Aikens v. California Brief of the National Legal Aid and Defender Association as Amicus Curiae

    I n  T he

&uitreut£ (Emtrt of tin' luited States
October T erm , 1971

No. 6 8 - 5 0 2  7

EARNEST JAMES AIKENS, JR.,

vs.
Petitioner,

STATE OF CALIFORNIA,
Respondent.

On Writ of Certiorari to the Supreme Court of California

BRIEF OF THE
NATIONAL LEGAL AID AND DEFENDER ASSOCIATION 

AS AMICUS CURIAE

Marshall J .  H artman 
American Bar Center 
1155 East 60th Street 
Chicago, Illinois 60637 
(312) 684-2727

Counsel for Amicus Curiae 
National L egal A id A nd 
Defender A ssociation

M I D W E S T  L A W  P R I N T I N G  C D . ,  C H I C A G O  6 0 6 0 1 ,  F I N A N C I A L  6 - 3 9 8 B



TABLE OF CONTENTS

PAGE

INTEREST OF AMICUS CURIAE ..........   2

OPINION BELOW ...................................................... 2

JURISDICTION ...........................................................  2

STATUTORY PROVISIONS INVOLVED .............. 3

QUESTION PRESENTED .........................................  3

STATEMENT OF THE CASE ................................  3

ARGUMENT ................................................................  4
The Cruel And Unusual Clause Of The Eighth 

Amendment Is A Dynamic Concept Which Now 
Must Be Applied To Render The Death Penalty 
Unconstitutional .................................................... 4
A. Punishments less severe than the death pen­

alty have been held cruel and unusual under 
the Eighth Amendment .................................. 5

B. The incidence of the death penalty renders it
cruel and unusual ..........................................   8

C. Policy considerations—the effect of the death
penalty upon other aspects of the criminal 
justice system..................................................  9

CONCLUSION ...........................   11



11

L ist Of  A uthorities Cited 

Cases

Dearman v. Woodson, 429 F. 2d 1288 (1970) .............. 7
Ex Parte Wilson, 114 U.S. 417 .................................... 4
Holt v. Sarver, 309 F. Snpp. 362 (1970) ......... ...........  6
Jackson v. Bishop, 404 F. 2d 571 (1968) ...................  5,7
Jordan v. Fitzharris, 257 F. Supp. 674 (1969) ......  6,7,8
Lollis v. New York State Department of Social Serv­

ices, 322 F. Snpp. 473 (1970) .................................. 6
Robinson v. California, 370 TLS. 660 ......................... 4
Tot v. IT. S., 319 U.S. 463, 467 ................... .................  8
Trop v. Dulles, 356 U.S. 86 (1958) ...... .....................  4, 7
Workman v. Commonwealth, 429 S.W. 2d 374, 378

(1968) .......................................................................... 7
Wright v. McMann, 321 F. Supp. 127 (1970) ............ 6

Texts and Reports

Bedau, The Death Penalty in America, Review & 
Forecast XXXV Federal Probation 32, 33, 35 (June,
(1971) .........................    8,10

The Challenge of Crime in a Free Society at 143 .....9,10
Criminal Justice Cases and Comments, Inbau, Thomp­

son and Sowle, Vol. 1, Ch. 5 at 448 ......................... 10
H. Mattick, The Unexamined Death, 7-9, 31 (1963) .... 8
Uniform Crime Reports at 6, 9 (1969) .......... ............  8, 9
45 National Prisoner Statistics at 1 (1969) ................  8



I n T he

Sutprems (Emtrt of %  luitefc States
October T erm , 1971

No. 6 8 - 5 0 2  7

EARNEST JAMES AIKENS, JR.,

vs.
Petitioner,

STATE OF CALIFORNIA,
Respondent.

On Writ of Certiorari to the Supreme Court of California

BRIEF OF THE
NATIONAL LEGAL AID AND DEFENDER ASSOCIATION 

AS AMICUS CURIAE

The National Legal Aid and Defender Association files 
this brief Amiens Curiae pursuant to the written consent 
of the parties.

INTEREST OF AMICUS CURIAE.

The National Legal Aid and Defender Association is 
an organization composed of over 1,000 legal aid and de­
fender offices in America. In addition 3,000 individual 
members, most of whom are private practioners, are 
numbered among their ranks. The main concern of the



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organization is with the rights of the indigent in our 
legal and criminal justice systems.

The Defender offices elect a nine man defender com­
mittee composed of public defenders from Florida to 
California to set policy and supervise the Defender com­
ponent of the organization. On April 28, 1971 the De­
fender Committee, meeting in New Orleans, unanimously 
adopted a resolution condemning the use of capital pun­
ishment. Among the grounds urged for the abolition, of 
capital punishment was the belief that contemporary 
standards of human decency had evolved to the point 
that the death penalty ought to be declared unconstitu­
tional as violative of the cruel and unusual provisions 
of the eighth amendment.

OPINION BELOW.

The opinion of the California Supreme Court in People 
v. Athens is reported at 70 Adv. Cal. 383, 74 Cal. Rptr. 
882, 450 P. 2d 258 (1969).

JURISDICTION.

Petitioner invokes this Court’s jurisdiction pursuant to 
28 U.S.C. Sec. 1257 (3).



STATUTORY PROVISIONS INVOLVED.

This ease involves the Eighth and Fourteenth Amend­
ments to the Constitution of the United States. The rele­
vant California statutory provisions are: (1) California 
Penal Code See. 190 and (2) California Penal Code See. 
190.1.

QUESTION PRESENTED.

Does the imposition and carrying out of the death pen­
alty in this case constitute cruel and unusual punishment 
in violation of the Eighth and Fourteenth Amendments?

STATEMENT OF THE CASE.

The National Legal Aid and Defender Association 
adopts Appellant’s Statement.



4

ARGUMENT.

THE CRUEL AND UNUSUAL CLAUSE OF THE EIGHTH 
AMENDMENT IS A DYNAMIC CONCEPT WHICH NOW 
MUST BE APPLIED TO RENDER THE DEATH PENALTY 
UNCONSTITUTIONAL.

In Prop v. Dulles, 356 U.S. 86 (1958) this Court held 
that the Eighth Amendment prohibition against crnel and 
unusual punishment was a dynamic concept dependent 
upon the “evolving standards of decency that mark the 
progress of a maturing society.”

Although it is true that at the time of the adoption 
of the Eighth Amendment capital punishment was prac­
ticed in colonial America, our notions of what consti­
tutes cruel and unusual punishment have undergone sig­
nificant changes.

In Ex Parte Wilson, 114 U.S. 417 Mr. Justice Gray 
noted,

“What punishment may be considered as infamous 
may be affected by the changes of opinions from one 
age to another. In former times, being put in the 
stocks was not considered as necessarily infamous.
. . . But at the present day it might be' thought an 
infamous punishment.”

Robinson v. California, 370 U.S. 660 held the cruel and 
unusual clause of the Eighth Amendment applicable to 
the states. Since that time there has arisen a significant 
body of law construing that clause and reflecting con­
temporary notions of what is or is not “cruel and un­
usual punishment.”



•5-

These cases make it clear that contemporary standards 
of human decency have evolved to the point where im­
position of the death penalty must now be held to vio­
late the cruel and unusual clause of the Eighth Amend­
ment.

A. PUNISHMENTS LESS SEVERE THAN THE DEATH 
PENALTY HAVE BEEN HELD CRUEL AND UNUSUAL 
UNDER THE EIGHTH AMENDMENT.

In Jackson v. Bishop, 404 F. 2d 571 (1968) Justice 
Blackmun, writing for the Eighth Circuit Court of Ap­
peals, held that the use of a prison strap as a disciplinary 
measure in the Arkansas Penitentiary constituted cruel 
and unusual punishment under the Eighth Amendment.

Reviewing this Court’s decisions on the issue, Justice 
Blackmun stated,

“In summary then so far as the Supreme Court 
cases are concerned, we have a flat recognition that 
the limits of the Eighth Amendment’s proscription 
are not easily or exactly defined, and we also have 
clear indications that the applicable standards are 
flexible, that disproportion, both among punishments 
and between punishment and crime, is a factor to 
be considered, and that broad and idealistic concepts 
of dignity, civilized standards, humanity and decency 
are useful and usable.” at 579.

He went on to say that
“the strap’s use, irrespective of any precautionary 
conditions which may be imposed, offends contem­
porary concepts of decency and human dignity and 
precepts of civilization which we profess to possess; 
and that it also violates those standards of good con­
science and fundamental fairness enunciated by this 
court. . . .”



—6------

Justice Blackmun relied in part on Jordan v. Fitzharris, 
257 F. Supp. 674 (1969), in which the District Court for 
the Northern District of California had held that condi­
tions of confinement in the California Correctional Train­
ing Facility at Soledad constituted cruel and unusual 
punishment. Those conditions consisted of the prisoner 
being confined in a small cell 6 feet by 8 feet 4 inches 
for a period of 12 days in solitary confinement, naked for 
seven of those days, generally without any light or ade­
quate ventilation, and without implements to clean him­
self.

Since those cases there have been many others in this 
area, all concluding that such treatment of prisoners con­
stituted cruel and unusual punishment under the Eighth 
Amendment. The reasoning employed in the Fitzharris 
case was, first to ask whether under all the circumstances 
the punishment in question was of such character as to 
shock general conscience or to be intolerable to funda­
mental fairness. Secondly the Court noted that a punish­
ment may be cruel and unusual if greatly disproportion­
ate to the offense for which it is imposed. And finally, 
a punishment may be cruel and unusual when although 
applied in pursuit of a legitimate penal aim, it goes be­
yond what is necessary to achieve that aim; that is, when 
a punishment is unnecessarily cruel in view of the pur­
pose for which it is used, (at p. 679) Accord: see Wright 
v. McMann, 321 F. Supp. 127 (1970) (Prisoner confined 
nude in isolation cell); Holt v. Sarver, 309 F. Supp. 362 
(1970) (General conditions and practices in the Arkansas 
state prison system); Lollis v. New Yorlc State Depart­
ment of Social Services, 322 F. Supp. 473 (1970) (Chil­
dren confined in isolated room in state training schools



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with no recreational or reading programs) ; Dear man v. 
Woodson, 429 F. 2d 1288 (1970) (Prisoner not given 
food for 50% hours).

There are several conclusions to be drawn from the 
reasoning of these cases.

The first is that if whipping (Jackson v. Bishop supra) 
or even statelessness (Trop v. Dulles supra) are cruel 
and unusual punishments within the meaning of the 
Eighth Amendment, then it follows that the extreme pen­
alty, death, is also cruel and unusual punishment. See 
Mr. Justice Frankfurter’s dissent in Trop v. Dulles, supra 
at 125.

The second conclusion that may be drawn from these 
cases derives from the Jordan formula (Jordan v. Fitz- 
harris supra), where the Court notes that a punishment 
may be cruel and unusual if it goes beyond what is nec­
essary to achieve a legitimate penal interest. Compare 
Workman v. Commonwealth, 429 S.W. 2d 374, 378 (1968).

That brings us to the question of the purpose for which 
the death penalty is designed and whether the imposition 
of the death penalty is necessary for that purpose.

Modern penology rejects the doctrine of vengeance. 
Its goals in this day and age are rehabilitation and de­
terrence. There is no question but that the death penalty 
does not rehabilitate the offender, and so the remaining 
question is that of deterrence.

On that score Dr. Hugo Bedau points out in his most 
recent article on the Death Penalty that the majority 
report of the Special Commission of the Massachusetts 
Legislature To Investigate The Effectiveness of Capital 
Punishment as a Deterrent to Crime concluded in its in­



terim report of October 1968 that “the death penalty is 
not a deterrent to crime.” Be dan, The Death Penalty in 
America, Review & Forecast XXXV Federal Probation 
32, 35 (June, 1971). See also Ii. Mattick, The Unexamined 
Death, 7-9, 31 (1963).

Bedan goes on to add that
. . the belief that the death penalty is no deter­

rent, or (what is more to the point) that it is no bet­
ter a deterrent than imprisonment has become a 
commonplace of contemporary criminology.” supra 
at 36.

If death is no more a deterrent than imprisonment, 
then imposition of the death penalty fails to meet the 
rationality test suggested by Jordan v. Fitzharris that 
punishment is unnecessarily cruel if it goes beyond what 
is necessary to achieve its proper penal purpose. Com­
pare the rational connection test in Tot v. U. 8., 319 U.S. 
463, 467.

The death penalty is unnecessary to achieve the proper 
penal purposes of rehabilitation and protection of so­
ciety. Therefore, it constitutes cruel and unusual punish­
ment within the meaning of the Eighth Amendment.

B. THE INCIDENCE OF THE DEATH PENALTY RENDERS 
IT GRUEL AND UNUSUAL.

There were 13,650 homicides recorded in the United 
States in 1968. Uniform Crime Reports at 6 (1969). In 
that same year 102 defendants received the death pen­
alty, 96 of whom were charged with murder. 45 National 
Prisoner Statistics at 1 (1969).

According to .J. Edgar Hoover, Director of the F.B.I., 
86% of the criminal homicides occurring in 1968 were



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solved. Uniform Crime Reports at 9 (1969). Thus out of 
the 11,739 cases allegedly solved, less than 1% of the 
defendants were given the death penalty.

Such incidence in application of the death penalty 
renders it unusual to say the least and cruel in its ap­
plication.

Moreover, those upon whom it falls are often the 
poor, the black, and the unpopular. See The Challenge 
of Crime in a Free Society, at 143.

In addition, it is suggested that those who plead guilty 
are less likely to receive the death penalty than those 
who demand trial. Doesn’t it seem anomalous to kill 
those whom we merely suspect are guilty, while those 
who we know are guilty escape the ultimate penalty?

Finally, it should be noted that in some states such 
as Illinois, the jury is not requested to return a death 
sentence in every homicide. In that state unless the prose­
cutor qualifies the jury, submits a death penalty verdict, 
and asks for the death penalty, the jury will never re­
turn a death verdict. Such unbridled prosecutorial dis­
cretion as to which man shall live and which man shall 
run the risk of death, is another factor that leads to the 
valid conclusion that the death penalty is reserved for 
the black, the poor, the friendless, and the unpopular.

C. POLICY CONSIDERATIONS — THE EFFECT OF THE 
DEATH PENALTY UPON OTHER ASPECTS OF THE 
CRIMINAL JUSTICE SYSTEM.

The Death Penalty does not only constitute cruel and 
unusual punishment to those upon whom it is imposed 
but on the entire criminal justice system as well. Hugo



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Bedau points out that from 1960 to 1970 the average 
time for prisoners under sentence of death increased 
from 14.4 months to 32.6 months. Bedau supra at 33.

During this time the courts are clogged with peti­
tions, direct appeals, collateral attacks, post conviction 
remedies, federal habeas corpus, etc. ad infinitum. Since 
informed sources estimate that over 90% of the inmates 
now on death row require court-appointed counsel or pub­
lic defenders, the concomitant time on these cases re­
quired of attorneys is time taken away from other cases 
which must then be deferred and continuances sought. 
This places a strain on already overburdened and under­
staffed defender and assigned counsel systems. Thus the 
death penalty cases have a multiplier effect on the crim­
inal legal system far in excess of their numbers.

Moreover, authorities such as Professor Inbau of North­
western Law School have noted the deleterious effect 
death penalty eases have on the law in general. Juries 
compromise on verdicts to avoid inflicting the death pen­
alty. Reviewing courts embark upon a “quest for error” 
“for the purpose of finding some excuse to reverse the 
conviction of a person sentenced to death. In doing so, 
rules of law are developed which plague the prosecution 
in its efforts in non-capital cases. . . .” Criminal Justice 
Cases and Comments, Inbau, Thompson and Sowle 1968 
Vol. 1 Ch. 5 at 448.

This position is supported by the President’s Commis­
sion on Law Enforcement and Administration of Justice, 
which noted that the death penalty “clearly has an un­
desirable effect on the administration of criminal jus­
tice.” The Challenge of Crime in a Free Society at 143.



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Swift justice has been characterized as the best deter­
rent to crime. When the courts are clogged with death 
eases and decisions are made contrary to the best inter­
ests of prosecutors attempting to convict non-capital de­
fendants, perhaps a balancing of interests requires an end 
to capital cases to insure the real goal of the criminal 
justice system, a speedy and fair disposition of cases and 
the prevention of future crime.

CONCLUSION.

For the above and foregoing several reasons, the Amicus 
Curiae National Legal Aid & Defender Association urges 
this Honorable Court as the ultimate keeper of society’s 
conscience under the evolving standards of decency to 
declare that the death penalty is cruel and unusual pun­
ishment proscribed by the Eighth Amendment.

Respectfully submitted,

Marshall J. H artman 
American Bar Center 
1155 East 60th Street 
Chicago. Illinois 60637 
(312) 684-2727

Counsel for Amicus Curiae 
National L egal A id A nd 
Defender A ssociation

August 25, 1971