Aikens v. California, Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae in Support of Petitioners

    IN THE

Supreme ©mart 0! Up United States
October Term, 1971

E arnest J ames A ikens, J r., Petitioner
y. V No. 68-5027

State oe California

J- No

On Writ of Certiorari to the Supreme Court of California

W illiam H enry F urman, Petitioner

State of Georgia

No. 69-5003

On Writ of Certiorari to the Supreme Court of Georgia

Lucius J ackson, Petitioner
v.

State of Georgia } No. 69-5030

On Writ of Certiorari to the Supreme Court of Georgia

E lmer Branch, Petitioner
y, V No. 69-5031

State of Texas }
On Writ of Certiorari to the Texas Court of Criminal Appeals

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE AND 
BRIEF AMICI CURIAE IN SUPPORT OF PETITIONERS

[Amici Curiae and attorney listed on inside cover]

P ress of B yron S. Adams P rinting, Inc., W ashington, D. C.

9



H on. E dmund 6 . Brown 
H on. David F . Cargo 
H on. E lbert N. Carvel 
H on. Michael Y. D iSalle 
H on. P hillip H. H ope 
H on. Theodore B. McK eldin 
H on. E ndicott P eabody 
H on. Grant Sawyer 
H on. Milton J . Shapp

By Michael V. D i Salle 
425 - 13th Street, N.W. 
Washington, D.C. 20004 
(202)-393-3300 

Attorney for Amici Curiae
October, 1971



INDEX
Page

M otion for L eave to P ile  B rief  A m ici C u r ia e ..............1-M
B rief  A m ici Curiae in  S upport of P e t it io n e r s ............ 1

Interest of Amici C uriae...........................................  1
Summary of Argum ent............................................. 2
Argument ............    3

The Death Penalty Is a Cruel and Unusual Punish­
ment Prohibited by the U. S. Constitution.......  3

Conclusion ..................    16



IN  THE

i>uprrmr Court of tijr luitrd Stairs
October Term, 1971

E arnest J ames A ikens, J r., Petitioner 
y.

State of California

No. 68-5027

On Writ of Certiorari to the Supreme Court of California

W illiam H enry F urman, Petitioner 
y.

State of Georgia

No. 69-5003

On Writ of Certiorari to the Supreme Court of Georgia

Lucius J ackson, Petitioner ")
v. V No. 69-5030

State of Georgia J

On Writ of Certiorari to the Supreme Court of Georgia

E lmer Branch, Petitioner 
y.

State of Texas

No. 69-5031

On Writ of Certiorari to the Texas Court of Criminal Appeals

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

The movants hereto, Hon. Edmond G, Brown, former 
Governor of California, Hon. David E. Cargo, former 
Governor of New Mexico, Hon. Elbert N. Carvel,



2-M

former Governor of Delaware, Hon. Michael V. 
DiSalle, former Governor of Ohio, Hon. Philip H. 
Hoff, former Governor of Vermont, Hon. Theodore B. 
McKeldin, former Governor of Maryland, Hon. 
Endicott Peabody, former Governor of Massachusetts, 
Hon. Grant Sawyer, former Governor of Nevada and 
Hon. Milton J. Shapp, Governor of Pennsylvania, 
hereby respectfully move for leave to file the attached 
brief amici curae in this case The consent of the re­
spondent, the State of Georgia, the respondent, the 
State of California, and the respondent, the State of 
Texas, was requested but, was refused by all.

The interest of the foregoing individuals in this case 
arises from the fact that they are all presently or were 
formerly Governors in states where the death penalty 
is authorized by law, and in their official capacity as 
governors of their varied states have had intimate 
torturous experience with the death penalty.

While scholarly research and judicial logic can ex­
plore the application of theoretical bounds of the Con­
stitution to the concept of capital punishment, these 
amici are uniquely qualified through personal experi­
ence to advise the court of the cruel and unusual nature 
of the death penalty. Each of these men has been in 
the position of sitting in final human judgment over the 
life of another human being; more final than that of 
the sentencing judge who had the knowledge that execu­
tive clemency might relieve him of the burden of taking 
another man’s life; more final indeed, than the decision 
of this honorable Court. Each of these amici have wit­
nessed the cruelty of the years-long suffering imposed 
upon the condemned, and the unusualness of the pun­
ishment in its discriminatory application to the poor, 
the ignorant, and the unpopular. Each can provide an



3-M

additional dimension to the question now before the 
court which counsel can only begin to suggest.

The brief of amici curiae is timely presented. 
Although time for filing briefs of the parties has 
passed, this Court has postponed consideration of these 
cases pending appointment of two additional Justices. 
The gravity of the question before the court, the finality 
(but for executive clemency) of its decision in these 
cases, and the fact that the court will neither be incon­
venienced nor delaj^ed due to the postponement of 
argument and decision in these cases, all suggest the 
propriety of the granting of this motion and the 
consideration by this Court of the brief amici curiae.

W herefore movants respectfully request that this 
honorable Court grant leave to file the attached brief 
Amici Curiae in support of petitioners.

Respectfully submitted,

H on. E dmund Gf. B eown 
H on. D avid F . Cargo 
H on. E lbert N. Carvel 
H on. M ichael V. D i S alle 
H on. P h il ip  H. H ope 
H on. T heodore R. M cK eldin 
H on. E ndicott P eabody 
TIon. Grant S awyer 
H on. M ilton J. S happ

B y M ichael Y. D i Salle 
425 - 13th Street, N.W. 
Washington, D. C. 20004 
(202)-393-3300 
Attorney for Amici Curiae

October, 1971



IN THE

^upvnm (Emirf of tlfr United
October Term. 1971

E arnest J ames Aikens, J r., Petitioner 'J
y. I  No. 68-5027

State of California J

On Writ of Certiorari to the Supreme Court of California

W illiam H enry F urman, Petitionerv.
State of Georgia

No. 69-5003

On Writ of Certiorari to the Supreme Court of Georgia

Lucius J ackson, Petitioner 1
Y. I- No. 69-5030

State of Georgia J

On Writ of Certiorari to the Supreme Court of Georgia

E lmer Branch, Petitioner 1
v. L No. 69-5031

State of Texas J

On Writ of Certiorari to the Texas Court of Criminal Appeals

BRIEF AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

The subscribers to this brief are men who in their 
official capacity as Governors of their various states,



2

have had intimate, torturous experience with the death 
penalty. They are Hon. Edmund G. Brown, former 
Governor of California, Hon. David E. Cargo, former 
Governor of New Mexico, Hon. Elbert N. Carvel, 
former Governor of Delaware, Hon. Michael Y. Di- 
Salle, former Governor of Ohio, Hon. Philip H. Hoff, 
former Governor of Vermont, Hon. Theodore R. Mc- 
Keldin, former Governor of Maryland, Hon. Endicott 
Peabody, former Governor of Massachusetts, Hon. 
Grant Sawyer, former Governor of Nevada and Hon. 
Milton J. Shapp, Governor of Pennsylvania.

Not until one has watched the hands of a clock mark­
ing the last minutes of a condemned man’s existence, 
knowing that he alone has the temporary Godlike 
power to stop the clock, can he realize the agony of 
deciding an appeal for executive clemency.

SUMMARY OF ARGUMENT

The death penalty is not a deterrant to those who 
would willfully take the life of another. History has 
repeatedly shown that people who actually witnessed 
public legal executions were often those who were later 
convicted and executed for similar offenses. The con­
verse is also true. In places where the death penalty 
has been abolished, there has been no rise in the num­
ber of willful homicides committed.

Capital punishment is a relic of barbarism, and the 
sadism of earlier societies’ methods of execution is 
nonetheless present, even though modern “ more hu­
mane” methods may dispatch the convicted more 
quickly. The life-for-a-life principal of penology satis­
fies nothing but a lust for revenge which is degrading 
to the fabric of our society.



3

Legal execution is unconstitutionally cruel because 
it leaves no room for redemption and rehabilitation and 
subjects the condemned to years of terror on death 
row, until reprieve after reprieve, false hopes raised 
and dashed, and witness to others on death row going 
to a final doom which is uncertain for them only as to 
date, finally drives the condemned beyond the point of 
madness.

The punishment of execution is unusual in its appli­
cation because among those found guilty of willfull 
homicide, it is generally the poor, 'the ignorant and the 
politically unpopular who suffer its consequences. In 
1965, with 9,850 homicides committed, there were seven 
executions; in 1966, one, and since then, none. Those 
selected for execution appear chosen at random from 
among the unprivileged, with no rational method of 
applying the death penalty to those who, by legislation, 
are subject to it.

ARGUMENT

The Death Penalty Is a Cruel and Unusual Punishment 
Prohibited by the U.S. Constitution

Generally, the people who sit in death row waiting 
to know whether the Governor will permit them to 
live or to die, follow a uniform pattern. They are 
men and women who generally have not had the finances 
necessary to enlist the services of the peculiarly tal­
ented counsel so essential in manning this type of 
defense. They are generally unschooled, often illiter­
ate, many times mentally inadequate, and frequently 
the result of local hysteria which cries for a vengeance 
that is extremely fleeting. They are the exception 
rather than the ride. It seems that somewhere, some­
one believes that the execution of one man among the



4

hundreds that are charged with willful homicide will 
serve as an example or a deterrent to society. Is it a 
deterrent?

Three Presidents of the United States had been 
assassinated before John Fitzgerald Kennedy was 
shot down in Dallas. All of their assassins died. 
Booth, who shot Lincoln, was killed while trying to 
escape his pursuers; his accomplices were hanged. 
Garfield’s assassin, a disappointed office seeker, was 
executed. So was the anarchist who shot McKinley. 
Did this deter the men who took pot-shots at Theodore 
Roosevelt, Franklin D. Roosevelt, or Harry S. Truman ? 
All of the previous examples did not deter Lee Harvey 
Oswald. The fact that Oswald was killed by Jack 
Ruby should have served to satisfy those who were 
seeking vengeance. Instead, the killing of Oswald by 
Jack Ruby produced intense indignation on the part 
of our citizens. But if we say that Ruby as an in­
dividual should not seek revenge, should we, as a 
people, seek it collectively?

To emphasize the futility of the death penalty as 
a deterrent, we might briefly review the case of Charles 
Justice. Justice was sentenced in 1902 to the Ohio 
State Penitentiary after a cutting scrape. He was 
assigned as a trusty to the housekeeping duties of 
the death house. In those days, the electric chair was 
considered inefficient. Since it was too large for the 
small, nervous type of prisoner, it would cause him 
to squirm in his seat and cause the electrodes to make 
imperfect contact. As a result, the powerful current 
would arc between the electrodes and the doomed man’s 
body, causing flesh burns and an unpleasant odor 
which discommoded the witnesses and officiating rep­
resentatives of the state. Charles Justice corrected



5

this deficiency by designing iron clamps which are still 
in use. They immobilized the limbs of the condemned 
man during his death reflexes and thus made for a 
neater execution.

For his service to Ms state, Charles Justice was 
granted extra time off and was paroled in April, 1910. 
In November of the same year, Justice returned to 
the penitentiary, the charge; murder in the first degree. 
On October 27, 1911, undeterred Charles Justice died 
in the electric chair he had made more lethal, im­
mobilized by the clamps he had invented.

How cruel is cruel? Capital punishment is a relic 
of barbarism. The Lord Chief Justice of England 
wondered if the death penalty might not be a trifle 
severe in view of the prisoner’s age. The trial judge 
argued against mercy on the grounds that William 
York’s punishment would be an example deterring 
others from a life of crime. So William York was 
hanged for stealing a shilling from the man to whom 
he was apprenticed. He was ten years old. The place 
was London. The time was 1748.

Britain has come a long way along the road to civ­
ilization in the two centuries since the hanging of 
William York. In October 1965, not only the House 
of Commons, but the usually stuffy House of Lords, 
with a surprising two-to-one majority, voted to abolish 
the death penalty for a test period of five years, 
which will probably prove permanent. Tins enlight­
ened legislation, although still behind most of Western 
Europe’s, is far ahead of the United States’, and 
marks a definite global trend.

Capital punishment is a relic of barbarism, it is 
immoral, it usurps for society the exclusive privilege 
of natural laws, it is futile because it does not deter



6

the homocidal criminal, and its finality precludes any 
possibility of correcting an error.

The eye-for-an-eye, life-for-a-life concept of pen­
ology is obviously based on the degrading principle 
that society, in punishing the criminal, is seeking re­
venge rather than justice. The strong strain of sadism 
that rims through a vindictive .society’s clamor for a 
wrongdoer’s blood is evident in the fact that until 
rather late in this century (in the Western world, 
at least) the execution of the condemned has been some­
thing of a spectator sport.

The executioners of the Far East have been far 
more inventive in their spectacular cruelty than any 
20th Century Western country, with the possible ex­
ception of Nazi Germany. The Chinese, of course, have 
long been recognized as leaders in the field, with their 
boiling in oil, leisurely dismemberment (The Hundred 
Slices) and similar refinements. The Mogul, emperors 
of India, however, should be recognized for their in­
genuity in dispatching criminals as well as for their 
building of such monuments as the Taj Mahal. Im­
palement, for instance, was very popular (except with 
the victims) in 17th Century Delhi.

The man to be put to death by impalement (possibly 
for stealing a mango or a handful of roasted chick­
peas from the Emperor Aurangzeb’s palace kitchens) 
was paraded naked past the eager spectators to the 
killing grounds, where a sharpened stake of heat- 
tempered bamboo had been erected. Two men, each 
holding one of the prisoner’s bound arms, would lift 
him clear of the ground while a third separated the 
buttocks so that when the culprit was lowered briskly, 
the bamboo lance would penetrate the rectum as far 
as the sigmoid flexure. The executioners could then



7

step back and join the delighted crowd in watching 
the dance of death as the screaming' wretch writhed 
and pirouetted on his tiptoes in an effort to stay the 
inexorable progress of the murderous bamboo through 
his vitals. When sheer exhaustion and loss of blood 
finally forced the thief to his knees, the point of the 
bamboo stake pierced his heart and the show was 
over. Justice—or something-—had been done.

The early Siamese did pretty well in the way of 
spectacular capital punishment by throwing their 
criminals to the crocodiles. This possibly gave the 
Romans the idea of throwing Christians to the lions, 
although the Romans got better exposure by building 
huge stadia for their lionization carnivals. This may 
have been an improvement over the earlier Roman form 
of capital punishment by crucifixion (in itself an im­
provement over the crude Jewish practice of lapidation, 
with no strictures as to who was to throw the first 
stone), but it was a failure as a deterrent to the spread 
of Christianity.

The ancient Greeks, with their more temperate and 
philosophic civilization, did not feel it necessary to 
borrow from the annals of Oriental cruelty in ex­
terminating their undesirables and nonconformists. A 
quiet cup of hemlock did away with the lawless and 
the contumacious without fuss, feathers or cheering 
crowds.

The Greek example, however, did not deter the rest 
of Europe from linking justice with sadism. Spain 
during the Inquisition made notable advances in the 
field of cruel and unusual punishment with the rack, 
the wheel, flaying alive and burning at the stake, al­
though the popularity of auto-da-fe spread to other 
countries. Even today, although Spaniards have



8
managed to transfer most of their hostilities to the 
brave bulls, the Franco government, perhaps out of 
sentimental longing for the good old days, still retains 
garroting as an official form of capital punishment. 
Only a few years ago—August 17, 1963, to be exact—- 
two men found guilty of terrorist bombing were 
garroted in Madrid. Awakened at dawn to be fitted 
with adjustable steel collars, they were slowly strangled 
to death. The collars were tightened until eyes bulged 
and faces purpled, tightened still more until the wind­
pipe was collapsed. The two men were then given the 
coup de grace by the points of the tightening screws 
emerging cleverly from inside the backs of the collars 
to pierce the cervical vertebrae and crush the spinal 
cord.

Decapitation, once a popular form of capital pun­
ishment throughout the world, is now used sparingly 
despite an attempt by the Nazis to revive it during 
their brief but memorable rule of Schrecklichkeit. It 
was originally done by hand—wit h scimitar or cleaver 
in the East, with broadsword or ax in the West. 
Punitive head chopping was legally automated, how­
ever, as early as the 18th Century. The guillotine 
came into use in the early years of the French Revo­
lution. Curiously, this lethal instrument, which be­
came a symbol of the Reign of Terror, was originally 
suggested as a humane method of obviating the suf­
fering attendant to executing the death penalty. Dr. 
Joseph Gruillotin, a professor of anatomy appalled 
by the bloody extravagances of the French Revolution, 
carried on a campaign to humanize necessary killing, 
but resented the fact that his name was attached to 
the killing machine which he did not invent. Actually, 
the first “ guillotine” was devised by Dr. Antoine



9

Louis, and was called, by contemporaries in Ms honor, 
a Louisette. I t consisted—and still consists—of a 
trapezoidal knife weighing more than a hundred 
pounds, which drops ten feet between guide rails and 
slices on the bias through the neck of the condemned 
man who lies prone beneath it, Ms head immobilized 
by stock-like clamps. The severed head drops into a 
suitable container, while the body is rolled into a 
basket.

It was Dr. Gfuillotin’s theory that this method of 
putting a man to death was the most compassionate, 
because the victim would feel nothing except perhaps 
a brief sensation of cold at the nape of his neck. 
Whether there is any intervening pain or the reali­
zation on the part of the severed head of its impossible 
position has never been confirmed or denied by any of 
the victims.

Executions by guillotine took place in a public 
square in Paris as late as 1939. The scaffolding and 
the weighted knife would be erected the night before, 
and although the accused died at dawn, there were al­
ways crowds on hand to be edified, if not deterred 
from crime, by the spectacle of the spurting carotid 
arteries, the ghastly surprised expression on the de­
tached face, the reflex flopping of the headless body. 
Whether or not there was any appreciable deterrent 
effect, the grisly ritual is today privately performed 
behind the walls of La Saute prison on the Left Bank 
of the Seine.

Public hangings were abolished in England in 1868. 
At that time capital crimes numbered only a dozen, 
down from 200 in 1820. It is likely that the public 
spectacle was discontinued then because a royal com­
mission had reported two years earlier that the death



10
penalty, even when witnessed by potential criminals, 
was no deterrent. The commission’s report found that 
of the 167 persons executed in 1866, 164 had previously 
watched a hanging. This is not surprising, as the 
public executions used to attract huge erowuls, and 
the crowds would attract dozens of pickpockets intent 
on plying the very trade for which the center of at­
traction was being hanged.

Public hangings persisted in America beyond the 
cutoff date in England, particularly in the Ear West. 
The more spectacular forms of legal brutality were 
not practiced, however, even in the earlier Colonial 
days. There were, of course, occasional unofficial and 
nonintegrated autos-da-fe in some of the deeper parts 
of our Deep South, a practice that has carried over 
well into this century. But even the witches of Salem 
were not burned at the stake; they were decently 
hanged.

Crimes calling for the death penalty, however, were 
almost as numerous in Colonial America as in con­
temporary England. In 1636 hanging was the penalty 
in the Massachusetts Bay Colony for witchcraft, idol­
atry, blasphemy, assault in anger, murder, sodomy, 
buggery, statutory rape (the death penalty was op­
tional for forcible rape), perjury in a capital case 
and rebellion. The Old Dominion of Virginia ranked 
the degree of criminality according to race, color and 
current condition of servitude. Seventy crimes were 
listed as capital for Negro slaves, but only five for 
whites.

It was inevitable that an emerging nation like the 
United States, aspiring to world leadership in science 
and invention and the practical application thereof, 
would sooner or later abandon hanging for a modern,



11

efficient, scientific and more “ humane” method of legal 
murder. In 1880 the state of New York abolished 
the gallows in favor of a newfangled “ electric chair.” 
Thirteen years later a man named Kemmler lost his 
court battle to have the new monster declared uncon­
stitutional as “ cruel and unusual punishment,” and 
became the first man to be punished electrically for 
his misdeed—an ax murder. The contraption was a 
success technically, since it killed Kemmler, but the 
humanity of the experiment was doubtful. Either the 
machine misfunctioned or the executioner did some­
thing wrong. There was considerable searing of flesh 
and the human guinea pig apparently died in agony.

Techniques have been improved in the 70-odd years 
since, and it is now generally agreed that death by 
electrocution is practically painless. While patho­
logists still argue over the exact mechanics of death 
by electricity—some believe the heart muscles are par­
alyzed; others are just as certain that paralysis of 
the respiratory centers causes death by asphyxia— 
most of them concede that the victim loses conscious­
ness almost instantly. The tremendous electrical surge 
raises the temperature of the body to the boding point 
and sears the brain to insensibility in a fraction of a 
second. The jerking and writhing that nauseate wit­
nesses are not signs of a death struggle but purely re­
flex reactions of the muscles to an electrical impulse.

An expert hanging is also supposed to extinguish 
consciousness at the end of the drop. The snap of 
the rope grown taut theoretically breaks the neck and 
severs the spinal cord. The frantic kicking, the jerk­
ing arms, the ejaculation of sperm in men, are all un­
conscious nervous reflexes. Of course there have been 
many bungled hangings—defective traps, ropes that



12

broke, inexpert knots that merely choked the man to 
death. There is a record of an early English hanging 
of a half-starved female criminal who dropped through 
the trap and dangled at the end of the rope, eyes 
bulging with dread, because she was not heavy enough 
—she was a small 12-year-old girl—for the fall to 
break her neck. The hangman had to go down the 
13 steps, grab her legs and add his weight to hers to 
carry out the sentence.

In 1921 the Nevada state legislature came up with 
the latest contribution to the fine art of killing crim­
inals. It was not only scientific, quick and efficient; 
it introduced a new ‘£humane” note: I t would elimi­
nate the torture of apprehension. Poison gas would 
be introduced without warning into the cell of the 
condemned man while he was asleep. He would die 
peacefully, and nobody’s conscience need be disturbed 
by witnessing a death struggle. When a murderer 
named Gee Jon was sentenced to this new-style death 
three years later, it happily occurred to someone that 
the bars of Gee Jon’s cell could hardly be expected 
to contain the lethal gas intended exclusively for Gee 
Jon’s gentle extinction. Bather than risk exterminat­
ing the entire population of the penitentiary, instead, 
the penal authorities postponed the historic execution 
until a special gas chamber could be built.

Mne states besides Nevada now poison their capital 
criminals with gas. The best-known gas chamber of 
them all is California’s, perhaps because Caryl Chess­
man died there after a legal fight that lasted 12 years. 
Chessman had a long record of charges against him, 
but the one for which he was finally executed was 
that of forcing a girl to move from one car to another 
at gunpoint. This is technically kidnaping in Cali-



13

fornia and is punishable by death under California’s 
“ Little Lindbergh Law.”

Because there were many newsmen among the 60 
witnesses who came to San Quentin for Chessman’s 
execution, millions read descriptions of how a man dies 
by inhaling poison gas. I t is a death not much dif­
ferent, they found, from hanging or electrocution. 
Looking through glass panels of the hermetically 
sealed gas chamber, the reporters saw the doomed 
Chessman enter and without hesitation sit down in 
the death chair, watch without expression while his 
arms and legs were strapped down. A clutch of 
cyanide “ eggs,” poised above a tub of acid beneath 
the chair, was released by remote control. As the fumes 
rose to shroud the prisoner, his eyes bulged, his head 
jerked, he gagged and gasped as he seemed to be 
struggling against the straps. In two minutes his 
long jaw sagged and his body slumped.

According to medical men, the gaseous cyanide de­
rivatives are neurotoxins that attack the nerve centers 
and paralyze the cardiac and respiratory functions 
at the first deep whiff. The signs of a desperate death 
struggle, apparently the symptoms of great suffering, 
are again nothing more than unconscious reflexes.

So what is the meaning of all this scientific progress 
that we in America have made in the centuries and 
centuries since the boiling in oil, the crucifixions and 
the hanging of little children? We have perhaps re­
duced the coefficient of suffering to within a fraction 
of a second of the instantaneous extinction of the 
guillotine, which the late Albert Camus described as 
“ a crude surgery [without] any edifying character 
whatever.” We have reduced our lust for public 
blood-letting to boxing (which is becoming more and



14

more bloodless), auto racing and professional football. 
We no longer feed our wrongdoers to the crocodiles 
or invite VIPs to public hangings, as was the custom 
in Arizona, but we still kill our criminals in three 
quarters of our American states. We are far ahead 
of the rest of the world in the scientific technique of 
legal killing, but we are at least a century behind in 
the sociological, psychological, economic and humani­
tarian approach to the problem of crime and punish­
ment.

Why do we still kill our killers'? Do we imagine 
that we are doing justice, with no thought of vengeance ? 
Do we think we are eradicating crime1? Are we de­
luding ourselves that by snuffing out the lives of our 
misfits, our nitwits and our psychopathic personalities 
(who, our psychiatrists hasten to add, are not con­
genital psychopaths), are we creating a better world 
for ourselves? Do we really think that punishment 
will prevent crime, that killing murderers will prevent 
murder ?

Where do we draw the line? I t  is certain that we 
would consider the Oriental methods of execution cruel. 
We would consider other methods that have since been 
tried cruel. Does death by a firing squad or gas or 
electricity become less cruel because these methods are 
used in the name of law and order in the free democ­
racy of the United States of America ? The actual 
act of execution is not only cruel in and of itself, but 
it is more than cruel if we are to contemplate the 
days and the nights of a man who is awaiting execu­
tion in the name of society by a soverign state. This 
usage of cruelty and cold-blooded premeditated murder 
is certainly a poor example of the humanity of a 
civilized people.



15

Is capital punishment unusual? In the year 1966, 
one person was executed by the 37 states still retaining 
the death penalty. In the year 1965, with 9,850 homo- 
cides committed, there were 7 executions. Year after 
year the number of men convicted of homocide and 
sentenced to life continues to increase in every state 
penitentiary where capital punishment is a part of the 
law. The number of persons executed even before 
the unofficial moratorium of 1967 has been gradually 
decreasing which makes the use of the death penalty 
more and more unusual. I t  is the person who com­
mits the crime in an aroused community who is exe­
cuted. I t is the person without proper legal repre­
sentation. I t is the person without financial resources.

More and more the world has given recognition to 
the sacredness of life. Seventy-three countries have 
abolished the death penalty as well as 13 states 
of the United States. Yet, in no instance has there 
been an eruption of crime. For example, Michigan, 
which has not had capital punishment since 1947, over 
a period of years has had a lower rate of homocide 
than its adjoining states. The same is true with 
Maine, Rhode Island, Minnesota, Wisconsin, and North 
Dakota.

Often the death penalty is used as an excuse for 
not doing those things that should be done, such as 
improving corrections, developing a sounder approach 
to rehabilitation, and providing a more modern parole 
system. I t seems almost unbelievable that in the year 
1971 there should be continued reliance on the destruc­
tion of an occasional life with all its self-demeaning 
consequences. This is truly an instance where the Su­
preme 'Court of the United 'States speaking on behalf 
of the Constitution of the United States could restore 
justice to all.



16

CONCLUSION

For the reasons stated, the judgments of the Courts 
below should be reversed.

Respectfully submitted,

H on. E dmund G. B rown 
H on. D avid E . Cargo 
H on. E lbert N. Carvel 
H on. M ichael Y. D i S alle 
H on. P h il ip  Id. H ope 
H on. T heodore R. M cK eldin 
H on. E ndicott P eabody 
H on. Grant Sawyer 
H on. M ilton J .  S happ

By M ichael Y. D i Salle 
425 - 13th Street, N. W. 
Washington, D. C. 20004 
(202)-393-3300
Attorney for Amici Curiae

October, 1971