Brief of Respondent

    IN THE 

Supreme Court of the United States 
1971 TERM 

  

NO. 69-5003 

  

WILLIAM HENRY FURMAN, 

Petitioner, 

Vv 

GEORGIA, 
Respondent. 

  

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF GEORGIA 
  

BRIEF FOR RESPONDENT 
  

P. O. ADDRESS: ARTHUR K. BOLTON 

132 State Judicial Bldg. Attorney General 
40 Capitol Square, S.W. HAroLD N. HILL, JR, 
Altanta, Georgia Executive Assistant 

Attorney General 

COURTNEY WILDER STANTON 
Assistant Attorney General 

DoroTHY T. BEASLEY 
Assistant Attorney General 

P. O. ADDRESS: ANDREW J. RYAN, JR. 

Chatham County Courthouse b istrict By : 
Savannah, Georgia astern Judicial Circuit 

ANDREW J. RYAN, III 
Assistant District Attorney 
  

   



    

 



  

: 

TABLE OF CONTENTS   

CONSTITUTIONAL AND STATUTORY PRO- 

VISIONS INVOIWED tin. 2008 wi inile o 

QUESTION PRESENTED © ilies oi islialilaliy o 

STATEMENT OF THE CASB. .. lel Jil fi, + 

SUMMARY OF ARGUMENT v4 i eoiniis in wie 

ARGUMENT: 

I. 

IT. 

The death penalty for 

murder is not per se cruel 

and unusual, in the con- 

stitutional sense, and is 

therefore not a depriva- 

tion by the State of Peti- 

tioner Furman's life with- 

out due: process of law . . . 

The "Indicators" of un- 

acceptability of death 

as a penalty are not 

reliable yardsticks, 

are not relevant or ap- 

propriate yardsticks, and 

do not provide accurate 

measures for determining 

that standard of decency 

beyond which states may 

not go in fixing pun- 

Ishment . oc vs ao 5s 0 

Page 

. 45  



  

Ii, 

iv, 

  

ii. 

Capital punishment is an 

appropriate maximum pen- 

alty for murder in our 

society today and its 

use is not forbidden to 

the states as cruel and 

unusual punishment in 

contravention of the Eighth 

and Fourteenth Amend- 

MENES , ¢« ¢ ¢ os oc +s «ss « B4 

There is no issue in this 

case concerning Petition- 

er's mental condition at 

the time the sentence was 

imposed because (1) no 

question was raised at 

any stage of the proceed- 

ings below, either at 

trial or subsequently, and 

(2) there are no facts 

which cast any real doubt 

on Petitioner's mental com- 

petency at the time of sen- 

tencing; rather the record 

plainly shows otherwise. . . 88 

Georgia law safeguards an 

insane man from execution. . 92 

OONOLUSTION . +o « vis c's os so os o.oo » 95 

 



iii, 

APPENDICES: 

APPENDIX A: 

Statutory Provisions and 

Rules Tnvolved J a. o's « «és » dB 

APPENDIX B: 

Crimes Under the Criminal Code 

of Georgia Punishable by Death . 1b 

APPENDIX Cs 

Persons Currently under Death 

Penalty in Georgia, Sept. 20, 

1971 LJ LJ [J [J ® [J ® [J ® [J LJ ® [J LJ] lc 

 



  

iv. 

TABLE OF CASES 
  

Alkens v, California vii 4 ciiv ow 
  

Barbour v, Geordia, 249 U.S. 454 

(1919) ® ° eo ° [J ° ° ® LJ ° ° ° [J 

  

Bartholomey v. State, 260 Md. 504, 

273 A. 26164: L197 1) 5 | owve veiie ine ie 
  

Brady Vv, United States, 397 U.S, 

742 (1970) RA L J e LJ [J L J [ J LJ LJ LJ LJ @ 

  

Brown Vv. State, 215 Ga. 784 (1960). . 
  

Butler v, State, 285 Ala. 387, 

232 S.24:631 (1970): ia rsiiy ie is awe 
  

Duzier v, State, 441 s.W.24 688 

(1969) ° [J ° LJ > LJ LJ [J] ° ° ® LJ ° ° 

  

Fdelman v, California, 344 U.S. 357 

(1957) ® eo @ ° ° ° [] LJ ° LJ ® ° eo ° 

  

Ex parte Kemmler, 136 U.S. 436 

(1890) te 5: es Belle ig 16 tal Se us 

23+ 35, 

38, :85 

  

Howard v. Fleming, 191 D.S8. 126 

(1903) ° e ° [J ° [J °® ® ® ° ° ° ° ® 

  

Jackson v, Georgia, No. 69-5030 , . 
  

20 

90 

82 

86 

94 

82 

82 

89 

22, 

   



  

Ve 

Louisiana ex rel, Francie v, 

Regsweber, 329 U.S. 459 (1947). . . 23, 

ody 25, .35, 

38-39, 44, 58 

  

  

McGautha v, California, 402 U.S. 

183. (1970) vir uti ve Te ee a 

  

39, 

69, 79, 83, 

84 

Mahor vv. State, 223 Ga. 594 

(IOB7) v «mets ts si same « vise asin ake 
  

Massey v. State, 222 Ga. 143 

(1D66) i a eee er ine ode ne wate D2 
  

O'Neil) v. Vermont, 144 U.S. 323 (1892) 

c/w rE Che Side eevee. eh es 20m, 

37, B85 

  

Parker v, North Carolina, 397. 4.5. 

790 (1970) . . . iviiesie Tic Foi" 06 
  

People v. Walcher, 42 Ill.2d 159 

246 NB2Ad 256 (1969). oie v «ie siete: 32 
  

Powell v, Texas, 392 U.S. 5l4, 

530 (1968) . « : ic « siete i= firile wh DS 
  

Rivers Vv, State, 226 5.24 337 

{Flam 1060) ui (2 cd aie ese. B2 
  

Robinson v, California, 370 U.S, 660, 
  

682, 683 (1962) . + 4 4 sos ov 29, 

43, 53 

 



  

vi. 

  

  

  

  

  

  

  

  

  

  

  

Schmid v, State, 226 Ga. 70{1970) +. . 15 

Sims v. Balkcom, 220 Ga. 7 (1964) . . 82 

Solesbee v, Balkcom, 339 U.S. 

SF HIOEOY 'Y Je oe TE ee 25, 

26, 48, 53, 

94, 95 

State v, Calhoun, 460 S.W.24 

7219 (Mo, 1970) (oc ilis. oo ee vw.» « B2 

State v. Cerny, 480 P.24 199 

(Wash. 1971) o's chs eo sv esi nin vw 82 

State v. Crook, 253 La. 961, 

221 S.24 473 (1969) © « oc oo =» = B2 

State v, Davis, 158 Ct. 341, 

260 A124 587 (1969), i «so os » 82 

State v. Kelback, 23 Utah 24-231, 

260 P2A 297 (1969) + «dv « «os « B2 

State Vv. Rogers, 275 N.C. 411, 

168 SFE 2d 345 (1969) J ec « « « 32 

Trop Vv, Dulles, 356 U.S, 86, 

B99, 100 "(1958 0 0 2 « « « v/a «ws 27, 

29, 33, 39, 

40, 42, 46, 

52, 53, 55 

 



  

vii. 

  

Weems v.United States, 217 U.S. 349, 

370-371, 384 (YOI0). « « « c . « + 28, 

29, 31-32, 

33, 37, 38, 

48, 53, 85 

VWhitus v. Georgia, 385 U.S. 

BAD (1967) ov. v oc ov a eee, «79 
  

Wilkerson v, Utah, 99 U.S. 130(18379). 33 
  

Williams v, State, 222 Ga. 208(1966). 12 
  

Vilson v, State, 225 S.24 321 

(Blas 2060) ramen CC a aeip » » 32 
  

Witherspoon v, Illinois, 391. U.S, 

519 (1968) eo C3 eo ° ° LJ ° ° eo ° ® LJ 

61, 63, 78, 

  

79 

 



    

viii. 

OTHER AUTHORITIES 

Annals of Congress, Vol, IT, 

Appendix pp. 2274, 2281 . . 86 

Bedau, H., The Death Penalty 

in America, (Rev. ed 1967) 

D. 120. + .. » 3's s % v7» «D1 

  

  

City of Atlanta, Department 

Of Police, Slst Annual 

Report, Dec, 31, 1970 .. 80 

Cohen, B. Law Without Order 

1970). © a oie se. ee DY 
  

Erskine, 34 Pub Op Q (1970- 

Ta) ov sv ain vinie are ve 00 

Farrand, The Records of the 

Federal Convention of 1787, 

Vol. I, Yale University 

Press ‘1934 , i. 2 + sv + + BS 

  

  

Georgia House Study Commit- 

tee Report, 1968 House 

Journal, \D., 3451. . + «. « . DY 

Georgia Senate Study Commit- 

tee Report, 1966 House 

Journal, p. 2669. . .7.:." +» 59 

 



13. 

OTHER AUTHORITIES--continued 

Good Housekeeping, November 

1969, vol. 162, v. 24 . .:. 61 

Hearings before the Subcom- 

mittee on Criminal Laws and 

Procedures of the Committee 

of the Judiciary, United 

States Senate on S. 1760, 

March 20, 21, and July 2, 

1968.70 « oa + ve ss + + 38 

Mutchmor Jes Ro: "Limita- 

tion of Death Penalty in 

Canada" Christian Century, 

January 24, 19638, Vol. 85, 

D+ 120: 3003 a9 eis suv iniia 49 

Nation's Business, November 

1970,0vol. B58, Psi28.2.. . 60 

Newsweek, January 11, 1971, 

PO. 23, 24, 27. + oc x + ous BB 

Pennington, John, "The Death 

Penalty: Have We Walked the 

Last Mile?", Atlanta Journal 

and Constitution, Aug. 30 

and sept. 6, 1970 . . . « . 75 

 



  

Xe 

  

OTHER AUTHORITIES--continued 

Perry and Cooper, Sources of 

Our Liberties, American Bar 

Poundation, 1959, .0, J .-. 85 

Rutland, The Birth of the 

Bill of Rights, 1776-1791, 

University of North Carolina 

Press, 1955. iL. yb yiya,. , 75 

  

  

Time, April 15,:1966,;5vol., 87, 

Do 40). ii. ii. 00a wo358 . 50 

United Nations, Department of 

Economic and Social Affairs, 

Capital Punishment (ST/SOA/ 
SD/9-10Y £1968), 2 8,2, |, 47 

United States Department of 

Justice, National Prisoner 

statistics Number 44, August 

1969, Table 15, p.i30.!,".: . 32, 

56, 62 

 



  

STATUTORY AND CONSTITUTIONAL 

PROVISIONS 

ga. Code Ann. § 6~805(f)y (ca. 

Laws 1965, pp. 18, 24) 

Ga. Code Ann. § 24-3005 (Ga. 

laws 13889, p. 156; 1950, D. 

427, 428) 

Ga. Code Ann. § 26-1001 (1969) 

Ga, Code Ann. § 26-1003 (1969) 

Ga. Code Ann. § 26-1004 (1969) 

Ga. Code Ann. § 26-1101 (1969) 

Ga. Code Ann. § 26-1901 and -1902 

(1969) 

Ga. Code Ann. § 26-3301 (Ga. laws 

1969, p. 741) 

Ga. Code Ann. § 27-1502 (1933) 

Ga. Code Ann. § 27-405 (Ga. Laws 

1962, pb. 453, 454) 

Ga. Code Ann. § 27-2514 (Ga. Laws 

1924, p. 195) 67, 

Ga. Code Ann. § 27-2515 (Ga. Laws 

1924, p. 196) 

23. 

10 

94 

12 

13 

12 

2 

55 

31 

89 

76 

76 

 



  

231. 

Ga. Code Ann. § 27-2602-2604 (Ga. 

laws 1960, pp. 9885, 989; -GCa. 

Laws 1874, p. 30) 

Ga. Code Ann. § 38-415 (Ga. Laws 

1962, bb. 133-135) 

Ga. Code Ann, 77-309(c)(d) (ca. 

Laws. 1956, pp. 161, 171 as a- 

mended) 

Ga. Code Ann. 77-310(d) (Ga. Laws 
1986, pp. 161, 173, as amended) 

N. M. Stat. ‘ann. (1969 Cum, 

Pocket Part) 40A-29-2.1 

Official Compilation of the Rules 

and Regulations of the State of 

Georgia, Rules of the State 

Board of corrections, Sec. 125- 

1-2-,05 

Rules of the United States Supreme 

Court, Rule :23{1) (Ff) 

92 

66 

03 

57 

75 

90 

   



  

IN THE 

SUPREME. COURT OF THE UNITED STATES 

  

1971 Term 

No. 69-5003 

  

WILLIAM HENRY FURMAN, 

Petitioner, 

GEORGIA, 

Respondent. 

  

ON WRIT OF CERTIORARI TO THE 

SUPREME COURT OF GEORGIA 

  

BRIEF OF RESPONDENT 

  

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 
  

In addition to the provisions recited 

by Petitioner, this case involves also 

certain Georgia statutes and published 

Rules of the State of Georgia Board of 

Corrections, each of which is set forth  



    

2 

as Appendix A to this Brief [herein- 

after cited as "App. A, DPD. I at 

Arr.*A, Dp. la.- 16a infra. 

QUESTION PRESENTED 

"Does the imposition and car- 

rying out of the death penalty 

in this case constitute cruel 

and unusual punishment in vio- 

lation of the Eighth and Four- 

teenth Amendments?" 

STATEMENT OF THE CASE 

William Joseph Micke, Jr., age 29, 

died on August 11, 1967, at his home 

in Savannah, Georgia, as the result of 

a bullef being shot C[hrough his lung and 

producing severe hemorrhaging (A. 17, 

18, 32). The unprovoked shooting oc- 

curred as follows: Micke and his wife 

retired to bed sometime after midnight, 

when he returned from his initial night 

of work at a second job taken to supple- 

ment the family income. Mr. Micke's 

primary employment was with the United 

States Coast Guard (A. 18). The young 
family included five children, ranging 

in age from one year to fifteen years 

{A. 17). Between 2:00 and 2:30 a.nm., 

before falling asleep, the Mickes heard 

noises and, thinking it was ll-year-old 

Jimmie sleepwalking, Mr. Micke went to 

get Jimmie back to bed (A. 18, 19). 

 



3 

Mrs. Micke, listening, heard her husband's 

footsteps quicken. Then she heard a loud 

sound and her husband's scream (A. 19). 

Believing then that someone was in the 

house because of Mr. Micke's cry, and 

fearful that someone else was also in the 

house, and afraid that her children might 

be harmed, Mrs. Micke ran to the bedrooms 

for the children and gathered them into 

her bedroom in an effort to protect them 

(A. 19, 21, 22)... She and the children 

then screamed for their neighbor, she 

realizing that she had no gun or other 

means to defend against an intruder (A. 

19, 22), She called the police as soon as 

she saw Mr. Dozier, the neighbor, come out 

of his house (A. 19), but her hysteria 

prevented the police from learning what 
the disturbance was (A. 24). Sergeant 

Spivey, who was just one or two blocks 

away from the Micke home when the call 

came at about 2:23 a.m., went immediately 

there and was met by Mr. Dozier out front 

(A. 24, 26). They thought an intruder was 

still in the house, so Sergeant Spivey 

checked: the front door and, finding it 

locked, went around to the back door. 

The back of the house was dark, and 

when the officer tried the back door, it 

opened (A. 24-25), Shining his flash- 
light into the house, he saw Mr. Micke's 

body lying on the floor with a large 

puddle of blood around the head and 

shoulder (A. 25). 8till thinking there 

 



    

4 

was an intruder in the house, the officer 

crawled through the rooms and found no one 

other than Mrs. Micke and the children 

locked in a front bedvroom (A. 25), Upon 

doubly checking Mr. Micke's vital signs, 

Sergeant Spivey concluded that he was dead. 

Other policemen arrived, an ambulance was 

called, and an investigation begun (A. 26). 

Officers Hall and Goode and others 

immediately scanned the area in a search 

for the assailant (A. 37, 41). Hall sta- 

tioned himself at the far end of a wood- 

ed area next to the Micke house, in his 

patrol car with the lights off and motor 

running (A. 38). Petitioner came out of 

the woods and when he saw the patrol car, 

he walked faster and then started to run 

(A. 38-39). Hall and other officers pur- 

sued, finally on foot, and traced Peti- 

tioner's tracks to the nearby home of his 

uncle (A. 39). After obtaining the uncle's 

permission to search the area, the officers 

located Petitioner hiding under the house 

and pulled him out by the hand (A. 39, 40, 

41). A search was made of Petitioner 

and a .22 caliber pistol, which was later 

identified as having discharged the bullet 

which killed Mr. Micke, was taken from his 

right front pocket (A. 40-43, 49, 50; 

R. Transcript 67-71). No other civilian 
was seen out in the area during the course 

of the search (A. 40). 

 



5 

Detective Smith testified (after a 

voluntariness hearing before the court in 

the absence of the jury and after the 

court concluded that the statements were 

not inadmissible on that account [A. 44, 

46]), that on the same day and following 

an explanation of Petitioner's rights to 

vii ie) his indication that he did not 

then want a lawyer, the detective said he 

had one question, which was: ", +i. 414 

he get inside of the house" (A. 47). 

Petitioner's reply, he said, was: 

"A. He state yes, that he was 

in the kitchen; the man come 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). 

The investigation at the Micke home, 

commenced while Officers Hall and Goode 

and others were searching for the assail- 

ant: (A. 26, 29,:33, 37, 41): yielded 

latent fingerprints on a washing machine 

on the back porch which were later deter- 

  

1/ officer Goode testified that his 
constitutional rights were also read 

to him:upon‘:arrest (A. 42).  



    

6 

mined to have been made by Petitioner 

(A. 28, 33, 37). The inch-thick ply- 
wood door which lead from the small 

porch to the kitchen where Mr. Micke's 

body was found, contained a bullet hole 

(A. 27, 29), the appearance of which 
indicated that the bullet came into the 

house (A. 27, 30). Mrs. Micke testified 

that the ‘door had been locked (A. 20). 
It appeared that the washing machine had 

been pulled away from a window, a fan 

moved, and the door unlocked on the inside 

by slipping a hand through the window 

{A 20,21; 27 ,.:28,.' 31). 

After the State presented its 

case, Petitioner's counsel (who has been 

counsel throughout the proceedings and up 

to the present time) asked that the jury 

be excused and that the defendant be 

called to determine, on the record, whe- 

ther he then wished "to make a sworn or 

unsworn statement or no statement at 

all." (A. 50). This was done (A. 50).2/ 

  

2/ Georgia law gives a criminal defendant 

these three options. Ga. Laws 1962,p.453 

Ga. Code Ann. § 27-405, App. A, p. 

6a. See also Ga. Laws 1962, pp. 

133-135, Ga. Code Ann. § 38-415 and 

-416. 

 



523 

  

Petitioner verified that his attorney 

had discussed these three alternatives 

with him and advised him in this regard, 

and that it was his decision not to make 

a statement (A. 51). After further ex- 

planation by the court and his attorney, 

in which it was emphasized that he could 

make either a sworn or an unsworn state- 

ment, the court asked: "Do you want to 

tell this jury anvthing?"” The defendant 

then said, "Yes", (A. 52, 53), He reit- 

erated this desire before the jury, and 

after his attorney instructed him to 

"Give your name, your age and everything 

else about you," the following transpired: 

"The Defendant: William Henry Furman. 

"Mr. Mayfield: Speak a little louder, 

please. 

"The Defendant: William Henry Fur- 

man. 1 am twenty-six. I work at 

Superior Upholstery. 

"Unidentified: Where? 

"The Defendant: Superior Upholstery. 

"Mr. Mayfield: Speak loud enough now 

for everyone to hear you and hear 

you clearly. 

"The Defendant: They got me charged 

with murder and I admit, I admit  



    

8 

going to these folks' home and they 

did caught me in there and I was com- 

ing back out, backing up and there 

was a wire down there on the floor. 

I was coming out backwards and fell 

back and: I" didn't intend to kill. nor 

body. I 4idn't know they was behind 

the door. The gun went off and T 

didn't know nothing about no murder 

until they arrested me, and when the 

gun went off I was down on the floor 

and 1 got up and ran. That's all: to 

it. 

"Mr. Mayfield: Now, do you have 

anything else you want to tell this 

jury about this case? 

"The Defendant: Yes, sir, one other 

thing; they didn't -- questioned me 

down there, down there at the police 

station, they didn't told me nothing 

about a lawyer and I told them who I 

wanted as an attorney and they still 

asked me questions and I wouldn't an- 

swey none. That's -- that's all I've 

got to say. 

"Mr. Mayfield: Anything else you want 

*O say nov? 

"The Defendant" That's all. 

"Mr. Mayfield: You may come down. 

 



  

9 

Note: (The defendant withdrew 

from the witness stand.)" (A. 

54-55). 

Before the trial commenced, a motion 

to suppress evidence was heard and denied, 

a motion challenging the array of the jury 

venire was submitted upon stipulation of 

transcript from another case, and other 

defense motions were made and denied (R. 

8-15, R., Transcript 2, 2-a, l1llA through 

11 BE: All, 12). 

In obtaining a panel of forty-eight 

qualified jurors, only one person was dis- 

qualified, and thus required replacement, 

for answering that he would refuse to im- 

pose capital punishment in a case regard- 

less of the evidence (A. 12-15). 

The trial was held on September 20, 
1968 (A. 10), the homicide having occur- 

redion August > 11, 1967 (A. :17).: The 

lapse of time was occasioned by defen- 

dant's attorney having moved for psychi- 

atric examination and evaluation at an 

institution designated by the court and 

at State expense so that the jury could 

have the information in determining guilt 

or innocence and proper punishment (A. 6). 

On October 24, 1967, the court granted the 

motion inadvertently referring to it as a 

special plea of insanity, and ordered 

defendant sent to Milledgeville (Central) 

State Hospital for examination (A. 8). 

 



    

10 

By the terms of the order, the findings 

were to be sent to the court, the solici- 

tor general, and defendant's counsel. 

Defendant was returned to the court in 

April, 1968, as being competent to stand 

trial, it having been determined that he 

was not psychotic, knew right from wrong, 

and was able to cooperate with his coun- 

sel in preparing his defense (Petitioner's 

Brief, Appendix B, p. 3b). 

No further reference was made to any 

insanity, either in terms of a defense or 

in terms of being competent to stand trial. 
Despite all of the pre-trial and post- 

trial activity which marks the course of 

this case, the subject did not arise un- 

fil after this Court granted certiorari 

and preparations for the appendix began 

{Petitioner's Brief, App. B, p. 1b), 
Contrary to the assertion putting the blame 

for omission of the "reports" on the 

trial court clerk, the law clearly im- 

poses this duty of perfecting the record 

on the party contending the record is 

incomplete, in this case,the Petitioner. 

Ga. Laws 1965, pp. 18,24; Ga. Code Ann. 

§ 6~805(f), App. A. DP. la. 
Respondent knows of no requirement that 

the clerk include in the record more than 

is recorded in his office. 

The merits of the new assertions 

regarding Petitioner's mental condition 

are palpably suspect since, although 

 



  

11 

trial counsel pressed an appeal before 

the Georgia Supreme Court and was thus 

responsible for drawing up the enumera- 

tion of errors and supporting brief 
based on the record, the absence of the 

letters was not even noticed or thought 

important enough to be made a part of 

the record at that stage, as may be done 

in accordance with appellate practice. 

Ga. Laws 1964, pp. 18, 24, supra, 

Petitioner, in his Statement of the 

Case, refers to the characterization of 

the crime given in the opinion of the 

Georgia Supreme Court (Petitioner's 

Brief, pP..6).. .Thot Court, in section 

6 of its opinion (A. 67, 68), .ruled that 

the general grounds of the motion for 

new trial 3/were not meritorious. 

  

2/ Phat .is,. contentions that the 

verdict was contrary to evidence and 

without evidence to support it; that 

the verdict was decidedly and 

strongly against the weight of the 

evidence; and that the verdict was 

contrary to law and the principles 

of justice and equity. .See R. 20. 

  
| i | 

lf 
ILS 

 



  

12 

The reason was that the evidence was suf- 

ficient to show either implied malice 4/ 
or at least the death occurring in the 

commission of a felony. =) 

Contrary to Petitioner's comment, 

Georgia law at the time of his convic- 

tion, and still now, divides crimes of 

homicide into three categories: murder g/, 

  

- #4 Ga. Code Ann. § 26-1004: "Implied 

Malice. Malice shall be implied 

where no considerable provocation 

appears and where all the circum- 

stances of the killing show an 

abandoned and malignant heart. Cobb, 

783." This now comprises § 26-1101 (a) 

of the Code of Georgia, effective 

July 1, 1969... (Petitioner's Brief, 
APD. A, D. 4a) 

Illustrated, as the Court notes, by 

Williams v. State, 222 Ga. 208 (1966) 

and Manor v. State, 223 Ga. 594(1967) 

This type of murder is now defined in 

the Criminal Code of Georgia, § 26- 

1101(b). (petitioner's Brief, App. A, 
o/ PD. 4a), 

Formerly Ga. Code Ann. § 26-1002, 

now Criminal Code of Georgia § 

26-1101. (Petitioner's Brief, App. 

A, De. la, 4a). 

  

  

   



  

13 

voluntary manslaughter 27, and invol- 

untary manslaughter 8/. The Committee 

Notes which accompany the new Criminal 

Code of Georgia effective July 1, 1969, 

discusses the decision not to divide the 

offense of murder into degrees: 

"An examination of murder legisla- 

tion in operation in 30 States 

discloses that six jurisdictions 

(Illinois, Louisiana, Mississippi, 

Oklahoma, South Carolina, and 

Texas) follow the Georgia pattern 

of dividing homicide into murder, 

voluntary, and involuntary man- 

slaughter, with separate defini- 

tions of these offenses. The 

remaining 24 States, approximately 

80 % of the jurisdictions studied, 

in addition to having statutes deal- 

ing manslaughter, divide murder 

into degrees for purposes of pro- 

secution and punishment. . . . 

® Bh x 

  

Formerly Ga. Code Ann. § 26-1002, 

now in Criminal Code of Georgia, 

§ 26-1101. (Petitioner's Brief, 

8/ APD. A, XD. :1a, 4a), 

Formerly Ga. Code Ann. § 26-1009, 

now in Criminal Code of Georgia, 

§ 26-1103. (Petitioner's Brief, 

ADD: A, PP. 2a, 4a). 

  

  
 



    

14 

"While more than three-fourths of 

the States divide the offense of 

murder into degrees, primarily to 

facilitate punishment, Georgia has 

always followed the common-law 

view of a single definition. 

Illinois and Louisiana, which have 

recently enacted criminal Code 

legislation, have adopted the de- 

finitional classification of homi- 

cide similar to the method presently 

employed in Georgia. The Model 

Penal Code Proposed Official Draft 

approves and utilizes the single 

definition: {(Section:201.2)." 

Committee Notes, Criminal Code of 

Georgia, 1970 Revision, p. 84. 

Thus, Georgia submits to the jury 

trying the case the discretion to fix the 

punishment at death in a murder case, and 

does not limit its consideration by classi- 

fications of degree. The value of any 

life ended by murder is thus given the 

same weight insofar as the maximum penalty 

imposeable is concerned. The myriad of 

variables attendant to each case is left 

to consideration of the jury, represent- 

ing the community, as to which murder 

cases appropriately call for the death 

penalty. 

Petitioner states, as a footnote, 

his Amended Motion for New Trial chal- 

lenged a certain jury instruction re- 

 



  

15 

garding felony murder (Petitioner's Brief 

Pe 7,:fn; 4), He 414 not object to the 

instruction when given (A. 64). 

He states that he incorporated the 

challenge by reference into the Enumera- 

tion of Errors which formed the basis of 

appeal to the Georgia Supreme Court, but 

it appears there only thusly: 

"7. That the Court erred in one 

and all of the respects set out in 

the amended Motion for New Trial and 

for the reasons set forth thereon." 

Enumeration of Errors dated March 27, 

1969, Pp. 2 (Not paginated in origi- 

nal record in this Court and not 

included in printed Appendix.). 

The Supreme Court of Georgia does not con- 

sider enumerations not briefed or argued. 

Schmid. v.Stalke, 226 Ga. 70 (1970). And 

it is abundantly evident that Petitioner 
did not assert the matter below at all, 

as at the conclusion of the Georgia 

Supreme Court's opinion, it is stated: 

  

"7. Having considered every 

enumeration of error argued by 

counsel in his brief and find- 

ing no reversible error, the 

Judgment is Affirmed.” (A. 68). 
  

Consequently, Petitioner can raise no 

inference or implication that any issue 
in this regard was properly raised. 

   



    

16 

Petitioner refers to "additional 

facts” concerning him which the jury did 

not know but which "appear in the record" 

(Petitioner's Brief, pp. 8-9). That 

these "facts? are not a part of the record 

and were not a part of the record before 

the court below has already been pointed 

outs It is further noted that the 

"facts" alluded to, i.e., results of 

psychiatric examination, were fully 

available for disclosure to the jury, 

had Petitioner's counsel deemed it favor- 

able to the defendant to make such a 

revelation. The letters are dated 

February 28, 1968, and April 15, 19638 

(Petitioner's Brief, App. B, pp. 2b and 
3b), long before the trial on September 

20, 1968, and-it is obvious from their 

content that defense counsel would not 

have chosen to make the jury aware of 

their substance. There is no basis what- 

soever for Petitioner's bald statement 

that the two letters "indicate that 

Petitioner Furman is both mentally 

deficient and mentally ill.” 

(Petitioner's Brief, p. 9). The lately 

contrived "issue" of insanity is further 

dealt with in this Argument, infra, p. 88 et seq. 
The facts concerning the same are simply 

recited here, in refutation of Petitioner's 

erroneous Statement of the Case in this 

regard. 

Contrary to Petitioner's statement, 

he was not "committed" to Central State 

Hospital upon a special plea of insanity. 

 



    

17 

There was no such special plea of insan- 

ity, which would have ultimately required 

a jury determination of competency to 

stand trial, such as occurred in Jackson's 

case. See Jackson v. Georgia, No. 

69-5030, A." 12,-%3,-1%7, 18, 21, 33: 
Instead, counsel simply moved for psy- 

chiatric examination, at State expense, 

to be used for purposes of defense and 

possibly for sentencing (A. 6). As 
indicated heretofore, the court in 

granting the motion inadvertently 

referred to it as a plea of insanity, 

but none was ever filed nor did counsel 

ever make any issue of competency to 

stand trial. 

  

Petitioner also asserts an erroneous 

conclusion regarding the meaning of the 

second letter: the Hospital did not re- 

port on April 15,..1968, that he was THEN 

diagnosed identically as he had been diag- 

nosed on February 28. Instead, the letter 

merely repeated the earlier diagnosis as 

having at one time been made, and it then 

goes on to say that the present condition 

is different. There is no basis for con- 
cluding, as Petitioner inferredly attempts 

to, that the Hospital deliberately sent 
back for trial a man who had some mental 

condition which should have legally avoid- 

ed trial and sentencing.



    

18 

SUMMARY OF ARGUMENT 

THE IMPOSITION AND CARRYING OUT 

OF THE DEATH PENALTY IN THIS 

CASE DOES NOT CONSTITUTE CRUEL 

AND UNUSUAL PUNISHMENT IN VIOLA- 

TION OF THE FIGHTH AND FOURTEENTH 

AMENDMENTS . 

The Fourteenth Amendment, by virtue 

of which cruel and unusual punishment for- 

bidden by the Eighth Amendment is a pro- 

hibition against the states, provides 

that the states may not deprive any per- 

son of life without due process of law. 

Conversely, the states may deprive a 

person of life so long as the mandates of 

due process of law are observed. The 

Eighth Amendment, adopted as part of a 

declaration of rights to confine the 

federal government, may not effect a 

curtailment of a right of the states 

recognized by the states-restricting 

Fourteenth Amendment. 

The Eighth Amendment does not pro- 

hibit the penalty of death for crime, 

in that such a penalty was historically 

acceptable in the context of the period 

in which the Amendment was adopted, 

has thereafter traditionally been a 

part of the penal system in this country, 

and is widely accepted today as a rea- 

sonable, rational, and appropriate 

 



  

Io 

instrument in the control of crime. It 

is not a punishment that is prohibited as 

constitutionally "cruel and nmmisval.” 

The function of State legislatures to 

define crimes and fix punishments is 

therefore not restricted against providing 

such a punishment. 

This case is devoid of any issue 

concerning the sanity of Petitioner. 

There is no constitutional barrier 

fo the imposition and carrying out of 

the death penalty in the case at bar. 

 



    

20 

ARGUMENT 

I 

THE DEATH PENALTY FOR MURDER 

IS NOT PER SE CRUEL AND UN- 

USUAL, IN THE CONSTITUTIONAL 

SENSE, AND IS THEREFORE NOT A 

DEPRIVATION BY THE STATE OF 

PETITIONER FURMAN'S LIFE WITH- 

OUT DUE PROCESS OF LAW, 

The Court has framed the question for 

examination to be, whether the imposition 

and carrving out of the death penalty in 

Furman's case constitutes cruel and un- 

usual punishment in violation of the 

Eighth and Fourteenth Amendments. Peti- 

tioner contends that his sentence is a 

rare, random, and arbitrary infliction 

and for that reason is prohibited by 

the Eighth Amendment principles briefed 

in Aikens v, California, No. 68-5027. 

He states therein that the Due Process 

Clause of the Fourteenth Amendment is 

"involved" o/, but he makes little or 

no reference to it thereafter, travel- 

ing instead on the assumption that the 

Eighth Amendment is incorporated into 
the Due Process Clause and so it need 

  

  

E74 Aikens Brief, pb. 2. 

 



2) 

only be examined in terms of the former. 

However, since the Eighth Amendment is 

not, alone, applicable to the States 

and was not applicable to them in any 

sense before the adoption of the Four- 

teenth Amendment in 1868, the question 

at issue must be reviewed in the context 

of the latter's requirements. The 

Eighth Amendment imposes no restrictions 

on the States, but the Fourteenth Amend- 

ment does. The Due Process requirements 

will therefore be developed as the appro- 

priate arena in which to focus on the 

cruel and unusual punishment question. 

cess 

The Fourteenth Amendment Due Pro- 

Clause guarantees: 

"(N)or shall any State deprive 
any person of life, liberty or 

property without due process of 

law: .. ..." . . {Emphasis added). 

It does not prohibit a State from 

depriving a person of life, but rather 

the prohibition is that it shall not be 

done without due process of law. Thus, 
the Nation saw fit, one hundred years ago, 

to give constitutional permanence to the 

right of every person to demand due pro- 

cess before his life could be forfeited 

by the State. The mandates of this 

clause, in terms of cruel and unusual 

punishment, has been stated variously: 

 



    

22 

In Bx parte Kemmler, 136 U.3., 436 (18390) 
  

the Court explained: 

"[I]n the Fourteenth Amendment, 

the same words [due process of 

law] refer to that law of the 

land in each State, which derives 

its authority from the inherent 

and reserved powers of the State, 

exerted within the limits of 

those fundamental principles of 

liberty and justice which lie 

at the base of all ouy civil and 

political institutions. Undoubt- 

edly the Amendment forbids any 

arbitrary deprivation of life, 

liberty or property, and secures 

egual protection to all under like 

circumstances in the enjoyment of 

their rights; and in the adminis- 

tration of criminal justice re- 

quires that no different or higher 

punishment shall be imposed upon 

one than is imposed upon all for 

like offenses. But it [the Four- 

teenth Amendment] was not designed 

to interfere with the power of 

the State to protect the lives, 

liberties and property of its 

citizens, and to promote their 

health, peace, morals, education 

and good order.” Id. at 448. 

Kemmler complained that the form of 

the death penalty, electrocution, was 

 



  

23 

cruel and unusual and therefore a depri- 

vation of life without due process of 

law. The Court concluded that in order 

to reverse the New York highest court, 

it would ". . . be compelled to hold 

that it had committed an error so gross 

as to amount in law to.a denial by the 

State of due process of law to one ac- 

cugsed.of crime.” Yd, at 448. Peti- 

tioner's complaint faces the same test 

because in order to prevail, it, too, 

must evidence a denial of substantive 

due process: whereas Kemmler challenged 

the form of infliction, i.e., alectro- 

cution itself, rather than the procedure 

for inflicting it, "Petitioner chal- 

lenges the punishment, i.e., the death 

penalty, itself, rather than the proce- 

dure by which it was imposed on him. 

In Louisiana ex rel. Francis v. 

Resweber, 329 U.S. 459 (1947), the 

circumstances of execution were com- 

plained of as cruel and unusual punish- 

ment. Thus, procedural due process was 

the frame. Mr. Justice Prankfurier 

developed the concept of the due pro- 
cess safeguard in a concurring opinion 

and said lt is part of "the conceptions 

of justice and freedom by a progressive 

gociety." “Id.-at 467. 

  

  

  

"The Fourteenth Amendment," he 

wrote, "did mean to withdraw 

from the States the right to 

r
a
r
 
r
a
 

e
s
 

 



  

24 

act in ways that are offensive to 

a decent respect for the dignity 

of man, and heedless of his free- 

dom. VY Td. at 468. 

Tn short,” he continmed, "the 

Due Process Clause of the Four- 

teenth Amendment did not withdraw 

the freedom of a State to enforce 

its own notions of fairness in the 

administration of criminal justice 

unless, as 1t was put for the Court 

by Mr. Justice Cardozo, 'in so doing 

it offends some principle of justice 

sO rooted in the traditions and con- 

science of our people as to be ranked 

as fundamental." . Id. at 469, 

This context, then, is the proper 

one in which the Court is to review 

State penal laws, with respect to whether 

they are cruel and unusual. The question 

of the moment is whether the death penalty 

offends some principle of justice so 
rooted in the traditions and conscience 

of our people as to be ranked as funda- 

mental.” This test looks to the solid past, 

as well a constitutional inquiry should, 

rather than simply to the shifting pre- 

sent, which Petitioner presses with his 

emphasis on a test of "evolving standards." 

Measured by this due process test, 

it is indisputable that the death penalty 

for crimes which immediately endanger or 

   



  

25 

take life does not offend a rooted prin- 

ciple of justice. The existence and 

application of the death penalty itself 

has been an integral part of our penal 

systems since at least Colonial days, 

although, as Justice Burton pointed out 
in dissent in the Louisiana case, tor- 

turous means and forms of inflicting 

death is prohibited as shocking funda- 

mental instincts of civilized man. 

Id. at-473, 

Since due process standards are very 

broadly conceived, Mr. Justice Frank- 

furter cautioned, "great tolerance toward 

a State's conduct is demanded of this 

Court.” "14. at 470. The State does not 
assert that its position in this case 

cannot be maintained without a great 

tolerance being shown by the Court, but 

rather points up this concept to illus- 

trate the foreshortened framework of 

Petitioner's premise. 

Although Solesbee v. Balkcom, 339 

U.S. 9 (1950) is not a punishment case, 

it involves an application of the Due 

Process Clause. The question was whether 

the method applied by Georgia to deter- 

mine the sanity of a convicted defendant 

offended due process. The Court held 

that the statute as applied did not do so. 

Mr. Justice Frankfurter, who dissented, 

again exhaustively reviewed the meaning of 

the Due Process Clause. The rule against 

  

 



    

26 

executing an insane person is "protected 

by substantive aspects of due process,” 

he noted, (Id. at 24), This conclusion 

followed from an application of the sub- 

stantive aspect of due process, which 

was phrased thusly: 

"It is now the settled doc- 

trine of this.Court- that the 

Due Process Clause embodies a 

system of rights based on moral 

principles so deeply embedded in 

the traditions and feelings of 

our people as to be deemed funda- 

mental to a civilized society 

as conceived by our whole history." 

Id.-at-16, 

"in applying such a large, un- 

technical concept as 'due pro- 

cess, ' the Court enforces those 

permanent and pervasive feelings 

of our society as to which there 

is compelling evidence of the 
kind relevant to judgments on 

gocial institutions.” 1d. .at 16. 

The distinction between substan- 

tive and procedural due process which 

was there made was that substantive 

due process prohibited killing an in- 

sane man, whereas procedural due pro- 

cess required that where a question of 

 



  

27 

sanity arises, the prisoner must be 

given the opportunity to show that he is 

otherwise. This distinction illustrates 

that Petitioner's argument, as embodied 

in the Aikens Brief, must be construed 

to be that the death penalty violates 

substantive due process, because the 

theory is that any execution actually 

inflicted in our contemporary society 

would be unconstitutional. 

  

Trop Vv. : Dulles, 356 U,S8. 86:(1958) 

is strictly an Eighth Amendment case 

because of its federal character. Due 

process considerations did not enter 

in. Therefore, Petitioner's lifting 

of the test suggested in that case and 

his primary reliance thereon distorts the 

question in this case. Its adaptability 

to the present situation must be circum- 

scribed by the superimposition of the 

broad limits in which due process allows 

the States to operate. 

  

Petitioner, moreover, makes the Trop 

test unworkable in a judicial setting by 

construing it narrowly. The evolving 

standards of decency, he says, are ones 

which are current and can be measured by 

contemporary statistics and public 

opinion indicators and world-wide 

"trends". Such a close-to-pocket con- 

struction of the Trop language not only 

fails to take into account the changes 

of tomorrow but refuses to acknowledge 

 



    

28 

the judicial setting in which it must 

be applied. Petitioner's brief is 

replete with partial statistics, as- 

sertions of unconfrontable "experts”, 

and all types of "objective indicators” 

which allow not of cross-examination 

and which ae not subject to the rules 

of evidence. It is submitted that the 

standards intended by the statement that 

"the [Eighth] Amendment must draw its 

meaning from the evolving standards of 

decency that mark the progress of a 

maturing society" O/ are standards of 

fundamental significance and capable 

of demonstration to a Judicial body that 

is confined to the evidence in the record 

of a case and is not equipped with the 

facilities for factual investigation and 

the gathering of conflicting evidence 

which a legislative body would have. The 

scope and magnitude of the "evidence" 

proffered by Petitioner itself bespeaks 

an attempt that would more fittingly be 

directed to a legislature. The Court, 

as a matter of fact, has on more than 

one occasion with respect to penalties, 

pointed this out: see dissent of Mr. 

Justice White, concurred in by Mr. 

Justice Holmes, in Weems v. United 

Stateg, 217 U.S. :349,.384 (1910); dies- 
  

  

3/ 356 U.S. at 101, 

 



  

29 

sent of Mr. Justice Clark in Roblirson 

V. California, 370. U.8.:660, 682, 683 

(1962); dissent of Mr. Justice White in 

Robinson Vv. California, supra, 370 U.S. 

at 689. At the least, the Court has 

taken cognizance of the comprehensive 

task involved in reaching the conclusion 

that a legislatively defined crime or 

legislatively fixed punishment is uncon- 

stitutional: 

  

  

  

"And for the proper exercise of 

such power [judicial power to judge 

the exercise of legislative power] 

there must be a comprehension of 

all that the legislature did or 

could take into account, -- that 

is, a consideration of the mischief 

and the remedy." Weems v. United 

States, supra, 217:U.8. at 379. 

  

  

The standard, then, is the much broader 

one: implicit in "the dignity of man”; it 
requires only that the power to punish "be 

exercised within the limits of civilized 

standards. Trop V. Dullas, supra, 356 

U.S. at 100. The overriding applicability of 

the Fourteenth Amendment due process con- 

cept, which was absent in the Trop and 

Weems tests, is present in Robinson v. 

California, supra, 370 U.S, 660 (1962). 

  

  

  

There the Court concluded that it was 

"doubtless" that a law which made a crim- 

inal offense of a disease would universal- 

ly be thought to be cruel and unusual 

 



    

30 

punishment in violation of the Eighth 

and Fourteenth Amendments. 11/ The 

fundamental character of the condemna- 

tion is therefore the gauge. 

The narrow construction which Peti- 

tioner puts on "contemporary human know- 

ledge", "public opinion enlightened by 

humane justice”, and "evolving standards 

Of decency that mark the progress of a 

maturing society”, also falls prey to one 

of his own arguments. The United States 

Constitution is, to be sure, a vital 

organ which must be interpreted with 

deference to its elastic nature. This 

does not mean, however, that it may be 

construed solely to fit today's needs, 

desires and best judgment. That is 

employment more appropriate to laws, 

which can be made today and changed, modi- 

fied, altered, amended, or repealed 

tomorrow. Laws can be experimented 

with. But the Constitution remains as it 

stands, subject only to infrequent and 

difficult-to-achieve amendment. If the 

Court were to construe the foundation 

document in terms of current world or 

national opinion, and assuming for the 

sake of argument that Petitioner has 

demonstrated total contemporary rejection 

  

31/2370 vis, 30 1666: 

 



31 

of the death penalty, the constitutional 

invalidation of capital punishment would 

remove it foreover as a penal sanction in 

this country, absent constitutional 

amendment. 

Such finality should not be imposed 

when it has not been shown that the death 

penalty serveg no legitimate purpose and, 

even more importantly, when no one can 

yet imagine the types or magnitudes of 

crimes that will surely evolve in future 

generations. Who, for example, envi- 

sioned twenty years ago that our society 

plagued with gun-point airplane high- 

jacking, would find it necessary to define 

a new crime, commonly referred to as 

hslkevijacking”, and provide as a maximum 

the death penalty? 12/ who today can 
imagine the new and more broadly sweeping 

crimes that can evolve in the increasingly 

complex, mobile, speeding, technological, 

interdependent society in which we live? 

It is all too well known that the flip of 

a switch can destroy millions. As the 

Court succinctly stated in Weems v. United 
  

States, 217 uU.s8. 349 (1910): 

  

12/ See Ga. Laws 1969, p. 741; Criminal 

Code of Georgia § 26-3301. (App. A, 

Pp. 5). 

R
E
 
—
 

 



  

32 

"he future jis their (constitution's) 

care, and provision for events of 

good and bad tendencies of which no 

prophecy can be made. In the appli- 

cation of a constitution, therefore, 

our. contemplation cannot be only of 

what has been, but of what may be." 

Td. at 373. 

Note also that this statement immedi- 

ately succeeds the Court's observation 

that the death penalty was not meant to 

be excluded by the Eighth Amendment pro- 

hibition. 

The penalty here sought to be out- 

lawed should be abolished by the law 

makers, if such a penalty is currently 

unacceptable as Petitioner says. Then, 

if ever again thought useful or necessary, 

it could likewise be reinstated. Ex- 

perience would then provide a knowledge- 

able guideline by a number of states 

which at one time elected to abolish the 

penalty. 13/ But to ban it. as a matter 

Of constitutional imperative is not only 

unjustified in terms of its present posture 

but is also dangerous in terms of its 

future use. As it was pointed out on pre- 

  

13/ United States Department of Justice, 

National Prisoner Statistics Bulletin, 

Number 45, August, 1969, Table 15, p. 

30 [hereinafter cited as NPS]. 

   



  

33 | 

vious occasions, the power of the 

legislature to define crimes and their 

punishment must yield only to a consti- 

tutional prohibition: 
| 

"The function of the legislature | 
is primary, its exercise fortified | 

by presumptions of right and legal- | 

ity, and is not to be interferred I 

with lightly, nor bv any judicial | 

conception of its wisdom or propriety. 

They have no limitation, we repeat, 

but constitutional ones, .and what I 

those are the judiciary must judge. 

We have expressed these elementary 

truths to avoid the misapprehension 

that we do not recognize to the ful- I 

lest the wide range of power that 

the legislature possesses to adapt 

its penal laws to conditions as they 

may exist, and punish the crimes of 

men according to their forms and fre- 

quency." Weems v. United States, I 

supra, 217 U.S, at 379. | 
  

The same principle is reiterated in 

PYob Vv. Dulles, subra, 356 U.S, at 103: 
    

"Courts must not consider the 

wisdom of statutes but neither | 

can they sanction as being merely | 

unwise that which the Constitution | 

forbids.” 

 



    

34 

And more recently in McGautha v. California, 

402 U8. 183 (1971): 
  

hour function is.not to impose. on 

the States, ex cathedra, what might 

seem to us a better system for deal- 

ing with capital cases. . Rather it 

is to decide whether the Federal Con- 

stitution proscribes the present pro- 

cedures of these two States in such 

cases.” Td. .at 195. 

  

In the instant case, the antagonist 

to the traditional penalty has not only 

failed to shov that 1t is constitutionally 

forbidden but even that it is unwise. 

Fundamental requirements of fairness and 

decency acs, what the Due Process Clause 

embodies, = and it is. that bedrock 

standard which Petitioner must show 

capital punishment contravenes. It is 

abundantly evident that he has not proved 

his case. 

Emphasis has been given to the due 

process setting in which the claim of 

cruel and unusual punishment must be 

viewed. This is not to deny that judi 

cial measurements of Eighth Amendment cruel 

and unusual punishment are not to be 

applied. Indeed they are, as is illus- 

  

14/ McGautha v,. California, supra, 
  

402 U.S, at 215. 

 



  

35 

trated by at least as early a case as 

Louisiana ex rel. Francis v. Resweber, 

guvra, 329 U.S. at 463 (1947). 
  

The test of whether punishment is 

cruel and unusual in the constitutional 

sense has been variously stated in dif- 
fering circumstances. In attempting to 

ascertain the meaning of the Eighth 

Amendment clause in the federal case of 

Wilkerson v,. Utah, 99.0.8, 130:(1879), 

the Court in part measured the mode of 

execution by the proposition that the 

Constitution forbids punishments of 

torture and all others in the same line 

of unnecessary cruelty. In that yegard, 

death by electrocution does not fail the 

test. Ex Parte Kemmler, supra. Even 

Petitioner concedes as much. 15/ 

  

  

"Punishments are cruel”, the Court 

said in Kemmler, "when they involve tor- 

ture or ‘a lingering death: . ..i. some= 

thing inhumahiand. barbarous i... .* 

Ex parte Kemmler, supra, 136 U.S. at 447. 
  

  

153/ Aikeng Brief, App... 1, Pp. Pi: 
hnder correct application,” elec~- 

trocution "insures a death that is 

both instantaneous and painless." 

  

 



    

36 

The meaning of cruel and unusual 

punishment was subsequently expanded and 

liberalized to cover a broader spectrum. 

Mr. Justice Field, in dissent in O'Neil 

v. Vermont, 144: U.8..:323 (1892), pre- 

cursed the concept that the inhibition 

is directed not only against punishments 

Of a torturous character, "but against 

all punishments which by their excessive 

length or severity are greatly dispro- 

portioned to the offenses charged.” 

Id. at 340. The punishment imposed in 

that case was, in Pleld's opinion, “a 

punishment at the severity of which, con- 

sidering the offenses, it is hard to 

believe that any man of right feeling 

and heart can refrain from shuddering." 

Id. at 340. So measured, the punishment 

which has over the past several years 

been imposed by juries to at least most, 

if not all, of the approximately 660 per- 

sons now under death penalty in this 

country, cannot be said to be excessive 

in terms of the right feeling and heart 

of any man. 

  

The Court in Howard v. Fleming,   

191 U.8. 126:(1903) declined to set out 

a rule for determining what punishment 

ig cruel and unusual or under what cir- 

cumstances the Court would interfere 

with the decision of: a state court in 

respect thereto. Reference was made 

instead to EX parte Kemmler, supra. 
  

 



  

37 

The Court did say, however, that "Undue 

leniency in one case does not transform 

a reasonable punishment in another case 

to a cruel one." Howard v. Fleming, supra, 

181 v.88, at 136. By that wmsasurement, 

the penalty in the cases sub judice will 
stand. 

  

  

The excessiveness concept outlined 

by Mr. Justice Field in: Q9'Neil, supra, 

was applied in Weems v. United States, 

217 U.8.: 349 (1910). After reviewing 

the history of the cruel and unusual 

punishment clause and the judicial pro- 

nouncements concerning it, the Court 

concluded that the punishment provided 

by statute in Weems was cruel in its 

excess and unusual in its character. 

Thus, because of its degree and because 

of its kind, it was deemed invalid. 

Petitioner here, too, challenges the 

statutory punishment itself, rather than 

merely its application in his case. He 
gays in'effect that it is per se cruel 

and unusual. He assumes that it is 

"cruel" and directs his attention to an 

attempt at showing that it is also 

haynmasual.Y 

  

  

But is the death penalty excessive, 

that is, cruel, per se for murder and 

other crimes that take, or clearly and 

presently endanger, innocent life? 

It is inconceivable that in our system 

of justice the victim should be compelled 

 



    
38 

to suffer more than the attacker. The 

death penalty has always been regarded 

by ‘this Court as constitutionally al- 

lowable as a punishment: 

"Punishments are cruel when they 

involve torture or a lingering 

death; but the punishment of death 

is not cruel within the meaning of 

that word as used in the Constitu- 

tion. It implies there something 

inhuman and barbarous, and some- 

thing more than the mere extin- 

guishment of life." Ex parte 

Xemmler, supra, 136 U.S. at 447. 

  

  

Lest there be any doubt as to the 

meaning of that statement, the Court in 

Weems, supra, 217 u.8., at 370-371, ex- 

plained: 
  

"It was not meant in the language 

we have quoted to give a comprehen- 

sive definition of cruel and un- 

usual punishment, but only to ex- 

plain the application of the pro- 

vision to the punishment of death. 

In other words, to describe what 

might make the punishment of death 

cruel and unusual, though of itself 

it-ds. not iso." 

Mr. Justice Burton repeated this pre- 

cept with approval in his dissent in 

Louisiana ex rel. Francis v. Resweber, 
  

 



39 

supa, 329:U.S. at 463, footnote 4. 

More recently it was said: 

"AL the outset, let us put to 

one side the death penalty as an 

index of the constitutionalilimit 

on punishment. Whatever the argu- 

ments 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 

history, and, in.-a day when if 

is still widely accepted, it can- 

not be said to violate the consti- 

tutional concept of cruelty. Trop 

v. Dulles,. supra, 356 U.S. af 99. 
  

Mr. Justice Black's concurring opinion.in 

McGautha v. California, supra, makes it 

plain: 

"The Eighth Amendment forbids 

'cruel and unusual punishments. 

In my view, these words cannot 

be read to outlaw capital punish- 

ment because that penalty was in ! 

common use and authorized by law 

here and in the countries from 

which our ancestors came at the time 

the Amendment was adopted. It is 

inconceivable to me that the 

Framers intended to end capital 

punishment by the Amendment. Al- 

though some people have urged that 

  

 



    

40 

this Court should amend the Consti- 

tution by interpretation to keep it 

abreast of modern ideas, I have 

never believed that lifetime judges 

in our system have any such legis- 

lative power. See Harper v. 

Virginia Board of FElections, 383 

U.S. 663,670 (1966) (Black, J., 

dissenting)." Id. at 226. 

  

  

It is not pretended that previous 

pronouncements foreclose the question. 

However, the consistent views expressed 

over the years by this Court on this 

subject illustrate that the death penalty 

is not an unacceptable punishment. It 

cannot be said that these views do not 
give expression to that common standard 

of decency required of punishment in our 

society by humane justice, or that they 

must be abandoned because contemporary 

human knowledge has rendered the death 

penalty constitutionally "unusual”, 

Returning to the meaning of the 

cruel and unusual punishment clause and 

its previous construction by this Court, 

which serves to instruct as to its 
appropriate application in this case, 

the Weems definition was reiterated in 

the later federal case of Trop v. Dulles, 
  

supra, 3560.8, at "100. The Eighth 

Amendment merely circumscribes the power 

to punish so that it does not exceed 

"the limits of civilized standards.” 

 



  

41 

34. at 100. The punishment of dena- 

tionalization for even a minor deser- 

tion in wartime was found to exceed 

these limits because it destroyed the 

political existence of the individual 
and his right to have rights, It was 

found to be excessive, contrary to "the 

dignity of man.” The death penalty, 

when so measured, withstands the test. 

Execution is a traditional penalty which 

may be imposed depending on the enormity 

of the crime, the ‘Court in Trop noted, 

id. at 100. It is submitted that the 

Petitioner has failed to carry his 

burden of showing that the death penalty 

is no longer clothed with validity. 

His primary assertion is that capital 

punishment has now become unusual in a 

constitutional sense because of the 

rarity of ‘actual execution, and that 

that rarity proves its unacceptability 

in terms of "evolving standards of 

decency." The fallure of his proofs to 

substantiate his claim is demonstrated 

subsequently. 

"Unusual, that aspect of the clause 

to which Petitioner directs the weight 

of his argument, was given particular 

attention in footnote 32 of the Trop 

decision. Without concluding whether the 

word "unusual" should be given an inde- 

pendent meaning, it was observed that 

the Court: 

  

  
 



  

42 

Mees Simply examines the 

particular punishment involved 

in: light of the basic prohibi- 

tion against inhuman treatment, 

without regard to any subtle- 

ties of meaning that might be 

latent in the word 'unusual.’” 

  

Going on, the Court suggested that: 

hf the word 'unusual’ is to 

have any meaning apart from 

the word 'cruel', however, the 

meaning should be the ordinary 

one, signifying something dif- 

ferent from that which is gen- 

erally done." 

And why did the Court regard denational- 

ization as "unusual" in this sense? Be 

cause: 

"[i] t was never explicity sanc- 

tioned by this Government until 

1940 and never tested against the 

Constitution until this day." 

Trop. Vv, Dulles, supra, 356 U.S. 

at. 100, fn. 32. 
  

The death penalty on the other hand, 

has always been sanctioned in this country 

and is still sanctioned by the vast major- 

ity of jurisdictions here. 1t was such 

an integral part of the penal system 

when the Amendment was adopted that there 

 



  

43 

was not even a question so far as 

Respondent can find, in Congress or in 

any of the State legislatures to which 

it was sent for ratificetion, as to 

whether that Amendment conceivably ex- 

cluded the death penalty. And as to its 

testing against the Constitution, it 

would appear that the question would have 

come ub prior {to this almost 200th year 

of our national history, if it had been 

regarded as debatable. 

The "contemporary human knowledge" 

test which Petitioner extracts from 

Robinson v. California, supra, must be 

examined in its context in order to be 

a reliable guide in the present action. 

The Court said: 

  

"TL is unlikely that any State 
at this moment in history would 

attempt to make it a criminal 

offense for a person to be men- 

tally ill, or a lepey, or to be 

afflicted with a venereal dis- 

ease. A State might determine 

that the general health and wel- 

fare require that the victims of 

these and other human afflic- 

tions be dealt with by compul- 

sory treatment, involving 

quarantine, confinement, or 

sequestration. But, in the 

 



  

2k 

light of contemporary human 

knowledge, a law which made a 

criminal offense of such a dis- 

ease would doubtless be univer- 

sally ithought to be an infliction 

of cruel and unusual punishment 

in violation of the Eighth and 

Fourteenth Amendments. See 

Louisiana ex rel. Francis v. 

Reswebar, 329 U.S, 459, i... 5." 

Id. at 666. 

  

  

Thus, the Court considered the penalty 

to be so grossly antagonistic to contem- 

porary human knowledge that universal 

thought would "doubtless" regard it as 

violative of the Eighth and Fourteenth 

Amendments. The same degree of attitude 

or opinion is not present in terms of 

capital punishment. Even Petitioner's 

statistics show that there is no "univer- 

gal thought'hiin this country oniits 

validity in the constitutional sense, or 

that such thought is "doubtless" .a 

condemnatory one. 

   



45 

Ix 

THE YINDICATORS" OF UNACCED- 

TABILITY OF DEATH AS A PENALTY 

ARE NOT RELIABLE YARDSTICKS, 

ARE NOT RELEVANT OR APPROPRIATE 

YARDSTICKS, AND DO NOT PROVIDE 

ACCURATE MEASURES FOR DETER- 

MINING THAT STANDARD OF DECENCY 

BEYOND WHICH STATES MAY NOT GO 

IN FIXING PUNISHMENT. 

It has been demonstrated that the 

antagonist has failed to take into 

account the due process aspect of the 

question before the Court, and the 

perimeters of that aspect have been 

explained. It has also been pointed 

out that the interpretation by the 

antagonist, of the tests heretofore 

enunciated and applied by this Court 

in construing the “cruel and unusual 

punishment" prohibition, has been too 

narrow and has sought to restrict the 

Court to a simple present pulse-taking. 

A proper perspective of the question 

would sustain the punishment imposed, 

when history, experience, and purpose 

are scrutinized within the light of 

present knowledge. Leave that for 

the moment, however, and turn to the 

"oroof" which Petitioner offers. . It 

fails even the tests which he has 

proposed; that is, it fails to show 

that the standard which he has out- 

lined is not being met by the State. 

 



    

46 

The premise which Petitioner 

attempts to prove, and which he says 

spells the doom of capital punish- 

ment, is that the death penalty has 

a fatal characteristic, i.e., "extreme 

contemporary rarity resulting from a 

demonstrable historical movement which 

can only be interpreted fairly as a . 

mounting and today virtually universal 

repudiation." ao. The following 

objective indicia, he asserts, all 

point to unacceptability by contem- 

porary standards: 

(1) The suggestion 1s made that 

there is a world-wide trend towards 

disuse for civilian crime, a de facto 
abolition. 

Firstly, by excluding military 

crimes from discussion, Petitioner 

attempts to artificially limit the 

scope of the Eighth Amendment which, 

as exemplified by its application to 

wartime desertion in the case of Trop 

Y. Dulles, supra, admits of ho such 

restriction. What this distortion 

does is allow the argument to be made 

that the death penalty has been 

"abolished" in many countries. Peti- 

tioner has failed to point out that 

  

  

1e/ Aikens Brief, p. 12. 

 



47 

it has been almost universally 

retained for war-time crimes or 

treason. 17/ The legislative 

restrictions on the use of the 

death penalty in this and other 

countries certainly do not 

constitute Yabolition'. It 

presents rather a matter of degree. 

Thus the moral and legal absolutes 

presented in Petitioner's Brief 

are hedged, he having excluded at 

the outset an entire class of crimes 

the inclusion of which would weaken 

his argument. Petitioner has tacitly 

admitted by this exclusion that the 

death penalty has not been outlawed 

but has at the most been restricted. 

  

It is highly questionable, 

secondly, whether the international 

picture is an appropriate measure 

of whether a State has contravened 

our Pederal Constitution. Although 

the Court in Trop took cognizance 

of the non-acceptability by civilized 

  

17/ United Nations, Department of 

Economic and Social Affairs, 

Capital Punishment (ST/Soa/ 
SD/9-10) (1968). 

 



    

48 

nations of the world of statelessness 
as a punishment for crime, the penalty 

of denationalization in that case was 

of a peculiarly international character 

and involved the international political 

status of the person. Thus, the law of 

other nations was uniquely pertinent. 

It is not so with the penalty of death, 

which does not involve an individual's 

citizenship relationship with his 

country or others. The same Trop 

opinion, moreover, comments on the death 

penalty in terms of "our", meaning our 

Nation's, history. 

It was to the States that Mr. 

Justice Frankfurter looked in Solesbee 

VY. 2alkcom, 339 U.S. 9 (1950). In the 

dissent he tested the due process 

problem: 

  

  

"The manner in which the States 

have dealt with this problem 

furnishes a faiv reflex, for 

purposes of the Due Process 

Clause, of the underlying feel- 

ings .of our society about the 

treatment of persons who 

become insane while under 

gentence of death.” Id. at 21. 

In Weems v. United States, supra, 
  

217 v.53, at 380-381, the Court compared 

the Philippine punishment, for Eighth 

Lmendment purposes, only with the law of 

 



  

49 

the United States and with other punish- 

ments in the Philippines. 

Further, Petitioner cites no 

authority for the proposition that 

the Framers intended the test of 

"cruel and unusual punishment” to be 

a poll-taking of other countries' use 

Of a particular punishment. It is un 

likely that such a concept was envi- 

sioned. 

And it cannot be said that the 

reports cited by Petitioner 18/ indi- 

cate a world-wide repudiation of such 

certainty that the death penalty contra- 

venes the very dignity of man. Great 

Britain-only abolished it after a trial 

period which indicates its own hesitancy, 

and Canada is still undergoing a five- 

year experiment that will expire unless 

affirmatively acted on by its Parlia- 

ment. 12/ Such built-in vacillation 

  

18/ Aaikens Brief, pb. 27, fn. 46. 

19/ dee report of the "Limitation of 

Death Penalty in Canada” by J. R. 

Mutchmor, Christian Century, Janu- 

ary:.24, 1968, Vol. 85, bage: 120. 

Just prior to the enactment of the 

experimental abolition in Canada, 

the death penalty was retained by 

(continued on next page) 

 



    

50 

by the two countries whose underlying 

philosophies are most closely allied 

with our own refutes the implication 

that our country alone remains barbaric. 

In addition, the circumstances of 

other countries may indeed permit them 

to abolish the death penalty; their 

crime rates and penal facilities, their 

systems of criminal law and their under- 

lying concepts of crime, themselves un- 

doubtedly each affected the decision to 

abolish. Thus, the mere number of such 

foreign countries have no effect on the 

constitutionality of what, in most of 

these United States, is regarded as a 

legitimate and needed penalty for crime. 

(2) The Petitioner alleges that 

the countries have abandoned capital 

punishment because of their concern 

with fundamental human decency, which 

he says is illustrated by an intense 

concern of religious groups, a crusade 

fervor with which the forces against 

the death penalty have moved, and anti 

  

a vote of 143 to 112 despite 

the fact that Prime Minister 

Lester Pearson and the leaders of 

all other major parties favored 

abolishing it. "Time", April 15, 

1966, Volume 87, page 40. 

 



  

31 

capital punishment opinions of highly 

respected persons. Bedau lists 

examples of literature stating the 

case for capital punishment. 20 

The "objective indicator" which 

is thus put forth is merely contrived 

as a bald conclusion. Without a 

careful study of the circumstances 

under which a foreign country designed 

to discontinue use of the death penalty, 

it cannot be surmised that its reason 

was that which Petitioner wishes it to 
be. A conclusion, especially of the mag- 

nitude made by Petitioner in this regard, 

cannot reliably be drawn from a small 

and carefully selected set of illustra- 

tions, especially ones that do not even 

accurately portray what they portend to. 
For example, the fervor of crusade 

alluded to is indicative of most, 

if not all, attempts to reverse time- 

honored and traditional concepts and 

practices... It does not "show! that 

the reason for abolition is basically a 

concern with fundamental human decency. 

It goes without saying that forces 

  

20/ Bedau, The Death Penalty in Ameri- 
ca (Bev, ed 1967), Dp. 120. See 

also, Bernard Lande Cohen, Law With- 

out Order (1970). 

  

  

  

 



    

52 

destructive of society are also often 

imbued with the fervor of a crusade. 

(3) Petitioner condemns what he 

regards as the mainstay of support 

for the death penalty. This “indicator 

of unacceptability” is the belief in 

retribution, atonement, or vengeance. 

The implication is that such is not a 
legitimate purpose. 

In the fivst place, punishment for 

its own sake is not regarded in law as 

unconstitutional, The Court in Trop 

referred to this in finding that the 

purpose of denationalization was simply 

to punish the deserter: "There is no 

other legitimate purpose that the sta- 

tute could serve," the Court concluded. 

"Here the purpose [of the law] is 

punishment, and therefore the statute 

is a penal law." Trop Vv, Dulles, supra, 

356 U.S." aL 97. Mr. Justice Brennan, 

in his concurring opinion in Trop, 

indicated that if the sole purpose of 

punishment was retribution, the punish- 

ment was not a valid one. Not inci- 

dentally, in discussing the purposes 

of the penal law, he noted that the 

thought of death as a penalty would 

serve the legitimate purpose of deter- 

rence. Trop Vv. Dulles, supra, 356 U.S. 

at 112. 

  

  

 



  

53 

It is patent that the death penalty 

serves a number of legitimate ends of 

punishment, contrary to Petitioner's 

contention. Such recognized purposes 

aredeterrence of the wrongful act by 

threal of punishment (Trop, supra, 

concurring opinion of Mr. Justice 

Brennan, 256 U.S. at 111-112; Robinson, 

supra, dissent of Mr. Justice Clark, 

370 U.S. at 63; Powell v, Texas, 392 

U.S. 514, 530 ]1968]1); the protection 
of society itself and of its members 

{Soleshee v., Balkcom, subra, 339 U.S, 

gt 13; Robinson, supra, concurring 

opinion of Mr. Justice Douglas, 370 U.S. 

  

  

  

  

  

at 

677; Trop, suvra, Mr. Justice Brennan concurring 
  

opinion, 256 U.8., at 111-112: included 

as a purpose of the penal law is the 

insulation of society from a dangerous 

individual by imprisonment "or execu- 

tion"); the repression of crime and 

prevention of repetition (Weems v. 

United States, supra, 217 U.S. at 381). 
  

How can it possibly be said that 

the death penalty does not act to 

deter would-be crime perpetrators 

from carrying out their schemes? In 

Powell, supra, 392 U.S. al 531, the 

Court presumed that the very existence 
  

  

of criminal sanctions serves to reinforce 

condemnation of murder, rape and other 

anti~social conduct. It cannot, on 

 



  

54 

the other hand, be presumed that the 

threat of death has not stayed the 

hand and saved the life,simply because 

the penalty has failed to deter those 

who commit capital felonies. Statis-~ 

tics could never be gathered to prove 

how many capital crimes were averted 

by the ‘existence of the death penalty, 

for no census gatherer or poll-taker 

could persuade even one person to admit 

that he would have committed a murder, 

Or rape, or. an aymed robbery,.Or a 

kidnapping, but for the knowledge 

that he could have received the death 

penalty! It is in the very nature of 

man to recoil the most strenuously from 

forfeiture of his life. Although this 

deterrent effect cannot for lack of 

knowledge be measured in terms of the 

numbers of capital crimes NOT committed, 

other indications of the prevailing 

belief in the superior deterrent effect 

of the death penalty are recitable: 

a) Six of the states which have 

partially abolished the death penalty 

have retained it for certain crimes. 

New York, Vermont, North Dakota, and 

Rhode Island are particularly notable 

for retaining it for murders committed 

by certain prisoners, and New York and 

Vermont retain it also for murder of a 

Police Officer or certain bersons in-21/ 

  

23/ weg, pv. 30. 

   



  

55 

the prisons. What primary purpose 

could these carefully selected excep- 

tions have other than deterrence? 

Certainly the exceptions do not bear 

witness to a greater value being placed 

on some victims' lives than on others. 

The resultant disservice of such 

circumscription as New York placed is 

tragically illustrated by the recent 

prison uprising in which a woefully 

large number of persons, some civilian, 

were killed; it is doubtful that all of 

the prisoners responsible were "lifers'. 

New York's law, however, arbitrarily 

limits the death penalty "for persons 

found guilty of killing a peace officer 

who is'acting “in the line of duty, and 

for prisoners under a life sentence who 

murder a guard or inmate while in confine- 

ment or while escaping from confinement."22/ 

b) The threat of the death penalty 
for armed robbery palpably serves as a 

deterrent; it is common knowledge that 

robbers frequently accomplish their 

evil ends with unloaded weapons. Can 
it be said that this is not because 

they are aware that an armed robbery 

can draw the death penalty but an 

unarmed robbery cannot? 23/ 

  

82/ Noe, o. 30. 

23/ Criminal Code of Georgia, $8 26- 

1901 and -1902. 

 



    

56 

A burglar, too, realizing that he risks 

the death penalty if in the course of 

his venture, his gun goes off and some- 

one is killed, may well be persuaded to 

guarantee against that possibility. 

c) The deterrent value of the death 

penalty vis-a-vis other penalties was 

documented at some length in the Hearings 

before the Subcommittee on Criminal Laws 

and Procedures of the Committee on the 

Judiciary, United States Senate, on S. 

1760, March 20, 21, and: July 2, 1968, 

pages 187-192 of the Report. The deter- 

rent effect was shown by evidence of 

experience, by the psychology of deter- 

rence, and by statistics. 

  

(4) The next insupportable 

"indicator" is Petitioner's statement 

that the United States has over- 

whelmingly rejected the death penalty 

as shown by the decreasing trend of 

executions since 1930 even though 

many jurisdictions retain the death 

penalty on the books. 

This is grossly misleading. In 

the first place, the fact that only 

fourteen states of fifty have 

  

28/  7his and the other statistics 

mentioned in this section are 

drawn from NPS, Table 15, p. 30. 

(continued on next page) 

 



57 

abolished the death penalty either 

partially or completely cannot be ex- 

plained away by saying that the majority 

have it only on their books but 40. not 

actually use it. The fact cannot be 

escaped that America is not yet ready, 

if ever it will be, to abandon capital 

punishment altogether. It is not pre- 

pared to do that even by legislative 

action, much less by constitutional 
fiat declaring it contrary to the 

fundamental concepts of ordered liberty. 
  

The retention states have not 

ignored the law that is on their books 

nor the question now being posed. 

Eleven states have experimented with 

abolition and have subsequently restored 

the penalty, and of those eleven, only 

three reabolished it and one of those 

reabolitions occurred in the Nineteenth 

Century. In the forty yvears from. 1917 

to 1957, only the: state of Missouri 

abolished the death penalty, and it was 

restored in that state in 1919 and 

  

Also, N. M, Stat. ann. (1969 

Cum. pockel part) § 40A-29-2.1. 

{(Aikens Brief, App. G. P- 9 g.). 

 



    

58 

remains in force. Since 1947, when 

Louisiana ex. Yel, Francle v. 

Resweber, supra, was decided, only 

seven states have abolished the death 

penalty while two enacted partial 

abolitions. One of the seven, Delaware, 

restored the penalty after three years' 

experience. Viewed in another per- 

spective, in the thirteen years since 

Trop Vv. Dulles, supra, only four states 
abolished the death penalty, plus the 

two which adopted partial abolition. 

It is therefore stretching the point 

to incredulity to say that the penalty 

has been overwhelmingly rejected in this 

country, or that there is any "trend" 

in this regard. 

  

  

  

Affirmative displays of desired 

retention have recently been demon- 

strated by the Illinois referendum in 

December, 1970 28/ and by the results 

of an extensive study undertaken in 

Georgia by Study Committees of the 

  

26/ Reported in Newsweek, Janu - 

ary 11, 1971, pp. 23, 24,27. 

 



  

59 

Senate and of the House in 1966 and 

1967.27/ Public hearings were held 
in. a number of locations throughout 

Georgia, written material on the sub- 

ject was examined, persons responsible 

for administration of the penal laws 

were queried, and inquiries were made 

of the states classified as having 

abolished capital punishment, with 

respect to their crime rates before 

and after abolition and with respect 

to life imprisonment as the maximum 

penalty. Based on these studies, the 

majority reports of each of the Com- 

mittees recommended retention of the | 

death penalty. 

Other clear indications of the 

Nation's attitude and opinion, which 

must have at least some bearing on 

the "standards of decency” which the 

  

27/ 1966 jouse Journal, p. 2669, 
contains the Senate Report; 

1968 House Journal, b. 3451, 

contains the House Report. 

The Senate Committee was 

created pursuant to Senate 

Resolution No. 107. Senate 

gournal 1965, p, 1226, The 

House Committee was created 

pursuant to House Resolution 

No. 3, House Journal 1967, p. 15. 

 



    

60 

community embraces, are the results 

of numerous polls. The polls collected 

by Erskine in 34 Public Opinion Quarter- 

ly (1970-71) bear witness to the high 

percentages of persons in this country 

who favor capital punishment. The 

Gallup polls indicate a rise from 45% 

to 51% "Por Capital Punishment” 

between the years 1965 and 1969. "Time" 

magazine on June:6,.:1969, pp. 26, 27, 

reported the results of a Louis Harris 

poll which indicated that 48% of the 

Americans questioned favored capital 

punishment while 38% did not. Among 

men, 58% favored it and among women, 

40%. "Nation's Business" reported in 

its November, 1970, issue, vol. 58 p. 28, 

that the results of its October .invi- 

tation to "Sound Off to the Editor. on 

"Should the death penalty be abolished?! 

were that four out of five replies were 

"no". The readers in this case were of 

course primarily businessmen. Taking 

intc account that most states and the 

federal government retain the death 

penalty, it is significant that the much 

touted opposition did not take advantage 

of the opportunity to show their numbers 

in this poll. The vote was notably 

nearly two to one in favor of the death 

penalty in a poll undertaken by a 

national women's magazine, "Good House- 

keeping", and reported in the November 

  

 



  

51 

1969 igsue, vol. 169 p. 24. 62.15 

favored it and 35.8% were against it; 

only 2.1%. reported /'no opinion’. 

The Court in Trop, subra, was 

therefore demonstrably correct when it 

stated that the death penalty is still 

widely accepted in this country, and 

Petitioner's attempt to discredit that 

statement or prove that it is no longer 

valid falls short of its goal. Although 

polls are not solid proof, they are an 

acceptable barometer when an "indication" 

will suffice for the purposes of the 

question in inquiry. The Court allowed 

as much in Witherspoon v. Illinois, 391 

U.S. 510, 520,fn.. 16 {1968}. 

  

  

Petitioner overlooks the most signi- 

ficant and reliable measuring device, 

and the one that is more pertinent to 

this inguiry than any other. That is 

the contemporary American jury. The 

Court itself pointed to this keystone 

in Witherspoon v. Illinols, supra, 391 

U.S. at 519-520: 
  

"Guided by neither rule nor 

standard, 'free to select 

Or reject as it [sees] fit,’ 

a jury that must choose 

between life imprisonment and 

capital punishment can do 

 



    

62 

little more--and must do 

nothing less--than express 

the conscience of the com- 

munity on the ultimate 

question of life or death...."28/ 

Let us look at what the juries are 

doing "in this country. Tn 1968, "102 

persons received the death sentence; in 

1967, 85 persons were so sentenced; in 

1966, 118 death sentences were imposed; 

in1965, 869 in 1964, 1067 in 1963, 93: 

in 1962, 103: in 1961, 140. 22/ | Thus, 
in only eight years of the last decade, 

  

28/ "And one of the most important 

functions any jury can perform in 

making such a selection is to 

maintain a link between contempo- 

rary community values and the 

penal system, a link without 

which the determination of 

punishment could hardly reflect 

'the evolving standards of 

decency that mark the progress 

of a maturing society.” 

29/1. NPS, Table 4, p. 12. 

 



  
  

63 

833 persons received the death sentence 

in the United States. Assuming that in 

all cases it was a jury which made the 

determination of this penalty, the total 

number of persons thus selected by the 

random methods employed to obtain jurors 

representing a fair cross-section of the 

community amounted to 9,996 or almost 

ten thousand persons! Keeping in mind 

that these conscientious people, sworn 

to dispatch the solemn duties of meting 

out justice, were faced with actual 

cases and real defendants, and that they 

deemed the death penalty appropriate in 

a very real sense and through a very 

personal involvement in the debate, 

the significance of these figures is 

indisputable. It is abundantly evi- 

dent, therefore, that the people do 

not believe that we can afford to dis- 

pense with the death penalty as an 

effective weapon against crime in our 

society. 

The juries in the two Georgia 

cases at bar were selected in accord- 

ance with the requirements of Wither- 

gboon. Vv, Illinois, supra, (A. 12-15). 

Insofar as the penalty was concerned, 

only those prospective jurors who 

stated in voir dire that they would 

  

  

not even consider returning a verdict 

in accordance with the maximum pro- 

vided by law, were excluded for cause. 

 



    

64 

In Furman's case, only one member of 

the panel of 48 was disqualified for 

this reason. So out of 49 persons 

randomly selected to represent the 

comminity by jury duty, only 2% when 

faced with a specific case in which 

the decision as to punishment would 

be his, affirmatively indicated that 

he would refuse to impose capital 

punishment regardless of the evidence 

(3. 13). ‘Even the juror who indi- 

cated a general opposition to capital 

punishment saw fit to impose the penalty 

in this case (A. 12, 21). In Jackson's 

case (No. 69-5030), of atotal of 60 

prospective jurors submitted to the voir 

dire, 12, or-only 1 out of 5, similarly 

were disqualified (A. 33-37). 

In Georgia, 33 persons are currently 

under death penalty (App. C, pp.l1-6). 
All were sentenced by juries. Eight were 

sentenced within the last two years. 

The attitudes of the community thus 

reflected show conclusively that the 

death penalty is far from being rejected, 

much less "overwhelmingly rejected", 

and is certainly not universally thought 

of in this country as being contrary to 

standards of decency. 

  

  

 



  

65 

(5) Petitioner misconceives the 

conclusion he draws from the data 

concerning the number of executions in 

the United States in recent years. 

The penalty, he says, is no longer in 

actual use because the incidence of 

executions is "freakishly rare". The 

conclusion that this iis the result of 

"prevailing" abolitionist sentiment is 

undocumented and insupportable. Con- 

trarily, it is demonstrable that there 

have been fewer executions recently 

because the condemned criminals have 

averted the carrying out of the 

penalty by pursuing a variety of appeals 

and other post-conviction proceedings. 

The proper conclusion to be drawn is 

that our system of law is increasingly 

providing greater and wider opportunity 

for the convicted defendant to chal- 

lenge the proceedings which ultimately 

resulted in his sentence. The perfec- 

tion of our system of criminal justice 

is the apex sought as we constantly 

strive for the greatest degree of fair- 

ness. The advancement well known to 

this Court need hardly be given illustra- 

tion. It is marked by requirements 

tending towards greater impartiality 

Of juries and their freedom from preju- 

dice or discrimination, by safeguards 

against involuntary confessions and 

erroneous lineup identification, by 

provision for effective assistance of 

counsel for all who are charged with 

crime. This advancement, which assures 

  
 



    

66 

more than ever before that a man will 

be afforded due process by a full 

panoply of protections, also allows 

review of his trial to a greater 

degree, by more tribunals, and sub- 

ject to a finey scrutiny through the 

use of verbatim transcripts and post- 

conviction evidentiary hearings. And 

that development, taken advantage of by 

prisoners whether under prison terms or 

under death penalty, bears most 

heavily on the carrying out of execu- 

tions in recent years. 

The status Of persons subject to 

capital punishment in Georgia provides 

a concrete and irrefutable picture 

which is likely repeated in state after | 

state. Limitations of time and informa- 

tion prevent a revelation ofsuch scope here. 

In Georgia, however, there are actually 

33 persons now under death penalty. 

This number is not reflected in the 

published statistics because many of 

the prisoners are in county jails 

rather than in the State penitentiary, 

since it is the policy of Georgia to 

retain a man locally while he has legal 

proceedings pending. Ga. Laws 1956, 

Pe. 161, 171, as amended; Ga. Code 

Ann. § 77~309(c) and (4) (App. B, pP. 13a). 

  
 



  
  

67 

By the same token, condemned pris- 

oners are generally to be sent to the 

State penitentiary not more than twenty 

days nor less than two days prior to 

the date set for execution. Ga. Laws 

1924, p.. 195; Ga. Code Ann. § 27-2514 

{ADp. A, PP. 8a~9a). During periods 

of stays of execution, prisoners are 

to be incarcerated in the jail of the 

sentencing county. 30/ As described in 

detall in the chart submitted at 

Appendix C, of the 33 present cases, 

13 persons currently have petitions 

for certiorari pending before this 

Court, 7 have motions for new trial 

pending before the trial courts, 5 have 

habeas corpus proceedings in motion or 

on appeal, and 2 have executions stayed. 

One person is in prison out-of-state 

and 3 are awaiting the setting of new 

execution dates. 31/ The court pro- 

ceedings in progress involve numerous 

  

30/ Opinions of the Attorney General 
of Georgia, 1959, pp. 245-246. 

31/ App... C, bp. 10c, 

 



    

68 

alleged grounds, the variety of which 

demonstrates that the decisions in the 

cases now before the Court may very 

well not affect any of them. (App. C pp. 
1-6). 

It is plain, at any rate, that "it 

is not public opinion that has caused 

a cessation in executions but rather 

an expansion of post-conviction remedies 

which are being invoked to a greater 

degree. The fallacy of Petitioner's 

conclusion concerning public opinion 

is also pointed out by the numbers 

of persons sentenced to death in the 

last few years. 32/ It is contrary to 

common sense to conclude that the 

juries which imposed capital punish- 

ment on 102. Felons. in 1968 did so in 

the belief or hope that the penalty 

would not be carried out. 33/ 

As to Petitioner's assertion 

that the death penalty is a southern 

phenomenon, it is noted that although 

the "South" is classified as one of 

five geographical groups, it comprises 

one-third of the fifty-two jurisdictions 

  

32/ Supra, pp. 62-63, 

33/ NPS, p. 12. 

  

  

 



  
  

69 

counted. 34/ It is more to the point 

of this case, however, that mere geo- 

graphical predominence does not render 

a penalty constitutionally prohibited. 

The fact that the northern state of 

New York retains the death penalty only 

for persons ‘found guilty ‘of killing a 

peace officer who ‘is acting in line ‘of 

duty and for prisoners under life sen- 

tence who murder a guard or inmate 

while in confinement or while escaping 

from confinement 35/ does not render 

Georgia's retention of the death penalty 

for ‘the murder: of gnyone unconstitu- 

tional. A harsher sentence in one state 

does not make it cruel and unusual for 

that reason. As the Court observed in 

Howard v. Fleming, supra, 191 Uu.s. at 

136, in sustaining a state sentence 

against an attack ‘that it was cruel and 

unusual: 

  

"If the effect of this sen- 

tence is to induce like 

criminals to avoid its ter 

ritory, Rorth Carolina is to 

  

34/ Aikens Brief, p. 38. 

35/ NPS, Table 15, p. 30, note (a). 

 



    

70 

be congratulated, not 

condemned." 

(6) ‘The "rarity" which. .is alluded 

to in the abortive attempt to disprove 

the generally wide acceptance of the 

death penalty as a viable tool of crime 

prevention and criminal justice in this 

country, has previously been put in its 

more accurate perspective. The faulty 

conclusions relied on in this regard 

therefore miss wide the mark. As 

reemphasized lately by the Court in 

McGauktha v. California, supra, 402 U.S. 

act2l3 1. "7. .-...it requires a strong 

showing to upset [a] settled practice 

of the Nation on constitutional grounds. 

Even Petitioner admits that the 

"varities" he proffers only "imply" 

American unacceptance of the death 

penalty for consideration by the Court 

of the constitutional issue at hand.36/ 

  

  

36/ Alkens Brief, Dp. 39. 

  

     



  
  

71 

And the implications from the 

public opinion polls might, more 

logically than petitioner concludes, 

be that Americans are alarmed by the 

growth of crime in their country and 

by the evidences of disrespect for 

the law which they see around them. 

We say "more logically" because 

it does not stand to reason, as 

Petitioner contends, that a polled 

person will indicate an opinion 

contrary to what Petitioner purports 

is a universal attitude, meanwhile 

harboring a belief against capital 

punishment. What could possibly 

induce the polled public to speak 

for capital punishment and deliber - 

ately take what Petitioner regards 

as an unpopular and "condemned" 

stand? It stands to reason, instead, 

that the polled public means what it 

says and that the "overwhelming 

rejection is a fiction. Thus, the 

hewings in public opinion" referred 

to by Petitioner 37/ may instead 

reflect a belief that the lack of 

actual carrying out of death sentences 

  

37/ Aikens Brief, p. 39. 

 



    

72 

imposed in the last several years is 

directly related to the rise in the 

rate of serious crimes. 

(7) Petitioner suggests that 

the number of death penalties meted 

out and the number of actual execu- 

tions now taking place is an objec- 

tive indicator that the American 

conscience has repudiated the penalty. 

Much has already been discussed in 

refutation, but an additional point 

needs to be made with regard to the 

number of death sentences imposed 

by today's juries. . The proportion- 

ately fewer instances in which juries 

find the death penalty mandated may 

well indicate not their revulsion to 

it (or they would not impose if "atl 

all) but rather a more stringent demand 

for a showing of aggravated circum- 

stances than previously. Thus, 

BECAUSE it is evident that juries are 

giving greater caution before selecting 

the death penalty, and BECAUSE it occurs 

almost exclusively in instances of 

heinous crime, 38/ juries are shown to re- 

serve the death penalty for unusual cases. 

There is all the more reason to retain 

  

aB8/ see App. C, Dp. lc - 6c, 

  
 



  

  

  
  

73 

it as a constitutional penalty. Both 

the imposition and the carrving out of 

a death penalty in this country today 

are surrounded with greater safeguards 

and humanitarian considerations than 

have existed in the past. The expanded 

guarantees of due process, as well as 

the increasingly more conscientious, 

knowledgeable, and more cautious jury, 

give added reason for retaining rather 

than abeolishing it. Our system of 

criminal justice assures more than 

ever before that those who are 

ultimately required to pay the maximum 

penalty will have had a full measure 

of due process protection and the 

responsible consideration of his 

peers. Such a framework must be 

regarded as adding to the constitu- 

tionality of the death penalty. That 

it may result in fewer actual imposi- 

tions and executions should not, 

because of that additional due process, 

result in unconstitutionality of the 

penalty. The "cruel and unusual 

punishment" prohibition surely does 

not compel depriving the states 

which are concerned with ordered 

liberty, and the jurors who act 

directly on behalf of the citizens 
of the States, of the freedom to 

impose and carry out the traditionally 

maintained penalty of death where 

justified. 

 



    

74 

(8) Petitioner refers next to what 

he describes as a "secrecy" which envelopes 

executions and suppresses the truth about 

them from subjection to public opinion. 

The fact that they are not carried out in 

the open public objectively indicates, 

he intimates, that society must therefore 

regard this punishment as repellent. 

No distinction is made between the 

society which Petitioner alleges is the 

suppressor and the society which is "un- 

enlightened” and the society which alleg- 

edly is thus shown to consider it repug- 

nant. ..It strains logic {oc believe that 

society ls so chameleon or that one hand 
does not know what the other hand is doing. 

Moreover, it is provincial to suggest 

that the public does not realize the im- 

port of an execution. The numerous arti- 

cles that Petitioner himself cites bear 

witness to the fact that a great deal of 

literature is put before the public to 

inform it of the subject. The anatomy 

of an execution has been repeatedly 

described and discussed and testified 

to at various public hearings, 

ag Petitioner himself acknowledges, e.9., 

at footnote 89, page 45 of the Aikens 

Brief and Appendix I therein. Illus- 
trative also is the type of article 

that appeared in"The Atlanta Journal 

and Constitution Magazine" last 

  
 



  

75 

year. 39/ rhe article graphically 
pictured and described the electric 

chair and procedure used in Georgia. 

It is notable that the reams written on 
the subject and directed to the public 

has not led to abolition of capital pun- 

ishment in these United States. 

As to information concerning exe- 

cutions, the news media policy. of the 

State Board of Corrections is an open 

one. 49/ A recent pertinent example 

of the application of this policy was 

  

39/ "The Death Penalty: Have We Walked 

The Last Mile?", the first of a two- 

article series by John Pennington 

appearing in the issues of August 30 

and September 6, 1970. 

40/ Secretary of State, Official Com- 

pilation of the Rules and Regulations 

of the State of Georgia, "Rules of 

the State Board of Corrections,” 

Sec. 125-1-2-.05; App. A. p. loa. 

    
 



    

76 

the televised interview of Petitioner 

Lucious Jackson, Jr. (Case No. 69-5030) 

by NBC on the "Xerox Quarterly Report", 

September 8, 1971, Thus it cannot be said 

that knowledge of executions is suppressed. 

As to the assertion that executions 

are carried out "clandestinely", the 

date of execution is made a part of the 

sentence itself, which is a public 

record. 41/ Also, the condemned per- 

son may have present, if he desires, 

his counsel, relatives, and such clergy- 

man and friends as he wishes. 

This introduces the pivotal point 

regarding the fact that executions are 

carried oul privately. 

  

EY 00a 5 ghlsnawe 1924, DT. 193; 
Ga. Code Ann. § 27-2514, App. 

As"'Pp. Ba =~ 9a, 

22/ aa. 1aws 1924, p. 196: 1926, pp. 
lel, 182: Ga. Code Ahh. § 27= 

2515, APD. A. Ds. 103. 

  
 



  

77 

(9) Petitioner suggests that such 

privacy indicates society's revulsion to 

public execution. That is indeed true. 

Such a mode of carrying out the penalty 

imposed is now generally considered 

barbaric because it unnecessarily robs 

the condemned man of the last vestiges 

of dignity. Decency calls for an aban- 

donment of the public circus atmosphere 

of execution, not for the abandonment of 

execution itself. 

The humane method predominantly 

invoked is regarded as sufficient 

to serve the purposes of the punishment. 

It is the obvious consensus that re- 

quiring a condemned man to make a 

spectacle of himself in his last hour 

ls. too: great a price to extract for 

the additional deterrent value such 

a procedure might have. 

No authority is advanced, nor is any 

known to Respondent, for the proposition 
that the deterrent effect of the death 

penalty is erased by imposing it pri- 

vately. That the would-be capital 

felon would be deterred only by the sight 

of another's forfeiture of life and 

would not be deterred at all by the 

thought of the forfeiture of his own, 

is simply not supportable.       
 



  

78 

(10) The discretionary aspect 

which the death penalty now has, 

Petitioner contends, provides its only 

basis of acceptability to the public, 

while if may be true that a rigid, 

mandatory use of the death penalty, to 

cover all manner of acts forbidden 

* within the definition of a capital 

crime, might impose cruel and unusual 

punishment on a particular offender, 

it does not follow that individualiza- 

tion of penalty by the device of mini~- 

mum - maximum penal laws reaches the 

same result. It goes without saying 

that the discretionary aspect of the 

death penalty, as well as other pen- 

alties, removes the very arbitrariness 

of which Petitioner complains. The 

feature of discretion allows the jury 

to take a less wooden approach to pen- 

alty. Most importantly in the context 

of the present inquiry, if allows the 

community standard to be more immediately 

felt and applied and is more direct than 
any change in statute. That juries do 

impose the death penalty under this pro- 

cedure makes it abundantly evident that 

such is as close a reflection of com 

munity standards as is presently pos- 

sible and that it is not, moreover, a 

result of insensitive or slow-moving legis- 

lative directive. The function of the jury 

as maintaining a link between community 

values and the penal system is noted in 

Yitherspoon v., Illinois, supra, 391 U.S. at 
  

519. 

    
 



  
  

79 

(11) Another indefensible "indicium 

of unacceptability! is Petitioner's 

reference to the identity of death pen- 

alty prisoners, 

Petitioner admits that evidence 

supporting his theory cannot be brought 

forth. This omission in itself is fatal 

to the premise because the burden is his 

to establish the unconstitutionality 

claimed. 43/ Certainly he cannot do so 

by mere innuendo. 

Moreover, it can hardly be pre- 

sumed that the juries in this country 

have conspired to sentence only certain 

classes of persons within our society, 

or that the juries responsible for the 

death penalties now outstanding were 

infected with an impermissible discrim- 

ination. If the Petitioner in any case 

now before the Court believes he was 

unconstitutionally discriminated against 

because of his status in society, he has 

not shown so. And the tools for doing so 

have been made clear and available. See 

Whitus v, Georgia, 385 U.5. 545 (1967); 

Witherspoon Vv." Illinois, Supra. 
  

  

  

43/ McGautha Vv. California, supra, 
  

402 U.S. at 203. 

 



  

80 

In addition, safeguards against 

arbitrariness or other lack of due 

process for disadvantaged persons have 

increased substantially in the last 

several decades. Added to those pre- 

viously mentioned is the right to effec- 

tive assistance of counsel for the 

indigent, to cite just one. 

It is submitted that if it appears 

that those receiving the death penalty 

fall primarily into one particular class 

or another, it is not because of some 

rampant discrimination but rather be- 

cause the rate of capital felonies is 

proportionately higher by far among such 

groups. The 1970 Annual Report of the 

Atlanta, Georgia, Police Department Ly 

shows in that year a total of 55 murders 

committed by white persons and 187 mur- 

ders committed by Negro persons. 45/ 

Thirty-one persons were killed by white 

assailants, and one-hundred eighty-seven 

persons were killed by Negro assailants.46/ 

  

City of Atlanta Department of Police, 

91st Annual Report, December 31, 1970. 

& 

Supra, pb, 15, 

2s
 

Supra, p. 15, 

    
 



  
  

81 

Eighty-eight cases of rape by a Negro male 

were booked, while the total for white 

males was 18. 47/ The facts are thus 

destructive of the presumption. 

(12) Petitioner asserts that since 

the legislatures have failed for various 

reasons to give expression to the public 

conscience in this area, the Court must 

AO" 80, 

As has been demonstrated, however, 

the public conscience has not condemned 

the death penalty per se. Nor have the 
courts. The decisions of the state high 

courts have consistently upheld the death 

penalty against claims that it is con- 

trary to the cruel and unusual punish- 

  

47 / Supra, p. 41. 

 



    

82 

ment provision of the Constitution. 48/ 

  

48 / Recent cases holding that the death 
penalty is not cruel and unusual 

punishment are: Butler v. State, 

285 Ala, 387, .232:5.24:631 {19570); 

State V. Davis, 158 Ct. 341, 260 

A.2d 587 (1969); Rivers v., State, 

226.:85.28 337: (Fla. 1969); Wilson Vv. 

State, 2258.24 321 (Fla. 1969); 

Massey v. State, 222 Ga. 143 (1966); 

Sims ve. Balkecom, 220 Ga, 7 (1964); 

People v., Walcher, 42 111.24 159, 

246 N.F.24:256 £1969); State Vv. 

Crook, 253 la. 96), 221 8.24 473 

(1969); Bartholomey v. State, 260 

Ma. 504,.273 A.20 164 (1971); 

Duiser v., State, 441 s.W.24 688 

(Mo. 1969); State v. Calhoun, 

460 S W.24 719 (Mo, 1970); State 

¥. Pocgers, 275 N.C. 411, 168 

S.2.28 345 (1969); State v. Helback, 

2a Utsh 28 231, 461 P.24 297 (1969); 

State v. Cerny, 480 P.2d 199 (Wash. 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

1971). 

  
 



  
  

B3 

Such an objective indicator as a 

survey of state judicial consideration 

and pronouncement provides a most rele- 

vant and appropriate yardstick. 

It is thus abundantly cleay that 

Petitioner has failed to make that strong 

showing required to upset the settled 
practice of the Nation on constitutional 

grounds.  McGautha 'v, California, supra, 
  

402 at 203, and the cases cited therein. 

 



    

84 

I11 

CAPITAL PUNISHMENT IS AN 

APPROPRIATE MAXIMUM PENALTY FOR 

MURDER IN OUR SOCIETY TODAY AND 

I73 USE 1S NOT FORBIDDEN TO: THE 

STATES AS CRUEL AND UNUSUAL PUN- 

ISHMENT IN CONTRAVENTION OF THE 

EIGHTH AND FOURTEENTH AMENDMENTS. 

It was submitted at the outset of 

this discussion on "indicators" 2Y/ 

that, in addition to the fact that Peti- 

tioner has not made his case, a proper 

perspective of the question would of 

itself sustain the death penalty as a 

punishment, when history, experience, and 

the light of present knowledge are scru- 

tinized. These criteria, posed in 

McGautha v. California, supra, 402 U.S, 

at 207-208, as the relevant factors to be 

considered, soundly indicate that the 

death penalty should not be declared 

offensive to the Constitution. The pur- 

poses of the death penalty as a means of 

controlling crime and protecting society 

have already been discussed, and the 

country's long experience with it does 

not teach that it has no relevancy to 

these goals. The experience of those 

states which have deleted it from their 

laws has provided a track record of over 

  

  

49/ See p. 45. 

  
 



  

85 

fifty years in some instances, and yet 
that experience has not persuaded the 

great majority of states to join them. 

As to history, this Court has on 
a number of occasions examined the his- 

torical context in which the Eighth 
Amendment was adopted. SY 1t is 
clear that at the time the amendments 

known as the Bill of Rights were consider- 

ed by Congress and subsequently by the 

state legislatures to which they were 

sent for ratification in 1789, there was 

no question that the death penalty was 

  

  
56 Ex parte Kemmier, supra, 136 U.S. 

at 446, et sed.; O'Neil v. Vermont, 
gupra, 1447.8, at 339 ef seq.: 
Weems v. United States, supra, 217 

U.S. 368, et seq.: 389, et sed.: 

Trop v. bulles, supra, 356 U.S. 

atiil00. “See ‘also Farrand, The 

Records of the Federal Convention 

of 1787, Vol. I, Yale University 
Press, 4th Printing 1934; Rutland, 

The Birth of the Bill of Rights, 
1776-1791, University of North 

Carolina Press, 1955, Perry and 

Cooper, Sources of Our Liberties, 

  

  

  

  

  

  

  

  

American Bar Foundation, 1959. 

 



    

86 

not regarded as cruel and unusual pun- 

ishment. The same First Congress which 

adopted the Bill of Rights approved an 
act setting the punishment for certain 

crimes against the United States, on 

April. 30, 1790...1It provided: the penalty 
of death for a number of crimes, including 

treason (Section 2), murder {section 3), 

a number of high seas crimes (sections 

5.and 9), rescue. of a capital: felon 

{section 23), forgery of, and other 

crimes related to, public securities 

{section 14), and. others. 5 

From that early time until this, 

the death penalty has been an integral 

part of our penal system, and has been 

accepted as a legitimate and necessary 

instrument in the exercise of the right 

of the sovereign to protect itself and 

its constituents. This Court has itself 

given what appears to be tacit approval 

of the penalty as a means, both in some 

of the cases hereinbefore discussed in 

such later cases as Brady v. United States, 

397 U.S: 742 :{1970): Parker v,. North 

Carolina, 397 U.3,.:720 (1970). 

  

  

  

  

51 / Annals of Congress, Vol. II, 
  

Appendix pp. 2274, 228l. 

  
 



  
  

87 

The cruz of he matter is that 

nothing appears in the instant cases 

to compel, or even to warrant, a re- 

versal of this development. 

 



    

88 
Iv 

THERE IS NO ISSUE IN THIS CASE 

CONCERNING PETITIONER'S MENTAL 

CONDITION AT THE TIME THE SEN- 

TENCE WAS IMPOSED BECAUSE (1) 

NO QUESTION WAS RAISED AT ANY 

STAGE OF THE PROCEEDINGS BELOW, 

EITHER AT TRIAL OR SUBSEQUENTLY, 

AND (2) THERE ARE NO FACTS WHICH 

CAST ANY REAL DOUBT ON PETITIONER'S 

MENTAL. COMPETENCY AT THE TIME OF 

SENTENCING; RATHER THE RECORD 

PLAINLY SHOWS OTHERWISE. 

Petitioner attempts to raise at 

this juncture a challenge to his mental 
“soundness” in September, 1968, when he 

‘was tried and sentenced. In terms cap- 

able of application in a legal sense and 
relevant to a judicial inquiry, he ap- 

parently refers to mental competency. 

It has been pointed out in Respon- 

dent's Statement of the Case 22/ that 

the question is a new one in the long 

history of this case. No mention at 

all was made of it at trial. The record 

is vacant of any comment whatsoever in 

this regard. Had counsel thought him 

incompetent, he surely would have made 

some mention of it before or during the 

  

52/ Supra, pp. 10-11, 

  
 



  

89 

course of the trial. He had instigated 
psychiatric examination of Petitioner in 

October, 1967, shortly after the crime 

was committed (A. 6, 8), but following 

Petitioner's return to the court in April, 
no assertion appears during the months of 

preparation which culminated in the 

September trial. No plea of insanity 

was made 53/, nor was any defense of 

insanity offered. Not the slightest 

bit of evidence appears. Nor was any 

complaint made in this regard in the 

motion for new trial or in the amended 

motion for new trial. 54 / The enumera- 
tion of errors submit ted to the court 

below is also devoid of any suggestion 

along such line (R., unnumbered pages). 

Moving along, the Petition for Certiorari 
filed in this Court also contains no such 

assertion, and even the Reply Brief bears 

no reference. Since no complaint was 

made in all of the time and throughout all 

of the proceedings beginning with Peti- 

tioner's return for trial up until the 

present Brief on the Merits, no question 

exists which addresses itself to the con- 

sideration of this Court. Edelman v. 
California, 344 .U.S...357.4(1957); 

  

  

  

33/ As provided by Ga. Code (1933) 

§ 27-1502; App. A., p. 7a. 

B4/ ®: 20, 34-43.   
 



    

90 

Barbour v. Georgia, 249 U.S, 454 (1919); 

Rules, Supreme Court of the United States, 

Rule 23(1){(f). Not only is there no 

substantial federal question, there is no 

question at all. 

  

Moreover, a careful scrutiny of the 

record unearths no facts which cast any 

real doubt on Petitioner's mental compe- 

tency at the time of trial and sentencing. 

He now alludes to two letters purportedly 

made a part of the record, which letters 

were not in the record before the court 

below, and he claims that they raise sub- 
stantial doubts concerning his competency. 

Presumably he means at the time of trial 

and/or sentencing, although this is not 
made clear. The letters, even if they 

had been made available to the Supreme 

Court of Georgia, could have made no 

difference whatsoever in connection with 

its decision. The reason, as noted above, 

is that no point was made to which they 

would be relevant. Nor are the letters 

probative at all in terms of Petitioner's 
assertion here. The one dated closest 

to the time of trial plainly states that 

Petitioner was not psychotic, knew right 
from wrong and was "able to cooperate 

with his counsel in preparing his defense" 

{Petitioner's Brief, App. A, D. 3D). 

  
 



  
  

ol 

The record, on the other hand, 

demonstrates Petitioner's competency. 

Although he may not have understood the 

legal terminology or concepts when first 

questioned by his counsel and the court, 

he obviously understood plain English 

and made the determination to tell the 

Jury his side of the story. (A. 50-55). 
To say that he did not comprehend the 

nature of the proceedings against him, 

or that he was unable to assist counsel 
in the preparation of his defense, is 

thus baseless. 

 



    

92 

Vv. 

GEORGIA LAW SAFEGUARDS AN 

INSANE MAN FROM EXECUTION 

Petitioner moves from his contention 
regarding competency at time of sentencing 

to insanity at the time of execution. 

If that be his concern, again there is 
no cause for the Court's consideration 

of the matter. The State wholeheartedly 

agrees with the assertion that the exe- 
cution of an insane person would offend 
basic precepts of humanitarianism. It 
has provided statutory avenues designed 
to prevent such a miscarriage. The 
record indicates that none have been 

pursued on Petitioner's behalf, and 

therefore he cannot assert before this 

Court that the State has deprived him of 

due process or thereby inflicted a 

cruel and unusual punishment on him. 

He has not, to put it succinctly, 
exhausted his remedies, and therefore, 

any question in this regard that might 

arise is not only not ripe for review, it 

has not yet been born. 

The safeguards referred to provide 

for an investigation into the sanity of the 

person under death penalty. Ga. Laws 1960, 

PP. 988, 989: Ga. Code Amn. § 27-2602. Ga. 

Laws 1874, p. 30; Ga. Code Ann. §§ 27-2603 

and 27-2604. 

  
 



  
  

93 

This procedure is mentioned by Petitioner 

at page 18 of his brief and is recited 

in Appendix A thereto, page 3a. However, 

he omits recital of section 27-2603, 

which may be found herein in Appendix A, 

p. 10a, It is a special procedure provided 
for capitally sentenced felons and its 

substance has been reviewed and approved 

by this Court. Solesbee v. Balkcom, 

339 U.8. 9 (1949). In all other cases, 

the authority to transfer mentally ill 
inmates is vested in the State Board of 

Corrections, the procedure to be set out 
by the Director. Ga. laws 1956, pp. 
161, 173, as amended; Ga. Code Ann. 

§ 77-310(d): App. A., pp. l4a-15a. Opinions 

of the Attorney General, 1968, No. 68-136, 

DP. 162, 

  

The legal test of insanity, for pur- 

poses of determining whether an allegedly 

insane convict should be executed, as 

applied in a Governor's investigation, 

is as follows: 

"Whether the prisoner after 
conviction has the mental 

ability to comprehend: (1) 
the offenses for which he 

was tried; (2) the nature 

of and the reason for the 

punishment to be imposed 

upon him; and (3) any facts 

or circumstances whch might 

make his punishment unlawful, 

 



    

94 

and whether he has the ability 

to make these facts or circum- 

stances known either to his 

counsel or to the court.” 

Opinions of the Attorney General, 

1968, No. 68-310, p. 443. 

See also Brown v.State, 215 Ga. 

784 (1960); Solesbee v. Balkcom, 

204 Ga. 122 (1949), affirmed 

339. U.S, 9 (1949), 

  

  

There is thus no cause for complaint 

in this regard. 

Even if there had been raised any 

question concerning Petitioner's mental 

condition.at the time of imposition of 

sentence, Georgia law provides for judi- 

cial inquiry in such a case, 55 The 

trial judge may in 1lts discretion, order 

a mental or psychiatric examination. 

Due process does not require, as a 

matter of constitutional law, the type 

of inquiry suggested by Petitioner, 

nor should it. Petitioner demands judi- 

cial examination into, and determination 

of, whether he is competent to be exe- 

cuted and whether he is mentally capable 

  

55/ ‘Ga. Laws 1889, 0. 156: 1950, D. 

427, 428; Ga. Code Ann. § 24-3005; 

ADD. A.) iD.28, 

  
 



  

95 

of receiving a death sentence. Such 

considerations, even with the assistance 

of medical experts, would be impossible 

of calculation. Who could possibly fore- 

tell what effect the imposition of a 

particular sentence will have on a man's 

sanity? By what gauge could it be as- 
certained what his mental condition will 

be in the future at time of execution? 

There is, moreover, nothing in this 

case which would indicate on hindsight 

that the sentence should not have been 

imposed due to its effect on Petitioner's 

mental condition. 

Finally, there is no valid connection 

between (a) the lack of a sua sponte judi- 

cial inquiry into Petitioner's mental capa- 

city to receive sentence and (b) the con- 

stitutional prohibition against cruel and 

unusual punishment. The question, if 

there had been one in this case, would 

direct itself to the requirements of due 

process, as in Solesbee v. Balkcom, supra, 

and not to the Eighth Amendment. 

  

  

CONCLUSION 
  

It is unavoidably clear that the 

imposition and carrying out of the death 

penalty in this case does not constitute 

cruel and unusual punishment in violation 

of the Eighth and Fourteenth 

 



  

96 

Amendments, and that the judgment of the 

Supreme Court of Georgia should be: affirmed. 

Respectfully submitted, 

  

ARTHUR K. BOLTON 

Attorney General 

  

HAROLD N., HILL, JR., Executive 

Assistant Attorney General 

  

COURTNEY WILDER STANTON 

Assistant Attorney General 

  

DOROTHY T. BEASLEY 

Assistant Attorney General 

  

ANDREW J. RYAN, JR. 
District Attorney 

  

ANDREW J. RYAN, IIT 

Assistant District Attorney 

    
 



  
  

97 

I, Dorothy T. Beasley, Attorney of 
Record for the Respondent herein, and a 

member of the Bar of the Supreme Court 

of the United States, hereby certify that 
in accordance with the Rules of the Supreme 
Court of the United States, I served the 

foregoing Brief for Respondent on the Peti- 
tioner by depositing copies of the same 

in a United States mailbox, with first 

class postage prepaid, addressed to 

counsel ‘of record at their post office 

addresses: 

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 

Saxannah, Georgia 31401 

MICHAEL MELTSNER 

Columbia University Law School 

435 West l1ll6th Street 

New York, New York 10027  



  

98 

ANTHONY G. AMSTERDAM 

Stanford University Law School 

Stanford, California 94305 

ATTORNEYS FOR PETITIONERS 

Qe troy 
This [24 day of September, 1071. 

roel, Thensle, 
  

DOROTHY T. BEASLEY 

    
 



  

APPENDICES 

  
 





  

  

  

  

la 

APPENDIX A 

STATUTORY PROVISIONS AND RULES INVOLVED 

Ga. Code Ann. (1970 Cumulative 

Pocket Part) § 6-805. Preparation of 

record for appeal; reporting of evidence 

and other matter when narrative form 

used. - (f) Where any party contends 
that the transcript or record does not 

truly or fully disclose what transpired 

in the trial court and the parties are 

unable to agree thereon, the trial court 

shall set the matter down for a hearing 

with notice to both parties, and resolve 

the difference so as to make the record 

conform to the truth. If anything mat- 

erial to either party is omitted from 

the record on appeal or is misstated 

therein, the partiesiby stipulation, 

or the trial court, either before or 

after the record is transmitted to the 

appellate court, on a proper suggestion 

or of ‘its own initiative, may direct 

that the omission of misstatement shall 

be corrected, and, if necessary, that a 

supplemental record shall be certified 

and transmitted by the clerk of the trial 

court. The trial court or the appellate 

court may ‘at ‘any time order the clerk of 

the trial court to send up any original 

Papers or exhibits in the case, to be 

returned after final disposition of the 

appeal. (Acts 1965, pp. 18, 24). 

  

  

  

 



    

2a 

Ga. Code Ann. (1971 Revision) § 24- 

3005. (4872) contingent expenses of 

superior court; payment.--Any contingent 
  

  

expenses incurred in holding any session 

of the superior court, including lights, 

fuel, stationery, rent, publication of 

grand jury presentments when ordered 

published, and similar items, such as 

taking down testimony in cases of fel- 

ony, etc., shall be paid out of the 

county treasury of such county, upon 

the certificate of the judge of the 

superior court, and without further 

order, provided however that the judges 

of the superior courts in counties hav- 

ing a population of 70,000 or more 

according to the United States census 

of 1940 or any future census may within 

their discretion order a mental or 

psychiatric examination made by a 

properly qualified psychiatrist after 

a person has been convicted of a crime 

or has pleaded guilty to a crime and 

before sentence is imposed, if said 

judge believes within his discretion 

that such an examination is necessary 

to a just and proper sentence and 

that the expenses of such an examina- 

tion shall be paid out of the county 

  
 



  
  

3a 

treasury of such county upon the 

certificate of the judge of the 

superior court and without further 

order. {Acts 1889, p. 156; 1950, 

Pb. 427, 428.) 

NOTE : Chatham County, Georgia, total 

population: 188,299. . 1960 

census. of Population, vol, 1, 

Part 12, United States Depart- 

ment of Commerce, Bureau of 

Census. 

  

 



    

4a 

Criminal Code of Georgia (1970 

Revision) § 26-1901. Robbery.--A per- 

son commits robbery when, with intent 

to commit theft, he takes property of 

another from the person or the im- 

mediate presence of another (a) by use 

of force: or (b) by intimidation, by 

the use of threat or coercion, or by 

placing such person in fear of im- 

mediate serious bodily injury to him- 

self or to another: or (cc) by sudden 

snatching. A person convicted of rob~ 

bery shall be punished by imprisonment 

for not less than one nor more than 20 

vears. (Acts 1968, pp. 1249, 1298.) 

  

§ 26-1902. Armed robbery.--A 

person commits armed robbery when, 

with intent to commit theft, he takes 

property of another from the person or 

the immediate presence of another by 

use of an offensive weapon. The offense 

robbery by intimidation shall be a les- 

ser included offense in the offense of 

armed robbery. A person convicted of 

armed robbery shall be punished by 

death or imprisonment for life, or by 

imprisonment for not less than one nor 

more than 20 vears. (Acts 1968, pp. 

1249, 1298: 1969, p. 810.) 

  

  

  

 



  

5a 

Criminal Code of Georgia (1970 

Revision) § 26-3301. Definition; pun- 

ishment; continuing offense; juris- 

diction. - A person commits hijacking 

  

  

  

  

of an aircraft when he (1): by use of 

force; or (2) by intimidation, by the 

use of threats or coercion, places the 

pilot of an aircraft in fear of immediate 

serious bodily injury to himself or to 

another, causes the diverting of an 

aircraft from its intended destination 

to a destination dictated by such person. 

A person convicted of hijacking an air- 

craft shall be punished by death or life 

imprisonment. The offense of hijacking 

is declared to be a continuing offense 

from the point of beginning and juris- 

diction to try a person accused of the 

offense of hijacking shall be in any 

county of Georgia over which the air- 

craft is being operated. (Acts 1969, 

Db. 741, 742) 

 



    

6a 

Ga. Code Ann. (1970 Cumulative 

Pocket Part), SS 27-405 (935 P.C.) 

Evidence; statement or testimony of 

defendant. - The court shall hear all 
  

  

legal evidence submitted by either 

party, and shall always permit the 
defendant to make his own statement of 

the transaction (not under oath) if he 

desires to do so. The weight to be given 

to such statement shall be entirely 

in the discretion and sound judgment 

of the court. Whenever such statement 

is made, it shall be the duty of the 

court to reduce it to writing, and re- 

turn it with the other papers to the 

proper court in the event of a commit- 

ment. In the alternative, however, 

if the prisoner wishes to testify and 

announces in open court before any court 

Of inquiry his intention to do so, he 

may so testify in his own behalf. If 

he so elects, he shall be sworn as any 

other witness and may be examined and 

cross-examined as any as any other wit- 

ness, except that no evidence of general 

bad character or prior convictions shall 

be admissible unless and until the de- 

fendant shall have first put his char- 

acter in issue. The failure of a defen- 

dant to testify shall create no presump- 

tion against him, and no comment shall be 

made because of such failure. (Acts 1962, 

PP. 453, 454.)   
  
 



  

    

7a 

Ga. Code (1933) (1953 Revision, 

Ga. Coe Ann.) $27-1502. (976 Pp. 

C.) Plea of insanity, how tried.-- 
Whenever the plea of insanity is filed, 

it shall be the duty of the court to 

cause the issue on that plea toc be 

first tried by a special jury, and 

if found to be true, the court shall 

order the defendant to be delivered 

to the superintendent of the Milledge- 

ville State Hospital, there to remain 

until discharged in the manner prescribed 

by law. 

  

 



    

| 

| 

| 

8a 

Georgia Code Annotated (1953 

Revision) § 27-2514. Sentence of death; 

copy for penitentiary superintendent. 

Time and mode of conveying prisoner to 

penitentiary. Expenses,--Upon the con- 

viction of any person of a crime the pun- 
ishment of which is death, it shall be 

the duty of the presiding judge to sen- 

tence such convicted person to death 

according to the provisions of this law, 

and to make such sentence in writing, 

which shall be filed with the papers in | 

the case against such convicted person, | 
and a certified copy thereof shall be 

sent by the clerk ofthe court in which 

said sentence is pronounced to the super- 

intendent of the State penitentiary, not 

less than 10 days prior to the time fixed 

in the sentence of the court for the exe- 

cution of the same; and in all cases it 

shall be the duty of the sheriff of the 

county in which such convicted person is 

so sentenced, together with one deputy 

or more, if in his judgment it is neces- 

sary, and provided that in all cases the | 

number of guards shall be approved by the | 

trial judge, or if he is not available, 

by the ordinary of said county in which 

such prisoner is sentenced, to convey 

such convicted person to said peniten- 

tiary, not more than 20 days nor less 

than two days prior to the time fixed in 

the judgment for the execution of such 

condemned person, unless otherwise di- 

rected by the Governor, or unless a stay 

  

  

  

  

  

  

 



  

9a 

of execution has been caused by appeal, 

granting of a new trial, or otheyx ordex 

of a court of competent jurisdiction, 

and the expense for transporting of said 

| person to the penitentiary for the pur- 
| pose of electrocution shall be paid by 

| the ordinary of the county wherein the 

| conviction was had, or the board of com- 

| missioners of roads and revenues, the 

county commissioner, or other person or 

persons having charge of the county funds, 

out of any funds on hand in the treasury 

of such county. | (Acts 1924, p. 195.) 

 



    

10a 

Georgia Code Annotated (1970 

Cumulative Pocket Part) § 27-2515. 

Execution by warden and assistants; 
witnesses .--There shall be present at 

such execution the warden of the peni- 

tentiary, or a deputy warden thereof, 

who shall serve as executioner, at 

least two assistants, two physicians 

to determine when death supervenes, an 

electrician, a suitable guard, and, if 

the condemned person so desires, his 

counsel, relatives and such clergymen 

and friends as he may desire. (Acts 

1824,. p...196: 1956, . pb. 161, 182.) 

  

  

Ga. Code Ann. (1953 Revision) 

8 .27-2603, (1075 P.C.) Insane convict 
committed to the Milledgeville State 

Hospital. - When any person shall, after 
conviction of a capital crime, become in- 

sane, and shall be so declared in accord- 

ance with the provisions of the preceding 

section, the convict shall be received 

into Milledgeville State Hospital, there 

to be safely kept and treated as other 

adjudged insane persons. All the provi- 

sions of the law relating to insane persons 

under sentence of imprisonment in the 

penitentiary shall apply to the class of 

cases herein provided for, so far as 

applicable. {Acts 1874, vp. 30). 

  

  

  

 



  

lla 

Ga. Code Ann. (1970 Cumulative 

Pocket Part). § 77-113. Disposition 

of tubercular prisoners.--When any 

person confined in the common jail 

awaiting trial for any offense against 

the penal laws of this State, or there 

confined after conviction for any 

such offense, or serving any jail 

sentence imposed upon him by authority, 

or there committed for any civil or 

criminal contempt, or serving any mis- 

demeanor sentence under county juris- 

diction in a public works camp or other 

institution for maintenance of county 

prisoners, shall be afflicted with 

tuberculosis, the judge of the superior 

court may order his delivery by the 

sheriff to the superintendent of the 

Battey State Hospital or such other 

institution as may be approved and 

supported by the State Board of Health 

for the care of tubercular patients, 

and thereupon he shall be so delivered 

and received, and he shall be there 

securely confined, kept and cared for. 

  

  

The period of time such person is 

thus kept and confined in such hospital 

or institution shall be credited upon 

any jail sentence being served by him 

in the same manner as though he had 

remained in such jail. Any such person 

committed for any civil or criminal 

contempt while in such hospital or 

other institution shall remain for all  



  

12a 

purposes under the orders, juris- 

diction and authority of the court 

committing him for contempt in the 

same manner as though he had remained 

in such common jail. (Acts 1980, Db. 

769; 1964, Db. 365.) 

   



  

13a 

Georgia Code Annotated (1970 

cumulative Pocket Part) § 77-309(c) (4d) 

* % %x % (c) Immediately upon the 

imposition of such a sentence as pro- 

vided in paragraph (b) of this section 

and after all appeals or other motions 

have been disposed of so that said con- 

viction has become final, the clerk of 

the court shall immediately notify the 

Director of Corrections of the sentence, 

and shall forthwith dispatch therewith, 

by mail, a complete history of such 

person upon forms provided by the Di- 

rector. 

kk %* 

(d) within a reasonable time 

thereafter, the Director of Corrections 

shall assign such prisoner to a correc- 

tional institution designated by him in 

accordance with subsection (b) of this 

section. It shall be the financial re- 

sponsibility ofsuch correctional insti- 

tution to:provide for the picking up and 

transportation, under guard, of such 

prisoner to his assigned place of deten- 

tion.ee oo 

(Acts 1956, pp. 161, 171; 1964, pp. 489, 
490; 1968, p. 1399; 1969, p. 602.) 

 



  

14a 

Ga. Code Ann. (1964 Revision) 

§ 77-310. Classification and segre- 

gation of prisoners' establishment of 
separate camps; removal of women 

prisoners; transfer of mentally 

diseased and tubercular prisoners. 

  

  

  

  

  

* %* * 

(d) The State Board of Corrections 

is authorized to transfer mentally 

diseased inmates from the Georgia State 

Prison or other institutions operating 

under its authority to the criminal ward 

or Facility of the State Hospital! for 

insane at Milledgeville, Georgia. Such 

prisoner shall remain at said hospital 

until the superintendent of said hospital 

  

declares that his sanity has been restored 

at which time the said prisoner shall 

be returned to the custody of the State 

Board of Corrections. At any time after 

completion of his sentence a prisoner 

detained at Milledgeville State Hospital 

on the ground that he is mentally 

diseased may petition for a trial of 

the question of his lunacy in accord- 

ance with the procedure provided in 

sections 35-236 and 35-237. Prior to 

completion of his sentence this proce- 

dure shall not be available to him. 

 



  

15a 

Provided, however, that upon being 

presented with a proper certification 

from the county physician of a county 

where a person is sentenced to prison, 

that such person so sentenced is a 

dope addict or alcoholic to the extent 

that his health will be impaired or 

his life endangered without immediate 

treatment, the Board of Corrections 

is hereby directed to transfer such 

prisoner to the criminal ward or 

facility of the State Hospital at 

Milledgeville. Said prisoner shall 

remain there until the hospital 

authorities determine he is able to 

serve his sentence elsewhere. 

 



    

16a 

Official Compilation, Rules and 

Regulations of the State of Georgia, 

Volume IT, Rules of the State Board of 

Corrections § 125-1-2.05 News Media 

Policy. Amended. Members of the news 
  

  

media possessing press passes issued by 

the Board of Corrections may visit. all 

institutions, without prior appointment, 

at any hour of the normal business day 

and they shall be allowed to visit any 

part of the institution that they desire. 

Such news media personnel shall be accom- 

panied, for safety reasons, by a person 

so designated by the warden. Inmates 

shall not be interviewed without the per- 

mission of the Board of Corrections and 

no article or program of a derogatory 

nature shall be published without first 

giving the Director an opportunity to 

offer a; rebuttal... Authority Ga. Cconsti- 

tution 1945, "Art. V., Sec. V.,, Par..l 

(Ga. Code Ann., Sec, 2-3401); Ga. L. 

1956, pp. 161, 170 (Ga. Code Ann.,: 77-307 

Effective May 4, 1971. Administrative 

History. Original Rule filed and effec- 

tive on December 31, 1969. Amended: 

Filed April 14, 1971; effective May 4, 

1971. 

 



  

1b 

APPENDIX B 

CRIMES UNDER THE CRIMINAL CODE OF GEORGIA 

PUNISHABLE BY DEATH 

Criminal Code of Georgia, 

Sec. 
26-1101 Murder 

26-1311 Kidnapping 

26-1902 Armed Robbery 

26-2001 Rape 

26-2201 Treason 

26-2401 Perjury 

26-3301 Aircraft Hijacking 

 



  
 



lc 

APPENDIX C 

  

PERSONS CURRENTLY UNDER DEATH PENALTY IN GEORGIA 

SEPT, 20, 1971 

(Information appears in court records 
and Department of Corrections files.) 

STATUS OF CASE 

  

  

  

  

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT ASSERTED GROUNDS 

: and DATE DATE or VicTiM LOCATION 

SEX JURY 

Arkwright, |NM 136 [7/16/67 7/18/67 | Jury |Screven | Rape WF, unknown to D, |Central Petition for Misapplication of Witherspoon; 
willie robbed, beaten, state writ of cert standardless jury; cruel and 

choked, raped 3 Hospital pending in US unusual; challenge to array; more 

times by D and (for Sup Ct attorney's expenses needed; challenge 

accomplice exam) to Ga. change of venue procedure 

Cummings, (NM |19 |4/7/69 4/7/69 [Jury |Pulton |Murder Innocent M by- Fulton Petition for Unitary trial; denial of D's dis- 
George stander shot County writ of cert covery motion; denial of D's motion 

while D under Jail pending in US to cross-examine prospective jurors 

influence of Red Sup Ct concerning death penalty 

Devil re 

Furman, NM |28 |9/20/68 | 9/20/68 |Jury |chatham |Murder WM shot when he |central | Set for argu- |Cruel and unusual, insanity at 
william surprised D bur- |State ment before US |time of sentencing 

Henry glarizing his Hospital| Sup Ct 

home at 2 am                     
    
Abbreviations used: 

N - Negro 

W - White 

M - Male 

F - Female 

D - Defendant 

  

 



2C 

  

  

  

  

                    

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS 

and DATE DATE or VICTIM LOCATION 

SEX _JURY 

Grantling, (NM [22 3/24/70 3/25/70 [Jury | Upson Rape 18 vr old WF Upson Motion for new | General grounds * 
Charles raped and se- county |trial pending in 
F. verely beaten Jail Upson County 

by D and sccom- 

plice knife and 
gun 

Hart, NM (19 Jury | Fulton [Armed NM permanently Fulton |Affirmed-Ga. 

Robert Robbery paralyzed by D's (County [sup Ct 

gunshot during Jail A/7/71 

armed robbery 

Henderson, |NM | 34 12/10/70 | 12/12/70 |Jury | DeKalb |Kidnapping | WF kidnapped by |Georgia |petition for Standardless jury; unitary trial; 

Tommy and Murder | D and accomplice |State writ of cert application of Sims v. Georgia; 
lee and NM (age 27) |Prison |pending in US exclusion of scrupled juror; 

accomplice of D Sup ct cruel and unusual 

Jackson, NM | 24 12/10/68 | 12/10/68 Jury | Chatham |Rape WF raped while D | Georgia |set for argu- Cruel and unusual; standardless 

Lucious threatened her State ment in US jury; unitary trial; misapplica- 

life with pair of Prison [sup Ct tion of Witherspoon 
scissors at her 
throat. Attempted 

Pe ab A Ee Lo as robbery also 

Jackeon, |NM i325 [6/71 6/71 Jury | Coweta |Murder NM (12 yrs) also |Coweta |Motion for new |General grounds 
D.W. shot the boy's County [trial pending 

mother and raped | Jail in Coweta Co 

14 yr old sister       
  

  
for new trial are: * In Georgia, the general grounds of a motion 

verdict contrary to evidence; 

verdict contrary to the weight of 

verdict contrary to law. 

1) 
2) 
3) 

the evidence: 

 



3c 

  

  

  

  

  

  

  

    

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS 

and DATE DATE or VICTIM LOCATION 

SEX JURY 

Johnson, NM 24 9/13/69 9/13/69 |Jury |Fulton Murder WM (80 yrs old) Fulton on appeal to 5th|Cruel and unusual; disqualification of 

Edward shot during armed County Cir from denial [jurors - opinion on death penalty 

Yobbery, D on Jail of habeas corpus 
drugs 

Johnson, NM 32 5/6/69 5/7/69 Jury |Worth Murder WM policeman shot |Georgia Hearing on peti- |No proof of waiver; no commitment hearing; chal- 

Johnny with shotgun dur- state tion for habeas |lenge to array; inadequate counsel; improper in- 
B. ing official in- |Prison corpus set 10/4/ |structions; standardless jury; cruel and unusual; 

| ; he . vestigation 71-Tattnall Co quilty plea-waiver of jury trial; exclusion of scrupled jurors 

King, NM 20 6/23/71 6/23/71 [Jury {Falton Murder and | WM security guard|Fulton |[y.iion for new General grounds : 
Otis armed rob- | shot during armed|County trial pending in 

San ama bery robbery Jail Fulton County — 
Lee, NM 26 12/4/68 1/3/69 Jury |Rich- Murder WM medical stu- Georgia lp. ition Zor standardless jury; unitary trial; cruel and 

James mond dent surprised D |State writ of cert unusual; denial of effective counsel 
c, in act of bur~ Prison pending in US 

J glary Sup Ck 
Lingo, NM 24 2/1/68 5/28/68 lJjury [Lowndes | Murcer WM shot during Georgia [pyecution stay- 

Joe armed robbery of [State ed by Governor 

service station Prison 10/14/70 

at which he 

1 : - worked 

Manor, NM 41 9/28/68 9/28/68 |Jury |Chatham | Murder WF (age 62) had Georgia petition for lcruel and unusual; standardless jury; involuntary 

Robert employed D. Died |State writ cert confession 
] LE a during rape by D [Prison JS Sup Ct 

Massey, WM 28 9/21/65 7/22/65 Jury |Turner Rape WF (age 28) beat-|Georgia petition for lchange of venue; standardless jury : 

Dewayne en and raped in State writ cert 

front of her 4 yr [Prison US Sup Ct 
old child                             

  

 



ERRATUM 

Name Race and Sex 
  

Pass, Dean E. Should be "NM" 

noc: YM". 

Furman v. Georgia 

1971 Term, No. 69-5003 

Brief for Respondent 

  

Insert between pages 

3C and 4C of Appendix C  



4c 

    

  

  

  
  

  

  

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS and DATE DATE or VICTIM LOCATION 
SEX JURY 

McCrary, NM (18 | 4/2/70 4/2/70 | Jury| Upson Rape WF (age 18) beat-|Upson Motion for new |General grounds 
Prentice en and raped, County trial pending in 

threatened with [Jail Upson County 
: knife and gun | 

Miller, NM 41 2/22/67 2/22/67] Jury; Jones Rape WF raped at knife|Georgia petition for Jury selection; right to counsel at preliminary 
William point in front of|State writi cert in hearing; competence to stand trial; standardless 
Jack | aged mother Prison US BSup Ct jury: cruel and unusual 

Mitchell, [NM 24 5/19/69 5/19/69 Jury| DeKalb Rape WP raped by four |Georgia Petition for Equal protection-death penalty given mostly to in- 
John NMs at gunpoint; |State habeas corpus digents, blacks; no counsel at line-up or setting new 
Henry had delivered Prison pending in date. Cruel and unusual; standardless jury; challenge 

child only 3 wks Tattnall Co £0 array; unitary trial struck by judge 

earlier : 
Mobley, Mm (28 | 5/12/65 | 6/4/65 | Jury) Burke Murder M, local grocer |Georgia |Awaiting new exe- 

Charlie shot during armed|State cution date; H-C 
2 n ye en : ai  yODbery Prison denied by 5th Cir 
Moore, NM 39 4/14/66 4/16/71] Jury| camden Murder M shot during Georgia Motion for new General grounds 

Robert armed robbery State trial pending in 
P. i Brann Camden County 

Park, | WM 82 1/68 1/68 Jury | Jackson | Murder WM, solicitor Georgia Petition fox Confession of co-conspirators; right of con- 
A.C. general of Gtntc writ of cert frontation 

county killed by |prison pending in 
dynamite attached Us sup Ct 
to car 

Pass, YM 4/3/70 4/3/70 Jury | pDexaldb Murder WM & WF killed DeKalb Bxecution stay- | (Enum, of Errors in @ga.sSup.Ct.) Refusal of court to 
Dean E. [VN when they sur- County ed pending £il- |accept guilty plea; objection to evidence; disquali- 

prised D in act 3aiy ing of petition |fication of jurors who would never impose death 

of burglary for writ of penalty; sheriff mentioned case to panel; coerced con- 
cert US Sup Ct fession; no charge on insanity; improper instruction                         

  

  

 



5¢C 

  

  

  

  

  

  

  

  

  

    

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS 
and DATE DATE or VICTIM LOCATION 

SEX JURY 

Roach, WM 7/18/65 1/20/65 | Jury | Whit— Rape WF (age 25) Georgia No action pend- 

Freddie field beaten, choked, State ing; awaiting 

raped, threaten- | Prison new execution 

ed with knife date 

Sheats, NM 11/2/70 11/2/70 { Jury Clarke Murder M shot during Clarke Mot for new trial [General grounds a 

La- | armed robbery County pending in 

fayette Jail Clarke Co 

Smith, WM | 25 7/10/70 7/10/70 | Jury |Spalding|Murder M, killed during | Spalding [Mot for new trial |General grounds 

Ronald armed robbery county pending in 
Lee Jail Spalding Co 

Suggs, aes g Petition for Equal protection-dealth penalty mostly for 

Steve B., WM {25 | 10/1/68 }10/1/68 |Jury |Screven |Murder WF (about agel8) | Georgia habeas corpus indigents with appointed counsel; challenge 
killed after State pending in to array; standardless jury; unitary trial; 

meeting D at Prison rattnall Co cruel and unusual 

dance, body hor- 

Seidel Tad 0 Ie IY ribly mutilated ; 

Sullivan, | NM |35 3/15/67 9/25/68 |Jury |Lamar Murder M, shot with Georgia Petition for Challenge to array; need for psychiatric exam; 

Julious shotgun State writ cert in denial of "speedy trial" because State "knowing- 

Prison US Sup Ct ly" used illegal jury lists 

Thacker, | NM [24 | 12/13/65 |12/13/65|Jury |Chatham |Murder WM policeman Georgia Petition for Standardless jury; unitary trial, cruel and 

James C. shot with own State writ cert in unusual; exclusion of those completely opposed 

gun by D who Prison US Sup Ct to death penalty; challenge to array; search 

attempted to and seizure 

escape 

walker, NM 25 4/17/69 4/17/69 |Jury |DeKalb Rape WF raped by four |Georgia Petition for Misapplication of Witherspoon; conviction con- 

James H. NMs at gunpoint, [State writ icert in trary to evidence; no counsel at line-up; cruel 

had delivered Prison US Sup CL and unusual 

child 4 wks 

earlier                         
  

  

 



6c 

  

  

  

  

  

NAME RACE AGE CONVIC, SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS 

and DATE DATE or VICTIM LOCATION 

SEX JURY 

Ward, NM [29 7/21/89 7/25/69 | Jury | Pulaski | Murder WM (70 yrs old), | Georgia Petition for Equal protection-death penalty imposed mostly 
Ray local grocer shot| State writ of habeas on indigents; cruel and unusual; standardless 

during apparent Prison corpus pending jury; unitary trial; removal of Negroes from 

So Y armed robbery in Pattnall Co jury 
williams, | WM 37 10/7/65 10/7/65 | Jury | Gwinett | Murder 3 WM policemen Georgia petition for Due process-does in camera hearing on D's 

venson investigating State writ of cert request for discovery violate? 

Te. auto theft. Shot | Prison pending in US 

with own guns by Sup Ct 

D & accomplice 

Williams, | NM 27 7/18/67 7/18/67 | Jury | Screven | Rape WF choked and Screven Petition for Equal protection-death penalty imposed mostly 

Johnny raped by D three | County writ of cert on Negroes; standardless jury; cruel and un- 

B. times. Also Jail pending in US usual; burden of proving alibi on D 

. jo ete robbed Sup Ct 
Ramsey, NM 9/15/55 9/15/55 | Jury | Elbert Robbery by |No information South 

Ed force Carolina 

State 
Prison 

(life 

sentence)                           
  

Four men, one woman under death sentence were declared insane by Governor's Insanity Commission. 

 



7¢C 

RECAPITULATION OF INFORMATION ON PERSONS 

CURRENTLY UNDER DEATH PENALTY IN GEORGIA 

I Description of crime for which death 

penalty imposed: 

A Murder: 

During armed robbery or 

burglary 10 

Killing of police or se- 
curity. guard 4 

Apparent sexual motives 2 

Killing of public : 
official (premeditated) 1 

Domestic quarrel (12 yr 

old boy killed) 1 

Killing of accomplice 

during kidnapping 1 

Senseless slayings (no 

apparent motive a2 

Total 21 

B Armed Robbery: 

D shot victim who was per- 
manently paralyzed 

Facts unknown 

N
=
 

Total 

 



  

8c 

C ‘Rape 

Beatings 5 

In front of sensitive 

witness 2 

During robbery (or 

attempted robbery) 3 

Raped more than once or 

more than one man 4 

Life threatened and en- 

dangered all 

Gun 4 

(includes 2 co-D's for 

same crime) 

Knife 4 

Scissors i 

Choking 3 

More than one man 4 

Total 10 

(Adds up to more than total- 

some crimes involve several 

elements.) 

TOTAL 33 

   



9c 

II Race of defendants: 

A Murder: 

Negro defendants 16 

Known N victims 1 

Known W victims 9 

White defendants 4 

Known W victims 4 

B Armed Robbery: 

Negro defendants 2 

Known Negro victims 1 

C Rape: 

Negro defendants 8 

white defendants 2 

All victims white 

III Sentended: 

31) by Jury 

Iv Present location: 

Georgia State Prison 1° 

County Jails 11 

Central State Hospital Zz 

(temporary) 

Out-of-State i 

 



  

VI 

10c 

Current Status 

Motion for new trial 

State habeas corpus 

Federal habeas corpus 

Petition for certiorari in 

United States Supreme Court 

Set for argument in United 

States Supreme Court 

Awaiting new execution date 

Execution stayed 

Out-of-State 

Length of time since con- 

viction: 

16 years 

{in South Carolina 

State Prison) 

years 

years 

years 

years 

years 

year 

this year 

N
D
 
W
D
 
o
o
 

7 

“ 

1 

13 

H
N
 
W
N
 

N
N
O
 

E
E
O