Witherspoon v. Illinois Motion for Leave to File Brief Amici Curiae
Public Court Documents
October 2, 1967
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Brief Collection, LDF Court Filings. Witherspoon v. Illinois Motion for Leave to File Brief Amici Curiae, 1967. fa136466-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/95393d05-fdcc-429b-b7ce-5f9592c820c6/witherspoon-v-illinois-motion-for-leave-to-file-brief-amici-curiae. Accessed April 06, 2025.
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October Term, 1967
No. 1015
W illiam C. W itherspoon, Petitioner,
S tate op Illinois, Respondent.
ON W RIT OP CERTIORARI TO THE SUPREME COURT OP ILLINOIS
No. 1016
W ayne Darnell Bumpers, Petitioner,
State op North Carolina, Respondent.
ON W RIT OP CERTIORARI TO TH E
SUPREME COURT OF NORTH CAROLINA
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND BRIEF AMICI CURIAE OF THE NAACP LEGAL DE
FENSE AND EDUCATIONAL FUND, INC., AND THE NA
TIONAL OFFICE FOR THE RIGHTS OF THE INDIGENT
Jack Greenberg
James M. Nabrit, III
M ichael Meltsner
Leroy D. Clark i
Norman C. A maker
Charles S. Ralston
Jack H immelstein
10 Columbus Circle, Suite #2030
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.
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I N D E X
Motion for Leave to File Brief Arniei Curiae and State
ment of Interest of the A m ici....................................... 1-M
Brief Amici Curiae..... ......................................................... 1
Statement ....................................................... .............. 1
Summary of Argum ent............................................... 9
A rgument :
I. This Court Should Not Decide the Serupled-
Juror Issue in Isolation From Other Belated,
Substantial Federal Constitutional Challenges to
Capital Trial Proceedings ....................................... 12
A. The Scrupled-Juror Issue in Context ........... 12
B. A Summary of Capital Trial Procedure ....... 16
C. The Federal Constitutional Violations En
tailed by the Procedure ................................... 20
D. The Interrelatedness of the Constitutional
Points ....................................... 22
E. Conclusion .......................... 28
II. This Court Should Not Decide the Scrupled-Juror
Question on an Inadequate Record ......... - ......... 30
A. The Nature of the Legal Issues Presented .... 30
1. The Practice of Death-Qualifying Jurors - 31
2. The Theories of Constitutional Objection
to the Practice ........... 33
3. The Substantiality of the Constitutional
Objections ......................... 37
B. The Importance of Factual Matters to De
cision of the Legal Questions ........................... 51
PAGE
11
PAGE
1. The Pertinent Factual Inquiries .......... . 54
2. The State of the Record on These Factual
Questions ................................................... 56
3. The Present State of the Art on These
Factual Questions ........................................... 56
4. Materials That Could Be Presented at an
Evidentiary Hearing ........ 61
C. The Consequent Desirability of an Eviden
tiary Hearing ........... 68
III. The Witherspoon Case Should Be Reversed and
the Bumpers Case Reversed or Remanded......... . 74
A. The Witherspoon Case ................. .......... ......... . 74
B. The Bumpers Case ........ ...................................... 75
IV. The Problem of Retroactivity .......... 77
A. The Court Should Not Decide the Question
of Retroactivity at This Time ......... ...... .......... 79
B. The Ruling on the Scrupled Juror Question
Should Be Applied Retroactively to Those
Cases in Which the Death Penalty Has Actu
ally Been Imposed .............. ............. ......... .......... 85
Conclusion .... ........ .......................... ........ ......................... 94
A ppendix I—
Excerpts from the Voir Dire Examinations Of
Prospective Jurors McCarley and Lewis In Peo
ple v. Arguello (Tr. 308-311), Now Pending on
Federal Habeas Corpus Sub. Nom. Arguello v.
Nelson, U.S.D.C., N.D. Cal. No. 47622 ________ la
Ill
PAGE
A ppendix II—
Excerpt From the Yoir Dire Examination Of Pro
spective Juror Timberlake, In People v. Saterfield
(Tr. 83-85), Now Pending On Habeas Corpus,
Matter of Saterfield, Cal. S.C. Crim, No. 11573 ....
A ppendix III—
Excerpt From the Voir Dire Examination Of Pro
spective Juror Upchurch, in People v. Schader
(Tr. 247), Appeal Pending, Cal. S. C. Crim. No.
9855 .................................................................................
Table of A uthorities
Cases:
Adderly v. Wainwright, M.D. Fla., No. 67-298-
Civ.-J................ .......... .......................................... 4-M, 5-M,
Arkwright v. Kelly, Super. Ct. Tattnall Cty, Ga.
No. 5283 ........................................................... ...... .........
Ashcraft v. Tennessee, 322 U.S. 143 (1944) ...............
Bailey v. Alabama, 219 U.S. 219 (1911) ......... ........ .
Bell v. Patterson, U.S.D.C., D. Colo., No. 67-C-458 ....
Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) ....
Borden’s Farm Products Co. v. Baldwin, 293 U.S.
194 (1934) .... ............... ................................ ................. 71,
Brent v. White, 5th Cir., No. 25496 ..........................
Bresolin v. Rhay, 389 U.S. 214 (1967) .......................
Brown v. Allen, 344 U.S. 443 (1953) ...........................
Brown v. Board of Education, 347 U.S. 483 (1954) ....
Brown v. Lane, U.S.D.C., N.D. Ind., No. 4129 ...........
4a
6a
12
14
77
47
14
37
72
14
80
38
72
14
Carrington v. Rash, 380 U.S. 89 (1965) ............. .
Cassell v. Texas, 339 U.S. 282 (1950) ................. .
Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924)
47
43
71
IV
Chevalier v. Beto, U.S.D.C., S.D. Tex., No. 68-H-57 .... 14
Childs v. State, Super. Ct. Buncombe Cty., N.C............ . 76
Childs v. Turner, U.S.D.C., W.D.N.C., No. 2663 ............ 14
Clarke v. Grimes, 374 F.2d 550 (5th Cir. 1967) .......... 15
Crain v. Beto, U.S.D.C., S.D. Tex., No. 66-H-626 ...... . 15
Craig v. Wainwright, U.S.D.C., M.D. Fla., No. 66-
595-Civ.-J. ................................................. ................ ..... 12
Dombrowski v. Pfister, 380 U.S. 479 (1965) ............... 47
Douglas v. California, 372 U.S. 353 (1963) ............... 22
Duncan v. Louisiana, O.T. 1967, No. 410........... ..... ......... 36
Ellison v. Texas, U.S., Misc. No. 1311 ........ ..... ............ 15
Escobedo v. Illinois, 378 U.S. 478 (1964) ............. 89
Evans v. Dutton, 5th Cir., No. 25348 ...................... 15
Fay v. x\Tew York, 332 U.S. 261 (1947) ________ 2,38,87
Fay v. Noia, 372 U.S. 391 (1963) .......... .............. ......... 4-M
Gaster v. Goodwin, 259 N.C. 676, 131 S.E.2d 363
(1963) .......... ..... ........ ............... .............................. ........ 76
Gaylord v. Berry, 169 N.C. 733, 86 S.E. 623 (1915) ....... 76
Gebhart v. Belton, 87 A.2d 862 (Del. Ch. 1952) ........... 72
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) .............. . 20
Gideon v. Wainwright, 372 U.S. 335 (1963) ........ ...... 22,79
Giles v. Maryland, 386 U.S. 66 (1967) __ _______ ___ _ 76
Greensboro Bank & Trust Co. v. Royster, 194 N.C.
799, 139 S.E. 774 (1927) ......................... ......... .......... 76
Gulf Refining Co. v. McKernan, 178 N.C. 82, 100 S.E.
121 (1919) .............. ..... .................. ...................... .......... 76
Hamilton v. Alabama, 368 U.S. 52 (1961) ................... 22,88
Hardy v. United States, 186 U.S. 224 (1902) ...... ....... 2
Harper v. Virginia, 383 U.S. 663 (1966) .................. 45
Hernandez v. Texas, 347 U.S. 475 (1954) ....................... 38
PAGE
V
Hill v. Nelson, N.D. Cal., No. 47318 ............................ 5-M, 13
In the Application of Anderson, Cal. S.C., Crim. No.
11572 ............................................................................ 5-M; 13
In the Application of Saterfield, Cal. S.C., Crim No.
11573 ............................ ................... ...... ..................... 5-M; 13
In re Gault, 387 TT.S. 1 (1967) .......................-............ -.... 73
Irvin v. Dowd, 366 U.S. 717 (1961) ............................... 36,46
Jackson v. Denno, 378 U.S. 368 (1964) ........ .................. 79
Johnson v. New Jersey, 384 U.S. 719 (1966) .......78,79,80,
81, 82, 90
Juarez v. State, 102 Tex. Cr. 297, 277 S.W. 1091 (1925) 38
Keyishian v. Board of Regents, 385 U.S. 589 (1967) .... 53
Rabat v. Bennett, 365 F.2d 698 (5th Cir. 1966) .......37, 38, 47
Linkletter v. Walker, 381 U.S. 618 (1965) ...... ........ 78, 79, 82
Logan v. United States, 144 U.S. 263 (1892) ................. 2
Massachusetts v. Painten, 19 L.Ed.2d 770 (1968) ______ 70
Matters of Sims and Abrams, 5th Cir., Nos. 24271-2 .... 3-M
Maxwell v. Bishop, 385 U.S. 650 (1967) ______3-M, 6-M; 14
McNeal v. Culver, 365 U.S. 109 (1961) .... ............ ......... 75
Memorial Hospital v. Rockingham County, 211 N.C.
205, 189 S.E. 494 (1937) ............. ........ ........... ............ 76
Mempa v. Rhay, 389 U.S. 214 (1967) ................. ....... ..... 80
Miranda v. Arizona, 384 U.S. 436 (1966) ......... ..43, 73, 81, 89
Muller v. Oregon, 208 U.S. 412 (1908) ..... ........ ................ 71
Moorer v. South Carolina, 368 F.2d 458 (4th Cir.
1966) .................................................................................. 3-M
N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964) ................... 52
Nashville Chattanooga & St. Louis Ry. v. Walter's,
294 U.S. 405 (1935) ......... ........ ........................................ 72
PAGE
VI
Nelson v. Peckham, 9th Cir. No. 21969 ............................. 13
Nostrand v. Little, 362 U.S. 474 (1960) ......................... 76
Oyama v. California, 332 U.S. 663 (1948) ........ .............. 47
Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966) ........... 82
Parker v. Gladden, 385 U.S. 363 (1966) ................ 36
Patterson v. Alabama, 294 U.S. 600 (1934) ...... ..11,77
Pennsylvania ex rel. Herman v. Clandy, 350 U.S. 116
(1956) ........................... ....................... ........... ............... 75
People v. Carnso, 68 Adv. Cal. 181 (1968)..... ....... ......... 83
People v. Hobbs, 35 I11.2d 263, 220 N.E.2d 469 (1966) .... 2, 4
People v. Witherspoon, 36 IU.2d 471, 244 N.E.2d 259
(1967) ................................................................. ............. .4,62
Poole v. State, 194 So.2d 903 (Fla. 1967) ....................... 8
Powell v. Alabama, 287 U.S. 45 (1932) ........................... 88
Pyle v. Kansas, 317 U.S. 213 (1942) ............................... 75
Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966) 38
Rescue Army v. Municipal Court, 331 U.S. 549 (1947) .. 70
Rideau v. Louisiana, 373 U.S. 723 (1963) ....................... 36
Robinson v. California, 370 U.S. 660 (1962) ................... 27
Rollins v. State, 148 So.2d 274 (Fla. 1963) ..... ............. 8
Segura v. Patterson, U.S.D.C., D. Colo. No. 67-C-497 .... 14
Shelton v. Tucker, 364 U.S. 479 (1960) .......................... 52
Sheppard v. Maxwell, 384 U.S. 333 (1966)........... ......... . 36
Shinall v. Breazeale, 5th Cir., Misc. No. 978 ................. 14
Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965) 38
Siros v. State, Dist. Ct. Harris Cty, Tex., No. 104617 .... 15
Skinner v. Oklahoma, 316 U.S. 535 (1942) ...................45, 46
Smith v. Nelson, 9th Cir., No. 22328 ..... .................. ...... 13
Smith v. Texas, 311 U.S. 128 (1940) ...............37, 39, 43, 47
Spencer v. Beto, 5th Cir., No. 25548 .............................. 14
PAGE
State v. Bumpers, 270 N.C. 521, 155 S.E.2d 173
( 1967) ........................................................ ......................... -....... . . - 6, 62,76
State v. Childs, 269 N.C. 307,152 S.E.2d 453 (1967)....6, 56, 76
State y. Funicello, Essex Cty. Ct., N.J., No. 2049-64 .... 14
State v. Carrington, 11 S.D. 178, 76 N.W. 326 (1898) .... 6
State v. Henry, 196 La. 217, 198 So. 910 (1940) ....... 8
State v. Lee, 91 Iowa 499, 60 N.W. 119 (1894) ______ 6
State v. Riggins, Wash. S.C., No. 39481 ___ 15
State v. Rocker, 138 Iowa 653, 116 N.W. 797 (1908) .... 6
State v. Scott, 243 La. 1, 141 So.2d 389 (1962)..... 7
State v. Smith, Wash. S.C., No. 39475 .................. 15
State v. Weston, 232 La. 766, 95 So.2d 305 (1957) ....... 8
State v. Wilson, 234 Iowa 60, 11 N.W.2d 737 (1943) .... 6
Stein v. New York, 346 U.S. 156 (1953) ....................... 88
Stovall v. Denno, 388 U.S. 293 (1967) ....79, 81, 82, 83, 88,
89, 90
Tehan v. Shott, 382 U.S. 406 (1966) .............. ....... .78, 79, 82
Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) .... 38
Thomas v. Collins, 323 U.S. 516 (1945) ................ ..... 78
Tuberville v. United States, 303 F.2d 411 (D.C. Cir.
1962) .................... .......... ............................. ...... ............ 41
Turner v. Louisiana, 379 U.S. 466 (1965) ..... ............. 36
United States ex rel. Smith v. Nelson, N.C. Cal.,
No. 48011 ........ ................................................................. 13
United States v. Wade, 388 U.S. 218 (1967) ...... .73, 78,83
Villa v. Van Schaick, 299 U.S. 152 (1936) ....................... 76
W.E.B. DuBois Clubs of America v. Clark, 389 U.S.
309 (1967) ________________ ______ ______ ___________ 70
Walker v. City of Birmingham, 388 U.S. 307 (1967) .... 78
Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926) ....... 71
Weems v. United States, 217 U.S. 349 (1910) ........... 27
Wheat v. Washington, U.S., Misc. No. 1301................... 15
Vlll
White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) .... 38
Whitus v. Georgia, 385 U.S. 545 (1967) .......................... 38
Wilkerson v. Utah, 99 U.S. 130 (1878) ......................... 27
Williams v. Dutton, 5th Cir., No. 25349 .................... ...... 15
Williams v. Georgia, 349 U.S. 375 (1955) ................. ..77, 88
Williams v. Kelly, Super. Ct. Tattnall Cty., Ga. No.
5284 .............................. ......... ...................... .................... 14
Wylde v. Wyoming, 362 U.S. 607 (1960) ...........................75
Statutes :
28 U.S.C. §2243 (1964) ........ .... ......... ................. ........... . 13
42 U.S.C. §1981 (1964) ...................................................... 21
Act of April 9, 1866, ch. 31 §1, 14 Stat. 27 ..... ............. 21
Enforcement Act of May 31, 1870, ch. 114, §§16, 18,
16 Stat. 140, 144 .............................................................. 21
111. Eev. Stat., 1959, Ch. 38, §743 ....................................... 2
Md. Code Ann., Art. 51, §8A (1967 Cum. Supp.) ..... . 7
Nev. Session Laws, 1967, p. 1472 ..... ..... ................ .......... 7
N.C. Gen. Stat. §9-14 (1953 Recomp. Vol.) ................... 6
S.D. Rev. Stat. §34.3618(10) ........ .................... ............. 6
Other Sources:
Adorno, et al., The Authoritarian Personality (1950) .. 61
Alfange, The Relevance of Legislative Facts in Consti
tutional Law, 114 U. Pa. L. Rev. 637 (1966) ............... 68
American Law Institute, Model Penal Code, Tent.
Draft No. 9 (May 8, 1959) .......................................... 18
PAGE
Annot., Beliefs Regarding Capital Punishment as Dis
qualifying Juror in Capital Case for Cause, 48 A.L.R.
2d 560 (1956) ............... ................................................... 7,
Bible, Judicial Determination of Questions of Fact A f
fecting the Constitutional Validity of Legislative Ac
tion, 38 Harv. L. Rev. 6 (1924) ..... .............. ..............
Christie & Cook, A Guide to Published Literature Re
lating to the Authoritarian Personality, 45 J. Psychol.
171 (1958) ..........................................................................
Crosson, An Investigation into Certain Personality
Variables Among Capital Trial Jurors, January, 1966
(unpublished) ..................................................................
Frankfurter, A Note on Advisory Opinions, 37 Harv.
L. Rev. 1002 (1924) ........... ...........................................
Goldberg, Attitude Toward the Death Penalty and
Performance as a Juror (unpublished) ...............
Greenberg, Social Scientists Take the Stand, 54 Mich.
L. Rev. 953 (1956) ..................... .................. ..................
Hartung, Trends in the Use of Capital Punishment,
284 Annals 8 (1952) ________ _____________ _______ 3
Impartial Juries, (Austin) Texas Observer, November
27, 1964, p. 5 ..... ....... ........... ...... ...............................
Kalven & Zeisel, The American Jury (1966) ________ 60,
Karst, Legislative Facts in Constitutional Litigation,
1960 Supreme Court Review 75 ------ ----------- -----------
Knowlton, Problems of Jury Discretion in Capital
Cases, 101 U. Pa. L. Rev. 1099 (1953) ______________ 7,
Louis Harris Survey, The Washington Post, Sunday,
July 3, 1966 ...... ...................... ........................... .............
34
68
61
59
71
58
72
-M
56
64
68
31
23
5
McClelland, Conscientious Scruples Against the Death
Penalty in Pennsylvania, 30 Pa. Bar Assn. Q. 252
(1959) ......................... ...... .............. ............. ...... ........... 7
Note, Jury Selection, 52 Ya. L. Rev. 1069 (1966) ........... 38
Note, Social and Economic Facts—Appraisal of Sug
gested Techniques for Presenting Them to Courts,
61 Harv. L. Rev. 692 (1948) ...... ........... ........................ 68
Oberer, Does Disqualification of Jurors for Scruples
Against Capital Punishment Constitute Denial of
Fair Trial on Issue of Guiltf 39 Texas L. Rev. 545
(1961) -----.....-..................... -....... ....... 7, 27,31, 34, 40, 49, 86
PAGE
Oberer, The Death Penalty and Fair Trial, The Nation,
Vol. 198, No. 15, p. 342 (April 6, 1964) ..... ............. 7
President’s Commission on Law Enforcement and Ad
ministration of Justice, Report, The Challenge of
Crime in a Free Society 143 (1967) .......................... 3-M
Report, of the Gallup Poll, Philadelphia Bulletin, Fri
day, July 1, 1966 ................................................. ............ 23
Shaw & Wright, Scales for the Measurement of Atti
tudes (McGraw-Hill Series in Psychology) (1967) .... 65
Sidney, Certain Determinants and Correlates of Au
thoritarianism, 49 Genetic Psych. Monographs 187
(1954) ........................... ....... .................................. ......... 61
U nited Nations, Department of Economic and Social
Affairs, Capital Punishment (ST /SO A /SD /9)
(1962) ..... ...... ................................................................... 31
U nited Nations, Department of Economic and Social
Affairs, Capital Punishment—Developments 1961-
1965 (ST/SOA/SD /IO ) 20 (1967) ....................... ...3-M, 31
XI
Weiliofen, The Urge to Punish (1956) ........................... 3-M
Wilson, Belief in Capital Punishment and Jury Per
formance (1964) (unpublished) ................. ............ 56
Wolfgang, Kelly & Nolde, Comparison of the Executed
and the Commuted Among Admissions to Death
Row, 53 J. Grim. L., Crim. & Pol. Sci. 301 (1962) .... 3-M
Zeisel, Some Insights into the Operation of Criminal
Juries, (1957) (unpublished) .... ...... .................... .60, 61, 62
PAGE
Ilf THE
Bum atm (tort of tfye United States
Octobeb T erm, 1967
No. 1015
W illiam C. W itherspoon,
— v.—
Petitioner,
State of Illinois,
Respondent.
on writ of certiorari to the
SUPREME COURT OF ILLINOIS
No. 1016
W ayne Darnell Bumpers,
— v .—
Petitioner,
State of N orth Carolina,
Respondent.
on writ of certiorari to the
SUPREME COURT OF NORTH CAROLINA
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND STATEMENT OF INTEREST OF THE AMICI
Movants N.A.A.C.P. Legal Defense and Educational
Fund, Inc., and National Office for the Bights of the Indi
gent respectfully move the Court for permission to file the
attached brief amici curiae, for the following reasons. The
reasons assigned also disclose the interest of the amici.
2-M
(1) Movant N.A.A.C.P. Legal Defense and Educational
Fund, Inc., is a non-profit corporation, incorporated under
the laws of the State of New York in 1939. It was formed
to assist Negroes to secure their constitutional rights by
the prosecution of lawsuits. Its charter declares that its
purposes include rendering legal aid gratuitously to Ne
groes suffering injustice by reason of race who are unable,
on account of poverty, to employ legal counsel on their
own behalf. The charter was approved by a New York
court, authorizing the organization to serve as a legal aid
society. The N.A.A.C.P. Legal Defense and Educational
Fund, Inc. (LDF), is independent of other organizations
and is supported by contributions from the public. For
many years its attorneys have represented parties in this
Court and the lower courts, and it has participated as
amicus curiae in this Court and other courts, in matters
resulting in decisions that have had a profoundly reform
ative effect upon the administration of criminal justice.
(2) A central purpose of the Fund is the legal eradica
tion of practices in our society that bear with discrimina
tory harshness upon Negroes and upon the poor, deprived,
and friendless, who too often are Negroes. In order more
effectively to achieve this purpose, the LDF in 1965 estab
lished as a separate corporation movant National Office
for the Eights of the Indigent (NOEI). This organization,
whose income is provided initially by a grant from the
Ford Foundation, has among its objectives the provision
of legal representation to the poor in individual cases and
the presentation to appellate courts of arguments for
changes and developments in legal doctrine which unjustly
affect the poor.
(3) LDF attorneys have handled many capital cases
over the years, particularly matters involving Negro de
3-M
fendants charged with capital offenses in the Southern
States. This experience has led us to the view, confirmed
by the studies of scholars1 and more recently by empirical
research undertaken under LDF auspices,2 that the death
penalty is administered in the United States in a fashion
that makes racial minorities, the deprived and downtrod
den, the peculiar objects of capital charges, capital con
victions, and sentences of death. Our experience has con
vinced us that this and other injustices are referrable in
part to certain common practices in capital trial procedure,
which depart alike from the standards of an enlightened
administration of criminal justice and from the minimum
requirements of fundamental fairness fixed by the Consti
tution of the United States for proceedings by which
human life may be taken. Finally, we have come to appre
ciate that in the uniquely stressful and often contradictory
litigation pressures of capital trials and direct appeals,
ordinarily handled by counsel appointed for indigent de
fendants, many circumstances and conflicts may impede
1 E.g., President’s Commission on Law Enforcement and Administration
o f Justice, Report, The Challenge of Crime in a Free Society 143 (1967) ;
United Nations, Department o f Economic and Social Affairs, Capital
Punishment—Developments 1961-1965 (ST /SO A /SD /IO ) 20 (1967);
W eih o fen , t h e U rge to P u n is h 164-165 (1956); Hartung, Trends in
the Use of Capital Punishment, 284 A n n a l s 8, 14-17 (1952); Wolfgang,
Kelly & Nolde, Comparison of the Executed and the Commuted Among
Admissions to Death Row, 53 J. Cr im . L., Cr im . & P ol. Soi. 301 (1962).
2 A study of the effect of racial factors upon capital sentencing for
rape in the Southern States (which virtually alone retain the death
penalty for that crime) was undertaken in 1965, with LDP financial
support, by Dr. Marvin E. Wolfgang and Professor Anthony G. Am
sterdam of the University of Pennsylvania. The nature of the study is
described in the memorandum appended to the report o f Moorer v. South
Carolina, 368 F.2d 458 (4th Cir. 1966), and in Matter of Sims and
Abrams, 5th Cir. Nos. 24271-2, decided August 10, 1967. Its results, so
far analyzed, show persuasively that the death penalty is discriminatorily
applied against Negroes, at least in rape cases. One aspect of these re
sults, limited to the State of Arkansas, was presented in the record in
Maxwell v. Bishop, 385 U.S. 650 (1967).
4-M
the presentation of attacks on these unfair and unconsti
tutional practices;3 and that in the post-appeal period, such
attacks are grievously handicapped by the ubiquitous
circumstances that the inmates of the death rows of this
Nation are as a class impecunious, mentally deficient, un
represented and therefore legally helpless in the face of
death.4 Common state practice makes no provision for the
furnishing of legal counsel to these men.
8 The constitutional challenge made in the present eases to the exclusion
of death-scrupled jurors presents one example of the “ grisly choice”
{Fay v. Noia, 372 U.S. 391, 440 (1963)) that often confronts counsel in
raising these claims. To object to the death-qualification of a jury ordi
narily risks insulting the very jurors who will sit in a trial where the
defendant’s life is at stake. To proffer or present evidence that non-
serupled jurors are prosecution-prone (as we argue infra) compounds
the insult; and precautions to keep the proffer or the contention from
the knowledge of the veniremen are, as a practical matter, likely to be
ineffectual. Moreover, the attempt to secure a jury from which scrupled
veniremen are not excluded tends to suggest to the jurors who are
eventually empanneled that, at best, the defense is trying to hang the
jury, and, at worst, the particular case on trial is one in which only a
conscientiously scrupled juror would think the death penalty inappro
priate.
4 Recently, in connection with Adderly v. Wainwright, infra, LDF
lawyers were authorized by court order to interview all o f the condemned
men on death row in Florida. The findings o f these court-ordered inter
views, subsequently reported by counsel to the court, indicated that of
34 men interviewed whose direct appeals had been concluded, 17 were
without legal representation (exeept for purposes of the Adderly suit
itself, a class action having as one of its purposes to declare their con
stitutional right to appointment of counsel); 11 others were represented
by volunteer lawyers associated with the LDF or ACLU; and in the case
o f 2 more, the status o f legal representation was unascertained. 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 mat
ters requiring literacy, such as the institution or maintenance of legal
proceedings) was below normal; unrepresented men were more mentally
retarded than the few who were represented; most o f the condemned men
were, by occupation, unskilled, 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).
5-M
(4) For these reasons, amici LDF and NORI have un
dertaken a major campaign of litigation attacking on fed
eral constitutional grounds several of the most vicious
common practices in the administration of capital crimi
nal procedure, and assailing the death penalty itself as a
cruel and unusual punishment. The status of that litiga
tion is described more fully below. Suffice it to say here
that LDF and NORI attorneys, with the cooperation of
other lawyers, instituted class actions on behalf of the
more than fifty condemned men on death row in Florida
(.Adderly v. Wainwright, M.D. Fla., No. 67-298-Civ-J) and
the more than sixty condemned men on death row in Cali
fornia (Hill v. Nelson, N.D. Cal., No. 47318; Application
of Anderson, Cal. S.C., Crim. No. 11572; Application of
Saterfield, Cal. S.C., Crim. No. 11573), which have resulted
in interlocutory class stays of execution for all men under
sentences of death in those two States. In addition to the
120 prisoners represented in these class actions, our at
torneys have major responsibility for handling* forty pend
ing cases of men sentenced to death in ten other States,
and are cooperating with, or providing services to, attor
neys in half a hundred additional capital cases across the
country. Virtually all of these cases are in active litiga
tion; in most of them, stays of execution have been re
quired and were obtained; in the bulk of them (and in the
two class actions), the scrupled-juror question now pre
sented is raised; while, in virtually all of the remainder,
the question will be raised when procedurally ripe. In sum
mary, we represent or are assisting attorneys who repre
sent, more than half of the 400 men on death row in the
United States; and the lives of virtually all of these men
will be affected by the Court’s decision in the present
cases.
6-M
(5) In most of our cases in which the scrupled-juror
claim is advanced, we have presented it in conjunction with
several other federal constitutional contentions, not di
rectly raised in the Witherspoon and Bumpers cases, but
which are so intimately related to the scrupled-juror issue
that we believe this Court cannot properly view the latter
issue in isolation from them. We develop the pertinent as
pects of those relationships (without, however, arguing the
related points)5 in the attached brief. We have also com
missioned and are participating directly in the designing
of a large-scale empirical investigation, utilizing system
atically the methodology of the social sciences, that bears
directly on the scrupled-juror question, and which we de
scribe therein. We thus believe that we have information
and perspectives, not available to the parties before the
Court, which the Court should properly consider in its
deliberations upon the issues now before it.
(6) Counsel for the petitioners in Witherspoon and
Bumpers have consented to the filing of a brief amici
curiae by the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., and the National Office for the Rights of the
Indigent. The present motion is necessitated because coun
sel for the respondent State of Illinois has refused consent
in Witherspoon, and because we are advised by counsel
for North Carolina that the respondent in Bumpers “ takes
a neutral position and will neither affirmatively oppose
nor consent to . . . filing . . . a brief” amici curiae.
5 Two of these points— the contention that the unfettered, undirected
and unreviewable discretion habitually given juries to impose a punish
ment of life or death violates the rule of law basic to due process; and
the contention that the ordinary simultaneous-verdict procedure for capital
trials, under which a jury hears at one sitting the questions of guilt and
punishment, also offends the Constitution for several related reasons—
were presented in some detail in the petition for writ o f certiorari in
Maxwell v. Bishop, 335 U.S. 650 (1967) (O.T. 1966, Misc. No. 1025).
7-M
W herefore, movants pray that the attached brief amici
curiae be permitted to be filed with the Court.
Respectfully submitted,
Jack Greenberg
James M. Nabrit, III
M ichael Meltsner
L eroy D. Clark
Norman C. A maker
Charles S. Ralston
Jack H immelstein
10 Columbus Circle, Suite 2030
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.
I n th e
l̂ i!$iTOit£ (Emtri n i X\\ t United States
October Teem, 1967
No. 1015
W illiam C. W itherspoon,
-v.-
Petitioner,
State op Illinois,
Respondent.
ON W RIT OP CEETIOEAEI TO THE
SUPREME OOUET OP ILLINOIS
No. 1016
W ayne Darnell B umpers,
—v.—-
State op North Carolina,
Petitioner,
Respondent.
ON W RIT OP CERTIORARI TO THE
SUPREME COURT OP NORTH CAROLINA
BRIEF AMICI CURIAE
Statement
The common question presented by these two cases is
whether the widespread state practice of “ death-qualifying”
a capital trial jury, by excusing for cause veniremen who
admit to having conscientious or religious scruples against
capital punishment, violates (in general, or in the partic-
2
nlar forms presented here) the Constitution of the United
States. That question is one of first impression in the
Court.6 We shall urge that it not he decided on the merits
at this time, on these records.
In Witherspoon, the Court reviews the denial by the
Supreme Court of Illinois of the relief sought in a state
collateral attack proceeding against a conviction of murder
and sentence of death. Among the claims presented by
Witherspoon in his post-conviction petition was the conten
tion that his trial jury was unconstitutionally composed,
because the trial court excluded from it persons scrupled
against the death penalty. Under the dictates of an Illinois
statute in effect at the date of the trial,7 47 prospective
6 Although one of the several qualifying screens employed to select the
blue ribbon jury challenged in Fay v. New York, 332 U.S. 261 (1947),
was the exclusion o f death-scrupled jurors, no distinct issue was made
in this Court of the validity of such an exclusion. Fay, which closely
divided the Court on other, tangentially related issues, cannot therefore
be thought seriously to address the point. The only other consideration
of the question by the Court that we have discovered is a nineteenth
century opinion, Logan v. United States, 144 U.S. 263, 298 (1892).
Logan sustains the exclusion of scrupled jurors but reverses the convic
tion there appealed from on other grounds. It is not altogether clear
whether this decision, of Conformity Act vintage, states a rule of federal
or o f Texas practice, particularly since the substantive capital offense
charged in Logan was assimilated by R ev . S tat . §5509 (1875), from
Texas law. In any event, no constitutional issue was raised or addressed
by the Court, and the disposition of the case on the writ of error was
not affected by the Court’s discussion of the scrupled juror issue. In
Hardy v. United States, 186 U.S. 224, 227-228 (1902), the question
presented related to the form of voir dire examination allowed a prose
cutor inquiring about scruples. No question of the allowability o f a
challenge for cause was raised.
7 III . R ev. S tat ., 1959, Ch. 38, §743: “ In trials for murder it shall
be a cause for challenge of any juror, who shall on being examined,
state that he has conscientious scruples against capital punishment, or
that he is opposed to the same.” This provision, in effect at the time of
Witherspoon’s trial, was not reenacted in the new Illinois Code of Crim
inal Procedure effective January 1, 1964; but the practice of death-
qualifying a capital jury has been sustained under the new Code, as au
thorized by the general section providing that each party may challenge
jurors for cause. People v. Hobbs, 35 I11.2d 263, 220 N.E.2d 469 (1966).
3
jurors (out of a total of 96 examined on the voir dire) were
excused at the request of the prosecution or routinely by
direction of the court because they were conscientiously
opposed to capital punishment. As is usual in such cases,
the specific questions asked of the veniremen regarding
their attitudes toward the capital penalty, answers to which
were treated as requiring their exclusion, varied from
venireman to venireman. Most were excused summarily,
without further inquiry upon their affirmative response to
the question whether they had any conscientious or religious
scruples against the infliction of the death penalty, or
against its infliction “ in a proper case.” 8 A few were asked
whether they could vote to inflict the death penalty in any
case.9 Some were asked whether they “believed in” the
death penalty.10 A couple were cross-questioned by the
court as to whether their profession of scruples was sincere,
or whether they “ just want to get off the jury.” 11 A few
other forms of inquiry appear.12 Only one of the 47 jurors
excluded for scruples was asked whether he could return
a guilty verdict; and this was an ambiguous question, put
to a confused venireman together with other questions on
the subject, and apparently not the critical question whose
8 See the imprinted record of the voir dire proceedings in Witherspoon
(hereafter, Witherspoon T r . ------ ) 661, 662, 668, 686-687, 723-724, 729,
730, 739, 743-745, 752, 788, 806, 807, 823-824, 830, 841-842, 857, 868, 877,
892, 893, 1017, 1018. Approximately three-fifths of the 47 jurors ex
cused for scruples were simply asked whether they had any conscientious
or religious scruple against the infliction of the death penalty in a proper
case, and answered that they did. Another fifth responded affirmatively
to the same question modified by the omission of the words “ in a proper
ease.” The remaining fifth of the excluded jurors were asked other or
additional questions.
9 Witherspoon Tr. 685, 714-715, 944, 991.
10 Witherspoon Tr. 847-848, 856-857, 868; see also id., at 841-842.
11 Witherspoon Tr. 744-745; see also id., at 685-686, 824, 990-991.
12 Witherspoon Tr. 644, 685-686, 990-991.
4
answer resulted in Ms exclusion.13 In all, it is fair to say
that on the Witherspoon voir dire, no inquiry was made
by the prosecution or the court to determine whether the
direction or strength of a venireman’s scruples was such as
to preclude his convicting the defendant of murder in a
proper case; and only a minority of the excluded jurors
were even asked whether their scruples were such as to
foreclose their voting for death on the facts of a particular
case, if ordered by the court to consider that penalty as one
available alternative. In a manner typical of many capital
trials (under varying statutory provisions in the several
jurisdictions), prospective jurors opposed to capital pun
ishment were simply identified as in some general fashion
opposed, and were thereupon expeditiously dispatched. The
pattern was set early in the voir dire by the judge: “Let’s
get these conscientious objectors out of the way, without
wasting any time on them. Ask him that question first.”
(Witherspoon Tr. 666; see also id., 661, 668, 687-688, 944).
That procedure was generally followed thereafter.
The jury selected by this process convicted Witherspoon
and sentenced him to death. His conviction and death sen
tence were affirmed on appeal, and after some intervening
post-conviction litigation, the present petition was filed
raising inter alia the claim that exclusion of scrupled jurors
violated the federal Constitution. The petition was accom
panied by an express request to introduce evidence in sup
port of its contentions. The post-conviction trial court sua
sponte denied this request and dismissed the petition. The
Supreme Court of Illinois affirmed, People v. Witherspoon,
36 111. 2d 471, 224 N.E. 2d 259 (1967), relying for rejection
of the scrupled-juror contention largely on its recent deci
sion in People v. Hobbs, 35 111. 2d 263, 220 N.E. 2d 469
(1966), a case coming to that court on direct appeal from a
13 Witherspoon Tr. 642-644.
5
murder conviction in which the death penalty had not been
imposed.
Bumpers brings here for review a judgment of the Su
preme Court of North Carolina affirming on direct appeal
convictions of Bumpers on a bill of indictment for rape (a
capital charge) and two bills for assault with intent to kill.
Pursuant to the jury’s recommendation of mercy, Bumpers
was sentenced to life imprisonment on the rape conviction;
consecutive ten-year terms were imposed on each conviction
of assault. In the process of selecting the trial jury, 53
? veniremen were interrogated; 16 were excused on the prose
cution’s challenge for cause because of opposition to capital
punishment, including 3 of the 6 Negro veniremen.14 De
fense counsel was allowed by the court a blanket objection
on federal constitutional grounds to this death-qualification
procedure.15 As in Witherspoon, the disqualifying questions
asked the several veniremen varied but none touched on the
'./prospective jurors’ ability or willingness to bring in a guilty
(verdict. Several of those excused asserted that they could
not vote for the death penalty under any circumstances.16
Several admitted that they did not believe in capital punish
ment under any circumstances.17 One said only that he did
not believe in capital punishment.18 Another admitted that
he had conscientious or religious scruples against the death
penalty.19 One juror said that he would not want to give
14 Bumpers R. 71-72. Bumpers is a Negro charged with rape o f a
white woman and assaults upon the woman and her white escort. The
remaining three Negro veniremen were also excused, one for cause and
two on the prosecutor’s peremptory challenges.
16 Bumpers R. 14 (stating the ground of objection), 16 (allowing the
general objection).
16 Bumpers R. 13-14, 15, 18-19; ef. id. at 16, 17.
17 Bumpers R. 17, 19, 20.
18 Bumpers R. 19.
19 Bumpers R. 16.
6
consideration to the death penalty as a possible verdict, bnt
that he would consider it if the judge told him that he was
required to ; he would obey the court. The judge then asked
him “Do you believe in capital punishment” ; he answered
no; and he was excused.20 A final juror testified that he
believed in capital punishment, but not for rape; that he
would not therefore consider a verdict of guilty as charged
(i.e., without recommendation of mercy) in this rape case.
The judge asked: “You do not believe in capital punish
ment in rape cases, is that what you said?” The juror re
plied that that was correct, and was excused.21 These pro
ceedings were had and excuses allowed, pursuant to a set
tled North Carolina practice that is, apparently, without
express statutory authority.22 The State Supreme Court
sustained its validity in affirming Bumpers’ convictions,
State v. Bumpers, 270 N.C. 521, 155 S.E.2d 173 (1967), in
reliance upon a recent decision to the same effect in an ap
peal of a case wherein the death penalty had been imposed,
State v. Childs, 269 N.C. 307,152 S.E.2d 453 (1967).
The death-qualification procedures disclosed by these two
records are exemplifications of a practice, common in its
general forms but varying widely in the details of its execu
tion, from jurisdiction to jurisdiction. The exclusion of
scrupled jurors from capital juries is forbidden by judicial
decision in one state,23 and by recent statutory enactments
20 Bumpers R. 15.
21 Bumpers R. 19.
22 The only applicable North Carolina statute appears to be N.C. G e n .
Stat . §9-14 (1953 Reeomp. Yol.), preserving in general terms “ the usual
challenges in law to . . . any juror,” and providing that the judge shall
“ decide all questions as to the competency of jurors.”
23 State v. Lee, 91 Iowa 499, 60 N.W. 119 (1894); State v. Rocker,
138 Iowa 653, 116 N.W. 797 (1908); State v. Wilson, 234 Iowa 60, 11
N.W.2d 737 (1943). In State v. Garrington, 11 S.D. 178, 76 N.W. 326
(1898), the South Dakota Supreme Court also held the excuse of scrupled
jurors improper, but subsequent legislation allowed it. S.D. Rev. Stat.
§34.3618(10).
7
in two more ;24 elsewhere in this country, it is practiced in
varying forms under statutory provisions or common-law
criminal procedure.25 It appears not to be practiced in
England (prior to the advent of abolition),26 in Canada, or
in other common-law jurisdictions.
The questions asked veniremen to determine the state
of their conscientious or religious attitudes toward capital
punishment, and the precise grounds of disqualification
Tor scruples, vary widely. From State to State, from
\court to court, from judge to judge, from case to case,
.and even from venireman to venireman on a particular
'ftoir dire (as in Witherspoon and Bumpers), interrogation
of the veniremen may be more or less protracted and
intensive; and excuses are allowed on answers ranging
from a flat assertion that the juror would never convict
on any state of facts in a case where the death penalty
is possible, to a generally expressed opposition to capital
punishment, or approval of its legislative repeal, or a
statement that only in an extreme case would the juror
impose the penalty of death.27 Cases with which we are
24 Md. Code A nn ., Art. 51, §8A (1967 Cum. Supp.); 1967 Nev. Ses
sion Laws p. 1472, repealing former Nev. Rev. Stat. §175.105(9),
26 See Knowlton, Problems of Jury Discretion in Capital Cases, 101
U. Pa . L. Rev. 1099, 1105-1107 (1953); Annot., Beliefs Megarding
Capital Punishment as Disqualifying Juror in Capital Case for Cause,
48 A.L.R.2d 560 (1956). The practice is criticized in Oberer, Does Dis
qualification of Jurors for Scruples Against Capital Punishment Consti
tute Denial of Fair Trial on Issue of Guilt, 39 Texas L. Rev. 545 (1961)
[hereafter cited as Oberer]; Oberer, The Death Penalty and Fair Trial,
The Nation, vol. 198, No. 15, p. 342 (April 6, 1964); McClelland, Con
scientious Scruples Against the Death Penalty in Pennsylvania, 30 Pa.
Bab A ssn. Q. 252 (1959).
26 Oberer, at 566, 7, n. 92.
27 See, for example, the excerpts of voir dire in the Arguello case,
s.et forth in Appendix I infra. See also, e.g., State v. Scott, 243 La. 1,
141 So.2d 389, 394 (1962) (sustaining exclusion of a juror whose ex
pressed attitude was “ that the offense would have to be 'pretty serious’ for
8
familair show a great variety in the level of concern of
the voir dire procedure with the question of conscientious
scruples. In many instances, the presiding judge routinely
and without much inquiry identifies veniremen who say
that they oppose capital punishment, or whom the judge
believes have some reason for opposing it, and excuses
them summarily. (We know of one capital case, for ex
ample, in which a prospective juror was excused simply
because he was a Quaker.)28 In other proceedings, hours
of questioning are devoted to the jurors’ attitudes toward
capital punishment. Lengthy and elaborate interrogation
of the veniremen is pursued, whose effect is to leave with
the jurors the intense impression that conscientious
scruples and attendant attitudes of mercy and compassion
j are unlawful, irrational, and the fit subject of judicial
(condemnation. (We are aware, for example, of an instance
in which a prospective juror who reacted to a protracted
death-qualifying voir dire by volunteering that she had
two sons of her own, and, thinking that it might be one
of them on trial, might favor the defense, was excused
from jury service generally—not merely in the capital
case being tried—for the announced reason that, she was
emotional, hence unfit for jury service).29
him to bring in a verdict assessing the death penalty . . . ” ). Compare
State v. Weston, 232 La. 766, 95 So.2d 305 (1957) (sustaining the inclusion
of a juror whose expressed attitude was that he would always impose
the death penalty except where the evidence was pretty weak). Some
jurisdictions that allow the exclusion of jurors scrupled against capita]
punishment also excuse for cause jurors scrupled in favor o f the
death penalty. E.g., State v. Henry, 196 La. 217, 198 So. 910 (1940).
Others do not. E.g., Hollins v. State, 148 So.2d 274 (Pla. 1963); see
Poole v. State, 194 So.2d 903 (Fla. 1967).
28 See the excerpt o f voir dire examination in the Saterfield case, set
forth in Appendix II, infra.
29 See the excerpt o f voir dire examination in the Schader case, set
forth in Appendix III, infra.
9
We have gone outside the records of Witherspoon and
Bumpers for this brief description of the general institu
tion of death-qualification of capital juries, as it is prac
ticed in the several States today, because the Court’s deci
sion in these cases may affect the institution more or less
broadly, and it seems advisable that the nature of that
somewhat amorphous institution, in its general outlines,
be stated.
Summary o f Argument
We urge that the Court not now decide on the merits
the ultimate constitutional question posed in these two
cases: whether death-qualifying a capital jury violates
the Constitution of the United States. The Witherspoon
case should be reversed and remanded with directions
to afford Witherspoon the evidentiary hearing which his
post-conviction petition sought in order to substantiate
that federal constitutional claim. This may and should
be done without deciding the substantive validity of the
claim, since one of the purposes for which Witherspoon
sought a hearing was to make a record of constitutional
facts— as distinguished from adjudicative facts—facts
whose very function is to support an advised and well-
considered determination of the merits of the constitutional
question to which they relate. The scrupled-juror issue
need not and ought not be reached in Bumpers, since
Bumpers has a palpably valid search-and-seizure claim
that is included within the grant of certiorari to the Su
preme Court of North Carolina; but, if it is reached,
Bumpers should fitly be remanded to that court in light of
the reversal of Witherspoon.
Our reasons for urging deferment of decision upon the
constitutional objections here presented to the practice
10
of excluding death-scrupled jurors from capital juries
are several. First, the scrupled-juror question is one of
vital importance—literally a question of life or death—•
to hundreds of condemned men on whose behalf proceed
ings raising the point are already pending in a number
of courts. Those proceedings present the scrupled-juror
question in the context of several other substantial federal
constitutional contentions, not brought here in Witherspoon
and Bumpers, which are so functionally related to the
scrupled-juror issue that decision of the latter without
consideration of them would be exceedingly ill-advised.
Second, the nature of the scrupled-juror issue itself is
such that an adequate factual record, not presented to
the Court by either of these cases in their present posture,
is the indispensable condition of its wise and deliberate
decision. More even than most constitutional issues, the
claim that due process and equal protection are violated
by the exclusion of death-scrupled jurors implicates ques
tions of constitutional fact which the Court cannot prop
erly resolve by intuition or speculation, and whose de
velopment on the record of an evidentiary hearing is
essential to informed and enlightened determination of
this difficult, important constitutional point.
Those factual questions are of a sort that lend them
selves to systematic investigation by the methodology of
social science research; and, indeed, a major empirical
study of them has already been undertaken whose results
can be judicially presented in a fashion that will illuminate
the ultimate constitutional judgments required to be made.
Since Witherspoon was wrongly denied an evidentiary
hearing at which this sort of presentation could be de
veloped, proper principles for the adjudication of grave
constitutional controversies require the reversal and re-
11
mandment of his case. The same principles preclude un
necessary and precipitous disposition of the issue in
Bumpers, which is properly reversible on another ground.
If, however, the scrupled-juror point is reached in
Bumpers, that case should be remanded without definitive
decision of the constitutional merits because of (i) unclarity
of the record stemming from the ambiguous treatment so
far given by the North Carolina Supreme Court to matters
of the sort that will be heard after remand in Witherspoon
and (ii) the desirability of affording the North Carolina
court an opportunity for determination in the first instance
of the issues presented here, cf. Patterson v. Alabama, 294
U.S. 600 (1934).
12
ARGUMENT
I.
This Court Should Not Decide the Serupled-Juror
Issue in Isolation From Other Related, Substantial Fed
eral Constitutional Challenges to Capital Trial Pro
ceedings.
A. The Scrupled-Juror Issue in Context.
As we have indicated in our motion for leave to file
this Brief, pp. 1-M-6-M, supra, we are now representing a
substantial number of the condemned men in this country.
On their behalf, we have raised a set of interrelated
federal constitutional challenges to capital punishment and
to its common procedural incidents which several courts,
including this Court, have recognized as substantial.30
30 The following litigations are noteworthy, although the enumeration
is not exhaustive:
(i) Adderly v. Wainwright, U.S.D.C., M.D. Fla., No. 67-298-Civ-J is
a class action habeas corpus proceeding on behalf o f the 50 inmates of
Florida’s death row, challenging the administration of capital punish
ment in that State on the first four grounds stated at pp. 20-21, infra.
(For purposes of this footnote, those grounds may be abbreviated as:
(1) exclusion of scrupled jurors; (2) lawlessly broad jury discretion;
(3) unconstitutional single-verdict procedure; (4) cruel and unusual
punishment. The fifth ground described at p. 21, infra—racial dis
crimination in capital sentencing— is not presented in Adderly, but is
raised in another habeas corpus case in the same court, Craig v. Wain-
wright, U.S.D.C., M.D. Fla., No. 66-595-Civ-J, pending.) In an order
of April 13, 1967, in the Adderly ease, United States District Judge
William A . McRae, Jr. stayed all executions in the State of Florida,
reciting that “ it is apparent on the face of the Petition that if peti
tioners’ allegations are true, their constitutional rights may have been
violated . . . [A]side from the procedural aspects of the case [involving
the propriety of a class action for a writ of habeas corpus], the peti
tion, taken as a whole, may state a claim for relief by way of federal
habeas corpus.” (Order of April 13, 1967, pp. 1-2.) By order o f August
9, 1967, Judge McRae subsequently continued his class action stay in
effect. (footnote continued on next page)
13
The Witherspoon and Bumpers cases present one of those
(ii) Hill v. Nelson, U.S.D.C., N.D. Cal., No. 47318, is a similar class
action habeas corpus proceeding on behalf of California’s 60 condemned
men. It raises the same claims as Adderly, with the exception of the
single-verdict contention. (California has a split-verdict procedure for
capital trials in murder cases.) By order of July 5, 1967, District Judge
Robert F. Peekham stayed all executions in California for which dates
had been or would be set. The Attorney General of the State sought
by a petition for mandamus and prohibition to have the Court of Ap
peals for the Ninth Circuit set aside Judge Peckham’s stay. The Court
o f Appeals declined, after argument, to do so. Nelson v. Peekham, 9th
Cir. No. 21969, decided July 10, 1967.
Thereafter, Judge Peekham determined that considerations of con
venience were persuasive against entertaining the Hill v. Nelson case as
a class action. By order of August 24, 1967, he therefore vacated the
class stay, but kept the stay in effect as to the individual Hill petitioners.
Exercising the authority of a federal habeas corpus court to “ dispose of
the matter as law and justice require,” 28 TJ.S.C. §2243 (1964), he
established a procedure for the filing o f individual federal habeas corpus
petitions by the other death-sentenced California prisoners, for their con
solidation, and for stays of execution of the individual petitioners. “ Jus
tice requires that no condemned man who has standing to raise any
federal constitutional issue, including any of the four common questions
[i.e., cruel and unusual punishment; lawlessly broad jury discretion;
exclusion of scrupled jurors; and a fourth claim—right to appointment
of counsel in the post-appeal stages of a capital case] should be executed
until such question is finally adjudicated.” (Order of August 24, p. 8).
(iii) United States ex rel. Smith v. Nelson, U.S.D.C., N.D. Cal. No.
48011, is an individual habeas corpus aetion raising the same issues as
Hill v. Nelson. The petition was denied on the merits by District Judge
William T. Sweigert on October 20, 1967. Judge Sweigert found the
issues presented substantial and accordingly granted a certificate of prob
able cause and a stay o f execution pending appeal. Thereupon, on
Smith’s motion in the appeal, the Court of Appeals for the Ninth Circuit
vacated Judge Sweigert’s Order denying the petition and remanded the
case to the District Court to await further developments in the California
Supreme Court cases described in the following subparagraph. Smith
V. Nelson, 9th Cir., No. 22328, Order o f January 3, 1968.
(iv) In the Hill v. Nelson order of August 24, Judge Peekham found
that several o f the federal issues raised therein had not been presented
to the California courts. He therefore required the individual Hill peti
tioners to exhaust their state remedies, while the federal stay o f execu
tion remained in effect. Habeas corpus petitions raising the four Hill
questions were filed in the California Supreme Court by two of the
Hill petitioners. By order of November 14, 1967, that court swa sponte
entered orders in Application of Saterfield Cal. S.C., Crim. No. 11573,
and Application of Anderson, Cal. S.C., Crim. No. 11572, staying all
14
challenges, isolated by the fortuities of litigation from the
others.81
executions of condemned men in the State of California until the issues
were resolved.
(v) The United States Court o f Appeals for the Fifth Circuit has
recently stayed executions o f individual federal habeas corpus petitioners
in cases challenging the administration of the death penalty in three
States within that Circuit. Spencer v. Beto, 5th Cir. No. 25548, Order
o f November 16, 1967 (Texas) ; Brent v. White, 5th Cir. No. 25496,
Order of November 28, 1967 (Louisiana); Shinall v. Breazeale, 5th Cir.
Misc. No. 978, Order o f February 21, 1968 (Mississippi). Bach of these
cases raises the four Adderly issues; Brent and Shinall also raise claims
of racial discrimination in capital sentencing and of systematic exclusion
of Negroes from the capital trial juries.
(vi) Stays of execution of condemned men have been issued by nu
merous federal district courts and state trial courts in post-conviction
proceedings raising the Adderly issues together with, in some cases, the
contention of racial discrimination in capital sentencing. E.g., Bell v.
Patterson, U.S.D.C., D. Colo., No. 67-C-458, Order of September 14,
1967; Segura v. Patterson, U.S.D.C., D. Colo., No. 67-C-497, Order of
October 13, 1967; Brown v. Lane, U.S.D.C., N.D. Ind., No. 4129, Order
of December 29, 1967; Childs v. Turner, U.S.D.C., W.D.N.C., No. 2663,
Order o f May 12, 1967; Chevallier v. Beto, U.S.D.C., S.D. Tex., No. 68-
H-57, Order of January 24, 1968; Arhwright v. Kelly, Super. Ct., Tatt
nall Cty., Ga., No. 5283, Order of December 1, 1967; Williams v. Kelly,
Super. Ct. Tattnall Cty., Ga., No. 5284, Order of December 1, 1967;
State V. Funicello, Essex Cty. Ct., N.J., Indictment No. 2049-64, Order
o f February 23, 1968.
(vii) Maxwell v. Bishop, 385 U.S. 650 (1967), is a habeas corpus pro
ceeding by a condemned Arkansas prisoner, challenging his sentence of
death on the grounds o f lawlessly broad jury discretion, racial discrimina
tion in capital sentencing, and unconstitutional single-verdict procedure.
His petition also raised a claim of systematic exclusion of Negroes from
Arkansas juries that had been decided against him on the merits in a
prior federal habeas proceeding. The district judge declined to enter
tain the jury claim anew, and decided the several capital punishment
issues against Maxwell on the merits. He declined to issue a certificate
o f probable cause or a stay of execution pending appeal; and a Circuit
Judge o f the Eighth Circuit also refused a certificate or a stay. Mr.
Justice White thereupon stayed Maxwell’s execution, and this Court
reversed and remanded with directions to grant a certificate and a stay.
The case is now under submission in the Court of Appeals for the Eighth
Circuit.
31 This isssue is sub judice in numerous other cases, in addition to those
noted in the preceding footnote. We are unable to provide an exhaustive
15
We urge the Court to view this issue in the contest of
the others. It is not our purpose, in so urging, to expand
the constitutional questions presented for consideration be
yond the limited ones raised by the grants of certiorari
here. To the contrary, the thrust of our submission is that
the Court should not decide even those limited issues on
the merits at this time. But, in order to understand what
is at stake in the challenge to exclusion of death-scrupled
jurors, and precisely why we contend that decision of the
scrupled-juror issue had best he deferred for decision on
fuller records than are now before the Court, it is impera
tive to see the procedures for the trial of capital cases as
an inter-connected functioning system, subject—in the to
tality of their operation—to a number of similarly inter
connected, grave federal constitutional complaints. Such
a perspective is essential, we suggest, to informed delib
eration upon the constitutional implications of the one
aspect of that system, the practice of death-qualifying cap
ital juries, now before the Court.
The full range of interrelations among those federal
constitutional grievances that arise from the common
forms of capital trial practice is not immediately evident.
We explore the principal aspects of relationship at pp.
22-28 below, following identification of the substance of
the several grievances. But, at one level, the interrelated-
ennmeration, but the following litigations are exemplary of the eases
pending at every level of the state and federal court systems: Wheat
v. Washington, U.S., Misc. No. 1301 (petition for certiorari pending);
Ellison V. Texas, U.S., Misc. No. 1311 (sam e); Evans v. Button and
Williams v. Dutton, 5th Cir., Nos. 25348-25349 (pending for decision of
the scrupled-juror question); Clarke V. Grimes, 374 F.2d 550 (5th Cir.
1967) (execution stayed pending exhaustion of state remedies on the
issue); Crain v. Beto, U.S.D.C., S.D. Tex., No. 66H-626 (pending for
decision of the issue) ; State v. Smith and State v. Biggins, Wash. S.C.,
Nos. 39475, 39481 (pending for decision of the issue); Siros V. State,
Dist. Ct. Harris Cty., Tex., No. 104617 (habeas corpus petition pending
for decision of the issue).
16
ness of the grievances is intuitively obvious. "What is at
issue in these capital cases is the fundamental question of
the fairness and regularity required by the Constitution in
proceedings by which the State determines to take human
life.
The cases confront squarely both the procedure and the
practical consequences of the procedure used to make the
legal decision whether a man should live or die. In a capi
tal ease tried in most jurisdictions in this country—includ
ing Illinois and North Carolina—that procedure consists
of death-qualifying a jury by systematically excluding
from it persons representative of the most enlightened seg
ment of public opinion, and committing to the jury so
selected a wholly arbitrary and unregulated discretion in
the life-death choice, to be exercised under conditions that
deprive the jurors of information that is the indispensable
requisite of rational sentencing judgment.
B. A Summary o f Capital Trial Procedure.
Specifically:
(1) On voir dire examination, persons having con-
/"~scientious or religious scruples against capital punish-
I ment are excused for cause. 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 delivers
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
upon a defendant, to an unrepresentative sub-group
of the community, comprising its most punitive, ata
vistic and uncompassionate members. Third, in the
17
process of voir dire questioning by which the jury is
death-qualified, it reinforces the very attitudes of
punitiveness and uncompassion 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, in
deed, that the attitudes of mercy and compassion
which may undergird such a determination are legally
disfavored and morally unfit.
f" (2) The capital case is then tried to the jury so se
lected, which determines both the question of guilt
and that of punishment. Ordinarily, these two deter
minations are made simultaneously—by the traditional
“ single-verdict” procedure, as distinguished from the
two-staged, “ split-verdict” procedure used in a hand
ful of jurisdictions. Under this single-verdict proce
dure, the jury hears all the evidence bearing on guilt
or on punishment before retiring to decide the guilt
question, then returns with a single verdict which ad
judges 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 oppor
tunity—other than the guilt trial—to present to the
jury evidence of the defendant’s character and back
ground, 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 pros
ecution evidence of bad character, damningiy preju
dicial on the guilt determination. And, of course, the
defendant may make an appeal for mercy in sentenc
ing, may personally address those persons who hold
18
his life in their hands, only by taking the stand gen
erally, thereby waiving the privilege against self-
incrimination. This is a practice that, as the Reporters
of the A.L.I. Model Penal Code, have noted, forces the
defendant to a “ choice between a method which threat
ens the fairness of the trial of guilt or innocence and
one which detracts from the rationality of the deter
mination of the sentence.” 82 For present purposes,
what is important is that a defendant who believes he
has any chance of acquittal of a capital charge will
often choose to avoid prejudicing that chance by ex
pansion of the trial record into background and
character matters that can make him appear guilty;
and, under single-verdict procedure, the result fre-
C quently is that capital sentencing 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 that is essential to rational sentencing
choice. It is also deprived of any sort of legal stand
ards or guidelines for making that choice. Under
ubiquitous capital trial procedure—in Illinois and
North Carolina, as in virtually every other American
jurisdiction—the decision between the death penalty
and lesser alternatives to it is required to be made by
the jury in its unguided, unfettered and unreviewable
discretion—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 is not made pursuant to rules of law
or within the limitations of any sort of regular, uni- 32 *
32 A m erican Law I n stitu te , M odel P en al C ode, Tent. Draft No. 9
(May 8, 1959), Comment to §201.6, at p. 74.
19
form or generalized doctrines or principles. Rather it
is avowedly ad hoc, ex post facto and— because it nei
ther does nor need respond to any rational conception
of punishment or sanctioning—wholly arbitrary. Little
wonder that, in the actual administration of capital
sentencing, jurors have been shown to use this lawless
discretion lawlessly, and to discriminate racially, for
example, in sentencing men to death.38
(4) The jury’s sentencing decision is not ordinarily
'' judicially revisable. It is, of course, subject to corree-
I • tion by the exercise of executive clemency; but this
| s sort of gubernatorial dispensation is administered still
more irregularly than the jury’s decision itself. Pro
cedures for the clemency determination are unformu
lated; standards to guide it are non-existent; and, by
this stage, the condemned man is usually unrepre
sented and legally helpless.33 34 Political and other con
siderations nevertheless 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 legally put to death. Their executions are as
futile and purposeless as they are unusual and arbi
trary. For, although it is impossible to speak with
dogmatic assurance in such matters, there is simply
no evidence that capital punishment serves any legit
imate end or purpose of the criminal law—deterrence,
incapacitation, reformation—which lesser exactions do
not; and the very strong weight of expert opinion
condemns the death penalty as utterly without redeem
ing social value.
33 See text and notes at notes 1, 2, supra.
34 See text and note at note 4 supra.
20
C. The Federal Constitutional Violations Entailed
by the Procedure.
The specific federal constitutional attacks which appear
to us to be validly leveled against the various aspects of
the procedure just described— and which are raised in most
of the litigations described in footnote 30 supra— are the
following:
C (1) The systematic exclusion of death-scrupled ju
rors in capital cases offends the Constitution because
(i) it deprives capital defendants of trial by a jury
that is a cross-section of the community, in violation
of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment; 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.
^ , (2) The ubiquitous practice which commits sentenc
ing decision in capital cases to the undirected, unlim
ited and unreviewable discretion of the jury, permit
ting jurors to choose between life and death arbitra
rily, capriciously, for any reason, or for no reason,
violates the rule of law basic to the Due Process
Clause, for reasons akin to those that determined
Giaccio v. Pennsylvania, 382 U.S. 399 (1966).
(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 constitution
ally deficient because (i) it compels the defendant to
a choice between his constitutional rig'ht of allocution
(and to present evidence prerequisite to rational sen
tencing choice) and his privilege against self-incrimi
nation, and (ii) it results in an unfair trial on either
the guilt issue, or the sentencing issue, or both.
21
(4) Capital punishment is a cruel and unusual pun-
isment within the condemnation of the Eighth Amend
ment as incorporated into the Fourteenth, at least
where (i) the life-death choice is committed to the un
directed, unconfined and arbitrary discretion of the sen
tence^ and (ii) no legal procedures are provided which
assure considered and rational judgment by the sen-
teneer of circumstances in mitigation and the absence
of circumstances in aggravation that would render im
position of the death sentence cruel and unusual on the
facts of particular cases.
(5) In many States, it can be empirically demon
strated that sentencing juries have utilized the un
fettered discretion given them, in capital sentencing by
discriminating racially in the imposition of death sen
tences. In these States, where there can be shown a
long-continued pattern and practice of applying the
sentence of death with extremely disproportionate fre
quency against Negro defendants convicted of offenses
(particularly rape) involving white complainants or
victims, such Negro defendants are denied the equal
protection of the laws guaranteed by Section 1 of the
First Civil Rights Act35 36 and by the Fourteenth Amend
ment.86
35 The Act o f April 9, 1866, eh. 31, $1, 14 Stat. 27, declared the
Negroes citizens of the United States and guaranteed that “such citizens,
o f every race and color, . . . shall be subject to like punishment, pains,
and penalties [as white citizens], and to none other, any law, statute,
ordinance, regulation, or custom, to the contrary notwithstanding.” The
Enforcement Act of May 31, 1870, ch. 114, §§16, 18, 16 Stat. 140, 144,
implemented the recently adopted Fourteenth Amendment guarantee of
equal protection by reenacting the 1866 Act and extending its protec
tion to all persons. This explicit statutory prohibition of racially dis
criminatory sentencing survives today as R ev. St a t . §1977 (1875), 42
U.S.C. §1981 (1964).
36 The litigations described in footnote 30, supra, for the most part,
present an additional contention that is less relevant for present pur-
22
D. The Interrelatedness o f the Constitutional Points.
It would be inappropriate to argue here, of course, the
validity of any of these constitutional contentions, save the
scrupled-juror point. However, we think it palpable that
each of the several other claims presents, at the least, a
grave and substantial federal constitutional objection to
the ordinary practices employed in capital cases;37 and
that, in context, these objections cast very considerable con
stitutional doubt upon the lawfulness of sentences of death
obtained pursuant to the practices.
That doubt has an immediate relevance, we believe, to
the issue now before the Court. For if, as we have tried to
suggest, the institution of capital punishment is funda
mentally suspect of inconsistency with the Constitution—if
its administration is marked by a cumulation of constitu
tionally flawed or dubious procedures—this Court is surely
poses than those enumerated in text. This is the claim of a consti
tutional right to appointment of counsel for indigent criminal defendants
in capital cases between the termination of their direct appeals from
conviction and sentence of death and the time o f execution o f the sen
tence by electrocution. The petitioners contend that the failure to provide
counsel for condemned indigents during this period is federally uncon
stitutional (i) under the Sixth Amendment and the Due Process Clause
of the Fourteenth Amendment, because the period is a “ critical stage”
in a capital ease when various life-saving procedures (application for
certiorari to the Supreme Court of the United States; state collateral
attack proceedings; federal habeas corpus proceedings; applications for
executive clemency; proceedings challenging a prisoner’s mental compe
tency to be executed; and stays of execution from state and federal
courts and other appropriate authorities) are available and require the
expert assistance of counsel; (ii) under the Due Process Clause of the
Fourteenth Amendment because the assistance of counsel is requisite to
assure a fair hearing o f post-appellate claims which the indigent con
demned man is not adequately able to secure himself; and (iii) under
the Equal Protection Clause, because condemned men with money can
retain counsel for these various essential functions while indigents can
not. Gideon v. Wainwright, 372 U.S. 335 (1963); Hamilton v. Alabama,
368 U.S. 52 (1961); Douglas v. California, 372 U.S. 353 (1963).
37 See note 5, supra.
23
advised to come at a question involving the validity of one
of those procedures with appreciation of its impact upon
and within the entire assailable structure. The Court is
surely called upon to question whether, in this context, the
immediately challenged practice functions together with
other challengeable ones to make up a complex of proce
dures that is less fair, less regular, less rational, than the
Due Process and Equal Protection Clauses of the Constitu
tion can tolerate in proceedings determinative of the lives
of men.
( Put simply, our submission is that where a penalty as
V\grave, irremediable and apparently purposeless as death is
administered by practices many ways constitutionally doubt
ful, each of the major aspects of that administration must
be subjected to the most rigorous scrutiny for consistency
with constitutional norms. Certainly is this the case of the
practice of death-qualifying jurors, the effect of which is
to commit dispositional power over the entire suspect sys
tem into the hands of an unrepresentative subgroup of the
community—probably a numerical minority38—and those
who are asserted (provably, we believe)39 to be atypically
punitive, arbitrary, autocratic and unenlightened.
In addition to this general observation, we think it im
portant to call attention to the following more specific points
of relationship between the scrupled-juror claim and the
other constitutional points we have described:
38 Results of nationwide surveys on attitudes towards the death penalty
conducted periodically over the past fifteen years have shown growing
opposition to the death penalty until, in 1966, the number opposed to
capital punishment surpassed the number in favor: 47% opposed, 38%
in favor, and the remainder undecided, Louis Harris Survey, The Wash
ington Post, Sunday, July 3, 1966; 47% opposed, 42% in favor, and
the remainder undecided, Report o f the Gallup Poll, Philadelphia Bul
letin, Friday, July 1, 1966, p. 7, col. 6.
39 See pp. 56-68, infra.
24
(1) The contention that due process is violated by
the unfettered discretion habitually given jurors in the
death-life choice is intimately linked with the character
of the juries produced by the practice of death-qualifi
cation. I f the nature of the jury’s function in capital
sentencing is recognized as unique in its commitment
of law-making, as distinguished from law-applying,
power to jurors, then the importance of a jury which
is truly representative of the community or general
population is intensified. In this context, the constitu
tional command of representativeness— of a jury that
is a “cross-section”—comes to take on additional mean
ing. Jurors who avowedly determine questions of social
policy, as well as of fact, and who are expected to wreak
their individual ideologies directly on the defendant,
should properly be required to be ideologically repre
sentative, as perhaps jurors with a narrower mission
need not be.
Conversely, the institution of unfettered jury discre
tion destroys the major—indeed, the only arguably
valid—pretext for the exclusion of scrupled jurors. It
is said in defense of their exclusion that a scrupled
juror in a capital case—like a juror in a gambling case
who avows that he does not believe in and will not en
force the statutes prohibiting gambling—cannot “ fol
low the law’ .” The theory is that the law requires capi
tal jurors to determine the appropriateness of the
alternative penalties of death and something-less-than-
death on the facts of particular cases. But the truth is
—as the argument relating to lawlessly broad jury dis
cretion emphasizes—that the “ law” requires nothing
of the sort. There are no legal requirements of any
sort constricting the capital juror or guiding his choice
of penalty; he may consider the facts of the case or
ignore them as he chooses; in any event there is no law
25
to apply to the facts. It is constitutionally disingenu
ous, at best, to tax a juror with inability to follow the
law when there is no applicable law. But could this
lawless state of affairs be considered a “law” with which
conscientious scruples are inconsistent, surely it is
critical that that law itself is constitutionally assailable.
For if the only state interest asserted as the justifica
tion for systematically excluding a class of jurors—
thereby prima facie destroying the representative or
cross-sectional character of the jury—is the obtaining
of a jury which will make ad hoc penalty decisions in
the exercise of a lawless discretion, and if giving
jurors that sort of lawless discretion is itself uncon
stitutional on other grounds, then the justification
clearly fails.
\j (2) The contention that the single-verdict practice
employed in capital trials in Illinois, North Carolina
and elsewhere is federally unconstitutional also has
grave implications for the scrupled-juror contention.
This is so in at least two regards. First, one of the
grounds of attack on single-verdict procedure is that
it functions to deprive the sentencing body, the jury,
of information without which the sentencing decision is
irrational. Specifically, by limiting the basis for sen
tencing judgment to the evidence admitted at trial of
the issue of guilt or innoeence, and by precluding a
defendant who stands on his privilege against self-in
crimination from personally addressing the sentencing
jury, the practice keeps from the jury knowledge of
the character and background of the defendant that is
essential to rational individualized sentencing. But
the exclusion of scrupled jurors has as its expressed
purpose and its effect compelling jurors precisely to
make individualized sentencing determinations—de-
26
terminations that are freed from the influence of con
trolling general principles. The effect of the exclusion,
coupled with the single-verdict practice, is therefore,
first, to insist upon ad hoc death-life sentencing judg
ments and, then, to deprive ad hoc judgments of any
non-arbitrary basis.
Second, one head of constitutional objection to the
death-qualification of jurors is that the defendant is
denied a representative and unbiased jury on the ques
tion of guilt or innocence. In defense of the practice,
it is said that scrupled jurors are disqualified by their
scruples from sitting in judgment on the penalty ques
tion in the fashion required by law; and that, since a
State may, in the interest of efficiency, choose to try the
penalty question simultaneously with the guilt question
to the same twelve jurors, the exclusion of scrupled
jurors from the guilt determination is permissible.
But, quite apart from other difficulties with this argu
ment,40 it largely collapses if—for reasons other than
the scrupled-juror contention—the simultaneous-ver
dict procedure is itself unconstitutional. A State can
hardly justify one practice that impinges on a federal
constitutional right by the logic that it is an efficient
way to achieve another, independently unconstitutional
procedure.
(3) The assault on the death penalty as cruel and
unusual punishment also has obvious implications for
the question of the constitutionality of excluding
scrupled jurors. The exclusionary practice is followed
and defended exclusively as a means of permitting the
States to conduct capital trials in a certain fashion. If
the States are powerless to conduct capital trials in
some or all cases, consistently with the Eighth Amend.
40 See pp. 42-44, infra.
27
ment, the exclusion of scrupled jurors lacks a leg to
stand on. But apart from decision of the ultimate
Eighth Amendment question on the merits, it is vital
to note that subordinate factual issues that have been
and will he litigated in cases challenging the death
penalty as cruel and unusual are immediately relevant
also to enlightened disposition of the scrupled juror
point. The leading legal commentator on that latter
point has stated one of the principal judgments in
volved in its resolution to be: “"Why, in the qualifica
tion of [a capital] . . . jury, should the prosecution’s
interest as to the punishment issue he given precedence
over the defendant’s interest as to the guilt issue!” 41
This question, calling for a weighing of countervailing
interests, certainly lies at the nub of one method of ap
proach to the issues now before the Court.42 43 * Its answers
would be markedly affected, we suggest, by a showing
that the State’s interest in the entire institution of
capital punishment is insignificant. This showing is a
central aspect of the litigation attacking the death pen
alty on Eighth Amendment grounds.48
(4) The claim of racial discrimination in the imposi
tion of the death penalty is also related to the scrupled-
juror issue, although less intimately than the other
41 Oberer, at 552.
42 See pp. 33-36, infra.
43 One of the subdivisions of the Eighth Amendment contention ad
vanced in the California litigation described in note 30, supra, for ex
ample, is that the death penalty is unnecessarily cruel, see Robinson v.
California, 370 U.S. 660, 667 (1962) (Mr. Justice Douglas, concurring) ;
Weems v. United States, 217 U.S. 349, 370 (1910); Wilkerson v. Utah,
99 U.S. 130, 136 (1878), because capital punishment serves no significant
state interest that can justify its imposition upon the condemned man.
In support of that contention, the California claimants have offered
and are prepared to prove by expert opinion that there is no legitimate
aim of criminal law which is furthered by the death penalty.
constitutional points just enumerated. It is no accident
that many of the eases cited in notes 30, 31 supra, which
present the discriminatory death-sentencing conten
tion involve as well a claim of systematic exclusion of
Negroes from the capital trial juries. But we believe it
is demonstrable that the exclusion of scrupled jurors
and of members of racial and other minority groups
are connected phenomena: that such minorities are
disproportionately kept from capital jury service by
the death-qualification practice.44 Particularly is this
so when persons opposed only to the death penalty for
rape are excluded as scrupled; understandably, racially
discriminatory application of the penalty would make
Negroes so opposed. We make these assertions not
as facts which we would ask the Court to notice, but
as matters which we believe are provable and which,
we think, a properly made record for decision of the
scrupled-juror question would and should explore.
E. Conclusion.
We have discussed the relations of the scrupled-juror
question to these several other constitutional issues for a
number of reasons. First, we think that the other issues
give considerable support to the constitutional positions of
the petitioners in Witherspoon and Bumpers. The practice
of death-qualifying a capital jury posits the existence of
certain other institutions and practices— capital punish
ment, obviously; but also, in some measure, jury discretion
in capital sentencing, and the single-verdict capital trial—
which are themselves obnoxious to substantial independent
constitutional complaint. We would think it inappropriate
for the Court to approach the question of constitutionality
28
44 See pp. 58-59, infra.
29
of death-qualification on the usual assumption that those
posited underlying institutions are constitutionally unas
sailable, when in fact they are both assailable and at this
very moment being assailed on a broad front. Their sus
ceptibility to that assault increases the trenchancy of the
challenge to excluding scrupled jurors, both by pointing up
that the exclusionary practice is a constituent part of a
more broadly defective set of procedures which render capi
tal trials unfair, and by denying constitutional validity to
the several principal defenses and justifications put for
ward for death-qualification. Advertence of the other issues
therefore radically affects the manner in which the determi
nants of the scrupled juror question must be framed for
decision. Conversely, we would hope that nothing would
be decided or written by the Court in these cases that would
inadvertently reflect upon issues not presented here but
closely related to those presented here, and upon which the
lives of hundreds of men depend.
Principally, however, we believe that the intimate rela
tion of the scrupled-juror question to other substantial con
stitutional points strongly supports our own position that
the former question should not now be decided on the
merits by the Court. It is unfortunate, we believe, that the
complaint of exclusion of scrupled jurors has come to the
Court in these cases isolated from other claims so closely
linked with it. Substantive determination of that constitu
tional question in isolation would involve one or another
of two courses of deliberation by the Court—neither, we
submit, satisfactory. The first is to treat as valid and
unchallenged several aspects of capital trial procedure af
fected by, or invoked in support of, the practice of death-
qualifying jurors—although those aspects are in fact under
massive contemporary judicial challenge which, we believe,
will in due course hold them invalid. The second is for this
30
Court now more or less explicitly to determine those other
constitutional points on their merits—without an adequate
record and without benefit of briefing or argument. In mat
ters of life and death, both courses would appear most
strongly undesirable.
Notwithstanding these considerations, arising from the
connection of the issues raised in Witherspoon and Bumpers
with others not now presented, we might hesitate to urge the
Court, on that account alone, to defer decision of an issue
upon which it had granted certiorari. But other substantial
reasons appear, in the nature of the scrupled-juror question
and the quality of these two records to present it adequately,
for pretermitting a decision on the merits now. Finally, we
believe that the procedural posture of the Witherspoon and
Bumpers cases strongly supports—if it does not compel—
dispositions of these cases without decision of the ultimate
constitutional issues raised by death-qualification of capital
juries. We turn now to our grounds for these latter asser
tions.
II.
T h is C ourt S h ou ld Not Decide the Scrupled-juror
Q u estion on an Inadequate Record.
A. The Nature o f the Legal Issues Presented.
Our submission, in summary, is that the Witherspoon
and Bumpers records, in their present state, provide a
wholly inadequate basis for considered determination of
the scrupled-juror issue by this Court. An evidentiary
hearing, at which full exploration can be made of im
portant questions of constitutional fact bearing on the
issue is, we believe, the necessary precondition of its in
formed decision. To explain why this is so, we state first
our understanding of the nature of the practice of death-
31
qualifying jurors, and of the nature of the federal con
stitutional objections to the practice.
1. The Practice of Death-Qualifying Jurors.
The practice of allowing a challenge for cause of venire
men with conscientious scruples against capital punish
ment stems from the time, in most American jurisdictions,
when the death penalty was mandatory upon conviction
for capital crimes. Then, the sole function of the jury
in a capital case was to determine guilt, the death penalty
following automatically. Under a mandatory death-sen
tencing scheme, it was deemed vital to the interests of
justice that jurors disposed against capital punishment
be excluded from sitting on the question of guilt, on the
theory that such jurors would likely refuse to follow
the law and would decline to convict in the teeth of the
evidence. During this era, acquittal upon the capital
charge was “ the only fashion in which [a juror’s] . . .
opposition to capital punishment could be asserted” ; and,
with the growth of conscientious opposition in the popula
tion, “ the possibility of a guilty man going free was the
vital concern. . . .” Oberer,45 at 550-551. Accordingly,
statutes disqualifying death-scrupled jurors were enacted,
and most courts deciding the question without controlling
-legislation announced a similar common-law doctrine of
disqualification. See Knowlton, Problems of Jury Discre
tion in Capital Cases, 101 U.Pa. L. R e v . 1099, 1106 (1953).
Since those times there has occurred an universal
humanitarian trend away from capital punishment as a
mandatory penalty.46 American legislatures, with insignif
45 See note 25, supra.
46 See U n ited N atio n s , D epartm en t op E conomic and S ocial A ppairs ,
Capital P u n is h m e n t (S T /S O A /S D /9) 11-12 (Ancel, auth., 1962);
U n ited N atio n s , D epartm en t op E conomic and S ocial A ppairs , Ca p i
tal P u n is h m e n t— D evelopm ents, 1961-1965 (ST /SO A /SD /10) 9 (1967).
32
icant exceptions, have provided that in all capital cases
the jury (or, more rarely, the presiding judge with the
advice or concurrence of the jury) may choose between
the alternative penalties of death and imprisonment—
usually life imprisonment. See Knowlton, supra. The
statutory disqualifications of scrupled jurors, however,
generally remain and courts have held that the disqualifi
cation survives its originating occasion. Thus the present
posture of the law is to preserve a rule of practice, which
must be justified—if at all, other than as an historical relic
—as subserving other purposes than those which it was
designed to promote.
At this juncture, it is helpful analytically to distinguish
two issues: (a) death-qualification of a jury which sits
to decide the question of guilt or innocence; and (b) death-
qualification of a jury which sits to decide the question
of penalty, that is, of death or imprisonment. Of course,
in most jurisdictions, these two issues are treated as one:
the same jury decides both questions (usually at a single
sitting), and it is death-qualified. But the constitutional
justification for the practice— (and we shall show shortly
that the practice does require some constitutional justify
ing)—is quite different for these two aspects of it. Under
a capital trial procedure that gives the jury discretion
in choosing between the punishments of death and im
prisonment upon conviction, exclusion of scrupled jurors
from the jury that decides the penalty question is justi
fiable only on the theories: (1) that the legislature in
tended, by the statute conferring capital sentencing dis
cretion on the jury, to have the death-life decision made
by some standard or standards (for example, on an ad hoc,
“circumstances-of-the-case” basis) inconsistent with con
scientious attitudes of opposition to the death penalty
(that is, with the maintenance of general principles pur
suant to which the decision will be made against death
33
in some or all classes of cases) ;47 and (2) that the venire
men excluded for scruples do in fact have such attitudes
of opposition as are inconsistent with the legislated stan
dards for the penalty decision.48 Exclusion of death-
scrupled jurors from the guilt-determining jury, on the
other hand, can be justified only if either (3) the venire
men excluded for scruples have attitudes which unfit them
to sit fairly and impartially on the guilt question itself
(as was supposedly the case when the death penalty was
mandatory); or (4) the exclusion of scrupled veniremen
from the penalty decision is justifiable (under theories
(1) and (2) supra), and the State has some legitimate
interest (of convenience or otherwise) in trying the guilt
and penalty questions to the same jury, which interest is
sufficient to prevail over the defendant’s in having a jury
selected without systematic exclusion on the guilt question.
We understand state court decisions sustaining death-
qualification of jurors against constitutional attack to rest
on these four propositions, or some of them.
2. The Theories of Constitutional Objection to the Practice.
The constitutional attacks on the exclusion of scrupled
jurors are essentially three-fold:
a. Denial of a representative jury on the guilt issue.
First, exclusion of jurors opposing the death penalty
denies an accused a trial of the issue of guilt or innocence
47 But see pp. 47-50, infra. Exclusion o f serupled jurors from the
penalty decision might also be justified, in theory, if (1) such jurors were
rightly deemed disqualified for some reason on the guilt question, and (2)
the States had a legitimate interest (of convenience or otherwise) in try
ing the punishment and guilt issues to the same jury, which interest was
sufficient to prevail over the defendant’s in having a jury selected without
systematic exclusion on the penalty question. We shall discuss the two
components of this theoretical justification in the text below, in connec
tion with exclusion of scrupled jurors from the guilt decision; and so we
see no need to develop them further here.
48 But see pp. 44-47, 52-53, infra.
34
by a validly representative jury constituting a cross-sec
tion of the community. The practice of systematically
excluding from juries the identifiable and substantial group
of scrupled persons eo ipso destroys the constitutionally
requisite representative character of a criminal jury. In
addition, it has the effect of working an impermissibly
disproportionate exclusion of other groups—principally
racial minorities and women—that are characterized by a
higher than average incidence of scruples. This exclusion
is peculiarly indefensible as it relates to jurors chosen to
decide the guilt question, for several reasons. It is ar
bitrary and unnecessary in this connection, since there
can be no justification for exclusion of persons scrupled
as to penalty from the jury that determines the question
of guilt. This is the case because the State could readily
provide for separate trials on the issues of guilt and
punishment, and indeed may well be under an independent
constitutional obligation to do so. See p. 20, supra. The
scope of the exclusion is, in any event, far more sweeping
than the broadest justification advanced for it, in that
ordinary death-qualification practice excuses scrupled
jurors without inquiry into the question of whether the
effect of their scruples is such as to make them incapable
of sitting as fit and fair triers of guilt. A juror held to
be disqualified on the question of punishment is simply
routinely treated as disqualified also on that of guilt, with
out inquiring whether in fact he maintains attitudes and
prejudgments which would make him unfit to follow the
law if he sat on the guilt question.49 As a result, a large
and ever-growing segment of the community is, without
contemporary justification, excluded from jury service in
capital trials. As a further result, the administration of
49 This was the practice followed below in both Witherspoon and
Bumpers. See pp. 2-6, supra. It is plainly the prevalent practice in
administration of the excuse for cause of scrupled jurors. See pp. 7-8,
supra; Oberer, at 547-548; Annot., supra, note 25, passim.
35
justice in capital cases—fundamentally suspect in any event
(see pp. 3-M-4-M, 21, supra), and otherwise flawed by
numerous arbitrary and irrational procedures (see pp. 17-
20, supra)—is, in addition, committed into the keeping of
an unrepresentative subpart of the community, comprising
its most punitive and least enlightened members.
b. Denial of a representative jury on the'.penaXty issue.
Second, the exclusion of scrupled jurors, at least in
the form presently authorized by the practice of most
States, is unconstitutional also as it applies to jurors
chosen to decide on punishment. This is so because it
denies the accused a trial of the penalty question by a
body of jurors validly representative of the community,
and because this denial is also arbitrary—that is, it is
worked for no other reason than the arbitrary one that
some substantial number of jurors on a representative
jury would exercise in favor of the accused the sentencing
discretion plainly allowed the jury by law. The purported
justification for the exclusion—that the state law gov
erning imposition of the death penalty requires an ad hoc,
individualized exercise of discretion in capital sentencing,
with the result that the scrupled juror cannot “ obey” or
“ follow” the law—is entirely spurious. This is a con
struction of legislative intent that is habitually trotted
out for the sole and unique purpose of validating the
death-qualification practice; no legislature has ever in
fact enacted a policy of mandatory ad hoc or unprincipled
capital sentencing; and, more important, in the actual
operation of capital sentencing discretion, jurors are held
to no such policy. In any event, the exclusion of scrupled
decision-makers cannot be justified as a means of enforcing
a regime of ad hoc capital sentencing, since such a regime
is itself constitutionally impermissible for the double rea
son that it violates the rule of law (see pp. 18-19, 20, supra)
36
and compels determinations of life and death that are
irrational, baseless, and hence arbitrary (see pp. 17-18, 20,
supra). Indeed, the discretion allowed a capital jury in
sentencing- (if it be constitutional at all) provides a practie-
ularly strong reason for insisting that the exclusion of
scrupled jurors destroys the jury’s representativeness and
cross-sectional character, since the free-wheeling ideological
function given the jurors puts a premium precisely on
ideological representativeness.
c. Denial of a fair, unbiased jury on the guilt issue.
Third, the exclusion of scrupled jurors denies the capital
accused a fair trial by an unbiased jury on the issue of
guilt or innocence. Such a trial is plainly his right under
the Due Process Clause, see, e.g. Irvin v. Dowd, 366 U.S.
717 (1961); Rideau v. Louisiana, 373 U.S. 723 (1963);
Turner v. Louisiana, 379 U.S. 466 (1965); Sheppard v.
Maxwell, 384 U.S. 333 (1966); Parker v. Gladden, 385
U.S. 363 (1966), whether or not the Clause is thought to
apply to the States the specific Jury-trial guarantee of
the Sixth Amendment (see Duncan v. Louisiana, O.T.
1967 No. 410, pending). But the effect of death-qualifying
a panel of jurors is to swear a partial, biased and prose
cution-prone jury, composed of those veniremen most
likely to ignore the presumption of innocence and to de
prive the defendant of the benefit of reasonable doubt on
such issues as innocence, guilt of a lesser offense, and
sanity.60 Trial by such a jury is unfair, because the
traditions of Anglo-American criminal law stake the as
surance of reliable fact-finding and guilt determination
precisely upon the judgments of an ordinary range of
jurors, not a range narrowed, slanted, skewed by the
process of death-qualification.
60 The extant empirical support for this proposition is noted at pp.
56-61, infra.
37
3. The Substantiality of the Constitutional Objections.
a. The right to a representative jury.
It can hardly be gainsaid that each of these three
constitutional objections presented against the institution
of the death-qualified jury is palpably substantial. We may
begin with the proposition that the defendant in a criminal
case is entitled to a jury from which no identifiable class
of persons has been arbitrarily excluded, and which thus
is “truly representative of the community.” Smith v.
Texas, 311 U.S. 128, 130 (1940); see Labat v. Bennett,
365 F.2d 698, 723 (5th Cir. 1966) (en banc). This is the
teaching of constitutional doctrines in which, as the Court
of Appeals for the Fifth Circuit recently observed, the
precepts of the Equal Protection and Due Process Clauses
“merge.” Labat v. Bennett, supra, 365 F.2d at 723. The
Equal Protection Clause forbids the arbitrary exclusion
from the jury of any class of individuals; the Due Process
Clause commands fair procedures which preserve the “ in
tegrity of the fact-finding process,” ibid, and also assures
that jury-selection procedures themselves meet rudimen
tary standards of fairness.61
The constitutional command is, at least as a general
principle, crystal-clear:
“ There is a constitutional right to a jury drawn
from a group which represents a cross-section of the
61 Judge Gewin made the point compendiously for the Court of Appeals
en banc in Billingsley v. Clayton, 359 F.2d 13, 15-16 (5th Cir. 1966) :
“A just and fair trial by an unbiased, unprejudiced and impartial
tribunal is one of the great American constitutional principles. There
can be no ‘due process’ or ‘equal protection’ unless the principle
remains inviolate. . . . There is no expressed constitutional provision
as to the classes of persons entitled to render jury service, but the
law does require that qualified persons not be excluded from jury
service on a class basis. Systematic and purposeful exclusion of qual
ified persons cannot be reconciled with the American concept of an
impartial trial.”
38
community. . . . Under our Constitution, the jury is
not to be made the representative of the most intel
ligent, the most wealthy, or the most successful, nor
of the least intelligent, the least wealthy or the least
successful. It is a democratic institution, representa
tive of all qualified classes of people.” Fay v. New
York, 332 U.S. 261, 299-300 (1947) (Murphy, J., dis
senting).62
Thus the Constitution does not permit the State to convict
a defendant by the use of a jury from which Negroes are
systematically excluded. E.g., Whitus v. Georgia, 385 U.S.
545 (1967). But this principle is not confined to the exclu
sion of Negroes; all other arbitrary exclusions—whether
directed against Mexicans, Hernandez v. Texas, 347 U.S.
475 (1954), members of the Catholic faith, Juarez v. State,
102 Tex. Cr. 297, 277 S.W. 1091 (1925), those who do not
believe in a Supreme Being, Schowgurow v. State, 240
Md. 121, 213 A.2d 475 (1965), women, White v. Crook, 251
F.Supp. 401 (M.D. Ala. 1966), or members of a particular
economic group or class, Labat v. Bennett, supra-, cf. Thiel
v. Southern Pacific Co., 328 U.S. 217 (1946); Rabinowitz v.
United States, 366 F,2d 34 (5th Cir. 1966) (en banc)—are
equally forbidden. It is not inadvertent, we believe, that
this Court’s leading pronouncement on the question treats
racial discrimination in jury selection only as a means and
one particular subspecies of the constitutionally con
demned practice of confronting a criminal defendant with
62 Although Justice Murphy spoke only for the four dissenters, there
is no question but that this passage represents the prevailing view of the
Constitution. Indeed, even in Fay the majority did not dispute this as
a statement of principle, concluding only that no showing of improper
exclusion had been made. See generally, Note, Jury Selection, 52 Va.
L. R ev . 1069, 1111-1117 (1966). The requirement that the jury be drawn
from a cross-section of the community was subsequently recognized by a
majority of the Court in Brown v. Allen, 344 U.S. 443, 474 (1953), and
has since been accepted doctrine. See Labat v. Bennett, supra.
39
an unrepresentative trial jury, the product of any arbi
trary or unjustified systematic exclusion:
“It is part of the established tradition in the use of
juries as instruments of public justice that the jury
be a body truly representative of the community. For
racial discrimination to result in the exclusion from
jury service of otherwise qualified groups not only vio
lates our Constitution and the laws enacted under it
but is at war with our basic concepts of a democratic
society and a representative government. We must
consider this record in the light of these important
principles.” Smith v. Texas, 311 U.S. 128, 130 (1940).
b. The unrepresentativeness of a death-qualified jury.
Tested against these same important principles, the
practice of death-qualifying a capital jury is evidently
assailable. Prima facie, it appears to be the very thing
constitutionally forbidden. It systematically excuses an
identifiable group or class of persons whose participation
on juries is required in order to make the juries validly
representative of the community, and it does so arbitrarily
-—i.e., without inquiry into whether the persons excused
are or are not qualified to sit, except in the sense of the
challenged practice itself, which irrationally presumes
them unqualified.
That scrupled jurors are an identifiable group within
the community, and that their characteristics are suffi
ciently discrete and their numbers sufficiently substantial
so that their exclusion renders the remaining veniremen
non-representative, are matters which, we shall suggest be
low, ought to be explored at an evidentiary hearing. But
surely these propositions appear intuitively correct. When
a State excuses from its juries persons opposed to capital
punishment, it is excluding a group who may be assumed
40
to have in common more than that single, isolated charac
teristic of opposition.
Philosophical attitudes of that sort do not fortuitously
take root in individuals as might a preference for banana
ice cream. Bather, common sense suggests that persons
who oppose the death penalty share in common other val
ues and attitudes. To catalogue these is a work for scien
tific study. But, at the simplest experiential level, such
people are, obviously, more humane than death-qualified
jurors. This is a diffuse and unspecific insight, but none
theless indisputable among persons familiar with the ways
of capital trial juries.
Oberer has put the point with practical cogency:
“Were I to be charged with a capital offense, I
should greatly prefer to have the issue of my guilt or
innocence tried by the first twelve people to pass the
courthouse, no questions asked by prosecution or de
fense, than by a jury qualified upon the death sen
tence. My premise is admittedly argumentative: that
a jury qualified on the death penalty is one more apt
to convict, quite apart from the degree of punishment
to be assessed. . . . Of the many people I have discussed
this premise with, not one, no matter how capital-
punishment oriented, has seen fit to impugn it were
he the hypothetical defendant.” 63
Oberer’s appraisal is certainly shared by prosecutors,
who are commonly observed, as a matter of course, to
death-qualify the jury in rape and murder cases where
they have no intention ultimately to press for the death
penalty. And the few extant behavioral studies which are
pertinent support the view that scrupled persons tend to
be more humanitarian, more tolerant of others’ shortcom
63 Oberer, at 545-546.
41
ings, more concerned about questions of “ responsibility,”
more sympathetic to the kinds of defenses that may be
made in a capital case, than are those persons who can,
as a matter of conscience, justify the imposition of capital
punishment. See pp. 56-61, infra.
Few would suggest, we suppose, that the State could
constitutionally challenge for cause those persons who
evince a charitable attitude toward their fellow man;
those who take most seriously their responsibility in
sitting in judgment upon a fellow creature; those who
harbor a healthy skepticism respecting identification wit
nesses, who accept that police witnesses are fallible;
those who are sufficiently concerned and sensitive to per
ceive subtle distinctions between degrees of homicide.
But by challenging scrupled jurors the prosecutor achieves
—and ordinarly recognizes himself that he achieves—pre
cisely these results. The consequence of the excuse for
scruples appears to be to strip the jury of the more
humanitarian, liberal, and objective members of society.
Notwithstanding the professed incredulity of some courts
on the point54— an incredulity that we suggest below might
be extirpated or better informed after an evidentiary
hearing—it is surely far from surprising to common sense
that a juror opposed to the death penalty is also more
likely to resolve the question of guilt or innocence fairly
in the defendant’s favor than a juror qualified on the
“ eye for an eye” approach.
c. The asserted justifications for death-qualification.
But, of course, the exclusion of scrupled jurors is gen
erally asserted to be justifiable on grounds that would
not support the systematic exclusion of humanitarian
jurors as such. The former exclusion is said to be war-
64 E.g., Turberville v. United States, 303 F.2d 411, 420-421 (D.C. Cir.
1962).
42
ranted and not arbitrary, because it is necessary to serve
legitimate interests of the State in capital trials. This
superficially plausible assertion deserves scrutiny, first,
in connection with the exclusion of death-scrupled jurors
from the determination of guilt or innocence.
i. Exclusion of scrupled jurors from the guilt deter
mination.
We assume arguendo at this point (although we shall
question it below) that there exists a legitimate state
interest in excluding scrupled jurors from sitting on the
penalty question. But, as we have pointed out at p. 33,
supra, this does not support their exclusion from the
jury that decides guilt or innocence, unless it be for one
of two reasons: (1) that the State has an interest of
convenience, of constitutionally cognizable dimension, in
a single-trial procedure by which the same jury sits to,
decide guilt and penalty; or (2) that veniremen whose
attitudes relating to penalty disqualify them on the penalty
question (as we are assuming) are thereby unfitted by
the same attitudes to sit fairly on the guilt question.
Neither of these latter notions appears to survive scrutiny.
As for the notion that such States as Illinois and North
Carolina have a constitutionally vested interest in their
single-verdict procedure, we have suggested to the con
trary at pp. 17-18, 20, supra, that such a procedure is, for
independent reasons, unconstitutional. Whether or not that
view be accepted, it can hardly be denied that the alter
native procedure which we believe is constitutionally com
pelled—the split verdict procedure now employed in sev
eral States—is, at the least, a practicable and readily
available device for separation of the guilt and penalty
questions. Perhaps the single-verdict mode of trial is, to
some extent, more economical of time and cost. Perhaps
43
not.56 But, however this may be, administrative con
venience at this level of significance would not seem to
justify a procedure which deprives the criminal defendant,
in a capital case, of the basic right to trial by a jury that
is a cross-section of the community—a right so funda
mental that this Court has identified it with “ our basic
concepts of a democratic society and a representative
government.” Smith v. Texas, supra. We venture to sug
gest that the convenience of courts and prosecutors has
never been thought alone sufficient to justify practice^
that would otherwise be recognized as clear violations of
a constitutional right. It would be far more convenient
for jury commissioners to select jurors without going
to the trouble of acquainting themselves with members
of minority racial groups in the community as required
by Smith, supra, and by Cassell v. Texas, 339 U.S. 282
(1950); just as it would be more convenient for the author
ities to coerce confessions from arrestees without counsel
than to prove them guilty by independent investigation,
but see Miranda v. Arizona, 384 U.S. 436 (1966). I f ex
pediency were the criterion, criminal justice could dispense
with trials altogether. Bather, the constitutional question
is, when practices overshadow fundamental rights of a
criminal accused, whether there is sufficient justification
for those practices to condone the abridgment of rights
which they occasion. See pp. 45-46, 52-53, infra. The State’s
interest in a single-verdict trial does not visibly measure
up to snuff by that standard.
This is particularly true inasmuch as the ultimate con
venience of the single-verdict practice—having a jury
66 Experience in split-verdict jurisdictions suggests that the bifurcated
trial may indeed be more economical since appellate reversals for trial
error relating to penalty questions does not necessitate retrial o f the issue
of guilt in such jurisdictions. And the time saved by not death-qualifying
juries in cases where trial of the guilt question fails to result in a verdict
o f guilty of a capital offense would itself be considerable.
44
qualified to pass on penalty if and after it convicts—is
a contingent convenience that vests only upon the con
clusion of the guilt-determining phase of the trial with a
verdict of guilty of a capital offense. It would seem
bizarre indeed that, where the question of penalty arises
only upon a finding of guilt of a capital offense, the right
of the accused to a representative jury on the guilt ques
tion can be sacrificed to the convenience of a previously
death-qualified jury—the need for which follows from a
decision of guilt made by the very process in which the
State has denied the defendant a representative tribunal.
Exclusion of scrupled jurors from the guilt determina
tion, then, would appear to be supportable only if such
jurors are, for some reason, legitimately to be deemed
disqualified or unfit to sit on questions of guilt or in
nocence. It is sometimes urged that they are, because their
scruples would preclude their finding guilt in any case
where another jury might subsequently impose the death
penalty. The trouble with this rough-and-ready supposi
tion is that there is nothing to support it as a characteriza
tion of the frame of mind or probable behavior of all or
any significant portion of the persons whom death-qualifi
cation procedure, as ordinarily practiced, excludes.
We pause to point out that, in constitutional matters
of this sort, neither unsupported suppositions nor approxi
mative rules of thumb can be made the occasions for
denying individual rights. Let it be assumed that a State
could exclude from the jury sitting on the guilt question
in a capital case persons whose attitudes toward the death
penalty are such that they cannot fairly pass on the issue
of guilt of the accused. That assumption does not justify
the State’s making the further assumption that all scrupled
persons would function in this fashion, nor does it absolve
the State from making the pertinent inquiry into fitness
45
when it presumes to exclude from juries a substantial
group of the community on the theory that they are unfit.
We deal with the right to a fair trial and, in the final
analysis, with the most precious and fundamental of human
values—life itself. This Court has recently insisted that
where fundamental values are concerned, classifications
will be closely scrutinized to ensure that they respond to
valid state concerns urged as supporting them:
“ We have long been mindful that where fundamental
rights and liberties are asserted under the Equal Pro
tection Clause, classifications which might invade or
restrain them must be closely scrutinized and carefully
confined. See, e.g. Skinner v. Oklahoma, 316 U.S. 535,
541; Reynolds v. Sims, 377 U.S. 533, 561-562; Carring
ton v. Rash, supra; Baxstrom v. Her old, 382 U .S .----- -,
Cox v. Louisiana, 379 U.S. 536, 580-581 (Black, J., con
curring).” Harper v. Virginia State Board of Elec
tions, 383 U.S. 663, 670 (1966).
In Skinner v. Oklahoma, 316 U.S. 535 (1942), to which the
Harper opinion alludes, the Court struck down a compulsory
sterilization law on equal protection grounds where the
criteria for sterilization arbitrarily included some individu
als and excluded others. The Court, in an opinion to which
eight Justices subscribed said:
“We are dealing here with legislation which involves one
of the basic civil rights of man. Marriage and procrea
tion are fundamental to the very existence and sur
vival of the race. The power to sterilize, if exercised,
may have subtle, far-reaching and devastating effects.
In evil or reckless hands it can cause races or types
which are inimical to the dominant group to wither and
disappear. There is no redemption for the individual
whom the law touches. Any experiment which the State
46
conducts is to his irreparable injury. He is forever de
prived of a basic liberty. We mention these matters not
to reexamine the scope of the police power of the
State [s ] . We advert to them merely in emphasis of
our view that strict scrutiny of the classification which
a State makes in a sterilization law is essential lest, un
wittingly, or otherwise, invidious discriminations are
made against groups or types of individuals in viola
tion of the constitutional guaranty of just and equal
laws.” Id. at 541. (Emphasis added.)
Under appropriate “ strict scrutiny,” a practice exclud
ing from the trial of guilt jurors scrupled on the question
of penalty would appear to fail considerably. The point is
that under ordinary death-qualification procedures— exem
plified by both the Witherspoon and Bumpers records—a
venireman is forbidden to sit on the guilt issue if he is op
posed to, or does not believe in, or cannot vote for infliction
of the death penalty. No inquiry whatever is made whether
his scruples have the effect of rendering him unable or un
fit to decide fairly and impartially the question of guilt or
innocence.
It is bitterly ironic to compare this ordinary practice of
excluding scrupled jurors for cause with the common prac
tices of the State courts in criminal trials relating to chal
lenges of jurors for bias. As this Court has seen in many
cases coming here on complaints of the denial of a fair trial
by reason of prejudicial and inflammatory publicity, jurors
who have read or heard about the facts of a case and who,
indeed, have prejudged the defendant guilty, are ordinarily
permitted to sit, if only they can swear, on the voir dire,
that they will put their prejudgments out of mind and try
the accused on the evidence. E.g., Irvin v. Dowd, 366 U.S.
717 (1961). Thus, a venireman who has prejudged the case
on inadmissible and prejudicial hearsay is allowed to sit
47
if he has not prejudged it too badly or too firmly; but
scrupled jurors are deemed endemically unfit, without the
slightest consideration whether their scruples would effect
in any manner the course of their deliberations on the guilt
question. Yet it is at least as likely, we would suppose, that
scruples on the penalty question may leave a juror impartial
and fit to decide fairly the question of guilt or innocence, as
that prejudgment may.
This callous and uncritical, unrebuttable presumption
that an attitude on the penalty question will affect the
juror’s attitudes on the guilt issue has the hallmarks of
constitutional arbitrariness. See, e.g., Carrington v. Rash,
380 U.S. 89, 93-96 (1965); Oyama v. California, 332 U.S.
633, 640-642 (1948); Dombrowshi v. Pftster, 380 U.S. 479,
494-496 (1965); Bailey v. Alabama, 219 U.S. 219, 239 (1911).
It would not therefore appear to support the exclusion of
jurors with scruples from the guilt-determining jury; and
such an exclusion—which both deprives the accused of a
jury that is “ truly representative of the community,” Smith
v. Texas, supra, 311 U.S. at 130, and forces upon him a jury
composed of persons whose characteristics tend to impugn
“the fairness of the trial,” Labat v. Bennett, supra, 365 F.2d
at 723,— seems to us to fall afoul of equal protection and
due process alike.
ii. Exclusion of scrupled jurors from the penalty de
termination.
But we may go further. For, as generally practiced, the
exclusion of scrupled jurors even from the jury which de
cides the penalty question itself would violate those same
constitutional guarantees.
Such a suggestion may appear at first blush extravagant,
since the case for exclusion appears to he firmly supported
by the ordinarily acceptable notion that jurors ought not to
have a predisposition with regard to the very issues they
48
are to try. But what this notion—or its application here—
overlooks is the peculiar nature of the penalty determina
tion by the jury in a capital case. That determination is
such as to render entirely inapposite the kinds of rules
which customarily govern jury decision-making, hence the
principles which customarily govern juror selection.
Where, as in Illinois, North Carolina, and most Ameri
can jurisdictions, absolute and unregulated discretion is
allowed the jury in its sentencing choice between death
and imprisonment, the individual values and ideals of the
jurors play an unusually critical role in fixing penalty. It
is this characteristic which sets the penalty determination
in a capital case apart from all other kinds of jury pro
ceedings. Here the jury is not supposed to determine the
facts by impartial, neutral, non-predisposed judgment on
the evidence of record— or, rather, that is the smallest part
of its function. Here more than in any other situation the
jury is expected to reflect the conscience—precisely the
predispositions— of the community. To exclude from such
a jury what constitutes a sizeable segment of the popula
tion unconstitutionally distorts the operation of that col
lective conscience.
It cannot, therefore, as a realistic matter, be urged in
favor of excluding prospective jurors scrupled against cap
ital punishment that the exclusion assures a jury whose
members have no fixed or predetermined view with respect
to the imposition of the death penalty. All jurors have
fixed and predetermined views in this regard; they must
have such views; they are expected to; if they did not,
the allowance to the jury of complete and unfettered dis
cretion to sentence to death or imprisonment would be an
inanity. In fact, the range of individual philosophical atti
tudes towards capital punishment and other serious moral
questions charts a broad spectrum. Even those veniremen
49
who answer that they could impose capital punishment in
the “appropriate case” are “ scrupled” against capital pun
ishment in the non-appropriate case. The application of the
scrupled-juror exclusion simply has the effect of removing
from the jury persons with a particular kind of predisposi
tion.
But if the jury is given full discretion in capital sen
tencing, if it is to act without the benefit of standards, if
the State is so little concerned with law in the sentencing
decision that it makes the measure of that decision the
uninstructed, unregulated and inevitably lawless whimsi
cality of conscience of particular jurors,66 how can the
State justify the distortion of the collective conscience of
the community which is caused by excluding from the jury
all of those persons holding the view—which indeed may
now be a majority view—that the death penalty ought not
to be imposed?67 It will not do to answer that the State,
at least, has a right to determine that the life-death deci
sion will be made on the facts of particular cases. The
States generally— and Illinois and North Carolina in par
ticular—have made no such determination; they have sim
ply left their jurors free to ignore the law and the facts * 57
66 See pp. 18-20, 24-25, supra.
57 Professor Oberer has eloquently stated the paradox in another con
nection :
“ [T]he gulf between the community and the death-qualified jury grows
as the populace becomes the more infected with modern notions of
criminality and the purpose of punishment. Accordingly, the com
munity support for the death verdict becomes progressively nar
rower, with all that this connotes for the administration of justice.
Moreover, as the willingness to impose the death penalty—that is, to
be sworn as a juror in a capital case—wanes in a particular com
munity, the prejudicial effect of the death-qualified jury upon the
issue of guilt or innocence waxes; to man the capital jury, the resort
must increasingly be to the extremists of the community—those least
in touch with modern ideas of criminal motivation, with the constant
refinement of the finest part of our cultural heritage, the dedication
to human charity and understanding.” Oberer, at 556-57.
50
in sentencing men to death. Having relegated capital sen
tencing choice to the regime of the arbitrary, is the State
to be permitted to deny a capital defendant a constitu
tional trial by a jury representative of a cross-section of
the community merely because some jurors in the cross-
section will make that arbitrary decision according to
principle ?
We repeat that it is tempting but fallacious to analogize
a scrupled juror to a juror who cannot “ follow the law”
in matters where law governs the jury’s decision. We
would be quick to admit, of course, that the State may
insist upon the exclusion of a juror for example who, at
a trial for larceny, concedes that he does not believe in
the notion of private property and would never convict
one charged with appropriating the property of another.
But where there is no law there is no basis for taxing any
venireman with potential lawlessness. The juror in a cap
ital case who opposes the death penalty can follow the law;
he is told to exercise his absolute discretion, and he will
do so as well and as surely in accordance with his con
science as the next man.
In short, American capital trial procedure generally is
based upon a system of imposing the death penalty which
calls for the exercise of an unfettered discretion by jurors.
It does not demand their obedience to law and cannot
pretend to make any such demand merely as the premise
for declaring certain jurors unfit because lawless. The
whole sentencing system purports to rely solely on the
jury as the conscience of the community. But it distorts
that conscience by excluding those who would make the
jury reflect the values of the community at large. In so
doing, it flouts the guarantees of due process and equal
protection in jury composition.
51
B. The Importance o f Factual Matters to Decision o f the
Legal Questions.
We have discussed in the preceding subsection the argu
ments supporting the constitutional attack upon the prac
tice of death-qualifying capital jurors, not for the purpose
of attempting to persuade the Court to assent to them on
the merits at this time, but only to demonstrate that they
are unquestionably substantial. Their gravity warrants
for them, we believe, the most deliberate and informed
consideration by the Court, particularly inasmuch as
several hundred human lives may depend upon their de
termination. The problems with the Court’s proceeding to
definitive decision of the scrupled-juror issue now are basi
cally two. We have already developed in Part I, supra,
the first of these: the isolation in Witherspoon and Bump
ers of the scrupled-juror claim from other federal consti
tutional contentions with which the claim is intimately
connected and to which, perforce, we have recurred from
time to time in our substantive arguments. The second
obstacle to decision now is still more fundamental. We
believe that the records of these cases are inadequate to
inform the Court concerning facts that the Court should
know before resolving the ultimate constitutional issues.
We wish to be clear in this regard. We do believe that
the Court could properly decide the constitutional questions
tendered by the Witherspoon and Bumpers cases, in favor
of the petitioners on the merits, under at least one consti
tutional approach that depends little or not at all upon
factual questions. This approach would involve holding,
simply: (1) that scrupled jurors are a discrete class or
group, identified and treated as such by the State which
singles them out for exclusion; (2) that, regardless of their
exact proportions in the population, the members of the
excluded group are characterized by a perspective or an
52
ideology which has gained sufficient historical currency that
exclusion of all persons holding to it necessarily results
in the selection of juries that are not validly representa
tive of the community, particularly in light of the sort of
ideological function that is committed to a capital trial
jury; and (3) that no justification for the exclusion of this
group of persons, and the consequent unrepresentativeness
of death-qualified capital juries appears to he of sufficient
weight to warrant subordination of a capital defendant’s
right to trial by a jury that is a cross-section of the com
munity, inasmuch as (a) excluding jurors who could fairly
try the guilt issue from sitting on the determination of
guilt or innocence merely because they are deemed to be
disqualified on the penalty issue is wholly unjustified, ex
cept by what are inconsiderable urgings of administrative
convenience said to attend the single-verdict practice; or
(b) excluding scrupled jurors as disqualified from sitting
on the penalty determination is unjustified, since the atti
tude of conscientious opposition to the death penalty is
not in fact inconsistent with performance of the capital
juror’s sentencing role as defined by operative state law—•
even though the state courts may profess that it is incon
sistent with the inoperative verbal formulations of the
juror’s role that are created and employed by the courts
only to justify an otherwise unjustifiable exclusion.
The Court could also rule in favor of the respective peti
tioners on a narrower ground: that in each case one or
more of the veniremen was excluded arbitrarily, because
(1) in view of the fundamental nature of the right to
trial by a jury that is validly representative of the com
munity, a defendant is at the least guaranteed against
exclusionary practices that are broader than their pur
ported justifications (see pp. 44-46, supra; and cf. Shelton
v. Tucker, 364 TJ.S. 479, 488 (1960); N.A.A.C.P. v. Alabama,
53
377 U.S. 288, 307-308 (1964); Keyishian v. Board of
Regents, 385 U.S. 589, 602 (1967)); and, therefore (2) ex
cuse for cause of a professedly scrupled juror is imper
missible unless at the least it is established of record that
the juror’s state of mind is such as to disable him from
following the court’s instructions with regard to his duty
fairly to consider and resolve the issues of guilt and pen
alty under applicable law. The voir dire inquiries in
Witherspoon and Bumpers fell considerably short of this
requirement. See pp. 2-6, supra.
Without disparagement of these points, we think that
their decision on the merits would be greatly enlightened
by their consideration in the context of alternative consti
tutional formulations, of the sort that we have spelled out
at pp. 33-36, supra. This course of deliberation would
serve to broaden both the Court’s comprehension of the
death-qualification practice that is constitutionally chal
lenged, and the range of possible constitutional responses
to the challenge by the Court. It would illuminate the con
sequences of the Court’s selecting one ground of decision
rather than another—consequences that may be consider
able both as regards the impact of decision upon the wide
spread and variegated procedures for excuse of scrupled
jurors (see pp. 7-8, supra), and also as regards such an
cillary questions as retroactivity (see pp. 77-93, infra),
a literally vital question in this case, with four hundred
lives at stake. Deliberation that canvasses all of the re
lated questions seems the more obviously advised since, if
the Court declines to adopt the reasoning sketched in the
two immediately preceding paragraphs, it cannot in any
event dispose of these cases against the petitioners with
out coming to consideration of the full range of their
attacks set forth at pp. 33-50, supra.
54
However, these fuller formulations of the constitutional
objections to death-qualification, unlike the two theories just
presented at pp. 51-53, supra, do depend in varying de
grees upon factual considerations and factual inquiries
which are almost wholly unexplored in the present records.
1. The Pertinent Factual Inquiries.
We venture to suggest that exploration of these factual
questions—these matters of “ constitutional fact” 58—will
immeasurably assist the Court’s consideration and ulti
mate resolution of the scrupled-juror issue. Much that
the Court does not now know about the facts and cannot
now learn from the meager available information in the
public domain (see pp. 56-61, infra) is matter fit for in
quiry at an evidentiary hearing. For example, the Court
does not now possess any clear and reliable information
concerning: (1) what proportion of the population, of the
community, is “ scrupled” under various possible exclu
sionary standards (see pp. 23, 34-35, 39, supra) ; (2) to
what extent disqualifying scruples are disproportionately
found in certain demographic groups—women, Negroes,
laborers, members of particular churches or religious de
nomination, etc.—with the result that death-qualification
disproportionately frequently excludes persons in those
groups (see pp. 27-28, 34, supra) ; (3) to what extent the
class of scrupled persons is characterized by common at
tributes, attitudes and perspectives other than opposition
to capital punishment, and so takes on distinctive in-group
identity (see pp. 39-41, supra) ; (4) to what extent these
shared attributes, attitudes and perspectives include per
sonality factors that dispose scrupled jurors to greater
humanity, compassion, impunitiveness and objectivity than
58 See pp. 68-74, infra.
55
the class of death-qualified jurors (see pp. 35-36, 40-42,
supra); (5) to what extent the common characteristics,
which differentiate scrupled and non-serupled jurors as
classes, involve intellectual qualities that dispose scrupled
jurors to greater attentiveness, responsibility, and capacity
for relevant differentiation, as in the grading of offenses
(see pp. 40-42, supra); (6) to what extent these common
characteristics involve attitudes toward crime, courts, cor
rections and other matters that dispose scrupled jurors to
greater impartiality, fairness and rationality in fact-find
ing and the fixing of penalties (see pp. 40-42, supra). Each
of these important factual questions relates to an element
or elements comprised as an assertion within one of the
theories of constitutional objection to the exclusion of
scrupled jurors (pp. 33-50, supra). But the principal
defenses or justifications of death-qualification equally de
pend upon factual assertions and propositions concerning
which the Court can only speculate on these records; (7)
the standards for penalty determinations actually used by
death-qualified capital juries (see pp. 32-33, 47-50, supra) ;
(8) the extent of the ability of scrupled jurors to lay aside
their scruples under direction of the court (see pp. 33, 44-
47, supra); (9) the extent to which scruples against inflic
tion of the death penalty may influence a juror’s determi
nation of the question of guilt or innocence, in a case in
which the juror sits to determine only that question, with
the penalty decision committed to other persons (see pp.
33, 44-47, supra); (10) the relative practicability and con
venience of single-verdict and split-verdict capital trial
procedure (see pp. 42-44, supra).
Whatever other view or views one may take of the
constitutional issues presented by the Witherspoon and
Bumpers cases, we venture to assert that all would likely
agree the Court’s decision of the issues would be better
56
informed if made upon a record in which these factual
matters were adequately developed.
2. The State of the Record on These Factual Questions.
It is fair to characterize the present records in Wither
spoon and Bumpers as almost totally lacking in the sort
of factual information that would assist the Court. In
Witherspoon, the petitioner’s request for an evidentiary
hearing on his post-conviction contentions was summarily
denied, and he was therefore deprived of the opportunity
to make an adequate record. In Bumpers, the petitioner
put before the Supreme Court of North Carolina sum
maries of two empirical studies—the Faye Goldberg and
Cody Wilson studies described in the next subsection
(.Bumpers It. 73-80)—but the North Carolina court made
no findings based upon them, and did not mention them
in its opinion. Whether it gave them any consideration
at all remains unclear, particularly in light of its reliance
upon the previous Childs decision, in which no such matter
had been presented either at the trial or appellate level.
3. The Present State of the Art on These Factual Questions.
Putting aside the anecdotal and impressionistic views
formed of death-qualified juries by experienced criminal
lawyers and judges (a subject which itself can be better
explored at an evidentiary hearing than by representa
tions of counsel to this Court), we know of only four
empirical studies that bear with any immediacy on the
relevant factual questions. None of these is published.
a. The Cody Wilson Study. (A brief summary of this
study, appearing as an article titled “Impartial Juries”
in the [Austin] Texas Observer for November 27, 1964,
p. 5, col. 1, is reproduced in the Bumpers Record at pp.
78-80. We prefer to describe the study on the basis of
57
the fuller unpublished report that we have received from
Dr. Wilson through Professor Walter Oberer, a j)roce-
dure that we think appropriate since our submission in
this Court does not depend upon the records so far made
herein, but urges precisely that further evidentiary hear
ing is appropriate to develop materials of this sort.)
Dr. Wilson, an Associate Professor of Educational Psy
chology at the University of Texas, conducted a study in
the Spring of 1964, employing 187 junior and senior col
lege students as subjects. Each subject was asked: (i)
to vote guilty or not guilty as a juror confronted with
brief written descriptions of the evidence in five capital
cases; (ii) to indicate the subject’s degree of confidence
in that vote; (iii) to fix a penalty in each case, choosing
within a range from a suspended sentence to life imprison
ment (the death penalty thus being excluded); and (iv) to
express agreement or disagreement with a series of state
ments indicative of attitudes toward the criminal trial
process and its adverse participants (e.g,, “ The district
attorney’s interpretation of the facts in a criminal case
is usually more reliable than the defense lawyer’s” ), and
toward certain defenses, such as insanity (e.g., “ The plea
of not guilty by reason of insanity is a loophole that
allows many criminals to escape punishment” ). Each
subject was asked “ Do you have conscientious scruples
against capital punishment!” and the subject population
was divided for analysis into scrupled and nonserupled
categories on the basis of responses to that question.
Dr. Wilson found that his nonserupled subjects were
(i) more likely to convict, (ii) more confident in their
judgments of guilt or innocence, (iii) inclined to impose
more severe non-capital punishments, (iv) more likely to
be biased for the prosecution and against the defense, and
(v) more likely to be biased against the insanity defense,
58
than were his scrupled subjects. The first three findings
were statistically significant under ordinarily accepted
standards using the chi-square analysis; the last two ap
proached but did not reach significance, and therefore were
treated as indications of direction.
b. The Faye Goldberg Study. (Again, although a sum
mary of this study appears at Bumpers R. 73-77, we pre
fer to refer to a fuller report of it that we have from
Professor Goldberg.)
Dr. Goldberg, an Assistant Professor of Psychology at
Morehouse College, studied a total of 200 college students,
100 Negro and 100 white. Each was given a set of brief
written descriptions of the evidence in 16 capital cases,
and was asked to (i) record a verdict (which might be
guilty of first degree murder, guilty of a lesser offense,
not guilty or not guilty by reason of insanity); and (ii)
impose a sentence (which might be death, life, a term of
years, or “ other” ). At the conclusion of this procedure,
each subject was asked: “Do you have conscientious
scruples against the use of the death penalty?” Interest
ingly, about half of the subjects who answered this ques
tion affirmatively were willing to impose the death pen
alty in at least one of the hypothetical sentencing situa
tions. As a result, two devices for classifying subjects as
“ scrupled” versus “non-scrupled” were available: (A ) sub
jects might be classified as scrupled if they answered the
conscientious scruples question in the affirmative, regard
less of their sentencing performance; or (B) subjects might
be classified as scrupled only if they both answered the
question in the affirmative and declined ever to impose
the death penalty.
Dr. Goldberg finds that, among her subjects, 61% report
conscientious scruples. The percentage is higher among
women (64%) than among men (59%). [This finding is
59
consistent with the reported findings of the national polls,
such as Gallup and Louis Harris.69] It is considerably
higher among Negroes (76%) than among whites (47%),
although when persons who are willing to vote to impose
the death penalty in at least one hypothetical case are
classified as nonscrupled, the races are not significantly
differentially represented in the scrupled and nonscrupled
groups. [This finding is likely affected by the use of college
students as subjects. A Louis Harris poll indicates that,
on the basis of a national sample, “ the more affluent parts
of society” generally, and college graduates particularly
tend to favor capital punishment, as compared with poorer
and less well educated persons.* 60] People who report that
they are not scrupled are (i) more likely to convict; (ii)
more likely to convict of more serious offenses; (iii) more
likely to reject the insanity defense; and (iv) likely to
impose a more severe sentence upon conviction. These
findings are still more sharply emphasized if the differen
tiation between scrupled and nonscrupled jurors is made
on the basis of sentencing performance as well as the sub
jects’ responses to the conscientious scruples question.
c. The Robert Crosson Study. (This is an unpublished
doctoral dissertation at the Western Reserve University,
titled “An Investigation into Certain Personality Variables
among Capital Trial Jurors,” and dated January, 1966.)
Crosson studied persons taken from the jury lists of a
county court in Ohio. Thirty-six randomly selected “non
scrupled” jurors and thirty-six randomly selected “ scru
pled” jurors were given a battery of psychological exam
69 See the polls cited in note 38 supra. Gallup reports 49% of women
opposed to capital punishment, 38% in favor of it; 45% of men op
posed, 47% in favor. Louis Harris reports 51% of women opposed,
31% in favor; 43% of men opposed, 44% in favor.
60 See poll cited in note 38, supra.
60
inations. The nonscrupled group consisted of persons who
had in fact been death-qualified and served on capital
juries. The scrupled group consisted of persons who had
served on non-capital criminal juries, and who answered
positively the question whether they had conscientious
scruples against the death penalty.
Crosson’s principal finding is that nonscrupled jurors
tend to be more conservative, less liberal, than scrupled
jurors. This difference is statistically significant by ac
cepted measures. There is also a tendency in the data,
not reaching significance, that suggests scrupled jurors
are better in critical thinking than nonscrupled jurors.
d. The Hans Zeisel Study. (This is an unpublished
manuscript entitled “ Some Insights into the Operation of
Criminal Juries,” dated 1957. It is a product of the Chi
cago Jury Study, which is described in, inter alia, K alven
& Zeisel, T he A merican Jury (1966).)
Dr. Zeisel’s findings are based upon interviews of 1248
persons who actually served as jurors in Chicago and New
York. A measure of the “ prosecution-proneness” of each
was derived from comparison of his first-ballot voting with
that of his fellow jurors. (The cases on which the jurors
sat included a range of criminal charges, only one per cent
of the trials being capital.) A number of other attitudes
and attributes of the jurors were examined, including their
profession of scruples against capital punishment. On the
basis of interview data, the juror population was classified
as having no scruples, “ some” scruples, or “major” scruples
against the death penalty.
The only juror attitude examined that was found to be
significantly associated with prosecution-proneness was
the absence of death scruples. Jurors reporting no scruples
were 28% more likely to convict than persons reporting
61
major scruples. Dr. Zeisel concludes that “ jurors who are
for the death penalty happen also to be more prosecution
prone than the jurors who are against it.”
In addition to these four studies, there is little informa
tion in the public domain that appears relevant. We have
adverted to the national polls (footnote 38, supra) show
ing (A ) that a majority of the American public which has
made up its mind on the subject of the death penalty
opposes capital punishment; (B) that women oppose the
penalty in significantly greater numbers than men; (C)
that persons in the less affluent and less educated classes
also oppose the penalty more frequently than their more
affluent and better educated counterparts. There is also
a body of psychological literature—that dealing with the
“authoritarian personality” 61—which may well provide
psychiatric concepts that explain the noted concurrence of
punitive and prosecution-prone attitudes with approval of
the death penalty in nonscrupled jurors. But we must
admit that although this literature suggests “authori
tarians” would likely be nonscrupled (as, also, prosecution-
slanted), it lacks specific inquiry into the question whether
nonscrupled jurors, as distinguished from scrupled jurors,
are characteristically “ authoritarian.”
4. Materials That Could Be Presented at an Evidentiary
Hearing.
The studies just described lend considerable support to
the contentions of the Witherspoon and Bumpers peti
tioners. As a basis for constitutional adjudication by this
61 The leading work is A dorno, F re n k e l -B r u n s w ik , L evin son &
Sanford , T h e A uth oritarian P erson ality (1950). See Christie & Cook,
A Guide to the Published Literature Relating to the Authoritarian Per
sonality, 45 J.Psychol. 171 (1958); Sidney, Certain Determinants and
Correlates of Authoritarianism, 49 Genetic P syc h . M onographs 187,
191-203 (1954).
62
Court, however, they do present some difficulties. First,
they speak to only a few of the ranging factual issues de
scribed at pp. 54-55, supra. Second, none of the studies
was explicated by expert testimony in the records below;
only short, summary, unpublished statements of the studies
are available in written form; and these summaries are
less illuminating as regards both the significance of the
studies and their reliability than would be the testimony
of the experts who conducted them. Third, none of the
studies purports to be definitive: each is in the nature of
a pilot project experimenting with the methodology of in
vestigating the effect of death-qualifying jurors. Fourth,
the treatment of the studies by the courts below is equivo
cal. The Illinois court in Witherspoon adverted to the
Hans Zeisel study only in connection with the contention
that death-qualified juries are prosecution-prone (p. 36,
supra) and, in this connection, drew from it inferences
that we believe unwarranted.62 The court did not consider
the implications of this study or others for the petitioners’
other constitutional arguments (pp. 33-36, supra). The
North Carolina court in Bumpers made no mention of the
studies put before i t ; and its phrasing of the constitutional
issue decided—in terms entirely of the propriety of ex
cluding scrupled jurors from the penalty determination—
may have led it to think the principal thrust of those studies
immaterial. In addition, as we have noted, the court treated
as controlling one of its prior decisions made on a record
that did not present the studies.
62 “ [A] study cited in the petitioner’s brief indicates that some jurors
qualified for the death penalty tend to favor the prosecution, or, as it
is said, to be ‘prosecution prone.’ . . . [T]he same study indicates that
jurors with scruples against the death penalty could be characterized as
‘defense prone’ . . . ” 224 N.E.2d at 262. We believe that this passage
reflects a lack of understanding of the meaning and measures of the con
cepts o f “ prosecution-proneness” and “ defense-proneness” used in the
Hans Zeisel study that fuller exploration of the study at a hearing would
reveal.
63
In view of these deficiencies, we believe that this Court
should properly insist upon fuller evidentiary records to
support its determination of the merits of the serupled-
juror controversy. This would be the case even if, at an
evidentiary hearing ordered by the Court, no empirical in
formation were available other than the four described
studies. Such a hearing, at the least, would permit the
fuller elaboration of the studies by the scientists who made
them, and would explore such questions as the relation
between questionnaire responses and probable performance
as jurors, the generalizability of the study results in light
of the subject populations studied, and the level of assur
ance of the study results so generalized, as measured by
accepted standards for reliability of social science research.
It would also permit investigation of the relations between
the study results and the two other major bodies of avail
able pertinent information: the national polls concerning
public attitudes toward capital punishment, and the psy
chiatric literature of authoritarianism (see p. 61, supra).
Specifically, the question could and should be pursued
whether the attitudes of opposition to capital punishment
reported by the polls are convertible in terms of the tests
for conscientious scruples used in the studies and in the
actual selection of capital juries; while the testimony of
psychological and psychiatric experts should explore the
significance of the study findings in light of the psychologi
cal concept of the authoritarian personality, and should ex
plain the relevance of that concept for prediction of juror
performance. Finally, information known to the authors
of the studies but not reported by them in their summaries
should be developed, and certain ambiguities in the sum
maries clarified.63 In addition, information from judicial
records relating to the general operation of death-qualifica
tion procedures (the tests employed, the amount of inter
rogation practiced on the voir dire, the numbers of venire
63 See note 62 supra.
64
men excused), and to other pertinent practical questions
(such as the comparative efficiency of single-verdict and
split-verdict capital trials) should be examined.
But, in fact, an evidentiary hearing need not be limited
to the information provided by the few studies already
performed. The major value of those studies, as we see
them, has been to establish the feasibility of empirical
examination of the factual questions germane to the con
stitutional issues before the Court. Those studies are in
structive as to methodology, and lay the foundation for
broader, more relevant studies. We have already em
barked upon just such a series of studies, in connection
with the numerous capital cases for which we have respon
sibility (see note 30, supra). We describe these as one
example of the sort of investigation that is possible and,
we believe, will be highly illuminating to the Court.
We have arranged to have Louis Harris and Associates,
one of the nationally reputed opinion-study organizations,
conduct the study. After consultation with other experts,64 *
Harris has developed a three-part study design. One
phase involves the investigation of approximately 2000
persons taken by random sampling methods from jury lists
of courts having general criminal jurisdiction. Another
involves the investigation of a random sample of the popu
lation meeting criteria of qualification for jury service
(exclusive of the disqualification for death scruples). A
third involves the investigation of approximately 300 ran
domly selected persons who have been death-qualified and
served on capital juries.
64 These included Professor Harry Kalven, Jr., o f the University of
Chicago Law School, co-director of the Chicago jury study; Professor
Marvin Wolfgang, Acting Chairman of the Department of Sociology at the
University of Pennsylvania; Professor Leslie Wilkins of the Department
of Criminology at the University of California at Berkeley; and Professor
Bernard Diamond, of the Schools of Law and Psychiatry at Berkeley.
65
The procedures for study of the first two groups are
similar. Personal interviews will be conducted of the sub
jects. They will be asked questions of several sorts de
signed to measure attitudes toward capital punishment.
These will include both questions framed with the assist
ance of experienced attorneys, to reflect the tests used by
courts in death-qualifying jurors, and more general indica
tors of attitudes previously validated65 in social science
research. On the basis of these questions (which will be
refined by pre-testing with pilot groups), a set of measures
will be established for the division of the subject groups
into “ scrupled” and “non-serupled” categories. The num
bers of individuals falling into the respective categories
would disclose the proportions of the general population
that are “ scrupled” under varying tests. “ Scrupled” and
“nonscrupled” groups will then be compared with regard
to other relevant features.
First, demographic data for the subjects will be ex
amined: age, race, religion, income, occupation, schooling,
etc. Second, general attitudes of the subjects relating to
such traits as humanitarianism, liberalism, opinionation,
punitiveness, hostility, race prejudice, etc., will be examined
by the use of previously validated scales for the measure
ment of such traits. Third, general methods and habits of
thought (critical thinking, etc.) will be tested. Fourth, at
titudes, opinions and beliefs immediately related to the
criminal trial process and indicative of the subject’s ca
pacity and disposition to accord the defendant a fair, law
ful and impartial trial will be investigated. These will in
clude general attitudes toward the prosecution and de
defense and the appropriate roles and functions of the 66
66 See, e.g., S h a w & W eig h t , S cales foe th e M easu rem ent of A t
titudes (McGraw-Hill Series in Psychology) 159-165 (1967).
66
judge, jury, prosecutor and defense counsel;66 and also
specific pro-prosecution and pro-defense attitudes which
are legally defined as impermissible or improper.67 Finally,
66 For example, the subjects will be asked to indicate the degree of
confidence they would have, as jurors, in statements by the prosecutor,
by defense counsel, by the judge, by other jurors, etc.; and in the testi
mony of the defendant, the arresting officer, certain sorts o f complainants,
etc. They will be asked to express degrees of agreement or disagreement
with a series of statements purporting to describe the incidents of a
criminal trial or the roles of the participants in it, for example: “ The
lawyer for the accused’s main job is to keep innocent people from being
convicted” ; “ The lawyer for the accused is likely to be tricky and not
always honest, because he is always trying to get criminals off” ; “ The
prosecuting attorney is likely to be more honest, because he is a sworn
officer of the law” ; “He is no different from any other lawyer in court
and will use any means to get a conviction” ; “ The judge is supposed
to see to it that the public is protected from criminals” ; “ The judge must
guarantee the accused a fair trial” . The subjects will be asked to respond
to attitudinal questions, for example: “ In cases involving people ac
cused of committing crimes, do you feel the courts generally have been
too lenient, too harsh, or do you think they have been generally just
right and fair with accused criminals!” They will also be asked ques
tions relating to their acceptance or rejection of such legal conceptions
as the burden of proof in a criminal prosecution, the insanity defense,
the defense of self-defense, etc. (The questions quoted in this footnote
have been taken from among the 125 items on a draft schedule prepared
by Louis Harris and Associates for the study. They are presently in
tentative form, subject to modification. The Harris draft is being cir
culated to consultant experts in various social science disciplines and to
experienced attorneys; after modifications responsive to their evaluations,
it will be pretested and further modified before use in the basic study.
We have not reproduced here the various standardized response categories
used in connection with the respective questions.)
67 For example, subjects will be questioned as to whether their delibera
tions as jurors concerning the defendant’s guilt would be affected by his
failure to take the stand, by their knowledge that the judge had refused
to allow the prosecution to put a confession in evidence, by certain kinds
of newspaper reports, by certain kinds of legal objections on the part
of defense counsel, etc. They will be asked whether a juror who opposes
capital punishment would be justified in voting to acquit a defendant he
believes beyond a reasonable doubt is guilty; whether, as a juror, he
would so vote in certain stated circumstances, etc. In the design of the
study, due concern is o f course being had to the effect of the court’s
charge on such matters. (See the parenthetical material at the end of
the preceding footnote.)
67
the subjects will be asked to respond by voting for guilt
(of the crime charged or a lesser crime) or innocence
(generally or on grounds of insanity), and by choosing
among a range of non-capital penalties, on a carefully de
signed set of simulated criminal trial records. The scrupled
and nonscrupled groups will be comparatively evaluated,
by the use of accepted statistical techniques, in each of
these dimensions.
The study of persons who had been death-qualified and
served on capital juries will be somewhat different. These
persons will be tested for attitudes, personality attributes
and mental processes by measures that will permit com
parison of the test results with available data for the
population at large. Demographic data on these persons
will also be collected in comparable form. Inquiries will
be made concerning their experiences, performances and
methods of reasoning in deliberation on the capital juries
on which they served.
The relevance of this study to the factual questions sug
gested at pp. 54-55, supra, is, of course, evident; and its
design is being developed with an eye to obtaining valid
and reliable answers to those questions consistently with
accepted procedures for social science research. We should
make clear that we do not, obviously, mean to intimate
that the Harris study itself is the only acceptable instru
ment for exploring these questions, or that it is the
paradigm of the exclusive proper procedure for investiga
tion of them, or even that it will assuredly answer all of
the questions satisfactorily. We do believe that it is a
responsible and likely productive approach to the ques
tions, however; that its result will be extremely informative
to any court which considers the issue of the constitution
ality of death-qualification; and that it is suggestive of the
kind of factual inquiry whose product can be presented at
68
an evidentiary hearing with considerable promise of im
proving judicial consideration of that issue. The study,
or something like it, will, we anticipate, demonstrate for
the first time in scientific fashion what many have long
believed and asserted: that the practice of death-qualifica
tion by exclusion of scrupled veniremen seriously distorts
the representative composition of the jury and affects its
fairness in its fact-determining role.
C. The Consequent Desirability o f an Evidentiary Hearing.
We think that we have shown in the preceding subsec
tion: first, that factual questions are vitally important to
informed consideration of the full range of issues presented
by the constitutional challenge to death-qualified juries;
second, that those questions are inadequately explored on
these two records; third, that the questions cannot be
wholly satisfactorily explored by this Court by resort to
noticeable information in the public domain; but, fourth,
that the questions could be profitably explored at an evi
dentiary hearing ordered by the Court. In these circum
stances, we suggest, the Court should order such a hearing.
(The technical propriety of so doing is considered in
Part III, infra.) The sort of hearing we propose, of course,
is one centered on questions of “ constitutional” or “legis
lative” fact, as distinguished from “adjudicative” fact.68
There is ample support in reason and authority for dis
positions of these cases that demand that sort of hearing.
68 The terminology is, of course, not original, but has been generally
advanced in the developing literature on the process of constitutional
adjudication. See, e.g., Alfange, The Relevance of Legislative Facts in
Constitutional Law, 114 U. P a . L. R ev . 637 (1966); Karst, Legislative
Facts in Constitutional Litigation, 1960 Supbeme C oubt R ev . 75; Bikle,
Judicial Determination of Questions of Fact Affecting the Constitutional
Validity of Legislative Action, 38 H akv. L. R ev. 6 (1924); Note, Social
and Economic Facts—Appraisal of Suggested Techniques for Presenting
Them to Courts, 61 H abv. L. R ev . 692 (1948).
69
We begin with the proposition that courts, when faced
with the delicate task of resolving complex constitutional
questions, should and do demand information that illumi
nates the nature and precise dimensions of the issues posed
for decision, and permits an identification and evaluation
of the competing considerations pertinent to their deter
mination. That statement, standing alone, seems unexcep
tionable ; it would be difficult to defend a process of adjudi
cation which prefers decision on the basis of less rather
than more available and relevant factual material. Courts
must have adequate information before them if their deci
sions are to be bottomed on reality and not speculation.
This is as true of decisions on questions of “ law” as of
decisions on questions of “ fact.”
Where constitutional claims appear to pose questions of
“ law,” of course, it is sometimes tempting to speculate—
to “ assume” facts (supposedly those most favorable to the
constitutional claimant seeking a hearing) and to decide
what the law should be if the facts “assumed” are true.
But this practice of determining issues as on common-law
demurrer is particularly ill-advised where major constitu
tional questions may depend upon the undeveloped factual
matters. For, in such cases, to substitute speculation for
inquiry—to “assume” sets of hypothesized facts and ad
judicate constitutional questions in a world of conjecture
and imagination—risks two equally grave dangers. It risks,
on the one hand, the unnecessary determination of consti
tutional questions not presented by the real state of af
fairs, although in future times or other situations they
may in fact be presented. On the other hand, it risks
judgments that ignore pertinent but unperceived real prob
lems through failure to assume facts that do exist and
support the establishment of a significant constitutional
principle, but that are beyond the scope of conjecture of
70
the inevitably limited speculating mind. “ The effect would
be that important and difficult constitutional issues would
be decided devoid of factual context. . . . ” W.E.B. DuBois
Clubs of America v. Clark, 389 U.S. 309, 312 (1967), a
course that this Court has frequently condemned. E.g.,
Rescue Army v. Municipal Court, 331 U.S. 549 (1947);
Massachusetts v. Painten, 19 L.ed. 2d 770 (1968).
In this litigation, in any event, speculation or assump
tion of the facts would be peculiarly unsound. The plain
truth is that no one at this stage of the proceedings—
neither the courts below, nor the parties, nor we, nor with
deference, this Court—is sufficiently informed to know what
states of facts might exist that one could “ assume.” Not
merely the truth but the very character and nature of the
facts germane to resolution of the constitutional claims
raised in these cases are unknown. But if this be so, we
respectfully suggest, settled and proper principles of con
stitutional adjudication imperatively require the deferment
of decision on the merits until they are known. The wis
dom of this course seems the more compelling where a
troublesome and substantial constitutional question is pre
sented upon which depend the lives of the countless con
demned men tried or subject to trial by death-qualified
juries under the procedure challenged here and practiced
in virtually every capital trial in this country.
This course is also most consistent, we believe, with the
history of this Court’s approach to such momentous con
stitutional questions. For the Court has always been con
cerned with the exploration of “constitutional” fact to the
exact extent that, given the conception of the ultimate
constitutional issue to be resolved, facts were deemed rele
vant.
There was of course a time in which findings of fact
played a relatively small part in constitutional adjudica
71
tion. During the period when courts thought that their
role was confined to the task of determining—either from
the test of a legislative act or the Constitution—the “mean
ing” of the words employed, there was little need for reli
ance upon or inquiry into broad scale social or “constitu
tional” facts. But with the advent of those constitutional
concepts which we now characterize as economic due proc
ess, and the recognition by courts of their role—indeed
their unavoidable burden—of making constitutional policy
choices, attention to matters of constitutional fact became
essential. The inquiry in such cases was said to be whether
the legislation challenged was reasonable or arbitrary—an
inquiry which obviously required some knowledge of the
field of human economy sought to be regulated. The coming-
of-age of the factual inquiry was thus definitively reached
in Muller v. Oregon, 208 U.S. 412 (1908), with the intro
duction of what has since been known as the Brandeis brief
See also Weaver v. Palmer Bros. Co., 270 U.S. 402, 410
(1926); Frankfurter, A Note on Advisory Opinions, 37
H abv. L. Rev. 1002, and eases collected at note 2 (1924).
Increasingly since that time, this Court has required
proper factual inquiry by the lower tribunals as the con
dition of constitutional decision. In Chastleton Corp. v.
Sinclair, 264 U.S. 543 (1924), the constitutionality of a
statute hinged on a purely factual question: did a state
of emergency—which justified the act in the first instance-
still exist? Mr. Justice Holmes observed: “ The Court may
ascertain as it sees fit any fact that is merely a ground
for laying down a rule of law,” and the case was remanded
to the trial court for the development of those facts. Simi
larly, in Borden’s Farm Products Co. v. Baldwin, 293 U.S.
194 (1934), the Court referred to the Chastleton Corp. ease
and similar holdings and sent a case back to the lower
courts for development of a factual record, remarking that
“before questions of constitutional law, both novel and of
72
far-reaching importance, [are] passed upon by the Court,
‘the facts essential to their decision should be definitely
formed by the lower courts upon adequate evidence.’ ” Id.
at 212. See also Nashville Chattanooga <& St. Louis Ry. v.
Walters, 294 U.S. 405 (1935).
The day of economic due process is now long gone.
American jurisprudence outgrew that era precisely insofar
as—and because—judicial concern for reliable factual in
quiry came to replace a priori factual assumptions as the
basis of constitutional decision-making. The constitutional
controversies of today involve somewhat different consid
erations as the courts attempt to evaluate various claims
of individual liberty against competing claims of essential
state interests. The kinds of constitutional facts relied
upon by the courts have changed to meet the needs of those
making constitutional policy choices as they have ventured
into new and sometimes uncharted seas. But the process
has not changed. For example, in declaring segregation
in the public schools unconstitutional in Brown v. Board
of Education, 347 U.S. 483 (1954), the Court relied upon
facts—in part judicially noticed and in part developed at
an evidentiary hearing—indicating the psychological impact
of segregated education upon school children. In the unani
mous opinion for the Court, these determinations of con
stitutional fact were specifically noted, see 347 U.S. at 494
nn. 10, 11 ;69 and see Greenberg, Social Scientists Take the
69 Footnote 11 collects sociological, psychological and behavioral litera
ture which the Court judicially noticed. Footnote 10 adverts to factual
findings made at an evidentiary hearing in the Delaware litigation. The
evidence received at the hearing and the conclusions supported by it ap
pear more clearly in the opinion of the Delaware Chancellor (now United
States Circuit Judge) Collins Seitz, Gebhart v. Belton, 87 A.2d 862, 864
865 (Del. Ch. 1952) :
“ Plaintiffs produced many expert witnesses in the fields o f educa
tion, sociology and anthropology. . . .
I conclude from the testimony that in our Delaware society State
imposed segregation in education itself results in the Negro children,
73
Stand, 54 Mich. L. Rev. 953 (1956). Contemporary exam
ples of the Court’s concern for and intensive exploration
of questions of constitutional fact abound. E.g., Miranda
v. Arizona, 384 U.S. 436 (1966); In re Gault, 387 U.S. 1
(1967); United States v. Wade, 388 U.S. 218 (1967).
It may, of course, be objected that, in these cases, the
facts on which the Court depended were largely judicially
noticed, rather than explored by an evidentiary hearing.
To this objection, two responses are sufficient. First, as
we have pointed out, there is available in the public domain
for appropriate judicial notice far less information con
cerning the institution of the death-qualified jury than
there was concerning station house interrogation (Mi
randa), the juvenile courts (Gault), or police lineup prac
tices (Wade). The paucity of available information has
required us, in investigating our own capital eases, to
undertake the major study described at pp. 64-68 supra,
which is not yet completed. Second, the objection brings to
mind what is doubtless the most frequently heard criticism
of the decisions on which we rely. Despite the caution with
which the Court proceeded in arriving at its conclusions
in Miranda—despite its exhaustive and comprehensive ef
forts to cull the pertinent facts from the pertinent sources
in the public domain—there has been criticism of the deci
sion for relying upon inadequate information. The precise
nature of this criticism is important. The complaint is
not that the Court was wrong in looking to the facts, but
that the facts the Court found when it looked were wrong
or at least questionable. We believe the criticism is ill-
taken, but—to the extent it is regarded by any as casting
doubt on the Court’s ultimate conclusions—that doubt is
as a class, receiving education opportunities which, are substantially
inferior to those available to white children otherwise similarly
situated.”
74
the more unfortunate because it might have been avoided
if the factual record brought before the Court had been
more complete. It is therefore both consistent with the
jurisprudential method approved in such decisions as Mi
randa and responsive to the most articulate objections of
their critics that we urge deferment of decision on the
merits in the present cases until after an evidentiary hear
ing. What we urge, in short— and we perceive no substan
tial reasons of any sort against it—is simply a plenary
hearing at which the parties may produce qualified expert
witnesses and other evidence— subject to cross-examination
and a fair opportunity for rebuttal on the record—respect
ing the kinds of constitutional fact that this Court ought
to know before attempting to decide the issues in the
cases.
III.
The W ith ersp oon Case Should Be Reversed and the
B u m pers Case Reversed or Remanded.
The course that we have urged is technically proper in
the procedural posture of the two cases now before the
Court. Pursuant to it, somewhat different dispositions of
Witherspoon and Bumpers are called for.
A. The W'itherspoon Case.
Witherspoon should be reversed and remanded for an
evidentiary hearing. Such a hearing was expressly re
quested by the petitioner in his application for post-con
viction relief. It was denied, and the Illinois courts have
rejected his constitutional claim without giving him an
opportunity to make a record. If, as we suggest, an op
portunity to make a record as the basis of federal con
stitutional adjudication ought to be allowed, the denial of
that opportunity below was error. The Court’s decisions
75
in other state post-eonviction cases coming here in a. similar
posture therefore amply support reversal. E.g. McNeal
v. Culver, 365 U.S. 109, 117 (1961); Wylde v. Wyoming,
362 U.S. 607 (1960); Pennsylvania ex rel. Herman v.
Claudy, 350 U.S. 116, 123 (1956); Pyle v. Kansas, 317 U.S.
213 (1942).
B. The Bumpers Case.
As we read the record in Bumpers, the Court need have
no occasion to reach the scrupled-juror issue in that case.
The grant of certiorari brings here a search and seizure
claim that seems uncontestably valid. Bumpers’ premises
were searched by officers whom his grandmother admitted
after they requested entrance under force of a purportedly
valid search warrant. At trial, the prosecution declined
to rely on the warrant—which presumably was not in fact
valid—and sought to sustain the search on the basis of
the grandmother’s consent. But the consent was given in
the face of a claim of right to enter under the warrant,
and if the warrant is not shown to be valid, the search
is bad. Other Fourth Amendment arguments pressed in
Bumpers’ brief seem to us also to be correct; but this one
appears indisputable. Since the conviction must be re
versed on that account for a retrial, this Court would not
ordinarily—and in this instance particularly should not—
decide an additional constitutional question which the
record imperfectly presents.
If, however, the Court reaches the jury question in
Bumpers, the case should be remanded to the North Caro
lina Supreme Court in light of Witherspoon. This is ap
propriate for several reasons. First, the record in Bump
ers is muddy. Summaries of the Cody Wilson and Faye
Goldberg studies (pp. 56-59, supra) were presented to
the North Carolina Supreme Court for the first time,
in affidavit form, on the appeal. The court may have con
76
sidered them, but it is likely that it did not. It did not
advert to them in its opinion. It rested its decision on its
earlier opinion in the Childs case, where no matters of the
sort had been presented to it.70 * Also, its framing of the
constitutional issues exclusively in terms of arguments re
lating to exclusion of scrupled jurors from the penalty-
determining jury suggests it may have thought that evi
dence of the partiality of death-qualified jurors on the
guilt question was immaterial. The upshot is that the rul
ing sought to be reviewed here is entirely unclear with
regard to the treatment by the North Carolina Supreme
Court of the studies submitted to it. It may have accepted
and credited the studies; or accepted and discredited them;
or deemed them irrelevant; or declined to consider them on
procedural grounds. Since the basis of the court’s disposi
tion of the federal claim is thus unsteady, a remand in light
of Witherspoon is in order. Cf. Villa v. Van Schaick, 299
U.S. 152 (1936); Nostrand v. Little, 362 U.S. 474 (1960).
The North Carolina Supreme Court will thus be free to
proceed as it sees fit to implement the holding in Wither
spoon that a claimant such as Bumpers is entitled to a
hearing on proper request. It deserves note that that
court has itself been long advertent of the unwisdom
of appellate decision on a factually inadequate record and
has many times remanded appeals to the lower courts for
fuller development of factual questions deemed relevant.
E.g., Gaylord v. Berry, 169 N.C. 733, 86 S.E. 623 (1915);
Gulf Refining Co. v. McKernan, 178 N.C. 82, 100 S.E. 121
(1919); Greensboro Bank & Trust Co. v. Royster, 194 N.C.
799, 139 S.E. 774 (1927); Memorial Hospital v. Rockingham
County, 211 N.C. 205, 189 S.E. 494 (1937); Gaster v.
Goodwin, 259 N.C. 676, 131 S.E.2d 363 (1963).
70 Significantly, the Childs case is now pending for hearing on a state
post-conviction petition, and the hearing has been postponed to await
this Court’s decisions in Witherspoon and Bumpers. Childs v. State,
Super. Ct., Buncombe Cty., N.C., unnumbered, Order of January 29,
1968 (McLean, P.J.).
77
Finally, considerations of federalism suggest the same
course. If "Witherspoon is held entitled to a factual hearing
on a claim identical to Bumpers’, the North Carolina Su
preme Court should be given the opportunity to decide in
the first instance whether that holding by this Court per
suades it to a different course of action than the one that
it has heretofore taken in regard to the factual matters
presented on the appeal by Bumpers. Cf. Patterson v.
Alabama, 294 U.S. 600, 606-607 (1935); Williams v. Georgia,
349 U.S. 375, 389-391 (1955); and see Ashcraft v. Tennessee,
322 U.S. 143,155-156 (1944); Giles v. Maryland, 386 U.S. 66
(1967).
IV.
The Problem of Retroactivity.
As counsel for a very great number of condemned men,
most of whom we have undertaken to represent for the
first time at a post-appeal stage (see pp. 3-M-6-M, supra),
we are naturally extremely concerned with the question of
retroactivity of any constitutional rule which the Court
may announce in these cases. Our principal submission,
developed above, that the Court should defer decision of
the scrupled juror question on the merits at this time, has
of course not been affected by this concern.72 Nevertheless,
72 We have not been unaware that the effect o f deferring decision on
the merits in Witherspoon and Bumpers, as we urge, will be to deprive
those two petitioners o f their “ lead” position in this Court on the points
they raise. Decision may go against them on the remand, and before
they return here other cases may be brought to the Court. We suppose
it is possible, also, that one of those other cases may be a litigation that
we are handling. But we would regard it as highly improper for us
to advocate the deferment of decision by this Court because o f any such
consideration, and we have not done so. Indeed, any temptation in this
direction which we might otherwise have had to combat has been avoided
by the very nature of our involvement in these capital cases. We have
always had to consider our responsibilities for them as running both to
the individual client and to the class of condemned men, since we have
made ourselves generally available to represent members o f the class.
78
a secondary consequence of the Court’s accepting that sub
mission would obviously be to pretermit a present deci
sion of all issues of retroactivity, together with decision
of the substantive constitutional controversy.73 On the con
tingency that the court may reject this approach, however,
and that it may dispose of the constitutional merits of
the claims by Witherspoon and Bumpers in their favor,
we proceed to discuss perforce the retroactivity question.
Our position on that question is two-fold. First, we urge
that, even if the Court should decide the substantive merits
of the scrupled juror issue at this time, on these records,
it should not now decide the retroactivity question. Sec
ond, if the retroactivity question is decided now, we urge
It would be unthinkable, in this posture, for us intentionally to sacrifice
the interests of one to another. And we have had to hope, of course,
that the application of this Court’s rules o f retroactivity would not be
such as to force us imintentionally to do that thing.
73 This is so whether the question of applicability of a newly announced
constitutional rule to cases predating (in some sense or other) the rule’s
announcement is conceived technically as a question o f “ retroactivity*'
proper, as in Linkletter v. Walker, 381 U.S. 618 (1965), and Tehan v.
Shott, 382 U.S. 406 (1966), or as a question of distinguishing between
direct and collateral review, as may have been done in Stovall v. Denno,
388 U.S. 293 (1967) (decided on the same day as United States v. Wade,
388 U.S. 218 (1967)), despite the apparent rejection o f this approach
in Tehan, supra, at 410 n. 5. It is true, o f course, that the Witherspoon
case comes here at this time on collateral attack. But we have been able
to urge a reversal of the Illinois Supreme Court judgment in that case,
without discussion of any question related to its post-conviction posture,
because the Illinois court itself chose to reach and to dispose of Wither
spoon’s federal constitutional contention on the merits. This it was and
is free to do irrespective of any question whether it was compelled to
do so, see Johnson v. New Jersey, 384 U.S. 719, 733 (1966); and when
it chose to entertain the federal claim on the merits, it thereby subjected
its decision to review on the merits by this Court, again irrespective o f
any question whether it was federally obliged to hear the claim. Com
pare Thomas v. Collins, 323 U.S. 516 (1945), with Walker v. City of
Birmingham, 388 U.S. 307 (1967). Our suggested disposition of Wither
spoon, therefore, neither depends upon nor implicates any decision re
garding the retroactivity or collateral availability of the scrupled-juror
contention.
79
that the Court hold any ruling it may make invalidating
the death-qualification of capital juries retroactive as to
cases in which the death sentence was imposed, even though
non-retroactive as to other cases.
A. The Court Should Not Decide the Question o f
Retroactivity at This Time.
This Court’s most recent formulation of the inquiry dis
positive of the question whether a newly announced con
stitutional principle will be given retroactive application
identifies the following criteria:
“ (a) the purpose to be served by the new standards, (b)
the extent of the reliance by law enforcement authori
ties on the old standards, and (c) the effect on the
administration of justice of a retroactive application
of the new standards.” Stovall v. Denno, 388 U.S. 293,
297 (1967).
Under the first of these criteria, the critical if not con
trolling question will often be the degree to which the
constitutionally condemned practice affects “ ‘the very in
tegrity of the fact-finding process. . . . ’ ” Johnson v. New
Jersey, 384 U.S. 719, 728 (1966), quoting Linkletter v.
Walker, 381 U.S. 618, 639 (1965), and thereby distinguish
ing Jackson v. Denno, 378 U.S. 368 (1964). Where a sub
stantial effect tending to impugn the reliability of the trial
disposition is found to adhere in the practice, its condemna
tion will ordinarily be applied retroactively, even though
official reliance upon it may have been heavy and the offi
cial inconvenience occasioned by its retrospective overrule
may be substantial. Thus does Tehan v. Shott, 382 U.S.
406, 416 (1966), explain the retroactivity of Gideon v. Wain-
wright, 372 U.S. 335 (1963), on the principle that the de
nial of counsel, condemned by Gideon, tends to “ infect a
criminal proceeding with the clear danger of convicting the
80
innocent.” And, of course, an unconstitutional practice
that jeopardized the integrity and reliability of the sentenc
ing process would have the same claim to retroactive ap
plication as one that similarly affected the guilt-determin
ing process, for the same reason. This we may infer from
Mempa v. Rhay, 389 U.S. 128 (1967), wherein, as in Gideon,
the Court “ reviewed a denial of habeas corpus.” Johnson
v. New Jersey, supra, at 727. That the rule of Mempa is
retroactive cannot, therefore, he doubted. See, e.g., Breso-
lin v. Rhay, 389 U.S. 214 (1967).
Simply to state these principles is to make obvious, we
believe, the impracticability of deciding the retroactivity
question on these records. For even though it may he
possible in the absence of an adequate evidentiary hearing
for the Court to resolve the substantive issue of unconsti
tutionality of excluding death-scrupled jurors, it is not
possible to determine without such a hearing the prejudi
cial effects of that unconstitutional practice on a capital
jury’s determinations of guilt and sentence. We have had
to concede, earlier in this brief, that the substantive deter
mination of the scrupled juror issue at this time, in these
cases, was a feasible—albeit, we submitted, a highly un
desirable—procedure. But this was the case only if the
Court should adopt a method of approach to the issue that
perceived in the death-qualification practice a logical and
systemic violation of the constitutional command of jury
representativeness, and did not stop to weigh the effects
of the practice either as denying the defendant a fair and
impartial jury on the guilt issue or as prejudicing him in
fact on the penalty determination. (See pp. 51-53, supra.)
These latter points of concern are simply inadequately
developed on the record, we believe, to support a substan
tive constitutional determination either way grounded on
them (see pp. 54-74, supra) ; and we now submit that,
81
for greater reason, they are inadequately developed to
support an informed ruling- on retroactivity, which ordi
narily demands a far more finely calibrated measurement
of actual pressures and prejudices of an institution in
operation than is required for constitutional appraisal on
the merits of the same institution. Compare Johnson v.
New Jersey, supra, with Miranda v. Arizona, 384 U.S. 436
(1966). In this connection, we are mindful that this Court
has said that for purposes of the retroactivity question,
the determination that a condemned practice slightly or
indirectly affects the reliability of the fact-finding proc
esses does not mechanically require a retroactive applica
tion of the rule:
“ ‘ [T]he question whether a constitutional rule of
criminal procedure does or does not enhance the reli
ability of the fact-finding process at trial is necessarily
a matter of degree.’ Johnson v. New Jersey, supra-,
[384 U.S.] at 728-729. The extent to which a con
demned practice infects the integrity of the truth-
determining process at trial is a. ‘question of proba
bilities.’ 384 U.S., at 729. Such probabilities must in
turn be weighed against the prior justified reliance
upon the old standard and the impact of retroactivity
upon the administration of justice.” Stovall v. Denno,
supra, at 298.
I f the matter were one for easy intuition, we would
think it obvious that the practice of excluding from capital
juries those persons opposed to the death penalty has
an overwhelming effect on the composition of those juries,
and our every instinct and our experience with capital
cases tell us that this effect is profoundly detrimental to
the defendant on both the issues of guilt and penalty. We
have outlined previously in this brief what we expect an
evidentiary hearing to show in this regard, and have in
dicated to the Court the kinds of evidence which we think
might profitably be examined—including the results of
studies in the nature of the one to be conducted by the
Louis Harris organization. But until such a plenary hear
ing has been held, this Court cannot know the extent to
which the process of guilt determination, in particular, is
distorted by the death-qualification practice. It thus can
have no basis, we respectfully suggest, to begin the busi
ness of precise weighings and judgments that determina
tion of retroactivity under the prevailing tests demands.
This consideration compellingly indicates the need for
additional information about the operation and effect of
the practice of death-qualifying juries in capital cases in
order to evaluate the retroactivity question within the
framework of the Court’s decisions on that question. Un
like LinUetter v. Walker, 381 U.S. 618 (1965) and Tehan
v. Shott, 382 U.S. 406 (1966), where the integrity of the
guilt-determining process was not in issue, and unlike
Johnson v. New Jersey, 384 U.S. 719 (1966) and Stovall
v. Denno, 388 U.S. 293 (1967), where the effects of the
condemned practices, if any, on the fact-finding process
were likely to be minimal74 and were in any event well
74 The Miranda rules which the Court refused in Johnson to apply
retroactively were prophylactic and intended to protect against involun
tary waivers of the privilege against self-inerimination. The possibility
that they also may serve to prevent confessions which not only are in
voluntary but also are unreliable exists but must be regarded as slight.
Moreover, the pre-existing legal tools for dealing with involuntary con
fessions whether reliable or not— provided considerable assurance that
even without the Miranda rules, the integrity of the fact-finding process
would be preserved. See, e.g., Davis v. North Carolina, 384 U.S. 737
(1966).
Similarly, the rules respecting counsel at suspect identifications, which
this Court refused in Stovall to apply retroactively, affect the reliability
of the fact-determining process only slightly, particularly in light o f
the continuing availability o f the constitutional defense to a procedure
by which the defendant was identified, that it violated the Due Process
Clause. See Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966), cited in
83
understood by the Court at the time the cases were de
cided, the effects on the guilt-determining process in the
present cases are not known but are likely to be substan
tial. This is all the more critical when the issue arises in
the context of capital cases and the resolution of the
retroactivity question directly affects the lives of over
four hundred men now under sentence of death. The
Court, we respectfully suggest, will be fully justified in
proceeding with caution to evaluate the assertion that this
new constitutional principle should be given only prospec
tive application where there is the substantial possibility
that hundreds of condemned men have been convicted and
sentenced to death by procedures which lack the reliability
that justice requires when the State proposes to take
human life.
The desirability of deferring resolution of the retro
activity question is enhanced by an additional considera
tion, perhaps unique to these cases. To do so will permit
the impact of this Court’s decision on the merits of the
scrupled juror question to be absorbed and considered by
the various governmental departments of those States
which are affected by the decision. This may well be
critically important—quite apart from any consideration
of the ultimate question of retroactivity in the constitu
tional sense. For it may be that in many instances, whether
by legislative act, exercise of a state court’s power of judi
cial supervision over the criminal process, or by executive
order, some States will decline to execute men on the basis
of a constitutionally defective procedure which has deter
Stovall v. Denno, supra. See also People v. Caruso, 68 Adv. Cal. 181
(1968). And, of course, the entire subject of suspect identifications was
elaborately canvassed by the Court in United States v. Wade, 388 U.S.
218 (1967); the question of its suitability for accurate fact-determina
tion was well understood by the Court which that same day decided
Stovall.
84
mined, that they must die, irrespective of whether the
State is going to be required by a decision of this Court
to give retroactive application to the newly announced
constitutional rule.
We have in mind these practical considerations: A de
cision of this Court striking down the practice of ex
cluding scrupled jurors in capital cases will focus imme
diate attention upon the situation of those now condemned
to die and the procedures by which their guilt was de
termined. When this Court ultimately proceeds to decide
whether that decision shall be retroactively applied, it
must attempt to weigh a number of often problematical
considerations, and the outcome of that deliberation is a
rather arbitrary compromise—perhaps the best that can
be done considering the intrinsic difficulties of the inquiry,
but an arbitrary compromise nonetheless. Perhaps it will
be that this Court will be forced to conclude that the
principle forbidding exclusion of scrupled jurors need be
given, as a matter of federal constitutional law, only pro
spective application. Yet there may be those—perhaps
state judges who are personally responsible for the de
cision which sends a man to the execution chamber, per
haps a sensitive governor unwilling to permit an execution
where there is the slightest flaw in the guilt or penalty
determining precedures, possibly a concerned legislature
—who do not chose to permit those convicted by uncon
stitutionally death-qualified juries to go to their deaths as
the result of this sort of arbitrary compromise. An im
mediate decision of this Court holding the rule non-retro-
active would likely, as a practical matter, thwart such
local benevolence if only because of the intense political
pressures that are brought to bear on the execution of the
death penalty. Deferring decision of the retroactivity ques
tion will permit the fullest possible consideration, on a local
85
basis, of the equities of affording new trials to those con
demned to death by means of an unconstitutional proce
dure.
B. The Ruling on the Scrupled Juror Question Should
Be Applied Retroactively to Those Cases in Which
the Death Penalty Has Actually Been Imposed.
Notwithstanding the foregoing considerations, the Court
may feel compelled to rule on the retroactivity question at
this time. Our submission on the merits of that question
may be shortly stated. Those cases in which capital de
fendants suffered the full impact of the death-qualification
practice, in that the death sentence was actually imposed
upon them, must be given the benefit of a decision retro
actively upsetting the practice. It is in their cases that
the practice worked its most pernicious and prejudicial
effects. The burden upon the administration of justice of
this much limited retroactivity is inconsiderable—certainly
not considerable enough to warrant putting men to death
on account of fortuities of timing in their appearance be
fore this Court.
As we have previously said, the prior decisions of the
Court—most notably the recent decision in Stovall v. Denno,
supra,— establish that the determination of whether a new
ly announced constitutional principle is to be given retro
active application involves a weighing of the effect o f the
condemned practice on the reliability of the fact-determin
ing and sentencing processes against such countervailing
considerations as the “ reliance” of the various state agen
cies and officials on the existence of the prior and contrary
principle, and the burdens put upon those agencies and
officials by requiring retrials of persons convicted under
the condemned practice.
As for the first consideration, there can be little doubt
on the basis of the presently Jcnown information (see pp.
86
56-61, supra) that the practice of excluding from capital
juries all those persons conscientiously scrupled against
the death penalty has some significant impact on the guilt
determining process. "VYe need not repeat what we have
earlier said respecting this effect; suffice it to say that
those jurors who survive death-qualification tend to be
those members of the community who are most prosecution-
prone. And, where as is universally the case, the jury also
has broad, uninstructed, and unfettered discretion to deter
mine whether or not the death penalty is to be imposed,
death-qualification works a still more obvious and egregious
prejudice. It distorts the operation of a system designed
to determine the penalty question on the basis of the
“collective conscience” of the community by stripping it
of the influence of those persons whose own “conscience”
opposes capital punishment, and by reinforcing and sup
porting the deathful instincts of the rest.
This, then, is one side of the balance sheet. On the
other rest the twin considerations of “ reliance” and the
impact on the administration of justice if retrial is ordered
for those tried by death-qualified juries.
The reliance factor, we respectfully submit, is not a
weighty consideration here. The degree of reliance in
volved is considerably less than in other areas—the appoint
ment of counsel for indigents; the procedures for deter
mining the voluntariness of confessions—where this Court
has retroactively imposed newly announced constitutional
principles. The Court has never written an opinion sus
taining death-qualification against constitutional challenge.
For a number of years there has been respectable academic
criticism of the practice, e.g., Oberer, Does Disqualification
of Jurors for Scruples Against Capital Punishment Con
stitute Denial of Fair Trial on Issue of Guilt?, 39 Texas
L. Eev. 545 (1961), which might have alerted those charged
87
with the administration of criminal justice that excluding
scrupled jurors was of doubtful constitutionality. Indeed,
the majority opinion in Fay v. New York, 332 U.S. 261
(1947), pretty plainly told those who cared to read that
if and when the practice could be proved to result in prose
cution-prone or unfairly biased juries, the Court would
strike it down. Prosecutors and judges of average experi
ence, knowing what all others of experience know about
death-qualified juries hut believing that it could never be
proved on the record to the satisfaction of appellate courts,
are hardly the sympathetic proponents of a legitimate reli
ance interest.
More substantial is the consideration of the burden on
the administration of justice in the States if all those here
tofore tried by a death-qualified jury are now to be given
a new trial. This group includes not only those condemned
to be put to death, but also the presently incarcerated per
sons who were convicted of lesser crimes, or given lesser
penalties following a trial for a capital crime at which
the jury had been death-qualified. While we do not know
precisely the size of the latter category, we may assume
that it is large. And because these are cases in which
terms of imprisonment may be quite long, presumably they
include quite a few cases in which the convictions are
stale and retrial a practical impossibility.
In contrast, the number of persons actually condemned
to death is relatively manageable-—slightly over 400 in
the United States by the most recent count. Some of these
pleaded guilty and might not have standing to assert the
scrupled juror claim; others were tried to the bench in
jury-waived proceedings; still others are now on direct
appeal and may be given new trials on other grounds. The
actual number of those persons who would be retried be
cause of a retroactive ruling of this Court is, therefore,
small, and their cases are not likely to be stale unless pro
ceedings therein have previously been protracted by a
cumulation or succession of other fundamental errors.
Moreover, these men are scattered around the country and
the burden imposed on any given State—or county in a
State—would be extremely slight.
Our submission is that the line of retroactivity may
properly be drawn between those persons who have been
subjected to the extreme penalty of death and those who
have not. There is, concededly, no express constitutional
basis for the fixing of such a boundary. Its groundroot
must be referred to the simple and civilized principle once
stated by Mr. Justice Frankfurter for the Court: “ The
difference between capital and non-capital offenses is the
basis of differentiation in law in diverse ways in which
the distinction becomes relevant.” Williams v. Georgia,
349 U.S. 375, 391 (1955). For varying exemplifications of
the principle, see, e,g\, Powell v. Alabama, 287 U.S. 45
(1932); Stein v. New York, 346 U.S. 156, 196 (1952);
Hamilton v. Alabama, 368 U.S. 52 (1961).
Recognizing the difference between life and death as
“ the basis of differentiation” for this purpose necessarily
involves a candid avowal that the law of constitutional
retroactivity—the process of determining that a particular
constitutional decision of this Court shall be limited to
prospective application only-calls for essentially intuitive
line drawing, which itself finds no express support in the
Constitution, but which is rapidly becoming fundamental
to “ [sjound principles of decision-making.” Stovall v.
Denno, supra, 388 U.S. at 301. We do not apologize for
so labeling the process which this Court has invoked in
recent years, for there is no criticism implied. It is a
practical solution to an intensely practical problem, and
there can be little surprise that it sometimes needs come
down to a matter of rather arbitrary judgments. Messrs.
Miranda, Vignera, Westover, and Stewart were the fortu
89
nate beneficiaries of the Court’s decision that their cases
were appropriate for review of the questions flowing from
Escobedo v. Illinois, 378 TI.S. 478 (1964); dozens of other
prisoners, whose petitions for certiorari were contempo
raries of the fortunate four, did not receive the benefit of
the rules announced in Miranda. The same can be said of
Messrs. Wade and Gilbert, whom this Court has described
as “ chance beneficiaries” of the rulings in their cases.
Stovall v. Denno, supra, 388 U.S. at 301. It is therefore
not with any justification based on air-tight logic or the
satisfaction of tidiness that we ask for the fixing of a
boundary which, although possessed of characteristics
which some may regard as arbitrary, serves fairly well to
distinguish categories of cases which do possess significant
differences. It is rather with unhappy resignation to the
necessity for a regime of intuition and some arbitrari
ness; and with a firm conviction that this intuition, this
arbitrariness, are sound if any are.
First, the gravity of the death penalty in contrast with
any punishment of imprisonment for a term of years it
self justifies disparate treatment. To treat those matters
differently does no more than to reflect those human im
pulses which we submit are shared by the public at large
and represent fundamental values of our heritage. These
require that, if the state must take a life as punishment
for the commission of a serious offense against society,
it may do so only after affording the accused every pos
sible fair opportunity and lawful procedure to acquit him
self, and only when there is no possible doubt of his guilt
or the fairness of his condemnation. While we may have to
accept that our system of criminal trial and punishment
is not perfect, and to tolerate the possibility that men may
be imprisoned for crimes of which they are not guilty,
surely that possibility is intolerable where life itself is at
stake.
90
Second, the finality of the death penalty offers an addi
tional basis of distinction. Once imposed, the extreme
sentence is irreversible. Persons serving even extended
sentences in prison may be unable to assert the exclu
sion of scrupled jurors as an objection to the reliability of
the fact-finding procedure by which they were convicted.
But they possess other procedural alternatives (includ
ing judicial new-trial motions and post-conviction reme
dies, applications for executive clemency or pardon)
through which to assert that that fact finding procedure
was in fact—in various ways—if this be provable—un
reliable. These alternatives, unavailable after execution
of the condemned man, highlight the reason for treating
his case differently and allowing him extreme latitude
in challenging the validity of the procedures by which he
was adjudged guilty of a capital offense and sentenced to
death. For it must not be forgotten, as this Court has
said, that the extent to which a constitutionally infirm
practice infects the integrity of the truth-determining
process is “ ‘a question of probabilities,’ ” 75 76 not of cer
tainties. To equate the probabilities on which a civilized
jurisprudence properly takes judicial action in a non-death
case with that level of probability that should be required
before a court acts to seal its judgment forever against
revision or correction— sending a man to death:—is, we sug
gest, purblind or perverse.76
75 Stovall v. Denno, supra, 388 U.S. at 298.
76 In saying this we do not ignore that Johnson v. New Jersey and
Stovall v. Denno were capital eases (Stovall in form only, since the Few
York abolition statute was, of course, being given retroactive applica
tion via executive clemency). But the significance of the fact that they
were capital eases was not argued to or discussed by the Court in either
case; and the constitutional rules in question in both— being general mat
ters of criminal procedure not uniquely related to death cases— did not
invite consideration of the peculiar concerns implicated by the applica
tion o f the Court’s general rules of retroactivity to constitutional deci
sions invalidating practices that affect particularly death cases. W e now
urge those considerations on the Court.
91
Third, as we have pointed out above, the exclusion of
jurors scrupled against the death penalty affects both the
guilt-determining and the sentence-fixing processes. In
both regards it is challenged as violating the Constitution
and wronging the defendant on his trial. But the defen
dant who is sentenced to death alone feels the full brunt
of the practice— suffers the extreme, incomparable injury
worked by the asserted constitutional violation in the
sentencing phase. Whatever doubts one may have as to
the “probabilities” that death-qualifying a jury affects its
guilt deliberations, no doubt can for a moment be enter
tained with regard to its sentencing function. It is to affect
that function that is the explicit, professed purpose of
qualifying the jurors on the death penalty; and any asser
tion which denies that the procedure has its designed effect
must surely lack both legal and common intelligence. Per
vasively in this country, the capital jury decides the ques
tion of life or death in the exercise of an undirected, limit
less and wholly arbitrary discretion. It sits not to apply
rules of law but to enforce its social philosophies, prejudices
or whims for or against the defendant’s life. Literally the
only predictable determinant of what it will do, whether
it will speak for life or death, is the collective attitude of
the twelve jurors in the box. Death-qualification is the
single major determinant of that attitude, which it affects
both by systematically screening the persons of the jurors
against the possibility of minds conscientiously principled
to vote for life, and by driving home in the minds of the
remaining jurors, through repeated iterations at the out
set of the capital trial, the message that death is the pen
alty, the approved and prepared-for penalty, at which the
proceeding must undeflectedly aim.
Certainly, then, if the exclusion of scrupled jurors from
the penalty determination is itself held unconstitutional,
that rule must have retroactive application to death-
92
sentenced defendants. Indeed, only if the Court affirma
tively holds that death qualification at the penalty phase
does not violate the Constitution (although death-qualifica
tion at the guilt phase does), could there be any slightest
doubt of the retroactive extension of the constitutional
holding to these men. But, even if this be the nature of
the Court’s decision on the merits, we believe that the
unique sort of prejudice suffered in the penalty determina
tion by death-sentenced men supports their claim of entitle
ment to its retroactive benefits. For whatever the basis of
the constitutional violation found, the damaging effect of
death qualification upon the penalty decision in the case of
each such man is undeniable.
This effect is exaccerbated under the usual single-verdict
capital trial practice. At every single-verdict trial hereto
fore held before a death-qualified jury the same procedure
which denied the defendant (as it is now held) a constitu
tional trial on the guilt phase, also had two other effects.
It forced him to a determination of his sentence by the same
guilt-qualified jury, with all that that implies; and it
authorized this result in the course of a single-verdict
proceeding—a form of trial that is extremely prejudicial,
for independent if related reasons.77 Following the consti
tutional invalidation of the practice of death-qualifying
jurors for the guilt determination, no capital defendant
could he subjected to more than one of these latter two
adversities. Systematic exclusion on the guilt phase being
forbidden, the State is required to give up either the single
verdict trial or death-qualification of the penalty determin
ing jury. The coincidence of the two in a trial conducted
prior to the constitutional decision outlawing the practice
therefore deviated substantially, to the defendant’s detri
ment on the penalty issue, from the sort of trial to which
77 See pp. 17-18, 20 supra.
93
the constitutional decision entitles him—even though that
decision be based exclusively, as a doctrinal matter, on his
rights in the guilt phase. For this reason, death-sentenced
defendants tried by this procedure have suffered a kind of
prejudicial effect of death-qualification that others have
not; the effect is one that directly impugns the propriety of
the penalty disposition; and we submit it follows that each
of these defendants may plainly complain retroactively of
an unconstitutional practice that also was designed to and
did deprive him of his life.
94
CONCLUSION
The Court should not reach the merits of the constitu
tional challenge to exclusion of scrupled jurors raised in
these cases at this time. Witherspoon should he reversed
for an evidentiary hearing on the constitutional facts es
sential to considered adjudication of that challenge. Bump
ers, if not reversed on other grounds, should he remanded
in light of Witherspoon. Even if the Court reaches the
merits of the controversy, it should not now speak to the
question of retroactivity. I f the retroactivity question is
decided, any rule invalidating the practice of death-qualify
ing capital juries should be held retroactive as affects men
sentenced to death in a trial by such a jury.
Respectfully submitted,
Jack Greenberg
James M. Nabrit, III
M ichael Meltsner
L eroy D. Clark
Norman C. A maker
Charles S. Ralston
Jack H immelstein
10 Columbus Circle, Suite 2030
New York, New York 10019
A nthony G. A msterdam
Philadelphia, Pa. 19104
3400 Chestnut Street
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Fund, Inc.,
and National Office for the Rights
of the Indigent.
APPENDIX
A P P E N D I X I
Excerpts from the Voir Dire Examinations O f Pro
spective Jurors McCarley and Lewis In P eop le v. Argu-
ello (Tr. 308 -3 11 ), Now Pending on Federal Habeas
Corpus Sub Nom. Arguello v. N elson, U.S.D.C., N.D. Cal.
No. 47622.
[Mrs. McCarley]:
Q. All right. Do yon have any conscientious objections
against the imposition of the death sentence! A. Not if
it is the law.
Q. Yes. But you, as an individual, do you feel that you
could personally impose the death sentence in a proper
case! A. In a proper case because it’s the law.
Q. Well, are you in favor of the law or are you in favor
of abolishing the death sentence!
Mr. Whelan: That’s objected to as improper voir
dire.
The Court: Objection sustained.
(By Mr. M eloche):
Q. Do you entertain any conscientious objections against
the imposition of the death sentence yourself! A. Because
it’s the law, and because we live by this law, I feel that the
death sentence in its proper place should be used as a tool
of the law.
Q. But regardless of it being the law or not, as an indi
vidual do you have any personal conscientious objections
against the imposition of the death sentence! A. If I
could change the law, I would change the law.
Q. In other words, you do have a conscientious objection
against the imposition of the death sentence, then, is that
correct! A. Yes. I would prefer that it was not the law.
2a
Appendix I
Mr. Meloche: Your Honor, at this time I would
ask that she be excused for cause. She entertains a
conscientious objection and I appreciate your candid
statement Mrs. McCarley.
The Court: Is that true, Mrs. McCarley!
Mrs. McCarley: That’s true.
The Court: You entertain a conscientious objec
tion!
Mrs. McCarley: I would rather that it was not
the law.
The Court: All right. You may be excused.
# * * * *
[Mr. Lew is]:
Q. Do you have any objection to serving as a juror in this
particular case? A. No.
Q. You are aware of the responsibilities involved? A.
Yes.
Q. And you are willing to assume that responsibility?
A. Only in an extreme case could I ever give the ultimate
penalty; very extreme case. I would he inclined to be leni
ent, is what I mean.
Mr. Whelan: I didn’t get the last.
The Court: She would be inclined to be lenient.
By the Court:
Q. Well, I take it, then, you have some conscientious
scruples against the imposition of the death penalty? A.
Yes, some. I could in a very extreme case, as I say.
Q. You would set up your own standard, though, of
course? A. No, sir. I f the person were proven, well, to he
perfectly blunt not fit to live, I could • otherwise I could not.
3a
Appendix I
Q. Well, again I will ask you: You do have some consci
entious scruples against the imposition of the death penalty.
A. Yes.
The Court: You may be excused.
4a
Excerpt From the Voir Dire Examination O f Pro
spective Juror Timberlake, In P eop le v . Saterfield (Ti\
83 -8 5 ), Now Pending On Habeas Corpus, M atter o f
Sater field, Cal. S.C. Grim. No. 11573.
The Court: Do you know of any reason why you
couldn’t sit as a fair and impartial juror in a trial
of this nature?
Mr. Timberlake: Well, I have thought about four
points, but, don’t get me wrong, I want to serve and
do my duty if I am chosen.
The Court: Do you have a quarrel with the death
penalty?
Mr. Timberlake: No. That might be one of the
points, but still I know it is the law, so I want to go
along with the law.
The Court: Do you hesitate to apply that law?
Mr. Timberlake: No.
The Court: If you found, under the instructions,
that it should be applied.
Mr. Timberlake: No.
The Court: In this particular case.
Mr. Timberlake: No.
# * * * #
Q. . . . what are the remaining things? A. Well, one
was two to three weeks; another one you brought up, the
flu situation; I have a daughter at home with a fever, my
Quaker background—
Mr. Enright: I will stipulate, your Honor—
The Court: I don’t think you have to go any fur
ther.
A P P E N D I X I I
5a
Appendix II
Mr. Eiccardi: I would so stipulate, your Honor.
The Court: Thank you, Doctor. I know you want
to do your duty, and you did by informing us of
your Friend’s belief. I don’t think we can accept you
on a jury involving a possible death penalty, hut we
thank you for coming forth with the information.
You may be excused. Call another juror.
6a
Excerpt From the Voir Dire Examination O f Pro
spective Juror Upchurch, in P eop le x . Schader (Tr.
2 4 7 ) , Appeal Pending, Cal. S. C. Grim. No. 9855.
By the Court:
Q. I still can’t understand, Mrs. Upchurch, how the fact
that you have children could possibly affect your judgment
in the case. Do you have something else? A. No, your
Honor. I was just thinking if it were my son.
Q. Almost everyone in this jury box has children. A. I
know.
Q. And responsibilities, and—you indicating to the Court
you might tend to favor these defendants because you have
sons? A. I might.
* * # # *
The Court: You will be excused, Mrs. Upchurch,
and I think if you have that attitude, you’d best re
tire from jury service. I f you have this emotional
approach to things, you do not belong as a juror.
So you will be permanently excused.
Mrs. Upchurch: All right. Thank you.
A P P E N D I X I I I
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