Maxwell v. Bishop Brief Amicus Curiae

    IJST TH E

GJmtrt nf %  Unttefo States
October Term, 1969

Ho. 13

W illiam L. Maxwell,, Petitioner, 
v.

O. E. B ishop, Superintendent of A rkansas 
State P enitentiary, Respondent.

On Writ ol Certiorari to the United States Court of Appeals 
for the Eighth Circuit

BRIEF FOR THE AMERICAN PSYCHIATRIC ASSOCIATION  
AS AMICUS CURIAE

W arren E. Magee 
1730 K  Street, N. W. 
Washington, D. C. 20006

J udah B est
Federal Bar Building West 
Washington, D. 0. 20006

Attorneys for the American 
Psychiatric Association

P ress op B yron S. A d a m s  P rinting, Inc., W ashington, D . C .



INDEX

Page
Interest of tlie Amicus Curiae.....................................  1
Argument .............................................    3
Conclusion ...................................................................  11

AUTHORITIES
Cases :

Bloom v. Illinois, 391 U.S. 194 (1968) ......................... 4
Caritativo v. California, 357 U.S. 549 (1958) ............  9
Nobles v. Georgia, 168 U.S. 398 (1897) .....................  9
Phyle v. Duffy, 334 U,S. 431 (1948) ............................  9
Solesbee v. Balkcom, 339 U.S. 9 (1950) ........................ 9

Other  A u th o ritie s :

Bluestone & McGahee, “ Reaction to Extreme Stress: 
Impending Death by Execution,”  119 Am.J. of
Psychiatry 393 (Nov. 1962) ...................................  8

Canada, Joint Committee of the Senate & House of 
Commons on Capital Punishment, Report (1956).. 7

Cohen, “ Psychiatrists Look at Capital Punishment” ,
29 Psychiatric Digest 45 (1968) ..........................  5

Coke, Third Institutes (1644) ..................................... 9
Hart, “ Punishment and Responsibility”  (1968) .......  5,7
New York State, Temporary Commission on Revision 

of the Penal Law and Criminal Code, Special Re­
port on Capital Punishment (1965) ...................  5

New York Times, Oct. 12, 1969 ...................................  10
Pennsylvania Joint Legislative Committee on Capital

Punishment, Report (1961) .................................  5
President’s Commission on Law Enforcement and Ad­

ministration of Justice, Report (The Challenge of 
Crime in a Free Society) (1967) ......................... 5



11 Index Continued

Page
Eeik, “ Freud’s View on Capital Punisliment,”  Tlie

Compulsion To Confess (1959) ......................... 4
Royal Commission on Capital Punishment 1949-1953,

Report (H.M.S.O. 1953) ....................................... 5
Transcript of Record, Rosenberg v. United States, Nos.

I l l  and 112 (Oct. Term 1952) ..............................  11
United Nations Department of Economic and Social 

Affairs, Capital Punishment (ST/SOA/SD/9-10)
(1968) ................................................................... 5

Washington Post, Nov. 4, 1969 ...................................  10
Weihofen, “ The Urge To Punish.”  (1956) .................. 5
West, Dr. Louis J., “ A Psychiatrist Looks at the Death 

Penalty” , Paper presented at the 122nd annual 
meeting of the American Psychiatric Association,
May 11, 1966 ....................................................... 6,7,8



IK  THE

j&upratw ©mart nf tty? Btutzz
October Term, 1969

Ko. 13

W illiam  L. Maxwell, Petitioner,
V.

O. E. B ishop, Superintendent of A rkansas 
S tate P enitentiary, Respondent.

On Writ of Certiorari to the United States Court of Appeals 
for the Eighth Circuit

BRIEF FOR THE AMERICAN PSYCHIATRIC ASSOCIATION 
AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

The American Psychiatric Association is a nonprofit 
organization incorporated in the District of Columbia 
with a present membership of over 17,000 psychiatrists 
located throughout the United States. Pounded in



2

Philadelphia in 1844 as the Association of Medical 
Superintendents of American Institutions for the In­
sane, the Association is the oldest continuing national 
medical society in the United States. In 1921 the 
present name of the organization was adopted, and 
in 1927 the Association was incorporated in the "Dis­
trict of Columbia.

The American Psychiatric Association is a society 
of medical specialists brought together by a com­
mon interest in the continuing study of psychiatry, 
in working together for more effective application 
of psychiatric knowledge to combat the metal illnesses, 
and in promoting mental health of all citizens. Among 
the Association’s earliest accomplishments was its par­
ticipation in the transfer of the mentally ill from 
jails and almshouses to medical institutions, and in 
the inauguration of a program of moral treatment 
that embodied the rudiments of modern community 
psychiatry. In the Association’s constitution its ob­
jectives are stated as follows:

To further the study of the nature, treatment, 
and prevention of mental disorders and to pro­
mote mental health.

To promote the care of the mentally ill.
To further the interests, the maintenance, and 

the advancement of standards of all hospitals for 
mental disorders, of out-patient services, and of 
all other agencies concerned with the medical, 
social, and legal aspects of these disorders.

To make available psychiatric knowledge to 
other branches of medicine, to other sciences, and 
to the public.

In furtherance of the purposes of the Association, 
its governing Board of Trustees adopted a resolution



3

at its December 12, 1969, meeting condemning capital 
punishment and authorizing the filing of this brief 
amicus curiae. The resolution of the Board of Trustees 
is set out below:

RESOLUTION
Resolved, that the American Psychiatric Asso­

ciation, through its Board of Trustees, opposes 
the death penalty and calls for its abolition. The 
best available scientific and expert opinion holds 
it to be anachronistic, brutalizing, ineffective and 
contrary to progress in penology and forensic 
psychiatry.

This brief is filed amicus curiae for the Association 
in order to bring before this Court some psychiatric 
views of capital punishment which have not hereto­
fore been stressed in this case. Consent of the parties 
for the filing of the amicus curiae brief has been 
sought and obtained. Copies of the parties’ letters 
will be submitted to the Clerk with this brief.

ARGUMENT

This brief amicus is prompted by the submission of 
respondent herein:

“ 1. What the case really involves is whether 
the jury system is a workable procedure in capital 
cases. Petitioner contends that he would have 
no complaint to a jury ’s deciding the question 
of life or death if framed by adequate rules. But 
it is earnestly submitted by respondent that 
a set of rules could never be drafted which would 
both protect the rights of the accused and the 
interest of the State.” 1

1 Brief for Respondent, p. 3.



4

In other words, respondent concedes that the death 
penalty, jury trials, and fairness to the parties can­
not co-exist. Since trial by jury is Constitutionally 
mandated, Bloom v. Illinois, 391 IJ.S. 194 (1968), the 
question on respondent’s own premises is whether 
the retention of the death penalty is of such im­
portance to society that a system which does not “ both 
protect the rights of the accused and the interest of 
the State”  may Constitutionally be retained. Assum­
ing, without conceding, that fundamental unfairness 
in a criminal case can ever be excused by such 
an argument of necessity, we here demonstrate that 
far from being essential to the welfare of society, the 
death penalty is in fact detrimental and thus cannot 
excuse a procedure which is fundamentally unfair. 
It is, therefore, unnecessary for us to discuss the 
broader Constitutional question of whether the reten­
tion of the death penalty itself violates the Fifth or 
Eighth Amendments.

We deem of special relevance to this presentation 
Sigmund Freud’s views on capital punishment:

[Pjunishment not infrequently offers, to those 
who execute it and who represent the community, 
the opportunity to commit, on their part, the 
same crime or evil deed under the justification of 
exacting penance. Only the fact that mankind 
shrinks from facing facts, from acknowledging 
the facts of unconscious emotional life, delays the 
victory of the concept of capital punishment 
as murder sanctioned by law.2 3

The irrationality of the imposition of capital punish­
ment has special concern for psychiatrists, for the

2Reik, “ Freud’s View on Capital Punishment” , The Compulsion
to Confess 473 (1959).



5

recurrent preoccupation with death by all human 
beings is a fact of special psychiatric importance and 
thereby places psychiatrists in a unique position to 
evaluate the death penalty.3

It is the position of amicus that imposition of the 
death penalty is so costly to society, to the adminis­
tration of a system of criminal justice, and to the 
sentenced individual as to require that this sanction 
be abolished. All of the serious studies of deterrence 
have concluded that there is no evidence that the 
death penalty has deterrent efficacy.4 5 Indeed, as has 
been pointed out,6 far from serving as a deterrent, 
capital punishment may actually serve as an incite­
ment to crime among various types of mentally un­
stable potential offenders:

(1) The suicidal group, which includes depressed 
patients who adopt the attitude that death is the only

3 See Cohen, “ Psychiatrists Look at Capital Punishment” , 29 
Psychiatric Digest 45 (1968).

4 “  It is generally agreed between the retentionists and abolition­
ists, whatever their opinions about the value of comparative studies 
of deterrence, that the data which now exists show no correlation 
between the existence of capital punishment and lower rates of 
capital crime.”  United Nations Department of Economic and 
Social Affairs, Capital Punishment (ST/SOA/SD/9-10) (1968) 
123. See also, Royal Commission on Capital Punishment 1949-1953, 
Report (H.M.S.O. 1953) 18-24, 58-59, 328-380; President’s Com­
mission on Law Enforcement and Administration of Justice, Report 
(The Challenge of Crime in a Free Society) (1967) 143; New 
York State, Temporary Commission on Revision of the Penal Law 
and Criminal Code, Special Report on Capital Punishment (1965) 
2; Pennsylvania Joint Legislative Committee on Capital Punish­
ment, Report (1961) 9, 20-29.

5E.g., Hart, “ Punishment and Responsibility” , 86-88 (1968);
Weihofen, “ The Urge to Punish”  161 (1956).



6

just punishment for their imagined sins and com­
mission of capital offenses is a means of securing it.

(2) Those to whom the lure of danger has a strong 
appeal. The prospect of being caught and being 
sentenced to death serves as an actual incentive to 
crimes of violence.

(3) The exhibitionist who is fascinated with the 
idea of pitting his wits against the police and there­
after being the central figure at a spectacular murder 
trial.

In his paper “ A Psychiatrist Looks at the Death 
Penalty”  presented at the 122nd annual meeting of 
the American Psychiatric Association on May 11,1966, 
Dr. Louis J. West elaborated upon the thesis that the 
death penalty breeds murder in that it becomes 
“ a promise, a contract, a covenant between the society 
and certain warped mentalities who are moved to 
kill”  (Id. at 3), by a series of case illustrations:

“ Recently an Oklahoma truck driver was stop­
ping for lunch in a Texas roadside cafe. A total 
stranger—a farmer from nearby—walked in the 
door and blew him in half with a shotgun. When 
the police finally disarmed the man and asked 
why he had done it, he replied, ‘ I  was just tired 
of living.’

“ In 1964 Howard Otis Lowery, a life-term con­
vict in an Oklahoma prison, formally requested 
a judge to send him to the electric chair after a 
District Court jury found him sane following 
a prison escape and a spree of violence. He said 
that if  he could not get the death penalty from 
that jury he would get it from another, and com­
plained that officials had failed to live up to an 
agreement to give him death in the electric chair



7

when he pleaded guilty to a previous murder 
charge in 1961.

“ Another murderer, James French, asked for 
the death penalty after he wantonly killed a motor­
ist who gave him a ride while hitchhiking through 
Oklahoma in 1958. However, he was ‘betrayed’ 
by his Court-appointed attorney who pleaded him 
guilty and got him a life sentence instead of the re­
quested execution. Three years later French 
strangled his cellmate for no obvious reason: a 
deliberate, premeditated slaying. He has been 
convicted three times for that crime, declared 
legally sane and sentenced to death each time. 
'This sentence he deliberately invites in well-or­
ganized, literate epistles to the Courts and in pro­
vocative challenges to the jurors. During a psy­
chiatric examination in 1965 French admitted to 
me that he had seriously attempted suicide several 
times in the past but ‘ chickened out’ at the 
last minute, and that a basic motive in his mur­
dering another prisoner was to force the State to 
deliver the electrocution to which he feels entitled 
and which he deeply desires.” 6

Thus, while there may be isolated and anecdotal 
reports of persons who have been dissuaded from 
committing capital crimes by fear of the death penalty, 
the worth of such fragile evidence7 as support for 
continuation of capital punishment is, in our opinion, 
clearly overcome by the documented findings of in­
stances where the death penalty encourages capital 
crime.8 Moreover, there is substantial evidence that

6 West, supra, at pp. 3-4.
7 Generally, such evidence is unsustained by objective evidence. 

See, e.g., Canada, Joint Committee of the Senate and House of 
Commons on Capital Punishment, Report (1956), paras. 29-33, 
43-52.

8 See particularly Hart, supra, n. 5, at p. 88.



8

the death penalty creates a breeding ground for psy­
chosis in death row. Very often prisoners deteriorate 
rapidly following the imposition of the death penalty. 
In their study of eighteen men and one woman await­
ing death in the Sing Sing death house, Drs. Harvey 
Bluestone and Carl L. McGahee9 noted in virtually 
every case studied the presence of degenerative psy­
chological effects, including delusion, persecution, and 
withdrawal as the human mind attempted, in the en­
vironment of death row, to set up defenses against in­
tense anxiety or the paralyzing depression occasioned 
by thought of the inevitable and impending end. Dr. 
West examined Jack Ruby, the convicted killer of Lee 
Harvey Oswald, a number of times and noted that by 
every objective medical criterion Ruby had become 
grossly psychotic since he had been sentenced to death.10 
The stress on Jack Ruby in the relatively short period 
of time between his sentence and death was rather 
less than that experienced by many condemned indi­
viduals who over the course of several years approach 
scheduled death down to the last month, or week, or 
minute, only to live through a breathtaking re­
prieve or perhaps face another countdown.

A good many of these doomed men require psy­
chiatric care prior to execution, but the requirements 
of legalized death dictate that when the psychiatrist 
has improved his patient’s condition, he must spe­
cify him as ready for execution. This phenomenon,

9 Bluestone and McGahee, “ Reaction to Extreme Stress: Im­
pending Death by Execution,”  119 Am.J. of Psychiatry 393 (Nov. 
1962).

10 West, supra,, at p. 5.



9

that only a sane man can be lawfully executed, has 
historic roots in the “ unbroken command of Eng­
lish law for centuries preceding the separation of 
the Colonies”  (Solesbee v. Balkcom, 339 U.S. 9, 20 
(1950) (dissenting opinion of Mr. Justice Frankfurt- 
ter)). At its earliest stages of development, the com­
mon law prohibited execution of the insane, “ because 
by intendment of law the execution of the offender is 
for example, ut poena ad paucos, meins ad omnes 
perveniat, as before is said: but so it is not when a 
mad man is executed, but should be a miserable spec­
tacle, both against law, and of extreame inhumanity 
and cruelty, and can be no example to others.”  
(Coke, Third Institutes 6 (1644)). That this phe­
nomenon of the mind breaking down under the stress 
of an impending execution is a commonplace of 
the death penalty is reflected by the several eases 
which have presented to this Court the problem of 
insanity supervening after sentence of death,11 and 
by the fact that virtually every state has provided 
some mechanism for suspension of execution of the 
death penalty upon insanity supervening after sen­
tencing.12 * *

In addition to the cost of administering capital 
cases from trial through final appeal and during the 
long periods of detention that invariably follow im­

u E.g., Caritativo v. California, 357 U.S. 549 (1958); Solesbee 
v. Balkcom, 339 U.S. 9 (1950); Phyle v. Duffy, 334 U.S. 431 (1948); 
Nobles v. Georgia, 168 U.S. 398 (1897).

12 See Mr. Justice Frankfurter ’s dissenting opinion and ap­
pendix of pertinent state legislation and judicial decisions, Soles­
bee v. Balkcom, 339 U.S. at 14 et seq.



10

position,18 there would appear to be a greater psychic 
strain upon the participants in a capital case than in 
a criminal matter involving lesser sanctions. There 
are a number of examples of capital cases where the 
persons who comprised the criminal jury publicly 
reflect upon and attempt to repudiate their prior deter­
mination. Thus, in the case at bar, eleven of the twelve 
jurors have publicly declared that “ upon reflection, 
they thought his [petitioner’s] sentence should be 
reduced to life imprisonment.” 14 Indeed, in the pres­
ent case the enormity of involvement in capital punish­
ment has motivated the complaining witness as well 
as the prosecuting attorney to disavow an interest in 
having petitioner executed.15 We submit, in short, 
that the harm caused by the necessity of processing a

18 See, for example, a recent newspaper account:
“ Billie Austin Bryant was sentenced yesterday to imprison­

ment for life in a maximum security federal penitentiary 
without possibility of parole for the murder of two FBI agents 
last January. * * * In deciding against the death penalty, 
Judge G-esell [of the United States District Court for the 
District of Columbia] said, he was not moved by any ‘ religious, 
philosophical, ethical, scientific or political controversy or 
criticism’ on capital punishment. ‘ Purely practical matters 
controlled the court’s decision in this case.’

Imposition of the death penalty, the judge said, would keep 
Bryant ‘ indefinitely in the death cell of our antiquated jail,’ 
where he cannot be controlled, while appealing the death 
sentence.

‘ The Court has concluded that it would not serve the ends 
of effective justice to allow the defendant the luxury of all 
the special attention a capital penalty would generate. ’ * * * > ’ 

Washington Post, Nov. 4, 1969, §*A, at 3, col. 5-6.
14 N.Y. Times, Oct. 12, 1969, § 6 (Magazine) at 60.

15 Id.



11

capital punishment case to its terrible conclusion16 is 
so costly as to warrant the conclusion that capital 
punishment is unnecessary to the progress of our 
society and should not be permitted in the case at bar.

CONCLUSION
For the foregoing reasons, amicus submits that the 

judgment of the Court of Appeals should be reversed.

Respectfully submitted,

W arren  E . M agee 
1730 K  Street, N. W. 
Washington, 1). C. 20006

J u d a h  B est
Federal Bar Building West 
Washington, D. C. 20006

Attorneys for the American 
Psychiatric Association

16 See the following declamation of a sentencing judge: “ What 
I am about to say is not easy for me. I have deliberated for hours, 
days and nights. I have carefully weighed the evidence. Every 
nerve, every fiber of my body has been taxed. I am just 
as human as are the people who have given me the power 
to impose sentence. I am convinced beyond any doubt of your 
guilt. I have searched the records—I have searched my conscience 
—to find some reason for mercy— for it is only human to be merciful 
and it is natural to try to spare lives. I am convinced, however, 
that I would violate the solemn and sacred trust that the people of 
this land have placed in my hands were I to show leniency to the 
defendants Rosenberg. ”  (Transcript of Record, p. 1616, Rosenberg 
v. United States, Nos. I l l  and 112, Oct. Term 1952).