Griffin v. Bolger Brief for Cross-Appellees and Reply Brief for Appellants

    MEMORANDUM :   
| 

TO: Anthony G. Amsterdam 

FROM: Jack Himmelstein 

Re: Factual assertions in respondent's cruel 
and unusual punishment briefs (Aikens v. 
California, Furman v. Georgia, Jackson v. 

Georgia, Branch v. Texas.) 
  

  

  

DATE: January 11, 1972 

  

In the attached pages are designated those factual assertions 

found in respondents' briefs which could seemingly be the proper 

subject of inquiry at an evidentiary hearing. That category 

includes some factual assertions which were supported in the 

brief with some judicially noticeable materials. 

LIRA 

 



  

Aikens v. California 
  

  

O.T.1971 
No.68-5027 

Respondent's Brief 

1) “contrary to the impression that petitioner seeks to convey, 

there appears to be substantial support for the death penalty in 

almost all social, economic, and occuaptional groups ...." 

[citing polls, speeches,articles] (59-60) 

2) Summary of prosecution's case-in Thornton (60-61) 

3) "the conditions that lead a jurisdiction to conclude that a 

particular punishment is or is not required for the protection of 

its populace vary from nation to nation. . ."(65) 

4) "Nor is there anything cruel and unusual in the physical surroundings 

on the men awaiting execution . . . ." [citing letter to N.Y.Times 

from death row inmate and adding various other information] (69-70). 

5) “Social and economic conditions, such as population pressure, 

unemployment rate, influx of racial and ethnic minorities, in 

addition to such factors as the efficacy of local law enforcement, 

climate and weather and the number of attractive crime targets, 

must all play a significant role in determining the number of homicides 

(particularly robbery-homicides) committed in a given jurisdiction 

in a given period of time . . . .Clearly, the existence of these 

variables, precludes a meaningful comparison between general undifferent- 

jated murder statistics and a single proposed causal factor, that of the 

existence of the death penalty in a particular jurisdiction.” 

(78-79) 

6) Setting forth statements of those who said they were deterred 

by death penalty, and of judges who had heard such statements, and 

study by L.A. police department reporting similar findings. (81-92). 

"Respondent submits that such data.. .are instead persuasive proof 

that the existence of capital punishment, even though unenforced today, 

acts to deter a substantial number of criminal . . . ." (90). 

7. If penalty was no greater, armed robber would kill witnesses or 

police. (90) 

8. Statistics from San Quentin (informal) demonstrating "the crimes 

of passion, which are rarely deterrable, incur the death penalty 

only under the most exceptional circumstances and constitute only 

a minute portion of death sentences imposed in California.” (93-94) 

9. "there is reason to believe that absent the death penalty there 

would be a far greater number of prison homicides, particularly by 

persons serving life sentences." (98) 

10. In response to claim that death penalty is discriminatorily 

applied "[t]lhe files of the 102 persons currently housed in the 

California prison system under sentence of death ... have been examined 

by counsel for respondent." Conclusions presented. (103-104). And citing 

unpublished data from California Department of Corrections re other 

crimes (104-105) 

11. Blacks commit more crimesthan whites. (106-108) 

12. Death penalty is not discriminatorily imposed upon the poor, (109) 

13. "Examination of the files of the California State Prison at 

San Quentin" for report of occupational status of death row inmates 

educational level and other data. (110 =~ 112). 

 



  

Furman v. Georgia, O.7, 1971, No. 69-5003 
  

1. States that retain death penalty for limited crimes clearly 

do so for purpose of deterrence. (54-55) 

2. Use of unloaded guns proves deterrence (55) 

3. "juries are giving greater caution before selecting 

the death penalty . . . it occurs almost exclusively in 

instances of heinous crime." (72) Reference to and use of 

Department of Correction files [App.C. 1{72) 

4. "Tt is submitted that if it appears that those receiving 

the death penalty fall primarily into one particular class 

or another, it is not because of some rampant discrimination 

but rather because the rate of capital felonies is proportionately 

higher by far among such groups.” [citing Annual Police Report 

on number of crimes committed by different racial groups] (80) 

 



  

Jackson v. Georgia - 0.T. 1971, No. 69-5030 
  

“The mere number of Negroes executed for rape, as compared with 

the number of whites executed for the same crime, has no relevancy, 

existing alone, to a claim of discrimination." (14) Similar 

assertion. (19). "the mere fact that more Negroes than whites were 

executed for rape in Georgia between 1930 and 1968 does not prove 

that the reason for petitioner's death penalty is racial discrimina- 

tion in his sentencing." (23). 

"phere is evidence showing instead that of the persons convicted 

of rape, a proportionately greater number are Negroes than are 

white.” (23) 
References from "ledger books of the State Department of 

Corrections" (24) 

"A higher proportion of persons arrested for this violent crime 

against the person are Negro" [citing Atlanta Police Department 

Annual Report] (24-25) 

[Other factors to be considered in judging disproportionate 

number of blacks executed] (25-26) 

[The severity of life imprisonment] (40-41) 

"There is no evidence that another penalty or method is a more 

effective deterrent." (54) 

Query whether comparative rape rate in Georgia and abolition 

states (in n. 38) might be comparing rate for women with rate 

for inhabitants. 

 



  

Branch v. Texas - No. 69-5031 
  

Brief for Respondent 
  

1) "If this Court were to reach the same conclusion as the 
Royal Commission, it would have to say that a legislature 
could rationally choose to retain the death penalty because 
it believed that to some extent that penalty is a more 

effective deterrent than any other form of punishment. But 
that would also be the result here even if there was less 
evidence than there is to support a finding of deterrent 

effect." (18-19) (emphasis added). 
  

2) Assumption that juries reserve death penalty "for only the 
most serious offenders." (21) : 

3) "There are no figures one way or another on whether capital 
punishment deters rape." (25) 

4) "In 1970, 36 out of every 100,000 females in the country was 
a reported forcible rape victim and it is well understood 
that because of fear and embarrassment, this offense is 

probably one of the most underreported crimes." (28) 

5) "Rape is the only crime of violence that has shown a clear 
* tendency to increase in frequency over the last decade." (28) 

6) "Undoubtedly the statistics are suggestive that juries have 
taken race into account in imposing the death penalty for rape . . .. 
Clearly the figures on the numbers of executions by race are 
suggestive that race has been considered, but this has not 
been a problem confined to rape cases or to use of the death 

sentence." (29) 

7) "The rape rate is much higher among Negroes than among whites. 
Studies in Denver and Philadelphia, based on figures that 
eliminated any possibility of racial discrimination on the part 
of judges and jurors, showed in each instamce that the rape 
rate was 12 times as high among Negroes as among whites . . . 
If the disparity between the incidence of rape among whites 
and Negroes was one to twelve in Texas, as it was found to be 
in Denver and Philadelphia studies, then a disparity of less 
than one to six in the numbers executed is less persuasive 
of discriminatory practices than the figures would seem at 

first blush.” (30) 

8) [Assaultive nature and harmful effect of rapes]. (32-34) 

9) [Psychological effects of rape]. (37-39) 

10) "Those states that have abolished capital punishment entirely 
have not made any judgment about the excessiveness of the 
death penalty for rape." [other possible factors] (39-40) 

11) Assumption that jury chooses death penalty for rape in "those 
extreme cases." (40-41)