Jackson v. Georgia Brief for Petitioner

    IN THE

Supreme Court of the United States

No. 69-5030

LUCIOUS JACKSON, JR., Petitioner,

v.

GEORGIA, Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF GEORGIA

BRIEF FOR PETITIONER

J ack  G reenberg  
J ames M .N a b r it , III 
J ack  H immelstein  
E lizabeth  B. Du Bois 
J effr y  A .M intz  
E laine  R. J ones

10 Columbus Circle, Suite 2030 
New York, New York 10019

Bobby L .H ill

208 East 34th Street 
Savannah, Georgia 31401

M ichael  M eltsner

Columbia University Law School 
435 West 116th Street 
New York, New York 10027

A nthony  G .A m sterdam

Stanford University Law School 
Stanford, California 94305

A ttorneys for Petitioner
Washington. D. C. • THIEL PRESS ■ 202 ■ 393 0625



TABLE OF CONTENTS
Page

OPINION BELOW  ............................................................ 1
JURISDICTION................................................................................ 1
CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED . .......................................................... 2
QUESTION PRESENTED ............................................................ 2
STATEMENT OF THE CASE ....................................................... 2
HOW THE CONSTITUTIONAL QUESTION WAS 

PRESENTED AND DECIDED BELOW ...................................  10
SUMMARY OF ARGUMENT ....................................................... 11
ARGUMENT:

I. The Death Penalty for Rape Violates 
Contemporary Standards of Decency in
Punishment ..........................................................................  11

II. The Death Penalty for Rape Is
Unconstitutionally Excessive.................................................. 17

CONCLUSION ...............................................................................  21
Appendix A: Statutory Provisions Involved ..............................  la
Appendix B: History of Punishment for Rape in Georgia . . . . .  lb

TABLE OF AUTHORITIES
Cases:
Brown v. Board of Education, 347 U.S. 483 (1954)....................  14
Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 )...................................  19
McLaughlin v. Florida, 379 U.S. 184 (1964) ..............................  20
O’Neil v. Vermont, 144 U.S. 323 (1892) ................................... 17
Robinson v. California, 370 U.S. 660 (1962) .............................. 17
State v. Jackson, 225 Ga. 790, 171 S.E.2d 501 (1969)...............  1
Trop v. Dulles, 356 U.S. 86 (1958) ..........................................  16, 17
Weems v. United States, 217 U.S. 349 (1910).............................. 18

(i)



(it)

Constitutional and 
Statutory Provisions:
Eighth Amendment, United States Constitution. 2, 10, 11, 17, 18, 19 
Fourteenth Amendment, United States Constitution . . . .  2, 10, 16
28 U.S.C. § 1257(3).........................................................................  1
Del. Code Ann. (1953), tit. 11, § 7 8 1 ............ ...............................  15
51 Del. Laws, 1957, ch. 347, p. 742 (1958) .............................. 15

D.C. Code (1967), §22-2801 ...........................................................  15
District of Columbia Court Reform and Criminal 

Procedure Act of 1970, §204, 84 Stat. 473 (1970) ...............  15
Ga. Code Ann. §26-1301 ................................................................  2
Ga. Code Ann. §26-1302 ................................................................  2
Ga. Code Ann. §27-2302 ................................................................  2
Ga. Code Ann. §27-2512 ................................................................  2
Nev. Rev. Stat. (1967), §200.363 .................................................  14
W. Va. Acts, 1965, ch. 40, p. 207 (1965) ................................... 15
W. Va. Code, §5930 (1 9 6 1 ) ...........................................................  15
MAGNA CARTA, ch. 20-22 (1215) printed in ADAMS &

STEPHENS, SELECT DOCUMENTS OF ENGLISH 
CONSTITUTIONAL HISTORY (1926) 42, 45 ......................... 18

Other Authorities:
Brief for Petitioner, in Aikens v. California, O.T.

1971, No. 68-5027  11,13,16
Granucci, ‘TVor Cruel and Unusual Punishments Inflicted: ”

The Original Meaning, 57 CALIF. L. REV. 839
(1969) .........................................................................................  18

Kahn, The Death Penalty in South Africa, 18 
TYDSKRIF VIR HEDENDAAGSE ROMEINS- 
HOLLANDSE REG 108 (1970).................................................  13

MURRAY, STATES’ LAWS ON RACE and COLOR
(1950) ......................................................................................... 14

Packer, Making the Punishment Fit the Crime, 77
HARV. L. REV. 1071 (1964) ............................................  18, 19



Patrick, The Status o f Capital Punishment: A World 
Perspective, 56 J. CRIM. L., CRIM. & POL. SCI.
397 (1965)....................................................................................  13

The Manchester Guardian Weekly, August 14, 1971 ....................  20
UNITED NATIONS, DEPARTMENT OF ECONOMIC 

AND SOCIAL AFFAIRS, CAPITAL PUNISHMENT 
(ST/SOA/SD/9-10) (1968) [cited as UNITED 
NATIONS] .............................................................................12, 13

UNITED STATES DEPARTMENT OF JUSTICE,
BUREAU OF PRISONS, NATIONAL PRISONER 
STATISTICS, Bulletin No. 45, Capital Punishment 
1930-1968 (August 1969) [cited as NPS (1968)] . . .  14, 15, 16-17



IN THE

Supreme Court of the United States

No. 69-5030

LUCIOUS JACKSON, JR., Petitioner,

GEORGIA, Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF GEORGIA

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Supreme Court of Georgia affirming 
petitioner’s convictioiKbf rape ana sentence of death by 
electrocution is repotted af!225 Ga. 790, 171 S.E.2d 501,
and appears in the Appendix [hereafter cited as A. ___ ] at
A. 112-116.

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C. §1257 
(3), the petitioner having asserted below and asserting here 
a deprivation of rights secured by the Constitution of the 
United States.



2

The judgment of the Supreme Court of Georgia was 
entered on December 4, 1969. (A. 116) A petition for 
certiorari was filed on March 4, 1970, and was granted 
(limited to one question) on June 28, 1971 (A. 117).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Eighth Amendment to the Consti­
tution of the United States, which provides:

“Excessive bail shall not be required, nor exces­
sive fines imposed, nor cruel and unusual punish­
ments inflicted.”

It involves the Due Process Clause of the Fourteenth 
Amendment.

It further involves Ga. Code Ann. §§26-1301, 26-1302, 
27-2302, 27-2512, which are set forth in Appendix A to
this brief [hereafter cited as App. A, pp. ___ ] at App.
A. pp. la-2a infra.

QUESTION PRESENTED

Does the imposition and carrying out of the death penalty 
in this case constitute cruel and unusual punishment in vio­
lation of the Eighth and Fourteenth Amendments?

STATEMENT OF THE CASE

Following a one-day trial, a jury of the Superior Court 
of Chatham County, Georgia, convicted Petitioner Lucious 
Jackson, Jr., a twenty-one year-old Negro,1 of the rape of 
a white woman, and sentenced him to die in the elecfrfc 

'cEalrT TKe~rap£ occurred on October 3, 1968; the trial on 
December 10, 1968. Proceedings began at about 10:00 a.m. 
with the overruling of various defense motions, including a

‘ (A. 13-14.)



3

motion for a continuance made on the grounds that peti­
tioner’s court-appointed counsel needed “additional time 
to prepare for a case of this magnitude” (A. 16 [Tr. 3]), 
and that “ further [psychiatric] examination and observation” 
were required (A. 17 [Tr. 5 ]) because petitioner’s one-hour 
interview with a court-appointed psychiatrist2 3 4 was “insufTi- 
cient m m  mere fU1 T1'1“TT1 la 1']   . M4 no substance” (A. 17

determine petitioner’s mental competence to stand trial (A. 
21-22 [Tr. 16-18]); it heard the testimony of the court- 
appointed psychiatrist (A. 22-31 [Tr. 18-32] )4 and pro-

2The length of petitioner’s psychiatric examination had not been 
established at the time of the motion, which was based upon the fact 
that the court-appointed psychiatrist had examined petitioner on ' 
December 2 and made his report to the court on December 3. (A.
16 [Tr. 4].) Later, the psychiatrist testified that he had examined 
petitioner for “ about an hour” (A. 23, 27 [Tr. 20, 25]), a period 
which he believed sufficient to determine petitioner’s competency in 
the circumstances of this case (A. 28-29 [Tr. 27-28]).

3Prior to trial, petitioner’s appointed counsel had filed a motion 
for a sixty-day continuance and for allowance of funds to have the 
indigent petitioner examined by a defense psychiatrist. (A. 5-6.) On 
November 26, the court denied any continuance (A. 7), and appointed 
a named psychiatrist to examine petitioner and to submit a report 
“for the use of the Court, with a copy thereof’ to the prosecutor and 
defense counsel. (A. 9) The report was submitted (A. 16-17 [Tr. 4 
5]) but was not introduced into the record.

4The doctor testified that he had examined petitioner for “ about 
an hour” on December 2, 1968 (A. 23 [Tr. 19-20]), and did not see 
him again until the day of trial (A. 27 [Tr. 26]). He agreed that his 
opinions were based entirely on what he found in that hour interview 
(A. 27 [Tr. 25]). Although he administered no written tests, he 
found the petitioner to be of “average education or average intelligence.” 
(A. 24 [Tr. 20]). He determined that petitioner was not an imbecile 
or schizophrenic, but he did find that he had a sociopathic person­
ality. He defined this as not “a neurotic or psychotic type of illness,’’ 
but as traits which are the product of environmental influences (A.
25 [Tr. 22]), and which bring an individual “in conflict with society 
and other people” (A. 24 [Tr. 21]). No evidence of a need for fur­
ther observation was found (A. 29 [Tr. 28]), and the doctor concluded 
that petitioner had the ability to understand his situation, and was 
thus competent to stand trial (A. 30-31 [Tr. 30-31]).



4

nounced petitioner competent (A. 13.) Another jury was 
immediately selected to try the issues of guilt and punish­
ment (A. 33-41 [Tr. 37-48]); it was death-qualified by the 
exclusion of eleven veniremen who were conscientiously 
ojposed 16”capital punlsfimeh'ran3^aI^TfilTTh'ey“w(5ni^ 
never vote to impose tKe~13eaTfrpenarty^
lessortfiFcircumstances rArTj'-BVrTE'^TlPl);5..irTie~ard
evidence (A. 42-83 [Tr. 51-119]), and returned its death 
verdict shortly after 6:00 p.m. (A. 15-16.)

The prosecutrix was Mrs. Mary Rose, a physician’s wife. 
(A. 42-43 [Tr. 51].) She testified that on October 3, 1968, 
her husband left the house for work at 7:00 a.m. She went 
back to sleep and was awakened at about 7:45 by her four- 
month-old baby crying for its bottle. She arose, diapered 
and fed the baby, and let it play while she had toast and 
coffee. Then, at about 8:30 a.m., she took the baby into 
the nursery and bathed it. (A. 43-44 [Tr. 51-53].)

While bathing the baby, she heard a noise from the dining- 
or living-room area of the house. Supporting the baby in 
the tub with one hand, she stepped out into the hall and 
looked in the direction of the noise but saw nothing. She 
supposed that it was one of her cats, so she returned, fin­
ished bathing the baby, and began to dress it in its crib. 
She then heard a louder and more unusual noise from the 
same area. Since the baby was safe in its crib, she went to 
investigate. Again she saw nothing and returned to the nur­
sery. (A. 44-47 [Tr. 53-57].)

Turning for some reason toward the baby’s closet, she 
suddenly saw a “young colored male” (A. 47 [Tr. 58])— 
whom she identified at trial as the petitioner (A. 59 [Tr. 
76])— standing in the closet. He held a half of a pair of 
scissors in his hand, with the handle wrapped in a cloth.

Petitioner unsuccessfully objected to the excuse of these venire­
men for cause. (A. 34, 35 [Tr. 37, 39].) The Georgia Supreme Court 
subsequently held that their exclusion was proper under Witherspoon 
v. Illinois, 391 U.S. 510 (1968). (A. 114.)



5

(A. 47 [Tr. 58 ],)6 Mrs. Rose screamed, but before she 
could do anything, petitioner crossed the room, took her 
by one arm, and placed the half-scissors so that they were 
“pressing against the right side of [her] . . . neck, right at 
[her] . . . carotid artery.” (A. 48 [Tr. 58].) She “was 
screaming and trying to get away, and . . . pushing him with 
[her] . . . free arm,” but he told her that if she did not “be 
quiet he was going to have to hurt [her] . . ., and the scis­
sors were really pressing into [her] . . . neck.” She did 
stop screaming, and he told her “ that all he wanted was 
money, if [she] . . . just would give him money that he 
would go away and he would not hurt [her] . . . .” (A.
48 [Tr. 59].)

She was anxious to get him out of the baby’s room as 
quickly as she could. Leaving the baby in the crib, they 
went first into the living-room, then the dining-room, then 
back up the hall and into a bathroom, looking for money. 
He asked her where the money was and, throughout this 
period, he continued to hold the scissors against her neck 
and to push her along. (A. 48-49 [Tr. 59-61 ].) They found 
a pocketbook in the bathroom, but it had no money in it, 
so he pushed her on into the bedroom, still with the scissors 
against her neck. Seeing a five-dollar bill and change on a 
dresser, he put the scissors down to take the money. (A.
49 [Tr. 61].)

She then grabbed the scissors. He had been holding her 
left hand behind her while pushing her, and was still behind 
her, holding that hand. She took the scissors in her right 
hand and “ tried very hard to stab him anywhere,” but could 
not reach him. While she was trying to stab him, they fell 
together onto the nearby bed. She was on top with the 
scissors and struggled for awhile trying to stab him. When 
she failed at this because he was holding her arm, she threw

6Mrs. Rose identified the half-scissors as her own, which petitioner 
apparently took from some area of the house and disassembled by 
removing the nut or screw that held the halves together. (A. 56 [Tr. 
72].)



6

the scissors out of his reach onto the floor. They both 
struggled and fell near the scissors, and she recovered them 
again. (A. 49-50 [Tr. 61-64].) “But he knocked [her] . . . 
backwards on the floor, and [she] . . . was on [her] . . . 
back at that point. And he was on top trying to get the 
scissors from [her] . . . hand.” (A. 51 [Tr. 64].)

They continued to struggle, he trying to take the scissors 
from her, she trying “to get the scissors into him anywhere 
[she] . . . possibly could.” (A. 51 [Tr. 64].) She kept 
her grip on the scissors, but he got her arm behind her and 
began to beat her hand that was holding the scissors “very 
hard against the toot of the bed. She had had a cortisone 
injection “ for a tendon” in that wrist about a week before; 
it was still sore from the injection; and she couldn’t hold 
the scissors any longer, so she tossed them away again. 
They both struggled after the scissors, and this time he got 
them in his left hand. (A. 51-53 [Tr. 64-66].)

She “was on the floor, and he was on top of [her] . . . .”
He had her right arm pinned down with his left, and again 
he “was holding the scissors against [the] . . . side of [her]
. . . neck.” He had her legs pinned to the floor with his 
knees, and was holding her left hand in his right. He told 
her if she “moved anymore he was going to hurt [her] . . . 
or kill [her] . . . Then he released her left hand, pulled 
her gown open down the front, unzipped his pants, and had 
sexual intercourse with her, effecting penetration. (A. 53- 
54 [Tr. 66-69].) She was trying to push him away with her 
left hand, but “ the more [she] . . . pushed, the deeper those 
scissors went into [her] . . . neck, just right . . . against the 
carotid artery.” He “grabbed [her] . . . hand [that] . . . 
was trying to push him away . . ,[a]nd he kept telling 
[her] . . .  if [she] . . . continued to struggle that he would
have to hurt [her] . . .  or kill [her] . . . and just to be still
. . . [a]nd . . . the scissors just were pressing very deeply
into [her] . . . neck.” (A. 54 [Tr. 68].)

While he was on top of her, the maid arrived for work 
and knocked on the back door. Mrs. Rose “had been telling



7

him that the maid was coming, hoping that this would get 
him to leave.” She heard the maid knocking and told him, 
but he did not believe her and did not stop. The maid then 
came around to the front door; she apparently “could see 
the baby screaming and the side rail down on the crib 
through [the] . . . window” of the nursery; and the maid 
began to shout Mrs. Rose’s name at the front door. (A. 54- 
55 [Tr. 69].)

Petitioner heard the maid, got to his knees, and then 
pulled Mrs. Rose to her feet by the arm, still holding the 
scissors “ pressing into [her] . . . neck.” They stood by the 
bedroom window, with its drawn shade, and he told her to 
go and let the maid in. She did not want to do so because 
“ the baby was still there” and he “still had the scissors,” 
so she reached over and flipped the shade up quickly. This 
startled him; he saw that the window was up and the screen 
was unlocked; and he went out the window. (A. 55-56 [Tr. 
71].)

Mrs. Rose then locked the screen behind him, let the 
maid in, told the maid that she had been raped, and asked 
her to get the baby and bring it out of the house. With the 
maid carrying the baby, they went to the next-door neigh­
bor’s home, where Mrs. Rose told the neighbor that she had 
been raped and to phone the police. (A. 57 [Tr. 72-73].) 
This was about 9:00 a.m. (A. 68-73 [Tr, 78-79, 82].) The 
maid described Mrs. Rose at this time as “very upset and 
hysterical” (A. 62 [Tr. 81]), and the neighbor testified that 
she was “real upset and terrified” (A. 63 [Tr. 82]):

. . And her hair was all messed up. She had on 
her gown and it was tom, and she had blood all on 
the bottom of her gown. And she kept saying that 
she’d been raped. She said, Tve been raped.’ And 
she said, ‘He tried to kill me,’ said, ‘He had a knife— 
or scissors to my throat,’ said, ‘I just knew he would 
have killed me,’ said, ‘I was worried about the baby’.” 
(A. 63-64 [Tr. 82].)

An investigating detective, who soon arrived, also found Mrs. 
Rose “very upset,” with “ tears in her eyes,” “very emo­
tional.” (A. 65 [Tr. 84].)



8

Despite Mrs. Rose’s ordeal—and without diminishing that 
ordeal in the slightest—it is the fact that she emerged with 
no physical injuries other than some bruises and abrasions. 
Mention has been made that her neighbor saw blood on her 
gown (A. 63-64 [Tr. 82-83]); and the investigating detective 
also found blood on the bedroom floor (A. 66 [Tr. 85]). 
But the record does not indicate that this was Mrs. Rose’s 
blood rather than petitioner’s. To the contrary, an obstetri­
cian and gynecologist who examined Mrs. Rose between 
10.30 and 11:00 a.m. the same morning described the 
extent of her injuries as follows:

On examination, the soft tissue—soft tissues in 
the anterior of the throat were very tender on pal­
pation. There was an abrasion over the right clavicle 
or the right collar bone, and there were superficial 
lacerations of the right forearm and the right—palm 
of the right hand. There was also an abrasion on 
the anterior surface of the right tibia or the right 
lower leg. On pelvic examination, there was a small 
amount of blood in the vagina and the coccyx or 
tail bone so to speak was very tender to palpation ” 
(A. 69-70 [Tr. 90-91].)

Apparently, Mrs. Rose was not hospitalized: she was back 
at her house by about 2:00 p.m that afternoon, when peti­
tioner was arrested in the area. (A. 66-67 [Tr. 86-87].) 
Nor is this a case of rape in which any serious or long-term 
psychological harm to the unfortunate victim appears.

Petitioner had apparently entered the Rose house by re­
moving a perforated cardboard panel which the Roses kept 
inserted in the bottom of a jalousie door to permit their 
cats to go in and out freely. (A. 57-58, 83 [Tr. 73-75, 118- 
119].) After he left the house following his assault on Mrs. 
Rose, he fled on foot and hid in a neighbor’s garage. Between 
1:30 and 2:00 p.m that afternoon, he was found in the 
garage by Dr. Rose and the neighbor; the neighbor trained 
a gun on petitioner; petitioner fled with the neighbor shout­
ing in pursuit; he was stopped by other persons in the area 
and then arrested by police. (A. 71-72 [Tr. 93-95].)



9

This is all that the evidence presented at the trial reveals 
about petitioner and his offense. However, the sentencing 
jury almost surely knew that, at the time of his assault up­
on Mrs. Rose, petitioner was a convict who had escaped 
from a Negro prisoners* 1 work 'gang j n  the ' aTeaTwnere1 lie 
had been "serving a three-year sentence for auto theft; and 
thaTduring the three days' when he remained at large, he

in the vicinity.
These’"matfeH^wSrTe'xtensively rep or ted in newspaper arti­
cles (A. 86-98 [Tr. 122-130]) introduced by petitioner7 
in support of his unsuccessful motion for a change of 
venue (A. 17, 18-21, 41-42 [Tr. 5, 11-16, 49-50]); and they 
were known to at least one venireman, whom the court 
nonetheless refused to excuse upon petitioner’s challenge 
for cause. (A. 37-40 [Tr. 43-47].) Because these articles 
portray a somewhat inaccurate version of the other offenses 
in question, we recite below the evidence concerning them 
that was presented at petitioner’s preliminary hearing on the 
several charges.8 The articles also reveal that the local com­

7(See A. 18-19 [Tr. 11-13].)
8On October 28, 1968, petitioner was given a preliminary hearing 

on the present charge of rape and on the several other charges. The 
transcript of the preliminary hearing on all charges was a part of this 
record in the trial court, but does not appear to have been before the 
Georgia Supreme Court and was not certified to this Court. It is cited 
hereafter in this footnote as P. T r .___.

Petitioner apparently left the work gang on September 30, 1968. 
He was thereafter charged with the following offenses, all in the area 
of his escape:

(1) Burglary’, October 30, 1968. Late in the afternoon of Octo­
ber 30, an intruder broke a screen and entered the home of a Mr. 
McGregor. Subsequently, a pair of black boots were found under a 
bed in the McGregor house and were identified as convict’s boots 
issued to petitioner before his escape. A pair of shoes and a pocket 
knife were taken from the house. Petitioner was wearing the shoes 
when he was arrested on August 3; and the pocket knife was found 
at the scene of a subsequent burglary with which he was charged (see 
paragraph (3) infra). No one was home in the McGregor house at the 
time of the entry. (P. Tr. 39-47, 58, 62-64.)

(2) Auto theft, October 1 or October 2. Late at night on Octo­
ber 1 or early in the morning on October 2, a station wagon belong­



10

munity was upset and angry because police officials had 
failed to give any warning that an escaped convict was at 
large (A. 86-87, 93 [Tr. 122, 127]; and that petitioner 
was taken quickly from the area by police following his 
arrest, because of an angry crowd of area residents at the 
scene (A. 94, 95 [Tr. 128, 129] ).9

HOW THE CONSTITUTIONAL QUESTION WAS 
PRESENTED AND DECIDED BELOW

Paragraph 18 of Petitioner’s Amended Motion for New 
Trial, filed by leave of court, contended that the death sen­
tence which had been imposed upon him was a cruel and 
unusual punishment forbidden by the Eighth and Fourteenth 
Amendments to the Constitution of the United States. (R. 
29, 31.) The motion was overruled. (R. 36.) Paragraph 6 
of petitioner’s Enumeration of Errors in the Georgia Supreme 3 4 * * *

ing to a Mr. Summerall was taken from his carport. The keys had 
been left in the car. Subsequently, the car was found in a church 
parking lot in the vicinity. The car keys, on a clip with the keys to 
the Summerall house, were found in Mrs. Rose’s home following the 
assault on her. (P. Tr. 47-53.)

(3) Burglary and assault and battery, October 2. At about 3:30 
a.m. on October 2, an intruder entered the home of a Mrs. Coursey 
by cutting a window screen. One of Mrs. Coursey’s teenage daughters 
awakened to see a figure standing over the bed in her room. She 
thought that it was her mother, reached up and touched the person 
on the neck, then saw that it was a colored man and began to scream. 
He slapped her on the arm and told her to ‘Sh--,” but she continued 
to scream and may have kicked him. He then fled from the house. 
Later, the knife taken from the McGregor house (paragraph (1) supra) 
was found in the Coursey house. (P. Tr. 55-63.)

(4) The rape of Mrs. Rose on October 3.
9The article at A. 94 [Tr. 128] also reports that petitioner was

struck several times, at least once by a gun butt, following his appre­
hension by area residents and prior to his removal by police.



Court made the same contention.10 The Georgia Supreme 
Court rejected it upon the merits. (A. 114.)

SUMMARY OF ARGUMENT

I. Even more than for the crime of murder, the use of 
the death penalty for the crime of rape is overwhelmingly 
repudiated by contemporary standards of decency. The 
retention on the statute books and the sporadic infliction 
of the punishment of death for rape in the Southern States 
are accounted for exclusively by racial considerations, and 
do not demonstrate public acceptance of the fitness of the 
penalty for this offense. Under any construction of the 
Eighth Amendment which would not render it obsolete 
and futile, capital punishment for rape is a cruel and unusual 
punishment.

II. The Eighth Amendment forbids punishments which 
are grossly excessive and disproportioned to the offense. 
While rape is a serious offense, it is almost nowhere viewed 
today as warranting the punishment of death except where 
race is added to the balance. In the nearly universal estima­
tion of civilized nations capital punishment for rape is exces­
sive. It therefore violates the Eighth Amendment.

ARGUMENT
I. THE DEATH PENALTY FOR RAPE VIOLATES 

CONTEMPORARY STANDARDS OF DECENCY IN 
PUNISHMENT.

The Brief for Petitioner in Aikens v. California11 sets forth 
the reasons why we believe that the death penalty is a cruel 
and unusual punishment for any civilian crime, as that pun­

10P. 1 of the Enumeration of Errors, filed August 22, 1969. [This 
document is contained in, but is not paginated as a part of, the original 
record filed in this Court.]

n O.T. 1971, No. 68-5027.



12

ishment is administered in the United States today. The 
essence of the argument is that all objective indicators prop­
erly cognizable by this Court demonstrate a clear and over­
whelming repudiation of the penalty of death by this 
Nation and the world. The penalty survives on the statute 
books only to be—and because it is—rarely and arbitrarily 
applied to pariahs whose numbers are so few and persons 
so unpopular that the public and the legislatures can easily 
stomach the infliction upon them of harsh penalties that 
would never be tolerated if generally enforced. This sort 
of rare, terroristic infliction is precisely the evil against 
which the Eighth Amendment must guard, if that Amend­
ment is to serve a function among the guarantees of rights 
in a democratic society.

It would serve no purpose to repeat the details of that 
argument here. Several considerations which underline its 
application to the crime of rape, however, deserve emphasis:

(1) The nations of the world, with extraordinary 
unanimity, no longer punish rape with death. A United 
Nations survey of more than sixty countries, which included 
mos t̂ ofTTiF'major civilized nations, found that by 1965 all 
InU three countries outside the United States had ceased to 
employ capTCai T8r this c rim jl2’ The three
countries retaining the death penalty for rape were China 
(Taiwanj^Malawi, and the Republic of South Africa.12 13 A 
Sroacfe? but less reliable study by Patrick in 1963 covered 
128 countries and found nineteen outside of the United

12UNITED NATIONS, DEPARTMENT OF ECONOMIC AND SO­
CIAL AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/SD/9-10) (1968) 
[hereafter cited as UNITED NATIONS], 40, 86. We put aside three 
countries that punish rape capitally only if it is followed by the victim’s 
death. Ibid.

13The 1960 United Nations survey (UNITED NATIONS 40) lists 
four countries as retaining the death penalty for rape: China, Northern 
Rhodesia, Nyasaland, and the Republic of South Africa, Nyasaland 
became Malawi upon its independence in 1964. Northern Rhodesia 
became Zambia, and abolished the death penalty for rape by 1965. 
UNITED NATIONS 86.



13

States that authorized capital punishment for rape.14 This 
figure should be reduced by at least three on account of 
errors15 and one known subsequent abolition.16 17 All of the 
countries correctly listed by Patrick are in Asia or Africa; 
and, in any event, Patrick’s data concerning their actual use 
of the death penalty suggests that almost no one in the 
world is actually executed for this cnme outside of The
Uartetl StgTSTaHd SoulKTfnca:'1;'  —

(2) In the United (States, the death penalty for rape is 
authorized by law in sixteen States and by the federal gov­
ernment.18 Since 1930, 445 men have been put to death

14Patrick, The Status o f Capital Punishment: A World Perspective, 
56 J. CRIM. L., CRIM. & Pol. Sci., 397, 398-404 (1965). The coun­
tries are: Afghanistan, Austrialia, Basutoland, Bechuanaland, People’s 
Republic of China, Gabon, Jordan, Republic of Korea, Malagasy Re­
public, People’s Republic of Mongolia, Niger, Northern Rhodesia, My- 
asaland [now Malawi], Saudi Arabia, Senegal, Sierra Leone, Republic 
of South Africa, Turkey, and the U.S.S.R.

15Australia and the U.S.S.R., which Patrick lists, do not authorize 
the death penalty for rape according to the United Nations survey. 
Turkey, which Patrick also lists, was found by the United Nations to 
punish rape with death only if the rape victim dies. On the other 
hand, Patrick does not list China (Taiwan), as the United Nations sur­
vey does. These errors decrease Patrick’s by a total of two.

16Northern Rhodesia (now Malawi). See note 13 supra.
17Patrick provides figures for the average yearly number of execu­

tions (1958-1962) for all crimes for each country except the People’s 
Republics of China and Mongolia, and Sierra Leone. None of the 
countries for which figures are given executed more than two men a 
year for all crimes, except Basutoland (3), Korea (68), Northern Rho­
desia (6.5)—which has now abolished the death penalty for rape (see 
note 13, supra)-and the Republic of South Africa (100). It is known 
that fewer than 10 per cent of South Africa’s 100 executions yearly 
are for rape, Kahn, The Death Penalty in South Africa, 18 TYDSKRIF 
VIR HENDENDAAGSE ROMEINS-HOLLANDSE REG 108, 116-117 
(1970).

18Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mary­
land, Mississippi, Missouri, Nevada (see note 20 infra). North Carolina, 
Oklahoma, South Carolina, Tennessee, Texas and Virginia. See Appen­
dix G to Brief for Petitioner, in Aikens v. California, supra.



14

for this crime, but only twenty during the past decade and 
none since 1964.19

(3) It is instructive to consider the geography of capital 
punishment for rape in this country. With the exception of 
Nevada (which punishes the crime capitally only in the 
event of “substantial bodily harm” 20and has not executed a 
man for rape since at least 193021 ) all of the States which con­
fer discretion on their juries to impose death as the penalty 
for rape are Southern or border States.22 TRTs' geogfap'hit dis- 
tribiTtitm ddes not seenT'accfdeTrta-lr-frr*l 954 this Court in 
Brown v. Board o f  Education, 347 U.S. 483 (1954), declared 
racial discrimination in the public schools unconstitutional. 
Here are comparative lists of all the States whose statutes 
required or authorized racial segregation in the public schools 
in 1954 and of those which now authorize capital punish­
ment for rape:

Segregation States23
Alabama
Arizona
Arkansas
Delaware
District of Columbia
Florida
Georgia
Kansas

Death Penalty States 
Alabama

Arkansas

Florida
Georgia

19UNITED STATES DEPARTMENT OF JUSTICE, BUREAU OF 
PRISONS, NATIONAL PRISONER STATISTICS, Bulletin No. 45, 
Capital Punishment 1930-1968 (August 1969) [hereafter cited as NPS 
(1968)], p. 7.

^Nev. Rev. Stat. (1967), §200.363.
21 NPS (1968) 11. The federal government has executed only two 

men for rape since 1930. Id, at 10.
22See note 17, supra.
23As listed in Murray, States’ Laws on Race and Color (1950), 14 

n. 47.



5

Kentucky 
Louisiana 
Maryland 
Mississippi 
Missouri

New Mexico 
North Carolina 
Oklahoma 
South Carolina 
Tennessee 
Texas 
Virginia 
West Virginia 
Wyoming
(Delaware, the District of Columbia and West 
Virginia also punished rape with death until 
1958, 1970, and 1965 respectively.)24

(4) The racial figures for all men executed in the United 
States for the crime of rape since 1930 are as follows: 48 
white, 405 Negro, 2 other.25 In Georgia, the figures are: 3 
white, 58 Negro.26 These figures are also clearly not acci­
dental. In Appendix B to this brief, we trace the history 
of the punishment for rape in Georgia since the days of 
slavery. Briefly stated, prior to the Civil War rape committed 
by a white man was never regarded as sufficiently serious 
to warrant a penalty greater than 20 years imprisonment. 
Rape committed by a slave or a free person of color upon 
a white woman was punishable by death. One year after

24Del. Code Ann. (1953), tit. 11, §781, repealed by 51 Del. Laws, 
1957, ch. 347, p. 742 (1958).

D.C. Code (1967), §22-2801, repealed by District of Columbia 
Court Reform and Criminal Procedure Act of 1970, §204, 84 Stat. 
473, 600 (1970).

W. Va. Code, §5930 (1961), repealed by W. Va. Acts, 1965, ch. 
40, p. 207 (1965).

25NPS (1968) 10.
^NPS (1968) 11.

Kentucky
Louisiana
Maryland
Mississippi
Missouri
Nevada

North Carolina 
Oklahoma 
South Carolina

Texas
Virginia



16

the abolition o f slavery, a facially color-blind s ta tu te  was 
enacted, giving juries discretion to  sentence any man con­
victed o f  rape to  either death or not m ore than 20 years 
im prisonm ent. It was no t until 1960 tha t the th ird  option 
o f life im prisonm ent was added to  these tw o alternatives. 
The objects o f  the alternatives have been perfectly obvious 
to  Georgia juries, and should be no less obvious to  any 
observer.

We m ake this point no t to  dem onstrate a denial o f the 
Equal P ro tection  o f the Laws—a claim no t now before the 
Court and whose vindication is im peded by considerable 
d ifficu lties27—b u t to  dem onstrate rather the nature and 
ex ten t o f  the accep tance28 which the death penalty for rape 
enjoys in Georgia and in this country  today. The roots o f 
tha t acceptance lie in racial, no t penal, considerations; and 
its ex ten t is am ply signified by Georgia’s execution o f three 
white men in fo rty  years for rape. During the same forty  
years, the U nited States collectively have to lerated  just a 
little more than one white execution per year for this 
offense. No single State has to lerated  a fraction o f  tha t 
to ta l.29 Palpab ly , capital punishm ent for rape is n o t “ still

27See Brief for Petitioner, in Athens v. California, O.T. 1971, No. 
68-5027, pp. 51-54.

28As in the Athens brief, supra, our argument here addresses the 
question whether the death penalty for rape “is still widely accepted,” 
within the meaning of Trop v. Dulles, 356 U.S. 86, 99 (1958) (plural­
ity of opinion of Chief Justice Warren).

29Since 1930, the following American jurisdictions have executed 
the following numbers of men for rape:

Federal Government
White

2
Negro

0
District of Columbia 0 3
Alabama 2 20
Arkansas 2 17
Delaware 1 3
Florida 1 35
Georgia 3 58
Kentucky 1 9
Louisiana 0 17



17

widely accepted” * 30, or accepted at all when race does not

ated and rejected; and under any standard of the Eighth 
Amendment which considers “ the evolving standards of 
decency that mark the progress of a maturing society,” 31 
it is an unconstitutional cruel and unusual punishment.

II. THE DEATH PENALTY FOR RAPE IS 
UNCONSTITUTIONALLY EXCESSIVE

The same facts regarding the manner and extent of con­
temporary usage of the death penalty for rape also reflect 
upon another fundamental Eighth Amendment concern. 
This is the “inhibition . . . against all punishments which by 
their excessive . . . severity are greatly disproportioned to 
the offences charged.”313 Restraints upon excessive punish­

Maryland 6 18
Mississippi 0 21
Missouri 3 7
North Carolina 4 41*
Oklahoma 0 4
South Carolina 5 37
Tennessee 5 22
Texas 13 71
Virginia 0 21
West Virginia 0 1

*and 2 “other.”
NPS (1968) 10-11.

30See note 28, supra.
31 Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion of 

Chief Justice Warren).
31aO’Neil v. Vermont, 144 U.S. 323, 337, 339-340 (1892) (Mr. Jus­

tice Field, dissenting). Justices Harlan and Brewer agreed with Justice 
Field that O’Neil’s sentence was excessive “in view of the character 
of the offences committed.” Id. at 366, 371. The majority of the 
Court declined to reach the merits of the question because it was not 
properly presented and because the Eighth Amendment was not then 
viewed as a restraint upon the States. Id., at 331-332. But see Rob­
inson v. California, 370 U.S. 660 (1962); Brief for Petitioner, in Aikens 
v. California, supra, n. 24.



18

ment run deep in the Anglo-American tradition;32 and their 
expression in the Eighth Amendment was a principal ground 
of decision in Weems v. United States, 217 U.S. 349 (1910) 
Although the cadena temporal and its accessories were visi­
bly harsh and outlandish in nature, their condemnation in 
Weems rests expressly upon their oppressiveness for the 
crime of falsifying public records, and their consequent lack 
of adaptation ot punishment to the degree of crime.” Id  
at 365.33

To be sure, this constitutional concept of adaptation 
does not require that the punishment fit the crime like a 
glove. Neither legislatures nor courts, nor the sciences of 
penology are equipped for that kind of measurement. See 
Packer, Making the Punishment Fit the Crime, 77 HARV. L. 
REV. 1071, 1078-1080 (1964). However, it would ignore 
the entire experience of our criminal law system to deny 
that the grading of offenses by their seriousness is endemic 
to it;34 and, in this context, the Eighth Amendment’s pro­

32Magna Carta contains three chapters requiring that amercements 
be proportioned to the measure of magnitude of offenses. MAGNA 
CARTA, ch. 20-22 (1215), printed in ADAMS & STEPHENS, SELECT 
DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY (1926) 
42,45. These and other aspects of the English tradition are discussed 
in Granucci, “Nor Cruel and Unusual Punishments Inflicted:'’ The 
Original Meaning, 57 CALIF. L. REV. 839, 844-847 (1969). In foot­
note 36 of the Brief for Petitioner, in Aikens v. California, supra, we 
explain why the additional concern of the American Framers against 
barbarous punishments implies no abandonment of the traditional 
English restriction upon excessive ones.

33See id. at 377:
“It is cruel in its excess of imprisonment and that which 

accompanies and follows imprisonment.. It is unusual in its 
character. Its punishments come under the condemnation of 
the Bill of Rights, both on account of their degree and kind. 
And they would have those bad attributes even if they were 
found in a Federal enactment and not taken from an alien 
source.”

■̂ We are aware of no jurisdiction that does not operate upon this 
principle in the legislative prescription of the maximum penalties for 
grades of offenses. “ Individualization” of punishment is invariably



19

hibition of cruel and unusual punishments must impose 
some restriction upon a legislature’s power to proceed aber­
rantly in affixing maximum penalties to grades of crime.35

The question is whether Georgia has done so here in pun­
ishing rape with death. That question is answered, we think, 
by the nearly universal judgments of mankind. Rape is 
assuredly a serious offense, and we do not minimize its seri­
ousness. But almost nowhere in the world today, except in 
the American South and in South Africa, is the death penalty 
inflicted for it. Other punishments for other crimes may 
vary from jurisdiction to jurisdiction, providing no basis for 
estimation of a commonly perceived relationship of fitness 
between them. Death punishment for rape is, by extraor­
dinary national and worldwide accord, perceived to be 
excessive.

Even this might not condemn it if the States in which it 
was used had some particular local situation to which it 
legitimately responded. But the situation to which it in 
fact responds in the American Southern States—and, once

permitted within legislatively fixed limits determined by the serious­
ness of the crime. In the present case, of course, the Court is con­
cerned only with the permissibility of the statutory maximum as a 
maximum; and so the complexities of accounting for individualiza­
tion-stressed by Professor Packer, supra, 77 HARV. L. REV., at 1080- 
1081—appear to be wide of the mark. Doubtless a theoretical system 
of criminal justice could be designed in which offenses were not 
graded nor maximum penalties assigned to them according to their 
character. And in the context of such a system, an Eighth Amend­
ment might require no adaptation of crime and penalty. But that is 
not the American criminal justice system or the context of the Eighth 
Amendment to the Constitution of the United States. Cf. Duncan v. 
Louisiana, 391 U.S. 145, 149-150 n. 14 (1968).

35Even Professor Packer seems to admit this point, saying that life 
imprisonment or capital punishment for trivial offenders “might be 
ruled out.” Packer, supra, 77 HARV. L. REV., at 1081. He explains 
this result in terms of “ decency,” not excessiveness. But there seems 
to be nothing indecent about a life sentence for jaywalking, except 
the indecency that arises from its perceived excessiveness.



20

again, in South Africa36—cannot be thought to justify it.37 
Both the legisaltive history of the Georgia rape statute 38 
and its actual use by Georgia juries39 demonstrate that 
death has not been thought to be a fitting punishment for 
rape in that State in the absence of racial considerations.

^ I t  has recently been reported that, between 1947 and 1969, 844 
rape convictions of black South Africans resulted in 121 death sen­
tences, while 288 rape convictions of white South Africans resulted 
in 3 death sentences. The Manchester Guardian Weekly, August 14, 
1971, p. 4.

37McLaughlin v. Florida, 379 U.S. 184 (1964),
38See Appendix B to this brief.
39 See text at note 26 supra.



21

CONCLUSION

The death sentence imposed upon petitioner Lucious 
Jackson, Jr., should be set aside as a cruel and unusual 
punishment.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
JACK HIMMELSTEIN 
ELIZABETH B. DUBOIS 
JEFFRY A. MINTZ 
ELAINE R, JONES

10 Columbus Circle, Suite 2030 
New York, New York 10019

BOBBY L. HILL 
208 East 34th Street 
Savannah, Georgia 31401

MICHAEL MELTSNER 
Columbia University Law 

School
435 West 116th Street 
New York, New York 10027

ANTHONY G. AMSTERDAM 
Stanford University Law 

School
Stanford, California 94305

Attorneys for Petitioner



TABLE OF AUTHORITIES 

APPENDICES

Statutory Provisions:
Ga. Acts 1811, No. 503, 797-800 .................................................. lb
Ga. Acts. 1815, No. 504, printed in LAMAR, COMPILATION

OF THE LAWS OF GEORGIA, p. 800 (1821) .................... lb-2b
Ga. Acts. 1816, No. 508 § 1, printed in LAMAR, COM­

PILATION OF THE LAWS OF GEORGIA, p. 804 (1821) . . 2b 
Ga. Acts 1866, Nos. 209, 210, p. 151 .....................................  4b

Ga. Acts 1866, No. 236, p. 233   4b
Ga. Acts 1960, No. 587, p. 266   6b
Ga. Acts 1963, No. 56, §2, pp. 122-123 .............................. la
Ga. Acts 1968, pp. 1249, 1299 ....................................................... 6b
Ga. Code Ann., §26-1302 (1953) ...............................................  4b, 6b
Ga. Code Ann. §26-1301 ................................................................  la
Ga. Code Ann. §26-1302 ................................................................  la
Ga. Code Ann. §27-2302 ................................................................  la
Ga. Code Ann. §27-2512 ................................................................  2a
Ga. Crim. Code § 26-2001   2a
Ga. Crim. Code §26-3102 ................................................................. 2a-3a
Penal Code of 1811, §§ 60, 67, printed in LAMAR,

COMPILATION OF THE LAWS OF GEORGIA, pp.
551-552 (1821) ...........................   lb

Penal Code of 1816, §§ 33-34, printed in LAMAR,
COMPILATION OF THE LAWS OF GEORGIA, p.
571 (1821)   2b

Penal Code §§ 4248-4250, printed in CLARK, COBB &
IRWIN, CODE OF THE STATE OF GEORGIA (1861)
824 .............................................................  2b-3b

Penal Code for Slaves and Free Persons of Color, §§ 4704,
4708, printed in CLARK, COBB & IRWIN, CODE OF
THE STATE OF GEORGIA (1861) 9 1 8 ................................... 3b

(A-i)



(A-ii)

Other Authorities:
Humphries of Lincoln, A Bill to be entitled An Act to alter 

and change the 4249th and 4250th paragraphs of the Code
of Georgia (in Custody of Georgia State Archives,
Atlanta, Georgia) ..........................................................................  5b

Journal of the House of Representatives of the State of 
Georgia, Commenced November 1, 1866 (1866) ....................  5b

Journal of the Senate of the State of Georgia (1866) . .............  5b



la

APPENDIX A

STATUTORY PROVISIONS INVOLVED

Ga. Code Ann., §26-1301 
(1953 Rev, vol.)

effective prior to July 1, 1969

26-1301. (93 P.C.) Definition.—Rape is the carnal knowledge of a 
female, forcibly and against her will. (Cobb, 787.)

Ga. Code Ann., § 26-1302 
(1970 Cum, pocket part) 

effective prior to July 1, 1969

26-1302. (94 P.C.) Punishment; recommendation by jury to mercy. 
The crime of rape shall be punished by death, unless the jury recom­
mends mercy, in which event punishment shall be imprisonment for 
life: Provided, however, the jury in all cases may fix the punish­
ment by imprisonment and labor in the pentientiary for not less than 
one year nor more than 20 years. (Cobb, 787. Acts 1866, p. 151; 
1960, p. 266.)

Ga. Code Ann., §27-2302 
(as amended by Ga. Acts, 1963,
No, 56, §2, pp. 122-123, effec­

tive March 14, 1963)
effective prior to July 1, 1969

27-2302. In all capital cases, other than those of homicide, when 
the verdict is guilty, with a recommendation to mercy, it shall be legal 
and shall mean imprisonment for life. When the verdict is guilty with­
out a recommendation to mercy it shall be legal and shall mean that 
the convicted person shall be sentenced to death. However, when it 
is shown that a person convicted of a capital offense without a recom­
mendation to mercy had not reached his seventeenth birthday at the 
time of the commission of the offense the punishment of such person 
shall not be death but shall be imprisonment for life.



2a

Ga. Code Ann., §27-2512 
(1953 Rev, vol.)

27-2512. Electrocution substituted for hanging; place of execution.
—All persons who shall be convicted of a capital crime and who shall 
have imposed upon them the sentence of death, shall suffer such pun­
ishment by electrocution instead of by hanging.

In all cases in which the defendant is sentenced to be electrocuted 
it shall be the duty of the trial judge, in passing sentence, to direct 
that the defendant be delivered to the Director of Corrections for 
electrocution at such penal institution as may be designated by said 
Director. However, no executions shall be held at the old prison 
farm in Baldwin county. (Acts 1924, pp. 195, 197; Acts 1937-38, 
Extra. Sess., p. 330.)

Ga. Grim. Code, §26-2001 
" (1970 Rev, vol.)

(effective July 1, 1969)

26-2001. Rape.—A person commits rape when he has carnal knowl­
edge of a female, forcibly and against her will. Carnal knowledge in 
rape occurs when there is any penetration of the female sex organ by 
the male sex organ. A person convicted of rape shall be punished by 
death or by imprisonment for life, or by imprisonment for not less 
than one nor more than 20 years. No conviction shall be had for 
rape on the unsupported testimony of the female.

(Acts 1968, pp. 1249, 1299.)

Ga. Crim. Code, §26-3102 
(1970 Rev, vol.)

(effective July 1, 1969)

26-3102. Capital offenses—jury verdict and sentence.-Where, up­
on a trial by jury, a person is convicted of an offense which may be 
punishable by death, a sentence of death shall not be imposed unless 
the jury verdict includes a recommendation that such sentence be 
imposed. Where a recommendation of death is made, the court shall 
sentence the defendant to death. Where a sentence of death is not 
recommended by the jury, the court shall sentence the defendant to 
imprisonment as provided by law. Unless the jury trying the case 
recommends the death sentence in its verdict, the court shall not 
sentence the defendant to death. The provisions of this section shall



3a

not affect a sentence when the case is tried without a jury or when 
the judge accepts a plea of guilty.

(Acts 1968, pp. 1249, 1335; 1969, p. 809.)



lb

APPENDIX B
HISTORY OF PUNISHMENT FOR RAPE IN GEORGIA

The Georgia Penal Code of 181 1, which expressly applied 
to free white p_ersTfhT75!iry,t6""provided that rape would be 
punished hv irnffiTsor^^ labor for not. less ..than

on the same date as the Penal Code, December 16, 1811, in 
effect provided that slaves could be sentenced to death for 
any crime at the discretion of a tribunal for slaves.3b On 
November 23, 1815, the act of 1811 which established a 
tribunal for the trial of slaves, was made applicable to all 
offenses committed by “free persons of colour.” 4b On

lh“And be it further enacted, That the operation of this law, and 
all parts thereof shall be construed to extend to free white persons 
only.” Penal Code of 1811, § 67, printed in LAMAR, COMPILATION 
OF THE LAWS OF GEORGIA (1821) [hereafter cited as LAMAR], 
552.

2b “Be it further enacted, That if any man shall have or take carnal 
knowledge of any woman by force, or against her will or consent, 
every such person, his aiders or abettors, shall, upon conviction there­
of, be sentenced and confined to hard labour, for and during a term 
not less than seven years, nor more than sixteen.” Penal Code of 
1811, § 60, LAMAR 551.

3bThe Act provided that when a complaint was made to a justice 
of the peace of “any crime having been committed by any slave or 
slaves” he should summon two other justices to try the case. If it 
appeared to the justices that the crime should be punished by death, 
a trial before a jury of “ twelve free white persons” was to be held. If 
the jury returned a verdict of guilty, “ the court shall immediately 
pronounce sentence of death by hanging, or such other punishment 
not amounting to death . . . .” Ga. Acts of 1811. No. 503, at 797-

4b“BE it enacted by the Senate and House of Representatives of 
the state of Georgia, in General Assembly met, and it is hereby enacted 
by the authority of the same, That an act passed at Milledgeville, on 
the 16th day of December, 1811, entitled An act to establish a tribunal 
for the trial of salves within this state; the court therein established is 
hereby made a tribunal for offences committed by free persons of 
colour, to all intents and purposes, as if the words free persons of 
colour had been inserted in the caption, and every section of the said

800.



2b

December 18, 1816, the penalty for rape in the Penal Code 
applicable to whites was changed to imprisonment for not

/ less than two nor more than twenty years, and a section 
was added punishing attempted rape by imprisonment for 
not less than one nor more than five years.sb Jh a  follow- 
ing day, December 19, 1816, an act was passed which 
eXpfSSSiy“pfOVitfifed'TtiaTfKeTpunishment of slaves and “free 
persons'of colour” for the crime of rape or attempted rape 
of a Free white female should be death.6b

A Code of the State of Georgia published in 1861 shows 
that sometime between the years 1816 and 1861, the rape 
provisions were again amended. Rape by a white person 
upon a free white female remained punishable by imprison­
ment for no less than two nor more than twenty years; rape 

/by a white person upon a slave or free person of color was 
1 made punishable “by fine and imprisonment at the discre­

tion of the court;” an assault with intent to commit rape 
remained punishable by one to five years imprisonment.7b

act to establish a tribunal for the trial of slaves within this state.” 
Ga. Acts of 1815, No. 504, LAMAR 800.

sb“Rape shall be punished by imprisonment at hard labour in the 
penitentiary, for a term not less than two years, nor longer than 
twenty years, as the jury may recommend.

“An attempt to commit rape shall be punished by imprisonment 
at hard labour in the penitentiary, for a term not less than one year, 
nor longer than five years, as the jury may recommend.” Penal Code 
of 1816, §§ 33-34, at LAMAR 571.

6b“BE it enacted by the Senate and House of Representatives of 
the General Assembly of the state of Georgia, and it is hereby enacted 
by the authority of the same, That the following shall be considered 
as capital offences, when committed by a slave or free person of 
colour: . . . committing a rape, or attempting it, on a free white 
female; . . . every and each of these offences shall, on conviction, be 
punished with death.” Ga. Acts of 1816, No. 508, § 1, at LAMAR 804.

7b“Rape is the carnal knowledge of a female, whether free or slave, 
forcibly and against her will.

“Rape on a free white female shall be punished by an imprison­
ment at labor in the penitentiary for a term not less than two years 
nor longer than twenty years. If committed upon a slave, or free



3b

Rape upon a free white female by a slave or free person of 
color remained punishable by death.8*5 However, attempted 
rape upon a free white female was made punishable by 
death “or such other punishment as the court may prescribe, 
proportionate to the offence and calculated to prevent the 
occurrence of like offences in future.” 9*5

The Georgia Constitution of 1865, enacted November 8, 
1865, abolished slavery. On March 20, 1866, the rape pro­
vision of the Penal Code applicable to whites10*5 was amended. 
The crime of rape was reduced below a felony and made 
pufusKablSTiy THTriFriofTo"exceeH^one thousand Hollars, 
imprisonment not to exceed six months, whipping not to 
dkceecl thirty-nine lashes, to work in a chain gang on the 
public works not to exceed twelve months, and any one or 
more of these punishments . . .  in the discretion of the 
Judge.” 11,5 This amended provision was repealed on Decem-

person of color, by fine and imprisonment, at the discretion of the 
court.

“An assault with intent to commit a rape, shall be punished by an 
imprisonment at labor in the penitentiary for a term not less than one 
year nor longer than five years.” Penal Code §§4248-4250, printed 
in CLARK, COBB & IRWIN, CODE OF THE STATE OF GEORGIA 
(1861), 824.

8b“The following offences, when committed by a slave or free per­
son of color, shall be punished, on conviction, with death, viz: . .. rape 
upon a free white female.” Penal Code for Slaves and Free Persons of 
Color, §4704, printed in id. at 918.

9b“The following offences, when commited by a slave or free person 
of color, shall be punished in the discretion of the court, either by 
death or such other punishment as the court may prescribe, propor- ... 
donate to the offence and calculated to prevent the occurrence of 
like offences in future, viz: Attempt to commit a rape upon a free 
white female. . . .” Penal Code for Slaves and Free Persons of Color, 
§4708, in id. at 918.

10b§4248. See note 7b supra.
llb“The General Assembly of the State of Georgia do enact, That 

from and after the passage of this Act the crimes defined in the fol­
lowing Sections of the Penal Code as felonies, and punishable by 
imprisonment in the Penitentiary, shall henceforth be reduced below 
felonies, and punished in the manner hereinafter set forth, viz: Sec­
tions . . .4248 . . . .

[footnote continued]



4b

ber 11, 1866, and the prior provisions of the code relating 
to punishment were reinstated.12b

On December 15, 1866, a new rape statute was enacted 
which made rape punishable by death or by imprisonment 
for no less than one nor more than twenty years at the dis­
cretion of the jury, and which made assault with intent to 
commit a rape punishable by imprisonment for no less than 
one nor more than twenty years.13b

“ 5. SEC. II. That all other crimes designated in the Penal 
Code punishable by fine and imprisonment, or either, shall be likewise 
punishable in the manner hereinafter set forth, that is to say, the 
punishment for any of the aforesaid crimes, hereafter committed, shall 
be a fine not to exceed one thousand dollars, imprisonment not to 
exceed six months, whipping not to exceed thirty-nine lashes, to work 
in a chain gang on the public works not to exceed twelve months, 
and any one or more of these punishments may be ordered in the dis­
cretion of the Judge.” Ga. Acts 1866, No. 236, p. 233.

12b “SECTION I. Be it enacted, etc., That from and after the pass­
age of this act, so much of the first section of an act entitled an act 
to alter and amend the Penal Code of Georgia, passed March 12th, 
1866, as relates to section 4248 of the Code of Georgia, be and the 
same is hereby repealed, and that said section 4248 be of force as 
before the passage of said act.

“ SEC. II. Repeals conflicting laws.” Ga. Acts 1866, No. 209,
P- 151.

13b“SECTION I. Be it enacted, etc., That from and immediately 
after the passage of this act, the crime of rape, in this State, shall be 
punished with death, unless the defendant is recommended to mercy 
by the jury, in which case the punishment shall be the same as for an 
assault with intent to commit a rape. An assault with intent to com­
mit a rape, in this State, shall be punished by an imprisonment at hard 
labor in the Penitentiary of this State, for a term not less than one 
nor longer than twenty years.

“SEC. II. Repeals conflicting laws.” Ga. Acts 1866, No. 210. 
p. 151.

As codified in the Code of 1933, the penalty provision reads: 
“The crime of rape shall be punished with death, unless the defend­
ant is recommended to mercy by the jury, in which case the punish­
ment shall be for not less than one nor more than 20 years.” Ga. 
Code Ann., §26-1302 (1953).



5b

The legislative history of the act passed on December 15, 
1866, is not especially instructive. The bill as it was first 
read in the Georgia House of Representatives provided that 
all rape shall be punished with death.14b Prior to the third 
reading in the House, the provision for the alternative pun­
ishment of imprisonment was written into the bill, and the 
bill was passed the House with this amendment on Novem­
ber 26, 1866.1Sb The bill then passed the Senate without 
further amendment. The Journals of both the Georgia House 
of Representatives and the Georgia Senate reveal that the 
Georgia legislature was not engaged in a comprehensive 
reform of the Georgia penal law, but passed this bill con­
cerning rape at a time when it was considering a variety of 
unrelated subjects.16b

In 1960, the penalty for rape was amended to add the 
alternative of life imprisonment to the already existing

14b“Sect. 1st. The General Assembly of Georgia do enact, That 
from and immediately after the passage of this act, the crime of Rape 
in this State shall be punished with death. An assault with intent to 
commit a Rape in this State shall be punished by an imprisonment at 
hard labor in the Penitentiary of this State for a term not less than 
one nor longer than twenty years.

“Sect. 2d. And be it further enacted that all laws and parts of 
laws militating against this Act be and the same are thereby repealed.” 
Humphries of Lincoln, A Bill to be entitled An Act to alter and 
change the 4249th and 4250th paragraphs of the Code of Georgia, in 
custody of Georgia State Archives, Atlanta, Georgia.

15b“ . . . unless the defendant is recommended to mercy by the jury 
in which case the punishment shall be the same as for an assault with 
intent to commit a rape.” Ibid.

16bSee, Journal of the Senate of the State of Georgia (1866); Jour­
nal of the House of Representatives of the State of Georgia, Com­
menced November 1, 1866 (1866).



6b

choices.1713 In the comprehensive revision of the penal code 
in 1968, the language was revised, but not its effect.186

“The crime of rape shall be punished by death, unless the jury 
recommends mercy, in which event punishment shall be imprisonment 
for life: Provided, however, the jury in all cases may fix the punish­
ment by imprisonment and labor in the penitentiary for not less than 
one year nor more than 20 years.” Ga. Acts 1960. No. 587, p. 266; 
Ga. Code Ann. §26-1302 (Supp. 1970).

186 ‘A person convicted of rape shall be punished by death or by 
imprisonment for life, or by imprisonment for not less than one nor 
more than 20 years.” Ga. Acts 1968, pp. 1249, 1299; Ga. Code Ann. 
§26-2001 (1970 Revision) (effective July 1, 1969).