Maxwell v. Bishop Petition for a Writ of Certiorari to the US Court of Appeals for the Eighth Circuit
Public Court Documents
January 1, 1968
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Brief Collection, LDF Court Filings. Maxwell v. Bishop Petition for a Writ of Certiorari to the US Court of Appeals for the Eighth Circuit, 1968. bfedde50-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d6b3f564-b545-4ff5-89c8-976c64bb8b13/maxwell-v-bishop-petition-for-a-writ-of-certiorari-to-the-us-court-of-appeals-for-the-eighth-circuit. Accessed May 19, 2025.
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IZa
In th e
(Emtrt 0! tty llnitsii States
O ctober T ee m , 1968
No..............
W illiam L. M axw ell ,
Petitioner,
—v.—
0. E. B ishop , Superintendent,
Arkansas State Penitentiary,
Respondent.
PETITION FOR A W RIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
J ack Greenberg
J am es M . N abr.it , III '
N orman C. A m aker
M ich ael M eltsner
J ack H im m elstein
E lizabeth B. DttB ois
10 Columbus Circle
New York, New York 10019
George H oward, J r .
329% Main Street
Pine Bluff, Arkansas 716017 $■
A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Attorneys for Petitioner
I N D E X
Citation to Opinions Below .......................-...................... 1
Jurisdiction .........~.............. -.................. —-........ -.............. 2
Questions Presented .......................- ............. ...... —- ....... 2
Constitutional and Statutory Provisions Involved....... 4
Statement ....... ................ -.......................................... -......... 4
A. The History of the Case ..................... - ..... — 4
1. Trial and Appeal ...................................-...... 4
2. First Federal Habeas Corpus Proceeding .... 5
3. Second Federal Habeas Corpus Proceeding 7
B. The District Court Proceedings Below ........... 9
1. Identification of the Cases to Be Studied .... 15
2. Data Concerning the Critical Variables
(Race and Sentence) and Statistical Analy
sis of the Relationship Between Them ....... 17
3. Data Concerning “ Control” Variables ....... 19
4. Results and Conclusions ............................ - 22
C. The Opinions Below .......... ...... .......... ..... — 28
1. The Issue of Racial Discrimination in Capi
tal Sentencing for Rape ...... ........... —-.....— 28
2. The Issues of Unfettered Jury Discretion
and of Simultaneous Trial on Guilt and
Punishment ............................................ - 33
PAGE
11
3. The Issue of Racially Discriminatory Jury
PAGE
Selection Procedures .............. ........................ 34
Reasons for Granting the W r it ........................................ 35
I. Petitioner’s Uncontradicted Proof of Racially
Discriminatory Imposition of the Death Penalty
on Negroes Convicted of Raping White Women,
Together with the Needless Encouragement of
Discriminatory Sentencing Occasioned by the
Arkansas Procedure of Simultaneously Sub
mitting the Issues of Guilt and Punishment to
a Jury Without Standards to Guide its Dis
cretion in Fixing Punishment, Requires Re
versal of the Judgment Below ...........-.............. 35
Introduction ....................................................... ...... 35
A. The Courts Below Erred in Holding That
Petitioner’s Proof of the Racially Discrim
inatory Death-Sentencing Practices of Ar
kansas Juries in Rape Cases Did Not Entitle
Him to Relief From the Death Sentence .... 45
B. The Courts Below Erred in Holding That Ar
kansas’ Procedure of Allowing Capital Juries
Absolute, Uncontrolled and Arbitrary Dis
cretion to Choose Between Punishments of
Life or Death, Does Not Violate the Rule of
Law Basic to the Due Process Clause of the
Fourteenth Amendment ....... ..... .............. ...... 58
C. The Courts Below Erred in Rejecting Peti
tioner’s Constitutional Attacks Upon the
Arkansas Single-Verdict Procedure for the
Trial of Capital Cases ................. ................. 65
I l l
II. The Courts Below Erred in Rejecting Peti
tioner’s Attack Upon the Arkansas Scheme of
Juror Selection, Which Provides the Oppor
tunity for Racial Discrimination Proscribed by
PAGE
Whitus v. Georgia .................................................. 75
Conclusion ..................... .................................-......................... 79
A ppendix A—
Memorandum Opinion of the District Court ....... la
Order of the District Court ............... ................ -..... 23a
Opinion of the Court of Appeals ................. ......... 24a
Judgment of the Court of Appeals .... .................. 56a
A ppendix B —
Constitutional and Statutory Provisions Involved 57a
T able of C ases
Adderly v. Wainwright, M.D. Fla., No. 67-298-Civ.-J—. 41
Alabama v. United States, 304 F.2d 583 (5th Cir. 1962),
aff’d, 371 U.S. 37 (1962) ................................. ....... . 56
Anderson v. Georgia, 390 U.S. 206 (1968) ....................... 78
Anderson v. Martin, 375 U.S. 399 (1964) .....................-46, 78
Andrews v. United States, 373 U.S. 334 (1963) ..........— 68
Application of Anderson, Cal.S.C., Crim. No. 11572 .... 41
Application of Saterfield, Cal.S.C., Crim. No. 11573 .... 41
Avery v. Georgia, 345 U.S. 559 (1953) ......... ................. 77
Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) ..... 48
Behrens v. United States, 312 F.2d 223 (7th Cir. 1962),
aff’d, 375 U.S. 162 (1963) .................... ............... ......68,69
IV
Bostwick v. South Carolina, 386 U.S. 479 (1967) ......... 78
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ................... 48
Brown v. Board of Education, 347 U.S. 483 (1954) ..... 46
Brown v. Mississippi, 297 U.S. 278 (1936) ...... .............. 42
Bruton v. United States, 391 U.S. 123 (1968) ........... 71
Bumper v. North Carolina, O.T. 1967, No. 1016 ..... 41
Burgett v. Texas, 389 U.S. 109 (1967) .... 72
Burton v. Wilmington Parking Authority, 365 U.S. 715
(1961) ..................................... ..................... .................... 58
Bush v. Kentucky, 107 U.S. 110 (1882) ........... ...... ........ 47
Chambers v. Hendersonville Board of Education, 364
F.2d 189 (4th Cir. 1966) ........... ............. ........ .............. 51
Cline v. Frink Dairy Co., 247 U.S. 445 (1927) ............... 59
Cobb v. Georgia, 389 U.S. 12 (1967) ...................... 78
Coleman v. United States, 334 F.2d 558 (D.C. Cir.
1964) ........................ ................... ..................................... 69
Connally v. General Construction Co., 269 U.S. 385
(1926) ....... ................... ...... ........... ...... ......... ........ ........ 59
Cooper v. Aaron, 358 U.S. 1 (1958) .......................... ..... 46
Couch v. United States, 335 F.2d 519 (D.C. Cir. 1956) 69
Cox v. Louisiana, 379 U.S. 536 (1965) ............................ 60
Cypress v. Newport News Hospital Association, 375
F.2d 648 (4th Cir. 1967) ................................ ............... 51
Dombrowski v. Pfister, 380 U.S. 479 (1965) ............... 60
Eubanks v. Louisiana, 356 U.S. 584 (1958) .................... 50
Evans v. Newton, 382 U.S. 296 (1966) .................. .... 58
Fay v. Noia, 372 U.S. 391 (1963) .................................... 59, 73
Ferguson v. Georgia, 365 U.S. 570 (1961) ....................... 69
Forcella v. New Jersey, O.T. 1968, Misc. No. 947 ......... 41
PAGE
V
Fowler v. Rhode Island, 345 U.S. 67 (1953) ....-.... ........ 46
Frady v. United States, 348 F.2d 84 (D.C. Cir. 1965).... 74
Freedman v. Maryland, 380 U.S. 51 (1965) ....... ......... 59
Gadsden v. United States, 223 F.2d 627 (D.C. Cir. 1955) 69
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ....33, 40, 61, 62
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................ 51,56
Green v. United States, 365 U.S. 301 (1961) ................ 69
Green v. United States, 313 F.2d 6 (1st Cir. 1963), cert.
denied, 372 U.S. 951 (1963) ....................................... . 68
Griffin v. California, 380 U.S. 609 (1965) ....................... 69
Hague v. C.I.O., 307 U.S. 496 (1939) ...... ............. 63
Hamilton v. Alabma, 376 U.S. 650 (1964) ....... ........... 46
Henry v. Mississippi, 379 U.S. 443 (1965) ...................... . 59
Hernandez v. Texas, 347 U.S. 475 (1954) ..................... 47, 50
Herndon v. Lowry, 301 U.S. 242 (1937) .......... ........ „ ..... 59
Higgins v. Peters, U.S. Dist. Ct. No. LR-68-C-176, E.D.
Ark., Sept. 25, 1968 ................................ ..... ........... ..... 36
Hill v. United States, 368 U.S. 424 (1962) ___ _______68, 69
Irvin v. Dowd, 366 U.S. 717 (1961) ....... .......... .......... — 63
PAGE
Jackson v. Denno, 378 U.S. 368 (1964) ............................ 71
Jenkins v. United States, 249 F.2d 105 (D.C. Cir. 1957) 69
Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) ...... . 51
Johnson v. Virginia, O.T. 1968, Misc. No. 307 ....... ....... 41
Lane v. Wilson, 307 U.S. 268 (1939) .............................. 56
Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) .......42,43
Louisiana v. United States, 380 U.S. 145 (1965) ....... 60,63
Lovely v. United States, 169 F.2d 386 (4th Cir. 1948) 70
Loving v. Virginia, 388 U.S. 1 (1967) .....•.......................... 36
V I
Malloy v. Hogan, 378 U.S. 1 (1964) ................................ 69
Marshall v. United States, 360 U.S. 310 (1959) ....... ..... 70
Matter of Sims and Abrams, 389 F.2d 148 (5th Cir.
1967) ....... ........ .........................................-.............. -..... 13,44
Maxwell v. Bishop, 385 U.S. 650 (1967) .................... .... 9
Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113
(1963) ............... ................................................... 2,5,15,48
Maxwell v. Stephens, 229 F. Supp. 205 (E.D. Ark.
1964), aff’d, 348 F.2d 325 (8th Cir. 1965), cert, denied,
382 U.S. 944 (1965) ...........................................2, 6, 7, 48, 75
McCants v. Alabama, O.T. 1968, Misc. No. 937 ............. 41
McLaughlin v. Florida, 379 U.S. 184 (1964) .............. . 50
Mempa v. Rhay, 389 U.S. 128 (1967) ..... ...... ................ 60,68
Mooney v. Holohan, 294 U.S. 103 (1935) ............ .......... 42
Moore v. Dempsey, 261 U.S. 86 (1923) ........................... 42
Moorer v. South Carolina, 368 F.2d 458 (4th Cir.
1966) ................................. ..............................................13,44
PAGE
N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) ................... 46
N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ........ .......... 59
Neal v. Delaware, 103 U.S. 370 (1881) ........................ 47
Niemotko v. Maryland, 340 U.S. 268 (1951) ...............46,63
Norris v. Alabama, 294 U.S. 587 (1935) ..................... ..50, 56
Olmstead v. United States, 277 U.S. 438 (1928) ........... 42
Oyama v. California, 332 U.S. 633 (1948) ..........— ..... 51
People v. Hines, 390 P.2d 398, 37 Cal.Rptr. 622 (1964) 69
People v. Love, 53 Cal.2d 843, 350 P.2d 705 (1960) ...... 63
Pope v. United States, 372 F.2d 710 (8th Cir. 1967) ....33-34
Reece v. Georgia, 350 U.S. 85 (1955) ............................ 50
Rochin v. California, 342 U.S. 165 (1952) ..................... 42
vii
Sanders v. United States, 373 U.S. 1 (1963) ................ 8
Shelley v. Kraemer, 334 U.S. 1 (1948) ....................... 46
Shepherd v. Floi’ida, 341 U.S. 50 (1951) ----------- ------- 42
Simmons v. United States, 390 U.S. 377 (1968) ------ 70,72
Sims v. Georgia, 384 U.S. 998 (1966) ............... 8,9,35
Sims v. Georgia, 389 U.S. 404 (1967) .....................8,35,78
Sims v. Georgia, 385 U.S. 538 (1967) ........ 8,35,72
Skinner v. Oklahoma, 316 U.S. 535 (1942) .....-63, 65, 68, 72
Smith v. Cahoon, 283 U.S. 553 (1931) ........ ............... . 59
Specht v. Patterson, 386 U.S. 605 (1967) .... ........ 61,68,72
Spencer v. Texas, 385 U.S. 554 (1967) ____33, 34, 71, 72, 73
Sullivan v. Georgia, 390 U.S. 410 (1968) ...................... 78
Tigner v. Texas, 310 U.S. 141 (1940) ........................... 62
Townsend v. Burke, 334 U.S. 736 (1948) ............. — .... 73
United States v. Beno, 324 F.2d 582 (2d Cir. 1963) — 70
United States v. Curry, 358 F.2d 904 (2d Cir. 1965) .... 74
United States v. Duke, 332 F.2d 759 (5th Cir. 1964) .... 51
United States v. Jackson, 390 U.S. 570 (1968) .......... 69, 73
United States v. Johnson, 315 F.2d 714 (2d Cir. 1963),
cert, denied, 375 U.S. 971 (1964) __________________ 68
United States v. National Dairy Prods. Corp., 372 U.S.
29 (1963) ...................... ............ .................. ............... . 62
United States ex rel. Rucker v. Myers, 311 F.2d 311
(3d Cir. 1962), cert, denied, 374 U.S. 844 (1963) ..... 71
United States ex rel. Scoleri v. Banmiller, 310 F.2d
720 (3d Cir. 1962), cert, denied, 374 U.S. 828
(1963) ........................................ ............ .......... ............. 70-71
Watson v. City of Memphis, 373 U.S. 526 (1963) ------ 46
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) .....73, 78
Whitus v. Georgia, 385 U.S. 545 (1967) .......4,8,34,56,75,
76, 77, 78, 79
PAGE
V l l l
Williams v. Georgia, 349 U.S. 375 (1953) ................... 78
Williams v. New York, 337 U.S. 241 (1949) ................... 67
Williams v. Oklahoma, 358 U.S. 576 (1959) ....... ......... . 67
Winters v. New York, 333 U.S. 507 (1948) ................ . 59
Witherspoon v. Illinois, O.T. 1967, No. 1015................... 41
Witherspoon v. Illinois, 391 U.S. 510 (1968) .......39,60,62,
67, 74
Yiek Wo v. Hopkins, 118 U.S. 356 (1886) .......46, 56, 57, 63
S tatutes
Federal:
Civil Rights Act of April 9, 1866, eh. 31, §1, 14 Stat. 27 45
Enforcement Act of May 31, 1870, ch. 114, §§16, 18,
16 Stat. 140, 144 ............................... ................... .......... 45
Rev. Stat. §1977 (1875), 42 U.S.C. §1981 (1964) ........... 45
10 U.S.C. §920 (1964) ...... .................... ........................... 37
18 U.S.C. §2031 (1964) .................................................... 37
28 U.S.C. §1254(1) ............................................................. 2
State:
Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. 1958) 36
Ark. Stat. Ann., §3-118 (1956) ......... .......... ............. ........ 4
Ark. Stat. Ann., §3-227 (1956) ........... ......... ................. . . 4
Ark. Stat. Ann., §39-208 (1962) .................... ................. . 4
Ark. Stat. Ann., §41-3403 (1962) ........ ..... ............. .......4,36
Ark. Stat. Ann., §§41-3405, 3411 ---- ------------------- ------ 36
Ark. Stat. Ann., §43-2153 (1962) ................................ 4, 5, 36
D.C. Code Ann. §22-2801 (1961) ............................ ......... 37
Fla. Stat. Ann. §794.01 (1964 Cum. Supp.)
PAGE
36
IX
Ga. Code Ann. §§26-1302, 26-1304 (1963 Cum. Supp.).~. 36
Ky. Rev. Stat. Ann. §435.090 (1963) ......................... 36
La. Rev. Stat. Ann. §14:42 (1950) _______________ 36
Md. Ann. Code §§27-463, 27-12 (1967 Cum. Supp.) ....... 36
Miss. Code Ann. §2358 (Recomp. Vol. 1956) ................ 36
Vernon’s Mo. Stat. Ann. §559.260 (.1953) ................. . 36
Nev. Rev. Stat. §§200.363, 200.400 (1967) ..................... 36, 63
N.C. Gen. Stat. §14-21 (Recomp. Vol. 1953) ............. ..... 36
Okla. Stat. Ann. Tit. 21, §§1111, 1114, 1115 (1958) ____ 36
S.C. Code Ann. §§16-72, 16-18 (1962) .......................... 36
Tenn. Code Ann. §§39-3702, 39-3703, 39-3704, 39-3706
(1955) ................. ............ ....... ............... .......................... 36
Tex. Pen. Code Ann., arts. 1183, 1189 (1961) ............... 37
Va. Code Ann. §§18.1-44, 18.1-16 (Repl. Vol. 1960) ..... 37
Oth er A uthorities
American Law Institute, Model Penal Code §210.6
(P.O.D. May 4, 1962) ................................ ................. 64, 71
American Law Institute, Model Penal Code, Tent.
Draft No. 9 (May 8, 1959) .......... ........ ............. - ....... 67
Cong. Globe, 39th Cong., 1st Sess. 475 (1/29/1866);
1759 (4/4/1866) .................................................... -....... 47
Cong. Globe, 39th Cong., 1st Sess. 1758 (4/4/1866) .... 47
9 Crime and Delinquency 225 (1963) ---- -------------- ------ 39
Fairman, Does the Fourteenth Amendment Incorporate
the Bill of Rights, 2 Stan. L. Rev. 5 (1949) ............. 45
PAGE
X
PAGE
Finkelstein, The Application of Statistical Decision
Theory to the Jury Discrimination Cases, 80 Harv.
L. Bev. 338 (1966) ........ ............................... ................ . 56
Handler, Background Evidence in Murder Cases, 51 J.
Grim. L., Crim. & Pol. Sci. 317 (1960) ....................... 67
H. L. A. Hart, Murder and the Principles of Punish
ment: England and the United States, 52 Nw. U.L.
Rev. 433 (1957) ____________ ____ ___ ______________ 67
Hartung, Trends in the Use of Capital Punishment,
284 A nn als 8 (1952) .......... ..... ..... ..................... .......... 39
H ouse oe Com m ons S elect C om m ittee on Capital
P u n is h m e n t , R eport (H.M.S.O. 1930) ..................... 67
Knowlton, Problems of Jury Discretion in Capital
Cases, 101 IT. Pa. L. Rev. 1099 (1953) ____________ 67
Letter of Deputy Attorney General Ramsey Clark to
the Honorable John L. McMillan, Chairman, House
Committee on the District of Columbia, July 23,1965,
reported in New York Times, July 24, 1965 ............ 40
Lewis, The Sit-In Cases: Great Expectations, 1963
S uprem e C ourt R eview 101 _______ ___ ________ _____59-60
M a t t ic k , T he U n exam ined D eath (1966) ...... ............... 39
N ew Y ork S tate T em porary C ommission on R evision
op th e P en al L aw and Cr im in al Code I nterim R e
port (Leg. Doc. 1963, No. 8) (February 1, 1963) ..... 67
New York Times Magazine, Sunday, April 2, 1967 ....... 40
Note, 109 U. Pa. L. Rev. 67 (1960) .................. ..... ............. 60
Packer, Making the Punishment Fit the Crime, 77
Harv. L. Rev. 1071 (1964) ...... ...... ............ ..... .......... 64,65
Polls, International Review on Public Opinions, Yol.
II, No. 3 (1967) 39
PAGE
R oyal C ommission on Capital P u n is h m e n t , 1949-1953,
R eport (H.M.S.O. 1953) (Cmd. No. 8932) ............... 67
S ellin , T he D eath P en alty (1959), published as an
appendix to American Law Institute, Model Penal
Code, Tent. Draft No. 9 (May 8, 1959) ....................... 39
tenBroek. Thirteenth Amendment to the Constitution
of the United States, 39 Calif. L. Rev. 171 (1951) .... 45
U nited N ations, D epartm ent oe E conomic and S ocial
A ffairs , Capital P u n is h m e n t (ST/SOA/SD/9-10)
(1968) ............................................................................. 37,39
United States Department of Justice, Bureau of Pris
ons, National Prisoner Statistics, No. 32; Execu
tions, 1962 (April 1963) .... ....................... ............. .....22, 37
United States Department of Justice, Bureau of Pris
ons, National Prisoner Statistics, No. 42; Execu
tions, 1930-1967 (June 1968) ............. ................. 22,39,40
Wiehofen, The Urge to Punish (1956) ........................... 40
In t h e
(tart nf Imtei*
October T e rm , 1968
No..............
W illiam L. M axw ell ,
Petitioner,
— v . —
0. E. B ishop , Superintendent,
Arkansas State Penitentiary,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioner prays that a writ of certiorari issue to re
view the judgment of the United States Court of Appeals
for the Eighth Circuit entered on July 11, 1968.
Citation to Opinions Below
The opinion of the United States District Court for the
Eastern District of Arkansas denying petitioner’s appli
cation for a writ of habeas corpus is reported at 257 F.
Supp. 710, and is set out in Appendix A hereto, pp. la-22a
infra. The opinion of the United States Court of Appeals
for the Eighth Circuit affirming the denial of petitioner’s
application is not yet reported and is set out in Appendix
A hereto, pp. 24a-55a infra.
2
Opinions at earlier stages of this proceeding are re
ported. The opinion of the Supreme Court of Arkansas
affirming petitioner’s conviction for the crime of rape and
sentence of death is found sub nom. Maxwell v. State, 236
Ark. 694, 370 S.W. 2d 113 (1963). Opinions on disposition
of an earlier application for habeas corpus are found
sub nom,. Maxwell v. Stephens, 229 F. Supp. 205 (E. D.
Ark. 1964), aff’d, 348 F.2d 325 (8th Cir. 1965), cert, denied,
382 U.S. 944 (1965).
Jurisdiction
The judgment of the United States Court of Appeals
for the Eighth Circuit was entered July 11, 1968. Juris
diction of this Court is invoked under 28 U.S.C. §1254(1).
Questions Presented
1. Whether petitioner’s proof that Arkansas juries have
followed a systematic practice of racial discrimination in
sentencing men to death for the crime of rape establishes
a prima facie case which, in the absence of any rebuttal
or explanation by the State, requires the constitutional
invalidation of the death sentence imposed upon petitioner,
a Negro convicted of rape of a white woman! This ques
tion is framed by a record of uneontradieted expert sta
tistical testimony based upon an exhaustive study of the
patterns of capital sentencing by Arkansas juries in rape
cases. It is presented against the background of Arkansas’
procedures for capital sentencing which leave unfettered
and undirected discretion to the jury to bring in a verdict
of death or life, and which deny the defendant a separate
hearing for the presentation of evidence upon which ra
tional sentencing choice may be based. The question sub
sumes the issues:
3
(a) Whether the courts below correctly held that the
principles developed by this Court in several contexts rela
tive to a prima facie showing of racial discrimination are
inapplicable to proof of racial discrimination by juries in
capital sentencing ?
(b) Whether the showing by petitioner below did not
make out a prima facie case which, under proper consti
tutional standards for the evaluation of proof, compelled
a finding of racial discrimination in the absence of any
rebuttal evidence?
(c) Whether the courts below correctly held that peti
tioner could not prevail upon an accepted showing of state
wide discrimination in capital sentencing for rape, because
he did not in addition prove (i) a similar pattern of dis
crimination in the particular county in which he was tried
(where the cases were too few to establish a pattern), or
(ii) that the particular jury which sentenced him was
racially motivated?
(d) Whether the Court of Appeals correctly held that
petitioner could not prevail as a matter of law on his
challenge to his death sentence as discriminatorily im
posed, because the consequence of his argument would
temporarily leave only white defendants subject to the
death penalty under present Arkansas procedures?
2. Whether Arkansas’ practice of permitting the trial
jury absolute discretion, uncontrolled by standards or di
rections of any kind, to impose the death penalty violates
the Due Process Clause of the Fourteenth Amendment?
3. Whether Arkansas’ single-verdict procedure, which
requires the jury to determine guilt and punishment simul
taneously and a defendant to choose between presenting
mitigating evidence on the punishment issue or maintain-
4
4. Whether the Arkansas scheme of juror selection em
ployed at petitioner’s trial provided the opportunity for
racial discrimination proscribed by Whitus v. Georgia, 385
U.S. 545 (1967)?
Constitutional and Statutory
Provisions Involved
1. This case involves the Fifth and Fourteenth Amend
ments to the Constitution of the United States.
2. The case also involves Arkansas Statutes Annotated
§§3-118, 3-227, 39-208, 41-3403, 43-2153. The text of these
provisions is set forth in Appendix B hereto, pp. 57a-60a,
infra.
mg his privilege against self-incrimination on the guilt
issue, violates the Fifth and Fourteenth Amendments?
Statement
A. The History of the Case.
1. Trial and Appeal.
Petitioner, William L. Maxwell, a Negro, was tried in
the Circuit Court of Garland County, Arkansas, in 1962
for the rape of a 35 year old, unmarried white woman.
Pursuant to Arkansas statutes and practice, the issues of
guilt and punishment were simultaneously tried and sub
mitted to the jury, which was given no instructions limit
ing or directing its absolute discretion, in the event of
conviction, to impose a life sentence (by returning the
“verdict of life imprisonment” authorized by Ark. Stat.
Ann. §43-2153 (1964 Repl. vol.), App. B., p. 60a infra),
or a death sentence (which follows as a matter of course
5
The jury convicted petitioner of rape and failed to
return a life verdict, whereupon he was sentenced to
death. His motion for a declaration of the unconstitu
tionality of §43-2153, on the grounds that Arkansas juries
had followed a pattern of racial discrimination in the
application of the death penalty for rape, was overruled
by the trial court. This contention was raised, together
with numerous other federal and state-law claims, on his
appeal to the Supreme Court of Arkansas. That court
rejected the contention on the merits, taking the view that
petitioner’s then available evidence of racial discrimina
tion—Arkansas prison statistics showing 19 executions of
Negroes for rape and one execution of a white for rape
between 1913 and 1960—failed factually to support the
claim that Arkansas juries were acting discriminatorily,
at least in the absence of “ evidence . . . even remotely
suggesting that the ratio of violent crimes by Negroes
and whites was different from the ratio of the executions.”
Maxwell v. State, 236 Ark. 694, 701, 370 S.W.2d 113, 117
(1963). Finding petitioner’s other claims without merit,
the court affirmed his conviction and death sentence. No
petition for certiorari was filed here seeking review of that
decision.
2. First Federal Habeas Corpus Proceeding.
In 1964, petitioner filed an application for federal habeas
corpus, raising among other contentions the claims (a)
that the Equal Protection Clause of the Fourteenth Amend
ment was violated by his death sentence pursuant to a
practice of systematic racial discrimination in the exer
cise of capital sentencing discretion by Arkansas juries;
(b) that the Due Process Clause and its incorporated
from the jury’s failure to return a verdict of life imprison
ment).
6
prohibition of cruel and unusual punishment were vio
lated by the imposition of the death penalty for rape;
and (c) that the Equal Protection Clause was violated by
the systematic exclusion of Negroes from his trial jury,
in particular because the jurors had been selected under
Arkansas statutory procedures by reference to poll tax
books in which racial identifications were required by law.
The district court found that no sufficient showing of racial
discrimination in capital sentencing had been made and,
rejecting petitioner’s other federal contentions, denied the
writ. Maxwell v. Stephens, 229 F. Supp. 205 (E. D. Ark.
1964). The Court of Appeals for the Eighth Circuit
affirmed after considering and rejecting petitioner’s avail
able evidence in support of his claim of racial discrimina
tion in capital sentencing. This included both the statis
tics which he had previously presented relating to the
number of Negro and white executions in Arkansas for
the crime of rape since 1913, and sentencing statistics cov
ering Garland, Pulaski and Jefferson Counties, Arkansas
from January 1, 1954, to the date of petitioner’s habeas
corpus hearing in 1964. Petitioner had attempted to dem
onstrate on the basis of these statistics, by reference to the
race of the defendants who had been sentenced to death and
of the victims of the crimes of which they had been con
victed, that there was a state-wide pattern of discriminatory
capital sentencing for Negroes; but the court found, on that
record, that petitioner’s “ statistical argument is not at all
persuasive” , 348 F.2d 325, 330 (8th Cir. 1965).1
1 Petitioner’s then available evidence in support of his claim of
racial discrimination was summarized in the court’s opinion as
set forth below:
“ The evidence as to the state at large, showed that, in the
50 years since 1913, 21 men have been executed for the crime
of rape; that 19 of these were Negroes and two were white;
that the victims of the 19 convicted Negroes were white fe
males; and that the victims of the two convicted whites were
7
3. Second Federal Habeas Corpus Proceeding.
July 21, 1966 the present application for federal habeas
corpus was filed, alleging that new evidence had become
available since the disposition of petitioner’s prior habeas
appeal with respect to the claim of systematic racial dis
crimination in the exercise of capital sentencing discre
tion by Arkansas juries. Petitioner also raised two re
lated claims not previously made: (1) That Arkansas’
“ single-verdict” procedure for capital sentencing, under
which the issues of guilt and punishment are simultane
ously tried and submitted to the trial jury, is federally
also white females. As to Garland County, for the decade
beginning January 1, 1954, Maxwell’s evidence was to the
effect that seven whites were charged with rape (two of white
women and the race of the. other victims not disclosed), with
four whites not prosecuted and three sentenced on reduced
charges; that three Negroes were charged with rape, with one
of a Negro woman not prosecuted and another of a Negro
receiving a reduced sentence, and the third, the present defen
dant, receiving the death penalty. With respect to Pulaski
County for the same decade, there were 11 whites (two twice)
and 10 Negroes charged, with the race of the victim of two
whites and one Negro not disclosed. Three whites received a
life sentence. One white was acquitted of rape of a Negro
woman. One received a sentence on a reduced charge, two
were dismissed, two cases remained pending, one was not
prosecuted, and the last was executed on a conviction of
murder. Of the Negroes, three, with white victims and two
with Negro victims received life. One case was dismissed, one
was not arrested, two with Negro victims were sentenced on
reduced charges, and one, Bailey, with a white victim, was
sentenced to death. In Jefferson County eight Negroes were
charged, with the cases against five dismissed, another dis
missed when convicted on a murder charge, and two receiving
sentences on reduced charges. Sixteen whites were charged.
One was charged three times with respect to Negro victims
and as to two of these charges received five years suspended
on a guilty plea. Two others received three year sentences.
One is pending, one was executed, and the rest were dismissed.
The race of four defendants was not disclosed; three of these
cases were dismissed and one is pending.” 348 F.2d at 330
(footnotes omitted).
unconstitutional because it deprives the defendant of a
fair trial on either issue and compels his election between
his privilege against self-incrimination and his rights of
allocution and to present evidence necessary for rational
sentencing choice; (2) that Arkansas’ practice of allowing
juries absolute, uncontrolled, standardless discretion to
sentence to life or death affronts the fundamental rule of
law expressed by the Due Process Clause. Petitioner also
renewed his claim of unconstitutional jury selection in
light of this Court’s grant of certiorari the previous month
in Sims v. Georgia, 384 U.S. 998 (1966).2
Following a full evidentiary hearing of the new evidence
proffered, the district court rejected all of petitioner’s
claims in an opinion filed on August 26, 1966, and re
ported at 257 F. Supp. 710. The court, in the exercise
of its discretion under Sanders v. United States, 373 U.S. 1
(1963), entertained those claims dealing with Arkansas’
death-sentencing procedures and with the exercise by Ar
kansas juries of sentencing discretion in the imposition of
the death penalty. However, the court declined to review
again the claim of racial discrimination in jury selection,
stating at 257 F. Supp. 713, App. A, p. 5a infra, that:
“ [tjliis court sees no occasion to reexamine the question and
is not persuaded to do so by the action of the Supreme
2 This Court granted certiorari to review the following question,
among others:
“ Is a conviction constitutional where: (a) local practice pur
suant to state statute requires racially segregated tax books
and county jurors are selected from such books;”
Though this question was briefed and argued in the Sims case,
the Court initially decided the case on a different ground, Sims v.
Georgia, 385 U.S. 538 (1967). It dealt with the question in another
ease decided at the same time, Whitus v. Georgia, 385 U.S. 545
(1967), discussed more fully infra, Argument II at pp. 75-79; and
in a later stage of the Sims ease, the Court held that Sims’ juries
were unconstitutionally selected, citing Whitus. Sims v. Georgia,
389 U.S. 404 (1967).
9
The district court refused to issue a certificate of prob
able cause for appeal and also refused to stay petitioner’s
execution, then scheduled for September 2,1966. On August
30, 1966, Judge Matthes of the Eighth Circuit Court of
Appeals refused applications for a certificate and for
stay of the death sentence. On September 1, 1966, Mr.
Justice White granted a stay of petitioner’s execution,
and on January 23, 1967, this Court reversed Judge
Matthes and ordered that a certificate of probable cause
be granted. Maxwell v. Bishop, 385 U.S. 650 (1967).
The appeal proceeded in the United States Court of
Appeals for the Eighth Circuit. There petitioner pressed
his constitutional claims relating to the discriminatory
exercise by Arkansas juries of capital sentencing discre
tion, to the facial invalidity of the Arkansas capital sen
tencing procedures, and to racial discrimination in jury
selection. All of petitioner’s claims were rejected by the
Court of Appeals in an opinion filed July 11, 1968.
B. The District Court Proceedings Below.
Petitioner’s second federal habeas corpus petition, giv
ing rise to the proceedings now sought to be reviewed, al
leged that new evidence had become available with respect
to his claim of racial discrimination in capital sentencing.
It averred, specifically, that a systematic study of Arkan
sas rape convictions during a twenty-year period had been:
“ conducted in the summer of 1965, as part of a study
of the application of the death penalty for rape in
eleven southern states. This comprehensive study re
quired the work of 28 law students throughout the
summer, the expenditure of more than $35,000 and
Court in recently granting certiorari in the case of Sims v.
Georgia, 384 TJ.S. 998. . . . ”
10
numerous hours of consultative time by expert crimi
nal lawyers, criminologists and statisticians. Peti
tioner, who is an indigent, could not have himself at
any time during the prior proceedings in his cause
conducted such a study.” (Petition, para. 7(b), quoted
by the Court of Appeals, App. A, p. 29a infra. [The
study is described in detail at pp. 13-27 infra.])
At a pre-trial conference, the district court was advised
that petitioner intended to present at an evidentiary hear
ing the results of this comprehensive study. Its pre-trial
conference order reflected that petitioner’s evidence would
consist in part of “ the testimony of Dr. Marvin E. W olf
gang, a criminologist and statistician on the faculty of
the University of Pennsylvania, and . . . certain studies
and a report made by Professor Wolfgang,” which in
turn were based upon “ [b]asic data . . . gathered by law
student field workers from various sources and . . . re
corded on individual case schedules.” Accordingly, the
order provided for procedures to facilitate the establish
ment of “ the validity and accuracy of the individual case
schedules” 3:
3 The “ individual case schedules” referred to are the completed
forms, for each case of conviction of rape, of the printed schedule
captioned “ Capital Punishment Survey” admitted as Petitioner’s
Exhibit, P-2 (TV. 57). [Tr. — references in this petition are to the
original transcript of the district court proceedings.] The use of
this printed schedule in the process of data-gathering was ex
plained by Dr. Wolfgang at Tr. 22-25. Instructions given the
field researchers in use of the schedule are included in the record
as an exhibit, Petitioner’s Exhibit P-3 (Tr. 25-27, 57), but, in
view of the respondent’s concession that the facts gathered by
the researchers were accurate, see text infra, no effort was made
in the testimony to demonstrate the steps taken in gathering the
data to assure reliability. See Tr. 25-27. Also, in light of the
court’s pre-trial conference order, text, immediately infra, the
completed “ individual case schedules” were not introduced in
evidence.
1 1
“It was agreed that counsel for Maxwell will make
those schedules available for the inspection of coun
sel for Respondent not later than August 10 and will
also furnish the names and addresses of the field work
ers who assembled the original data in Arkansas. Not
later than August 15 counsel for Respondent will
advise opposing counsel and the Court as to whether,
to what extent, and on what grounds he questions
any individual case schedule.
“ Subject to objections on the ground of relevancy
and materiality, and subject to challenges to individual
case schedules, Professor Wolfgang will be permitted
to testify as an expert witness and to introduce his
report as a summary exhibit reflecting and illustrat
ing his opinions. Again subject to objections or chal
lenges to individual schedules there will be no occa
sion for Petitioner to introduce the schedules in evi
dence or prove the sources of the information re
flected thereon or therein, or to call the individual
field workers as witnesses.” (Pre-Trial Conference
Order, p. 4.)
When the case came on for hearing, counsel for peti
tioner announced that no objections had been filed by the
respondent to any of the individual case schedules, so
that “ all of the facts in the schedules are treated as
though they are true, and Dr. Wolfgang’s testimony is
to be treated as though based not on schedules, but on
facts which are established of record . . . As I under
stand it, the basic facts on which Dr. Wolfgang’s testi
mony and his analysis are made are treated as estab
lished for the purpose of this case” (Tr. 8). Counsel for
respondent and the court agreed with this statement (Tr.
8-9), the court settling that:
12
“ The basic facts—that is, the age of the victim, the
race, and so on, of the individual defendants, or the
alleged victims— the basic evidentiary facts, as the
Court understands it, stand admitted, and that Dr.
Wolfgang in testifying, or anybody else who testifies
about these basic figures, will not be faced with an
objection as to the authenticity of his basic data.”
(Tr. 9.)4 * 6
On this understanding, Dr. Marvin E. Wolfgang was
called as a witness for petitioner. In its written opinion,
the district court termed him a “well qualified sociologist
and criminologist on the faculty of the University of
Pennsylvania” and noted that his “ qualifications to testify
as an expert are not questioned and are established” (257
F. Supp. at 717-718; App. A, p. 14a infra).* (Similarly,
the Court of Appeals was later to find that Dr. Wolfgang
“ obviously is a man of scholastic achievement and of ex
perience in his field,” whose “ ‘qualifications as a criminol
ogist have [concededly] never been questioned by the re
spondent.’ ” App. A, p. 30a infra.) Dr. Wolfgang’s testi
mony occupies some ninety pages of the transcript of the
hearing (Tr. 10-99); in addition, “ a written report pre
pared by him, together with certain other relevant docu
mentary material, was received in evidence without ob
jection” (257 F. Supp. at 717-718; App. A, pp. 14a-15a
infra). The written report referred to, Petitioner’s Exhibit
P-4, was received as substantive evidence (Tr. 57), and will
4 The Court of Appeals accepted this procedure without ques
tion. App. A, p. 29a infra.
6 Interrogation of Dr. Wolfgang establishing his qualifications is
at Tr. 10-14. In addition, Petitioner’s Exhibit P-1, a curriculum
vitae of Dr. Wolfgang, was received in evidence to establish his
qualifications, Tr. 14-16. Dr. Wolfgang is one of the foremost
criminologists in the country.
13
be relied upon together with Dr. Wolfgang’s testimony
in the summary of evidence that follows.
The district court’s opinion fairly summarizes the “back
ground facts of the Wolfgang study” :6
“In early 1965 Dr. Wolfgang was engaged by the
NAACP Legal Defense and Educational Fund, Inc. to
make a study of rape convictions in a number of south
ern States, including Arkansas, to prove or disprove
the thesis that in those States the death penalty for
rape is disproportionately imposed upon Negro men
convicted of raping white women. Dr. Wolfgang was
apprised of the fact that the results of his study might
well be used in litigation such as the instant ease.
“As far as Arkansas is concerned, Dr. Wolfgang
caused Mr. John Monroe, a qualified statistician, to
select a representative sample of Arkansas counties
with reference to which the study would be made. The
sample drawn by Mr. Monroe, who testified at the
hearing, consisted of 19 counties in the State.
“During the summer of 1965 law students interested
in civil rights problems were sent into Arkansas to
gather basic data with respect to all rape convictions
in the sample counties for a period beginning January
1, 1945, and extending to the time of the investigation.
Data obtained as to individual cases were recorded on
individual case schedules. When the work was com
pleted, the individual schedules were turned over to
Dr. Wolfgang for evaluation.
6 The general scope of the study, which gathered data concerning
every case of conviction for rape during a 20-year period in 250
counties in eleven States, is described more fully in the affidavit
of Norman C. Amaker, Esq., attached as Exhibit 2 to the petition
for habeas corpus. For other descriptions, see the Memorandum
and Order, dated July 18, 1966, appended to the opinion in Moorer
V South Carolina, 368 F.2d 458 (4th Cir. 1966) ; and the opinion
in Matter of Sims and Abrams, 389 F.2d 148 (5th Cir. 1967).
14
“ The investigation brought to light 55 rape convic
tions during the study period involving 34 Negro men
and 21 white men. The offenses fell into three cate
gories, namely: rapes of white women by Negro men;
rapes of Negro women by Negro men; and rapes of
white women by white men. No convictions of white
men for raping Negro women were found.” (257 F.
Supp. at 718, App. A, pp. 15a-16a infra. See also the
opinion of the Court of Appeals, App. A, pp. 30a-31a
infra.)
The design of the investigation was described by Dr.
Wolfgang as a function of its objectives “ to collect the
appropriate kind of data necessary to provide some kind
of empirical study, either in support of, or in rejection
of, the underlying assumption” (Tr. 17)—i.e., that there is
racially differential imposition of the death penalty for
rape in the States studied (Tr. 16-17)—and “ to give the
empirical data the appropriate kind of statistical analysis
that would satisfy scientific requirements” (Tr. 17). The
basic research methodology involved these several stages:
(1) identification of the cases to be studied; (2) collection
of data concerning the critical variables (race of defen
dant, race of victim, sentence imposed) in each case, and
statistical analysis of the relationship between these vari
ables; (3) collection of data concerning other variables
(“ control” variables) in each case, and statistical analysis
of the relationship between each such variable and the
critical variables (race and sentence) to determine whether
the operation of the control variables could explain or
account for whatever relationship might be observed be
tween the critical variables; (4) reporting of results of
the analysis. It is convenient to summarize the evidence
presented to the district court under these four heads,,
with respect to the Arkansas study. Such a summary can
15
only imperfectly portray the character and range of the
Wolfgang study. We respectfully invite the Court’s at
tention to the whole record of the hearing below.
1. Identification of the Cases to Be Studied.
Data were gathered concerning every case of conviction
for rape during a 20-year period (January 1, 1945 to the
summer of 1965) in a representative sample of Arkansas
counties (Tr. 21). Two points should be noted here.
First, because the study begins with cases of conviction
for rape, it addresses itself at the outset to the possibility
suggested by the Supreme Court of Arkansas on the direct
appeal in petitioner’s case, Maxivell v. State, 236 Ark. 694,
370 S.W.2d 113 (1963), that any showing that Negroes are
more frequently sentenced to death for rape than whites
might be accounted for by the supposition that Negroes
commit rape, or are convicted of rape, more frequently
than whites. What is compared in this study is the rate
of capital sentencing of Negro and white defendants all of
whom have been convicted of rape.
Second, in order to give a valid basis for generalization
about the performance of Arkansas juries, every case of
conviction for rape in a randomly selected sample of Ar
kansas counties was included in the study (Tr. 62-63). The
county sampling procedure was employed because re
sources available for the field study did not permit the
gathering of data in every county in the State (Tr. 21,
107-111), and because it is “unnecessary to collect every
individual case, so long as the sample is presumed to be
a valid representation—a valid representative one” (Tr.
21). At Dr. Wolfgang’s request, a random sample (Tr.
128) of Arkansas’ 75 counties was drawn by Mr. John Mon
roe, a “qualified statistician” (257 F. Supp. at 718; App. A,
p. 15a infra), with seventeen years experience in sampling
16
and surveys (App. A, pp. 34a-35a infra).1 Testifying below,
Mr. Monroe described in detail the sampling- process used
(Tr. 107-141) to draw counties “ in such a manner that the
sample counties within each state would provide a repre
sentative sampling for that state so that inferences could
be drawn for each state in the sample and for the region
as a whole” (Tr. 107). Nineteen counties in the State (Tr.
28, 118; 122-123; Petitioner’s Exhibit P-5, appendices C,
D ; Petitioner’s Exhibit P-7) containing more than 47 per
cent of the total population of Arkansas (Petitioner’s Ex
hibit P-4, p. 1; Tr. 130) were drawn by a “ theoretically
unbiased” random method (Tr. 118). See App. A, pp. 35a-
36a infra. Mr. Monroe testified that “ a sample is the pro
cedure of drawing* a part of a whole, and if this sample
is drawn properly according to the law of chance, or with
known probability, by examining a small part of this whole,
and using the appropriate statistical methods, one can
make valid inferences about the whole population from
examining a small part” (Tr. 116). He concluded that his
own sample of Arkansas counties “ is a very reliable sample
under the restrictions that we were confined to, the num
ber of counties that could be investigated during the time
allotted. In other words, for the size of the sample, the
19 counties, it was a very reliable and highly acceptable
sample insofar as sampling statistics are concerned” (Tr.
118; see also Tr. 130, 132). “ I would say that, as far as
the sample is concerned, the inferences drawn from this
sample, as described, are valid for the State of Arkansas”
(Tr. 135).
(These conclusions were not questioned by the courts
below, although, as we shall see, both courts were con- 7
7 Mr. Monroe’s qualifications appear at Tr. 104-106. His biog
raphy, in summary form, was admitted as Petitioner’s Exhibit P-10
(Tr. 144-145).
17
cerned over the circumstance that Mr. Monroe’s areal
sampling methods resulted in the selection of counties that
lie principally in the southern and eastern portions of the
State. This circumstance was apparently not thought to
impugn the sample’s factual representativeness—to the
contrary, as the record shows and the district court found
(257 F. Supp. at 720, App. A, p. 19a infra), the sampling
method was “acceptable statistically”—but it was given
importance by the legal theory of both courts that peti
tioner was required to show that Garland County, not the
State of Arkansas as a whole, applied the death penalty
for rape discriminatorily. The legal issue thus raised is
one of those on which this petition for certiorari seeks
review. See pp. 55-56 infra. What it is important to note
here is simply that neither court below contested the un
contradicted factual assertions of Mr. Monroe, as an ex
pert statistician, that conclusions drawn from data gathered
in his sample counties would be valid for the State of
Arkansas. See App. A, p. 35a infra.)
2. Data Concerning the Critical Variables (Race
and Sentence) and Statistical Analysis of the
Relationship Between Them.
For each individual case of conviction of rape, data were
gathered as to race of defendant, race of victim, and sen
tence imposed (Tr. 28-30).8 Using approved statistical
techniques, analysis was performed to determine the re
lationship among these variables (Petitioner’s Exhibit P-4, * 10
8 The sources from which these data, and other data relating to
the individual cases of rape convictions studied, were obtained is
described in detail in Petitioner’s Exhibit P-3, pp. 1-6. See note
10, infra. Because the accuracy of all the basic data was con
ceded by the respondent below, see text supra at pp. 10-12, methods
of data collection and data sources were, not developed at the
hearing, and Exhibit P-3 was put in merely for the information
of the court.
18
pp. 2-4). Briefly, the analysis involved these steps: (a)
erection of a scientifically testable “null hypothesis” “as
serting there is no difference in the distribution . . . of the
sentence of death or life imprisonment imposed on Negro
or white defendants” (Tr. 30-31; see also Tr. 31-32); (b)
calculation of a “ theoretical or expected frequency” (Tr.
33) which represents the number of Negro defendants and
the number of white defendants (or, more specifically, the
number of Negro defendants convicted of rape of white
victims, and of all other defendants) who would be ex
pected to be sentenced to death if the null hypothesis (that
sentence is not related to race) were valid (Tr. 32-33) ; (c)
comparison of this “ theoretical or expected frequency” with
the frequency of death sentences actually observed in the
collected data for each racial combination of defendants
and victims; and (d) determination whether the discrep
ancy between the expected and observed frequencies is suf
ficiently great that, under generally accepted statistical
standards, that discrepancy can be said to be a product
of the real phenomena tested, rather than of the operation
of chance within the testing process, sampling, etc. (Tr.
33-37). “ I f that difference reaches a sufficiently high pro
portion, sufficiently high number, then the assertion can be
made, using again the traditional cut-off point,9 that the
difference is significant and could not have occurred by
9 Dr. Wolfgang explained in considerable detail the procedures
by which relations among items of observed data are tested statis
tically for reliability, “not only in sociology and social sciences,
but other disciplines as well, . . . such as medical research” (Tr.
36). The basic procedure used in the present study—the chi-square
method of statistical analysis and the traditional measure of statis
tical “significance” which treats as real observed relationships that
could not have occurred more than five times out of one hundred
by chance (expressed in the formula P < .05)— is described at
Tr. 33-37, with explication of these matters by reference to the
familiar example of head-or-tail coin tossing.
19
chance” (Tr. 34). See App. A, pp. 30a-31a infra. The result
of this analysis, then, is the determination whether there
is a relationship or “ association” between Negro defend
ants convicted of rape of white victims and the death sen
tence imposed by Arkansas juries; and if so, whether that
relationship or association is “ significant” in the statistical
sense that the possibility of its occurrence by chance is so
slight as properly to be discounted. (See Petitioner’s Ex
hibit P-4, pp. 2-4.) (As we shall see infra, such a relation
ship, showing disproportionately frequent death sentencing
of Negroes convicted of rape of white victims, was in
fact established by the data.)
3. Data Concerning “ Control” Variables.
Data gathering did not stop, however, with the facts of
race and sentence. As explained by Dr. Wolfgang, data
were collected on numerous other circumstances attending
each case of conviction for rape that “were felt to be rele
vant to the imposition of the type of sentence” (Tr. 40).
These data were sought by the exhaustive inquiries that
occupy 28 pages of small type on the data-gathering form
that is Petitioner’s Exhibit P-2—inquiries concerning the
defendant (age; family status; occupation; prior criminal
record; etc.), the victim (age; family status; occupation;
husband’s occupation if married; reputation for chastity;
etc.), defendant-victim relationship (prior acquaintance if
any; prior sexual relations if any; manner in which defen
dant and victim arrived at the scene of the offense), cir
cumstances of the offense (number of offenders and vic
tims; place of the offense; degree of violence or threat
employed; degree of injury inflicted on victim if any;
housebreaking or other contemporaneous offenses com
mitted by defendant; presence vel non at the time of the
offense of members of the victim’s family or others, and
threats or violence employed, or injury inflicted if any,
20
upon them; nature of intercourse; involvement of alcohol
or drugs; etc.), circumstances of the trial (plea; presenta
tion vel non of defenses of consent or insanity; joinder of
defendant’s rape trial with trial on other charges or trial
of other defendants; defendant’s representation by counsel
(retained or appointed) at various stages of trial and sen
tencing; etc.), and circumstances of post-trial proceedings
if any. See App. A, pp. 31a-32a infra.
The district court aptly characterized these factors as
“ Generally speaking, and subject to certain exceptions, . . .
variables . . . which reasonably might be supposed to either
aggravate or mitigate a given rape” (257 F. Supp. at 718
n. 8; App. A, p. 16a infra). Their exhaustive scope appears
upon the face of Petitioner’s Exhibit P-2, and from Dr.
Wolfgang’s testimony: “ The principle underlying the con
struction of the schedule [Petitioner’s Exhibit P-2] was
the inclusion of all data that could be objectively collected
and transcribed from original source documents that were
available to the investigators—the field investigators— such
as appeal transcripts, prison records, pardon board rec
ords, and so forth, and whatever was generally available
was included. In this sense, it was a large eclectic ap
proach that we used for the purpose of assuring ourselves
that we had all available data on these cases” (Tr. 96-97;
see also Tr. 65-70). Dr. Wolfgang conceded that some data
potentially pertinent to sentencing choice were not collected
__for example, strength of the prosecution’s case in each
individual rape trial—but explained that this was because
such items were not information “that we could objectively
collect” (Tr. 97). See App. A, p. 32a infra.
The pertinency of these data to the study was that some
of the many circumstances investigated, “ rather than race
alone, may play a more important role in the dispropor-
21
tionate sentencing to death of Negro defendants convicted
of raping white victims” (Tr. 40).
“ These factors, not race, it could be argued, may be
determining the sentencing disposition; and Negroes
may be receiving death sentences with disproportionate
frequency only because these factors are dispropor
tionately frequent in the case of Negro defendants.
For example, Negro rape defendants as a group, it
may be contended, may employ greater violence or do
greater physical harm to their victims than do white
rape defendants; they may more frequently be repre
sented at their trials by appointed rather than retained
counsel, and they may more frequently commit con
temporaneous offenses, or have a previous criminal rec
ord, etc.” (Dr. Wolfgang’s written report, Petitioner’s
Exhibit P-4, p. 5.)
In order to determine whether the control variables ex
plained or accounted for the racial disproportion in death
sentencing, analysis had to be made of the relationship
between each such factor for which data were available
and sentence on the one hand, race on the other. Dr. W olf
gang explained that no variable could account for the sig
nificant association between Negro defendants with white
victims and the death sentence unless that variable “was
significantly associated with the sentence of death or life”
(Tr. 41), and unless it also was significantly associated
with Negro defendants convicted for rape of white victims
(Tr. 41-42).
A variable, even though associated with such Negro de
fendants (i.e., found disproportionately frequently in their
cases), could not furnish a non-racial explanation for their
over-frequent sentence to death unless it was itself affect
ing the incidence of the death sentence (as evidenced by
22
its significant association with the death sentence) (see,
e.g., Tr. 45-46); while a variable which was not associated
with Negro defendants convicted of rape of white victims
could also not explain the frequency with which they, as
a class, were sentenced to death (e.g., Tr. 49-52). (See gen
erally Petitioner’s Exhibit P-4, pp. 6-7.)
4. Results and Conclusions.
Based on his study of the data gathered for the past
twenty years in the State of Arkansas, Dr. Wolfgang con
cluded categorically that “compared to all other rape de
fendants, Negroes convicted of raping white victims were
disproportionately sentenced to death,'” (Dr. Wolfgang’s
written report, Petitioner’s Exhibit P-4, p. 8, para. 3 (origi
nal emphasis).) ‘W e found a significant association be
tween Negro defendants having raped white victims and
the disproportionate imposition of the death penalty in com
parison with other rape convictions” (Tr. 52; see also Tr.
37-39). Indeed, the disparity of sentencing between Negroes
with white victims and all other racial combinations of con
victed defendants and victims was such that it could have
occurred less than twice in one hundred times by chance
(Tr. 37-38)—i.e., if race were not really related to capital
sentencing in Arkansas, the results observed in this twenty-
year study could have occurred fortuitously in two (or
less) twenty-year periods since the birth of Christ. Thus,
the Wolfgang study for the first time documents the dis
crimination which previously available data—not collected
systematically or in a form permitting rigorous scientific
analysis—could only suggest: for example, the Federal
Bureau of Prisons’ National Prisoner Statistics for execu
tions during the period 1930-1962 (Petitioner’s Exhibit
P-6, Tr. 99-101), which disclose that more than nine times
as many Negroes as whites were put to death for rape dur
23
ing this period in the United States, although the numbers
of Negroes and whites executed for murder were almost
identical.
A considerable part of Dr. Wolfgang’s testimony was ad
dressed to the question whether this disproportion could be
explained away or accounted for by the operation of other,
non-racial (“control” ) variables. He testified that after the
Arkansas data were collected, he considered and subjected
to analysis every such variable or factor about which suf
ficient information was available to support scientific study
(Tr. 56, 64-65, 78-80, 97). With respect to a substantial
number of the variables investigated by the field research
ers, their exhaustive exploration10 failed to provide enough
information for study. (E.g., victim’s reputation for
10 By reason of the court’s pre-trial order and respondent’s con
cession under the procedures fixed by that order that the responses
recorded by the field researchers on the individual case schedules
were accurate (see pp. 10-12, supra), petitioner did not present in
any systematic fashion below testimony relating to the data-gather-
ing procedures. The concession, of course, included the accuracy
of the response “ unknown” wherever that appeared on a schedule,
and—as counsel for petitioner pointed out in the district court,
without disagreement from respondent or the court—the response
“unknown” “means that research, using the State’s records and
using all of the resources that we have poured into this ease, is
unable to make any better case than this” (Tr. 155-156).
The nature of the research effort involved is indicated by Peti
tioner’s Exhibit P-3 (Tr. 25-27, 57), the instructions to the field
researchers. Those instructions include the following, at pp. 4-6:
“Whether the work is done by a single researcher or divided
among more than one, the course of investigation of any spe
cific case will ordinarily involve the following steps:
“ (1) Inspection of the county court docket books for en
tries relating to the case.
“ (2) Inspection of all other records relating to the case
available at the county court: file jackets, transcripts, witness
blotters, letter files, pre-sentence reports.
“ (3) Inspection of appellate court records in any case where
appeal was taken. Appellate court records include the doeket
of the appellate court, its file jacket, record on appeal (if
24
chastity, Tr. 79.) Notwithstanding respondent’s pre-trial
concession of the accuracy of the field researchers’ re
maintained on file in the appellate court), court opinion or
opinions if any, and appellate court clerk’s letter file.
“ (4) Inspection of prison records of the defendant if he
was incarcerated in a prison which maintains records.
“ (5) Inspection of pardon board records in any case where
the defendant submitted any application for executive clem
ency.
“ (6) If the foregoing sources fail to provide sufficient in
formation to complete the schedule on the ease, interview of
defense counsel in the case.
“ (7) If the foregoing sources fail to provide sufficient in
formation to complete the schedule on the case, inspection of
local and area newspaper files for items pertaining to the case.
“Three general directives should be kept in mind:
“ (A ) We are concerned with the sentencing decision, in
each case, of a particular official body at a particular time
(i.e., the trial judge or jury; the pardon board). Every such
body acts— can act— only on the facts known to it at the time
it acts. For this reason, the “facts” of a ease called for by
the schedule mean, so far as possible, the facts perceived by
the sentencing body. Facts which we know to have been
known to the sentencing body are preferred facts, and sources
which disclose them are preferred sources. (A trial transcript,
where it exists, is therefore the most desirable source of facts.)
Other sources are of decreasing value as the likelihood de
creases that the facts which they disclose were known to the
sentencing body. (A newspaper story which purports to re
port trial testimony, therefore, is to be preferred to one which
purports to report the facts of the offense on the basis of
other sources of information.)
“ (B) After this survey is completed, its results will be made
the basis for allegations of fact in legal proceedings. If the
allegations are controverted, it will be necessary to prove them,
and the proof will have to be made within the confines of
ordinary evidentiary rules, including the hearsay principle,
best evidence rule, etc. For this reason, sources of facts which
are judicially admissible evidence to prove the facts which
they disclose are preferred sources. Official records are most
desirable in this dimension; then the testimony of witnesses
having knowledge of the facts (for example, defense counsel),
finally, secondary written sources (for example, newspapers).
25
sponses on the individual case schedules, including the
response “unknown” where that appeared (see note 10
supra), counsel for respondent attempted to suggest in
cross-examination of Dr. Wolfgang that these gaps in in
formation impugned the underlying data-gathering process.
Dr. Wolfgang replied:
“ the absence of information, I would be unwilling to as
sert is due to lack of any effort. Very diligent efforts
were made by the field investigators to collect the in
formation—from court clerks, from police records,
from prisons, from other sources available in the com
munity—and they were instructed to follow down each
piece of information, each source of information to its
fullest extent, so that I have no reason to doubt that
the effort was made to collect the data” (Tr. 80).
Wherever an official record or document may contain perti
nent information, inspect it yourself if you can; don’t take
somebody’s word for what is in it.
“ (C) Many of the faets you need to know will have been
contested in the judicial and post-judicial proceedings lead
ing to a defendant’s sentence and its execution. We have no
method for resolving factual disputes or, ordinarily, for know
ing how the triers of fact resolved them. As an invariable
rule, then, the facts should be reported in the light most
favorable to the prosecution, and most unfavorable to the
defendant, in every case. If a trial transcript exists, and if
it contains the testimony of the complaining witness and of
the defendant, resolve all conflicts of testimony in favor of
the complaining witness and report the facts as they might
reasonably have been found by a jury which credited the
complaining witness, drew all rational inferences from her
testimony most strongly against the defendant, discredited
the defendant, and refused to draw any disputable inferences
in his favor. Treat all other sources in a similar fashion. In
interviews with defense counsel, try to impress upon counsel
that you have to have the facts as they might have appeared
in the worst light for his client. In reading newspaper items
which give conflicting versions of the facts, adopt the version
most unfavorable to the defendant.”
2 6
His testimony as a whole makes it clear that— although, as
he put it: “ Information is always limited” (Tr. 72)—he
was confident that he had enough of it to support his con
clusions. (See particularly Tr. 76-79.)
He was able to subject twenty-two “quite relevant vari
ables” (Tr. 78)—in addition to race of defendant, race of
victim, and sentence—to analysis. (See Petitioner’s Ex
hibit P-4, Appendix A ; Tr. 29, 52.) Most of these were not
significantly associated with sentence, and so Dr. W olf
gang could assert categorically that they did not account
for or explain the disproportionately frequent death sen
tencing of Negroes with white victims (Tr. 42-46, 53-54).
These variables included the defendant’s age, whether he
was married, whether he had dependent children, whether
he had a prior criminal record; the victim’s age, whether
she had dependent children; whether the defendant and
victim were strangers or acquaintances prior to the offense;
place where the offense occurred (indoors or outdoors),
whether the defendant committed an unauthorized entry in
making his way to that place; whether the defendant dis
played a weapon in connection with the offense; degree of
seriousness of injury to the victim; and the defendant’s
plea (guilty or not guilty), type of counsel (retained or
appointed), and duration of trial (Tr. 47, 53; Petitioner’s
Exhibit P-4, p. 9, para. 5; Petitioner’s Exhibit P-5). Two
variables were shown to bear significant association with
sentence: death sentences were more frequent in the eases
of defendants who had a prior record of imprisonment, and
in the cases of defendants who committed other offenses
contemporaneously with the rape. But because these vari
ables were not associated with race,11 Dr. Wolfgang con-
11 Statistical analysis of the association between these variables
and race of the defendant disclosed no significant association.
When defendant-victim racial combinations were considered, the
27
eluded that they also could not account for the fact that
Negroes convicted of rape of white victims were dispropor
tionately often sentenced to death (Tr. 47-52, 54; Peti
tioner’s Exhibit P-4, pp. 8-9, para. 4; Petitioner’s Exhibit
P-5). Other variables appeared so frequently or so in
frequently in the total population of cases studied that
statistical analysis of them was “unnecessary and impos
sible” : the fact that they appeared to characterize all cases
(or no cases), irrespective of sentence or of racial com
binations of defendant and victim, pointed to the conclu
sion that they were not available explanations for the re
lationship observed between death sentences and Negroes
with white victims. These variables included the victim’s
reputation for chastity and prior criminal record; whether
the defendant and victim had had sexual relations prior
to the occasion of the rape; the degree of force employed by
the defendant; whether the victim was made pregnant by
the rape; and whether the defendant interposed a defense
of insanity at trial (Tr. 54-55, 94-95, Petitioner’s Exhibit
P-5). Summarizing, Dr. Wolfgang found that no variable
of which analysis was possible could account for the ob
served disproportionate frequency of sentencing to death
of Negroes convicted of rape of white victims (Tr. 56-57).
His ultimate conclusion was:
“ On the basis of the foregoing findings, it appears
that Negro defendants who rape white victims have
been disproportionately sentenced to death, by reason
of their race, during the years 1945-1965 in the State
of Arkansas.” (Dr. Wolfgang’s written report, Peti
tioner’s Exhibit P-4, pp. 13-14 (emphasis added).)
numbers of cases for which information was available became too
small for statistical treatment, but on the basis of trend of as
sociation, Dr. Wolfgang concluded that here too there was no
association of significance.
28
C. The Opinions Below.
1. The Issue of Racial Discrimination in
Capital Sentencing for Rape.
Although respondent presented no evidence of any sort
in rebuttal, the district court disagreed with Dr. W olf
gang’s conclusions. It accepted his finding that the differ
ential sentencing to death of Negroes with white victims
“ could not be due to the operation of the laws of chance”
(257 F. Supp. at 718; App. A, p. 16a infra) ; but supposed,
again without any sort of evidentiary presentation by the
State, that it might be due to some factor respecting which
statistical analysis had not been possible, such as the issue
of consent in rape cases (257 F. Supp. at 720-721; App. A,
p. 21a infra). The Court remarked that the “variables
which Dr. Wolfgang considered are objective . . . broad and
in instances . . . imprecise” ; that in many of the individual
rape cases studied “ the field workers were unable to obtain
from available sources information which might have been
quite pertinent” ; and that “Dr. Wolfgang’s statistics really
reveal very little about the details” of comparative indi
vidual cases of rape. (257 F. Supp. at 720; App. A, p.
20a infra.) While recognizing that “the sample drawn by
Mr. Monroe seems to have been drawn in a manner which
is acceptable statistically” (257 F. Supp. at 720; App. A,
p. 19a infra), the court noted that the counties ran
domly chosen had turned out not to be evenly geographically
dispersed, and not to include many counties of sparse Negro
population {ibid.). Garland County, which was not itself in
cluded in the sample, is a county of sparse Negro popula
tion located in a portion of the State in which the sample
counties fell less frequently than elsewhere. For those
reasons, the district court declined to conclude that “ the
Garland County jury which tried petitioner was motivated
by racial discrimination when it failed to assess a punish
29
ment of life imprisonment” (257 F. Supp. at 719; App. A,
p. 18a infra)— (a subjective proposition, parenthetically,
which petitioner’s counsel had explicitly disavowed any in
tention to undertake to prove). With regard to the State
of Arkansas generally, the district court thought that the
“cases studied, and the number of death sentences imposed
are simply too few in number to afford convincing proof”
of racial discrimination (257 F. Supp. at 720; App. A, p.
19a infra). Placing some reliance on the language in Dr.
Wolfgang’s written report to the effect that the report was
“ preliminary” and “tentative” (257 F. Supp. at 720; App.
A, p. 20a infra), the court concluded:
“ On the meager material before it the Court is sim
ply not prepared to convict Arkansas juries of uncon
stitutional racial discrimination in rape cases. As a
matter of fact, the Court doubts that such discrimina
tion, which is a highly subjective matter, can be de
tected accurately by a statistical analysis such as was
undertaken here. Statistics are elusive things at best,
and it is a truism that almost anything can be proved
by them.” (257 F. Supp. at 720; App. A, pp. 20a-21a
infra.)
This conclusion appears to rest upon rejection of peti
tioner’s contention that the principle of a prima facie show
ing of discrimination, developed by this Court in jury-
exclusion cases and in other cases where factual proof of
racially discriminatory conduct is material, applies also to
the proof of racially discriminatory sentencing. Specifi
cally, petitioner urged in the district court that a show
ing of racially differential treatment, made by a rigorous
and exhaustive statistical study such as Dr. Wolfgang’s,
which concluded under accepted scientific standards that
Negroes were being markedly more frequently sentenced
30
to death than whites, in a fashion that could not be ac
counted for on any other ground than race, constituted a
prima facie demonstration of discrimination, compelling a
finding of discrimination in the absence of any rebuttal or
explanation by the State.12 The district court’s opinion does
not expressly speak to this contention, but its findings make
apparent its rejection of the prima facie principle. The
court consistently speaks in terms of petitioner’s failing to
carry the burden of proof of discrimination.13 And al
though, as we have seen, it accepts Dr. Wolfgang’s con
clusion that Negroes have been differentially sentenced to
death in numbers that “could not be due to the operation
of the laws of chance” (257 F. Supp. at 718; App. A, p.
16a infra,), the court—notwithstanding total failure of the
State to rebut or explain this differential— declines to find
discrimination.
The Court of Appeals for the Eighth Circuit unequivo
cally rejected petitioner’s contention “that a prima facie
12 “Under these circumstances, we suggest that where, first of
ail, a showing has been made that the death penalty is dis
proportionately frequently applied to Negroes and, secondly,
an attempt has been made exhaustively to find every detail
and every condition that will account for that discrimination,
and every condition that could be analyzed was analyzed and
shown not to account for that discrimination, and where your
failure to account for other circumstances arises from the
fact data is unavailable from state records, that we have
amply made out a prima facie case.” (Tr. 156; see Tr. 155-
157.)
13 “ The cases studied, and the number of death sentences imposed
are simply too few in number to afford convincing proof of
the proposition urged by petitioner.
“ . . . The. Court is simply not prepared to convict Arkansas
juries of unconstitutional racial discrimination. . . .
“ . . . the Court is simply not convinced. . . .” (257 F. Supp. at
720; App. A, pp. 19a-21a infra.)
31
ease of racially discriminatory imposition of the death
penalty for rape in Arkansas has now been established and
remains unrebutted by the State.” (App. A, p. 25a infra;
see pp. 38a-39a infra.) Again the rejection appears bot
tomed upon a holding that the prima facie principle is in
applicable. Dr. Wolfgang’s findings, the court notes, “ do
not deny that generally the burden of demonstrating dis
crimination in penalty imposition is on the one who asserts
it.” (App. A, p. 41a infra.) Petitioner has not carried that
burden, in the court’s view, for several reasons. “Like
the trial court, . . . although perhaps not for each and all
of the reasons it advanced, we feel that the [statistical]
argument does not have validity and pertinent application
to Maxwell’s case.” (App. A, p. 40a infra.)
The court of appeals, in general, appears to concede
the general validity of Dr. Wolfgang’s methodology, and
even of his conclusion that a pattern of racial discrimina
tion has been shown. It finds that Dr. Wolfgang testified
his report was “preliminary” only “ in the sense that the
other states for which data was being collected would be
included in the final report.” (App. A, pp. 33a-34a infra.)
And the court accepts that there are “ recognizable indicat
ors” “ that the death penalty for rape may have been dis-
criminatorily applied over the decades in that large area of
states whose statutes provide for it.” 14 Nevertheless the
court holds, in effect, that this statistical showing of dis
crimination is irrelevant because it does “not show that the
14 App. A, p. 44a, infra. Despite the generality of the court’s
language, this finding must relate specifically to the State of Ar
kansas. This is so because no proof was offered on this record of
the results of the Wolfgang study in other States. The only evi
dence of record with regard to areas outside Arkansas was Peti
tioner’s Exhibit P-6, the National Prisoner Statistics. These show
raw numbers of executions for rape and murder, by race, for all
the States. (See pp. 22-23, supra.) They purport to do no more
than show that Dr. Wolfgang’s conclusions for Arkansas are con
formable to the national pattern.
32
petit jury which tried and convicted Maxwell acted in his
case with racial discrimination” (App. A, p. 41a infra; see
pp. 41a-45a infra):
“ [WJhatever . . . suspicion it may arose [sic] with
respect to southern interracial rape trials as a groujj
over a long period of time, and whatever it may dis
close with respect to other localities, we feel that the
statistical argument does nothing to destroy the in
tegrity of Maxwell’s trial.” (App. A, pp. 42a-43a infra.)
This is so because the Arkansas statistics “do not relate
specifically to Garland County where this particular offense
was committed and where Maxwell was tried and con
victed.” (App. A, p. 40a infra.)
“ [W]hile it is true that it is in a sense the state
which prosecutes, nevertheless the county has a char
acter, too. . . . Yet the Garland County statistics [pro
duced in the earlier habeas corpus proceeding] . . .
afford no local support to the petitioner’s statistical
argument. The evidence produced at the prior hearing
and at this one discloses only Maxwell as a recipient of
the death penalty in Garland County for rape.
“ . . . [W ]e are not yet ready to nullify this peti
tioner’s Garland County trial on the basis of results
generally, but elsewhere, throughout the South.” (App.
A, p. 42a infra.)
In addition, the court of appeals attacked the “legal
logic” of any argument which would make it constitutionally
impossible for a Negro to receive the death penalty upon
conviction of rape of a white woman, while white men
were still theoretically subject to the death penalty for
rape. (App. A, p. 43a infra.) The court said that this result
would itself constitute a violation of the Constitution and
that “it is the law, not probabilities or possibilities, which
must afford equal protection.” (App. A, p. 44a infra.) In
all, the court concluded: “We are not certain that, for
Maxwell, statistics will ever be his redemption. . . .” (App.
A, p. 44a infra.)
2. The Issues o f Unfettered Jury Discretion and o f
Simultaneous Trial on Guilt and Punishment.
Petitioner’s related claims attacking Arkansas’ capital
sentencing procedure on its face were likewise rejected on
the merits by the district court and the court of appeals.
As to the contention that the unguided and uncontrolled
discretion given juries under Arkansas law to decide the
question of life or death is fundamentally lawless and un
constitutional within the principle of Giaccio v. Pennsyl
vania, 382 U.S. 399 (1966), both courts below relied on a
footnote in the majority’s Giaccio opinion: “we intend to
cast no doubt whatever on the constitutionality of the set
tled practice in many states to leave to juries finding de
fendants guilty of a crime the power to fix punishment
within legally prescribed limits.” (382 U.S. at 405, n. 8;
see 257 F. Supp. at 717; App. A, pp. 13a-14a infra; App. A,
pp. 48a-49a infra.) The court of appeals found support also
in this Court’s statement in Spencer v. Texas, 385 U.S. 554,
560 (1967), that it was not there “ contended that it is un
constitutional for the jury to assess the punishment to be
meted out to a defendant in a capital or other criminal
case.” (App. A, p. 48a infra.)
With respect to the claim that, where jury sentencing is
authorized, the Fifth and Fourteenth Amendments require
some procedure for separate adjudication of the issues of
guilt and capital punishment, the district court concluded
that “ [w]hile some States follow that procedure, this Court
does not believe . . . the Constitution requires it.” (257 F.
Supp. at 721; App. A, p. 22a infra.) The court of appeals
noted that it had rejected similar arguments in Pope v.
34
United States, 372 F.2d 710, 727-30 (8th Cir. 1967), judg
ment vacated on other grounds, 392 TT.S. 661 (1968), and
found support again in the Spencer v. Texas opinion, 385
U.S., at 568 (1967):
“ Two-part jury trials are rare in our jurisprudence;
they have never been compelled by this Court as a
matter of constitutional law, or even as a matter of
federal procedure.” (App. A, pp. 49a-50a infra.)
3. The Issue of Racially Discriminatory Jury
Selection Procedures.
The district court refused to consider petitioner’s re
newed attack on Arkansas’ jury selection procedures, that
is, the claim that use of racially segregated taxpayer rolls
impermissibly invited the systematic exclusion of Negroes.
The issue was thought to be foreclosed by petitioner’s prior
federal habeas corpus adjudication. (257 F. Supp. at 713;
App. A, pp. 4a-5a infra.) The court of appeals rejected peti
tioner’s argument on the merits, on the ground that in
Maxwell’s case the jurors were not directly selected from
racially designated elector lists: instead jury lists were
initially prepared independently, and only subsequently
checked out against racially designated elector lists. Fur
ther, the court pointed out, in Maxwell’s case there was no
claim of inappropriate Negro representation on the Garland
County jury list, nor any claim of Negro exclusion, and
there was a Negro jury commissioner. On these grounds
the court distinguished Whitus v. Georgia, 385 U.S. 545
(1967), and this Court’s several decisions following Whitus.
(App. A, pp. 50a-54a infra.)
35
REASONS FOR GRANTING THE WRIT
I.
Petitioner’s Uneontradicted Proof of Racially Dis
criminatory Imposition of the Death Penalty on Ne
groes Convicted of Raping White Women, Together
with the Needless Encouragement of Discriminatory
Sentencing Occasioned by the Arkansas Procedure of
Simultaneously Submitting the Issues of Guilt and
Punishment to a Jury Without Standards to Guide its
Discretion in Fixing Punishment, Requires Reversal of
the Judgment Below.
Introduction
The issues raised by this petition are of enormous con
temporary importance.15 The Court is here presented for
the first time with a record that is the end product of a
detailed and exhaustive examination of the practical re
sults of the procedures used in making the decision whether
a man should live or die. That record graphically demon
strates the grim consequences of leaving unfettered and
uninformed discretion to juries to choose between death 16
16 See Sims v. Georgia, 384 IT.S. 998 (1966), where among the
questions this Court granted certiorari to review was the following:
Where a Negro defendant sentenced to death in Georgia for
the rape of a white woman offers to prove that nineteen times
as many Negroes as whites have been executed for rape in
Georgia in an effort to show that racial discrimination vio
lating the equal protection clause of the Fourteenth Amend
ment produced such a result, may this offer of proof be dis
allowed ?
The case was decided on a different ground, Sims v. Georgia, 385
U.S. 538 (1967); Sims v. Georgia, 389 IT.S. 404 (1967).
36
and lesser penalties for rape in a state which has histori
cally practiced racial discrimination.16
The coincidence of laws maintaining the death penalty
for rape, of procedures which allow its imposition arbi
trarily, and of racial discrimination in its actual admin
istration is not, of course, accidental. Sixteen American
States retain capital punishment for rape. Nevada per
mits imposition of the penalty only if the offense is com
mitted with substantial bodily harm to the victim.17 The
remaining fifteen jurisdictions—which allow their juries
absolute discretion to punish any rape with death-—-are
all southern or border states.18 The federal jurisdiction
16 Just recently the application of a Negro man and white woman
for a marriage certificate was denied by the clerk of Pulaski
County, Arkansas, on the basis of an Arkansas statute prohibiting
interracial marriage. The couple was forced to go to a federal
court for an order declaring the statute unconstitutional under
Loving v. Virginia, 388 U.S. 1 (1967), and ordering the county
clerk to entertain their application. Higgins v. Peters, U.S. Dis
trict Court No. LR-68-C-176, E.D. Ark., Sept. 25, 1968.
17 Nev. Rev. Stat. §200.363 (1967). See also §200.400 (1967)
(assault with intent to rape, accompanied with acts of violence
resulting in substantial bodily harm).
18 The following sections punish rape or carnal knowledge unless
otherwise specified. Ala. Code §§14-395, 14-397, 14-398 (Reeomp.
Vol. 1958) ; Ark. Stat. Ann. §§41-3403, 43-2153 (1964 Repl. V ols.);
see also §41-3405 (administering potion with intent to rape);
§41-3411 (forcing marriage) ; Fla. Stat. Ann. §794.01 (1964 Cum.
Supp.); Ga. Code Ann. §§26-1302, 26-1304 (1963 Cum. Supp.);
Ky. Rev. Stat. Ann. §435.090 (1963); La. Rev. Stat. Ann. §14:42
(1950) (called aggravated rape but slight force is sufficient to
constitute offense; also includes carnal knowledge); Md. Ann.
Code §27-463 (1967 Cum. Supp.) ; see also §27-12 (assault with
intent to rape) ; Miss. Code Ann. §2358 (Recomp. Vol. 1956);
Vernon’s Mo. Stat. Ann. §559.260 (1953) ; N.C. Gen Stat. §14-21
(Recomp. Vol. 1953); Okla. Stat. Ann. Tit. 21, §§1111, 1114, 1115
(1958); S.C. Code Ann. §§16-72, 16-80 (1962) (includes assault
with attempt to rape as well as rape and carnal knowledge) ; Tenn.
Code Ann. §§39-3702, 39-3703, 39-3704, 39-3706 (1955); Tex. Pen.
37
and the District of Columbia, with its own strong southern
traditions, also allow the death penalty for rape.19 Out
side the United States, rape is punishable by death only in
Malawi, Taiwan, and the Union of South Africa.20
Between 1930 and 1962, the year in which petitioner was
sentenced to die, 446 persons were executed for rape in
the United States.21 Of these, 399 were Negroes, 45 were
Code Ann., arts. 1183, 1189 (1961) ; Ya. Code Ann. §18.1-44 (Repl.
Yol. 1960); see also §18.1-16 (attempted rape).
1918 U.S.C. §2031 (1964); 10 TJ.S.C. §920 (1964); D.C. Code
Ann. §22-2801 (1961).
20 United Nations, D epartment op E conomic and Social Af
fairs, Capital P unishm ent (ST/SOA/SD/9-10) (1968), pp. 40,
86.
21 The figures below are taken from United States Department
of Justice, Bureau of Prisons, National Prisoner Statistics, No. 32;
Executions, 1962 (April, 1963), which was put in evidence
petitioner’s Exhibit P-6 at the habeas corpus hearing. Table
thereof shows the following executions under civil authority
the United States between 1930 and 1962:
M urder
Total White Negro Other
Number 3298 1640 1619 39
Per Cent 100.0 49.7 49.1 1.2
R ape
Total White Negro Other
Number 446 45 399 2
Per Cent 100.0 10.1 89.5 .04
Other Offenses
Total White Negro Other
Number 68 37 31 0
Per Cent 100.0 54.4 45.6 0.0
38
whites and 2 were Indians. All were executed in Southern
or border States or the District. The percentages—89.5%
Negro, 10.1% white—are revealing when compared to
similar racial percentages of persons executed during the
same years for murder and other capital offenses. Of the
total number of persons executed in the United States,
1930-1962, for murder, 49.1% were Negro; 49.7% were
white. For other capital offenses, 45.6% were Negro;
54.4% were white. Louisiana, Mississippi, Oklahoma, Vir
ginia, West Virginia and the District of Columbia never
executed a white man for rape during these years. To
gether they executed 66 Negroes. Arkansas, Delaware,
Florida, Kentucky and Missouri each executed one white
man for rape between 1930 and 1962. Together they ex
ecuted 71 Negroes. Putting aside Texas (which executed
Table 2 thereof shows the following executions under civil author
ity in the United States between 1930 and 1962, for the offense of
rape, by State:
Federal
White
2
Negro
0
Other
0
Alabama 2 20 0
Arkansas 1 17 0
Delaware 1 3 0
District of Columbia 0 2 0
Florida 1 35 0
Georgia 3 58 0
Kentucky 1 9 0
Louisiana 0 17 0
Maryland 6 18 0
Mississippi 0 21 0
Missouri 1 7 0
North Carolina 4 41 2
Oklahoma 0 4 0
South Carolina 5 37 0
Tennessee 5 22 0
Texas 13 66 0
Virginia 0 21 0
West Virginia 0 1 0
45 399 2
39
13 whites and 66 Negroes), sixteen Southern and border
States and the District of Columbia between 1930 and 1962
executed 30 whites and 333 Negroes for rape; a ratio of
better than one to eleven.
What is in question here is the essential fairness, regu
larity and even-handedness required by the Constitution
in proceedings by which the State determines to take
human life. As this Court noted in Witherspoon v. Illinois,
391 TJ.S. 510 (1968), history and the public temper in this
country today appear to have set their heads against capi
tal punishment. There were only two executions in the
United States during the calendar year 1967 and only one
in 1966.22 Most significantly, there has not been a single
22 United States Department of Justice, Bureau of Prisons, Na
tional Prisoner Statistics, No. 42, Executions 1930-1967 (June
1968), p. 1. For discussion of the decreasing trend in executions,
see United Nations, D epartment oe E conomic and Social A f
fairs, Capital P un ish m en t , note 20, supra; Sellin , T he D eath
P enalty (1959), published as an appendix to American Law In
stitute, Model Penal Code, Tent. Draft No. 9 (May 8, 1959);
M attick , T he Unexamined D eath (1966); Hartung, Trends in
the Use of Capital Punishment, 284 A nnals 8 (1952).
In Witherspoon v. Illinois, 391 U.S. 510, 519-20 (1968), this
Court noted that “ in a nation less than half of whose people be
lieve in the death penalty, a jury composed exclusively _ of such
people cannot speak for the community. . . . [S]ueh a jury can
speak only for a distinct and dwindling minority.” The opinion
cited public opinion polls indicating that in 1966 approximately
42% of the American public favored capital punishment for con
victed murderers, while 47% opposed it and 11% were undecided.
Polls, International Review on Public Opinion, Yol. II, No. 3, at
84 (1967).
Concerned private and public agencies have also turned in
creasingly against the death penalty. The influential National
Council on Crime and Delinquency recommended abolition in 1963.
See 9 Crime and Delinquency 225 (1963). The United States
Department of Justice has taken the same view:
“ We favor the abolition of the death penalty. Modern
penology with its correctional and rehabilitative skills affords
greater protection to society than the death penalty which is
inconsistent with its goals. This Nation is too great in its
40
execution for rape since 1964.23 Rather than making the
questions presented here less momentous, this trend only
makes especially vivid the bitter irony of petitioner’s pre
dicament. If the death penalty, especially for rape, is to
be a rarely imposed sanction, an unusual, extreme resort
of our society, see, e.g., W ieh o fen , The Urge to Punish
163-165 (1956), it is imperative that the resort be invoked
only under procedures which assure against arbitrary and
discriminatory fortuity, and that the men chosen to die
be rationally and fairly chosen. The most solicitous judi
cial concern should be devoted to assure, at the least, that
race plays no part in their selection.
Petitioner makes three interrelated constitutional chal
lenges to the Arkansas procedure by which he was sen
tenced to death. First, he contends that the Arkansas
practice which leaves “ jurors free to decide, without any
legally fixed standards,” 24 the question of life or death
violates the basic rule of law implicit in the Due Process
Clause. The potential for arbitrary and discriminatory
application of the death penalty in the jury’s unguided,
unregulated and unreviewable discretion is exacerbated by
a second characteristic of Arkansas procedure: simultane-
resources and too good in its purposes to engage in the light
of present understanding in the deliberate taking of human
life as either a punishment or a deterrent to domestic crime.”
(Letter from then Deputy Attorney General Ramsey Clark
to the Honorable John L. McMillan, Chairman, House Com
mittee on the District of Columbia, July 23, 1965, reported
in New York Times, July 24, 1965, p. 1, col. 5.)
The Attorney General reiterated his stand against capital punish
ment when he was nominated for the post. See N. T. Times Maga
zine, Sunday, April 2, 1967, pp. 31, 139.
23 United States Department of Justice, Bureau of Prisons, Na
tional Prisoner Statistics, No. 42, Executions 1930-1967 (June,
1968), p. 7.
24 Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966).
41
oiis trial and submission to the jurors of the issues of guilt
and punishment, a procedure which deprives the capital
sentencing body of the sort of background information
that is indispensable to any sort of rational choice, in
cluding the defendant’s history and his personal statement,
except at the cost of prejudice to fair trial on the guilt
question and enforced waiver of the defendant’s privilege
against self-incrimination.25 26 Thirdly, petitioner has docu
mented the ugly results of the Arkansas procedures which
he challenges. In the uncontested expert opinion of one
of the country’s outstanding criminologists, based upon an
exhaustive, costly, and rigorous scientific study, Arkansas
juries in rape cases have responded to the state-given
opportunity for arbitrariness and have discriminated on
grounds of race in sentencing men to death.
Neither court below considered the statistical showing
of discrimination adequate as a matter of law, but wre
emphasize that there was no dispute on the facts: no
25 Similar procedures are being challenged in other cases before
the Court this term. Johnson v. Virginia, Misc. No. 307; McCanis
v. Alabama, Misc. No. 937; Foreella. v. New Jersey, Misc. No. 947.
They are also under challenge in eases maintained on behalf of
hundreds of condemned men in the lower courts, including the
actions which have resulted in class stays of execution for all men
under a sentence of death in the States of California and Florida.
Many of these cases are collected and described in the Brief Amici
Curiae of the N.A.A.C.P. Legal Defense and Educational Fund,
Inc., and the National Office for the Rights of the Indigent, in
Witherspoon v. Illinois, O.T. 1967, No. 1015, and Bumper v. North
Carolina, O.T. 1967, No. 1016, at pp. 12-15, n. 30. Fifty-one men
are affected alone by the stay in Adderly v. Wainwright, M.D.
Fla., No. 67-298-Civ-J; eighty-three men and one woman by the
stay in Application of Saterfield, Cal. S.C., Crim. No. 11573, and
Application of Anderson, Cal. S.C., Crim. No. 11572.
Like Arkansas, most of the States which authorize the death
penalty grant the jury absolute, arbitrary discretion to impose the
death penalty in a single-verdict proceeding. Thus the, lives of
the vast majority of the 500 men now on death row in the United
States will be affected by the Court’s decision in this case.
42
evidence at all, much less conflicting expert opinion, was
presented by the State, although it had full opportunity.
Moreover, the court of appeals conceded that there were
“ recognizable indicators” “ that the death penalty for rape
may have been discriminatorily applied over the decades
in that large area of states whose statutes provide for it.”
(App. A, p. 44a infra.) This finding surely requires the
most painstaking consideration by this Court of the legal
issues involved in Maxwell’s case. For any such finding,
impugning the fairness of administration of the death
penalty— any such “ suspicion . . . with respect to southern
interracial rape trials as a group over a long period of
time” (App. A, pp. 42a-43a infra)—touches at its roots a
complex of our most intractable contemporary social is
sues.
Decisions of this Court have long recognized that vio
lence may emanate from the state as well as from the mob,
and that violence under color of law is as dangerous to
the social fabric as that not cloaked with legitimate au
thority.26 When government acts unlawfully, the simple
result is contempt for law. See Mr. Justice Brandeis, dis
senting, in Olmstead v. United States, 277 IT.S. 438, 485
(1928). A second consequence, no less serious though rarely
recognized, is the fostering in a society of the tendency
to accept violence, which is perpetrated by legitimate au
thority, as broadly necessary and justifiable.
Execution, though carried out with the imprimatur of
the state, is an extreme form of violence by government.
One need not attack its legality under all circumstances
to point out that putting a man to death against his will
26 See, e.g., Moore v. Dempsey, 261 IT.S. 86 (1923); Mooney v.
Holohan, 294 U.S. 103 (1935); Brown v. Mississippi, 297 IT.S, 278
(1936) ; Bochin v. California, 342 IT.S. 165 (1952) ; Shepherd v.
Florida, 341 IT.S. 50 (1951) (Mr. Justice Jackson, concurring);
Cf. Lankford v. Gelston, 364 F.2d 197, 203-205 (4th Cir. 1966).
43
is state-sanctioned violence which may have the same sig
nificant consequences as other forms of official violence.
It is in this context that this Court should decide the ques
tions raised here of disproportionate application of the
death penalty to Negroes as a class, and procedures that
permit this disproportion. For if, as the available evi
dence demonstrates, the state is reserving a violent pun
ishment for one racial group, then government is con
doning for society in general, and for that class in par
ticular, the most corrosive sort of discrimination in the
most vicious and least pardonable form of human conduct.
Many distinctions in government policy may be justified
or accepted even when invidious and even by those who
are members of the disfavored class. But discriminatory
violence on the part of the state is a course which the
group that is discriminated against can hardly be expected
to accept. Unequal sentencing on the basis of race can
only contribute to smoldering resentment or sterile in
difference on the part of the oppressed class. The sense
which many Negroes undeniably have and which the evi
dence here confirms, that the death penalty in rape cases
is reserved for Negroes convicted of an offense in which
a white woman is the victim, is part of the social and
psychological constellation which produces “untoward coun
ter reactions of violence” . Cf. Lankford v. Gelston, 364
F.2d 197, 204 n. 7 (4th Cir. 1966) (Sobeloff, J.)
The submission which follows is firmly rooted in prin
ciples of law basic to our constitutional system. The fac
tual showing is the product of an especially rigorous and
thorough application of accepted scientific methodology.
But as we see the matter, the enormous consequences in
disaffection and alienation caused by such sentencing pat
terns as are here revealed enhance the weight and depth
of the issues presented and make them as vital to society
as they are to William Maxwell.
44
We add, finally, that this case does not come here alone.
Litigations pending in the lower courts on behalf of hun
dreds of condemned men raise the same challenges which
Maxwell now makes to the procedures under which he
and they were sentenced to die. Several pending petitions
for certiorari raise these points. See note 25 supra. But
on no record of which we are aware are the consequences
of the procedures so graphically displayed. Negro men
condemned to death for rape are now raising Maxwell’s
racial discrimination point, based on the Wolfgang study,
in a number of States.27 But the approach to the study
taken by the court below— skepticism regarding the va
lidity of all statistical proof; insistence that particular
counties, rather than States, be shown to discriminate;
finally, the legal conclusion that even a conceded showing
of racially discriminatory sentencing cannot prevail be
cause “ it is the law, not probabilities or possibilities, which
must afford equal protection” (App. A, p. 44a infra)—
doom those other men along with Maxwell. The import
of the decision below is plain: racial discrimination in
capital sentencing, not worked on the face of a State’s
statute books but none the less demonstrably by its juries,
is irremediable. Thus, the Equal Protection Clause is
rendered impotent to cure the Twentieth Century version
of those discriminatory sentencing practices which were
one of its most immediate targets,28 and which are today
one of our society’s most grievous injustices. So that this
result may not stand, v7e urge that certiorari be granted.
27 A number of cases in which the results of the Wolfgang study
are being presented are now pending in Alabama, Florida, Georgia,
Louisiana, and South Carolina. Descriptions of the study appear
in Matter of Sims and Abrams, 389 F.2d 148 (5th Cir. 1967), and
in the memorandum order of the Court of Appeals for the Fourth
Circuit in Moorer v. South Carolina,, 368 F.2d 458 (4th Cir. 1966).
28 See pp. 45-47 infra.
45
A. The Courts Below Erred in Holding That Petitioners
Proof of the Racially Discriminatory Death-Sentencing
Practices of Arkansas Juries in Rape Cases Did Not En
title Him to Relief From the Death Sentence.
Although this Court has never expressly so held, it can
not be doubted that discriminatory application of the death
penalty against Negro defendants convicted of the rape of
white women would, if proved, constitute a denial to those
defendants of the equal protection of the laws guaranteed
by the Fourteenth Amendment. One of the cardinal pur
poses of the Fourteenth Amendment was the elimination of
racially discriminatory criminal sentencing. The First Civil
Rights Act of April 9, 1866, eh. 31, § 1, 14 Stat. 27, declared
the Negroes citizens of the United States and guaranteed
that “ such citizens, of every race and color, . . . shall be
subject to like punishment, pains, and penalties [as white
citizens], and to none other, any law, statute, ordinance,
regulation, or custom, to the contrary notwithstanding.”
The Fourteenth Amendment was designed to elevate the
Civil Rights Act of 1866 to constitutional stature. See, e.g.,
tenBroek, Thirteenth Amendment to the Constitution of the
United States, 39 C alif . L. R ev . 171 (1 9 5 1 ) ; Fairman, Does
the Fourteenth Amendment Incorporate the Bill of Rights,
2 S ta n . L. R ev . 5 (1949 ). The Enforcement Act of May 31,
1870, eh. 114, §§ 16, 18, 16 Stat. 140, 144, implemented the
Amendment by reenacting the 1866 act and extending its
protection to all persons. This explicit statutory prohibi
tion of racially discriminatory sentencing survives today as
Rev. Stat. § 1977 (1875 ), 42 U.S.C. § 1981 (1964).
For purposes of the Fourteenth Amendment, it is of
course immaterial whether a State writes on the face of
its statute books: “Rape shall be punishable by imprison
ment . . . , except that rape by a Negro of a white woman,
or any other aggravated and atrocious rape, shall be pun-
46
isbable by death by electrocution,” or whether the State’s
juries read a facially color-blind statute to draw the same
racial line. Discriminatory application of a statute fair
upon its face is more difficult to prove, but no less violates
the State’s obligation to afford all persons within its juris
diction the equal protection of the laws. E.g., Yick Wo v.
Hopkins, 118 TJ.S. 356 (1886) ; Niemotko v. Maryland, 340
U.S. 268 (1951) (alternative ground); Foivler v. Rhode Is
land, 345 U.S. 67 (1953); Hamilton v. Alabama, 376 U.S.
650 (1964) (per curiam).29 And it does not matter that
the discrimination is worked by a number of separate juries
functioning independently of each other, rather than by a
single state official. However it may divide responsibility
internally, the State is federally obligated to assure the
equal application of its laws. Cooper v. Aaron, 358 U.S. 1,
16 (1958).30 This Court has long sustained claims of dis
criminatory jury exclusion upon a showing of exclusion
continuing during an extended period of years, without in- * 80
29 It is also immaterial whether a State imposes different penal
ties for classes of cases defined in terms of race, or whether it
imposes a penalty of death in all cases of a given crime, subject to
an option in the jury to be lenient in some racially defined sub
class of the cases. The Fourteenth Amendment’s obligation of
equality extends not only to those “ rights” which a state is fed
erally compelled to give its citizens, but also to any benefits the
State may choose to give any class of them, however gratuitously.
Brown v. Board of Education, 347 U.S. 483 (1954) ; Watson v.
City of Memphis, 373 U.S. 526 (1963).
80 Execution by the State of the death sentence which it has
given juries unlimited discretion to impose clearly provides that
“interplay of governmental and private action,” N.A.A.C.P. v.
Alabama, 357 U.S. 449, 463 (1958), quoted in Anderson v. Martin,
375 U.S. 399, 403 (1964), which makes the State responsible for
the discrimination. Shelley v. Kraemer, 334 U.S. 1 (1948). Thus
the State, the entity to which the Fourteenth Amendment applies,
not Garland County, must answer for the discrimination. It should
be noted moreover that in Arkansas as elsewhere, charging papers
allege the commission of a crime “against the peace and dignity of
the state of Arkansas” not against a given county.
47
quiry whether the same jury commissioners served through
out the period. See, e.g., Neal v. Delaware, 103 U.S. 370
(1881); Bush v. Kentucky, 107 U.S. 110 (1882); Hernandez
v. Texas, 347 U.S. 475 (1954). Congress, when it enacted
the 1866 Civil Rights Act knowing that “ In some commu
nities in the South a custom prevails by which different
punishment is inflicted upon the blacks from that meted
out to whites for the same offense,” 31 intended precisely
by the Act, and subsequently by the Fourteenth Amend
ment, to disallow such “custom” as it operated through the
sentences imposed by particular judges and juries.32
So the question for the courts below—the inevitably crit
ical question in enforcement of this critical constitutional
guarantee-—is one of factual p roof: whether a claimant has
made a sufficient showing of racially discriminatory sen
tencing in fact. For, of course, today no State in the Nation
has explicit statutory provisions fixing different criminal
penaltes for different races. Discrimination is practiced as
a matter of usage, in the administration of the broad sen
tencing discretion allowed by law. It cannot be detected
by reading the text of what a State says about criminal
sentences, but only by examining what the State’s author
ized agents do when they come actually to pass the judg
ments that send men to prison or to death. For this rea
son, questions relating to the method of that examination,
to the procedures by which racially discriminatory sentenc
ing may be judicially proved as the precondition of con
stitutional relief, become of the utmost importance. The
present case raises just such questions, of general and cru
31 Cong. Globe, 39th Cong., 1st Sess. 1758 (4/4/1866) (remarks
of Senator Trumbull, who introduced, reported and managed the
bill which became the act).
32 See the text of the act supra; see also, e.g., Cong. Globe, 39th
Cong., 1st Sess. 475 (1/29/1866), 1759 (4/4/1866) (remarks of
Senator Trumbull).
48
cial application to those who would challenge sentencing
practices that bear with discriminatory harshness on the
Negro.
On two previous occasions—in the state courts of Arkan
sas, 236 Ark. 694, 701-02, 370 S.W.2d 113, 117-18, and in the
federal courts, 229 F. Supp. 205, 216-17, 348 F.2d 325, 330-
331—courts had held that petitioner Maxwell failed to
prove his claim of racial discrimination by Arkansas juries
in death sentencing for rape. On the first occasion his evi
dence—consisting of the available official statistics—was
sparse but suggestive. On the second, when he persuaded
the courts to permit subpoena of a few county court files,
it was still more suggestive,33 but not strong enough. If
nothing else, petitioner’s failure thus far to convince the
courts by his proof demonstrates howr difficult it is for Ne
gro litigants generally, and for those 'without means partic
ularly, to make “ the law .. . see what all others see,” Brooks
v. Beto, 366 F.2d 1, 12 (5th Cir. 1966), citing Bailey v.
Drexel Furniture Go., 259 U.S. 20, 37 (1922). Now peti
tioner, with the aid of donated scientific resources far be
yond his own financial command, has made every effort
which rigorous scientific methodology could devise and an
enormous, painstaking work of field research could carry
out, to make “ the law . . . see what all others see.” Again
the courts below held that this was not enough.
But the reasons given below why it is not enough estab
lish, simply, that no amount of proof will ever be enough.
The court of appeals was more or less explicit on the point: * 19
33 The evidence showed that in the three counties whose records
petitioner was permitted to subpoena, Negroes were not substan
tially more frequently charged with or convicted of rape than
whites. If that proof was projected state-wide, it gave added sig
nificance to the official figures showing that Arkansas had executed
19 Negroes and only 2 whites for rape between 1913 and 1963,
see note 1 supra.
49
“We are not certain that, for Maxwell, statistics will ever be
his redemption.” (App. A, p. 44a infra.) Maxwell’s proof
was insufficient, both courts below held, not because he had
failed to show convincingly that Negroes convicted of rape
of white women were disproportionately frequently sen
tenced to death by Arkansas juries in numbers that “could
not be due to the operation of the laws of chance.” (257 F.
Supp. at 718; App. A, p. 16a infra). The courts below ac
cepted that conclusion. It was insufficient not because any
non-chance, non-racial explanation for the notably over
frequent death sentencing of Negroes in interracial rape
cases appears in the record. The State of Arkansas pre
sented no evidence whatsoever to account for the dispro
portion; and not a shred of proof in the record suggests
that there may exist any such explanation. And petitioner’s
proof was insufficient not because the thorough study on
which he relied failed itself to make exhaustive efforts to
seek out, in accepted scientific fashion, whatever evidence
might disprove the inference of racial discrimination to
which the disproportionate death sentencing of Negroes in
interracial rape cases naturally (as well as scientifically)
gives rise. The search for non-racial explanations in the
data was pursued by methods and with energies which
neither court below questioned.
The reasons for the failure of petitioner’s showing of
discrimination lie, rather, in several legal principles an
nounced by the courts below for evaluating evidence of the
sort which petitioner presented, and for adjudging peti
tioner’s constitutional claim on a record of such evidence.
These legal principles, we suggest, are erroneous, and
should be reviewed and repudiated by this Court.
1. The district court threw the burden of persuasion
on the factual question of discrimination fully upon the
petitioner. Although its opinion does not speak directly
50
to the question, it thus tacitly rejected petitioner’s con
tention that the primia facie evidence principle of the
jury-exclusion cases applies to proof of racial discrim
ination in sentencing. See pp. 29-30 supra. The court of
appeals approved this approach, insisting that “generally
the burden of demonstrating discrimination in penalty im
position is on the one who asserts it” (App. A, p. 41a
infra), and failing to accept Dr. Wolfgang’s uncontra
dicted expert opinion of discrimination because his study
did “not take every variable into account” (ibid.). But, as
Dr. Wolfgang testified, and neither court below denied, the
study did take into account every variable of which scientif
ically acceptable analysis was possible, upon the available
data; and this was enough, in Dr. Wolfgang’s expert
judgment, to support his conclusion. The courts below de
manded something more—apparently, the negativing of
every possible, speculative non-discriminatory explanation
for the extremely disproportioned death-sentencing figures.
However, this Court has stated that because of the
Fourteenth Amendment’s overriding purpose to secure ra
cial equality, “ racial classifications [are] ‘constitutionally
suspect,’ . . . and subject to the most ‘rigid scrutiny’
. . .” McLaughlin v. Florida, 379 U.S. 184, 192 (1964). This
principle has as its corollary that a sufficient initial show
ing of unequal treatment of the races is made, calling state
procedures in question, whenever it appears that whites
and Negroes are substantially disproportionately repre
sented in groups of persons differently treated by those
procedures; such a showing compels the inference that a
State is drawing the racial line unless the state offers some
justification in non-racial factors for the disproportion.
E.g., Norris v. Alabama, 294 U.S. 587 (1935); Hernandez
v. Texas, 347 U.S. 475 (1954); Reece v. Georgia, 350 U.S.
85 (1955); Eubanks v. Louisiana, 356 U.S. 584 (1958).
51
Nor has this prima facie evidence rule in cases involving
racial inequality been restricted to jury discrimination
cases. It has also been applied to education cases, Cham
bers v. Hendersonville Board of Education, 364 F.2d 189
(4th Cir. 1966) ;34 * Johnson v. Branch, 364 F.2d 177 (4th
Cir. 1966); health discrimination, cases, Cypress v. New
port News Hospital Association, 375 F.2d 648 (4th Cir.
1967); and voter discrimination cases, United States v.
Dule, 332 F.2d 759, 765-66 (5th Cir. 1964). See also
Gomillion v. Lightfoot, 364 TT.S. 339 (1960); Oyama v.
California, 332 U.S. 633 (1948).
Plainly a prima facie showing under this principle was
made here.36 Yet, with respondent having offered no rebut
tal evidence, the courts below concluded, principally on
the basis of supposed incompleteness in the data and of
speculation concerning the effect of possible explanatory
variables testable on the basis of more complete data,
that discrimination was not shown. We submit this dis
position was obviously wrong. Petitioner’s evidence was
indisputably substantial even if, as the courts below
thought, factual matters which had escaped the dragnet
34 In Chambers, the court said: “ innumerable cases have clearly
established the principle that under circumstances such as this
where a history of racial discrimination exists, the burden of proof
has been thrown upon the party having the power to produce the
facts.” 364 F.2d at 192.
36 The court “ understands Dr. Wolfgang’s conclusion to be that
a Negro man who is convicted of raping a white woman has about
a 50 per cent chance of receiving a death sentence, regardless of
the facts and circumstances surrounding the crime, whereas a man
who is convicted of criminally assaulting a woman of his own race
stands only about a 14 per cent chance of receiving the death sen
tence.” (257 F. Supp. at 719; App. A, p. 17a infra.) This, the
district court agreed, was a “ differential [that] could not be due
to the operation of the laws of chance.” (257 P. Supp. at 718;
App. A, p. 16a infra.) Moreover, every possible explanation for
the disproportion which Dr. Wolfgang’s comprehensive study
could identify and subject to analysis failed to account for the
racial figures.
52
of the Wolfgang study made it less than conclusive. No
reason appears why the prima facie evidence principle
previously applied to other sorts of challenged discrim
inations should not be applied here. Certainly the State’s
resources for investigation are superior to petitioner’s.
A pauper, he has been forced to rely on this study whose
limitations—whether or not they are significant—derived
from the limitations of resources of its sponsors. The
State of Arkansas hardly suffers from comparable limita
tions. Nor can it be thought that Arkansas’ access to
state records and to the personnel involved in state trials
is more restricted than that of a Negro litigant attempting
in a Southern State to obtain evidence relating to a claim
of racial discrimination. Every justification for shifting
the burden of persuasion to the State, as has been done
in litigation of other issues of this sort, applies with
evident force here.
2. The district court thought that it saw certain de
ficiencies in Dr. Wolfgang’s study.86 The court of appeals’
86 Petitioner’s contention that the district court committed mani
fest error both in its evaluation of the evidence and in the standard
by which it judged the evidence, is discussed in detail in Peti
tioner’s Brief on appeal to the Eighth Circuit, pp. 45-56.
Briefly, the district court declined to aceept Dr. Wolfgang’s
findings in part because “ The eases studied, and the number of
death sentences imposed are simply too few in number to afford
convincing proof of the proposition urged by petitioner.” (257 F.
Supp. at 720, App. A, p. 19a infra.) Its reference to the “ number
of death sentences imposed” expressly purports to take account of
the fact that, among the individual rape trials studied, several
defendants who had undergone more than one trial were included
more than once. However, Dr. Wolfgang himself explained that
it was the number of trials, rather than the number of defendants,
that is statistically important for present purposes: each occasion
on which an Arkansas jury sentences a Negro defendant to death
for rape of a white woman, or sentences a defendant to life in a
case involving other racial combinations, is an additional indica
tion of the manner in which the Arkansas statute is being applied
opinion, by contrast, finds no specific flaws in Dr. Wolf
gang’s methods or his data; indeed, it appears to concede
(see Tr. 60, 62). As for the court’s concern with the number of
case studies in toto, this ignores that the whole purpose of the
statistical analysis conducted by Dr. Wolfgang was to satisfy him
— as, in his expert opinion, it did—that the generalizations drawn
from the data could be reliably based on the number of cases ob
served. The district court’s ultimate conclusion was that Dr. W olf
gang’s study provides only “meager material” (257 F. Supp. at
720; App. A, p. 20a infra) on which to base conclusions. But, at
least in the absence of any countervailing evidence or sound rea
son to discredit Dr. Wolfgang’s own confidence in his analysis,
the district court lacked basis in the record for thus discrediting
conclusions that Dr. Wolfgang opined -without expert contradiction
were adequately sustainable under accepted scientific standards.
The district court’s reliance on that portion of the witness’s
written report which characterized his findings as “ preliminary”
and “ tentative” is clearly erroneous. Dr. Wolfgang stated ex
pressly several times that his report was “preliminary” only in
regard to the entire eleven-State survey, not as to the State of
Arkansas itself (Tr. 59, 93-94). See App. A, pp. 33a-34a infra.
Similarly, inadequate consideration was given by the district
court to the conclusions of Mr. Monroe, the expert who conducted
the sampling resulting in the selection of 19 Arkansas counties to be
studied. While recognizing that the “sample drawn by Mr. Monroe
seems to have been drawn in a manner which is acceptable statis
tically” (257 F. Supp. at 720; App. A, p. 19a infra), the court
appears to have taken its own view that the counties were not
relevantly chosen. The court seemed to regard differential Negro
population in the various counties of the state—a differential which
it noticed judicially—as critically affecting Mr. Monroe’s conclu
sions. But, again, there is no evidence on which to base any such
reasoning; the reasoning runs counter to Mr. Monroe’s uncontra
dicted testimony regax-ding methodology acceptable within his pro
fession ; surely, the district court could not judicially notice that he
was wrong on such a matter.
Finally, the district court laid great stress upon its untenable
supposition that a factor not explored in the Wolfgang analysis
for want of sufficient data—-the “ issue of consent” which “ [i]n
cases not involving inter-racial situations . . . may be and fre
quently is very real” but which “from a factual standpoint is
much less likely to be present in cases in which white women have
been attacked by Negro men” (257 F. Supp. at 720; App. A, p.
21a infra, emphasis added)— explained the racially disproportioned
death sentencing observed. This is plainly the sheerest speculation.
54
the general validity of his study. Although the court notes
that the study did “not take every variable into account”
(App. A, p. 41a infra), of course no study could; and
the court in its lengthy opinion mentions no significant
variables which were omitted by the study.” Instead it
endorses—albeit guardedly—the conclusions of the study
that capital sentencing for rape has shown discriminatory
“ results generally, but elsewhere, throughout the South”
endorses— albeit guardedly—the conclusions of the study
(App. A, p. 42a infra) ; that it gives grounds for “ suspi
cion . . . with respect to southern interracial rape trials
as a group over a long period of time” (App. A, pp. 42a-
43a infra) ; and that there are “ recognizable indicators”
“ that the death penalty for rape may have been discrim-
inatorily applied over the decades, in that large area of
states whose statutes provide for it” (App. A, p. 44a infra).
Vague and reluctant as they are, these observations must,
of course, relate to the State of Arkansas, since Arkansas
is the only State concerning which the record offers any
evidence to support them. See note 14 supra.
The Eighth Circuit’s reason for rejecting petitioner’s
proof, then, lies (apart from its refusal to apply the prima
facie evidence principle) primarily in its view that the
Wolfgang study—indeed any such statistical study—can
not be used to justify reversal of Maxwell’s sentence be
cause it cannot show that the particular jury which sen
tenced Maxwell discriminated. (See App. A, pp. 41a-45a
infra.) No such showing was attempted by petitioner,
and none would ever be possible. Subjective proof of
discriminatory motivation by particular juries in partic-
87 The court apparently did not adopt the district court’s notion,
note 36, supra, that consent was a potentially significant variable
for which the study failed to account. It merely pointed out that
in Maxwell’s case there was no consent, and “ what we are concerned
with here is Maxwell’s case and only Maxwell’s case.” (App. A, p.
41a infra.)
55
ular cases would be more incapable of proof even than
subjective discrimination by jury commissioners or voting
registrars. Where racially discriminatory behavior by
those agencies is legally material, it has always been
thought permissible to prove it by showing a long-standing
pattern or practice of different treatment of Negroes and
whites. The court of appeals erred in holding that the
teachings of those cases were inapposite here.
3. The court of appeals also assigns some weight—
it is unclear how much—to the circumstance that the W olf
gang study did not relate specifically to Garland County.
(App. A, p. 40a infra.) “ [WJhile it is true that it is in a
sense the state which prosecutes, nevertheless the county
has a character and a posture, too.” App. A, p. 42a infra.)
In this regard, it apparently approves the view of the
district court (see 257 F. Supp. at 719, n. 9 and accom
panying text; App. pp. 18a-19a infra; and see Tr. 90-91,
118-120, 122, 134-135), that it was incumbent upon peti
tioner to show racial discrimination by juries in Garland
county, the county of his conviction, rather than by juries
in the State of Arkansas as a unit. This, we submit, is
a plain error of law. Its difficulty is not merely that it
demands impossible proof—the number of cases in one
county is never, in our experience, adequate to support
statistical analysis—but that it requires irrelevant proof.
It is the State of Arkansas, not Garland County, which
has sentenced William Maxwell to death. It is the State,
not the County, which is compelled by the Fourteenth
Amendment to afford him the equal protection of the laws.
It is the State whose statutes give its juries absolute dis
cretion to send men to its electric chair. I f juries in the
State of Arkansas as a whole generally apply the State’s
vague and permissive capital punishment statute in such
a manner as to effect discrimination against Negroes con
56
victed of the rape of white women, the State’s statute is
invalid as applied to any member of the class discriminated
against. The contrary holding below, we urge this Court
to decide, is wrong.
4. The court of appeals concluded finally that it could not
invalidate petitioner’s death sentence upon statistical proof
that a statute fair on its face was being discriminatorily
applied, because “ it is the law, not probabilities or possi
bilities, which must afford equal protection.” (App. A, p.
44a infra.) Again, this is a legal, not a factual proposition,
and it is clear error. It is well-established that the dis
criminatory application of statutes violates the State’s
obligation to afford all persons the equal protection of the
laws no less than the application of statutes discrimina
tory on their face. I f the constitutional guarantee of equal
protection is to be preserved against “ sophisticated as well
as simple-minded modes of discrimination,” Lane v. Wilson,
307 U.S. 268, 275 (1939), this must be the law; and findings
of discriminatory application can and must be based on
inferences from observed behavior. E.g., Tick Wo v. Hop
kins, 118 U.S. 356 (1886) ; Norris v. Alabama, 294 U.S. 587
(1935); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Whitus
v. Georgia, 385 U.S. 545, 605 n. 2 (1967). “ In the matter
of racial discrimination, statistics often tell much, and
Courts listen.” Alabama v. United States, 304 F.2d 583,
586 (5th Cir. 1962) (Brown, J.), aff’d, 371 U.S. 37 (1962).
See Finkelstein, The Application of Statistical Decision
Theory to the Jury Discrimination Cases, 80 H abv. L. R ev .
338 (1966).
However, the Eighth Circuit argued that if it once recog
nized that Negroes convicted of rape were being discrimi
natorily sentenced to death, the only remedy would be to
absolve Negroes from the death penalty, leaving whites
57
still subject to it. This result, the court believed, would itself
violate equal protection. (App. A, pp. 43a~44a infra.) Per
haps the short answer is that such an argument, if valid,
would defeat any attempt by courts to enforce the Equal
Protection clause against administrative or executive dis
crimination not expressly authorized by a state statute
that can be invalidated in globo. Yet this Court was not
deterred from prohibiting the discriminatory enforcement
of an ordinance against Chinese in Yic-k Wo v. HopJcins,
supra, by the circumstance that, immediately after the
YicTc Wo decision, whites but not Chinese—or, to be more
precise, not only Chinese— could be prosecuted under the
ordinance. The real point, of course, is that the premise of
the court below is faulty; the dilemma posed, unreal. Once
discrimination is shown the State is simply under an obliga
tion to cease imposing the death penalty in a discrimina
tory fashion. A variety of remedies is open to it, ranging
from elimination of the death penalty for all defendants to
revision of the procedures by which the penalty is imposed
so as to guard against discrimination. In any event, so
soon as the fact of discrimination ceases, the State may kill
whom it chooses. Arkansas’ history, as shown in this record,
indicates that it has almost never chosen to kill whites;
but when it does, it may even-handedly kill Negroes as
well.
5. The logic of the court of appeals’ opinion, in short,
would write an effective end to the Equal Protection Clause
as a guarantor of enforceable rights in our times. We re
peat the obvious: that those who discriminate today on
grounds of race are the beneficiaries of considerable
sophistication in the art, which has advanced since the
days of the Black Codes. Racial distinctions no longer ap
pear on the face of laws or regulations, and the practi
tioners of discrimination no longer overtly profess that
their principles of decision are racial—except, of course,
where they rightly or wrongly believe that even professed
discrimination cannot be legally thwarted, as, e.g., Burton
v. Wilmington Parking Authority, 365 TJ.S. 715 (1961) ;
Evans v. Newton, 382 U.S. 296 (1966). It is just this con
sideration, coupled with a realistic appreciation of the im
possibility of extracting an admission of discrimination
from the covert discriminator, that has led to this Court’s
development of the doctrine that a prima facie showing of
discrimination can be made objectively and statistically.
If racial discrimination is truly to be eradicated from our
public life, methods of proof must be developed and judi
cially accepted which appraise the consequences of race in
a variety of institutional relationships—even the most
complex. With deference, petitioner believes that the rec
ord before the Court in this case meets the highest stan
dards; that the courts below committed manifest error in
their appraisal of conceded facts and the legal principles
which they announced as governing that appraisal; and
that the questions presented by this petition therefore well
merit review here by writ of certiorari.
B. The Courts Below Erred in Holding That Arkansas’ Pro
cedure of Allowing Capital Juries Absolute, Uncontrolled
and Arbitrary Discretion to Choose Between Punishments
of Life or Death, Does Not Violate the Rule of Law Basic
to the Due Process Clause of the Fourteenth Amendment.
The discretion given Arkansas jurors to decide whether
a man convicted of rape shall live or die is absolute, un
controlled, and arbitrary. As the district court noted in this
case:
“It may be conceded that the Arkansas statutes dealing
with rape and dealing with capital punishment do not
purport to set up any standards by which the jury is to
59
exercise its discretion [in capital sentencing] . . . and
it will be assumed that no such standards are found in
the reported decisions of the Supreme Court of Arkan
sas, Nor did the Circuit Court in its charge to the jury
attempt to lay down any principles which should be
applied in determining whether petitioner, if convicted,
should be punished by life imprisonment rather than
by death.” (257 F. Supp. 716; App. A, p. 11a infra.)3*
Little more than this description is necessary to raise
grave doubt as to the constitutionality of such a procedure.
Whatever else “ due process of law” may encompass, it has
always been thought to impose some demand of funda
mental procedural regularity in decision-making, some in
sistence upon the rule of law, some adherence to the princi
ple established by Magna Carta that the life and liberty of
the subject should not be taken but by the law of the land.
This Court has long condemned a degree of vagueness in
criminal statutes that “ licenses the jury to create its own
standard in each ease,” Herndon v. Lowry, 301 U.S. 242,
263 (1937). See e.g., Smith v. Cahoon, 283 U.S. 553 (1931);
Cline v. Frink Dairy Co., 247 U.S. 445 (1927); Connolly v.
General Construction Co., 269 U.S. 385 (1926); Winters v.
Netv York, 333 U.S. 507 (1948). The vice of such statutes is
not alone their failure to give fair warning of prohibited
conduct, but the breadth of room they leave for jury arbi
trariness and suasion by impermissible considerations,
N.A.A.C.P. v. Button, 371 U.S. 415, 432-433 (1963); Freed
man v. Maryland, 380 U.S. 51, 56 (1965); Lewis, The Sit-In 38
38 The Court of Appeals noted that “ the defense in Maxwell’s
rape trial requested no instructional standards.” But the court
made nothing of this, and clearly did not suggest that it amounted
to the sort of intentional bypassing required to forfeit claims under
Fay v. Noia, 372 U.S. 391 (1963), and Henry v. Mississippi, 379
U.S. 443 (1965). See App. A, p. 46a infra.
60
Cases: Great Expectations, 1963 S upreme C ourt R eview
101, 110; Note, 109 U. Pa. L. Rev. 67, 90 (1960), including
racial considerations, see Louisiana v. United States, 380
U.S. 145 (1965); Dombrowski v. Pfister, 380 U.S. 479
(1965) ; Cox v. Louisiana, 379 U.S. 536 (1965), and every
other insidious urging of caprice or prejudice.
Under these decisions, it could scarcely he contended that
an Arkansas statute would be valid which provided: “who
ever is found condemnable in the discretion of a jury shall
be guilty of an offense.” Yet we submit that this supposi
tious statute stands no differently in light of the concerns
of the Due Process Clause than the unregulated sentencing
practice under which petitioner was condemned to die. The
statute, it is true, deals with crime, and Arkansas’ sentenc
ing practice with punishment. But a practice that jeop
ardizes the integrity and reliability of the sentencing
process is as unconstitutional as one that similarly affects
the guilt-determining process. Witherspoon v. Illinois, 391
U.S. 510 (1968); Mempa v. Rhay, 389 U.S. 128 (1967). In
Witherspoon, 391 U.S. at 521 n. 20, this Court noted that
while sentencing choice— and, in particular, the choice of
life or death may be:
“different in kind from a finding that the defendant com
mitted a specified criminal offense, . . . this does not
mean that basic requirements of procedural fairness
can be ignored simply because the determination in
volved in this case differs in some respects from the
traditional assessment of whether the defendant en
gaged in a proscribed course of conduct.”
Traditionally, of course, it may have been thought that
“ fair notice” questions were raised by regulations defining
offenses but not by those prescribing punishment. Yet it is
61
apparent that the vice of the “whoever-is-found-eondemna-
ble” statute has little to do with notice. The statute is had
not because a man does not know how to behave consistently
with it, but because, however he behaves, he may be arbi
trarily and capriciously taken by the heels. The precise vice
inheres in unregulated jury discretion to sentence a con
victed man to life or death. He too may be dealt with
arbitrarily, his life extinguished for any reason or none.
Surely he is, at the same time, under Arkansas’ single ver
dict practice, found guilty of a defined crime. That con
viction, however, cannot constitutionally be given the effect
of stripping him of every civil right, including the funda
mental right to due process of law. E.g., Specht v. Patter
son, 386 U.S. 605 (1967).
Giaccio v. Pennsylvania, 382 U.S. 399 (1966), supports, if
it does not compel, the conclusion that unfettered jury dis
cretion in capital sentencing is unconstitutional. What was
at issue there, as here, was a state practice governing dis
position. No “ fair notice” problem was involved— except,
of course, the problem, noted by the Court, that it was im
possible for defense counsel at trial to know what issues he
was trying, as it is in a capital case tried to a jury having
limitless sentencing power.39 That decision turned squarely
on the proposition that the Fourteenth Amendment forbade
Pennsylvania to leave its “jurors free to decide, without
any legally fixed standards,” 382 U.S. at 402-403, whether
39 The Court noted specifically that the problem of fair notice
was only one of the problems with vague, standardless laws:
“ It is established that a law fails to meet the requirements of
the Due Process Clause if it is so vague and standardless that
it leaves the public uncertain as to the conduct it prohibits or
leaves judges and jurors free to decide, without any legally
fixed standards, what is prohibited and what is not in each
particular case.” (382 U.S. at 402-403; emphasis added.)
62
to impose upon a defendant a rather small item of costs.40
It is not evident why, in the infinitely more significant mat
ter of sentencing men to death, Arkansas juries can be per
mitted the same lawless and standardless freedom.
Nor does footnote 8 in the Giaccio opinion, relied on by
both courts below, blunt the implications of the Giaccio
holding for our present purposes. In that footnote, a ma
jority of this Court noted that it intended to cast no doubt
on the constitutionality of leaving to juries finding defend
ants guilty of a crime the power to fix punishment “within
legally prescribed limits.” The precise problem in this case
is that there were no “legally prescribed limits,” in any
realistic sense, to the jury’s discretion. Further, that foot
note speaks to jury sentencing generally, not capital sen
tencing.
“It should be understood that much more is involved
here than a simple determination of sentence. The
State . . . empowered the jury in this case to answer
‘yes’ or ‘no’ to the question whether this defendant
was fit to live.” (Witherspoon v. Illinois, 391 U.S. 510,
521 n. 20 (1968).)
Given the imprecision of the sentencing art, even when per
formed by judges, see Tigner v. Texas, 310 U.S. 141, 148-
149 (1940), it may well be that juries can constitutionally
be given some discretion in selecting a smaller or larger
fine, a longer or shorter term of years, particularly where
the range of choice is relatively circumscribed and the
effect of the choice somewhat qualified by parole statutes
and the continuing availability of post-conviction process to
rectify after-discovered mistakes made at the trial. But
40 No First Amendment or other federal rights demanding the
special protection afforded by a heightened requirement of statu
tory specificity, see United States v. National Dairy Prods. Corp.,
372 U.S. 29, 36 (1963), were involved in Gia,ccio.
the degree of arbitrariness allowed a State is not so liberal
where grave and irremediable punitive exactions are at
stake, see Skinner v. Oklahoma, 316 U.S. 535 (1942); and
none is graver or more irremediable than the sentence of
death by electrocution.
Nor did the Court in Giaccio have before it what has been
presented here: evidence showing that in fact the sen
tencing discretion given juries has been exercised on the
ground of race explicitly forbidden by the Constitution.
See pp. 9-27, supra. Petitioner contends that the ar
bitrary and standardless discretion afforded Arkansas
juries constitutes per se a deprivation of his constitu
tional rights. But obviously, evidence that abuse has in
fact occurred has considerable bearing on the issue whether
a practice challenged on the grounds of lawlessness tend
ing to abuse is susceptible to that challenge, e.g., Yick Wo
v. Hopkins, 118 U.S. 356 (1886); Niemotko v. Maryland,
340 U.S. 268 (1951); Hague v. C.I.O., 307 U.S. 496 (1939);
Louisiana v. United States, 380 U.S. 145 (1965).
Here, petitioner does not contend that the Due Process
Clause forbids entirely the exercise of discretion in sen
tencing, even by a jury and even in a capital case. Ways
may be found to delimit and guide discretion, narrow its
scope, and subject it to review; and these may bring a grant
of discretion within constitutionally tolerable limits.
Whether the approach taken by a State such as Nevada,
which makes certain reviewable findings of fact the in
dispensable condition of imposing capital punishment (see
Nev. Rev. Stat. §200.363 (1967)); or the approach of Cali
fornia, which has adumbrated by judicial decision at least
some of the impermissible considerations against which
jurors are to be cautioned (see People v. Love, 53 Cal.2d
843, 350 P.2d 705 (I960)) ; or that of the Model Penal Code,
which both establishes prerequisite findings and enumerates
64
aggravating and mitigating circumstances (see A mekican
L aw I n stitu te , M odel P enal C ode, §210.6 (P.O.D. May 4,
1962), pp. 128-132); or that of the numerous States which
provide plenary review of capital jury sentencing by trial
and/or appellate courts, would be constitutional, is not the
question presented. Concededly, the goals of sentencing
are complex and in designing devices for achieving them
the States must have some tolerance.
But as the issue of petitioner’s sentence was submitted
to the jury in its sole discretion under Arkansas procedure,
the attention of the jurors was directed to none of the
purposes of criminal punishment, nor to any pertinent as
pect or aspects of the defendant’s conduct. They were not
invited to consider the extent of physical harm to the
prosecutrix, the moral heinousness of the defendant’s acts,
his susceptibility or lack of susceptibility to reformation,
the extent of the deterrent effect of killing the defendant
“pour decourager les autres.” Cf. Packer, Making the
Punishment Fit the Crime, 77 Harv. L. Rev. 1071 (1964).
They were permitted to choose between life and death upon
conviction for any reason, rational or irrational, or for no
reason at a ll; at a whim, a vague caprice, or because of the
color of petitioner’s skin.41 In making the determination to
impose the death sentence, they acted wilfully and unre-
viewably, without standards and without direction. Noth
ing assured that there would be the slightest thread of con
41 The court of appeals’ opinion states that the jury’s “choice
between capital punishment and life imprisonment . . . is not
startlingly or shockingly different from the situation where choice
of punishment within statutorily prescribed limits is for the
judge.” (App. A, p. 47a infra.) But—apart from the obvious
point that the choice between life and death is not just any sen
tencing choice— judges, unlike laymen, can be assumed to be aware
of the general purposes of criminal punishment, of relevant ag
gravating and mitigating factors, and of factors which cannot
properly be taken into consideration.
65
nection between the sentence they exacted and any rea
sonable justification for exacting it. Cf. Skinner v. Okla
homa, supra. To concede the complexity and interrelation
of sentencing goals, see Packer, supra, is no reason to sus
tain a procedure which ignores them all. It is futile to put
forward justification for a death so inflicted; there is no
assurance that the infliction responds to the justification
or will conform to it in operation. Inevitably, under such
a sentencing regime, capital punishment in those few, ar
bitrarily selected cases where it is applied, is both un
justifiable and lawless, and as shown by the record here,
conventionally imposed only on the members of minority
groups.
C. The Courts Below Erred in Rejecting Petitioner’s Constitu
tional Attacks Vpon the Arkansas Single-Verdict Procedure
for the Trial o f Capital Cases.
Arkansas’ practice of submitting simultaneously to the
trial jury the two issues of guilt and punishment in a cap
ital case compounds the vice of lawless jury discretion just
discussed, by making it virtually impossible for the jurors
to exercise their discretion in any rational fashion.42 Under
Arkansas procedure, the jury hears evidence simulta
neously on the issues of guilt and punishment, and resolves
both issues at a single sitting. Under this procedure, there
is no separate hearing on penalty apart from the criminal
trial itself, and no opportunity for allocution or for the
presentation of evidence in mitigation of sentence after
the finding of guilt but prior to the life-death sentencing
choice.
42 The court of appeals pointed out that “no request was made
of the district court for a two stage trial.” (App. A, p. 49a infra.)
But, again, the court clearly did not suggest that this amounted
to the sort of intentional bypassing required to forfeit constitu
tional claims as against federal habeas corpus. See note 38 supra.
66
The effect of this method of proceeding is obvious, and
devastatingly prejudicial to the accused. He is whipsawed
between his rights of allocution and to present evidence to
support a rational sentencing decision, and his privilege
against self-incrimination. If he wishes to address per
sonally the jurors solely with respect to their decision
whether he shall live or die, he can do so only at the price
of taking the stand and thereby surrendering his privilege.
He is subject not only to incriminating cross-examination
but also to impeachment. If he exercises the privilege, on
the other hand, he risks an uninformed, arbitrary, and un
compassionate death verdict. Should he wish to present
background and character evidence to inform the jury’s
sentencing choice, he may do so only at the cost of open
ing the question of character generally prior to the deter
mination of guilt or innocence, thereby risking the receipt
of bad-character evidence ordinarily excludable because
highly prejudicial on the guilt question. Or he may avoid
that risk of prejudice by confining the evidence at trial to
matters relevant to guilt, letting the jury sentence him to
life or death in ignorance of his character.
A procedure of this sort is unconstitutional, both be
cause it results in a fundamentally unfair trial and because
it infringes the several federal constitutional rights which
it sets at loggerheads. To appreciate why this is so, one
must begin by recognizing what this Court has several
times said, that much evidence which is not relevant to the
issue of guilt of the charge for which the capital accused
is on trial— evidence which, indeed, is prejudicial and in
admissible on the issue of guilt—is highly relevant to a
non-arbitrary decision on the question of punishment.
“ [M]odern concepts individualizing punishment have made
it all the more necessary that a sentencing judge not be
denied an opportunity to obtain pertinent information by
67
a requirement of rigid adherence to restrictive rules of
evidence properly applicable to the trial.” Williams v. New
York, 337 U.S. 241, 247 (1949); see also Williams v. Okla
homa, 358 TJ.S. 576, 585 (1959); Witherspoon v. Illinois,
391 U.S. 510, 521 n. 20 (1968). A fortiori, a jury engaged
in the task of determining whether a defendant shall live
or die needs much information that cannot and should not
be put before it within the confines of traditional and
proper limitations on the proof allowable as going to guilt
or innocence. It is fair to say that the overwhelming weight
of considered contemporary judgment concurs in the con
clusion that, whether discretionary death sentencing be
done by a judge or jury, it is the imperative condition of
rational sentencing choice that the sentencer consider more
information about the individual defendant than is likely
or permissibly forthcoming on trial of the guilt issue. E. g.,
H ouse of C ommons S elect C omm ittee on Capital P u n is h
m e n t , R eport (H.M.S.O. 1930), para. 177; R oyal C om
mission on Capital P u n is h m e n t , 1949-1953, R eport (H.M.
S.O. 1953) (Cmd. No. 8932), 6, 12-13, 195, 201, 207; A m er
ican L aw I n stitu te , M odel P en al C ode, Tent. Draft. No. 9
(May 8, 1959), Comment to 4201.6 at 74-76; N ew Y ork
S tate T emporary C ommission on R evision of tile P enal
L aw and C rim in al C ode, I nterim R eport (Leg. Doc. 1963,
No. 8) (February 1, 1963), 15-16; H.L.A. Hart, Murder and
the Principles of Punishment: England and the United
States, 52 Nw. U.L.Rev. 433, 438-439 (1957); Knowlton,
Problems of Jury Discretion in Capital Cases, 101 IJ.Pa.
L .R ev. 1099, 1109, 1135-1136 (1953) ; Handler, Background
Evidence in Murder Cases, 51 J. Cr im .L., C r im . & P ol.
S ci. 317, 321-327 (1960).
The single-verdict procedure therefore confronted peti
tioner, on trial for his life, with a gruesome Hobson’s
choice.
68
Petitioner had a crucial interest— amounting, indeed, to
an independent federal constitutional right, see Skinner v.
Oklahoma, 316 U.S. 535 (1942)—that his sentence be ra
tionally determined. The Constitution guaranteed him,
also, certain procedural rights in this sentencing process:
inter alia, “ an opportunity to be heard . . . and to offer evi
dence of his own.” Specht v. Patterson, 386 U.S. 605, 610
(1967); Mempa v. Rhay, 389 U.S. 128 (1967). As the basis
for a rational sentencing determination, he would want to
present to the sentencing jurors evidence of his history,
his character, his motivation, and the events leading up
to his commission of the crime of which he was guilty (if
he was guilty). The common-law gave him a right of allo
cution which is an effective vehicle for this purpose, as well
as for a personal appeal to the jurors, where capital
sentencing is discretionary. And this Court has already
recognized that allocution may in some circumstances rise
to the dignity of a due process command.43
43 Hill v. United States, 368 U.S. 424, 428-429 (1962); see
Andrews v. United States, 373 U.S. 334, 336-337 (1963). Acting
on these opinions, several circuit courts have found allocution a
constitutional right. Green v. United States, 313 F.2d 6 (1st Cir.
1963), cert, denied 372 U.S. 951 (1963) ; United States v. Johnson,
315 F.2d 714 (2d Cir. 1963), cert, denied, 375 U.S. 971 (1964);
Behrens v. United States, 312 F.2d 223 (7th Cir. 1962), aff’d, 375
U.S. 162 (1963).
The Hill case holds that, absent “aggravating” circumstances
(368 U.S. at 429), failure of a sentencing judge to invite the
defendant to exercise his right of allocution does not violate due
process. But Hill was not a capital case-, nor a case in which
counsel was denied the right to present pertinent information to
the senteneer, nor “ a case where the defendant was affirmatively
denied an opportunity to speak during the hearing at which his
sentence was imposed . . . [nor where the senteneer] was either
misinformed or uninformed as to any relevant circumstances . . .
[nor where it was even claimed] that the defendant would have
had anything at all to say if he had been formally invited to
speak.” Ibid. In an Arkansas capital ease, the following “aggravat
ing circumstances” are presented: (A ) the circumstances that the
right of allocution has had unique historical significance in capital
69
But to exercise his right of allocution before verdict on
the guilt issue, petitioner was required to forego Ms con
stitutional privilege against self-incrimination. Malloy v.
Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S.
609 (1965). He was required to take the stand and be sub
jected to cross-examination that could incriminate him.44
United States v. Jackson, 390 U.S. 570 (1968), holds that
the exercise of the Fifth Amendment privilege in criminal
trials may not be penalized or needlessly burdened. Simul
taneous submission to the jury of the guilt and death
cases, see Couch v. United Slates, 335 F.2d 519, 521 (D.C. Cir.
1956) (opinion of Judge F ahy); Coleman v. United States, 334
F.2d 558, 566 (D.C. Cir. 1964) (opinion of Judges Burger and
McGowan); (B) the circumstance that in capital cases matters
which may affect the sensitive discretion of the jury in its life-
death choice are traditionally viewed with a stricter eye to possi
bilities of prejudice than are other matters in the criminal process,
see People v. Hines, 390 P.2d 398, 37 Cal. Rptr. 622 (1964) ;
(C) the circumstance that Arkansas’ single verdict procedure “ af
firmatively” denies a defendant his opportunity to address the jury
on sentence, within the meaning of Hill, supra; (D) the circum
stance that, for the reasons set out above in text, a jury making
a capital sentencing choice on no other information than the trial
of the guilt issue allows is invariably “either misinformed or un
informed” within the meaning of ITill; (E) the circumstance that,
under the Arkansas procedure, not only is the defendant denied
the right to make a personal statement without giving up his con
stitutional privilege against self-incrimination, but he is similarly
denied the right to have his counsel supply evidence on the sen
tencing issue without incurring the risks of prejudice on the guilt
issue, see the Johnson and Behrens cases cited, supra; also Gadsden
v. United States, 223 F.2d 627 (D.C. Cir. 1955); Jenkins v. United
States, 249 F.2d 105 (D.C. Cir. 1957).
44 Even apart from cross-examination, allocution before verdict
of guilt destroys the privilege, for much of the value of the defen
dant’s personal statement to his sentencer derives from its spon
taneity, see Green v. United States, 365 U.S. 301, 304 (1961)
(opinion of Mr. Justice Frankfurter). This same spontaneity—
unguided by the questions of counsel—leaves the defendant im
permissibly unprotected as he appears before a jury which has
not yet decided on his guilt. Cf. Ferguson v. Georgia, 365 U.S.
570 (1961).
70
penalty issues results in just such a needless burden—
needless because the State has ample means to avoid it by,
for example, a bifurcated jury trial, judge sentencing, or
the elimination of the death penalty. Further, Simmons v.
United States, 390 XJ.S. 377, 394 (1968), where the question
was whether a defendant might be obliged either to give up
what he believed to be a valid Fourth Amendment claim or
“ in legal effect, to waive his Fifth Amendment privilege
against self-incrimination,” points the way to condemnation
of the “ undeniable tension” between constitutional rights
presented here. That case held it “intolerable that one
constitutional right should have to be surrendered in order
to assert another.” Ibid.
But the single-verdict practice which petitioner challenges
presents grave problems in addition to this conflict between
the right of allocution and the privilege. I f the defendant
seeks to present to the jury evidence of his background
and character, apart from his own statement, the prosecu
tion may counter with evidence of the defendant’s bad
character, including evidence of unrelated crimes. The
prohibition which ordinarily keeps this sort of evidence
from the trial jury sitting to determine the issue of guilt
is “ one of the most fundamental notions known to our
law,” United States v. Beno, 324 F.2d 582, 587 (2d Cir.
1963), arising “ out of the fundamental demand for justice
and fairness which lies at the basis of our jurisprudence,”
Lovely v. United States, 169 F.2d 386, 389 (4th Cir. 1948);
see Marshall v. United States, 360 XJ.S. 310 (1959). Allow
ing the trial jury access to unfavorable background infor
mation, however pertinent to the issue of punishment, and
however clearly limited by jury instructions to that use,
may itself amount to a denial of due process of law. Com
pare United States ex rel. Scoleri v. Banmiller, 310 F.2d
71
720 (3d Cir, 1962), cert, denied, 374 U.S. 828 (1963), with
United States ex rel. Rucker v. Myers, 311 F.2d 311 (3d
Cir. 1962), cert, denied, 374 U.S. 844 (1963). In any event,
the possibility that the background information will be
strongly prejudicial forces a defendant to a “choice between
a method which threatens the fairness of the trial of guilt
or innocence and one which detracts from the rationality
of the determination of the sentence.” A merican L aw I n
stitu te , M odel P enal C ode, supra at 64.
In this aspect the practice of simultaneous submission of
guilt and sentence to a jury is much akin to New York’s
former practice of simultaneously submitting to a jury the
two issues of the voluntary nature of a confession and the
guilt of the accused. The New York practice was, of course,
struck down in Jackson v. Denno, 378 U.S. 368 (1964), where
the Court recgnized that joint jury trial of the two issues
prevented either from being “ fairly and reliably deter
mined.” 378 U.S. at 389; see id. at 386-391. One fault of the
practice was that:
“ . . . an accused may well be deterred from testifying
on the voluntariness issue when the jury is present
because of his vulnerability to impeachment by proof of
prior convictions and broad cross-examination. . . .
Where this occurs the determination of voluntariness
is made upon less than all of the relevant evidence.
(378 U.S. at 389 n. 16).46
And see Bruton v. United States, 391 U.S. 123 (1968).
46 To the extent that petitioner’s argument on this branch of
his case draws sustenance from the radiations of the rule of Jack-
son v. Denno, text, supra, his argument is not weakened by Spencer
v. Texas, 385 U.S. 554 (1967), cited by the court of appeals.
The Spencer decision dealt with the Texas procedure for determin
ing the punishment decreed under its recidivist statutes, pursuant
to which a jury trying a criminal defendant was informed by a
72
It is in precisely the same manner that single-verdict
capital sentencing tends either to make trials of guilt
reading of the indictment that the defendant had been convicted
of prior crimes, and evidence was introduced in support of these
allegations during the course of trial. The procedure was attacked
on the ground that it unduly prejudiced the defendant on the
issue of guilt, in violation of the Due Process Clause. In rejecting
this attack, the Court held, inter alia, that Jackson v. Denno did
not require a two-stage jury trial for invocation of a state’s ha
bitual offender statute and that “ the emphasis [in Jackson] was
on protection of a specific constitutional right and the Jackson
procedure was designed as a specific remedy to insure that an in
voluntary confession was not in fact relied upon by the jury,” 385
U.S., at 565.
But no more “specific constitutional right” can be imagined than
that which prohibits the state’s taking of petitioner’s life pursuant
to a sentencing process which is irrational because sentencing
choice is made without information essential to the choice, Skinner
v. Oklahoma, supra; Specht v. Patterson, supra. And though the
Court in Spencer read Jackson as not broadly requiring a two-
stage jury proceeding whenever evidence of prior crimes which
might possibly prejudice the jury’s determination of the guilt
issue is presented at the trial (because of the justifications gen
erally accepted for permitting such evidence— see 385 U.S., at
560-61), Jackson’s holding that “a general jury verdict [is] not
a reliable vehicle for determining the issue of voluntariness [of a
confession] because jurors might have difficulty in separating the
issue of voluntariness from that of guilt or innocence,” 385 U.S. at
565, is unimpaired. See Burgett v. Texas, 389 U.S. 109 (1967) ;
Simmons v. United States, text, supra. That, by analogy, applies
with equal, if not greater force to the jury’s determination of the
issues of guilt and sentence in a capital case. The “specific remedy”
for reliably determining these issues enjoined on the courts by
Jackson, reinforced by Sims v. Georgia, 385 U.S. 538 (1967), and
endorsed by Spencer is that of separate consideration of the issues.
Moreover, there are crucial differences between the situation pre
sented here and that presented by the practice challenged in
Spencer. First, the sole claim urged by the petitioners in Spencer
was that the introduction of prior crime evidence before jury
verdict on the guilt issue unduly prejudiced the defendant on that
issue (385 U.S. at 559, 567) and was therefore unconstitutional
per se. Petitioner’s submission here differs. The effect of the single
verdict sentencing procedure which he challenges is to confront a
capital defendant with the grim specter of having to sacrifice one
or another of his precious constitutional rights, either allocution
73
unfair—by forcing the defense to present evidence poten
tially helpful on the punishment issue and prejudicial on
the issue of guilt—or to produce the unfair result that
men are sentenced to death “ upon less than all of the rele
vant evidence” if the defense declines to take that risk.46
Not only, in such a case, is the jury empowered to act
arbitrarily, see pp. 58-65, supra; it is virtually compelled
to do so for want of information upon which nonarbitrary
choice can be based. In short, although the Due Process
Clause guarantees a defendant a fair trial both on the
issue of guilt, e.g., Irvin v. Dowd, 366 U.S. 717 (1961),
and on the issue of punishment, e.g., Townsend v. Burke,
334 U.S. 736 (1948), the single-verdict procedure em
ployed in petitioner’s case deprives him of the one or the
other. Cf. Fay v. Noia, 372 U.S. 391, 440 (1963).
As the question in United States v. Jackson, 390 U.S.
570 (1968), was whether the provision of the federal kid
naping statute reserving the infliction of the death sentence
to the exclusive province of the jury “needlessly en
courages” guilty pleas and jury waivers and therefore
or self-incrimination. By whatever choice he makes, he is preju
diced on either the issue of guilt or sentence; and he must decide—
with his life at stake—which kind of prejudice to invite. Cf.
Whitus v. Balkcom, note 46, infra. Also, while in Spencer the
juries were given limiting instructions to guide their considera
tion of the prior crime evidence on the guilt issue, the jury’s dis
cretion in sentencing choice under Arkansas law is not limited or
regulated in any way. See pp. 58-65, supra. Hence there is more
than “ the possibility of some collateral prejudice” (385 U.S. at 564)
which the Court in Spencer thought not of sufficient gravity to
condemn the procedure there attacked.
Finally, the Arkansas procedure has been shown on this record
to have resulted in a pattern of racially discriminatory death sen
tencing. This goes far toward satisfying the concern of the Spencer
court over the lack of a convincing showing of prejudice.
46 Such a “ ‘grisly,’ hard, Hobson’s choice” is itself so unfair as
to violate due process. See Whitus v. Balkcom, 333 F.2d 496, 499
(5th Cir. 1964).
74
“needlessly chill[s] the exercise of basic constitutional
rights,” 390 U.S., at 582, 583, so the question here is
whether the simultaneous trial of guilt and punishment
needlessly encourages the waiver of the right to remain
silent or needlessly chills the right to put in evidence rele
vant to rational sentencing and the right of allocution.
“ The question is not whether the chilling effect is ‘inci
dental’ rather than intentional; the question is whether
that effect is unnecessary and therefore excessive.” 390
U.S., at 582. That question, put in focus by the ready
availability of alternative modes of procedure not in
volving this dilemma— such as the split-verdict procedure
now in use in a number of jurisdictions47 and uniformly
recommended by modern commentators, see Frady v.
United States, 348 F.2d 84, 91 n. 1 (D.C. Cir. 1965)
(McGowan, J . ) ; cf. United States v. Curry, 358 F.2d 904,
914 (2d Cir. 1965)—presents at the least a significant issue
of the fairness required by due process in trials where
life is at stake, which this Court should grant certiorari
to determine.48
47 A man tried on a capital charge in California, Connecticut,
New York, Pennsylvania and Texas receives first a hearing on in
nocence or guilt; then, after a finding of guilt, a separate hearing
on the issue of punishment. In view of the availability of this
alternative “split-verdict” mode of procedure which does not
entail the deprivation of petitioner’s rights, the constitutionally
unfair single-verdict procedure used in petitioner’s case can ob
viously not be defended on the ground of necessity. Petitioner, of
course, does not contend that the State is constitutionally com
pelled to have a bifurcated trial. The bifurcated trial is only one
of the alternatives available to the State which do not entail the
needless burden on capital defendants’ constitutional rights here
complained of.
48 Cf. Witherspoon v. Illinois, 391 TJ.S. 510, 520 n. 18 (1968),
noting that if a defendant could establish that a jury which was
representative with respect to penalty was not representative with
respect to guilt,
“ the question would then arise whether the State’s interest in
submitting the penalty issue to a jury capable of imposing
75
II.
The Courts Below Erred in Rejecting Petitioner’ s
Attack Upon the Arkansas Scheme of Juror Selection,
Which Provides the Opportunity for Racial Discrimina
tion Proscribed by Whitus v. Georgia.
At the time of petitioner’s trial, Arkansas law required
the selection of jurors from electors, defined as those who
had paid their county poll tax; and the names of such
persons were required t o . be kept in a bound poll tax
book where they were designated by race. Moreover, the
jury list itself indicated race, 348 F.2d 332. These cir
cumstances, we submit, bring this case within the ambit
of Whitus v. Georgia, 358 U.S. 545 (1967); and the Eighth
Circuit’s rejection of the controlling force of Whitus
merits review here.
Whitus held that a Georgia system of jury selection
was unconstitutional because it provided the opportunity
for racial discrimination in the juror-selection process.
As the Court noted, the claim made in Whitus was “that
Georgia’s system of jury selection resulted in the sys
tematic exclusion of Negroes from both the grand and
petit juries in that its law required jury commissioners to
select the names of prospective jurors from the books of
the county tax receiver which were maintained on a ra
cially segregated basis.” 385 U.S., at 546 (emphasis added).
The Court stated that “ the jury lists for each county are
required by law to be made up from the tax digest.” 385
capital punishment may be vindicated at the expense of the
defendant’s interest in a completely fair determination of guilt
or innocence— given the possibility of accommodating both in
terests by means of a bifurcated trial, using one jury to decide
guilt and another to fix punishment.”
76
U.S., at 549 (emphasis added), and found that the jury
lists “had been made up by reference to . . . the 1964 tax
digest which had been prepared from the white and yellow
tax return sheets of that year.” Ibid. (The white tax re
turn sheets designated white taxpayers and the yellow,
Negro taxpayers. 385 U.S., at 548.) In this state of the
record the Court held that the revised jury list from which
the jurors were selected to try the defendant in that case
“was suspect because of the system by which it was re
quired to be prepared.” 385 U.S., at 551.
“Under such a system the opportunity for discrimination
was present and we cannot say on this record that it
was not resorted to by the commissioners.” 385 U.S., at
552.
The parallels between the Georgia juror-selection system
thus condemned and the Arkansas system used in peti
tioner’s case are apparent. Under Arkansas law jurors
were required to be selected from electors, whose names
were required to be listed in racially designated poll tax
books. This requirement without more provides the op
portunity for racial discrimination. As the decision in
Whitus indicates, it is the system which the law requires
that makes any action taken under it unconstitutional.
Hence, the reliance placed by the Court of Appeals on evi
dence that “ the petit jurors were not selected from . . . [the
racially designated elector] lists, although the lists were
later checked, as they had to be, in order to determine that
the jurors selected were qualified electors” (App. A, p. 52a
infra), is misplaced. Moreover, even if, under Whitus,
courts are to look beyond the legally established system
for selecting electors, it is clear that the “ later check” of
the racially designated books, conceded by the court of ap
peals, provided “the opportunity for discrimination” which
77
the Constitution condemns.49 The court of appeals’ pur
ported distinction of Whitus on the grounds that in Max
well’s case reference was made to the racially designated
books only after an initial selection of jurors had been
made, cannot stand. In Whitus too there was a source for
the “ revised” jury list independent of the prohibited tax
digest— specifically, personal acquaintance of the commis
sioners with persons in their respective communities.60
49 The Court observed in Whitus-.
“ The three jury commissioners who appeared as witnesses
testified that they were not aware of the letter V appearing
after the names of the Negroes on the 1964 tax digest; that
they never included or excluded anyone on the ‘revised’ jury
list because of race or color; that they placed on the ‘revised’
jury list those persons whom they knew personally from their
respective communities; that there were around 600 selected;
and that the ‘revised’ list, which the commissioners themselves
prepared, had no designation of race upon it.” (385 U.S., at
549.)
Yet despite this testimony, the Court held that the juror-selection
system was unconstitutional, because the revised list had been made
up “by reference to” an old jury list, previously condemned on
racial grounds, and a racially designated tax digest.
The jury commissioners in Maxwell’s ease also testified that they
did not discriminate but did admit that they consulted the tax
books to ascertain whether the names they had proposed for jury
service appeared in the books. It is obvious that if the commis
sioners could consult the tax books for this purpose they could
consult them also for the purpose of racial exclusion. As Mr.
Justice Frankfurter stated in Avery v. Georgia, 345 U.S. 559
(1953), to which this Court referred in Whitus (385 U.S., at 551) :
“We may accept the testimony of the judge who drew the
slips from the box as to the honesty of his purpose; that
testimony does not refute the fact that there were opportuni
ties to discriminate, as experience tells us there will inevitably
be when such differentiating slips were used.” (345 U.S., at
564.)
60 In Whitus the Court stated that “ The ‘revised’ jury list was
made up from the 1964 tax digest, the old jury list and the per
sonal acquaintance of the commissioners with persons in their
respective communities.” (385 U.S., at 550; emphasis added.)
78
As the great bulk of decisions in the jury discrimination
field attests, what is determinative of the question of dis
crimination is not the protestation of innocence by jury
officials, nor indeed their good faith, but whether the system
is one that assures a fair juror selection process. The state
must not provide any unnecessary “opportunity to discrimi
nate,” cf. Anderson v. Martin, 375 U.S. 399 (1964), since if
the occasion for racial discrimination is present it may be
used. This is the teaching of Whitus, as evidenced in sub
sequent applications by this Court. Bostwick. v. South Caro
lina, 386 U.S. 479 (1967); Cobb v. Georgia, 389 U.S. 12
(1967); Sims v. Georgia, 389 U.S. 404 (1967); Anderson v.
Georgia, 390 U.S. 206 (1968); Sullivan v. Georgia, 390 U.S.
410 (1968).
The court below argued further that. Whitus was distin
guishable because of a serious disproportion between Negro
population and representation as jurors, whereas “ in Max
well’s case . . . we have no question whatsoever of inappro
priate Negro representation on the G-arland County jury
list.” (App. A, p. 53a infra.) But in Williams v. Georgia,
349 U.S. 375, 382 (1953), cited in Whitus, the Court said:
“ it was the system of selection and the resulting danger
of abuse which was struck down in Avery and not an
actual showing of discrimination on the basis of com
parative numbers of Negroes and whites on the jury
lists.” (Emphasis added)
And the Court in Whitus noted that “the circumstances here
are akin to those condemned in Avery v. Georgia . . . .” (385
U.S., at 551.)
A system which requires racial designations in the
sources of juror selection, thus offering the opportunity
for discrimination, must, under Whitus, he condemned. At
79
the very least, the existence of such a system constitutes,
under Whitus, a prima facie case of discrimination, shifting
the burden to the State to show that in fact no discrimina
tion took place. This Court should grant certiorari to con
sider the propriety of the holdings below that petitioners
had not only to prove the existence of a scheme providing
the opportunity for discrimination, but, in addition, the
actual practice of discrimination.
CONCLUSION
Petitioners pray that the petition for a writ of certiorari
be granted.
Respectfully submitted,
J ack Greenberg
J am es M. N abrit , I I I
N orman C. A m aker
M ichael M bltsneb
J ack H im m elstein
E lizabeth B . D u B ois
10 Columbus Circle
New York, New York 10019
G eorge H oward, J r,
329% Main Street
Pine Bluff, Arkansas 71601
A n t h o n y G. A msterdam
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Attorneys for Petitioner
APPENDIX
APPENDIX A
M e m o ra n d u m O p in io n o f th e D is tr ic t C ou rt
Is* THE
UNITED STATES DISTRICT COURT
E astern D istrict o r A rkansas
P in e B lu ff D ivision
PB-66-C-52
W illiam L. M axw ell ,
-—-v.-—
Petitioner,
0. E. B ish o p , Superintendent of the Arkansas
State Penitentiary,
Respondent.
This is a habeas corpus proceeding wherein petitioner,
William L. Maxwell, attacks collaterally for the second time
his 1962 conviction in the Circuit Court of Garland County,
Arkansas, of the crime of forcible rape. The sentence im
posed upon him was death, Ark. Stats. Ann., §41-3103.
Petitioner, a Negro man, was charged with raping a 35
year old, unmarried white woman on the night of November
3,1961. He pleaded not guilty and was tried before a jury.
During the trial and during subsequent proceedings in the
State court petitioner was represented by capable counsel
of his own choice. Following the pronouncement of sen
tence and entry of judgment by the Circuit Court, petitioner
appealed to the Supreme Court of Arkansas where his con
2a
viction was affirmed. Maxwell v. State, 2o6 Ark. 694, 3/0
S. W. 2d 113.
Subsequently, in early 1964 shortly before his scheduled
execution petitioner tiled in this Court a petition for habeas
corpus challenging his conviction and sentence on a number
of federal constitutional grounds. The case was assigned
to District Judge Gordon E. Young who held a full evi
dentiary hearing and tiled a detailed memorandum opinion
denying the petition. Maxwell v. Stephens, E. D. Ark., 229
F. Supp. 205. The Court of Appeals, one judge dissenting,
affirmed. Maxwell v. Stephens, 8 Cir., 348 F. 2d 325. In
late 1965 the Supreme Court of the United States denied
certiorari. Maxwell v. Stephens, 382 U. S. 944.
In due course the Governor of Arkansas scheduled the
execution of petitioner for late July 1966; however, the
execution was stayed administratively until September 2.
That stay is still in effect.
Instant petition was filed on July 21, 1966. On August 5
a pre-trial conference was held, and the case was set for
hearing on the merits on August 22. That hearing has been
held as scheduled. The Court has given careful considera
tion to the materials before it, including oral testimony
and documentary evidence. This opinion incorporates the
Court’s findings of fact and conclusions of law.
In the petition now before the Court petitioner alleges
certain things that he alleged in his initial habeas corpus
action; some things that were alleged in that action are
not alleged here;1 and the present petition contains some
allegations that did not appear in the original proceeding,
1 Contentions made in the original proceeding and not urged
here are: that petitioner was the victim of an unlawful arrest;
that there was an unlawful search of petitioner’s person and home;
that evidentiary material was unlawfully seized in the course of
the searches; that petitioner was mistreated physically and that a
Memorandum Opinion of the District Court
3a
Memorandum Opinion of the District Court
Petitioner now contends that racial discrimination was
practiced in the selection of the petit jury which tried and
convicted him;* that it is unconstitutional to put anyone
to death for the crime of rape;* that certain Arkansas stat
utes to be mentioned dealing with the crime of rape and the
punishment to be imposed therefor have been applied un
constitutionally to Negro men convicted of raping white
women;* that certain Arkansas statutes dealing with the
imposition of the death penalty and certain Arkansas trial
procedures in capital cases amount to a denial of due proc
ess of law; that petitioner was mentally incompetent to
stand trial in the State court, and that his mental condition
is now such that it would be unconstitutional to put him to
death.2
In his pleadings respondent denies that any of peti
tioner’s contentions have merit and, in addition, pleads res
judicata, that is to say, respondent asserts that all conten
tions made here wTere either raised or could have been
raised in the original proceeding in this Court and should
not now be considered.
As far as respondent’s plea of res judicata is concerned,
it is settled that the conventional rule that issues which
were litigated or which could have been litigated in an
confession was extorted from him; that petitioner was tried in a
hostile atmosphere. All of those contentions were considered and
rejected by Judge Young; not all of them were urged on appeal;
those that were were rejected by a majority of the Court of
Appeals. This Court considers that all of the contentions not
brought forward into this proceeding have been abandoned or
that their lack of merit has been established in the original col
lateral attack on the State court judgment.
2 The asterisks appearing in text indicate that the contention
marked by the asterisk was raised in the original habeas corpus
case.
4a
original proceeding will not be again examined in a suDse-
quent proceeding between the same parties or their privies
does not apply with strictness to habeas corpus proceedings
in the federal courts. Whether a federal court will enter
tain a successive application for a writ of habeas corpus,
and whether and to what extent such a court will consider
in connection with a successive petition matters which
were or could have been determined in the original pro
ceeding are questions addressed to the sound discretion of
the court. See 28 U. S. C. A., §2244; Sanders v. United
States, 373 U. S. 1; Simcox v. Harris, 8 Cir., 324 F. 2d 377.
Of course, the fact that a specific contention brought for
ward in a successive application has been considered and
rejected in connection with an earlier application is a
factor to be considered by the court to which the successive
application is addressed.
In this connection the Court in its pre-trial conference
order in this case cautioned counsel for petitioner that if
they knew of any constitutional grounds for attack on his
conviction which had not been raised, such grounds should
be brought forward in this proceeding since the Court
“would be most reluctant to consider in some subsequent
proceeding any grounds of attack which could have been
raised in this proceeding.” No contentions other than those
previously mentioned have been made.
Taking up first the attack on the make-up of the jury,
petitioner’s complaint is that the Garland County jury
commissioners chose the members of the jury panel from
tax records identifying poll tax payers by race. That is the
same complaint about the jury which was made in the origi
nal habeas corpus case, and the record here is the same as
the one before the Court in that case. The matter was con
sidered thoroughly by Judge Young and by the Court of
Memorandum Opinion of the District Court
5a
Appeals and, as indicated, the argument was rejected. This
Court sees no occasion to reexamine the question and is
not persuaded to do so by the action of the Supreme Court
in recently granting certiorari in the case of Sims v. Geor
gia, 384 U. S. 998, noted in 34 U. S. Law Week 3429.
The Court finds it convenient to consider next the con
tentions with respect to the mental condition of petitioner.
As to the mental condition of petitioner at this time, it
was agreed following the pre-trial conference that petitioner
would be examined by the staff of the Arkansas State Hos
pital for Nervous Diseases. The examination was made and
petitioner was found to be without psychosis. He thus, in
effect, had the benefit of the post-conviction examination
contemplated by Ark. Stats. Ann., §43-2622. In addition,
at the request of counsel for petitioner he was examined by
Dr. William G. Bees, Professor of Psychiatry and head of
the Department of Psychiatry at the University of Arkan
sas Medical Center. Dr. Rees also found petitioner to Be
without psychosis. Petitioner was present at the hearing
and was observed by the Court; the Court noted no irra
tionality in petitioner’s behavior, and petitioner gave no
evidence of present mental incompeteney. While the con
tention has not been abandoned formally, it has not been
pressed, and the Court finds it to be without merit.
With respect to petitioner’s mental incompetency in 1962
to stand trial for the offense allegedly committed in No
vember 1961, the thrust of the argument seems to be not
so much that petitioner was in fact mentally incompetent
to stand trial but rather that in the circumstances the
Circuit Court was required to make a judicial determination
of his competency, that no such determination was made,
and that its absence voids the conviction. Pate v. Robinson,
383 U. S. 375; see also United States ex rel. Robinson v.
Pate, 7 Cir., 345 F. 2d 691.
Memorandum Opinion of the District Court
6a
Memorandum Opinion of the District Court
The facts in that case were that the defendant, Eobinson,
was tried to the court without a jury in Illinois on a charge
of first degree murder; his defense was insanity, and his
mental condition both at the time of the commission of the
alleged offense and at the time of trial were directly in issue
in the case. He had a long history of behavior indicating
serious mental disease; that history was brought out by
testimony in the course of the trial, and four witnesses
testified that in their opinion defendant was insane. In the
course of the trial the prosecuting attorney conceded that
there was doubt as to the sanity of the defendant and
suggested that a psychiatrist in the employ of Cook County
be called as a witness. Notwithstanding the fact that a stat
ute of Illinois provided that whenever the evidence raises
a “ bona fide doubt” as to a defendant’s competency to stand
trial, it is the duty of the judge on his own motion to im
panel a jury to pass on the question,3 the trial judge indi
cated that it was not necessary for the State to call the
psychiatrist, did not impanel a jury to consider the ques
tion of Eobinson’s sanity, and found the defendant guilty
without making any specific finding as to his competency
to stand trial. Both the Court of Appeals and the Supreme
Court held that this action amounted to a denial of due
process of law.
The facts in this case are quite different from those in
Robinson. As far as petitioner’s mental competency is
concerned, the transcript of the proceedings in the Circuit
Court reflects the following:
On November 7, 1961, an information was filed by the
Prosecuting Attorney charging petitioner with the crime of
3 111, Rev. Stat., c. 38, §104-2, referred to in the opinions of
both the Supreme Court and of the Court of Appeals.
7a
rape committed on November 3. On November 28, 1961, it
having been made to appear to the Court that petitioner
desired counsel and was without means to employ counsel,
an order was entered appointing two members of the Hot
Springs, Arkansas Bar to represent petitioner without
charge. On November 30 those attorneys proceeding under
the provisions of Ark. Stats. Ann., §§43-1301 et seq. filed
a petition for an order committing petitioner to the State
Hospital for observation and report ;4 on the same day the
petition was granted and petitioner was committed for a
period of not more than one month. Petitioner was de
livered to the Hospital authorities on December 1, and
the Hospital staff made its report on December 29.
The Hospital report, signed by Dr. E. W. Crow, the
examining physician, and approved by Dr. George W. Jack-
son, the Hospital superintendent, contained a diagnosis of
“without psychosis.” The report recited that it was the
opinion of the examining physician and of the joint psy
chiatric staff that petitioner “ was not mentally ill, to the
degree of legal irresponsibility at the time of this mental
examination” and “was probably not mentally ill, to the
degree of legal irresponsibility at the time of the alleged
commission of his acts.” 5
On January 15, 1962, petitioner, still represented by his
appointed attorneys, was arraigned and entered a plea of
not guilty. No suggestion was made to the Circuit Judge
that petitioner was not mentally competent to plead or to
4 The filing of such a petition is not an uncommon practice in
Arkansas in eases involving sexual offenses even where there is
no real question as to the sanity of the defendant; the request
may be made as a precautionary measure or at least as a time
gaining device.
5 The language of the report tracks the language of the statute.
See Trotter and Harris v. State, 237 Ark. 820, 822, 377 S.W. 2d
14, .
Memorandum Opinion of the District Court
8a
stand trial. On February 5 the case was set for trial, but
a telegram was received by the Prosecuting Attorney to the
effect that Mr. Christopher C. Mercer, Jr., a Negro attorney
of Little Rock, had been employed to represent petitioner;
accordingly, the setting was cancelled, and the case was
passed for the time being. On the same day Mr. Mercer
moved for a continuance of the case. That motion was
granted, and by agreement the case was set for trial on
March 19. At this point in the proceedings petitioner’s
appointed counsel were permitted to withdraw from the
case.
Prior to the trial the Circuit Court was not requested to
hold any sanity hearing or to take any testimony as to the
mental condition of the accused; insanity was not an issue
at the trial. No question of petitioner’s mental competency
was raised in connection with his appeal to the Supreme
Court of Arkansas nor in connection with the original
habeas corpus proceeding which he filed in this Court.
Conceding that Pate v. Robinson, supra, emphasizes that
it is a denial of due process of law to put a person to trial
on a criminal charge when he lacks the mental competency
to stand trial, this Court does not believe that that decision
or any other decision makes it the constitutional duty of
State trial judges to hold sanity hearings on their own
motion simply because there has been a routine pre-trial
psychiatric examination of the defendant resulting in a
negative report.
Certainly, in connection with this successive application
for habeas corpus this Court is not willing to hold that the
absence of a sanity hearing in the State court deprived peti
tioner of any federally protected right. It must be remem
bered that at the trial of the case petitioner was repre
sented by an attorney not only of his own choice but also
Memorandum Opinion of the District Court
9a
of his own race. Presumably, if petitioner had been unable
to comprehend the nature of the proceedings, to understand
the charges against him, or to communicate intelligently
with his attorney relative to his defense, that inability
would have manifested itself to counsel prior to or during
the trial and counsel would have brought the matter to the
trial court’s attention.
After petitioner’s conviction his attorney filed a long mo
tion for a new trial attacking the conviction on 40 grounds;
mental incompetency was not one of them.
In the course of the pre-trial conference in this case,
which was attended by Mr. Mercer although he does not rep
resent petitioner in this case, the question of petitioner s
mental competency to stand trial was discussed to some
extent and nothing was said which would indicate that there
is any real basis for belief that petitioner was not mentally
competent in 1962. Nor is there anything in the reports
of the State Hospital Staff or of Dr. Bees, which would
form the basis for such a belief. Petitioner may be of some
what low mentality, but mere mental weakness is not the
equivalent of mental incompetency to stand trial or to be
held guilty of a crime.
Before discussing the remaining contentions of petitioner
the Court considers it advisable in the interest of precision
to make some general comments relative to sentencing pro
cedures in the Arkansas courts.
In all non-capital criminal cases, whether felonies or mis
demeanors, which are tried to juries, the jury affirmatively
fixes within statutory limits the punishment to be imposed.
If the jury agrees that the defendant is guilty but is un
able to agree on the punishment, it may, if it desires to do
so, return the verdict of guilty and request the judge to
fix the punishment.
Memorandum Opinion of the District Court
1 0 a
In capital cases the procedure is somewhat different.
Under the substantive criminal code of Arkansas the pun
ishment, and the only punishment, provided for a capital
offense, such as first degree murder or rape, is death by
electrocution. However, by virtue of Act 187 of 1915, which
now appears as Ark. Stats. Ann., §43-2153, a trial jury in a
capital case has the right to render a “verdict of life im
prisonment in the State penitentiary at hard labor” in lieu
of the death penalty. But, if the defendant is found guilty
and punishment is not assessed at life imprisonment, the
legal penalty is automatically death.
It is thus not correct, strictly speaking, to say that Arkan
sas juries “ impose the death penalty” on anyone. Bather,
those juries have the right in a sense to exercise clemency
toward particular defendants by assessing the penalty of
life imprisonment at hard labor in a capital case.
The Arkansas statutes attacked by petitioner in general
and in their application to Negro men convicted of raping
white women are Ark. Stats. §41-3403 and §43-2153, read
together.
The basic argument that it is unconstitutional to inflict
the death penalty upon any person for the crime of rape
presents a question of law only which has been ruled upon
adversely to petitioner by Judge Young and by the Court
of Appeals. A possible variant of that basic argument to
the effect that it is unconstitutional to permit a jury of
twelve people, with responsibility divided among them, to
determine ultimately whether a person convicted of a capi
tal crime shall suffer death or be imprisoned for life is like
wise rejected by this Court. If a State can constitutionally
impose the death penalty for a crime, this Court sees no
constitutional objection to permitting a jury rather than
a trial judge to decide whether that penalty shall be imposed
Memorandum Opinion of the District Court
Memorandum Opinion of the District Court
in a particular case. And in this connection it might be
pointed out that the obvious purpose of section 43-2153 is
to permit juries to extend a degree of mercy to defendants
convicted of capital crimes, not to make the assessment of
the death penalty easier or more likely.
The argument is made, however, that in any event it is
a denial of due process to permit a jury to make its deter
mination solely by the exercise of its collective discretion
without standards or guide lines laid down in the statutes,
or judicial decisions, or in the instructions of the court.
It may be conceded that the Arkansas statutes dealing
with rape and dealing with capital punishment do not
purport to set up any standards by which the jury is to
exercise its discretion in determining whether it should
exercise the power conferred upon it by section 43-2153,
and it will be assumed that no such standards are to be
found, in the reported decisions of the Supreme Court of
Arkansas. Nor did the Circuit Court in its charge to the
jury attempt to lay down any principles which should be
applied in determining whether petitioner, if convicted,
should be punished by life imprisonment rather than by
death.6
The Court does not think, however, that it is constitu
tionally necessary for specific standards or guide lines to
be laid down or brought to the attention of the jury.
Whether a convicted rapist or murderer is to suffer death,
on the one hand, or life imprisonment, on the other, rests
under Arkansas procedure, within the discretion of the
jury, to be exercised in the light of the judgment, common
sense, and experience of the jurors. Jurors are presumed
6 It does not appear that counsel for petitioner requested any
instructions on the subject.
12a
Memorandum Opinion of the District Court
to be persons of good judgment and common sense. If they
do not know without being told that in determining whether
clemency should be extended in a given case they should
take into consideration all of the relevant facts and cir
cumstances shown in evidence and should weigh aggravat
ing circumstances, if any, against mitigating circumstances,
if any, no useful purpose will be served by telling them.
On this phase of the case petitioner again relies on a
very recent Supreme Court decision. Giaccio v. Pennsyl
vania, 382 U. S. 399. Again, his reliance is misplaced.
Giaccio involved a peculiar 1860 statute of Pennsylvania
which permitted a jury in a misdemeanor case to deter
mine by its verdict whether a defendant acquitted on a mis
demeanor charge might nonetheless be taxed with the costs
o f the prosecution. Giaccio was tried on a misdemeanor
charge; the jury found him not guilty but taxed him with
the costs. The statute itself prescribed no standards by
reference to which the jury was to determine whether an
acquitted defendant should be charged with costs. How
ever, Pennsylvania decisions had established that costs
were not to be charged against an acquitted defendant un
less his conduct had been “ ‘ reprehensible in some respect,’
‘improper,’ outrageous to ‘morality and justice,’ or that his
conduct was ‘not reprehensible enough for a criminal con
viction but sufficiently reprehensible to deserve an equal
distribution of costs’ or that though acquitted ‘his innocence
may have been doubtful.’ ” 382 U. S. at page 404. The
jury was instructed “ that it might place the costs of prose
cution on the appellant though found not guilty of the
crime charged, if the jury found that ‘he has been guilty
of some misconduct less than the offense which is charged
but nevertheless misconduct of some kind as a result of
which he should be required to pay some penalty short of
13a
Memorandum Opinion of the District Court
conviction (and) . . . Ms misconduct lias given rise to the
prosecution.’ ” Ibid.
The trial court ultimately held the statute unconstitu
tional, but the State appellate courts disagreed. There was
an appeal to the Supreme Court of the United States, and
that Court held the statute unconstitutionally vague not
withstanding the construction which had been placed upon
it by the courts of Pennsylvania. In concurring opinions
Justices Stewart and Fortas thought it sufficient to say
simply that it is unconstitutional to tax the costs of the
prosecution against an acquitted defendant.
Evidently, the majority of the Court were not unmindful
that it might be contended that the holding would be used
to attack the practice prevailing in many States, including
Arkansas, of permitting juries finding defendants guilty
to fix the punishments within legal limits. And the Court
expressly noted that it intended “ to cast no doubt whatever
on the constitutionality of (that) practice.” 382 U. S. at
page 405, f.n. 8.
It is true that in his concurring opinion Mr. Justice
Stewart said (p. 405 of 382 U. S.) :
“ . . . It seems to me that, despite the Court’s dis
claimer, much of the reasoning in its opinion serves
to cast grave constitutional doubt upon the settled
practice of many States to leave to the unguided dis
cretion of a jury the nature and degree of punishment
to be imposed upon a person convicted of a criminal
offense. Though I have serious questions abouf the
wisdom of that practice, its constitutionality is quite
a different matter. . . . ”
Whether the interpretation which Justice Stewart places
upon the reasoning of the majority turns out to be accurate
14a
remains to be seen; for the present at least this Court will
accept the majority’s disclaimer at face value. And, the
Court thinks that the Arkansas practice, which has been
described, falls within the terms of the disclaimer.
The contention which has been urged most seriously here,
and which has been ably argued by Professor Amsterdam
of the University of Pennsylvania Law School, who is of
counsel in the case, is that Arkansas juries customarily
apply Ark. Stats. Ann., §§41-3403 and 43-2153 in a racially
discriminatory and unconstitutional manner to Negro men
who have been convicted of raping white women so that
a disproportionate number of such defendants receive the
death penalty. And it is argued that it makes no difference
that the sentence results from negative jury action in fail
ing to assess punishment at life imprisonment rather than
from affirmative jury action in voting the sentence of death.
The same contention was made in the State courts and,
as indicated, was urged before Judge Young and before
the Court of Appeals. In those proceedings petitioner
sought to establish his thesis by the use of execution records
of the State of Arkansas and by records of sentences im
posed in rape cases over a period of time in Garland,
Pulaski, and Jefferson Counties. The statistics which peti
tioner was able to produce in the earlier proceedings were
not convincing to the Courts concerned.
In the instant case petitioner relies upon the results of
a study made in 1965 by Professor Marvin Wolfgang, a
well qualified sociologist and criminologist on the faculty
of the University of Pennsylvania. Dr. Wolfgang, whose
qualifications to testify as an expert are not questioned
and are established, testified at the hearing, and a written
report prepared by him, together with certain other rele
Memorandum Opinion of the District Court
15a
Memorandum Opinion of the District Court
vant documentary material, was received in evidence with
out objection.
The background facts of the Wolfgang study may be
summarized as follows:
In early 1965 Dr. Wolfgang was engaged by the NAACP
Legal Defense and Educational Fund, Inc. to make a study
of rape convictions in a number of southern States, includ
ing Arkansas to prove or disprove the thesis that in those
States the death penalty for rape is disproportionately
imposed upon Negro men convicted of raping white women.
Dr. Wolfgang was apprised of the fact that the results
of his study might well be used in litigation such as the
instant case.
As far as Arkansas is concerned, Dr. Wolfgang caused
Mr. John Monroe, a qualified statistician, to select a repre
sentative sample of Arkansas counties with reference to
which the study would be made. The sample drawn by Mr.
Monroe, who testified at the hearing, consisted of 19 coun
ties in the State.
During the summer of 1965 law students interested in
civil rights problems were sent into Arkansas to gather
basic data with respect to all rape convictions in the sample
counties for a period beginning January 1, 1945, and ex
tending to the time of the investigation. Data obtained as
to individual cases were recorded on individual case
schedules. When the work was completed, the individual
schedules were turned over to Dr. Wolfgang for evaluation.
The investigation brought to light 55 rape convictions
during the study period involving 34 Negro men and 21
white men. The offenses fell into three categories, namely:
rapes of white women by Negro men; rapes of Negro women
by Negro men; and rapes of white women by white men.
Memorandum Opinion of the District Court
No convictions of white men for raping Negro women were
found.
Dr. Wolfgang found that of the 34 Negroes convicted of
rape 10 had been sentenced to death and 24 had been sen
tenced to life imprisonment; the corresponding figures for
the white offenders were 4 and 17. The witness did not
consider that particular variation to be of great significance.
But he did attach great significance to the fact that of the
19 Negroes convicted of raping white women 9, or nearly
50 percent, had been sentenced to death, whereas in other
racial situations only 5 death sentences had been imposed,
those 5 sentences representing only about 14 percent of
the total sentences imposed in those situations.7
Using recognized statistical procedures Dr. Wolfgang
undertook to determine whether the differential in the im
position of the death sentence was due to some factor other
than the association between Negro offender and white
victim. He concluded, and the Court agrees, that the differ
ential could not be due to the operation of the laws of
chance.
The witness then proceeded to consider race in relation
to certain variables appearing in rape cases,8 and also to
7 The figures just given relate to convictions and sentences im
posed. Actually those figures involve some duplications of indi
viduals. The overall record reflects that two Negroes were convicted
twice of raping white victims and received the death sentence
each time. One Negro was convicted twice of raping two Negro
women and received a life sentence in each case. And two white
men were each convicted twice of raping two white women; in
each instance the original sentence imposed was life imprisonment,
and the second sentence was death.
8 Generally speaking, and subject to certain exceptions, the
variables appear to the Court to be facts or circumstances which
reasonably might be supposed to either aggravate or mitigate a
given rape. Variables included, but were not limited to, such
17a
consider sentences imposed in relation to such variables.
He found that race had significant associations with certain
variables but not with others, but he also found that in
general the sentences imposed had nothing significant to
do with the variables, other than the combination of Negro
offenders and white victims.
Without stopping to go into further detail, the Court
will state that it understands Dr. Wolfgang’s conclusion
to be that a Negro man who is convicted of raping a white
woman has about a 50 percent chance of receiving a death
sentence, regardless of the facts and circumstances sur
rounding the crime, whereas a man who is convicted of
criminally assaulting a woman of his own race stands only
about a 14 percent chance of receiving the death sentence.
Petitioner has made no effort here to show that the in
dividual jury which tried and convicted him acted in his
particular case with racial discrimination. Rather, peti
tioner urges that a showing of a pattern of racial dis
crimination in the imposition of the death penalty makes
a prima facie showing of such discrimination in a particular
case; that a failure of an Arkansas jury to assess punish
ment at life imprisonment in a capital case is tantamount
to an assessment of the death penalty; and that it is un
constitutional for a jury to permit a death sentence to be
imposed on a Negro man convicted of raping a white woman
if it would have assessed a penalty of life imprisonment had
the defendant been white and had he raped the same woman
in the same or similar circumstances.
In appraising petitioner’s contention and in weighing the
testimony and report of Dr. Wolfgang the Court lays to
Memorandum Opinion of the District Court
factors as age of defendant, age of victim, degree of force, degree
of injury, weapon use or display, and marital and family status
of oifender and victim.
18a
Memorandum Opinion of the District Court
one side the fact that in Sims v. Georgia, supra, the Su
preme Court has agreed to review, among other things,
the question of whether a Georgia trial court committed
error in refusing to hear testimony to the effect that during
a certain period in Georgia 19 times more Negroes than
whites have received the death sentence in rape cases. In
this case the Court has heard and considered all of the evi
dence which petitioner has offered.
While the statistical evidence produced in this case is
more extensive and sophisticated than has been produced
heretofore the Court is not convinced that it is sufficiently
broad, accurate, or precise as to establish satisfactorily
that Arkansas juries in general practice unconstitutional
racial discrimination in rape cases involving Negro men
and white women or to require or justify the inference
that the Garland County jury which tried petitioner was
motivated by racial discrimination when it failed to assess
a punishment of life imprisonment.0
8 Garland County was not included in the sample group of
counties considered by Dr. Wolfgang. Garland County statistics
were before Judge Young in the original habeas corpus proceed
ings and were summarized in the opinion of the Court of Appeals.
Maxwell v. Stephens, supra, 348 F. 2d at 330. Those figures re
vealed that in the ten year period beginning January 1, 1954,
seven white men and three Negroes were charged with rape in
that county. Two of the victims of the white men were white;
the races of the other victims of those men were not disclosed.
The victims of the Negro offenders were two Negro and one
white woman. Charges against four of the white men were not
pressed; the other three were convicted of lesser crimes. The
charges against one of the Negroes was dismissed, and a second
was convicted of a lesser offense. The third, petitioner here, was
convicted of raping a white woman and received the death sen
tence. There is no question that the facts and circumstances
surrounding his offense were such as to justify the imposition of
that sentence entirely apart from any consideration of race.
19a
The study does not indicate that Negro men convicted
of raping white women invariably or even in a majority
of cases receive the death penalty. The study covered only
55 cases over a twenty year period in 19 Arkansas counties
containing, according to the census of 1960 47 percent of
the State’s population, and after making allowances for
duplications it appears that only 7 Negro men were sen
tenced to die for raping white women. The cases studied,
and the number of death sentences imposed are simply too
few in number to afford convincing proof of the proposition
urged by petitioner.
As to the sample which was considered, Dr. Wolfgang
said in his report that the included counties “ are a strati
fied random sample of Arkansas counties, geographically
dispersed throughout the State and representative of the
State in urban-rural and white-Negro population ratios.”
Although the sample drawn by Mr. Monroe seems to have
been drawn in a manner which is acceptable statistically,
the quoted statement of Dr. Wolfgang is simply not cor
rect, and this was recognized by7 Mr. Monroe and is made
clear by an examination of a map of the State attached
to the report.
The Negro population of Arkansas is not distributed
evenly over the State, nor is the State’s overall population
distributed evenly from the urban-rural standpoint. An
examination of the map which has been mentioned shows
that the counties included in the sample are for the most
part located in the southern and eastern portions of the
State where the Negro population is heaviest and include
most of the large urban centers in the State such as the
Little Rock-North Little Rock metropolitan area, and the
cities of Blytheville, El Dorado, Fort Smith, and Pine Bluff.
Memorandum Opinion of the District Court
20a
Memorandum Opinion of the District Court
The variables which Dr. Wolfgang considered are objec
tive; they are broad and in instances are imprecise. In
connection with many of the cases studied the field workers
were unable to obtain from available sources information
which might have been quite pertinent, and Dr. Wolfgang’s
statistics really reveal very little about the details of the
cases of the 7 individual Negroes who received the death
sentence for raping white women as compared to the details
of the cases in which other racial situations were involved.
Dr. Wolfgang himself recognizes in his report and in his
testimony that his conclusions are subject to attack from
certain angles due in large measure to the small number
of cases studied and lack of available information in many
of those cases. In his report he states frankly:
“ This report contains a preliminary analysis of
data obtained in a study designed to determine the
effect of racial factors upon capital sentencing for
rape in the State of Arkansas. The preliminary anal
ysis is neither exhaustive nor conclusive. Its findings,
presented below, are tentative and are based upon an
exploratory investigation of the available data. In
terpreting the results must be done with caution. Sub
ject to this qualification, the preliminary analysis
strongly suggests that racial discrimination is opera
tive in the imposition of the death penalty for rape in
Arkansas.”
On the meager material before it the Court is simply not
prepared to convict Arkansas juries of unconstitutional
racial discrimination in rape cases. As a matter of fact,
the Court doubts that such discrimination, which is a highly
subjective matter, can be detected accurately by a statis
Memorandum Opinion of the District Court
tical analysis such as was undertaken here. Statistics are
elusive things at best, and it is a truism that almost any
thing can be proved by them.
The Court does not intend to belittle either the study
made by Dr. Wolfgang or his testimony. But the Court
is simply not convinced by them any more than the Su
preme Court of Arkansas, Judge Young, and the Court
of Appeals were convinced by the materials previously
submitted.
In his opinion Judge Young aptly stated that the issue
of consent is always involved in rape cases. In cases not
involving inter-racial situations the issue of consent may
be and frequently is very real; that issue from a factual
standpoint is much less likely to be present in cases in
which white women have been attacked by Negro men. And
the disproportion between death sentences imposed on
Negro men convicted in inter-racial cases and such sen
tences imposed in other cases may well be referable in
large measure to the fact that in the former cases the trial
jurors may have a firmer and more abiding conviction of
the truth of the charges than in cases of the latter type.
The final contention to be discussed does not involve any
Arkansas statute but does involve Arkansas criminal pro
cedure generally. Under that procedure the State puts on
its evidence first, and in many types of cases, including
rape cases, evidence which is relevant to guilt is also
relevant to punishment. When the State has completed
its presentation, the defense may or may not introduce
evidence, and the defendant may or may not testify in his
own behalf. I f he does testify, he waives his privilege
against self-incrimination with respect to the charge against
him, and may be cross examined as fully as any other
witness. The deliberations of the jury relate to both the
22a
question of guilt and the question of punishment; there is
no post-conviction hearing before the jury as to the punish
ment which the defendant should receive.
Petitioner, who did not take the stand in the course of
the trial in the Circuit Court, attacks as unconstitutional
the procedure which has been outlined. He alleges that the
procedure is unconstitutional because “ evidence pertinent
to the question of penalty could not be presented without
prejudicing the jury against the petitioner on the issue of
guilt,” and because he could not exercise his constitutional
“ right of allocution” before the jury which sentenced him,
without thereby waiving his privilege against self-incrim
ination.
In effect, petitioner contends that where a State leaves
the matter of punishment to a jury’s determination the
Constitution requires that the issue of guilt or innocence
must be tried out first, and that if the defendant is found
guilty, a separate hearing must be held before the jury on
the question of punishment in the course of which hearing
the defendant can testify as to mitigating circumstances
without prejudice to himself since his guilt has been de
termined already.
While some States follow that procedure, this Court does
not believe that the Constitution requires it. The Court
does not consider that Jackson v. Denno, 378 U. S. 368 and
Malloy v. Hogan, 378 U. S. 1, are in point here.
An order denying the petition will be entered forthwith.
This Court will not stay petitioner’s execution beyond Sep
tember 2 and will decline to grant a certificate of probable
cause to appeal if such a certificate is requested. Petitioner
has ample time to apply to the Court of Appeals for relief.
Dated this 26 day of August, 1966.
J. S m it h H enley
United States District Judge
Memorandum Opinion of the District Court
23a
Order o f the D is tr ic t C ou rt
I n th e
UNITED STATES DISTRICT COURT
E astern D istrict of A rkansas
P in e B lu ff D ivision
PB-66-C-52
W illiam L. M axw ell ,
Petitioner,
0. E. B ish o p , Superintendent o f the Arkansas
State Penitentiary,
Respondent.
Pursuant to memorandum opinion filed this date the
petition for a writ of habeas corpus filed herein is denied.
Dated this 26 day of August, 1966.
J. S m it h H enley
United States District Judge
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
' O p in io n o f th e C o u r t o f A p p e a ls
No. 18,746
William L. Maxwell,
Appellant,
v.
0. E. Bishop, Superintendent, Ar
kansas State Penitentiary,
Appellee.
A p p e a l from the
United States Dis
trict Court for the
Eastern District of
Arkansas.
[July 11, 1968.]
Before V ogel, M a t t h e s and B l a c k m u n , Circuit Judges.
B l a c k m u n , Circuit Judge.
William L. Maxwell, a Negro and an Arkansas prisoner
under sentence of execution on his 1962 conviction for the
state crime of rape, as defined by Ark. Stat. Ann. § 41-3401
(Repl. 1964),1 petitions a second time for a federal writ
i Section 41-3401, as it existed at the time of the offense and Maxwell’s
conviction, was repealed by Acts 1967, No. 362, § 3, and was replaced by
§ 1 of the same Act. The new statute separates the crime of rape Into
third, second, and first degrees. Rape in the first degree is, among
other things, sexual intercourse with a female by “ forcible compulsion” .
Rape in the second and third degrees has age conditions. Section 41-3403
which, through § 43-2153, prescribed, upon conviction of rape, a punish
ment of death or, if the jury chose, life imprisonment, also was, by §§ 3
and 2 of the same 1967 Act, repealed and replaced. The replacement sec
tion defines rape as a felony and provides for sentences within prescribed
ranges, as to years, for third and second degree rape and, for first degree
rape, of “death or thirty (30) years to life imprisonment” . If the offense
for which Maxwell was convicted had been committed since the effective
date of the 1967 Act, it would qualify as rape in the first degree.
25a
of habeas corpus and, with its denial, a second time ap
peals. The points now urged to us are (1) that a prima
facie case of racially discriminatory imposition of the
death penalty for rape in Arkansas has now been estab
lished and remains unrebutted by the State; (2) that Ar
kansas’ single verdict procedure is without appropriate
standards, allows the jury to exercise its discretion irra
tionally, and is impermissible; and (3) that the decisions
of the United States Supreme Court since Maxwell’s first
federal appeal demonstrate the error of our prior holding,
adverse to the petitioner, on the jury selection issue.2
We again review the background:
1. The offense for which Maxwell was charged was com
mitted in the early morning of November 3, 1961, in the
City of Hot Springs, Garland County, Arkansas. Maxwell,
who was 21 at the time, wTas arrested within two hours
after the offense was committed. His convicting jury did
not “ render a verdict of life imprisonment in the State
penitentiary at hard labor” , as it had the option to do
[since 1915 (Acts 1915, No. 187, § 1, p. 774)] under §§43-
2153 and 41-3403 and for which it had been given an alter
nate verdict form. Accordingly, and in line with the
interpretation consistently given the statutes by the Su
preme Court of Arkansas, Kelley v. State, 133 Ark. 261,
202 S.W. 49, 54 (1918); Stewart v. State, 233 Ark. 458,
345 S.W.2d 472, 475 (1961), cert, denied 368 U.S. 935, the
trial court imposed the death sentence.
Opinion of the Court of Appeals
2 The petition itself also suggests, on information and belief, that
Maxwell “is presently insane’’. At the hearing in the district court, de
fense counsel acknowledged that “ [T]he report [from Dr. William G.
Reese, Professor of Psychiatry and head of the Department of Psychiatry
at the University of Arkansas Medical Center] states, in effect, that the
petitioner is without psychosis. . . . ” The defense’s appellate brief re
cites that the insanity suggestion, “though dealt with by the district court
in its opinion, was not pressed below and is not relevant here” .
26a
2. Maxwell appealed. On this state appeal he challenged
the sufficiency of the evidence; his prosecution by informa
tion ; the constitutionality in application of the penalty
statute, § 41-3403; the denial of his motion that his case
be removed to federal court; the overruling of certain
objections relating to voir dire; the overruling of objec
tions as to latitude in his cross-examination of witnesses;
the admission of evidence; the instructions; and aspects
of the prosecution’s argument to the jury. All these points
were decided adversely to the defense and the judgment
of conviction was affirmed by a unanimous Supreme Court
of Arkansas (one justice not participating). Maxwell v.
State, 236 Ark. 694, 370 S.W.2d 113 (1963). No petition
for certiorari was filed with the Supreme Court of the
United States.3
3. Maxwell, with new counsel, then filed a petition for a
writ of habeas corpus in the United States District Court
for the Eastern District of Arkansas. In that petition, as
twice amended, he alleged the illegality of his arrest;
impropriety of the search of his person; impropriety of
the search of his home; mistreatment by the police; coerced
confessions; an adverse and hostile trial atmosphere;
racial discrimination in the selection of his jury; uncon
stitutional application of § 41-3403; and unconstitutionality
of the death penalty for rape. Judge Young decided each
point so raised adversely to the defense and denied the
petition. His detailed opinion is reported as Maxwell v.
Stephens, 229 F.Supp. 205 (E.D. Ark. 1964).
4. Judge Young, however, granted the certificate of prob
able cause required by 28 U.S.C. § 2253 and stayed execu
tion. With additional counsel from New York, an appeal
3 This fact, of course, no longer constitutes a failure to exhaust avail
able state remedies. Fay v. Noia, 372 U.S. 391, 435-38 (1963); Curtis v.
Boeger, 331 F.2d 675 (8 Cir. 1964).
Opinion of the Court of Appeals
27a
was taken to this- court. We noted that, except for an
early period prior to the state trial, when court-appointed
attorneys were in the case, Maxwell had been represented
through all the state and federal proceedings by competent,
although different, non-court-appointed counsel. The points
primarily argued to us were three: (1) that Maxwell was
denied due process and equal protection because he was
sentenced under statutes which are discriminatorily en
forced against Negroes; (2) that he was denied due
process and equal protection because the Garland County
jury lists revealed race and were compiled from racially
designated poll tax books; and (3) that the taking of Max
well’s coat and references to it in testimony at the trial
violated his Fourth, Fifth and Fourteenth Amendment
rights. In what we thought was an opinion meticulously
concerned with the several issues raised by Maxwell, we
reached the conclusion that Judge Young’s decision was
correct. Maxwell v. Stephens, 348 F.2d 325 (8 Cir. 1965).
The late Judge Ridge dissented on the search and seizure
issue concerning the coat but agreed with all the other
conclusions arrived at by the majority.
5. With still another name added to the list of Maxwell’s
counsel, a petition for certiorari was filed. This was
denied, with Mr. Justice Douglas being of the opinion that
cretiorari should be granted. 382 U.S. 944 (1965).
6. Execution was rescheduled but was stayed administra
tively until September 2, 1966.
7. Maxwell’s second and present petition for a federal
writ of habeas corpus was filed July 21, 1966, in the United
States District Court for the Eastern District of Arkansas
and came before Chief Judge Henley. The court denied
the petition. Maxtvell v. Bishop, 257 F.Supp. 710 (E.D.
Ark. 1966).
Opinion of the Court of Appeals
28a
8. The district court and a judge of this court succes
sively declined to grant a stay of the execution or to issue
a certificate of probable cause. But the Supreme Court
granted leave to file a petition for a writ of certiorari,
issued the writ, reversed the denial of the application for
the certificate, and remanded the cause with directions to
issue it. Maxivell v. Bishop, 385 U.S. 650 (1967). Ac
cordingly, the certificate was issued and the execution
stayed, and the case is here on appeal.
As we observed before, pp, 327-28 of 348 F.2d, Maxwell’s
guilt or innocence is not in issue before us. So far as the
details of the crime itself are concerned, we recite only
what we said there:
“ The circumstances and details of the crime are, as
usual, sordid. They are set forth in the Arkansas
opinion, pp. 114-116 of 370 S.W.2d, and need not be
repeated here. It suffices only to say that the victim
was a white woman, 35 years old, who lived with her
helpless ninty-year-old father; that their home was
entered in the early morning by the assailant’s cutting
or breaking a window screen; that in the ensuing
struggle the victim bit her assailant and caused bleed
ing; and that she was assaulted and bruised, her
father injured, and the lives of both threatened. Con
fessions taken from Maxwell were not employed at
the trial. The defense presented no evidence. The
jury was out several hours. No question is raised as
to the sufficiency of the evidence.”
The Statistical Argument
Maxwell’s present argument that Arkansas discriminates
against Negroes in the application of the death penalty
for rape, and thus violates the Equal Protection Clause
and also 42 U.S.C. § 1981, rests on what is described as
newly discovered evidence which became available since
Opinion of the Court of Appeals
29a
this court’s disposition of Maxwell’s first habeas appeal.
It is said, in the words of the petition:
“ This evidence consists of the results of a survey
of rape convictions during the period 1949-1965 in
a representative sample of nineteen counties compris
ing more than 47% of the population of the State of
Arkansas. The survey was conducted in the summer
of 1965, as part of a study of the application of the
death penalty for rape in eleven southern states.
This comprehensive study required the work of 28
law students throughout the summer, the expenditure
of more than $35,000 and numerous hours of consulta
tive time by expert criminal lawyers, criminologists
and statisticians. Petitioner, who is an indigent,
could not have himself at any time during the prior
proceedings in his cause conducted such a study.”
The record and the evidence. At a pretrial conference
the district court was advised that the evidence to be
presented on behalf of Maxwell was that which resulted
from the survey and study so described,4 and that it
would be presented through the testimony of Marvin
Wolfgang, a criminologist-statistician on the faculty of the
University of Pennsylvania. It was agreed in pretrial
that the survey’s individual case schedules would be made
available for inspection by counsel for the State. The
court ruled that, subject to objections as to relevancy and
materiality, Professor Wolfgang would be permitted to
testify as an expert and to introduce his report as a
summary exhibit. The State filed no objection to any of
the individual case schedules. At the ensuing hearing the
State agreed that the basic facts of the schedules, “ that
is, the age of the victim, the race, and so on, of the in
dividual defendants, or the alleged victims” , would stand
admitted. Dr. Wolfgang then was called as a witness.
Opinion of the Court of Appeals
4 The study is said to be the same one with which the Fourth Circuit
was concerned in Moorer v. South Carolina. 368 F.2d 458 (4 Cir. 1966).
30a
Or. Wolfgang possesses the degree of Doctor of Philoso
phy in Sociology, with Criminology as a sub-field. He is
Professor and graduate chairman of the Department of
Soc iology at the University of Pennsylvania. He is co-
director of the Department’s Criminological Center. He
obviously is a man of scholastic achievement and of experi
ence in his field. The State concedes that his “ qualifica
tions as a criminologist have never been questioned by
the respondent ” .
The witness testified that in 1965 he was asked to par
ticipate in a study on capital punishment for rape and that
this was suggested “ as an appropriate topic for research
analysis because of the underlying assumption that there
is differential imposition of the death penalty in rape
cases in certain states” . This was to be “ an effort to
collect the appropriate kind of data necessary to provide
some kind of empirical study, either in support of, or in
rejection of, the underlying assumption. The ultimate
objective of the study was to give the empirical data the
appropriate kind of statistical anlaysis that would satisfy
scientific requirements” . He was informed that the result
might be used in litigation on behalf of defendants who
had been convicted and sentenced to death for rape.
The study was carried out in twelve states. One of
these was Arkansas. For the State of Arkansas the period
investigated was that from January 1, 1945, to the summer
of 1965. Not every Arkansas rape case during that period
was included but every case which occurred in the sample
counties was included.
The study produced 55 rape convictions in the 19
selected Arkansas counties. The witness prepared a pre
liminary analysis of the data contained in the schedules
the student investigators prepared for these cases. Among
Opinion of the Court of Appeals
31a
Opinion of the Court of Appeals
the variables considered were race of the defendant, race
of the victim, and sentence. The approach was to develop
a “ null hypothesis” that there is no difference in the dis
tribution of the sentence of death or life imprisonment,
inposed on negro and white defendants; the calculation of
a theoretical frequency which represents the number of
defendants expected to be sentenced to death if the null
hypothesis is valid; the comparison of this theoretical
frequency with the actual frequency in the collected data
for each defendant-victim racial combination; and the de
termination whether the discrepancy between the expected
and the observed frequencies is great enough so that,
under accepted statistical standards, that discrepancy can
be said to be a product of the real phenomena tested
rather than of the operation of chance within the testing
process. “ If that difference reaches a sufficiently high
proportion, . . . then the assertion can be made . . .
that the difference is significant and could not have oc
curred by chance” .
The data gathering was not limited to the facts of race
and sentence. It included other items such as the defend
ant’s age, family status, occupation, and prior criminal
record; the victim’s age, family status, occupation, hus
band’s occupation, and reputation for chastity; aspects
of the prior relationship, if any, between the defendant and
the victim; the circumstances of the offense such as the
number of offenders and victims, the place, the degree of
threat or violence, and the injury inflicted; other offenses
contemporaneously committed; the presence of third per
sons and threats or injury to them; the nature of the
intercourse; the involvement of alcohol or drugs; and the
circumstances of the trial and post-trial proceedings. Data
of this general kind were included because they “ were
felt to be relevant to the imposition of the type of sen
32a
tence” and “ they, rather than race alone, may play a
more important role in the disproportionate sentencing
to death of Negro defendants convicted of raping white
victims” . The witness conceded that some data potentially
pertinent were not collected as, for example, that “ with
respect to the strength of the prosecution’s case” for “ we
had no information of that sort that we could objectively
collect” .
The study disclosed that, in the 55 Arkansas cases, 34
defendants were Negroes and 21 were whites; that 33 had
a previous record; that 26 were known to have been in
prison; that 39 victims were whites, 15 were Negroes, and
the race of one was unknown; that of the victims, two
had prior criminal records and 31 did not; that 16 victims
had a good reputation for chastity and 6 bad; that 14
received the death sentence and 41 life; that counsel was
appointed in 35 cases and retained in 9; that in 23 cases
the offender was known by the victim and in 26 he was
unknown; that the offender and the victim had had prior
sexual relations in 4 cases; and that in 12 cases a plea
of guilty was entered.
From this Arkansas data and his study Dr. Wolfgang
concluded:
1. Factors not significantly associated with either
the defendant’s race or with the sentence were the
place of offense, nature of entry, plea, type of counsel,
duration of trial, seriousness of injury to the victim,
type of prior relationship between defendant and vic
tim, the defendant’s previous record, and the victim’s
having dependent children.
2. Factors not significantly associated with the de
fendant ’s race were the commission of a contempo
raneous offense and previous imprisonment.
Opinion of the Court of Appeals
33a
Factors not significantly associated with the sen
tence were the defendant’s marital status, his age, the
victim’s age, the display of a weapon, and the defend
ant’s having dependent children.
4. Factors which were significantly associated with
sentence were commission of a contemporaneous
offense and previous imprisonment.
5. Factors which were significantly associated with
the defendant’s race were marital status (a greater
percentage of Negroes than whites were not married),
display of a wTeapon (more Negroes than white used
one), the defendant’s age (more Negroes were young),
the victim’s age (the defendants were white more fre
quently in the older-defendant-younger-victim com
bination), and the existence of children dependent on
the defendant (more whites had them).
6. An anlaysis of significant association with de
fendant’s race or the sentence was either unnecessary
or not possible with respect to the victim’s prior
record, her reputation for chastity, the force employed,
her pregnancy by the offense, prior sexual relations
between the defendant and the victim, and the de
fendant’s assertion of the defense of insanity.
The study covered other items, too, but the analysis was
confined to “ those particular items in which there was
sufficient information to display statistically and to treat
statistically’ ’.
The witness then further concluded (1) that the critical
variables were race of the offender, race of his victim, and
sentence; (2) compared to other rape defendants, Negroes
convicted of raping white victims were disproportionately
sentenced to death; and (3) “ no variable of which analysis
was possible could account for, the observed dispropor
tionate frequency” .
On cross-examination Dr. Wolfgang stated that the Ar
kansas report was “ preliminary” in the sense that the
Opinion of the Court of Appeals
34a
other states for which data was being collected would be
included in the final report; that the 55 Arkansas cases
did include some new trials; that, however, he did not
think this disturbed his analysis; that he was only “ very
little” familiar with Arkansas geography; that he was
“ gratified the report is as good as it is” ; that he used
such variables as he could get information on; that if he
had had more information, he could have used other vari
ables and his report, accordingly, would have been more
extensive; that reputation for chastity was presumed to
be of some relevance but “ unfortunately, there was not
enough information upon which to make the analysis com
plete” ; that as a criminologist he was willing to say
“ that an analysis of a social system—in this case, the
judicial system—operated relative to the decision making
regarding rape, is such that it casts considerable doubt
upon the quality of justice in those particular cases
throughout the system” ; and that he has never sat on a
jury but has been around them.
It was then agreed that among the 55 schedules there
were 4 cases which concerned defendants convicted twice
for the same rape as a result of a second trial. A fifth
case was not one of repeated convictions but, instead con
cerned two victims.
Received in evidence was an exhibit prepared by the
United States Bureau of Prisons. This showed that, for
the years 1930-62, 446 persons were executed under civil
authority in the United States for rape and that, of these,
only 45 were white but 399 were Negro and 2 were of other
races, and that, for the same period, 3,298 were executed
for murder and, of these, 1,640 were white, 1,619 were
Negro, and 39 were of other races.
The petitioner’s second and only other witness was
John Monroe, a Philadelphia statistician with 17 years’
Opinion of the Court of Appeals
35a
Opinion of the Court of Appeals
experience in sampling and surveys. He testified that he
was asked by Dr. Wolfgang to design a representative
sampling of counties in 12 southern states so that infer
ences could be drawn for each state and for the region as
a whole. Arkansas was included. The 1960 negro popula
tion was used as the measure. The sample size was deter
mined largely on speculation as to what area the law
students could cover in the time available to them. Nine
teen Arkansas counties were selected. These contained
more than 47% of the state’s population. Mr. Monroe
stated that his sample of Arkansas counties was a very
reliable one under the restriction, that is, the number of
counties that could he investigated during the time allotted.
He went on to say that, so far as the sample is concerned,
the inferences drawn from it were valid for Arkansas.
Garland County was not one of those selected. This was
because “ the random number just didn’t happen to fall
in the population for Garland County’ ’. Had that county
possessed more than 19,000 negro population it would
have been selected. The witness conceded that he was
sampling the negro population and not the entire popula
tion. This was because of the purpose of the study and,
in order to compare negro and white cases, the sample
has to provide enough of the former to make the findings
valid.
The witness stated that he took the total negro popula
tion of Arkansas and divided it by the number of draws
allocated to the State. This number turned out to be ap
proximately 19,400. A random number between it and zero
was selected. As adjacent county negro population added
up to the random number plus 19,400, the county was
selected. In this way, counties having more than 19,400
Negroes, or approximately that number, were taken con
secutively.
36a
On cross-examination it was pointed out that this method
did not result in having the selected counties geographi
cally disbursed throughout the State. Instead, the selected
counties for the most part were in the east and south.
This is where Arkansas’ negro population is primarily
located.
The court inquired what there was about the survey
that gave it validity in Garland County. The answer was
that the inferences drawn from the sample were valid for
the State of Arkansas. Counsel then observed that it was
not Garland County that convicted Maxwell and sentenced
him to death but the State, and that the purpose of Mr.
Monroe’s testimony was to show that the counties selected
were representative of the State.
On further cross-examination, the witness acknowl
edged that the northwestern part of the State was essen
tially the white population area, that the southeastern por
tion was the negro population area, and that Garland
County was in the white area.
The State offered no evidence.
Such is the record. It is apparent from a reading of the
record that the trial court was generous in its rulings on
admissibility. Everything which the petitioner presented
came in.
The trial court’s conclusions on the statistical argument.
Chief Judge Henley, in his opinion, pp. 717-21 of 257
F.Supp., described the statistical argument as the “ con
tention which has been urged most seriously here” . He
referred to Professor Wolfgang as “ a well qualified soci
ologist and criminologist” and to Mr. Monroe as “ a quali
fied statistician” . He observed that the investigation
showed three categories, namely, rapes of white women
Opinion of the Court of Appeals
37a
by negro mon, rapes of negro women by negro men, and
rapes of white women by white men, and that there was
no conviction of a white man for rape of a negro woman.
He noted that l)r. Wolfgang “ concluded, and the Court
agrees, that the differential could not be due to the opera
tion of the laws of chance” . He characterized Dr. W olf
gang’s conclusions “ to be that a Negro man who is con
victed of raping a white woman has about a 50 percent
chance of receiving a death sentence, regardless of the
facts and circumstances surrounding the crime, whereas a
man who is convicted of criminally assaulting a woman of
his own race stands about only a 14 percent chance of
receiving the death sentence” . lie acknowledged that “ the
statistical evidence produced in this case is more extensive
and sophisticated than has been produced heretofore” .
Yet he was not convinced that “ it is sufficiently broad, ac
curate, or precise as to establish satisfactorily that Ar
kansas juries in general practice unconstitutional racial
discrimination in rape cases involving Negro men and
white women. . . . The study does not indicate that
Negro men convicted of raping white women invariably
or even in the majority of eases receive the death penalty.
. . . Only 7 Negro men were sentenced to die for raping
white women. The case studies, and the number of death
sentences imposed are simply too few in number to afford
convincing proof of the proposition urged by petitioner” .
It is not correct, as Dr. Wolfgang said in his report, that
the selected Arkansas counties are ‘ ‘ representative of the
state in urban-rural and white-Negro population ratios” .
The statistics “ really reveal very little about the details
of the cases” where the death sentence was imposed upon
Negroes for raping white women as compared with other
racial situations. “ On the meager material before it the
Court is simply not prepared to convict Arkansas juries of
unconstitutional racial discrimination in rape cases” . The
Opinion of the Court of .Appeals
38a
court went on to observe that “ In cases not involving
inter-racial situations the issue of consent may be and
frequently is very real” , but that that issue “ is much
less likely to be present in cases in which white women
have been attacked by Negro men” .
The petitioner’s argument. The petitioner-appellant
characterizes the present proceeding as one presenting
“ for the first time in any appellate court . . . a record
which is the end product of a detailed and exhaustive ex
amination of the practical consequences of the procedures
used in making the decision whether a man should live
or die” . It is stated that the question in this record is
one of proof, namely, whether the petitioner has made a
sufficient showing of racially discriminatory capital sen
tencing under Arkansas rape statutes. It is pointed out
that on three previous occasions, namely, in the Supreme
Court of Arkansas, before Judge Young, and in this court,
the answer has been in the negative, ‘ ‘ notwithstanding
that on each successive occasion the evidence tended in the
direction of more depth and completeness ’ ’ . This demon
strates, it is said, “ how difficult it is for Negro litigants
generally and those without means particularly, to make
courts see ‘ the reality of the world, indeed . . . the segre
gated world’ [citing Brooks v. Beto, 366 F.2d 1, 12 (5 Cir.
1966), cert, denied 386 U.S. 975] . . . in which they live
. . . the law [needs to] ‘ see what all others see’ ” ,
The heart of the petitioner’s statistical argument is then
forthcoming. It is that on this record the petitioner has
made a prima facie case of racial discrimination in sen
tencing and that he is entitled to prevail when, as here, the
State presents no evidence or presents evidence of insuffi
cient moment to overcome the prima facie case so estab
lished.
Opinion of the Court of Appeals
39a
Opinion of the Court of Appeals
it is said that the Supreme Court of necessity has de
veloped the doctrine that a prima facie showing of un
equal racial treatment, calling state procedures in ques
tion, compels the inference that the State is drawing the
racial line unless it offers justification in non-racial factors
for the disproportion. Jury selection and voting deprival
cases such as Hernandez v. Texas, 347 U.S. 475 (1954),
and Gomillion v. Lightfoot, 364 U.S. 339 (1960), are cited
generally. Also cited, however, are other cases which, it
is said, show that the prima facie approach has not been
restricted to jury selection and voting cases. Among these
are Chambers v. Hendersonville City Bd. of Educ., 364
F.2d 189 (4 Cir. 1966) (reemployment of teachers), and
Cypress v. Newport News General & Nonsectarian Hos
pital Ass’n, 375 F.2d 648 (4 Cir. 1967) (hospital staff
membership). It is argued that there is no reason why
the prima facie approach should not be applied to the pres
ent case. If there are factors -which offset Dr. W olfgang’s
expert conclusion, they were in the power of the State to
unearth and prove. “ Every justification for shifting the
burden of persuasion to the State . . . applies with
evident force here” .
Finally, it is stated that the district court committed
manifest error in its evaluation of the evidence. Counsel
would dismiss the trial court’s observation that the Ar
kansas figures contained instances of defendants tried
more than once on the ground that each Arkansas jury
death sentence is an indication of the application of the
Arkansas statute. They would dismiss the trial court’s
concern with the small number of cases on the ground that
the whole purpose of the statistical analysis was to satisfy
Dr. Wolfgang as an expert and that he was so satisfied
and his conclusions are sustainable under accepted scien
tific standards. They would dismiss the court’s concern
40a
Opinion of the Court of Appeals
with the geographical location of the selected Arkansas
counties as unsupportable and improper. And they would
dismiss the court’s concern with the “ issue of consent”
as being “ plainly the sheerest speculation” . The observa
tions are made that “ any experienced criminal lawyer in
the South . . . well knows that the failure to present
the defense of consent in interracial rape cases is itself
a product of the discriminatory pattern of Southern jus
tice which petitioner here attacks” , and that “ Southern
jury attitudes . . . have long impressed upon defense
counsel the extreme unwisdom of advancing the consent
defense on behalf of a Negro defendant where the com
plainant is white ’ ’ .5
The petitioner’s argument is an interesting one and we
are not disposed to say that it could not have some validity
and weight in certain situations. Like the trial court, how
ever, although perhaps not for each and all of the reasons
it advanced, we feel that the argument does not have
validity and pertinent application to Maxwell’s case.
It is perhaps well to emphasize initially what the study
and Dr. Wolfgang’s testimony do not do or purport to do:
1. They do not relate specifically to Garland County
where this particular offense was committed and where
Maxwell was tried and convicted. They are concerned
with 19 other Arkansas counties and with counties in 11
other states.6
5 However, the transcript of the state trial reveals that the defense in
its opening statement made no less than five references to any act on
the part of the prosecuting witness as being “free” and “voluntary” .
6 On the first habeas appeal we were unpersuaded with the statistics
then presented or with the argument in support thereof. Some figures
were submitted as to the entire State of Arkansas and as to three coun
ties, namely, Garland (Hot Springs), Pulaski (Little Rock), and Jeffer
son (Pine Bluff). We said, pp. 330-31 of 348 F.2d:
“The statistical argument is not at all persuasive. . . . As to
Garland County, for the decade beginning January 1, 1954, Max-
41a
2. They admittedly do not take every variable into
account.
3. They do not show that the petit jury which tried and
convicted Maxwell acted in his case with racial discrimina
tion.
4. They do not deny that generally the burden of demon
strating discrimination in penalty imposition is on the one
who asserts it. Maxwell v. Stephens, supra, p. 330 of 348
F.2d, and cases cited; Mitchell v. Stephens, 353 F.2d 129,
133 (8 Cir. 1965), cert, denied 384 U.S. 1019.
What we are concerned with here is Maxwell’s case and
only Maxwell’s case. And it is indisputable, from the
record before us, that, despite the five references to “ free”
and “ voluntary” in the defense’s opening statement at the
trial, there is no question, and no hint of one, as to the
victim’s lack of consent. The facts of the attack, which
are not in dispute, which were reviewed by the Arkansas
court, pp. 114-16 of 370 S.W.2d, and which we have again
quoted above, include forcible entry of the home, physical
assault on both the victim and her aged father, resistance
by both, and the infliction of injuries on all three. The
petitioner’s attack, therefore, to the extent it would eon-
Opinion of the Court of Appeals
weirs evidence was to the effect that seven whites were charged with
rape (two of white women and the race of the other victims not
disclosed), with four whites not prosecuted and three sentenced on
reduced charges; that three Negroes were charged with rape, with
one of a Negro woman not prosecuted and another of a Negro re
ceiving a reduced sentence, and the third, the present defendant, re
ceiving the death penalty. . . .
“These facts do not seem to us to establish a pattern or something
specific or useful here, or to provide anything other than a weak
basis for suspicion on the part of the defense. The figures certainly
do not prove current discrimination in Arkansas, for In the last
fourteen years the men executed for rape have been two whites and
two Negroes.
“Turning to the three county statistics, we find no death sentence
at all in Garland County in the 1954-1963 decade until Maxwell’s case.
We also find that of the two other Negroes charged, one was not
prosecuted and the other was sentenced on a reduced charge.”
42a
corn itself with the issue of consent in rape cases, both
interracial and noninterracial, and with allegedly pur
poseful avoidance of the consent issue by southern de
fense counsel, has no place here and, in its attempted
application, is a straw argument based on speculation.
Further, while it is true that it is in a sense the state
which prosecutes, nevertheless the county has a character
and a posture, too. Inasmuch as Garland County, as it was
conceded, is in the predominantly white area of Arkansas,
one might expect from the petitioner an argument that
alleged southern injustice in interracial rape cases would
be more apparent in such a county than in those areas
where the negro population is predominant. Yet the
Garland County statistics, which we noted at pp. 330-31
of 348 F.2d, and which we have again recited by quotation
in footnote 6, supra, afford no local support to the peti
tioner’s statistical argument. The evidence produced at
the prior hearing and at this one discloses only Maxwell
as a recipient of the death penalty in Garland County for
rape.
We are not yet ready to condemn and upset the result
reached in every case of a negro rape defendant in the
State of Arkansas on the basis of broad theories of social
and statistical injustice. This is particularly so on a
record so specific as this one. And we are not yet ready
to nullify this petitioner’s Garland County trial on the
basis of results generally, but elsewhere, throughout the
South.
We therefore reject the statistical argument in its at
tempted application to Maxwell’s case. Whatever value
that argument may have as an instrument of social con
cern, whatever suspicion it may arose with respect to
southern interracial rape trials as a group over a long
Opinion of the Court of Appeals
43a
period of lime, and whatever it may disclose with respect
to other localities, we feel that the statistical argument
does nothing to destroy the integrity of Maxwell’s trial.
Although the investigation and study made by Professor
Wolfgang in the summer of 1065 is interesting and pro
vocative, we do not, on the basis of that study, upset Max
well’s conviction and, as a necessary consequence, cast
serious doubt on every other rape conviction in the state
courts of Arkansas.
At oral argument we asked Professor Amsterdam, coun
sel for Maxwell, whether (apart from any Eighth Amend
ment argument) his statistical approach would not mean
that it would be constitutionally impossible for a negro
defendant in Arkansas ever to receive the death penalty
upon conviction of the crime of rape of a white woman.
The answer given us was in the affirmative, that is, that
it would be constitutionally impossible. At the same time
it was conceded, in contrast, that it would be possible for
a white man to receive the death penalty upon his con
viction for rape. When counsel was asked whether this
would not be discriminatory, the reply was that once the
negro situation was remedied the white situation “ would
take care of itself” .
The legal logic and the rightness of this totally escape
us. If that end result would actually be forthcoming (and
we wonder whether this may accurately be forecast), that
fact does not, in our view, make it legally right or satisfy
constitutional dictates. We still read the first section of
the Fourteenth Amendment as proscribing the denial “ to
any person” within a state’s jurisdiction of “ the equal
protection of the laws” . We feel that this means what it
seems to require, namely, protection which is equal, and
that equal protection is denied if, factually, a member of
one race (whether black or white) is subjected, because of
Opinion of the Court of Appeals
44a
Opinion of the Court, of Appeals
his race, to greater or different punishment than a member
of another race. The argument therefore turns back upon
and defeats the very side which here proposes it. We are
not inclined to accept as constitutional doctrine an ab
straction which provides equality only through assumed
and hoped-for day-to-day practicalities. It is the law,
not probabilities or possibilities, which must afford equal
protection.
We can understand and appreciate the disappointment
and seeming frustration which Maxwell’s counsel must
feel in again failing to prevail on a still more sophisticated
statistical approach. Tkey will ask themselves just how
far they are required to go in order to prevail.
We are not certain that, for Maxwell, statistics will ever
be his redemption. The facts as to rape charges in Gar
land County are known and have been recited. Standing
by themselves, they disclose nothing from which conclu
sions of unconstitutionality in application may appropri
ately be drawn. This situation—the aridity of the Gar
land County facts on which to claim unequal protection
of the laws—forces Maxwell and his counsel to present his
case on a state-wide and long-term historical approach, and
even on a South-wide one, and to claim that conclusions
which, at best, are necessarily general have valid applica
tion to Maxwell.
We do not say that there is no ground for suspicion
that the death penalty for rape may have been discrimina-
torily applied over the decades in that large area of states
whose statutes provide for it. There are recognizable
indicators of this. But, as we have noted before, with
respect to the issue of jury selection, improper state prac
tice of the past does not automatically invalidate a pro
cedure of the present. Brown v. Allen, 344 U.S. 443, 479
45 a
Opinion of the Court of Appeals
(1953); Utnlry v. lieu sice, 287 F.2d 93(5, 943 (8 Cir. 1991),
cert. denied .3(58 U.S. 877. We do say that nothing has
been presented in Maxwell’s case which convinces ns, or
causes us seriously to wonder, that, with the imposition of
the death penalty, lie was the victim of discrimination
based on race.
The Single Verdict Argument
This appears to divide itself into two parts. The first
is that the Arkansas statutes which permit the state jury
to choose between capital punishment and life imprison
ment embrace no standards by which the jury is to exer
cise that choice and that, as a consequence, such jury
procedure is unconstitutional. The second is that the state
practice of submitting simultaneously to the jury the two
issues of guilt and punishment in a capital case ‘ ‘ com
pounds the vice of lawless jury discretion . . . by making
it virtually impossible for the jurors to exercise their dis
cretion in any rational fashion” .
We are not persuaded by either argument.
A. We point out initially, as to the first, that the basic
punishment imposed by § 41-3403 is death. This has been
so at least since 1842. Act of December 14, 1842, § 1, p.
19. Capital punishment for rape has not yet been held to
be violative of the Eighth and Fourteenth Amendments,
although, as we noted on Maxwell’s first habeas appeal,
p. 332 of 348 F.2d, three Justices dissented from the denial
of certiorari in Rudolph v. Alabama, 375 U.S. 889 (1963),
and would have had the Court “ consider whether the
Eighth and Fourteenth Amendments to the United States
Constitution permit the imposition of the death penalty
on a convicted rapist who has neither taken nor endan
gered human life” . That, however, is a fact situation
4 6 a
different from the instant case. We say again that if the
death penalty for rape is to be nullified on constitutional
grounds, that step in the first instance is for the Supreme
Court and not for this inferior federal court. See Ralph
v. Pepersack, 335 F.2d 128, 141 (4 Cir. 1964), cert, denied
380 U.S. 925.
The life imprisonment alternative came into the Ar
kansas statutes by Acts 1915, No. 187, § 1 , p. 774. In
operation it gave the Arkansas jury the power to alleviate
punishment and extend clemency in cases (rape being just
one of that category) where death had been the only pun
ishment theretofore prescribed. The 1915 statute thus was
in the direction of leniency and not away from it. Kelley
v. State, supra, p. 54 of 202 S.W .; Bell v. State, 120 Ark.
530, 180 S.W. 186, 190 (1915).
Further, the imposition of punishment by the jury,
within statutorily prescribed limits, rather than by the
court, is the usual routine in Arkansas criminal procedure.
§ 43-2145.
We reject the petitioner’s argument here for a number
of reasons: (a) it has no basis in legislative intent; (b)
it would destroy by indirection a punishment which the
legislature saw fit to impose, which has been a component
of the State’s criminal law for well over a century, and
which in all that time has not been subjected to successful
constitutional attack; (c) the defense in Maxwell’s rape
trial requested no instructional standards; (d) the jury
choice provides room for attention to the very variables
which Professor W olfgang’s study concededly did not
reach; and (e) we are not convinced that the absence of
expressly stated standards in the statute requires that it
be forthwith condemned constitutionally. Jurors are not
automatons. They are human beings. The jury system
Opinion of the Court of Appeals
47a
appropriately assumes that jurors in their tactual deter
minations brin" into play their common sense and the
experiences of life. Their choice between capital punish
ment and life imprisonment, as the entire Arkansas
method of punishment imposition by the jury, is not star
tlingly or shockingly different from the situation where
choice of punishment within statutorily prescribed limits
is for the judge. See Witherspoon v. Illinois, . . . IT.S. . . .
(1968).
The authorities proffered by the defense are the well-
known ones, such as Herndon v. Lowry, 301 U.S. 242
(1937), and Winters v. New York, 333 U.S. 507 (1948),
which deal with vagueness in criminal statutes. But there
is nothing vague, and nothing is claimed to be vague, in
the substantive provisions of the Arkansas rape statutes.
The petitioner’s attack is directed to the punishment and
not to the crime.
But it is said that Giaccio v. Pennsylvania, 382 U.S. 399
(1966) “ supports, if it does not compel, the conclusion
that unfettered jury discretion in capital cases is uncon
stitutional’ ’ . Giaccio concerned an ancient Pennsylvania
statute which permitted a jury to assess costs against a
defendant acquitted of a criminal charge and which called
for imprisonment if such costs so assessed were not se
cured. The Supreme Court held that the statute was in
valid under the due process clause “ because of vagueness
and the absence of any standards sufficient to enable de
fendants to protect themselves against arbitrary and dis
criminatory impositions of costs” . P. 402. We think that
the heart of the holding as to vagueness is that the
offending statute “ leaves the public uncertain as to the
conduct it prohibits or leaves judges and jurors free to
decide, without any legally fixed standards, what is pro
hibited and what is not in each particular case” . Pp.
Opinion of the Court of Appeals
4:8a
Opinion of the Court of Appeals
402-03. The additional argument made in Giaccio that
state court interpretations provided appropriate standards
was also unavailing. At best, these centered generally in
“ some misconduct” which was “ not reprehensible enough
for a criminal conviction but sufficiently represensible to
deserve an equal distribution of costs” .
There is no question as to what is prohibited under the
Arkansas rape statute. And the secondary argument in
Giaccio is a far cry from that Arkansas statute. Of par
ticular import is the Court’s footnote 8, p. 405 of 382 U.S.,
to the effect that in reaching its conclusion that the Penn
sylvania statute was invalid, “ we intend to cast no doubt
whatever on the constitutionality of the settled practice
of many States to leave to juries finding defendants guilty
of a crime the power to fix punishment within legally pre
scribed limits” . Mr. Justice Stewart, in concurring, p.
405, felt that, despite this disclaimer, much of the reason
ing in the opinion served to cast doubt “ upon the settled
practice of many States to leave to the unguided discre
tion of a jury the nature and degree of punishment to be
imposed upon a person convicted of a criminal offense” .
No other Justice joined him in that observation. We have
no alternative, therefore, except to conclude that footnote
8 means what it says and that the Court did not, by its
decision in Giaccio, cast doubt upon the constitutionality
of a state practice which leaves to juries the power to fix
punishment within legally prescribed limits. This thought
was specifically applied later in a capital case by the ma
jority opinion in Spencer v. Texas, 385 U.S. 554, 560
(1967).7 We are not impressed with the defense’s char-
7 “Nor is it contended that it is unconstitutional for the jury to assess
the punishment to be meted out to a defendant in a capital or other
criminal case, or to make findings as to whether there was or was not
a prior conviction even though enhanced punishment is left to be im
posed by the judge. The States have always been given wide leeway in
dividing responsibility between judge and jury in criminal cases.”
49a
aoiorization of footnote 8 as only a “ careful reservation
of a question” and referable “ to jury sentencing gen
erally, not capital sentencing” .
Opinion of the Court of Appeals
15. The second aspect of the argument is that the Ar
kansas single verdict procedure “ raises the gravest ques
tions of procedural fairness” . The usual points are ad
vanced, namely, the right to allocution; the restriction of
this right in single verdict procedure; and the conflict in
such procedure between that right and the right not to
incriminate oneself. What is suggested is the split ver
dict procedure.
All these arguments were made and the same cited cases
were considered when we heard en banc and decided Pope
v. United States, 372 F.2d 710, 727-30 (8 Cir. 1967), judg
ment vacated on other grounds, . .. U.S. . . . (June 17,
1968). We recognized in that federal case that the issue
was not an easy one, that it largely disappears when
criminal procedure takes its traditional course and pun
ishment is imposed by the judge rather than by the jury,
and that the issue seems to suggest the possibility of the
two-stage trial. There, too, as here, no request was made
of the district court for a two stage trial. We stated our
position* and concluded that the unitary trial was not
error. We felt fortified in that conclusion by the Supreme
8 “We find ourselves about where the Second Circuit majority found
itself in Curry. We are not disposed to say that, despite the long ac
cepted unitary trial concept, the two-stage trial is not available at all.
We are not disposed to say that a trial judge may not appropriately
exercise his discretion in this area. But we are also not disposed to
say that the trial court’s failure to order sua sponte a two-stage trial for
Duane Pope was error or an abuse of discretion.
“ It may be that the two-stage trial can be appropriately developed and
made to serve a useful purpose under these statutes as they presently
exist. It may be that the better solution is for the statutes to be revised
so as to place the punishment power back in the hands of the judge
where it traditionally has rested. It may be that the ultimate answer is
legislation authorizing some narrow appellate review of sentences in
these extreme cases. These, however, are primarily legislative matters
for the Congress and not for the judiciary.”
50a
Opinion of the Court of Appeals
Court’s remark in Spencer v. Texas, supra, p. 568 of 385
U.S.:
“ Two-part jury trials are rare in our jurisprudence;
they have never been compelled by this Court as
a matter of constitutional law, or even as a matter
of federal procedure. ’ ’
Until the Supreme Court tells us otherwise, we feel
that what we said and concluded on this point in Pope v.
United States has equal application to this state case. We
adhere to the result reached on this issue in that en banc
decision.
The Jury Selection Argument
This point was made on the first habeas appeal and,
although it has not been raised in the state court, it was
carefully considered by this court and rejected. Pp. 332-34
of 348 F.2d. The argument urged on that appeal9 was
that in Arkansas at the time of Maxwell’s trial petit jurors
were selected from electors; electors were persons who had
paid the State’s poll tax; the official list of a county’s poll
taxpayers and the poll tax receipts specified race; and the
jury list itself indicated race. Ark. Stat. Ann. §§ 39-208,
3-104.2, 3-118, and 3-227(b).10
We reviewed the applicable Supreme Court opinions and
our own earlier decisions in Bailey v. Henslee, supra, 287
F.2d 936, and Henslee v. Stewart, 311 F.2d 691 (8 Cir.
9 We there noted, p. 332 of 348 F.2d, that on the appeal, In contrast
to the situation in the district court, pp. 213-16 of 229 F.Supp., no issue
was raised as to deficiencies in the efforts or methods of the jury com
missioners, as to under-representation of the negro race in the county
jury lists, or as to any pattern of negro repeaters on the juries.
10 Amendment No. 51 to the Arkansas Constitution, known as the
“Arkansas Amendment for Voter Registration without Poll Tax Pay
ment” , effective, except for one minor proviso, January 1, 196'5, eliminated
the poll tax requirement and with it the color references theretofore
appearing in the cited statutes. See Walker v. State, 241 Ark. 300, 408
S.W.2d 905, 915 (1966), cert, denied 386 U.S. 682.
51a
1903), cert, denied .‘573 U.S. 902, in each of which we had
concluded that a prima facie case of limitation in jury
selection, because of race, had been established. But we
reached the opposite conclusion in Maxwell’s first appeal,
primarily because there was no proof whatsoever that the
jury list was compiled from the poll tax list. The evidence
was all the other way and uncontradicted, namely, that the
list was first independently prepared and only then was
the poll tax book consulted, as it had to be in order to
ascertain that the persons tentatively selected were quali
fied electors. We felt that we could not say that, because
the poll tax receipts and books designated race, it neces
sarily followed that every jury list in Arkansas was auto
matically unconstitutional; so to conclude would ignore
the possibility of the selection being initially made, as
the proof in Maxwell’s case showed, wholly apart from the
poll tax list. We adhered to this conclusion in the later
similar case, on this point, of Mitchell v. Stephens, supra,
353 F.2d 129, 133-34.
Presumably, Maxwell and his counsel are not convinced
of the rightness of our decision on this point in the first
appeal. Nevertheless, the decision was made by a unani
mous panel and the Supreme Court did not see fit to
disturb it. Having decided the issue, we do not now
undecide it in order to reach the opposite result.
The point is repeated, moreover, by Maxwell and coun
sel on his second habeas petition because, it is said, the
granting of certiorari, limited to five questions, in Sims v.
Georgia, 384 U.S. 998 (1966) [the same day certiorari was
denied in Mitchell v. Stephens, supra] and the decision
in Whitus v. Georgia, 385 U.S. 545 (1967), require reversal.
Sims v. Georgia was also an interracial rape case with
a Negro as defendant. The fourth question as to which
Opinion of the Court of Appeals
5 2 a
Opinion of the Court of Appeals
certiorari was granted related to the constitutionality of
a conviction where “ local practice pursuant to state stat
ute requires racially segregated tax hooks and county
jurors are selected from such books” , where Negroes
comprise only 5% of the jurors selected but about 20%
of the taxpayers, and where the defendant offered to prove
a practice of arbitrary and systematic Negro inclusion or
exclusion based on jury lists of the prior ten years but
his offer was disallowed. Sims’ conviction was reversed
and his case remanded on the ground that a voluntariness-
of-confession issue was controlled by Jackson v. Denno,
378 U.S. 368 (1964), and that the Supreme Court of
Georgia had erred in holding that Jackson was not ap
plicable. This was the second of the five certiorari ques
tions. The Supreme Court therefore did not reach any of
the issues raised by the other four questions. Sims v.
Georgia, 385 U.S. 538 (1967). The significance of the
Sims case for Maxwell thus is that the Supreme Court
was willing to grant, and did indeed grant, certiorari on
a question related to racially segregated tax books, the
selection of jurors from such books, the misproportion
of negro jurors to negro taxpayers, and a disallowed offer
of proof of arbitrary and systematic exclusion for ten
years.
Merely stating the question reveals the inapplicability
of the fourth Sims question to Maxwell’s case. It is true
that at the time of Maxwell’s trial, as we have repeatedly
noted, Arkansas procedure called for racially designated
elector lists. But as has already been pointed out, the
uncontradicted proof in Maxwell’s case was that the petit
jurors were not selected from those lists, although the
lists were later checked, as they had to be, in order to
determine that the jurors selected were qualified electors.
There is no assertion here of misproportion of negro jurors
53a
Opinion of the Court of Appeals
to negro taxpayers or negro electors or negro citizens.
And there is nothing before us by way of claim of sys
tematic negro exclusion on Garland County jury lists for
any period of time.
Similarly, we fail to see where Whit 11s v. Georgia and
subsequent rulings based on Whitus, namely, Bostick v.
South Carolina, 386 U.S. 479 (1967); Cobb v. Georgia,
389 U.S. 12 (1967); Jones v. Georgia, 389 U.S. 24 (1967);
Sims v. Georgia, 389 U.S. 404, 407-08 (1967); see Coleman
v. Alabama, 389 U.S. 22 (1967), afford anything new or
anything not fully discussed and fully decided on Max
well’s prior habeas appeal. The Georgia jury lists, under
attack in Whitus, were made up from a racially designated
tax digest and by reference to the old jury list theretofore
condemned in Whitus v. Balkcom, 333 F.2d 496 (5 Cir.
1964), cert, denied 379 U.S. 931. And again there was
serious disproportion of negro representation. The Court
quite expectedly held that such proof constituted a prima
facie case of purposeful discrimination, for the fact situa
tion fell in line with that in Avery v. Georgia, 345 U.S.
559 (1953), cited by the Supreme Court and also by us
on the first appeal, p. 332 of 348 F.2d. A construction, for
Maxwell’s case, of footnote material similar to that found
in Jones v. Georgia, supra, at p. 25 of 389 U.S., would be
contrastingly revealing. In Maxwell’s case, we repeat, we
have no question whatsoever of inappropriate negro
representation on the Garland County jury list, we have
a negro commissioner, and we have jury lists independ
ently prepared prior to the statutorily required reference
to the poll tax rolls. The jury list, thus, was not prepared
from condemned or racially designated lists. The peti
tioner’s position here would render it impossible to try
a negro defendant for any crime in the State of Arkansas
prior to the adoption of Amendment No. 51. On the facts
such a stricture is not constitutionally required.
54a
Sims and Whit us therefore fail to afford reversing
precedent.
Although the point has not been raised to us, a comment
relative to the Supreme Court’s recent decision in United
States v. Jackson, . . . TJ.S. . . . (1968), may be indicated.
In Jackson the Court held unconstitutional the death
penalty provision of the Federal Kidnaping Act, 18 U.S.C.
§ 1201(a). Does that holding suggest the constitutional
invalidity of the Arkansas death penalty for rape, under
the Fifth and Sixth Amendments which now, through the
Fourteenth, have an area of application to the states! See
Malloy v. Hogan, 378 U.S. 1, 8 (1964); Gideon v. Wain-
wright, 372 U.S. 335 (1963).
We readily conclude that Jackson does not require a
holding of invalidity of the Arkansas death penalty.
Jackson, as we read the opinion, pivoted on the fact that
the defendant’s assertion of his right to a jury trial might
cost him his life, “ for the federal statute authorizes the
jury—and only the jury—to return a verdict of death”
and thus subjects the defendant who does not plead guilty
and who asks for a jury trial to the hazard of capital
punishment. The Arkansas rape punishment situation
is not the same. As we have pointed out above, the
Arkansas procedure in criminal cases is for the jury to
affix the punishment within the limits statutorily defined.
§ 43-2145. Although §43-2306 provides that when a jury
fails to agree on the punishment or to declare the punish
ment in their verdict or if they assess punishment not
authorized by law, “ and in all cases of a judgment on con
fession” , the court shall assess and declare the punish
ment. But § 43-2108 states that a trial by jury may be
waived “ except where a sentence of death may be im
posed” . And the Supreme Court of Arkansas has spe-
Opinion of the Court of Appeals
Opinion of the Court of Appeals
cifically hold in a rape ease, where the defendant had
entered a plea of guilty, that it was mandatory to impanel
a jury to fix the punishment. Scarher v. State, 226 Ark.
503, 291 S.W.2d 241, 243 (1956). Thus, in contrast to the
Federal Kidnaping Act, an Arkansas defendant, by enter
ing a plea of guilty- in a capital case, does not avoid a
trial by jury on the issue of punishment. The critical
choice under the federal act which occasioned the result
in Jackson, is thus not present under the Arkansas stat
utes.
It is obvious, we think, that the efforts on behalf of
Maxwell would not thus be continuing, and his case re
appearing in this court were it not for the fact that it is
the death penalty, rather than life imprisonment, which
he received on his rape conviction. This fact makes the
decisional process in a case of this kind particularly ex
cruciating for the author of this opinion11 who is not
personally convinced of the rightness of capital punish
ment and who questions it as an effective deterrent. But
the advisability of capital punishment is a policy matter
ordinarily to be resolved by the legislature or through
executive clemency and not by the judiciary. We note,
for what that notice may be worth, that the death penalty
for rape remains available under federal statutes. 18
U.S.C. §2031; 10 IT.S.C. § 920(a).
Affirmed.
A true copy.
Attest:
Clerk, V. S. Court of Appeals, Eighth Circuit.
i i Judges Vogel and Matthes do not join in this comment.
56a
Judgment o f the Court o f Appeals
(Filed July 11, 1968)
UNITED STATES COURT OF APPEALS
F ob th e E ig h t h C ircuit
No. 18,746
S eptem ber T erm , 1967
W illiam L. M ax w e ll ,
— v.—
Appellant,
0. E. B ish o p , Superintendent of
the Arkansas State Penitentiary,
Appellee.
APPEAL PROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
This cause came on to be heard on the record from the
United States District Court for the Eastern District of
Arkansas, and was argued by counsel.
On Consideration Whereof, It is now here Ordered and
Adjudged by this Court that the Order of the said Dis
trict Court of August 26, 1966, denying Petition for Writ
of Habeas Corpus in this cause be, and the same is hereby,
affirmed.
July 11, 1968
Order entered in accordance
with Opinion:—
/ s / R obert C. T ucker
Clerk, U. S. Court of Appeals
for the Eighth Circuit
57a
a p p e n d i x b
Constitutional and Statutory Provisions Involved
A rkansas S tatutes A nnotated , §3-118 (1956):
3-118. List of poll tax payers furnished county clerk
and election commissioners.—Not later than the 15th day
of October of each year the collector shall file with the
county clerk a list containing the correct names, alpha
betically arranged (according to the political or voting
townships, and according to color) of all persons who have
up to and including October 1st of that year paid the poll
tax assessed against them respectively. The correctness of
this list shall be authenticated by the affidavit of the col
lector in person. The county clerk shall at once record the
said list in a well bound book to be kept for that pur
pose. . . .
A rk a n sas S tatutes A nnotated , §3-227 (1956):
3-227. Evidence of right to vote—Filing and return of
documents—Additional list of voters—Poll tax receipts,
requirements—Certified poll tax lists—Rejection of bal
lots.—No person shall be allowed to vote at any primary
election held under the laws of this State, who shall not
exhibit a poll tax receipt, or other evidence that he has
paid his poll tax within the time prescribed by law to en
title him to vote at the succeeding general State election.
Such other evidence shall be :
(a) A copy of such receipt duly certified by the clerk of
the county court of the county where such tax was paid.
(b) Or, such person’s name shall appear upon the list
required to be certified to the judges of election by section
three of Act 320 of Acts of 1909 [§3-118].
58a
Or, if any person offering to vote shall have attained the
age of twenty-one [21] years since the time of assessing
taxes next preceding such election, which period of assess
ment is here declared to mean between the second Monday
in May and the second Monday in September of each year,
and possesses the other necessary qualifications, and shall
submit evidence by written affidavit, satisfactory to the
judges of election, establishing that fact, he shall be per
mitted to vote.
All such original and certified copies of poll tax receipts
and written affidavits shall be filed with the judges of elec
tion and returned by them with their other returns of
election, and the said judges of election shall, in addition
to their regular list of voters, make an additional list upon
their poll books of all such persons permitted by them to
vote, whose names do not appear on the certified list of poll
tax payers, and such poll books shall have a separate page
for the purpose of recording names of such persons.
It shall be the duty of each elector, at the time of pay
ment of his poll tax, to state, and it shall be the duty of the
collector to record and certify in his receipt evidencing the
payment of such poll tax, the color, residence, postoffice
address (rural route, town or street address), voting pre
cinct, and school district, of such person at the time of the
payment of such tax, and all poll tax receipts not containing
such requirements shall be void and shall not be recognized
by the judges of election; provided, however, it shall not be
necessary to state or have certified the street address of
any such person in cities and towns where the numbering
of houses is not required by the ordinances thereof.
The certified lists required by section 3 of Act 320 of
1909 [§3-118] shall contain, in addition to the name of the
person paying such poll tax, his color, residence, post
Constitutional and Statutory Provisions Involved
59a
office address (rural route, town, or street address where by
ordinance the numbering of houses is required), the school
district and voting precinct, and such list shall be arranged
in alphabetical order, according to the respective voting
precincts. The county election commissioners shall supply
the judges of primary elections with printed copies of such
lists.. . .
A bkaxsas S tatutes A nnotated §39-208 (1962):
Preparation of lists of petit jurors and alternates—In
dorsement of lists.— The commissioners shall also select
from the electors of said county, or from the area constitut
ing a division thereof where a county has two [2] or more
districts for the conduct of circuit courts, not less than
twenty-four (24) nor more than thirty-six (36) qualified
electors, as the court may direct, having the qualifications
prescribed in Section 39-206 Arkansas Statutes 1947 Anno
tated to serve as petit jurors at the next term of court;
and when ordered by the court, shall select such other num
ber as the court may direct, not to exceed twelve [12]
electors, having the same qualifications, for alternate petit
jurors, and make separate lists of same, specifying in the
first list the names of petit jurors so selected, and certify
the same as the list of petit jurors; and specifying in the
other list the names of the alternate petit jurors so se
lected, and certifying the same as such; and the two [2]
lists so drawn and certified, shall be enclosed, sealed and
indorsed “ lists of petit jurors” and delivered to the court
as specified in Section 39-207, Arkansas Statutes 1947,
Annotated for the list of grand jurors.
Constitutional and Statutory Provisions Involved
6 0 a
A rkansas S tatutes A nnotated §41-3403 (1962):
41-3403. Penalty for Rape.— Any person convicted of the
crime of rape shall suffer the punishment of death [or life
imprisonment]. [Act Dec. 14, 1842, §1, p. 19; C. & M. Dig.,
§2719; Pope’s Dig., §3405.]
A rkansas Statutes A nnotated §43-2153 (1962):
43-2153. Capital cases■—Verdict of life imprisonment.—
The jury shall have the right in all cases where the punish
ment is now death by law, to render a verdict of life im
prisonment in the State penitentiary at hard labor.
Constitutional and Statutory Provisions Involved
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