Adams v. State

Concurring and Dissenting Opinion

DeBruler, J.

For the reasons set out hereafter in this opinion, I cannot vote to sustain the constitutionality of the death penalty. Death as a form of punishment is forbidden by both the Indiana and the United States Constitutions. The first part of this opinion deals with the claim that Art. 1, § 18 of the Indiana Constitution, requiring as it does that the penal code be based upon principles of reformation, prohibits the death penalty. The second part of this opinion deals with the claim that the death penalty is cruel and unusual and as *75 such is in violation of Art. 1, § 16 of the Indiana Constitution and the Eighth Amendment to the United States Constitution.

I.

Appellant claims that the penalty of death for first degree murder is unconstitutional as violative of Art. 1, § 18 of the Constitution of Indiana. This provision of the Indiana Bill of Eights is as follows:

“The penal code shall be founded on the principles of reformation, and not of vindictive justice.”

The first degree murder statute provides as follows:

“Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate a rape, arson, robbery, or burglary, kills any human being, is guilty of murder in the first degree, and on conviction shall suffer death or be imprisoned in the state prison during life.” I.C. 1971, 35-13-4-1, being Burns § 10-3401.

Whatever may be the case in other jurisdictions, in Indiana the Constitution explicitly sets out that at least one of the functions of punishment must be to reform the offender and that function is absolutely incompatible with the death penalty.

In spite of the obvious, clear meaning of § 18, this Court has in the past upheld the validity of the death penalty. Hawkins v. State (1941), 219 Ind. 116 , 37 N. E. 2d 79 ; McCutcheon v . State (1927), 199 Ind. 247 , 155 N. E. 544 ; Rice v. State (1855), 7 Ind. 332 ; Driskill v. State (1855), 7 Ind. 338 . The rationale of this position was set out in Driskill and Rice , and subsequent cases have added nothing to the discussion.

In Driskill , this Court said:

“In connection with this point, it is insisted that the law authorizing the death penalty is in conflict with section eighteen of the bill of rights, which requires the penal code to be founded on principles of reformation, and not of vindictive justice. The punishment of death for murder *76 in the first degree, is not, in our opinion, vindictive, but is even-handed justice. There is, indeed, nothing vindictive in our penal laws. The main object of all punishment is the protection of society. With that end in view, the legislature have, in a given case, left it within the discretion of the jury to say when the death penalty shall be inflicted. It is true, one branch of that discretion does not contemplate reform; still, it is the only instance in the law in which the purpose of reformation is not prominent, and it cannot, it seems to us, be allowed to give character to the principles upon which the entire code is founded. The eighteenth section of the bill of rights, when properly construed, requires the penal laws to be so framed as to protect society, and at the same time, as a system, to inculcate■ the principle of reform. In this view, the present code is, no doubt, founded on the principles of reformation, within the spirit and intent of the constitution. The law which allows the death penalty to be inflicted, must, therefore, be held valid.” (Emphasisadded.) 7 Ind. at 342, 343.

In Rice , this Court said:

“It is also decided in Driskill v. State, infra, that the death penalty is not in conflict with the 18th section of the first article of our constitution. If any question can be raised before the judiciary upon the discretion of the legislature under that section, we concur that it has not been abused in leaving the question of assessing that penalty to the jury. There are cases beyond the hope of reformation—criminals whose necks have become so hardened ‘that they should suddenly be cut off, and that without remedy.’ ” (Emphasis added.) 7 Ind. at 338.

In the above quotations the Court made several attempts to justify its conclusion that § 18 is no obstacle to the enactment of the death penalty provision by the Legislature. I believe the arguments fail to support that conclusion.

First, the Court stated boldly that the death penalty is not vindictive in nature but is “even-handed justice.” This has no determinable meaning. It might mean that the death penalty is an option which the sentencing authority may choose in all first degree murder cases. As such it is true but beside the point. It might mean that the death penalty *77 is not vindictive because it is the taking of the life of the offender who has himself taken a life. This would be the same as claiming that the “eye for an eye” philosophy is not vindictive, when in fact it is the epitome of vindictiveness and revengefulness. The exclusive use of the “eye for an eye” philosophy is precisely what is precluded by § 18. Whatever it might have meant to the judge who wrote it, this statement that the death penalty is even-handed justice is not an argument at all, and does not succeed in establishing that the death penalty is not vindictive.

Second, the Court said that the “main object of all punishment is the protection of society.” Although this is not stated in the Constitution and the Court does not indicate any constitutional basis for the claim, I assume it to be one of the basic objectives of the penal system. However, the need to protect society does not require the death penalty, and there is no reason to adopt this objective to the exclusion of the principle embodied in § 18. If possible we must try to give effect to both objectives of the criminal sanction. This is easily done because there is nothing in § 18 that is incompatible with the objective of protecting society. Section 18 merely precludes a, penalty which forecloses all possibility of reformation of the offender. Life imprisonment as a maximum penalty accomplishes both goals and there is no need to choose between them; but the death penalty defeats one of them, the only one specifically set out in the Constitution.

Third, the Court said the requirement that the “penal code” be founded on the principles of reformation did not apply to each and every criminal statute, but merely applies to the entire system, and one instance, where admittedly the penalty does not contemplate reform, does not make the whole system vindictive in violation of § 18. I see no reason to interpret § 18 in this way. The “penal code” is made up of each and every legislative enactment which defines a crime and provides a penalty for a violation thereof; it is the class of all criminal statutes and it is they which must be founded on principles *78 of reformation. The language of § 18 does not indicate any exceptions and the Court offers no valid reason to accept any. The fact recognized by the Court in DrisJcill, that the death penalty “is the only instance in the law in which the purpose of reformation is not prominent” does not support the argument that the death penalty is constitutional, but on the contrary clearly demonstrates that it is a lone anomaly among the penal laws and that it is at odds with the rest of the body of penal laws and that it is unconstitutional.

Fourth, the Court seemed to rely on the fact that the sentencing authority has the discretionary power in a first degree murder case to impose a penalty of life imprisonment rather than death if it so chooses. Presumably they thought that the existence of this power renders the penalty provision non-vindictive and in conformance with principles of reformation, and, therefore, not in violation of § 18. In my view the power of the sentencing authority to select life imprisonment rather than death does not render the penalty provision constitutional under § 18. The question is, when the death penalty is in fact chosen, is § 18 satisfied? Section 18 means that the sentence actually imposed must leave open the possibility of reformation of the offender. This is not satisfied by the existence of a potential sentence of life imprisonment.

Fifth, in the Rice case, the Court states its firm opinion that those offenders who had been assessed the death penalty were beyond any hope of reformation and, therefore, the principles of reformation did not need to be considered in a death case. I believe this position is erroneous for two reasons: (1) The concept of human nature implicit in § 18 is one which says that every man, no matter how depraved, has the possibility of redemption for his evil ways through a change of heart. Who are we to say any man’s heart is hardened beyond any hope of change? (2) There are no grounds for believing that those persons who receive the death penalty are in fact beyond hope of reformation since the sentencing authority is not required to find that the defendant is non-reformable *79 before assessing the death penalty. The Court is merely saying that the imposition of the death penalty is justified because the offender is non-reformable, and we know he is non-reformable because he has received the death penalty.

I would hold that the mandate of § 18 clearly prohibits the death penalty and that no Indiana case has even begun to offer a good counter argument to that position.

II.

Appellant next claims that the penalty of death is a cruel and unusual punishment and as such in violation of Art. 1, § 16 of the Indiana Constitution and the Eighth Amendment to the United States Constitution. (The Eighth Amendment is now applicable to the states, through the Fourteenth Amendment. Dembowski v. State (1968), 251 Ind. 250 , 240 N.E.2d 815 ; Robinson v. California (1962), 370 U.S. 660 , 82 S. Ct. 1417 , 8 L. Ed. 2d 758 .) Those constitutional provisions are as follows:

“Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishment shall not be inflicted. All penalties shall be proportioned to the nature of the offense.” Art. 1, § 16, Indiana Constitution.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Eighth Amendment to the United States Constitution.

A. STARE DECISIS.

There is only one case in Indiana which has dealt directly with this precise constitutional issue, McCutcheon v. State, supra. There this Court said:

“Appellant assigns as another reason why he should be granted a new trial ‘that the verdict of the jury inflicts cruel and excessive punishment.’ The provision 14, 15. of Art. 1, § 16, Indiana Constitution, § 68 Burns 1926, that ‘cruel and unusual punishment shall not be inflicted’ is not violated by a death penalty for murder. See Hobbs v. State (1893), 133 Ind. 404, 409 , 32 N. E. 1019 , 18 L. R. A. 774; Wilkerson v. Utah (1878), 99 U.S. 130 , 25 L. Ed. 345 . ‘It is absurd *80 to suppose that the constitution prohibits’ punishment by death for murder, State v. Tomassi (1908), 75 N. J. Law 739, 747, 69 Atl. 214 .” 199 Ind. at 260 .

The Court disposed of the claim in a summary fashion without offering any reasons for its conclusion and without coming to grips with the problems involved. The Court cited only one Indiana case and it did not involve the death penalty. In Hobbs, et al. v. State (1892), 133 Ind. 404 , 32 N. E. 1019 , the Court dealt with the issue whether the statute authorizing imprisonment of two to ten years for “riotous conspiracy” was invalid as providing for cruel and unusual punishment. Therefore, it was pure dicta when the Court stated that the death penalty was not cruel according to modern interpretation. The two non-Indiana cases, Wilkerson v. Utah (1878), 99 U. S. 130 , 25 L. Ed. 345 , and State v. Tomassi (1908), 75 N. J. Law 739, 69 Atl. 214 , were not binding authority on this Court in McCuteheon and in neither case was the court faced with the exact issue presented here. Those cases involved the issue of whether one specific mode of execution was cruel and unusual punishment and they did not have to agonize over the broader claim that the death penalty by any method was prohibited as a cruel and unusual punishment. The McCuteheon case does not therefore in my opinion have such precedential value and weight that would require me to follow it without reconsideration.

In addition, I would point out that the United States Supreme Court has never held that the death penalty per se is not prohibited by the Eighth Amendment. The case of In re Kemmler (1889), 136 U.S. 436 , 10 S. Ct. 930 , 34 L. Ed. 519 , relied on by the majority dealt with the same issue as Wükerson v. Utah, supra, namely whether a specific mode of execution was prohibited, and not whether death per se was prohibited by the Eighth Amendment.

Lastly, insofar as the highest courts of the other forty-one states with the death penalty may have declared that it does *81 not constitute cruel and unusual punishment, those decisions are not binding on this Court and have only whatever persuasive weight their reasoning merits. I have found, therefore, that the McCutcheon case, is the only case which could possibly serve to bind this Court as stare decisis, and as pointed out above, its reasoning is non existent and its supporting authorities are threadbare. It is the absence of a strong and binding precedent in support of the constitutionality of the death penalty that renders appellant’s claim reasonable from a legal standpoint, and justifies the serious consideration given it by this Court in this case.

B. GENERAL PRINCIPLES.

In deciding whether the death penalty is prohibited by the Eighth Amendment and Art. 1, § 16 of the Indiana Constitution, certain basic principles need be stated and reaffirmed. These basic propositions are not decisive of the issue before the Court, but serve well to place the judgment we make today into perspective. The first is that these provisions of the State and Federal Bill of Rights constitute a limitation upon all three branches of our State government in treatment of persons being punished. Cox v. State (1932), 203 Ind. 544 , 177 N. E. 898 . It is the infliction or the authorization to inflict “cruel and unusual punishment” that is prohibited, no matter what the source in government. It constitutes a limitation on the powers of judges and juries in assessing penalties. In Cox v. State, supra, this Court said:

“If it be granted that this court is required by the Constitution to give relief against a cruel and unusual punishment inflicted under a valid and constitutional law (or if it be granted that it would in an unusual case make an exception to the general rule heretofore announced), we would not disturb the judgment in the case at bar. We have heretofore set out briefly the facts of this case as established by the evidence offered (principally by the evidence offered in the appellee’s behalf).... Under that evidence we could not say that the imprisonment imposed was cruel and unusual for the crime proved.” 203 Ind. at 560 .

*82 In the above language, the Court revealed that it reviewed the acts of misconduct of the defendant constituting the crime and judged for itself whether the penalty assessed was cruel and unusual in the constitutional sense. This approach was recently re-affirmed by us in Hobbs v. State (1969), 253 Ind. 195 , 252 N. E. 2d 498 , quoting from Dembowski v. State, supra:

“ ‘There can be no question that a sentence may be excessive, even though within the maximum of the statute, but if excessive, it is within the power of the appellate court to enforce this provision of the Bill of Rights, and avoid the judgment so far as it is excessive.’ ” 252 N. E. 2d at 501 .

The application of the constitutional limitation to the exercise of the judicial function in assessing a punishment after conviction, is also supported by the cases of Shustrom v. State (1933), 205 Ind. 287 , 185 N. E. 438 ; Ralph v. Warden, 438 F. 2d 786 (4th Cir., 1970) ; and Workman v. Commonwealth (1968), 429 S. W. 2d 374 . I am also of the opinion that a court in the exercise of its power to punish for contempt would be limited by this provision of the Constitution.

The cruel and unusual punishment’s provision is a limitation upon the exercise of the legislative power within the state and prohibits the Legislature from authorizing sentences which are disproportionate to the harm sought to be prevented by the statute as well as excessively severe punishments. Shields v. State (1898), 149 Ind. 395 , 49 N. E. 351 ; Cox v. State, supra; Hobbs v. State (1969), supra; Dembowski v. State, supra.

The Eighth Amendment and Art. 1, § 16 likewise prohibit those who exercise the powers of the executive branch of State government from inflicting cruel and unusual punishments. Cox v. State, supra; Wilwording v. Swenson (C. A. 8, 1971), 9 Cr. L. 2059; Roberts v. Williams (C. A. 5, 1971), 9 Cr. L. 2052.

*83 Another basic principle here involved is that which assigns to this Court the duty to determine, when the issue is presented, whether a specific act of any of the three branches of government is prohibited by the State or Federal Constitution. Public Service Commission v. Indianapolis (1956), 235 Ind. 70 , 131 N. E. 2d 308 ; Thorpe v. King (1967), 248 Ind. 283 , 227 N. E. 2d 169 . In this case we are concerned with the constitutionality of an enactment of the Legislature and we approach this task with great caution and restraint. This attitude was well expressed in Weems v. U.S. (1910), 217 U.S. 349 , 30 S. Ct. 544 , 54 L. Ed. 793 , where the United States Supreme Court said:

“We disclaim the right to assert a judgment against that of the legislature, of the expediency of the laws, or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked. Then the legislative power is brought to the judgment of a power superior to it for the instant. And for the proper exercise of such power there must be a comprehension of all that the legislature did or could take into account,—that is, a consideration of the mischief and the remedy. However, there is a certain subordination of the judiciary to the legislature. The function of the legislature is primary, its exercise fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of its wisdom or propriety. They have no limitation, we repeat, but constitutional ones, and what those are the judiciary must judge.” 217 U.S. at 378, 379 .

With this in mind I now turn to the question of the meaning of the phrase “cruel and unusual punishment.”

C. MEANING.

1. “Evolving Standards of Decency.”

There is a uniformity of opinion about the meaning of “cruel and unusual punishments” in two regards: first, that the words “cruel” and “unusual” are difficult to define and it is *84 not clear what punishments fall within that class; and, second, that the provision constitutes a prohibition against the infliction of physical pain, mutilation of the human body and tortures of the type which characterized the period of the Spanish Inquisition. These two conclusions are given expression in Wilkerson V. Utah, swpra:

“Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments or torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.” 99 U.S. at 135,136 .

The commentator mentioned in that quotation was Blackstone, and the specific punishments he described were public dissection, burning alive, emboweling alive, beheading and quartering. Other forms of prohibited punishment of the sort uniformly condemned by the cases interpreting the Eighth Amendment include putting in the pillory, burning at the stake, breaking on the wheel, hanging in chains, castration, mutilation, crucifixion, lingering death, cutting off hands or ears, boiling in oil, use of the thumbscrew or boot and use of the whipping post. Hobbs v. State (1893), supra; Weems v. U.S., supra.

While there can be no denial of the proposition that the Eighth Amendment prohibits such punishment, courts have construed the Eighth Amendment to prohibit a broader range of punishments in various circumstances. In the well known case of Weems V. U.S., supra, the defendant was sentenced to twelve years at hard and painful labor in ankle and wrist chains. This term of imprisonment was to be followed by civil interdiction, perpetual absolute disqualification, and subjection to surveillance for life. The United States Supreme Court held the sentence to be constitutionally cruel and unusual. The most important aspect of this case is that this *85 sentence does not bear any resemblance to the medieval tortures thought prohibited by the Eighth Amendment up to the time of the case. See The Death Penalty, 83 Harv. L. R. 1773, at 1786. The sentence in the case was imprisonment with certain subsequent disabilities added. In describing this sentence, the court concludes:

“It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind.” 217 U.S. at 377 .

The latest United States Supreme Court decision concerning the prohibition against “cruel and unusual punishments” was Trop v. Dulles (1958), 356 U.S. 86 , 78 S. Ct. 590 , 2 L. Ed. 2d 630 . In that case the appellant was denied a passport under a provision of the Nationality Act of 1940, 8 U.S.C. 1481, which said that upon conviction for desertion from the armed forces and dishonorable discharge, the person was to suffer loss of citizenship. The court held that expatriation as a punishment was “cruel and unusual” punishment and as such was prohibited by the Eighth Amendment.

The significance of Trop, supra, lies in its basic approach to the problem of giving substance to the phrase “cruel and unusual punishment,” which was set out as follows:

“The Amendment must draw its meaning from the evolving standards of decency that marks the progress of a maturing society.” 356 U.S. at 101 .

The first thing to note about that basic approach is that this Court in making its decision on appellant’s claim that the death penalty is a cruel and unusual punishment need not limit itself to declaring only those specific punishments which were known to the framers of the State and Federal Constitutions and which were considered by them to be cruel and unusual, and which were intended by them to be prohibited by the insertion of the Eighth Amendment into the United *86 States Constitution and Art. 1, § 16 into the State Constitution. No such strict limitation on the judicial function does or should exist. An inquiry into the character of contemporary life in this country at the time of the adoption of our Constitutions, into the usages of particular words and the facts which were at hand at that time are always relevant in determining the proper application of these Constitutions today, but such inquiry can never alone suffice as a basis for disposing of a claim before this Court today. Equally important are intervening judicial interpretations, of the Constitution and the character of contemporary life and knowledge, reflected in them. The Weems court disclaimed the existence of any such strict limiting principle when it said:

“Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.” 217 U.S. at 373 .

The Weems case is clearly a holding that the Eighth Amendment does not merely prohibit medieval type physical torture, and clearly extends the Eighth Amendment to prohibit twelve years at hard and painful labor in ankle and wrist chains, both on the grounds of its extreme severity and on the grounds that it was disproportionate to the offense. This Court in the recent cases of Dembowski v. State, supra, and Hobbs v. State (1969), supra, adopted the more expanded view of the Eighth Amendment expressed in Weems .

The Trop majority determined that a “standard of decency” existed which condemned expatriation as a punishment for crime as “cruel and unusual punishment.” In so doing they relied upon a United Nations survey which showed that only two of eighty-four nations imposed expatration for desertion. Secondly, they considered the harmful effect of expatriation upon an individual human being. I would use this legal approach to determine whether or not there is a “standard of decency” existing in Indiana at this time which would con *87 demn the death penalty, per se, as a cruel and unusual punishment and thus prohibited by the Eighth Amendment to the United States Constitution and Art. 1, § 16 of the Indiana Constitution.

a. There are several indicia of a “standard of decency” which would render the death penalty cruel and unusual punishment in this State, which are of greater weight in my judgment than the United Nations survey relied on by the majority in Trop .

(1) The number of prisoners executed since 1930 is as follows:

Indiana Entire United States

1930-1939 31 1667

1940-1949 7 1284

1950-1959 2 717

1960 0 56

1961 0 42

1962 1 47

1963 0 21

1964 0 15

1965 0 7

1966 0 1

1967 0 2

1968 0 0

1969 0 0

1970 0 0

1971 0 0

National Prisoner Statistics, No. 45, August, 1969, Bureau of Prisons. These statistics indicate a dramatic decrease in the number of executions. I believe this has resulted from a growing reluctance on the part of the judiciary and the general community to sanction the execution of prisoners as punishment for criminal conduct. This reluctance has resulted in the de facto abolition of the death penalty since 1962 in Indiana, the date of our last execution. In the entire United States there has been a de facto abolition of the death penalty since 1967.

*88 (2) It appears that in 1966, approximately 47% of the American public opposed capital punishment for convicted murderers, while 42% favored it and 11% were undecided. In 1960, the comparable figures were 36% opposed, 51% in favor, and 13% undecided. Witherspoon v. Illinois (1968), 391 U.S. 510 , 88 S. Ct. 1770 , 20 L. Ed. 2d 776 .

(3) The jury in Indiana, hears all of the facts in first degree murder cases and upon conviction must choose between life imprisonment or death as the punishment. In making this choice, a jury reflects the broad community feelings regarding the use of the death penalty.

“a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.” 391 U.S. at 519 .

So it is with the judge when trial by court is held and a conviction results or a plea of guilty is received, and the choice becomes his. At the present time there are 154 men in Indiana prisons committed for first degree murder. Only 7 of those men are under sentence of death. In the period of 1966 to date 58 were committed to Indiana prisons for first degree murder and only three of those are under sentence of death. Therefore, the jury or judge, when faced with the necessity of choosing between life and death for the person convicted of first degree murder, has chosen life 95% of the time since 1966 and 96% of the time considering all men now committed for first degree murder.

(4) The General Assembly of this State in 1965 enacted the following statute:

“AN ACT to abolish capital punishment and prescribe in lieu thereof imprisonment during life.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF INDIANA:

“SECTION 1. Hereafter no person shall suffer death upon conviction of any public offense but in instances in which the penalty of death is now prescribed by statute *89 any person convicted thereunder shall be imprisoned during life, or imprisoned during life without eligibility for parole at any time.

SEC. 2. All laws and parts of laws in conflict with the provisions of this act are hereby repealed.

SEC. 3. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in full force and effect from and after its passage.”

The Governor of Indiana vetoed that enactment with the following message:

“Mr. Speaker and Members of the House of Representatives I return herewith, without approval, House Enrolled Act No. 1054. In my heart, I am opposed to taking the life of another. But, as Governor, I cannot, in good conscience, take the easy course of signing away this awful penalty unless it is the clear mandate of the people. They must have the opportunity, in an election where this is an issue, to determine whether the penalty, which we have had in our law since statehood, shall no longer be. Until the issue is decided no man’s life should be taken. I have sought the help of many people in reaching a conclusion, including governors of our state, but the decision is my own.” (Emphasis added.)

In spite of the veto and the fact that this statute did not become “law” it commanded the overwhelming support of the elected representatives of the people of Indiana and showed that the death penalty has ceased to have the support of the people. In that session of our General Assembly the State Senate passed the death penalty repealer by a vote of 35 to 4. The House of Representatives passed the death penalty repealer by a vote of 75 to 18. It constitutes a clear expression that the death penalty offends the “standards of decency” held by the people of this State.

(5) Statistics appearing in 39 N. Y. U. L. Rev. 136, 191 (1964), show that approximately one out of every three persons under sentence of death in this century in the United States received executive commutation. The significance of *90 these statistics is that after the defendant has been tried in a court of law, convicted, and has exhausted all avenues of appellate review including post-conviction remedies, the executive has felt the need to commute one-third of these cases.

(6) There are nine sister states and Puerto Rico and the Virgin Islands which do not provide for the death penalty for any crime. NPS # 45. In addition in Delaware, Massachusettes and North Dakota where the death penalty has been officially retained the last execution was held prior to 1950, in Montana prior to 1945, and in New Hampshire prior to 1940. President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Courts, p. 27.

(7) The National Commission in Reform of Federal Criminal Laws has recommended repeal of the death penalty. National Commission on Reform of Federal Criminal Laws, ch. 36. That commission was composed of federal judges and Congressmen, and was chaired by Edmund Brown, former Governor of California.

(8) There are twenty-three nations of the world which have abolished capital punishment. They are: Argentina, Australia (Queensland), Austria, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Federal Republic of Germany, Finland, Greenland, Iceland, Italy, Mexico (25 states out of 29), Norway, Netherlands, Netherlands Antilles, New Zealand, Portugal, Republic of San Marino, Sweden, Switzerland. United Nations pamphlet, Capital Punishment, 1962.

(9) Appellate courts have gone to great lengths to avoid affirming death cases. Judge Jackson in Stein v. New York (1953), 346 U.S. 156 , 73 S. Ct. 1077 , 97 L. Ed. 1522 , recognized this fact when he stated:

“When the penalty is death, we, like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance.” 346 U.S. at 196 .

*91 This same judicial attitude is contained in the following statement of Justice Harlan in Reid v. Covert (1957), 354 U.S. 1 , 77 S. Ct. 1222 , 1 L. Ed. 2d 1148 :

“So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial. . . . I do not concede that whatever process is ‘due’ an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case.” 354 U.S. at 77 .

These comments are a recognition of the “gut reaction” of judges to death as a form of punishment and reflect their absorption of an “evolving standard of decency.” The reluctance of review tribunals to affirm in a death case is clearly shown in Boykin v. Alabama (1969), 395 U.S. 238 , 89 S. Ct. 1709 , 23 L. Ed. 2d 274 . There the defendant plead guilty to robbery and was sentenced to death by an Alabama court. Defendant appealed alleging that the death penalty was a cruel and unusual punishment under the Eighth Amendment. The Alabama Supreme Court affirmed the conviction. The United States Supreme Court, in order to avoid deciding that issue, reversed the case on the ground that the record of the guilty plea proceedings was faulty, an error which the defendant had not even alleged in his brief. The following cases reflect similar judicial attitudes: Kallas v. State (1949), 227 Ind. 103 , 83 N. E. 2d 769 , and cases cited. State v. Laws (1968), 51 N. J. 494, 242 A. 2d 333 ; State v. Ramirez (1921), 34 Idaho 623 , 203 P. 279 , 29 A. L. R. 297; Davis v. State (1922), 155 Ark. 245 , 244 S. W. 750 ; Williams v. State (1931), 183 Ark. 870 , 39 S. W. 2d 295 ; Frady v. U.S. (D. C. Cir.), 121 U.S. App. D. C. 78, 348 F. 2d 84 , certiorari denied, 382 U.S. 909 , 86 S. Ct. 247 , 15 L. Ed. 2d 160 (1965); Coleman v. U.S. (1965), 123 U.S. App. D. C. 103, 357 F. 2d 563 ; Spillers v. State (1968), Nev., 436 P. 2d 18 ; cf. Hubka v. State (1928), *92 40 Okl. Cr. 161, 267 P. 864 ; Fritz v. State (1912), 8 Okl. Cr. 342, 128 P. 170 ; Commonwealth v. Garramone (1932), 307 Pa. 507 , 161 A. 733 , 89 A. L. R. 291. See also Austin v. U.S., 832 F.2d 129 (D. C. Cir., 1967).

The above factors are but a portion of the indicia available which reflect a growing abhorence of the death penalty and that a “standard of decency” exists in this State, indeed in this country which renders the imposition of the death penalty “cruel and unusual punishment” in violation of the State and Federal Constitutions.

b. The second basic approach used in Trop v. Dulles, supra, was to focus on the impact of the questioned punishment upon the individual being punished.

“We believe, as did Chief Judge Clark in the court below, that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.

“It subjects the individual to a fate of ever-increasing fear and distress.” 356 U.S. at 101,102 .

Justice Brennan concurring described the punishment of expatriation as follows:

“Expatriation . . . constitutes an especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment.” 78 U.S. at 110, 111.

*93 As to the pain and suffering attendant to the meting out of the death penalty, can there be any doubt that the “ever increasing fear and distress” suffered by the man awaiting the moment of execution is as great as that suffered by the expatriate? I would say, no. Is there any doubt that the “psychological hurt” suffered by a condemned man in the period of solitary confinement in the death house, between the time of the verdict and the time of execution, while hope still lingers, be any less than that suffered by an expatriate? I would say not. Is there any doubt that the condemned man does not suffer in the extreme, perhaps only for an instant, as the lethal charge of electricity being forced through the body stops the bodily functions to the point of death? I believe not. The death penalty would have at least as harmful effect on an individual human being as expatriation.

After applying the twin approach taken by the United State Supreme Court in the Trop case, I conclude that there is an “evolving standard of decency” in Indiana which standard condemns the death penalty as cruel and unusual punishment in the constitutional sense, as such in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and Art. 1, § 16 of the Indiana Constitution.

2. “Comparative Test.”

There is in my judgment a different and equally sound legal reason for declaring the death penalty unconstitutional as well. The original interpretation of “cruel and unusual” was that it applied to those punishments which involved an infliction of extreme physical pain, e.g., cutting off a member of the body or rendering a part of the body non-functional. Weems v. U.S., supra. It is reasonable to consider this concept of “cruel and unusual punishment” as the first attempt to define and describe a class of punishments which are prohibited by the Constitution. This class of punishments is prohibited and may not be utilized by society no matter how great the harm done to society by the offender. The Weems case then adds *94 to the class of prohibited punishments a sentence of fifteen years imprisonment at hard and painful labor in ankle and wrist chains with added disabilities. The Trop case added to the class the infliction of extreme psychological anxiety or distress. In my judgment, at this point, a class of punishments has been defined which by necessity must include the death punishment. In any of the punishments which have specifically been held to be per se cruel and unusual punishments, and which are constitutionally impermissible no matter the harm caused by the offender, would be chosen by every reasonable person in lieu of the death penalty in the exercise of free choice, such a universal choice, would in my judgment condemn the death penalty as unconstitutional. In my judgment every reasonable person, when faced with the choice, would choose the penalty condemned as unconstitutional in Weems and Trop instead of death. Every reasonable person would also choose some of the physical tortures rather than death. What is demonstrated by this argument is that some punishments prohibited by the Constitution are in fact deemed less severe and less cruel than the death penalty, and since the death penalty is more severe and more cruel, it too is in violation of that same Constitution. It is simply against reason to affirm on the one hand that society cannot cut off an offender’s hand, and that society cannot require a prisoner to wear ankle and wrist chains for fifteen years, and that society cannot expatriate an offender, and to contend on the other that society can strap a man in the electric chair and kill him by a lethal charge of electricity.

III.

Although I believe that appellant’s legal claim that the death penalty is unconstitutional can be disposed of solely upon the foregoing grounds, there is one final point which requires discussion. It is this: From a legal point of view, the death penalty cannot be considered solely as an abstract moral issue involving the justness of taking the life of one *95 who has taken life. Any consideration of the constitutionality of the death penalty demands a consideration of the legal system of which it is a part. When the executioner performs his function, it is the final step in a long and intricate legal process. An investigation has been made; a charge has been brought; defense attorney has been appointed; a trial has been held; an appeal has been taken. It is common knowledge that there are deficiencies in this legal machinery. The most important of these is lack of money.

I know as a judge of the Indiana Supreme Court, engaged in the review of transcripts of trials and appeal briefs that there are areas in Indiana today where the poor are receiving only perfunctory legal representation because of deficiencies in our system of defending the poor. There are too few public defenders. There are too few trial courts to handle the increasing caseload. Too little money is being provided the indigent defendant for investigation, witness fees, all of which is necessary to providing a decent defense. It is well documented that even when that machinery has done its job completely, miscarriages of justice occur. The innocent do get convicted. Frank & Frank, “Not Guilty”; Borchard, “Convicting the Innocent.” The risk of injustice is there, an ineradicable part of the exercise of human judgment. The Indiana case of Nancy Louise Botts serves to document this point. She was convicted of uttering forged checks and received a sentence of two to fourteen years in the Women’s Prison. While Nancy Botts was in prison the person who actually had committed the crime confessed and the Governor granted Nancy Botts a full pardon. She spent two years of her life in prison though she was in fact innocent and the victim of a gross miscarriage of justice.

The Franks in their book, “Not Guilty,” argue that the miscarriage of justice in the case of Nancy Botts was due in part to her poverty. She did not have funds to employ a handwriting expert who might have proved her innocence. Because of the stress of the trial and incarceration she suf *96 fered a miscarriage of her unborn child and in 1939 the Legislature awarded her $4,000.00 for her unjust conviction and confinement.

“Be it enacted by the General Assembly of the State of Indiana, That for the purpose of compensating the said Nancy Louise Botts for the injury she has sustained by reason of said unjust conviction and confinement for thirteen months in prison, there is hereby appropriated out of any money in the general fund of the state treasury not otherwise appropriated the sum of four thousand dollars, one thousand dollars cash and sixty dollars per month until the balance of three thousand dollars is paid, for the use and benefit of the said Nancy Louise Botts, and the treasurer of the state is hereby authorized to pay said amount to the said Nancy Louise Botts upon a warrant being issued therefor by the auditor of state. The money so appropriated is not made in payment of any claim for damages, but is provided solely out of humanitarian consideration for the wrong done to the said Nancy Louise Botts by citizens of the State of Indiana.” Acts 1939, ch. 144.

What form of statute could have been drafted to right the wrong done, had she been wrongfully convicted of murder and executed? The fact that the administration of criminal justice is deficient, and there exists a likelihood that the death penalty may be wrongfully inflicted, seriously militates against the legality of the death penalty.

IV.

Based on all of the foregoing arguments, I would hold that the provision of the first degree murder statute authorizing the death penalty, is void as in violation of the Eighth and Fourteenth Amendments to the United States Constitution and as in violation of Art. 1, §§ 16 and 18 of the Indiana Constitution and would remand this case to the trial court to expunge the sentence of death and to impose a sentence of life imprisonment.

I concur with the majority opinion wherein it disposes of all other allegations of error against appellant.