas, Attitudes o f Wardens Toward the Death Penalty, in BEDAU
242. And see National Council on Crime & Delinquency, Board of
Trustees, Policy Statement on Capital Punishment, 10 CRIME & DE
LINQUENCY 105 (1964).
61
evenly—to execute a few stray men out of a “capital” crim
inal population of thousands.117
(15) The conclusion is inescapable, we think, that this
rare penalty, inflicted upon the smallest handful of murderers,
is no part of the regular criminal-law machinery of Califor
nia or of any other State. It is a freakish aberration, a ran
dom extreme act of violence, visibly arbitrary and discrim
inatory—a penalty reserved for unusual application because,
if it were usually used, it would affront universally shared
standards of public decency. Such a penalty—not Law, but
Terror-has no place in a democratic government. It is a
cruel and unusual punishment, forbidden by the Eighth
Amendment.
CONCLUSION
Trop v. Dulles said in 1958 that the death penalty could
not be constitutionally condemned “in a day when it is still
widely accepted.” 118 In the same year, Justice Barry wrote:
“The time when nations will cease to execute spies
and traitors will not be seen while wars, hot or cold,
(5) Finally, there seems no doubt that today capital punishment
is more costly economically than the alternative of imprisonment,
even for life. McGee, Capital Punishment as Seen by a Correctional
Administrator, 28 FEDERAL PROBATION (No. 2) 11, 13-14 (1964);
MacNamara, Statement Against Capital Punishment, in BEDAU 182,
192-193; West, Medicine and Capital Punishment, in Hearings, at 125;
Testimony of Clinton T. Duffy, in Hearings, at 25-26. There is no
need to document its other baneful effects on the administration of
justice, which are commonplaces. E.g., FRANKFURTER, OF LAW
AND MEN (1956), 81, 84-85.
U7WEIHOFEN 159-160, 163-164; LAWES, LIFE AND DEATH
IN SING SING (1928), 154-155; PLAYFAIR & SINGTON, THE
OFFENDERS (1957), 231; CALIFORNIA ASSEMBLY, REPORT OF
THE SUBCOMMITTEE OF THE JUDICIARY COMMITTEE ON
CAPITAL PUNISHMENT (1957), 27.
u8Trop v. Dulles, 356 U.S. 86, 99 (1958) (plurality opinion of
Chief Justice Warren).
62
inflame national passions and create a climate of fear
and hatred. But plainly the distaste for death as a
punishment for crimes that affect the individual and
only indirectly the State is growing more general,
and the complete abandonment of capital punish
ment as a feature of the criminal law is not far
distant.” 119
119Barry, Hanged by the Neck U n t i l 2 SYDNEY L. REV. 401,
4! 1 (1958).
63
The time foreseen by Justice Barry, and to which this
Court in Trop deferred, has come. The Court should now
reverse Earnest Aikens’ sentence of death.120
Respectfully submitted,
JACK GREENBERG
JAMES M. NAB1T, III
CHARLES STEPHEN RALSTON
JACK HIMMELSTEIN
120Throughout this brief, we have relied upon only such factual
assertions (regarding the rarity of the death penalty, its uneven appli
cation, and its harshness) as we believe that this Court can judicially
notice. Those facts, however, are a small part of the factual evidence
which condemns the death penalty as a cruel and unusual punishment.
Counsel for petitioner have repeatedly sought evidentiary hearings in
the courts of California and elsewhere at which they might prove all
of the relevant facts through “ the sharp legal and evidentiary clash
between fully prepared adversary litigants which is traditionally
expected in major constitutional cases.” Powell v. Texas, 392 U.S.
514, 522 (1968). Such a hearing has been repeatedly refused. See,
e.g., Petition for a Writ of Certiorari, in Anderson et al. v. California,
O.T. 1968, No. 1643 Misc. [now O.T. 1971, No. 68-5007], pp. 22-
30; Petition for a Writ of Certiorari, in Forcella v. New Jersey, O.T.
1968, No. 947 Misc. [decided sub nom. Funicello v. New Jersey, _
U.S.___, 29 L.ed.2d 859 (1971)], pp. 76-89.
We believe, for the reasons stated in this brief, that the death
penalty is a constitutionally prohibited cruel and unusual punishment
upon the judicially noticeable facts. But, should this Court conclude
that further factual information is necessary or appropriate for dis
position of the Eighth Amendment issue, it would appear proper to
remand the present case to the California Supreme Court. That
Court’s decision of the Eighth Amendment question herein was based
exclusively upon its decision in the Anderson case, see p. 6 supra', and
if Anderson rests upon a basis that is inadequate to support proper
constitutional adjudication, the present decision of the California
Supreme Court is infirm. On the other hand, there are admitted
procedural differences between the present direct appeal and the
habeas corpus proceeding in Anderson', and the certiorari petition
there raises the specific question whether a death-sentenced man is
entitled to an evidentiary hearing upon specific proffers of proof
going to Eighth Amendment questions.
64
ELIZABETH B. Du BO IS
JEFFRY A. MINTZ
ELAINE R. JONES
LYNN WALKER
ANN WAGNER
10 Columbus Circle, Suite 2030
New York, New York 10019
JERRY A. GREEN
273 Page Street, Suite 711
San Francisco, California 94102
JEROME B. FALK, JR.
650 California Street, Suite 2920
San Francisco, California 94108
PAUL N. HALVONIK
593 Market Street
San Francisco, California 94105
MICHAEL MELTSNER
Columbia University Law School
435 West 116th Street
New York, New York 10027
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
APPENDICES
A-i
TABLE OF AUTHORITIES
APPENDICES
Page
Cases:
Clarendon’s Case, 6 Howell St. Trials (Eng.) 291 (1 6 6 7 )............ 27c
Cooper v. Telfair, 4 Dali. 314 (1800) ............................................. 28c
People v. Kemp, 55 Cal.2d 458, 359 P.2d 913, 11 Cal. Rptr.
361 (1961) ..................................................................................... 7b
People v. Potter, 1 Parker Crim. Rep. 47 (N.Y. Sup. Ct. 1846) . 27c-28c
People v. Smith, 1 Bailey 283 (S.C. 1830)............................. 27c
State v. Fuller, 1 McCord 178 (S.C. 1821)..................................... 27c
United States v. Jackson, 390 U.S. 570 (1968) ........................... Ig
Constitutional and Statutory Provisions:
Eighth Amendment, U.S. Constitution.......................................... 7d
Ordinance of 1787: The Northwest Territorial Government,
The Confederate Congress, July 13, 1787; Art. II, 1 U.S.C.
(1964), xxxvii, x x xv iii................................................. 4d
18 U.S.C., pt. 1 . . ........................................................................ l g
18 U.S.C., §111 (1964)...................................................................... 3f
18 U.S.C., § 2031 (1964)................................................................... 8f
49 U.S.C., Ch. 2 0 ............................................................................. 2g
Uniform Code o f Military Justice, 10 U.S.C., subtit. A, Ch. 47 . . . lg
Code of Ala., (Recomp. Vol. 1 9 5 8 ) ............................................... 2g
Ariz. Rev. Stat. (1956)...................................................................... 3g
Ark. Stat. Ann. (1947)...................................................................... 3g
Cal. Mil. & Vet. Code (West, 1955) ............... ............................... 4g
Cal. Penal Code (West, 1954) ......................................................... 3g
Cal. Penal Code, § 187 . ............................................................ la, 3a-4a
Cal. Penal Code, § 188 ...................................................................... la
Cal. Penal Code, § 189 ................................................................... la, 4a
Cal. Penal Code, § 190 ......................................................................la-2a
Cal. Penal Code, § 190.1 ................................................................... 2a
A-ii
Page
Cal. Penal Code, § 3604 ................................................................... 3a
Cal. Penal Code, §3605 ................................................................... 3a
Colo. Rev. Stat. (1963) ................................................................... 4g
Conn. Gen. Stat. Ann (1967) ......................................................... 4g
Delaware Declaration of Rights of 1776, § 16, 1 DEL. CODE
ANN. (1953), 83 ........................................................................... 3d
Del. Code Ann. (1970 Cum. pocket p a r t ) ..................................... 4g
D.C. Code (1 9 6 7 )............................................................................. 2g
Fla. Stat. Ann. (1 9 6 5 )........................................................... 5g
Ga. Crim. Code (1969)...................................................................... 5g
Ida. Code (1947) 5g
Dl. Ann. Stat. (1961)........................................................................ 6g
Burns Ind. Stat. Ann. (1956)............................................................ 6g
Kan. Stat. Ann. (1970 Cum. S u p p .).............. 6g
Ky. Rev. Stat. Ann. (1963) .................................................. 6g
La. Stat. Ann. (West, 1950) ............................................................ 7g
Maryland Constitution of 1776, §§ 14, 22, 3 THORPE, FED
ERAL AND STATE CONSTITUTIONS (1909), 1688 ............... 3d
Ann. Code Md. (1957)................................ .................................... 7g
Miss. Code Ann. (Recomp. Vol. 1 9 5 6 ).......................................... 7g
Massachusetts Constitution of 1780, Art. 26, 3 THORPE,
FEDERAL AND STATE CONSTITUTIONS (1909), 1892 ----- 3d
Rev. Code Mont. (1947) ................................................................. 8g
Vernon’s Mo. Stat. Ann. (1953)...................................................... 8g
Neb. Rev. Stat. (1943)........................................................ 8g
Nev. Rev. Stat. (1967)...................................................................... 8g-9g
New Hampshire Constitution of 1784, §§ 18, 34, 4 THORPE
FEDERAL AND STATE CONSTITUTIONS (1909), 2456,
2457 ............................................................................................... 3d
N.H. Rev. Stat. Ann. (1955)............................................................ 9g
N.J. Stat. Ann. (1952)...................................................................... 9g
N.M. Stat. Ann. (1969 Cum. pocket p a r t) ..................................... 9g
A-iii
Page
N.Y. Penal Code (McKinney’s, 1 9 67 )............................................. 9g
North Carolina Constitution of 1776, § 10, 5 THORPE, FED
ERAL AND STATE CONSTITUTIONS (1909), 2788 ............ 3d
N.C. Gen. Stat. (1953)................................................................... 9g-10g
N.D. Century Code (1960)............................................................ .. lOg
Ohio Rev. Code Ann. (1953) ............................................................. lOg
Okla. Stat. Ann. (1 9 5 8 ).................................................................. lOg
Pennsylvania Constitution of 1790, Art. 9, § 13, 5 THORPE,
FEDERAL AND STATE CONSTITUTIONS (1909), 3101 . . . . 3d
Purdon’s Pa. Stat. Ann. (1962) ...................... ............................... 11 g
R. I. Gen. Laws (1970)......... ........................................................ l lg
South Carolina Constitution of 1778, § 40, 6 THORPE, FED
ERAL AND STATE CONSTITUTIONS (1909), 3257 ............ .. 3d
South Carolina Constitution of 1790, Art. 9, §4, 6 THORPE,
FEDERAL AND STATE CONSTITUTIONS (1909), 3264 . . . 3d
S. C. Code Ann. (1962) ................................................................... llg
S.D. Comp. Laws (1967) . ................................................ .............. l lg
Tenn. Code Ann. (1955) ................................................................. 12g
Vernon’s Tex. Penal Code Ann. (1961).......................................... 12g
Utah Code Ann. (1 9 5 3 )................................................................... 12g
Vermont Constitution of 1777, Ch. 2, Sec. 35, 6 THORPE,
FEDERAL AND STATE CONSTITUTIONS (1909), 3747 . . . . 4d
Vt. Stat. Ann. (1970 Cum. S u p p .) .................................................. 12g
VIRGIN ISLANDS CODE ANN., tit. 14 § 923 (1964)................. 5e
Virginia Constitution of 1776, Declaration of Rights, § 9,
7 THORPE, FEDERAL AND STATE CONSTITUTIONS
(1909), 3813 .................................................................................. 2d
Va. Ann. Code (Repl. Vol. 1960) .......................................... - • • 13g
Wash. Rev. Code Ann. (1961) .......................................................... 13g
Wyo. Stat. Ann. (1957) .......... ........................ ............................... 13g
34 LAWS OF PUERTO RICO ANN., § 995 (1956)...................... 5e
MAGNA CARTA (1215).................... .............................................. Id
1 Stat. 112,116 (Act of April 30,1790, Ch. 9, § 17) .................. 1c
A-iv
Page
1 William and Mary, Sess, 2, Ch. 2, Preamble, Clause 10,
printed in ADAMS & STEPHENS, SELECT DOCUMENTS
OF ENGLISH CONSTITUTIONAL HISTORY (1926)............ Id
Other Authorities:
Acts and Laws o f the State o f Connecticut in America,
printed by Elisha Babcock (Hartford, 1786) (1 vol.) . . 1c, 16c, 26c
ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS, ANNUAL REPORTS (1962-1969)........................... 4f, 8f
ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS, DIVISION OF PROCEDURAL STUDIES AND
STATISTICS, NUMBER OF PERSONS SENTENCED FOR
CRIMES WHICH INCLUDE THE DEATH SENTENCE AS
A PENALTY SECTION: FISCAL YEARS 1966-1970
(unpublished Report, August 10, 1971)..................................... 4f
12 AM. JUR. PROOF OF FACTS (1962) ..................................... 7b
ANCEL, THE DEATH PENALTY IN EUROPEAN COUN
TRIES (Council of Europe, European Committee on
Crime Problems, 1962) ........................................................... 3e, 3h
Andenaes, Does Punishment Deter Crime? 11 CRIMINAL
LAW QUARTERLY 76 (1 9 6 3 ).................................................. 3h
1 Annals of Congress (1 7 8 9 )............................................................ 8d
BEDAU, THE DEATH PENALTY IN AMERICA (Rev. ed.
1967) [cited as BEDAU] .............................................5h, 6h, 7h, 8h
Bedau, Death Sentences in New Jersey 1907-1960, 19 RUT
GERS L. REV. 1 (1964) ............................................................ 6f
BROOKS, SOME STRANGE AND CURIOUS PUNISHMENTS
(1886) [cited as BROOKS].......................................... 23c, 24c, 26c
Caldwell, Why is the Death Penalty Retained? 284 ANNALS
45 (1952) ...........................................................................'• • • • 7h
STATE OF CALIFORNIA, DEPARTMENT OF JUSTICE,
DIVISION OF LAW ENFORCEMENT, BUREAU OF
CRIMINAL STATISTICS, REPORT (CRIME AND DELIN
QUENCY IN CALIFORNIA, 1967) (1968) .............................. 4f
STATE OF CALIFORNIA, DEPARTMENT OF JUSTICE,
DIVISION OF LAW ENFORCEMENT, BUREAU OF
CRIMINAL STATISTICS, REPORT (CRIME AND DELIN
QUENCY IN CALIFORNIA, 1969) (1970)................................ 5f
A-v
Page
CANADA, JOINT COMMITTEE OF THE SENATE AND
HOUSE OF COMMONS ON CAPITAL AND CORPORAL
PUNISHMENT AND LOTTERIES, REPORT (1956) .......... 6h
CHAFEE, THREE HUMAN RIGHTS IN THE CONSTITU
TION OF 1787 (1956)................................................................. 27c
Chamblis, Types o f Deviance and the Effectiveness o f Legal
Sanctions, [1967] WISCONSIN L. REV. 703 (1967)............... 3h
A Collection o f all such Acts o f the General Assembly o f
Virginia o f a public and permanent nature, as are now in
force, printed by Augustine Davis, Printer for the Com
monwealth (Richmond, 1794) (1 vol.) ..............................15c, 21c
Dann, The Deterrent Effect o f Capital Punishment, FRIENDS
SOCIAL SERVICE SERIES, Bulletin No. 29 (Third Month)
19 (1935)....................................................................................... lh
Desky, Should Capital Punishment be Abolished in California,
39 THE COMMONWEALTH 19 (November 11, 1 9 6 3 ) . . . . . . 6h
A Digest o f the Laws o f the State o f Georgia, by Robert and
Georgia Watkins, printed by R. Aitken (Philadelphia, 1800)
(1 vol.) ....................................................................................4c, 17c
Doleschal, The Deterrent Effect o f Legal Punishment: A
Review o f Literature, 1 INFORMATION REVIEW ON
CRIME & DELINQUENCY (No. 7) (1 9 6 9 )............................. 3h
DOUGLAS, AN ALMANAC OF LIBERTY (1954)...................... 28c
DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN (1962) . . . 7h, 4i
EARLE, CURIOUS PUNISHMENTS OF BYGONE DAYS
(Reprint, 1969) [cited as EA RLE]...................... 21c-22c, 25c, 26c
1, 4 ELLIOT’S DEBATES (2d ed. 1863)..................................... 4d, 5d
2 ELLIOT’S DEBATES (2d ed. 1863) .......................................... 5d
3 ELLIOT’S DEBATES (2d ed. 1863) ............................ 4d, 5d, 6d, 7d
ESHELMAN, DEATH ROW CHAPLAIN (1962)........................... 6i
FLORIDA DIVISION OF CORRECTIONS. BIENNIAL
REPORTS (1964-1970) ................. ........................... ............5f, 8f, 9f
GARDINER, CAPITAL PUNISHMENT AS A DETERRENT:
AND THE ALTERNATIVE (1956) .......................................... 2h
STATE OF GEORGIA BOARD OF CORRECTIONS,
ANNUAL REPORTS (1964-1968) ............................................ 5f, 9f
A-vi
Page
Gold, Suicide, Homocide, and the Socialization o f Aggression,
63 AM. J. SOCIOLOGY 651 (1958)...................... ................... 8h
GOWERS, A LIFE FOR A LIFE (1956)........................................ 2h
Granucci, “Nor Cruel and Unusual Punishments Inflicted
The Original Meaning, 57 CALIF. L. REV. 839 (1969) . . . . Id, 2d
3 HALLAM, CONSTITUTIONAL HISTORY OF ENGLAND
(Harper & Brothers ed. 1 8 5 9 ) .................................................... Id
Hart, Murder and the Principles o f Punishment: England and
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2 HAWKINS, PLEAS OF THE CROWN (8th ed. 1824)............. 27c
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3 HOLDSWORTH, HISTORY OF THE ENGLISH LAW (3d
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Johnson, Selective Factors in Capital Punishment, 36 SOCIAL
FORCES 165 (1957) ................................................................. 7f, lOf
JOYCE, CAPITAL PUNISHMENT: A WORLD VIEW (1961) . . . 3e
KALVEN & ZEISEL, THE AMERICAN JURY (1 9 6 6 )................ 8f
Koeninger, Capital Punishment in Texas, 1924-1968,15 CRIME
& DELINQUENCY 132 (1969) ................................................. 8f
KOESTLER, REFLECTIONS ON HANGING (Amer. ed.
1957) ............................................................................................. 2h
LAWES, LIFE AND DEATH IN SING SING (1928)................. 2h, 9i
Laws o f the Commonwealth o f Pennsylvania, published under
the Authority o f the Legislature by Alexander James
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(4 vols.) ..................................................................................11c, 20c
Laws o f the State o f Delaware, published by Authority,
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A-vii
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Laws o f the State o f New Jersey, Revised and published
under Authority o f the Legislature, by William Paterson,
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Laws o f the State o f New York, Comprising the Constitution
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leaf (New York, 1792) (2 vols.).............................................9c, 19c
Laws o f the State o f North Carolina, published according to
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LUNDEN, THE DEATH PENALTY (1960)................................... 3h
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MAITLAND, THE CONSTITUTIONAL HISTORY OF ENG
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MASSACHUSETTS SPECIAL COMMISSION ESTABLISHED
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2 NATIONAL COMMISSION ON REFORM OF FEDERAL
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A-viii
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(1965-1968) ..................................................................................... 7f
OHIO LEGISLATIVE SERVICE COMMISSION, STAFF
RESEARCH REPORT No. 46, CAPITAL PUNISHMENT
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as Patrick] ..................................................................................2e, 3e
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PERRY, SOURCES OF OUR LIBERTIES (1959) ....................... 2d
PLAYFAIR & SINGTON, THE OFFENDERS (1957)................. 7h
The Public Laws o f the State o f Rhode Island and
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The Public Laws o f the State o f South Carolina, by the Hon
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A-ix
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SELLIN (1967)].............................................................
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5h
A-x
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(1963) ] ........................................................................................ 4f. 8f
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(1964) ] .............................................................................4f. 5f, 8f, 9f
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WHITMORE, COLONIAL LAWS OF MASSACHUSETTS
1660-1672 (1889) ........................................................................ 4d
A-xi
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56 (1964)...................................................................... ................ 7f
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(Science ed„ Wiley, 1966)............................................................ 7f
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tute of Mental Health, January 1971)........................................ 4n
la
APPENDIX A
STATUTORY PROVISIONS INVOLVED
Cal. Penal Code, §187
(West, 1970)
as it read prior to September 17, 1970
§ 187. Murder defined
Murder Defined. Murder is the unlawful killing of a
human being, with malice aforethought.
Cal. Penal Code, §188
(West, 1970)
§ 188. Malice, express malice, and implied malice defined
Malice Defined. Such malice may be express or implied.
It is express when there is manifested a deliberate intention
unlawfully to take away the life of a fellow creature. It is
implied, when no considerable provocation appears, or when
the circumstances attending the killing show an abandoned
and malignant heart.
Cal. Penal Code, § 189
(West, 1970)
as it read prior to August 23, 1969
§189. Murder; degrees
All murder which is perpetrated by means of poison, lying
in wait, torture, or by any other kind of willful, deliberate,
and premediated killing, or which is committed in the per
petration of, or attempt to perpetrate, arson, rape, robbery,
burglary, mayhem, or any act punishable under Section 288,
is murder of the first degree; and all other kinds of murders
are of the second degree.
Cal. Penal Code, §190
(West, 1970)
§ 190. Murder; punishment; discretion of jury
Every person guilty of murder in the first degree shall
suffer death, or confinement in the state prison for life, at
2a
the discretion o f the court or ju ry trying the same, and the
m atter o f punishm ent shall be determ ined as provided in
Section 190.1, and every person guilty o f m urder in the
second degree is punishable by im prisonm ent in the state
prison from five years to life.
Cal. Penal Code, § 190.1
(West, 1970)
§ 190.1. Sentences of death or imprisonment for life; deter
mination; minors under 18
The guilt or innocence o f every person charged w ith an
offense for which the penalty is in the alternative death or
im prisonm ent for life shall first be determ ined, w ithou t a
finding as to penalty. If such person has been found guilty
o f an offense punishable by life im prisonm ent or dea th , and
has been found sane on any plea o f not guilty by reason of
insanity, there shall thereupon be further proceedings on the
issue o f penalty, and the trier o f fact shall fix the penalty.
Evidence may be presented at the further proceedings on the
issue o f penalty , o f the circum stances surrounding the crime,
o f the defendan t’s background and history, and o f any facts
in aggravation or m itigation o f the penalty. The determ ina
tion o f the penalty o f life im prisonm ent or death shall be
in the discretion o f the court or ju ry trying the issue o f fact
on the evidence presented, and the penalty fixed shall be
expressly stated in the decision or verdict. The death pen
alty shall not be imposed, however, upon any person who
was under the age of 18 years at the time o f the commission
o f the crime. The burden o f p roof as to the age o f said
person shall be upon the defendant.
If the defendant was convicted by the court sitting w ith
out a ju ry , the trier o f fact shall be the court. If the
defendant was convicted by a plea o f guilty, the trier o f fact
shall be a ju ry unless a jury is waived. If the defendant was
convicted by a ju ry , the trier o f fact shall be the same jury
unless, for good cause shown, the court discharged that
ju ry in which case a new jury shall be draw n to determ ine
the issue of penalty.
3a
In any case in which defendant has been found guilty by
a jury, and the same or another jury, trying the issue of
penalty, is unable to reach a unanimous verdict on the issue
of penalty, the court shall dismiss the jury and either impose
the punishment for life in lieu of ordering a new trial on
the issue of penalty, or order a new jury impaneled to try
the issue of penalty, but the issue of guilt shall not be retried
by such jury.
Cal. Penal Code, § 3604
(West, 1970)
§ 3604. Method of execution; lethal gas
The punishment of death shall be inflicted by the admin
istration of a lethal gas.
Cal. Penal Code, § 3605
(West, 1970)
§ 3605. Witnesses to execution; selection; exclusion of
minors
The warden of the State prison where the execution is to
take place must be present at the execution and must invite
the presence of two physicians, the Attorney General of the
State, and at least 12 reputable citizens, to be selected by
him; and he shall at the request of the defendant, permit
such ministers of the Gospel, not exceeding two, as the
defendant may name, and any persons, relatives or friends,
not to exceed five, to be present at the execution, to
gether with such peace officers as he may think expedient,
to witness the execution. But no other persons than those
mentioned in this section can be present at the execution,
nor can any person under age be allowed to witness the same.
Cal. Penal Code, §187
(West, 1971 Cum. pocket part)
as amended September 17, 1970
§ 187. Murder defined; death of fetus
(a) Murder is the unlawful killing of a human being, or
a fetus, with malice aforethought.
4a
[ Subsections (b) and (c) relate to the killing of a fetus. ]
Cal. Penal Code. § 189
(West, 1971 Cum. pocket part)
as amended August 19, 1970la
§ 189 . Murder; degrees
All murder which is perpetrated by means of a destruc
tive device or explosive, poison, lying in wait, torture, or by
any other kind of willful, deliberate, and premediated killing,
or which is committed in the perpetration of, or attempt to
perpetrate, arson, rape, robbery, burglary, mayhem, or any
act punishable under Section 288, is murder of the first
degree; and all other kinds of murders are of the second
degree.
As used in this section, “destructive device” shall mean
any destructive device as defined in Section 12301, and
“explosive” shall mean any explosive as defined in Section
12000 of the Health and Safety Code.
laThe statute as it read between August 23, 1969 (see Cal. Penal
Code §189, p. la supra) and August 19, 1970, contained the word
“bomb” where the 1970 version has “destructive device or explosive” ;
and its second paragraph defined “bomb.”
lb
APPENDIX B
SUMMARY OF THE EVIDENCE RELATING TO
THE KILLINGS OF MRS. EATON AND MRS. DODD
On January 31, 1966, following a protracted trial (TR.
3371),Ib a judge of the Superior Court of Ventura County,
California, convicted Petitioner Earnest James Aikens, Jr., a
Negro (Tr. 2850), then twenty years old (Tr. A 91-92) of
the first-degree murder of Mrs. Mary Winifred Eaton, a
white woman (Tr . 2860). The court’s remarks upon convic
tion are at Tr. 3372-3419. On March 21, 1966, following a
protracted penalty trial (Tr. 3422-3419), the court sentenced
him to death for this offense. Its remarks upon the sentence
are at Tr. 4890-4992.
In a proceeding consolidated for trial, the judge also con
victed petitioner of the first-degree murder of another white
woman (Tr. 2860), twenty-five-year-old Mrs. Kathleen Nell
Dodd (Tr. 2882), and fixed the penalty at life imprisonment
in accordance with California law (Cal. Penal Code § 190.1),
which prohibits imposition of the death penalty on any
person who was under eighteen years of age when the
murder was committed. Petitioner was just under seventeen
when Mrs. Dodd was murdered on the night of April 3-4,
1962; he was twenty when Mrs. Eaton was murdered on April
26,1965. (Tr. A 91-92)
At the penalty trial following petitioner’s conviction on
the charge of killing Mrs. Eaton, the prosecution introduced
evidence that petitioner had also murdered Mr. Clyde J.
Hardaway, a Negro man in his forties (Tr. 3424), on June
7, 1962, and forcibly raped a fifteen-year-old Negro girl (Tr.
4250, 4277), Dorthy Ann Piggee, on December 25, 1962.
lbThe trial transcript (Reporter’s Transcript) is in twenty volumes,
including the guilt and penalty trials, and is cited herein as Tr.____ .
There is a one-volume Reporter’s Transcript of pretrial proceedings,
designated Volume A, cited herein as Tr. A ____ . There is also a two-
volume Clerk’s Transcript in the Eaton matter (Cr. 5527) [cited 5507
R .____ ], and a one-volume Clerk’s Transcript in the Dodd matter
(Cr. 5705) [cited 5705 R .____ ],both of which contain exhibit indices
to the trial.
2b
Additional evidence of petitioner’s repeated criminal activi
ties appears throughout the record of the penalty trial, and
is summarized in the court’s finding set forth at p. 3-4 of the
body of this brief.
Petitioner was indicted for the Eaton murder four days
thereafter, on April 30, 1965 (5527 R. 1); and he was indicted
for the Dodd murder August 13, 1965 (5705 R. 1), three
years and four months after the date of the crime. Peti
tioner pleaded not guilty to each charge (Tr. A 38, 121),
consented to the prosecutor’s motion to consolidate the two
trials (Tr. A 122), and waived trial by jury (Tr. A 168-175,
185-189; Tr. 3-4).
The prosecutor presented and argued both murders prin
cipally on the felony-murder theory, and the judge found
that each killing occurred in the course of the commission
of the felonies of burglary and/or robbery, and rape. (Tr.
3419). The prosecutor also argued, and the judge found,
that premeditation could be inferred from the manner and cir
cumstances of the murders. (Tr. 3419.) The prosecutor
advanced other similarities which linked the murders to each
other, and thus, he argued, to petitioner-including the facts
that both victims lived within a short distance of petitioner’s
residence; the home of neither was entered forcibly; and
each was killed with a knife from her own kitchen.
The proof concerning each murder was circumstantial
including inconsistent various admissions and statements
made by petitioner to fellow inmates and to authorities.
Petitioner did not testify.
A . The Eaton Killing
The circumstances surrounding the Eaton murder were as
follows:
Mrs. Mary Winifred Eaton lived with her husband, Frank
Eaton, her adopted children, Eddie Eaton and Susan Mann,
and her son-in-law, David Mann (Tr. 1741), at 396 South
Santa Cruz St., Ventura, California, the north-east corner
3b
house at Ocean Avenue, which runs east-west. On the day
of her death, April 26, 1965, Mrs. Eaton had breakfast with
her husband and her children at about 7:15 a.m, (Tr. 1770,
1741, 1806), then helped Eddie move furniture in the hall
(Tr. 1806), so that she could work later at waxing floors, as
she told Susan (Tr. 1742). Frank Eaton left for work at
7:35 (Tr. 848), and Susan left for school together with Eddie
and David at 8:20 (Tr. 1741).
Mrs. Eaton apparently started waxing, using a liquid which
she applied with a hand applicator. (Tr. 919.) At 10:00 no
one at the Eaton home answered the knock of Mrs. Seidel,
a commercial census compiler who knew Mrs. Eaton from
earlier acquaintance. (Tr. 774). Mrs. Eaton was home,
however, when Mrs. Seidel returned later in the morning;
she spoke to Mrs. Seidel for a few moments, and showed her
out between 11:00 and 11:30. (Tr. 775) She was the last
person known to have seen Mrs. Eaton alive, except for her
killer.
Frank Eaton discovered his wife’s body at 6:45 p.m. (Tr.
1752), next to the bed in Eddie’s room (Tr. 858), two hours
after he had returned horn from work (Tr. 850). Susan
and David Mann had returned an hour earlier, at 3:40 p.m.
(Tr. 1742), and remained about the house without discover
ing Mrs. Eaton’s body. The coroner who performed an
autopsy the next morning, (Tr. 1631), Dr. Ridge, placed the
time of death as “within four hours, probably somewhat less,
from the time that [some (Tr. 1663)] orange . . . pulp was
ingested.” (Tr. 1664.) Mrs. Eaton probably ate her orange,
not at breakfast (Tr. 1812), but with a snack later on,
according to her custom (Tr. 895). Thus, the time of death
might have been anywhere from 11:00 or 11:30 a.m., when
Mrs. Seiden departed, to 3:40 p.m., when Susan and David
Mann returned.
The intruder apparently did not forcibly break into Mrs.
Eaton’s home, nor were there signs of a struggle apart from
an overturned vacuum cleaner. (Tr. 1746.) Sometime after
the intruder’s entrance, he either had Mrs. Eaton collect her
4b
purses or tell him where they were; or he found them him
self, since two empty purses were discovered near her body
in Eddie’s room. (Tr. 863.) Frank Eaton guessed that two
$5 bills had been in Mrs. Eaton’s wallet in her purse, and
that about $7 was missing from the grocery purse in the
kitchen. (T’r. 852, 857.)
Mrs. Eaton was taken to or attacked in Eddie’s bedroom,
where her hands were bound behind her with two belts (Tr.
904, 1359), and a terry cloth robe at some point was placed
over her head (Tr. 1358), with the belt possibly gagging or
choking her (Tr. 903). She was probably raped by the
intruder on Eddie’s bed, since two sperm and some seminal
fluid were later identified on a vaginal smear. (Tr. 1890.)
Although such a number of sperm does not ordinarily indi
cate recent sexual activity, (Tr. 1891), there was evidence
that veneral disease can decrease the number of sperm which
a man will emit (Tr. 1917), and that petitioner tested posi
tively for gonorrhea on April 13, 1965 (Tr. 1941). Mrs. Eaton
had last had sexual relations with her husband seven days
earlier (Tr. 867), and he was probably physiologically incap
able of producing sperm (Tr. 1596).
Mrs. Eaton was then viciously and fatally attacked with
her bread knife (Tr. 1839), which the intruder had taken from
the kitchen drawer (Tr. 1807). She was struck on the front
right side of her neck, or perhaps choked, possibly rendering
her unconscious (Tr. 1653, 1659), and was stabbed several
times. One knife wound, and the major cause of death due
to massive hemorrhage and shock, was a large, incised wound
of the left and front surface of the neck extending to the
front lateral right side, which completely severed the left
jugular vein and the trachea and reached the spine. (Tr.
1633.) This wound indicated that there may have been two
applications of force following the first incision. (Tr. 1641.)
Mrs. Eaton also suffered a multiple superficial incision in
the back of the neck (Tr. 1635), and a deep incised oval
wound of the left chest in the front which penetrated the
ribs, the left lung, the pericardial sac, and the heart, making
five entries into the heart. (Tr. 1637). Before leaving, the
5b
attacker apparently partially covered Mrs. Eaton’s body with
the bedding where it lay next to the bed (Tr. 861), washed
the knife, and replaced it in the kitchen drawer (Tr. 1287).
The principal evidence identifying petitioner as Mrs.
Eaton’s killer was that he gave Mrs. Eaton’s two rings to
girlfriends in Pasadena on the evening of the murder. (Tr.
994, 1026, 1086, 1103.) Mrs. Eaton was wearing her rings
the day before. (Tr. 845.) One of the rings was found,
upon examination, to have on it a quantity of blood too
small to type, and also some particles of wax that might
have been the sort which Mrs. Eaton was using, or any other
commercial floor wax. (Tr. 1847-1848, 1896-1906, 2407-
2412.)
Petitioner’s whereabouts during the morning and early
afternoon of the murder were determined by fitting together
the recollections of persons in the neighborhood from whom
he was seeking employment. His time until 11:30, between
12:00 and 12:30, and after 1:00 was adequately accounted
for, but the intervals from about 11:30 to 12:00 and from
12:30 to 1:00 were subject to doubt, and might have pro
vided opportunities for commission of the murder. Peti
tioner lived not far from Mrs. Eaton’s house. A loan
company employee testified that she talked to him by phone
at home at 10:10. (Tr. 659.) A neighbor of the Eatons
testified that petitioner came to his house at 10:30 and
asked to see his tenants (whose windows overlooked the rear
of the Eaton house (Tr. 739-740, 752-753)). The tenants
were out; petitioner was not admitted; and he next went to
inquire about buying a car. (Tr. 722-723.) He was
reported seen looking at cars on a commercial street
at 10:30 (Tr. 757); seeking employment before 11:00
Don’s Drive-in (Tr. 2377), “between 10 and 12 . . . around
11” at Scritchfield Motors (Tr. 2396-2397), and “at 11:30 . . .
somewhere in that vicinity” at Poinsettia Bowling (Tr. 2382).
The witness at Poinsettia suggested that petitioner should go
to seek work at Scritchfield. It was two long blocks, five
or ten minutes’ walk, from Poinsettia or Scritchfield to Mrs.
Eaton’s house. (Tr. 3112.)
6b
Petitioner was next seen at just about 12:00 noon by Mr.
and Mrs. Shinavar, who lived across the street from the
Eatons and a few feet to the north. (Tr. 788, 802.) Peti
tioner asked for work and Mr. Shinavar offered him a dollar
if he could catch a gopher under his lawn. After talking
for a while, petitioner said that he needed a job and needed
money; and he left, walking north and across the street
toward the home of Mrs. Lopez, two houses north of the
Eaton house. (Tr. 804-805.) Mrs. Lopez recalled that peti
tioner knocked on her door at about 12:25 and asked for
work. She told him she had none and he left, walking south
toward Ocean Avenue. She remembered immediately tele
phoning at 12:27 to find out the time so she could catch a
bus. (Tr. 650-652, 654.)
Mr. Shinavar saw petitioner again some time before 1:00
p.m., when petitioner returned with a cultivator and a piece
of wire to use in poking for the gopher, and poked around
for awhile. (Tr. 806-808.) Petitioner then walked the long
block to his home on Ocean Avenue where his parole officer,
Mr. Ansell, said he met petitioner at “no more than 10 min
utes after 1:00.” (Tr. 1372.) The time at which Mr. Shinavar
saw petitioner return with the paraphernalia was fixed from
several reference points. He testified that petitioner left
“just before 1:00” after being at his house “somewhere
around 20, 25 minutes,” poking at the gopher hole, attempt
ing to flush out the gopher, and talking to Mr. Shinavar.
(Tr. 817.) He also stated that petitioner was gone “roughly
35,40 minutes” between the first and second times that Mr.
Shinavar saw him (Tr. 806), and that petitioner had left the
first time at about 12:05 (Tr. 816). Mr. Shinavar .testified
that petitioner had told him that he had “scrounged” the
wire and the cultivator “on the corner”—the Eatons’ house—
and that no one was home. (Tr. 808.) The cultivator had
indeed been previously lying around the rear of the Eaton
premises, broken and apparently scrapped (Tr. 865-866, 885-
886, 906-907), and petitioner had been in and around the
Eaton house on several occasions, as an acquaintance of
Eddie Eaton (Tr. 886-887, 1803-1806).
7b
Other circumstantial evidence connects petitioner to the
crime. On the afternoon and evening of the murder and the
next day petitioner was seen spending about $20, including
three $5 bills. (Tr. 931-940.) Petitioner apparently had no
money on the morning of the murder. (Tr. 1405.) On a
black shirt which petitioner might have been wearing at the
time the murder was committed (Tr. 747, 798, 882), the
examining criminalist found two red wool fibers, one-
sixteenth of an inch long (Tr. 1840), the same color as a
blanket on the bed where Mrs. Eaton was killed (Tr. 1913).
Although too small to identify with certainty, the fibers
could have come from that blanket or from any similarly
colored wool source. (Tr. 1914.) Finally, as noted above,
petitioner was acquainted with the Eatons and their children,
and thus might have been admitted to the house.
Neither footprints nor fingerprints of unidentified people
were found about the house. (Tr. 1980.) Vacuuming of the
entire house produced hair samples matching each of the
persons and animals living in the house, and sixteen distin
guishable unidentified samples, none however corresponding
with petitioner’s hair. (Tr. 1841.) Although the vaginal smear
was tested for the presence of sperm, it was not subjected
to an agglutination or absorption test (which is designed to
type seminal fluid as blood is typed).2b
Fellow inmates and police authorities reported a number
of statements by petitioner which appeared to constitute
admissions or to indicate his consciousness of guilt:
In early May, David Luker, a trustee inmate in the county
jail, said he asked petitioner “if he killed the woman and he
said yes. He killed her but he didn’t rape her.” (Tr. 1698.)
2bSee 12 AM JUR. PROOF OF FACTS (1962), §§ 13-20. Such tests
have been held admissible for the purpose of excluding a possible sus
pect in a rape case. People v. Kemp, 55 Cal. 2d 458, 465, 359 P.2d
913, 916, 11 Cal. Rptr. 361, 364 (1961).
8b
Bobby Williamson, a cell-mate, said that petitioner told
him, on August 19, 1965, that “if they didn’t get him out
of that county jail he was going to kill someone else.” (Tr.
1133.) Petitioner also told Williamson “that he knew who
done it, but he didn’t do it.” (Tr. 1128-A.)
In October, petitioner told Police Lieutenant Urias, “Well,
look, I’m a marked man. And now a story about some rings.
I’m doomed.” (Tr. 1721.)
The afternoon of the murder, driving home in the car of
his parole officer, Mr. Ansell, petitioner said, “It seems like
every time things start to go well for me something happens
to mess it up.” (Tr. 1383.) Ansell testified that the state
ment “at the time didn’t seem odd” (Tr, 1383), and it may
have had a general reference in the context of petitioner’s
first meeting with a new parole officer (Tr. 1371).
The evening following the murder, as petitioner was driv
ing back to Ventura from Pasadena at 11:3Q p.m., he said to
an acquaintance: “When I gets back to Ventura the police
will probably be waiting for me. . . . They will probably be
sittin’ on my doorsteps. . . . ” (Tr. 947.) Petitioner’s refer
ence, however, might have been to violation of his 10:00
p.m. parole curfew, since his mother had previously called
police when he stayed out very late (Tr. 2103, 2185-2186).
On April 29, three days after the murder, petitioner told
Inspector King during interrogation, “it was between eleven
and twelve o’clock when she was dead. 1 know goddamn
well I was at home then.” (Tr. 1438). The prosecutor
argued that no evidence in the case showed that petitioner
had then been told that Mrs. Eaton had died at that time.
(Tr. 2755.) The context of the interrogation indicates that
a newspaper story was being discussed, however, and
Inspector King’s immediately preceding statement was: “I
don’t care what the paper said. That paper don’t know
everything that I know.” (Tr. 1438.)
During the same interrogation, when Inspector King
informed petitioner that Mrs. Eaton’s rings had been found.
9b
petitioner said, “Oh, man, I’ve been had. Them damn rings.”
(Tr. 1431.) Petitioner told a great many conflicting stories
about where he had obtained the rings. He said that he had
them “for so goddamn long it’s been pitiful” (Tr. 1431), that
he “bought them from some cat . . . down on the corner,
yesterday” (Tr. 1436), and that when he “scrounged” the
cultivator at the Eaton house he saw them “laying on the
ground and I picked them up” (Tr. 1444). Petitioner told
fellow inmate Bobby Williamson that “he went up to her
house to borrow some tools , . . and knocked on the door
and that the door was open, and he saw a ring laying inside
the door . . . and then he saw another one . . . and picked
that up.” (Tr. 1129.)
On November 8, Deputy Sheriff Markley was asked by
petitioner when he would get his shoes back and he told
petitioner that they were being held as evidence. He testi
fied that petitioner said, ‘“Those weren’t even the shoes I
were wearing when I—’ And then he stopped himself-His
face went blank.” (Tr. 1823.)
B . The Dodd Killing
Three years before the Eaton murder, in April 1962, Mrs.
Kathleen Nell Dodd lived with her husband, Robert, and
her two small children (Tr. 57-58, 61) at the foot of South
Hurst Street, a north-south street, where it dead-ends into
the tracks of the Southern Pacific railroad to the south.
(Tr. 145.) Like the Eaton house, the Dodd house was not
far from petitioner’s home on Ocean Avenue, but in the
opposite direction-west along Ocean, then south along
Hurst. (Tr. 151-152.) The Dodd neighborhood was appar
ently not a good one: Mrs. Dodd had expressed apprehen
sion about her safety since transients frequented the area
near the tracks, and the dead end of Hurst was something
of a lovers’ lane. (Tr. 2001-2006, 2032.)
Robert Dodd left his wife at home at 6:30 p.m. on the
evening of April 3, 1962, and went to his usual evening col
lege classes (Tr. 62), and then to Oxnard on business and to
10b
a bar (Tr. 63). He frequently stayed out late studying at
the sheriff’s office where he worked as a deputy, or at the
library. (Tr. 104, 105.) Mrs. Dodd made it a practice of
locking her doors and not opening them before peeping out
to ascertain the identity of visitors, even in the instance of
friends who lived nearby and had called a few minutes earlier
to say that they were coming over. (Tr. 2000.)
At some point during the evening, after her children were
put to bed, Mrs. Dodd was watching television (Tr. 67) and
drinking tea when someone came to the house and entered
without forcing a lock, either upon admission by Mrs. Dodd,
or because, on this occasion, a door had been left unfastened.
(Tr. 111-112.) She spilled her tea (Tr. 68, 70), possibly
because she was surprised by an intruder or in an attempt
to escape from the house. She had once told a neighbor
that if she were attacked in the house she would run outside
to protect her children by leading the attacker away. (Tr.
2001.) The intruder probably took $60 from a drawer where
Mr. Dodd testified he put rent money that he had collected
(Tr. 80, 122, 2015); and he took a butcher knife from the
kitchen rack (Tr. 83).
Mrs. Dodd, who was five months pregnant (Tr. 127), either
went or was taken out through the front door to a spot on
the railroad enbankment several hundred yards west of her
house. (Tr. 153.) There was no struggle in the house (Tr.
67-68), and police later found no signs that Mrs. Dodd had
been dragged to the embankment (Tr. 139-155, 180-227). At
the railroad embankment she was raped (see Tr. 677), at a
spot where impressions of a body and her panties and glasses
were later found (Tr. 145-146).
At some time thereafter, Mrs. Dodd was able to put on
her capri pants (Tr. 29, 669), and to go east down the tracks
to the south side in the direction of some houses. One
resident, Claire McWilliams, was awakened by a scream at
about midnight, and ran outside with her dog to see Mrs.
Dodd staggering up a neighbor’s driveway, where she
immediately collapsed and died. Mrs. McWilliams noticed
her dog barking while facing east, and then she heard
twigs crackling in a northerly direction. (Tr . 26-33.) The
police later found signs of flattened grass, as though someone
had lain or crawled over it, in the area toward which the
dog was pointing. (Tr. 155.)
Mrs. Dodd died from several severe wounds suffered in a
savage knife attack. The principal wounds were in her neck,
one severing the artery that carries blood from the heart to
the brain. (Tr. 180-181.) In addition to three more major
neck wounds (Tr. 183-187), she was stabbed through the
back of the right arm and right chest wall into the lung
(Tr. 193-197), through the upper right abdomen into the
liver (Tr. 198), and deeply in the left shoulder (Tr. 201-202);
she was cut several times on the left hand; (Tr. 203-205);
and she had a number of abrasions and bruises (Tr. 189-191,
210-213).
Mr. Dodd returned home at 1:30 a.m. (Tr. 62), to find the
children still asleep, the television set on, (Tr. 67-68), and
the back door unlocked (Tr. 64-66). No one had witnessed
Mrs. Dodd’s murder; and so again, the evidence connecting
petitioner to the crime was circumstantial.
The knife taken from the Dodd kitchen, marked with
Mrs. Dodd’s blood, was found in some weeds between the
houses at the western end of Ocean Avenue and the railroad
tracks, at a point on a line between the murder scene south
of the tracks and petitioner’s home. (Tr. 144-145, 153.)
During the week before the murder, a brown car had been
seen parked at the dead-end of Hurst, near the Dodd resi
dence, from midnight until 5:00 a.m. (Tr. 2021). Petitioner
had bought a brown and tan Chevrolet the week before (Tr.
2432-2435, 2479-2481); but the neighbor who described the
suspicious vehicle said that it was a solid color (Tr. 2031).
A green corduroy coat which petitioner was seen wearing
on the evening of April 3 was never seen thereafter by his
friends. (Tr. 265, 573-574, 2190). On April 4 petitioner
had a scratch on his face which had not been seen the day
before. (Tr. 238-340, 505.)
12b
A crushed pack of Salem cigarettes and matches were
found at the murder scene. (Tr. 140.) Petitioner sometimes
smoked Salems, although he smoked a number of other
brands as well, and Mrs. Dodd usually smoked Salems. (Tr.
92, 761, 1322, 1491, 2673-2676.)
Three or four days after the murder, petitioner was seen
with money at a crap game. One witness said that petitioner
lost $78 or $80. (Tr. 334-335.) Another said he saw peti
tioner with $250 toward the end of the game. (Tr. 576.)
These two witnesses were also with petitioner on the
evening of the murder. They testified that they dropped him
off at home at 11:00 p.m. (Tr. 237), after he said at 10:45
that he had a date that night with a white woman (Tr. 499).
A number of petitioner’s friends testified that petitioner had
made various remarks concerning his interest in sexual rela
tions with white women. (Tr. 238, 349.)
One of petitioner’s two companions saw him the day after
the murder at police headquarters, where petitioner told him
that he was under suspicion of killing Mrs. Dodd. (Tr. 503.)
The next day, according to the witness, petitioner said, ‘“ I
did it,’and I said, ‘Well, what did you do?’ . . . he said, “ I
killed that woman.’ I said, ‘What woman?’ And he said, ‘I
killed the Dodd woman.’ . . . he said, ‘She was going to cut
me loose.’” (Tr. 505.)
Petitioner explained the scratch on his face to the same
witness by saying: “Nothin’ but that good lovin’.” (Tr. 506.)
However, petitioner’s other companion heard petitioner say
that he got the scratch when Policewoman Ida Spellman
slapped him,3b and then two or three days later that he had
scratched his face in the garage on a nail (Tr. 241). When
he confronted petitioner with this discrepancy, petitioner
said, “he didn’t want to talk about it.” (Tr. 242.) Two or
three days after the murder, when it was being discussed,
petitioner said, “He didn’t want to hear it.” (Tr. 242.)
3bShe testified that she had never slapped petitioner. (Tr. 607-608.)
13b
While in jails, reform schools, and correctional institutions
for much of the time between 1962 and 1965, petitioner
made a number of incriminating statements to fellow
inmates:
Gene Noreen was in Preston reform school with petitioner.
While he was reading a comic book, petitioner came over and
told him that petitioner had raped and killed a sheriffs
wife. (Tr. 427-428, 440.) Petitioner “came over and . . .
was just bragging about killing and [sic] old gal and raping
her.” (Tr. 428.) “ [H]e just said he cut her up and raped
her, . . . he said he come up to the door, knocked, and she
come to the door, she opened it a crack, and he pushed his
way in, and he was fighting with her, running around with
her, and she scratched him, and it made him mad, and he
tore some of her clothes off and chased her, and finally she
tripped or fell or something, and it made him mad, and he
cut her up.” (Tr. 432.)
Barney White was with petitioner in Juvenile Hall in July,
1962. He testified that petitioner “was talking about burg
laries and different things, and he said he was burglarizing
the house over in Ventura, and he went into this one house,
through the back door there by the kitchen, and this lady,
Mrs. Dodd, came into the kitchen and told him to get out
or-she asked him what he was doing . . . and he picked up
a knife there and . . . chased her outside and around the
house, through a field over by the railroad tracks and stabbed
and killed her and raped her.” (Tr. 456.)
Bennie Rochester, who was in jail with petitioner at the
same time, said that after they saw Deputy Dodd at the jail,
petitioner told Rochester that he had killed Dodd’s wife.
(Tr. 469.) Petitioner later told Rochester that this story was
untrue; that he was just kidding. (Tr. 470-471.)
Richard Carreiro was at Preston with petitioner in 1962
and at another reform school with him in 1963. He said that
petitioner told him “just that he got into an argument with
her and he had killed a white girl . . . he was in the house . . .
and slapped her around . . . she started running. He was
14b
chasing her through back ways, caught her in the yard and
stabbed her.” (Tr. 475-476.)
On the first day of the trial, petitioner also made the
following three remarks to the deputy who was guarding
him: When Mrs. McWilliams was testifying concerning her
discovery of Mrs. Dodd’s body, petitioner said, “She is say
ing things that only I know.” (Tr. 1826). When Mr. Dodd
was testifying to the amount of money that was in the
drawer at his home, petitioner told him, “He wouldn’t know
that unless someone told him.” (Tr. 1827). Finally, when
Mrs. McWilliams was testifying that her son followed her out
of the house with a gun, petitioner said, “They were out
there to kill me.” (Tr. 1827.)
1c
APPENDIX C
PUNISHMENTS AUTHORIZED BY LAW
AND USAGE, 1786-1800
This appendix sets out some of the punishments author
ized by law and commonly used in America at the time of
drafting and adoption of the Eighth Amendment. Part A
lists provisions of colonial, state and federal law authorizing
corporal punishments other than death for freemen. Part B
lists the same provisions for slaves. Part C describes the
customs of infliction of the punishments. Part D deals with
the penalty of banishment.
A . Penal Laws Applicable to Freemen
CRIME
Larceny
Receiving stolen
goods
Perjury
Act and Laws of
printed by Elisha
CRIME
Adultery
UNITED STATES
PUNISHMENT
Whipping, no more
than thirty-nine
stripes
Whipping, no more
than thirty-nine
stripes
The pillory, one hour
SOURCE
1 Stat. 112, 116 (Act of
April 30, 1790, ch. 9,
§16)
1 Stat. 112,116 (Act of
April 30, 1790, ch. 9,
§17)
1 Stat. 112,116 (Act of
April 30, 1790, ch.9,
§18)
CONNECTICUT
the State of Connecticut in America,
Babcock (Hartford, 1786) (1 vol.)
PUNISHMENT SOURCE
Whipping on bare p .8 (date of original
body; burning of
letter “A” in fore
head; wearing of
metal halter around
the neck for rest of
life
enactment is not given
for any of these laws
in force in 1786)
Burglary
(not aggravated)
Whipping, no more
than forty stripes
p. 18
Counterfeiting
(1st offense)
Whipping, no more
than twenty stripes
p. 24
Counterfeiting
(2nd offense)
Whipping, no more
than thirty stripes
(also imprisonment
for life)
p. 24
Defamation of
any Court
Banishment p. 38
Drunkenness The stocks, one hour
(if unable to pay
eight shilling fine)
p. 43
Fornication Whipping, no more
than ten stripes (if
unable to pay thirty-
three shilling fine)
P-87
Incest Whipping, no more
than forty stripes;
wearing of a capital
“I” on clothing for
ever
p. 136
Mansalughter Whipping; burning in
hand of letter “M”
p. 135
Perjury The pillory, one hour;
nailing of both ears
(if unable to pay twenty-
pound fine)
p. 191
Rioting Whipping, no more
than forty stripes
p. 205
Theft Whipping, no more
than ten stripes
p. 245
3c
DELAWARE
Laws of the State of Delaware, published by Authority,
printed by Samuel and John Adams (Newcastle, 1797) (2
vols.)
CRIME PUNISHMENT SOURCE
Murders and felons Buring in hand of
letter “M” or “T”
vol. 1, p. 72 (enacted
1719, ch.22a, §27)
Adultory or
fornication
Whipping, twenty-one
lashes
vol. 1, p. 105 (ch. 44,
§ 1) (date of original
enactment of these
laws in force in 1797)
Whitewomen bearing
mulatto child
The pillory, two
hours; whipping,
thirty-nine stripes
vol. 1, p. 108 (ch. 44,
§9)
Whiteman
fornicating with
Negro
Whipping, twenty-one
lashes
vol. 1, p. 109 (ch. 44,
§10)
Blasphemy The pillory, two
hours; branding in
forehead of letter
“B” ; whipping,
thirty-nine lashes
vol. 1, p. 174 (ch. 67a,
§5)
Drunkeness or
swearing
The stocks, no more
than three hours
vol. 1, p. 174 (ch. 67a,
§§ 2 & 4)
Free Negro dealing
with slave
Whipping, no more
than twenty-one lashes
vol. 1, p. 215 (ch. 77a,
§12)
Receiving stolen
goods
Whipping, twenty-one
lashes; branding in
forehead of letter “R”
Vol. 1, p.238 (ch. 90
§9)
Larcency
(1st offense)
Whipping, no more
than twenty-one lashes;
wearing of “T” on
clothing for six months
vol. 1, p. 296 (ch. 120a,
§1)
Larceny
(2nd offense)
Whipping, no more
than thirty-one lashes;
the pillory, two hours
vol. 1, p.297 (ch. 120,
§2)
4c
Horse or slave
stealing
The pillory, one hour;
whipping, thirty-nine
stripes; severing the
soft part of one ear.
vol. 2, p. 668 (enacted
1779,c h .4 5 ,§1)
Counterfeiting or
embezzling
The pillory, one hour;
whipping, thirty-nine
stripes; severing the
soft part of one ear.
vol. 2, p. 773 (enacted
Feb. 8 ,1 7 8 3 ,ch .96)
GEORGIA
A Digest of the Laws of the State of Georgia, by Robert
and George Watkins, printed by R. Aitken (Philadelphia,
1800) (1 vol.)
CRIME PUNISHMENT SOURCE
Selling goods
on Sunday
The stocks, two
hours (if unable to
pay ten shilling fine)
p. 81 (enacted March 4,
1762, Act. no. 88)
Winning money
by fraud or deceit
Corporal punishment p.95 (enacted Feb. 29,
1764, Act no. Ill)
Counterfeiting Three public
whippings
p. 181 (enacted Sept.
29,1773, Act no. 213)
Horse stealing The pillory, two hours
to four hours; three
public whippings of
thirty-nine lashes
each; branding in
shoulder of letter “R”
p. 184 (enacted Sept.
29,1773, Act no. 220)
Maiming The pillory; whipping,
no more than one
hundred stripes (if
unable to pay one
hundred pound fine)
p. 357 (enacted Feb. 10,
1787, Act n o .372)
Vagabond unable
to find work
Whipping, no more
than thirty-nine
lashes
p. 377 (enacted Feb. 1,
1788, Act no. 391)
5c
M A R Y L A N D
The Laws of Maryland, Revised and Collected, under the
Authority of the Legislature, by William Kilty, printed by
Frederick Green, Printer to the State (Annapolis, 1799) (2
VO Is.)
CRIME
Perjury
Thievery
Killing unmarked
swine
Blasphemy
(1st offense)
Blasphemy
(2nd offense)
Harboring escaped
slave
PUNISHMENT
The pillory, two
hours; nailing of
both ears (if unable
to pay 20 shilling
fine)
The pillory, whipping,
no more than forty
stripes
The pillory; whipping,
no more than forty
stripes
Boring through
the tongue
Branding in fore
head of letter “B”
Whipping, no more
than thirty-nine
stripes (if unable
to pay fine of up
to 600 pounds of
tobacco)
SOURCE
vol. 1, unpaginated
(enacted 1692, ch. 16,
§4)
vol. 1, unpaginated
(enacted June 3,1715,
ch. 26, § 2)
vol. 1, unpaginated
(enacted June 3,1715,
ch. 26, § 5)
vol. 1, unpaginated
(enacted Oct. 26,1723,
ch .16 § 1)
vol. 1, unpaginated
(enacted Oct. 26,1723,
ch. 16, i l )
vol. 1, unpaginated
(enacted May 1748, ch.
19, §3)
6c
MASSACHUSETTS
The Perpetual Laws of the Commonwealth of Massachusetts,
compiled, arranged and printed to the wishes of many
respectable law characters, and the approbation of the
Honorable Judges of the Supreme Judicial Court, printed
by Isaiah Thomas (Worcester, 1788) (1 vol.)
CRIME PUNISHMENT SOURCE
Conveying any tool
or instrument into a
prison (if it aids an
escape)
Whipping, no more
than forty stripes;
the pillory
p. 41 (enacted Feb. 21,
1785)
Frauds on the
Massachusetts Bank
The pillory, two
hours
p. 189 (enacted March
16,1784)
Trespass or vandalism
at night
Whipping, no more
than twenty stripes
p. 216 (enacted Nov.
23, 1785)
Selling unwholesome
provisions
The pillory p . 221 (enacted March
8,1785)
Counterfeiting The pillory, one hour;
severing of ear; whip
ping, no more than
forty stripes
p. 224 (enacted July 4,
1786)
Forgery The pillory; cropping
of one ear
p. 226 (enacted March
16,1785)
Violation of National
Bank Act
The pillory, up to p. 228 (enacted Nov. 1,
three times; severing 1785)
of one ear; whipping
no more than four
times, thirty nine stripes
each; branding in fore-
-head of letter “F”
Theft
(1st offense)
Whipping, no more
than thirty nine
stripes
p. 228 (enacted March
15,1785)
Theft
(2nd offense)
Whipping, branding
in right cheek of
letter “T”
pp. 229-230 (enacted
March 18, 1785)
7c
Breaking and Whipping; branding p. 230 (enacted March
entering (2nd
offense)
in both cheeks of
letter “B”
15, 1785)
Perjury The pillory, two
hours; whipping, no
more than thirty-nine
stripes
p. 234 (enacted March
9,1785)
Blasphemy The pillory;
whipping
p. 235 (enacted July 3,
1782)
Failure to disperse Whipping, thirty-nine
stripes
p. 244 (enacted Oct.
28,1786)
Adultery Whipping, no more
than thirty-nine
stripes
p. 244 (enacted Feb. 17,
1785)
Polygamy Whipping, no more
than thirty-nine
stripes
p. 245 (enacted Feb. 17,
1785)
Fornication Whipping, no more
than ten stripes (if
unable to pay thirty
shilling to five pound
fine)
p, 246 (enacted March
15, 1786
Dueling Whipping, no more
than thirty-nine
stripes
p. 248 (enacted June
30,1784
Manslaughter Branding in forehead
of letter “M”
p.249 (enacted Feb.
28,1785)
Daylight arson The pillory, three
times; whipping,
four times
p. 249 (enacted March
11,1785
Assault with
felonious intent
The pillory; whipping p . 250 (enacted March
9,1785)
Harboring felons The pillory p. 252 (enacted March
15,1785)
Felonious Assault The pillory, three
times; whipping, no
more than thirty-nine
stripes
p. 252-253 (enacted
March 15, 1785)
8c
Negro remaining in Whipping, no more p. 349 (enacted March
Massachusetts after than ten stripes 26, 1788)
being ordered to
leave
NEW HAMPSHIRE
Laws of New Hampshire, edited by Albert Stillman Batchel-
lor, published by the John B. Clarke Company (Manchester,
1904) (10 vols.)
CRIME PUNISHMENT SOURCE
Adultery Whipping, no more
than forty stripes;
wearing of two-inch
letter “A” on cloth
ing forever
vol. 1, p. 676 (enacted
June 14, 1701, ch. 6)
Swearing The stocks, two hours
(if unable to pay one
shilling fine)
vol. 1, p. 677 (enacted
June 14, 1701, ch. 7)
Drunkenness The stocks, two hours
(if unable to pay one
shilling fine)
vol. 1, p. 678 (enacted
June 14, 1701, ch.7)
Stealing Whipping, twenty
stripes
vol. 1, p. 678 (enacted
June 14,1701, ch. 7)
Fornication Whipping, ten
stripes
vol. 1, p. 678 (enacted
June 14,1701, ch. 7)
Incest Whipping, no more
than forty stripes;
wearing of two-inch
capital “I” on cloth
ing forever
vol. 2, p. 125 (enacted
May 15, 1714, ch. 5)
Receiving stolen
goods
Whipping, no more
than twenty stripes
(if unable to make
restitution)
vol. 2, p. 129 (enacted
May 15, 1714, ch. 9)
Disorderly persons
not working
Whipping; the stocks vol. 2, p. 269 (enacted
May 14,1718, ch. 15)
Assault on a woman Whipping, no more
than ten stripes
vol. 2, p. 281 (enacted
May 14, 1718, ch. 19)
9c
Blasphemy The pillory; whipping;
boring through the
tongue with a red-hot
iron (no more than
two of these to be
inflicted for one act)
vol. 2, p. 314 (enacted
May 14, 1718, ch. 38)
Swearing by
common sailor
The stocks, two hours;
whipping, ten to
twenty stripes (if
unable to pay four to
eight shilling fine)
vol. 3, p. 30 (enacted
June 18,1747, ch. 4)
Breaking street lamp
by Indian
Whipping, no more
than ten stripes (if
unable to pay ten
pound fine)
vol. 3, p. 73 (enacted
March 2, 1754, ch. 6)
Rioting Whipping, thirty
stripes
vol. 3, p. 78 (enacted
April 22, 1754, ch. 10)
Counterfeiting The pillory, one hour;
cropping of one ear;
whipping, no more
than twenty stripes
vol. 3, p. 613 (enacted
Jan. 28,1774, ch. 7)
NEW Y O R K
Laws of the State of New York, Comprising the Constitu
tion and the Acts of the Legislature, printed by Thomas
Greenleaf (New York, 1792) (2 vols.)
CRIME PUNISHMENT SOURCE
Petty larceny Corporal punishment,
including whipping,
no more than thirty-
nine lashes
vol. 1, p. 422, (enacted
March 24, 1787, Tenth
sess., ch. 65, § 1)
Perjury or suborna
tion of perjury
The pillory, one hour
(if unable to pay one
hundred pound fine)
vol. 2, p. 36 (enacted
Feb. 7,1788, Eleventh
sess., ch. 17, §§ 1-2)
Disorderly persons Correction by
whipping
vol. 2, p. 53 (enacted
Feb. 9,1788, Eleventh
session, ch. 31, § 3)
10c
Deceitful gaming
Swearing
Grave robbing
Corporal punishment
The stocks, two
hours (if unable
to pay three
shilling fine)
The pillory;
corporal punishment
vol. 2, p. 62 (enacted
Feb. 20,1788, Eleventh
sess., ch. 35, § 5)
vol. 2, p. 91 (enacted
Feb. 23, 1788, Eleventh
sess., ch. 42, § 6)
vol. 2, p. 219 (enacted
Jan. 6, 1789, Twelfth
sess., ch. 3, § 1)
NORTH CAROLINA
Laws of the State of North Carolina, published according to
an Act of Assembly, by James Iredell, now one of the
Associate Justices of the Supreme Court of the United
States, printed by Hodge & Wills, Printers to the State of
North Carolina (Edenton, 1791) (1 vol.)
CRIME PUNISHMENT SOURCE
Stealing cattle or hogs
(1st offense)
Stealing cattle or hogs
(2nd offense)
Free Negro, mullato
or Indian giving false
testimony
Suborning perjury
Perjury
Whipping, forty lashes
Whipping, forty lashes;
the pillory, two
hours; branding in
left hand of letter “T”
Nailing of one ear;
the pillory, one hour;
severing of ear;
repeated with other
ear; whipping thirty-
nine lashes
The pillory, one hour;
nailing of one ear
The pillory, one hour;
nailing of both ears;
severing of both ears
p. 73 (enacted 1741,
ch. 8, § 2)
p. 73 (enacted 1741,
ch. 8, § 2)
p. 94 (enacted 1741, ch.
24, §50)
p. 287 (enacted 1777,
ch. 5, § 1)
p. 288 (enacted 1777,
ch .5, § 11)
11c
Counterfeiting
Passing counterfeit
certificates
Hunting in woods
by fire light
Vagrancy (repeat
offender)
Horse stealing
The pillory, three p. 389 (enacted 1779,
hours; nailing of ch. 8, §2)
right ear; severing
of right ear; whipping,
thirty-nine lashes;
branding in right
cheek of letter “C”
(brand to be at
least 1” x %”)
The pillory, one hour; p. 390 (enacted 1779,
severing of one ear; ch. 8, § 3)
whipping, thirty-nine
lashes
Whipping, thirty-nine p. 507 (enacted 1784,
lashes ch. 33,11)
Whipping, thirty-nine p. 508 (enacted 1784
lashes ch .34 ,12)
The pillory, one p. 580 (enacted 1786,
hour; nailing of ch .7 ,§ l)
both ears; severing
of both ears; brand
ing in right cheek of
letter “H” ; branding
in left cheek of letter
“T”
PENNS YL VANIA
Laws of the Commonwealth of Pennsylvania, published
under the Authority of the Legislature by Alexander James
Dallas, Printed by Hall and Sellers (Philadelphia, 1797)
(4 vols.)
CRIME
Forgery
Adultery
(3rd offense)
Bigamy
PUNISHMENT
The pillory
Whipping, twenty-one
lashes; branding in
forehead of letter “A”
Whipping, thirty-nine
lashes
SOURCE
vol. 1, p. 5 (enacted
1700, ch .16)
vol.l, p .47 (enacted
1705, ch. 122, §1)
vol.l, p.49 (enacted
1705, ch .123)
12c
Woman convicted
of felony
Larceny
(1st offense)
Larceny
(2nd offense)
Larceny
(3rd offense)
Counterfeiting
Horse stealing
Burning in hand
with letter “T”
Whipping, twenty-one
stripes
Whipping, twenty-one
to forty stripes
Whipping, thirty-nine
to fifty stripes
The pillory, one hour;
nailing and severing of
both ears; whipping,
twenty-one lashes
The pillory, one hour;
whipping, thirty-nine
lashes
vol. 1, p. 141 (enacted
1718, ch. 247, §21)
vol. 1, p. 144 (enacted
1718, ch.247, §29)
vol. 1, p. 144 (enacted
1718, ch.247, §29)
vol. 1, p. 144 (enacted
1718, ch.247, §29)
vol. 1, p. 477 (enacted
1767,c h .567,§ 2)
vol. 1, p. 477 (enacted
1767,ch .567,§ 3)
Breaking into a
public building
at night
Altering the denomi
nation of bank notes
The pillory, one hour;
nailing and severing of
both ears; whipping,
twenty-one lashes
The pillory, one hour;
nailing and severing
of both ears; whipping,
twenty-one lashes
vol. 1, p. 622 (enacted
1772, ch. 663, § 2)
vol. 2, p. 104 (enacted
1783, ch. 66, § 15
RHODE ISLAND
The Public Laws of the State of Rhode Island and Providence
Plantations, published by Authority, printed by Carter and
Wilkinson (Providence, 1798) (1 vol.)
CRIME PUNISHMENT SOURCE
Counterfeiting
Falsification of
Court Records
The pillory; cropping
of both ears; brand
ing with letter “C”
The pillory; cropping
of both ears; brand
ing
p. 586 (§ 9) (date of
original enactment is
not given for any of
these laws in force in
1798)
p. 588 (§ 10)
13c
Perjury The pillory; cropping p. 588 (§11)
of both ears; brand
ing
Horsestealing Whipping, no more p. 590 (§ 18)
than ten stripes
Theft Whipping, no more p. 593 (§ 25)
than twenty stripes
(if unable to pay
twenty dollar fine)
SOUTH CAROLINA
The Public Laws of the State of South Carolina, by the
Honorable John Faucheraud Grimke, Esq., printed by R.
Aitken & Son (Philadelphia, 1970) (1 vol.)
CRIME PUNISHMENT SOURCE
Bastardy
(1st offense)
Whipping, no more
than thirty-one
stripes (if unable to
pay five to ten
shilling fine)
p. 5 (enacted Sept. 17,
1703, Act no. 213)
Bastardy
(2nd offense)
Whppings, no more
than thirty-nine
stripes (if unable
to pay five to ten
shilling fine)
p. 5 (enacted Sept. 17,
1703, Act no. 213)
Bastardy
(3rd offense)
Tying to tail of
cart and whipping
through streets
p. 5 (enacted Sept. 17,
1703, Act 110.213)
Receiving stolen
goods
The pillory; whipping p.274 (enacted Aug.
23, 1769, Act no. 1096)
Defacing of coins The pillory, two days,
one hour each day
p. 398 (enacted Oct. 12,
1785, Act no. 1408)
Stealing livestock
(1st offense)
Whipping, no more
than thirty-nine
lashes
p.486 (enacted March
13,1789,Act no. 1577)
Stealing livestock
(2nd offense)
Whipping, no more
than fifty lashes
p.486 (enacted March
13,1789, Act no. 1577)
14c
VERMONT
Statutes of the State of Vermont, Revised and established
by Authority, in the year 1787, including those passed since
that period until . . . January 1791, printed by Anthony
Haswell (Bennington, 1791) (1 vol.)
CRIME PUNISHMENT SOURCE
Adultery Whipping, no more
than thirty-nine
stripes; wearing of a
two-inch capital “A”
on clothing forever
p. 17 (enacted March 8,
1787)
Failure to wear Whipping, no more p. 17 (enacted March 8,
letter “A” than ten stripes 1787)
Counterfeiting Severing of right ear;
branding of capital
“C” with hot iron
p. 37 (enacted March 8,
1787)
Defamation Banishment p.48 (enacted March
9,1787)
Swearing, cursing or The stocks, one to pp. 50-51 (enacted Feb.
drunkenness three hours (if unable
to pay six shilling
fine)
28,1787)
Blasphemy Whipping, no more
than forty stripes;
the pillory, one
hour
p.75 (enacted March
8,1787)
Manslaughter Whipping, no more
than forty stripes;
branding in hand
of letter “M”
p. 75 (enacted March
8,1787)
Theft, when not Whipping, no more p. 76 (enacted March
attended by force
or violence
than forty stripes 8,1787)
Incest Whipping, no more p. 104 (enacted Feb.
than thirty-nine 27, 1787)
stripes; wearing of
two inch capital letter
“I” on clothing
forever
15c
Perjury The pillory, two
hours; nailing and
severing of both ears
(if unable to pay 30
pound fine)
p. 124 (enacted March
8, 1787)
Forgery The pillory, three
days, two hours each
day
p. 125 (enacted March
8,1787)
Theft Whipping, no more
more than thirty-nine
lashes
p. 181 (enacted Feb.
27, 1787
Horse stealing Branding in forehead
of letters “H.T.” ;
severing of both
ears
p. 282 (enacted Oct.
29,1791)
Rape Whipping, no more
than one-hundred
stripes; wearing of
two inch capital letter
p. 294 (enacted Nov. 1,
1791)
“R” on clothing
forever
VIRGINIA
A Collection of All Such Acts of the General Assembly of
Virginia of a public and permanent nature, as are now in
force, printed by Augustine Davis, Printer for the Common
w ealth (R ichm ond,
CRIME
Selling unwholesome
meat or drink (2nd
offense)
Fraud
Hog-stealing
1794) (1 vol.)
PUNISHMENT
The pillory
The pillory
The pillory, two
hours; nailing of
both ears
SOURCE
p. 34 (enacted Nov. 27,
1786,ch .23)
p. 50 (enacted Nov.
18, 1789, ch. 45, § 2)
p. 186 (enacted Dec. 8,
1792, ch. 98, §2)
16c
Swearing, cursing
or drunkenness
Buying from or
selling to slave
Buying from or
selling to white
servant without
leave
B. Penal Laws Applicable To Slaves
CONNECTICUT
Acts and Laws of the State of Connecticut in America,
printed by Elisha Babcock (Hartford, 1786) (1 vol.)
CRIME PUNISHMENT SOURCE
Defamation Whipping, no more
than forty stripes
p. 38 (date of original
enactment is not given
for any of these laws
in force in 1786
Breaking the peace Whipping, no more
than thirty stripes
p. 188
Stealing Whipping, no more
than thirty stripes
p. 233
Going abroad after
9 o'clock
Whipping, no more
than ten stripes
p. 234
DELAWARE
Laws o f the State
printed by Samuel
vols.)
o f Delaware, published by A uthority ,
and John Adams (Newcastle, 1797) (2
CRIME PUNISHMENT SOURCE
Attempted rape of
white woman
The pillory, four
hours; nailing and sev
ering of both ears
vol. 1, p. 104 (ch. 43,
§ 5) (Date of original
enactment is not given
for some of these laws
in force in 1797)
Whipping, ten lashes
(if unable to pay
eighty-three cent
fine)
Whipping, thirty-
nine lashes
Whipping, thirty-
nine lashes
p. 286 (enacted Dec.
26, 1792, ch, 138, § 1)
p. 198 (enacted Dec.
17, 1792, ch. 103, §16)
p. 259 (enacted Dec.
26,1792, ch .132, §10)
17c
Negro fathering child
by white woman
The pillory, two
hours; nailing and
severing of one ear;
whipping, thirty nine
lashes
vol. 1, p. 109 (ch. 44,
§9)
Killing deer out of
season
Whipping, no more
than twenty-one
stripes
vol. 1, p. 191..192 (ch.
74, §3)
Building fire in
woods out of
Whipping, no more
thirty-one stripes
vol. 1, p. 213 (ch.
80, §1)
season
Assaulting a white
person
The pillory, two
hours; whipping
no more than
thirty-nine lashes
vol. 1, p. 307 (ch. 126,
§6)
Assaulting another
slave
Whipping, no more
than thirty-nine
lashes
vol. 1, p. 436 (enacted
Oct. 31, 1767, ch. 188
§3)
GEORGIA
A Digest of the Laws of the State of Georgia, by Robert and
George Watkins, printed by R. Aitken, (Philadelphia, 1800)
(1 vol.)
CRIME
Wandering about
without white person
Attending illegal slave
meeting
Administering medi
cine without white
direction
More than seven male
slaves traveling with
out white person
PUNISHMENT
Whipping, no more
than twenty lashes
Whipping, no more
than twenty-five
lashes
Whipping, no more
than fifty lashes
Whipping, no more
than twenty lashes
SOURCE
165 (enacted May 10,
1770, Act no. 204)
p. 166 (enacted May 10,
1770, Act no .204)
p. 169 (enacted May 10,
1770, Act no. 204)
p. 177 (enacted May 10,
1770, Act no .204)
18c
MARYLAND
The Laws of Maryland, Revised and Collected, under the
Authority of the Legislature, by William Kilty, printed by
Printer to the State (Annapolis, 1799)Frederick Green,
(2 vols.)
CRIME
Stealing
Striking of white
person
Unlawful assembly
Giving of false
testimony
Rambling or running
away
PUNISHMENT
Whipping, no more
than forty stripes
Cropping of one ear
Whipping, no more
Whipping, thirty-nine
stripes; cropping of
one ear; the next day
the other ear is
cropped and thirty-
nine more stripes
given
Whipping; cropping
one ear or branding in
cheek with letter “R”
SOURCE
vol. 1, unpaginated
(enacted 1717, ch. 13,
§6)
vol. 1, unpaginated
(enacted 1723, ch. 15,
§ 4)
vol. 1, unpaginated
§ 2 )
vol. 1, unpaginated
(enacted June 8, 1751,
ch .14,i 5)
of vol. 1, unpaginated
(enacted June 8, 1751,
ch .14, § 8)
than thirty-nine stripes (enacted 1723, ch. 15,
NEW HAMPSHIRE
Laws of New Hampshire, edited by Albert Stillman Batchel-
lor, published by The John B. Clarke Company (Manchester,
1904) (10 vols.)
CRIME
Cursing or swearing
Breaking street lamps
(1st offense)
PUNISHMENT
Whipping, ten to
twenty stripes (if
unable to pay four
to eight shilling fine)
Whipping, no more
than ten stripes
SOURCE
vol. 3, p. 30 (enacted
June 18, 1747, ch. 4)
vol. 3, p. 73 (enacted
March 2, 1754, ch. 6)
19c
Breaking street lamps Whipping, no more vol. 3, p. 73 (enacted
(2nd offense) than twenty stripes March 2, 1754, ch. 6)
NEW JERSEY
Laws of the State of New Jersey, Revised and published
under Authority of the Legislature, by William Paterson,
printed by Mathias Day (Newark, 1800) (1 vol.)
CRIME PUNISHMENT SOUREC
Setting deer trap Whipping, thirty lashes p. 20 (enacted Dec. 21,
(if unable to pay five 1771, S 8)
pound fine)
NEW YORK
Laws of the State of New York, Comprising the Constitu
tion and the Acts of the Legislature, printed by Thomas
Greenleaf (New York, 1792) (2 vols.)
CRIME
Discharge of gun or
fireworks to the
southward of fresh
PUNISHMENT
Whipping, no more
than thirty-nine
stripes
SOURCE
vol. 1, p. 272 (enacted
April 22,1786, Ninth
sess., ch. 43, § 2)
water
NORTH CAROLINA
Laws of the State of North Carolina, published according
to an Act of Assembly, by James Iredell, now one of the
Associate Justices of the Supreme Court of the United
States, printed by Hodge & Wills, Printers to the State of.
North Carolina (Edenton, 1791) (1 vol.)
CRIME
Killing deer out
of season
Stealing cattle or
hogs
Stealing boat or
canoe
PUNISHMENT
Whipping, thirty
lashes
Severing of both
ears; whipping
Whipping, no more
than thirty-nine
lashes
SOURCE
p. 58 (enacted 3738,
c h .10,§ 3)
p. 74 (enacted 1741,
ch.8, §10)
p. 77 (enacted 1741, ch
13, §4)
20c
Possession of
firearm
Misdemeanor
Hunting in woods
by firelight
Selling of any article
without permission
Whipping, twenty
lashes
Whipping, no more
than forty lashes
Whipping, thirty-nine
lashes
Whipping, no more
than thirty-nine lashes
P E N N S Y L VANIA
p. 93 (enacted 1741, ch
24, §40)
p. 462 (enacted 1783,
ch. 14, §2)
p. 507 (enacted 1784,
ch. 33, §3)
p. 643 (enacted 1788,
ch. 7, § 2 )
Laws of the Commonwealth of Pennsylvania, published
under the Authority of the Legislature by Alexander James
Dallas, printed by Hall & Sellers (Philadelphia, 1797) (4
vols.)
CRIME PUNISHMENT SOURCE
Killing deer out of
season
Whipping, no more
than thirty-one lashes
(if unable to pay
forty shilling fine)
vol. 1, p. 393 (enacted
1760, ch. 467, § 9)
SOUTH CAROLINA
The Public Laws of the State of South Carolina, by the Hon-
able John Faucheraud Grimke, Esq., printed by R.
Aitken & Son (Philadelphia, 1790) (1 vol.)
CRIME PUNISHMENT SOURCE
Night hunting of
deer with fire
Stealing of boats or
canoes (1st offense)
Away from home
without ticket
Buying or selling
goods
More than seven
male slaves traveling
Whipping, no more
than thirty-nine
lashes ,
Whipping, thirty-nine
lashes
Whipping, no more
than twnety lashes
Whipping, no more
than twenty lashes
Whipping, no more
than twenty lashes
p.497 (enacted March
13, 1789, Act no. 1586)
p. 2 (enacted March 16,
1695-96, Act no. 126)
p. 164 (enacted May 10,
1740, Act no. 695)
p. 171 (enacted May 10,
1740, Act no. 695)
p. 174 (enacted May 10,
1740, Act n o .695)
21c
Marking or branding Whipping, no more p.486 (enacted March
livestock than fifty lashes 13, 1789, Act no. 1577)
VIRGINIA
A Collection of All Such Acts of the General Assembly of
Virginia of a public and permanent nature, as are now in
force, printed by Augustine Davis, Printer for the Common
wealth (Richmond, 1794) (1 vol.)
CRIME PUNISHMENT
Hog-stealing
(1st offense)
Hog-stealing
(2nd offense)
Possession of
firearms
Attending unlawful
meeting
Lifting hand .
against white person
Giving of false
testimony
Whipping, thirty-nine
lashes
The pillory, two
hours; nailing of
both ears
Whipping, thirty-nine
lashes
Whipping, twenty
lashes
Whipping, no more
than thirty lashes
The pillory, one
hour; nailing of
one ear; ear severed;
repeat with other
ear; whipping, thirty-
nine lashes
SOURCE
p. 187 (enacted Dec. 8,
1792, ch. 98, § 4)
p. 187 (enacted Dec. 8,
1792,ch .98,§ 4)
p. 196 (enacted Dec. 17,
1792, ch. 103, §8)
p. 197 (enacted Dec.17,
1792,c h .103,§14)
p. 198 (enacted Dec.
17.1792, ch. 103, § 14)
p. 200 (enacted Dec.
17.1792, ch. 103, 817)
C. Infliction of Corporal Punishments at the End
of the Eighteenth Century
Other bodily inflictions than those prescribed by the
statutes cited above were sometimes used in the late eigh
teenth century.lc However, as the statutes reflect, the most
lcThe “wooden horse,” for example, was a straight, thin, horizontal
pole which the culprit was set astride, sometimes with his legs weighted.
Earle notes its inclusion in a sentence meted out at New Haven in
1787 (EARLE, CURIOUS PUNISHMENTS OF BYGONE DAYS
(Reprint, 1969) [hereafter cited as EARLE], 131.
22c
common of the corporal punishments (other than death)
were whipping, the pillory, and minor mutilations, such as
branding and the cropping or cutting off of ears.
Whipping was the great commonplace of penalties at the
time of drafting and adoption of the Eighth Amendment:
witness this accounting of the sentences imposed at a session
of the Supreme Judicial Court of Massachusetts in Salem in
1786.
“At the Supreme Judicial Court, holden in this
town, for the county of Essex, which adjourned on
Thursday last, several persons, criminally indicted,
were convicted and severally sentenced. Isaac
Coombs, an Indian, was found guilty, at last June
term, at Ipswich, of murdering his wife; at which
time a motion was made to the Court, in arrest of
judgment, on which the Court suspended giving judg
ment thereon until this term; but the said motion
being overruled, the Court gave judgment of death
against him.
“Besides the sentence of the Indian, as above,
Thomas Kendry, for breaking into the store of Israel
Bartlet, and stealing sundry goods, was sentenced, on
his confession, to pay said Bartlet -L33-9-6, to sit on
the gallows one hour with a rope about his neck, to
be whipped 30 stripes, and confined to hard labour
on Castle-island two years.
“Thomas Atwood & John Ransum, for breaking
open the store of Knot Pedrick, and stealing dry fish,
were each sentenced to pay said Pedrick -L 40-5-0, to
sit one hour on thd gallows, be whipped 36 stripes,
and confined to labour on Castle-island 3 years.
‘“ Last Tuesday one James Brown, a transient person, was
brought to the bar of the County Court on a complaint for
horsestealing-being put to plead-plead guilty, and on Thurs
day received the sentence of the Court, that he shall be con
fined to the Goal in this County 8 weeks, to be whipped the
first Day 15 stripes on the naked Body, and set an hour on
the wooden horse, and on the first Monday each following
Month be whipped ten stripes and set one hour each time on
the wooden horse.’”
23c
“John Smith, for stealing goods from Abner Per-
kinds, was sentenced to pay said Perkins -L 18-4-0,
and be whipped 25 stripes.
“The same John Smith, for breaking open a sloop
and stealing goods of John Brooks, was sentenced
to pay said Brooks -L16-8-0, to sit one hour on the
gallows, be whipped 30 stripes, and confined 18
months on Castle-island.
“John Scudder, for stealing from Eli Gale, was
sentenced to pay said Gale T5-2-0, or if unable to
pay, to be disposed of by him, in service, to any
person, for 2 months.20
“Joseph Ballard, for stealing a horse from Thomas
Dodge, was sentenced to pay -L30, be whipped 20
stripes, pay costs, &c. and, if unable to pay, that
said Dodge may dispose of him in service to any
person for two years.
“Calvin Newhall was indicted for assaulting
Deborah Sarker, a negro woman, with intent to
commit a rape upon her. He pleaded not guilty; and
the jury found him guilty of the assault, but whether
with an intent to ravish they could not agree; where
upon the Attorney General would no further prose
cute for said intent to ravish; and the Court ordered
that said Calvin should be whipped 10 stripes, and
recognize in 4=60, with sufficient surety in a like
2c “It seems to have been quite common at one time to sell
prisoners. At the Supreme Judicial Court in Salen, in
November 1787, ‘Elizabeth Leathe of Lynn, for harbouring
thieves and receiving stolen goods, was convicted and
sentenced to be whipped twenty stripes and to be sold for
six months.’ Also at a session of the same Court, held in
Boston in September, 1791, six persons were convicted of
theft and sentenced to be whipped and pay costs, or to be
sold for periods of from six months to four years.”
BROOKS, SOME STRANGE AND CURIOUS PUNISHMENTS
(1886) [hereafter cited as BROOKS], 21-22.
24c
sum, to be of good behaviour for 3 months, and pay
costs.”3c
The atmosphere of the whipping post is conveyed by
these Boston scenes:
“There was a whipping-post on Queen Street in
Coston, another on the Common, another on State
Street, and they were constantly in use in Boston in
Revolutionary times. Samuel Breck wrote of the
year 1771:
‘“The large whipping-post painted red stood con
spicuously and prominently in the most public street
in the town. It was placed in State Street directly
under the windows of a great writing school which
I frequented, and from there the scholars were
indulged in the spectacle of all kinds of punishment
suited to harden their hearts and brutalize their feel
ings. Here women were taken in a huge cage in
which they were dragged on wheels from prison, and
tied to the post with bare backs on which thirty or
forty lashes were bestowed among the screams of the
culprit and the uproar of the mob.’”
3cBROOKS 47-49. And see the following roster of sentences
handed down at a session in Boston in 1784, id., at 61-62:
“At the Supreme Court held here on Thursday last,
Direck Grout was tried for Burglary, and found guilty:
sentence has not yet been passed upon him.
“The following prisoners were also tried last week for
various thefts, found guilty, and received sentence, viz.
“Cornelius Arie, to^be whipt 25 stripes, and set one hour on
the gallows.
“Thomas Joice, to be whipt 25 stripes, and branced.
“William Scott, to be whipt 25 stripes, and set one hour
on the gallows.
“John Goodbread, and Edward Cooper, 15 stripes each.
“James Campbell, to be whipt 30 stripes, and set one hour
on the gallows.
“Michael Tool, to be whipt 20 stripes.
“Three notorious villains yet remain to be tried for
burglary, and several others for theft.”
25c
“The diary of a Boston school-girl of twelve, little
Anna Green Winslow, written the same year as Mr.
Breck’s account, gives a detailed account of the
career of one Bet Smith, through workhouse and
goal to whipping-post, and thence to be ‘set on the
gallows where she behaved with great impudence.’
“Criminals were sentenced in lots. On September
9, 1787, in one Boston court one burglar was
sentenced to be hanged, five thieves to be whipped,
two greater thieves to be set on the gallows, and one
counterfeiter set on the pillory.
“Cowper’s account of the tender-hearted beadle
is supplemented by a similiar performance in Boston
as shown in a Boston paper of August 11, 1789.
Eleven culprits were to receive in one day the ‘disci
pline of the post.’ Another criminal was obtained
by the Sheriff to inflict the punishment, but he per
sisted in being ‘tender of strokes,’ though ordered
by the Sheriff to lay on. At last the Sheriff seized
the whip and lashed the whipper, then turned to the
row of ninepins and delivered the lashes. ‘The citi
zens who were assembled complimented the Sheriff
with three cheers for the manly determined manner
in which he executed his duty.’”4c
The pillory “was an upright board, hinged or divisible in
twain, with a hole in which the head was set fast, and
usually with two openings also for the hands. Often the ears
were nailed to the wood on either side of the head-hole.”5c
The following description of its place among the punish
ments of Newport indicates the nature of the penalty:
“ ‘The public modes of punishment established by
law were four, viz.: executions by hanging, whipping
of men at the cart-tail, whipping of women in the
jail-yard, and the elevation of counterfeiters and the
like to a movable pillory, which turned on its base
4cEARLE 81-83.
ScEARLE 4546.
26c
so as to front north, south, east and west in succes
sion, remaining at each point a quarter of an hour.
During this execution of the majesty of the law the
neck of the culprit was bent to a most uncomfortable
curve, presenting a facial mark for those salutations
of stale eggs which seemed to have been preserved
for the occasion. The place selected for the inflic
tion of this punishment was in front of the State
House.” ’6c
Penalties of mutilation apparently did not persist long
after the turn of the nineteenth century in New England,7c
but their use continued for several decades more in some
areas of the country1.80
D. Banishment
Banishment is found infrequently upon the colonial
statute books,9c but was used in practice in the Colonies and
later in the States. Following English tradition, banishment
was not principally a statutory matter in America.100
6cEARLE 51-52.
7cOne Hawkins had his ears cropped for forgery in Salem in 1801.
EARLE 54; BROOKS 24.
8cThompson, Reforms in the Penal System o f Tennessee, 1 TEN
NESSEE HISTORICAL Q. 291, 294, 299 (1942).
90 See the Connecticut and Vermont provisions noted at pp. lc, 14c
supra. Acts and Laws o f the State o f Connecticut in America, printed
by Elisha Babcock (Hartford, 1786) (1 vol.) p. 38; Statutes o f the State
o f Vermont, Revised and Established by Authority, in the year 1787,
including those passed since that period until. . . January 1791, printed
by Anthony Hasweil (Bennington, 1791) (1 vol.) p. 48.
10cIn England, banishment can be traced to the Anglo-Saxon
institutions of sanctuary and abjuration. See 3 HOLDSWORTH, HIS
TORY OF THE ENGLISH LAW (3d ed. 1903), 303-307. From the
thirteenth century one who committed a crime could flee for refuge
to a sanctuary. The coroner was then summoned to receive the
criminal’s confession. Upon taking an oath to adjure the kingdom,
the criminal was allowed to proceed in safety to a port assigned to
27c
Throughout the period prior to the middle of the last
century, banishment was commonly imposed as a condition
of executive pardons,llc and, less frequently, by specific
him. A large number of England’s criminals voluntarily banished
themselves in this manner rather than answer to the civil authorities
for their crimes. See WHITE, LEGAL ANTIQUITIES (1913), 250.
The procedure of sanctuary and abjuration was limited in the sixteenth
century and finally abolished in 1623-1624. 3 HQLDSWORTH, op. cit.
supra, at 306-307.
During the reign of Charles II, banishment began to be imposed
through the device of conditional pardon. The King’s pardoning
power was extremely broad, and his right to impose conditions was
unquestioned. See 6 id., at 217-220. The original sentence could be
revived upon a violation of the stipulations of its remission. The
theory underlying a conditional pardon is similar to that of sanctuary
and abjuration, and it would appear that the King’s power to grant
such pardons was a continuous development from the institutions of
sanctuary and abjuration. Note, Banishment-A Medieval Tactic in
Modern Criminal Law, 5 UTAH L. REV. 365, 368 (1957).
Before the abolition of sanctuary and abjuration, England had
begun to transport criminals to penal colonies. Exile, or transporta
tion, as the punishment was known, was first introduced by statute
at the end of the seventeenth century. 2 HAWKINS, PLEAS OF THE
CROWN (8th ed. 1824), 508. During the period of American coloni
zation, this practice was adopted on a large scale. “After the estab
lishment of English colonies in America,. . . it [transportation] became
in this country . . .the most common sentence of criminals.” Ibid.
Another form of statutory banishment had English roots. Begin
ning in the fourteenth century, Parliament passed bills of attainder,
punishing persons by exile or death. See Clarendon’s Case, 6 Howell
St. Trials (Eng.) 291 (1667). CHAFEE, THREE HUMAN RIGHTS IN
THE CONSTITUTION OF 1787 (1956), 117.
Thus banishment was a complex institution in English law, imposed
sometimes under general statutes, sometimes by particular bills, and
sometimes in the exercise of the royal prerogative without statutory
authorization.
UcSee People v. Potter, 1 Parker Crim. Rep. 47, 56-57 (N.Y.,
Sup. Ct. 1846); State v. Fuller, 1 McCord 178 (S.C. 1821); People v.
Smith, 1 Bailey 283 (S.C. 1829). The Potter opinion specifically traces
the governor’s power to pardon with banishment to the English tra
dition of sanctuary and abjuration, (1 Parker Crim. Rep., at 54), and
sustains it by reference to settled usage. “ [T]he governor may grant
a pardon on a condition which does not subject the prisoner to an
28c
legislative acts.12c These practices are found from the birth
of the colonies13c through the constitutional period.140
unusual or cruel punishment. Banishment is neither. It is sanctioned
by authority, and has been inflicted, in this form, from the foundation
of our government (Smith s Case, 1 Bailey, supra; James’s Case, 2
Caines, 57; Pease’s Case, in the Court o f Errors, 3 John Ca. 333; 2
Bailey, 516; 1 McCord, 178).” Id. at 56-57
12cIn this Court, Cooper v. Telfair, 4 Dali. 314 (1800), upheld a
banishment by the Georgia Legislature. The legislature had passed an
act in 1782 banishing the plaintiff in error from the State and confis
cating his property. Justice Patterson’s opinion states that “the power
of confiscation and banishment . . . is a power that grows out of the
social compact, which must reside somewhere, and which is so inherent
in the legislature that it cannot be divested or transferred, without an
express provision of the constitution.” Id. at 316. Justice Cushing
adds: “The right to confiscate and banish, in the case of an offending
citizen, must belong to every government.” Ibid.
130 Banishment was employed as a punishment in America as early
as 1636, when Anne Hutchinson was ". . .banished from out of our
jurisdiction as being a woman not fit for our society.” DOUGLAS,
AN ALMANAC OF LIBERTY (1954), 135.
14cSee note 11c supra.
Id
APPENDIX D
SYNOPSIS OF THE CONSTITUTIONAL HISTORY
OF THE CRUEL AND UNUSUAL PUNISHMENT
CLAUSE OF THE EIGHTH AMENDMENT.
A. English Antecedents
The early English development of prohibitions against
excessive punishment, prior to and following Magna Carta,ld
are canvassed in a recent article and need not be rehashed
here. Granucci, "Nor Cruel and Unusual Punishments
Inf l i c t edThe Original Meaning, 57 CALIF. L. REV. 839,
844-847 (1969) [hereafter cited as Granucci].
The first use. of the phrase “cruel and unusual punish
ments” in English law appears in the Declaration of Rights
and the Bill of Rights of 1689.2d They recite, among the
illegal acts committed by James II, that “excessive fines
have been imposed; and illegal and cruel punishments
inflicted,” and “for vindicating and asserting their ancient
rights and liberties, declare . . . That excessive bail ought
not to be required nor excessive fines imposed nor cruel
and unusual punishment inflicted.” 3d
ldMAGNA CARTA, chs. 20-22 (1215).
2dThe Declaration was proposed by a “convention” of the estates
of the realm which met following the flight of James II. It was pre
sented to William and Mary when they were tendered the crown and
the new King and Queen assented to it. The bill was enacted shortly
thereafter by the Convention Parliament and is identical to the
Declaration but for the inclusion of some additional matter not rele
vant here. MAITLAND, THE CONSTITUTIONAL HISTORY OF
ENGLAND (1913), 283-284; 3 HALLAM, CONSTITUTIONAL HIS
TORY OF ENGLAND (Harper & Brothers ed. 1859), 547-549.
3dl William and Mary, sess. 2, ch.2, preamble, clause 10, printed
in ADAMS & STEPHENS, SELECT DOCUMENTS OF ENGLISH
CONSTITUTIONAL HISTORY (1926), 462-465.
2d
B. Developments in America
1. Pre-Revolutionary Times
A statute of the Massachusetts Colony predating the
Declaration and Bill of Rights contains a prohibition on the
use of cruel modes of punishment. Drafted by the Rev.
Nathaniel Ward, a Puritan attorney and minister, the “Body
of Liberties” was enacted in 1641 by the General Court.4d
Clause 46 of the document reads: “For bodilie punishments
we allow amongst us none that are inhumane Barbarous or
cruel.” 5d
2. State Constitutions 1776-1790
Beginning in Virginia in early 1776, and continuing in
rapid succession after the Declaration of Independence,
constitutions were promulgated in all of the former thirteen
colonies. Nine of these included prohibitions against cruel
and unusual punishments, in general modeled closely after
the formulation in the English Bill of Rights, but in some
cases with additions.
George Mason’s draft of the Constitution of Virginia with
its Declaration of Rights was adopted, with minor changes,
on June 12, 1776. Section 9 of the Declaration provides:
“That excessive bail ought not to be required nor excessive
fines imposed, nor cruel and unusual punishments inflicted,”6d
a verbatim copy of the prohibition in the English Bill of
Rights. In short order, like provisions were incorporated in
4ri
WHITMORE, COLONIAL LAWS OF MASSACHUSETTS 1660-
1672 (1889), 8. It has been suggested that Ward’s proposal in this
regard was derived from the earlier work of Sir Robert Beale in
England. Granucci 848-851.
sdPERRY, SOURCES OF OUR LIBERTIES (1959), 153.
6dVirginia Constitution of 1776, Declaration of Rights, §9, 7
THORPE, FEDERAL AND STATE CONSTITUTIONS (1909), 3813
[hereafter cited as THORPE].
3d
the new constitution of Delaware,7d North Carolina,8d Mary
land.911 Pennsylvania,10*1 South Carolina,11*1 and Massachu
setts.12*1 The South Carolina Constitution of 1778 included
a directive to the legislature to reform the penal code so
that punishments may be made “less sanguinary, and in
general more proportionate to the crime.” 13*1 The New
Hampshire Constitution, not adopted until 1784, also con
tained in addition to the then standard cruel and unusual
punishment clause14*1 a lengthy statement on the import
ance of proportioning penalties and enacting humane penal
laws.15*1 Vermont, which did not include a “cruel and
7dDelaware Declaration of Rights of 1776, § 16, 1 DEL. CODE
ANN. (1953), 83.
8dNorth Carolina Constitution of 1776, § 10, 5 THORPE 2788.
9dMaryland Constitution of 1776, § 22, 3 THORPE 1688; see also id.
§ 14: “That sanguinary laws ought to be avoided, as far as is consistent
with the safety of the state: and no law, to inflict cruel and unusual
pains and penalties, ought to be made in any case, or at any time
hereafter.”
10dPennsylvania Constitution of 1790, Art. 9, § 13, 5 THORPE
3101: “ .. . nor cruel punishments inflicted.”
lldSouth Carolina Constitution of 1790, Art. 9, §4, 6 THORPE
3264: “ . . . nor cruel punishments inflicted.”
12dMassachusetts Constitution of 1780, Art. 26,3 THORPE 1892.
13dSouth Carolina Constitution of 1778, i 40 ,6 THORPE 3257.
14dNew Hampshire Constitution of 1784, § 33,4 THORPE 2457.
15dId., § 18, 4 THORPE 2456: “All penalties ought to be propor
tioned to the nature of the offence. No wise legislature will affix the
same punishment to the crimes of theft, forgery and the like, which
they do to those of murder and treason; where the same undistinguish
ing severity is exerted against all offences, the people are led to forget
the real distinction in the crimes themselves, and to commit the most
flagrant with as little compunction as they do those of the lightest dye:
For the same reason a multitude of sanguinary laws is both impolitic
and unjust. The true design of all punishments being to reform, not
to exterminate, mankind.”
4d
unusual punishment” prohibition, did direct the develop
ment of prisons in order to permit lesser reliance on san
guinary punishments.16d
3. The Federal Constitution
Although the Articles of Confederation contained no pro
visions for the protection of individual liberties, the North
west Ordinance, enacted by the Confederate Congress in
1787, did provide such guarantees for the citizens of the
Northwest Territory, and included a prohibition of cruel
and unusual punishments.17d
The Federal Constitution proposed in 1787 contained no
bill of rights, of course, and this omission was the subject
of well-known discussions in the ratifying conventions of
the States. Three of the States in which the strongest senti
ments was expressed of the need for the addition to the
Constitution of a body of protections of individual liberties—
Virginia,18d New York,19d and North Carolina20d-submitted
proposals for specific bill of rights guarantees which included
16dVermont Constitution of 1777, Chap. 2, Sec. 35, 6 THORPE
3747: “To deter more effectually from the commission of crimes, by
continued visible punishment of long duration, and to make sanguinary
punishments less necessary; houses ought to be provided for punish
ing, by hard labor, those who shall be convicted of crimes not
capital. . . .”
17dOrdinance of 1787: The Northwest Territorial Government, The
Confederate Congress, July 13,1787; Art. 11: “All fines shall be mod
erate; and no cruel or unusual punishments shall be inflicted.” 1 U.S.C.
(1964), xxxvii, xxxviii.
18dSee 3 ELLIOT’S DEBATES (2d ed. 1863), 593-596, 612-613,
622-631,649-652.
19dl ELLIOT’S DEBATES (2d ed. 1863), 329.
;od4 ELLIOT’S DEBATES (2d ed. 1863), 242.
5d
prohibitions of the imposition of cruel and unusua! punish-
ments.21d
The debates in two of the state conventions specifically
alluded to the absence of such a clause in the original Con
stitution. In Massachusetts, Mr. Holmes stated:
“What gives an additional glare of horror to these
gloomy circumstances is the consideration, that
Congress have to ascertain, point out, and determine,
what kind of punishments shall be inflicted on per
sons convicted of crimes. They are nowhere restrained
from inventing the most cruel and unheard-of pun
ishments, and annexing them to crimes; and there is
no constitutional check on them, but that racks and
gibbets may be amongst the most mild instruments
of their discipline.” 22d
In the Virginia Convention, a colloquy among Patrick
Henry, George Nicholas and George Mason touched on the
clause:
Henry: “Congress, from their general powers,
may fully go into business of human legislation.
They may legislate, in criminal cases, from treason
to the lowest offence—petty larcency. They may
define crimes and prescribe punishments. In the
definition of crimes, I trust they will be directed by
what wise representatives ought to be governed by.
But when we come to punishments, no latitude
ought to be left, nor dependence put on the virtue
of representatives. What says our bill of rights?—
‘that excessive bail ought not to be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.’ Are you not, therefore, now
calling on those gentlemen who are to compose
Congress, to prescribe trials and define punishments
without this control? Will they find sentiments there
2!d3 ELLIOT’S DEBATES (2d ed. 1863), 658 (Virginia); 1 id.
328 (New York); 4 id. 244 (North Carolina).
22d2 ELLIOT’S DEBATES (2d ed. 1863), 111.
6d
similar to this bill of rights? You let them loose;
you do more—you depart from the genius of your
country.” ?}C
“In this business of legislation, your members of
Congress will loose the restriction of not imposing
excessive fines, demanding excessive bail, and inflict
ing cruel and unusual punishments. These are pro
hibited by your declaration of rights. What has dis
tinguished our ancestors? —That they would not
admit of tortures, or cruel and barbarous punishment.
But Congress may introduce the practice of the civil
law, in preference to that of the common law. They
may introduce the practice of France, Spain, and
Germany—of torturing, to extort a confession of the
crime. They will say that they might as well draw
examples from those countries as from Great Britain,
and they will tell you that there is such a necessity
of strengthening the arm of government, that they
must have a criminal equity, and extort confession
by torture, in order to punish with still more relent
less severity. We are then lost and undone.” 23d
Nicholas: “ But the gentlemen says that, by this
Constitution, they have the power to make laws to
define crimes and prescribe punishments; and that
consequently, we are not free from torture. . . . If
we had no security against torture but our declara
tion of rights, we might be tortured to-morrow; for
it has been repeatedly infringed and disregarded.”2413
“Mr. GEORGE MASON replied that the worthy
gentleman was mistaken in his assertion that the bill
of rights did not prohibit torture; for that one clause
expressly provided that no man can give evidence
against himself; and that the worthy gentleman must
know that, in those countries where torture is used,
evidence was extorted from the criminal himself.
23d3 ELLIOT’S DEBATES (2d ed. 1863), 44748.
24d3 id. at 451.
7d
Another clause of the bill of rights provided that no
cruel and unusual punishments shall be inflicted;
therefore, torture was included in the prohibition.
“Mr. NICHOLAS acknowledged the bill of rights
to contain that prohibition, and that the gentleman
was right with respect to the practice of extorting
confession from the criminal in those countries
where torture is used; but still he saw no security
arising from the bill of rights as separate from the
Constitution, for that it had been frequently vio
lated with impunity.” 2Sd
In the debates of the first Congress on the Bill of Rights,
there was very little discussion of the provision which has
become the Eighth Amendment, and that only in the House
of Representatives. Here is the whole of it;
“Mr. Smith, of South Carolina, objected to the
words ‘nor cruel and unusual punishments,’ the
import of them being too indefinite.”
“Mr. Livermore: ‘The clause seems to express a
great deal of humanity, on which account I have no
objection to it; but as it seems to have no meaning
in it, I do not think it necessary. What is meant by
the terms excessive bail? Who are to be the judges?
What is understood by excessive fines? It lies with
the court to determine. No cruel and unusual pun
ishment is to be inflicted; it is sometimes necessary
to hang a man, villains often deserve whipping, and
perhaps having their ears cut off; but are we in the
future to be prevented from inflicting these punish
ments because they are cruel? If a more lenient
mode of correcting vice and deterring others from
the commission of it would be invented, it would
be very prudent in the Legislature to adopt it; but
until we have some security that this will be done,
we ought not to be restrained from making neces
sary laws by any declaration of this kind.’
2 5 d 3 id. at 452.
8d
“The question was put on the clause, and it was
agreed to by a considerable majority.” 26d
Examination of the debates in the state legislatures con
cerning the ratification of the Bill of Rights has revealed no
extant reference to the Clause.
26dl Annals of Congress (1789), 754 (1st Congress, 1st Session).
le
APPENDIX E
WORLDWIDE AND NATIONAL TRENDS IN
THE USE OF THE DEATH PENALTY
In a report for the United Nations Department of Eco
nomic and Social Affairs describing developments in the use
of the death penalty during the years 1961 to 1965, Profes
sor Norval Morris summarized his findings as follows:
. There is an over-all tendency in the world
towards fewer executions. This is the result of less
frequent use of the death penalty in those States
whose statutes provide for that penalty, and of a
steady movement towards legislative abolition of
capital punishment.” 16
In a 1971 supplemental report to the Economic and
Social Council, the Secretary-General of the United Nations
concluded:
“. . . There is still a clear trend towards total
abolition. Most countries are gradually restricting
the number of offences for which the death penalty
can be applied and a few have totally abolished
capital offences even in wartime. Those countries
retaining the death penalty report that in practice
it is only exceptionally applied and frequently the
persons condemned are later pardoned by executive
authority. . . .,,2e
A variety of factors hamper somewhat any attempt to
generalize upon the data summarized by these statements.
No study has successfully sought data from all jurisdictions
competent to retain or abolish capital punishment; many
leUNITED NATIONS, DEPARTMENT OF ECONOMIC AND
SOCIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/SD/9-10)
(1968) [hereafter cited as UNITED NATIONS], 81-82.
2eUNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL, Note
by the Secretary-General, Capital Punishment, (E/4947) (February 23,
1971) [hereafter cited as Secret ary-General’s Note], p. 3.
2e
otherwise abolitionist jurisdiction retain the death penalty
for extraordinary offenses or emergency circumstances;
several jurisdictions have failed to reflect de facto abolition
in positive law.3e A consideration of trends over the last
two centuries, moreover, is complicated by the movements
of several jurisdictions which have abolished the death
penalty and subsequently reintroduced it.
Nonetheless, when these vacillating movements are put
out of account by focusing upon countries which have
abolished capital punishment and never restored it (and
when “abolition” is used to mean the termination of capital
punishment for the ordinary violent civilian crimes: murder,
rape, robbery, arson, and kidnapping), definite historical
trends are clearly apparent.
Table I lists abolitionist jurisdictions outside the United
States by year of de jure abolition, except for Lichtenstein,
Luxembourg, Nicaragua, and Surinam, for which the last
execution year is given to mark the beginning of de facto
abolition.4®
3eSee UNITED NATIONS 8-9; Patrick, The Status o f Capital
Punishment: A World" Perspective, 56 J. CRIM. L., GRIM & POL.
SCI. 397, 405 (1965) [hereafter cited as Patrick],
4eNine of the listed jurisdictions retain execution as the penalty
for certain extraordinary civil offenses (the four Australian jurisdic
tions, Canada, Israel, Nepal, New Zealand, and United Kingdom); eight
permit the death penalty in wartime or under military law (Brazil,
Denmark, Finland, Italy, Netherlands, Norway, Sweden and Switzer
land); and two executed Nazi collaborators after World War II (Neth
erlands and Norway).
3e
T A B L E I s*
Worldwide Abolition
ARGENTINA 1922 LICHTENSTEIN 17987e
18217e 9eAUSTRALIA (Federal) 1945 LUXEMBOURG
New South Wales 1955 MEXICO (Federal) 1931
Queensland 1922 29 of 32 States 1931-1970
Tasmania 1968 MONACO 1962
AUSTRIA 1968 MOZAMBIQUE 1867
BELGIUM 18636e NEPAL 1950
BOLIVIA 1961 NETHERLANDS 1886
BRAZIL 1946 Antilles 1957
CANADA 19678e NEW ZEALAND 1961
COLUMBIA 1910 NICARAGUA 18927e
COSTA RICA 1880 NORWAY 1905
DENMARK 1930 PANAMA 1915
DOMINICAN REPUBLIC 1924 PORTUGAL 1867
ECUADOR 1897 SAN MARINO 1848
FINLAND 1949 SURINAM 19277e
GERMANY, West 1949 SWEDEN 1921
GREENLAND 1954 SWITZERLAND 1942
HONDURAS 1957 UNITED KINGDOM
ICELAND 1940 Great Britain 1965
INDIA Northern Ireland 1966
Travencore 1944 URUGUAY 1907
ISRAEL 1954 VATICAN CITY STATE 1969
ITALY 1944 VENEZUELA 1863
5eSources for this table are: UNITED NATIONS; Secret ary-General’s
Note; ANCEL, THE DEATH PENALTY IN EUROPEAN COUNTRIES
(Council of Europe, European Committee on Crime Problems, 1962);
JOYCE, CAPITAL PUNISHMENT: A WORLD VIEW (1961); UNIVER
SITY OF COIMBRA, FACULTY OF LAW, PANA DE MORTE (1967);
Patrick.
6eExcludes one soldier executed in 1918.
leDe facto only; date is last execution.
8eStatute abolishing capital punishment for murder expires after
a five-year period (beginning 1967) if not renewed.
9e Excludes one.
4e
Chart I displays the data contained in Table I. Although,
as of 1970, abolitionist jurisdictions comprise far less than
half of all the nations of the world, there is evident a defin
ite, continuing, long-term, accelerating, worldwide trend
toward ending the use of the penalty of death. Every
decade since 1800 has shown growth in the total number
of abolitionist jurisdictions; and during the past century
the number of jurisdictions abandoning capital punishment
in any given decade has been greater than the number in
the preceding decade.
CHART I
Worldwide Abolition Graph
A similar trend is apparent within the United States.
Table II lists by date of de jure abolition those States which
are presently abolitionist.
5e
TABLE I I 106
Abolition in the United States
ALASKA 1957 NORTH DAKOTA 191514e
HAWAII 1957 OREGON 1964
IOWA 1965 PUERTO RICO 1929
MAINE 1887 RHODE ISLAND 18521Se
MICHIGAN 18471 le VERMONT 19 6512e
MINNESOTA 1911 VIRGIN ISLANDS 1957
NEW MEXICO !969i2e WEST VIRGINIA 1965
NEW YORK 196513e WISCONSIN 1853
The information in Table II is exhibited by the solid line
on Chart II, Unlike the situation outside the United States,
jurisdictions which have reinstated capital punishment after
periods of abolition substantially affect the curve: the-
broken line on Chart II includes eight States now having
the death penalty which underwent periods of abolition,!6e
10eSources for this table are: Appendix G to this brief; UNITED
STATES DEPARTMENT OF JUSTICE, BUREAU OF PRISONS,
NATIONAL PRISONER STATISTICS, Bulletin No. 45, Capital Pun
ishment 1930-1968 (August 1969), p .30; 34 LAWS OF PUERTO
RICO ANN., §995 (1956); VIRGIN ISLANDS CODE ANN., tit. 14,
§923 (1964).
lleDeath penalty retained for treason until 1963.
12eDeath penalty retained for murder of police officer or prison
guard, or for commission of second unrelated murder.
13eDeath penalty retianed for murder of police officer and for any
homicide by life-term prisoner.
14eDeath penalty retained for treason and for murder by life-term
prisoner incarcerated for murder.
1SeDeath penalty retained for murder by life-term prisoner.
16eArizona (1916-1918); Colorado (1897-1901); Delaware (1958-1961);
Kansas (1907-1935); Missouri (1917-1919); South Dakota (1915-1939);
Tennessee (1916-1918); Washington (1912-1919).
6e
as well as three presently abolitionist States which had
earlier periods of abolition than those shown in Table II.17e
CHART II
United States Abolition Graph
Although short-lived periods of abolition in five States in
the decade preceding Prohibition18® blur the impact of the
otherwise definitive trend reflected in Chart II, that trend
is compellingly reflected in the number of executions per
year as shown by Chart III. Chart III displays the informa
tion contained in the Table on p. 37 of the body of this
brief, and demonstrates the solidity of the conclusion that
“while de jure abolition has ebbed and flowed a de facto
abolition has practically become a reality in the United
17eIowa (1872-1878); Maine (1876-1883); Oregon (1914-1920).
18eArizona, Missouri, Oregon, Tennessee and Washington. See
notes 14e, 15e supra.
7e
States.” 196 This is a Chart of the number of men actually
executed yearly since 1930.
CHART III
Executions in the United States
1930-1970
In summary:
(1) Among Western European countries outside the Soviet
orbit, only France and Spain still authorize the death
penalty for murder and other felonies in peacetime.
(2) In the Western Hemisphere, the United States stands
virtually alone in using the death penalty. In North
America, out of 98 jurisdictions (12 in Canada, 32 in
Mexico, and 54 in the United States), 38 of the 41
which allow capital punishment for first degree mur
der generally are in the United States.
,9e2 NATIONAL COMMISSION ON REFORM OF FEDERAL
CRIMINAL LAWS, WORKING PAPERS (GP.O. 1970), 1350-1351.
8e
(3) In the Anglo-American world (United Kingdom,
Canada, Australia, United States), whose jurispru
dence is rooted in a common experience several
centuries old, the death penalty for crimes such
as murder, rape, and kidnapping is all but abolished
outside the United States. Except for the 38 jur
isdictions which retain the death penalty in this
country, only the Republic of Ireland and four
Australian states have failed to abandon capital
punishment.
If
A PPEN D IX F
AVAILABLE INFORMATION RELATING TO
THE PROPORTION OF PERSONS ACTUALLY
SENTENCED TO DEATH AMONG THOSE CON
VICTED OF CAPITAL CRIMES.
It is exceptionally difficult to obtain information which
will permit construction of a reliable estimate concerning
the proportion of persons actually sentenced to death,lf
among all those convicted of capital crimes. In order to
calculate this proportion, two comparable figures are required:
the number of persons convicted of a given capital offense,
and the number of persons sentenced to death for it. The
figures must be comparable in the sense that they relate to
the same jurisdiction, the same period of time, and the
same offense.
Figures for the number of death sentences imposed dur
ing recent years, for each of the several capital offenses, in
each of the capital-punishment jurisdictions, may be esti
mated—albeit somewhat inexactly—from data reported in
the National Prisoner Statistics Bulletins on Executions.
The relevant tables are cited in the footnote,2f which also
sets forth the citation form that will be used hereafter to
lfBy “persons actually sentenced to death,” we mean persons
upon whom the sentencing authority, judge or jury, imposes a death
sentence. We do not mean to take account of later judicial decisions
vacating the sentence, of executive clemency, or of any other factor
that may result in the initial death sentence not being carried out.
2fThe National Prisoner Statistics Bulletins on Executions are
published annually. The latest is UNITED STATES DEPARTMENT
OF JUSTICE, BUREAU OF PRISONS, NATIONAL PRISONER STA
TISTICS, No. 45, Capital Punishment 1930-1968 (August, 1969). In
the columns below we list the numbers and titles of the issues relied
upon in this Appendix, the abbreviation which will hereafter be used
to designate each, and the pages and tables of each that contain perti
nent information.
Number, title, date Abbreviation Page and table
NPS (1961) p. unnumbered
table 5
No. 28, Executions
1961 (April, 1962)
2f
describe each bulletin. There are several problems with the
tables as sources of information relating to the number of
persons sentenced to death. First, the figure which they
report represents the number of persons received by the
respective state penitentiaries from the court, each year,
under sentence of death. This may be fewer than the
actual number of death sentences imposed in some states,
where the practice is to hold a death-sentenced man in a
local facility pending post-verdict motions and/or appeals.
Second, for this or other reasons, a few death sentences
imposed each year are not reported to the NPS until the
following year. The latest NPS Bulletin gives revised figures
for prisoners received from court under sentence of death
for each year since 1961 (NPS (1968), p. 12, table 4); but
these figures are not broken down by jurisdiction and
offense. Figures broken down by jurisdiction and offense
must be taken from the earlier annual reports, and have not
been revised.
But these problems are inconsequential compared to those
of ascertaining comparable figures relating to the number of
convictions for capital offenses. Conviction figures are
almost nowhere published. The rare published figures suffer
from assorted woes that virtually destroy their usefulness.
No. 32, Executions
1962 (April, 1963)
NPS (1962) p. unnumbered,
table 5
No. 34, Executions
1930-1963 (May, 1964)
NPS (1963) p. 14, table 5
N o. 37, Executions
1930-1964 (April,
1964 [sic: 1965])
NPS (1964) p. 14, table 4
No. 39, Executions
1930-1965 (June, 1966)
NPS (1965) p. 14, table 4
No. 41, Executions
1930-1966 (April, 1967)
NPS (1966) p. 13, table 4
No, 42, Executions
1930-1967 (June 1968)
NPS (1967) pp. 12-17, tables 4-7
No. 45, Capital Punishment
1930-1968 (August, 1969)
NPS (1968) pp. 12-17, tables 4-7
3f
Some states report judicial statistics for fiscal years, making
comparison with the calendar-year NPS reports difficult
Most states report conviction figures for categories of cases
(“murder” ; “sexual offenses”) that include, but are not
entirely composed of, capital crimes. Many states report
not conviction figures, but figures concerning the number
of commitments to the state penitentiary under conviction
and sentence for given offenses. These figures omit large
numbers of convicted persons: namely, those sentenced to
imprisonment in local facilities, or to probation, or whose
sentences are suspended. Secondary sources reporting con
viction figures suffer from the same defects and often, in
addition, they report totals for a span of years that includes
both a period of mandatory capital sentencing and a suc
ceeding period of discretionary capital sentencing within a
jurisdiction.
Confronted with these problems, we adopt the approach
of setting out below all of the information we can find
relating to the question of what proportion among all con
victed capital offenders are actually sentenced to death.
The information comes from a variety of problems. We
report each item separately, and explain its problems as we
see them. The information below relates to the two capital
offenses principally in use in the United States: murder and
rape. Information on other capital offenses is not obtain
able in intelligible form.
A. M urder
1. In the federal courts, first degree murder is capitally
punishable under 18 U.S.C. § 1111 (1964). For all federal
district courts (excluding the District of Columbia, Canal
Zone, Guam and the Virgin Islands), there appear to have
been a total of 25 convictions for this offense between July
1, 1961 and June 30, 1969, excluding the fiscal year 1964-
1965, for which no figure is reported. During the calendar
years 1961 through 1969, 2 death sentences were imposed
by federal courts for murder. Note that the death-sentence
4f
figure relates to a period of nine years, including the seven
for which the conviction figure is given. This awkard form
of comparison is necessitated by the problem of relating
calendar to fiscal years. Conviction figures are taken from
table D5 in the Annual Reports of the Director of the
Administrative Office of the United States Courts for the
years 1962-1969; death-sentence figures from NPS (1961)
through NPS (1968).3f
2. It appears that in the five calendar years 1966 through
1970, 42 persons were sentenced upon conviction of first
degree murder in the United States District Court for the
District of Columbia. During this period one person was
sentenced to die for murder. ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS, DIVISION OF PRO
CEDURAL STUDIES AND STATISTICS, NUMBER OF
PERSONS SENTENCED FOR CRIMES WHICH INCLUDE
THE DEATH SENTENCE AS A PENALTY SECTION:
FISCAL YEARS 1966-1970 (unpublished Report, August
10, 1971).
3. Writing in 1964, the former Director of the Califor
nia Department of Corrections estimated that one-fifth of
California’s first-degree murder convicts were sentenced to
death. McGee, Capital Punishment as Seen by a Correctional
Administrator, 28 FED. PROBATION (No. 2) 11, 12 (1964).
The Bureau of Criminal Statistics reports 88 first degree
murder convictions during 1967, as compared with 17 death
sentences. STATE OF CALIFORNIA, DEPARTMENT OF
JUSTICE, DIVISION OF LAW ENFORCEMENT, BUREAU
OF CRIMINAL STATISTICS, REPORT (CRIME AND DE
LINQUENCY IN CALIFORNIA, 1967) (1968) 140; NPS
(1967). During 1969, there were 87 first-degree murder
3fThe last published figures for death sentences cover the period
through December 31, 1968. Our information that no federal death
sentences were imposed for murder during calendar year 1969 is based
upon a communication from James A. McCafferty, Assistant Chief,
Division of Procedural Studies and Statistics, Administrative Office of
the United States Courts, August 11, 1971.
5 f
convictions, and 8 death sentences. STATE OF CALIFOR
NIA, DEPARTMENT OF JUSTICE, DIVISION OF LAW
ENFORCEMENT, BUREAU OF CRIMINAL STATISTICS,
REPORT (CRIME AND DELINQUENCY IN CALIFORNIA,
1969) (1970) 121. For other recent years, we are unable
to discover published reports of the number o f first-degree
murder convictions, since the conviction figure is stated for
homicide generically.
4. There appear to have been 78 commitments under
conviction for first degree murder in Florida between July
1, 1964 and June 30, 1966. During the three calendar
years encompassing these two fiscal years, 16 men were
sentenced to die for first degree murder. FLORIDA DIVI
SION OF CORRECTIONS, FIFTH BIENNIAL REPORT
(July 1, 1964-June 30, 1966) (1966) 74-75; NPS (1964); id.
(1965); id. (1966). For the period between July 1, 1966
and June 30, 1970, there were 164 life sentences and 29
death sentences imposed for first degree murder in Florida.
FLORIDA DIVISION OF CORRECTIONS, SEVENTH
BIENNIAL REPORT (July 1, 1968 to June 30, 1970)
(1970) 82; id., SIXTH BIENNIAL REPORT (July 1, 1966
to June 30, 1968) (1968) 77.
5. There appear to have been 424 commitments under
conviction for murder in Georgia between July 1, 1964 and
December 31, 1968. During the Five calendar years encom
passing these four and a half fiscal years, 14 men were sen
tenced to die for murder. (During these years all murder
was capital in Georgia, which recognized no degrees of the
offense.) STATE OF GEORGIA BOARD OF CORREC
TIONS, ANNUAL REPORT (July 1, 1964-June 30, 1965)
(1965) 56; id. (July 1, 1965-June 30, 1966) (1966) 52; id.
(July 1, 1966-June 30, 1967) (1967) 39; id. (July 1, 1967-
June 30, 1968) (1968) 45; id. (July 1, 1968-June 30, 1969)
(1969) 101; NPS (1964); id. (1965); id. (1966); id. (1967);
id. (1968).
6. There appear to have been 28 commitments under
conviction for first degree murder in Maryland between
6f
July 1, 1965 and June 30, 1966. During the two calendar
years encompassing that one fiscal year, 4 men were sen
tenced to die for first degree murder. MARYLAND
DEPARTMENT OF CORRECTION, FORTIETH REPORT
(July 1, 1965-June 30, 1966) (1966) 36; NPS (1965); id.
(1966). Again between July 1, 1967 and June 30, 1968,
there were 28 first degree murder commitments. During
the two calendar years encompassing that fiscal year, 3 men
were sentenced to die for first degree murder. MARYLAND
DEPARTMENT OF CORRECTIONAL SERVICES, FORTY-
SECOND REPORT (July 1, 1967-June 30, 1969) (1969),
unpaginated; NPS (1967); id. (1968).
7. Bedau reports that in New Jersey, between 1916 and
1955, 497 persons were committed to the state penitentiary
with life sentences for murder, while 157 persons were sen
tenced to death for murder. (These are all first degree cases,
it would appear, since New Jersey law does not permit life
imprisonment for second degree murder. The death penalty
for first degree murder was made discretionary in 1916.)
The problem here is that the figures for conviction include
both jury convictions (entailing jury discretion to sentence
to life or death) and court convictions upon a plea of non
vult (which, under New Jersey law throughout the period,
precluded the death penalty). Bedau, Death Sentences in
New Jersey 1907-1960, 19 RUTGERS L. REV. 1, 30 (1964).
Between 1956 and 1960 in New Jersey, Bedau finds 61
first degree murder convictions, resulting in 13 death sen
tences and 48 life sentences (17 on a jury verdict and 31
on a plea of non vult). Id. at 51.4f These figures may re
late only to male convicts, since Bedau received his convic
tion figures from Edwin Wolf (see next paragraph), who
studied the prison records of convicted male offenders.
Wolf reports that of 159 convictions by a jury of a male
offender for the offense of first degree murder in New Jer-
4fThe figure “60” in the lower right-hand cell of table XXVIII
ought to be “61.” This is so because the figure “4” in the last column
for the year 1958 is a typographical error and should read “5.”
7f
sey between 1937 and 1961, 62 resulted in a death sentence
and 97 in a sentence of life imprisonment. Wolf, Abstract
o f Analysis o f Jury Sentencing in Capital Cases: New Jersey:
1937-1961, 19 RUTGERS L. REV. 56, 60 (1964).
8. Johnson reports that in North Carolina, between July
1, 1938 and December 31, 1953, there were 742 convictions
for first degree murder, as compared with 162 death sen
tences (admissions to death row) upon conviction for first
degree murder. Johnson, Selective Factors in Capital Pun
ishment, 36 SOCIAL FORCES 165, 166 (1957).
9. It appears that in Ohio there were 183 convictions
for first degree murder during the calendar years 1965-1968.
In this same period 32 men were sentenced to die for first
degree murder. OHIO DEPARTMENT OF MENTAL
HYGIENE AND CORRECTION, OHIO JUDICIAL CRIM
INAL STATISTICS (1965) 13; id, (1966) 11; id. (1967) 11;
id. (1968) 13; NPS (1965); id. (1966); id. (1967); id. (1968).
10. Wolfgang reports that in Philadelphia, Pennsylvania
during the period 1948-1952 there were 77 convictions of
first degree murder, as compared with 7 death sentences.
WOLFGANG, PATTERNS IN CRIMINAL HO! x'TDE
(Science ed., Wiley, 1966) 305-306, table 36.
11. It appears that there were 71 commitments under
conviction for first degree murder in Tennessee during fiscal
years July 1, 1965-June 30, 1968. During the four calendar
years encompassing these three fiscal years one man in Ten
nessee was sentenced to die for first degree murder. TEN
NESSEE DEPARTMENT OF CORRECTION, DEPART
MENTAL REPORT (1965-1966, 1966-1967) (1968) pages
unnumbered; id. (PERIOD ENDING JUNE 30, 1969) (1969)
pages unnumbered; NPS (1965); id. (1966); id. (1967); id.
(1968).
12. It appears that during calendar years 1946 through
1968, 5034 persons were committed under sentence for
murder in Texas. (Texas has no degrees of murder.) Dur
ing this period, 139 persons were sentenced to die for mur-
8f
der. Koeninger, Capital Punishment in Texas, 1924-1968,
15 CRIME & DELINQUENCY 132, 135 (1969); TEXAS
DEPARTMENT OF CORRECTIONS, BUREAU OF REC
ORDS AND IDENTIFICATION, ANNUAL STATISTICAL
REPORT, 1968 (1969), unpaginated; NPS (1968).
13. Kalven and Ziesel report 21 death sentences out of
a sample of 111 murder cases tried in the years 1954, 1955
and 1958 in which a jury returned a verdict of guilty of a
capital degree of the offense, and the presiding judge agreed
with their guilty verdict. KALVEN & ZEISEL, THE
AMERICAN JURY (1966) 435-436.
B. Rape
1. In the federal courts, rape is capitally punishable under
18 U.S.C. §2031 (1964). For all federal district courts
(excluding the District of Columbia, Canal Zone, Guam and
the Virgin Islands), there appear to have been a total of
185 rape convictions between July 1, 1961 and June 30,
1969, excluding the fiscal year 1964-1965, for which no
figure is reported. For the calendar years 1961 through
1969, no death sentences were imposed for rape by a federal
court. Conviction figures are taken from table D5 in the
Annual Reports of the Director of the Administrative Office
of the United States Courts for the years 1962-1969; death-
sentence figures from NPS (1961) through NPS (1968).5f
2. There appear to have been 185 commitments under
conviction for capital rape offenses in Florida between July
1, 1964 and June 30, 1968. During the five calendar years
encompassing these four fiscal years, 8 men were sentenced
to die for rape. FLORIDA DIVISION OF CORRECTIONS,
FIFTH BIENNIAL REPORT (July 1, 1964-June 30, 1966)
(1966) 74-75; id., SIXTH BIENNIAL REPORT (July 1,
1966 to June 30, 1968) (1968) 77; NPS (1964); id. (1965);
sfNo death sentences were imposed for rape during the last six
months of 1969 that are uncovered by the published figures. See note
3f supra.
9f
id. (1966); id. (1967); id. (1968). During the two year per
iod between July 1, 1968 and June 30, 1970, there appear
to have been 148 commitments under conviction for capital
rape offenses. FLORIDA DIVISION OF CORRECTIONS,
SEVENTH BIENNIAL REPORT (July 1, 1968 to June 30,
1970) (1970) 83. No more than 6 death sentences were
imposed ,6f
3. There appear to have been 299 commitments under
conviction for rape in Georgia between July 1, 1964 and
December 31, 1968. During the five calendar years encom
passing these four and a half fiscal years, 8 men were sen
tenced to die for rape. STATE OF GEORGIA BOARD OF
CORRECTIONS, ANNUAL REPORT (July 1, 1964-June
30, 1965) (1965) 56; id. (July 1, 1965-June 30, 1966)
(1966) 52; id. (July 1, 1966-June 30, 1967) (1967) 39; id.
(July 1, 1967-June 30, 1968) (1968) 45; id. (July 1, 1968-
June 30, 1969) (1969) 101; NPS (1964); id. (1965); id.
(1966); id. (1967); id. (1968).
4. There appear to have been 190 commitments under
conviction for rape and assault with intent to rape in Mary
land between July 1, 1964 and June 30, 1966. During the
three calendar years encompassing those two fiscal years, 3
men were sentenced to die for rape offenses. MARYLAND
DEPARTMENT OF CORRECTION, THIRTY-NINTH RE
PORT (July 1, 1964-June 30, 1965) (1965) 30; id., FOR
TIETH REPORT (July 1, 1965-June 30, 1966) (1966) 36;
NPS (1964); id. (1965); id. (1966). There appear to have
been 102 commitments for rape offenses for the fiscal year
July 1, 1967 through June 30, 1968, with no death sen
tences. MARYLAND DEPARTMENT OF CORRECTIONAL
SERVICES, FORTY-SECOND REPORT (July 1, 1967-June
30, 1969) (1969), unpaginated; NPS (1967); id. (1968).
6fA total of 19 commitments under sentence of death are reported
in Florida for the fiscal years 1968-1970. Id. at 81. Since 13 of these
were for murder (see p. 5f supra) no more than 6 could have been
for rape.
lOf
(During all these years, rape and assault with intent to rape
were capital in Maryland.)
5. Johnson reports that in North Carolina, between July
1, 1938 and December 31, 1953, there were 382 convictions
for rape, as compared with 52 death sentences (admissions
to death row) upon conviction for rape. The conviction
figure seems unduly low, even considering the availability
to the jury of verdicts for lesser offenses. Johnson, Selec
tive Factors in Capital Punishment, 36 SOCIAL FORCES
165, 166 (1957).
6. It appears that there were 63 commitments under
conviction for rape in Tennessee during fiscal years July 1,
1965-June 30, 1968. During the four calendar years encom
passing these three fiscal years there were 7 men sentenced
to die for rape. TENNESSEE DEPARTMENT OF COR
RECTION, DEPARTMENTAL REPORT (1965-1966, 1966-
1967) (1968), pages unnumbered; id., (PERIOD ENDING
JUNE 30, 1969) (1969), pages unnumbered; NPS (1965);
id. (1966); id. (1967); id (1968).
7. Partington appears to say that, between 1908 and
1963, there were 2798 offenders committed to the Virginia
State Penitentiary upon convictions for the capital crimes
of rape, attempted rape, statutory rape, and attempted sta
tutory rape. There were 68 death sentences in this group,
including two imposed upon defendants who had been
convicted of capital robbery as well as the sexual offense.
For rape alone, there were 1595 commitments, including
41 death sentences. The principal problem with these
figures appears to be that the commitment figures are doubt
less considerably lower than the number of capital convic
tions, since some capital offenders would have received jail
terms, probation, or suspended sentences. Partington, The
Incidence o f the Death Penalty for Rape in Virginia, 22
WASH. & LEE L. REV. 43, 43-44, 71-73 (1965).
In addition to the figures available for comparison, supra,
national totals of commitments under sentence of death are
reported. These alone give some sense of the extreme infre-
I l f
quency with which persons convicted of capital crimes are
actually sentenced to death. During the period covered by
the following figures, thirty-nine American States, the Dis
trict of Columbia, and the federal jurisdiction maintained
statutes of general applicability punishing one or more
offenses with death. In some States, half a dozen or more
crimes were so punishable.7f Yet the following numbers of
men were received under sentence of death in all of the
prisons of the United States in the following years (NPS
(1968), p. 12, table 4):
1961 - 140
1962 - 103
1963 - 93
1964 - 106
1965 - 86
1966 - 118
1967 - 85
1968 - 102
7fThe capital statutes now in force in the United States are set
forth in Appendix G to this brief, infra. Some of those in force dur
ing the period 1961-1968 have, however, since been repealed.
lg
A PPEN D IX G
PROVISIONS OF THE CRIMINAL STATUTES
OF THE UNITED STATES AND OF THE FIFTY
STATES PROVIDING FOR THE PUNISHMENT
OF DEATH*
U nited S ta tes
Uniform Code o f Military Justice (10 U.S.C., subtit. A,
ch. 47):
§ 885 (desertion)
§ 890 (assaulting or willfully disobeying a superior
commissioned officer)
§ 894 (mutiny or sedition)
§ 899 (misbehavior before the enemy)
§901 (improper use of countersign)
§ 904 (aiding the enemy)
§ 906 (spies)
§913 (misbehavior of sentinel)
§918 (murder)
§ 920 (rape)
Crimes (18 U.S.C., pt. I):
§ 34 (destruction of aircraft or motor vehicle
carrier facilities, resulting in death)
§794 (gathering or delivering defense information
to aid a foreign government)
§844(d), (f), (i) (84 Stat. 957-958) (certain explo
sives offenses resulting in death)
§ 1111 (murder)
§ 1114 (murder of officers and employees of the
United States)
§ 1201 (kidnapping if victim is not released unharmed)
§1716 (mailing injurious article, causing death)
§ 1751 (presidential and vice-presidential assassina
tion)
§ 1992 (wrecking train, resulting in death)
§2031 (rape)
*Some of these provisions are unconstitutional and inoperative
under United States v. Jackson, 390 U.S. 570 (1968).
2g
§2113(e) (bank robbery accompanied by death or
kidnapping)
§2381 (treason)
Federal Aviation Program (49 U.S.C., ch. 20):
§ 1472(i), (k)(l) (aircraft piracy, including attempts;
rape or murder aboard aircraft)
D istric t of Columbia
D.C. Code (1967):
§22-2401 (murder)
Alabama
Code o f Ala., (Recomp. Vol. 1958):
§ 14-7 (kidnapping for ransom)
§ 14-8 (attempted kidnapping for ransom)
§ 14-23 (first degree arson with loss of life or
maiming)
§ 14-24 (second degree arson with loss of life or
maiming)
§ 14-39 (assault on prison guard or any murder
by life term prisoner)
§14-85 (burglary)
§14-97(5) (sabotage)
§ 14-123 (dynamiting under or near inhabited area)
§ 14-315 (killing in duel)
§ 14-316 (killing with concealed weapon)
§§14-318,-319 (murder)
§ 14-355 (lynching)
§ 14-395 (rape)
§§ 14-397,-398 (carnal knowledge)
§14-415 (robbery)
§34-416 (train robbery)
§ 14-424 (treason)
3g
Arizona
Ariz. Rev. Stat. (1956):
§ 13-250 (armed assault by life term prisoner)
§ 13-453 (murder)
§ 13-492 (kidnapping for ransom if victim is harmed)
§13-572 (peijury in capital case resulting in death of
innocent person)
§ 13-644 (train robbery)
§13-701 (treason)
Arkansas
Ark. Stat. Ann. (1947):
§41-502
§41-2211
§41-2212
§41-2213
§41-2214
§41-2215
§41-2216
§41-2227
§41-2304
§41-3403
§41-3405
§41-3411
§41-4102
(arson of prison by convict)
(aiding suicide)
(deadly arson)
(killing in duel)
(captain of boat causing death by deliber
ately ramming into craft)
(unnecessary killing while resisting felony)
(police officer causing death by exceeding
bounds of moderation)
(murder)
(kidnapping for ransom or if victim is
harmed)
(rape)
(carnal knowledge of woman intentionally
drugged)
(forcing woman to marry)
(treason)
C alifornia
Cal. Penal Code (West, 1954):
§37 (treason)
§ 128 (peijury in capital case resulting in death of
innocent person)
§190 (murder)
§209 (kidnapping for ransom or robbery if vic
tim is harmed)
4g
§ 219 (train wrecking)
§4500 (assault with a deadly weapon or means
likely to cause great bodily injury, by a
prisoner under sentence of life imprison
ment)
§12310 (explosive device causing great bodily
injury)
Cal. Mil. & Vet. Code (West, 1955):
§1670, 1672(a) (sabotage causing death or great
bodily injury)
C olorado
Colo. Rev. Stat. (1963):
§40-2-3
§40-2-45
§40-2-5 1
§40-2-52
§40-7-3
§40-7-49
§40-23-14
(murder)
(kidnapping if victim suffers bodily harm)
(causing death of woman by abortion)
(causing death of woman during pre
tended abortion)
(perjury in capital case resulting in death
of innocent person)
(armed assault by escaped life prisoner)
(causing death during commission of
criminal anarchy)
C o n n ec ticu t
Conn. Gen. Stat. Ann. (1967):
§53-10 (murder; causing death by arson, bombing
or train wrecking)
D elaw are
Del. Code Ann. (1970 Cum. pocket part):
tit. 11, §§ 107, 571 (murder)
5g
F lo rid a
Fla. Stat. Ann. (1965):
§779.07 (sabotage)
§782.04 (murder)
§782.05 (killing in duel)
§782.06 (causing death by train wrecking)
§790.16 (throwing bombs or firing machine-gun in
public)
§790.161 (throwing bombs damaging property where
death results)
§794.01 (rape; carnal knowledge if victim is under
ten)
§805.02 (kidnapping for ransom)
G eorgia
Ga. Crim. Code (1969):
§26-1 101(c) (murder)
§26-1311 (kidnapping for ransom)
§26-1902 (armed robbery)
§26-2001 (rape)
§26-2201 (treason)
§26-2401 (perjury in a capital case resulting in
death)
§26-9921 (a) (fetacide)
§26-9922(a) (advising fetacide to a woman)
Idaho
Ida. Code (1947):
§18-4004 (murder)
§ 18-4504 (kidnapping for ransom if victim is harmed)
§18-541 1 (perjury in capital case resulting in death
of innocent person)
§18-6007 (causing death by train wrecking)
6g
Illinois
III. Ann. Stat. (1961):
c. 38, §9-1 (murder)
c. 38, §10-2 (kidnapping for ransom)
c. 38, §30-1 (treason)
I n d ia n a
Burns Ind. Stat. Ann. (1956):
§ 10-307 (arson causing death)
§10-3306 (mob lynching causing death)
§10-3401 (murder)
§10-3402 (killing in duel)
§10-3902 (causing death by train wrecking)
§10-4401 (treason)
§ 10-2903 (kidnapping for ransom)
K ansas
Kan. Stat. Ann. (1970 Cum. Supp.):
§21-3401 (murder)
§21-3421 (kidnapping if victim is harmed)
§21-3801 (treason)
§21-4501(a) (prescribing death penalty for the fore
going crimes)
K en tu ck y
Ky. Rev. Stat. Ann. (1963):
§433.140 (armed robbery)
§433.150 (asault to rob or with intent to rob)
§433.390 (causing death by train wrecking)
§435.010 (murder)
§435.030 (killing during advocacy of criminal syndi
calism)
§435.040 (causing death of woman by abortion)
§435.060 (causing death by obstructing road)
§435.070 (lynching)
§§435.080,-090 (rape)
7g
§435.140 (kidnapping for ransom)
§435.190 (reckless shooting into train or motor
vehicle)
L ouisiana
La. Stat. Ann. (West, 1950):
§14:30 (murder)
§14:42 (aggravated rape)
§ 14:44 (aggravated kidnapping)
§14:113 (treason)
Maryland
Ann. Code Md. (1957):
§27-12 (assault with intent to rape)
§27-337 (kidnapping)
§27-408 (killing in perpetration of arson)
§27-409 (killing committed in burning of barn,
tobacco house, stable or warehouse)
§27-410 (killing while attempting to escape prison
or commit rape, sodomy, mayhem or
robbery)
§27-413 (murder)
§27-454 (causing death by train wrecking)
§27-461 (rape)
§27-462 (carnal knowledge of child under fourteen)
M ississippi
Miss. Code Ann. (Recomp. vol. 1956):
§2096 (killing in duel)
§2143 (bombing in or near inhabited area)
§2217 (murder)
§2223 (causing death of woman by abortion)
§2238 (kidnapping)
§2358 (rape, including attempts)
§2367 (armed robbery)
§2397 (treason)
8g
Missouri
Vernon’s Mo. Stat. Ann. (1953):
§557.020 (perjury in capital case resulting in death
of accused)
§559.030 (murder)
§559.230 (kidnapping for ransom)
§559.260 (rape)
§560.135 (armed robbery)
§562.010 (treason)
§564.560 (bombing)
M ontana
Rev. Code Mont. (1947):
§94-2505 (murder)
§94-2601 (kidnapping for ransom)
§94-3207 (causing death by train wrecking)
§94-3813 (perjury in capital case resulting in death
of innocent person)
§94-4501 (treason)
N ebraska
Neb. Rev. Stat. (1943):
§28-401 (murder)
§28-417 (kidnapping if victim is injured or threatened
with injury)
N evada
Nev. Rev. Stat (1967):
§196.010 (treason)
§199.160 (perjury resulting in death of innocent
person)
§200.030 (murder)
§200.363 (rape with substantial bodily harm)
§200.320 (kidnapping for ransom if victim is harmed)
§200.400 (assault with intent to rape accompanied
by acts of violence and bodily harm)
9g
§200.410 (killing in duel)
§202.270 (dynamiting where threat to human life)
§212.060 (life prisoner killing any person while
attempting to escape)
New Hampshire
N.H. Rev. Stat. Ann. (1955):
§585.4 (murder)
N ew Jersey
N.J. Stat. Ann. (1952):
§2A: 113-4 (murder)
§2A: 118-1 (kidnapping for ransom)
§2A: 148-1 (treason)
§2A: 148-6 (attempt or conspiracy to assault chief
of state)
New M exico
N.M. Stat. Ann. (1969 Cum. pocket part):
§40A-29-2.1 (murder of police officer or prison
guard, or commission of second
capital felony after time for due
deliberation after the first)
New Y ork
N. Y. Penal Code (McKinney’s, 1967):
§ 125.30 (murder of police officer or by life term
prisoner)
N o rth C arolina
N.C. Gen. Stat. (1953):
§14-17 (murder)
§ 14-20 (killing in duel)
§14-21 (rape)
§14-52 (burglary)
§14-58 (arson)
10g
North Dakota
N.D. Century Code (1960):
§12-07-01 (treason)
§ 12-27-13 (first degree murder by prisoner serving
life sentence for first degree murder)
Ohio
Ohio Rev. Code Ann. (1953):
§2901.01 (murder)
§2901.02 (causing death by train wrecking)
§2901.03 (convict killing guard)
§2901.04 (killing police officer on duty)
§2901.09 (killing President or presidential successor)
§ 2901.10 (killing Governor or Lieutenant-Governor)
§2901.27 (kidnapping or maiming for extortion, if
victim is not released unharmed)
§2901.28 (killing a kidnapped person by designated
means)
O klahom a
Okla. Stat. Ann. (1958):
tit. 21, §707
§745
§801
§1115
(murder)
(kidnapping for ransom)
(armed robbery)
(rape)
llg
Pennsylvania
Purdon’s Pa. St at. Ann. (1962):
tit. 18, §4701
§4710.2
§3765
§4919
(murder)
(assault with intent to kill by life term
prisoner)
(lynching)
(causing death by train wrecking)
Rhode Island
R. I. Gen. Laws (1970):
§ 11-23-2 (murder by life-sentenced prisoner)
South Carolina
S. C. Code Ann. (1962):
§ 16-52 (murder)
§16-54 (killing by stabbing)
§16-57 (lynching)
§ 16-63 (killing in duel)
§§16-72,-80 (rape; assault with attempt to rape;
carnal knowledge)
§ 16-91 (kidnapping where victim is not released
alive before trial)
§ 16-92 (conspiracy to kidnap)
§ 17-553.1 (third conviction for crimes optionally
punishable by death)
§§44-353,-354 (giving information or aiding enemy
in time of war)
S o u th D ak o ta
S.D. Comp. Laws (1967):
§22-16-12 (murder)
§22-19-1 (kidnapping if victim is harmed)
12g
Tennessee
Tenn. Code Ann. (1955):
§39-2405 (murder)
§39-2603 (kidnapping for ransom)
§39-2803 (assault with deadly weapon while in dis
guise)
§39-3702 (rape)
§§39-3703 through 39-3705 (carnal knowledge)
§39-3901 (armed robbery)
Texas
Vernon’s Tex. Penal Code Ann. (1961):
§33 (instigation of a minor by a relative or spouse
to commit a capital crime)
§84 (treason)
§309 (perjury in capital case resulting in an execu
tion)
§ 1177(a) (kidnapping for ransom)
§ 1183 (carnal knowledge)
§1189 (rape)
§1257 (murder)
§ 1260(a) (lynching)
§1408 (armed robbery)
Utah
Utah Code Ann. (1953):
§76-7-12 (armed assault by life term prisoner)
§76-16-2 (killing in duel)
§76-30-4 (murder)
§76-35-1 (kidnapping for ransom)
Vermont
Vt. Stat. Ann. (1970 Cum. supp.):
tit. 13, §2303 (second first degree murder offense; murder
of prison guard or police officer)
13g
Virginia
Va. Ann. Code(Repl. vol. 1960):
§18.1-16 (attempt to commit rape)
§18.1-22 (murder)
§18.1-38 (kidnapping for ransom or immoral purposes)
§18.1-44 (rape and carnal knowledge)
§18.1-75 (arson)
§18.1-86 (burglary)
§18.1-90 (armed bank robbery)
§18.1-91 (aggravated robbery)
§18.1-259 (machine gun used in perpetration of crime
of violence)
§ 18.1-418 (treason)
Washington
Wash. Rev. Code Ann. (1961):
§9.48.030 (causing death by train wrecking)
§9.48.030 (murder)
§9.52.010 (kidnapping for ransom)
§9.82.010 (treason)
Wyoming
Wyo. Stat. Ann. (1957):
§6-54 (murder)
§6-56 (killing in duel)
§6-59 (kidnapping for ransom or robbery if victim
is harmed)
§6-61 (child stealing)
§37-248 (causing death by train wrecking or board
ing train with intent to commit a felony)
Ih
APPENDIX H
THE EVIDENCE CONCERNING THE DETER
RENT EFFICACY OF THE DEATH PENALTY
This appendix describes the findings of the numerous
studies conducted during recent decades concerning the
deterrent efficacy of capital punishment. Part A sets forth
the conclusions of social scientists who have tested statis
tically the hypothesis that capital punishment is superior to
imprisonment as a deterrent of the crime of murder. Part
B evaluates the anecdotal impressions of law enforcement
officers on the same subject.
A. The Statistical Evidence
It is no exaggeration to report that scientific studies of
the deterrent effect of capital punishment speak with rare
and compelling unanimity. Recent studies are presaged by
the conclusions of George B. Void in 1932 that “the death
penalty does not, and can not, prevent crime, either specifi
cally in regard to murder or more generally in regard to
other kinds of crime,” lh and of Robert H. Dann in 1935
that “the homicide rate can never be materially affected,
one way or the other, by the present program of execu
tions . . . ,”2h
A number of post-War studies were based on the data
collected during the intensive efforts of the British Royal
Commission on Capital Punishment, between 1949 and
1953,3h That data led all informed students of the subject
to conclude: “ [I]t is not true to say that capital punish-
lhVoid. Can the Death Penalty Prevent Crime?, 12 PRISON
JOURNAL (No. 4) 4, 9 (1932).
211 Dann, The Deterrent Effect o f Capital Punishment, FRIENDS
SOCIAL SERVICE SERIES, Bulletin No. 29 (Third Month) 19 (1935).
3hSee ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949-
1953, REPORT (H.M.S.O. 1953) Cmd. 8932 [hereafter cited as
ROYAL COMMISSION].
2h
merit is in practice a greater deterrent than other forms of
severe punishment.”4h The conclusion of the Commission
itself, confined as it was by its limited terms of reference,
was: “It is . . . important . . . not to base a penal policy in
relation to murder on exaggerated estimates of the uniquely
deterrent force of the death penalty.’’511 And the Commis
sion carefully noted that “it is impossible to arrive confi
dently at any firm conclusion about the deterrent effect of
the death penalty, or indeed of any form of punish
ment.” 611 But this caution and its technically delimited
conclusion does not obscure the Commission’s assessment
of the statistical evidence before it:
“ . . . We agree with Professor Sellin that the only
conclusion which can be drawn from the figures is
that there is no clear evidence of any influence of
the death penalty on the homicide rates of these
States [principally neighboring abolitionist and reten-
tionist jurisdictions of the United States, systemati
cally studied by Sellin] and that, ‘whether the death
penalty is used or not and whether executions are
frequent or not, both death-penalty States and abo
lition States show rates which suggest that these
rates are conditioned by other factors than the
death penalty.’ ”
“ . . . The general conclusion which we have
reached is that there is no clear evidence in any of
the figures we have examined that the abolition of
capital punishment has led to an increase in the
homicide rate, or that its reintroduction has led to
a fall.”711
4hGARDINER, CAPITAL PUNISHMENT AS A DETERRENT:
AND THE ALTERNATIVE (1956), 31. Accord: GOWERS, A LIFE
FOR A LIFE (1956), 138; Hart, Murder and the Principles o f Punish
ment: England and the United States, 52 NW. U. L. REV. 433, 458
(1957). See also KOESTLER, REFLECTIONS ON HANGING (Amer.
ed. 1957), 59.
shROYAL COMMISSION 24.
6hIbid.
lhId„ at 23.
3h
The conclusion of the more recent study made under the
auspices of the European Committee on Crime Problems of
the Council of Europe is in full accord with the Royal
Commission’s findings. “Even a cursory examination of the
statistics on the subject for [Council of Europe] countries
shows that they give no positive indication regarding the
value of capital punishment as a deterrent.” 8h
Contemporary criminologists who have studied deterrence
and the death penalty in the United States speak with one
voice in summarizing their conclusions from the evidence:
Capital punishment has had no appreciable influ
ence on the murder rate in the states which have
been investigated.911
Capital punishment does not act as an effective
deterrent to murder.I0h
Capital punishment is ineffective in deterring
murder.uh
The use or non-use of capital punishment has no
effect on the number of murders committed within
a state or the nation.12h
The evidence indicates that [the death penalty
for murder] has no discernible effects in the United
States.1311
8hANCEL, THE DEATH PENALTY IN EUROPEAN COUNTRIES
(Council of Europe, European Committee on Crime Problems, 1962),
4546.
9hAndenaes, Does Punishment Deter Crime? II CRIMINAL LAW
QUARTERLY 76, 83 (1968).
10hChambliss, Types o f Deviance and the Effectiveness o f Legal
Sanctions, [1967] WISCONSIN L. REV. 703, 706 (1967).
ilhDoleschal, The Deterrent Effect o f Legal Punishment: A Review
o f Literature, 1 INFORMATION REVIEW ON CRIME & DELIN
QUENCY (No. 7) 7 (1969).
12hLUNDEN, THE DEATH PENALTY (1960), § 22.
13h Reckless, The Use o f the Death Penalty-A Factual Statement,
15 CRIME & DELINQUENCY 43, 52 (1969).
4h
Statistical findings and case studies converge to
disprove the claim that the death penalty has any
special deterrent value.14h
The death penalty, as we use it, exercises no
influence on the extent or fluctuating rates of capi
tal crimes.15h
The studies [of capital punishment] suggest no
discernible relationship between the presence of the
death penalty and homicide rates.16h
The capital punishment controversy has produced
the most reliable information on the general deter
rent effect of a criminal sanction. It now seems
established and accepted that . . . the death penalty
makes no difference to the homicide rate.!7h
These general conclusions rest upon the following results
of statistical inquiries into specific aspects of the deterrence
question:
Death penalty jurisdictions do not have a lower
rate of criminal homicide than abolition jurisdic
tions.18h
Given two states otherwise similar in factors that
might affect homicide rates, and differing in that
one employs capital punishment while the other
14hSchuessler, The Deterrent Influence o f the Death Penalty, 284
ANNALS 54, 62 (1952).
15h SELL1N, THE DEATH PENALTY (1959), published as an
appendix to AMERICAN LAW INSTITUTE, MODEL PENAL CODE,
Tent. Draft No. 9 (May 8,1959) [hereafter cited as SELLIN (1959)],
63.
16hZIMRING, PERSPECTIVES ON DETERRENCE (Nat’l Institute
of Mental Health, January 1971), 17.
17hMorris and Zimring, Deterrence and Corrections, 381 ANNALS
137,143 (1969).
18hSchuessler, supra note 14h, at 57; Reckless, supra note 13h at
Table 9.
5h
does not, the abolition state does not show any
consistently higher rate of criminal homicide.1911
In jurisdictions which abolish the death penalty,
abolition has no influence on the rate of criminal
homicide.2011
Jurisdictions which reintroduce the death penalty
after having abolished it do not show a decreased
rate of criminal homicide after reintroduction.21 h
Police officers on duty do not suffer a higher rate
of criminal assault and homicide in abolition juris
dictions than in death penalty jurisdictions.2211
Prisoners and prison personnel do not suffer a
higher rate of criminal assault and homicide from
life-term prisoners in abolition jurisdictions than in
death penalty jurisdictions.2311
19hSELLIN (1959) 23-34; SELLIN, CAPITAL PUNISHMENT (1967)
[hereafter cited as SELLIN (1967)], 135-138.
20hSELLIN (1959) 34-38; SELLIN (1967) 122-124; Samuelson,
Why Was Capital Punishment Restored in Delaware, 60 J. CRIM. L.,
CRIM. & POL. SCI. 148,150-151 (1969).
2UlSELLIN (1959) 34-38; SELLIN (1967) 122-124; Samuelson,
note 20h supra, at 150-151.
22hSellin, Does the Death Penalty Protect Municipal Police, in
BEDAU, THE DEATH PENALTY IN AMERICA (Rev. ed. 1967) [here
after cited as BEDAU], 284-301; Campion, Does the Death Penalty
Protect the State Police, in BEDAU 301-315.
23h MASSACHUSETTS SPECIAL COMMISSION ESTABLISHED
FOR THE PURPOSE OF INVESTIGATING AND STUDYING THE
ABOLITION OF THE DEATH PENALTY IN CAPITAL CASES,
REPORT AND RECOMMENDATIONS, 21-22 (1958); SELLIN (1967)
154-160; Selim, Homicides and Assaults in American Prisons, 1964, 31
ACTA CRIMINOLOGIAE ET MEDICINAL LEGALIS JAPONICA
139 (1965).
6h
B. Impressions of Law Enforcement Officers
Law enforcement officers frequently dismiss the statisti
cal evidence set forth above because they say that it fails to
prove that the threat of capital punishment never deterred
a murder which would have occurred if imprisonment had
been the only risk run by the murderer.2411 Police spokes
men invariably base their own belief in the deterrent effi
cacy of the death penalty entirely upon impressionistic
bases,25h and upon the quoted statements of criminals
(made to police officers following their arrests) claiming
that they carried toy guns in robberies out of fear of the
death penalty.2611 It would be improper, certainly, to reject
the intuitions of the police out of hand, or to assert cate
gorically that the fear of death never has dissuaded any
putative murderer from his crime. However, several circum
stances render these police opinions gravely suspect as a
foundation for the present-day American use of death as a
penalty for first-degree murder.
First, correctional officials, whose knowledge of criminal
offenders is at least as informed as that of the police, gen
erally do not believe that the death penalty is a superior
deterrent to imprisonment.2711 They and other knowledge
able observers agree that a very large proportion of the
crimes which are defined by law as first-degree murders and
24hE.g., Hoover, Statements in Favor o f the Death Penalty, in
BEDAU 130; Allen, Capital Punishment: Your Protection and Mine,
in BEDAU 135.
25hSee ROYAL COMMISSION 18-24; CANADA, JOINT COM
MITTEE OF THE SENATE AND HOUSE OF COMMONS ON
CAPITAL AND CORPORAL PUNISHMENT AND LOTTERIES, RE
PORT (1956), paras. 29-33, 43-50; NEW JERSEY, COMMISSION TO
STUDY CAPITAL PUNISHMENT, REPORT (1964) 8-9.
26hE.g., Desky, Should Capital Punishment be Abolished in Cali
fornia, 39 THE COMMONWEALTH 19, 23 (November 11, 1963).
27hSee note 116, para. (4) to the body of this brief.
7h
made punishable by death are not the product of rational
choice which the threat of the extreme penalty can
deter.28h Second, when a murder is the product of rational
choice in the sense that it can be affected by the threat of
punishment, the threat of death punishment is so attenu
ated by its uncertainty as to become minimally signifi
cant.29h Third, the number of “toy gun” incidents and
similar cases in which criminals assert that their behavior
was affected by the threat of the death penalty remains
uncounted, but (even if the reports are reliable)3011 these
cases must be few, since they register no impact upon any
known comparison of homicide rates in abolition and
death-penalty jurisdictions or eras. See Part A, supra. Of
course, it may be that such cases are offset by the equally
unknown number of instances of the clinically documented
converse phenomenon of “suicide-by-homicide” : that is,
the cases of killers who kill in order to force society to kill
28hLAWES, LIFE AND DEATH IN SING SING (1928), 144-145;
Testimony of Clinton T. Duffy, in Hearings Before the Subcommittee
on Criminal Laws and Procedures o f the Senate Committee on the
Judiciary, 90th Cong., 2d Sess., on S. 1760, To Abolish the Death
Penalty (March 20-21 and July 2, 1968) (GP.O. 1970) [hereafter cited
as Hearings], 23; DUFFY & HIRSHBERG, 88 MEN AND TWO
WOMEN (1962); 256, see WEIHOFEN, THE URGE TO PUNISH (1956);
150-152; PLAYFAIR & SINGTON, THE OFFENDERS (1957), 228;
Statement of Attorney General Ramsey Clark, in Hearings, at 92;
Ancel, The Problem o f the Death Penalty, in SELLIN (1967), 3, 17,
Sellin, The Inevitable End o f Capital Punishment, in SELLIN (1967),
239, 249-250; McNamara, Statement Against Capital Punishment, in
BEDAU 182,185-186; Schuessler, The Deterrent Influence o f the Death
Penalty, 284 ANNALS 54, 61-62 (1952); Caldwell, Why Is The Death
Penalty Retained? 284 ANNALS 45, 51 (1952)
29hSee WEIHOFEN, THE URGE TO PUNISH (1956), 159-164;
BEDAU 270.
30hThey seem unlikely to be very reliable, since an arrested man
will understandably tell a policeman what he thinks the policeman
wants to hear. See Testimony of Clinton T. Duffy, in Hearings, at 23.
8h
them in return.3111 In any event, one thing seems plain.
The police impressions and anecdotes do not point to any
factor, unaccounted for by the statistical studies, which
would explain why the studies consistently fail to reflect
appreciable deterrent effects of the death penalty if they
exist.
31hWest, Medicine and Capital Punishment, in Hearings, at 124,
126-127; SELLIN (1959) 65-69; BEDAU 264 n.7; Gold, Suicide,
Homicide, and the Socialization o f Aggression, 63 AM. J. SOCI
OLOGY 651 (1958); Neiberg, Murder and Suicide, 4 ARCH. CRIM.
PSYCHODYNAMICS 253 (1961); OHIO LEGISLATIVE SERVICE
COMMISSION, STAFF RESEARCH REPORT No. 46, CAPITAL
PUNISHMENT (1961), 49.
1
A P P E N D I X 1
DESCRIPTION OF AMERICAN METHODS
OF EXECUTION
L e t h a l G a s
72 0 . T h e l e th a l c h a m b e r is v e ry e l a b o r a t e in c o m p a r i s o n w i th th e a p p a r a
tu s n e e d e d f o r o t h e r m e t h o d s o f e x e c u t io n . I t is e x p e n s iv e to i n s t a l l a n d
r e q u i r e s a c o m p l i c a t e d se r ie s o f o p e r a t i o n s to p r o d u c e th e g a s a n d to d is p o s e
o f it a f t e r w a r d s . T h e t e c h n i q u e a p p e a r s to b e s u b s t a n t i a l l y th e s a m e in all
th e S ta te s t h a t e m p l o y th e g a s c h a m b e r , a l t h o u g h th e c o m p l e x i t y o f th e
a p p a r a t u s v a r ie s f r o m S ta t e to S ta te . T h e f o l lo w in g d e s c r i p t i o n o f the
m e th o d a n d e q u i p m e n t e m p l o y e d in N o r t h C a r o l i n a 1 is ty p ic a l .
“ A c h a m b e r o r r o o m , w h e n th e d o o r s a r e c lo s e d , is h e r m e t i c a l l y se a le d
to p r e v e n t l e a k a g e o f c y a n id e g a s . T h i s r o o m c o n t a i n s t w o o b s e r v a t io n
w in d o w s . O n e w i n d o w is f o r o b s e r v a t i o n b y t h e r e q u i r e d w i tn e s s e s a n d
th e o t h e r f o r o ffic ia ls r e q u i r e d t o b e p r e s e n t a t t h e e x e c u t io n . T h e d o o r s
l e a d in g to th e c h a m b e r a r e c o n n e c t e d w i th th e e l e c t r i c a l ly c o n t r o l l e d p an e l .
T h i s is th e s a f e ty m e a s u r e , a n d u n le s s th e d o o r s a r e p r o p e r l y c lo s e d the
t r a p , a l lo w in g th e c y a n id e p e l le t s to d r o p in to th e a c id , c a n n o t b e th ro w n .
I n th i s r o o m is a w o o d e n c h a i r w i th l e a t h e r s t r a p s f o r s t r a p p i n g t h e p r i s o n e r ’s
a r m s , leg s a n d a c r o s s th e a b d o m e n to th e c h a i r . I n th e s e a t o f th i s c h a i r
is a t r a p d o o r e le c t r i c a l ly c o n t r o l l e d w h i c h r e le a s e s t h e c y a n id e p e l le t s .
** P r i o r to th e e x e c u t io n a l l e q u i p m e n t is d o u b l e c h e c k e d a n d a p o u n d
o f s o d iu m c y a n i d e p e l le t s is p l a c e d in th e t r a p in th e s e a t o f t h e ch a ir .
T w e n t y m in u t e s b e f o r e e x e c u t io n t h r e e p in t s o f U .S .P . s u l p h u r i c a c id a n d
s ix p in ts o f w a t e r a r e c a r e f u l ly m ix e d in a l e a d c o n t a i n e r . T h e c o n t a in e r
is c o v e r e d w i th a l id o f s im i l a r m a t e r i a l a n d is p l a c e d u n d e r t h e c h a i r in a
p o s i t io n to r e c e iv e t h e p e l le t s w h e n d r o p p e d .
M T h e r e a r e tw o c o p p e r . p ip e s a d j a c e n t to th e c h a i r w h i c h l e a d u n d e r the
f lo o r o u t s i d e th e p h y s i c i a n ’s s t a n d . A t th e e n d o f th e p i p e in t h e c h a m b e r
is a r u b b e r h o s e w h ic h is to b e c o n n e c t e d to th e h e a d o f a B o w le s s t e th o s
c o p e s t r a p p e d t o th e p r i s o n e r ’s c h e s t . A t t a c h e d to th e o t h e r e n d o f the
c o p p e r p ip e s a t th e p h y s i c i a n ’s s t a n d a r e th e e a r p i e c e s o f a s t e t h o s c o p e fo r
d e t e r m in in g th e t im e o f t h e p r i s o n e r ’s d e a t h .
** T h e p r i s o n e r h a s b e e n p r e v io u s ly p r e p a r e d in h i s ce l l in th i s m a n n e r ;
c lo th in g r e m o v e d , w i th th e e x c e p t io n o f s h o r t s ; th e h e a d o f a B o w les
s te th o s c o p e s t r a p p e d o v e r th e a p e x o f t h e h e a r t w i th b r o a d s t r i p s of
ad h e s iv e .
“ A f t e r th e a b o v e p r e p a r a t i o n s th e p r i s o n e r w a lk s to t h e e x e c u t io n c h a m
b e r p r e c e d e d b y th e C h a p l a i n a n d f o l lo w e d b y th e W a r d e n o r o n e o f his
D e p u t i e s . H e is th e n s t r a p p e d in th e c h a i r u n d e r th e s u p e r v i s io n o f the
W a r d e n o r D e p u t y ; a l e a t h e r m a s k a p p l i e d to th e f a c e ; th e s t e th o s c o p e h ead
c o n n e c t e d w i th a f o r e m e n t io n e d tu b e ; th e C h a p l a i n ’s p r a y e r s c o m p l e t e d and
2i
a l l offic ia ls l e a v e th e c h a m b e r . T h e la s t p e r s o n le a v in g th e c h a m b e r q u ic k ly
r e m o v e s th e c o v e r f r o m th e a c id c o n t a in e r . T h e d o o r s t o th e c h a m b e r an d
a n t e - r o o m a r e q u ic k ly c lo s e d a n d th e .pelle ts d r o p p e d in th e a c id b y the
e l e c t r i c a l ly c o n t r o l l e d s w i tc h .
“ A f t e r th e p r i s o n e r is p r o n o u n c e d d e a d b y t h e a t t e n d i n g p h y s ic ia n ,
a m m o n i a g a s is f o r c e d in to t h e c h a m b e r u n t i l i n d i c a t o r s w i th in th e c h a m b e r
s h o w t h a t a l l c y a n i d e g a s h a s b e e n n e u t r a l i s e d . A m m o n i a g a s is t h e n re-
. m o v e d b y a s p e c ia l ly c o n s t r u c t e d e x h a u s t f a n . ”
721. T h e l e n g th o f t im e t a k e n b y th is m e t h o d o f e x e c u t io n is i l l u s t r a t e d
by the fo l lo w in g t im e ta b le o f a n e x e c u t io n in N e v a d a : 1
G u a r d s e n t e r p r i s o n e r ’s cell
P r i s o n e r e n t e r s g a s c h a m b e r
S t r a p p e d in c h a i r • . . .
D o o r c lo s e d ....................
G a s s t r ik e s f a c e
A p p a r e n t l y u n c o n s c io u s
C e r t a in l y u n c o n s c io u s . . .
R e s p i r a t i o n s to p p e d
H e a r t s l o p p e d b e a t in g . . .
S u c t io n f a n s t a r t e d
B o d y r e m o v e d ...................
722. W h e n th is m e t h o d w a s f i rs t e m p lo y e d , m e d ic a l o p i n i o n w a s n o t
u n an im o u s a b o u t it ; t h e r e w e r e s o m e w h o t h o u g h t t h a t t h e g a s h a d a
suffocating effec t w h ic h w o u ld c a u s e a c u te d i s t r e s s , if n o t a c tu a l p a i n , b e f o r e
She p r i s o n e r b e c a m e u n c o n s c io u s . I t s e e m s to b e n o w g e n e r a l ly a g r e e d t h a t
u n consc iousness e n s u e s v e r y r a p id ly .
j . j u a . u f i a
5.58
5.59: 30
6.01: 30
6.02: 30
6.02: 35
6.03
6.03
6.04
6.10
6.40
ROYAL COMMISSION ON CAPITAL PUNISH
MENT 1949-1953, REPORT (H.M.S.O. 1953)
[Cmd. 8932] [hereafter cited as ROYAL COM
MISSION], 252-253.
On the morning of an execution the executioner got two
pounds of cyanide from the prison armory and took it to a
mix room off. the gas chamber. Regardless of whether there
was to be one execution or two, he carefully measured out
into little gauze bags one pound of cyanide for each chair.
These bags were placed on hooks directly under the chairs,
hanging down toward the wells a few inches below.
3i
About ten minutes before the prisoner was to be brought
in, the executioner put a gallon of distilled water into each
of two jars, then added sulphuric acid, letting it stand in the
mix room until it was time for the actual execution.' Tubes
ran from these jars into the wells beneath the chairs. After
the chamber was tested for leaks, the prisoner, with a stetho
scope strapped to his chest, was taken from the holding cell.
When he was seated in one of the chairs, his hands and feet
were strapped and the stethoscope was hitched to a tube
connected with a valve outside the chamber, where the at
tending physician could listen to the man’s heart beats and
report the time of death.
When the door was sealed with the prisoner inside, the
executioner pulled a lever controlling a suction fan that drew
some of the air out of the chamber. He then signaled an
assistant in the mix room, who opened the valves releasing .
the sulphuric acid from the jars into the wells beneath the
chairs. After the valves were closed, the executioner informed
the warden-, standing beside him outside a window to the
left of the condemned man, that everything was in readiness.
At the warden’s nod, the executioner pulled another lever
which lowered the cyanide into the sulphuric acid, causing
gas fumes to rise. The whole operation took less than two
minutes.
In order to make death as quick and painless as possible,
the condemned man was instructed to take deep breaths at
the warden’s signal. This would be a few seconds after the
cyanide and sulphuric acid came together. Without the in
halations, loss of consciousness would take longer and chok
ing might result.
4i
DUFFY & HIRSHBERG, 88 MEN &
2 WOMEN (1962), 102-103.
In administering death by lethal gas, which has been most of my
experience, and hanging, from 89 personal experiences, I made the
following observations:
With the exception of the death watch (which is used in all methods)
there are no last hours of preparation of the body of the condemned.
Tho prisoner is kept in a holding cell in a separate room for his last
few days—usually not more than 20 feet from the lethal gas chamber.
He does not see the gas chamber until he enters it. A few moments
before the scheduled hour a chaplain of his choice visits with him. He
is dressed in blue jeans and a white shirt. The reason for that is no
other garments that might hold or pocket gas when the body is re
moved. lie is accompanied tho 10 or 12 steps by two officers, quickly
strapped in the metal chair, the stethoscope applied, and the door
sealed. Tho warden gives The executioner tho signal and, out of sight
©f the witnesses, the executioner presses the lever that allows the
cyanide gas eggs to mix with tho distilled water and sulphuric acid.
In a matter of seconds the prisoner is unconscious. At first there is ex
treme evidence of horror, pain, strangling. The eyes pop, they turn
purple, they drool. It is a horrible sight. Witnesses faint. I t finally
is ns though lie has gone to sleep. The body, however, is not disfigured
or mutilated in any way.
TESTIMONY OF CLINTON T. DUFFY,
in Hearings Before the Subcommittee on
Criminal Laws and Procedures o f the
Senate Committee on the Judiciary, 90th
Cong., 2d Sess., on S. 1760, To Abolish
the Death Penalty (March 20-21 and July
2, 1968) (G.P.O. 1970) [hereafter cited as
Hearings], 21.
T h e n e x t m o rn in g , a F rid ay , I w e n t in to th e H o ld in g
C e ll a rea a b o u t e ig h t-th irty . T h e g u a rd sa id L eanderess had
s le p t fo r on ly fifteen m in u tes , a ro u n d six o ’clock. I offered
to re a d fro m th e B ib le ; h e ap p ea red to lis ten . I re a d from
th e Psalm s, a n d p a rts o f tw o hym ns: “ R o ck o f A ges” and
" A b id e w ith M e.” L eanderess h e ld u p h is han d s, pa lm s ou t,
in a g estu re fo r m e to stop . H e h ad n o t p a id any no ticeab le
5 i
attention at any time, had continued pacing around his
tiny cell.
He still had about an hour to live. I sat down outside his
cell door. The guards talked about retirement, and whether
the golf course would be too wet the next morning. At
nine-fifty, Associate Warden Rigg and the doctors came in.
I told Leanderess to say a prayer to himself, if he did not
care to have me pray, and to relax into God’s care. He did
not seem to hear me. When the doctors started to approach
his cell, he made a throaty, gutteral growling sound. Fran
tically, at random, he picked up some of the old legal papers
on his table and began passing them through the bars to the
associate warden, as if they were appeals or writs.
A guard unlocked his cell. He gripped the bars with both
hands and began a long, shrieking cry. It was a bone chilling
wordless cry. The guards grabbed him, wrested him violently
away from the bars. The old shirt and trousers were stripped
off. His flailing arms and legs were forced into the new
white shirt and fresh blue denims. The guards needed all
their strength to hold him while the doctor taped the end
of the stethoscope in place.
The deep-throated cry, alternately moaning and shriek
ing, continued. Leanderess had to be carried to the gas
chamber, fighting, writhing all the way. As the witnesses
watched in horror, the guards stuffed him into a chair. One
guard threw his weight against the struggling little Negro
while the other jerked the straps tight. They backed out,
slammed the door on him.
Leanderess didn’t stop screaming or struggling. Associate
Warden Rigg was about to signal for the dropping of the
gas pellets when we all saw Riley’s small hands break free
from the straps. He pulled at the other buckles, was about
to free himself.
The Associate Warden withheld his signal. San Quentin
bad never executed a man ranging wildly around the gas
chamber. He ordered the guards to go in again and restrap
6i
the frenzied man. One of the guards said later he had to
cinch the straps down so tightly the second time that he "was
ashamed of himself.”
Again the door was closed. Again Leanderess managed to
free his small, thin-wristed right hand from the straps. Riggs
gave the order to drop the pellets. W orking furiously, Lean
deress freed his left hand. T he chest strap came off next. Still
shrieking and moaning, he was working on the waist strap
when the gas h it him. He put both hands over his face to
hold it away. T hen his hands fell, his head arched back. His
eyes remained open. His heart beat continued to register for
two minutes, but his shrieking stopped and his head slowly
drooped.
E S H E L M A N , D E A T H R O W C H A P L A I N
( 1 9 6 2 ) , 1 6 0 - 1 6 1 .
Electrocution
111. D u r i n g o u r v is i t to A m e r i c a w e in s p e c t e d th e e l e c t r i c c h a i r s a t S in g
Sing P r i s o n , N e w Y o r k , a n d th e D i s t r i c t o f C o l u m b i a J a i l , W a s h i n g t o n , a n d
we r e c e iv e d e v i d e n c e a b o u t t h e u s e o f t h e c h a i r i n o t h e r S ta te s . I h e
fo l lo w in g a c c o u n t o f t in s m e t h o d o f e x e c u t io n is b a s e d p r i m a r i l y o n th e
in f o rm a t io n o b t a i n e d in W a s h i n g t o n , w h e r e th e p r o c e d u r e is a s fo l lo w s .
T h e e x e c u t io n t a k e s p la c e a t 10 a .m . • A t m i d n i g h t o n The p r e c e d i n g
s ig h t th e c o n d e m n e d m a n is t a k e n f r o m th e c o n d e m n e d c e l l b l o c k to a
cell a d j o i n i n g th e e l e c t r o c u t io n c h a m b e r . A b o u t 5 .3 0 a .m . th e t o p o f
his h e a d a n d th e c a l f o f o n e le g a r e s h a v e d to a f f o rd d i r e c t c o n t a c t w i th
the e l e c t ro d e s . ( T h e p r i s o n e r is u s u a l ly h a n d c u f f e d d u r i n g th i s o p e r a t i o n
to p r e v e n t h i m f r o m se iz in g th e r a z o r . ) A t 7 .1 5 a . m . th e d e a t h w a r r a n t
is r e a d to h im a n d a b o u t 10 o ’c lo c k h e is t a k e n to th e e l e c t r o c u t io n c h a m b e r .
F ive w i tn e s s e s a r e p r e s e n t ( in c lu d in g r e p r e s e n t a t i v e s o f t h e P re s s ) a n d tw o
d o c to rs— t h e p r i s o n m e d ic a l o ff ice r a n d th e c i ty c o r o n e r . T h e w i tn e s s e s
w a tch th e e x e c u t io n t h r o u g h a g r i l le o r d a r k g la s s a n d c a n n o t b e s e e n
by th e p r i s o n e r . ’ T h r e e officers s t r a p t h e c o n d e m n e d m a n to th e c h a i r ,
tying h im a r o u n d th e w a is t , legs a n d w r i s t s . A m a s k is p l a c e d o v e r h is
face a n d th e e l e c t r o d e s a r e a t t a c h e d to h is h e a d a n d legs. A s s o o n a s t h i s
o p e ra t io n is c o m p l e t e d ( a b o u t tw o m in u t e s a f t e r h e h a s le f t t h e ce l l ) th e
signal is g iv e n a n d th e s w i tc h is p u l l e d b y th e e l e c t r i c ia n , th e c u r r e n t
is le f t o n f o r tw o m in u t e s , d u r i n g w h ic h t h e r e is a l t e r n a t i o n o f tw o o r m o r e
d ifferent v o l ta g e s . W h e n it is s w i tc h e d off, th e b o d y s l u m p s f o r w a r d m
the c h a i r . T h e p r i s o n e r d o e s n o t m a k e a n y s o u n d w h e n th e c u r r e n t is
7i
tu rn ed o n , a n d u n c o n s c io u s n e s s is a p p a r e n t l y i n s t a n t a n e o u s . H e is n o t ,
how ever, p r o n o u n c e d d e a d f o r s o m e m in u t e s a f t e r th e c u r r e n t is d i s c o n n e c te d .
T h e leg is s o m e t im e s s l ig h t ly b u r n e d , b u t th e b o d y is n o t o th e r w i s e m a r k e d
or m u t i l a t e d . So f a r a s is k n o w n n o sp e c ia l d i f f icu l t ie s a r i s e in th e
ex ecu t io n o f w o m e n ; t h e r e h a d b e e n n o c a s e in W a s h in g t o n .
71 8 . I n W a s h in g t o n th e e le c t r i c c h a i r is a p e r m a n e n t f ix tu r e i n a s p e c ia l -
c h a m b e r . I n s o m e S ta te s m o v a b l e c h a i r s a r e u s e d w h ic h c a n -be i n s t a l l e d b y
any c o m p e t e n t e le c t r i c ia n . N o ca se o f m i s h a p w a s r e c o r d e d in W a s h i n g t o n ,
bu t i t s e em s th a t in s o m e o t h e r S ta te s th e r e h a v e b e e n o c c a s io n s w h e n
the c u r r e n t f a i l e d to r e a c h th e c h a i r w h e n th e s w i tc h w a s e n g a g e d . S o m e
States in s ta l l a n e m e r g e n c y g e n e r a t o r in o r d e r t h a t a n e x e c u t io n m a y n o t
be d e l a y e d b y a f a i l u r e o f th e c o m m e r c i a l p o w e r .
ROYAL COMMISSION ?51.
The technique now used in execution by electricity
has been gradually evolved by leading electrical and
medical experts working in collaboration with the prison
authorities. It has been found by exhaustive research
that a current of one ampere passing through the brain
or other vital organ of the body will in most cases pro
duce death if allowed to act for only a short period of
time, and it is therefore evident that it is the amperage
(or quantity of electrical current flowing in the circuit)
together with the energy dissipated in the body which
actually destroys life. On the other hand, the element
of voltage enters, insomuch as the resisting power of the
human body is very high and it requires a voltage com
paratively large or small, depending entirely upon the
resistance and contacts, to force this amount of current
through a circuit, in. which the body, with its contacts,
constitutes the resistance.
The condemmed prisoner undergoing electrocution at
Sing Sing Prison is given one shock of single phase 60
8i
cycle alternating current at an average starting potential
of approximately 2,000 volts. This voltage is imme
diately reduced at the end of three seconds to the neigh
bourhood of 500 volts where it is held for an additional
period of 57 seconds and is again built up instantly to
the original starting voltage of 2,000. The current is
then gradually reduced again to 500 volts, where it is
held for another 57 seconds and is again rapidly built
up to the original voltage of 2,000 just before the switch
is finally opened by the executioner after a total appli
cation period of two minutes.
This initial electromotive force, with the moistened
contacts used, sends a starting current of from 8 to 10
amperes through the human body, which causes in
stantaneous death and unconsciousness by its paralysis
and destruction to the brain. The current is then cut
down under the lower voltages to from 3 to 4 amperes
in order to avoid burning the body and at the same time
to hold paralysis of the heart, respiratory organs, and
brain at a standstill for the remaining period of execu
tion. This insures complete destruction of all life.
If temperatures are taken during and immediately
after an application of electricity it will be found that
the electrodes making contact may reach a temperature
high enough to melt copper (1,940 degrees Fahrenheit)
and that the average body temperature will be in the
neighbourhood of 140 degrees Fahrenheit, which, if this
temperature rise alone were considered, would show that
it is impossible to restore life or reinstigate blood circula
tion under such abnormally high bodily temperatures.
9i
It will also be found that under such an application of
electricity the temperature in the brain itself approaches
the boiling point of water, namely 212 degrees Fahren
heit.
The force of the death-dealing blow the condemned
prisoner receives is more easily understood when it is
realized that this amount of electricity, transferred into
mechanical power, would be equivalent to 884,400 foot-
pounds per minute, or enough electrical energy to light
800 lights in the average home.
Under correct application approximately one third of
the total electrical energy shot into the human body is
dissipated in the brain, and scientific analysis proves
that unconsciousness takes place in less than a 240th part
of a second, which is far more rapid than the speed
with which the nervous system of the human body can
record' the sensation of pain. This insures a death that
is both instantaneous and painless.
LAWES, LIFE AND DEATH IN SING SING
(1928), 187-189.
Although I have scon several electric chairs, I have never wit
nessed an electrocution. Wardens and other noted penologists have
told me that it is about as gruesome a procedure as hanging. The body
has to bo prepared beforehand for the fastening, and one of the pants
legs split in order that an electric plate can be placed against the leg.
When the executioner throws the switch that sends the electric cur
rent through the body, the prisoner cringes from torture, his flesh swells
and his skin stretches to a point of breaking. He defecates, he urinates,
his tongue swells and his eyes pop out. In some cases I have been
told the eyeballs rest on the checks of the condemned. His flesh is
burned and smells of cooked meat. When the autopsy is performed the
liver is so hot. that doctors have said that it cannot be touched by the
human hand.
Testimony of Clinton T. Duffy, in Hearings, at 20.
I
Sumap.s r"
T. '■ T v
SEP 9 iQ
IN THE p •
Supreme Court of the United States
No. 69-5003
WILLIAM HENRY FURMAN, Petitioner,
v.
GEORGIA, Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF GEORGIA
BRIEF FOR PETITIONER
J ack Greenberg
J ames M. Nabrit, III
J ack Himmelstein
Elizabeth B. DuBois
J effry A. Mintz
Elaine R. J ones
10 Columbus Circle,
Suite 2030
New York, N.Y. 10019
B. Clarence Mayfield
910 West Broad Street
Savannah, Georgia 31401
Michael Meltsner
Columbia University Law School
435 West 116th Street
New York, New York 10027
Anthony G. Amsterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
(i)
INDEX
Page
OPINION BELOW ............ ............. ........................ .. ................ 1
JURISDICTION........................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED ............................................... 2
QUESTION PRESENTED ................................... 2
STATEMENT OF THE CASE ....................................................... 2
HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW ........................... .. . 10
SUMMARY OF ARGUMENT .................... ................... .. . 11
ARGUMENT:
I. The Death Penalty for Murder Violates Contempo
rary Standards of Decency in Punishment................. .. ] 1
II. Petitioner’s Sentence of Death Imposed Without
Adequate Inquiry Concerning His Manifestly Im
paired Mental Condition Violates the Eighth
Amendment ................... 12
CONCLUSION................................................................................ 20
APPENDIX A: STATUTORY PROVISIONS INVOLVED . . . . la
APPENDIX B: PSYCHIATRIC REPORTS ................................. lb
TABLE OF AUTHORITIES
Cases:
Caritativo v. California, 357 U.S. 549 (1958) ........................... 19
Crampton v. Ohio, reported sub nom. McGautha v. Califor-
Nia, 402 U.S. 183 (1971).................................................. 18
Ex parte Medley, 134 U.S. 160 (1890)........................................ 16
Musselwhite v. State, 215 Miss. 363, 60 So.2d 807 (1952) . . . 15
Nobles v. Georgia, 168 U.S. 398 (1 8 9 7 )..................................... 19
Pate v. Robinson, 383 U.S. 375 (1966) ............................... 18
Phyle v. Duffy, 334 U.S. 431 (1 9 4 8 ).................... .....................
Rogers v. State, 128 Ga. 67, 57 S.E. 227 (1 9 0 7 )...................... 16
Solesbee v. Balkcom, 339 U.S. 9 (1950).............................. 13, 14, 18
Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932) . . . 16
Witherspoon v. Illinois, 391 U.S. 510 (1968) ........................... 3
Constitutional and Statutory Provisions:
Eighth Amendment, U.S. Constitution ........................................2, 10,
11, 12, 18, 19, 20
Fourteenth Amendment, U.S. Constitution........................... 2, 10, 18
28 U.S.C. § 1257(3)....................................................... ................ 1
Ga. Code Ann. § 26-1001 .............................................................. 2, 6
Ga. Code Ann. § 26-1002 .............................................................. 2, 6
Ga. Code Ann. § 26-1005 .............................................................. 2, 7
Ga. Code Ann. § 26-1009 .............................................................. 2, 8
Ga. Code Ann. § 27-2512 .............................................................. 2 ,7
Ga. Code Ann. § 27-2602 .............................................................. 2, 18
Ga. Code Ann. § 27-2604 .............................................................. 2,18
Other Authorities:
4 BLACKSTONE, COMMENTARIES (1803) ........................... 13, 14
Bluestone & McGahee, Reaction to Extreme Stress:
Impending Death by Execution, 119 AM. J.
PSYCHIATRY 393 (1 9 6 2 )....................................................... 17
Brief for Petitioner, Aikens v. California, O.T. 1971, No.
68-5027 .............................................................. ................... 11, 12, 17
Camus, Reflections on the Guillotine, in CAMUS,
RESISTANCE, REBELLION AND DEATH (1961) ............ 16
CHITTY, CRIMINAL LAW (Earle ed. 1819)........................... ’. 13
COKE, THIRD INSTITUTE (1644) .......................................... 13, 14
Zifferstein, Crime and Punishment, 1 THE CENTER
MAGAZINE (No. 2) 84 (Center for the Study of
Democratic Institutions 1968) ............................................... 17
DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN (1962) . . . 17
DUFFY & JENNINGS, THE SAN QUENTIN
STORY (1950)........................................................................... 17
(in)
Ehrenzweig, A Psychoanalysis o f the Insanity Plea—Clue to
the Problem o f Criminal Responsibility and Insanity in
the Death Cell, 1 CRIM. L. BULL. (No. 9 3 (1965)
[cited as Ehrenzweig] ..........................................................14, 17, 19
ESHELMAN, DEATH ROW CHAPLAIN (1962) ...................... 17
Feltham, The Common Law and the Execution o f Insane
Criminals, 4 MELBOURNE L. REV. 434 (1964) . . . . . . . . 19-20
Gottlieb, Capital Punishment, 15 CRIME & DELINQUENCY
1 (1969) .................... ........... .............. ........................ .. 17
1 HALE, PLEAS OF THE CROWN (1678)................................ 13
1 HAWKINS, PLEAS OF THE CROWN (1716) ...................... 13
Hawles, Remarks on the Trial of Mr. Charles Bateman, 11
Howell State Trials 474 (1 8 1 6 ).......................................... 13, 14, 15
Hazard & Louisell, Death, the State, and the Insane:
Stay o f Execution, 9 U.C.L.A. L. REV. 381 (1962)
[cited as Death, the State, and the Insane] ................ . . . 15, 19
LAWES, LIFE AND DEATH IN SING SING (1928) ............... 16, 17
LA WES, TWENTY THOUSAND YEARS IN SING SING
(1932).......................................................................................... 17
ROYAL COMMISSION ON CAPITAL PUNISHMENT,
MINUTES OF EVIDENCE (1949) [cited as ROYAL
COMMISSION MINUTES] . .....................................................13, 14
ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949-
1953, REPORT (H.M.S.O. 1953)[Cmd. 8932] [cited as
ROYAL COMMISSION] .................................................... 13, 14, 19
WEIHOFEN, MENTAL DISORDER AS A CRIMINAL
DEFENSE (1954) ............................................... ................... 14, 19
WEIHOFEN, THE URGE TO PUNISH (1956)........................... 14
West, Medicine and Capital Punishment, in Hearings Before
the Subcommittee on Criminal Laws and Procedures o f
the Senate Committee on the Judiciary, 90th Cong., 2d
Sess., on S. 1760, To Abolish the Death Penalty (March
20-21 and July 2, 1968) (G.P.O. 1970) 16
IN THE
Supreme Court of the United States
N o . 6 9 - 5 0 0 3
WILLIAM HENRY FURMAN, Petitioner,
v.
GEORGIA, Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF GEORGIA
B R I E F F O R P E T I T I O N E R
OPINION BELOW
The syllabus opinion of the Supreme Court of Georgia
affirming petitioner’s conviction of murder and sentence of
death by electrocution is reported at 225 Ga. 253, 167 S.E.
2d 628, and appears in the Appendix [hereafter cited as
A.____] at A . 66-68.
JURISDICTION
The jurisdiction of this Court rests upon 28 U.S.C.
§ 1257(3), the petitioner having asserted below and assert
ing here a deprivation of rights secured by the Constitution
of the United States.
The judgment of the Supreme Court of Georgia was
entered on April 24, 1969. (A. 68.) A petition for certio
rari was filed on July 23, 1969, and was granted (limited
to one question) on June 28, 1971 (A. 69).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Eighth Amendment to the Con
stitution of the United States, which provides:
“Excessive bail shall not be required, nor exces
sive fines imposed, nor cruel and unusual punish
ments inflicted.”
It involves the Due Process Clause of the Fourteenth
Amendment.
It further involves Ga. Code Ann. §§ 26-1001,26-1002,
26-1005, 26-1009, 27-2512, 27-2602, 27-2604 which are
set forth in Appendix A to this brief [hereafter cited as
App. A, pp.____], at App A, pp. la - 4a, infra.
QUESTION PRESENTED
Does the imposition and carrying out ot the death pen
alty in this case constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments?
STATEMENT OF THE CASE
Petitioner William Henry Furman was convicted of mur
der and sentenced to die following a one-day jury trial in
the Superior Court of Chatham County, Georgia, on Sep
tember 20, 1968. (A. 10-65.) The trial was very brief.
Jury selection began at about 10:00 a.m.;1 the taking of
'One venireman was excused for cause over petitioner’s objec
tion (A, 13-14 [Tr. 6-91) because of his opposition to the death pen
alty. He w’as asked if he would refuse to impose capital punishment
3
evidence and the court’s charge to the jury were concluded
by approximately 3:30 p.m. (A. 64 [Tr. 119]); the jury
retired at 3:35 p.m. (ibid.) and returned its death verdict
at 5:10 p.m. (ibid.).
The murdered man was William Joseph Micke, Jr. His
widow testified at the trial that Mr. Micke was twenty-nine
years old, and lived with her and five children-ranging in
age from one to fifteen—in a house in the City of Savannah.
(A. 17-18 [Tr. 12-13.]) Mr. Micke was employed by the
Coast Guard; and on August 11, 1967, he began work at a
second job, at the Tiffany Lounge, to supplement his in
come. (A. 18 [Tr. 13].) He returned home from that job
at about midnight; then he and his wife retired for the
night. (Ibid.)
Between 2:00 and 2:30 a.m., Mr. and Mrs. Micke heard
noise coming from the dining room or kitchen area of the
house. They thought that it was their eleven year-old son
sleepwalking, and Mr. Micke went to investigate. Mrs. Micke
heard him call the boy, heard his footsteps quicken, then
heard “a real loud sound and he screamed.” (A. 19 [Tr.
15]; see A. 17-19 [Tr. 13-15].) She ran and locked her
self with her children in her daughters’ bedroom, where they
all began to shout for the neighbors. The neighbors came
in a few minutes, and Mrs. Micke immediately phoned the
police who arrived shortly thereafter. (A. 19-20, 21-22
[Tr. 15-16, 19-20].) From her testimony and that of an
investigating officer, the jury could find that Mr. Micke’s
assailant had entered the rear porch of the house through
in a case regardless of the evidence, and said, “ I believe I would” (A.
13 [Tr. 5]); when asked whether his opposition to the death penalty
would affect his decision as to a defendant’s guilt, he said “I think
it would” (Ibid.). Veniremen were not excused for cause who,
although opposed to capital punishment, said that they could impose
it in some circumstances, and that their attitudes toward capital
punishment would not prevent them from making an impartial deter
mination of the defendant’s guilt. (A. 12, 14-15 [Tr. 4, 7-9].) The
Georgia Supreme Court held that this form of death qualification was
proper under Witherspoon v. Illinois, 391 U.S. 510 (1968). (A. 66.)
4
a screen door (which might or might not have been locked),
had moved a washing machine away from the porch wall
outside the kitchen window, and had reached through the
kitchen window to unlatch the kitchen door from the in
side. (A. 19-21, 25 [Tr. 16-19, 24].)
The investigating officer, responding to a call at the
Micke house at about 2:30 a.m., found Mr. Micke lying
dead on the kitchen floor. (A. 24-26 [Tr. 23-26].) The
cause of death was later determined to be a single pistol
wound which entered Mr. Micke’s upper chest near the mid
line and passed through the lung causing severe hemorrhag
ing. (A. 32 [Tr. 35-36].) The bullet which produced this
wound had been fired through the kitchen door from the
outside while the door was closed. (A. 27, 29-30 [Tr. 28,
31-32].) Only one bullet hole was found in the door (A.
55 [Tr. 92-93]), which was constructed of solid plywood
with no window (A. 20, 22, 29 [Tr. 17, 20-21, 31 ]). The
prosecution adduced no evidence that more than this one
shot was fired at the Micke house that night.2
Petitioner Furman was identified as Mr. Micke’s killer
because his fingerprints, taken following his arrest, matched
several latent prints that were lifted from the surface of the
washing machine on the Mickes’ rear porch. (A. 33-34, 35-
36 [Tr. 40-43, 50-55].) Petitioner was also seen and ap
prehended leaving the area with the murder weapon shortly
after the killing, under the following circumstances.
One of the officers who had been called to the Micke
house went thence to a street bordering a wooded area
south of the house. He saw a man emerge from the woods,
walking from the north. The man saw the officer and
began to run. The officer called several other officers who
2When petitioner was arrested in possession of the murder gun
shortly thereafter (see text, infra), the gun contained three live bul
lets and three expended shells. (A. 42 [Tr. 65].) However, there is
no evidence that more than one of these shells was fired at the Micke
house. (A. 55 [Tr. 92].)
5
took up pursuit. Two followed foot-tracks left by the flee
ing man in the rain. These led to the nearby house of Mr.
James Furman, petitioner’s uncle. (A. 38-39 [Tr. 59-61].)
The officers followed the tracks around the house to an
area which gave entrance to the space under the house.
They shined their flashlights in, saw petitioner under the
house, and called him out. (A. 39-40 [Tr. 61-62].) Peti
tioner “reached as if he was reaching for his back pocket
and [one officer] . . . pulled [his] . . . pistol and . . .
pointed it at him and . . . told him to come out and don’t
make any move.” [A. 40 [Tr. 62].) The officers then
pulled petitioner out from under the house, searched him,
and found a .22 caliber pistol in “his right front pocket.”
(A. 42 [Tr. 64]; see also A. 40 [Tr. 63].) This pistol was
later identified ballistically as the one which fired the bul
let that killed Mr. Micke. (A. 42, 43, 49-50 [Tr. 65, 67-
68, 80-81].)
Petitioner was the only eyewitness to the circumstances
of Mr. Micke’s killing. Two versions of those circumstances
were put before the jury at the trial. A detective who ques
tioned petitioner after his arrest testified that petitioner
said:
“that he was in the kitchen; the man came in the
kitchen, saw him in there and attempted to grab
him as he went out the door; said the man hit the
door-instead of catching him, he hit the door, the
door slammed between them, he turned around and
fired one shot and ran.” (A. 47 [Tr. 77]; see also
A. 44-45; 49 [Tr. 71-73, 79].)
In his unsworn statement at trial,3 petitioner denied mak
ing this declaration (A. 54-55 [Tr. 91-92]); he said:
“I admit going to these folks’ home and they did
caught me in there and I was coming back out,
3Under Georgia practice following Ferguson v. Georgia, 365 U.S.
570 (1961), a criminal defendant may elect to testify under oath,
questioned by his attorney and cross examined by the prosecutor, or
to make an unsworn statement without questioning or cross exami
nation. Petitioner “elected” the latter course. See note 8 infra.
6
backing up and there was a wire down there on the
floor. I was coming out backwards and fell back
and 1 didn’t intend to kill nobody. 1 didn’t know
they was behind the door. The gun went off and
1 didn't know nothing about no murder until they
arrested me, and when the gun went off 1 was down
on the floor and 1 got up and ran. That’s all to it.”
(A. 54-55 [Tr. 91].)
It is impossible to know, of course, which of those ver
sions of the facts—if either—the trial jury believed. But, as
the case comes to this Court, it must be taken to be one
in which the Georgia courts have permitted the imposition
of a death sentence for an unintended killing, committed
by the accidental discharge of a pistol during petitioner’s
flight from an abortive burglary attempt. This is so for sev
eral reasons.
First, Georgia law allows the imposition of the death sen
tence upon such a basis. Like the common law, but unlike
the statutory law of most American jurisdictions today,
Georgia does not divide murder into degrees. It maintains
two crimes of homicide: murder and manslaughter. Ga.
Code Ann., % 26-1001, App. A, p. la infra. The hallmark
of murder is, as at common law, “malice aforethought,” see
Ga. Code Ann., § 26-1002, App. A, p. la infra; but a pro
viso to Ga. Code Ann., § 26-1009 creates a form of con
structive malice, or of “felony-murder,” by providing that
even unintended killings are murder if they “happen in the
commission of an unlawful act which, in its consequences,
naturally tends to destroy the life of a human being, or is
committed in the prosecution of . . . a crime punishable by
death or confinement in the penitentiary.” App. A, p. 2a
infra. The punishment for murder by any person seventeen
years of age or older is death by electrocution, except that
(1) the jury may make a binding recommendation, in its
sole discretion, that the punishment shall instead be life
imprisonment; and (2) if the conviction is based solely on
circumstantial testimony, the presiding judge is also given
discretion to impose a sentence of life imprisonment not-
7
withstanding the jury’s death verdict. Ga. Code Ann. §§ 26-
1005, 27-2512, App. A, pp. la-3a infra.
Second, the jury charge in this case permitted a murder
conviction, and thereby a death sentence, if petitioner’s
killing of Mr. Micke was found to be either (a) actuated by
“express malice” (i.e., an intentional killing) (A. 61-62 [Tr.
114-115]), or (b) the product of “implied malice,” defined
to include “the killing of a human being by the intentional
use of a weapon that as used is likely to kill and a killing
without justification, mitigation or excuse” (A. 62 [Tr.
115]), or (c) “an involuntary killing . . . in the commission of
an unlawful act which in its consequences naturally tends to
destroy the life of a human being or . . . in the prosecution
of a crime punishable by . . . confinement in the peniten
tiary” (A. 62-63 [Tr. 115-116] )-here, the crime of bur
glary (A. 62-63 [Tr. 116-117)]. The jury was specifically
instructed:
“If you believe beyond a reasonable doubt that
the defendant broke and entered the dwelling of the
deceased with intent to commit a felony or a lar
ceny and that after so breaking and entering with
such intent, the defendant killed the deceased in the
manner set forth in the indictment, and if you find
that such killing was the natural, reasonable and
probable consequence of such breaking and enter
ing then, I instruct you that under such circum
stances, you would be authorized to convict the
defendant of murder and this you would be author
ized to do whether the defendant intended to kill
the deceased or not.” (A. 63 [Tr. 117].)4 5
4Petitioner challenged this instruction as erroneous in paragraph
7 of his Amended Motion for New Trial (R. 34, 42-43), which was
overruled (R. 46). [Here and hereafter, references in the form R.__
designate pages of the Clerk’s Record in the Superior Court of Chat
ham County, which is contained in the original record filed in this
Court.] The same claim was incorporated by reference in paragraph
7, p. 2, of his Enumeration of Errors filed March 28, 1969, in the
8
Third, the Georgia Supreme Court rejected petitioner’s
claim ot insufficiency of the evidence upon the express
ground that even an involuntary killing in the course of a
burglary was murder, and in express reliance upon petitio
ner’s trial statement:
“The admission in open court by the accused in
his unsworn statement that during the period in
which he was involved in the commission of a crim
inal act at the home of the deceased, he accidentally
tripped over a wire in leaving the premises causing
the gun to go off, together with other facts and cir
cumstances surrounding the death of the deceased
by violent means, was sufficient to support the ver
dict of guilty of murder. . . (A. 67-68.)
The jury which sentenced petitioner to die knew nothing
about him other than the events of one half-hour of his life
on the morning of August 12, 1967-as just recited-and
the fact that he was black.6 However, additional facts ap-
Georgia Supreme Court. [This document is contained in, but is not
paginated as a part of, the original record in this Court.]
sThe court further charged the jury that, if it convicted the peti
tioner of murder, it might sentence him to death by electrocution or
to life imprisonment without giving “any reason for its action in fix
ing the punishment at life or death.” “The punishment is an alter
native punishment and may be one or the other as the jury sees fit.”
(A. 64 [Tr. 118].)
6The cursory nature of the trial which determined that petitioner
would die resulted from his indigency. Because petitioner was a pau
per, the court appointed counsel to represent him. Under Georgia
practice, appointed counsel was compensated $150 for defending a
capital murder case. See the affidavit of B. Clarence Mayfield, Esq.,
dated May 5, 1969, filed in the Georgia Supreme Court and included
in the original record in this Court. Counsel sought by written pre
trial motions: (1) funds for a defense investigator, (2) “reasonable
compensation [for counsel] to enable them [sic: him] to devote the
necessary time to prepare a case of this kind,” and (3) relief from
the requirement that counsel “advance the expenses in the prepara
tion of a trial in the lower court without knowing whether or not
such expenses will be reimbursed to him.” (Motions, paragraphs 2,
3, 4, R. 12-13.) Each of these requests was denied. (Order, R. 15.)
9
pear in the record which this Court may properly consider
as bearing on the question whether the State of Georgia will
be carrying out a cruel and unusual punishment if it elec
trocutes William Henry Furman. Those facts indicate, in
summary, that Petitioner Furman is both mentally deficient
and mentally ill.
On October 24, 1967—ten weeks after Mr. Micke’s killing
and almost a year prior to petitioner’s trial—the trial court
ordered petitioner committed to the Georgia Central State
Hospital at Milledgeville for a psychiatric examination upon
his special plea of insanity. (A. 8.) On February 28, 1968,
the Superintendent of the Hospital reported by letter to the
court that a unanimous staff diagnostic conference on the
same date had concluded “that this patient should retain
his present diagnosis of Mental Deficiency, Mild to Mode
rate, with Psychotic Episodes associated with Convulsive
Disorder.” The physicians agreed that “at present the
patient is not psychotic, but he is not capable of cooperat
ing with his counsel in the preparation of his defense;” and
the staff believed “that he is in need of further psychiatric
hospitalization and treatment.” (App. B, p. 2b infra.)7
By a subsequent letter of April 15, 1968, the Superintend
ent reported the same staff diagnosis of “Mental Deficiency,
Mild to Moderate, with Psychotic Episodes associated with
Convulsive Disorder,” but concluded that petitioner should
now be returned to court for trial because “he is not psy
chotic at present, knows right from wrong and is able to
cooperate with his counsel in preparing his defense.” (Id.,
at 3b-4b.) At the time of trial, petitioner was twenty-six
7The reference is to Appendix B to this brief. That Appendix
sets forth the texts of the two letters described in this paragraph, and
explains why they may properly be considered by this Court although
they were not before the Georgia Supreme Court.
0
years old,8 had gotten to the sixth grade in school,9 and
was visibly confused by aspects of the proceedings against
him.10
HOW THE CONSTITUTIONAL QUESTION
WAS PRESENTED AND DECIDED BELOW
Paragraph 3 of petitioner’s Amended Motion for New
Trial, filed by leave of court, contended that the death sen
tence which had been imposed upon him was a cruel and
unusual punishment forbidden by the Eighth and Four
teenth Amendments to the Constitution of the United
States. (R. 34, 38-39.) The motion was overruled. (R.46.)
Paragraph 4 of petitioner’s Enumeration of Errors in the
Petitioner recited his age in his unsworn statement to the jury.
(A. 54 [Tr. 91].)
9Petitioner’s level of schooling was elicited from him, out of the
presence of the jury, while he was being questioned by his counsel
and the court in order to determine whether he wished to take the
stand. (A. 53 [Tr. 89].)
10 At the conclusion of the prosecution’s case, the jury was ex
cused, and petitioner’s court-appointed counsel asked leave of the
court to put the defendant on the stand “to ascertain from him
whether or not, for the record, he wishes to make a sworn or unsworn
statement or no statement at all.” (A. 50 [Tr. 84]). See note 3
supra. In yes-and-no responses to counsel’s questioning, petitioner
stated that counsel had previously talked with him and advised him
concerning his making a statement to the jury; and petitioner said
and repeated that he did not want to make such a statement. (A.
51-52 [Tr. 85-86.]) The court and counsel then advised petitioner
again concerning his rights to make a sworn or unsworn statement
or no statement; petitioner was asked if he understood “what we are
trying to ask you” ; and he replied: “Some of it I don’t.” (A. 52-53
[Tr. 86-89].) He then answered “yes” to the court’s question
whether he wanted to tell the jury anything, and repeated this “yes.”
(A. 53 [Tr. 89].) Without further inquiry regarding the reasons for,
or advisedness of, petitioner’s unexplained change of mind, counsel
and the court treated this response as an election to make an un
sworn statement; the jury was recalled; and petitioner took the
stand. (A. 54 [Tr. 90].)
11
Georgia Supreme Court made the same contention.11 The
Georgia Supreme Court rejected it upon the merits. (A. 67.)
SUMMARY OF ARGUMENT
I. Petitioner’s sentence of death is a rare, random and
arbitrary infliction, prohibited by the Eighth Amendment
principles briefed in Aikens v. California.
II. The Eighth Amendment forbids affirmance of a death
sentence upon this record, which casts doubt upon petitio
ner’s mental soundness. To relegate petitioner to the tor
ments and vicissitudes of a death sentence without appro
priate inquiry into his mental condition is to subject him
to cruel and unusual punishment.
I.
THE DEATH PENALTY FOR MURDER VIOLATES
CONTEMPORARY STANDARDS OF
DECENCY IN PUNISHMENT
The Brief for Petitioner in Aikens v. California 12 fully
develops the reasons why we believe that the death penalty
is a cruel and unusual punishment for the crime of murder,
as that penalty is administered in the United States today.
At the heart of the argument is the principle that the
Eighth Amendment condemns a penalty which is so oppres
sive that it can command public acceptance only by spora
dic, exceedingly rare and arbitrary imposition.
Petitioner’s case epitomizes that characteristic of the
penalty of death for murder. His was a grave offense, but
one noways distinguishable from thousands of others for
n P. 1 of the Enumeration of Errors, filed March 28, 1969. [This
document is contained in, but is not paginated as a part of, the origi
nal record filed in this Court.]
12O.T. 1971, No. 68-5027.
12
which the death penalty is not inflicted. Following a brief
trial which told the jury nothing more than that petitioner
had killed Mr. Micke by a single handgun shot through a
closed door during an armed burglary attempt upon a dwell
ing-and which permitted his conviction whether or not the
fatal shot was intentionally fired—he was condemned to die.
The jury knew nothing else about the man they sentenced,
except his'age and race.
It is inconceivable to imagine contemporary acceptance
of the general application of the death penalty upon such
a basis. Only wholly random and arbitrary selection of a
few, rare murder convicts makes capital punishment for
murder tolerable to our society. For the reasons stated in
the Aikens brief, it is not tolerable to the Eighth Amend
ment.
II.
PETITIONER’S SENTENCE OF DEATH IMPOSED WITHOUT
ADEQUATE INQUIRY CONCERNING HIS MANIFESTLY IM
PAIRED MENTAL CONDITION VIOLATES THE EIGHTH
AMENDMENT
But there is an additional reason why the sentence of
death imposed on this petitioner cannot constitutionally
stand. The record in this case bears plain indications that
petitioner is mentally ill. The imposition of a death sen
tence upon him without adequate inquiry concerning either
his competency to be executed or his capability to with
stand the stress of such a sentence violates the Eighth
Amendment.
(1) This Court need not look to evolving standards of
decency for evidence that the execution of a mentally dis
ordered person offends the most basic human precepts
embodied in our legal history. Coke in 1644 wrote that in
earlier years it had been provided that:
“. . . if a man attainted of treason become mad,
that notwithstanding he should be executed which
13
cruell and inhuman law lived not long, but was re
pealed, for in that point also it was against the com
mon law, because by intendment of law the execu
tion of the offender is for example, ut poena ad
paucos, metus ad omnes perveniat, as before is said:
but so it is not when a mad man is executed, but
should be a miserable spectacle, both against law
and of extreme inhumanity and cruelty, and can be
no example to others.” (COKE, THIRD INSTI
TUTE (1644), 6.)13
The British Royal Commission on Capital Punishment
concluded that:
“It has for centuries been a principle of the com
mon law that no person who is insane should be
executed . . . (ROYAL COMMISSION ON CAP:
ITAL PUNISHMENT 1949-1953, REPORT (H.M.S.O.
1953) [Cmd. 8932] [hereafter cited as ROYAL
COMMISSION], 13.14
The Commission found that “the Home Secretary is under
a statutory obligation to order a special medical inquiry if
there is reason to believe that a prisoner under sentence of
death is insane, and similar inquiries are often held where
a lesser degree of abnormality is suspected.” ROYAL COM-
13See also, 1 HAWKINS, PLEAS OF THE CROWN (1716), 2; 4
BLACKSTONE, COMMENTARIES (1803), 24; Hawles, Remarks
on the Trial of Mr. Charles Bateman, 11 Howell State Trials 474, 476
(1816); CHITTY, CRIMINAL LAW (Earle Ed. 1819), 525; 1 HALE,
PLEAS OF THE CROWN (1678), 35, 370; and the authorities cited
in the dissenting opinion of Mr. Justice Frankfurter in Solesbee v.
Balkcom, 339 U.S. 9, 16-20, (1950).
14See also ROYAL COMMISSION 123; Testimony of Sir John
Anderson, ROYAL COMMISSION ON CAPITAL PUNISHMENT,
MINUTES OF EVIDENCE (1949) [hereafter cited as ROYAL COM
MISSION MINUTES], 363:
“As was stated in the House of Commons in the case of
Ronald True, ‘the principle that an insane man should not
go to execution has been enshrined in the Common Law
since the days of Coke and Hale.’ ”
See also, e.g., id. at 3, 40, 128.
14
MISSION 13. In the event the doctors who examined the
condemned man found him insane, the Home Secretary was
required to respite the sentence.
“ [I]t is not only right and proper that the Home
Secretary should respite the sentence of death and
direct the prisoner’s removal to Broadmoor or to a
mental hospital, but it is his imperative duty to do
so, both under the statute and because it is contrary
to the common law to execute an insane criminal.”
(ROYAL COMMISSION 127.)15
The reasons advanced for this traditional prohibition have
been varied. They include the notions that an insane per
son can not bring evidence on his own behalf to defeat the
sentence,16 that the execution of an insane person cannot
reasonably be thought to deter others,17 that an insane per
son is not mentally fit to make peace with his maker,18 that
he has already been punished sufficiently by God or by the
devil,19 arid that the execution of an insane person would
15See also ROYAL COMMISSION MINUTES 3, 47, 372, 380
For general discussion of the British procedure, see ROYAL COM
MISSION 2, 124-130; ROYAL COMMISSION MINUTES 2, 40, 246,
256, 352, 522; WEIHOFEN, THE URGE TO PUNISH (1956), 52-53.
See also WEIHOFEN, THE URGE TO PUNISH (1956), 52-53. See
also WEIHOFEN, MENTAL DISORDER AS A CRIMINAL DEFENSE
(1954), 463-470; Solesbee v. Balkcom, 339 U.S. 9, 26-32 (1950) (dis
senting opinion of Mr. Justice Frankfurter).
16See, e.g. 4 BLACKSTONE, COMMENTARIES (1803), 24-25;
Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 Howell
State Trials 474, 476-477 (1868).
17See, e.g., COKE, THIRD INSTITUTE (1644), 6, p. 13 supra.
l8See e.g., Hawles, Remarks on the Trial of Mr. Charles Bateman,
11 Howell State Trials 474, 477 (1868): “ [It] is inconsistent with
religion, as being against Charistian charity to send a great offender
quick, as it is stiled, into another world, when he is not of a capacity
to fit himself for it.”
19Ehrenzweig, A Psychoanalysis o f the Insanity Plea-Clues to the
Problems o f Criminal Responsibility and Insanity in the Death Cell,
1 CR1M. I... BULL. (No. 9) 3, 21 (1965) [hereafter cited as Ehrenz-
weig].
15
not satisfy the extreme judgment inflicted on him.20 How
ever, “ [wjhatever the reason of the law is, it is plain the
law is so.” Hawles, Remarks on the Trial of Mr. Charles
Bateman, 11 Howell State Trials 474, 477 (1816).
“When we seek the purpose of the rule we are
met with diverse explanations of varying persuasive
ness. The very multiplicity of explanations suggest
that the rule may have been devised to meet an
earlier theoretical or practical need or special con
sensus and has survived the obsolescence of the
original cause.” Hazard & Louisell, Death, the
State, and the Insane: Stay o f Execution, 9
U.C.L.A. L. REV. 381, 383 (1962) [hereafter cited
as Death, the State, and the Insane ].
Its survival, we suggest, manifests a common and unwaver-'
ing recognition—albeit expressed through quite wavering and
often unsatisfactory rationalizations—of Coke’s basic obser
vation that the execution of the mentally ill constitutes “a
miserable spectacle,” smacking of “extreme inhumanity and
cruelty,” supra.21
(2) The record in this proceeding concerning petitioner’s
mental condition is scant, due in part to the negligible re
sources allowed his appointed trial counsel,22 and in part
to Georgia practice which forbids a capital defendant to put
in evidence of mental impairment relevant to the question
of sentencing.23 However, enough appears, we think to
20Musselwhite v. State, 215 Miss. 363, 367, 60 So. 2d 807, 809
(1952): “it is revealed that if he were taken to the electric chair he
would not quail or take account of its significance.” See also Ehren-
zweig, at 14-15.
2'See also, c.g., Hawles, Remarks from the Trial of Mr. Charles
Bateman, 11 Howell State Trials 474, A ll (1816): “ [Tjhose on
whom the misfortune of madness fall, it is inconsistent with human
ity to make examples of them. . . .”
22 See note 6, supra.
23A defendant may assert incompetency to be tried, and may
present evidence on that question; or he may contest guilt on the
grounds of criminal irresponsibility at the time of the offence. E.g.,
16
establish significant mental abnormality. Petitioner was diag
nosed on February 28, 1968, to be afflicted with “Mental
Deficiency, Mild to Moderate, with Psychotic Episodes asso
ciated with Convulsive Disorder,” and was found incapable
of cooperating with counsel in his defense. (App. B, p. 2b
infra.) Although this latter incapacity was found no longer
to exist on April 15, 1968, the same diagnosis was reported.
(App. B, p. 3b infra.) Petitioner was not found to be psy
chotic; and the character and extent of his condition are
not otherwise disclosed; but the record at the least reveals
grounds for the gravest doubt of his mental stability.
(3) For any man, be he mentally firm or infirm, con
demnation under a sentence of death and the “thousand
days” on death row create conditions of mind-twisting
stress.24
“He hopes by day and despairs of it by night. As
the weeks pass, hope and despair increase and
become equally unbearable. . . . He is no longer a
man but a thing waiting to be handled by the execu
tioners.” (Camus, Reflections on the Guillotine, in
CAMUS, RESISTANCE, REBELLION AND DEATH
(1961), 200-201 .)2S
Dr. Louis J. West has described death row as a “grisly labo
ratory [which] . . . must constitute the ultimate experimen
tal stress in which he [sic: the] condemned prisoner’s per
sonality is incredibly brutalized.”26 Dr. Isidore Zifferstein
writes that:
Rogers v. State, 128 Ga. 67, 57 S.E. 227 (1907); Summerour v. Fort-
son, 174 Ga. 862, 164 S.E. 809 (1932).
24 LA WES, LIFE AND DEATH IN SING SING (1928), 161-162;
West, Medicine and Capital Punishment, in Hearings Before the Sub
committee on Criminal Laws and Procedures o f the Senate Commit
tee on the Judiciary, 90th Cong., 2d Sess., on S. 1760, to Abolish
the Death Penalty (March 20-21 and July 2, 1968) (GP.O. 1970)
[hereafter cited as Hearings], 124, 127.
25See also Ex parte Medley, 134 U.S. 160, 172 (1890).
26West, Medicine and Capital Punishment in Hearings, at 127.
17
“Modern techniques of execution have aimed at
minimizing the physical pain of dying (although we
do not really know how much pain is experienced
in electrocution or execution by gas). But these
modern techniques have retained to the fullest the
exquisite psychological suffering of the condemned
_____ man.”27
27Zifferstein, Crime and Punishment, 1 THE CENTER MAGA
ZINE (No. 2) 84 (Center for the Study of Democratic Institutions
1968). We must admit that the published literature concerning the
psychological impact of the “thousand days” upon condemned men
is limited and unsystematic. This is one of the subjects concerning
which counsel for petitioner have, in other litigations, unsuccessfully
sought to present evidence. See Brief for Petitioner, in Aikens v.
California, supra, n. 120. The literature contains enough, however,
to glimpse the extent of the pressures upon the condemned. As exe
cution approaches, some prisoners exhibit grossly psychotic reactions,
see, e.g., ESHELMAN, DEATH ROW CHAPLAIN (1962), 159-161;
DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN (1962), 221-223,
229-230; Ehrenzweig 11, while other prisoners respond to the stress
with psychological mechanisms involving major personality distortion.
See Bluestone & McGahee, Reaction to Extreme Stress: Impending
Death by Execution, 119 AM. J. PSYCHIATRY 393 (1962).
Institutional practices on death row recognize the likelihood of
extreme reactions from the condemned, particularly suicide attempts.
“The ‘cheating of the chair’ by escape or suicide is rendered practi
cally impossible by . . . extraordinary precautions against these con
tingencies.” LAWES, LIFE AND DEATH IN SING SING (1928),
161. In Warden Lawes’ experience, these precautions cover the minu
test detail, including paring the fingernails of the condemned once
or twice a week “as long nails could be used to cut the arteries of
the wrist.” Id. at 163-164. In spite of these precautions, attempts
at suicide are not rare phenomena, id. at 163, 177, and occasionally
succeed, id., 165, 180; LAWES, TWENTY THOUSAND YEARS IN
SING SING (1932), 334; DUFFY & JENNINGS, THE SAN QUEN
TIN STORY, (1950) 108-109; ESHELMAN, DEATH ROW CHAP
LAIN (1962), 161-164. Such attempts have sometimes required sur
gical intervention to save the life of the condemned man in order
that he could be properly executed. LAWES, LIFE AND DEATH
IN SING SING (1928), 165, 177; DUFFY & HIRSHBERG, 88 MEN
AND 2 WOMEN (1962), 51-52; ESHELMAN, DEATH ROW CHAP
LAIN (1962), 164-165. See generally Gottlieb, Capital Punishment,
15 CRIME & DELINQUENCY 1. 8-10 (1969).
18
(4) Under these circumstances, we believe that a judg
ment inflicting a sentence of death upon petitioner, in the
absence of further inquiries into his mental state, subjects
him to a cruel and unusual punishment. We recognize that
in the Cramp ton case28 this Court declined to hold that the
Due Process Clause required any particular form of proce
dure by which facts relevant to the sentencing decision in a
capital case could be put into the record. But the question
here is not one concerning forms of procedure: it is
whether, once facts are called to the trial court’s attention
which convey notice that its process may be unconstitu
tional, it is required by the Constitution to conduct an ade
quate inquiry into those facts. Cf. Pate v. Robinson, 383
U.S. 375 (1966). We think that it is, where the effect of
its process subjects a man who may be mentally ill not only
to the jeopardy of electrocution, but to the devastating
stresses of death row.
(5) We must also recognize, of course, that the tradi
tional Anglo-American inhibition upon the execution of the
insane has been enforced by post-conviction, non-judicial
process; and that Georgia provides a form of such process
for an inquiry into the insanity of the condemned. See Ga.
Code Ann., § 27-2602 (1970 Cum. pocket part), App. A,
p. 3a infra; Solesbee v. Balkcom, 339 U.S. 9 (1950). Pur
suant to that statute, the Governor may, in his discretion,
cause a condemned man to be mentally examined; and if
the Governor finds that he has become insane subsequent
to his conviction, the Governor may commit him to a state
hospital until his sanity is restored. When his sanity is re
stored he is returned to Court, a new death warrant for his
execution is signed, and he is executed. Ga. Code Ann.
§ 27-2604 (1953), App. A, p. 3a infra.
Solesbee sustained the constitutionality of this procedure
as a corrective against insanity supervening trial and sen-
2SCrampton v. Ohio, reported sub nom. McGautha v. California,
402 U.S. 183 (1971).
19
tence. But we do not think that its existence, or even its
constitutionality in that context, warrants a court imposing
a sentence of death upon a man of manifestly questionable
mentality without first making its own thorough inquiry
and determination whether he is competent to be put to
death and capable of receiving a death sentence,29 This is
so for two basic reasons.
First, the Georgia Governor’s process can reprieve a con
demned man from death, but not from the torments of a
death sentence. Those torments are agonizing even for
a mind of normal stability, but may be unbearable for an
unstable one. Without adequate judicial inquiry into the
mental state of the defendant, a death sentence may be tan
tamount to a sentence of insanity.
Second, the gubernatorial reprieve merely sets in motion
a procedure by which the condemned man is hospitalized
and healed enough to kill. Georgia’s insistence upon exe
cuting a condemned man following his restoration to sanity
is consistent with prevailing American practice.30 It is, how
ever, a plain barbarity which the Eighth Amendment should
condemn. In England, at least since 1840, “there has been
no case where a prisoner has been executed after being cer
tified insane under the statute in force at the time.”31 In
principle as well as in fact, the Royal Commission found:
“. . . If a prisoner under sentence of death is cer
tified insane and removed to Broadmoor, it is
unthinkable that the sentence should ever be car
ried out in the event of his recovery. . . .”32
29See also Nobles v. Georgia, 168 U.S. 398 (1897); Phyle v. Duffy,
334 U.S. 431 (1948); Caritativo v. California, 357 U.S. 549 (1958).
30w e ih o f e n , m e n t a l d is o r d e r as a c r im in a l d e
fe n se (1954) 468-470; Death, the State, and the Insane 382-383;
Ehrenzweig 11.
31 ROYAL COMMISSION 128.
32ROYAL COMMISSION 157-158. See also Feltham, The Com
mon Law and the Execution o f Insane Criminals, 4 MELBOURNE
U.L. REV. 434, 475 (1964): “if such a medical inquiry Finds a priso-
20
A judicial sentence ol death imposed upon a man in the
same condition -or for want of inquiry upon notice that he
may be in the same condition-seems to us equally unthink
able. It is no less so because thereafter, by executive grace,
he may be permitted to vacillate between insanity and
death.
CONCLUSION
The death sentence imposed upon petitioner William
Henry Furman should be set aside as a cruel and unusual
punishment.
Respectfully submitted,
JACK GREENBERG
JAMES M. NABRIT, III
JACK HIMMELSTEIN
ELIZABETH B. DuBOIS
JEFFRY A. MINTZ
ELAINE R. JONES
10 Columbus Circle, Suite 2030
New York, New York 10019
B. CLARENCE MAYFIELD
910 West Broad Street
Savannah, Georgia 31401
MICHAEL MELTSNER
Columbia University Law School
435 West 116th Street
New York, New York 10027
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
ner insane; there should be a mandatory duty upon the executive to
reprieve. This, although not required by law, has been the invariable
practice in England since 1840 and is no more than common decency
and humanity requires.”
A-i
TABLE OF AUTHORITIES
APPENDICES
Page
Statutory Provisions:
Ga. Code Ann., § 26-1001 (1953 Rev. vol.)................................ la
Ga. Code Ann., § 26-1002 (1953 Rev. vol. ) ..............................
Ga. Code Ann., § 26-1005 (1970 Cum. pocket p a rt)................. la-2a
Ga. Code Ann., § 26-1009 (1953 Rev. vol.)................................ 2a
Ga. Code Ann., § 27-2512 (1953 Rev. vol.)................................ 2a'3a
Ga. Code Ann., § 27-2602 (1970 Cum. pocket part) . ............ 3a
Ga. Code Ann., § 27-2604 (1953 Rev. vol.)................. 3a-4a
Ga. Crim. Code, § 26-1101 (1970 Rev. v o l . ) .............................. 4a
Ga. Crim. Code, § 26-3102 (1970 Rev. v o l . ) .............................. 4a-5a
la
APPENDIX A
STATUTORY PROVISIONS INVOLVED
Ga. Code Ann., § 26-1001
<1953 Rev. vol)
effective prior to July 1, 1969
26-1001. (59 P.C.) Definition; kinds.-Homicide is the
killing of a human being, and is of three kinds-murder,
manslaughter, and justifiable homicide. (Cobb, 783.)
Ga. Code Ann., § 26-1002
(1953 Rev. vol.)
effective prior to July 1, 1969
26-1002. (60 P.C.) Murder defined.-Murder is the un
lawful killing of a human being, in the peace of the State,
by a person of sound memory and discretion, with malice
aforethought, either express or implied. (Cobb, 783.)
Ga, Code Ann. § 26-1005
(1970 Cam. pocket part)
effective prior to July 1, 1969
26-1005. (63 P.C.) Punishment for murder; recommen
dation by jury.—The punishment for persons convicted of
murder shall be death, but may be confinement in the pen
itentiary for life in the following cases: If the jury trying
the case shall so recommend, or the the conviction is founded
solely on circumstantial testimony, the presiding judge may
sentence to confinement in the penitentiary for life. In the
former case it is not discretionary with the judge; in the
latter it is. When it is shown that a person convicted of
murder had not reached his 17th birthday at the time of
the commission of the offense, the punishment of such per
son shall not be death but shall be imprisonment for life.
Whenever a jury, in a capital case of homicide, shall find
a verdict of guilty, with a recommendation of mercy, instead
of a recommendation of imprisonment for life, in cases
2a
where by law the jury may make such recommendation,
such verdict shall be held to mean imprisonment for life.
If, in any capital case of homicide, the jury shall make any
recommendation, where not authorized by law to make a
recommendation of imprisonment for life, the verdict shall
be construed as if made without any recommendation.
(Cobb, 783. Acts 1875, p. 106; 1878-9, p. 60; 1963, p. 122.)
Ga. Code Ann., § 26-1009
(1953 Rev. vol.)
effective prior to July 1, 1969
26- 1009. (67 P.C.) Involuntary manslaughter defined.-
Involuntary manslaughter shall consist in the killing of a
human being without any intention to do so, but in the
commission of an unlawful act, or a lawful act, which prob
ably might produce such a consequence, in an unlawful
manner: Provided, that where such involuntary killing shall
happen in the commission of an unlawful act which, in its
consequences, naturally tends to destroy the life of a human
being, or is committed in the prosecution of a riotous
intent, or of a crime punishable by death or confinement
in the penitentiary, the offense shall be deemed and
adjudged to be murder. (Cobb, 784.)
Ga. Code Ann., § 27-2512
(1953 Rev. vol.)
27- 2512. Electrocution substituted for hanging; place of
execution.—All persons who shall be convicted of a capital
crime and who shall have imposed upon them the sentence
of death, shall suffer such punishment by electrocution
instead of by hanging.
In all cases in which the defendant is sentenced to be
electrocuted it shall be the duty of the trial judge, in pass
ing sentence, to direct that the defendant be delivered to
the Director of Corrections for electrocution at such penal
institution as may be designated by said Director. However,
no executions shall be held at the old prison farm in Bald-
3a
win county, (Acts 1924, pp. 195, 197; Acts 1937-38, Extra
Sess., p. 330.)
Ga. Code Ann., § 27-2602
(1970 Cum. Pocket part)
27-2602. (1074 F.C.) Disposition of insane convicts.
Cost of investigations.—Upon satisfactory evidence being
offered to the Governor, showing reasonable grounds to
believe that a person convicted of a capital offense has
become insane subsequent to his conviction, the Governor
may, in his discretion, have said person examined by such
expert physicians as the Governor may choose, the cost of
said examination to be paid by the Governor out of the
contingent fund. It shall be the responsibility of the Gover
nor to cause said physicians to receive written instructions
which plainly set forth the legal definitions of insanity as
recognized by the laws of this State, and said physician shall,
after making the necessary examination of the prisoner,
report in writing to the Governor whether or not reasona
ble grounds exist to raise an issue that the prisoner is insane
by the standards previously specified to them by the Gover
nor. The Governor may, if he shall determine that the per
son convicted has become insane, have the power of com
mitting him to the Milledgeville State Hospital until his san
ity shall have been restored or determined by laws now in
force. (Acts 1903, p. 77; 1960, pp. 988, 989.)
Ga. Code Ann., § 27-2604
(1953 Rev. vol.)
27-2604. (1076 P.C.) Resentence and warrant on recov
ery of convict.—If the convict mentioned in the preceding
section should recover, the fact shall be at once certified by
the superintendent of the Milledgeville State Hospital to the
judge of the court in which the conviction occurred. When
ever it shall appear to the judge by said certificate, or by
inquisition or otherwise, that the convict has recovered and
is of sound mind, he shall have the convict removed to the
4a
jail of the county in which the conviction occurred, or to
some other safe jail, and shall pass sentence, either in term
time or vacation, upon the convict, and he shall issue a new
warrant, directing the sheriff to do execution of the sen
tence at such time and place as may be named in the war
rant, which the sheriff shall be bound to do accordingly.
The judge shall cause the new warrant, and other proceed
ings in the case, to be entered on the minutes of said super
ior court. (Acts 1874, p. 30.)
Ga. Crim. Code, § 26-1101
(1970 Rev. vol.)
(effective July 1, 1969)
26-1101. Murder.-(a) A person commits murder when
he unlawfully and with malice aforethought, either express
or implied, causes the death of another human being.
Express malice is that deliberate intention unlawfully to take
away the life of a fellow creature, which is manifested by
external circumstances capable of proof. Malice shall be
implied where no considerable provocation appears, and
where all the circumstances of the killing show an aban
doned and malignant heart.
(b) A person also commits the crime of murder when in
the commission of a felony he causes the death of another
human being, irrespective of malice.
(c) A person convicted of murder shall be punished by
death or by imprisonment for life.
(Acts 1968, pp. 1249, 1276.)
Ga. Crim. Code § 26-3102
(1970 Rev. vol.)
effective July 1, 1969
26-3102. Capital offenses-jury verdict and sentence.-
Where, upon a trial by jury, a person is convicted of an
offense which may be punishable by death, a sentence of
death shall not be imposed unless the jury verdict includes
a recommendation that such sentence be imposed. Where
5a
a recommendation of death is made, the court shall sen
tence the defendant to death. Where a sentence of death
is not recommended by the jury, the court shall sentence
the defendant to imprisonment as provided by law. Unless
the jury trying the case recommends the death sentence in
its verdict, the court shall not sentence the defendant to
death. The provisions of this section shall not affect a sen
tence when the case is tried without a jury or when the
judge accepts a plea of guilty.
(Acts 1968, pp. 1249, 1335; 1969, p. 809.)
lb
APPENDIX B
PSYCHIATRIC REPORTS
Pursuant to petitioner’s commitment for a pretrial men
tal examination in this case (A. 8), the following two letters
were written by the Superintendent of the Georgia Central
State Hospital to the trial court below. They were subse
quently made a part of the record of the trial court by
express written order;lb and petitioner’s notice of appeal
requested the clerk to transmit the entire record to the
Georgia Supreme Court.2b However, for reasons unknown
to us, the clerk of the trial court neglected to transmit the
letters as a part of the appellate record; and they were not
before the Georgia Supreme Court. Subsequent to this
Court’s order granting certiorari, petitioner’s counsel noticed
their absence and asked the clerk of the Chatham County
Supreme Court to certify the records of the Georgia
Supreme Court. The clerk did so; whereupon the clerk of
the Georgia Supreme Court transmitted them to this Court
under certification reciting that they were not a part of the
record in the Georgia Supreme Court.
Under these circumstances, we think that the letters are
properly a part of the record upon which this Court may
consider the case. Petitioner did all that he was required
to do in order to include them in the appellate record, and
is not responsible for the clerk’s neglect. The authenticity
of the letters cannot be questioned; they are a part of the
trial court record; and their absence from the record before
the Georgia Supreme Court did not affect the course of the
litigation in any way. That court’s decision of the Eighth
Amendment question was perfunctory in any event, since
lbOrder, dated February 20, 1969 (R. 44): “FURTHER
ORDERED that the Psychiatric Report of the Movant WILLIAM
HENRY FURMAN be and is made a part of this record.”
2bNotice of Appeal, dated March 3, 1969 (R.l): “The clerk will
please include the entire record on appeal.”
2b
the question was foreclosed by-and decided summarily on
authority of—several prior Georgia decisions.
* * *
STATE OF GEORGIA
CENTRAL STATE HOSPITAL
MILLEDGEVILLE, GEORGIA 31062
February 28, 1968
Honorable Dunbar Harrison
Judge, Superior Court
Eastern Judicial Circuit
c/o Courthouse
Savannah, Georgia
Re: William Henry Furman
Case No: 157 086
Binion 4
Dear Judge Harrison:
The above named patient was admitted to this hospital
on October 26, 1967, by Order of your Court.
The patient was presented to a staff meeting today, Feb
ruary 28, 1968. It was the unanimous opinion of the mem
bers of the staff, Dr. Elpidio Stincer, Dr. Jose Mendoza, and
Dr. Armando Gutierrez, that this patient should retain his
present diagnosis of Mental Deficiency, Mild to Moderate,
with Psychotic Episodes associated with Convulsive Disor
der.
It was also agreed that at present the patient is not psy
chotic, but he is not capable of cooperating with his coun
sel in the preparation of his defense.
We feel at this time that he is in need of further psychia
tric hospitalization and treatment. He will be reevaluated
at a later date and presented to the staff again for a deci-
3b
sion as to his final disposition. We will notify you of the
results of that meeting.
Yours very truly,
N
James B. Craig, M.D.
Superintendent
By: E. Stincer, M.D.
Senior Staff Physician
ES:jfh
STATE OF GEORGIA
CENTRAL STATE HOSPITAL
MILLEDGEVILLE, GEORGIA 31062
April 15, 1968
Honorable Dunbar Harrison
Judge, Superior Courts [sic]
Eastern Judicial Circuit
c/o Courthouse
Savannah, Georgia
Re: William Henry Furman
Case No. 157 086
Binion 4
Dear Judge Harrison:
The above named patient was admitted to this hospital
on October 26, 1967 by Order of your Court.
An evaluation has been made by our staff and a diagno
sis of Mental Deficiency, Mild to Moderate, with Psychotic
Episodes associated with Convulsive Disorder, was made. It
is felt that he is not psychotic at present, knows right from
wrong and is able to cooperate with his counsel in prepar
ing his defense.
4b
It is recommended that he be returned to the court for
disposition of the charges pending against him. Please have
a duly authorized person to call for him at your earliest
convenience.
Yours very truly,
Is/
James B. Craig, M.D.
Superintendent
By: E. Stincer, M.D.
Senior Staff Physician
ES:jfh
CC: Hon. Andrew Joe Ryan, Jr.
Solicitor General
Hon. Carl A. Griffin
Sheriff, Chatham County
i SEP 9 15'*
= = = = = = = = ---- ■ '........ i - ■ ■ ■ ! ! . ----------■
IN THE \ ■
Supreme Court of the Unite^States
No. 69-5030
LUCIOUS JACKSON, JR., Petitioner,
GEORGIA, Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF GEORGIA
BRIEF FOR PETITIONER
Jack Greenberg
James M.Nabrit, III
Jack Himmelstein
Elizabeth B. DuBois
Jeffry A.M intz
Elaine R. Jones
10 Columbus Circle, Suite 2030
New York, New York 10019
Bobby L .H ill
208 East 34th Street
Savannah, Georgia 31401
Michael Meltsner
Columbia University Law School
435 West 116th Street
New York, New York 10027
Anthony G. Amsterdam
Stanford University Law School
Stanford, California 94305
A ttorneys for Petitioner
(i)
TABLE OF CONTENTS
Page
OPINION BELOW ........................................................................... 1
JURISDICTION...................................................................... .. 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED........................... ................................ 2
QUESTION PRESENTED ............................................................ 2
STATEMENT OF THE CASE ....................................................... 2
HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW ........................ 10
SUMMARY OF ARGUMENT ..................................... 11
ARGUMENT:
I. The Death Penalty for Rape Violates
Contemporary Standards of Decency in
Punishment ........................................................................... 11
II. The Death Penalty for Rape Is
Unconstitutionally Excessive.................................................. 17
CONCLUSION ................. 21
Appendix A: Statutory Provisions Involved .............................. la
Appendix B: History of Punishment for Rape in Georgia.......... lb
TABLE OF AUTHORITIES
Cases:
Brown v. Board of Education, 347 U.S. 483 (1954).................... 14
Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 )................................... 19
McLaughlin v. Florida, 379 U.S. 184 (1964) .............................. 20
O’Neil v. Vermont, 144 U.S. 323 (1892) ................................... 17
Robinson v. California, 370 U.S. 660 (1962) .............................. 17
State v. Jackson, 225 Ga. 790, 171 S.E,2d 501 (1969)............... 1
Trop v. Dulles, 356 U.S. 86 (1958) .......................................... 16, 17
Weems v. United States, 217 U.S. 349 (1910) . . . . . . . . . . . . . 18
C onstitutional and
S ta tu to ry Provisions:
Eighth Amendment, United States Constitution. 2, 10, 11, 17, 18, 19
Fourteenth Amendment, United States Constitution . . . . 2, 10, 16
28 U.S.C. 1 1257(3)........................................................................... 1
Del. Code Ann. (1953), tit. 11, § 7 8 1 ............................................. 15
51 Del. Laws, 1957, ch. 347, p. 742 (1958) ............................. 15
D.C. Code (1967), §22-2801 ................. ......................................... 15
District of Columbia Court Reform and Criminal
Procedure Act of 1970, §204, 84 Stat. 473 (1970) ............... 15
Ga. Code Ann. §26-1301 ................................................................. 2
Ga. Code Ann. §26-1302 ................................................................. 2
Ga. Code Ann. §27-2302 ................................................................. 2
Ga. Code Ann. §27-2512 ................................................................. 2
Nev. Rev. Stat. (1967), §200.363 .................................................. 14
W. Va. Acts, 1965, ch. 40, p. 207 (1965) ................................... 15
W. Va. Code, §5930 (1 9 6 1 ) ................. 15
MAGNA CARTA, ch. 20-22 (1215) printed in ADAMS &
STEPHENS, SELECT DOCUMENTS OF ENGLISH
CONSTITUTIONAL HISTORY (1926) 42, 45 ......................... 18
Other Authorities:
Brief for Petitioner, in Aikens v. California, O.T.
1971, No. 68-5027 11,13,16
Granucci, “Nor Cruel and Unusual Punishments Inflicted: ”
The Original Meaning, 57 CALIF. L. REV. 839
(1969) ......................................................................................... 18
Kahn, The Death Penalty in South Africa, 18
TYDSKRIF VIR HEDENDAAGSE ROMEINS-
HOLLANDSE REG 108 (1970).................................................. 13
MURRAY, STATES’ LAWS ON RACE and COLOR
(1950) ......................................................................................... 14
Packer, Making the Punishment Fit the Crime, 77
HARV. L. REV. 1071 (1964) 18, 19
Patrick, The Status o f Capital Punishment: A World
Perspective, 56 J. CRIM. L., CRIM. & POL. SCI.
397 (1965)............ 13
The Manchester Guardian Weekly, August 14, 1 9 7 1 ................... 20
UNITED NATIONS, DEPARTMENT OF ECONOMIC
AND SOCIAL AFFAIRS, CAPITAL PUNISHMENT
(ST/SOA/SD/9-10) (1968) [cited as UNITED
NATIONS] ........................................................... 12,13
UNITED STATES DEPARTMENT OF JUSTICE,
BUREAU OF PRISONS, NATIONAL PRISONER
STATISTICS, Bulletin No. 45, Capital Punishment
1930-1968 (August 1969) [cited as NPS (1968)] . . . 14, 15, 16-17
IN THE
Supreme Court of the United States
N o . 6 9 - 5 0 3 0
LUCIOUS JACKSON, JR., Petitioner,
v.
GEORGIA, Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF GEORGIA
B R I E F F O R P E T I T I O N E R
OPINION BELOW
The opinion of the Supreme Court of Georgia affirming
petitioner’s conviction of rape and sentence of death by
electrocution is reported at 225 Ga. 790, 171 S.E.2d 501,
and appears in the Appendix [hereafter cited as A. ---- ] at
A. 1 12-116.
JURISDICTION
The jurisdiction of this Court rests upon 28 U.S.C. §1257
(3), the petitioner having asserted below and asserting here
a deprivation of rights secured by the Constitution of the
United States.
2
The judgment of the Supreme Court of Georgia was
entered on December 4, 1969. (A. 116) A petition for
certiorari was filed on March 4, 1970, and was granted
(limited to one question) on June 28, 1971 (A. 117).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Eighth Amendment to the Consti
tution of the United States, which provides:
“Excessive bail shall not be required, nor exces
sive fines imposed, nor cruel and unusual punish
ments inflicted.”
It involves the Due Process Clause of the Fourteenth
Amendment.
It further involves Ga. Code Ann. §§26-1301, 26-1302,
27-2302, 27-2512, which are set forth in Appendix A to
this brief [hereafter cited as App. A, pp. ___] at App.
A. pp. la-2a infra.
QUESTION PRESENTED
Does the imposition and carrying out of the death penalty
in this case constitute cruel and unusual punishment in vio
lation of the Eighth and Fourteenth Amendments?
STATEMENT OF THE CASE
Following a one-day trial, a jury of the Superior Court
of Chatham County, Georgia, convicted Petitioner Lucious
Jackson, Jr., a twenty-one year-old Negro,1 of the rape of
a white woman, and sentenced him to die in the electric
chair. The rape occurred on October 3, 1968; the trial on
December 10, 1968. Proceedings began at about 10:00 a.m.
with the overruling of various defense motions, including a
'(A. 13-14.)
3
motion for a continuance made on the grounds that peti
tioner’s court-appointed counsel needed “additional time
to prepare for a case of this magnitude” (A. 16 [Tr. 3]),
and that “further [psychiatric] examination and observation”
were required (A. 17 [Tr. 5]) because petitioner’s one-hour
interview with a court-appointed psychiatrist2 was “insuffi
cient and a mere form [that] . . . has no substance” (A. 17
[Tr. 4] ).3 (A. 16-17 [Tr. 3-5].) A jury was empaneled to
determine petitioner’s mental competence to stand trial (A.
21-22 [Tr. 16-18]); it heard the testimony of the court-
appointed psychiatrist (A. 22-31 [Tr. 18-32] )4 and pro-
2The length of petitioner’s psychiatric examination had not been
established at the time of the motion, which was based upon the fact
that the court-appointed psychiatrist had examined petitioner on
December 2 and made his report to the court on December 3. (A.
16 [Tr. 4].) Later, the psychiatrist testified that he had examined
petitioner for “ about an hour” (A. 23, 27 [Tr. 20, 25]), a period
which he believed sufficient to determine petitioner’s competency in
the circumstances of this case (A. 28-29 [Tr. 27-28]).
3Prior to trial, petitioner’s appointed counsel had filed a motion
for a sixty-day continuance and for allowance of funds to have the
indigent petitioner examined by a defense psychiatrist. (A. 5-6.) On
November 26, the court denied any continuance (A. 7), and appointed
a named psychiatrist to examine petitioner and to submit a report
“ for the use of the Court, with a copy thereof’ to the prosecutor and
defense counsel. (A. 9) The report was submitted (A. 16-17 [Tr. 4
5]) but was not introduced into the record.
4The doctor testified that he had examined petitioner for “about
an hour” on December 2, 1968 (A. 23 [Tr. 19-20]), and did not see
him again until the day of trial (A. 27 [Tr. 26]). He agreed that his
opinions were based entirely on what he found in that hour interview
(A. 27 [Tr. 25]). Although he administered no written tests, he
found the petitioner to be of “average education or average intelligence.”
(A. 24 [Tr. 20]). He determined that petitioner was not an imbecile
or schizophrenic, but he did find that he had a sociopathic person
ality. He defined this as not “a neurotic or psychotic type of illness,”
but as traits which are the product of environmental influences (A.
25 [Tr. 22]), and which bring an individual “in conflict with society
and other people” (A. 24 [Tr. 21]). No evidence of a need for fur
ther observation was found (A. 29 [Tr. 28]), and the doctor concluded
that petitioner had the ability to understand his situation, and was
thus competent to stand trial (A. 30-31 [Tr. 30-31]).
4
nounced petitioner competent (A. 13.) Another jury was
immediately selected to try the issues of guilt and punish
ment (A. 33-41 [Tr. 37-48]); it was death-qualified by the
exclusion of eleven veniremen who were conscientiously
opposed to capital punishment and said that they would
never vote to impose the death penalty in any case regard
less of the circumstances (A. 33-35 [Tr. 37-39] );5 it heard
evidence (A. 42-83 [Tr. 51-1 19]), and returned its death
verdict shortly after 6:00 p.m. (A. 15-16.)
The prosecutrix was Mrs. Mary Rose, a physician’s wife.
(A. 42-43 [Tr. 51].) She testified that on October 3, 1968,
her husband left the house for work at 7:00 a.m. She went
back to sleep and was awakened at about 7:45 by her four-
month-old baby crying for its bottle. She arose, diapered
and fed the baby, and let it play while she had toast and
coffee. Then, at about 8:30 a.m., she took the baby into
the nursery and bathed it. (A. 43-44 [Tr. 51-53].)
While bathing the baby, she heard a noise from the dining-
or living-room area of the house. Supporting the baby in
the tub with one hand, she stepped out into the hall and
looked in the direction of the noise but saw nothing. She
supposed that it was one of her cats, so she returned, fin
ished bathing the baby, and began to dress it in its crib.
She then heard a louder and more unusual noise from the
same area. Since the baby was safe in its crib, she went to
investigate. Again she saw nothing and returned to the nur
sery. (A. 44-47 [Tr. 53-57].)
Turning for some reason toward the baby’s closet, she
suddenly saw a “young colored male” (A. 47 [Tr. 58])—
whom she identified at trial as the petitioner (A. 59 [Tr.
76] )-standing in the closet. He held a half of a pair of
scissors in his hand, with the handle wrapped in a cloth.
Petitioner unsuccessfully objected to the excuse of these venire
men for cause. (A. 34, 35 [Tr. 37, 39].) The Georgia Supreme Court
subsequently held that their exclusion was proper under Witherspoon
v. Illinois, 391 U.S. 510 (1968). (A. 114.)
5
(A. 47 [Tr. 58].)6 Mrs. Rose screamed, but before she
could do anything, petitioner crossed the room, took her
by one arm, and placed the half-scissors so that they were
“pressing against the right side of [her] . . . neck, right at
[her] . . . carotid artery.” (A. 48 [Tr. 58].) She “was
screaming and trying to get away, and . . . pushing him with
[her] . . . free arm,” but he told her that if she did not “be
quiet he was going to have to hurt [her] . . ., and the scis
sors were really pressing into [her] . . . neck.” She did
stop screaming, and he told her “that all he wanted was
money, if [she] . . . just would give him money that he
would go away and he would not hurt [her] . . . .” (A.
48 [Tr. 59].)
She was anxious to get him out of the baby’s room as
quickly as she could. Leaving the baby in the crib, they
went first into the living-room, then the dining-room, then
back up the hall and into a bathroom, looking for money.
He asked her where the money was and, throughout this
period, he continued to hold the scissors against her neck
and to push her along. (A. 48-49 [Tr. 59-61 ].) They found
a pocketbook in the bathroom, but it had no money in it,
so he pushed her on into the bedroom, still with the scissors
against her neck. Seeing a five-dollar bill and change on a
dresser, he put the scissors down to take the money. (A.
49 [Tr. 61].)
She then grabbed the scissors. He had been holding her
left hand behind her while pushing her, and was still behind
her, holding that hand. She took the scissors in her right
hand and “tried very hard to stab him anywhere,” but could
not reach him. While she was trying to stab him, they fell
together onto the nearby bed. She was on top with the
scissors and struggled for awhile trying to stab him. When
she failed at this because he was holding her arm, she threw
6Mrs. Rose identified the half-scissors as her own, which petitioner
apparently took from some area of the house and disassembled by
removing the nut or screw that held the halves together (A 56 [Tr
72].)
6
the scissors out of his reach onto the floor. They both
struggled and fell near the scissors, and she recovered them
again. (A. 49-50 [Tr. 61-64].) “But he knocked [her] . . .
backwards on the floor, and [she] . . . was on [her] . . .
back at that point. And he was on top trying to get the
scissors from [her] . . . hand.” (A. 51 [Tr. 64].)
They continued to struggle, he trying to take the scissors
from her, she trying “to get the scissors into him anywhere
[she] . . . possibly could.” (A. 51 [Tr. 64].) She kept
her grip on the scissors, but he got her arm behind her and
began to beat her hand that was holding the scissors “very
hard” against the foot of the bed. She had had a cortisone
injection “for a tendon” in that wrist about a week before;
it was still sore from the injection; and she couldn’t hold
the scissors any longer, so she tossed them away again.
They both struggled' after the scissors, and this time he got
them in his left hand. (A. 51-53 [Tr. 64-66].)
She “was on the floor, and he was on top of [her] . . .
He had her right arm pinned down with his left, and again
he “was holding the scissors against [the] . . . side of [her]
. . . neck.” He had her legs pinned to the floor with his
knees, and was holding her left hand in his right. He told
her if she “moved anymore he was going to hurt [her] . . .
or kill [her] . . . .” Then he released her left hand, pulled
her gown open down the front, unzipped his pants, and had
sexual intercourse with her, effecting penetration. (A. 53-
54 [Tr. 66-69].) She was trying to push him away with her
left hand, but “ the more [she] . . . pushed, the deeper those
scissors went into [her] . . . neck, just right. . . against the
carotid artery.” He “grabbed [her] . . . hand [that] . . .
was trying to push him away . . .[a]nd he kept telling
[her] . . . if [she] . . . continued to struggle that he would
have to hurt [her] . . . or kill [her] . . . and just to be still
. . . [a]nd . . . the scissors just were pressing very deeply
into [her] . . . neck.” (A. 54 [Tr. 68].)
While he was on top of her, the maid arrived for work
and knocked on the back door. Mrs. Rose “had been telling
7
him that the maid was coming, hoping that this would get
him to leave.” She heard the maid knocking and told him,
but he did not believe her and did not stop. The maid then
came around to the front door; she apparently “could see
the baby screaming and the side rail down on the crib
through [the] . . . window” of the nursery; and the maid
began to shout Mrs. Rose’s name at the front door. (A. 54-
55 [Tr. 69].)
Petitioner heard the maid, got to his knees, and then
pulled Mrs. Rose to her feet by the arm, still holding the
scissors “pressing into [her] . . . neck.” They stood by the
bedroom window, with its drawn shade, and he told her to
go and let the maid in. She did not want to do so because
“the baby was still there” and he “still had the scissors,”
so she reached over and flipped the shade up quickly. This
startled him; he saw that the window was up and the screen
was unlocked; and he went out the window. (A. 55-56 [Tr
71].)
Mrs. Rose then locked the screen behind him, let the
maid in, told the maid that she had been raped, and asked
her to get the baby and bring it out of the house. With the
maid carrying the baby, they went to the next-door neigh
bor’s home, where Mrs. Rose told the neighbor that she had
been raped and to phone the police. (A. 57 [Tr. 72-73].)
This was about 9:00 a.m. (A. 68-73 [Tr, 78-79, 82].) The
maid described Mrs. Rose at this time as “very upset and
hysterical” (A. 62 [Tr. 81]), and the neighbor testified that
she was “real upset and terrified” (A. 63 [Tr. 82]):
“ . . . And her hair was all messed up. She had on
her gown and it was tom, and she had blood all on
the bottom of her gown. And she kept saying that
she’d been raped. She said, ‘I’ve been raped.’ And
she said, ‘He tried to kill me,’ said, ‘He had a knife-
or scissors to my throat,’ said, ‘I just knew he would
have killed me,’ said, ‘I was worried about the baby’ ”
(A. 63-64 [Tr. 82].)
An investigating detective, who soon arrived, also found Mrs.
Rose “very upset,” with “tears in her eyes,” “very emo
tional.” (A. 65 [Tr. 84].)
8
Despite Mrs. Rose’s ordeal—and without diminishing that
ordeal in the slightest—it is the fact that she emerged with
no physical injuries other than some bruises and abrasions.
Mention has been made that her neighbor saw blood on her
gown (A. 63-64 [Tr. 82-83]); and the investigating detective
also found blood on the bedroom floor (A. 66 [Tr. 85]).
But the record does not indicate that this was Mrs. Rose’s
blood rather than petitioner’s. To the contrary, an obstetri
cian and gynecologist who examined Mrs. Rose between
10:30 and 11:00 a.m. the same morning described the
extent of her injuries as follows:
“On examination, the soft tissue—soft tissues in
the anterior of the throat were very tender on pal
pation. There was an abrasion over the right clavicle
or the right collar bone, and there were superficial
lacerations of the right forearm and the right—palm
of the right hand. There was also an abrasion on
the anterior surface of. the right tibia or the right
lower leg. On pelvic examination, there was a small
amount of blood in the vagina and the coccyx or
tail bone so to speak was very tender to palpation.”
(A. 69-70 [Tr. 90-91].)
Apparently, Mrs. Rose was not hospitalized: she was back
at her house by about 2:00 p.m that afternoon, when peti
tioner was arrested in the area. (A. 66-67 [Tr. 86-87].)
Nor is this a case of rape in which any serious or long-term
psychological harm to the unfortunate victim appears.
Petitioner had apparently entered the Rose house by re
moving a perforated cardboard panel which the Roses kept
inserted in the bottom of a jalousie door to permit their
cats to go in and out freely. (A. 57-58, 83 [Tr. 73-75, 118-
119].) After he left the house following his assault on Mrs.
Rose, he fled on foot and hid in a neighbor’s garage. Between
1:30 and 2:00 p.m that afternoon, he was found in the
garage by Dr. Rose and the neighbor; the neighbor trained
a gun on petitioner; petitioner fled with the neighbor shout
ing in pursuit; he was stopped by other persons in the area
and then arrested by police. (A. 71-72 [Tr. 93-95].)
9
This is all that the evidence presented at the trial reveals
about petitioner and his offense. However, the sentencing
jury almost surely knew that, at the time of his assault up
on Mrs. Rose, petitioner was a convict who had escaped
from a Negro prisoners' work gang in the area, where he
had been serving a three-year sentence for auto theft; and
that during the three days when he remained at large, he
was charged with several other offenses in the vicinity.
These matters were extensively reported in newspaper arti
cles (A. 86-98 [Tr. 122-130]) introduced by petitioner7
in support of his unsuccessful motion for a change of
venue (A. 17, 18-21, 41-42 [Tr. 5, 11-16, 49-50]); and they
were known to at least one venireman, whom the court
nonetheless refused to excuse upon petitioner’s challenge
for cause. (A. 37-40 [Tr. 43-47].) Because these articles
portray a somewhat inaccurate version of the other offenses
in question, we recite below the evidence concerning them
that was presented at petitioner’s preliminary hearing on the
several charges.8 The articles also reveal that the local com-
7(See A. 18-19 [Tr. 11-13].)
8On October 28, 1968, petitioner was given a preliminary hearing
on the present charge of rape and on the several other charges. The
transcript of the preliminary hearing on all charges was a part of this
record in the trial court, but does not appear to have been before the
Georgia Supreme Court and was not certified to this Court. It is cited
hereafter in this footnote as P. T r .___.
Petitioner apparently left the work gang on September 30, 1968.
He was thereafter charged with the following offenses, all in the area
of his escape:
(1) Burglary, October 30, 1968. Late in the afternoon of Octo
ber 30, an intruder broke a screen and entered the home of a Mr.
McGregor. Subsequently, a pair of black boots were found under a
bed in the McGregor house and were identified as convict’s boots
issued to petitioner before his escape. A pair of shoes and a pocket
knife were taken from the house. Petitioner was wearing the shoes
when he was arrested on August 3; and the pocket knife was found
at the scene of a subsequent burglary with which he was charged (see
paragraph (3) infra). No one was home in the McGregor house at the
time of the entry. (P. Tr. 39-47, 58, 62-64.)
(2) Auto theft, October 1 or October 2. Late at night on Octo
ber 1 or early in the morning on October 2, a station wagon belong-
JO
munity was upset and angry because police officials had
failed to give any warning that an escaped convict was at
large (A. 86-87, 93 [Tr. 122, 127]; and that petitioner
was taken quickly from the area by police following his
arrest, because of an angry crowd of area residents at the
scene (A. 94, 95 [Tr. 128, 129]).9
HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW
Paragraph 18 of Petitioner’s Amended Motion for New
Trial, filed by leave of court, contended that the death sen
tence which had been imposed upon him was a cruel and
unusual punishment forbidden by the Eighth and Fourteenth
Amendments to the Constitution of the United States. (R.
29,31.) The motion was overruled. (R. 36.) Paragraph 6
of petitioner’s Enumeration of Errors in the Georgia Supreme
ing to a Mr. Summerall was taken from his carport. The keys had
been left in the car. Subsequently, the car was found in a church
parking lot in the vicinity. The car keys, on a clip with the keys to
the Summerall house, were found in Mrs. Rose’s home following the
assault on her. (P. Tr. 47-53.)
(3) Burglary and assault and battery, October 2. At about 3:30
a.m. on October 2, an intruder entered the home of a Mrs. Coursey
by cutting a window screen. One of Mrs. Coursey’s teenage daughters
awakened to see a figure standing over the bed in her room. She
thought that it was her mother, reached up and touched the person
on the neck, then saw that it was a colored man and began to scream.
He slapped her on the arm and told her to ‘Sh-,” but she continued
to scream and may have kicked him. He then fled from the house.
Later, the knife taken from the McGregor house (paragraph (1) supra)
was found in the Coursey house. (P. Tr. 55-63.)
(4) The rape o f Mrs. Rose on October 3.
9The article at A. 94 [Tr. 128] also reports that petitioner was
struck several times, at least once by a gun butt, following his appre
hension by area residents and prior to his removal by police.
Court made the same contention.10 The Georgia Supreme
Court rejected it upon the merits. (A. 114.)
SUMMARY OF ARGUMENT
I. Even more than for the crime of murder, the use of
the death penalty for the crime of rape is overwhelmingly
repudiated by contemporary standards of decency. The
retention on the statute books and the sporadic infliction
of the punishment of death for rape in the Southern States
are accounted for exclusively by racial considerations, and
do not demonstrate public acceptance of the fitness of the
penalty for this offense. Under any construction of the
Eighth Amendment which would not render it obsolete
and futile, capital punishment for rape is a cruel and unusual
punishment.
II. The Eighth Amendment forbids punishments which
are grossly excessive and disproportioned to the offense.
While rape is a serious offense, it is almost nowhere viewed
today as warranting the punishment of death except where
race is added to the balance. In the nearly universal estima
tion of civilized nations capital punishment for rape is exces
sive. It therefore violates the Eighth Amendment.
ARGUMENT
I. THE DEATH PENALTY FOR RAPE VIOLATES
CONTEMPORARY STANDARDS OF DECENCY IN
PUNISHMENT.
The Brief for Petitioner in Aikens v. California11 sets forth
the reasons why we believe that the death penalty is a cruel
and unusual punishment for any civilian crime, as that pun-
10P. 1 of the Enumeration of Errors, filed August 22, 1969. [This
document is contained in, but is not paginated as a part of, the original
record filed in this Court.]
n O.T. 1971, No. 68-5027.
12
ishment is administered in the United States today. The
essence of the argument is that all objective indicators prop
erly cognizable by this Court demonstrate a clear and over
whelming repudiation of the penalty of death by this
Nation and the world. The penalty survives on the statute
books only to be—and because it is—rarely and arbitrarily
applied to pariahs whose numbers are so few and persons
so unpopular that the public and the legislatures can easily
stomach the infliction upon them of harsh penalties that
would never be tolerated if generally enforced. This sort
of rare, terroristic infliction is precisely the evil against
which the Eighth Amendment must guard, if that Amend
ment is to serve a function among the guarantees of rights
in a democratic society.
It would serve no purpose to repeat the details of that
argument here. Several considerations which underline its
application to the crime of rape, however, deserve emphasis:
- (1) The nations of the world, with extraordinary
unanimity, no longer punish rape with death. A United
Nations survey of more than sixty countries, which included
most of the major civilized nations, found that by 1965 all
but three countries outside the United States had ceased to
employ capital punishment for this crime.12 The three
countries retaining the death penalty for rape were China
(Taiwan), Malawi, and the Republic of South Africa.13 A
broader but less reliable study by Patrick in 1963 covered
128 countries and found nineteen outside of the United
12UNITED NATIONS, DEPARTMENT OF ECONOMIC AND SO
CIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/SD/9-10) (1968)
[hereafter cited as UNITED NATIONS], 40, 86. We put aside three
countries that punish rape capitally only if it is followed by the victim’s
death. Ibid.
13The 1960 United Nations survey (UNITED NATIONS 40) lists
four countries as retaining the death penalty for rape: China, Northern
Rhodesia, Nyasaland, and the Republic of South Africa, Nyasaland
became Malawi upon its independence in 1964. Northern Rhodesia
became Zambia, and abolished the death penalty for rape by 1965.
UNITED NATIONS 86.
13
States that authorized capital punishment for rape.'4 This
figure should be reduced by at least three on account of
errors15 and one known subsequent abolition.16 All of the
countries correctly listed by Patrick are in Asia or Africa;
and, in any event, Patrick’s data concerning their actual use
of the death penalty suggests that almost no one in the
world is actually executed for this crime outside of the
United States and South Africa.17
(2) In the United States, the death penalty for rape is
authorized by law in sixteen States and by the federal gov
ernment.18 Since 1930, 445 men have been put to death
14Patrick, The Status o f Capital Punishment: A World Perspective,
56 J. CR1M. L., CRIM. & Pol. Sci., 397, 398-404 (1965). The coun
tries are: Afghanistan, Austrialia, Basutoland, Bechuanaland, People’s
Republic of China, Gabon, Jordan, Republic ot Korea, Malagasy Re
public, People’s Republic of Mongolia, Niger, Northern Rhodesia, My-
asaland [now Malawi], Saudi Arabia, Senegal, Sierra Leone, Republic
of South Africa, Turkey, and the U.S.S.R.
15 Australia and the U.S.S.R., which Patrick lists, do not authorize
the death penalty for rape according to the United Nations survey.
Turkey, which Patrick also lists, was found by the United Nations to
punish rape with death only if the rape victim dies. On the other
hand, Patrick does not list China (Taiwan), as the United Nations sur
vey does. These errors decrease Patrick’s by a total of two.
16Northern Rhodesia (now Malawi). See note 13 supra.
I7Patrick provides figures for the average yearly number of execu
tions (1958-1962) for all crimes for each country except the People’s
Republics of China and Mongolia, and Sierra Leone. None of the
countries for which figures are given executed more than two men a
year for all crimes, except Basutoland (3), Korea (68), Northern Rho
desia (6.5)—which has now abolished the death penalty for rape (see
note 13, supra)—and the Republic of South Africa (100). It is known
that fewer than 10 per cent of South Africa’s 100 executions yearly
are for rape, Kahn, The Death Penalty in South Africa, 18 TYDSKRIF
VIR HENDENDAAGSE ROMEINS-HOLLANDSE REG 108, 116-117
(1970).
18Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mary
land, Mississippi, Missouri, Nevada (see note 20 infra), North Carolina,
Oklahoma, South Carolina, Tennessee, Texas and Virginia. See Appen
dix G to Brief for Petitioner, in Aikens v. California, supra.
14
for this crime, but only twenty during the past decade and
none since 1964.19
(3) It is instructive to consider the geography of capital
punishment for rape in this country. With the exception of
Nevada (which punishes the crime capitally only in the
event of “substantial bodily harm” 20and has not executed a
man for rape since at least 193021) all of the States which con
fer discretion on their juries to impose death as the penalty
for rape are Southern or border States.22 This geographic dis
tribution does not seem accidental. In 1954 this Court in
Brown v. Board of Education, 347 U.S. 483 (1954), declared
racial discrimination in the public schools unconstitutional.
Here are comparative lists of all the States whose statutes
required or authorized racial segregation in the public schools
in 1954 and of those which now authorize capital punish
ment for rape:
Segregation States23
Alabama
Arizona
Arkansas
Delaware
District of Columbia
Florida
Georgia
Kansas
Death Penalty States
Alabama
Arkansas
Florida
Georgia
19u n it e d st a t e s d e pa r t m e n t o f ju s t ic e , b u r e a u o f
PRISONS, NATIONAL PRISONER STATISTICS, Bulletin No. 45,
Capital Punishment 1930-1968 (August 1969) [hereafter cited as NFS
(1968)], p. 7.
^Nev. Rev. Stat. (1967), §200.363.
21NPS (1968) 11. The federal government has executed only two
men for rape since 1930. Id. at 10.
22See note 17, supra.
23As listed in Murray, States’ Laws on Race and Color (1950). 14
n. 47.
5
Kentucky
Louisiana
Maryland
Mississippi
Missouri
Kentucky
Louisiana
Maryland
Mississippi
Missouri
Nevada
New Mexico
North Carolina
Oklahoma
South Carolina
Tennessee
Texas
Virginia
Texas
Virginia
North Carolina
Oklahoma
South Carolina
West Virginia
Wyoming
(Delaware, the District of Columbia and West
Virginia also punished rape with death until
1958, 1970, and 1965 respectively.)24
(4) The racial figures for all men executed in the United
States for the crime of rape since 1930 are as follows: 48
white, 405 Negro, 2 other.25 In Georgia, the figures are: 3
white, 58 Negro.26 These figures are also clearly not acci
dental. In Appendix B to this brief, we trace the history
of the punishment for rape in Georgia since the days of
slavery. Briefly stated, prior to the Civil War rape committed
by a white man was never regarded as sufficiently serious
to warrant a penalty greater than 20 years imprisonment.
Rape committed by a slave or a free person of color upon
a white woman was punishable by death. One year after
24Del. Code Ann. (1953), tit. 11, §781, repealed by 51 Del. Laws,
1957, ch. 347, p. 742 (1958).
D.C. Code (1967), §22-2801, repealed by District of Columbia
Court Reform and Criminal Procedure Act of 1970, §204, 84 Stat.
473, 600 (1970).
W. Va. Code, §5930 (1961), repealed by W. Va. Acts, 1965, ch.
40, p. 207 (1965).
25NPS (1968) 10.
^NPS (1968) 11.
16
the abolition of slavery, a facially color-blind statute was
enacted, giving juries discretion to sentence any man con
victed of rape to either death or not more than 20 years
imprisonment. It was not until I960 that the third option
of life imprisonment was added to these two alternatives.
The objects of the alternatives have been perfectly obvious
to Georgia juries, and should be no less obvious to any
observer.
We, make this point not to demonstrate a denial of the
Equal Protection of the Laws—a claim not now before the
Court and whose vindication is impeded by considerable
difficulties27-bu t to demonstrate rather the nature and
extent of the acceptance28 which the death penalty for rape
enjoys in Georgia and in this country today. The roots of
that acceptance lie in racial, not penal, considerations; and
its extent is amply signified by Georgia’s execution of three
white men in forty years for rape. During the same forty
years, the United States collectively have tolerated just a
little more than one white execution per year for this
offense. No single State has tolerated a fraction of that
total.29 Palpably, capital punishment for rape is not “still
27See Brief for Petitioner, in Aikens v. California, O.T. 1971, No.
68-5027, pp. 51-54.
28As in the Aikens brief, supra, our argument here addresses the
question whether the death penalty for rape “is still widely accepted,”
within the meaning of Trop v. Dulles, 356 U.S. 86, 99 (1958) (plural
ity of opinion of Chief Justice Warren).
29Since 1930, the following American jurisdictions have executed
the following numbers of men for rape:
Federal Government
White
0L,
Negro
0
District of Columbia 0 3
Alabama 2 20
Arkansas 2 17
Delaware 1 3
Florida 1 35
Georgia 3 58
Kentucky 1 9
Louisiana 0 17
17
widely accepted” 30, or accepted at all when race does not
enter the picture, in this country. It is thoroughly repudi
ated and rejected; and under any standard of the Eighth
Amendment which considers “the evolving standards of
decency that mark the progress of a maturing society,” 31
it is an unconstitutional cruel and unusual punishment.
II. THE DEATH PENALTY FOR RAPE IS
UNCONSTITUTIONALLY EXCESSIVE
The same facts regarding the manner and extent of con
temporary usage of the death penalty for rape also reflect
upon another fundamental Eighth Amendment concern.
This is the “inhibition . . . against all punishments which by
their excessive . . . severity are greatly disproportioned to
the offences charged.”313 Restraints upon excessive punish-
Maryland 6 18
Mississippi 0 21
Missouri 3 7
North Carolina 4 41*
Oklahoma 0 4
South Carolina 5 37
Tennessee 5 22
Texas 13 71
Virginia 0 21
West Virginia 0 1
*and 2 “other.”
NPS (1968) 10-11.
30See note 28, supra.
3lTrop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion of
Chief Justice Warren).
3Xa O’Neil v. Vermont, 144 U.S. 323, 337, 339-340 (1892) (Mr. Jus
tice Field, dissenting). Justices Harlan and Brewer agreed with Justice
Field that O’Neil’s sentence was excessive “in view of the character
of the offences committed.” Id. at 366, 371. The majority of the
Court declined to reach the merits of the question because it was not
properly presented and because the Eighth Amendment was not then
viewed as a restraint upon the States. Id., at 331-332. But see Rob
inson v. California, 370 U.S. 660 (1962); Brief for Petitioner, in Aikens
v. California, supra, n. 24.
18
merit run deep in the Anglo-American tradition;32 and their
expression in the Eighth Amendment was a principal ground
of decision in Weems v. United States, 217 U.S. 349 (1910).
Although the cadena temporal and its accessories were visi
bly harsh and outlandish in nature, their condemnation in
Weems rests expressly upon their oppressiveness for the
crime of falsifying public records, and their consequent lack
of “adaptation of punishment to the degree of crime.” Id.
at 365.33
To be sure, this constitutional concept of adaptation
does not require that the punishment fit the crime like a
glove. Neither legislatures nor courts, nor the sciences of
penology are equipped for that kind of measurement. See
Packer, Making the Punishment Fit the Crime, 77 HARV. L.
REV. 1071, 1078-1080 (1964). However, it would ignore
the entire experience of our criminal law system to deny
that the grading of offenses by their seriousness is endemic
to it;34 and, in this context, the Eighth Amendment’s pro-
32Magna Carta contains three chapters requiring that amercements
be proportioned to the measure of magnitude of offenses. MAGNA
CARTA, ch. 20-22 (1215), printed in ADAMS & STEPHENS, SELECT
DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY (1926)
42,45. These and other aspects of the English tradition are discussed
in Granucci, “Nor Cruel and Unusual Punishments Inflicted:" The
Original Meaning, 57 CALIF. L. REV. 839, 844-847 (1969). In foot
note 36 of the Brief for Petitioner, in Aikens v. California, supra, we
explain why the additional concern of the American Framers against
barbarous punishments implies no abandonment of the traditional
English restriction upon excessive ones.
33See id. at 377:
“ It is cruel in its excess of imprisonment and that which
accompanies and follows imprisonment. It is unusual in its
character. Its punishments come under the condemnation of
the Bill of Rights, both on account of their degree and kind.
And they would have those bad attributes even if they were
found in a Federal enactment and not taken from an alien
source.”
^We are aware of no jurisdiction that does not operate upon this
principle in the legislative prescription of the maximum penalties for
grades of offenses, “ individualization” of punishment is invariably
19
hibition of cruel and unusual punishments must impose
some restriction upon a legislature’s power to proceed aber
rantly in affixing maximum penalties to grades of crime.35
The question is whether Georgia has done so here in pun
ishing rape with death. That question is answered, we think,
by the nearly universal judgments of mankind. Rape is
assuredly a serious offense, and we do not minimize its seri
ousness. But almost nowhere in the world today, except in
the American South and in South Africa, is the death penalty
inflicted for it. Other punishments for other crimes may
vary from jurisdiction to jurisdiction, providing no basis for
estimation of a commonly perceived relationship of fitness
between them. Death punishment for rape is, by extraor
dinary national and worldwide accord, perceived to be
excessive.
Even this might not condemn it if the States in which it
was used had some particular local situation to which it
legitimately responded. But the situation to which it in
fact responds in the American Southern States—and, once
permitted within legislatively fixed limits determined by the serious
ness of the crime. In the present case, of course, the Court is con
cerned only with the permissibility of the statutory maximum as a
maximum; and so the complexities of accounting for individualiza
tion-stressed by Professor Packer, supra, 77 HARV. L. REV., at 1080-
1081—appear to be wide of the mark. Doubtless a theoretical system
of criminal justice could be designed in which offenses were not
graded nor maximum penalties assigned to them according to their
character. And in the context of such a system, an Eighth Amend
ment might require no adaptation of crime and penalty. But that is
not the American criminal justice system or the context of the Eighth
Amendment to the Constitution of the United States. Cf. Duncan v.
Louisiana, 391 U.S. 145, 149-150 n. 14 (1968).
35 Even Professor Packer seems to admit this point, saying that life
imprisonment or capital punishment for trivial offenders “might be
ruled out.” Packer, supra, 11 HARV. L. REV., at 1081. He explains
this result in terms of “ decency,” not excessiveness. But the re seems
to be nothing indecent about a life sentence for jaywalking, except
the indecency that arises from its perceived excessiveness.
20
again, in South Africa36—cannot be thought to justify it.37
Both the iegisaltive history of the Georgia rape statute 38
and its actual use by Georgia juries39 demonstrate that
death has not been thought to be a fitting punishment for
rape in that State in the absence of racial considerations.
has recently been reported that, between 1947 and 1969, 844
rape convictions of black South Africans resulted in 121 death sen
tences, while 288 rape convictions of white South Africans resulted
in 3 death sentences. The Manchester Guardian Weekly, August 14,
1971, p. 4.
37McLaughlin v. Florida, 379 U.S. 184 (1964).
38See Appendix B to this brief.
39See text at note 26 supra.
21
CONCLUSION
The death sentence imposed upon petitioner Lucious
Jackson, Jr., should be set aside as a cruel and unusual
punishment.
Respectfully submitted,
JACK GREENBERG
JAMES M. NABRIT, III
JACK HIMMELSTEIN
ELIZABETH B. DUBOIS
JEFFRY A. MINTZ
ELAINE R. JONES
10 Columbus Circle, Suite 2030
New York, New York 10019
BOBBY L. HILL
208 East 34th Street
Savannah, Georgia 31401
MICHAEL MELTSNER
Columbia University Law
School
435 West 116th Street
New York, New York 10027
ANTHONY G. AMSTERDAM
Stanford University Law
School
Stanford, California 94305
Attorneys for Petitioner
(A-i)
TABLE OF AUTHORITIES
APPENDICES
Statutory Provisions:
Ga. Acts 1811, No. 503, 797-800 .................................................. lb
Ga. Acts. 1815, No. 504, printed in LAMAR, COMPILATION
OF THE LAWS OF GEORGIA, p. 800 (1821) .................... lb-2b
Ga. Acts. 1816, No. 508 § 1, printed in LAMAR, COM
PILATION OF THE LAWS OF GEORGIA, p. 804 (1821) . . 2b
Ga. Acts 1866, Nos. 209, 210, p. 151 ..................................... 4b
Ga. Acts 1866, No. 236, p. 233 . ................................................ 4b
Ga. Acts 1960, No. 587, p. 266 ............................................... 6b
Ga. Acts 1963, No. 56, §2, pp. 122-123 ....................................... l a
Ga. Acts 1968, pp. 1249, 1299 . . '................................................ 6b
Ga. Code Ann., §26-1302 (1953) ................. ............................. 4b, 6b
Ga. Code Ann. §26-1301 ................................................................ la
Ga. Code Ann. §26-1302 ................................................................. la
Ga. Code Ann. §27-2302 .................................. la
Ga. Code Ann. §27-2512 ................................................................. 2a
Ga. Crim. Code §26-2001 2a
Ga. Crim. Code §26-3102 ................................................................. 2a-3a
Penal Code of 1811, §§ 60, 67, printed in LAMAR,
COMPILATION OF THE LAWS OF GEORGIA, pp.
551-552 (1821) ............................................ lb
Penal Code of 1816, §§ 33-34, printed in LAMAR,
COMPILATION OF THE LAWS OF GEORGIA, p.
571 (1821) 2b
Penal Code §§ 4248-4250, printed in CLARK, COBB &
IRWIN, CODE OF THE STATE OF GEORGIA (1861)
824 ...............................................................................................2b-3b
Penal Code for Slaves and Free Persons of Color, §§ 4704,
4708, printed in CLARK, COBB & IRWIN, CODE OF
THE STATE OF GEORGIA (1861)918 ................................... 3b
(A-ii)
Other Authorities:
Humphries of Lincoln, A Bill to be entitled An Act to alter
and change the 4249th and 4250th paragraphs of the Code
of Georgia (in Custody of Georgia State Archives,
Atlanta, Georgia) ........................................................................... 5b
Journal of the House of Representatives of the State of
Georgia, Commenced November 1, 1866 (1866) ..................... 5b
Journal of the Senate of the State of Georgia (1866) ............... 5b
la
APPENDIX A
STATUTORY PROVISIONS INVOLVED
Ga. Code Ann., § 26-1301
(1953 Rev, voi.)
effective prior to July 1, 1969
26-1301, (93 P.C.) Definition. -Rape is the carnal knowledge of a
female, forcibly and against her will. (Cobb, 787.)
Ga. Code Ann., § 26-1302
(1970 Cum, pocket part)
effective prior to July 1, 1969
26- 1302. (94 P.C.) Punishment; recommendation by jury to mercy.
The crime of rape shall be punished by death, unless the jury recom
mends mercy, in which event punishment shall be imprisonment for
life: Provided, however, the jury in all cases may fix the punish
ment by imprisonment and labor in the pentientiary for not less than
one year nor more than 20 years. (Cobb, 787. Acts 1866, p. 151;
1960, p. 266.)
Ga. Code Ann., § 27-2302
(as amended by Ga. Acts, 1963,
No. 56, §2, pp." 122-123, effec
tive March 14, 1963)
effective prior to July 1, 1969
27- 2302. In all capital cases, other than those of homicide, when
the verdict is guilty, with a recommendation to mercy, it shall be legal
and shall mean imprisonment for life. When the verdict is guilty with
out a recommendation to mercy it shall be legal and shall mean that
the convicted person shall be sentenced to death. However, when it
is shown that a person convicted of a capital offense without a recom
mendation to mercy had not reached his seventeenth birthday at the
time of the commission of the offense the punishment of such person
shall not be death but shall be imprisonment for life.
2a
Ga. Code Ann., §27-2512
(1953 Rev, vol.)
27-2512. Electrocution substituted for hanging; place of execution.
—All persons who shall be convicted of a capital crime and who shall
have imposed upon them the sentence of death, shall suffer such pun
ishment by electrocution instead of by hanging.
In all cases in which the defendant is sentenced to be electrocuted
it shall be the duty of the trial judge, in passing sentence, to direct
that the defendant be delivered to the Director of Corrections for
electrocution at such penal institution as may be designated by said
Director. However, no executions shall be held at the old prison
farm in Baldwin county. (Acts 1924, pp. 195, 197; Acts 1937-38,
Extra. Sess., p. 330.)
Ga. Crim, Code, §26-2001
(1970 Rev, vol.)
(effective July 1, 1969)
26-2001. Rape.—A person commits rape when he has carnal knowl
edge of a female, forcibly and against her will. Carnal knowledge in
rape occurs when there is any penetration of the female sex organ by
the male sex organ. A person convicted of rape shall be punished by
death or by imprisonment for life, or by imprisonment for not less
than one nor more than 20 years. No conviction shall be had for
rape on the unsupported testimony of the female.
(Acts 1968, pp. 1249, 1299.)
Ga. Crim. Code, §26-3102
(1970 Rev, vol.)
(effective July 1, 1969)
26-3102. Capital offenses-jury verdict and sentence.-Where, up
on a trial by jury, a person is convicted of an offense which may be
punishable by death, a sentence of death shall not be imposed unless
the jury verdict includes a recommendation that such sentence be
imposed. Where a recommendation of death is made, the court shall
sentence the defendant to death. Where a sentence of death is not
recommended by the jury, the court shall sentence the defendant to
imprisonment as provided by law. Unless the jury trying the case
recommends the death sentence in its verdict, the court shall not
sentence the defendant to death. The provisions of this section shall
3a
not affect a sentence when the case is tried without a jury or when
the judge accepts a plea of guilty.
(Acts 1968, pp. 1249, 1335; 1969, p. 809.)
lb
APPENDIX B
HISTORY OF PUNISHMENT FOR RAPE IN GEORGIA
The Georgia Penal Code of 1811, which expressly applied
to free white persons only,lb provided that rape would be
punished by imprisonment at hard labor for not less than
seven nor more than sixteen years.2b An Act “To establish
a Tribunal for the trial of Slaves within this State,” enacted
on the same date as the Penal Code, December 16, 1811, in
effect provided that slaves could be sentenced to death for
any crime at the discretion of a tribunal for slaves.313 On
November 23, 1815, the act of 1811 which established a
tribunal for the trial of slaves, was made applicable to all
offenses committed by “free persons of colour.”4b On
lb“And be it further enacted, That the operation of this law, and
all parts thereof shall be construed to extend to free white persons
only.” Penal Code of 1811, § 67, printed in LAMAR, COMPILATION
OF THE LAWS OF GEORGIA (1821) [hereafter cited as LAMAR],
552.
2,3 “Be it further enacted, That if any man shall have or take carnal
knowledge of any woman by force, or against her will or consent,
every such person, his aiders or abettors, shall, upon conviction there
of, be sentenced and confined to hard labour, for and during a term
not less than seven years, nor more than sixteen.” Penal Code of
1811, § 60, LAMAR 551.
3bThe Act provided that when a complaint was made to a justice
of the peace of “any crime having been committed by any slave or
slaves” he should summon two other justices to try the case. If it
appeared to the justices that the crime should be punished by death,
a trial before a jury of “ twelve free white persons” was to be held. If
the jury returned a verdict of guilty, “ the court shall immediately
pronounce sentence of death by hanging, or such other punishment
not amounting to death . . . .” Ga. Acts of 1811. No. 503, at 797-
800.
4b“BE it enacted by the Senate and House of Representatives of
the state of Georgia, in General Assembly met, and it is hereby enacted
by the authority of the same, That an act passed at Milledgeville, on
the 16th day of December, 1811, entitled An act to establish a tribunal
for the trial of salves within this state; the court therein established is
hereby made a tribunal for offences committed by free persons of
colour, to all intents and purposes, as if the words free persons of
colour had been inserted in the caption, and every section of the said
2b
December 18, 1816, the penalty for rape in the Penal Code
applicable to whites was changed to imprisonment for not
less than two nor more than twenty years, and a section
was added punishing attempted rape by imprisonment for
not less than one nor more than five years.sb The follow
ing day, December 19, 1816, an act was passed which
expressly provided that the punishment of slaves and “free
persons of colour” for the crime of rape or attempted rape
of a free white female should be death.6b
A Code of the State of Georgia published in 1861 shows
that sometime between the years 1816 and 1861, the rape
provisions were again amended. Rape by a white person
upon a free white female remained punishable by imprison
ment for no less than two nor more than twenty years; rape
by a white person upon a slave or free person of color was
made punishable “by fine and imprisonment at the discre
tion of the court;” an assault with intent to commit rape
remained punishable by one to five years imprisonment.7b
act to establish a tribunal for the trial of slaves within this state.”
Ga. Acts of 1815, No. 504, LAMAR 800.
5b“ Rape shall be punished by imprisonment at hard labour in the
penitentiary, for a term not less than two years, nor longer than
twenty years, as the jury may recommend.
“An attempt to commit rape shall be punished by imprisonment
at hard labour in the penitentiary, for a term not less than one year,
nor longer than five years, as the jury may recommend.” Penal Code
of 1816, §§ 33-34, at LAMAR 571.
6b“BE it enacted by the Senate and House of Representatives of
the General Assembly of the state of Georgia, and it is hereby enacted
by the authority of the same, That the following shall be considered
as capital offences, when committed by a slave or free person of
colour: . . . committing a rape, or attempting it, on a free white
female; . . . every and each of these offences shall, on conviction, be
punished with death.” Ga. Acts of 1816, No. 508, § 1, at LAMAR 804.
7b“Rape is the carnal knowledge of a female, whether free or slave,
forcibly and against her will.
“Rape on a free white female shall be punished by an imprison
ment at labor in the penitentiary for a term not less than two years
nor longer than twenty years. If committed upon a slave, or free
3b
Rape upon a free white female by a slave or free person of
color remained punishable by death.8b However, attempted
rape upon a free white female was made punishable by
death “or such other punishment as the court may prescribe,
proportionate to the offence and calculated to prevent the
occurrence of like offences in future.” 9b
The Georgia Constitution of 1865, enacted November 8,
1865, abolished slavery. On March 20, 1866, the rape pro
vision of the Penal Code applicable to whites10*5 was amended.
The crime of rape was reduced below a felony and made
punishable by “a fine not to exceed one thousand dollars,
imprisonment not to exceed six months, whipping not to
exceed thirty-nine lashes, to work in a chain gang on the
public works not to exceed twelve months, and any one or
more of these punishments . . . in the discretion of the
Judge.” llb This amended provision was repealed on Decem-
person of color, by fine and imprisonment, at the discretion of the
court.
“An assault with intent to commit a rape, shall be punished by an
imprisonment at labor in the penitentiary for a term not less than one
year nor longer than five years.” Penal Code §§4248-4250, printed
in CLARK, COBB & IRWIN, CODE OF THE STATE OF GEORGIA
(1861), 824.
8b“The following offences, when committed by a slave or free per
son of color, shall be punished, on conviction, with death, viz: . . . rape
upon a free white female.” Penal Code for Slaves and Free Persons of
Color, §4704, printed in id. at 918.
9b“The following offences, when commited by a slave or free person
of color, shall be punished in the discretion of the court, either by
death or such other punishment as the court may prescribe, propor
tionate to the offence and calculated to prevent the occurrence of
like offences in future, viz: Attempt to commit a rape upon a free
white female. . . .” Penal Code for Slaves and Free Persons of Color,
§4708, in id. at 918.
10b§4248. See note 7b supra.
ub“The General Assembly of the State of Georgia do enact, That
from and after the passage of this Act the crimes defined in the fol
lowing Sections of the Penal Code as felonies, and punishable by
imprisonment in the Penitentiary, shall henceforth be reduced below
felonies, and punished in the manner hereinafter set forth, viz: Sec
tions . . . 4248 . . . .
[footnote continued]
4b
ber 11, 1866, and the prior provisions of the code relating
to punishment were reinstated.1211
On December 15, 1866, a new rape statute was enacted
which made rape punishable by death or by imprisonment
for no less than one nor more than twenty years at the dis
cretion of the jury, and which made assault with intent to
commit a rape punishable by imprisonment for no less than
one nor more than twenty years.13b
“5. SEC. II. That all other crimes designated in the Penal
Code punishable by fine and imprisonment, or either, shall be likewise
punishable in the manner hereinafter set forth, that is to say, the
punishment for any of the aforesaid crimes, hereafter committed, shall
be a fine not to exceed one thousand dollars, imprisonment not to
exceed six months, whipping not to exceed thirty-nine lashes, to work
in a chain gang on the public works not to exceed twelve months,
and any one or more of these punishments may be ordered in the dis
cretion of the Judge.” Ga. Acts 1866, No. 236, p. 233.
12b“SECTION I. Be it enacted, etc., That from and after the pass
age of this act, so much of the first section of an act entitled an act
to alter and amend the Penal Code of Georgia, passed March 12th,
1866, as relates to section 4248 of the Code of Georgia, be and the
same is hereby repealed, and that said section 4248 be of force as
before the passage of said act.
“SEC. II. Repeals conflicting laws.” Ga. Acts 1866, No. 209,
p. 151.
13b“SECTION I. Be it enacted, etc., That from and immediately
after the passage of this act, the crime of rape, in this State, shall be
punished with death, unless the defendant is recommended to mercy
by the jury, in which case the punishment shall be the same as for an
assault with intent to commit a rape. An assault with intent to com
mit a rape, in this State, shall be punished by an imprisonment at hard
labor in the Penitentiary of this State, for a term not less than one
nor longer than twenty years.
“SEC. II. Repeals conflicting laws.” Ga. Acts 1866, No. 210
p. 151.
As codified in the Code of 1933, the penalty provision reads:
“The crime of rape shall be punished with death, unless the defend
ant is recommended to mercy by the jury, in which case the punish
ment shall be for not less than one nor more than 20 years.” Ga.
Code Ann., §26-1302 (1953).
5b
The legislative history of the act passed on December 15,
1866, is not especially instructive. The bill as it was first
read in the Georgia House of Representatives provided that
all rape shall be punished with death.14*3 Prior to the third
reading in the House, the provision for the alternative pun
ishment of imprisonment was written into the bill, and the
bill was passed the House with this amendment on Novem
ber 26, 1866.15b The bill then passed the Senate without
further amendment. The Journals of both the Georgia House
of Representatives and the Georgia Senate reveal that the
Georgia legislature was not engaged in a comprehensive
reform of the Georgia penal law, but passed this bill con
cerning rape at a time when it was considering a variety of
unrelated subjects.16*3
In 1960, the penalty for rape was amended to add the
alternative of life imprisonment to the already existing
Sect. 1st. The General Assembly of Georgia do enact, That
from and immediately after the passage of this act, the crime of Rape
in this State shall be punished with death. An assault with intent to
commit a Rape in this State shall be punished by an imprisonment at
hard labor in the Penitentiary of this State for a term not less than
one nor longer than twenty years.
Sect, 2d. And be it further enacted that all laws and parts of
laws militating against this Act be and the same are thereby repealed.”
Humphries of Lincoln, A Bill to be entitled An Act to alter and
change the 4249th and 4250th paragraphs of the Code of Georgia, in
custody of Georgia State Archives, Atlanta, Georgia.
15b“ . . . unless the defendant is recommended to mercy by the jury
in which case the punishment shall be the same as for an assault with
intent to commit a rape.” Ibid.
16bSee, Journal of the Senate of the State of Georgia (1866); Jour
nal of the House of Representatives of the State of Georgia, Com
menced November 1, 1866 (1866).
6b
choices.17b In the comprehensive revision of the penal code
in 1968, the language was revised, but not its effect.18*5
17b“The crime of rape shall be punished by death, unless the jury
recommends mercy, in which event punishment shall be imprisonment
for life: Provided, however, the jury in all cases may fix the punish
ment by imprisonment and labor in the penitentiary for not less than
one year nor more than 20 years.” Ga. Acts I960, No. 587, p. 266;
Ga. Code Ann. §26-1302 (Supp. 1970).
18b“A person convicted of rape shall be punished by death or by
imprisonment for life, or by imprisonment for not less than one nor
more than 20 years.” Ga. Acts 1968, pp. 1249, 1299; Ga. Code Ann.
§26-2001 (1970 Revision) (effective July 1, 1969).
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