Aikens v. California Brief Amicus Curiae of the Committee of Psychiatrists for Evaluation of the Death Penalty

    IN THE

Suprem e Court, U.S.
F  3 L E D

Supreme Court of the UnitSed S M
E. ROBERT SEAVL

October Term, 1971 
No. 68-5027

EARNEST JAMES ATHENS, JR..

vs.
STATE OF CALIFORNIA,

Petitioner,

Respondent.

On Writ o£ Certiorari to the Supreme Court of California.

Brief Amicus Curiae of the Committee of Psychiatrists for 
Evaluation of the Death Penalty.

DONALD M. WESSLING,
611 West 6th Street,
Los Angeles, Calif. 90017, 

Attorney for Committee of 
Psychiatrists for Evaluation of 
the Death Penalty

Of Counsel:
FREDERICK A. RICHMAN,

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622



SUBJECT INDEX
Page

Statement of Interest of the Amici..... ...................... 1

Argument .......................... ................... ......... ..........  2

1.
Capital Punishment Constitutes Cruel and Un­

usual Punishment Because of the Psychologi­
cal Torture Which It Inflicts ............................  2

I I .
Capital Punishment Serves No Legitimate State 

Purpose Which Could Not Be Achieved by
Other Means .......................... ................. -........ 6

Conclusion ........ ................ ................. ................ .... 8

Appendix. Committee of Psychiatrists for Evalu­
ation of the Death Penalty ___ ______ App. p. 1



TABLE OF AUTHORITIES CITED

Cases Page
NAACP v. Button, 371 U.S. 415 (1963) ...........  6
Rudolph v. Alabama, 375 U.S. 889 (1963) .. 6
Shapiro v. Thompson, 394 U.S. 618 (1969) _____ 6
Shelton v. Tucker, 364 U.S. 479 (1960) ........... . 6
Sherbert v. Verner, 374 U.S. 398 (1963) ______ 6
Trop v. Dulles, 356 U.S. 86 (1958) ............    2

Miscellaneous
Duffy, C., 88 Men and 2 Women (1962) ..........  3
Duffy, C., The San Quentin Story (1950) ..............  3
Gottlieb, G., Capital Punishment (Center for the 

Study of Democratic Institutions 1967) _____  3
Kron, Dr. Yves J., “The Citizen and Capital Pun­

ishment”, statement printed by the New York 
Committee to Abolish Capital Punishment __ __ 7

Sellin, Prof. Thorsten, The Death Penalty (1959).. 7

Textbooks
Bedau, H., “The Courts, the Constitution, and Cap­

ital Punishment,” 1968 Utah L. Rev. (1968), 
pp. 201, 204 .... .......................... ........................ 3

Bedau, H., ed., The Death Penalty in America 
(1964), 588-332 ................... .................. -............  6

Bluestone & McGahee, “Reaction to Extreme 
Stress: Impending Death by Execution”, 119 Am.
J. of Psychiatry (Nov. 1962), p. 393 ................ 3

Cohen, “Psychiatrists Look at Capital Punish­
ment”, 29 Psychiatric Digest (1968), p. 45 ........ 7



Page
President’s Commission on Law Enforcement and 

Administration of Justice, Report (The Chal­
lenge of Crime in a Free Society) (1967), p.
143 ..... ................... ..............................................  6

United Nations Department of Economic and So­
cial Affairs, Capital Punishment (ST/SOA/SD/ 
9-10) (1968), p. 123 ....................................... 6

West, L. J., “A Psychiatrist Looks at the Death 
Penalty”, paper presented at the 122nd Annual 
Meeting of the American Psychiatric Associa­
tion, May 11, 1966 ___________ ___________  3

Ziferstein, Center Magazine (Jan. 1968), “Crime 
and Punishment,” p. 84 ............................ — ..... 4



IN THE

Supreme Court of the United States
October Term, 1971 

No. 68-5027

EARNEST JAMES AIKENS, JR.,

Vi.
STATE OF CALIFORNIA,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court of California.

Brief Amicus Curiae of the Committee of Psychiatrists for 
Evaluation of the Death Penalty.

Statement of Interest of the Amicus.
The Committee of Psychiatrists for Evaluation of the 

Death Penalty filing this brief amicus curiae is com­
posed of practicing psychiatrists who also have major 
responsibility for developing new knowledge about hu­
man nature and for educating others in the most ad­
vanced degrees of psychiatric thought.1 Many of these 
psychiatrists have had direct experience with men sen­
tenced to death. Because psychiatrists are regularly 
called upon to testify in cases involving the death penalty 
and to certify the sanity of men sentenced to death, they 
are in a position to bring before this Court some views 
of the nature and effect of the death sentence which 
might not be stressed by other parties.

Consent of the parties for the filing of this brief 
amicus curiae has been sought and obtained. Copies 
of the parties’ letters will be submitted to the Clerk with 
this brief.

1See Appendix for list of psychiatrists composing the Com­
mittee.



— 2— -

A R G U M EN T.

I.
Capital Punishment Constitutes Cruel and Unusual 

Punishment Because of the Psychological Torture 
Which It Inflicts.

In Trop v. Dulles, 356 U.S. 86, 100-01 (1958), this 
Court held that the crux of the Eighth Amendment is its 
prohibition of “inhuman treatment” and its incorpora­
tion of a maturing society’s “evolving standards of de­
cency.” The Court recognized that the protection 
of the Amendment extends far beyond primitive 
tortures; it prohibits any punishment which violates 
“the principle of civilized treatment.” Id. at 99.

In Trop the Court ruled that denationalization was a 
cruel and unusual punishment for desertion. In so rul­
ing, the Court based its finding of cruelty largely upon 
the extreme psychological pain which such a punish­
ment inflicted. The plurality opinion of the Chief Jus­
tice stated that denationalization was offensive to the 
cardinal principles of the Constitution because it “sub­
jects the individual to a fate of ever-increasing fear 
and distress.” Id. at 102. The concurring opinion of 
Mr. Justice Brennan, which was necessary for a ma­
jority, stated that “ (t)he uncertainty, and the conse­
quent psychological hurt, which must accompany one 
who becomes an outcast in his own land must be reck­
oned a substantial factor in the ultimate judgment.” 
Id. at 111.

In the psychological pain it inflicts upon men waiting 
to be executed, capital punishment far exceeds dena­
tionalization as inhuman treatment. Indeed, the psy­
chological effects of the death sentence are really an 
additional punishment that is cruel and inhumane in 
itself. It is an important aspect of capital punishment



—3—

that a man sentenced to death does not simply lose 
his life. He is also subjected, during his last months or 
years, to a psychological punishment perhaps worse 
than his execution.

Psychiatrists, wardens and others who have had di­
rect contact with condemned men have documented the 
brutal mental deterioration of men on death row." Dr. 
Louis J. West has noted that

“A good many of these doomed men end up in 
the hands of the psychiatrist. The strain of exist­
ence on Death Row is very likely to produce be­
havioral aberrations ranging from malingering to 
acute psychotic breaks.” L. J. West, “A Psychia­
trist Looks at the Death Penalty,” paper presented 
at the 122nd Annual Meeting of the American 
Psychiatric Association, May 11, 1966.

Those prisoners who escape psychosis frequently ex­
perience other reactions to the stress of impending 
death: insomnia, withdrawal, depression, paranoia, 
obsessive rumination, anxiety and delusions.3 The 
damage is increased by the steadily lengthening time 
which prisoners spend on death row. The average time 
spent under death sentence was 16 months as of 1960; 
as of 1965 it was nearly four years,4

2For case studies, see C. Duffy, The San Quentin Story 
(1950); 88 Men and 2 Women (1962); G. Gottlieb, Capital 
Punishment (Center for the Study of Democratic Institutions 
1967).

3For a description of actual cases involving these reactions, 
see Bluestone and McGahee, “Reaction to Extreme Stress: Im­
pending Death by Execution,” 119 Am. J. of Psychiatry 393 
(Nov. 1962)

4H. Bedau, “The Courts, the Constitution, and Capital Punish­
ment,” 1968 Utah L. Rev. 201, 224. Bedau notes that there 
are prisoners who have been on death row for more than 14 

(This footnote is continued on next page)



4

This psychological anguish is inherent in the idea of 
imprisoning men to await certain death. Hence, it can­
not be diminished even though more “efficient” or 
“humane” ways of killing are developed. Dr. Isidore 
Ziferstein has concluded:

“In less ‘civilized’ societies the slow torture of 
the condemned man was an important part of the 
execution. Procedures like crucifixion were public, 
and they inflicted prolonged torture. They were 
rationalized by the magical assumption that the 
condemned man’s suffering might purify his soul 
and might lead to repentance before he finally 
died. These sadistic spectacles were also rational­
ized as socially valuable deterrents.

“Modern techniques of execution have aimed at 
minimizing the physical pain of dying (although 
we do not really know how much pain is ex­
perienced in electrocution or execution by gas). 
But these modern techniques have retained to the 
fullest the exquisite psychological suffering of the 
condemned man.” Ziferstein, “Crime and Punish­
ment,” Center Magazine 84 (January 1968) (em­
phasis added).

The suffering of the condemned man is aggravated 
by his knowledge that the death penalty is rarely ap-

years, and concludes: “there is every reason to expect that 
during the next decade, unless the death penalty is abolished 
or radical procedural reforms are introduced, it will be common­
place for persons to spend between five and ten years under 
death sentence before final disposition of their cases.” Id. The 
possibility that the average length of time on death row may have 
been increased in part because of the condemned prisoners’ own 
appeals does not justify the increased psychological anguish 
involved. It would be strange if a prisoner were held “estopped” 
to challenge his punishment as cruel and unusual because he 
had exercised fully his rights of review.



- 5 -

plied, that the wealthy and influential are relatively 
safe from it, and that many states and nations have 
already abolished it. Accidents of circumstance, time, 
and geography thus appear, almost frivolously, to 
be determinants in the loss of his life. The irrevoca­
bility of that punishment means that no subsequent 
change in circumstance or law can possibly be of bene­
fit to him, so that even the thin sustenance of hope is 
lost.

Furthermore, the person awaiting legal execution to­
day lives in a time when the sacred quality and value 
of human life have been increasingly recognized and 
protected by law. The condemned man awaits exter­
mination by the state under conditions in which no 
individual would be morally or legally justified in taking 
a life. Under modern conventions even an enemy soldier 
in combat, once captured and subdued, may not be 
killed. The moral and legal precept that no man has 
the right to kill a helpless captive is now sufficiently 
universal that the condemned prisoner suffers the addi­
tional anguish of realizing that the state, coldly and 
impersonally, will commit against him an act denied to 
any individual, regardless of passion or provocation.

These psychological cruelties inherently accompany 
the institution of capital punishment. In and of itself, 
the taking of life may constitute the “inhuman treat­
ment” which the Eighth Amendment prohibits. But 
coupled with the extreme psychological suffering which 
precedes it, extending over an average of four years, 
capital punishment surely violates standards of decency 
and civilized treatment.



—6—■

II.
Capital Punishment Serves N o Legitimate State Purpose

Which Could N ot Be Achieved by Other M eans.

Where important consitutional rights are involved, 
a state cannot justify their infringement without a show­
ing of a compelling state interest. Sherbert v. Verner, 
374 U.S. 398 (1963) (freedom or religion); NAACP v. 
Button, 371 U.S. 415 (1963) (freedom of expression); 
Shapiro v. Thompson, 394 U.S. 618 (1969) (right to 
travel). Such a showing cannot be made where there 
are other, less harsh means to achieve the state’s pur­
pose. Shelton v. Tucker, 364 U.S. 479 (1960). The 
state must employ available, “less drastic means” where 
they adequately protect the interest involved. Id. at 488.

The legitimate governmental interests in the punish­
ment of criminals are (1) rehabilitation, (2) isolation, 
and (3) deterrence. See Rudolph v. Alabama, 375 U.S. 
889, 891 (1963) (Goldberg, J. dissenting). Of these 
interests, the first is obviously irrelevant to capital pun­
ishment and the second is served equally by capital 
punishment or life imprisonment. Regarding the third 
interest, not only is there no evidence that capital 
punishment is an effective deterrent, but there is also a 
body of psychological evidence suggesting that capital 
punishment is an incentive to violence.

No study has yet shown that capital punishment 
deters crime.6 One reason is that crimes are committed 
for reasons other than a rational weighing of conse-

r,Scc The Death Penalty in America, 588-332 (H. Bedau, 
ed. 1964); United Nations Department of Economic and Social 
Affairs, Capital Punishment, (ST/SOA/SD/9-10) 123 (1968); 
President’s Commission on Law Enforcement and Administration 
of Justice, Report (The Challenge of Crime in a Free Society) 
143 (1967).



—7

quences. To the extent criminals anticipate the conse­
quences of their conduct, they do so in terms of 
whether or not they will be caught. They do not com­
mit crimes after deciding that, on balance, the punish­
ment seems fairly light for the crime contemplated.15 
Thus there is not only no statistical support for the 
belief that capital punishment deters crime more ef­
fectively than life imprisonment, but there is no psycho­
logical reason for believing that it would so function. 
Even assuming that there is an appreciable difference 
to criminals between capital punishment and life im­
prisonment, it is not the kind of consideration which 
would determine whether a crime of violence would be 
committed.

On the other hand, strong psychological reasons exist 
for believing that capital punishment serves to legitimize 
killing as a solution to human problems and actually to 
incite certain warped mentalities to kill. Dr. West and 
Professor Thorsten Sellin have described the phenom­
enon of attempting suicide by committing a murder: 
documented murders which have been committed by 
abnormal persons out of a conscious or unconscious 
desire to be put to death by society.7

6See the responses of phychiatrists to a survey on capital 
punishment reported in Cohen, “Psychiatrists Look at Capital 
Punishment,” 29 Psychiatry Digest 45, 49 (Feb. 1968). The 
former Chief of Service of the Psychiatric Clinic at Sing Sing 
Prison concluded that

“The fallacy here [in the desire for capital punishment] is 
that the real murderer, in the act of killing, does not think 
of the consequences. The desire for control or reassurance 
comes only to the ‘average citizen’— . . .”

Statement by Dr. Yves J. Kron, “The Citizen and Capital Punish­
ment” printed by the New York Committee to Abolish Capital 
Punishment.

7West, supra, at 3-4; T. Sellin, The Death Penalty (1959).



8—

The existence of capital punishment, moveover, rep­
resents an official sanction of violence and revenge that 
cannot help but brutalize societal values. Thus, even 
if it is rarely exercised, the dealth penalty provides a 
model that apparently stimulates more homicides than 
it deters. These considerations prompted the Board of 
Trustees of the American Psychiatric Association, the 
oldest continuing national medical society in the United 
States, with a membership of over 17,000 psychiatrists, 
to adopt the following resolution on December 12, 1969: 

“Resolved that the American Psychiatric Asso­
ciation, through its Board of Trustees, opposes the 
death penalty and calls for its abolition. The best 
available scientific and expert opinion holds it to 
be anachronistic, brutalizing, ineffective and con­
trary to progress in penology and forensic psychi­
atry.”

The American Psychiatric Association went on to file 
a brief amicus curiae before this Court in which various 
illustrations were given to show how the death penalty, 
far from serving as a deterrent, “. . . may actually serve as 
an incitement to crime among various types of mentally 
unstable potential offenders.” Brief for American Psy­
chiatric Association as Amicus Curiae at 6-7, Maxwell 
v. Bishop, 398 U.S. 262 (1970).

Conclusion.

The extreme psychological suffering inherent in cap­
ital punishment renders it cruel and unusual punishment. 
The existence of alternative methods to achieve the stated 
purposes of capital punishment makes it impossible to



■9—

justify in terms of legitimate governmental interests. In 
fact it probably incites more homicides than it deters. 
For these reasons, amicus submits that the judgment of 
the Supreme Court of California should be reversed.

Dated: August 26, 1971.

Respectfully submitted,
D o n a l d  M. W e s s l i n g ,

Attorney for Committee of 
Psychiatrists for Evaluation 
of the Death Penalty

Of Counsel:
F r e d e r i c k  A. R i c h m a n .



APPEN DIX:

Committee of Psychiatrists for Evaluation 
of the Death Penalty.

Louis Joylon West, M.D., Chairman
Professor and Head, Department of Psychiatry,
Center for the Health Sciences,
University of California, Los Angeles;
Medical Director,
UCLA Neuropsychiatric Institute.

Ransom J. Arthur, M.D.
Captain, USN(MC);
Director, Nava) Neuropsychiatric Research Center, and 
Professor of Psychiatry, University of California, San 
Diego.

Edward F. Auer, M.D.
Professor and Chairman, Department of Psychiatry,
St. Louis University School of Medicine 
St. Louis, Missouri.

Eugene Bliss, M.D.
Professor and Chairman, Department of Psychiatry 
University of Utah School of Medicine 
Salt Lake City, Utah.

Sanford L. Cohen, M.D.
Chairman, Department of Psychiatry,
Boston University School of Medicine 
Boston, Massachusetts.

Gordon H. Deckert, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Oklahoma School of Medicine,
Oklahoma City, Oklahoma.

Leon Eisenberg, M.D.
Professor and Head, Department of Psychiatry, 
Massachusetts General Hospital and Harvard 
University School of Medicine, Boston, Massachusetts; 
Past President, American Orthopsychiatric Association.

Lloyd C. Elam, M.D.
President, Meharry Medical College and 
Professor of Psychiatry, Meharry School of Medicine 
Nashville, Tennessee.

Joel Elkes, M.D.
Chairman, Department of Psychiatry and 
Behavorial Sciences
Johns Hopkins University Medical School 
Baltimore, Maryland.



■2—
Daniel X. Freedman, M.D.

Professor and Chairman, Department of Psychiatry, 
University of Chicago School of Medicine,
Chicago, Illinois.

Herbert S. Gaskill, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Colorado School of Medicine,
Denver, Colorado.

David A. Hamburg, M.D.
Professor and Chairman, Department of Psychiatry, 
Stanford University School of Medicine,
Stanford, California.

Donald W. Hastings, M.D.
Professor of Psychiatry,
University of Minnesota Medical School, 
Minneapolis, Minnesota.

William Hausman, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Minnesota Medical School, 
Minneapolis, Minnesota.

David R. Hawkins, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Virginia School of Medicine, 
Charlottesville, Virginia.

Marc H. Hollender, M.D.
Professor and Chairman, Department of Psychiatry, 
Vanderbilt University School of Medicine,
Nashville, Tennessee.

Anthony J. Kales, M.D.
Professor and Chairman, Department of Psychiatry, 
Pennsylvania State University School of Medicine, 
Hershey, Pennsylvania.

Lawrence C. Kolb, M.D.
Professor and Chairman, Department of Psychiatry, 
College of Physicians and Surgeons, Columbia 
University,
New York, New York.

Alan I. Levenson, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Arizona College of Medicine,
Tucson, Arizona.

William T. Lhamon, M.D.
Professor and Chairman, Department of Psychiatry, 
Cornell University Medical College,
New York, New York.



— 3

Morris A. Lipton, Ph.D,, M.D.
Professor and Head, Department of Psychiatry, 
University of North Carolina School of Medicine,
Chapel Hill, North Carolina.

Arnold J. Mandell, M.D.
Professor and Chairman, Department of Psychiatry, 
School of Medicine,
University of California at San Diego,
La Jolla, California.

James L. Mathis, M.D.
Professor and Chairman, Department of Psychiatry, 
Medical College of Virginia,
Richmond, Virginia.

R. Layton McCurdy, M.D.
Professor and Chairman, Department of Psychiatry, 
Medical University of South Carolina,
Charleston, South Carolina.

Roy W. Menninger, M.D.
President, The Menninger Foundation,
Topeka, Kansas.

Milton M. Miller, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Wisconsin School of Medicine,
Madison, Wisconsin.

Chester M. Pierce, M.D.
Professor of Education and Psychiatry 
Harvard Graduate School of Education 
Cambridge, Massachusetts.

Howard P. Rome, M.D.
Professor of Psychiatry, University of Minnesota, and 
Head, Psychiatry Section, Mayo Clinic, Rochester, 
Minnesota;
Past President, American Psychiatric Association. 

Herbert S. Ripley, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Washington School of Medicine,
Seattle, Washington.

Albert J. Silverman, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Michigan School of Medicine,
Ann Arbor, Michigan.



4-

Alexander Simon, M.D.
Professor and Chairman, Department of Psychiatry, 
University of California Medical Center, San Francisco, 
California;
Medical Director, Langley Porter Neuropsychiatric 
Institute.

Robert L. Stubblefield, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Texas Southwestern Medical School, 
Dallas Texas.

George Tarjan, M.D.
Professor of Psychiatry,
University of California, Los Angeles;
Secretary, The American Psychiatric Association.

James M. A. Weiss, M.D.
Professor and Chairman, Department of Psychiatry, 
University of Missouri School of Medicine,
Columbia, Missouri.

George Winokur, M.D.
Professor and Chairman, Department of Psychiatry, 
State University of Iowa School of Medicine,
Iowa City, Iowa.



Service of the within and receipt of
thereof is hereby admitted this..................
of August, A .D . 1971.

a copy 
.......day