Maxwell v. Bishop Motion for Leave to File Brief Amici Curiae and ACLU Brief Amici Curiae

    I n th e

Bnpxmt (Emtrt of 'Mnxtxb l̂ fafaa
October T erm, 1968 

No. 622

W illiam L. Maxwell,
Petitioner,

0. E. B ishop, Superintendent, Arkansas State Penitentiary,

Respondent.

MOTION OF AMERICAN CIVIL LIBERTIES UNION, 
ILLINOIS DIVISION, AMERICAN CIVIL LIBERTIES 
UNION, AND ILLINOIS COMMITTEE FOR THE ABO­
LITION OF CAPITAL PUNISHMENT FOR LEAVE 
TO FILE BRIEF AMICI CURIAE AND BRIEF 
AMICI CURIAE

Elmer Gertz

120 South. La Salle Street 
Suite 1805
Chicago, Illinois 60603

"Willard J. Lassers

11 South La Salle Street 
Suite 3400
Chicago, Illinois 60603

Attorneys for Amici Curiae



I N D E X

Brief of A mici Curiae ................................................    5

I. The single verdict procedure violates the Fifth 
and Fourteenth Amendments ..............................  6

II. Imposition of the death penalty in the absolute 
discretion of the jury, uncontrolled by standards 
or direction of any kind, violates due process .. 14

Conclusion..............................................................    21

Table of Cases

In re Anderson, 73 Cal. Reptr. 21 at 36, 40-59 ...........  14

Bradshaw v. Commonwealth, 174 Ya. 391, 4 S. E. 2d 
752 (1939) .........................................................................  16

Commonwealth v. Madaffer, 291 Pa. 270, 139 Atl. 875 
(1927) .................................................................................  16

Eacret v. Holmes (Governor), 215 Ore. 121, 333 P. 2d
741, 744 (1958) ................................................................ 19

Ex parte Grossman, 267 U. S. 87 (1924) ...........................  19

Hernandez v. State, 43 Ariz. 424, 32 P. 2d 18 (1934) .. 16 
Howell v. State, 102 Ohio 411, 131 N. E. 706 (1921) .... 16

Jamison v. Flanner, 116 Kan. 624, 228 P. 82 (1924) .... 19

PAGE



11

PAGE

Marshall v. State, 33 Tex. 664 (1871) .......................... 16
Martin v. State, 21 Tex. App. 1, 17 S. W. 430 (1886) .. 19 
McGee v. Arizona State Board of Pardons and Paroles,

92 Ariz. 317, 376 P. 2d 779 (1962) ................................  18
Montgomery v. Cleveland, 134 Miss. 132, 98 So. I l l  

(1923) ...............................................................................  19

In re Opinion of Justices, 120 Mass. 600 (1876) ........... 19

People v. Bernette, 30 111. 2d 359, 197 N. E. 2d 463
(1964) .......    14

People v. Bonner, 37 111. 2d 553, 229 N. E. 2d 527 (1967) 17
People v. Dukes, 12 111. 2d 334, 146 N. E. 2d 14 (1957) 17
People v. Jenkins, 325 111. 372, 156 N. E. 290 (1927) 18
People v. Meyers, 35 111. 2d 311, 220 N. E. 2d 297 

(1966), cert. den. 87 S. Ct. 752, 385 U. S. 1019, 17
L. Ed. 2d 557 ................................ -................................ 17

People ex rel. Page v. Brophy, 248 App. Div. 309, 289
N. Y. S. 362 (1936) ...................................................-  19

People v. Smith, 14 111. 2d 95, 97, 150 N. E. 2d 815 
(1958) ...............................................................................  16

People v. Taylor, 33 111. 2d 417, 211 N. E. 2d 673 (1965) 17
Pope v. U. S., 372 F. 2d 710, 727-730 (CA 8th 1967) 13

Smith v. State, 205 Ark. 1074, 172 S. W. 2d 248 (1943) 16
State v. Chaney, 117 W. Va. 605, 186 S. E. 607 (1936) 16 
State v. Christensen, 166 Kan. 152,199 P. 2d 475 (1948) 16
State v. Harrison, 122 S. C. 523, 115 S. E. 746 (1923) 19
State v. Wilson, 151 Iowa 698, 141 N. W. 337 (1913) .... 16 

Witherspoon v. Illinois, 391 U. S. 510 (1968) ...............2, 21



Constitutions and Statutes

page

Ala. Code tit. 14, sec. 318 (1940) .................................. 14,15
Ariz. Rev. Stat. sec. 13-453 (1956) ..............................  14
Ark. Stat. Ann. secs. 41-2227, 43-2153 (1947) ............... 14

Cal. Pen. Code sec. 190 (1955) ......................................  14
Code of Criminal Procedure of 1963 Sec. 121-9 ........... 12
Colo. Rev. Stat. ch. 40, art. 2-3 (1963) ..........................  14
Conn. Stat. Ann. sec. 53-10 (1958) ..................................  15

Dela. Code Ann. tit. 11, sec. 571 (1953) ....................... 15

Fla. Stat. secs. 782.04, 919.23 (1951) ..............................  15

Ga. Code Ann. sec. 26-1005 (1953) ..................................  15

Idaho Code sec. 18-4004 (1947) ......................................  15
Illinois Constitution, Art. II, Sec. 2 ..............................  17
Illinois Constitution, Art. 5, Sec. 13 ..............................  18
Illinois L. 1819, p. 213, Sec. 2 ......................................  7

Rev. Laws 1827, Crim. Code §§22-24 .......   7
Rev. Stat. 1845, ch. 30, §§22-24................................  7
Rev. Stat. 1874, ch. 38, §142......................................  8

111. Rev. Stat. ch. 38, secs. 9-1, 1-7 (c) (1) (1967) .... 7, 8
111. Rev. Stat. ch. 38 sec. 1-7 (g) (1967) ...................7,14,15
Ind. Ann. Stat. secs. 10-3401, 9-1819 (Burns 1956) .. 15

Kan. Stat. Ann. sec. 21-403 (1964) ..............................  15
Ky. Rev. Stat. secs. 431.130, 435.010 (1948) ................... 15

La. Rev. Stat. tit. 14, sec. 30, tit. 15 sec. 409 (1950) .. 15

Md. Ann. Stat. Art. 27, sec. 413 (1957) ..........................  15
Mass. Laws Ann. ch. 265, sec. 2 (1956) .............    15
Miss. Code Ann. sec. 2217 (1942) ..................................  15

I l l



IV

Mo. Stat. Ann. see. 559.030 (1949) ....... ,.......................... 15
Mont. Rev. Code Ann. sec. 94-2505 (1947) ................... 15

Neb. Rev. Stat. see. 28-401 (1943) ...............................  15
Nev. Rev. Stat. sec. 200.030 (1963) ................................ 15
N. H. Rev. Stat. Ann. sec. 585.4 (1955) .....................  15
N. J. Stat. Ann. tit. 2A, ch. 113, sec. 4 (1953) ............  15
N. M. Stat. Ann. ch. 40A, sec. 29-2 (1953) .................... 15
N. Y. Penal Code sec. 1045 .............................................  15
N. C. Gen. Stat. sec. 14-17 (1953) .................................  15

Ohio Rev. Code tit. 29, sec. 2901.01 (1964) ................  15
Okla. Stat. Ann. tit. 21, sec. 707 (1951) ................... 15

Pa. Stat. Ann. tit. 18, sec. 4701 (Purdon 1963) ...........  15

S. C. Code of Laws tit. 16 sec. 16-52 (1962) ...................  15
S. D. Code of 1939 (1960 Sapp.) Ch. 13.20 sec. 13.2012 

(1960) .... ............................................................................  15

Tenn. Code Ann. sec. 39-2405 (1955) ............................  15
Tex. Pen. Code art. 1257 (1961) ......................................  15

Utah Code Ann. tit. 76, sec. 76-30-4 (1953) ............... 15

Yt. Stat. Ann. tit. 13, sec. 2303 (1959) ....................... 15

Wash. Rev. Code Ann. tit. 9, sec. 9.48.030 (1961) .... 15 
Wyo. Stat. Ann. sec. 6-54 ..............................................  15

PAGE



V

Other A uthorities
page

16 C. J. S. Const. Law sec. 157, p. 830 ..........................  19

Executive Clemency in Capital Cases, 39 N. T. U.
Law R. 136, 178 (1964) ................................................  19

Kalvin and Zeisel, “ The American Jury and the Death 
Penalty,” 33 TJ. Chi. L. Rev. 769, 770 (1966) ........... 15

National Prisoner Statistics—Executions No. 42, June 
1968, Table 10, page 2 2 ..................................................  6

Pease, Laws of the Northwest Territory—1788-1800,
page 13 .............................................................................  6

Philbrick, Pope’s Digest, 1815, Vol. 1, page 91 ...........  7

Rules of the Supreme Court of Illinois (Rule 615 (b)
(4)) ............................................ -................................... 11,16



In t h e

Bnpvmt (tort nf ttjr Imtrtu Itote
October T erm, 1968 

No. 622

W illiam L. Maxwell,

Petitioner,
— v.—

0. E. B ishop, Superintendent, Arkansas State Penitentiary,

Respondent.

Motion of American Civil Liberties Union, Illinois Divi­
sion, American Civil Liberties Union, and Illinois 
Committee for the Abolition of Capital Punishment 
for Leave to File Brief Amici Curiae

The American Civil Liberties Union and the Illinois 
Committee for the Abolition of Capital Punishment, move 
the Court for leave to appear as Amici Curiae in this case 
and to file a brief in support of the petitioner. Petitioner 
has consented to the filing of this brief. The respondent’s 
attorney has not replied to our request.

The American Civil Liberties Union, an organization de­
voted to the preservation of a free and open society, prin­
cipally through the Bill of Bights and the Fourteenth 
Amendment to the Constitution of the United States, has 
taken the position that capital punishment is inherently a 
civil liberties issue.



2

With leave of this Court, the Illinois Division of the 
American Civil Liberties Union filed an Amicus Curiae 
brief in Witherspoon v. Illinois, 391 U. S. 510 (1968). In 
that brief, and particularly in points III and IV  (pp. 19- 
30), pertaining to the absence of legislative and judicial 
guidelines, the A.C.L.U. anticipated in some aspects the 
issues to which the grant of certiorari herein has been 
limited.

Capital punishment must be examined, not as if it were 
one among many punishments society chooses to impose 
upon its offenders, but one awful in contemplation and 
irrevocable in result. The issues as framed by this Court 
must be considered in light of the fact that the death 
penalty is withering away everywhere. The dramatic de­
cline is shown by the fact that in 1968 there was not one 
execution in the entire country; in 1967, there were two 
executions, and in 1966 one. A  substantial and growing 
segment of all Americans, probably a majority, is opposed 
to the death penalty. Tet almost 500 persons are now under 
sentence of death. This creates a moral and constitutional 
dilemma that must be confronted and resolved by this 
Court.

The Illinois Committee to Abolish Capital Punishment 
joins with the American Civil Liberties Union in this appli­
cation. This Committee numbers in its membership lead­
ing citizens of the State of Illinois, of all religious faiths 
and professional, social and economic levels. It has been 
active in its field for several years and is familiar with



3

the problems involved herein. Counsel for Movants are 
members of the Committee.

Respectfully submitted,

E lmer Gertz

120 South La Salle Street 
Suite 1805
Chicago, Illinois 60603

W illard J. Lassers

11 South La Salle Street 
Suite 3400
Chicago, Illinois 60603 

Attorneys for Movants



Ik t h e

Supreme (tort nf tlj? Itutpfc BtntBB
October T erm, 1968

No. 622

W illiam L. Maxwell,

— v .—

Petitioner,

0. E. B ishop, Superintendent, Arkansas State Penitentiary,

Respondent.
---------- -— --------------- ---- ---

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, 
ILLINOIS DIVISION, AMERICAN CIVIL LIBERTIES 
UNION, AND ILLINOIS COMMITTEE FOR THE ABO­
LITION OF CAPITAL PUNISHMENT, AMICI CURIAE

Because the attorneys for Amici practice in Illinois, this 
brief will be devoted largely to the Illinois experience 
and will supplement what is before the court respecting 
Arkansas.

Presently twenty-one men and one woman are under the 
death sentence in Illinois. At the end of 1967, the last year 
for which full statistics have been published, Illinois had 
nineteen inmates on death row and ranked eighth among 
the states in the number of capital prisoners.

The Illinois experience has broad relevance to the ease 
at bar because all of those awaiting execution in Illinois 
have been convicted of murder. Thus the Illinois cases



6

present the mainstream of the problem.* Furthermore, 
under Illinois law there is both a unitary trial and an ab­
sence of statutory and case law standards. Thus each of 
the questions upon which certiorari has been granted is an 
Illinois issue. There are, however, subtle differences be­
tween Illinois law and Arkansas law. Comment on these 
differences will put the issues at bar in broader perspective.

A R G U M E N T

I.

The single verdict procedure violates the Fifth and 
Fourteenth Amendments.

The single verdict procedure became part of the law of 
Illinois by historical accident. The earliest statute on 
murder, enacted for the Northwest Territory, was the law 
of September 6, 1788. (Pease, Laws of the Northwest Ter­
ritory— 1788-1800, page 13). It provided tersely:

“ If any person or persons shall with malice aforethought, 
kill or slay another person, he, she, or they so offending 
shall be deemed guilty of murder, and upon conviction 
thereof shall suffer the pains of death.”

Under this statute, there was no occasion to separate 
the issues of guilt or innocence from the issues of mitiga­
tion or aggravation, because there was only a single penalty 
for murder. The definition of the crime of murder varied 
somewhat over the years, but the sole statutory penalty

* For 1967, of 435 individuals then under sentence of death 
nationally, 357 were sentenced for murder. National Prisoner 
Statistics— Executions No. 42, June 1968, Table 10, page 22.



7

provided for murder was death. (See the statute enacted 
for Illinois Territory in 1807, Philbrick, Pope’s Digest, 1815, 
Volume 1, page 91.) It was re-enacted in the first criminal 
code of the State (Laws 1819, page 213, Section 2). (For 
later enactments see Revised Code of Laws, 1827, Criminal 
Code, Sections 22-24 and Rev. Stats., 1845, Chapter 30, 
Sections 22-24.)

In 1867, for the first time, the mandatory sentence of 
death for murder was abolished. In its place the jury was 
authorized to impose a sentence of death, life imprison­
ment, or a term of not less than 14 years. The humani­
tarian purposes of this statute are apparent from its text 
(Laws 1867, page 90):

“ That in all cases of felonies, which, by existing laws 
are punishable with death, it shall be competent for 
the jury empaneled, to return with their verdict of 
guilty, and as part of the same, either that the prisoner 
shall suffer death by hanging, as now provided by law, 
or that he be imprisoned in the penitentiary for the 
term of his natural life, or for a term of not less than 
fourteen years, as they may decide; and no person shall 
be sentenced to death by any court, unless the jury 
shall have so found in their verdict upon trial.” *

* The foregoing statute remained essentially unchanged until 
enactment of the Criminal Code of 1961, Illinois Revised Statutes 
1967, Chapter 38, Secs. 1-7 (c) and 9-1.

Sec. 9-1 (b) provides:
A  person convicted of murder shall be punished by death or 
imprisonment in the penitentiary for any indeterminate term 
with a minimum of not less than 14 years. If the accused is 
found guilty by a jury, a sentence of death shall not be im­



8

The Illinois Statutes were codified in the mid 1870’s. The 
earlier enactments, together with the 1867 amendment, ap­
peared in the Revised Statutes of 1874, Chapter 38, §142, 
as follows:

“ Murder-Punishment. §142. Whoever is guilty of mur­
der, shall suffer the punishment of death, or imprison­
ment in the penitentiary for his natural life, or for a 
term not less than fourteen years. If the accused is 
found guilty by a jury, they shall fix the punishment 
by their verdict; upon a plea of guilty, the punishment 
shall be fixed by the court. R. S. 1845, P. 155, §24; 
L. 1867, p. 90 §1.”

posed by the court unless the jury’s verdict so provides in 
accordance with Section 1-7 (c) (1) of this Code.
Sec. 1-7 (e) (1) provides:
Where, upon a trial by jury, a person is convicted of an of­
fense which may be punishable by death, the jury may return 
a verdict of death. Where such verdict is returned by the 
jury, the court may sentence the offender to death or to im­
prisonment. Where such verdict is not returned by the jury, 
the court shall sentence the offender to imprisonment.

Thus under present law, the jury determines guilt and then may 
recommend the death penalty. It has no further role to play in 
sentencing. If the jury recommends death, the judge may impose 
death or a term of not less than fourteen years. If the jury does 
not recommend death, the judge may not impose death but only 
imprisonment.

Illinois law prior to 1961 was similar to Arkansas law in that 
the jury determined both the death sentence and the term of im­
prisonment. It differed in that under Illinois law the jury had 
to make a positive decision to fix the punishment at death, whereas 
under the Arkansas law in effect in the case at bar, it had only 
to find petitioner guilty of rape (without rendering a verdict of 
life imprisonment), whereupon the death sentence became man­
datory (398 P. 2d 138, 139). (Of the 22 pending Illinois capital 
cases, two are subject to the pre-1961 law).



9

The 1874 codification preserved the purposes of the 1867 
amendment, but the humanitarian history of the amend­
ment was obscured.

In the century which has passed since 1867, our percep­
tion of the world and of man has undergone a revolution. 
The world of 1867, compared to today’s, was relatively 
simple in its awareness of human motivation. It may have 
been enough then to give the jury a choice of punishments. 
The need for a two step procedure by which first to deter­
mine guilt and then punishment doubtless was not per­
ceived. Perhaps imprisonment was viewed as an act of 
grace; perhaps it was felt that evidence on the guilt-inno­
cence issue provided ample evidence as to punishment. 
Whatever the reason in 1867, it is apparent today that a 
new constitutional standard must be applied.

Today, largely because of the Fourteenth Amendment, 
our vision of the criminal trial is clearer. There is ini­
tially a need to determine whether the accused was respon­
sible (in a physical, not a moral sense) for the death of 
the deceased. Only after this determination has been made 
adversely to the defendant, is it appropriate, indeed con­
stitutional, to consider his punishment. The death penalty, 
once routine, is today exceptional. Evidence in mitigation 
ought constitutionally to relate to the full sweep of the 
defendant’s personality and other relevant circumstances.

Yet how do we try a capital case before a jury? The 
guilt-innocence question is center-stage. Often the crime 
itself is horrible. The courtroom rings with detailed de­
scriptions of the terrible scene. Graphic photographs may 
be in evidence. Pathologists may report in dry but telling 
terms of the damage to vital organs causing death.



10

I f  the defense contends that the accused was not re­
sponsible (again in a physical sense) for the death of the 
deceased his defense will be confined to his alibi or other 
defense. Throughout the trial it is unlikely that the jury 
will have learned anything meaningful about the defen­
dant. True, if the defense admits physical responsibility 
for the death hut claims, for example, that the crime was 
not murder but manslaughter, or that the defendant acted 
in self-defense, or that he was incapable of forming the 
requisite intent, or some other similar defense depending 
upon the defendant’s state of mind, the jury may obtain 
some picture of the defendant as a human being. Absent 
this circumstance it is almost certain that the jury will 
retire knowing almost nothing of the defendant relevant 
to sentencing should they find him guilty. Indeed, if the 
defendant exercises his constitutional privilege not to tes­
tify, the jury may well never hear him speak a word 
during the course of the trial.

True, again, the defendant has a theoretical right to in­
troduce evidence in mitigation. To do so where the defense 
is that he did not commit the crime, would surely undercut 
that defense so severely that it could scarcely he risked. 
No cautionary remarks from the Judge would overcome 
the enormous handicap to the defense. Who would be­
lieve a defendant who simultaneously declared his inno­
cence and then asked a jury to show him mercy if it did 
not believe his assurance of innocence?

Nor is that all. The attorney for the defense is unable 
to make an effective plea for mercy because it too would 
undercut the defense and also because there is no, or at 
any rate, very little evidence in the record for mitigation. 
Even where there is a “ state of mind” defense, e.g., that



11

the defendant reasonably acted in self-defense, it may be 
inconsistent to argue for mercy while simultaneously con­
tending that there were reasonable grounds to believe, for 
example, that the deceased was about to make a deadly 
assault upon the defendant.

But the prosecutor suffers scarcely any limitations. A  
substantial portion of his case has been devoted to a 
minute examination of the crime. The murder itself cries 
out to the jurors. Perhaps he may not be able to intro­
duce evidence solely for the purpose of showing aggrava­
tion but in many cases, perhaps most, such evidence will 
scarcely be needed because the crime itself effectively per­
forms that task for the prosecutor.

Thus the jury retires to consider its verdict. On the 
question of guilt or innocence its focus is necessarily upon 
the crime where it properly belongs, but after reaching 
its verdict of guilt its focus remains upon the crime in 
determining punishment rather than shifting to the de­
fendant and to the circumstances where it then belongs.

I f  these were all of the inequities endured by the defen­
dant they would be heavy enough, but they are not. Even 
in a state such as Illinois which now permits a judge to 
accept or reject a jury’s recommendation of death the 
defendant goes before the judge carrying the burden of 
such a recommendation, made in ignorance of the person­
ality and life history of the defendant. Thus even in Illi­
nois, where there is an opportunity to present evidence in 
mitigation to a judge, the defendant enters the battle 
for his life burdened with a constitutionally impermissible 
handicap. On appeal, the Supreme Court of Illinois has 
power to modify the sentence. (See Buie 615 (b) (4) of



12

the Rules of the Supreme Court of Illinois, which pro­
vide that on appeal the reviewing court may “ reduce the 
punishment imposed by the trial court.” ) The power to 
mitigate, first enacted as Section 121-9 of the Code of 
Criminal Procedure of 1963, has not been exercised by 
the Supreme Court of Illinois in the six years that this 
provision has been part of Illinois law. (See Point II, 
pp. 14-20 below.) We cannot explain with certainty the re­
luctance of the Supreme Court to reduce sentences, but 
it may, at least in part, be because of the initial impetus 
to the death sentence provided by an uninformed jury. 
When the defendant comes before the Governor seeking 
commutation, having exhausted his judicial remedies, he 
again carries with him the burden of a jury recommenda­
tion, now fortified by sentence, and affirmance on appeal. 
(See further Point II, pp. 18-20 below.)

I f  the unitary trial had been forced upon us by special 
exigencies or as a compromise between conflicting values, 
or for some other rational cause, it would be a serious 
enough deprivation of constitutional rights. There are 
no such reasons. In fact, the remedy for this gross evil 
is plain and has already been adopted in a number of 
states. We need only confine the trial initially to the guilt- 
innocence question and ask the jury to rule upon it. If 
the jury finds the defendant guilty, the prosecution and 
defense can then introduce evidence in mitigation. It 
seems clear to us that the sole reason we do not now 
have such a procedure is because of the historical develop­
ment outlined above. A  practice originating prior to the 
14th Amendment ought not to be retained when its evils 
are manifest, the remedy plain, and the practice contrary 
to due process.



13

The only grounds adduced hy the court below for re­
fusing to require splitting of the issues are insubstantial. 
The court below, 398 F. 2d at 150, relied upon its prior 
decision in Pope v. U. S., 372 F. 2d 710, 727-730 (8th Cir. 
1967). In Pope, the court held that a two stage trial was 
not constitutionally required. It should be noted that Pope 
admittedly shot three bank employees in the course of a 
robbery, 372 F. 2d at 712; hence the trial centered essen­
tially about the question of criminal responsibility.

Separation of the issues of guilt-innocence and penalty 
is constitutionally necessary. Where we are concerned 
not with life or death but simply with money judgments 
in personal injury litigation, Civil Rule 21 of the United 
States District Court for the Northern District of Illinois 
provides that there may be separate trials of the liability 
and the damage issues. The damage issues may be tried 
before the same jury or another jury. What we do in 
personal injury litigation to achieve more exact justice, 
surely we must do as a matter of constitutional necessity 
when human life is at stake.



14

II.

Imposition of the death penalty in the absolute dis­
cretion of the jury, uncontrolled by standards or direc­
tion of any kind, violates due process.

The argument here was spelled out most persuasively 
in the separate opinion of Mr. Justice Tobriner in In re 
Anderson, 73 Cal. Eeptr. 21 at 36, 40-59. We add only the 
following.

The Illinois statutes cited above, which are typical of 
those in other states, require explicit agreement of jury 
and court as a condition to imposition of death. Yet no 
standard is provided by which they can determine whether 
the death penalty is proper. As the Illinois Supreme Court 
stated in People v. Bernette, 30 111. 2d 359, 197 N. E. 2d 
463 (1964): “ The jury . . . was free to select or reject as 
it saw fit.” Id. at 370.

111. Rev. Stat. ch. 38, sec. l-7 (g ) (1967) does provide 
that the Court may hear evidence in mitigation before 
deciding if death is proper. Such evidence may concern 
the “moral character, life, family, occupation, and crim­
inal record of the offender.” But nowhere in this statute 
does a standard appear by which the jury or judge can 
assess these very vague “mitigating circumstances.”

Illinois is not alone in allowing the jury unfettered dis­
cretion in deciding whether to impose the death penalty or 
not. All state legislatures which have not abolished the 
death penalty have left complete discretion in the jury.*

* Ala. Code tit. 14, sec. 318 (1940); Ariz. Rev. Stat. sec. 13-453 
(1956); Ark. Stat. Ann. secs. 41-2227, 43-2153 (1947); Cal. Pen. 
Code sec. 190 (1955); Colo. Rev. Stat. ch. 40, art. 2-3 (1963);



15

There are no explicit standards to guide the jury. As 
Kalven and Zeisel state: “ The discretion which the jury 
in the United States is asked to exercise is, it should be 
emphasized, striking: there is neither rule nor standard 
to guide it . . .  ” “ The American Jury and the Death 
Penalty,” 33 U. Chi. L. Rev. 769, 770 (1966).

New York has limited capital punishment to murder of 
a police officer or prison guard, N. Y. Penal Code sec. 1045, 
but even as so limited the jury has complete discretion 
in deciding whether to impose the death penalty. Some 
states have classified murder by “ degrees.” But within the 
highest degree which is punishable by death the jury has 
no statutory or judicial standard by which it can guide 
itself; e.g., Ala. Code tit. 14, secs. 314, 318 (1940); Idaho 
Code secs. 18-4003, 18-4004 (1947); Ind. Stat. Ann. sec. 
10-3401 (1956); Mo. Stat. Ann. sec. 559.030; Pa. Stat. Ann. 
tit. 18, sec. 4701 (Purdon 1963).

Conn. Stat. Ann. sec. 53-10 (1958) ; Dela. Code Ann. tit. 11, sec. 
571 (1953); Pla. Stat. secs. 782.04, 919.23 (1951); Ga. Code Ann. 
sec. 26-1005 (1953); Idaho Code sec. 18-4004 (1947) ; 111. Rev. 
Stat. ch. 38, secs. 9-1, l -7 (e ) ( l )  (1967); Ind. Ann. Stat. secs. 
10-3401, 9-1819 (Burns 1956); Kan. Stat. Ann. sec. 21-403 (1964) ; 
Ky. Rev. Stat. secs. 431.130. 435.010 (1948); La. Rev. Stat. tit. 14, 
sec. 30, tit. 15, sec. 409 (1950); Md. Ann. Stat. Art. 27, sec. 413 
(1957) ; Miss. Code Ann. sec. 2217 (1942) ; Mo. Stat. Ann. sec. 
559.030 (1949); Mont. Rev. Code Ann. sec. 94-2505 (1947); Neb. 
Rev. Stat. sec. 28-401 (1943) ; Nev. Rev. Stat. sec. 200.030 (1963) ; 
N. H. Rev. Stat. Ann. sec. 585:4 (1955); N. J. Stat. Ann. tit. 2A, 
ch. 113, sec. 4 (1953); N. M. Stat. Ann. ch. 40A, sec. 29-2 (1953); 
N. Y. Penal Code sec. 1045; N. C. Gen. Stat. sec. 14-17 (1953); 
Ohio Rev. Code tit. 29, sec. 2901.01 (1964); Okla. Stat. Ann. tit. 
21, sec. 707 (1951) ; Pa. Stat. Ann. tit. 18, sec. 4701 (Purdon 
1963) ; S. C. Code of Laws tit. 16, sec. 16-52 (1962); Tenn. Code 
Ann. see. 39-2405 (1955); Tex. Pen. Code art. 1257 (1961) ; Wash. 
Rev. Code Ann. tit. 9, sec. 9.48.030 (1961) ; Wyo. Stat. Ann. sec. 
6-54; Mass. Laws Ann. ch. 265, sec. 2 (1956); S. D. Code of 1939 
(1960 Supp.) Ch. 13.20, sec. 13.2012 (1960) ; Utah Code Ann. tit. 
76, sec. 76-30-4 (1953); Vt. Stat, Ann. tit. 13, sec. 2303 (1959).



16

It thus appears that the jury is given no statutory or 
judicial guides. What type of instructions must be given 
to the jury to guide them! There are no Illinois cases 
on this point but it seems well established by other courts 
that the trial court need only instruct the jury that it has 
discretion to decide what penalty should be imposed. Fail­
ure to so instruct would be reversible error. Smith v. 
State, 205 Ark. 1074, 172 S. W. 2d 248 (1943); State v. 
Wilson, 151 Iowa 698, 141 N. W. 337 (1913); State v. Chris­
tensen, 166 Kan. 152, 199 P. 2d 475 (1948); Commonwealth 
v. Madaffer, 291 Pa. 270, 139 Atl. 875 (1927); Marshall v. 
State, 33 Tex. 664 (1871); Bradshaw v. Commonwealth, 
174 Ya. 391, 4 S. E. 2d 752 (1939); State v. Chaney, 117 
W. Va. 605, 186 S. E. 607 (1936). But telling the jury of 
its discretion is to do no more than repeat a statute which 
is itself standardless. It has in fact been held that merely 
reading or quoting the statute which grants discretion is 
sufficient. Hernandez v. State, 43 Ariz. 424, 32 P. 2d 18 
(1934); Howell v. State, 102 Ohio 411,131 N. E. 706 (1921).

Assuming that the jury finds the defendant guilty and 
imposes the death penalty, and assuming that the trial 
judge concurs, the Supreme Court of Illinois may, as we 
have noted, reduce the penalty under Rule 615. But this 
rule too provides no guidelines by which to judge the lower 
court’s decision on the penalty.

The Illinois Supreme Court has taken a very limited 
view of its power under this provision. Prior to Rule 615 
and its statutory predecessor, in People v. Smith, 14 111. 2d 
95, 97, 150 N. E. 2d 815 (1958), the Court said that a 
reviewing court should not upset a sentence unless it clearly 
appears that the penalty constitutes a great departure



17

from the spirit of the law or that the penalty is mani­
festly in excess of the prescription of Sec. 2, Art. II of 
the Illinois Constitution which requires penalties to be pro­
portioned to the nature of the offense.*

Subsequent to adoption of the statute allowing sentence 
reduction, the Court in People v. Taylor, 33 111. 2d 417, 
211 N. E. 2d 673 (1965), admonished itself to proceed 
with caution and circumspection in reducing sentences. The 
trial judge, it observed, has superior opportunity to make 
a sound determination concerning the punishment to be 
imposed. In People v. Bonner, 37 111. 2d 553, 229 N. E. 2d 
527 (1967), the Court stated that the imposition of sentence 
was a matter of judicial discretion, and in absence of 
manifest abuse of that discretion it will not be altered by 
reviewing court. Although these cases were non-capital 
cases, they demonstrate the reluctance of a reviewing court 
in Illinois to reduce the penalty imposed by the trial court 
even though reviewing courts are given that power by 
statute. A  case in which the Court said it would not reduce 
the death penalty is People v. Meyers, 35 111. 2d 311, 220 
N. E. 2d 297 (1966) cert. den. 87 S. Ct. 752, 385 U. S. 1019, 
17 L. Ed. 2d 557. The Court characterized the crime as 
“brutal” and “ atrocious” .

* People v. Dukes, 12 111. 2d 334, 146 N. E. 2d 14 (1957) was a 
capital case. The Court said that where the charge is murder, a 
jury has wide discretion in fixing the punishment. It added that 
when the jury in the exercise of that discretion inflicts the death 
penalty, it could not affirm the judgment even though proof of 
guilt is clear, if prejudicial error occurred in the trial. This seems 
to give the defendant some protection; but it is protection only 
from the possibility that the jury may have decided to impose the 
death penalty because of the prejudicial error. If there were no 
prejudicial error, the court would defer to the “wide discretion” 
of the jury and would not change the penalty.



18

Every murder is “brutal and atrocious.”  Our concern 
should be not with the crime, but with the criminal. Lack­
ing standards to turn to, the Court looked to the deed, 
rather than to the doer. The case demonstrates the evil 
of a path unilluminated by statutory guides.

The absence of standards continues to affect the defen­
dant even when he seeks executive clemency. There too 
clemency may be granted or withheld without statutory or 
constitutional guide.

Article 5, see. 13 of the Constitution of Illinois provides:

“ The governor shall have power to grant reprieves, 
commutations and pardons, after conviction, for all 
offenses, subject to such regulations as may be pro­
vided by law relative to the manner of applying there­
for.”

Several Illinois cases have considered the Governor’s 
power of commutation. In People v. Jenkins, 325 111. 372, 
156 N. E. 290 (1927), the court held, “ [t]he only restric­
tion which the Legislature may impose on the Governor’s 
power refers to the regulations relative to the manner of 
applying for reprieves, commutations, and pardons, and 
the act on that subject does not purport to and does not, 
restrict the Governor’s authority except to that extent.” 
325 111. at 375, 156 N. E. at 291.

The exclusive discretion of the Governor in matters of 
commutation, without judicial review or legislative control, 
is practically a universal rule. With only one exception,*

* In McGee v. Arizona State Board of Pardons and Paroles, 92 
Ariz. 317, 376 P. 2d 779 (1962), the Arizona Supreme Court held 
that a condemned defendant had a right to, and compelled the 
board to grant, a full due process hearing despite the absence of



19

those courts which have been presented with the issue have 
held that the actions of the clemency authority are not 
within the purview of due process, and are not subject to 
challenge in the courts. Executive Clemency in Capital 
Cases, 39 N. Y. U. Law R. 136, 178 (1964). The Supreme 
Court of Oregon, in Eacret v. Holmes, 215 Ore. 121, 333 
P. 2d 741, 744 (1958), held:

“ Where the constitution thus confers unlimited power 
on the Governor to grant reprieves, commutations and 
pardons, his discretion cannot be controlled by judicial 
decision. The courts have no authority to inquire into 
the reasons or motives which actuate the Governor 
in exercising the power, nor can they decline to give 
effect to a pardon for an abuse of power.”

As authorities for this general proposition, the Oregon 
court cited: In re Opinion of Justices, 120 Mass. 600 
(1876); State v. Harrison, 122 S. C. 523, 115 S. E. 746
(1923) ; Martin v. State, 21 Tex. App. 1, 17 S. W. 430 
(1886); People ex rel. Page v. Brophy, 248 App. Div. 309, 
289 N. Y. S. 362 (1936); Ex parte Grossman, 267 U. S. 87
(1924) ; Jamison v. Flanner, 116 Kan. 624, 228 P. 82 (1924); 
Montgomery v. Cleveland, 134 Miss. 132, 98 So. I l l  (1923); 
16 C. J. S. Const. Law’ sec. 157, p. 830.

Although the author of Executive Clemency in Capital 
Cases, 39 N. Y. U. Law Rev. 136, 159-177 (1964), found

any constitutional, statutory, or regulatory provision for a hear­
ing. Under the court’s construction, the defendant would have to 
be provided with notice, an opportunity to be heard, an oppor­
tunity to present witnesses, and an opportunity to present evidence 
mitigating circumstances. The court held due process required 
this result, but nowhere specified whether the federal Constitution 
or the state constitution was the source of this right.



20

that clemency authorities sometimes referred to such 
“ standards”  as the nature of the crime, fairness of the 
trial, mitigating circumstances, doubt as to guilt, mental 
and physical condition of defendant, recommendations of 
prosecutor and trial judge, and political pressure and pub­
licity, it is plain that these “ standards” still cannot be 
reviewed by a court or be imposed by the legislature.

The totally unfettered discretion given to the Governor, 
although tending to eliminate some of the harshness of 
capital punishment, has thus resulted in the creation of 
a system with no standards.

Amici do not argue that the Governor should he limited 
in exercising his power of communication. Since he is the 
last resort open to one sentenced to death, he should 
have the widest possible discretion in making such a deci­
sion. We call attention to this point to emphasize that a 
man may go to his death and yet at no place in the elab­
orate judicial and executive machinery is there a legislative 
or case law standard set for judging who shall live and who 
shall die. Such situation is repugnant to due process.



21

CONCLUSION

What this court said in Witherspoon v. Illinois respect­
ing a “hanging jury” applies with equal force to the issues 
of dividing the guilt-innocence and penalty determinations, 
and the issue of lack of legislative and case law standards:

“ The State . . . has stacked the deck against the 
petitioner. To execute this death sentence would de­
prive him of his life without due process of law.” 391 
IT. S. at 510, 521.

Respectfully submitted,

E lmer Gertz

120 South La Salle Street 
Suite 1805
Chicago, Illinois 60603

W illard J. L assers

11 South La Salle Street 
Suite 3400
Chicago, Illinois 60603 

Attorneys for Amici Curiae

January 1969



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