Maxwell v. Bishop Brief Amici Curiae of the Synagogue Council of America and its Constituents

    IS- T K S

CErairt m tip MnfPh
O ctober Term , 1939

N o . 1 3

WILLIAM L. MAXWELL,

v.
Petitioner,

0. E. BISHOP, Superintendent of Arkansas 
State Penitentiary,

Respondent.

On W rit o f  Certiorari to the United States Court o f  Appeals, 
fo r  the Eighth Circuit

BRIEF AMICI CURIAE OF TH E SYN AGOGU E COUNCIL 
OF A M E R IC A  AN D  ITS CONSTITUENTS (TH E  CEN­
T R A L  CONFERENCE OF AM ERICAN  RABBIS, THE 
RABBIN ICAL ASSEM BLY OF AM E R IC A , TH E RABBIN ­
ICAL COUNCIL OF A M E R IC A , THE UNION OF A M E R ­
ICAN H EBREW  CON GREGATION S, TH E UNION OF 
O R TH O D O X  JEW ISH CON GREGATION S OF AM ERICA, 
TH E UNITED SYN AGOGU E OF A M E R IC A ) A N D  TH E 

A M ERICAN  JEW ISH  CONGRESS

L eo P fesjtkb 
Of Counsel

Lso Peepeejs 
15 East 84th. Street 

New York, New York 10028
M abvik B baitermabt 
M okbjs D ebshcwitz 

W n-h MAslgw 
1Ikxi4T A. B apapobt 
J oseph B . B obison 

Q-eoege S ole

Attorneys for Amici Curias



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

I nterest  of t h e  Amici

PAGE

o
L i

Q uestion  to W h ic h  t h is  B rief is A d d resse d ................ . 5

S u m m a r y  of A rg u m en t  ............................................................  6

A rg u m en t—

Imposition of the death penalty for non-homi- 
cidal rape constitutes cruel and unusual punish­
ment in violation of the Eighth Amendment as 
made applicable to the states by the Fourteenth.... 7
A. . The Constitutionality of the Death Penalty

in General ................................................................ 7
B. Applicability of the Eighth Amendment to

the States ..........................................................  10
C. Judicial Responsibility ...................................  10
D. Excessive Punishment as Cruelty ................  11
E. Inapplicable Standards of Cruelty ..............  14
F. Applicable Standards of Cruelty ..................  21

1. The cruelty of non-deterrent punishment 22
2. The death penalty for rape as a badge of

slavery ........................................................  28
3. The death penalty and the national con­

science   33
4. International standards ............................ 37

C onclusion 40



Cases

Adamson v. California, 332 U.S. 46 (1947) ..................  17

Baker v. Carr, 369 U.S. 186 (1962) .............................  18
Beauhqrnais v. Illinois, 343 U.S. 250 (1952) ..............  18
Boykin v. Alabama, 391 U.S. 510 (1968) .................... 8
Brown v. Board of Education, 347 U.S. 483 (1954)

7,18, 28, 32, 40

Gideon v. Waimvright, 372 U.S. 335 (1963) ..............  10
Gitlow v. New York, 268 U.S. 652 (1925) ................17,18, 36
Griffin v. Illinois, 351 U.S. 12 (1956) .......................... 36

Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966) ................................................................ 40

Hernandez v. Texas, 347 U.S. 475 (1954) ......... ........  33

Jackson v. Bishop, 404 F. 2d 571 (1968) ..................  11
Jacobellis v. Ohio, 378 U.S. 184 (1964) ......................  19

In re Kemmler, 136 U.S. 436 (1890) ............................ 12

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947) .................................................................. 10,15,21

Loving v. Virginia, 388 U.S. 1 (1967) ........................ 18

Malloy v. Hogan, 378 U.S. 1 (1964) ............................ 10
Marbury v. Madison, 1 Cranch 137 (1803) ................  21
Miranda v. Arizona, 384 U.S. 436 (1966) ..................  6

O’Neil v. Vermont, 144 U.S. 323 (1892) ....................  12

People v. Oliver, 1 N.Y. 2d 152 (1956) .......................... 9
Poe v. Ullman, 367 U.S. 497 (1961) ............................ 35
Powell v. Texas, 392 U.S. 514 (1968) .......................  32

TABLE OF AUTHORITIES
PAGE



I l l

Robinson v. California, 370 U.S. 660 (1962)....9,10,12, 24, 32
Bochin v. California, 342 U.S. 165 (1952) ..................  21
Both v. United States, 354 U.S. 476 (1957) .............. 18,19
Rudolph v. Alabama, 375 U.S. 889 (1963) ..................  9

Trop v. Dulles, 356 U.S'. 86 (1958) ............ 11,12, 22, 23, 24,
26, 33, 37, 38, 41

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

Wilkerson v. Utah, 99 U.S. 130 (1878) ..................... 12,14
Witherspoon v. Illinois, 391 U.S. 510 (1968) .............. 8

PAGB

Statutes :

English Bill of Rights, 1 W.&M. s.2, c.2 (1689) ......  11
Federal Crimes Act, 1 Stat. 112 ...............................  13
Nev. Rev. Stat. Sec. 200.363 (1967) ..........................17,36

Other Authorities;

Allen, “ Capital Punishment: Your Protection and
Mine,”  in B edau , 138 ........................................... 27

Ancel, “ Capital Punishment in the Second Half of 
the Twentieth Century,”  T h e  R eview  (Interna­
tional Commission of Jurists), 1969, 33 ............  38

Bedau, T h e  D ea th  P e n a l t y  in  A m erica , 124 (1967)
2, 7,14,17, 25, 29, 34, 35

Bedau, “ Death Sentences in New Jersey 1907-1960,”
19 R utgers L. R ev . 1 (1964) ...............................  27

2 Blackstone, “ Commentaries,”  2620 ( J o n es ’  Ed.
1916) ..........................................................................13,16

Calvert, Capital Punishment in the Twentieth Cen­
tury, 51 (1928) ....................   25

Campion, “ Does the Death Penalty Protect State Po­
lice?, in B edau , 301 ................................................  25



X V

PAGE

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 .........................................................4,8,25,27,28,35

DiSalle, “ Capital Punishment and Clemency,”  25
O hio  S tate L.J. 71 (1964) ...................................  27

Duffy and Hirshberg, “ 88 Men and Women”  (1962),
256 .............................................................................  27

Ehrmann, “ The Human Side of Capital Punish­
ment,”  in B edau  510 ....................................... 27,30,35

Garfinkel, “ Research Note on Inter- and Intra-Raeial
Homicides,”  26 S ocial F orces 369 (1949) ..........  27

Gottlieb, “ Capital Punishment,”  15 Crim e  and  D e­
lin q u e n c y  1 (1969) ........................................... 13,23,25

Gottlieb, “ Testing the Death Penalty,”  34 S. C alie .
L.R. 268 (1961) ..............  7,9

Graves, “ The Deterrent Effect of Capital Punish­
ment in California,”  in B edau , 322 ...................... 25

Holmes, T he  C om m on  L a w  (Howe, ed.) 36 (1963) .... 9
Hoover, “ Statements in Favor of the Death Pen­

alty,”  in B edau 130 ............................................... 2,25
3 J e w is h  E ncyclopedia 554 (1912) .............................  4
Johnson, “ The Negro and Crime,”  271 Annals 93

(1941) .......................................................................  27
Johnson, “ Selective Factors in Capital Punishment,”

36 S ocial F orces 165 (1967) ...............................  27

Koeninger, “ Capital Punishment in Texas, 1924- 
1968,”  15 Crim e  and  D e lin q u en cy  141 (1969)

25, 27, 28, 30
McCafferty, “ Major Trends in the Use of Capital

Punishment,”  F ederal P robation  (1961) 15 ......  25
Macnamara, “ Statement Against Capital Punish­

ment,”  in B edau 188 ............................................. ■ 27



V

PAGE

Marcus and Weisbrodt, “ The Death Penalty Cases,”
56 Calif. L. Rev. 1268 (1968) ............................... 7,8,9

Mattick, The Unexamined Death, 8 (1966) ................  25
Massachusetts, “ Report on the 

(1958), 27 ...............................
Death Penalty”

26
Mendelsohn, Cr im in a l  J ueisprude

n s .xt  H ebrew s , 116 ..................
9, Mnnre .Tttdatrm 186 119271

NC-E OF THE A n -
4
3

Mulligan, “ Death, The Poor Main’s Penalty,”  T h e

A m erican  W e e k l y , May 15, 1960, p. 9 ................  27
Murray, S tates L aw s  on R ace and  C olor, Supp.

(1955), p. 6 .................................................................  29
Murton, “ Treatment of Condemned Prisoners,”  15

Crim e  and  D e lin q u en cy  96 (1969) .......................  27

Ohio, “ Report on Capital Punishment”  (1961) 49 .... 26
Packer, “ Making the Punishment Fit the Crime,”

77 P ar. L. R ev . 1071 (1964) ...................................  11

Reckless, “ The Use o f  the Death Penalty,”  15 C rim e

and  D elin q u en cy  43 (1969) .................................  7,25
Roche, “ A  Psychiatrist Looks at the Death Penalty,”

T he Prison Journal (1958), 47 .............................  26
Royal Commission on Capital Punishment, “ Report”

(1953), Secs. 65 et seq. ............... ...........................  25
Rubin, “ The Supreme Court, Cruel and Unusual 

Punishment, and the Death Penalty,”  15 Crime 
and Delinquency 121 (1969) ...............................  7, 8

Savitz, “ The Deterrent Effect of Capital Punish­
ment in Philadelphia,”  in B edau , p. 315 ..............  25

Scott, “ A History of Capital Punishment”  (1950),
246 ............................. ' ..............................................  26

Sellin, Capital Punishment, 135 (1967) ...................... 25
Sellin, T h e  D ea th  P e n a l t y  69-79 (1959) ..............9, 25, 26
Sellin, Does the Death Penalty Protect Municipal

Police?, B edau , 284 ................................................  25



V I

T alm u d  ....................................  3 ,2 3 ,4 1
Thomas, “ Attitudes of Wardens Towards the Death

Penalty, ’ ’ in B edau  242 ..........................................  25
United Nations, Report, “ Capital Punishment,”  40

17, 23, 38, 40
U. S'. Dppt. of Justice, “ National Prisoner Statistics,

No. 4 2 ”  (19 68 ), 32 .........................................................17 ,2 8

V a lie n ga, C h r is t ia n it y  and  th e  D e a t h  P en a l t y  in
B edau ........................................................................................  2

Wolfgang, Kelly and Nolde, “ Executions and Com­
mutations in Pennsylvania,”  in B edau 482 ......... 27

PAGE



1ST THE

©uprsms (Emirt of tip luiPii Mutm
O ctober Term , 1963

No. 13

W il l ia m  L. M a x w e ll ,

v.
Petitioner,

0 .  E. B ish o p , Superintendent o f  Arkansas 
State Penitentiary,

Respondent.

On W rit o f  Certiorari to the United States Court o f  A ppeals 
fo r  the Eighth Circuit

.. -- .......................... ....

BRIEF AMICI CURIAE OF TH E SYN AGOGU E COUNCIL 
OF A M E R IC A  AN D  ITS CONSTITUENTS (TH E  CEN­
T R A L  CONFERENCE OF AM ERICAN  RABBIS, THE 
RABBIN ICAL ASSEM BLY OF AM E R IC A , THE RABBIN ­
ICAL COUNCIL OF AM E R IC A , THE UNION OF A M E R ­
ICAN H EBREW  CON GREGATION S, THE UNION OF 
O R TH O D O X  JEW ISH CON GREGATION S OF AM E R IC A , 
THE UNITED SYN AG O G U E OF AM ERICA.) A N D  THE 

AM ERICAN  JEW ISH CONGRESS



2

Interest o f the Amici

On this appeal from an Arkansas jury’s imposition of 
the death penalty upon a Negro convicted of raping an 
unmarried woman of thirty-five, the amici have sought, 
and obtained, the consent of the respective parties for the 
submission of this brief because of their special interest as 
Jewish organizations in the subject of capital punishment.

The American Jewish Congress is an association of 
American Jews organized to oppose racial and religious 
discrimination and to help preserve democratic principles 
and practices. The other amici, all constituents of the 
Synagogue Council of America, are the recognized rabbinic 
and congregational representatives of the three branches of 
American Judaism—Orthodox, Conservative and Reform.

All of the amici are opposed as a matter of principle to 
the imposition of the death penalty and support its aboli­
tion. 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
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 (but 
not of an unmarried or unbetrothed) woman (Dent. 22:15). 
Indeed, these Scriptural provisions are often invoked by 
defenders of capital punishment.1

1. See, e.g., Vellenga, C h r is t ia n it y  an d  t h e  D eath  P e n a l t y ; 
in Bedau, T h e  D eath  P en alty  in  A m erica , 124-125 (1967) 
(hereinafter referred to as Bedau) ; Hoover, Statem en ts  in  F avor 
of th e  D eath  P e n a l ty , in ibid., 1933.



3

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 
understand 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 
example, 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 eye-witnesses, subjected to rigorous cross-exami­
nation by the court, were required. Moreover, the 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.)

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 capital 
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 Eliezer

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, Judaism, 186 (1927).



4

ben Azariab states that this is so even if it executes 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. I f the views of 
Rabbis Tarphon and Akiba were to prevail, he said, 4‘ 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 a matter of the 
gravest seriousness. Execution is not reversible. I f a 
mistake is made what has been done is irrevocable. 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 
as terminating a human life was as a practical matter not 
defensible. (See, 3 J e w is h  E n c y c l o p e d ia  554-558 (1 912 ); 
Mendelsohn, C r im in a l  J u r is p r u d e n c e  of t h e  A n c ie n t  
H e b r e w s , 116-133.)3

3. It is for this reason that Lafayette vowed to oppose capital 
punishment until “ the unfallibility 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).



5

Question to W hich this Brief is Addressed

Petitioner’s brief addresses itself to two points: (1) 
that Arkansas’ practice of allowing capital trial juries 
absolute discretion, uncontrolled by standards or direc­
tions of any kind, to impose the death penalty upon a de­
fendant convicted of the crime of rape violates the Due 
Process Clause of the Fourteenth Amendment; and (2) 
that Arkansas’ single-verdict procedure, which requires 
the jury to determine guilt and punishment simultaneously 
in a capital case violates the Fifth and Fourteenth Amend­
ments.

We support the arguments set forth in the petitioner’s 
brief and associate ourselves with them. In this brief we 
address ourselves to an aspect of the case not discussed 
in petitioner’s brief, but one which relates specifically 
to the first point in that brief. If, as we submit it should, 
this Court sustains the validity of that point it will be 
required to remand the case to the Arkansas trial jury for 
reconsideration of the sentence in the light of instructions 
to it by the trial judge. The specifics of 'those instructions 
are of course initially the responsibility of the Arkansas 
courts, but whatever they are they must be within the limi­
tations of the Federal Constitution. To the extent that 
they are not, it may be anticipated with reasonable cer­
tainty that this case will be back before this Court.

We suggest, therefore, that it is entirely appropriate 
for the Court to obviate as far as practicable further avoid­
able appeals by stating in its opinion such minimum con­
stitutional limitations as the Arkansas trial conrt will



6

quite clearly and unavoidably be required to cope with 
in framing its instructions to the jury. The most obvious 
of these is the appropriateness of the death penalty in a 
non-homicidal rape case. I f the Constitution forbids impo­
sition of the death penalty in a rape case, judicial economy 
would seem to dictate that the Court say so in its opinion 
on the present appeal so that the trial judge may act in 
light rather than in darkness.

This procedure is by no means unprecedented. It is, 
in effect, the procedure employed in much greater detail 
in Miranda v. Arizona, 384 U.S. 436 (1966).

Accordingly this brief amici curiae addresses itself to 
the single question: May a state consistently with the 
Federal Constitution impose the death penalty upon a per­
son convicted of non-homicidal rape?

Summary o f Argument

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 unusual. 
The ultimate responsibility of determining whether punish­
ment is cruel or unusual rests not with the legislature 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 Amendment was 
framed but should apply contemporary standards. Nor 
should these standards be limited by considerations 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



7

a deterrent and should give weight to the usual if not 
inevitable concommitants of imposition of the death pen­
alty, such as unequal and racially discriminatory imposi­
tion. Measured by these standards the death penalty for 
non-homicidal rape constitutes cruel and unusual punish­
ment within the meaning of the Eighth Amendment.

A R G U M E N T

Imposition o f the death penalty for non-homicidal 
rape constitutes cruel and unusual punishment in viola­
tion o f the Eighth Amendment as made applicable to 
the states by the Fourteenth.

A . The Constitutionality o f  the Death Penalty in General

The possible nnconstitntionality of the death sentence 
in all cases is being increasingly asserted among legal 
writers,4 not merely under the Eighth Amendment but as 
a denial of due process. Under the former it has been- 
suggested that contemporary scientific knowledge, not 
available in 1791 but requiring judicial recognition,5 6 estab­
lishes that all methods of execution of humans in use in 
the world today (hanging, shooting, beheading, stoning, 
electrocution and gas asphyxiation)0 are physically and

4. Rubin, The Supreme Court, Cruel and Unusual Punishment, 
and the Death Penalty, 15 Crim e  an d  D elinq uency  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).

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

lin q u en c y  43, 46 (1969).



8

psychologically painful to the extent of being' cruel and 
inhumane. Marcus and Weisbrodt, The Death Penalty 
Cases, 56 Ca l if . L. R 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 milestone in the long road from bar­
barism, ’ ,T and that accordingly 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, 
391 U. S. 510 (1968).)

It may also be suggested that, as will be indicated be­
low pp. 35-37), actual consummation of the death penalty 
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 de­
clare it so.

The due process argument has been predicated on the 
claim that execution of the death penalty renders due 
process of law inoperable. “ When the condemned man is 
executed, errors in the proceedings are placed beyond the 
reach of later decisions that would provide new grounds for 
examining whether the proceedings leading to the execu­
tion contained error.”  Rubin, The Supreme Court, Cruel 
and Unusual Punishment and the Death Penalty, 15 Chime 
and  D elin q u en cy  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 7

7. Statement on S. 1760.



9

penalty were excluded was not representative of the com­
munity and therefore constitutionally impermissible. The 
Court held this principle to be retroactive and hence appli­
cable to all persons in death rows all over the country. But 
as to those who have already been executed reopening 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.

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 
Goldberg; Holmes, T h e  C om m on  L aw  (Howe, ed.) 36 
(1963). Retribution, it is asserted, is today no longer a 
valid governmental interest.8 Capital punishment, as will 
be indicated more fully below, is overwhelmingly adjudged 
by competent students not to be demonstrably more effec­
tual as a deterrent than life or long-term imprisonment. 
Reformation is of course impossible, and isolation can be 
effectively achieved by confinement. Gottlieb, Testing the 
Death Penalty, 34 S. Ca l ie . L. R ev . 268 (1961); Sellin, 
T h e  D ea th  P e n alty  69-79 (1959).9

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 o n  L a w  (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

It is not necessary in this case to consider the constitu­
tionality of the death sentence in all cases and under all 
circumstances, nor even in all cases where the crime for 
which the condemned was convicted did not result in death. 
It is sufficient here to limit consideration and judgment 
to the constitutionality of the death sentence in the one 
specific case of rape where no death results, and it is to 
this alone that the present brief is addressed although, of 
course, all arguments directed at the constitutionality of 
capital punishment generally are applicable to the specific 
issue in the present case.

B. A pp licab ility  o f  the Eighth Am 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 punishments is applicable to the states 
by virtue of the Fourteenth Amendment. Robinson v. 
California, 370 U.S. 660, 666 (1962); Gideon v. Waimvright, 
372 U.S. 335, 341-342 (1963); Malloy v. Hogan, 378 U.S. 1, 
6 (1964).

C. Judicial 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 generally with a few 
exceptions (infra, p. 34-35), a trend which reflects the man­
date of the public conscience, the ultimate responsibility 
of determining what constitutes cruel and unusual punish­
ment within the meaning of the Eighth Amendment rests 
not with the legislature but with the courts, and particu­

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



11

larly this Court. Trop v. Dulles, 356 U.S. 86, 103 (1958); 
Robinson v. California, 370 U.S. 660 (1962).

D. Excessive Punishment as Cruelty

Rather surprisingly it has been urged that the intent 
of the Eighth Amendment is solely to forbid cruel and 
inhumane 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.S. 349, 382 (1910) (dissenting 
opinion); 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 larceny11 or even fining him excessively (since the 
Amendment specifically prohibits excessive fines),12 but 
not imprisoning him for life or even hanging him for it.13

It is difficult to believe that the framers and adopters of 
the Amendment were concerned only about disproportion­
ate monetary punishment but not other and more serious 
forms of disproportionate punishment.

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

11. Jackson v. Bishop, 404 F.2d 571 (1968).
12. 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 provision 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. ;i

13. See below footnote 21.



12

disproportionate to the crimes for which they are imposed 
are cruel and unusual within the meaning of the Amend­
ment. Weems v. United States, 217 U.S. 349 (1910); 
Robinson v. California, 370 U.S. 660 (1962). It follows 
from this that even if the Court cannot find that there is 
no uncruel or humane method of execution of the death 
penalty14 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 
applying 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 
future 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 human­
ity, 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 determine. 
No cruel and unusual punishment is to be inflicted; 
it is sometimes necessary to hang a man, villains often

14. 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).



13

deserve whipping, and perhaps having their ears cut 
off; hut are we, in future, to he prevented from in­
flicting these punishments because they are cruel? If 
a more lenient mode of correcting vice and deterring 
others from the commission of it could he invented, 
it would he very prudent in the legislature to adopt 
it, hut until we have some security that this will be 
done, we ought not to he restrained from making neces­
sary laws by any declaration of this kind. (Cong. 
Register 225, quoted in Weems v. United States, 217 
U.S. at 369).15 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 con­
template the acceptability of dismemberment as a method 
of punishment. The Amendment provides that no person 
shall “ he subject for the same offense to be twice put in 
jeopardy of life or limb,” 10 thus implying the propriety of 
being once put in jeopardy of limb. Blackstone refers to. 
drawing and quartering, disemboweling, beheading, public 
dissection, burning at the stake, dismembering and brand­
ing as forms of punishment practiced in England, notwith­
standing the Bill of Rights of 1688, up to a time contem­
porary with the framing of the Eighth Amendment.17 Can

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

16. Gottlieb, Capital Punishment, 15 Cr im e  an d  D elin q u e n cy  
1, 20 (1969).

17. 2 Blackstone, Co m m en taries , 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.



14

it be doubted that no American court would today sanction 
these methods of punishment in the face of the Eighth 
Amendment?18

E. Inapplicable Standards o f  Cruelty

As, we have indicated, the Amendment addresses itself 
not only to the method of punishment but to its proportion­
ateness as well. It no more immunizes from future judicial 
review punishment deemed in 1789 not to be disproportion­
ate or excessive by the standards then prevailing than it 
immunizes punishments then acceptable in method or mode 
of execution. As late as 1837, more than twenty-five of­
fenses, including stealing bank notes, forgery and bigamy 
were punishable by death in North Carolina.19 In England, 
it was not until 1810 that the law making picking pockets 
a capital offense was repealed.20 The Crimes Act of 1790 
(1 Stat. 112-117), the first Federal penal code, made forg­
ing or passing forged public securities punishable 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 Amendment 
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):

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

20. Ibid.



15

Legislation, both statutory and constitutional, is 
enacted, it is true, from an experience of evils, but its 
general language should not, therefore, be necessarily 
confined to the form that evil had theretofore taken. 
Time works changes, brings into existence new condi­
tions and purposes. Therefore a principal 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 care 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 
constitution 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 penalty 
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 Constitution



16

* * * may therefore be progressive, and is not fastened to 
the obsolete, but may acquire meaning as public opinion be­
comes enlightened by a humane justice.”

Nor is the Court precluded from adjudging the death 
penalty^for non-homieidal rape to be unconstitutionally 
excessive by reason of the fact that the legislature has ex­
pressly or implicitly found it to be efficacious as a deterrent. 
As we will show below (p. 25), the scientific evidence is 
almost unanimously to the contrary; but even if that were 
not so, the Eighth Amendment does not except from its 
prohibition such cruel and inhumane punishment as effec­
tively 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. Concededly, the state has an interest 
in deterring rape. But so too does it have an interest in 
deterring forgery, embezzlement, petty larceny and even 
traffic violations, and that interest would hardly constitu­
tionally justify imposition of the death penalty for those 
offenses.21

21. “ But, indeed, were capital punishments proved by experi­
ence to be a sure and effectual remedy, that would not prove the 
necessity * * * of inflicting them upon all occasions when other ex­
pedients 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 it; 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 obstinate carrier who defeats or eludes the 
provisions of former statutes * * *” 2 Blackstone’s Commentaries, 
2164-65. (It should be noted, incidentally, that this quotation effec­
tively 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 excessiveness.)



17

Today, 17 states and the District of Columbia maintain 
in their statutes the death penalty for rape.22 All but one 
(Nevada) are southern states.23 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 can the First or Fourteenth. Indeed, whether or 
not it was the intent of the framers of the latter amendment 
to incorporate the first ten,24 the practical effectuation of 
the same result through the steady process of selective in­
corporation initiated in Gitlow v. Neio York,25 manifests a 
strong judicial policy towards nationalizing the Bill of 
Bights. During the quarter of a 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

22. 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 Punish­
ment (S T /S O A /S D /9 -lO j, p. 40 (hereinafter referred to as UN 
Report). The latter includes West Virginia but in 1965, after the 
UN compilation, 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 Ne­
vada, rape is punishable by death only where committed with substan­
tial bodily harm to the victim. Nev. Rev. Stat. Sec. 200.363 (1967).

23. So classified by the Department of Justice. NPS, p. 9.
24. 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).

25. 268 U.S. 652 (1925).



IS

the Court or even modified to the extent of according 
greater liberality to the states in interpreting the scope 
of the right.20

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 reside 
in some rather than other regions of the country. It is 
the principle that where the fundamental freedoms of the 
Bill of Rights 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 Rich­
mond 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 26

26. 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

geographical accident of whether he lives on a farm or in 
a city.

Perhaps most germane is Jacobellis v. Ohio, 378 U.S. 
184 (1984). In Roth 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, 
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 stand­
ards. What the Court said in Jacobellis is, we submit, par­
ticularly relevant here (378 U.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 o f 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 Four­
teenth Amendment, to reconcile the conflicting rights 
of the local community which brought the prosecution 
and of the individual defendant. Such a task is ad­
mittedly difficult and delicate, but it is inherent in the 
Court’s duty of determining whether a particular con­
viction worked a deprivation of rights guaranteed by 
the Federal Constitution. The Court has not shrunk



20

from discharging that duty in other areas, and we see 
no reason why it should do so here. The Court has 
explicitly refused 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 reaffirm the position taken in Roth to 
the effect that the constitutional status of an allegedly 
obscene work must be determined on the basis of a 
national standard. It is, after all, a national Consti­
tution we are expounding. (Emphasis added.)

If a community may not determine for itself what is 
obscene, it may not determine what is cruel and unusual. 
I f 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 for rape 
impinge somewhat upon federalism strictly construed. But 
federalism, like government, is not an end but a means. 
We declared our independence of England because we be­
lieved 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 govern­
ment fails to secure these rights, it is the form of govern­
ment 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 Bights should be effected 
by constitutional amendment rather than court decision,



21

for it is the teaching of all the post-Gitlow decisions that 
this indeed is what was done in 1868. I f the Fourteenth 
Amendment 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.

F. A p p lica b le  Standards o f  Cruelty

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 for rape.

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 case merely because its members may not like 
the idea of a person being put to death for a non-homicidal 
rape. We do not even urge that the penalty be adjudged 
unconstitutional because the Court deems it shocking to 
the conscience, although there is ample authority for this.27 
We believe that there are standards or criteria available

27. 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).



22

to the Court as reasonably objective as can be expected of 
a constitutional provision whose words necessarily “ are 
not precise.” 28

We have heretofore urged rejection of such criteria as 
acceptability in 1789 or 1868, effectiveness as a deterrent, 
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 Trop v. Dulles (256 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 
for non-homicidal rape is consistent with these “ evolving 
standards of decency.”

1. The cruelty of non-deterrent punishment

We have pointed out above (p. 16) that punishment 
may be constitutionally cruel even if it is effective as a 
deterrent and that accordingly if the death penalty were 
effective to deter rapes it nevertheless could still be viola­
tive of the Eighth Amendment. But, we suggest here, the 
converse does not follow; punishment which does not deter 
and does not serve any valid purpose at all (such as ref­
ormation) or any valid purpose which cannot effectively 
be served by less harsh means (such as isolation) is, we

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



23

submit, cruel and inhumane. This is so because its only 
purpose is vengeance,20 and vengeance is forbidden by the 
Constitution.

Mr. Justice Brennan did not join in the Chief Justice’s 
plurality opinion in Drop v. Dulles, but he expressed this 
principle well in his own concurring opinion. After con- 29

29. There is considerable empiric evidence to support the be­
lief that vengeance is the purpose of the death penalty. Prison au­
thorities uniformly search and guard condemned _ prisoners closely 
to prevent suicide. Should a prisoner in attempting suicide injure 
himself, no medical effort is spared to keep' him alive for the sched­
uled execution. Gottlieb, Capital Punishment, 15 Crim e  an d  D e­
lin q u e n c y  8 (1969). It is apparently not the prisoner’s death but 
the putting him 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 Quen­
tin, made some fifty visits on death row, examining each condemned 
inmate to determine his physical and mental status and to recom­
mend any treatment that might be needed to keep him alive and sane 
for execution.' Dr. Graves reports as follows regarding one con­
demned prisoner: “ During his stay in Death Row, McCracken be­
came no more than a vegetable. On one occasion, I found him wal­
lowing on the floor of his cell in his own excreta babbling inco­
herently. I arranged to have him transferred to the prison hospital 
where he wras 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 
proceed to kill. * * *” All this makes sense only in terms of ven­
geance; 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 be­
numb his senses. Talmud, Sanhedrin 43a.



24

eluding that denationalization for desertion during wartime 
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 anything 
other that forcing retribution from the offender— 
naked vengeance. * # *

Mr. Justice Brennan did not join in the plurality opinion 
based on the Eighth Amendment presumably because the 
Government had “ understandably] * * * not pressed its 
case on the basis of expatriation of the deserter as punish­
ment for his crime.”  {Ibid.) Had it done so, the tenor of 
his opinion and his joinder in the Court’s opinion in Robin­
son v. California, supra, indicate quite clearly that he would 
likewise have held that non-deterrent, vengeful punishment 
is violative of the Eighth Amendment’s prohibition 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 de­
terrent.30 Nevertheless, he concluded that since its efficacy 
had not been established, so grave a penalty could not con­
stitutionally be imposed by Congress.

30. 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, review­
ing authorities remitted the dishonorable discharges, “ it is possible 
to infer that the military itself had no firm belief in the deterrent 
effects of expatriation.” 358 U.S. 112, n. 8.



25

In respect to capital punishment, however, substantial 
studies have 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 imprisonment 
and that it is the certainty rather than the gravity'of the 
punishment that is critical in deterrence.31 (Indeed, the 
only contrary assertions are unsupported, impressionistic 
statements mainly from law enforcement officials.32) Some 
of the scholars assert flatly that the death penalty, as dis­
tinguished from imprisonment, is not a deterrent ;33 or may 
even have a contrary effect and actually incite commission

31. 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, 1924-1968, 
15 Crim e  and  D elin q u e n cy  (1969) 132; Sellin, Does the Death 
Penalty Protect' Municipal Police? in Bedau, 284; Campion, Does 
the Death Penalty Protect State Policef 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 Crim e  an d  D e lin q u e n cy  52-56 (1969); McCafferty, 
Major Trends in the Use of Capital Punishment, F ederal P roba­
tio n , Sept. 1961, pp. 15-21.

32. Hoover, Statements in Favor of the Death Penalty, in Be­
dau, 130; Allen, Capital Punishment: Your Protection and Mine, 
id., 135. But not all law enforcement officials agree. See, e.g., State­
ment of Attorney General Ramsey Clark on S. 1760, Dept, of Jus­
tice Release, July 2, 1968. Correction officials, moreover, appear 
very predominantly to be of the opinion that capital punishment has 
no significant deterrent effect; Thomas, Attitudes of Wardens To­
wards the Death Penalty, in Bedau, 242 ; Gottlieb, Capital Punish­
ment, 15 Cr im e  an d  D elin q u e n cy  13 (1969).

33. Professor Sellin, for example, has asserted positively that 
there is evidence for the view that imprisonment is as good a de­
terrent as the death penalty. Bedau, 264. So too has Koeninger, 
Crime and Punishment in Texas, 15 Crim e  and  D elin q u e n cy  132, 
141 (1969) ( “ The death penalty for murder in Texas has not been 
a deterrent.” )



26

of the very crime it seeks to deter.34 More cautious schol­
ars say only that there is no evidence to support the theory 
that the death penalty is a deterrent superior to imprison­
ment.35 But even accepting the latter view, we submit, in 
harmony with Mr. Justice Brennan’s position in Trop v. 
Dulles, that where the consequences of a choice of penalties 
is so 'grave, the Constitution requires some evidence to 
support the choice made and does not sanction the staking 
of a man’s life on a guess.

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

2. The death penalty for rape as a badge of slavery

Every relevant study indicates a strong relation be­
tween the death penalty and poverty; for the crime that 
sends the poor man to the death chamber, the well-to-do, if 
convicted at all, is most likely to go to prison. Dean Mac- 
namara of the New York Institute of Criminology was per­
haps 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 impos­

34. Sellin, The Death Penalty (1959), 65-69; Scott, A History 
of Capital Punishment (1950), p. 246; Massachusetts, Report on the 
Death Penalty (195S), 27-28; Ohio, Report on Capital Punishment 
(1961) 49; Roche, A Psychiatrist Looks at the Death Penalty, T h e  
P rison  Jou rn al  (Oct. 1958), p. 47.

35. See authorities cited in footnote 25. Bedau sums it up as
follows: “ What do all these studies, taken together, seem to show?
The.results ar£ 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).



27

sible for Mm to enter the execution chamber,” 36 37 38 39 but the 
substantial truth of the statement is supported by all the 
authorities,37 and is conceded even by those favoring reten­
tion of capital punishment.38

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 racial discrimi­
nation is a significant factor in the imposition and execution 
of the death sentence.89 Attorney General Ramsey Clark

36. Macnamara, Sta te m e n t  A g ainst  Ca p ita 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 ide of Capita 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. Defend­
ants 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-Tregoff case in California, there 
were three trials, two hung juries, and finally verdicts of guilty but 
without the death penalty. It is estimated that the cost of these 
trials was over $1 million. But in the trial of some defendants with­
out funds, juries have deliberated for as little as nineteen minutes, or 
an hour more or less, and then returned verdicts of guilty and death.”

37. Duffy and Hirshberg, 88 M en an d  W om en  (1962), p. 256; 
DiSalle, Capital Punishment and Clemency, 25 O h io  Sta te  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 Social F orces 165 (1967) ; Koeninger, Capital 
Punishment in Texas, 1924-1968, 15 Crim e  an d  D elin q u e n cy  141 
(1969); Statement of Attorney General Ramsey Clark on S. 1760, 
July 2, 1968; Wolfgang, Kelly and Nolde, E xecution s  an d  Co m ­
m u tatio n s  in  P e n n s y l v a n ia , in Bedau, 482-483; Ehrmann, T he  
H u m a n  S ide of Ca pita l  P u n is h m e n t , in Bedau, 510-511; Mulli­
gan, Death, The Poor Man’s Penalty, T h e  A m erican  W e e k l y , 
May 15, 1960, p. 9.

38. E.g., Allen, Cap ita l  P u n is h m e n t  : Y our P rotection and  
M in e , in Bedau, 138.

39. Wolfgang, Kelly and Nolde, E xecution s  and  Co m m u t a ­
tions  in  P e n n sy lv a n ia , in Bedau, 473-477; Macnamara, State­
ment Against Capital Punishment, in ibid 188; Murton, Treatment 
of Condemned Prisoners, 15 Crim e  and  D elin q u e n cy  96-97 
(1969) ; Garfinkel, Research Note on Inter- and Intra-Racial Homi­
cides, 26 Social F orces 369 (1949); Johnson, The Negro and 
Crime, 271 Annals 93 (1941). See also authorities cited in footnote 
31, supra.



2 8

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 
following finding in a study of capital punishment in Texas: 
“ Lqseveral 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. ’ ’40

The positive relationship between the death penalty and 
race is strong, but where the crime involved is rape and 
more particularly, as in the present case, the rape of a white 
woman by a Negro, the relationship is almost uncontrovert­
ible. The statistics of the Department of Justice show 
that in the United States in the period from 1930 to 
1967 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 89.0.41 *

In 1954, the Court in Brown v. Board of Education, 
supra, declared racial segregation in the public schools to 
be unconstitutional. In 1962, the petitioner herein was con­
demned to death for the rape of a white woman. A com­
parison of the states whose statutes in 1954 required or 
authorized racial segregation in the schools and those

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

41. NPS, p. 7. An independent study made of Texas for the 
years 1924 to 1965 shows for murder the relative percentage 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  an d  D elin q u e n cy  140 (1969).



29

which in 1962 authorized42 the death penalty (and with the 
exception of West Virginia still do) for rape is, we believe, 
of great significance:

Segregation States4,3 Death Penalty States43 44

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 Tennessee45
Texas Texas
Virginia Virginia
West Virginia West Virginia
Wyoming

42. 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.

43. Murray, S tates L aw s  on R ace a n d  Color, Supp. (1955),
p. 6.

44. Supra, note 22.
45. In 1915, Tennessee abolished capital punishment for all 

crimes except rape. Bedau, p. 413.



30

With the exception of Nevada (where the death penalty 
is permissible only if the rape is accompanied by substan­
tial bodily harm to the victim46 47 and where in any event the 
statute is a dead letter, no person having been executed 
under it at least since 1930)47 every state (including the 
District of Columbia) which authorizes the death penalty 
for rape required or authorized racial segregation in the 
public schools until it ivas 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.48 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.” 49 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 Negroes.

46. Supra, note 22.
47. NPS, p. 11.
48. 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 39, supra.

49. 15 Cr im e  an d  D e lin q u e n cy  141 (1969).



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.

At the request of the NAACP Legal Defense and Edu­
cation Fund, Professor Marvin E. Wolfgang undertook an 
independent investigation of the relationship of the death 
penalty to race in rape cases. Dr. Wolfgang’s findings, 
which accorded with those of all the other scholars, were 
presented to the District Court in this case in support of a 
claim of denial of equal protection, but that court and the 
Court of Appeals were unpersuaded, primarily because the 
study did not encompass the particular county (Garland) 
wherein the present case was tried. The courts apparently 
believed that the fact that juries in other counties act dis- 
criminatorily in imposing the death sentence does not jus­
tify an inference that the jury in the present case followed 
the general pattern.

In view of the limited nature of the certiorari allowed 
in this case, the equal protection question and the correct­
ness of the decision of the lower courts on that specific 
question are not now open to review. Petitioner, however, 
offers Dr. Wolfgang’s findings to this Court on another 
ground which is before it, namely, that unbridled discre­
tion-on the part of a jury in fixing the penalty for rape 
usually if not inevitably results in racial discrimination 
and hence is arbitrary and a deprivation of due process.

We offer Dr. Wolfgang’s findings as well as the statis­
tical and other scholarly studies to this Court on an anal­
ogous but somewhat different basis. We suggest that if a



32

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 he said 
to he an ‘ ‘ unusual ’ ’ punishment, and hence violative of the 
Eighth -Amendment. We suggest too another approach. 
In Robinson v. California, swpra, the Court held that to 
punish a' person for a status (drug addiction) which he 
cannot control violates the Eighth Amendment.50 The 
same reasoning makes violative of the Amendment the im­
position on a person of a penalty harsher than ordinarily 
imposed simply because of a status (the color of his skin) 
which he cannot control.

It is true, of course, that neither the Wolfgang study nor 
the National Prisoner Statistics or the scholarly studies 
which have been cited herein specifically pinpoint Garland 
County in Arkansas, and it is conceivable that the jury 
which condemned the petitioner to death did not share the 
general feelings regarding the rape of a white woman by 
a Negro prevalent in all the states which authorize the 
death penalty for rape. But the Constitution does not 
require the courts to ignore what everyone knows or to 
close their eyes to what everyone sees. Certainly, when 
human life is at stake the courts have not merely the right 
but an obligation to act on the basis of probability rather 
than remote possibility.

In Brown v. Board of Education, supra, the Court in 
holding racial segregation jn all schools to be unconstitu­

50. In Powell v. Texas, 392 U.S. 514 (1968), the Court found 
an absence of evidence in the record to support the claim that being 
drunk in a public place was a status entirely uncontrollable by the 
defendant, but in no way impaired the authority of Robinson,



33

tional relied upon scholarly studies that such segregation 
causes psychological harm to Negro children. Yet, none of 
the cited studies pinpointed Topeka, Kansas, nor was any 
other evidence presented to show that the Negro children 
in that school district suffered any hurt from the com­
pulsory segregation. The Court had held at least a prinia 
facie denial of equal protection on the basis of statistical 
evidence of the exclusion of minority groups from juries 
even though there was no evidence that the particularly all- 
white jury which convicted the defendant whose case was 
being considered was motivated by racial considerations.51

The genius of the Anglo-American system of law is that 
in a criminal case every reasonable doubt must be resolved 
in favor of the accused. Thiŝ  is especially true where a 
human life is at stake. Here far more than a reasonable 
doubt is present that the petitioner’s death sentence was 
unmotivated by racial considerations. This should be more 
than enough to bar the extinguishment of his life.

3. The death penalty and the national conscience

We have suggested (supra, pp. 17-21) 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 na­
tional constitution must be applied nationally. We submit 
that viewed nationally “ the evolving standards of decency 
that mark the progress of a maturing society” 52 clearly 
point to the elimination of the death penalty in the United 
States.

51. See, e.g., Hernandez v. Texas, 347 U.S. 475 (1954).
52. Trap v. Dulles, 256 U.S. at 101.



34

Although general public opinion has fluctuated over the 
years; the trend is strongly toward abolition. Where in­
formed 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 
Judaism, and all favor abolition of capital punishment. 
Some of the others in the rapidly growing number of re­
ligious groups on record as opposed to capital punishment 
are: American Baptist Convention; American Evangel­
ical Lutheran Church; Augustana Evangelical Lutheran 
Church of North America; California-Nevada Conference 
of Methodists; Christian Churches (Disciples of Christ) 
International Convention; Church of the Brethren; Church 
Federation of Greater Chicago; Congregational Confer­
ence of Southern California and the Southwest; Connect­
icut Valley Presbytery; Connecticut Valley Quarterly 
Meeting of Friends (Quakers); Connecticut Universalist



Convention; Greater Bed Bank Area Council of Cliurclies; 
Massachusetts Baptist Convention; Massachusetts Council 
of Churches; New York State Council of Churches; North­
ern 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 
Presbyterian Church in the United States of America-Gen­
eral Assembly; TJniversalist Church of America.53

Legislative action reflects this trend. In the past five 
years, five states (Iowa, New York, Oregon, West Virginia 
and Vermont) have abolished the death penalty.54 In ad­
dition, the United States Department of Justice has urged 
Congress to abolish the death penalty in places under its 
jurisdiction.55 56 But the statute books do not tell the full 
story. Nevada, as we have noted, has never legislatively 
abolished the death penalty for rape; yet not a single per­
son 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 hooks laws which have long become 
archaic and obsolete. In gauging standards, the de facto 
is more significant than the de jure.‘ia

An examination of what actually has been happening 
shows clearly that the death penalty has really become an

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

54. Bedau, p. 12.
55 Statement by Attorney General Ramsey Clark on S. 1760 

(July 2, 1968).
56. Cj. Poe v. Uliman, 367 U.S. 497 (1961).



36

“ 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 Bu­
reau of Prisons57 are shown in the following table:

1930—155
1940—124 

' 1950— 82
1960— 56
1961— 42
1S62— 47
1963— 21
1964— 15
1965— 7
1966— 1
1967— 2
1968— 0
1969— 0

It is true that some of the decrease may be explained 
by decisions of this Court58 59 and the activities of such organ­
izations as the NAACP Legal Defense and Educational 
Fund and the National Office for the Eights 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 nation50 and that since then many additional death

57. NPS, p. 7 (updated).
58. E.g., Griffin v. Illinois, 351 U.S. 12 (1956) ; Gideon v. Wain- 

wright, 372 U.S. 335 (1963).
59. NPS, p. 13.



37

sentences have been handed down, so that in the event the 
present appeal 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.

The conclusions drawn in this section and the statistical 
and other factual information cited to support them all 
deal with the death penalty generally, that is even for pre­
meditated murder. We do not in this brief urge a decision 
that capital punishment is in all cases cruel and unusual 
punishment violative of the Eighth Amendment. We urge 
only that the death penalty for non-homicidal rape does 
violate the Constitution. In considering this narrower 
issue, it should be noted that, even if measured by what 
the statute books say rather than by what is actually clone, 
the national standard quite clearly rejects capital punish­
ment for rape; the overwhelming majority of Americans 
live in states whose laws do not permit a judge or jury to 
sentence a person convicted of rape to death. Measured 
by the test set forth in Trop v. Dulles, this Court, we sub­
mit, can come to no other conclusion than that the time has 
arrived judicially to declare that the death penalty for 
non-homicidal rape does not comport with the present 
standards of national decency and therefore is violative of 
the Eighth Amendment.

4. International standards

A democracy, our Declaration of Independence asserts, 
imposes upon its people an obligation to accord a decent 
respect to the opinions of mankind. We suggest that in



38

deciding whether capital punishment for rape is consist­
ent 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 wprld are in virtual unanimity that statelessness is not 
to be imposed as punishment for crime.”  356 U.S. at 102. 
Tie referred to a United Nations’ survey of the nationality 
laws of 84 nations of the world which revealed that only 
two countries, the Phillippines and Turkey, imposed de­
nationalization as 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 at 
least in respect to capital punishment for non-homicidal 
rape.

We have quoted Bedau’s summary of American atti­
tudes to the death penalty generally.60 61 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 :G1

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, penolo­
gists, psychologists, doctors and writers on social

60. Supra, p. 34.
61. UN Report, p. 64. See, also, Ancel, Capital Punishment in 

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



39

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 
Nations’ survey shows that of the sixty-five nations that 
responded to its inquiries, only four (other than the seven­
teen states in the United States cited above)02 still permit 
imposition of the death penalty for rape.03 There is, we 
suggest, significance in the idetitity 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 for non-homicidal rape constitutes constitutionally 
impermissible cruel and unusual, punishment. 62 63

62. Supra, p. 29.
63. UN Report, p. 40.



40

Conclusion
All the evidence points to the conclusion that capital 

punishment is on its way out. It 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 2‘ 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 rights, 
particularly those that are fundamental, are violated, 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 few years of 
survival; yet that fact did not deter this Court from de­
claring it unconstitutional in the very few states which still 
retained it.64 65 Occasionally, as in the case of racial segrega­
tion in the schools, the Court has felt that prompt vindica­
tion is impracticable and has contented itself with decreeing 
effectuation of its decision with all deliberate speed.60 Look­
ing backwards, it is by no means certain that a judgment 
ordering reasonably prompt compliance with the constitu­
tional mandate would not have worked better.

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.

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

65. Brown v. Board of Education, 349 U.S. 294 (1955).



41

But, more important by far, until sueli time as the slow 
wheels of 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 
one life it as though he sustained the entire world.66 This, 
we believe, applies even to the life of 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 for non-homicidal rape affronts the dignity of man, 
does not comport with civilized standards and cannot be 
sustained under the Eighth Amendment.

Respectfully submitted,
L eo P feffer 

15 East 84tli Street 
New York, New York 10028

M arvin B raiterman 
M orris D ersiiowitz 

W ile  M aslow 
H enry A. R apaport 
J oseph B . R obison 

George S oll

Attorneys for Amici Curiae
L eo P feffbr 

Of Counsel

September, 1989
66. Talmud, Sanhedrin, ch. 4, Mishnah 5.



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