Furman v. Georgia Brief Amici Curiae and Motion for Leave to File Brief of the Synagogue Council of Americans and Its Constituents, et.al

    IN' THE

(totrt of % Inttrii
October Term, 1971

No. 68-5027

EARNEST JAMES AIKENS,

STATE OF CALIFORNIA,

No. 69-6003

WILLIAM HENRY FURMAN,

STATE OF GEORGIA,

Petitioner, 

Respondent,

Petitioner,

Respondent,

No. 69-5030

LUCIOUS JACKSON,

STATE OF GEORGIA,

Petitioner,

Respondent.

No. 69-5031

ELMER BRANCH, 

v.
STATE OF TEXAS,

Petitioner,

Respondent.

BRIEF AMICI CURIAE  AND MOTION FOR LEAVE TO 
FILE BRIEF AM ICI CURIAE  OF THE SYNAGOGUE 
COUNCIL OF AMERICA AND ITS CONSTITUENTS (THE 
CENTRAL CONFERENCE OF AMERICAN RABBIS, THE 
RABBINICAL ASSEMBLY OF AMERICA, THE RABBINI­
CAL COUNCIL OF AMERICA, THE UNION OF AMERI­
CAN HEBREW CONGREGATIONS, THE UNION OF 
ORTHODOX JEWISH CONGREGATIONS OF AMERICA, 
THE UNITED SYNAGOGUE OF AMERICA) AND THE 

AMERICAN JEWISH CONGRESS

L eo P feffer  
15 East 84th Street 

New York, New York 10028 
(212) TR 9-4500 

Attorney for Amici Curiae



T A B L E  O F  C O N T E N T S

PAGE

Motion for Leave to File Brief Amici Curiae.............  1

Brief Amici Curiae....................................................... 3

Interest of the A m ici...................................................  4

Summary of Argument ................................................ 7

Argument
Imposition of the death penalty constitutes 

cruel and unusual punishment in violation of the 
Eighth Amendment as made applicable to the 
states by the Fourteenth, and especially so in 
cases of non-homieidal rape .................................  8
A. The Constitutionality of the Death Penalty

in General .....................................................  8
B. Applicability of the Eighth Amendment to

the States ..................................................... 10
C. Judicial Responsibility .................................  11
D. Excessive Punishment as Cruelty ...............  12
E. Inapplicable Standards of Cruelty...............  15
F. Applicable Standards of Cruelty .................  22

1. The cruelty of deterrent punishment......  23
2. The cruelty of non-deterrent punishment 25
3. The death penalty as a badge of slavery 29
4. The death penalty and the national con­

science ....................................................... 35
5. International standards .......................... 38

Conclusion 40



TABLE OF AUTHORITIES
PAGE

Cases:

Adamson v. California, 332 U.8. 46 (1947) .................  18
Alexander v. Holmes County Board of Education, 396

U.S. 19 (1969) ........... ........................................... 41

Baker v. Carr, 369 U.S. 186 (1962) .............................  19
Beauharnais v. Illinois, 343 U.S. 250' (1952) .............  18
Boykin y. Alabama, 395 U.S. 238 (1969) ....................  9

Gideon v. Wainwright, 372 U.S. 341 (1963) ............... 11, 37
Gitlow v. New York, 268 U.S. 652 (1925) ............. 11,18, 21
Griffin v. Illinois, 351 U.S. 12 (1956) ..........................  37

Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966) ............................................................  41

Jackson v. Bisbop, 404 F. 2d 571 (1968) .................... 12,14
Jacobellis v. Ohio, 378 U.S. 184 (1964) ...................... 19, 20

Kemmler, In re, 136 U.S. 436 (1890) ..........................13, 25

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947) .........................................................10,16,22,25

Loving v. Virginia, 388 U.S. 1 (1967) ..........................  19

McGowan v. Maryland, 366 U.S. 430 (1961) ...............  37
Maxwell v. Bishop, 398 U.S. 262 (1970) ......................  2, 4
Mar bury v. Madison, 1 Cranch 137 (1803) .................11, 22

O’Neil v. Vermont, 144 U.S. 323 (1892) ......................  13

People v. Oliver, 1 N.Y. 2d 152 (1956) ......................  10
Plessy v. Ferguson, 163 U.S. 537 (1896) ....................  29
Poe v. Ullman, 367 U.S. 497 (1961) ........................... 37



I l l

PAGE

Ralph v. Warden, 438 F. 2d 786 (C.A. 4, 1971, petition
for certiorari filed, 40 LW 3058 (1971)) ............. 11,13

Robinson v. California, 370 U.S. 660 (1962) ........10,11,13,
27, 34

Rocliin v. California, 342 U.S. 165 (1952) ................. 22
Roth v. United States, 354 U.S. 476 (1957) .................18,19
Rudolph v. Alabama, 375 U.S. 889 (1963) ................... 10

Trop v. Dulles, 356 U.S. 86 (1958) ........... 11,13, 22, 23, 26,
29, 35, 38, 42

Weems v. United States, 217 U.S. 349 (1910) ......11,12,13,
14,15,16

Wilkerson v. Utah, 99 U.S. 130 (1878) .................13,14, 25
Witherspoon v. Illinois, 391 U.S. 510 (1968) .............  9

Sta tu tes:

Bill of Rights (1 W. & M. s. 2, c. 2 (1688) .................11, 21
Federal Crimes Act, 1 Stat. 112 .................................16,17
Nev. Rev. Stat. Sec. 200.363 (1967) ............................ 18

Other Authorities:

Allen, Capital P u n is h m e n t : Y our P rotection and
M in e , in Bedau, 138 .............................................. 30

Ancel^Capital Punishment in the Second Half of the 
Twentieth Century, T h e  R eview  (International 
Commission of Jurists, June 1969, 33 .................  39

Bedau, T h e  D eath P enalty in  A merica 124 (1967).... 5,15,
28, 29, 30, 31, 32, 33, 36, 39

Bedau, Death Sentences in New Jersey 1907-1960, 19
R utgers L. R ev. 1 (1964) ................................... 30

2 Blackstone, Commentaries 2620 (Jones’ ed. 1916) ....14,17



1 V

PAGE

Calvert, Capital Punishment in the Twentieth Cen­
tury, 51 (1928) ...............................................  28

Campion, Does the Death Penalty Protect State Po­
lice?, in Sedan, 301 .............................................. 28

Clark, Statement to Subcommittee on Criminal Laws 
and Procedures of the United States Senate on 
S. 1760, “ To Abolish the Death Penalty,” July 2,
1968 ..................................................... 7,8,28,30,31,36

DiSalle, Capital Punishment and Clemency, 25 Oh io
S tate L.J. 71 (1964) ............................................  30

Duffy and Hirshberg, 88 M en  and W omen  256 (1962) 30

Ehrmann, T h e  H um an  S ide of Capital P u n is h m e n t ,
in Bedau, p. 510 ..............................................30, 33, 36

Garfinkel, Research Note on Inter- and Intra-Racial
Homicides, 26 S ocial F oeces 369 (1949) .............  31

Goldberg and Dershowitz, Declaring the Death Pen­
alty Unconstitutional, 83 H ae. L. R ev. 1773 (1970) 8

Gottlieb, Capital Punishment, 15 Ceim b  and D e l in ­
quency 1 (1969) ..............................................14, 25, 28

Gottlieb, Testing the Death Penalty, 34 S. Ca lif . L.
R ev. 268 (1961) .....................................................  8, 10

Graves, The Deterrent Effect of Capital Punishment
in California, in Bedau, 322 .................................  28

Holmes, T h e  Common L aw (Howe, ed.) 36 (1963) ....  10
Hoover, S tatem ent  in  F avob of t h e  D eath  P enalty ,

in Bedau, 130.................................................  5} 28

3 J e w ish  E ncyclopedia 554 (1912) ............................ 7
Johnson, The Negro and Crime, 271 Annals 93 (1941) 31
Johnson, Selective Factors in Capital Punishment, 36 

S ocial F oeces 165 (1967) 30



V

PAGE

K o en in g e r, Capital Punishment in Texas, 1924-1928,
15 Chim e  and D elinquency  141 (1969 ) ... 28, 30, 31, 33

M cC afferty , Major Trends in the TJse of Capital Pun­
ishment, F ederal P robation, S ep t. 1961, p p . 15-21 28

M aen am ara , S tatem ent A gainst Capital P u n is h ­
m e n t , in  B ed au , 188 .......................................................... 30, 31

M aim onides, H ilk o th  S a n h e d r in  ..........................................  6
M arcu s a n d  W e isb ro d t, The Death Penalty Cases,

56 Ca lif . L . R ev. 1268 (1968) ........................................  8 ,1 0
M assach u se tts , Report on the Death Penalty 27 (1958) 28
M attick , The Unexamined Death, 8 (1966) ...................... 28
M endelsohn , Crim in al  J urisprudence of th e , A n c ien t

H ebrews 116 ........................................................................  7
2 M oore, J udaism 186 (1927) .................................................  6
M ulligan , Death, The Poor Man’s Penalty, T h e  A mer­

ican  W eekly , M ay  15 (1960), p. 9 ............................... 30
M u rra y , S tates L aws on R ace and C olor, S upp .

(1955), p. 6 .............................................................................  32
M u rto n , Treatment of Condemned Prisoners, 15 Crim e

and D elinquency  96 (1969) ........................................... 31

Ohio, Report on Capital Punishment 49 (1961) ............  28

Packer ̂ Making the Punishment Fit the Crime, 77
H arv. L . R ev. 1071 (1964) ...............................................12, 24

R eckless, The Use of the Death Penally, 15 Crim e  and

D elinquency  43 (1969) .................................................  8 ,2 8
R oche, “ A  P s y c h ia tr is t  L ooks a t  th e  D e a th  P e n a l ty ,”

T h e  P rison  J ournal (Oct. 1958), p . 47 .................  28
R o y a l C om m ission on C ap ita l P u n ish m e n t, Report

(1953), Secs. 65 et seq......................................................... 28
R ub in , The Supreme Court, Cruel and Unusual Pun­

ishment, and the Death Penalty, 15 Crim e  and D e­
linquency  121 (1969) ...................................................... 8 ,9



VI

PAGE

Savitz, The Deterrent Effect of Capital Punishment
in Philadelphia, in Bedau, 315 .............................  28

Scott, A History of Capital Punishment 246' (1950) .... 28
Selim, Does the Death Penalty Protect Municipal

Police?, in Bedau, 284 ..........................................  28
Sellin, Capital Punishment, 135 (1967) ......................  28
Sellin, The Death Penalty 69 (1959) ..........................10, 28

Talmud, Makkot ..........................................................  6
Talmud, Sanhedrin ................................................. 5, 26, 42
Thomas, Attitudes of Wardens Towards the Death

Penalty, in Bedau, 242 ..........................................  28

United Nations Report, “ Capital Punishment,” (ST/
SOA/SD/9-10) 40 ............................................17, 39, 40

U. S. Department of Justice, “ National Prisoner Sta­
tistics, No. 42” (1968, p. 32) ............... 18, 33, 35, 37, 38

Yallenga, Ch bistia nity  and t h e  D eath  P e n a l t y ......  5

Wolfgang, Kelly and Nolde, E xecutions and Com m u­
tations in  P ennsylvania , in Bedau, 482 ............. 30, 31



IN' THE

Uupranr (tart at %  Imtrti Btntw
O ctober Term , 1971

No. 69-5031

-------------= a s e ^ -B » — ------------

ELMER BRANCH, 

v.

STATE OF TEXAS,

Petitioner,

Respondent.

MOTION FOR LEAVE TO FILE BRIEF A M IC I CU RIAE  
OF THE SYNAGOGUE COUNCIL OF AM ERICA AND ITS 
CONSTITUENTS (TH E CENTRAL CONFERENCE OF 
AM ERICAN RABBIS, THE RABBINICAL ASSEMBLY OF 
AM ERICA, TH E RABBINICAL COUNCIL OF AMERICA, 
TH E UNION OF AM ERICAN HEBREW  CONGREGA­
TIONS, TH E UNION OF ORTHODOX JEW ISH  CONGRE­
GATIONS OF AMERICA, TH E UNITED SYNAGOGUE OF 
AM ERICA) AND THE AM ERICAN JEW ISH  CONGRESS

The undersigned as attorney for the amici curiae 
herein respectfully moves this Court for leave to file the 
attached brief amici curiae in the case of Branch v. State 
of Texas, No. 69-5031.

Consent to file this brief amici has been received from 
counsel on both sides in Aikens v. California, No. 68-5027, 
Jackson v. Georgia, No. 69-5030, and Furman v. Georgia, 
No. 69-5003. The Attorney General of Texas, however, has 
refused to consent to onr filing this brief in Branch. Ac­
cordingly, this motion is made for that purpose.



2

The interest of the amici curiae and the reason for their 
making this motion are set forth on pages 4-7 of the an­
nexed brief. We respectfully refer the Court thereto.

We note, further, that the amici herein have previously 
filed a brief in Maxwell v. Bishop, 398 U. 8. 262 (1970). 
However, the issue of the validity of capital punishment 
under the Eighth Amendment was not reached in that case 
and accordingly we respectfully pray for leave to file the 
attached brief.

This brief seeks to introduce a factor which it is believed 
is not fully presented in the parties’ briefs. It seeks to 
stress that the unacceptability of the death penalty, which 
establishes its invalidity under the Eighth Amendment, is 
not merely an American phenomenon but one expressing 
universal values. This is manifested by the expressions 
ranging from the de facto abolition of the death penalty 
by the Babbis in Talmudic times two thousand years ago 
to the current studies and reports of the United Nations. 
We argue that a decent respect for the opinions of mankind 
impels a constitutional declaration by this Court that the 
law of the land is consistent with the universal unaccepta­
bility of the death penalty.

September, 1971

Bespectfully submitted,

LeO' P feffee 
15 East 84th Street 

New York, New York 10028 
(212) TR 9-4500 

Attorney for Amici Curiae



IN THE

tour! xti %  Inttefc
O ctober Term , 1971

No. 68-5027

EARNEST JAMES AIKENS, 

v.
STATE OF CALIFORNIA,

No. 69-6003

Petitioner,

Respondent.

WILLIAM HENRY FURMAN,

v.
STATE OF GEORGIA,

No. 69-5030

Petitioner,

Respondent.

LUCIOUS JACKSON,
Petitioner,

v.
STATE OF GEORGIA,

__________________________ Respondent.
No. 69-5031

ELMER BRANCH,
Petitioner,

v.
STATE OF TEXAS,

Respondent.
------------------- — « »  -S - B®>— -------------------

BRIEF A M IC I CU RIAE  OF THE SYNAGOGUE COUNCIL 
OF AM ERICA AND ITS CONSTITUENTS (TH E CENTRAL 
CONFERENCE OF AMERICAN RABBIS, THE RABBINI­
CAL ASSEMBLY OF AMERICA, THE RABBINICAL 
COUNCIL OF AMERICA, THE UNION OF AMERICAN 
HEBREW  CONGREGATIONS, THE UNION OF ORTHO­
DOX JEW ISH  CONGREGATIONS OF AMERICA, THE 
UNITED SYNAGOGUE OF AM ERICA) AND THE AM ERI­

CAN JEW ISH  CONGRESS
[3 ]



4

In terest of the  Am ici

Four cases bring to this Court for the first time the 
direct question of the constitutionality of capital punish­
ment. Two of the cases, Aikens v. California, No. 68-5027, 
and Furman v. Georgia, No. 69-5003, involve imposition of 
the death penalty for murder; in the other two, Jackson v. 
Georgia, No. 69-5030, and Branch v. Texas, No. 69-5031, 
the death penalty was imposed for non-homicidal rape. 
Because the amici, as Jewish religious and civic organiza­
tions, have a special interest in the subject of capital pun­
ishment and a deep concern regarding the sanctity of hu­
man life, they submit this brief amici curiae.* In doing so, 
however, they note that this brief is not addressed to the 
question of capital punishment for international crimes 
such as genocide.

The Synagogue Council of America is the coordinating 
body of American Judaism. Its six constituents are the 
recognized rabbinic and congregational representatives of 
the three branches of American Judaism—Orthodox, Con­
servative and Reform.

The American Jewish Congress is an association of 
American Jews organized to oppose racial and religious 
discrimination and to help preserve democratic values, 
principles and practices.

All of the amici are opposed as a matter of principle 
to the imposition of the death penalty and support its abo­
lition. Their position is based on their judgment as to the 
demands of contemporary American democratic standards, 
but also has its roots in ancient Jewish tradition. This 
statement may seem surprising in view of the many refer-

* The amici filed a brief in Maxwell v. Bishop, 298 U.S. 262 
(1970), but the issue was not reached in that case.



5

ences in the Hebrew Bible to the death penalty for such 
transgressions as adultery (Lev. 20:21), bestiality (Ex. 
22:18), murder (Ex. 21:12) and rape of a betrothed woman 
(Deut. 22:15). Indeed, these Scriptural provisions are 
often invoked by defenders of capital punishment.1

These statements, however, reflect an unfamiliarity with 
the full Jewish tradition, and specifically with the fact that 
Rabbinic Judaism during the Talmudic period, some two 
thousand years ago, represents the interpretation and im­
plementation of the Scriptural command. We can fully un­
derstand the Scriptures only through their presentation by 
the Oral Law, of which Talmud is the prime exponent.

The definition and the application of the laws of evi­
dence and criminal procedure in the Talmud made convic­
tion in a capital case practically impossible. Thus, for ex­
ample, it is noted that if an accused were to be convicted 
in a capital case the verdict could not be unanimous, the 
reasoning of the Rabbis being that if not a single one of 
the twenty-three judges constituting the court (Sanhedrin) 
could find some reason for acquittal there was something 
fundamentally wrong with the court. Circumstantial evi­
dence was not sufficient to sustain a verdict in a capital 
case; two eyewitnesses, subjected to rigorous cross-exami­
nation by the court, were required. Moreover, to assure 
that the act had been committed with full premeditation, 
both witnesses had to testify that they warned the accused 
before the crime that the act was prohibited and what its 
penal consequences were. (Talmud, Sanhedrin, 40b, et seq.)

1. See e.g., Vellenga, C h r is t ia n it y  a nd  t h e  D e a th  P e n a lty ;  
in Bedau, T h e  D ea th  P en a lty  in  A m erica , 124-125 (1967) (here­
inafter referred to as Bedau) ; Hoover, S ta tem en ts  in  F avor of 
t h e  D e a th  P en a lty , in ibid., 1933.



6

In view of these procedural requirements it is evident 
that conviction in a capital case was virtually impossible.2 
But perhaps most indicative of the Rabbinic view of cap­
ital punishment is the following from the Talmud (Makkot, 
Chap. 1, Mishnah 7):

A sanhedrin which executes a criminal once in seven 
years is called a “ court of destroyers.” Rabbi Elie- 
zer ben Azariah states that this is so even if it exe­
cutes one every seventy years. Rabbi Tarphon and 
Rabbi Akiba stated that if they had been members of 
the sanhedrin no one would ever have been executed.

One Rabbi, Simeon ben Gamliel, expressed a contrary 
view, reflecting the most common justification for capital 
punishment, namely its deterrent effect. If the views of 
Rabbi Tarphon and Akiba were to prevail, he said, “ they 
would increase murders in Israel.” However, later com­
mentaries note that Rabbi Simeon’s was a minority view 
and that the others expressed the normative opinions of 
the Rabbis. (Maimonides, Hilkoth Sanhedrin, xiv, xv.)

To take a human life, the Rabbis said, is matter of the 
gravest seriousness. Execution is not reversible. If a mis­
take is made what has been done cannot be undone. One 
who takes a human life, they pointed out, diminishes the 
Divine Image. On occasions, this extreme means may be 
necessary to protect society. But it may be carried out 
only when there can be absolutely no doubt concerning the 
guilt of the accused and of his freely chosen, deliberate 
and knowing act. In view of human fallibility which is 
so pervasive a factor in all judgments, a drastic step such

2. “It is clear that with such a procedure conviction in capital 
cases was next to impossible, and that this was the intention of the 
framers of the rule is equally plain.” 2 Moore, J uda ism , 186 (1927).



7

as terminating a human life was as a practical matter not 
defensible. (See, 3 J ew ish  E ncyclopedia 554-558 (1912); 
Mendelsohn, Crim inal  J urisprudence of t h e  A n c ien t  
H ebrews, 116-133.)3

Sum m ary of A rgum ent

Under the Eighth Amendment to the Federal Constitu­
tion, made applicable to the states by the Fourteenth, a 
state may not impose punishment which is cruel or un­
usual. The ultimate responsibility of determining whether 
punishment is cruel or unusual rests not with the legisla­
ture but with the courts, and ultimately of course this 
Court. In discharging this responsibility the Court is not 
restricted to standards prevailing in 1789 when the Amend­
ment was framed but should apply contemporary stand­
ards. Nor should these standards be limited by consid­
erations of geographic regionalism, but should give weight 
to national and even international judgments. Moreover, 
it should consider the efficacy or inefficacy of the death 
penalty as a deterrent and should give weight to the usual 
if not inevitable concomitants of imposition of the death 
penalty, such as unequal and racially discriminatory im­
position. Measured by these standards the death penalty 
constitutes cruel and unusual punishment within the mean­
ing of the Eighth Amendment, and certainly so in cases 
of non-homicidal rape.

3. It is for this reason that Lafayette vowed to oppose capital 
punishment until “the infallibility of human judgment” was demon­
strated to him. Quoted in statement by Attorney General Ramsey 
Clark before Subcommittee on Criminal Laws and Procedures of the 
United States Senate on S. 1760, To Abolish the Death Penalty, July 
2, 1968 (hereinafter referred to as Statement on S. 1760).



8

A R G U M E N T

Im position of the death  penalty  constitutes cruel 
and unusual punishm ent in v iolation of the  E ighth 
A m endm ent as m ade applicable to the  states by the 
F ourteenth , and  especially so in cases of non-hom icidal 
rape,

A. T he Constitutionality of th e  D eath  Penalty  in G eneral

The unconstitutionality of the death sentence in all cases 
is being increasingly suggested among legal writers,4 not 
merely under the Eighth Amendment hut as a denial of 
due pi’ocess. Under the former it has been suggested that 
contemporary scientific knowledge, not available in 1791 
but requiring judicial recognition,5 establishes that all 
methods of execution of humans in use in the world today 
(hanging, shooting, beheading, stoning, electrocution and 
gas asphyxiation)6 are physically and psychologically pain­
ful to the extent of being cruel and inhumane. Marcus and 
Weisbrodt, The Death Penalty Cases, 56 Ca lif . L. E ev. 
1268, 1326-1343 (1968). It has been urged too that, as the 
then Attorney General of the United States stated in 1968, 
“ Surely the abolition of the death penalty is a major mile­
stone in the long road from barbarism,”7 and that accord-

4. Rubin, The Supreme Court, Cruel and Unusual Punishment, 
and the Death Penalty, 15 Cr im e  and  D e l in q u e n c y  121 (1969) ; 
Marcus and Weisbrodt, The Death Penalty Cases, 56 Ca l if . L. R ev . 
1268 (1968) ; Gottlieb, Testing the Death Penalty, 34 S. Ca l if . L.R. 
268 (1961) ; Goldberg and Dershowitz, Declaring The Death Penalty 
Unconstitutional, 83 H ar. L. R ev. 1773 (1970).

5. Cf. Brown v. Board of Education, 347 U.S. 483 (1954).
6. Reckless, The Use of the Death Penalty, 15 Cr im e  and  D e ­

l in q u e n c y  43, 46 (1969).
7. Statement on S. 1760.



9

ingly by contemporary standards this Court can and should 
declare capital punishment to be unconstitutionally cruel 
and inhumane in all cases. (See Point II of Brief Amicus 
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 Boykin v. Alabama, 395 U.S. 238 (1969).)

It may also be suggested that, as will be indicated be­
low (pp. 37-38), actual consummation of the death pen­
alty even when it is imposed has become so rare that 
de facto if not de jure it has become “ unusual” within the 
context of the Eighth Amendment and that the Court 
should declare it so.

The due process argument has been predicated on the 
claim that execution of the death penalty renders due proc­
ess of law inoperable. “ When the condemned man is exe­
cuted, errors in the proceedings are placed beyond the reach 
of later decisions that would provide new grounds for ex­
amining whether the proceedings leading to the execution 
contained error.” Rubin, The Supreme Court, Cruel and 
Unusual Punishment and the Death Penalty, 15 Crim e  and 
D elinquency  121, 130 (1969). Thus, for example, in 
Witherspoon v. Illinois, 391 U.S. 510 (1968) the Court held 
that a jury from which persons not believing in the death 
penalty were excluded was not representative of the com­
munity and therefore constitutionally impermissible. The 
Court held this principle to be retroactive and hence ap­
plicable to all persons in death rows all over the country. 
But as to those who have already been executed reopen­
ing and retrial is of course impossible and therefore the 
inevitable result is that they have been deprived of their 
lives without due process of law.



10

Finally, an argument has been made which encompasses 
both due process and the Eighth Amendment, an argument 
suggested by Robinson v. California, 370 U.S. 660 (1962), 
that the death penalty is not rationally related to any pur­
pose that an American government may constitutionally 
seek to achieve. The traditional purposes of punishment 
have been retribution, deterrence, reform, and isolation for 
the protection of the community. Rudolph v. Alabama, 375 
U.S. 889 (1963), dissenting opinion of Mr. Justice Gold­
berg; Holmes, T h e  C ommon L aw (Howe, ed.) 36 (1963). 
Retribution, it is asserted, is today no longer a valid gov­
ernmental interest.8 Capital punishment, as will be indi­
cated more fully below, is overwhelmingly adjudged by 
competent students not to be demonstrably more effectual 
as a deterrent than life or long-term imprisonment. Ref­
ormation is of course impossible, and isolation can be ef­
fectively achieved by confinement. Gottlieb, Testing the 
Death Penalty, 34 S. Ca lif . L . R ev. 268 (1961); Sellin, The 
Death Penalty 69-79 (1959).9

B. A pplicability  of the  E ighth A m endm ent to  the  States

Whatever doubts may have previously existed,10 it is 
now clear that the Eighth Amendment’s prohibition of 
cruel and unusual punishment is applicable to the states

8. “There is no place * * * for punishment for its own sake, the 
product of vengeance or retribution.” People v. Oliver, 1 N.Y. 2d 
152, 160 (1956). See also Holmes, T h e  Com m on  L aw  (Howe, 
ed.) 37 (1963) ; Marcus and Weisbrodt, The Death Penalty Cases, 
56 Ca l if . L. R ev. 1268, 1348-1354 (1968).

9. Of course, execution is more economical than life confinement, 
but in view of the sanctity of human life it can hardly be contended 
that this fact should be determinative.

10. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 
462 (1947).



11

by virtue of the Fourteenth Amendment. Robinson v. Cali­
fornia, 370 U.S. 660, 666 (1962); Gideon v. Wainwright, 372 
U.S. 341-342 (1963); Ralph v. Warden, 438 F. 2d 786 (C.A. 
4, 1971), petition for certiorari filed, 40 LW 3058 (1971).

C. Jud ic ia l Responsibility

Although, as will be indicated more fully below, there 
is a steady legislative trend toward the abolition of the 
death penalty either altogether or with a few exceptions 
(infra, p. 36), a trend which reflects the mandate of the 
public conscience, the ultimate responsibility of determin­
ing what constitutes cruel and unusual punishment within 
the meaning of the Eighth Amendment rests not with the 
legislature but with the courts, and particularly this Court. 
Trop v. Dulles, 356 U.S. 86, 103 (1958); Robinson v. Cali­
fornia, supra. Representative Livermore stated this clearly 
and succinctly in arguing against the Amendment in Con­
gress : “ It lays with the court to determine.” (Cong. Reg­
ister 225, quoted in Weems v. United States, 217 U.S. at 
369). As we indicate below (p. 18), Gitlow v. New York, 
268 U.S. 652 (1925) and the innumerable cases following 
it, hold that the effect of the Fourteenth Amendment is to 
universalize the Bill of Rights and to require all states and 
localities to adhere to national standards of freedom, jus­
tice and equality. Whether or not the fifth section of that 
Amendment empowers the Congress to forbid capital pun­
ishment by the states, its failure to act cannot, unless Mar­
burg v. Madison, 1 Cranch 137 (1803) no longer has any 
meaning, affect the ultimate responsibility of this Court 
to interpret and apply the Bill of Rights nationally.



12

D. Excessive Punishm ent as C ruelty11

Rather surprisingly it has been urged that the intent 
of the Eighth Amendment is solely to forbid cruel and in­
humane methods of punishment such as torture or burn­
ing at the stake, but not to forbid punishments which are 
wholly disproportionate to the offense committed. Weems 
v. United States, 217 U.8. 349, 382 (1910) (dissenting opin­
ion) ; Packer, Making the Punishment Fit the Crime, 77 
H abv. L. R ev. 1071, 1074-1075 (1964). This is surprising 
because it would forbid flogging a person who committed 
petty larceny12 or even fining him excessively (since the 
Amendment specifically prohibits excessive fines),13 but not 
imprisoning him for life or even hanging him for it.14

It is difficult to believe that the framers and adopters 
of the Amendment were concerned only about dispropor­
tionate monetary punishment but not other and more seri­
ous forms of disproportionate punishment.

In any event, the issue is no longer open to question; 
it is clear today that punishments which are excessively 
disproportionate to the crimes for which they are imposed

11. This Section of our Brief pertains only to Jackson v. Georgia 
and Branch v. Texas.

12. Jackson v. Bishop, 404 F.2d 571 (1968).
13. The Eighth Amendment was taken bodily from the English 

Bill of Rights of 1688 (1 W. & M. s. 2, c. 2). The earliest applica­
tion of the provisions in England appears to have been in 1689, just 
a year after its adoption, in a case in which the King’s Bench fined 
Lord Devonshire thirty thousand pounds for an assault and battery 
upon Colonel Culpepper. The House of Lords, in reviewing the case, 
took the opinion of the law Lords, and decided that the fine “was 
excessive and exorbitant, against Magna Charta, the common right 
of the subject and the law of the land.” Weems v. United States, 
supra, 217 U.S. at 376.

14. See below footnote 23.



13

are cruel and unusual within the meaning of the Amend­
ment. Weems v. United States, supra-, Robinson v. Cali­
fornia, supra-, Ralph v. Warden, supra, I t follows from 
this that even if the Court cannot find that there is no un- 
cruel or humane method of execution of the death pen­
alty15 and is not prepared at present to hold that the death 
penalty is in all cases disproportionate to all crimes even 
those resulting in death, it can, and we submit should hold 
that it is unconstitutionally disproportionate to the crime 
of rape which does not result in death.

In discharging its responsibility of interpreting and ap­
plying the Eighth Amendment the Court is not confined 
to the standards prevailing in 1789 when the Amendment 
was framed. “ [T]he words of the Amendment are not 
precise * # * their scope is not static.” Trop v. Dulles, 356 
U.S. at 100-101. Even when the Amendment was debated 
in Congress on its introduction it was recognized that fu­
ture courts would give different meanings to the term 
“ cruel.” Representative Livermore opposed the Amend­
ment for exactly that reason, stating:

^ The clause seems to express a great deal of hu­
manity, on which account I  have no objection to it; 
but as it seems to have no meaning in it, I do not think 
it necessary. What is meant by the terms excessive 
bail? Who are to be the judges? What is understood 
by excessive fines? It lays with the court to deter­
mine ; it is sometimes necessary to hang a man, villains 
often deserve whipping, and perhaps having their ears 
cut off; but are we, in future, to be prevented from 
inflicting these punishments because they are cruel?

15. Wilkerson v. Utah, 99 U.S. 130 (1878) (statute authorized 
trial judge option of sentencing death by shooting, hanging or be­
heading; Court held shooting is not cruel and unusual) ; In re 
Kemmler, 136 U.S. 436 (1890) (death by electrocution not cruel 
and unusual). See also O’Neil v. Vermont, 144 U.S. 323 (1892).



14

If a more lenient mode of correcting vice and deter­
ring others from the commission of it could be in­
vented, it would be very prudent in the legislature to 
adopt it, but until we have some security that this will 
be done, we ought not to be restrained from, making 
necessary laws by any declaration of this kind. (Cong. 
Register 225, quoted in Weems v. United States, 217 
XJ.S. at 369).16

Livermore spoke of cutting off the ears of criminals, 
but lest it be assumed that this was merely the product of 
his imagination, it should be noted that the Constitution 
itself, or more specifically the Fifth Amendment, appears 
to contemplate the acceptability of dismemberment as a 
method of punishment. The Amendment provides that no 
person shall “ be subject for the same offense to be twice 
put in jeopardy of life or limb,” thus implying the pro­
priety of being once put in jeopardy of limb.17 Blackstone 
refers to drawing and quartering, disemboweling, behead­
ing and branding as forms of punishment practiced in Eng­
land, notwithstanding the Bill of Rights of 1688, up to a 
time contemporary with the framing of the Eighth Amend­
ment.18 Can it be doubted that no American court would 
today sanction these methods of punishment in the face 
of the Eighth Amendment?19

16. It is interesting to note that Livermore apparently anticipated 
a time when hanging, and presumably all other methods of executing 
the death penalty, would be adjudged unconstitutionally cruel.

17. Gottlieb, Capital Punishment, 15 Cr im e  and  D e lin q u en c y  
1, 20 1969).

18. 2 Blackstone, Co m m en ta r ies , 2620-23 (Jones’ ed. 1916). 
Whipping, held violative of the Eighth Amendment in Jackson v. 
Bishop, 404 F. 2d 571 (1968), was specifically prescribed as punish­
ment for a variety of offenses in the first Federal Crimes Act, 1 Stat. 
112-117.

19. See, Wilkerson v. Utah, 99 U.S. 130, 135-136 (1878).



15

E. Inapplicable Standards of Cruelty20

As we have indicated, the Amendment addresses itself 
not only to the method of punishment bat to its propor­
tionateness as well It no more immunizes from future 
judicial review punishment deemed in 1789 not to be dis­
proportionate or excessive by the standards then prevail­
ing than it immunizes punishments then acceptable in 
method or mode of execution. As late as 1837, more than 
twenty-five offenses, including stealing bank notes, forgery 
and bigamy were punishable by death in North Carolina..21 
In England, it was not until 1810 that the law making pick­
ing pockets a capital offense was repealed.22 The Crimes 
Act of 1790 (1 Stat. 112-117), the first Federal penal code, 
made forging or passing forged public securities punish­
able by death.

It is inconceivable that this Court would today allow 
the death penalty to be imposed for these crimes although 
they were apparently acceptable to the generation that 
framed and adopted the Eighth Amendment. That Amend­
ment did not fossilize forever the standards of humane 
conduct prevailing in the 18th century. The matter has 
been"well put by the Court in Weems v. United States (217 
U.S. at 373):

Legislation, both statutory and constitutional, is 
enacted, it is true, from an experience of evils, but its 
general language should not, therefore, be necessarily

20. This Section of our Brief pertains particularly to Jackson v. 
Georgia and Branch v. Texas.

21. Bedau, 7. This harsh code persisted so long in North Caro­
lina partly because the state had no penitentiary and thus had no 
suitable alternative to the death penalty. Ibid.

22. Ibid.



16

confined to the form that evil had theretofore taken. 
Time works changes, brings into existence new condi­
tions and purposes. Therefore a principle to be vital 
must be capable of wider application than the mischief 
which gave it birth. This is peculiarly true of consti­
tutions. They are not ephemeral enactments, designed 
to meet passing occasions. They are, to use the words 
of Chief Justice Marshall, “ designed to approach im­
mortality as nearly as human institutions can approach 
it. ’ ’ The future is their ease and provision for events 
of good and bad tendencies of which no prophecy can 
be made. In the application of a constitution, there­
fore, our contemplation cannot be only of what has 
been but of what may be. Under any other rule a con­
stitution would indeed be as easy of application as it 
would be deficient in efficacy and power. Its general 
principles would have little value and be converted by 
precedent into impotent and lifeless formulas. Eights 
declared in words might be lost in reality. And this 
has been recognized. The meaning and vitality of the 
Constitution have developed against narrow and re­
strictive construction. * * *

The conclusion to be drawn from this is that the fact 
that death was deemed a constitutionally acceptable pen­
alty for rape in 1789 when the Eighth Amendment was 
framed, or 1868 when the Fourteenth Amendment was 
adopted or even in 1947 when Louisiana ex rel. Francis v. 
Resweber was decided by this Court, does not require the 
Court to hold today that it is constitutionally acceptable 
and not violative of the Eighth Amendment. As the Court 
said in Weems (217 U.S. at 378), “ The clause of the Con­
stitution * # * may therefore be progressive, and is not 
fastened to the obsolete, but may acquire meaning as pub­
lic opinion becomes enlightened by a humane justice.”



17

Nor is the Court precluded from adjudging the death 
penalty to he unconstitutionally inappropriate or excessive 
by reason of the fact that the legislature has expressly or 
implicitly found it to be efficacious as a deterrent. As we 
will show below (p. 27), the scientific evidence is almost 
unanimously to the contrary; but even if that were not so, 
the Eighth Amendment does not except from its prohibi­
tion such cruel and inhumane punishment as effectively 
deters others from committing the same crime. If it did, 
there would be nothing left of the Amendment, for the 
more cruel the punishment the more effective it would be 
as a deterrent. Concecledly, the state has an interest in 
deterring murder and rape. But so too does it have an 
interest in deterring forgery, embezzlement, petty larceny 
and even traffic violations, and that interest would hardly 
constitutionally justify imposition of the death penalty for 
those offenses.23

Today, 17 states and the District of Columbia maintain 
in their statutes the death penalty for rape.24 All but one

23. “But, indeed, were capital punishments proved by experience 
to be a sure and effectual remedy, that would not prove the necessity
* * * of inflicting them upon all occasions when other expedients fail. 
I fear this reasoning would extend a great deal too far. For instance, 
the damage done to our public road by loaded wagons is universally 
allowed, and many laws have been made to prevent i t ; none of which 
have hitherto proved effectual. But it does not therefore follow that 
it would be just for the legislature to inflict death upon every obsti­
nate carrier who defeats or eludes the provisions of former statutes
* * *” 2 Blacktone’s Commentaries, 2164-65. (It should be noted, 
incidentally, that this quotation effectively disposes of the claim that 
the term “cruel and unusual” as used in the Bill of Rights of 1688 
contemplated only the method of punishment and not its appropriate­
ness or excessiveness.)

24. The states are Alabama, Arkansas, Delaware, Florida, Geor­
gia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, 
North Carolina, Oklahoma, South Carolina, Tennessee, Texas and 
Virginia. Bedau, p. 43; United Nations Report, Capital Punishment



18

(Nevada) are southern states.25 The death penalty for rape 
can therefore truly be said to be a regional or geographic 
phenomenon. But, we submit, a geographic or regional 
variation cannot restrict the Court’s exercise of judgment 
in construing and applying the Eighth Amendment any 
more than the First or Fourteenth. Indeed, whether or 
not it was the intent of the framers of the latter amend­
ment to incorporate the first ten,28 the practical effectuation 
of the same result through the steady process of selective 
incorporation initiated in Gitlow v. New York, supra, mani­
fests a strong judicial policy towards nationalizing the Bill 
of Bights. During the almost half-century since Gitlow, the 
personnel of the Court has undergone many changes; it has 
included such staunch defenders of federalism as Mr. Jus­
tice Frankfurter. Yet, during the entire period the prog­
ress towards nationalization has not been stayed and cer­
tainly not been reversed; not a single decision holding 
applicable to the states by virtue of the Fourteenth Amend­
ment a right secured in the first ten has been overruled by 
the Court or even modified to the extent of according 
greater liberality to the states in interpreting the scope of 
the right.27

(ST/SOA/SD/9-10), p. 40 (hereinafter referred to as UN Report). 
The latter includes West Virginia but in 196S, after the UN compi­
lation, that state abolished capital punishment in all cases. United 
States Department of Justice, National Prisoner Statistics, No. 42, 
June, 1968, p. 32 (hereinafter referred to as N PS). In Nevada, rape 
is punishable by death only where committed with substantial bodily 
harm to the victim. Nev. Rev. Stat. Sec. 200.363 (1967).

25. So classified by the Department of Justice. NPS, p. 9.
26. See Adamson v. California, 332 U.S. 46 (1947) (opinion by 

Mr. Justice Reed, concurring opinion by Mr. Justice Frankfurter and 
dissenting opinion by Mr. Justice Black).

27. As suggested by Mr. Justice Jackson in Beauharnais v. Illi­
nois, 343 U.S. 250, 288-295 (1952) and Mr. Justice Harlan in Roth 
v. United States, 354 U.S. 476 (1957).



19

The principle underlying Gitlow and its successors is 
that we are one indivisible nation with liberty and justice 
for all, and not merely for those fortunate enough to re­
side in some rather than other regions of the country. It 
is the principle that where the fundamental freedoms of the 
Bill of Bights are concerned (one of which Is the freedom 
from cruelly excessive punishments) accidents of geog­
raphy are irrelevant. So long as we are one nation, it is 
unacceptable that the right of a man, even a rapist, to live 
should depend on whether he committed the offense five 
feet north or five feet south of the Mason-Dixon line.

It is not merely in the many incorporation cases that 
the judicial policy negating geographical factors in apply­
ing constitutional freedoms is manifest. In Brown v. 
Board of Education, supra, the Court held that a Negro 
child attending public school in Topeka, Kansas, has as 
much right not to be segregated as his cousin attending 
school in Denver or Minneapolis. In Loving v. Virginia, 
388 U.S. 1 (1967), it held that the right of a Negro and 
white to marry each other is not dependent on whether 
they live in Richmond or in New York.

The thrust of Baker v. Carr, 369 U.S. 186 (1962) and 
its manifold progeny is that not only the right to vote but 
the value of one’s vote may not be made dependent upon 
the geographical accident of whether he lives on a farm, 
or in a city.

Perhaps most germane is Jacobellis v. Ohio, 378 U.S. 
184 (1964). In Both v. United States, 354 U.S. 476, 489 
(1957), this Court had held that the test for constitutionally 
unprotected obscenity is “ whether to the average person,



20

applying contemporary community standards, the dominant 
theme of the material taken as a whole appeals to prurient 
interests.” In Jacobellis, the Court held that the term 
“ community standards” does not imply a determination 
of the constitutional question of obscenity in each case by 
the standards of the particular community from which the 
case arises, but that it refers to national rather than local 
standards. What the Court said in Jacobellis is, we submit, 
particularly relevant here (378 IT.S. at 194-5):

It is true that local communities throughout the 
land are in fact diverse, and that in cases such as this 
one the Court is confronted with the task of reconciling 
the rights of such communities with the rights of in­
dividuals. Communities vary, however, in many re­
spects other than their toleration of alleged obscenity, 
and such variances have never been considered to re­
quire or justify a varying standard for application of 
the Federal Constitution. The Court has regularly 
been compelled, in reviewing criminal convictions chal­
lenged under the Due Process Clause of the Fourteenth 
Amendment, to reconcile the conflicting rights of the 
local community which brought the prosecution and of 
the individual defendant. Such a task is admittedly 
difficult and delicate, but it is inherent in the Court’s 
duty of determining whether a particular conviction 
worked a deprivation of rights guaranteed by the Fed­
eral Constitution. The Court has not shrunk from dis­
charging that duty in other areas, and we see no reason 
why it should do so here. The Court has explicitly re­
fused to tolerate a result whereby “ the constitutional 
limits of free expression in the Nation would vary with 
state lines,” Pennekamp v. Florida, supra, 323 U.S., at 
335, we see even less justification for allowing such 
limits to vary with town or county lines. We thus re­
affirm the position taken in Both to the effect that the



21

constitutional status of an allegedly obscene work 
must be determined on the basis of a national standard. 
It is, after all, a national Constitution we are expound­
ing. (Emphasis added.)

If a community may not determine for itself what is 
obscene, it may not determine what is cruel and unusual. 
If restrictive local or regional standards may not determine 
the right of an American to speak, it certainly may not, 
we submit, determine his right to live.

It may be conceded that these decisions as well as one 
that forbids a state to impose the death penalty impinge 
somewhat upon federalism strictly construed. But feder­
alism, like government, is not an end but a means. We 
declared our independence of England because we believed 
that governments are instituted among men to secure their 
inalienable rights, of which first and foremost is the right 
to live, and that when a particular form of government 
fails to secure these rights, it is the form of government 
and not the rights which must yield.

It is no answer to say that application to particular 
geographic regions of national concepts of the meaning of 
freedoms secured by the Bill of Rights should be effected 
by constitutional amendment rather than court decision, for 
it is the teaching of all the post-Gitlow decisions that this 
indeed is what was done in 1868. If the Fourteenth Amend­
ment means anything, it means that a man’s right to life or 
liberty cannot be made dependent upon local or regional 
standards but must be judged according to the standards 
of the entire nation. It is, after all, a national Constitution 
which secures this right.



22

F. A pplicable S tandards of C ruelty

As we have indicated, the ultimate authority to deter­
mine what constitutes constitutionally impermissible pun­
ishment rests with the courts. This is so because in a 
Federal system based upon a written constitution there 
must be some single agency which has the final responsi­
bility of determining for the whole nation the meaning of 
that constitution. Ever since Marbury v. Madison, 1 Cranch 
137 (1803), it has been established that this responsibility 
has been delegated to the judiciary. It is therefore the 
responsibility of this Court to adjudicate the appropriate­
ness of the death penalty today as punishment which is not 
cruel and unusual.

In discharging this responsibility, members of the Court 
are not left without guides other than their own subjective 
predispositions. We do not urge the Court to reverse in the 
present cases merely because its members may not like the 
idea of a human being deliberately being put to death by 
a democratic government. We do not even urge that the 
penalty be adjudged unconstitutional because the Court 
deems it shocking to their own conscience, although there 
is ample authority for this.28 We believe that there are 
standards or criteria available to the Court as reasonably 
objective as can be expected of a constitutional provision 
whose words necessarily “ are not precise.”29

We have heretofore urged rejection of such criteria as 
acceptability in 1789 or 1868, effectiveness as a deterrent,

28. See, e.g., Rochin v. California, 342 U.S. 165 (1952); Loui­
siana ex rel. Francis v. Resweber, 329 U.S. 459, 471 (1947) (con­
curring opinion of Mr. Justice Frankfurter).

29. Trop v. Dulles, 356 U.S. at 100.



23

and contemporary acceptability in a particular geographic 
region. There are, however, other standards or criteria 
which are appropriate and it is to these that we now address 
ourselves.

Preliminarily, we note that the over-all principle was 
expressed by Mr. Chief Justice Warren in his plurality 
opinion in Trap v. Dulles (356 U.S. at 101). “ The Amend­
ment, ’’ he said, “ must draw its meaning from the evolving 
standards of decency that mark the progress of a maturing 
society.” The criteria we now propose will, we submit, 
aid the Court in determining whether the death penalty is 
consistent with these “ evolving standards of decency.”

1. The cruelty of deterrent punishment

We have pointed out above (p. 17) that punishment 
may be excessive and hence constitutionally cruel even if it 
is effective as a deterrent; indeed, we noted, if punishment 
is a deterrent the more excessive the punishment the more 
likely it is to be effective as a deterrent. The gas chamber 
for litterers may be the most effective way of keeping the 
streets clean, but that is a price for clean streets the Eighth 
Amendment does not permit government in the United 
States to pay.

Excessiveness, however, is not limited to non-homieidal 
crimes. Certainly, the death penalty for negligently caused 
homicide would not be adjudged acceptable today under the 
Eighth Amendment. But even in cases of deliberately and 
premeditatedly committed murder the Eighth Amendment 
is operative. Even Professor Packer30 would not hold that

30. Op. cit. p. 12.



24

in every respect “Making the Punishment Fit the Crime” 
accords with Eighth Amendment limitations, else it would 
he constitutional to burn homicidal arsonists at the stake.

Those who wrote and those who adopted the Eighth 
Amendment undoubtedly shared the common assumption 
that punishment was an effective deterrent of crime and 
that the more severe the punishment the more effective it 
was likely to be as a deterrent. They were aware that 
punishments such as torture, burning, disembowelment and 
dismemberment had long been deemed acceptable and effi­
cacious means of deterring crime. In adopting the Eighth 
Amendment they made a deliberate judgment that even 
deterrence of homicidal crimes may not be purchased at a 
price which violated what they judged to be America’s 
standards of civilization and humaneness. Just as they 
made the decision that domestic tranquility should not be 
purchased at the cost of suppressing dissent, so too they 
decided that it should not be purchased at the cost of 
humaneness and respect for the sacredness and integrity 
of the individual, even if he himself were a cruel and 
inhumane murderer.

But, as our quotation from Livermore31 shows, they did 
not intend to freeze for all times their own standards of 
civilization and humaneness, any more than they were will­
ing to accept for themselves the standards of preceding 
generations that allowed execution of the death penalty by 
means of torture and disembowelment. And, as the same 
quotation indicates, they assumed that it would be the 
judges in each generation who in the final analysis would

31. Supra, p. 13.



25

determine the limits allowed by contemporary standards of 
civilization and humaneness.

This Court has accepted the responsibility of determin­
ing whether a particular form of executing the death pen­
alty does violence to such standards. WilJcerson v. Utah, 
99 U.S. 130; In re Kemmler, 136 U.S. 436 (1890); Louisiana 
ex rel. Francis v. Resweber, 329 U.S. 459 (1947). We sub­
mit that it can and should determine whether any form of 
executing the death penalty is consistent with our present 
standards of civilization and humaneness. If it finds, as we 
believe it should, that it is not, it should declare the death 
penalty unconstitutionally cruel and unusual in all cases, 
even though it also believes that it is an effective deterrent 
to homicidal crimes.

2. The cruelty of non-deterrent punishment

The fact that punishment may be unconstitutionally 
cruel even if it is effective as a deterrent does not mean that 
conversely its noneffectiveness as a deterrent is constitu­
tionally irrelevant. We suggest, rather, that punishment 
which does not deter and does not serve any valid purpose 
at all (such as reformation) or any valid purpose which 
cannot effectively be served by less harsh means (such as 
isolation) is cruel and inhumane. This is so because its 
only purpose is vengeance,32 and vengeance is forbidden by 
the Constitution.

32. There is considerable empiric evidence to support the belief 
that vengeance is the purpose of the death penalty. Prison authori­
ties uniformly search and guard condemned prisoners closely to pre­
vent suicide. Should a prisoner in attempting suicide injure himself, 
no medical effort is spared to keep him alive for the scheduled execu­
tion. Gottlieb, Capital Punishment, 15 Cr im e  and  D elin q u e n c y  8 
(1969). It is apparently not the prisoner’s death but the putting him



26

Mr. Justice Brennan did not join in the Chief Justice’s 
plurality opinion in Trop v. Dulles, but he expressed this 
principle well in his own concurring opinion. After con­
cluding that denationalization for desertion during war­
time is ineffective as a deterrent, he stated (356 U.S. at 
112):

* * # It cannot be denied that there is implicit in this 
a certain rough justice. He who refuses to act as an 
American should no longer be an American—what 
could be fairer? But I cannot see that this is any-

to death that the state demands. Moreover, the prisoner must be 
conscious and sane at the time of the execution. Dr. William F. 
Graves, for many years medical officer at San Quentin, made some 
fifty visits on death row, examining each condemned inmate to de­
termine his physical and mental status and to recommend any treat­
ment that might be needed to keep him alive and sane for execution. 
Dr. Graves reports as follows regarding one condemned prisoner: 
“During his stay in Death Row, McCracken became no more than a 
vegetable. On one occasion, I found him wallowing on the floor of 
his cell in his own excreta babbling incoherently. I arranged to have 
him transferred to the prison hospital where he was given electric 
shock therapy—this to bring him to a point of sanity at which he 
might be considered able to understand that he was being punished 
at the time of his execution.” Ibid.

That this practice is not limited to the United States is shown 
by the following from the UN report cited above (at p. 101) : “There 
are provisions in the laws of many countries which allow the post­
ponement of an execution in the event of either serious physical ill­
ness or insanity which appears after sentencing; the execution then 
takes place when the condemned man is in good health. Ironically, 
this practice sometimes results in the fact that the state expends con­
siderable effort and funds to save the life of the man it will then pro­
ceed to kill. * * *” All this makes sense only in terms of vengeance; 
the culprit must be sane and conscious when the state puts him to 
death, else the state’s vengeance would not be full.

The practice in ancient Israel, during the time when capital pun­
ishment was still effected, was the reverse. The condemned prisoner 
was given wine spiced with frankincense to drink in order to benumb 
his senses. Talmud, Sanhedrin 43a.



27

thing other than forcing retribution from the offender 
—naked vengeance. * * *

Mr. Justice Brennan did not join in the plurality opin­
ion based on the Eighth Amendment presumably because 
the Government had ‘ ‘ understandabl [y] * * * not pressed 
its case on the basis of expatriation of the deserter as pun­
ishment for his crime.” {Ibid.) Had it done so, the tenor 
of his opinion and his joinder in the Court’s opinion in 
Robinson v. California, supra, indicate quite clearly that 
he would likewise have held that non-deterrent, vengeful 
punishment is violative of the Eighth Amendment’s pro­
hibition of cruel and unusual punishment.

Mr. Justice Brennan pointed out in Trop that because of 
the novelty of expatriation as punishment no one can judge 
its precise consequences and he accordingly could not rely 
on any studies to establish its inefficacy as a deterrent.38 
Nevertheless, he concluded that since its efficacy had not 
been established, so grave a penalty could not constitu­
tionally be imposed by Congress.

In respect to capital punishment, however, substantial 
studiesshave been made by competent scholars and their 
conclusion is overwhelming that statistical research does 
not support the assumption that the death penalty is more 
effective as a deterrent than life or long-term imprison­
ment and that it is the certainty rather than the gravity

33. He did, however, note that, from the fact that in two-thirds 
of the cases of the 21,000 soldiers convicted of desertion during World 
War II and sentenced to be dishonorably discharged reviewing au­
thorities remitted the dishonorable discharges, “it is possible to infer 
that the military itself had no firm belief in the deterrent effects of 
expatriation.” 356 U.S. at 112, n. 8.



28

of the punishment that is critical in deterrence.84 (Indeed, 
the only contrary assertions are unsupported, impression­
istic statements mainly from law enforcement officials.)35 
Some of the scholars assert flatly that the death penalty, as 
distinguished from imprisonment, is not a deterrent-;36 or 
may even have a contrary effect and actually incite com­
mission of the very crime it seeks to deter.37 More cautious 
scholars say only that there is no evidence to support the 
theory that the death penalty is a deterrent superior to

34. Sellin, The Death Penalty, 19-63 (1959) ; Sellin, Capital 
Punishment, 135-186 (1967) ; Calvert, Capital Punishment in the 
Twentieth Century, 51-90 (1928) ; Mattick, The Unexamined Death, 
8-28 (1966) ; Koeninger, Capital Punishment in Texas, 1924-1928, 
15 Cr im e  and  D e l in q u e n c y  131, 141 (1969); Sellin, Does the Death 
Penalty Protect Municipal Police? in Bedau, 284; Campion, Does 
the Death Penalty Protect State Police? in ibid, 301; Savitz, The 
Deterrent Effect of Capital Punishment in Philadelphia, in ibid., p. 
315; Graves, The Deterrent Effect of Capital Punishment in Cali­
fornia, ibid., p. 322; Royal Commission on Capital Punishment, Re­
port (1953), sections 65, 67-68; Reckless, The Use of the Death 
Penalty, 15 Cr im e  and  D e l in q u e n c y  52-56 (1969); McCafferty, 
Major Trends in the Use of Capital Punishment, F ederal P roba­
t io n , Sept. 1961, pp. 15-21.

35. Hoover, Statements in Favor of the Death Penalty, in Bedau, 
130; Allen, Capital Punishment: Your Protection and Mine, id., 135. 
But not all law enforcement officials agree. See, e.g., Statement of 
Attorney General Ramsey Clark on S. 1760, Dept, of Justice Release, 
July 2, 1968. Correction officials, moreover, appear very predomi­
nantly to be of the opinion that capital punishment has no significant 
deterrent effect; Thomas, Attitudes of Wardens Towards the Death 
Penalty, in Bedau, 242; Gottlieb, Capital Punishment, 15 Cr im e  and 
D e l in q u e n c y  13 (1969).

36. Professor Sellin, for example, has asserted positively that 
there is evidence for the view that imprisonment is as good a deter­
rent as the death penalty. Bedau, 264. So too has Koeninger, 
Capital Punishment in Texas, 15 Cr im e  and  D elin q u e n c y  132, 141 
(1969) ( “The death penalty for murder in Texas has not been a 
deterrent.”).

37. Sellin, The Death Penalty (1959), 65-69; Scott, A History 
of Capital Punishment (1950), p. 246; Massachusetts, Report on the 
Death Penalty (1958), 27-28; Ohio, Report on Capital Punishment 
(1961) 49; Roche, “A  Psychiatrist Looks at the Death Penalty,” 
T h e  P rison  J ournal  (Oct. 1958), p. 47.



29

imprisonment.38 But even accepting the latter view, we 
submit, in harmony with Mr. Justice Brennan’s position 
in Prop v. Dulles, that where the consequences of a choice 
of penalties is so grave, the Constitution requires some evi­
dence to support the choice made and does not sanction the 
staking of a man’s life on a guess.

In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court 
upheld the constitutionality of racial segregation in the 
public schools. In Brown v. Board of Education, 347 U.S. 
483 (1954) it reached a contrary conclusion on the basis of 
knowledge regarding the harmful effects of segregation not 
available when Plessy was decided, and certainly not when 
the Fourteenth Amendment was adopted. Today, the Court 
has the benefit of knowledge on the inefficacy of the death 
penalty as a deterrent not available when the former deci­
sions of this Court implicitly (though not directly) held 
the penalty to be constitutional. The Court, we submit, 
should no more be bound by these decisions today than it 
was bound by Plessy in 1954.

In sum, we submit that in the absence of at least some 
convincing evidence that the death penalty does actually 
deter other crimes to an extent greater than life or long­
term imprisonment, the death penalty constitutes cruel and 
unusual punishment in violation of the Eighth Amendment.

3. The death penalty  as a badge of slavery

Every relevant study indicates a strong relation between 
the death penalty and poverty; for the crime that sends the 
poor man to the death chamber, the well-to-do, if convicted

38. See authorities cited in footnote 34. Bedau sums it up as 
follows: “What do all these studies, taken together, seem to show ? 
The results are negative; there is no evidence to support the theory 
that the death penalty is a deterrent superior to imprisonment for 
the crime of murder” (p. 264).



30

at all, is most likely to go to prison. Dean Macnamara of 
the New York Institute of Criminology was perhaps over- 
dramatic in stating that “ It may be exceedingly difficult 
for a rich man to enter the Kingdom of Heaven, but case 
after case bears witness that it is virtually impossible for 
him to enter the execution chamber, ’,S9 but the substantial 
truth of the statement is supported by all the authorities,'10 
and is conceded even by those favoring retention of capital 
punishment.41

The death penalty is not only a function of poverty, it 
is also a function of race. There is substantial evidence 
and agreement among the authorities that recial discrimina­
tion is a significant factor in the imposition and execution

39. Macnamara, S t a tem en t  A g a in st  Ca pita l  P u n is h m e n t , 
in Bedau, 188. See also Ehrmann, T h e  H u m a n  S id e  of Ca pita l  
P u n is h m e n t , in Bedau, p. 510. “It is difficult to find cases where 
persons of means or social position have been executed. Defendants 
indicted for capital offenses who are able to employ expert legal 
counsel throughout their trials are almost certain to avoid death 
penalties. In the famous Finch-Tregofj case in California, there were 
three trials, two hung juries, and finally verdicts of guilty but with­
out the death penalty. It is estimated that the cost of these trials 
was over $1 million. But in the trial of some defendants without 
funds, juries have deliberated for as little as nineteen minutes, or an 
hour more or less, and then returned verdicts of guilty and death.”

40. Duffy and Hirshberg, 88 M e n  and  W o m en  (1962), p. 256; 
DiSalle, Capital Punishment and Clemency, 25 O h io  S tate  L.J. 71, 
72 (1964) ; Bedau, Death Sentences in New Jersey 1907-1960, 19 
R utgers L. R ev . 1 (1964); Johnson, Selective Factors in Capital 
Punishment, 36 S ocial F orces 165 (1967); Koeninger, Capital Pun­
ishment in Texas, 1924-1968, 15 Cr im e  and  D e l in q u e n c y  141 
(1969) ; Statement of Attorney General Ramsey Clark on S. 1760, 
July 2, 1968; Wolfgang, Kelly and Nolde, E x ec u tio n s  and  Co m ­
m u ta tio n s  in  P en n sy lv a n ia , in Bedau, 482-483; Ehrmann, T h e  
H u m a n  S ide of Ca pita l  P u n is h m e n t , in Bedau, 510-511; Mul­
ligan, Death, The Poor Man’s Penalty, T h e  A m erica n  W eek ly , 
May 15, 1960, p. 9.

41. E.g., Allen, Ca pita l  P u n is h m e n t : Y our P rotection  and  
M in e , in Bedau, 138.



31

of the death sentence.42 Attorney General Ramsey Clark 
stated quite categorically in testifying' before the Senate 
Subcommittee of the Judiciary on S. 1760 (July 2, 1968) 
that ‘ ‘ racial discrimination occurs in the administration of 
capital punishment. ’ ’ By no means untypical is the follow­
ing finding in a study of capital punishment in Texas: 
“ In several instances where a white and a Negro were co- 
defendants, the white was sentenced to life imprisonment 
or a term of years, and the Negro was given the death 
penalty. ’,4S

The positive relationship between the death penalty and 
race is strong, but where the crime involved is rape and 
more particularly, as in two of the present cases, the rape 
of white women by Negroes, the relationship is almost un­
controvertible. The statistics of the Department of Justice 
show that in the United States in the period from 1930 to 
1967 although Negroes are only 11 percent of the popula­
tion, the percentage of whites and Negroes among those 
executed was, respectively, for murder, 49.9 and 48.9; for 
crimes other than murder and rape, 55.7 and 44.3; for rape, 
10.6 and 8 9.0.44

In 1954, the Court in Brown v. Board of Education, 
supra, declared racial segregation in the public schools to

42. Wolfgang, Kelly and Nolde, E x ec u tio n s  and  Co m m u ta ­
tio n s  in  P en n sy lv a n ia , in Bedau, 473-477; Macnamara, State­
m en ts  A g a in st  Ca pita l  P u n is h m e n t , in  ibid 188; Murton, Treat­
ment of Condemned Prisoners, 15 Cr im e  and  D elin q u en c y  96-97 
(1969) • Garfinkel, Research Note on Inter- and Intra-Racial Homi­
cides, 26 S ocial F orces 369 (1949) ; Johnson, The Negro and 
Crime, 271 Annals 93 (1941). See also authorities cited in footnote 
34, supra.

43. Koeninger, Capital Punishment in Texas, 1924-1968, 15 
Cr im e  and  D elin q u e n c y  141 (1969).

44. N.P.S., p. 7. An independent study made of Texas for the 
years 1924 to 1965 shows for murder the relative percentages of 
whites and Negroes were respectively 36 and 55, while for rape, 
they were 14 and 83. Koeninger, Capital Punishment in Texas, 
1924-1968, 15 Cr im e  and  D e l in q u e n c y  140 (1969).



32

be unconstitutional. In 1968 and 1969, the petitioners Jack- 
son and Branch were condemned to death for the rape of 
white women. A comparison of the states whose statutes 
in 1954 required or authorized racial segregation in the 
schools and those which in 1969 authorized45 the death pen­
alty (and with the exception of West Virginia still do) for 
rape is, we believe, of great significance:

Segregation States46 Death Penalty States47
Alabama Alabama
Arizona
Arkansas Arkansas
Delaware Delaware
District of Columbia District of Columbia
Florida Florida
Georgia Georgia
Kansas
Kentucky Kentucky
Louisiana Louisiana
Maryland Maryland
Mississippi Mississippi
Missouri Missouri

Nevada
New Mexico
North Carolina North Carolina
Oklahoma Oklahoma
South Carolina South Carolina
Tennessee Tennessee48
Texas Texas
Virginia Virginia
West Virginia West Virginia
Wyoming

45. In no state is the death sentence for rape mandatory; other­
wise a white charged with rape would have to be either acquitted 
or, as rarely happens, be sentenced to death. See Bedau, p. 413.

46. Murray, S tates L aw s on R ace and  Color, Supp. (1955),
p. 6.

47. Supra, note 24.
48. In 1915, Tennessee abolished capital punishment for all crimes 

except rape. Bedau, p. 413.



33

With the exception of Nevada (where the death penalty 
is permissible only if the rape is accompanied by substan­
tial bodily harm to the victim49 and where in any event the 
statute is a dead letter, no person having been executed 
under it at least since 1930)50 every state (including the 
District of Columbia) which authorises the death penalty 
for rape required or authorized racial segregation in the 
public schools until it was declared unconstitutional. Con­
versely, of the 22 states which required or authorized racial 
segregation in the public schools, all but three (Arizona, 
Kansas and Wyoming) authorized the death penalty for 
rape.

This almost one for one relationship between racial 
segregation and death penalty statutes for rape as well as 
other statistical and empiric evidence, can be explained in 
no other way than in terms of racial discrimination. This 
is the practically unanimous conclusion of the competent 
scholars who have studied the problem.51 Thus, Koeninger, 
reporting on a Texas study, asserts: “ The Negro con­
victed of rape is far more likely to get the death penalty 
than a term sentence, whereas the whites and Latins are 
far more-likely to get a term sentence than the death pen­
alty.”52 Bedau states (at p. 413) that

* * * as the National Prison Statistics shows of the 
nineteen jurisdictions that have executed men for 
rape since 1930, a third of them have executed only

49. Supra, note 24.
50. NPS, p. 11.
51. Bedau, p. 6 0 ; Ehrmann, T h e  H u m a n  S ide of P u n is h ­

m e n t , in Bedau, p. 511. See also authorities cited in note 24, supra.
52. 15 Cr im e  and  D e lin q u en c y  141 (1969).



34

Negroes. In these six states, the very existence of 
rape as a crime with optional death penalty is, in the 
light of the way it has been used, a strong evidence of 
an original intent to discriminate against non-whites.

We recognize that the orders granting certiorari in 
these cases limit the issue to the constitutionality of the 
death penalty under the Eighth Amendment and do not 
extend to any claim under the Equal Protection Clause of 
the Fourteenth. We suggest, however, that if a white man 
found guilty of rape is rarely sentenced to death, or if 
sentenced is rarely executed, then the death sentence for 
a Negro convicted of the same crime may truly be said to 
be an “ unusual” punishment, and hence violative of the 
Eighth Amendment. We suggest too another approach. 
In Robinson v. California, supra, the Court held that to 
punish a person for a status (drug addiction) which he 
cannot control violates the Eighth Amendment. The same 
reasoning makes violative of the Amendment the imposition 
on a person of a penalty harsher than ordinarily imposed 
simply because of a status (the color of his skin) which 
he cannot control.

While the evidence we have presented herein is most 
obvious and dramatic in cases of imposition of the death 
penalty for rape, there is, as we have shown, substantial 
evidence that by effect if not by purpose the death penalty 
falls most heavily on the poor and nonwhite in all cases. 
(The petitioners in the two non-rape cases herein are like­
wise Negroes.)

Unjust punishment is cruel punishment,53 and unequal 
punishment is unjust punishment. It should be so declared 
by this Court.

S3. Robinson v. California, supra.



35

4. The death penalty  and the national conscience

We have suggested (supra, pp. 18-21) that local or 
regional standards are not the appropriate measure to de­
termine whether the death penalty constitutes cruel and 
unusual punishment within the purview of the Eighth 
Amendment, and that fundamental rights secured by a 
national constitution must be applied nationally. We sub­
mit that viewed nationally “ the evolving standards of de­
cency that mark the progress of a maturing society”54 
clearly point to the elimination of the death penalty in the 
United States.

Although general public opinion has fluctuated over the 
years, the trend is strongly toward abolition. Where an 
informed public opinion is concerned, opposition to capital 
punishment is overwhelming (with the exception of pro­
fessional law enforcement officials, but not correction offi­
cials). Bedau (at p. 236) summarizes the public opinion 
and attitude surveys as follows:

* * * It seems fairly probable that: (1) psychiatrists, 
penologists and possibly social scientists and social 
workers generally, as well as higher government offi­
cials^ tend to oppose the death penalty in this country 
at this time: law enforcement officers tend to favor it. 
The strength of these divergent attitudes is about 
equally pronounced. The general public shows a stead­
ily growing trend to doubt the death penalty and to 
favor abolishing it. * * *

Better than any other agency in a society its religious 
groups reflect its conscience. The six constituents of the 
Synagogue Council of America, in whose behalf this brief 
is submitted, can fairly be said to represent American

54. Trop v. Dulles, 256 U.S. at 101.



36

Judaism, and all favor abolition of capital punishment 
Some of the others in the rapidly growing number of 
religious groups on record as opposed to capital punish­
ment are: American Baptist Convention; American Evan­
gelical Lutheran Church; Augustana Evangelical Lutheran 
Church of North America; Calif ornia-Nevada Conference 
of Methodists; Christian Churches (Disciples of Christ) 
International Convention; Church of the Brethren; Church 
Federation of Greater Chicago; Congregational Conference 
of Southern California and the Southwest; Connecticut 
Valley Presbytery; Connecticut Valley Quarterly Meeting 
of Friends (Quakers); Connecticut Universalist Conven­
tion; Greater Red Bank Area Council of Churches; Massa­
chusetts Baptist Convention; Massachusetts Council of 
Churches; New York State Council of Churches; Northern 
California and Nevada Council of Churches; Protestant 
Episcopal Church in the United States of America; Prot­
estant Episcopal Church Diocese of Massachusetts; South­
ern California Council of Churches; Southern California- 
Arizona Conference of the Methodist Church; United Pres­
byterian Church in the United States of America-General 
Assembly; Universalist Church of America.55

Legislative action reflects this trend. In the past sev­
eral years, five states (Iowa, New York, Oregon, West Vir­
ginia and Vermont) have abolished the death penalty.56 
In addition, the United States Department of Justice has 
urged Congress to abolish the death penalty in places under 
its jurisdiction.57 But the statute books do not tell the full

55. Ehrmann, T h e  H u m a n  S ide  of C a pita l  P u n is h m e n t , 
in Bedau, pp. 515-516. This listing is far from exhaustive.

56. Bedau, p. 12.
57 Statement by Attorney General Ramsey Clark on S. 1760 

(July 2, 1968).



37

story. Nevada, as we have noted, has never legislatively 
abolished the death penalty for rape; yet not a single person 
has been executed in that state for rape in at least forty 
years. There is hardly a state in the Union which does 
not carry on its books laws which have long become archaic 
and obsolete. In gauging standards, the de facto is more 
significant than the de jure.58

An examination of what actually has been happening 
shows clearly that the death penalty has really become an 
“ unusual” punishment. The number of persons executed 
within the United States in the years 1930, 1940, 1950 and 
from 1960 to the present as reported by the Federal Bureau 
of Prisons59 are shown in the following table:

It is true that some of the decrease may be explained by 
decisions of this Court60 and the activities of such organi-

58. Cf. Poe v. Uttman, 367 U.S. 497 (1961). McGowan v. 
Maryland, 366 U.S. 430 (1961).

59. NFS, p. 7 (updated).
60. E.g., Griffin v. Illinois, 351 U.S. 12 (1956) ; Gideon v. Wain- 

wright, Z72 U.S. 335 (1963).

1930
1940
1950
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970

155
124
82
56
42
47
21
15
7
1
2
0
0
0



38

zations as the NAACP Legal Defense and Educational 
Fund and the National Office for the Rights of the Indigent 
seeking to make available to poor persons some of the legal 
services available to the well-to-do, so that some who earlier 
would have gone to the death chamber with little legal 
opposition are now better able to use the law to preserve 
their lives. It is also true that, as of the beginning of 1968, 
there were 435 persons on death rows throughout the 
nation81 and that since then many additional death sen­
tences have been handed down, so that in the event the 
present appeals and others that are on their way to this 
Court are unsuccessful some of these persons will be exe­
cuted. Nevertheless, the steady decline in the number of 
persons executed during the past four decades can be ex­
plained only in terms of a widely held belief that the death 
penalty is basically cruel and morally unacceptable.

5. International standards

A democracy, our Delaration of Independence asserts, 
imposes upon its people an obligation to accord a decent 
respect to the opinions of mankind. We suggest that in 
deciding whether capital punishment is consistent with 
evolving standards of decency, this Court can and should 
accord respect to the opinion of mankind. This is by no 
means unprecedented. In Trop v. Dulles, Mr. Chief Justice 
Warren noted that “ The civilized nations of the world are 
in virtual unanimity that statelessness is not to be imposed 
as punishment for crime.” 356 U.S. at 102. He referred 
to a United Nations’ survey of the nationality laws of 84 
nations of the world which revealed that only two countries, 
the Philippines and Turkey, imposed denationalization as

61. NPS, p. 13.



39

a penalty for desertion, and at least partly on the basis of 
this fact he held denationalization to constitute cruel and 
unusual punishment. 356 U.S. at 103.

What is true of denationalization is equally true of 
capital punishment.

We have quoted Bedau’s summary of American atti­
tudes to the death penalty generally.82 World opinion, as 
indicated in a survey made under the auspices of the De­
partment of Economic and Social Affairs of the United 
Nations, is almost exactly the same. The UN reports as 
follows :63

In the first place, it will be noted that, among the 
leading authorities in penal science, the supporters of 
abolition appreciably outnumber those who favor the 
retention of capital punishment. The specialists of the 
social sciences, criminologists, sociologists, penologists, 
psychologists, doctors and writers on social science and 
criminology are, in their great majority, abolitionists. 
The supporters of capital punishment, apart from a 
number of political figures and persons holding high 
public office, are generally jurists with a traditional 
training and judges.

It should be noted that here too the reference is to 
capital punishment generally, even for premeditated mur­
der. When capital punishment for non-homicidal rape is 
involved, world revulsion is even clearer. The United Na­
tions’ survey shows that of the sixty-five nations that re-

62. Supra, p. 35.
63. UN Report, p. 64. See also, Ancel, Capital Punishment in 

the Second Half of the Twentieth Century, T h e  R eview  (Interna­
tional Commission of Jurists), June 1969, 33.



40

sponded to its inquiries, only four (other than the seventeen 
states in the United States cited above)84 still permit impo­
sition of the death penalty for rape.83 There is, we sug­
gest, significance in the identity of the four which still 
maintain the death penalty for rape. The four are the 
Republic of China, Northern Rhodesia, Nyasaland, and the 
Republic of South Africa. In respect to South Africa and 
Rhodesia whose policy of apartheid and discrimination is 
notorious, it is fairly certain that racial considerations are 
the prime factor in the imposition of the penalty of death 
for rape.

We submit that the evolving standards of civilized de­
cency in the nations of the world no less than in the United 
States call for a declaration by this Court that the death 
penalty in all cases and certainly in cases of non-homicidal 
rape constitutes constitutionally impermissible cruel and 
unusual punishment.

Conclusion

All the evidence points to the conclusion that capital 
punishment is on its way out. I t is but a matter of time 
before the laws authorizing it are repealed or become dead 
letters. The reason for this is that it no longer comports 
with “ the evolving standards of decency that mark the 
progress of a maturing society,” and this will become in­
creasingly obvious in the coming years.

Why, then, should not the Court abstain and let time 
resolve the issue! First, because when constitutional

64. Supra, p. 32.
65. UN Report, p. 40.



41

rights, particularly those that are fundamental, are vio­
lated, they should be vindicated promptly.

Thus, in 1966, it was quite clear that the poll tax in 
state elections was on its way out and had but a few years 
of survival; yet that fact did not deter this Court from 
declaring it unconstitutional in the very few states which 
still retained it.66 Occasionally, as in the case of racial 
segregation in the schools, the Court has felt that prompt 
vindication is impracticable and has contented itself with 
decreeing effectuation of its decision with all deliberate 
speed.67 Looking backwards, it is by no means certain that 
a judgment ordering reasonably prompt compliance with 
the constitutional mandate would not have worked better.08

But whatever the case may be with respect to school 
segregation, no practical considerations dictate delay in 
declaring constitutional rights under the Eighth Amend­
ment. The Court’s judgment will require no complex re­
structuring of communal institutions. As in the case of 
the poll tax, the judgment will be self-executing.

But, more important by far, until such time as the slow 
wheels off-legislative reform catch up with the national 
conscience, human lives in an amount which cannot be fore­
told, will have been extinguished. We who submit this 
brief borrow from our Jewish tradition in noting that our 
Rabbis taught us that he who destroys one life, it is as 
though he destroyed the whole world; while he who sustains

66. Harper v. Virginia State Board of Elections, 383 U.S. 663 
(1966).

67. Brozvn v. Board of Education, 349 U.S. 294 (1955).
68. Cf. Alexander v. Holmes County Board of Education, 396 

U.S. 19 (1969).



42

one life, it is as though he sustained the entire world.69 
This, we believe, applies even to the life of a murderer or 
a rapist.

In Trop v. Dulles, 356 U.S. at 100, Mr. Chief Justice 
Warren stated that “ the basic concept underlying the 
Eighth Amendment is nothing less than the dignity of man. 
While the State has the power to punish, the Amendment 
stands to assure that this power be exercised within the 
limits of civilized standards.” These standards, we sub­
mit, require the Court to declare at this time that the 
death penalty affronts the dignity of man, does not comport 
with civilized standards and cannot be sustained under the 
Eighth Amendment.

Respectfully submitted,

L eo P f effer  
15 East 84th Street 

New York, New York 10028 
(212) TR 9-4500 

Attorney for Amici Curiae

September, 1971

69. Talmud, Sanhedrin, ch. 4, Mishnah 5.



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