Boykins v. Fairfield Board of Education Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

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January 1, 1974

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Boykins v. Fairfield Board of Education Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit preview

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Brief Collection, LDF Court Filings. Boykin v. Alabama Brief for the NAACP Legal Defense, and Educational Fund and the National Office for the Rights of the Indigent, as Amicus Curiae, 1968. 96d59290-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/974d70f3-6701-48b9-af71-58cd790f21ab/boykin-v-alabama-brief-for-the-naacp-legal-defense-and-educational-fund-and-the-national-office-for-the-rights-of-the-indigent-as-amicus-curiae. Accessed July 19, 2025.

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I s r t h e

(Emtrt of % lotto?* Status
October Term, 1968

No. 642

E dward B oykin, J r.,

S tate of A labama,

Petitioner,

Respondent.

ON W RIT OF CERTIORARI TO T H E SU PREM E COURT OF ALABAMA

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., AND THE NATIONAL
OFFICE FOR THE RIGHTS OF THE INDIGENT, AS

AMICI CURIAE

J ack Greenberg
J ames M. N abrit, III
Michael Meltsner
Melvyn Zarr
J ack H immelstein

10 Columbus Circle
New York, New York 10019

A nthony’ G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104

Attorneys for the N.A.A.C.P.
Legal Defense and Educational-
Fund, Inc., and National Office
for the Rights of the Indigent

INDEX

PAGE

Interest of the Amici Curiae....................................... 1

Opinions Below ........................................................... 10

Jurisdiction ........................ —....-......-........................ 10

Questions Presented ........................................- ........ U

Constitutional and Statutory Provisions Involved .... 11

Statement ..................— ........ -................................- 12

A k g u m en t—

I. The Supreme Court of Alabama Erred in
Affirming Boykin’s Convictions of Five Capi
tal Offenses and Five Death Sentences Upon a
Guilty Plea, Where the Record Does Not Show
That the Trial Court Made Constitutionally
Requisite Inquiry to Assure That the Plea
Was Voluntary and Understanding .............. 16

II. Boykin’s Death Sentence Offends the Eighth
Amendment........ .............................................. 24

III. The Alabama Procedure Under Which Boykin
Was Sentenced to Die in the Unregulated,
Lawless Discretion of the Jury Violates the
Rule of Law Basic to Due Process................. 62

IV. Issues Not Presented ..................................... 69

Conclusion 74

PAGE

Appendix A:—

Provisions of the Criminal Statutes of the Fifty
American States Providing for the Punishment
of Death ............... .............. ..............................

Appendix B:—

Opinions of the Supreme Court of California,
in In Re Anderson and Saterfield ..................... lb

Table op Cases

page

Adderly v. Wainwright, M.D. Fla., No. 67-298-Civ-J 7, 9
Alabama v. Boykin, 281 Ala. 659, 207 So.2d 412...... 10

Brookhart v. Janis, 384 U.S. 1 (1966) ................. . 17
Burgett v. Texas, 389 U.S. 109 (1967) ..................... 18

Carnley v. Cochran, 369 U.S. 506 (1962) ..............18,19,22
Chambers v. Florida, 309 U.S. 227 (1940) ....... .......... 17
Cline v. Frink Dairy Co., 247 U.S. 445 (1927) .......... 63
Cole v. Arkansas, 333 U.S. 196 (1948) ..................... 18
Connally v. General Construction Co., 269 U.S 385

(1926) ......... .......................................................... 63

Cox v. Louisiana, 379 U.S. 536 (1965) ..................... 63

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............. 63

Ill

PAGE

Domenica v. United States, 292 F.2d 483 (1st Cir.
1961) ................................. ..................................... 23

Doughty v. Maxwell, 376 U.S. 202 (1964) .............. 18
Douglas v. Alabama, 380 U.S. 415 (1965) .............. 18
Dukes v. State, 248 S.C. 227,149 S.E.2d 598 (1966) .... 59

Foreella and Funicello v. New Jersey, O.T. 1968, No.
947 Misc................................................................ 6, 8, 9, 71

Freedman v. Maryland, 380 U.S. 51 (1965) .............. 63

Garner v. Louisiana, 368 U.S. 157 (1961) ................. 20
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) .......... 65, 66
Glasser v. United States, 315 U.S. 60 (1942) .......... 19

Hague v. C.I.O., 307 U.S. 496 (1939) ........................ 67
Hamilton v. Alabama, 368 U.S. 52 (1961) .............. 20
Herndon v. Lowry, 301 U.S. 242 (1937) ................. 63
Higgs v. State, 113 Ala. 36, 21 So. 353 (1897) .......... 12
Hill v. Nelson, N.D. Cal., No. 47318 ........................ 9

In re Anderson and Saterfield, Cal. S.C. Crim. Nos.
11572, 11573, decided November 18, 1968 .............. 8, 9

In re Gault, 387 U.S. 1 (1967) ................................ 22
In re Kemmler, 136 U.S. 436 (1890) ........................ 42

Johnson v. Virginia, O.T. 1968, No. 307 Misc......... 6,9,73
Johnson v, Ze'rbst, 304 U.S. 458 (1938) ...... ............. . 19

PAGE

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947) ........... ............. ...,....... -.... ...............-.... 42

Louisiana v. United States, 380 U.S. 145 (1965) ......... 63, 67

Machibroda v. United States, 368 U.S. 487 (1962) .... 18
Mathis v. New Jersey, O.T. 1968, No. 683 Misc.........6, 9, 73
Maxwell v. Bishop, 398 F.2d 138 (1968) ................. 53
Maxwell v. Bishop, O.T. 1968, No. 622 .......6, 7, 9, 53, 72, 73
McCants v. Alabama, O.T. 1968, No. 937 Misc............ 6, 9
McConnell v. Rhay and Stiltner v. Rhay, 37 U.S.L.

Week 3131 (U.S., Oct. 14, 1968) ........................ 64
McElvaine v. Brush, 142 U.S. 155 (1891) ................. 42
Mempa v. Rhay, 389 U.S. 128 (1967) ..................... 18, 64
Miranda v. Arizona, 384 U.S. 436 (1966) .............. 18
Morris v. State, 97 Ala. 82, 12 So. 276 (1893) .......... 12
Morrissette v. United States, 342 U.S. 246 (1952) .... 56

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .............. 63
Niemotko v. Maryland, 340 U.S. 268 (1951) .............. 67

O’Connor v. Ohio, 385 U.S. 92 (1966) ..................... 18

Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116
( 1956) ..................................... ................ ........................ -■................ 18

People v. Love, 53 Cal. 2d 843, 350 P. 2d 705 (1960) .. 56, 67
People v. Oliver, 1 N. Y. 2d 152, 151 N.Y.S. 2d 367,

373, 134 N.E. 2d 197, (1956) ............................ ....... 56

PAGE

Pittman v. State, ---- - Tex.Crim.App. ----- , -----
S.W. 2d — (1968) .............. ................... 3

Powell v. Alabama, 28 U.S. 45 (1932) ......... ............... 20

Reed v. United States, 291 F.2d 856 (4th Cir. 1961) 23
Robinson v. California, 370 U.S. 660 (1962) .............. 24, 36

Shelton v. United States, 356 U.S. 26 (1958) ............ 18
Skinner v. Oklahoma, 316 U.S. 535 (1942) .............. 66, 68
Smith v. Cahoon, 283 U.S. 552 (1931) ..................... 63
Speeht v. Patterson, 386 U.S. 605 (1967) ................. 20, 64
Spencer v. Texas, 385 U.S. 554 (1967) ..................... 36
State v. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968) .... 3
State v. Stewart, 255 N.C. 571, 121 S.E. 2d 355 (1961) 59
Stein v. New York, 346 U.S. 156 (1952) ................... 20
Swenson v. Bosler, 386 U.S. 258 (1967) .............18

Tigner v. Texas, 310 U.S. 141, 148-149 (1940) .......... 66
Trop v. Dnlles, 356 U.S. 86 (1958) .....24, 27, 32, 36, 41, 46, 55
Tunstill v. State, 33 Ala. App. 460, 34 So. 2d 857

(1948) ................................................................... - 12

United States v. Jackson, 390 U.S. 570 (1968) .......... 18, 20
United States v. National Dairy Prods. Corp., 372

U.S. 29 (1963) ............................ .... . 65

Von Moltke v. Gillies, 332 U.S. 708 (1948) .................. 19

Waley v. Johnston, 316 U.S. 101 (1942) ..................... 18

V I

PAGE

Weems v. United States, 217 U.S. 349 (1910) .......... 36, 42
Westbrook v. Arizona, 384 U.S. 150 (1966) .............. 19
Wilkerson v. Utah, 99 U.S. 130 (1878) ..................... 41
Williams v. Georgia, 349 U.S. 375 (1955) ............... . 21
Williams v. New York, 337 U.S. 241, 248 (1949) ...... 56
Winters v. New York, 333 U.S. 507 (1948) ......... 63
Witherspoon v. Illinois, 391 U.S. 510 (1968) ..........3, 5, 8, 9,

46, 64, 66

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .......... ....... 67, 72

S tate S tatutes

Ala. Code, tit. 14, §415 (1959) ........ ................11,12, 37, 58
Alaska Stat.. §11.15.240 (1962) .......................■........ 59
Ariz. Rev. Stat. Ann. §13-643 (Snpp. 1967) ........... . 59
Ark. Stat. Ann. §41-3602 (1964) ............................ 59

Cal. Pen. Code §§21a, 213 (West 1955) ..................... 59
C. Z. Code Tit. 6, §2361 (1963) ..... ,1......................... 59
Colo. Rev. Stat. Ann. §40-5-1 (Snpp. 1967) .......... 59-60
Conn. Gen. Stat. Ann. §53-67 (1960) ......................... 59

Del. Code Ann. tit. 11, §811 (1953) ........................ 59
D. C. Code Ann. §22-2901 (1967) ......................... 59

Fla, Stat. §813.011 (1965) .................. ........................ 59

Vll

PAGE

Ga. Code Ann. §26-1901 (1968) ................................ 59
Ga. Code Ann.. §26-2502 (Supp. 1967) ............... 58-59

Hawaii Eev. Laws §§306-8-11 (1955) ..................... 59-60

Idaho Code Ann. §18-6503 (1949) ....... .................... 59
111. Ann. Stat. Ch. 38 §§18-1, 2 (Smith-Hurd 1964) .... 59, 60
Ind. Ann. Stat. §10-4101 (1956) ................................ 59-60
Iowa Code Ann. §711.2, 3 (1950) ............................ 59, 60

Kan. Gen. Stat. Ann. §§21-527, 528, 529 (1964) ............ 59, 60
Ky. Eev. Stat. §433.120 (1962) .................. ......... . 59
Ky. Eev. Stat. Ann. §§433.140, 150 (Supp. 1966) ...... 58,59

La. Eev. Stat. tit. 14 §64 (Supp. 1967) ...................... 60
La. Eev. Stat. tit. 14 §65 (1951) ............. 59

Me. Eev. Stat. Ann. tit. 17, §3401 (1964) ................. 59
Md. Ann. Code art. 27 §§486, 488 (1957) ................... 59, 60
Mass. Gen. Laws Ann. ch. 265 §19 (1959) ............. 60
Mich. Comp. Laws Ann. §750.529 (1968) ................. 59-60
Minn. Stat. Ann. §609.24 (1964) ............................... 59, 60
Miss. Code Ann. §§2364, 2367 (1957) ...................... 59
Mo. Ann. Stat. §§560.120, 135 (1953) ........................ 58,60
Mont. Eev. Code Ann. §94-4303 (1949) ............ 60

Neb. Eev. Stat. §28-414 (1943) .......................MAI., 59
Nev. Eev. Stat. §§200.363, 380 (1967) 68

Vlll

PAGE

Nev. Rev. Stat. §200.380 (1967) ................................ 59
N. H. Rev. Stat. Ann. §585:18 (1955) ........................ 59
N. J. Rev. Stat. §2A:141-1 (1937) ............................ 59
N. M. Gen. Stat. §§40A-16-2....................................... 59
N. M. Gen. Stat. §40A-29-3 ...................................... 60
N.Y. Pen. Law §§160.05, 15 (1967) ........ ................... 59, 60
N. Y. Pen. Law §70.00 (1967) ................................... 59, 60
N.C. Gen. Stat. §14-2 (1953) ..................................... 59
N.C. Gen. Stat. §14-87 (1953) ................................... 60
N. D. Cent. Code §§12-31-07-09 (1960) ..................... 60

Ohio Rev. Code Ann. §2901.12 (Page 1954) .............. 59
Okla. Stat. Ann. tit. 21, §§797, 799 (1958) ................. 59
Okla. Stat. Ann. tit. 21, §801 (1958) ......................... 58
Ore. Rev. Stat. §163.280 (1967) ................................ 60
Ore. Rev. Stat. §163.290 (1967) ................................ 59

Pa. Stat. Ann. tit. 18, §4704 (1963) .......................... 59
Pa. Stat. Ann. tit. 18, §4705 (1963) ........................ 60
P.R. Laws Ann. tit. 33, §§851, 853 (1956) ................. 59

R. I. Gen. Laws Ann. §11-39-1 (1956) ........................ 60

S. C. Code Ann. §§16-11 (1962)................................... 59
S. C. Code Ann. §16-333 (Supp. 1967) ....................... 60
S. C. Code Ann. §17-552 (1962) ................................. 59

PAGE

S. D. Code §§13.2601-03 (1939)................................... 59

Tenn. Code Aim. 39-3901 (Supp. 1968) ..................... 58, 59
Tex. Pen. Code art. 1408 (1948) ................................ 58, 60

Utah Code Ann. §§76-51-1-2 (1953) ........................ 60

Ya. Code Ann. §18.1-90 (1960) .................................... 58
Ya. Code Ann. §18.1-91 (1960) ................................... 58, 59
Yt. Stat. Ann. tit. 13, §603 (1958) ............................ 59, 60

Wash. Eev. Code Ann. §9.75.010 (1961) ................... 60
W. Ya. Code Ann. §61-2-12 (1966) ............................ 59, 60
Wis. Stat. Ann. §943.32 (1958) ................................. 59, 60
Wyo. Stat. Ann. §6-65 (1959) ................................... 59
Wyo. Stat. Ann. §6-66 (1959) ................................... 60

F ederal S tatutes

28 U.S.C. §1257(3) (1964) ................................... ..... 10
28 U.S.C. §2255 (1964) .........................................-.... 23
42 U.S.C. §1981 (1964) ............................................ 7
Eev. Stat. §1977 (1875) ............................................ 7

Other A uthorities

American Law Institute, Model Penal Code, §210.6
(P.O.D. May 4, 1962) .............................................. 66

PAGE

American Law Institute, Model Penal Code, Tent.
Draft No. 9 (May 8, 1959), Comment to §201.6..... 4

Ancel, The Problem of the Death Penalty, in Sellin,
Capital Punishment (1967) ................................... 57

Barnes & Teeters, New Horizons in Criminology
(3d ed. 1959) .......................................................... 31

Bedau, The Courts, The Constitution and Capital
Punishment, 1968 Utah L. Bev. 201 (1968) .......... 57

Bedau, The Death Penalty in America (1964) ....8, 25, 27,45,
47, 48, 49, 52, 57, 58, 59, 60

Bedau, Death Sentences in New Jersey 1907-1960,
19 Rutgers L. Bev. 1 (1964) ........................ 7, 41, 52, 57

Bedau, The Issue of Capital Punishment, 53 Current
History (No. 312) 82 (Aug. 1967) ..................... 25

Bedau, A Social Philosopher Looks at the Death
Penalty, 123 Am. J. Psychiatry 1361 (1967) .......... 52, 57

Bok, Star Wormwood (1959) ......... ..................... . 30
Bye, Capital Punishment in the United States (1919) 25, 31

Calvert, Capital Punishment in the Twentieth Cen
tury (3rd ed. 1928) .................................................. 57

Camus, Reflections on the Guillotine, in Resistance,
Rebellion and Death (1961) ..........26, 29, 31, 32, 33, 34, 35

Canada, J oint Committee oe the S enate and H ouse
op Commons on Capital P u nishm ent , B epoet
(1956) 57

PAGE

Capital Punishment: Material Relating to Its Pur
pose and Value (compiled by Hon. Guy Favreau,
Canadian Minister of Justice) (Queen’s Printer,
Ottawa, 1965) ........................................................... 35

Chessman, Trial by Ordeal (1955) ...... 30
108 Cong. Rec. 3300-3305, 87th Cong., 2d Sess.

(March 1, 1962) ..................................................... 60

Darrow, A Comment on Capital Punishment, in
Laurence, a History of Capital Punishment (1960) 35

Dawtry, The Abolition of the Death Penalty in
Britain, 6 Brit. J. Crim. 183 (1966) ..................... 25

DiSalle, Comments on Capital Punishment and Cle
mency, 25 Ohio St. L.J. 71 (1964) ........................ 7

DiSalle, The Power of Life and Death (1965) .......... 30
Dostoyevsky, The Idiot (Modern Library, 1935) .... 34
Duffy & Hirshberg, 88 Men and 2 Women (1962) .... 29, 50,

51, 57

Eshelman, Death Row Chaplain (1962) ..................... 30

Filler, Movements to Abolish the Death Penalty in
the United States, 284 Annals 124 (1952) .............. 32

Garfinkel, Research Note on Inter- and Intra-Racial
Homicides, 26 Social Forces 369 (1949) .............. 52

Gerald H. Gottlieb On Capital Punishment (Center
for the Study of Democratic Institutions, 1967,
6, reprinted in 72 Case & Comment (No. 4) (July-
Aug. 1967) .............................................................. 33

Xll

PAGE

Hartung, Trends in the Use of Capital Punishment,
284 Annals 8 (1952) ...........................................41,49,52

Johnson, Selective Factors in Capital Punishment,
36 Social Forces 165 (1957) .............................. 7,52

Johnson, The Negro and Crime, 271 Annals 93
(1941) ..................................................................... 52

Knowlton, Problems of Jury Discretion in Capital
Cases, 101 IT. Pa. L. Rev. 1099 (1953) .............. 49

Koestler, Reflections on Hanging (Amer. ed. 1957) 27,46, 57
Koestler & Rolph, Hanged by the Neck (1961) ..28,45, 56, 60

Lawes, Life and Death in Sing Sing (1928) .............. 30
Lawes, Twenty Thousand Years in Sing Sing

(1932) ....................................................................7,48,50
Lewis, The Sit-In Cases: Great Expectations, 1963

Supreme Court Review 101 ................................... 62

Mattick, The Unexamined Death (1966) ...... 41, 51, 57, 60
McGlehee & Hildebrand, eds., The Death Penalty

(1964) ..................................................................... 30

Movements to Abolish the Death Penalty in the
United States, 284 Annals 124 (1952) ................. 25

New Jersey Commission to Study Capital Punish
ment, Report (1964) ......... 57

New York Law Journal, Nov. 27, 1968 ..................... 33
N ew Y ork S tate, T emporary Commission on R evi

sion op the P enal L aw and Criminal Code, S pe
cial R eport on Capital P unishm ent (1965) ........ 57

PAGE

Note, 109 U. Pa. L. Rev. 67 (1960) ............................ 62

Packer, Malting the Punishment Fit the Crime, 77
Harv. L. Rev. 1071 (1964) ................................... 25,67

Patrick, The Status of Capital Punishment: A World
Perspective, 56 J. Crim. L., Crim. & Pol. Sci. 397
(1965) ....................................................... .............. 42, 60

Pennsylvania, Joint Legislative Committee on Capi
tal Punishment, Report (1961) .............................. 52,57

Phillipson, Three Criminal Law Reformers (1923).... 25
President’s Commission on Law Enforcement and

Administration of Justice, Report (The Challenge
of Crime in a Free Society) (1967) ..............42, 43, 52, 58

Radzinowicz, A History of English Criminal Law
and Its Administration from 1750 (1948) .......... 25, 57

Royal Commission on Capital Punishment 1949-1953,
Report (H.M.S.O. 1953) [Cmd. 8932] ...... 29,56,57,58

Scott, The History of Capital Punishment (1950) .... 25
Sellin, Capital Punishment (1967) .....................57, 58, 60
Sellin, The Death Penalty (1959), published as an

appendix to American Law Institute, Model
Penal Code, Tent. Draft No. 9 (May 8, 1959)
15 ............................. ...........................................26,41,57

Sellin, The Inevitable End of Capital Punishment, in
Sellin, Capital Punishment (1967) ........................ 41, 58

Statement by Attorney General Ramsey Clark, be
fore the Subcommittee on Criminal Laws and
Procedures of the Senate Judiciary Committee,

XIV

PAGE

on S. 1760, To Abolish the Death Penalty, July 2,
1968, Department of Justice Release................. 26, 50, 57

Tuttle, The Crusade Against Capital Punishment in
Great Britain (1961) .......................................... 25, 31

United Nations, Department of Economic and Social
Affairs, Capital Punishment (ST/SOA/SD/9-10)
(1968) ........................................... 27,41,42,49,52,58,61

United States Department of Justice, Bureau of
Prisons, National Prisoner Statistics, No. 42, Ex
ecutions 1930-1967 ................................... 43, 44, 51, 52, 54

United States Department of Justice, Federal Bureau
of Investigation, Uniform Crime Reports (Crime
in the United States), 1967 (released August 27,
1968) ....................................................................... 40

United States Senate, Sub-Committee on Criminal
Laws and Procedures of the Committee on the
Judiciary, Hearings on S. 1760, to Abolish the
Death Penalty (Unprinted Report of Proceedings,
March 20, 1968) ................................. 3q

West, Louis J., M.D., “A Psychiatrist Looks at the
Death Penalty,” Paper presented at the 122nd
Annual Meeting of the American Psychiatric As
sociation, Atlantic City, New Jersey, May 11,
1966 .... ~ -....... .. .................... .........,...........,....27, 30, 50

Wolfgang, Kelly & Nolde, Comparison of the Ex
ecuted and the Commuted Among Admissions to
Death Row, 53 J. Grim. L., Crim. & Pol. Sci. 301
(1962) ..................................................... ....8, 52, 53

I n the

Ihtpron* Olmtrt rtf tbr Ittttrfr States
October Term, 1968

No. 642

E dward B oykin, J r.,
Petitioner,

State of A labama,
Respondent.

ON W RIT OE CERTIORARI TO T H E SU PREM E COURT OE ALABAMA

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., AND THE NATIONAL
OFFICE FOR THE RIGHTS OF THE INDIGENT, AS

AMICI CURIAE

Interest of the Amici Curiae

The N.A.A.C.P. Legal Defense and Educational Fund,
Ine., is a non-profit corporation, incorporated under the
laws of the State of New York in 1939. I t was formed to
assist Negroes to secure their constitutional rights by the
prosecution of lawsuits. Under its charter, one of its pur
poses is to provide free legal assistance to Negroes suffer
ing injustice by reason of race who are unable, on account
of poverty, to employ legal counsel.1 For many years, the

1 The Fund’s charter was approved by a New York court, au
thorizing the organization to serve as a legal aid society. It is en
tirely independent of other organizations, and is supported by
contributions from the public.

Fund’s attorneys have represented in this Court and the
lower courts persons charged with capital crimes, partic
ularly Negroes charged with capital crimes in the Southern
States.

A central purpose of the Fund is the legal eradication
of practices in our society that bear with discriminatory
harshness upon Negroes and upon the poor, deprived, and
friendless, who too often are Negroes. To further this
purpose, the Fund in 1965 established a separate corpora
tion, the National Office for the Rights of the Indigent
(NORI), having among its objectives the provision of
legal representation to the poor in individual cases and
the advocacy before appellate courts of changes in legal
doctrine which unjustly affect the poor.2

The long experience of Fund attorneys in the handling
of death cases has led us to the view—confirmed by the
studies of scholars8 and more recently by empirical re
search undertaken under the Fund’s auspices4—that capital
punishment is administered in the United States in a
fashion that consistently makes racial minorities, the de
prived and downtrodden, the peculiar objects of capital
charges, capital convictions, and sentences of death. Our
experience has convinced us that this and other grave
injustices are referable in part to fundamental char
acteristics of the death penalty as an institution in modern
American society,6 and in part to common practices in its

2 NORI’s income has been initially provided by a grant from the
Ford Foundation.

3 See note 50 infra.
4 See pp. 52-53 infra.
6 See pp. 41-61 infra,

administration which depart alike from the standards of
an enlightened criminal justice6 and from the minimum

6 In virtually every State today, the death penalty is admin
istered by a set of procedures which, to say the least, are strikingly
unfair to the accused and likely to produce extreme arbitrariness
in the selection of the men to be killed. We summarize those
procedures:

(1) On voir dire examination, persons having conscientious
scruples against the imposition of capital punishment are excused
for cause from the trial jury. Of course, this Court’s decision in
Witherspoon v. Illinois, 391 U.S. 510 (1968), disallowed one com
mon form of “death-qualifying” capital juries. But Witherspoon
has been given a very narrow reading by the state courts in its
application to pre-Witherspoon trials, e.g., State v. Mathis, 52 N.J.
238, 245 A.2d 20 (1968); Pittman v. State, Tex Crim. App., No.
41,393, decided July 24,1968; and death-qualification proceedings in
forms not explicitly outlawed by the square Witherspoon holding
have been practiced in virtually all of the state courts of which we
are aware in trials held since Witherspoon. The immediate effects of
this practice are several. First, it indirectly achieves what the
States are forbidden directly to achieve: the systematic limitation
of racial and other minority groups and of women—populations
disproportionately characterized by death scruples. Second, it de
livers over the administration of justice in trials for the most
serious crimes known to our society, bearing the most serious penal
exaction that human society can levy against a defendant, to an
unrepresentative sub-group of the community, comprising its most
punitive, atavistic and uncompassioned members. Third, in the
process of voir dire questioning by which the jury is death-quali
fied, it reinforces the very attitudes of punitiveness and uncompas
sion by which the jurors allowed to serve are natively characterized,
driving home the message that any principled, ideologically-derived
determination against the death sentence for the offense on trial is
forbidden to the jury, and, indeed, that the attitudes of mercy and
compassion which may undergird such a determination are legally
disfavored and morally unfit.

(2) The capital case is then tried to the jury so selected, which
determines both the question of guilt and that of punishment.
Ordinarily, these two determinations are made simultaneously—by
the traditional “single-verdict” procedure, as distinguished from
the two-staged, “split-verdict” procedure used in a handful of
jurisdictions. Under this single-verdict procedure, the jury hears

requirements of fairness and even-handedness fixed by the
Constitution of the United States for proceedings by which

all the evidence bearing on guilt or on punishment before retiring
to decide the guilt question, then returns with a single verdict
which adjudges guilt or innocence and fixes the punishment for
guilt at death or something less. There is no separate hearing on
the question of sentencing, and no opportunity—other than the
guilt trial—-to present to the jury evidence of the defendant’s char
acter and background, pertinent to the death-life choice. At the
guilt trial, the prosecution is usually forbidden to open up, in its
case in chief, matters relating to the defendant’s character and
background. The defendant may open up the character question,
subject to rebuttal by prosecution evidence of bad character,
damningly prejudicial on the guilt determination. And, of course,
the defendant may make a personal appeal for mercy—may per
sonally address those persons who hold his life in their hands—-
only by taking the stand generally, thereby waiving the Privilege
against Self-Incrimination. This is a practice that, as the Reporters
of the Model Penal Code have noted, forces the capital defendant
to a “choice between a method which threatens the fairness of the
trial of guilt or innocence and one which detracts from the ra
tionality of the determination of sentence.” Amebican Law In
stitute, Model Penal Code, Tent. Draft No. 9 (May 8, 1959),
Comment to §201,6, at p. 74. Specifically, the defendant is whip-
sawed between his Constitutional Privilege and his right to present
evidence that is requisite to rational sentencing choice. A defendant
who believes that he has any chance of acquittal of a capital charge
will often choose to avoid prejudicing that chance by expansion of
the trial record into background and character matters that make
him appear guilty—he will, in short, exercise the Privilege. Under
single-verdict procedure, the result frequently is that capital sen
tencing is done by a jury that knows next to nothing about the
person of the defendant, and has not even heard him speak in favor
of his life.

(3) But the jury is not merely deprived of factual information
essential to a reasoned sentencing decision. It is also deprived of
any sort of legal standards or guidelines for making the decision.
Under ubiquitous American capital trial procedure, the decision
between the death penalty and lesser alternatives to it is required
to be made by the jury in its unguided, unfettered and unre view-
able disci etion —according to whatever whims or urges may move
it. This most momentous of human decisions is unlike any other
made by-a jury in a purportedly legal proceeding: it,js not made
pursuant to rules of law or within the limitations of any sort of
regular, uniform or generalized doctrines or principles. Rather it

human life may he taken. Finally, we have come to appre
ciate that in the uniquely stressful processes of capital
trials and direct appeals, ordinarily handled by counsel
appointed for indigent defendants, many pressures and
conflicts may impede the presentation of effective attacks
on these unfair and unconstitutional7 practices; and that

is avowedly ad hoc, ex post facto and—because it neither does nor
need respond to any rational conception of punishment or sanc
tioning—wholly arbitrary. Little wonder that, in the actual admin
istration of capital sentencing, jurors have been shown to use this
lawless discretion lawlessly, and to discriminate racially, for ex
ample, in sentencing men to death. See pp. 51-53 infra.

(4) The jury’s sentencing decision is not ordinarily judicially
revisable. It is, of course, subject to correction by the exercise of
executive clemency; but this sort of gubernatorial dispensation is
administered still more irregularly than the jury’s decision itself.
Procedures for the clemency determination are unformulated;
standards to guide it are non-existent; and, by this stage, the con
demned man is usually indigent, unrepresented and legally help
less. See note 8 infra. Political and other considerations neverthe
less do bring about a substantial number of commutations; and, at
the conclusion of the process of a Nation’s administration of capital
justice for any year, only a few random, arbitrarily selected men
are put to death. Their executions are as futile and purposeless as
they are unusual and arbitrary. For there is simply no evidence
that capital punishment serves any legitimate end or purpose of
the criminal law—deterrence, incapacitation, reformation—which
lesser exactions do not; and the very strong weight of expert opin
ion vigorously denies that it does. See n. 53 infra. Whatever
penal efficacy the death penalty might have if regularly, uniformly
and fairly administered in all cases where it was allowed by law
is nullified by its actual rare and haphazard application, see pp.
41-61 infra, with the result that the penalty is left altogether with
out redeeming social value.

7 The specific constitutional claims to which the procedures de
scribed in footnote 6, supra, give rise may be briefly characterized
as follows:

(1) The systematic exclusion of death-scrupled jurors under
practices not condemned outright by Witherspoon v. Illinois, 391
U.S. 510 (1968), nevertheless offends the Constitution because (i)
it deprives capital defendants of a trial by a jury that is a cross-
section of the Community, in violation of the Sixth Amendment
and the Due Process and Equal Protection Clauses of the Four-

in the post-appeal period, such attacks are grievously
handicapped by the ubiquitous circumstances that the in

teen th ; and (ii) it results in a biased and prosecution-prone jury,
unable to accord the defendant a fair trial on the issue of guilt, in
violation of the Due Process Clause. See Petition for Certiorari,
m Forcella and Funicello v. New Jersey, O.T. 1968, No 947 Misc
pp. 69-74, 80-85.

(2) The practice which commits the sentencing decision in capital
cases to the undirected, unlimited and unreviewable discretion of
the jury violates the rule of law basic to the Due Process Clause.
See Petition for Certiorari, Johnson v. Virginia, O.T. 1968, No.
307 Misc., pp. 12-16; Petition for Certiorari, McCants v. Alabama,
O.T. 1968, No. 937, Misc., pp. 15-20; Petition for Certiorari, Max
well v. Bishop, O.T. 1968, No. 622, pp. 58-65. See also Part III,
infra, of this brief.

(3) The single-verdict procedure whereby a trial jury in a
capital case simultaneously hears evidence pertinent to guilt and
to sentencing, and returns a single verdict speaking to both issues,
is constitutionally deficient because (i) it compels the defendant to
a choice between his _constitutional right of allocution (and to
present evidence requisite to rational sentencing choice) and his
Privilege against Self-Incrimination, and (ii) it results in an unfair
trial on either the guilt issue, or the sentencing issue, or both.
See Petition for Certiorari, Johnson v. Virginia, supra, pp. 17-23;
Petition for Certiorari, Maxwell v. Bishop, supra, pp. 65-74; Peti
tion for Certiorari, Mathis v. New Jersey, O.T. 1968, No 683 Misc
pp. 45-55. ’

. W Capital punishment is a cruel and unusual punishment
within the condemnation of the Eighth Amendment as incorporated
into the Fourteenth, because (i) it involves brutal and unneces
sary physical and psychological cruelty; (ii) is abhorrent to
civilized standards of decency; and (iii) is justified by no rational
purpose of society, at least where it is administered (iv) as a rare
and unusual penalty, (v) invoked in the unconfined, uninformed
and arbitrary discretion of the sentencer, and (vi) under proce
dures which fail to assure considered and rational judgment by
the sentencer of circumstances in mitigation and the absence of
circumstances in aggravation that would render imposition of the
death sentence cruel and unusual on the facts of particular cases.
These issues, in contention in several litigations in the lower courts,
are of course broader than those discussed in Part II, infra, of
this brief.

(5) In many States, it can be empirically demonstrated that sen
tencing juries have utilized the unfettered discretion given them in
capital sentencing by discriminating racially in the imposition of

mates of the death rows of this Nation are as a class im
pecunious, mentally deficient, unrepresented and therefore
legally helpless in the face of death.8 Common state prac-

death sentences. In these States, where there can be shown a long-
continued pattern and practice of applying the sentence of death
with extreme disproportionate frequency against Negro defendants
convicted of offenses (particularly rape) against white complainants
or victims, such Negro defendants are denied the equal protection
of the laws guaranteed by Rev. Stat. §1977 (1875), 42 TJ.S.C.
§1981 (1964), and by the Fourteenth Amendment. See Petition for
Certiorari, Maxwell v. Bishop, supra, pp. 9-33, 35-58.

8 Recently, in connection with the case of Adderly v. Wainwnght,
M.D. Fla., No. 67-298-Civ-J, described infra, Fund lawyers were
authorized by federal court order to interview all of the condemned
men on death row in Florida. The findings of these court-ordered
interviews, subsequently reported by counsel to the court, indicated
that of 34 men interviewed whose direct appeals had been con
cluded, 17 were without legal representation (except for purposes
of the Adderly suit itself, a class action having as one of its pur
poses to declare their constitutional right to the appointment of
counsel) ; 11 others were represented by volunteer lawyers asso
ciated with the Fund or the ACLU; and in the case of two more,
the status of legal representation was unascertainable. All 34 men
(and all other men interviewed on the row) were indigent; the
mean intelligence level for the death row population (even as
measured by a nonverbal test which substantially overrated mental
ability in matters requiring literacy, such as the institution and
maintenance of legal proceedings) was below normal; unrepre
sented men were more mentally retarded than the few who were
represented; most of the condemned men were, by occupation, un
skilled, farm or industrial laborers; and the mean number of years
of schooling for the group was a little over eight years (which does
not necessarily indicate eight grades completed). These findings
parallel both those of scholars who have undertaken to describe the
characteristics of the men on death row, e.g., Bedau, Death Sen
tences in New Jersey 1907-1960, 19 Rutgers L. Rev. 1 (1964);
Johnson, Selective Factors in Capital Punishment, 36 Social F orces
165 (1957), and of officials experienced in dealing with death-row
inmates, e.g., DiSalle, Comments on Capital Punishment and
Clemency, 25 Ohio St. L.J. 71, 72 (1964) : “I want to emphasize
that from my own personal experience those who were sentenced
to death and appeared before me for clemency were mostly people
who were without funds for a full and adequate defense, friendless,
uneducated, and with mentalities that bordered on being defective.”
Accord: Lawes, Twenty Thousand Years in Sing Sing (1932)

tice makes no provision for the furnishing of legal counsel
to these men.9

For these reasons, amici Legal Defense Fund and NORI
have undertaken a major campaign of litigation challenging
the death penalty as a cruel and unusual punishment, and
assailing on federal constitutional grounds several of the
most vicious common practices in its administration.10

302, 307-310. And even within this deprived group, racial minor
ities are the objects of especial deprivation. It has been found,
for example, that Negroes are significantly less able than whites
to procure the stays necessary for pursuit of legal remedies (as
measured by median time between sentence of death and execu
tion), McCafferty, The Death Sentence, 1960, in Bedatj, The
Death Penalty in America (1964) [hereafter cited as Bedatj],
90, 95-96, one factor that doubtless contributes to the significantly
greater success of whites than Negroes in having death sentences
commuted, e.g., Wolfgang, Kelly & Nolde, Comparison of the Ex
ecuted and the Commuted Among Admissions to Death Bow, 53
J. Crim. L., Crim. & P ol. Sci. 301 (1962).

9 Just last month, in a litigation presented by Fund attorneys
claiming the right of indigent condemned men to assistance of
counsel during the post-appeal period, the Supreme Court of Cali
fornia “determined that the appointment of counsel to represent
indigent defendants in capital cases in all proceedings between the
termination of their state appeals and their execution, such as
petitions for certiorari, habeas corpus petitions to state and federal
courts, applications for executive clemency and the conduct of
sanity hearings where indicated, will best serve the cause of justice,
the interests of the defendants and this court. Counsel will be
appointed routinely in the future in all such cases as a matter of
policy.” In re Anderson and Saterfield, Cal. S.C., Crim. Nos.
11572, 11573, decided November 18, 1968, p. 24b, infra. In New Jer
sey, the State Public Defender has announced his obligation to pro
vide similar representation for all indigent condemned men in that
State. See the Petition for Certiorari, in Forcella and Funicello
v. New Jersey, O.T. 1968, No. 947 Misc., p. 5, n. 1. We know of no
other State in which adequate provision is made for the post-con
viction representation of indigent condemned men.

10 See the Brief Amicus Curiae of the N.A.A.C.P. Legal Defense
and Educational Fund, Inc., and the National Office for the Rights
of the Indigent, in Witherspoon v. Illinois, O.T. 1967, No. 1015 and
Bumper v. North Carolina, O.T. 1967, No. 1016, pp. 12-14 n. 30.

Fund and NOBI attorneys, with the cooperation of other
lawyers, instituted class actions on behalf of the approxi
mately 60 condemned men on death row in Florida (Ael
derly v. Wainwright, M.D. Fla., No. 67-298-Civ-J) and
the more than 80 condemned men on death row in Cali
fornia (Hill v. Nelson, N.D. Cal., No. 47318; In re Ander
son and Saterfield, Cal. S.C., Crim. Nos. 11572, 11573),
which have resulted in interlocutory class stays of execu
tion for all men under sentences of death in both States.11
In addition to the 140 inmates represented in these class
actions, our attorneys have major responsibility for han
dling almost half a hundred pending cases of men sen
tenced to death in ten other States, and are cooperating
with, or providing services to, attorneys handling half a
hundred more across the country. Counsel for amici have
pending on petitions for certiorari in this Court, inter alia,
the following death cases: Maxwell v. Bishop, O.T. 1968, No.
622; Johnson v. Virginia, O.T. 1968, No. 307 Misc.; Mathis
v. New Jersey, O.T. 1968, No. 683 Misc.; McCants v. Ala
bama, O.T. 1968, No. 937 Misc.; Forcella and Funicello v.
New Jersey, O.T. 1968, No. 947 Misc. In each of these
cases, at least one issue involved in the present Boykin
case is presented.

The issues raised in Boykin are of literally vital signif
icance to the more than 400 men on death row in the

11 On November 18, 1968, the California Supreme Court delivered
its opinions in the Anderson and Saterfield cases, rejecting by a
4-3 vote all federal constitutional attacks on the death penalty in
California. The court vacated Anderson’s and Saterfield’s death
sentences for constitutional error in the selection of their trial
juries under Witherspoon v. Illinois, 391 U.S. 510 (1968), however;
and its previously issued stay of execution for all condemned men
in the State remains in effect at this date. See Appendix B infra.

The numbers of condemned men in California and Florida are
given as of this time, not as of the time of initiation of the respec
tive lawsuits.

United States, an increasing number of whom (now amount
ing to over half their total number) we directly or indi
rectly represent. The lives of each of these men may
well turn on what the Court decides and says—or does
not decide or does not say—in the present case. For this
reason, we respectfully present on their behalf our views
upon the case before the Court. The parties have con
sented to the filing of this amicus curiae brief, and copies
of their letters of consent will be submitted to the Clerk
with the brief.

Opinions Below

The several opinions of the Justices of the Supreme
Court of Alabama affirming by a divided court Edward
Boykin’s conviction and sentence of death are reported at
281 Ala. 659, 207 So.2d 412. They are found in the Appendix
[hereafter cited App.......] at 36-41.

Jurisdiction

The judgment of the Supreme Court of Alabama was en
tered on February 8, 1968, App. 42. Rehearing was denied
by order of March 7, 1968, App. 43. The petition for certio
rari was filed on June 4, 1968, and was granted by order of
October 14, 1968, App. 46. Jurisdiction of this Court rests
on 28 U.S.C. §1257(3) (1964).

Questions Presented12

1. Whether the Supreme Court of Alabama erred in af
firming Boykin’s capital conviction and sentence of death
upon a guilty plea, where the record does not reflect that
the trial court made appropriate inquiry to assure that
the plea was voluntary and understanding as required by
the Fifth and Fourteenth Amendments?

2. Whether Boykin’s sentence of death for the crime of
simple robbery, upon this record, violates the prohibition
against cruel and unusual punishments contained in the
Eighth and Fourteenth Amendments?

3. Whether Alabama’s practice of permitting the trial
jury absolute discretion, uncontrolled by standards or di
rections of any kind, to choose between the punishments
of death or imprisonment for the crime of robbery violates
the rule of law fundamental to the Due Process Clause of
the Fourteenth Amendment?

Constitutional and Statutory Provisions Involved

The case involves the Fifth, Eighth and Fourteenth
Amendments to the Constitution of the United States,

It also involves Code oe A labama, tit. 14, §415 (1959),
which is as follows:

“Any person who is convicted of robbery shall be
punished, at the discretion of the jury, by death, or by
imprisonment in the penitentiary for not less than ten
years.”

12 At pp. 69-73 infra, we note several other issues that may ap
pear to lurk in the ease but are not, in our judgment, presented
by it.

Statement

Edward Boykin, Jr., was charged in five separate indict
ments, filed in the Circuit Court of Mobile County, Ala
bama, with the crime of robbery. App. 1, 36. Under Ala.
Code, tit. 14, §145 (1959), set out at p. 11, supra, simple
robbery is punishable by death or by imprisonment for not
less than ten years, in the discretion of the jury. Section
415 fixes the penalty for the crime of robbery but does not
define it; the elements of simple robbery are defined in
Alabama by the common law.13 Pursuant to the common-
law definition, each indictment charged Boykin with felo
niously taking a sum of money from the person of a named
complainant against the complainant’s will, by violence to
the complainant’s person or by putting the complainant in
such fear as unwillingly to part with the money. App. 1.

July 11, 1966, Boykin was interrogated by the court and
found to be unrepresented and indigent. He said he did
not want counsel, but the court deemed counsel necessary
and appointed a lawyer. App. 2-3. July 14, Boykin ap
peared with appointed counsel for arraignment on the five
robbery charges, pled guilty to each, and was remanded
for sentencing. The minute entry for this date consists of
eleven lines reciting his appearance, the presence of his
lawyer, and his plea. App. 4. Unlike the minute entry of
July 11, it does not reflect that Boykin was addressed or
questioned by the court, or that he said a word.

September 30, 1966, Boykin’s five robbery charges were
presented to a jury for trial and sentencing on his guilty
pleas. App. 4-5. The prosecution presented seven witnesses
who testified concerning the events of five robberies com-

13 See Morris v. State, 97 Ala. 82, 12 So. 276 (1893); Eiggs v.
State, 113 Ala. 36, 21 So. 353 (1897); Tunstill v. State, 33 Ala
App. 460, 34 So.2d 857 (1948).

mitted in Mobile between April 23 and May 8, 1966. Each
identified Boykin as the robber. In each of the five rob
beries, Boykin was apparently armed with a gnn. Three
times he had an accomplice; twice he did not. Three times
he did not fire his gun; once he fired a warning shot that
hit no one; once he fired a shot that ricoehetted and hit a
girl in the leg. The sole witness to this last episode testi
fied that she did not think Boykin intended to shoot the
girl. App. 20, 21. The amounts taken in the robberies
ranged from $140 to $373.14

In general, the prosecution witnesses gave terse eyewit
ness descriptions of the several robberies. Cross examina
tion was minimal. The defendant did not testify and pre
sented no witnesses. No evidence was proffered or received
relating to the defendant’s character or background. In
short, the jury knew’ nothing about Edward Boykin except
his conduct during five robbery episodes, each lasting a few
minutes, occurring within a period of about two weeks. The
court’s entire charge was as follows:

14 The five robberies were as follows:
On April 23, the Dairy Castle was robbed. Witnesses were Mr.

Smith (App. 22) and Mr. Hersh (App. 24). About $209 was taken.
The robber was alone. He had a gun, did not fire it.

On May 3, a service station was robbed. Witness was Mr. Pugh
(App. 29). About $158 was taken. The robber had an accomplice.
He had a gun, did not fire it.

On May 5, a general store was robbed. Witness was Mr. Camp
bell (App. 25). About $140 was taken. The robber had an ac
complice. He had a gun, did not fire it.

On May 6, a drug store was robbed. Witness was Mrs. Fawcett
(App. 16). About $363 was taken. The robber had an accomplice.
He had a gun, fired a shot which ricoehetted from the floor and hit
a girl in the leg. Mrs. Fawcett thought the shot was fired to
frighten, without intention to hit the girl.

On May 8, Pak-a-Sak was robbed. Witnesses were Mr. Loper
(App. 11) and Mr. Weaver (App. 13). About $262 was taken. The
robber was alone. He had a gun, fired a warning shot in leaving.
The shot struck the ceiling, fell back hitting no one.

“ T h e C o u r t : Some of you gentlemen were on the
jury yesterday, but I ’ve got to briefly restate the law
as to what robbery is. This defendant has plead guilty
to robbery in five separate and independent cases. Now
robbery, once again gentlemen, is the felonious taking
of money or goods of value from another against his
will and without his permission by violence or by put
ting him in fear. That boils it down in a nut shell just
what robbery is. Now, it carries from ten years min
imum in the penitentiary to the supreme penalty of
death by electrocution. I ’ll have the forms for you in
just about one minute. One form has been written up
here. If you decide not to give death by electrocution,
of course, the form on the indictment you can use that.
On the other hand, gentlemen, there will be a form—
I’ll send it to you in the jury room—where if the jury
finds the defendant guilty of the offense of robbery
as charged in the indictment and fixes the penalty at
death by electrocution. You will have that form. You
can use either one form or the other when you arrive
at your verdict.” (App. 32.)

When it arrived at its verdict, the jury used the death
forms. It thereby found Edward Boykin guilty of five
robberies and sentenced him severally to die for each.
App. 32-33. Judgment of five death sentences was en
tered. App. 4-5, 33.15

On appeal, the Supreme Court of Alabama affirmed the
death sentences. An opinion having the concurrence of

16 This judgment of September 20 was technically defective, in
that the judge “inadvertently” failed to fix the execution date as
required by law. App. 34. Accordingly, the sentence was set aside
the same day, App. 5-6, and Boykin was resentenced on Septem
ber 21, App. 6-8, 34-35. The proceedings on this latter date were
formal and added nothing of substance to what had gone before.

four Justices rejected Boykin’s claim that he had been
subjected to cruel and unusual punishment forbidden by
the federal Constitution. App. 36, 37-39. The opinion made
mention of none of the other federal claims urged in
Boykin’s behalf. Three Justices dissented and voted to
reverse the five judgments of death because the record
did not show that Boykin’s plea of guilty to five capital
charges had been made knowingly and understandingly,
App. 40-41. A fourth Justice, whose concurrence was neces
sary to the affirmance, addressed this issue in a separate
opinion which expressly denied that “when a defendant
pleads guilty in a capital case the record must affirmatively
show that the trial judge did not accept the guilty plea
until after determining that the plea was voluntarily and
knowingly entered and that the defendant fully realized
and was competent to know the consequences of such a
plea.” App. 39-40. The plurality opinion for affirmance
did not discuss this point.

ARGUMENT

I.
The Supreme Court of Alabama Erred in Affirming

Boykin’s Convictions of Five Capital Offenses and Five
Death Sentences Upon a Guilty Plea, Where the Record
Does Not Show That the Trial Court Made Constitu
tionally Requisite Inquiry to Assure That the Plea Was
Voluntary and Understanding.

The issues of widest importance in this case, and those in
which amici are principally interested, are the questions
whether Edward Boykin’s sentence of death for simple rob
bery violates the Eighth and Fourteenth Amendment pro
hibition against cruel and unusual punishments (discussed
in Part II, infra, of this brief), and whether its imposition
in the unfettered discretion of a jury, which was empowered
by Alabama law to choose between the penalties of death
and imprisonment arbitrarily, capriciously, for any reason,
or for no reason, violates the rule of law basic to the Due
Process Clause (discussed in Part III, infra). We must note
at the outset, however, that in our view the judgment of
conviction and sentence below cannot be sustained on this
record consistently with the Constitution, and that reversal
is required for a reason quite independent of the two im
portant issues presented relating to the validity of the
death penalty. That reason may be briefly stated: the rec
ord below does not show compliance with requirements of
the Fifth and Fourteenth Amendments in the taking of
Boykin’s guilty plea.

Three days after the first appointment of counsel, this
indigent defendant was arraigned on five separate capital
charges and pleaded guilty to all of them. These circum
stances alone are cause for the gravest concern. In the

absence of some deal or understanding that excludes the
death penalty, it is simply inconceivable that—on three
days total time to investigate five distinct robbery charges—
a plea could be entered which exposes the defendant to
electrocution. One cannot say, and cannot imagine, what
could have been in the mind of Boykin or his appointed law
yer. The record contains not one word concerning the cir
cumstances of the plea, except that Boykin was in court and
also “Thereupon in open court on this day, Defendant’s
Attorney, Evan Austill, was in court.” App. 4. No inquiry
was put on the record as to whether the plea was entered
understandingly or ignorantly, freely or under inducement.
The inference is strong that no such inquiry was made, for
the minute entry reciting Boykin’s plea reflects no interro
gation of the defendant by the court, while a similar minute
entry on the occasion of Boykin’s earlier appearance for
appointment of counsel relates in detail questions put by
the court and answers by Boykin. App. 2-3, 4. On the date
of his plea, there is no indication that the court addressed
Boykin, or that he himself said anything. For aught that
appears, the judicial confessions by which his life became
forfeit were made on his behalf without his personal par
ticipation. Cf. Brookhart v. Janis, 384 U.S. 1 (1966). As
this Court said in another connection: “To permit human
lives to be. forfeited upon confessions thus obtained would
make of the constitutional requirement of due process a
meaningless symbol.” Chambers v. Florida, 309 IJ.S. 227,
240 (1940).

We submit that the Constitution will brook no such sum
mary procedure for the taking of a guilty plea in a capital
case. Boykin’s plea constituted, of course, a waiver of his
rights to contest guilt and to insist that, the prosecution
prove him guilty at a trial. These are federal rights, secured
by both the Fifth Amendment Privilege against Self-In
crimination and the Fourteenth Amendment guarantee of

due process. See United States v. Jackson, 390 U.S. 570
(1968); Pennsylvania ex rel. Herman v. Claudy, 350 U.S.
116 (1956); Cole v. Arkansas, 333 U.S. 196, 201 (1948). The
question of their effective waiver is therefore governed by
federal standards. E.g., Douglas v. Alabama, 380 U.S. 415
(1965); O’Connor v. Ohio, 385 U.S. 92 (1966). Those stand
ards are designed to give adequate and practical protection
to the underlying federal right—protection which requires,
in the case of the guilty plea, assurance that the plea is un
derstanding and voluntary. E.g., Waley v. Johnston, 316
U.S. 101 (1942); Machibroda v. United States, 368 U.S. 487
(1962); and see Shelton v. United States, 356 U.S. 26 (1958)
(mem).

Miranda v. Arizona, 384 U.S. 436 (1966), exemplifies the
procedural protections with which this Court has sur
rounded the Privilege and which govern its waiver. Sig
nificantly, Miranda holds that a prosecutor cannot intro-
due an accused’s station-house confession until the prose
cution has affirmatively spread on the record all of the
prerequisites for a valid waiver of the Privilege. This
holding marked an enlargement of the accused’s safeguards
in the station house, hut it was no constitutional innovation.
Well before Miranda, the Court had insisted that the waiver
of federal constitutional rights in judicial proceedings ap
pear affirmatively on the record. Carnley v. Cochran, 369
U.S. 506 (1962); Doughty v. Maxwell, 376 U.S. 202 (1964)
(mem). That rule continues to be applied. See Swenson v.
Bosler, 386 U.S. 258 (1967); Burgett v. Texas, 389 U.S. 109,
114-115 (1967); Mempa v. Rhay, 389 U.S. 128 (1967)
(Mempa’s case).

Specifically, Carnley v. Cochran, supra, declares that:
“Presuming waiver from a silent record is impermissible.”
369 U.S. at 516. If that is true of the Sixth Amendment
right to counsel involved in Carnley, it must be equally true

of the Fifth and Fourteenth Amendment rights surren
dered by a guilty plea. The reasons, in each case, for re
quiring that the circumstances relied upon to constitute a
waiver of vital federal rights appear affirmatively on the
record are the same. For where either a waiver of counsel
or a guilty plea is received in open court, only the affirma
tive assumption by the trial judge of responsibility to bring
out the facts surrounding the waiver or the plea can protect
the accused’s constitutional interests. This is so because in
both cases the very circumstances that would render the
waiver or the plea unconstitutional—ignorance, incompre
hension, coercion, terror, inducements—would also operate
to cover up any appearance of unconstitutionality, and to
stifle the accused’s ability to complain of it.

It is no accident that this Court has repeatedly stressed
the affirmative duty of a trial judge to make adequate in
quiry of the accused before accepting a waiver of counsel.
“This protecting duty imposes the serious and weighty re
sponsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused.”
Johnson v. Zerbst, 304 U.S. 458, 465 (1938); Von Moltke v.
Gillies, 332 U.S. 708, 722-723 (1948) (plurality opinion);
Carnley v. Cochran, supra, 369 U.S. at 514-515; Westbrook
v. Arizona, 384 U.S. 150 (1966). No less stringent duty,
surely, devolves upon the judge taking a guilty plea. “Upon
the trial judge rests the duty of seeing that the trial is con
ducted with solicitude for the essential rights of the ac
cused.” Glasser v. United States, 315 U.S. 60, 71 (1942).
In a guilty-plea case, the plea is the trial, and special con
siderations call for the court’s special solicitude.

In the first place, an accused who enters a plea wants it
to be accepted—whether or not this desire is the product of
ignorance, inducements or fears. It is not then in his in
terest, nor that of his lawyer, to raise matters which will

.arouse suspicion, and possibly “queer” the taking of the
plea. Unless the judge makes affirmative inquiry, no pro
tection is afforded the accused by the proceeding.

Second, the plea is the be-all and the end-all of the ac
cused’s right to defend. Once it is accepted, his guilt is
determined; and the only remaining question concerning
the guilt determination is whether the plea was valid. On
this dispositive question, the accused has the right to an
adequate record, and to such appellate review as the State
affords. Denial of an adequate record for review would it
self be a denial of due process. Garner v. Louisiana, 368
U.S. 157, 173 (1961); Specht v. Patterson, 386 U.S. 605, 610
(1967). But, as a practical matter, for the reasons we have
stated no such record can be made unless the presiding
judge undertakes to make it.

We do not say that a plea of guilty could not constitu
tionally be taken in traffic court in the manner in which
Boykin’s plea was taken. The matter would be more ques
tionable if the plea were to a minor misdemeanor. But in
a capital case, surely, fitting federal standards for the
waiver of the federal right to contest guilt demand some
thing more. For, as this Court recognized in United States
v. Jackson, 390 U.S. 570 (1968), the pressures of a capital
charge exert unique stress on the accused to waive his rights
upon the inducement, or in the mistaken hope that he will
thereby avoid the death sentence. Also, it can hardly be
denied that what is at stake for the accused facing death
demands the utmost solicitude of which courts are capable.
More than ordinary care in the handling of death cases has
long been the constitutional rule. For its varying exempli
fications, see, e.g., Powell v. Alabama, 287 U.S. 45 (1932);
Hamilton v. Alabama, 368 U.S. 52 (1961); Stein v. New
York, 346 U.S. 156, 196 (1952). “The differentiation be
tween capital and non-capital offenses is the basis for dif-

ferentiation in law in diverse ways in which the distinction
becomes relevant.” Williams v. Georgia, 349 U.S. 375, 391
(1955). We submit that it is plainly relevant where a judge
takes an accused’s guilty plea to five capital charges with
no more concern for his protection than would attend a plea
to a vehicle-code violation.

We might add—although we think the point hardly nec
essary—that there is demonstrably nothing to be said
against a requirement that a judge who takes a capital plea
in open court must establish on the record the prerequisites
to its validity. Objectors to Miranda have complained, at
least, that legitimate police investigative practices were im
peded by the rules laid down in that decision. But no one
has ever supposed that it is a legitimate judicial practice,
or one in the interest of the State, to take ignorant or in
voluntary pleas of guilty in a death case. There is, indeed,
hardly even an interest of convenience in permitting the
judge to take his pleas without inquiry, for inquiry is a
simple enough matter in most cases. Here it might well
have taken little longer than the time consumed by the
court’s belated and futile inquiries: “do you have anything
to say as to why the sentence should not be imposed,” re
peated five times at the prosecutor’s instance just before
the entry of the five judgments of death that capped Ed
ward Boykin’s unexamined plea. App. 34-35.

For all of these reasons, we submit that the three dis
senting Justices below were plainly right, as a matter of
federal constitutional law, in concluding that the “judg
ments in these five death cases should be reversed and the
causes remanded to the trial court because the record does
not disclose that the defendant voluntarily and understand
ing^ entered his pleas of guilty.” The plurality opinion
below does not speak to the point,, and the. only explanation
for the affirmance by the Supreme Court of Alabama on
this record is that offered in the special concurring opinion

of Justice Lawson. App. 39-40.16 Justice Lawson rejects the
view of the dissenters because they “presume that the trial
judge failed to do his duty.” App. 40. Unhappily, it is in
the nature of a silent record that one can draw conclusions
from it only by presuming one thing or another ; and the
contrary presumption—that the trial judge did do his duty
—is firmly foreclosed by Carnley v. Cochran, supra.

Justice Lawson takes the position, alternatively, that
there is no need for the trial judge who accepts a guilty plea
to put on record his inquiries into the constitutional requi
sites of the plea because the defendant who complains of
the plea can later “raise all of [his] . . . questions in a peti
tion for writ of error coram nobis. In such a proceeding, of
course, the petitioner would be required to produce evidence
in support of his contentions.” App. 40. We can see no
virtue whatever to a plea-taking procedure that would cast
the burden of determining the validity of guilty pleas en
tirely on the post-conviction courts. Cf. In re Gault, 387
U.S. 1, 58 (1967). But, however this may be, the principle
proposed by Justice Lawson as a rule to govern waiver of
Fifth and Fourteenth Amendment rights has two over
whelming vices which require its rejection here. First, even
in a non-capital case it throws an unacceptable burden on
the accused.

16 There seems to be no question that the issue was properly be
fore the Supreme Court of Alabama. Four of the seven Justices
of that court expressly addressed it on the merits, and the re
maining three, who kept silent about it, did not suggest that it was
not presented. In the nature of things it is implausible to suppose,
and therefore impermissible to demand, that a challenge to the
validity of a guilty plea be made in the trial proceedings where
the plea is taken. As we have said in the text, supra, the principal
reason for imposing a constitutional obligation upon the presiding
judge to inquire into the validity of the plea before accepting it is
that the defense is in no position to object to the taking of a plea
which—whether for valid or invalid reasons—the defendant and
his lawyer are eager to have the court accept.

“Nor is it an answer to say that he may counter
such presumptions on collateral attack by showing
—if he can—that he had not [validly waived his fed
eral constitutional right]. . . . To cast such a burden
on the accused is wholly at war with the standard of
proof for waiver which we laid down in Johnson v.
Zerbst. . . . ” (Carnley v. Cochran, supra, 369 U.S., at
514.)

Second, it is indefensibly callous with regard to the pecu
liar plight of the capital accused. Alabama practice—like
that in most States17—affords an indigent condemned man
no right to the appointment of counsel beyond the stage
of the direct appeal. There is therefore no assurance that
a coram nobis or other post-conviction petition will ever
be filed, or that the accused will survive long enough to
file it. A man in Boykin’s position, whose guilty pleas
have never been examined by any court prior to the ter
mination of his appeal, is promised an examination if,
unaided, he can get a stay of execution and bring his claims
to court, upon proper allegations, before the State kills
him. We suggest that such a scheme is constitutionally
intolerable.18

17 See notes 8, 9 supra.
18 This Court need not now decide what would be the remedy if,

in a post-conviction proceeding, a petitioner demonstrated that his
plea of guilty to a capital charge was taken without the constitu
tionally requisite inquiry. See the decisions holding that, in federal
post-conviction proceedings under 28 TJ.S.C. § 2255 (1964), a show
ing of non-compliance with Fed. Rule Grim. Pro. 11 in the taking
of a guilty plea casts the burden of proof on the Government to
show retrospectively that the plea was voluntary and understand
ing, but does not per se require the vacating of the plea. Domenica
v. United States, 292 F.2d 483 (1st Cir. 1961); Reed v. United
States, 291 F.2d 856 (4th Cir. 1961). The present case is before
this Court not on collateral attack, but on direct review. If there
was error below, by federal constitutional standards, as we submit
there obviously was, the judgment of the Alabama Supreme Court
affirming Boykin’s conviction and sentence cannot stand, and must
be reversed.

II.
Boykin’s Death Sentence Offends the Eighth Amend

ment.

We come to the question whether Edward Boykin’s
sentence of death by electrocution for simple robbery vio
lates the Eighth Amendment prohibition of cruel and un
usual punishment.19

We venture to suggest that the answer to that question
would appear easy enough to a student of Anglo-American
history and contemporary culture, untrained in the law.
If he were told that the Eighth Amendment contained a
“basic prohibition against inhuman treatment,” that its
underlying concept was “nothing less than the dignity of
man,” that the Amendment was designed to assure that
the state’s punishing power “be exercised within the limits
of civilized standards,” and that “the Amendment must
draw its meaning from the evolving standards of decency
that mark the progress of a maturing society,” 20 we sub
mit that he could only conclude the Eighth Amendment
forbade court-ordered killings of human beings, long after
their apprehension and incarceration, as a punishment
for the crime of robbery in Twentieth Century America.

He would come to the same conclusion if he were told,
less elegantly, that “the question inherent in the eighth
amendment [is]: is what the legislature has done, how-

19 That prohibition restrains the States by virtue of the Due
Process Clause of the Fourteenth Amendment. Robinson v. Cali
fornia, 370 U.S. 660 (1962).

20 The quoted passages are all from Trop v. Dulles, 356 U.S. 86,
100-101 (1958) (plurality opinion of the Chief Justice).

ever rationally supportable it may be, too offensive to
stomach!” 21

The considerations which would affect the thinking of
our hypothetical non-legal scholar are not, of course,
legally dispositive, but they are also not legally irrelevant.
We enumerate a few of them as a means of framing
systematically what we see as the legal nub of this case:

(1) Our scholar would look first at history; and, ac
customed to the adage that the lessons of history are
never clear, he would be surprised. For the lesson of
Anglo-American history is clear beyond all mistaking that
the advance of civilization has been marked precisely by
the progressive abandonment of the death penalty. Our
scholar would examine the course of England from the
“bloody code” of the Eighteenth and Nineteenth Centuries
to nearly total legal abolition in the mid-Twentieth, and
the parallel history of the United States abutting, as we
shall see, in virtually total abolition de facto.22 Such
an examination could only reinforce his intuitive sense

21 Packer, Making the Punishment Fit the Crime, 77 H arv. L.
Rev. 1071, 1076 (1964).

22 Concerning the English experience, see P hillipson , Three
Criminal L aw Reformers (1923); R adzinowicz, A H istory of
E nglish Criminal L aw and I ts A dministration F rom 1750
(1948); Scott, The H istory of Capital P unishment (1950);
Tuttle, Th e Crusade A gainst Capital P unishm ent in Great
B ritain (1961). Final abolition (except for a few obscure crimes
for which the death penalty is not in fact used) came on October 28,
1965. See Dawtry, The Abolition of the Death Penalty in Britain,
6 B rit. J. Crim . 183 (1966).

Concerning the American experience, see Bye, Capital P u nish
ment in the United States (1919); B edau, The D eath P enalty
in A merica (1964) [hereafter cited as Bedau], chaps. 1-2; Filler,
Movements to Abolish the Death Penalty in the United States, 284
A nnals 124 (1952). The most recent developments—legal aboli
tion in Oregon, Vermont, Iowa, West Virginia, and (with some re
servations) New York—are reported in Bedau, The Issue of Capi
tal Punishment, 53 Current H istory (No. 312) 82 (Aug. 1967).

that society’s ceasing to use death as a punishment for
crime is—in Albert Camus’ phrase—“a great civilizing
step.” 23 Is this intuition not frankly obvious! Can any
one who thinks about it as a human being—(we postpone
for a moment the more subtle task of legal judgment)—
doubt the rightness of the same insight recently voiced
by the Attorney General of the United States: “Surely
the abolition of the death penalty is a major milestone in
the long road up from barbarism” ? 24

(2) Our scholar would notice the history of thought as
well as the history of events, and would be struck by the
conceptions and ideals with which opposition to, and sup
port for, the death penalty have respectively been long
associated:

“ . . . the struggle about this punishment has been
one between ancient and deeply rooted beliefs in retri
bution, atonement or vengeance on the one hand, and,
on the other, beliefs in the personal value and dignity
of the common man that were born of the democratic
movement of the eighteenth century, as well as beliefs
in the scientific approach to an understanding of the
motive forces of human conduct, which are the result
of the growth of the sciences of behavior during the
nineteenth and twentieth centuries.” 25

23 Camtjs, Reflections on the Guillotine, in R esistance, R ebel
lion and D eath (1961) 173 [hereafter cited as Camus], at 232.

24 Statement by Attorney General Ramsey Clark, Before the Sub
committee on Criminal Laws and Procedures of the Senate Judi
ciary Committee, on S. 1760, To Abolish the Death Penalty, July 2,
1968, Department of Justice Release, p. 2.

26 Sellin , The D eath P enalty (1959), published as an appen
dix to A merican L aw I nstitute, Model P enal Code, Tent. Draft
No. 9 (May 8, 1959) 15. This work is hereafter cited as Sellin
(1959).

(This is not to say, of course, that no one does or can
support the death penalty for other reasons than belief
in retribution, atonement or vengeance; but it is signifi
cant that these beliefs have been historically the main
stays of support for the institution of capital punishment,
while the movement for abolition has been spearheaded
by concerns derived from conceptions of “the dignity of
man,” Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality
opinion of the Chief Justice).)

(3) A related perception focuses upon the professional
identification of those who have traditionally opposed, or
supported, capital punishment:

“In the first place, it will be noticed that, among
the leading authorities in penal science, the supporters
of abolition appreciably outnumber those who favour
the retention of capital punishment. The specialists
of the social sciences, criminologists, sociologists,
penologists, psychologists, doctors and writers on
social science and criminology are, in their great
majority, abolitionists. The supporters of capital pun
ishment, apart from a number of political figures and
persons holding high public office, are generally jurists
with a traditional training and judges.” (U n ited Na
tio n s , D epa r t m e n t op E conom ic and S ocial A ffa ir s ,
Ca pita l P u n is h m e n t (ST/SOA/SD/9-10) (1968)
[hereafter cited as U n it e d N a tio n s] 64.26

(Again, we postpone for later discussion the complicated
question why judges, particularly, as distinguished from
students of the human sciences and of penology, should

26 Accord: id., at 124; B e d a u 122-123; Louis J. West, M.D., “A
Psychiatrist Looks at the Death Penalty,” Paper Presented at the
122nd Annual Meeting of the American Psychiatric Association,
Atlantic City, New Jersey, May 11, 1966 [hereafter cited as West],
p. 2. And see K o e s t l e r , R e f l e c t io n s o n H a n g in g (Amer. ed. 1957)
[hereafter cited as Koestler] 21-40.

be numbered strongly among the historical supporters of
the death penalty.)

(4) Our suppositious scholar, of course, would also give
attention to what is really involved in the execution of
a human being. He would have in mind Arthur Koestler’s
admonition that the question of the cruelty of killing men
is not one that gains clarity from being wrapped in
abstractions.

“You could hardly have a nobler example of the
true function of words, namely the partial conceal
ment of fundamentals. The phrase ‘capital punish
ment’ itself is a less obvious instance—less obvious
because we have got so used to it. It means (in Eng
land) disclocating a man’s neck by tying a six-foot
rope around it and suddenly dropping him through
a trap door with his arms and legs tied. If his neck
happen not to break—it is certain at least to dislo
cate—then he would strangle, which takes longer and
turns his face dark blue. In either case he often defe
cates, since people usually want to do this when they
are frightened, and the huge shock to his nervous
system when the rope tightens removes the last ves
tige of self-control, together with the social need for
it.

“This is not a nice picture and few of us care to
be reminded of it. Many of us can think calmly
enough of capital punishment, because the phrase
embodies what The Times would call ‘a decent reti
cence.’ The reticence has been growing decently for
about a century, beginning in 1868 with the decision
to hang people in private instead of making it a public
spectacle.” ( K oestleb & R o l p h , H anged by t h e N ec k
(1961) 11-12.

Camus makes the point vividly: “The man who enjoys his
coffee while reading that justice has been done would spit
it out at the least detail.” C a m us 187.

In candor, we must say that this question of presenting
the reality of capital punishment to the Court has given
us deep concern in the writing of this brief. We would
consider it both logically and legally absurd for the Court
to deliberate the question whether Edward Boykin’s death
was a cruel and unusual punishment in terms of such
decorous abstractions as “capital punishment” and “the
death penalty.” For a while we were inclined to append
to the brief at the least a few descriptions of the methods
of American executions by electrocution and by gas. (Lest
the description just given by Koestler be thought wide of
the mark, it should be recalled that the Royal Commission
in 1953 recommended that England retain hanging as a
means of legal execution, because it was more humane and
certain than the American methods.27) But, as we prepared
the materials for the appendix, we realized that their
inclusion here would certainly cause us to be charged with
sensationalism and an appeal to passion and repulsion.
Such is the character of this institution of killing men
that it forces one who attacks it legally either to describe
with particularity what he is attacking, and be bitterly
resented, or to keep silent about it, and risk being mis
understood. Finally, we have decided to join in the general
“decent reticence,” and to do no more than provide the
Court with citations to descriptions of the methods of

27 R oyal Commission on Capital P unishm ent 1949-1953, Re
port (H.M.S.O. 1953) [Cmd. 8932] [hereafter cited as R oyal
Commission] 246-261, particularly at 256.

executions.28 Our hypothetical scholar would read these
materials and he would conclude, with Dr. Louis J. West,
that:

“The killing of a helpless captive is a brutally de
grading experience. If only those who have partici
pated in an execution could vote on the death penalty,
it would be abolished tomorrow.” (West, at p. 2.)

(5) This last observation leads naturally to a connected
one, the significance of our modern practice of secret
executions, and to Justice Bok’s trenchant question: “Why
is the State so ashamed of its process that it must kill at
dead of night, in an isolated place, and on an unnamed
day?” B ok, S tar W ormwood (1959) 197. Notwithstand
ing that virtually the only argument made in support of
the death penalty in the Twentieth Century is its efficacy
as a general deterrent (an argument which we shall later
note is factually unfounded),29 the men killed for deter
rence’s sake today are killed clandestinely, out of public

28 D uffy & H irshberg, 88 Men and 2 W omen (1962) 68-70,
100-106; L awes, L ife and D eath in S ing S ing (1928) 162-190;
M cGehee & H ildebrand, eds., The D eath P enalty (1964) 81-85;
D i Salle, Th e P ower of L ife and D eath (1965) 84-85; E shel-
man , D eath R ow Chaplain (1962) 26-29, 101-104, 159-164;
Chessman, Trial bY Ordeal (1955) 195-202; Testimony of Clinton
T. Duffy, in United States Senate, Subcommittee on Criminal Laws
and Procedures of the Committee on the Judiciary, Hearings on
S. 1760, To Abolish the Death Penalty (unprinted Report of Pro
ceedings, March 20, 1968) [hereafter cited as Hearings], vol. 1,
pp. 34-39.

29 See note 53 infra.

view.30 Camus’ forthright analysis of all that this implies
is hardly refutable:

“As an example and for the sake of security, it would
be wiser, instead of hiding the execution, to hold up
the severed head in front of all who are shaving in
the morning.

“Nothing of the sort happens. The State disguises
executions and keeps silent about these statements and
eyewitness accounts [describing the death scene].
Hence it doesn’t really believe in the exemplary value
of the penalty, except by tradition and because it has
never bothered to think about the matter. . . . A law
is being applied without being thought out and the
condemned die in the name of a theory in which the
executioners do not believe. If they believed in it,
this would be obvious to all. But the publicity not
only arouses sadistic instincts with incalculable re
percussions eventually leading to another murder: it
also runs the risk of provoking revolt and disgust
in the public opinion. It would become harder to exe
cute men one after another, as is done in our country
today, if the executions were translated into vivid
images in the popular imagination. . . . This is why

30 The first American State to abolish public executions was Penn
sylvania, in 1834, see Filler, Movements to Abolish the Death Pen
alty in the United States, 284 A nnals 124, 127 (1952), the year
in which also Great Britain abolished gibbeting by 4&5 Will. IV,
ehap. 26, §§ 1, 2. Public execution terminated in England in 1868,
see Tuttle, Th e Ckusade A gainst Capital P unishm ent in Great
B ritain (1961), 20; and such executions were _ progressively out
lawed in the United States throughout the Nineteenth Century,
B ye, Capital P unishm ent in the United States (1919) 6. The
last public execution in the country seems to have occurred in Ken
tucky in 1936. B arnes & Teeters, New H orizons in Criminology
(3d ed. 1949) 307,

we must approve of the. position of Gambetta, who,
as an adversary of the death penalty, voted against
a bill involving suppression of publicity for executions,
declaring: ‘If you suppress the horror of the spec
tacle, if you execute inside prisons, you will smother
the public outburst of revolt that has taken place of
late and you will strengthen the death penalty.

“Indeed, one must kill publicly or confess that one
does not feel authorized to kill. If society justifies
the death penalty by the necessity of the example, it
must justify itself by making the publicity necessary.
It must show the executioner’s hands each time and
force everyone to look at them—the over-delicate citi
zens and all those who had any responsibility in
bringing the executioner into being. Otherwise, society
admits that it kills without knowing what it is saying
or doing. Or else it admits that such revolting cere
monies can only excite crime or completely upset
opinion.” (C a m us 186-188.)

The relation between this practice of secret executions
and the “evolving standards of decency that mark the
progress of a maturing society,” Trop v. Dulles, supra,
356 II.S. at 101, should be obvious. We hide our execu
tions because we are ashamed to show them, because they
make men sick. To jump ahead for a moment to consid
eration of the matter in constitutional terms, one wonders
whether this Court would sustain today a public execution
as consistent with the Eighth Amendment? We suggest
that it would not; that constitutional law as well as public
sentiment would condemn such barbarous shows. Does
hiding the matter of execution make it any the more con
sistent with our constitutional, and publie standards of
decency ? Our legally untrained scholar would, We think,
conclude with Gottlieb that it does not:

“It is of the greatest significance, I suggest, that
executions are carried out away from the public eye
and that the public spectacle of hangings and behead
ings has been left behind to earlier centuries. This
is evidence that if people were to witness the decay
of the waiting man, to hear his cries and watch his
final struggles, they would be affronted in their con
sciences, and in their standards of human dignity and
decency. Our systematic concealment of executions
creates a strong inference that capital punishment now
falls under our expanded definition of ‘cruelty,’ par
ticularly when we contrast this present custom of
secrecy with the one-time public display of execu
tions.” 31

(6) G-ottlieb speaks of the “decay of the waiting man” ;
and others too have recognized the torment of the thou
sand days on death row. The length of time, of course,
is not what is alone important here—although it is impor
tant.52 Our hypothetical scholar would only have to imag-

31 Gerald H. Gottlieb on Capital P unishm ent (Center for the
Study of Democratic Institutions 1967) 6, reprinted in 72 Case &
Comment (N o. 4 ), 3, 8 (July-Aug., 1967).

32 “The devastating, degrading fear that is imposed on the con
demned man for months or years is a punishment more terrible
than death, and one that was not imposed on the victim.” Camus
200. Compare the comments of Charles Gardner, an inmate of San
Quentin’s death row, reported in the New Y ork Law J ournal,
November 27, 1968, p. 1, col. 4 : “Gardner has been on death row
ten months, waiting, hoping that he could escape the gas chamber.
‘But rather than stay five to eight years on the row, I ’d rather be
dead by gas/ Gardner said. ‘Waiting for it to come is worse than
getting it.’ ”

Of course, the delay in Gardner’s and other eases today is an
incident of our protective system of criminal justice, and a neces
sary incident of the appeals and post-conviction proceedings re
quired by due process. But that makes it none the less tormenting.
Surely, our Constitution could not tolerate capital punishment to
day without due process. The question is whether, with due process
and its necessary incidents, the punishment is cruel and unusual
within the Eighth Amendment.

ine himself in the position of the condemned man for an
hour prior to his execution, in order to appreciate the
cruelty, the intolerable inhumanity, of the event that is
occurring. Dostoyevski, who was actually in that position,
thus described it:

“But the chief and the worst pain may not be in
the bodily suffering but in one’s knowing for certain
that in an hour, and then in ten minutes, and then in
half a minute, and then now, at the very moment, the
soul will leave the body and that one will cease to
be a man and that that’s bound to happen; the worst
part of it is that it’s certain. When you lay your
head down under the knife and hear the knife slide
over your head, that quarter of a second is the most
terrible of all.” D ostoyevsky , T h e I diot (Modern Li
brary, 1935) 20 (original emphasis).

Again, Camus has put the matter in characteristically clear
perspective:

“[In considering the argument from lex talionis]
let us leave aside the fact that the law of retaliation
is inapplicable and that it would seem just as exces
sive to punish the incindiary by setting fire to his
house as it would be insufficient to punish the thief
by deducting from his bank account a sum equal to
his theft. Let us admit that it is just and necessary
to compensate for the murder of the victim by the
death of the murderer. But beheading is not simply
death. It is just as different, in essence, from the
privation of life, as a concentration camp is from
prison. It is a murder, to be sure, and one that arith
metically pays for the murder committed. But it adds
to death a rule, a public premeditation known to the
future victim, an organization, in short, which is itself

a source of moral sufferings more terrible than death.
Hence there is no equivalence. Many laws consider
a premeditated crime more serious than a crime of
pure violence. But what then is capital punishment
but the most premeditated of murders, to which no
criminal’s deed, however calculated it may be, can be
compared? For there to be an equivalence, the death
penalty would have to punish a criminal who had
warned his victim of the date at which he would inflict
a horrible death on him and who, from that moment
onward, had confined him at his mercy for months.
Such a monster is not encountered in private life.”
(Camtjs 199.)

(7) Finally, our scholar would consider the arguments
which are put forward today in support of the death
penalty. These rest for the most part upon the proposition
that death is the most efficacious deterrent which—if used
sufficiently infrequently and within the hiding of prison
walls—a non-totalitarian society can stomach.38 Reading
between the lines, he would come to the obvious conclu
sion of Clarence Darrow: “That capital punishment is
horrible and cruel is the reason for its existence.” Darrow,
A Comment on Capital Punishment, in L aurence, A H is
tory of Capital P unishm ent (1960), xv, xvii. And coming
to his own conclusion, on the basis of all that we have
said above, our scholar would most firmly disagree that
death is a punishment which a non-totalitarian society can
stomach at all.

Aye, but there’s of course the rub. Our hypothetical
student of culture is free to reach his own independent con-

33 See th e exhaustive summary in C a p it a l P u n is h m e n t : M a t e
r ia l R e l a t in g to it s P u r p o s e a n d V a l u e (compiled by Hon. Guy
Pavreau, Canadian Minister of Justice) (Queen’s Printer, Ottawa,
1965) [hereafter cited as P a v r e a u ] 23-28.

elusions about the death penalty in a manner that would
be altogether inappropriate as a principle for decision by
this Court construing the Eighth Amendment. For this
Court does not sit to make the personal views of its Jus
tices the rule of the Eighth Amendment or the Fourteenth;
and, as it has often said, in matters of constitutional adjudi
cation under such broad clauses as Cruel and Unusual
Punishment or Due Process, much deference must be given
by the Court to legislative judgment. See Spencer v. Texas,
385 U.S. 554 (1967).

We come, therefore, to what we think lies at the heart
of the question whether Edward Boykin’s sentence of death
is a constitutionally forbidden cruel and unusual punish
ment. That is a dilemma which is inherent in the Eighth
Amendment. It derives from the circumstance that the
Amendment plainly is a restriction upon the legislative
enactment of cruel penalties, as well as upon the judicial
imposition of them. This Court has so held by voiding
statutes under the Cruel and Unusual Punishment Clause.
Weems v. United States, 217 U.S. 349 (1910); Trop v.
Dulles, 356 U.S. 86 (1958) (by a plurality); Robinson v.
California, 370 U.S. 660 (1962). And the force of the
Clause is not limited to prohibition of punishments that
would have turned the stomachs of the Framers in the
Eighteenth Century. “The clause of the Constitution . . ;
may therefore be progressive, and is not fastened to the
obsolete, but may acquire meaning as public opinion be
comes enlightened by a humane justice.” Weems v. United
States, supra, 217 U.S. at 378; see generally id., 369-373.
We repeat the important observation with which Trop v.
Dulles outlawed the hoary penalty of banishment: “The
Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a matur
ing society.” 356 U.S. at 101. -

But surely there lies the most extraordinary difficulty in
a process of constitutional adjudication by which this Court
must subject legislation to the test of enlightened public
opinion, and must judge the validity of a legislature’s
product according to society’s standards of decency. For,
after all, both in constitutional contemplation and in fact,
it is the legislature, not the Court, which responds to public
opinion and immediately reflects the society’s standards of
decency. If the question asked by the Eighth Amendment
really be whether our democratic society can tolerate the
existence of any particular penal law that is on the books,
the Eighth Amendment’s answer will always be that it can
—and for the simple reason that the law’ is on the books of
a democratic society. So either the Eighth Amendment is
not a judicially enforceable restriction upon legislation; or
the Weems-Trop test referring to contemporary public
standards of decency is not a usable measure of the Amend
ment ; or else the question which we have just posed is not
the proper question to which the Amendment and the
Weems-Trop test respond.

As this way of putting the matter suggests, we think
that the question—which at first blush may appear to be the
question presented by Boykin’s attack on Ala. Code, tit. 14,
§ 415 (1959)—is the wrong question. We suggest what we
think is the right one below. For w7e cannot believe that
the Eighth Amendment is not a restriction upon inhuman
penal legislation rightfully enforceable by this Court. Nor
do we believe that the Amendment’s prohibition is re
stricted to drawing and quartering, and similar antiquated
butcheries—nor, on the other hand, that it invokes the un
assisted penological impressions of particular Justices.
The Weems-Trop test is, we submit, the proper one. Com
mon standards of decency in our contemporary society do
set the limits of punishment allowable under the Eighth
Amendment. The problem is how those standards are to

be ascertained, and with regard to what specific question.
We begin with the specific question. When a man such

as Edward Boykin comes before the Court claiming that
the law under which he was sentenced provides for an
unconstitutional cruel and unusual punishment, the ques
tion is not: will contemporary standards of decency allow
the existence of such a law on the books? The question is,
rather: will contemporary standards of decency allow the
execution of the law’s penalty in factf By this we do not
mean that the Court is to review the penalty decision of the
sentencing judge or jury in particular cases. Our concen
tration upon the question whether public conscience will
support the law’s application in fact does not mean to draw
the distinction between general and specific applications of
a penalty. It means to draw the distinction between what
public conscience will allow the law to say and what it will
allow the law to do—between what public decency will per
mit a penal statute to threaten and what it will allow the
law to carry out—between what common revulsion will
forbid a government to put on its statute books as the ex
treme, dire terror of the State (not to be ordinarily, regu
larly or in other than a few freak cases enforced), and what
public revulsion would forbid a government to do to its
citizens if the penalty of the law were generally, even-
handedly, non-arbitrarily enforced in all of the cases to
which it applied.

This last point—regarding general, even-handed, non-
arbitrary application—is critical. For in it lies, we think,
a large part of the need to have a Cruel and Unusual Pun
ishment Clause in the Constitution, and of the need to have
courts enforce it. The government envisaged for this
country by the Constitution is a democratic one, and in a
democracy there is little reason to fear that penal laws will
be placed upon the books which, in their general applica-

tion, would affront the public conscience. The real danger
concerning cruel and inhuman laws is that they will be en
acted in a form such that they can be applied sparsely and
spottily to unhappy minorities, whose numbers are so few,
whose plight so invisible, and whose persons so unpopular,
that society can readily bear to see them suffer torments
which would not for a moment be accepted as penalties of
general application to the populace.

Herein is found the difference between the judgment
which the legislator makes, responding politically to public
conscience, and the judgment which a court must make
under the obligation which the Eighth Amendment imposes
upon it to respond rationally to public conscience. A leg
islator may not scruple to put a law on the books whose
general, even-handed, non-arbitrary application the public
would abhor—precisely because both he and the public
know that it will not be enforced generally, even-handedly,
non-arbitrarily. But a court cannot sustain such a law
under the Eighth Amendment. It cannot do so because
both the Amendment itself and our most fundamental prin
ciples of due process and equal protection forbid American
governments the devices of arbitrariness and irregularity
—even as a sop to public conscience.

To put the matter another way, there is nothing in the
political process by which public opinion manifests itself
in legislated laws that protects the isolated individual from
being cruelly treated by the state; and public conscience
often will support laws enabling him to be so mistreated,
provided that arbitrary selection can be made in such a
fashion as to keep his numbers small and the horror of his
condition mute. Legislators neither must nor do take ac
count of such individuals. But it is the precise business
of courts to take account of them, and to disallow under
the Eighth Amendment the application to them of penalties
so harsh that public conscience would be appalled by their
less arbitrary application.

We shall develop this theme more fully, in the pages that
follow, with regard to the death penalty. But we have said
enough, at this point, to enable us to state our major sub
mission on behalf of Edward Boykin. His sentence of death
for simple robbery is, we think, a cruel and unusual punish
ment because it affronts contemporary standards of de
cency, universally felt, that would condemn the use of death
as a penalty for the crime of robbery if such a penalty were
uniformly, regularly, and even-handedly applied either to
all robbers or to any non-arbitrarily selected sub-class of
robbers.

One may take any rational standard one wishes for selec
tion among the perpetrators of the crime of simple robbery,
apply it fairly, and imagine the execution of all the robbers
who fall within the class. Since there were 202,053 robberies
known to the police in the United States last year,84 we
assume that our rational selection standard would net us
at least a hundred robbers for the year—say, exactly one
hundred. Imagine, now, their electrocutions and gassings
in a single year. The number we have hit upon proves to
be, as we shall see, four times the number of robbers actu
ally executed in the United States during the thirty-eight
years between 1930 and 1967. It is twelve and a half times
the number of robbers actually executed in the eighteen
years between 1950 and 1967. If these one hundred robbers
were actually executed in the year 1968, we submit it is
palpable that the public conscience of this Nation would be
profoundly and fundamentally revolted, and that the death
penalty for robbery would be abolished overnight for the
atavistic horror that it is. Our reasons for this submission
follow. First we pause for one additional paragraph to
make our legal point clear.

34 United States D epartment of J ustice, F ederal B ureau of
I nvestigation, Uniform Crime R eports (Crime in the United
States) , 1967 (released August 27, 1968), p. 60.

We disagree not with the reasoning process, hut rather
with the factual premise, of a statement made by this Court
ten years ago in Trop v. Dulles, supra, 356 U.S., at 99:

“Whatever the arguments may be against capital
punishment—and they are forceful—the death penalty
has been employed throughout our history, and, in a
day when it is still widely accepted, it cannot be said
to violate the constitutional concept of cruelty.” (Em
phasis added.)

We think that today it is simply not correct that the death
penalty is “still widely accepted.” 36 We speak, for the
reasons which we have just stated in detail, not of its ac
ceptance on the pages of the statute books, but of its ac
ceptance in actual usage—and of such acceptance as it does
not illegitimately obtain by being irregularly and arbitrarily
applied. Far from being “widely accepted,” the death pen
alty today is with rare public unanimity rejected and re
pudiated—particularly for such crimes as robbery. We
proceed next to demonstrate this point and to develop its
constitutional implications.

(1) All informed observers of the death penalty agree
in describing a world-wide trend toward its disuse that is
nothing short of drastic. See E x it e d N ations 81-82, 96-97;
S e l l ix (1959) 4-14; M a ttic k , T h e U n ex a m in ed D ea th
(1966) [hereafter cited as M a t t ic k ] 5-6; Hartung, Trends
in the TJse of Capital Punishment, 284 A n x a ls 8 (1952);
Sellin, The Inevitable End of Capital Punishment, in S e l l in ,
C a pita l P u n is h m e x t (1967) 239-240; Bedau, Death Sen
tences in New Jersey 1907-1960, 19 R utgers L. R ev . 1, 9-11
(1964). There are probably fewer legal executions per year

35 Apart from this observation in Trop, no decision of the Court
stands in the way of holding Boykin’s death sentence invalid under
the Eighth Amendment. Wilkerson v. Utah, 99 U.S. 130 (1878),

in the entire world today than the number estimated
to have occurred each year in London and Middlesex County
alone during the reign of Edward VI. See Patrick, The
Status of Capital Punishment: A World Perspective, 56
J. Cb im . L., Cb im . & P ol. Sgi. 397, 408 (1965) [hereafter
cited as Patrick']. Although Patrick reports more than one
hundred capital crimes on the statute hooks of 107 different
nations, id., at 406-407, “nearly all of the crimes which result
in actual execution are murder in some form, whether as
sassination, premeditated murder or felony murder. In
fact, of the 1,033 reported executions [for the period 1961-
1965], some 929 appear to have been for murder.” U n ited
N atio n s 97.

In the United States, the decreasing trend of executions
has been especially dramatic. The National Crime Commis
sion recently noted that:

“The most salient characteristic of capital punishment
is that it is infrequently applied. . . . [A]ll available
data indicate that judges, juries and governors are
becoming increasingly reluctant to impose or authorize

and In re Kemmler, 136 U.S. 436 (1890), do state, respectively,
that shooting and electrocution as forms of execution are not cruel
and unusual. The statements in both cases are dicta: no Eighth
Amendment point was presented in Wilkerson, and the Eighth
Amendment issue was put out of the ease in Kemmler by the now
obsolete holding that the Eighth Amendment did not apply to the
States. In both cases, the Court’s attention was focused upon the
manner, not the propriety, of inflicting death; the latter question
appears not to have been considered by the parties or the Justices.
And, finally, the cases are three quarters of a century old, while
the Eighth Amendment is, as the Court said in Weems v. United
States, 217 U.S. 349, 378 (1910), “progressive.”

McElnaine v. Brush, 142 U.S. 155 (1891), and Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459 (1947), also were concerned with
particular incidents of the death penalty, not its essential permis
sibility under the Eighth Amendment. The former case involved a
challenge to solitary confinement prior to execution; the latter, a
challenge to re-execution after the first attempt to kill Francis
failed.

th e carrying out o f a death sentence.” ( P r esid en t’s
C o m m issio n on L aw E n fo r c e m e n t and A d m in istra tio n
of J u s t ic e , R eport ( T h e C h a llen g e of Cr im e in a
F r ee S o ciety ) (1967) 143.)

The extent to which this is true appears upon inspection of
the highly reliable figures on executions maintained by the
Federal Bureau of Prisons since 1930. Its latest cumulative
report shows that 3,859 persons were executed under civil
authority in the United States between 1930 and 1967.
U n it e d S tates D e pa r t m e n t of J u st ic e , B urea u of P riso n s ,
N ational P riso n er S ta tistic s , No. 42, Executions 1930-1967
(June 1968) [hereafter cited as NPS (1968)], p. 7. Of these
3,859, only 191 were executed between 1960 and 1967; only
25 during the years 1964-1967. Ibid. The trend is shown
quite adequately by setting out the figures for the number
of executions during each of the following representative
years:

Total Number of Executions
in the United States

1930 — 155
1935 — 199
1940 — 124
1945 — 117
1950 — 82
1955 — 76
1960 — 56
1961 — 42
1962 — 47
1963 — 21
1964 — 15
1965 — 7
1966 — 1
1967 — 2

During the calendar year 1968, there will be no executions
in the United States.

It is interesting to note the geographic distribution of the
executions. (We shall return later to the racial figures.)
Of the 3,859 persons killed since 1930, 33 were executed by
the federal government; 608 by nine northeastern States;
403 by twelve north-central States; 509 by thirteen western
States; and 2,306 by sixteen southern States and the District
of Columbia. Since 1960, the corresponding figures for 191
executions are as follows: federal—1; northeastern States
—17; north-central States—21; western States—48; south
ern States and D.C.—104. NPS (1968), pp. 8-9. As of
December 31, 1967, there were 435 men on death row
throughout the entire country. Two of these were federal
prisoners; 62 were in the northeastern States; 55 were in
the north-central States; 91 were in the western States; and
225 were in the southern States and D.C. Id., pp. 22-23.

Of the 3,859 persons executed between 1930 and 1967,
3,334 died for the crime of murder, 455 for the crime of
rape, and only 70 for other crimes. Id., p. 7. Twenty-five
of these seventy died for robbery-like crimes, usually ag
gravated forms of robbery. Id., pp. 10-11.36 Two of the 25
were executed by the federal government; the remaining
23, by six southern States. Ibid. Alabama has executed
five men for robbery since 1930. Ibid.

There have been only two executions for robbery-like
crimes in the United States since 1960: one in that year,

36 The figure given at id., p. 7, n. (a), “23,” is incorrect. Con
cerning the robbery-like crimes for which death may be inflicted in
the. United States today, see note 54 infra.

and one in 1962.” Of 85 men sentenced to death in 1967,
only one received that sentence for a robbery-like crime.
NTS (1968), p. 13. Of the 435 men on death row as of
December 31, 1967, only four were there for robbery-like
crimes. Ibid. These four came from two southern States:
Alabama and Texas. Id., pp. 22-23.

(2) We summarize our conclusions from the available
data as follows: Actual use of the death penalty throughout
the world is on the decline; and, in the United States,
precipitously on the decline. In this country, sentences of
death and executions are predominately a southern phenom
enon. Sentences of death and executions for other crimes
than murder are virtually exclusively a southern phenome
non.88 Since 1960, at the least, executions in the United
States for any crime have been rare. During the last few
years they have been freakishly rare. Executions for
robbery-like crimes in the United States have been freak
ishly rare since 1930. In the nine years from and including
1960 until today, there were two of them. At the last re
ported count, four men in the Nation were on death row
for crimes in the nature of robbery: Edward Boykin and
three others. Boykin alone was on the row for simple rob
bery.39

87 These two executions are reflected in Bedau 96, 108. That
there have been no others since 1960 is established by examination
of the yearly National Prisoner Statistics Bulletins on Executions
since that year.

38 Of 525 persons executed between 1930 and 1967 for crimes
other than murder, 482 were executed in sixteen southern States
and the District of Columbia. NPS (1968), pp. 10-11. Of 78 per
sons on death row as of December 31, 1967 for crimes other than
murder, 69 were in the same sixteen southern States. Id., pp. 22-23.

39 The three others were on death row in Texas, which has not
punished simple robbery capitally in this Century.

(3) But what do these almost incredible rarities in the
use of capital punishment imply for the constitutional
question before the Court! In the first place, they obviously
imply—in the language of Trop v. Dulles, supra—that capi
tal punishment is not “still widely accepted” in contempo
rary America. Recently, this Court cited public opinion
polls indicating that less than half of the American people
believe in the death penalty. Witherspoon v. Illinois, 391
U.S. 510, 519-520 (1968). The value of such polls is very
slight as a gauge of the standards of decency to which the
Eighth Amendment bids this Court look. This is so be
cause opinions tapped in this fashion are notoriously
fickle ;40 and also because the citizen who deals with a poll-
taker—-like the legislator who puts or maintains a capital
statute on the books41—can have his cake and eat it too. He
can afford to approve the principle of killing because in
practice the persons selected to die will be so few as to go
unnoticed. The real measure of American moral attitudes
about the death penalty is reflected in what this Nation of
200 million people does. What it has done, in the years
1966-1968 is to execute three people—none for robbery.

Of course, stays of execution and state and federal post
conviction proceedings on behalf of condemned men affect
these figures, but not very much. At the end of 1967, there
were only 435 men on death row, notwithstanding the near
cessation of executions since 1964. At the same date, there
were only four men on death row for robbery-like crimes,
notwithstanding America has executed no one for such a

40 “If the last victim happens to arouse pity—a feeble-minded
boy for instance, unhinged by the movies, or a mother of two
children, half-crazed by gin and jealousy—up go the ‘nays’ of
mercy like a flight of doves; if he is a cool customer like Christie,
up go the ‘ayes’ like a swarm of vultures.” K oestler 163.

41 See pp. 38-40 supra.

crime since 1962. Plainly, the processes of American justice
through which the conscience of a people may he glimpsed
are sending very, very few men onto death row, and taking
most of them off again before execution day. What Ameri
can acceptance of the death penalty now boils down to is
that America can stomach a few legal killings a year.

(4) One may look at these figures from another direction
as well. No one knows or can estimate accurately how many
convictions of capital crimes are returned in the United
States yearly. But we do know that thirty-nine States, the
District of Columbia, and the federal jurisdiction all retain
on their books statutes of general applicability punishing
one or more offenses with death. In some States, half a
dozen or more crimes may be so punishable. (Appendix A
to this brief sets out the penal provisions of the several
States carrying the death penalty.) Yet, with all this capi
tal armament in the arsenal of a Nation of enormous and
burgeoning population, with a growing crime rate and a
going crime scare, only a few, rare men are sentenced to
death and fewer executed. This phenomenon reflects, we
suggest, an overwhelming national repulsion against the
penalty of death. Such a repulsion is all the more striking
when one takes into account: (a) that for the past several
years the country has undergone one of the most intense
of its recurring periods of public agitation about and fear
of crime; (b) that for a number of years there have been so
few executions as to provide almost no focus for the mobili
zation of public sentiments against the death penalty;42 (c)
that during these years, and many more before them,
American executions have been conducted in secret, their
most horrible aspects carefully concealed from public view;
(d) that the death penalty is sponsored by the State (in

42 See B edatj 23.

most jurisdictions), publicly approved by State officials,43
and supported by claims prevalent in law-enforcement
quarters44 (although quite without basis in fact45) that the
penalty has unique penological values, particularly as a
deterrent. It strongly appears, we think, that even under
the most favorable conditions for capital punishment—with
the vices of the death penalty concealed and its virtues in
accurately extolled—the American conscience has repudi
ated it hands down.

(5) Of course, the penalty remains on the statute books.
But is it not obvious, as Warden Lawes observed long ago,
that it does so only because of the rarity with which it is
applied in fact?

“ What would be the attitude of the American people
if by good or ill circumstance the ten thousand men and
women who in any one year commit our murders and
manslaughters in these United States, would all be
convicted of murder, sentenced to death, and that pun
ishment actually inflicted?’ What, indeed, but an al
most universal cry for abolition?” (L aw es, T w en ty
T housand Y ears in S in g S in g (1932) 306-307.)

It is, certainly, a matter of history that public acceptability
of the death penalty has been maintained only by giving up
its mandatory form and enacting statutes allowing jury or

43 “The primary support today for the death penalty comes from
law enforcement groups, that is, from the police and from prosecu
tors.” Bedau 120. See also note 53, para. (3), infra.

44 J. Edgar Hoover’s several releases on the subject of the death
penalty are widely publicized examples of these claims. They are
reprinted from the F.B.I. Law Enforcement Bulletin and the Uni
form Crime Reports in B edau 130.

45 See note 53 infra.

court discretion in capital sentencing.46 The discretion
given by these statutes is wholly arbitrary, as we shall see
in Part III, infra, of this brief. And the evidence is over
whelming that the discretion has been used arbitrarily.47
Whatever acceptability the death penalty may have today,
then, appears to be purchased by both legal and practical
concessions to arbitrariness.

(6) We have already sketched, at pp. 38-40 supra, the
general reasons why we believe that a legislated penalty
cannot survive Eighth Amendment scrutiny if its accept
ability to public conscience rests on such concessions. We
shall develop the point further below, with specific refer
ence to the death penalty, after we state here the reasons
for our assertion that the penalty is in fact arbitrarily ap
plied.

The very rarity of death sentences and executions, cer
tainly, gives rise to a strong inference of arbitrariness,
since it is virtually impossible to conceive non-arbitrary
standards by which the very few men chosen to die in
America should have been singled out from the enormous
class of their death-eligible peers. That inference is height
ened by the fact that the selective judgments made at the
three most critical stages of a capital proceeding—the prose
cutor’s decision whether to seek the death penalty, the
jury’s decision whether to impose it, and the governor’s

46 There are very few crimes in the United States today which
carry a mandatory death penalty, and those few are for the most
part of the obscure sort under which no one is ever charged (trea
son, in several States; perjury in a capital case, etc.) See B edatt
48-52. And see Hartung, Trends in the Use of Capital Punishment,
284 A nnals 8 (1952); Knowlton, Problems of Jury Discretion in
Capital Cases, 101 U. P a. L. R ev. 1099 (1953). Outside the United
States, also, mandatory capital punishment is rapidly being re
placed by grants of discretion. United N ations 13, 82, 87.

47 See the succeeding paragraph.

decision whether to commute it—are all made without the
slightest pretense of standards or guidelines. Indeed, the
entire course of a capital proceeding is attended by proce
dures, common to virtually all American jurisdictions, that
tend to make its rational disposition incomparably difficult.
See note 6 supra.

The result is what one might suspect.

“Of all the uncertain manifestations of justice, capi
tal punishment is the most inequitable. It is primarily
carried out against the destitute, forlorn and forgotten.
. . . Members of racial and cultural minority groups
suffer most. The hundreds of extraneous factors, in
cluding geography, that decide whether a convicted
man will actually live or die, makes capital punishment
a ghastly, brainless lottery.” (West, p. 2.)

One may identify several dimensions of arbitrariness here.
First, there is the simple matter of fluke—of baseless, ran
dom choice in the matter of life or death.

“A small and capricious selection of offenders have
been put to death. Most persons convicted of the same
crimes have been imprisoned. Experienced wardens
know many prisoners serving life or less whose crimes
were equally, or more atrocious, than those of men on
death row.” (Statement by Attorney General Ramsey
Clark, Before the Subcommittee on Criminal Laws and
Procedures of the Senate Judiciary Committee, on S.
1760, To Abolish the Death Penalty, July 2, 1968, De
partment of Justice Release, p. 2.)

Accord: L aw es, T w e n t y T ho u sa n d Y ears in S in g S in g
(1932) 302, 307-310; D u f f y & H irsh berg , 88 M e n and 2

W o m en (1962) 254-255; Testimony of Clinton T. Duffy,
in Hearings, vol. 1, p p . 44-44A.48 And see B edau 410-411.

Second, “the death penalty . . . almost always hits the
little man, who is not only poor in material possessions but
in background, education, and mental capacity as well.
Father Daniel McAlister, former Catholic chaplain at San
Quentin, points out that The death penalty seems to be
meant for the poor, uneducated, and legally impotent of
fender.” D u eey & H ib sh b er g , op. cit. supra, 256-257. See
the testimony of former Governor Michael Di Salle, in
Hearings, vol. 1, pp. 14-16; see also note 8, supra.

Third, there is persuasive evidence of racial discrimina
tion in the selection of the men who will die. This is gen
erally difficult or impossible to prove in judicially cognizable
ways. But it is strongly suggested by the National Prisoner
Statistics;49 it has been borne out in a number of discrete

48 “I have often said, and I repeat here, that I can take you into
San Quentin Prison or to Sing Sing, Leavenworth or Atlanta Pri
sons and I can pick out many prisoners in each institution serving
life sentences or less, and can prove that their crimes were just as
atrocious, and sometimes more so, than most of those men on the
row.”

49 The following are the total number of persons executed between
1930 and 1967 (3,859), broken down by offense and race, as they
appear in NPS (1968), p. 7:

Murder Eape Other Total
White 1664 (49.9%) 48 (10.6%) 39 (55.7%) 1751 (45.4%)
Negro 1630 (48.9%) 405 (89.0%) 31 (44.3%) 2066 (53.1%)
Other 40 ( 1.2%) 2 ( 0.4%) 0 ( 0.0%) 42 ( 1.1%)
Total 3334 (100%) 455 (100%) 70 (100%) 3859 (100%)

Between 1930 and 1967, there were 25 executions in the United
States for robbery-like crimes. The federal government executed
two white men; Kentucky executed three; and Oklahoma, one.
Nineteen Negroes were executed for these crimes: six in Georgia;

and limited, but carefully done studies ;60 and it has seemed
apparent to responsible commissions and individuals study
ing the administration of the death penalty in this country.61

In 1965, amicus Legal Defense Fund determined to make
a more refined and systematic study of the question of
racial discrimination in capital sentencing than had there
tofore been attempted. It requested Dr. Marvin E. Wolf
gang, Chairman of the Department of Sociology at the
University of Pennsylvania, one of the country’s most emi
nent criminologists, to conduct an investigation of the in
fluence of race upon sentencing for the crime of rape in
those States where rape is punishable by death. Dr. Wolf-

five in Alabama; three in Mississippi; three in Texas, and two in
Kentucky. Id., pp. 10-11.

The following is the breakdown of the 435 men reported under
sentence of death in the country as of December 31, 1967 (id.,
pp. 22-23) :

White Negro Other Total
Nine northeastern States 29 33 0 62
Twelve north-central States 31 24 0 55
Thirteen western States 68 21 2 91
Sixteen southern States 66 159 0 225
Federal 1 1 0 2
Total 195 238 2 435

50 Johnson, The Negro and Crime, 271 A nnals 93 (1941); Gar-
finkel. Research Note on Inter- and Intra-Racial Homicides, 26
Social F orces 369 (1949); Johnson, Selective Factors in Capital
Punishment, 36 Social F orces 165 (1957); Wolfgang, Kelly &
Nolde, Comparison of the Executed and the Commuted Among Ad
missions to Death Row, 53 J. Grim . L., Crim . & P ol. Sci. 301
(1962) ; Bedau, Death Sentences in New Jersey 1907-1960, 19
R utgers L. R ev. 1, 18-21, 52-53 (1964).

61 P resident’s Commission on L aw E nforcement and Admin
istration of J ustice, Report (T h e Challenge of Crime in a
F ree Society) (1967) 143; P ennsylvania, J oint Legislative
Committee on Capital P unishm ent , Report (1961) 14-15• U nited
Nations 32, 98; Bedau 411-413 ; Mattick 5, 17; Hartung, Trends
in the Use of Capital Punishment, 284 A nnals 8, 14-17 (1952);
Bedau, A Social Philosopher Looks at the Death Penalty, 123 A m .
J. P sychiatry 1361, 1362 (1967).

gang’s research covered eleven States during a period of
twenty years, 1945-1965. His findings with respect to the
State of Arkansas are presently before this Court in the
Petition for Certiorari, in Maxwell v. Bishop, O.T. 1968,
No. 622. To summarize them, I)r. Wolfgang found a twenty-
year pattern of racially differential sentencing pursuant
to which Negro defendants convicted of rape—and par
ticularly Negro defendants convicted of the rape of white
complainants—were disproportionately frequently sen
tenced to die. Exhaustive efforts to explain the sentencing
differentials on other grounds than race failed; Dr. Wolf
gang concluded that, in Arkansas, Negroes had been dis-
criminatorily sentenced to death for rape on account of race.

Dr. Wolfgang’s findings for the other States he studied
are neither of record here nor in judicially noticeable
form, so we pretermit discussion of them. Based upon his
testimony relating to Arkansas, the Court of Appeals for
the Eighth Circuit admitted that there were “recognizable
indicators” that “the death penalty for rape may have
been discriminatorily applied over the decades, in that
large area of states whose statutes provide for it,” Max
well v. Bishop, 398 F.2d 138, 148 (1968). The study pro
vides grounds for “suspicion . . . with respect to southern
interracial rape trials as a group over a long period of
time.” Id., at 147. These conclusions are sufficient for our
present purposes.

(7) Of course, what is true for Arkansas or for the
South as a whole may not be true for Alabama, and what
is true for rape may not be true for robbery. The execu
tion figures do show a remarkable similarity in the racial
breakdown of men put to death in sixteen southern States
as a group and in Arkansas and Alabama, and for rape
and for robbery:

Executions in the South, 1930-196752

Rape Robbery Murder Other Total

Sixteen
Southern

W hite Negro W hite Negro W hite Negro W hite Negro W hite Negro

States 43 398 4 19 585 1,231 5 11 637 1,659

Alabama 2 20 0 5 26 80 0 2 28 107

Arkansas 2 17 0 0 25 73 0 0 27 90

Also, the procedure by which the life-death sentencing
choice is principally made, unfettered jury discretion, is
the same throughout the South and in Arkansas and Ala
bama, for both rape and robbery. From these circum
stances, one might infer that if the opportunity it gives
for racial discrimination is being seized upon in rape cases
throughout the South, it is also seized upon in robbery
cases in Alabama. But we are quick to admit that this
is inference; and that in Boykin’s case, unlike the case of
a Southern Negro sentenced to die for rape, strict scientific
proof of racial discrimination is hard to come by.

The reason for this is not that there is no discrimination,
but that—as the figures in the chart above reveal—the
total number of persons sentenced to death for robbery
in any State (or even in all the States) is likely too small
for reliable statistical analysis. Obviously, a State can
discriminate racially and not get caught at it if it kills men
only sporadically, not too often. By being arbitrary in
selecting the victims of discrimination, a State can get
away with both arbitrariness and discrimination. Or, to
put the matter another way, if a State invokes a par
ticular penalty sufficiently rarely so that no regular pat
tern of its use develops, the State must be acting arbi
trarily; it may be acting discriminatorily; it likely will be

62 NPS (1968), pp. 10-11.

acting in a fashion such that the penalty falls most harshly
on the poor and disadvantaged; but it surely will be acting
in a way that escapes the safeguards of the Constitution,
unless the Eighth Amendment forbids. Equal Protection
and Due Process provide no judicially usable devices to
protect the individual from the arbitrariness of the freak
ishly rare, harsh penalty. This is all the more reason, we
believe, for application of the constitutional guarantee
against cruel and unusual punishments.

(8) But there are other consequences, as well, of the
freakishly rare use of a harsh criminal penalty. We have
pointed out above that such use escapes not only meaning
ful control under the constitutional guarantees of Equal
Protection and Due Process; it escapes also the fair
scrutiny of public conscience, with its attendant pressure
to keep the legislature acting decently. A public can easily
bear the rare, random occurrence of a punishment which,
if applied regularly, would make the common gorge rise.
It seems to us that this is just the kind of penalty at
which a prohibition of cruel and unusual punishments must
aim.

The unusual character of the death penalty for robbery
permits public and political acceptance of its cruelty, but,
for that very reason, requires judicial condemnation under
the Eighth Amendment. Rare and arbitrary usage which
evades the public conscience politically demands the super
vision by the public conscience, speaking through the
courts, which the Eighth Amendment promises. This is
the more true because, we think, rare and arbitrary usage,
itself affronts “the dignity of man,” Troy v. Dulles, supra,
and those cherished principles of fair and regular, non-
arbitrary treatment of the citizen which the Eighth Amend
ment, no less than the Fourteenth, supposes.

The coupling of “cruel” with “unusual” punishments is
no logical accident within the Amendment. When harsh
penalties are used unusually, they inevitably become ar
bitrary; and arbitrary use of harsh punishments is cruel.
What would this Court say, under the Eighth Amendment,
of an Alabama statute that condemned convicted robbers
to play Russian roulette with a thousand-chambered re
volver, or to draw long straws for electrocution, one in
every thousand to die? In actuality, of course, this is
precisely what Alabama has done, and Edward Boykin
has drawn the long straw.

(9) It is also important, we think, that the rare, un
usual, arbitrary use of a harsh penalty operates to deprive
it of any functional place in the rational scheme of a
state’s penal law. Punishment used in this manner ceases
to be an instrument of public justice or of reasoned penal
policy, and hence it ceases to have any claim to legitimacy
that might be set off against the commands of the Eighth
Amendment. As it is, capital punishment generally can
be shown to have no particular efficacy, in achieving the
legitimate aims of criminal law, that less harsh penalties
do not have.63 If it has any such efficacy with regard to

63 The legitimate aims of the criminal law are (1) moral rein-
foreeement or reprobation, (2) isolation, reformation, rehabilita
tion of the offender, and (3) deterrence. “Modern penological
thought discounts retribution in the sense of vengeance.” R oyal
Commission 17. Accord: Williams v. New York, 337 U.S. 241, 248
(1949); Morrissette v. United States, 342 U.S. 246, 251 (1952) ;
People v. Lone, 53 Cal.2d 843, 856-857 n.3, 350 P.2d 705, 713 n.3
(1960) ; People v. Oliver, 1 N.Y.2d 152, ----- , 151 N.Y.S.2d 367,
373, 134 N.E.2d 197, 201-202 (1956). So also must the Eighth
Amendment discount retribution in the sense of vengeance; for
the propriety of vengeance, if recognized, would authorize all cruel
and unusual punishments.

(1) Moral reinforcement or reprobation doubtless requires that
the most serious crimes be punished most seriously. But, obviously,

the crime of simple robbery, Alabama alone among the

“Grading punishments according to the severity of the crime does
not require that the upper limit of severity be the death penalty.”
B edau 268. The reprobation function, therefore, hardly needs or
warrants capital punishment. See Aneel, The Problem of the
Death Penalty, in Sellin , Capital P unishm ent (1967) 3 ,16-17,19.

(2) “ [R] eformation . . . can have no application where the
death penalty is exacted.” R oyal Commission 18. As for isola
tion, the evidence is clear and overwhelming that, for no class of
criminals, is death required to render them socially safe. Lesser
alternatives are ample. Sellin (1959) 69-79; K oestler 144-152;
Bedau 395-405; Bedau, Death Sentences in New Jersey 1907-1960,
19 Rutgers L. Rev. 1, 47 (1964).

This, notably, is the dimension in which Twentieth Century
society differs radically from the society of two hundred or even
a hundred years ago. In earlier times, imprisonment was not a
safe, humane or economically feasible alternative to capital pun
ishment. See 1 R adzinowicz, A H istory op E nglish Criminal
L aw and I ts A dministration F rom 1750 (1948) 31-33; Bedau,
The Courts, The Constitution, and Capital Punishment, 1968 Utah
L. Rev. 201, 232 (1968). Today it is. The conclusion has been
drawn by the Attorney General in these words: “There was a
time when self-preservation necessitated [the] . . . imposition [of
the death penalty]. Later inordinate sacrifices by the innocent
would have been required to isolate dangerous persons from the
public. Our civilization has no such excuse.” Statement by Attor
ney General Ramsey Clark, Before the Subcommittee on Criminal
Laws and Procedures of the Senate Judiciary Committee, on S.
1760, To Abolish the Death Penalty, July 2, 1968, Department of
Justice Release, p. 2.

(3) As for deterrence, there is simply no evidence—despite the
most exhaustive inquiry into the subject—that the death penalty
is a superior deterrent to lesser punishments. See Sellin (1959)
19-63; Sellin , Capital P unishm ent (1967) 135-186, 244-253;
Mattick 8-28; K oestler 48-61,171-178; Calvert, Capital P u nish
ment in the Tw entieth Century (3d ed. 1928) 51-90; B edau
214, 258-343; Bedau, A Social Philosopher Looks at the Death
Penalty, 123 Am. J. P sychiatry 1361, 1362 (1967); Hook, The
Death Sentence, in B edau 146, 147-148, 151. A few law enforce
ment officials and others who support the death penalty sometimes
appear to argue that this proposition is factually debatable. It is
not, as more candid proponents of capital punishment admit. “It
is generally agreed between the retentionists and abolitionists, what
ever their opinions about the value of comparative studies of de
terrence, that the data which now exist show no correlation be-

States has perceived this virtue.64 But we may put aside

tweeiy the existence of capital punishment and lower rates of capi
tal crime.” United Nations 123. Every serious inquiry into the
death penalty has accepted this conclusion. United Nations 55-
58, 115-119; R oyal Commission 18-24, 58-59, 328-380; P resident’s
Commission on Law E nforcement and A dministration of J us
tice, Report (T h e Challenge of Crime in a F ree Society)
(1967) 143; New York State, Temporary Commission on Revi
sion of th e P enal L aw and Criminal Code, Special Report on
Capital P unishm ent (1965) 2; P ennsylvania J oint Legislative
Committee on Capital P unishm ent , R eport (1961) 9, 20-29;
F avreau 36-37; and see the debates collected in Sellin , Capital
P unishm ent (1967) 55-104, and in F avreau, passim.

Significantly, wherever serious official inquiries have found some
support for the thesis that capital punishment may have greater
deterrent efficacy _ than imprisonment, that support has been found
in the impressionistic opinions of police, prosecutors and other law
enforcement officials, unsustained by objective evidence. See Can
ada, J oint Committee of the Senate and H ouse of Commons
on Capital P unishm ent , Report (1956) paras. 29-33, 43-52; New
J ersey, Commission to Study Capital P unishm ent , R eport
(1964) 8-10; F avreau 4, 23. The Royal Commission also gave
some weight to such impressionistic opinions, while explicitly rec
ognizing that there was no objective evidence behind them. R oyal
Commission 18-24. Interestingly, corrections personnel appear very
preponderately to believe that capital punishment has no particu
lar deterrent efficacy. D uffy & H irschberg, 88 Men and 2 W omen
(1962) 257; Testimony of Clinton T. Duffy, in Hearings, vol. 1,
pp. 42-45; Thomas, Attitudes of Wardens Toward the Heath
Penalty, in B edau 242.

64 There are nine States which presently provide the death pen
alty as the maximum punishment for some form of robbery. Only
Alabama provides death as the maximum punishment for simple
robbery. Ala. Code, tit. 14, §415 (1959). The other eight States
utilize capital punishment for forms of aggravated robbery. Ga.
Code Ann. §26-2502 (Supp. 1967) (by force or with offensive
weapon); Ky. Rev. Stat. Ann. §433.140 (Supp. 1966) (armed);
Miss. Code Ann. §2367 (1957) (with deadly weapon); Mo. Ann.
Stat. §§560.120, 560.135 (1953) (with deadly weapon); Okla. Stat.
Ann. tit. 21, §801 (1958) (with dangerous weapon); Tenn. Code
Ann. 39-3901 (Supp. 1968) (with deadly weapon); Tex. Pen.
Code art. 1408 (1948) (with deadly weapon); Ya. Code Ann
§18.1-91 (1960) (by force or with deadly weapon); see also
§18.1-90 (armed bank robbery). As a result of a revision of its
penal code this year, Georgia will cease to punish aggravated

the broader question whether—if regularly, fairly, even-
handedly and non-arbitrarily applied—capital punishment

robbery with the death penalty as of July 1, 1969. Ga. Code Ann.
§26-1901 (1968).

(Perhaps it should be noted, for the sake of completeness, that
Kentucky makes capital the offense of assault with intent to rob
while armed with a deadly weapon, Ky. Rev. Stat. §433.150 (Supp.
1966); while in several other states, train robbery is capital, see
Bed ait 44.)

There are sixteen states which punish simple robbery with a
maximum term of ten years or less. Conn. Gen. Stat. Ann. §53-67
(1960) ; Iowa Code Ann. §711.3 (1950) ■ Kan. Gen. Stat. Ann.
§§21-528, -529 (1964) ; Ky. Rev. Stat. §433.120 (1962) ; La. Rev.
Stat., tit. 14, §65 (1951) ; Md. Ann. Code, art. 27, §486 (1957);
Minn. Stat. Ann. §609.24 (1964); N.M. Gen. Stat. §§40A-16-2,
40A-29-3; N.Y. Pen. Law §§160.05, 70.00 (1967); N.C. Gen. Stat.
§14-2 (1953) (see State v. Stewart, 255 N.C. 571, 122 S.E.2J 355
(1961) ); Okla. Stat. Ann., tit. 21, §§797, 799 (1958); Pa. Stat.
Ann., tit. 18, §4704 (1963); S.C. Code Ann. §§16-11, 17-552 (1962)
(see Dukes v. State, 248 S.C. 227, 149 S.E.2d 598 (1966); Vt. Stat.
Ann., tit. 13, §603 (1958); Ya. Code Ann. §18.1-91 (1960) ; Wis.
Stat. Ann. §943.32 (1958).

There are fourteen states and three federal territories which pro
vide a maximum term of between ten and twenty years for simple
robbery. Alaska Stat. §11.15.240 (1962); C.Z. Code, tit. 6, §2361
(1963) ; Colo. Rev. Stat. Ann. §40-5-1 (Supp. 1967); D.C. Code
Ann. §22-2901 (1967) ; Ga. Code Ann. §26-2502 (Supp. 1967)
(also Ga. Code Ann. §26-1901 (1968)); Hawaii Rev. Laws §§306-
8-11 (1955); 111. Ann. Stat., ch. 38, §18-1 (Smith-Hurd 1964);
Mich. Comp. Laws Ann. §750.529 (1968) ; Miss. Code Ann. §2364
(1957); Nev. Rev. Stat. §200.380 (1967); N.J. Rev. Stat. §2A-.141-1
(1937); Ore. Rev. Stat. §163.290 (1967) ; P.R. Laws Ann., tit. 33,
§§851, 853 (1956); S.D. Code §§13.2601-03 (1939) Tenn. Code
Ann. §39-3901 (Supp. 1968); W. Va. Code Ann. §61-2-12 (1966);
Wyo. Stat. Ann. §6-65 (1959).

There are six states which punish simple robbery with a maxi
mum term of more than twenty years. Ark. Stat. Ann. §41-3602
(1964) ; Del. Code Ann., tit. 11, §811 (1953); Ind. Ann. Stat.
§10-4101 (1956); Neb. Rev. Stat. §28-414 (1943); N.H. Rev. Stat.
Ann. §585:18 (1955); Ohio Rev. Code Ann. §2901.12 (1954).

There are also thirteen states which provide a maximum pen
alty of life imprisonment for simple robbery. Ariz. Rev. Stat. Ann.
§13-643 (Supp. 1967); Cal. Pen. Code §§211a, 213 (West 1955);
Fla. Stat. §813.011 (1965); Idaho Code Ann. §18-6503 (1949);
Me. Rev. Stat. Ann., tit. 17, §3401 (1964) (any term of years);

for robbery would serve some valid function that tbe State
of Alabama is constitutionally free to pursue. Used as

Mass. Gen. Laws Ann., ch. 265, §19 (1959); Mo. Ann. Stat. §560.135
(1953); Mont. Rev. Code Ann. §94-4303 (1949); N.D. Cent. Code
§§12-31-07 to -09 (1960); R.I. Gen. Laws Ann. §11-39-1 (1956);
Texas Pen. Code, art. 1408 (1948); Utah Code Ann. §§76-51-1-2
(1953); Wash. Rev. Code Ann. §9.75.010 (1961).

There are twenty-seven States which punish aggravated robbery
with higher maximum penalties than they do simple robbery. As
noted above, eight States provide the death penalty as the maxi
mum punishment for aggravated robbery. Of the remaining
twenty-one States, eight punish aggravated robbery with a maxi
mum punishment of life imprisonment. Colo. Rev. Stat. Ann §40-
5-1 (Supp. 1967) (armed with intent, if resisted, to kill or injure;
wounds or threatens injury with weapon; with armed confederate;
robbery of bus driver); Hawaii Rev. Laws §§ 306-8-11 (1955)
(armed with intent to kill or wound, if resisted; or does wound,
strike, or severely injure); 111. Ann. Stat., ch. 38, §18-2 (Smith-
Hurd 1964) (armed); Ind. Ann. Stat. §10-4101 (1956) (with in
ju ry ) ; La. Rev. Stat., tit. 14, §64 (Supp. 1967) (armed: 1-99
years) ; Mich. Comp. Laws Ann. §750.529 (1968) (armed; aggra
vated assault; serious injury); Ore. Rev. Stat. §163.280 (1967)
(armed) ; W. Va. Code Ann. §61-2-12 (1966) (by strangulation,
beating, or violence to person; by threat of deadly weapon).

The remaining twelve states provide for maximum punishments
for aggravated robbery of terms from twenty to fifty years. Iowa
Code Ann. §711.2 (1950) (25 years: armed with intent to maim
if resisted or confederate so armed; strikes victim); Kan. Gen
Stat. Ann. §21-527 (1964) (21 years maximum: by violence or
fear of immediate in jury); Md. Ann. Code, art. 27, §488 (1957)
(20 years maximum: armed); Minn. Stat. Ann. §609.245 (1964)
(20 years maximum: armed; injures victim); N.M. Gen. Stat.
§§40A-16-2, 40A-29-3 (50 years maximum: armed); N.Y. Pen. Law
§§160.15, 70.00 (1967) (25 years maximum: serious injury; armed;
uses or threatens with weapon); N.C. Gen. Stat. §14-87 (1953)
(30 years maximum: armed); Pa. Stat. Ann., tit. 18, §4705 (20
years maximum: armed or with accomplice; by violence); S.C.
Code Ann. §16-333 (Supp. 1967) (25 years maximum: armed with
deadly weapon); Yt. Stat. Ann., tit. 13, §603 (20 years maximum:
with armed assault) ; Wise. Stat. Ann. §943.32 (1958) (30 years
maximum: armed with dangerous weapon); Wyo. Stat. Ann. §6-66
(1959) (50 years maximum: with deadly weapon).

The. status of capital punishment generally in the United States
is described in Appendix A to this brief. See also B edau 39-52;

Alabama has used it—irregularly, unfairly, unevenly and
arbitrarily—to execute five men in thirty-nine years, capi
tal punishment for robbery palpably has no such valid
function,65

(10) We must conclude, then, that the death penalty for
robbery imposed by Alabama upon Edward Boykin is no
part of the regular criminal-law machinery of the State.
It is a freakish aberration, a rare, extreme act of violence,
visibly arbitrary, probably racially discriminatory—a pen
alty reserved for wholly arbitrary application because, if
it were regularly used against robbers, it would affront
universally shared standards of public decency. Such a
penalty—not Law, but Terror-—is the instrument of totali
tarian government. It is a cruel and unusual punishment,
forbidden by the Eighth Amendment.

NFS (1968), p p . 30-32; 108 C o n g . R e c . 3300-3305, 87th C o n g .,
2d Sess. (March 1, 1962).

It appears that, outside of the United States also, capital pun
ishment for robbery is seldom legally available. In 128 nations
surveyed, Patrick found that 18 had laws punishing some form
of robbery (usually an aggravated form) capitally. Patrick 398-
404, 409. This is a somewhat larger number than reported in
United Nations 41.

66 This is a characteristic of cruel and unusual punishments.
“ [WJhenever social progress outpaces the Law, so that its penal
ties appear disproportionately severe to the public conscience,
juries become reluctant to convict [or to impose the penalty], and
reprieves, instead of being an exceptional act of mercy, become
virtually the rule, so that only a small proportion of the sentences
are actually carried out and the threat accordingly loses its deter
rent effect.” K oestler 36. See Bedau 31, 33, 270; Mattick 16.

III.
The Alabama Procedure Under Which Boykin Was

Sentenced to Die in the Unregulated, Lawless Discre
tion of the Jury Violates the Rule of Law Basic to Due
Process.

We noted in Part II of this brief that the principal
legal device by which Alabama (like most States) permits
the arbitrary administration of capital punishment is un
restricted jury discretion. Our present submission attacks
the constitutionality of the device. The discretion given
Alabama jurors to sentence men whom they convict of
robbery to live or die is absolute. I t is totally unguided,
unprincipled, unconstrained, uncontrolled, and unreview-
able. We invite the Court’s attention, once again, to the
fashion in which the decision to take Edward Boykin’s
life was submitted to the jury. Pp. 13-14, supra. The trial
judge simply gave the jurors two forms—a form for life
and a form for death—and told them: “You can use either
one form or the other when you arrive at your verdict.”
App. 32.

We think there can be no doubt about the unconstitu
tionality of such a procedure. We have made the argument
to the Court before,66 and we urge it again here. Just
last month, it was rejected by the Supreme Court of Cali
fornia by a four-to-three vote. The California opinions
are attached as Appendix B hereto. With deference, we
submit that Justice Tobriner’s dissenting opinion, in which
Chief Justice Traynor and Justice Peters concur, states
the law of the Fourteenth Amendment. It does so with
uncomparable lucidity, and we hope that it will be read
by this Court.

66 See the documents cited in note 7, para. (2), supra.

The issues to which it speaks could not be more impor
tant or more fundamental. For, whatever else “due process
of law” may encompass, it has always been thought to
impose some demand of fundamental procedural regularity
in decision-making, some insistence upon the rule of law,
some adherence to the principle established by Magna
Carta that the life and liberty of the subject should not
be taken but by the law of the land. This Court has long
condemned the sort of vagueness in criminal statutes that
“licenses the jury to create its own standard in each case,”
Herndon v. Lowry, 301 U.S. 242, 263 (1937). See e.g.,
Smith v. Cahoon, 283 TJ.S. 552 (1931); Cline v. Frink
Dairy Co., 247 U.S. 445 (1927); Connally v. General Con
struction Co., 269 U.S. 385 (1926); Winters v. New York,
333 U.S. 507 (1948). The vice of such statutes is not
alone their failure to give fair warning of prohibited con
duct, but the breadth of room they leave for jury arbitrari
ness and the influence of impermissible considerations,
N.A.A.C.P. v. Button, 371 U.S. 415, 432-433 (1963); Freed
man v. Maryland, 380 U.S. 51, 56 (1965); Lewis, The Sit-In
Cases: Great Expectations, 1963 S u p r e m e C ourt R ev iew
101, 110; Note, 109 U. Pa. L. Rev. 67, 90 (1960), including
racial considerations, see Louisiana v. United States, 380
U.S. 145 (1965); Dombrowski v. Pfister, 380 U.S. 479
(1965); Cox v. Louisiana, 379 U.S. 536 (1965), and every
other insidious urging of caprice or prejudice.

Under these decisions, it could scarcely be contended that
an Alabama statute would be valid which provided: “who
ever is found condemnable in the discretion of a jury shall
be guilty of an offense.” Yet we submit that this supposi
tious statute stands no differently in light of the concerns
of the Due Process Clause than the unregulated sentencing
practice under which petitioner was condemned to die. The
statute, it is true, deals with crime, and Alabama’s sentenc-

ing practice with punishment. But a practice that jeop
ardizes the integrity and reliability of the sentencing
process is as unconstitutionl as one that similarly affects
the guilt-determining process. Witherspoon v. Illinois, 391
TT.S. 510 (1968); Mempa v. Rhay, 389 U.S. 128 (1967);
McConnell v. Rhay and Stiltner v. Rhay, 37 U.S. L. Week
3131 (U.S., Oct. 14, 1968). In Witherspoon, 391 U.S. at
521 n. 20, this Court noted that while sentencing choice—
and, in particular, the choice of life or death may be:

“different in kind from a finding that the defendant com
mitted a specified criminal offense, . . . this does not
mean that basic requirements of procedural fairness
can be ignored simply because the determination in
volved in this case differs in some respects from the
traditional assessment of whether the defendant en
gaged in a proscribed course of conduct.”

Traditionally, of course, it may have been thought that
“fair notice” questions were raised by regulations defining
offenses but not by those prescribing punishment. Yet, is it
not apparent that the vice of the “whoever-is-found-con-
demnable” statute has little to do with notice? The statute
is bad not because a man does not know how to behave con
sistently with it, but because, however he behaves, he may he
arbitrarily and capriciously taken by the heels. The precise
vice inheres in unregulated jury discretion to sentence a
convicted robber to life or death. He too may be dealt with
arbitrarily, his life extinguished for any reason or none.
Surely he is, at the same time, under Alabama’s single ver
dict practice, found guilty of a defined crime. That con
viction, however, cannot constitutionally be given the effect
of stripping him of every civil right, including the funda
mental right to due process of law. E.g., Specht v. Patter
son, 386 U.S. 605 (1967).

Giaccio v. Pennsylvania, 382 U.S. 399 (1966), supports, if
it does not compel, the conclusion that unfettered jury dis
cretion in capital sentencing is unconstitutional. What was
at issue there, as here, was a state practice governing dis
position. No “fair notice” problem was involved—except,
of course, the problem, noted by the Court, that it was im
possible for defense counsel at trial to know what issues he
was trying, as it is in a capital case tried to a jury having
limitless sentencing power.57 That decision turned squarely
on the proposition that the Fourteenth Amendment forbade
Pennsylvania to leave its “jurors free to decide, without
any legally fixed standards,” 382 U.S. at 402-403, whether
to impose upon a defendant a rather small item of costs.68
It is not evident why, in the infinitely more significant mat
ter of sentencing men to death, Alabama juries can be per
mitted the same lawless and standardless freedom.

Nor does footnote 8 in the Giaccio opinion blunt the
implications of the Giaccio holding for our present pur
poses. In that footnote, a majority of this Court noted
that it intended to cast no doubt on the constitutionality
of leaving to juries finding defendants guilty of a crime
the power to fix punishment “within legally prescribed
limits.” The precise problem in this case is that there were
no “legally prescribed limits,” in any realistic sense, to

57 The Court noted specifically that the problem of fair notice
was only one of the problems with vague, standardless laws:

“It is established that a law fails to meet the requirements of
the Due Process Clause if it is so vague and standardless that
it leaves the public uncertain as to the conduct it prohibits or
leaves judges and jurors free to decide, without any legally
fixed standards, what is prohibited and what is not in each
particular case.” (382 U.S. at 402-403; emphasis added.)

68 No First Amendment or other federal rights demanding the
special protection afforded by a heightened requirement of statu
tory specificity, see United States v. National Dairy Prods. Corp.,
372 U.S. 29, 36 (1963), were involved in Giaccio.

the jury’s discretion. Further, that footnote speaks to
jury sentencing generally, not capital sentencing.

“It should be understood that much more is involved
here than a simple determination of sentence. The
State . . . empowered the jury in this case to answer
‘yes’ or ‘no’ to the question whether this defendant
was fit to live.” (Witherspoon v. Illinois, 391 U.S. 510,
521 n. 20 (1968).)

Given the imprecision of the sentencing art, even when per
formed by judges, see Tigner v. Texas, 310 U.S. 141, 148-
149 (1940), it may well be that juries can constitutionally
be given some discretion in selecting a smaller or larger
fine, a longer or shorter term of years, particularly where
the range of choice is relatively circumscribed and the
effect of the choice somewhat qualified by parole statutes
and the continuing availability of post-conviction process to
rectify after-discovered mistakes made at the trial. But
the degree of arbitrariness allowed a State is not so liberal
where grave and irremediable punitive exactions are at
stake, see Skinner v. Oklahoma, 316 U.S. 535 (1942); and
none is graver or more irremediable than the sentence of
death by electrocution.

Nor did the Court in Giaccio have before it what has been
presented here: evidence that in fact the sentencing dis
cretion given juries has been exercised arbitrarily. See
Part II, supra, of this brief. We do not hesitate to con
tend that the arbitrary and standardless discretion afforded
Alabama juries constituted per se a deprivation of Boykin’s
constitutional rights. But evidence that abuse has in fact
occurred in its administration—that only five men, all
Negro, have been sent to death for robbery in the past
thirty-eight years in this State—has considerable bearing
on the issue whether a practice challenged on the grounds

of lawlessness tending to abuse is susceptible to that chal
lenge, e.g., YicJc Wo v. Hopkins, 118 TLS. 356 (1886);
Niemotko v. Maryland, 340 U.S. 268 (1951); Hague v.
C.I.O., 307 U.S. 496 (1939); Louisiana v. United States, 380
U.S. 145 (1965).

We do not contend here that the Due Process Clause
forbids entirely the exercise of discretion in sentencing—
even by a jury and even in a capital case. Ways may be
found to delimit and guide discretion, narrow its scope,
and subject it to review; and these may bring a grant of
discretion within constitutionally tolerable limits. Whether
the approach taken by a State such as Nevada, which
makes certain reviewable findings of fact the indispensable
condition of imposing capital punishment (see Nev. Eev.
Stat. §200.363 (1967)); or the approach of California,
which has adumbrated by judicial decision at least some
of the impermissible considerations against which jurors
are to be cautioned (see People v. Love, 53 Cal.2d 843, 350
P.2d 705 (I960)); or that of the Model Penal Code, which
both establishes prerequisite findings and enumerates ag
gravating and mitigating circumstances (see A m erican
L aw I n st it u t e , M odel P e n a l C ode, §210.6 (P.O.D. May 4,
1962), pp. 128-132); or that of the numerous States which
provide plenary review of capital jury sentencing by trial
and/or appellate courts, would be constitutional, is not the
question presented. Concededly, the goals of sentencing
are complex and in designing devices for achieving them
the States must have some tolerance.

But as the issue of petitioner’s sentence was submitted
to the jury in its sole discretion under Alabama procedure,
the attention of the jurors was directed to none of the
purposes of criminal punishment, nor to any pertinent as
pect or aspects of the defendant’s conduct. They were not

invited to consider the extent of harm to the robbery
victims, the moral heinousness of the defendant’s acts,
his susceptibility or lack of susceptibility to reformation,
the extent of the deterrent effect of killing the defendant
“pour decourager les autres.” Cf. Packer, Making the
Punishment Fit the Crime, 77 Harv. L. Eev. 1071 (1964).
They were permitted to choose between life and death upon
conviction for any reason, rational or irrational, or for no
reason at all; at a whim, a vague caprice, or because of the
color of Boykin’s skin. In making the determination to
impose the death sentence, they acted wilfully and unre-
viewably, without standards and without direction. Noth
ing assured that there would be the slightest thread of con
nection between the sentence they exacted and any rea
sonable justification for exacting it. Cf. Skinner v. Okla
homa, supra. To concede the complexity and interrelation
of sentencing goals, see Packer, supra, is no reason to sus
tain a procedure which ignores them all. It is futile to put
forward justification for a death so inflicted; there is no
assurance that the infliction responds to the justification
or will conform to it in operation. Inevitably, under such
a sentencing regime, capital punishment in those few, ar
bitrarily selected cases where it is applied, is both un
justifiable and lawless, and, as shown by Alabama’s record,
pp. 53-54, supra, conventionally imposed only on the mem
bers of minority groups.

We submit that its imposition in the unfettered discre
tion of a jury violates the rule of law that is fundamental
to Due Process.

IV.
Issues Not Presented

Before closing this brief, we think it is imperative to
notice explicitly several issues which, in our judgment, the
Court is not now called upon to decide. We venture with
the utmost deference to identify these issues because of
their extreme importance to the many condemned men
whom we represent. Numerous of these men have stays
of execution granted upon post-conviction petitions raising
the issues. If, as we submit, none of the issues is presented
in this Boykin case, we know that the Court would not want
inadvertently to prejudice their subsequent presentation.
Because of the nature of the issues and their relation to
those briefed herein, there is some danger of this if we are
negligent in failing to bring to the Court’s attention pre
cisely what these issues are.

First, the Court is not now called upon to determine
whether the death penalty is cruel and unusual punishment
for the crime of murder. Most of the men on death row
today are there for murder, and they are presenting to a
number of courts varying contentions attacking their death
sentences under the Eighth Amendment. Some of these
contentions stress the physical and psychological cruelties
of execution, or its indignities; others focus upon the for
tuity and apparent purposelessness of its application ■ still
others press the unnecessary severity of capital punish
ment in view of the alternative means available to the
state for achieving all of the legitimate ends of criminal
sanctioning, either in particular cases or generally. We
note that one of the very convincing points made by counsel
for Boykin is that the death sentence for robbery is con
stitutionally disproportionate. Our own Eighth Amend-

ment argument in support of Boykin takes a different ap
proach. See part II, supra, of this brief. But, if the Court
should see fit to adopt reasoning of proportionality in ap
plying the Eighth Amendment to Boykin’s case, we earn
estly hope that it will make clear what a proportionality
rationale does not imply. Specifically, if the death penalty
violates the Eighth Amendment because it is dispropor
tionately severe for the crime of robbery, that does not
imply that the death penalty is constitutionally acceptable
for the crime of murder.

This is so for at least two reasons. (1) Even were pro
portionality theory the full measure of the Eighth Amend
ment, this Court is not now in a position to determine
whether the death penalty is proportioned to the crime of
murder. The determination that it is disproportioned to
robbery does not necessarily establish that it is propor
tioned to murder; and there are some very good reasons to
believe that it is not. A few reasons are suggested at pp.
33-35, supra, but they can hardly be adequately developed
or considered in a case where the issue is not presented.
(2) In any event, though proportionality be one command
of the Eighth Amendment, it is surely not the sole com
mand of the Eighth Amendment. Court-ordered maiming
is arguably proportioned to the crime of mayhem, but we
have no doubt that maiming would be held to violate the
prohibition of cruel and unusual punishments. So, if the
death penalty is unconstitutional when disproportioned, it
is not thereby constitutional when proportioned. Other
Eighth Amendment principles may yet condemn it.

Second, and in the same vein, the Court is not now called
upon to determine whether the death penalty might be
shown to be a cruel and unusual punishment’ on other
grounds than those urged here, and on another record;
nor to determine the right of a condemned man to make

such a record. In this connection, we note that we have
been seeking in various courts the opportunity for an evi
dentiary hearing at which expert testimony relating to the
actual physical and psychological effects of capital punish
ment might be received, together with similar testimony
relating to the validity of the several state interests usu
ally asserted to justify the state-ordered executions which
have these effects. The refusal of one court to allow us
such a hearing is at issue in one pending petition for certio
rari here. Forcella and Funicello v. New Jersey, O.T. 1968,
No. 947 Misc.

Whatever the disposition of that particular petition, we
would hope that courts will not universally and perpetually
decline to hear constitutionally relevant evidence. But no
such evidence is contained in the remarkably spare Boykin
record, and none was proffered by Boykin’s court-appointed
counsel. We think it important that this be made clear, so
that nothing in the Court’s deliberations here prejudices
the right to offer evidence of the sort described, or pre
judges the constitutional case which could be made by evi
dence.

Third, Boykin’s petition for certiorari presents as a dis
tinct question (number 6 among the Questions Presented)
a claim of racial discrimination in the application of the
death penalty to Alabama Negroes. In Boykin’s brief, the
claim and the evidence supporting it are put forward as
part of his argument that the death penalty, in his case, is
a cruel and unusual punishment. We agree that the appar
ent racial discrimination in the selection of the few, other
wise arbitrarily chosen men sentenced to die for robbery in
Alabama and the handful of Southern States which retain
capital punishment for this crime is highly relevant to the
claim of cruel and unusual punishment, for reasons which
We have developed in Part II, supra, of this brief. Racial

discrimination also appears to us germane to Boykin’s con
tention that unfettered jury discretion in capital sentencing
violates the rule of law fundamental to the Due Process
Clause, as we have shown in Part III, supra.

But these submissions—properly resting upon evidence
of racially differencial sentencing less exact and scientific
than that which would be proffered to support a claim of
discrimination under the Equal Protection Clause—should
not be confused with the latter claim. Judicially noticeable
indications of pervasive racial discrimination in the admin
istration of the death penalty throughout the United States
abound (see pp. 51-53, supra), and are quite legitimately
noticed as matters of “constitutional fact” going to the
Eighth Amendment argument. They would not generally,
and without more, suffice to prove an out-and-out Equal
Protection violation by a particular State, under YicJc Wo
v. Hopkins, 118 U.S. 356 (1886).

Elaborate—and exceedingly expensive—scientific re
search efforts may, however, result in proof which (to
gether with the noticeable publications) amply carries the
day under the Equal Protection Clause. Our Petition for
Certiorari, in Maxwell v. Bishop, O.T. 1968, No. 622, sub
mits that such a case was proved in Arkansas relating to
capital sentencing for the crime of rape. A still more con
vincing case might be made in Alabama with regard to cap
ital rape sentencing. But that evidence is not in this rec
ord. We have pointed out above that—apart from the fact
that its procurement would have been beyond Boykin’s re
sources—scientific analysis of racial patterns for capital
robbery sentencing in Alabama would be virtually impos
sible, by reason of the infinitesimally small number of per
sons sentenced to death for robbery in that State (or any
State) in recent years. This latter circumstance highlights
the force of Boykin’s contention under the Cruel and Un-

usual Punishment Clause; it also makes imperative an ap
preciation of the distinction between the Eighth Amend
ment contention and an Equal Protection claim.

Finally, Boykin’s petition for certiorari presents (as
question number 4 among the Questions Presented) a con
stitutional challenge to the “unitary” or single-verdict
method of trying the issues of guilt and punishment in a
capital case. On a proper record, that question would be a
very substantial one. See the petitions for certiorari in the
Johnson, Mathis and Maxwell cases, cited at note 7, para.
(3), supra.

But the issue is not briefed by counsel for Boykin, for
the reason, we would think, that it is hardly presented on
this record. Boykin pleaded guilty; and, for aught that
appears, the jury trial which followed his plea was for the
sole purpose of fixing punishment. At the most, the guilt
question was tried in a formal sense, on judicial confes
sion.

And so—although, again, Boykin’s case might look dif
ferent on a different record—it is apparent that the present
record raises no question of the constitutionality of trying
guilt and punishment simultaneously in a capital case.
That question will properly arise in a capital case where
guilt is tried.

CONCLUSION

Edward Boykin’s guilty plea was accepted without the
safeguards required by the Due Process Clause. His sen
tence to death for the crime of robbery violates the Eighth
Amendment’s prohibition of cruel and unusual punishment.
The method by which his sentence was determined, in the
unregulated and lawless discretion of the jury, violates
the rule of law fundamental to due process. The judgment
below should be reversed.

Respectfully submitted,

J ack Greenberg
J a m es M . N abrit , TIT
M ic h a e l M e l t sn e r
M elvyn Z arr
J ack H im m e l s t e in

10 Columbus Circle
New York, New York 10019

A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104

Attorneys for the N.A.A.C.P.
Legal Defense and Educational

MEILEN PRESS IN C — N. Y. C. >219

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Boykins v. Fairfield Board of Education Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

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