Bartholomey v. State

*197

Barnes, J.,

dissenting:

I dissent because, after a careful review of the five opinions of the plurality justices in Furman v. Georgia, 408 U. S. 238 , 92 S. Ct. 2726 , 33 L.Ed.2d 346 (1972), I cannot find any holding by the Supreme Court of the United States which requires us to hold or to indicate that the Maryland statutes in regard to capital punishment are unconstitutional under any provisions of the Federal Constitution or which requires us to change, in any way, the death penalties imposed in Bartholomey v. State and in the companion cases referred to in the majority opinion.

I will begin with some general observations in regard to the duty of judges of the highest appellate court of a State to support and effectuate the provisions of the Constitution of the United States, on the one hand, and the Constitution and Laws of the State, on the other. Judges of this State take an oath upon their qualification as judges to support both Constitutions and this dual obligation to the dual sovereigns frequently poses a difficult dilemma. There is, of course, no doubt that where the Constitution and Laws of Maryland conflict with a provision of the Constitution of the United States, the provision of the latter controls a decision of this Court as the supreme law of the land, not only by virtue of the *198 Supremacy Clause in the Federal Constitution (Article VI) but also because Article 2 of the Declaration of Rights in the Maryland Constitution provides:

“The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.”

The critical question in cases involving an alleged conflict between the provisions of the Federal Constitution and the Constitution and Laws of this State is what has the Supreme Court of the United States held in that regard. For a holding by that Court, five justices must agree upon the proposition advanced as a holding and, until this occurs, this Court is under no obligation to follow indications or suggestions of a plurality of the Supreme Court or of any combination of the opinions of justices less than the required five. On the contrary, we are obligated to support and effectuate the Constitution and Laws of this State until there is a holding of the Supreme Court indicating an unconstitutional conflict with provisions of the Federal Constitution as interpreted by a five-justice majority of the Supreme Court. Prior to approximately forty years ago, the determination by State Courts of last resort of the holdings of the Supreme Court was not a difficult task. With the proliferation of opinions by individual justices, particularly in the last decade, it has become increasingly difficult if not impossible to interpret many cases. In my opinion, this Court is not required to guess at what five justices should or might have done in a particular case. The obligation to reach a binding holding is upon the Supreme Court and not upon the State Courts who surely are not required to anticipate or speculate upon what five justices *199 of the Supreme Court might or should agree upon in some other related factual situation. This would not only be futile, but would not exhibit a proper deference to the Supreme Court’s own theoretical ability to reach its own decisions.

I have considered the dilemma of a judge of this Court in this situation in my concurring opinion in Montgomery County Council v. Garrott, 243 Md. 634, 651-52 , 222 A. 2d 164, 173 (1966), in which I stated:

“The dilemma presented to a judge of the highest appellate court of a State arises from his oath to support and defend both the Constitution of the United States and the Constitution of his State. In view of the supremacy clause of the Constitution of the United States, it is clear that when the provisions of that document conflict with the provisions of the Constitution of a State, the former must control and further that the interpretation of the meaning of the provisions of the Constitution of the United States by the Supreme Court must be given effect by the judges of the State courts upon the principle of stare decisis — a principle of the essence of the judicial process. When, however, the Supreme Court itself in the first case construing a provision of the United States Constitution and in a number of decisions applying the principle established by that first case, has held that a provision of the United States Constitution does not apply to the States or does not present a justiciable issue because political in nature, and with a due regard for the provisions of the Ninth and Tenth Amendments, does the doctrine of stare decisis properly apply to decisions of the Supreme Court in which a bare majority of that Court, itself, declines to follow the doctrine of stare decisis ? I have reluctantly reached the conclusion that we are not free to refuse to apply the doctrine of stare decisis even though *200 the Supreme Court has departed from that doctrine. The remedy lies with the people and their representatives in Congress and not with us. This conclusion is a heavy burden and painful yoke which must be borne, but it need not be borne willingly and with silent submission. Indeed, as I have already indicated in my concurring opinion in the recent case of Truitt v. Board of Public Works, 243 Md. 375, 411 , 221 A. 2d 370, 392 (1966), I believe it to be the duty of appellate judges of the several States to point out, in all cases where relevant, their opinion of the errors of the Supreme Court and the unfortunate effects of these errors. In no case should these errors be extended by the State courts.”

In this setting, I now turn to the five opinions of Douglas, Brennan, Stewart, White and Marshall, JJ., in Fur-man. There were three cases presented for decision, i.e., Furman v. Georgia, involving a conviction and death sentence under the Georgia law; Jackson v. Georgia, involving a conviction for rape and the death sentence also under the Georgia law; and, Branch v. Texas, involving a conviction for rape and a death sentence under the law of Texas. Certiorari was granted, as pointed out by the per curiam statement before the opinions, limited to the following question:

“ ‘Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?’” 408 U. S. 239 , 92 S. Ct. 2727 , 33 L.Ed.2d 350 .

It will be further observed in the per curiam statement that the following appears:

“The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in viola *201 tion of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.”

(Emphasis supplied.)

408 U. S. 239 -40, 92 S. Ct. 2727 , 33 L.Ed.2d 350 .

The one clear thing in these cases is that the “holding” of the five justices concurring in the per curiam statement was that the imposition and carrying out of the death penalty was unconstitutional in the three cases, Furman, Jackson and Branch, involving only the laws of Georgia and Texas. The Maryland law in regard to the death penalty — unlike that of any other State as will be considered more fully later in this dissenting opin ion — was not involved or considered. The State of Maryland was not heard in regard to the validity or constitutionality of the Maryland law and the Supreme Court did not purport to pass upon its constitutional validity. Indeed, to attempt to make such a “holding” without briefs or argument on so vital and important a question would itself appear to be a denial of due process of law to the State, in the procedural sense, prohibited by the Fifth Amendment. However this may be, it is clear that in Furman (Jackson and Branch), the Supreme Court made no attempt to pass upon or invalidate the Maryland law in regard to capital punishment.

I will use Bartholomey v. State for the purposes of further analysis of the matters involved.

In Bartholomey, the Supreme Court, on June 29, 1972, passed the order referred to in the majority opinion, which vacated the judgment of this Court “insofar as it leaves undisturbed the death penalty imposed” and remanded the Bartholomey case to this Court “for further proceedings.” Added to this was the statement “see Stewart v. Massachusetts, 408 U. S. 845 (1972).” When one turns to Stewart v. Massachusetts, the order was:

“Per Curiam. The appellant in this case was sen *202 tenced to death. The imposition and carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U. S. 238 , 92 S. Ct. 2726 , 33 L.Ed.2d 346 (1972). The motion for leave to proceed in forma pauperis is granted. The judgment is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings.”

There is no suggestion that Bartholomey is controlled by Stewart . The designation is “see” Stewart. Our judgment in Bartholomey is not reversed, but was vacated insofar as the death sentence was concerned and remanded to us for further proceedings. I interpret this to mean that we are to reconsider the death penalty in Bartholomey with due consideration for the five opinions concurring in the per curiam statement in Furman . If this Court were not to consider the death penalty involved in the judgment in Bartholomey, that judgment would have been “reversed,” not “vacated.” A consideration of the opinions of the five concurring justices confirms this interpretation.

Only two of the five concurring opinions — those of Brennan and Marshall, JJ. — indicate that the death penalty, vel non, is unconstitutional as violative of the Eighth and Fourteenth Amendments. Three of the concurring opinions indicate that the imposition of the death penalty may be constitutional in certain circumstances. It follows from this division of opinion that each case must be evaluated to ascertain whether or not the imposition of capital punishment in that case was cruel and unusual punishment.

The opinion of Mr. Justice Douglas indicates to me that he does not condemn statutes providing for capital punishment, as such, but does condemn the discriminatory application of such statutes to blacks, the poor, the disadvantaged and other minority groups. Indeed, his opinion appears to be predicated upon the “privileges *203 and immunities” clause or the “due process” clause rather than upon the “cruel and unusual punishment” clause of the Eighth Amendment. He stated:

“Whether the Privileges and Immunities route is followed, or the due process route, the result is the same.”

408 U. S. at 241, 92 S. Ct. at 2728, 33 L.Ed.2d at 351.

Speaking of the “discretionary statutes” — presumably those of Georgia and Texas involved in the Furman, Jackson and Branch cases — he stated:

“Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.”

(Emphasis supplied.)

408 U. S. at 256-57, 92 S. Ct. at 2735, 33 L.Ed.2d at 359.

It is significant also that Mr. Justice Douglas reviewed the facts in each of the three cases before the Supreme Court, pointing out that Furman, Jackson and Branch were all blacks. He indicated further that the rape cases in which Jackson and Branch were involved were not particularly aggravated by physical violence and grave bodily harm to the victims and that at the time Furman murdered a householder by shooting through a closed door he was suffering from grave mental deficiency. Fur-man was diagnosed by the staff of the Georgia Central State Hospital as “not capable of cooperating with his counsel in the preparation of his defense.”

The Bartholomey case, however, is quite different. Bartholomey is white. He was convicted of the premeditated murder of the sheriff and deputy sheriff of Wicomico County in the course of an escape from the Wicomico County Jail in Salisbury where he was law *204 fully detained. A loaded handgun had been smuggled into the jail by a friend of Bartholomey and he shot the two law enforcement officers in cold blood in his successful escape. Bartholomey also attempted to murder Ralph L. Pusey, who was present at the jail. His case was removed for trial from Wicomico County to Charles County and was presided over by then Chief Judge Digges, now an Associate Judge of this Court. All of Bartholomey’s constitutional safeguards were afforded him. He was represented by able counsel who forcefully and competently defended him in the lower court and ably briefed and argued the case before us. Bartholomey was found to be sane by the jury under proper instructions and with adequate evidence to support its findings. There is no suggestion — and there can be none — that there was any discrimination against Bartholomey of any kind in the trial of his case and in the imposition of the death penalty. Indeed, the record indicated that Judge Digges, who imposed the death sentence, is personally of the opinion that it would be in the public interest if the General Assembly abolished the death penalty generally and most reluctantly believed it to be his duty, nevertheless, to impose the death penalty in Bartholomey’s case.

There was nothing in the records in Bartholomey and the companion cases which even suggests that there has been any discrimination in Maryland in the imposition of the death penalty of the type mentioned by Mr. Justice Douglas in Furman . 1 Indeed one of the last persons on whom a death sentence was actually executed was George Edward Grammer, a white man, found guilty of murder in the first degree of his wife by the Criminal Court of Baltimore, sitting without a jury. See Grammer v. State, 203 Md. 200 , 100 A. 2d 257 (1953), cert. denied, 347 U. S. 938 , 74 S. Ct. 634 , 98 L. Ed. 1088 (1954). In short, the Maryland statutes in regard to capital punishment are not “pregnant with discrimination” and there *205 has been no discrimination in the operation of those statutes.

It may be added that even in jurisdictions in which the Legislature has abolished the death penalty for practically all crimes, this penalty is continued for persons who murder law enforcement officers or who murder while confined in jails or penitentiaries. See New York Penal Code § 125.30 (1972 Cum. Supp.) ; North Dakota Century Code § 12-27-13 (1960) ; 3 General Laws of Rhode Island § 11-23-2 (1970) ; Vermont Stat. Ann. Tit. 13, § 2303 (b) (1972 Cum. Supp.).

Inasmuch as there is no discrimination of any kind either alleged or proved in Bartholomey’s case, as has already been stated, I can only conclude that the opinion of Mr. Justice Douglas indicates that his constitutional rights have not been denied. We should, then, adhere to our decision in that case — see Bartholomey v. State, 260 Md. 504 , 273 A. 2d 164 (1971) — and reaffirm our holding sustaining the imposition of the death penalty in that case.

One opinion of the five concurring justices does not require the action of the majority of this Court. Where then is there a holding of five justices of the Supreme Court?

I now turn to the concurring opinions of Stewart and White, JJ. I will consider the opinion of Mr. Justice White first because Mr. Justice Stewart appears to rest his opinion in part upon the concept of discrimination in application of the death penalty statutes of Georgia and Texas developed in the opinion of Mr. Justice Douglas and in part upon the infrequency and capriciousness of imposition of the death penalty in those two States set forth in the opinion of Mr. Justice White.

Like Mr. Justice Douglas, the concurring opinion of Mr. Justice White is grounded upon the Georgia and Texas death penalty statutes and the practices of those two States in the imposition of the death penalty under those statutes. This is clear from the first paragraph of the opinion of Mr. Justice White, which states:

*206 “The facial constitutionality of statutes requiring the imposition of the death penalty for the first degree murder, for more narrowly defined categories of murder or for rape would present quite different issues under the Eighth Amendment than are posed by the cases before us. In joining the Court’s judgment, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided.” 408 U. S. at 310-11, 92 S. Ct. at 2763, 33 L.Ed.2d at 390.

After observing that when the imposition of the death penalty ceases to realistically further the social ends it was deemed to serve, its imposition would violate the Eighth Amendment, he states:

“It is also my judgment that this point has been reached with respect to capital punishment as it is presently administered under the statutes involved in these cases. Concededly, it is difficult to prove as a general proposition that capital punishment, however administered, more effectively serves the ends of the criminal law than does imprisonment. But however that may be, I cannot avoid the conclusion that as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.” (Emphasis supplied.) 408 U. S. at 312-313, 92 S. Ct. at 2764, 33 L.Ed.2d at 392.

Mr. Justice White concludes that:

“The short of it is that the policy of vesting sentencing authority primarily in juries — a decision *207 largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence — has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.” (Emphasis supplied.)

408 U. S. at 313, 92 S. Ct. at 2764, 33 L.Ed.2d at 392.

As will be indicated later, neither the Maryland statutes in regard to the death penalty nor the imposition of death sentences under them come within the purview of the observations in Mr. Justice White’s opinion.

The concurring opinion of Mr. Justice Stewart is also grounded upon the Georgia and Texas statutes and the three cases before the Supreme Court. He states:

“The constitutionality of capital punishment in the abstract is not, however, before us in these cases. For the Georgia and Texas legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape. And the Georgia Legislature has not ordained that death shall be the automatic punishment for murder. In a word, neither State has made a legislative determination that forcible rape and murder can be deterred only by imposing the penalty of death upon all who perpetrate those offenses. As Mr. Justice White so tellingly puts it, the ‘legislative will is not frustrated if the penalty is never imposed.’ ”

408 U. S. at 308-309, 92 S. Ct. at 2761-62, 33 L.Ed.2d at 389.

It is somewhat refreshing that Mr. Justice Stewart, on the subject of deterrence of some serious crimes by providing for imposition and execution of the death penalty, admits:

“. . . I would say only that I cannot agree *208 that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.”

408 U. S. at 308, 92 S. Ct. at 2761, 33 L.Ed.2d at 389.

He approaches the discrimination concept of Mr. Justice Douglas when he concludes:

“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U. S. 184 , 85 S. Ct. 283 , 13 L.Ed.2d 222 . But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

408 U. S. at 309-10, 92 S. Ct. at 2762-63, 33 L.Ed.2d at 390.

*209 Several relevant considerations emerge from the concurring opinions of White and Stewart, JJ. One is that their opinions are specifically confined to a consideration of the Georgia and Texas statutes and cases and do not have application to other different State statutes and practices. Secondly, they indicate that if in a particular jurisdiction the imposition of the death penalty is so infrequent as to have no meaningful impact as a deterrent or otherwise further the State policy underlying the imposition of the death penalty, then the imposition of the death penalty will be “cruel and unusual punishment” under the Eighth Amendment. Thirdly, they indicate that if the imposition of the death penalty by juries is wantonly and freakishly imposed under State statutes then such imposition will be considered to be cruel and unusual punishment prohibited by the Eighth Amendment.

Not only were the Maryland statutes in regard to capital punishment and the Maryland practice under those statutes not considered by White and Stewart, JJ., but, as later pointed out, the grounds on which they concurred in regard to the Georgia and Texas practices under the statutes of those States are not applicable in Maryland.

By this distillation, one finally sees that the opinions of only two concurring justices — Brennan and Marshall, JJ. — can be thought possibly to require the action of the majority in this case. The “tail wags the dog” here beyond peradventure.

It was argued before us that the opinions of White and Stewart, JJ., basically rest upon the proposition that all statutes providing for capital punishment must make such punishment mandatory in all crimes for which such a penalty is provided and no discretion of any kind can be exercised by judge or jury in any capital case. First of all, their opinions do not state such an extraordinary proposition and they do not purport to overrule the Supreme Court’s decision in McGautha v. California, 402 U. S. 183 , 91 S. Ct. 1454 , 28 L.Ed.2d 711 , decided on May *210 3, 1971, which held that the discretion reposed in juries in imposing the death sentence under California and Ohio statutes did not violate any provision of the Federal Constitution. In view of the fact that both White and Stewart, JJ., were part of the majority in McGautha , the majority opinion being written by Mr. Justice Harlan, I cannot believe that they intended to depart from the holding in McGautha decided only approximately 14 months prior to the decision in Furman . Mr. Justice Stewart does mention McGautha in Note 12 in his opinion but does not purport to question its holding.

Nor am I willing to believe that either Mr. Justice White or Mr. Justice Stewart would espouse such a harsh and long-abandoned viewpoint in regard to capital punishment. As Mr. Justice Douglas pointed out in his concurring opinion in Furman , the Supreme Court in Mc-Gautha “noted that in this country there was almost from the beginning a ‘rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers.’ ” 408 U. S. at 245-46, 92 S. Ct. at 2730, 33 L.Ed.2d at 353. Mr. Justice Douglas also observed that the indiscriminate use of capital punishment by Lord Chief Justice Jeffreys during the Bloody Assizes during the last years of the reign of Charles II and the first years of the rule of James II earned Chief Justice Jeffreys well-earned universal opprobrium. 2 408 U. S. at 254-55, 92 S. Ct. at 2734, 33 L.Ed.2d at 358. I am quite confident that neither Mr. Justice White nor Mr. Justice Stewart are advocating a return to the “Jeffreys Doctrine” in this country at this time.

As already indicated, Mr. Justice Brennan and Mr. *211 Justice Marshall were of the opinion that the imposition of the death penalty for any crime is unconstitutional as a “cruel and unusual punishment” forbidden by the Eighth and Fourteenth Amendments. Their reasoning is curious to say the least. Mr. Justice Brennan rested his conclusion on his thought that not only did the death penalty not “comport with human dignity,” but it has been inflicted arbitrarily, was unacceptable to contemporary society and is excessive in view of the purpose behind the punishment. Mr. Justice Marshall, based upon his intuition and speculation (see Footnote 163, 408 U. S. at 369, 92 S. Ct. at 2793, 33 L.Ed.2d at 423), is of the opinion that the death penalty is both excessive and morally unacceptable to the people of the United States and hence its imposition is unconstitutional per se.

The system in Maryland under which the death penalty is imposed is different from the systems used in Georgia and Texas — the systems involved in Furman . In both Georgia and Texas, the jury, in a single proceeding, determines guilt and also imposes punishment. In Texas, the jury establishes the penalty in both murder and rape cases in its sole discretion, see Texas Penal Code Annotated, Articles 1189 and 1257. In Georgia, the jury has a broad discretion in sentencing in a rape case, see Georgia Criminal Code 26-2001; and in murder cases, the jury chooses between the imposition of a sentence of death or life imprisonment. Georgia Criminal Code 26-1101.

In Maryland, however, the trial judge imposes the sentence in all murder and rape cases in accordance with the common law practice; but in murder cases, the jury pursuant to Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 413 may add the words “without capital punishment” in which event no sentence of death can be imposed by the trial judge. In rape cases in Maryland, the jury may also add the words “without capital punishment” in accordance with the provisions of Art. 27, § 463; and in this event, the trial judge may not impose a sentence exceeding 20 years in the penitentiary. It is *212 thus seen that the basic responsibility for sentencing in both murder and rape cases is given to the trial judge, thus continuing the common law tradition in this regard, subject to the limitations mentioned. Surely, the Supreme Court is not prepared to rule that it is unconstitutional to vest the power of sentencing in murder and rape cases in judges! The Maryland system is most certainly constitutional under the holding of the Supreme Court in McGcmtha, supra; and, as already observed, the majority of the Supreme Court in Furman does not purport to overrule that holding.

In sum, the Maryland law in regard to the death penalty was not before the Supreme Court in Furman ; the State of Maryland has never briefed, argued or been otherwise heard before that Court upon the constitutionality of the Maryland law in this regard; nothing in the opinions of three of the five “concurring” justices would require this Court to hold the Maryland law unconstitutional or the death sentence in Bartholomey and the other cases invalid. In my judgment, therefore, we are obligated at this point to sustain the Maryland law and to adhere to our prior decisions sustaining the imposition of the death sentences in Bartholomey and the other cases.

It has been suggested that if, as and when issues in regard to the constitutionality of the Maryland law relating to capital punishment and the validity of the sentences here involved are presented to the Supreme Court for decision, the majority of that Court will find the Maryland law unconstitutional and those death sentences invalid. Hence, it is argued, we should now anticipate that result. I have already indicated my opinion in regard to the folly, if not the impossibility of attempting to do this. More importantly, however, as I see it, we are not at liberty to attempt this inasmuch as in the absence of an existing holding by the Supreme Court to the contrary our constitutional obligation is to sustain the validity of the Maryland law and our prior decisions relating to the sentences.

*213 In the Furman case, there are several additional reasons why this Court should not extend or seek to anticipate future decisions of the Supreme Court in regard to the constitutional validity of capital punishment:

1. The general constitutional validity of all death sentences has not yet been determined by the Supreme Court, only two justices, Brennan and Marshall, being of the opinion that all death sentences are invalid. Indeed, seven of the nine justices indicated that in certain situations such sentences may be validly imposed.

2. McGautha, supra, decided May 3, 1971, has not been overruled in Furman and, for many relevant issues, is still the controlling law. Although the Supreme Court, during the last decade, has indeed substantially departed from a proper application of the doctrine of stare decisis, it is still the essence of the judicial process. In any event, we are not at liberty, in my opinion, to depart from it.

3. Seven of the nine justices in Furman indicate their belief that the States may validly consider the death penalty to be an effective deterrent to the crimes of murder and rape. The General Assembly of Maryland so considers it. The uncertainty in regard to what the Supreme Court would ultimately decide in regard to the constitutional validity of the death sentences has undoubtedly, in my opinion, been a prime cause in a decline in the imposition of such sentences and, when imposed, the execution of those sentences. What has been the result? Has murder and rape decreased during the past 15 years? On the contrary, the commission of these crimes has greatly increased.

In my dissenting opinion in State v. Barger, 242 Md. 616 , 628 at 642-44, 220 A. 2d 304 , 311 at 319-20 (1966), I stated in regard to murder and other unlawful homicides :

“. . . This is not the time to weaken the position of the State in its prosecution of unlawful homicide in Maryland. The Uniform Crime Reports for 1964 issued by the Federal Bureau of *214 Investigation on July 26, 1965 give alarming figures in regard to the increase of crime generally in the United States and also in regard to murder and non-negligent manslaughter in the State of Maryland.

“A comparison of criminal oifenses and the growth of population in the United States with the year 1958 indicates that from 1959 to 1964 criminal oifenses increased 58% and the crime rate (the number of offenses per 100,000 population) increased 44%. Of these criminal offenses violent crime increased 40%, while the crime rate for crimes of violence increased 27 % ; crimes against property increased 61% while the rate of property crimes increased 46%. During the period in question, the population increased only 10%. In 1964 the number of willful killings increased 8% over 1963. The national murder rate was 4.8 killings per 100,000 persons in 1964. The 9,250 victims of murder was the highest number since the post-war year of 1946 and the annual increase in murder in 1964 over 1963 represents the sharpest trend for crime in recent years.”

* * *

“In addition to the national crime figures, Maryland in 1964 had a very high rate of murder and non-negligent manslaughter. Maryland’s rate was 6.7 per 100,000 inhabitants, as compared with the national rate of 4.8. This is more than 100% higher than the rate of Pennsylvania (3.3), New Jersey (3.1) and West Virginia (3.7). It is more than 50% higher than that of Delaware (4.3) and is approximately 46% higher than that of New York (4.6). Only 12 States in the nation have rates in excess of the Maryland rate, i.e., Alabama, Alaska, Arkansas, Florida, Georgia, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Texas *215 and Virginia, the latter State being only slightly higher (6.8). Surely we should not weaken at this time the State’s enforcement of the criminal law in regard to murder.”

Since the dissenting opinion in Barger , filed June 8, 1966, the situation in regard to the crime of murder and also in regard to the crime of rape has become far worse. An examination of the Uniform Crime Reports issued by the Federal Bureau of Investigation for the years 1969, 1970 and 1971 discloses the following. In 1969, there were an estimated 14,590 murders in the United States, a numerical increase of 940 over the 13,650 murders recorded in 1968. This represents a 7% increase in murders in 1969 over 1968. It also represents a murder rate of 7.2 victims per 100,000 inhabitants as compared with a 6.8 murder rate in 1968. In 1970, there were a recorded 15,860 murders committed in the United States, a numerical increase of 1,270 over the 14,590 recorded murders in 1969 and an 8% increase. It also represents a murder rate of 7.8 victims per 100,000 inhabitants, an 8% increase over the 7.2 murder rate for 1969. In 1971, there were an estimated 17,630 murders committed in the United States, a numerical increase of 1,770 over the 15,810 murders in 1970 and an 11% increase. It also represents a murder rate of 8.5 victims per 100,000 inhabitants, a 9% increase over the 7.8 murder rate in 1970.

During the same period, Maryland’s murder rate was well in excess of the national murder rate per 100,000 inhabitants. The comparative figures are: 1969, Maryland 9.3, United States as a whole 7.2; 1970, Maryland 9.2, United States 7.8; 1971, Maryland 11.2, United States 8.5. From 1964, when the murder rate in Maryland was 6.7, the murder rate has increased to 11.2 in 1971, a 69% increase in the Maryland murder rate during this seven year period during which period no sentence imposing the death penalty for murder was executed in this State.

When the crime of rape is considered, the figures are *216 even more alarming. During 1969, there were an estimated total of 36,470 forcible rapes in the United States, an increase of 5,410 over 1968, an increase of 17 % over 1968 and 116% over 1960. The crime rate figures indicate that in the United States during 1969, the crime rate for forcible rape was 18.2, an increase of 17 % over 1968; during 1970, a crime rate of 18.5, a 1% increase over 1969; and, in 1971, a crime rate of 20.3, an increase of 10% over 1970.

Again, Maryland is far above the national crime rate: in 1969, Maryland 29.9, United States 18.1; 1970, 23.9, United States, 18.3; 1971, 24.9, United States, 20.3. From 1960 to 1971, there has been a 113.7% increase in forcible rape in Maryland and again during that period no sentence imposing the death penalty for rape was executed in this State.

There has been some adverse criticism of the Crime Reports recently on the ground that they understate the number of crimes committed in the United States. If this criticism is sound, the actual crime figures would be even more alarming. In any event, in view of the fact that seven justices of the Supreme Court agreed in Furman that the imposition and execution of the death penalty is a deterrent to the commission of murders and rapes, should not its use now be expanded and most certainly not eliminated?

4. The Supreme Court is in error in imposing the limitations of the Eighth Amendment upon the States allegedly through the Fourteenth Amendment, and this error should most certainly not be extended and expanded by this Court.

As I stated in my dissenting opinion in State v. Giles, 245 Md. 660, 667-68 , 229 A. 2d 97 , 101 (1967) :

“I am profoundly disturbed with what I believe to be the unwarranted expansion of federal judicial power over the States and their judiciary by construing the due process clause in the Fourteenth Amendment to include many *217 of the limitations of the first eight amendments to the federal Constitution, and a new interpretation of the equal protection clause in the Fourteenth Amendment. My views in regard to what I believe to be unwarranted extensions of federal judicial power have already been fully expressed by me in prior dissenting and concurring opinions and need not be repeated here. See Truitt v. Board of Public Works, 243 Md. 375, 411 , 221 A. 2d 370, 392 (1966) ; State v. Barger, 242 Md. 616, 628, 639-44 , 220 A. 2d 304, 311, 317-19 (1966) ; Montgomery County Council v. Garrott, 243 Md. 634, 650, 653 , 222 A. 2d 164, 172, 176 (1966) ; Hughes v. Maryland Committee for Fair Representation, 241 Md. 471, 491-513 , 217 A. 2d 273, 385-98 (1966).”

As was pointed out in our opinion in Bartholomey, supra, our predecessors held in Foote v. State, 59 Md. 264 (1883) that the Eighth Amendment did not apply to the States but only to Congress, relying upon Pervear v. Commonwealth, 72 U. S. (5 Wall.) 475, 479-80 , 18 L. Ed. 608, 609-10 (1867). Pervear was cited with approval and followed by the Supreme Court in O’Neil v. Vermont, 144 U. S. 323, 332 , 12 S. Ct. 693, 697 , 36 L. Ed. 450, 456 (1892). The Supreme Court had held to the same effect in In re Kemmler, 136 U. S. 436 , 10 S. Ct. 930 , 34 L. Ed. 519 (1890) in which Mr. Chief Justice Fuller, for the Supreme Court, in a case involving the validity of a New York statute directing that the death penalty be carried out by electrocution, stated: “It is not contended, as it could not be, that the Eighth Amendment was intended to apply to the States . . . .” Later it was pointed out that the New York statute did not offend the “privileges and immunities” clause and the “due process” clause of the Fourteenth Amendment.

One would suppose that with three opinions of the Supreme Court decided over a 36-year period that the Eighth Amendment did not apply to the States, that is *218 sue would be considered settled and so it was until the decision of the Supreme Court in Robinson v. California, 370 U. S. 660, 666 , 82 S. Ct. 1417, 1420 , 8 L.Ed.2d 758, 763 (1962), supposedly relying upon Francis v. Resweber, 329 U. S. 459, 463, 473-74 , 67 S. Ct. 374, 376, 381 , 91 L. Ed. 422, 426, 431-32 (1947), announced that the Eighth Amendment did apply to the States through the Fourteenth Amendment. In Francis v. Resweber, it is stated that a cruel punishment was within the purview of the due process clause of the Fourteenth Amendment but there is no statement to the effect — and certainly no holding — that the Eighth Amendment applied to the States through the Fourteenth Amendment. No mention is made of the prior opinions of the Supreme Court in Pervear v. Commonwealth, In re Kemmler or O’Neil v. Vermont and, of course, they were not distinguished or overruled. Nor are those cases mentioned in Robinson v. California. In Furman , Mr. Justice Douglas relies on Francis v. Resweber and Robinson v. California to indicate that the Eighth Amendment ban against cruel and unusual punishments as applicable to the States through the due process clause of the Fourteenth Amendment is “now settled.” 408 U. S. at 241, 92 S. Ct. at 2727-28, 33 L.Ed.2d at 351. But how was it “settled”? By the ipse dixit in opinions which disregarded prior decisions of the Supreme Court to the contrary. In my opinion, this type of “boot strap” extension of jurisdiction over the States by the Supreme Court is absolutely impermissible and most certainly the State Courts should not expand and enlarge such jurisdiction thus acquired.

5. The Supreme Court justices indicating that the death penalty executed by the usual and accepted methods is a cruel and unusual punishment under the Eighth Amendment are clearly in error and, in this regard, have indulged in an extraordinary departure from stare decisis. We should not extend or expand this error.

Mr. Chief Justice Burger puts it well in his dissenting opinion in Furman , as follows:

“Counsel for petitioners properly concede that *219 capital punishment was not impermissibly cruel at the time of the adoption of the Eighth Amendment. Not only do the records of the debates indicate that the Founding Fathers were limited in their concern to the prevention of torture, but it is also clear from the language of the Constitution itself that there was no thought whatever of the elimination of capital punishment. The opening sentence of the Fifth Amendment is a guarantee that the death penalty not be imposed ‘unless on a presentment or indictment of a Grand Jury.’ The Double Jeopardy Clause of the Fifth Amendment is a prohibition against being ‘twice put in jeopardy of life’ for the same offense. Similarly, the Due Process Clause commands ‘due process of law’ before an accused can be ‘deprived of life, liberty or property.’ Thus the explicit language of the Constitution affirmatively acknowledges the legal power to impose capital punishment; it does not expressly or by implication acknowledge the legal power to impose any of the various punishments that have been banned as cruel since 1791. Since the Eighth Amendment was adopted on the same day in 1791 as the Fifth Amendment, it hardly needs more to establish that the death penalty was not ‘cruel’ in the constitutional sense at that time.

“In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly ‘cruel’ in the constitutional sense. Wilkerson v. Utah, 99 U. S. 130 , 25 L. Ed. 345 (1878) ; Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 , 67 S. Ct. 374, *220 376 , 91 L. Ed. 422 (1947). In re Kemmler, 136 U. S. 438 , 10 S. Ct. 930 , 34 L. Ed. 519 (1890) (dictum). It is only 14 years since Mr. Chief Justice Warren, speaking for four members of the Court, stated without equivocation,

“ ‘. . . Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment — and they are forceful — the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.’ Trop v. Dulles, 356 U. S., at 99, 78 S. Ct., at 597.

“It is only one year since Mr. Justice Black made his feelings clear on the constitutional issue:

“ ‘The Eighth Amendment forbids “cruel and unusual punishments.” In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment.’ McGautha v. California, 402 U. S. 183, 226 , 91 S. Ct. 1454, 1477 , 28 L.Ed.2d 711 (1971) (concurring opinion).

“By limiting its grants of certiorari, the Court has refused even to hear argument on the Eighth Amendment claim on two occasions in the last four years. Witherspoon v. Illinois, cert. granted, 389 U. S. 1035 , 88 S. Ct. 793 , 19 L.Ed.2d 822 , rev’d, 391 U. S. 510 , 88 S. Ct. 1770 , 20 L.Ed.2d 776 (1968); McGautha v. California, ce rt. granted, 398 U. S. 936 , 90 S. Ct. 1846 , *221 26 L.Ed.2d 267 (1970), aff’d, 402 U. S. 183 , 91 S. Ct. 1454 , 28 L.Ed.2d 711 (1971). In these cases the Court confined its attention to the procedural aspects of capital trials, it being implicit that the punishment itself could be constitutionally imposed. Nonetheless, the Court has now been asked to hold that a punishment clearly permissible under the Constitution at the time of its adoption and accepted as such by every member of the Court until 'today, is suddenly so cruel as to be incompatible with the Eighth Amendment.”

408 U. S. at 380-82, 92 S. Ct. at 2799-2800, 33 L.Ed.2d at 430-31.

For all of these reasons, I would reaffirm our prior decisions sustaining the validity of the death sentences imposed in Bartholomey and the companion cases.

Judge Smith concurs in this dissent.

. This is in accord with my own observations during the 41 years I have been a member of the Maryland Bar, as a practitioner, a trial judge in Baltimore City and now as a judge of the Court of Appeals.

. An interesting account of this episode and the extraordinary conduct of Chief Justice Jeffreys appears in Lord Campbell’s Lives of the Lord Chancellors (1868), Vol. IV, pages 322-387, Chief Justice Jeffreys having been made Lord Chancellor by James II as a reward for his “many eminent and faithful services.” In his Lives of the Chief Justices (1874), Vol. II, pages 332-337, Lord Campbell refers to Jeffreys as a “monster” and quotes King Charles II as shuddering at his approach with the remark: “That man has no learning, no sense, no manners, and more impudence than ten carted streetwalkers.”