Delaware v. Dickerson Brief Amicus Curiae

    IN THE
SUPREME COURT OF THE STATE OF DELAWARE 

NO. 157, 1972

STATE OF DELAWARE,
Petitioner,

v.
RANDOLPH DICKERSON,

Defendant.

BRIEF FOR THE DELAWARE STATE CONFERENCE 
OF BRANCHES OF THE NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE

LOUIS L. REDDING
400 Fanners Bank Building 
Wilmington, Delaware 19801

Attorney for The Delaware State 
Conference of Branches of the 
National Association for the 
Advancement of Colored People



INDEX

Interest of the Amicus Curiae .........................  1
I. Questions Presented ......................... ...... 3

II. Statutes Involved .................................. 4
III. Argument

A. Introduction (Discussion of Question 1 
and Statement of the Issue Raised by
Question 2)   5

B. The State's Arguments For Severability .....  7
C. The Non-Severability of Sections 571 and3901 .......................................  18

IV. Conclusion ......................................... 32

Appendix A
Sources of Chart on page 23 (Dates and Statutes 
by which the Several States Abandoned the 
Mandatory Death Penalty for the Crime of Murder) ........................................  A-l

Page



Table of Authorities

Cases;

Abrahams v. Superior Court, 11 Terry 394, 131 A.2d
662 (Del. Sup. Ct. 1957) .............................  17

Angelini v. Court of Common Pleas, __ Del. __, 205
A. 2d 174 (Del. Sup. Ct. 1964) ........................  20,21

Atkinson v. South Carolina, No. 69-5033, 41 U.S.L. Week
3002 (U.S., June 29, 1972) ...........................  12

Becker v. State, 7 W.W. Harr. 454, 185 Atl.92 (Del.
Super. 1936)   17

Bouie v. City of Columbia, 378 U.S. 347 (1964) .........  31-32
Boykin v. Florida, No. 71-6154, 41 U.S.L. Week 3003

(U.S., June 29, 1972) ................................  11
Brown v. Florida, No. 70-5394, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ................................  11
Capler v. Mississippi, No. 70-5003, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ................................  12
Carter v. Ohio, No. 69-5034, 41 U.S.L. Week 3002

(U.S., June 29, 1972)   12
Coleman v. Rhodes, 5 W. W. Harr. 120, 159 Atl.649

(Del. Super. 1932)     17
Collinson v. State ex rel Green, 9 W. W. Harr. 460,

2 A.2d 97 (Del. Sup. Ct. 1938) ........................ 7
Discount & Credit Corp. v. Ehrlich, 7 W. W. Harr. 561,187 Atl.591 (Del. Super. 1936) .... ................... 17
Douglas v. Louisiana, No. 70-5023, 41 U.S.L. Week 3002

(U.S., June 29, 1972) .......... ...................... 11
Duling v. Ohio, No. 69-5047, 41 U.S.L. Week 3002

(U.S., June 29, 1972)   12
Doss v. North Carolina, No. 71-6001, 41 U.S.L. Week

3003 (U.S., June 29, 1972)   12
Downs v. Jacobs, __ Del. __, 272 A.2d 706 (Del. Sup.

Ct. 1970)   7

Page

- ii -



Table of Authorities (Continued)

Eaton v. Ohio, No. 69-5018, 41 U.S.L. Week 3002
(U.S., June 29, 1972) ..............................  12

Elliott v. Ohio, No. 71-5274, 41 U.S.L. Week 3003
(U.S., June 29, 1972) ..............................  12

Elliott v. Richards, 1 Del. cas. 87 (Del. Comm. Pis.1796)   20
Eubanks v. Ohio, No. 69-5029, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ..............................  12
Fuller v. South Carolina, No. 70-5017, 41 U.S.L. Week

3002 (U.S., June 29, 1972)   12
Funicello v. New Jersey, 403 U.S. 948 (1971) .........  29,30
Furman v. Georgia, 40 U.S.L.W. 4923 (U.S., June 29,

1972)   Passim
Hall v. State, 4 Har. 132 (Del. Ct. App. & Err.1844) ..............................................  20
Hamby v. North Carolina, No. 70-5006, 41 U.S.L. Week

3002 (U.S., June 29, 1972)   12
Irving v. Mississippi, No. 69-5023, 41 U.S.L. Week

3002 (U.S., June 29, 1972)   12
Johnson v. Florida, n o . 71-5866, 41 U.S.L. Week 3003

(U.S., June 29, 1972)   11
Kassow v. Ohio, No. 71-6081, 41 U.S.L. Week 3003

(U.S., June 29, 1972) ..............................  12
Keaton v. Ohio, No. 69-5038, 41 U.S.L. Week 3002

(U.S., June 29, 1972)   12
Kerrigan v. Scafati, No. 69-5050, 41 U.S.L. Week 3002

(U.S., June 29, 1972)   12
Lasky v. Ohio, No. 69-5048, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ....... ....................... 12
Limone v. Massachusetts, Nos. 70-5, 71-1139, 41 U.S.

L. Week 3002 (U.S., June 29, 1972) .................  12
Lindsey v. Washington, 301 U.S. 397 (1937) ...........  31
Lopinson v. California, 392 U.S. 647 (1968) ..........  6
McGautha v. California, 402 U.S. 183 (1971) ..........  21

Page

- iii -



Major, etc., of Wilmington v. Ewing, 2 Pen. 66, 43
Atl. 305 (Del. Sup. Ct. 1899) .......................  19

Marks v. Louisiana, No. 68-5001, 41 U.S.L. Week 3002
(U.S., June 29, 1972) .............................. . 11

Miller v. North Carolina, n o . 70-5018, 41 U.S.L. Week
3002 (U.S., June 29, 1972) ..........................  12

Moore v. Illinois, 40 U.S.L. Week 5071 (U.S., June
29, 1972) ...........................................  6

Moorehead v. Ohio, No. 5084, 41 U.S.L. Week 3002
(U.S., June 29, 1972) ...............................  12

Mrkonjic-Ruzic v. United States, 394 U.S. 454 (1969).... 6
Paramore v. Florida, No. 69-5024, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ................................ 11
Poland v. Louisiana, No. 70-5001, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ................................ 11
Pope v. United States, 392 U.S. 651 (1968) ............  28,30
Reese v. Harnett, 6 Terry 448, 75 A.2d 266 (Del.

Sup. Ct. 1950)     17
Regalado v. California, 374 U.S. 497 (1963) ...........  6
Schneble v. Florida, 392 U.S. 298 (1968) ..............  6
Seeny v. Delaware, No. 71-5194, 41 U.S.L. Week 3002

(U.S., June 29, 1972) ................................ 6,11
Sinclair v. Louisiana, No. 71-5184, 41 U.S.L. Week

3002 (U.S., June 29, 1972) ....... ................... 11
Spillers v. State, 84 Nev. 23, 436 P.2d 18(1968)     26,27,30
Square v. Louisiana, No. 71-5114, 41 U.S.L. Week

3002 (U.S., June 29, 1972) _________________________  In­
state v. Cannon, __ S.C. __, 186 S.E.2d 413 (1972) ....  30
State v. Campbell, 2 Terry 342, 22 A.2d 390 (Del.Ct. Gen. Sess. 1941) ........ ........................ 20
State v. Chase, 11 Terry 383, 131 A.2d 178 (Del.

Super. 1957)     20

Table of Authorities (continued)
Page

- iv -



State v. Forcella, 52 N.J. 263, 245 A.2d 181(1968) ...............................................  29
State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1972) .....  29,30
State v. Hamilton, __ S.C. __, 186 S.E.2d 419

(1972) ...............................................  30
State v. Harper, 251 S.C. 379, 162 S.E.2d 712(1968)   29
State v. Johnson, 4 Terry 294, 46 A.2d 641 (Del. Ct.Gen. Sess. 1946)   20
State v. Pierson, 7 Terry 558, 86 A.2d 559 (Del. Super.1952)   20
State v. Turner, 3 Storey 305, 168 A.2d 539 (Del.Sup. Ct. 1961)   20
State ex rel. Davis v. Wooley, 9 Terry 34, 97 A.2d

239 (Del. Sup. Ct. 1953) .............................  7

State ex rel. James v. Schorr, 6 Terry 18, 65 A 2d810 (Del. Sup. Ct. 1949) ................... *....... 17,32
State ex rel. Morford v. Tatnall, 2 Terry 273

21 A. 2d 185 (Del. Sup. ct. 1941) ......... [......... 17
Staten v. Ohio, No. 70-5221, 41 U.S.L. Week 3002(U.S., June 29, 1972) ...    12
Steigler v. Delaware, No. 71-5225, 41 U.S.L. Week3003 (U.S., June 29, 1972) .........................  6,11
Stewart v. Massachusetts, 41 U.S.L. Week 3002(U.S., June 29, 1972)   6,12
Strong v. Louisiana, No. 70-5016, 41 U.S.L. Week3002 (U.S., June 29, 1972) ..........................  H
Thomas v. Florida, No. 69-5010, 41 U.S.L. Week3002 (U.S., June 29, 1972) .........................  H
Thomas v. Leeke, __ S.C. , 186 S.E.2d 516

(1970> ............... ~ ...........................  29,30
Thomas v. Leeke, 403 U.S. 948 (1971) ..................  29
Tollin v. State, 7 Terry 120, 78 A.2d 810(Del. Gen. Sess. 1951) .........................  20
Traub v. Connecticut, 374 U.S. 493 (1963) ...........  6
United States v. Jackson, 390 U.S. 570 (1968) ........  27,28

29,30

Table of Authorities (Continued)
Page

- v -



Table of Authorities (continued)

Pacre

Westbrook v. North Carolina, No. 71-5395, 41 U.S.L. 
Week 3003 (U.S., June 29, 1972) .... „............. 12

White v. Ohio, No. 71-5525, 41 U.S.L. Week 3003
(U.S., June 29, 1972) ............................ 12

Williams v. Wainwright, No. 69-5020, 41 U.S.L.
Week 3003 (U.S., June 29, 1972) .................. 11

Yates v. cook. No. 68-5004, 41 U.S.L. Week 3002
(U.S., June 29, 1972) ................ ............ 12

Young v. Ohio, No. 71-6156, 41 U.S.L. Week 3003
(U.S., June 29, 1972) ............................ 12

Constitutional Provisions:
United States Constitution
Article I, § 10 ................................. 31
Eighth Amendment ............................... 7,31
Fourteenth Amendment ........................... 31

Statutes:
11 Del. Code § 107 (1970 Cum. Pocket Part) ..... 16
11 Del. Code § 571 (1970 Cum. Pocket Part) ..... Passim
11 Del. Code § 3901 (1970 Cum. Pocket Part) .... Passim
11 Del. Code §§ 3909, 3910 (1970 Cum. Pocket
Part) ........................................ 16,18

Delaware Legislature, 1961 Sess., S.B. 192, S.B. 215 ... 14
Del. Laws 742, Ch. 347, § 1 (1957) ............. 25
Del. Laws 803, Ch. 310, §§ 1, 2 (1961) ......... 15,16,25
Del. Laws 801, Ch. 309, §§ 1-3 (1961) .......... 15,16,25
Fla. Stat. Ann. § 782.04 (1965) ................ 9
Fla. Stat. Ann. § 919.23 (1944) ................ 9
Fla. Stat. Ann. § 921.141 (1972-1973 Cum. Ann. 

Pocket Part) .................................. 9

vx



Statutes; (continued)

Ga. Code Ann., § 26-1005 (1971 Cum. Pocket 
Part) .................................

Initiative Measure, Ariz. Laws 4 (1916) ...
Initiative Measure, Ariz. Laws 17 (1919) ..
Page's Ohio Rev. Code Ann. § 2901.01 (1954)
Me. Acts 81, Ch. 114, § 1 (1876) .........
Me. Acts 169, Ch. 205, § 1 (1883) ........
Mass. Laws Ann., Ch. 265, § 2 (1968) ......
Miss, code Ann., § 2217 (Recomp. Vol. 1956)
Mo. Laws 246 (1917) .......................
Mo. Laws 778 (1919) ......................
La. Code Crim. Pro., art 817 (1966) ......
La. Stat. Ann. § 14:30 (1951) ............
La. Stat. Ann. § 14:42 (1951) ............
La. Stat. Ann. § 15-409 (1951) ...........
N.C. Gen. Stat., § 14-17 (1969 Repl. Vol.)
N.J.S.A., § 2A:113-3,4 (1969) .............
Pub. Law 87-423, § 1, 76 Stat. 46 (1962) ..
S.C. Code, § 16-52 (1962) ............
S.D. Laws 335, Ch. 158, § 1 (1915) .......
S.D. Laws 40, Ch. 30, § 1 (1939) .........
Wash. Laws 581, Ch. 167, § 1 (1913) ......
Wash. Laws 273, Ch. 112, § 1 (1919) ......

Page

12
25
25
11
24
24 
11 
11
25 
25

9.10
9.10
9.10 

10  

11 
28 
22 
11 
25 
25 
25 
25

V I 1



Other Authorities;

BEDAU, THE DEATH PENALTY IN AMERICA
(Rev. Ed. 1967) ...................................  13

1 BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND (1st Ed. 1765)     26

1 BRILL, CYCLOPEDIA OF CRIMINAL LAW (1922) ..........  26
Delaware Legislative Journal (Senate) 430 (December

5, 1961)   14
Hartung, Trends in the Use of capital Punishment,

284 ANNALS 8 (195 2) ............................... 13
Knowlton, Problems of Jury Discretion in capital

Cases. 101 U. Pa. L. REV. 1099 (1953) .............  13
1 MCLAIN, TREATISE ON THE CRIMINAL LAW (1897) .......  26
UNITED NATIONS, DEPARTMENT OF ECONOMIC AND SOCIAL 
AFFAIRS, CAPITAL PUNISHMENT (ST/SOA/SO/9-10
1968)   13

1 WHARTON, TREATISE ON CRIMINAL LAW (10th Ed.
1896) .............................................  26

Table, Abolition of Mandatory Capital Punishment ..... 23

Page

- viii -



IN THE
SUPREME COURT OF THE STATE OF DELAWARE 

NO. 157, 1972

STATE OF DELAWARE,
Petitioner,

v.
RANDOLPH DICKERSON,

Defendant.

BRIEF FOR THE DELAWARE STATE CONFERENCE 
OF BRANCHES OF THE NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF COLORED PEOPLE, AS AMICUS CURIAE

Interest of the Amicus Curiae

The Delaware State Conference of Branches of the N.A.A.C.P. 
is a confederation of the local branches of the N.A.A.C.P. for 
every county for the State of Delaware. The N.A.A.C.P. has a 
membership of 470,000 Negro and Caucasian people belonging to 
1,700 branches and offices throughout the nation. Since its 
inception in 1909, the N.A.A.C.P. has played a key role in 
securing legislation to eradicate those practices in our society 
that bear with discriminatory harshness upon Negroes and upon the 
poor, deprived, and friendless, who too often are Negroes. It 
has sought to end racial discrimination through our judicial 
system in all aspects of American life. Complementing the 
Association's legal spearhead are extensive programs to deal with

- 1 -



2

racial factors in housing, education, employment, voter 
registration, and the administration of criminal justice.

Capital punishment as administered in the united States
has consistently made racial minorities, the deprived and the
downtrodden, the peculiar objects of sentences of death and
of execution, in re-acknowledging the commitment of the
Association against the imposition of capital punishment# the
61st Annual Convention of the N.A.A.C.P. resolved:

Whereas, the Constitution of the United States 
of America guarantees all persons without regard to race, color, creed or national origin equal protection under the law,
Whereas, the sad facts of past and recent history 
clearly demonstrate that the vast majority of 
people who have received the death penalty or arepresently held in death row are blacks.

*  *  *

BE IT THEREFORE RESOLVED, that the National Office 
use its prestige and resources to press for the 

, Supreme court of the United States to abolish thedeath penalty as cruel and inhuman punishment 
violative of the equal protection clause and therefore unconstitutional.

The N.A.A.C.P. to that end filed a Brief Amicus Curiae in 
the United States Supreme Court in Furman v. Georgia. 40 U.S.L. 
Week 4923 (U.S., June 29, 1972) in which that Court did hold 
the death penalty violative of the Eighth Amendment to the Utiited 
States Constitution.

The Delaware State Conference of Branches of the N.A.A.C.P., 
therefore, has an obligation to go on record against attempts 
in Delaware to restore this unconstitutional penalty in a mandatory 
form. A mandatory death sentence can only intensify and continue 
for Negroes in America the injustice which the death penalty has 
always constituted.

i



3

BRIEF AMICUS CURIAE

I. QUESTIONS PRESENTED

The two questions certified for decision by this Court
are:

1. Are the discretionary mercy provisions of 
11 Del. code § 3901 unconstitutional under 
Furman v. Georgia, et al.?

2. If the answer to Question 1 is yes, is the 
mandatory death penalty described in 11 Del.
Code § 571 constitutional?



4

II. STATUTES INVOLVED

Del. code Ann., tit. 11, § 571 (1970 Cum. Pocket Part) 
provides:

§ 571. Murder in the first degree
Whoever commits the crime of murder with 
express malice aforethought, or in per­
petrating, or attempting to perpetrate 
the crime of rape, kidnapping or treason, 
is guilty of murder in the first degree 
and of a felony, and shall suffer death.

Del. Code Ann., tit. 11, § 3901 (1970 Cum. Pocket Part) 
provides:

§ 3901. Recommendation of mercy
In all cases where the penalty for crimes 

prescribed by the laws of this State is death, 
if the jury, at the time of rendering their 
verdict recommends the defendant to the mercy of the Court, the Court may, if it seems 
proper to do so, impose the sentence of 
life imprisonment instead of death.



5

III. ARGUMENT

A. introduction (Discussion of Question 1 
and Statement of the Issue Raised by 
Question 2)

The first certified question —  whether Furman v. 
Georgia. 40 U.S.L. Week 4923 (U.S., June 29, 1972), invali­
dates Delaware's discretionary death penalty for first degree
murder under Del. code Ann., tit. 11, §§ 571, 3901 (1970 Cum.

1/ 2 /Pocket Part) -- is not in contention between the parties;
and the answer to it seems clear. The Supreme Court of the
United States has already applied Furman to vacate death
sentences in two Delaware cases, thereby necessarily holding
the interaction of sections 571 and 3901 unconstitutional.

1/  We put the question this way because §§ 3901 alone does 
not authorize the death penalty; only § 571 does. But, by 
referring to § 571 in this context, we do not mean to trench 
upon the second certified question. We come to that in the 
following paragraph and thereafter.
2/ The State's Opening Brief in this Court [hereafter cited State Br.] concedes that the effect of Furman is to invalidate 
"the discretionary imposition of the death penalty" authorized 
by §§ 571, 3901. See State Br. 25.



4

Seeney v. Delaware, No. 71-5194, 41 U.S.L. Week 3002 (U.S.,
June 29, 1972); Steigler v. Delaware, No. 71-5225, 41 U.S.L.

3/
Week 3003 (U.S., June 29, 1972).

The second question is whether section 571 alone survives 
Furman. The State's Opening Brief argues that it does. It 
urges that sections 571 and 3901 are severable; that section 
571 (severed from section 3901) prescribes a mandatory death

- 6 -

3/ These two Delaware cases were among 120 cases, involving 
125 condemned men from 26 States, in which the Supreme Court 
vacated death sentences per curiam on June 29, 1972, following 
Furman. See Stewart v. Massachusetts, and companion cases 
41 U.S.L. Week 3002-3003 (U.S., June 29, 1972); see also 
Moore v. Illinois, 40 U.S.L. Week 5071, 5075 (U.S., June 29,
1972). In the Stewart case, the per curiam order cited 
Furman; in most of the other cases, it cited Stewart. The 
Court thus vacated the death sentence of every condemned man 
whose case was pending before it.

It should be noted that the orders in these cases do not 
use the form frequently employed by the Supreme Court when it 
vacates judgments per curiam and remands cases for "further 
consideration" or for "reconsideration" in the light of one 
of its opinions. See, e.g., Traub v. Connecticut, 374 U.S.
493 (1963); Regalado v. California, 374 U.S. 497 (1963);
Schneble v. Florida, 392 U.S. 298 (1968); Lopinson v. Pennyslvania, 
392 U.S. 647 (1968); Mrkonjic-Ruzic v. United States, 394 U.S. 454 
(1969). The form of the orders entered in the 120 cases on 
June 29, 1972, was flatly that the "judgment in each case is 
vacated insofar as it leaves undisturbed the death penalty 
imposed, and the case is remanded for further proceedings." 
Manifestly, the Supreme Court thereby meant to leave no ques­
tions regarding capital punishment open for further consideration 
upon the remands; the only issues remaining were to be what 
sentences less than death should be imposed, by what procedures, 
under each State's practice.



7

penalty; and that nothing in Furman prohibits mandatory death 
penalties. But we do not think that this Court needs to reach 
the difficult question of the constitutionality of mandatory 
death penalty statutes under the Eighth Amendment in order to 
decide the present case. That would, indeed, amount to the 
unnecessary and premature decision of a grave constitutional 
issue —  a practice which is inconsistent with the "settled
policy of this Court." Downs v. Jacobs, ___ Del. ___, 272
A. 2d 706,708 (Del. Sup. Ct. 1970); see, e.g,. , Collinson v.
State ex rel. Green, 9 W.W. Harr. 460, 2 A.2d 97, 1Q8 (Del. 
Sup.Ct. 1938); State ex rel. Davis v. Woolley, 9 Terry 34, 97 
A.2d 239, 241-242 (Del.Sup.Ct. 1953). For, in fact, sections 
571 and 3901 are plainly not severable; and we address this 
brief solely to the issue of non-severability.

B. The State's Arguments for Severability

Apart from expressing undisguised hostility to the 
Furman decision and quoting liberally from the Furman dissenters 
in disparagement of that decision (State Br. 4-8), the State 
makes essentially four points in support of the asserted 
severability of sections 571 and 3901:

(1) that Furman and companion cases dealt with 
state statutes in which the provisions giv­
ing judges and juries discretion were 
"integral" with the provisions authorizing 
the death penalty; whereas, in Delaware, 
section 571 and 3901 are "separate";



8

(2) that Delaware has had capital punish­
ment throughout most of its history; 
and, for the major part of that period, 
in mandatory form;

(3) that present sections 571 and 3901 are 
the products of two separate bills, 
partly separately processed, during 
the 1961 legislative session; and

(4) that sections 571 and 3901 are mechani­
cally separable, so that section 571 
can be given effect without rewriting 
if section 3901 is expunged.

Each of these arguments is ill-taken, and we shall discuss 
each one briefly before coming to the reasons which we 
believe compel the conclusion that sections 571 and 3901 
are non-severable.

(1) Furman and companion cases dealt with 
statutory patterns in which there was 
no "separate statute punishing the 
offense of murder by mandatory death"
(State's Br. 5, n.6).

The State repeats this assertion throughout its brief, 
in varying forms, in an effort to distinguish Furman. See 
State's Br. 5-7 n.6; 11 n.12; 24-25; 35 n.32. The short 
answer to it is that the assertion is wrong. Three States



9
4/ 5/Delaware, Florida,— and Louisiana— had cases pending

4/ We refer to the Florida murder statute in effect prior 
to January 1, 1972, under which each of the Florida cases 
cited in note 6, infra, arose. The statutes applicable to 
those cases were Fla. Stat. Ann., S§ 782.04 and 919.23 
(the latter renumbered § 921.141 in 1970), which provided 
in pertinent part as follows:

"The unlawful killing of a human being, when 
perpetrated from a premeditated design to effect 
the death of the person killed or any human being, 
or when committed in the perpetration of or in the 
attempt to perpetrate any arson, rape, robbery, 
burglary, abominable and detestable crime against 
nature or kidnaping, shall be murder in the first 
degree, and shall be punishable by death."
(Fla. Stat. Ann., § 782.04 (1965).)

" . . .  Whoever is convicted of a capital of­
fense and recommended to the mercy of the court 
by a majority of the jury in their verdict, shall 
be sentenced to imprisonment for life; or if found 
by the judge of the court, where there is no jury, 
to be entitled to a recommendation to mercy, shall 
be sentenced to imprisonment for life, at the dis­
cretion of the court." (Fla. Stat. Ann., S 919.23 
(1944).)

[In 1970, the foregoing section was immaterially amended and 
was renumbered, although, of course, it continued to remain 
"separate" from § 782.04. As amended, it reads:

"A defendant found guilty by a jury of an of­
fense punishable by death shall be sentenced to 
death unless the verdict includes a recommendation 
to mercy by a majority of the jury. When the ver­
dict includes a recommendation to mercy by a major­
ity of the jury, the court shall sentence the defen­
dant to life imprisonment. A defendant found guilty 
by the court of an offense punishable by death on 
a plea of guilty or when a jury is waived shall be 
sentenced by the court to death or life imprisonment." 
(Fla. Stat. Ann., § 921.141 (1972-1973 Cum. Ann.
Pocket Part).)]

5/ The Louisiana statutes in question are La. Stat. Ann.,
§§ 14:30, 14:42, and La. Code Crim. Pro., art 817, which

(continued)



10

in the Supreme Court of the United States on June 29, 1972,

5/ (continued)
provide in pertinent part as follows:

"Murder is the killing of a human being,
"(1) When the offender has a specific intent 

to kill or to inflict great bodily harm; or
"(2) When the offender is engaged in the per­

petration or attempted perpetration of aggravated 
arson, aggravated burglary, aggravated kidnapping, 
aggravated rape, armed robbery, or simple robbery, 
even though he has no intent to kill.

"Whoever commits the crime of murder shall be 
punished by death." (La. Stat. Ann., § 14:30 (1951).)

"Aggravated rape is a rape committed where the 
sexual intercourse is deemed to be without the 
lawful consent of the female because it is com­
mitted under any one or more of the following 
circumstances:

"(1) Where the female resists the act to the 
utmost, but her resistance is overcome by force.

"(2) Where she is prevented from resisting the 
act by threats of great and immediate bodily harm, 
accompanied by apparent power of execution.

"(3) Where she is under the age of twelve years. 
Lack of knowledge of the female's age shall not be 
a defense.

"Whoever commits the crime of aggravated rape 
shall be punished by death." (La. Stat. Ann., § 14:42 
(1951).)

"In a capital case the jury may qualify its 
verdict of guilty with the addition of the words 
"without capital punishment," in which case the 
punishment shall be imprisonment at hard labor for 
life." (La. Code Crim. Pro., art. 817 (1966). Prior 
to the effective date of the Code, January 1, 1967, an 
essentially identical provision was found in La. Stat. 
Ann., § 15-409 (1951) —  "separate," also from 
§S 14:30 and 14:42.)



11

which arose under statutes that were "separate" in the 
State's sense of the term. On that day, the Supreme Court 
vacated the death sentences of all condemned men in each of 
these three States, on the authority of Furman. Therefore,
even if the State's notion of "separate" statutes were legally

7 /relevant -- which it is not— -- it is erroneous on the facts.

6/ All of these cases are among the per curiam decisions noted 
in note 3, supra, and all are reported at 41 U.S.L. Week 3002-3003 
(U.S., June 29, 1972). The Delaware cases are Seeney v. Delaware,
No. 71-5194; and Steigler v. Delaware, No. 71-5225. The Florida 
cases are Thomas v. Florida, No. 69-5010; Paramore v. Florida,
No. 69-5024; Brown v. Florida, No. 70-5394; Johnson v. Florida,
No* 71-5866; Boykin v. Florida, No. 71-6154; Hawkins v. Wainwright, 
No. 69-5017; Williams v. Wainwright, No. 69-5020. The Louisiana 
cases are Marks v. Louisiana, No. 68-5001; Williams v. Louisiana,
No. 68-5010; Johnson v. Louisiana, No. 68-5017; Poland v. Louisiana, 
No. 70-5001; Strong v. Louisiana, No. 70-5016; Douglas v. Louisiana, 
No. 70-5023; Square v. Louisiana, No. 71-5114; Sinclair v. Louisiana, 
No. 71-5184.
7/ The only arguable relevance of "separateness" for purposes of 
severability is that "separate" provisions (a) are readily sever­
able mechanically, without rewriting statutory language, and 
(b) may evidence legislative intent that each "separate" provi­
sion would have been enacted standing alone. Obviously, the 
existence of separate statutory sections is unnecessary to either 
of these points; both points are as forcefully made by clearly 
separate clauses within a section. Thus, for example, we do 
not see why Delaware's separate sections 571 and 3901 should be 
any more severable, upon either ground, than other common forms 
of capital-punishment statutes: the form providing that defen­
dants convicted of first degree murder "shall be punished by death 
unless the jury trying the accused recommends mercy, in which 
case the punishment shall be imprisonment for life" (Page's Ohio 
Rev. Code Ann., § 2901.01 (1954); see also Miss. Code Ann.,
§ 2217 (Recomp. Vol. 1956); Mass. Laws Ann., ch. 265, S 2 (1968)), 
or the form providing that first degree murder "shall be punished 
with death; Provided, if at the time of rendering its verdict in 
open court, the jury shall so recommend, the punishment shall be 
imprisonment for life . . . "  (N.C. Gen. Stat., § 14-17 (1969 Repl.
Vol.); see also S.C. Code, § 16-52 (1962)), or the form providing

(continued)



12
(2) "[W]ith the brief exception of a

three year experiment in abolition, 
capital punishment has remained in 
force as a legal punishment for the

7/ (continued)
that the punishment "shall be death, but may be confinement 
in the penitentiary for life in the following cases: If the
jury trying the case shall so recommend, or if the conviction 
is founded solely on circumstantial testimony, the presiding 
judge may sentence to confinement in the penitentiary for 
life. In the former case it is not discretionary with the 
judge; in the latter it is." (Ga. Code Ann., § 26-1005 
(1971 Cum. Pocket Part).) Each of these forms of statute is as 
mechanically separable as separate sections would be: all that 
has to be done is to strike the "unless" or the "Provided" or 
the "but" clause completely. And each evidences as much 
legislative intent of severability as separate sections would —  
and more such intent than Delaware's separate sections do —  
because, in the case of each of the state statutes we have 
cited above, the mandatory death penalty clause predated by 
many years the latter-day addition of the "unless" or the 
"Provided" or the "but" clause. These are truly "separate" 
statutes -- sometimes separate by a century. Yet, among the 
June 29, 1972 cases (all reported at 41 U.S.L. Week 3002-3003 
(U.S., June 29, 1972)), the Supreme Court vacated death sen­
tences under each of these forms of statutes. The Ohio statute 
was involved in Eaton v. Ohio, No. 69-5018; Eubanks v. Ohio,
No. 69-5029; Carter v. Ohio, No. 69-5034; Keaton v. Ohio,
No. 69-5038; Puling v. Ohio, No. 69-5047; Lasky v. Ohio, No. 69-5048.
Moorehead v. Ohio, No. 70-5084; Staten v. Ohio, No. 70-5221;
Elliott v. Ohio, No. 71-5274; White v. Ohio, No. 71-5525;
Kassow v. Ohio, No. 71-6081; Young v. Ohio, No. 71-6156. The 
Mississippi statute was involved in Yates v. Cook, No. 68-5004;
Irving v. Mississippi, No. 69-5023; Capler v. Mississippi,
No. 70-5003. The Massachusetts statute was involved in 
Kerrigan v. Scafati, No. 69-5050; Limone v. Massachusetts,
Nos. 70-5, 71-1139; Stewart v. Massachusetts, No. 71-5446.
The North Carolina statute was involved in Hamby v. North 
Carolina, No. 70-5006; Miller v. North Carolina, No. 70-5018; 
Westbrook v. North Carolina, No. 71-5395; Doss v. North Carolina,
No. 71-6001. The South Carolina statute was involved in Atkinson 
v. South Carolina, No. 69-5033; and Fuller v. South Carolina, No. 
70-5017. The Georgia statute, of course, was involved in Furman 
itself.



13

crime of first degree murder, 
for well over three hundred 
years, and for the greater part 
of this period, it has been 
mandatory." (State Br. 31.)

This proposition -- which is avowedly the sum total
that the State's Opening Brief gleans from its analysis of
the history of capital punishment in Delaware (State Br.
28-31) —  is factually accurate but legally insignificant.
The significant historical fact is not that Delaware had
mandatory capital punishment for murder during 241 years
prior to 1917, but that Delaware abandoned mandatory capital
punishment for discretionary capital punishment in 1917 and
has never gone back. By treating "three hundred years" of
Delaware history as an undifferentiated lump, the State of
course ignores the single most important feature of the history

8 /of the death penalty in Delaware, the United States— and the 
9 /world— during the Twentieth Century: the accelerating and 

wholesale replacement of mandatory death punishments with 
discretionary ones. We shall say more on this point shortly.
For present purposes, it is enough to say that an extrapolation

£/ See BEDAU, THE DEATH PENALTY IN AMERICA (Rev. Ed. 1967), 27-30; 
Hartung, Trends in the Use of Capital Punishment, 284 ANNALS 8, 12 
(1952); Knowlton, Problems of Jury Discretion in Capital Cases,
101 U. PA. L. REV. 1099, 1100-1101 (1953).
9/ See UNITED NATIONS, DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS, 
CAPITAL PUNISHMENT (ST/SOA/SD/9-10 (1968)),13, 82, 87.



14

of the Delaware Legislature's intent in 1961 from the 
mandatory capital-punishment practices of the Seventeenth, 
Eighteenth and Nineteenth Centuries is exceedingly far-fetched.

(3) The provisions that are now sections 
571 and 3901 were introduced in the 
Delaware Legislature of 1961 as 
"separate bills" (State Br. 32), and 
the one containing § 571 was "approved 
by the Senate and forwarded to the 
House" before the Senate commenced 
consideration of the one containing 
§ 3901 (State Br. 33).

These two points are all that the State can find in the 
1961 legislative history of sections 571 and 3901 to support 
the claim of their severability.— ^ It ignores the facts that 
the two separate bills (a) were both introduced by the same

10/ The State's conclusory assertion that the separate bills 
"were considered separately in both houses" (State Br. 32), is 
simply not true. Both houses considered the two bills separately 
at the early stages of the legislative process (prior to July 19, 
1961), and together thereafter. See the chronology in Appendix C 
to the State's Opening Brief. It should be noted that Appendix 
C disguises the joint progress of the two bills by a significant 
omission. It records entries of essentially identical legis­
lative action on S.B. 192 (containing § 571) and S.B. 215 
(containing § 3901) on the dates of July 19, December 4,
December 15, and December 18, 1961. But, in the history of 
S.B. 192 there appears an entry for December 5, 1961 —  "Senate 
motion for public hearing defeated - bill passed 12-2 (3 absent)" —  
which, as the State sets the history out, has no parallel for S.B. 
215. We assume this is an inadvertent omission. For the fact 
is that Senator DuPont's December 5 motion for a public hearing 
was on both bills (see Del. Legislative Journal (Senate), December 5, 
1961, p. 430: "Mr. DuPont moved that a public hearing be held on 
S.B. 192 and S.B. 215"); the bills were in fact being considered 
together at that time, although only S.B. 192 was technically 
before the Senate since only it had been amended in the House.



15

sponsor, Senator Spicer; (b) passed the Senate by essentially 
indistinguishable votes (one 12-3, with 2 absent; the other 
12-4, with 1 absent); (c) went through the House Judiciary 
Committee two weeks apart; (d) passed the House on the same 
day; (e) were the joint subject of a motion for a hearing in 
the Senate, upon consideration of a House amendment to one of 
the bills (see note 10, supra); (f) passed the Senate over
the Governor's veto on the same day, by essentially indistinguish­
able votes (one 13-1, with 3 absent; the other 12-3, with 2 
absent); and (g) passed the House over the Governor's veto on 
the same day, by essentially indistinguishable votes (one 21-14; 
the other 21-12, with two absent). In this context, to attach 
significance to the fact that sections 571 and 3901 originated in 
two separate bills, separately considered by the House before first 
going over to the Senate, is incomprehensible.

More important, and astonishingly, the State's Opening Brief 
fails to discuss the contents of the two "separate” bills, which is 
the clearest indicator of legislative purpose that can be drawn 
from the generally scanty legislative history. Present section 
571 (the provision punishing murder with death) originated as 
S.B. 192 and was enacted as Chapter 310 of the 1961 Session.
([1961] Del. Laws 803.) Section 3901 (the provision conferring 
discretion to sentence to life imprisonment instead of death) 
originated as S.B. 215 and was enacted as Chapter 309. ([1961] Del.



16

Laws 801 .) Chapter 310 had two principal sections: section 2,
enacting the death penalty for first degree murder by replacing 
tit. 11, § 571 with a new section calling for that penalty; and 
section 1, which amended Delaware's 1958 abolition law (Del.
Code Ann., tit. 11, § 107 (1970 Cum. Pocket Part)) to accommodate 
capital punishment for first degree murder. Chapter 309 had three 
sections: section 1, providing that capital punishment should be 
discretionary (now tit. 11, § 3901); section 2, providing in 
detail for the means of inflicting capital punishment (now Del.
Code Ann., tit. 11, § 3909 (1970 Cum. Pocket Part)); and section 3, 
providing for the time of inflicting capital punishment and 
authorizing gubernatorial suspension of the date (now Del. Code 
Ann., tit. 11, § 3910 (1970 Cum. Pocket Part)). Thus, it was 
the chapter enacting the discretion provision of S 3901, not the 
chapter providing the death penalty for first degree murder (S 571), 
which contained all of the implementing regulations regarding when 
and how the persons sentenced to die should actually be put to 
death. No clearer indication could be found, we think, that 
the capital punishment legislation simultaneously enacted in 
1961 was a package; nor could there be a more forceful demon­
stration that the State's "separate bill" theory is completely hollow.

11/

11/ A third section dealt with the applicability of the 
statute to offenses previously committed.



17

(4) Sections 571 and 3901 are mechani­
cally severable, section 571 being 
"complete and whole unto itself."
(State Br. 27.)

This is the thrust of pages 33-36 of the State's Opening
Brief, which, although they advert to the law of severability
generally, focus primarily upon mechanical severability. What
these pages overlook is that mechanical severability —  the
"completeness" of separate provisions —  is a necessary but
not sufficient condition of legal severability. The
ultimate question of legal severability is "basically one of
legislative intent." Abrahams v. Superior Court, 11 Terry 394,
131 A.2d 662, 672 (Del. Sup. Ct. 1957).— /

" . . .  [W]here a part of a statute 
found to be unconstitutional is so connected 
with other parts as to make them mutually 
dependent upon each other as conditions, 
considerations or compensations for each 
other, in such a manner as to justify the 
belief that the Legislature intended them 
as a whole, they stand or fall together."
(State ex rel. James v. Schorr, 6 Terry 18,
65 A.2d 810, 822 (Del. Sup. Ct. 1949).)

Here, sections 571 and 3091 are connected with each other in 
precisely this fashion —  a point to which we now turn.

12/ E.£. , Reese v. Hartnett, 6 Terry 448, 75 A.2d 266 (Del. Sup 
Ct. 1950); Becker v. State, 7 W.W. Harr. 454, 185 Atl. 92 (Del. 
Super. 1936).
13/ Legislative intent has been the touchstone, in this State, 
of decisions concluding that legislative provisions either are 
not severable, e.£., State ex rel. James v. Schorr, 6 Terry 18, 
65 A.2d 810 (Del. Sup. Ct. 1949); Coleman v. Rhodes, 5 W.W. Harr 
120, 159 Atl. 649 (Del. Super. 1932), or are severable, e.£. , 
State ex rel. Morford v. Tatnal1, 2 Terry 273, 21 A.2d 185 (Del. 
Sup. Ct. 1941); Discount & Credit Corp. v. Ehrlich, 7 W.W. Harr. 
561, 187 Atl. 591 (Del. Super. 1936).



18

C. The Non-Severability of 
Sections 571 and 3901

Several considerations compel the conclusion that the 
discretionary death-sentencing scheme enacted by the Delaware 
Legislature in 1961 is an integrated, coherent whole, and that 
the provisions of section 3901 cannot be cut out of it without 
destroying the whole.

(1) Structurally and functionally, sections 571 and 3901 dove­
tail as pieces of a single statutory design. We have previously 
pointed out (pp. 12-13, supra) that all of the regulations 
governing the actual execution of a death sentence (tit. 11,
§§ 3909, 3910) were enacted by the bill containing what the 
State now calls the "discretionary mercy provision" of section 
3901 (State Br. 26), whereas the "separate bill" containing 
what the State now calls "the restoration of the mandatory 
death penalty" (State Br. 33) had no such provisions. If, as 
the State suggests, sections 571 and 3901 are severable be­
cause they were the product of "separate bills" (State Br.
32, 33), the same is not true of sections 3901 and 3909 —  with 
the result that Delaware may mandatorily sentence men to die 
but may not kill them. The State's latter-day logic leads to 
such implausible consequences because, having been invented only 
in the wake of Furman, it totally ignores what the Legislature
intended to do in 1961.



19
What the Legislature did intend to do is not obscure.

It did not have "'two or more objects'" in view, Major, etc., 
of Wilmington v. Ewing, 2 Pen. 66, 43 Atl. 305, 309 (Del.Sup.Ct.
1899); State Br. 34, but only one. That one was to enact a dis­
cretionary death penalty for first degree murder.

The Legislature did not and could not, in 1961, intend 
a "restoration of the mandatory death penalty" (State Br. 33) 
following abolition. There was no mandatory death penalty to restore. 
Delaware had abandoned the mandatory death penalty forty-four years 
earlier, in 1917; and nothing expressed by the Legislature in 
1961 indicates any intention to revert to it. To the contrary, 
the 1961 Legislature quite calculatedly enacted a discretionary 
death penalty.

(2) The State's argument, therefore, boils down to 
the proposition that a Legislature which wanted and explicitly 
chose a discretionary form of capital punishment would have 
wanted mandatory capital punishment if it had known that it 
could not get the discretionary form. A sufficient answer to 
that proposition is that it is sheer speculation; and that for 
a court to create the gravest form of criminal liability known 
to our society -- the most extreme punishment of which Man is 
capable —  on the basis of speculation and without a persuasive 
expression of legislative intent, would offend principles



20

deeply rooted in the jurisprudence of this State.. But 
there are further answers to the State's argument, if any fur­
ther answer is needed.

(3) First, mandatory and discretionary capital punish­
ment are very different institutions, involving very different 
policies and implying very different legislative choices.
Mandatory capital punishment precludes all consideration of 
individualization in sentencing and thus runs counter to the 
modern philosophy of individualized sentencing which discretionary 
capital punishment —  together with every other development of 
Twentieth century American correctional law -- embodies.

Mandatory capital sentencing not only ignores differences 
among offenders, but also differences in the heinousness of 
various crimes falling within the first degree murder category; it 
ordains death for all; while the very rationale of discretionary 
capital sentencing is to reserve death for the most serious.
To put the matter another way, the legislative choice of dis­
cretionary capital sentencing for first degree murder is
14/ The time-honored doctrine of strict construction of penal 
statutes, see, e.g., Elliott v. Richards, 1 Del. Cas. 87,88 (Del. 
Comm. Pis. 1796); Hall v. State, 4 Har. 132, 141-142 (Del. Ct. App.
6 Err. 1844); State v. Goldenberg, 7 Boyce 458, 108 Atl. 137, 138 
(Del. Ct. Gen. Sess. 1919); State v. Campbell, 2 Terry 342, 22 A.2d 
390, 391 (Del. Ct. Gen. Sess. 1941) (dictum); Tollin v. State, 7 Terry 
120, 78 A.2d 810, 813 (Del. Gen. Sess. 1951); State v. Pierson,
7 Terry 558, 86 A.2d 559, 561 (Del. Super. 1952); State v. Chase,
11 Terry 383, 131 A.2d 178, 180 (Del. Super. 1957), and the con­
verse doctrine of liberal construction of "provisions of criminal 
statutes designed to protect or grant rights to those accused of 
crimes," State v. Campbell, 5 Storey 196, 190 A.2d 610,611 (Del. 
Super. 1963); see also State v. Johnson, 4 Terry 294, 46 A.2d 641,
642 (Del. Ct. Gen. Sess. 1946), are both rooted in judicial re­
luctance to extend criminal liability without a clear legislative 
mandate. So, also, is the doctrine against multiplying offenses.
E.g., State v. Turner. 3 Storey 305, 168 A.2d 539 (Del.Sup.Ct. 1961). Of course, these principles are not mechanical formulas, Angelini v.(continued)

14/



21
precisely a choice that some first degree murderers shall not 
be sentenced to death; but the enactment of mandatory capital 
sentencing is a choice that they shall.

Mandatory capital sentencing leaves no room for judges or 
juries to mitigate the penalty fixed by law, upon consideration 
of the acceptability of that penalty depending on the time, 
locality and circumstances; whereas discretionary capital sen­
tencing allows judges and juries to "'maintain a link between 
contemporary community values and the penal system . . .,'"
McGautha v. California, 402 U.S. 183, 202 (1971).

Finally, mandatory capital sentencing poses in its most 
extreme form "the problem of jury nullification," id., at 199, 
which it was one of the prime historical purposes of discretionary 
capital sentencing to avoid.

We do not make these points in order to justify discretion­
ary capital sentencing, of course, for we believe -- as the 
Supreme Court of the United States has held —  that its 
constitutional vices far outweigh its pragmatic virtues. Our 
point simply is that its vices and its virtues differ markedly 
from those of mandatory capital sentencing, so that the legis­
lative choice of one does not rationally imply the least desire 
to have the other. A Legislature which has chosen the discre­
tionary form of capital punishment precisely because it may 
14/ (continued)
Court of Common Pleas, ___ Del. ___, 205 A.2d 174, 176 (Del.
Sup. Ct. 1964); but they are expressions of an enduring, funda­
mental policy that would be wholly meaningless if the most ex­
treme of criminal penalties could be imposed, as the State urges in this case, with no color of legislative approval.



22

be selectively applied from case to case does not thereby 
signify acceptance of —  still less, desire for —  capital 
punishment applied in a blanket fashion without selectivity.

(4) Second, the whole history of the death penalty 
in this country in this Century weighs heavily against the 
conclusion that the Delaware Legislature would have intended, 
in 1961, to make death a mandatory punishment for first degree 
murder. That history —  shown graphically in the chart on the 
following page -- can be summed up shortly as a progressive, 
accelerating, nation-wide and finally universal repudiation of 
mandatory death sentences for first degree murder. So far had 
this trend progressed by 1961, that, if the Delaware Legis­
lature had enacted a mandatory death penalty for first degree
murder in that year, it would have joined New York as the only

15/two States in the Nation to have such a penalty.—  (Four
years later, New York abolished the last American mandatory
death penalty for first degree murder, and at the same time
limited even discretionary capital punishment to murders of
policemen in the line of duty and killings by life-sentenced 

16/
prisoners. )

15/ The District of Columbia also provided the mandatory 
death penalty for first degree murder in 1961, although it 
changed to a discretionary death penalty in 1962. See Pub. 
Law 87-423, § 1, 76 Stat. 46 (1962).
16/ See the New York statute cited in Appendix A, p. A-3, 
infra.



ABOLITION OF MANDATORY CAPITAL PUNISHMENT

ro

Number of States employing mandatory and 
discretionary capital punishment for the 

crime of murder, by year*

* The sources for this chart are found in Appendix A, pp. A-l to A-5, infra.



24
No reason appears to suppose that the 1961 Legislature

intended what, at that date, would have been the grossest of
historical throw-backs. Delaware had replaced mandatory with

17/
discretionary capital sentencing in 1917, long before its
"three year experiment in abolition" (State Br. 31) in the late
1950's. With one Nineteenth Century exception, every American
State that has ever had an "experiment in abolition" and then
reinstated the death penalty, has reinstated it in discretionary 18/
form. No State has ever substituted discretionary for man­
datory capital punishment and later abolished capital punish-

19/
ment, only to reinstate it in mandatory form. Yet the

17/ See the Delaware statute cited in Appendix A, p. A-l, infra.
18/ Ten States have abolished the death penalty for murder and 
then, after varying periods, reinstated it in discretionary form. 
They are Arizona, Colorado, Delaware, Iowa, Kansas, Missouri, 
Oregon, South Dakota, Tennessee, and Washington. See statutes 
cited in note 19 and in Appendix A, infra. The only State ever 
to reinstate capital punishment in mandatory form after a period 
of abolition was Maine, which first abolished in 1876 (ch. 114,
§ 1, [1876] Me. Acts 81) and then reinstated in 1883 (ch. 205, S 1, 
[1883] Me. Acts 169). Maine's experience came, of course, be­
fore the massive Twentieth Century movement to replace mandatory 
with discretionary death penalty statutes (see chart on preceding 
page); and the State of Maine itself had re-abolished capital 
punishment for good prior to the advent of the Century. See the 
Maine statute cited in Appendix A, p. A-2, infra.
19/ Other than Delaware, four States -- Arizona, Missouri,
South Dakota, and Washington —  have undergone periods of 
abolition after an earlier adoption of discretionary capital 
sentencing. When each reinstated the death penalty following 
abolition, it did so in discretionary form. The statutes by

(continued)



25

State asks this Court to suppose that the 1961 Delaware 
Legislature intended such an inexplicable, unprecedented 
and bizarre course of action —  without the slightest evidence 
of any intent of the sort upon the Legislature's part.

19/ (continued)
which each of these States first adopted discretionary capital 
punishment are set forth in Appendix A, infra. The subsequent 
statutes abolishing and then reinstating capital punishment in 
each state are:

State Abolition Reinstatement
Arizona Initiative Measure, 

Ariz. Laws 4.
[1916] Initiative Measure, 

[1919] Ariz. Laws 17
Delaware Ch. 347, § 1, [1957] Del. Chs. 309, S 1, 310,

Laws 742 [eff. 1958] • [1961] Del. Laws 801 
803.

Missouri [1917] Mo. Laws 246. [1919] Mo. Laws 778.
South Dakota Ch. 158, § 1, [1915] 

Laws 335.
S.D. Ch. 30, S 1, [1939] 

S.D. Laws 4 0.
Washington Ch. 167, § 1, [1913] 

Laws 581.
Wash. Ch. 112, S 1, [1919] 

Wash. Laws 273.



26

(5) The issue of severability presented to 
this Court is not an unique one, but rather an exemplification 
of a problem that several courts have recently resolved. The 
problem is: When a criminal statute authorizing the death
penalty is qualified by a provision directing the method in 
which persons convicted of the crime shall be selected to die, 
and the selective provision is federally unconstitutional, does 
the death penalty fall or is it to be broadened by excision of 
the unconstitutional selective provision? The answer which 
the courts have given —  not surprisingly, in view of the uni­
versal judicial reluctance to extend penal liability without a

20/
clear legislative mandate —  is plain: the death penalty falls.

This was the result in Spillers v. State, 84 Nev. 23, 436 
P.2d 18 (1968), involving a Nevada statute which authorized the 
death penalty for aggravated rape but provided that it could only 
be inflicted by a jury. The latter provision was held uncon­
stitutional as an undue burden upon the right to jury trial and 
an undue inducement to waive jury trial or to plead guilty. The

20/ The doctrine of strict construction of penal statutes is, of 
course, not a feature only of Delaware law (see note 14, supra). 
It is deeply rooted in the traditions of Anglo-American criminal 
justice. See, e.g., 1 BLACKSTONE, COMMENTARIES ON THE LAWS OF 
ENGLAND (1st ed. 1765), 88; 1 BRILL, CYCLOPEDIA OF CRIMINAL LAW 
(1922), 141-143; 1 McLAIN, TREATISE ON THE CRIMINAL LAW (1897), 
70-71; 1 WHARTON, TREATISE ON CRIMINAL LAW (10th ed. 1896), 38.



27
solution reached by the Nevada Supreme Court was not to 
authorize death sentences in bench trials and upon guilty pleas 
—  still less, to end the problem of an unconstitutional selec­
tion process by making the death penalty mandatory. It was to 
strike down the death penalty.

The Supreme Court of the United States had the same 
problem later in the same year, under the Federal Kidnaping Act. 
The kidnaping statute allowed capital punishment to be in­
flicted only in the discretion of the jury, a practice that the 
Supreme Court held unconstitutional for essentially the same 
reasons as the Nevada court in Spillers. United States v. 
Jackson, 390 U.S. 570 (1968). The Government offered a variety 
of solutions to the unconstitutional conjunction of the death 
penalty and jury discretion: (1) forbid defendants to plead
guilty or to waive jury trial; (2) empanel a jury to consider the 
death penalty even after guilty pleas or bench trials; (3) allow 
the trial judge to disregard a jury's death verdict. See 390 
U.S., at 573-581, 584-585. Only the third of these suggestions 
would have been at all inconsistent with the legislative history 
of the kidnaping act, but the Supreme Court rejected them all.
It held simply that, if the death penalty could not be imposed 
in the manner provided by Congress, it should not be imposed in 
a manner refashioned by the courts.



28

Subsequently, the Court came to the identical conclusion 
under the Federal Bank Robbery Act, although the legislative 
histories of the kidnaping and the bank robbery statutes were 
markedly different. Pope v. United States, 392 U.S. 651 (1968). 
Obviously, what the Court was saying in both Jackson and Pope 
was that liability to suffer death was so serious a matter that 
no judicial alterations of the legislated death-sentencing scheme 
should be allowed. If the legislature had chosen an unconstitu­
tional method for imposing death sentences, it was for the legis­
lature to reenact a constitutional method. Courts should not 
allow death to be inflicted in any manner that did not have the 
clearest and most unambiguous expression of specific legislative 
approval.

Jackson has since been applied in New Jersey to a statutory 
design that comes very close to the one now before this Court. 
Under New Jersey law, first degree murder was punishable by 
death or life imprisonment in the discretion of the jury.
N.J.S.A., § 2A:113-4 (1969). Defendants could not plead guilty 
to murder but could plead non vult; and, if the non vult plea 
were accepted by the court, the maximum sentence was to be 
life imprisonment. N.J.S.A. S 2A:113-3 (1969). It should be 
noted that the death penalty and the non vult provisions were
embodied in separate statutory sections, enactment of the second



29

long postdating the first. See State v. Forcella. 52 N.J.
263, 245 A.2d 181, 188-189 (1968). For this reason, the 
New Jersey Supreme Court said in dictum in Forcella that, if 
the non vult section were unconstitutional, it would be severed, 
so as to leave the death penalty provision standing, 245 A.2d, 
at 190—192; but it went on to hold that the non vult provision 
was not unconstitutional, 245 A.2d, at 184-190. The Supreme 
Court of the United States reversed per curiam, citing Jackson. 
Funicello v. New Jersey, 403 U.S. 948 (1971). Thereafter, the 
New Jersey Supreme Court changed its views on the severability 
question, and held that it was the death penalty statute, not the 
non vult statute, that must be stricken down. State v. Funicello, 
60 N.J. 60, 286 A.2d 55, 58-59 (1972).

The application of Jackson in South Carolina followed a 
slightly different course to the same conclusion. In State v. 
Harper, 251 S.C. 379, 162 S.E.2d 712 (1968), the South Carolina 
Supreme Court conceded that Jackson invalidated that State's 
provision fixing a maximum sentence of life imprisonment for 
defendants who pleaded guilty to a capital murder charge. It held, 
however, that the guilty plea provision was severable from the 
death penalty for murder, and that the death penalty stood.
Harper was followed in Thomas v. Leeke, ___ S.C. ___, 186 S.E.2d
516 (1970), which in turn was reversed by the Supreme Court on 
authority of Jackson. Thomas v. Leeke, 403 U.S. 948 (1971).



30

Thereafter, the South Carolina Supreme Court invalidated the
death penalty. Thomas v. Leeke, ___ S.C. ___, 186 S.E.2d 522 (1972)
State v. Cannon, ___ S.C. ___, 186 S.E.2d 413 (1972); State v.
Hamilton, ___ S.C. ___, 186 S.E.2d 419 (1972).

In each of these cases, then, a legislature had seen fit 
to provide for capital punishment and to designate that its 
imposition should be determined by a jury's discretion. Because 
the provision allowing for jury discretion was unconstitutional, 
each case held that the death penalty should not survive. In 
the present case, the Delaware Legislature has seen fit to pro­
vide for capital punishment and to designate that its imposition 
should be determined by the discretion of courts and juries.
Furman has held at the least that the provision for imposing 
death at the discretion of courts and juries is unconstitutional; 
a fortiori, the death penalty should not survive. Judicial sub­
stitution of a mandatory death penalty for the discretionary 
death penalty that the Delaware Legislature enacted would be a 
far greater distortion of the legislative scheme than any­
thing that was proposed -- and rejected —  as a means to save the 
death penalty in Spillers, Jackson, Pope, Funicello, and Thomas.



31

(6) This sort of post facto alteration of the 1961 
legislative scheme so as greatly to widen the net of capital 
punishment would violate not only established canons of judicial 
restraint in the creation of penal liability without a clear 
legislative mandate (see notes 14, 20, supra), but also the 
established principle against construing statutes in a manner 
which raises avoidable constitutional difficulties (see the 
cases cited on p. 4, supra). To turn the discretionary death 
penalty adopted by the legislature into a mandatory one would 
necessarily confront the Court with the Eighth Amendment ques­
tion reserved in Furman and strenuously argued at pp. 36-44 
of the State's Opening Brief: whether mandatory capital punish­
ment —  which has now been abandoned by every American juris­
diction for the crime of first degree murder —  is a cruel and 
unusual punishment. In this case, it would also raise a grave 
Due Process question, for there can be no doubt that if the 
Legislature itself attempted retroactively to change "a punish­
ment for murder of life imprisonment or death . . .  to death 
alone,” that change would fall afoul of the Ex Post Facto 
Clause, Article I, § 10, of the federal Constitution, Lindsey 
v. Washington, 301 U.S. 397, 401 (1937); and the Supreme 
Court of the United States has reasoned that "[i]f a state 
legislature is barred by the Ex Post Facto Clause from passing 
such a law, it must follow that a State Supreme Court is barred 
by the Due Process Clause from achieving precisely the same 

result by judicial construction." Bouie v. City of Columbia,



32

378 U.S. 347, 353-354 (1964). But there is simply no need for
this Court to enter into the troublesome constitutional con­
troversies that would attend the State's effort —  in the teeth 
of legislative history and reason —  to wrench section 571 from 
the context of its companion provisions. Those constitutional 
controversies can be avoided, and the Legislature's manifest 
intention can be honored, by recognizing that sections 571 and 
3901 are "so connected . . .  as to make them mutually dependent 
upon each other as conditions, considerations or compensations 
for each other . . . [and thereby] to justify the belief that 
the Legislature intended them as a whole." State ex rel. James 
v. Schorr, 6 Terry 18, 68 A.2d 810, 822 (Del. Sup. Ct. 1949).

IV. CONCLUSION

The first certified question should be answered in the 
affirmative. The second should be answered in the negative.

Dated: August 15, 1972

Respectfully submitted,

LOUIS L. REDDING
400 Farmers Bank Building Wilmington, Delaware 19801

Attorney for Amicus Curiae



APPENDIX A

SOURCES OF CHART ON PAGE 2Q

Dates and Statutes by Which the Several States 
Abandoned the Mandatory Death Penalty for the 

Crime of Murder

ALABAMA 1841 Penal Code, ch. 3, i 1, [1841] Ala. Acts 122.

ALASKA ABOLITIONIST Alaska has not had capital punishment during statehood. 
See ch. 56, S 1, [1957] Alas. Laws 53.

ARIZONA SINCE STATEHOOD Arizona has had only discretionary capital punishment during 
statehood. See Ariz. Rev. Stat., Penal Code, 5 173 (1913).

ARKANSAS 1915 Ch. 187, S 1, [1915] Ark. Acts 774.

CALIFORNIA 1927 Ch. 889, § 1, [1927] Cal. Stat. 1952.

COLORADO 1897 Colorado abolished capital punishment in 1897 by ch. 35, S 1 
[1897] Colo. Laws 135. Until that time it had mandatory 
capital punishment. Discretionary capital punishment was 
enacted in 1901 by ch. 64, § 2, [1901] Colo. Laws 153.

CONNECTICUT 1951 Ch. 417, $ 1406b, [1951] Supp. Conn. Acts 621.

DELAWARE 1917 Ch. 266, § 1, [1917] Del. Laws 856.

FLORIDA 1868 No. 13, ch. 8, § 8, [1868] Fla. Acts 107.

GEORGIA 1861 Ga. Code S 4220 (1861).
HAWAII ABOLITIONIST Hawaii has not had capital punishment during statehood. 

See Act 282, § 1, [1957] Hawaii Laws 314.

IDAHO 1911 Ch. 68, $ 1, [1911] Idaho Laws 190.



ILLINOIS 1867

INDIANA 1846

IOWA ABOLITIONIST

KANSAS 1907

KENTUCKY 1873

LOUISIANA 1855

MAINE ABOLITIONIST

MARYLAND 1908

MASSACHUSETTS 1951

MICHIGAN ABOLITIONIST

MINNESOTA ABOLITIONIST

MISSISSIPPI 1875

Ch. 26, S 1, [1846] Ind. Laws 40.

Iowa abolished capital punishment In 1872 by ch. 136, S 2, [1872] 
Iowa Acts 139. Until that time it had mandatory capital punish­
ment. Discretionary capital punishment was enacted in 1878 by 
ch. 165, $ 1, [1878] Iowa Acts 150. The death penalty was 
finally abolished entirely in 1965 by ch. 435, 5 1, [1965]
Iowa Acts 827.

Kansas abolished capital punishment in 1907 by ch. 188, § 1,
[1907] Kan. Laws 299. Until that time it had mandatory capital 
punishment. Discretionary capital punishment was enacted in 
1935 by ch. 154, $ 1, [1935] Kan. Laws 234.

Ky. Gen. Stat., ch. 29, art. 3, § 3 (1873).

No. 121, S 25, [1855] La. Acts 154.

Maine abolished capital punishment In 1887 by ch. 133, §2, [1887] Me. 
Acts 104. Until that time It had mandatory capital punishment.

Ch. 115, [1908] Md. Laws 84.

Ch. 203, [1951] Mass. Acts 160. The death penalty remains 
mandatory for rape-murder only.

Michigan abolished capital punishment in 1846 by Mich. Rev. Stat., 
ch. 153, § 1 (1846). Until that time it had mandatory capital 
punishment.

The change from mandatory to discretionary capital punishment 
was made in 1868 by ch. 138, § 3, [1868] Minn. Laws 130. The 
death penalty was abolished entirely in 1911 by ch. 387, § 1,
[1911] Minn. Laws 572.

Act In relation to capital punishment, f 1, [1867] 111. Laws 90.

Ch. 58, S 1, [1875] Miss. Laws 79.



MISSOURI 1907 [1907] Mo. Laws 235.

MONTANA 1907 Ch. 179, [1907] Mont. Laws 480.

NEBRASKA 1893 Ch. 44, ! 1, [1893] Neb. Laws 385.

NEVADA 1907 Ch. 93, [1907] Nev. Stat. 194.

NEW HAMPSHIRE 1903 Ch. 114, S 1, [1903] N. H. Laws 114.

NEW JERSEY 1916 Ch. 270, S 1, [1916] N.J. Laws 576.

NEW MEXICO NO DEATH PENALTY FOR 
FIRST DEGREE MURDER 
GENERALLY

The change from mandatory to discretionary capital punishment 
was made in 1939 by ch. 49, $ 1, [1939] N.M. Laws 105. In 1969 
the class of murders for which the death penalty is provided 
was narrowed to the murder of a police officer or prison guard, 
or commission of a second unrelated murder, by ch. 128, § 1, 
[1969] N.M. Laws 415. Capital punishment remains discretionary 
for these killings.

NEW YORK NO DEATH PENALTY FOR 
FIRST DEGREE MURDER 
GENERALLY

New York abolished capital punishment for common-law first 
degree murder in 1965 by ch. 321, 5 1, [1965] N.Y. Laws 1021. 
Until that time it had mandatory capital punishment. The 
1965 Act narrowed the class of murders for which the death 
penalty is provided to the murder of a police officer and 
homicide by a life-term prisoner. Capital punishment 
remains discretionary for these killings.

NORTH CAROLINA 1949 Ch. 299, S 1, [1949] N.C. Laws 262.

NORTH DAKOTA NO DEATH PENALTY FOR 
FIRST DEGREE MURDER 
GENERALLY

North Dakota has had only discretionary capital punishment 
during statehood. See Dakota Terr. Comp. Laws, § 6449 (1887). 
In 1915, the class of murders for which the death penalty is 
provided was narrowed to murder by a life-term prisoner in­
carcerated for murder, by ch. 63, §1, [1915] N.D. Laws 76. 
Capital punishment remains discretionary for these killings.

OHIO 1898 [1898] Ohio Acts 223.
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k i t 4



OKLAHOMA

OREGON

PENNSYLVANIA 

RHODE ISLAND

SOUTH CAROLINA 

SOUTH DAKOTA

TENNESSEE

TEXAS

UTAH

SINCE STATEHOOD

ABOLITIONIST

1925

NO DEATH PENALTY FOR 
FIRST DEGREE MURDER 
GENERALLY

1894

Oklahoma has had only discretionary capital punishment during 
statehood. See Okla. Gen. Stat., S 1651 (1908).

Oregon abolished capital punishment In 1915 by constitutional 
amendment, [1915] Ore. Laws 12. Until that time It had 
mandatory capital punishment. Discretionary capital punish­
ment was enacted in 1920 by ch. 19, 5 1, [1920] Ore. Laws 46.
The death penalty was finally abolished entirely in 1964 by 
Capital Punishment Bill, art. I, [1965] Ore. Laws 6 [eff. 1964].

No. 411, f 1, [1925] Pa. Laws 759.

Rhode Island abolished capital punishment in 1852 by [Jan. 1852] 
R. I. Acts 12. Until that time it had mandatory capital 
punishment. In 1872, it enacted mandatory capital punish­
ment for the narrow offense of murder by a life-term 
prisoner by R.I. Gen. Stat., Ch. 228, § 2 (1872). See 
R. I. Gen. Laws S 11-23-2 (1969).
No. 530, S 1, [1894] S.C. Acts 785.

SINCE STATEHOOD 

1915

1879

SINCE STATEHOOD

South Dakota has had only discretionary capital punishment 
during statehood. See Dakota Terr. Comp. Laws, 5 6449 (1887).

Tennessee abolished capital punishment in 1915 by ch.181, §1, [1915] 
Tenn. Acts, v.2, 5. Until that time it had mandatory capital 
punishment. Discretionary capital punishment was enacted in 
ch. 5, S 1, [1919] Tenn. Acts 28.

Texas changed from mandatory to discretionary capital punish­
ment on three different occasions. It first changed in 1857 
by Tex. Penal Code, art. 612a (1857). This was repealed by 
ch. 121, tit. 17, ch. 15, [1858] Tex. Laws 173. Tex. Const, 
art. 5, S 8 (1869), allowed discretion but was wholly super­
seded by Tex. Const. (1876), which contains no provision on 
the subject. The final change was made in 1879 by Tex. Rev.
Penal Code, art. 609 (1879).

Utah has had only discretionary capital punishment during 
statehood. See Utah Comp. Laws, v. 2f § 4455 (1888).

9 m f • A-4



VERMONT

VIRGINIA 

WASHINGTON 

WEST VIRGINIA

WISCONSIN

WYOMING

NO DEATH PENALTY FOR 
FIRST DEGREE MURDER 
GENERALLY

1914

1909

ABOLITIONIST

ABOLITIONIST

1915

Vermont twice changed from mandatory to discretionary capital 
punishment. It first changed in 1911 by No. 225, 5 1, [1910] 
Vt. Laws 236 [eff. 1911]. This act was repealed by No. 228,
§ 1, [1912] Vt. Laws 305 [eff 1913]. The final change was in 
1957 by No. 201, 5 1, [1957] Vt. Laws 160. In 1965, the class 
of murders for which the death penalty is provided was 
narrowed to murder of a police officer or prison guard or 
commission of a second unrelated murder, by No. 30, S 1,
[1965] Vt. Laws 28. Capital punishment remains discretionary 
for these killings.

Ch. 240, S 1, [1914] Va. Acts 419.
Ch. 249, $ 140, [1909] Wash. Laws 930.

The change from mandatory to discretionary capital punishment 
was made in 1868 by W. Va. Code, ch. 159, S 19 (1868). The 
death penalty was abolished entirely in 1965 by ch. 40, [1965] 
W. Va. Acts 205.

Wisconsin abolished capital punishment in 1853 by ch. 103, § 1, 
[1853] Wis. Acts 100. Until that time it had mandatory capital 
punishment.

Ch. 87, 5 1, [1915] Wyo. Laws 84.

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