State v. Pierre

MAUGHAN, Justice

(concurring and dissenting):

With the conviction of the defendant, I concur. I concur with Mr. Justice Wilkins’ observation that the mitigating circumstances were “most minimal.” However, with the basic premise of his excellent opinion, viz., the death penalty is constitutionally firm, I disagree.

In assessing the constitutionality of the death penalty, the courts have been remiss in applying a valid principle, viz., the legislature in the exercise of the police power must comport with the constitutional standard of reasonableness. The police power connotes the conceptional limit of government encroachment upon societal and private interests.

A law, to constitute a reasonable and proper exercise of the police power, must be reasonably necessary in the interest of the health, safety, morals, or welfare of the people, viz., there must be an obvious and real connection between the provision of the police regulation and its avowed purpose. Furthermore, the means to accomplish the purpose must be appropriate and should not be unduly oppressive; for a police regulation should be no more drastic than is reasonable to accomplish the end for which the law was adopted. 1

The issue here is whether the legislature could have achieved its objective by a means less drastic than the death penalty.

. even though the governmental purpose be legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 2

The power to prescribe the penalty for the commission of a crime rests with the legislature for it is part of its sovereign power to maintain social order. Traditionally, the rule has been that subject to the constitutional prohibitions regarding excessive fines and cruel and unusual punishments, the legislature may prescribe any form of punishment it wishes for a criminal offense. 3

There is no rational reason why the principle of substantive due process 4 should not apply to criminal penalties. This principle demands the law to be not unreasonable, arbitrary, or capricious; and that the means selected shall have a real and substantial relation to the object sought to be attained. 5

In State v. Mason, 6 this Court stated:

in determining what is or what is not due process as it affects the ordinary rights which citizens of all orderly governments enjoy, we generally look to see whether the legislation which affects or trammels those rights is reasonably related to and designed to protect the health, safety, morals, or public welfare of the people or any portion of them. This balance between police powers and due process is, therefore, more or less in a state of unstable equilibrium, changing with sociological and economic developments. As the protection of the due process clause recedes, the police power *1358 advances. There is always articulation between the two. . . . 7

What is the purpose of punishment for violation of the criminal law?

. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 8

The purposes ascribed to the imposition of penalties are deterrence, reformation, and protection of society. 9 Obviously reformation is not an included purpose for the death penalty.

The death penalty is unique and irreversible. I cannot accept it as merely the severest sanction along the continuum of penalties, commencing with an infraction. The protection of society and deterrence can be achieved by means less drastic than the death penalty.

There have been many reliable studies made, which show the death penalty to be no deterrent. 10 The most recent study is described, by its author, Brian E. Forst, in the Minnesota Law Review, May 1977. 11 This study has been recognized as the most sophisticated and definitive to date. Mr. Forst concludes, “The results of this analysis suggest . . . that it is erroneous to view capital punishment as a means of reducing the homicide rate.” Indeed, Forst finds a deterrent in incarceration, but not in death.

Implicit in the history of our society is the concession that the death penalty is no deterrent, to further homicide or other crimes. The concession appears in the steady reduction of capital crimes from two hundred or more, in England shortly after 1800 to abolition in 1965. 12 On our own shores, the concession appears in the reduction from the twelve to sixteen capital offenses of The Massachusetts Body of Liberties and the 1650 Code of the Connecticut General Court, 13 (promulgated by the Puritan Fathers), to outright abolition, in some of our sister states.

In view of the fact, there is no demonstrable evidence the death penalty deters further homicides, the penalty itself is a departure from the avowed purpose of criminal sanctions.

It should be borne in mind that this argument over capital punishment is not new. It has flourished coextensively with the infliction of the penalty. Over this long period of time no reliable evidence of a deterrent effect for the capital sanction, has been developed.

Some 150 years ago, Edward Livingston, who had been engaged by the State of Louisiana to draw its penal code, was of the opinion capital punishment was no deterrent, and recommended against its adoption. He also observed that if society made the spectacle of the infliction of death common it would debase and brutalize the public sentiment, and if it were carried out infrequently it would convert the criminal into a martyr. 14

One hundred fifty years after that observation, I think we saw an affirmation of it, in the circumstances of the Gary Gilmore matter. The infliction of the penalty, in my view, infuses into the society more violence than it removes.

Livingston’s denunciation of the ultimate sanction was not the last. The abolition *1359 movement following him, including Lydia M. Child’s, Against Capital Punishment, of 1842, 15 has continued to the present day.

Twelve of our sister states have abolished capital punishment. Their names and dates of abolition are: Alaska (1957); Hawaii (1957); Iowa (1965); Maine (1887); Michigan (1847); Minnesota (1911); North Dakota (1915); Oregon (1964); Rhode Island (1852); Vermont (1965); West Virginia (1965); and Wisconsin (1853). 16

Numerous statistical studies have been made comparing contiguous states with similar populations, and comparable political, social and economic structures. Some of these states have lacked, some have retained capital punishment; but the homicide rates remain the same and have sustained trends over long periods of time; irrespective of the use or non-use of the capital sanction. 17 If it is deterrence we look for, we do not find it in the death penalty. Are we in Utah more in need of a death penalty than the citizens of the sister states mentioned above?

Although great discretion is conferred on the legislative body to determine what measures and means are reasonably necessary for the protection of the interests of the public, the reasonableness of the means selected must be judged within the context of the uniqueness of the penalty prescribed. The death penalty attains a degree of arbitrariness, because it has no real and substantial relation to the objects sought to be attained, viz., deterrence and protection of society. In contrast, there is no doubt life is an inherent and fundamental right. The only rationalization to support the power of the state to exact the death penalty is vengeance. Revenge is not a function of the law.

The legitimate and substantial purpose of the state to protect society and deter homicide can be achieved by restraint, a narrower means than obliteration of a human life. Therefore, the death penalty violates due process of law, as an arbitrary, unreasonable, and ineffectual method to achieve the desired purpose.

Were there some way to restore the bereaved and wounded survivors, and the victims, to what was once theirs; there could then be justification for the capital sanction. Sadly, such is not available to us.

. Sol Block & Griff v. Schwartz, 27 Utah 387, 405 , 76 P. 22 (1904); County of Spokane v. Valu-Mart, Inc., 69 Wash.2d 712 , 419 P.2d 993 (1966); State v. Cotton, 55 Haw. 148 , 516 P.2d 715 (1973); 16 Am.Jur.2d, Constitutional Law, Sec. 278, p. 540; Sec. 279, p. 541; Sec. 280, pp. 543-544.

. Shelton v. Tucker, 364 U.S. 479, 488 , 81 S.Ct. 247, 252 , 5 L.Ed.2d 231 (1960).

.21 Am.Jur.2d, Criminal Law, Sec. 590, p. 551.

. Article I, Sec. 7, Constitution of Utah, Fourteenth Amendment, United States Constitution.

. 16 Am.Jur.2d, Constitutional Law, Sec. 550, p. 947.

. 94 Utah 501, 514 , 78 P.2d 920, 925 , 117 A.L.R. 330 (1938).

. Also see Nasfell v. Ogden City, 122 Utah 344, 351 , 249 P.2d 507 (1952).

. Hopt v. Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1883).

. 21 Am.Jur.2d, Criminal Law, Sec. 576.

. H. A. Bedau, The Death Penalty in America, Ch. 6; Encyclopedia Britannica, 1964 ed., Vol. 4. d. 847.

. The Deterrent Effect of Capital Punishment: A Cross State Analysis of the 1960’s. Vol. 61, No. 5, p. 743.

. Bedau, supra, p. 2; CBS Almanac 1976.

. Annals of America, Vol. 1, pp. 167, 200.

. Annals of America, Vol. 5, p. 84.

. Annals of America, Vol. 7, p. 66.

. Of these states Rhode Island and Vermont retain the death penalty for first degree murder only in specifically restricted situations, viz., while in confinement (Rhode Island); for a second unrelated offense, prison personnel, law enforcement officer in performance of duty (Vermont). In Vermont the penalty may be death or life imprisonment. See: CBS Almanac 1976.

.Encyc. Brit., Note 10, supra.