Amicus Curiae Brief — Maxwell v. Bishop

Supreme Court brief1970

Ask Donna

What actually matters in this document.

Text

7. .

. . a :

ee be

: .

. :

‘

. . . . ; .

. ® 7 r

. .

. . : ; |

. . . |

; ; . . 2

. . |

. : . |

| .

a " es® ;

: .

; .

. ® ; |

} .

. ;

. . .

. ~ : |

. ~ :

. 2 bd |

-e

. c

’ : . | |

. e . ;

~ : . “= 4

. /

. | |

7 .

s . . ;

. .

. 7 ;

. |

. ;

. : ‘ .

. 7 i .

. . .

' .

. .

. : .

. . 2 ; F | |

. ; }

. . . . :

. 7 ; |

: .

. . “~

. ; ,

. :

. . c

. a ; | .

. . *

| " » ; 7 e

. . ™ ‘

: « : ; i

. ) . .

. r ;

. . ?

a ,

: ' i . . bd

. r :

. be .

. ‘ e . ' ;

. an “ |

. ; :

. - .

- a a

; .

. 7 F

. . " ‘il ‘ .

‘ .

. 7 : : .

. ® , .

; . .

; x ° . 7

° ; |

. %

4 es

ees :

. 7 :

. . ,

r *

‘

, .

« ct :

. * ;

. ® :

—~

O. E. BISHOP, Superintendent of Arkansas

- ‘State Penitentiary,

Respondent.

" On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE OF THE SYNAGOGUE COUNCIL

OF AMERICA AND ITS CONSTITUENTS (THE CEN-

TRAL CONFERENCE OF AMERICAN RABBIS, THE

RABBINICAL ASSEMBLY OF AMERICA, THE RABBIN-

ICAL COUNCIL OF AMERICA, THE UNION OF AMER-

ICAN HEBREW CONGREGATIONS, THE UNION OF

ORTHODOX JEWISH CONGREGATIONS OF AMERICA,

THE UNITED SYNAGOGUE OF AMERICA) AND THE

AMERICAN JEWISH CONGRESS

- Leo Prarrzz

15 East 84th Street

New York, New York 10028

Mazviy Brarrenman

Moras Dszrsnowrrs

Wu Mastow

Hauwsay A. Rararost

Joszrn B. Rosmox

Gzonesz So

Attorneys for Amici Curiae

Lao Prurrzs \

a ost FRY.

* J

TABLE OF CONTENTS |

INTEREST ‘OF THE Amici ........,.. AST SR! PEL HOU ES OM a Me

' Question To Wurcu THIs Brier 1s’ ADDRESSED ............ Ears

DOMME OF BUOCUNOE c0icsisisicotpcisalepdaesen

ARGUMENT—

Imposition of the death penalty for non-homi-

cidal rape constitutes cruel and unusual punish-

- ment in violation of the Eighth Amendment as

made applicable to. the states by the Fourteenth...

7 ow

The Constitutionality. of the Death Penalty

i GE ©. ek ce eee

Applicability of the Eighth Amendment to

CD TNE ois sascha oki Bk ade

Judicial Responsibility arcs eaten SL iieiinsciee

Excessive Punishment as Cruelty ..................

Inapplicable Standards of Cruelty ................

Applicable Standards of Cruelty ........”........

* 1. The cruelty of non-deterrent punishment

2. The death penalty for rape as a a of

slavery .. sikiail bv elacaneicontertandsosoioediecomatcs cel

3. The death penalty and the national con-

ROUND Sic iscssecibesccies SEER DREN Ne anion MANE oe

4. International standards .00000000000..........

CONCLUSION ......... PoP B ns Pee nee A BSE eg aUsee ABO

| PAGE

Cases :

Adamson v. California, 332 U.S. 46 (1947) 0.0.0.0... s

_ Baker v. Carr, 369 U.S. 186 (1962) 0.000... aca aeee 18

Beauharnais, v. Illinois, 343 U.S. 250 (1952) ........ ny 18

Boykin v. Alabama, 391 U.S. 510 (1968) 200.800... 8

Brown v. Board of Education, 347 U.S. 483 (1954)

7, 18, 28, 32, 40

Gideon v. Wainwright, 372 U.S. 335 (1963) ................ ‘10

Gitlow v. New York, 268 U.S. 652 (1925) 2................ 17, 18, 36

Griffin v. Illinois, 351 U.S. 12 (1956) «0.2.0.0... 36

Harper v. Virginia State Board of Elections, 583 US.

Fis cesuasen 40

Hernandez v. Texas, 347 U.S. 475 (1954) Bsa tat cs: 33

Jackson v. Bishop, 404 F. 2d 571 (1968) ..............: gy |

Jacobellis v. Ohio, 378 U.S. 184 (1964) 2000. 19

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

- * Louisiana ex rel. Francis v. Reoweber, 329 U.S. 459

(1947) © oe 2. oe

Loving v. Virginia, 388 US, 1 (1967) .. age

Malloy v. Hogan, 378 US. DOD jMlersescvessidorcecsones 0

Marbury v. Madison, 1 Cranch 137 (1803) .............. ee, oe

Miranda v. Arizona, 384 U.S. 436 (1966) 00000... 6

O’Neil v. Vermont, 144 US. Se A ee 12

People v. Oliver, 1 N.Y. 2d 152 (1956) 000. 9

Poe v. Ullman, 367 U.S. 497 (1961) .................... ee 35.

Powell v. Texas, 392 U.S. 514 (1968) 0000... )~=— 82

as. ait deh at Poe

TABLE OF AUTHORITIES

Itt

PAGE

Robinson v. California, 370 U.S. 660 (1962)....9, 10, 12, 24, 32

Rochin v. California, 342 U.S. 165 (1952) ............ ere 21 |

Roth v. United States, 354 U.S. 476 (1957) _............. 18, 19

Rudolph v. Alabama, 375 U.S. 889 (1963) °.0000000000.0...... 9

Trop v. Dulles, 356 U.S. 86 (1958) .............. ‘11, 12, 22, 23, 24,

26; 33, 37, 38, 41

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

| / 13, 14, 15

Wilkerson v. Utah, 99 U.S. 130 (1878) 20000000... 12, 14

Witherspoon v. Ilinois, 391 U.S. 510 (1968) ................ 8

Statutes: |

English Bill of Rights, 1 W.&M. s.2, ¢.2 (1689) ....... 11

_ Federal Crimes Act, 1 Stat. 112 20000000000... Teens aie 13

Nev. Rev. Stat. See. 200.363 (1967) oo... 17, 36

Other Authorities:

Allen, ‘‘Capital Punishment: Your Protection and

ira NE MD III oe ba nant sveentnbeoursessvracnendivoneys 27

Ancel, ‘‘Capital Punishment in the Second Half of +:

| the Twentieth Century,’? Tue Review (Interna-

tional Commission of Jurists), 1969, 33 .............. 38

Bedau, Tue DearH Penaury 1x America, 124 (1967)

2,7, 14, 17, 25, 29, 34, 35

Bedau, ‘‘Death Sentences in New Jersey 1907-1960,’’

19 Rutcers L. Rev. 1 (1964) 20. ccceccccecceceeeecee - 27

2 Blackstone, ‘‘Commentaries,’’ 2620 (Joxzs’ Ed.

Acad Ee Re Ee cans ee i Se ee 13, 16

Calvert, Capital Punishment in the Twentieth Cen-

I I I icon ch ce caic nak vetegsscshaiéysadsasualoans'eseetoemcesns 25

Campion, ‘‘Does the Death Penalty Protect State Po-

lice?, DI IN acco cccecstecty hc tdsancasonicencescsasccos 25 -

1°

PAGE

Clark, Statement to Subcommittee on Criminal Laws

and Procedures of the United States Senate on

S. 1760, ‘‘To-Abolish the Death Penalty,’’ July 2,

| Ea CNOA ERR CER, ae EF

DiSalle, ‘‘Capital Punishment and Clemency,’’ 25

Omg State LJ. 71 (1964) Sens See cM rere 27

Duffy and Hirshberg, ‘‘88 Men and Women”’ (1962),

PRES bith tine ills fo ae el oA e EonIO OS TMD aT be Sms A 27

Ehrmann; ‘‘The Human Side of Capital Punish-

~ ment,’’ in Bepav 510 aggre FU awa ae Pos 27, 30,35

Garfinkel, ‘‘Research Note-on Intfer- and Intra-Racial

Homicides,’’ 26 Socrau Forces 369 (1949) 0... ‘|, oe

Gottlieb, ‘‘Capital Punishment,’’ 15 Crime anp De-

EAWQUENMCT 1 (10GB) oousiooc.icececceceses, ETERS too! 13, 23, 25

- Gottlieb, ‘‘Testing the Death Penalty,’’ 34 S. Cauir.

te ee na ete a ei ail cose, 7,9

Graves, ‘‘The Deterrent Effect of Capital Punish-

‘ment in California,” in Bepav, 322 ......... eae ee

Holmes, Tue Common Law (Howe, ed.) 36 (1963) .... 9

Hoover, ‘‘Statements in Favor of the’ Death Pen-

TI We RES oie sect siss sek esosetincoovviots ovis 2, 25

3 Jewisu Encyciorepra 554 (1912) .

Johnson, ‘‘The Negro and Crime,’’ 271 Annals’ 93

3 IRA reer = Rind Sa CU ty aie i hCaare RC ree rie Daa ‘27

Johnson, ‘‘Selective Factors i in Capital Punishment, Se

36 Socira, Forces 165 (1967)... . 2.

Koeninger, “Capital Punishment in Teéxas, 1924-

: 1968," ? 15 CRIME AND DELINQUENCY 141 -(1969)

; 29, 27, 28, 30.

McCafferty, ‘‘Major Trends in the Use of Capital

Punishment,’’ Feperat Prosation (1961) 15 ........ 25

Macnamara, ‘‘Statement Against Capital Punish-

ment,’’ in Bepau 188 ....... Sipe nar se a NOR 27

ow”

Pie eh make / ‘PAGE

Marcus and Weisbrodt, ‘‘The Death Penalty Cases,”? ,

.56 Cauir. L. Rev. 1268. (1968) ................. Sas eastacoes tig ae

Mattick, The Unexamined Death, 8 (1966) 0000.00.00... 25

Massachusetts, ‘‘Report on the Death Penalty’’

(1958), 27 ....... San oie i Se NeAE RO Reel gene PRET ent eet 26.

Mendelsohn, CriminaL JURISPRUDENCE OF THE AN-

CIENT Hesrews, 116 .......:............... Wisk cabbeepbaiael +

2 Moore, Jupaism, 186 (1927) occ. ee ree 3

Mulligan, ‘‘Death, The’ Poor Man’s Penalty,” "THE

AMERICAN WEEKLY, May 15, 1960, p.'9 .................. 27

Murray, States Laws on Race anv Cotor, Supp. tne

CR ee IIR Rei a OEM LF eI Rada Sere GEE met pit 29

- Murton, ‘‘Treatment of Condemned eR 15

Crime AND DeLINQuENcY 96 (1969) RerSheh ete I a ee 27

Ohio, ‘Report on Capital Punishment”? ( 1961) 49 . 26

Packer, ‘‘Making the Punishment Fit the Crime,”

FO TEAM Bie RY, BUTS CADE) one epee ceizeettecccenvin 11.

Reckless, ‘‘The Use of the Death Penalty,’’ 15. CRIME

AND DELINQUENCY 43. (1969) ooo. ojoccecccccccccupeeedeeee. 7,25

Roche, ‘‘A Psychiatrist Looks at the Death Penalty,’’

Tue Prison JourRNAL. (1958), 47 00000000c.. 26

Royal Commission on Capital Punishment, “Report”

es NO, MP IE MR 0 2 sacks; ini dndrvcop lb canetipeeagsnas 25

* . Rubin, ‘The Supreme Court, Cruel and Unusual

Punishment, and the Death Penalty,’’ 15 Crime

anp Detinquesxcy 121 (1969) ...... eet, A

Savitz, ‘‘The Deterrent Effect of Capital Punish-

ment in Philadelphia,’’ in Bepav, p. 315... ' 25

Scott, ‘‘A History of Capital Punishnient*’ (1950), |

OEE Re te Rap Cond Beet ICS SERA ee a ek eal 26

Sellin, Capital Punishment, 135 (1967) 0000, 25

Sellin, Tue Deatu Penarty 69-79 (1959) .. .....9, 25, 26

Sellin, Does the Death’ Penalty Protect Municipal

Oy Be FN oss cti ds cre rcscched i tasendercnanven sore 25

PAGE

EES EES ai Oe etter SR

Thomas, ‘‘ Attitudes of Wardens Tow ards the Death

Perfalty,’’.in Bepau 242... a en 25°

United Nations, Report. “Capital Punishment,’? 40

: 17, 23, 38; 40

U. S. Dept. of Justice, ‘‘National isan Statistics,

No. 42’’ (1968), 32 ........ fe Sea oy, Petey ere EU 17, 28

Vallenga, CurisTianiry aND THE DeatH Pewnatry in . *

Smtr Prius en gue eee eee SE oe : 2

Wolfgang, Kelly and Nolde, ‘‘Executions and Com-

mutations in Pennsylvania,” in Bepau 482 ....... ae «|

IN THE

Supreme Court of the United States

: October Term, 1969 :

No. 13.

Wituram L. Maxwe.t,

Petittoner,

Vv.

‘!. Q, E. Bisnop, Superintendent of Arkansas

State Penitentiary,

fren poeey. Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

_ BRIEF AMICI CURIAE OF THE SYNAGOGUE COUNCIL

OF AMERICA AND ITS CONSTITUENTS (THE. CEN-

TRAL CONFERENCE OF AMERICAN RABBIS, THE

RABBINICAL ASSEMBLY OF AMERICA, THE RABBIN-

- ICAL COUNCIL OF AMERICA, THE UNION OF AMER-

-ICAN HEBREW CONGREGATIONS, THE UNION OF |

ORTHODOX JEWISH CONGREGATIONS OF AMERICA,

THE UNITED SYNAGOGUE OF AMERICA) AND THE

AMERICAN JEWISH CONGRESS

Interest of the Amici

On.this appeal from an Arkansas jury’s imposition of

the death penalty upon a Negro convicted of raping an

unmarried woman of thirty-five, the amici have sought,

and obtained, the consent of the respective parties for the

submission of this brief because of their special interest as

Jewish organizations in the subject of capital punishment.

The American ‘Jewish Congress is an. association of

American Jews orgatized to oppose racial and religious

discrimination and to help preserve democratic principles

and practices. The other amici, all constituents of the

Synagogue Council of America, are the recognized rabbinic

and congregational representatives of the three branches of

American Judaism—Orthodox, Conservative and Reform.

All of the amici are opposed as a matter of principle to

the imposition of the death penalty and support its aboli-

tion. Their position is based on their judgment as to the

demands of contemporary American democratic standards,

but also has its roots in ancient Jewish tradition. This

statement may seem surprising in view of the many refer-

ences in the Hebrew Bible to the death penalty for such

transgressions as adultery (Lev. 20:21), bestiality (Ex.

22:18), murder (Ex. 21:12) and rape of a betrothed ‘(but

not of an unmarried or unbetrothed) woman (Deut. 22:15).

Indeed, these Seriptural provisions are often- invoked by

defenders of capital punishment.’ -

1. See, eg., Vellenga, Cusistiaxity axp tue Deatu Pexarty:

in Bedau, “Tux Deatu Pexacty is Amenica, 124-125 (1967)

(hereinafter referred to as Bedau); Hoover, Statements ix Favon

or THE Deatu Pexacty, in ibid., 1933.

. These statements, however, reflect an unfamiliarity with

the full.Jewish tradition, and specifically with.the fact that

‘ Rabbinic Judaism during the Talmudic period, some two

thousand years ago, represents the interpretation and im-

plementation of the Scriptural command. . We can fully

understand the Seriptures only through their presentation

by the Oral Law, of which Talmnd is the prime exponent.

The definition and the application of the laws of. evi-

dence and criminal procedure in the Talmud made convic-

_tion in a capital case practically impossible. Thus, for

example, it is noted that if an accused were to be convicted

in a capital case the verdict could not be unanimous, the _

reasoning of the Rabbis being that if not a single one of -

the twenty-three judges constituting the court (Sanhedrin)

could find some reason for acquittal there was something

fundamentally wrong with the court. Cireumstantial - evi-

dence was not sufficient to sustain a verdict in a capital

case; two eye-witnesses, subjected to rigorous cross-exami-

nation by the court, were required. Moreover, the witnesses

had to testify that they warned the accused before the crime

that the act was prohibited and what its penal consequences

were. (Talmud, Sanhedrin, 40b et seq.)

In view of these procedural requirements it is evident

that conviction in a eapital case Was virtually impossible?

But perhaps most indicative of the Rabbinic view of capital

punishment is the following from the Talmud (Makkot,

Chap. 1, Mishnah 7):

A sanhedrin which executes a criminal once in seven

years is called a ‘‘court of destroyers.’’ Rabbi Eliezer

2. “It is clear that with such a procedure conviction in -—

the

cases was next to impossible, and that this was the intentiori

framers of the rule is equally plain.” 2 Moore, Jupaism, 186 (1927).

ee Ge ree

;

ben Azariah states that this is so even if it executes one

every seventy years. Rabbi Tarphon and Rabbi Akiba

stated that if they had been members of the sanhedrin

no one would ever have been executed.

One Rabbi, Simeon ben Gamliel, expressed a contrary

view reflecting the most common justification for capital

punishment, namely its deterrent effect. If the views of

Rabbis Tarphon and Akiba were to prevail, he said, ‘‘they

would inerease murdersin Israel.’ However, later com-

mentaries note that Rabbi Simeon’s was a minority view

and that the others expressed the normative opinions of

the Rabbis. (Maimonides, Hilkoth Sanhedrin, xiv., xv.)

To take a human life, the Rabbis said, is a matter of the

gravest seriousness. Execution is not reversible. If a

mistake is made what has been done is irrevocable. One

who takes a human life, they pointed out, diminishes the

Divine Image. On occasions this extreme means may be

necessary to protect society. But it may be carried out

only when there can be absolutely no doubt concerning the

guilt of the aceusethand of his freely chosen, deliberate and

knowing act. In view of human fallibility which is so

_pervasive a factor in all judgments, a drastic step such

as terminating a human life was as a practical matter not

defensible. (See, 3 Jewisu Excycvorepta 554558 (1912);

Mendelsohn, CumixaL Jvunispaupesce or Tue ANcient

Hésnews, 116-133.)?

3. It is for this reason that Lafayette vowed to oppose capital

punishment until “the unfallibility of human judgment” was demon-

strated to him. Quoted in statement by Att . General Ramsey

Clark before Subcommittee on Criminal Laws Procedures of the

United States Senate on S. 1760, Té Abolish the Death Penalty,

- July 2,.1968 (hereinafter referred to as Statement on S. 1760).

Question to Which this Brief is Addressed

Petitioner’s brief addresses itself to two points: (1)

that Arkansas’ practice of allowing capital trial juries

absolute discretion, uncontrolled by standards or diree:

tions of any kind, to impose the death penalty upon a de-

fendant convicted of the crime of rape violates the Due

Process Clause of the Fourteenth Amendment; and (2)

that Arkansas’ single-verdict procedure, which requires

the jury to determine guilt and punishment simultaneously

in a capital case violates the Fifth and Fourteenth Amend-

ments. ‘

We support the arguments set forth in the petitioner’s

brief and associate ourselves with them. In this brief we

_ address ourselves to an aspect of the case not discussed

in ‘petitioner’s brief, but one which relates. specifically

to the first point in that brief.. If, as we submit it should,

this Court sustains the validity of that point it .will be

required to remand the case to the Arkansas trial jury for

reconsideration of the sentence in the light of instructions

to it by the trial judge. The specifies of those instructions

are of course initially the responsibility of the Arkansas

courts, but whatever they are they must be within the limi-

tations of the Federal Constitution. To the extent that

they are not, it may be anticipated with reasonable cer-

tainty that this case will be back before this Court.

We suggest, therefore, that it is entirely appropriate

for the Court to obviate as far.as practicable further avoid-

able appeals by stating in its opinion such minimum con-

stitutional limitations as the Arkansas trial court will

~ == agree tees

quite clearly and unavoidably be required to cope with

in framing its instructions to the jury. The most obvious

of these is the appropriateness of the death penalty in a

non-homicidal rape case. If the Constitution forbids impo-

sition of the death penalty in a rape ease, judicial economy

would seem to dictate that the Court say so in its opinion

on the present appeal so that the trial judge may act in

light rather than in darkness.

This procedure is by no means unprecedented. It is,

in effect, the procedure employed_in much greater detail.

in Miranda v. Arizona, 384 U.S. 436 (1966).

Accordingly this brief amici curiae addresses itself to

the single question: May a state consistently with the

Federal Constitution impose the death penalty upon a per-

son convicted of non-homicidal rape? .

| Summary of Argument

Under the Eighth Amendment to the Federal .Constitu-

tion, made applicable to the states by the Fourteenth, a

state may not impose punishment which is cruel or unusual.

The ultimate responsibility of determining whether punish- |

‘ment is cruel or unusual rests not, with the legislature but -

with the courts, and ultimately of course this Court. In

discharging this responsibility the Court is not restricted

to standards prevailing in 1789 when the Amendment was

framed but should apply contemporary standards. Nor

should these standards be limited by considerations of

geographic regionalism, but should give weight to-national

and even international judgments. Moreover, it should

consider the efficacy or inefficacy of the death penalty as

a deterrent and should give weight to the usual ,if not

inevitable concommitants of imposition of the death pen-

alty, such as unequal and racially discriminatory imposi-

tion. Measured by these standards the death penalty for

non-homicidal rape constitutes cruel and unusual punish-

ment within the meaning of the Eighth Amendment.

ARGUMENT

Imposition of the death penalty for non-homicidal

rape constitutes cruel and unusual punishment in viola-

tion of the Eighth Amendment as made applicable to

the states by the Fourteenth.

A. The Constitutionality of the Death Penalty in General

The possible unconstitutionality of. the death sentence

in all cases is being increasingly asserted among legal

writers,‘ not merely under the Eighth Amendnient but as

a denial of due process. Under the former it has been

suggested that contemporary scientific knowledge, not

available in 1791 but requiring judicial recognition,’ estab-

lishes that all methods of execution of humans in use in

the world today (hanging, shooting, beheading, stoning,

electrocution and-gas asphyxiation)’ are physically and

4. Rubin, The Supreme Court, Cruel and Unusual Punishment,

and the Death Penalty, 15 Crime Axo Detinguency 121 (1969);

Marcus and Weisbrodt, The Death Penalty Cases, 56 Cavir. L. Rev.

1268 (1968) ; Gottlieb, Testing the Death Pe nalty, 34S. Cauir. L.R.

268 (1961).

5. Cf. Brown v. Board of Education, 347 U.S. 483 (1954).

6. Reckless, The Use of the Death Penalty, 15 Crime AND De-

LINQUENCY 43, 46 (1969).

8 .

psychologically painful to the extent of being eruel and

inhumane. Marcus and Weisbrodt, The Death Penalty —

Cases, 56 Cauir. L. Rev. 1268, 1326-1343 (1968). It has been

‘urged too that, as the then Attorney General of the United

States stated in, 1968, ‘‘Surely the abolition of the death

penalty is a major milestone in the long road from bar-

barism,’” and that accordingly by contemporary standards

this Court can and should declare capital punishment to

be unconstitutionally cruel and inhumane in all cases. (See

Point II of Brief Amicus Curiae of the N.A.A.C.P. Legal

Defense and Educational Fund, Inc., and the National

Office for the Rights of the Indigent in Boykin v. Alabama,

391 U. S. 510 (1968).)

It may also be suggested that, as will be indicated be-

low pp. 35-37), actual consummation of the death penalty

even when it is imposed has become so rare that de facto

if not de jure it has become “‘unusual’’ within the context

of the Eighth Amendment and that the Court should de-

clare it so,

The due process argument has been predicated on,the |

claim that execution of the death penalty renders due

process of law inoperable. ‘‘When the condemned man is

executed, errors in the proceedings are placed beyond the

reach of later decisions that would provide new grounds for

examining whether the proceedings leading to the execu-

tion contained error.’’ Rubin, The Supreme Court, Cruel

and Unusual Punishment and the Death Penalty, 15 Crime

AND Detinquency 121, 130 (1969). Thus, for example, in

Witherspoon v. Itlinois, 391 U.S. 510 (1968) the Court held

that a jury from which persons not believing in the death

_ 7. Statement on S. 1760. -

Cenk:

penalty were excluded was not representative of the com-

‘munity and therefore constitutionally impermissible. The

Court held this principle to be retroactive and hence appli-

cable to all persons in death rows all over the country. But |

as to those who have already been executed. reopening and

retrial is of course impossible and therefore thé inevitable

result is that they have been deprived of their lives without

due process of law,

Finally, an argument has been made which encompasses

both due process and the Eighth Amendment, an argument

suggested by Robinson v. California, 370 U.S. 660 (1962),

that the death penalty is not rationally related to any pur-

pose that an American government may constitutionally

seek to achieve. The traditional purposes of punishment

have been retribution, deterrence, reform, and isolation for

the protection of the community. Rudolph v. Alabama,

375 U.S. 889 (1963), dissenting opinion of Mr. Justice

Goldberg; ‘Holmes, Tue Common Law (Howe, ed.) 36

(1963). Retribution, it is asserted, is today no longer a

valid governmental interest.’ Capital punishment, as will

be indicated more fully below, is overwhelmingly adjudged

by competent students not to be demonstrably more effec-

tual as a deterrent than ‘life or-long-term imprisonment.

Reformation is of course impossible, and isolation can be

effectively achieved by confinement. Gottlieb, Testing the

Death Penalty, 34 8S. Carty. L. Rev. 268- (1961); Sellin,

Tue Deatu Penarty 69-79 (1959).°

8. “There is no place * * * for punishment for its own sake, the

product of vengeance or retribution.” People v. Oliver, 1.N.Y. 2d

152, 160 (1956). See also Holmes, Tue Common Law (Howe,

ed.) 37 (1963); Marcus and Weisbrodt, The Death Penalty Cases, .

56 Cauir. L. Rev. 1268, 1348-1354 (1968).

9. Of course, execution is more economical than life confinement,

but.in view of the sanctity of human life it can hardly be contended

that this fact should be determinative.

10°

It is not necessary in this case to consider the constitu-

tionality of the death sentence in all cases and under all

circumstances, nor even in all cases where the crime for.

which the condemned was convicted did not result in death.

-. It is sufficient here to limit consideration and judgment

to the constitutionality of the death sentence in the one

specific case of rape where no death results, and it is to

this alone that the present brief is addressed although, of

_ course, all arguments. directed at the constitutionality of

capital punishment generally are applicable to the specific.

issue in the present case.

B. Applicability of the Eighth Amendment to the States

Whatever doubts may have previously existed,’ it is

_ now clears that the Eighth Amendment’s prohibition of

cruel and unusual punishments is applicable to the states

by virtue of the Fourteenth Amendment. Robinson v.

California, 370 U.S. 660, 666 (1962) ; Gideon v. Wainwright,

372 U.S. 335, 341-342 (1963) ; Malloy v. Hogan, 378 US. 1,

6 (1964).

C. Judicial Responsibility

Although, as will be indicated more fully belowpthere

is a steady legislative trend toward the abolition of the

death penalty either altogether or generally with a few

exceptions (tiifra, p. 3435), a trend which reflects the man-

date of the public conscience, the ultimate responsibility

of determining what constitutes cruel and unusual punish-

ment within the meaning of the Eighth Amendment rests

_ not with the legislature but with the courts, and particu-

10. See Louisiana -ex rel. Francis v. Resweber, 329 U.S. 459,

462 (1947).

larly this Court. Trop v. Dulles, 356 U.S. 86, 103 (1958); -

Robinson v. California, 370 U.S. 660 (1962). -

iD. Excessive Punishment as Cruelty

Rather surprisingly it has been urged that the intent

of the Eighth Amendment is solely to forbid cruel and.

inhumane methods of punishment such as torture or burn-

ing at the stake, but not to forbid punishments which are

wholly disproportionate to the offense committed. Weems.

v. United States, 217 U.S. 349, 382 (1910) (dissenting

opinion) ; Packer, Making the Punishment Fit the Crime,

77 Harv. L. Rev. 1071, 1074-1075 (1964). This is surprising

because it would forbid flogging a person who committed

petty larceny” or even fining him excessively (since the

Amendment specifically prohibits excessive fines),!* but -

not imprisoning him for life or even hanging him for ‘it.

It is difficult to believe that the framers and adopters of

the Amendment were concerned only about disproportion-

ate monetary punishment but not other and more serious

forms of disproportionate punishment. |

‘.

‘

In any event, the issue is no longer open to question;

it is clear today that punishments which are excessively

11. Jackson v. Bishop, 404 F.2d 571.(1968).

12. The Eighth Amendment was taken bodily from the English

Bill of Rights of 1688 (1 W. & M. s. 2,¢. 2). The earliest applica-

tion of the provision in England appears to have been in 1689, just

a year after its adoption, in a case in which the King’s Bench fined

Lord Devonshire thirty thousand pounds fer an assault and battery

upon Colonel Culpepper. The House of Lords, in reviewing the

case, took the opinion of the law Lords, and decided that the fine

“was .excessive and, exorbitant, against Magna Charta, the common

right of the subject and the law of the land.” Weems v. United

States, supra, 217 U.S. at 376.

13. See below footnote 21.

‘ disproportionate to the crimes for which they are imposed

are cruel and unusual within the meaning of, the Amend-

ment. Weems v. United States, 217 U.S. 349 (1910);

Robinson vy. California, 370 U.S. 660 (1962). It follows

from this that even if the Court cannot find that there is’

no unecruel or humane method of execution of the death

penalty™ and is not prepared \at present to hold that the —

death penalty is in all eases disproportionate to all crimes

even those resulting in death, it ean, and we submit should

hold that it is unconstitutionally disproportionate. to the

crime of rape which does not result in death.

Ingdischarging its responsibility ‘of interpreting and

applying the Eighth Amendment the Court is not confined

to the standards prevailing in 1789: when the Amendment

was | ramed, ‘(T]he words of the Amendment. are not

pregise * * * their scope is not static.’’ Trop v. Dulles, 356

U.S. at 100-101. Even when the Amendment was debated

in Congress on its introduction it was recognized. that

future courts would give different meanings to the term

“‘eruel.’’ Representative Livermore oppgsed the Amend-

ment for exactf&that reason, stating: :

The clause seems to express a great deal of human-

ity, on which account I have no objection to it;-but as

it seems to have no meaning in it, I do not think it

necessary. What is meant by the terms excessive bail?

Who. are to ‘be the judges? What is understood by

excessive fines? It lays with the court to determine. —

No cruel and unusual punishment is to be inflicted;

it is sometimes necessary to hang a man, villains often

14. Wilkerson v. Utah, 99 U.S. 130 (1878) (statute authorized

trial judge option of sentencing death by shooting, hanging or be-

heading; Zourt held shooting is not cruel and unusual); Jn re

Kemmiler, 136 U.S. 436 (1890) (death by electrocution not cruel and

unusual). See also O’Neil v. ermont, 144 U.S. 32 (1892).

deserve whipping, and perhaps having their ears cut.

off; but are we, in future, to be prevented. from in-

flicting these punishments because they are cruel? If

a more lenient mode of correcting vice and deterring

others from the commission of it could be invented,

it would be very prudent in the legislature to adopt

it, but until we have: some security that this will be

done, we ought not to be restrained from making neces- .

sary laws by any declaration of this kind. (Cong.

U.S. at 369)."°

Livermore spoke of cutting off the ears of criminals, but

lest it be assumed that this was merely the product of his

imagination, it should be noted that the Constitution itself,

or more specifically the Fifth Amendment, appears to con-..

template the acceptability of dismemberment as a method ©

of punishment. The Amendment provides that no person

shall ‘‘be subject for the same offense to be twice put in.

_ jeopardy of life or limb,’’’ thus implying the propriety of

being once put in jeopardy of limb. Blackstone refers to

. drawing and quartering, ‘disemboweling, beheading, public -

dissection, burning at the stake, dismembering and _ brand-

ing as forms of punishment practiced in England, notwith-

standing the Bill of Rights of 1688, up to a time contem-

porary with the framing of the Kighth Amendment. Can

15. It is interesting to note that Livermore apparently antici-

pated a time when hanging, and presumably all other methods of :

executing the death penalty, would be adjudged unconstitutionally

cruel,

16. Gottlieb, Capital Punishment, 15 CRIME AND Detinguency

1, 20 (1969). ’

17. 2 Blackstone, Commen‘rarigs, 2620-23 (Jones? ed. 1916).

Whipping, held violative of the Eighth. Amendment in Jackson v.

Bishop, 404 F. 2d 571 (1968), was specifically prescribed as punish-

ment for a variety of offenses in the first .Federal Crimes Act. 1

- Stat. 112-117.

" E. Inapplicable Standards of Cruelty,

st be dbubted that no American court would today sanction

these methods of punishment in the face of the- mighth

Amendment?"

As we have indicateds the Amendment addresses itself

not only fo the method of punishment but to its proportion-

ateness as well, Ino more immunizes from future judicial

"review punishment deemed in 1789 not to be disproportion-

ate or excessive by the standards then prevailing than it

immunizes punishments then acceptable j in method or made

of execution. As late as 1837, more than twenty-five of- ”

fenses, including stealing bank notes, forgery and bigamy

were punishable by death in North Carolina.” In England,

it was pot until 1810 that the law maRing picking pockets

@ eapital offense was repealed.” The Crimes Act of 1790

(1 Stat, 112-117), the first Federal penal code, made forg-

ing or passing. forged public eccurities punishable by death.

It is inconevivable that thix Court would today allow the

death penalty to be imposed for these crimes although they

were apparently acceptable to the generation that framed

and adopted the Eighth Amemiment. That Amendment

did not foxsilize forever the standards of humane conduct

presailing in the 18th century. The matter has been well

put -by the Court in Weems v. United States (217 US, at

372):

1K See, Wilkerson v. 4'tah, 99 US. 130, 138-136 (1878),

19, ~~ 7. This harsh cule persisted so long in North Care-

ause the state had no penitentiary and thus had no

md oy otenien to the death penalty, /hid.

20. Ibid.

Legislation, both statutory and éonstitutional, is

enacted, it ix trae, from an experience of evils, but its

general, language should not, therefére, be necessarily

confined to the form that evil had theretofore taken.

Time works changes, brings into existence new condi-

tidns and purposes. Therefore a principal to be vital

must be capable of wider application than the mischief

which gave it birth. This is peculiarly true of consti-

tutions, They are not ephemeral enactments, designed

to meet paxsing occasions. They are, to use the words

of Chief Justice Marshall, ‘designed to approach im- _

mortality as nearly as human institutions Gan approach :

it."’ The future is their care.and provision for events,

_ of good and bad. tendencies of which no prophecy can

be made, In the application of a constitution, thete-

fore, our contemplation cannot be only of what has

heen but of what may be. Under any other rule a

constitution would indeed be as easy of application as

it would be deficient in eflicacy and power. Its general

principles would have littl’ value and be converted by

precedent info impotent and lifeless formulas, Rights,

declared in words might be losf in reality, And this

has been recognized. The meaning and vitality of the

Constitution have ‘developed against narrow and re-

strictive construction. er Sy

~The conclusion to be drawn from thix ix that the faet

that death was deemed a constitutionally aceeptalde penalty

for rape in 17st when the Kighth Ame miment was framed,

" or 1868 when the Fourteenth Amendment was. adopfled or

even in 1947 when Louisiana ex rel. Francia ©. Resweber

was decided by thix Court, does not require the Court to

hold today that it ix constitutionally. acceptable and not

violative of the Eighth Amendment, As the Court said in

Weems (217 ULS. at 7s), The clause of the Constitution

' 7 16

aac may therefore be progressive, and is not fastened to

the obsolete, but may acquire meaning as public opinion be-

comes enlightened by a humane justice.”’

Nor is the Court precluded from ‘adjudging the death

penalty for non-homicidal rape to be unconstitutionally

excessive by reason of the fact that the legislature has ex-

pressly or implicitly found it to he efficacious as a deterrent.

As we will show below (p. 25), the scientific evidence is

almost unanimously to the contrary; but even if that were

not so, the Eighth Amendment does not except from its

prohibition such cruel and inhumane punishment as effee-

tively deters others from committing the same crime. If

it did, there would be nothing left of the Amendment, for

the more cruel the punishment the more effective it would

be as a-deterrent. Convededly, the state has an interest

in deterring rape. But so too does it have an interest in

deterring forgery, ethbezzlement, petty larceny and even

traffic violations, and that interest would hardly constitu-

tionally justify insposition of the death penalty for those

offenses.”

21. “But, indeed, were capital punishments proved by experi-

ence to be a sure and effectual remedy, that would not prove the

necessity * * * of inflicting them upon all occasions when other ex-

pedients fail. I fear this teasming would extend a great deal too

far. For instance, the damage done to our public road by loaded

wagons is universally allowed, and many laws have been made to

prevent it: none of which have hitherto proved effectual. But it ,

does nat therefore follow.that it would be just for the legislature to

. inflict death upon. every obstinate carrier who defeats or cludes the

isions of former statutes * * *” 2 lackstone’s Commentaries,

164-65. (It should be noted, incidentally, that this quotation effec-

. tivey disposes of the claim that the term “crucl and umusual” as

send te the Hill of Rights of 1688 comtemplated only the method of

punishment and nut its excessiveness.)

17°

Today, 17 states and the District of Columbia maintain :

in their statutes the death penalty for rape. AH but one

(Nevada) are southern states” The death penalty for rape

ean therefore truly be said to be a regional or geographic

phenomenon. But, we submit, a_geographie or regional —

variation’ cannot restrict the Court’s exercise of judgment

in construing and applying the Eighth Amendment any

more than can the First or Fourteenth. Indeed, whether or

not it was the intent of the framers of the latter amendiaent

to incorporate the first ten,** the practical effectuation of

the same result through the steady process of selective in-

‘corporation initiated in Gitlow v. New York, manifests a

strong judicial policy towards nationalizing the Bill of

Rights. During the quarter of a century since Gitlow, the

personnel of the Court has undergone many changes; it has

included such staunch defenders of federalism as Mr. Jus-

tice Frankfurter. Yet, during the entire period the prog-

ress towards nationalization has not béen stayed and cer-

_ tainly not been reversed; not a single decision holding

applicable to the states by virtue of the Fourteenth Amend-

ment a right secured in the first ten has been overruled by

22. The states are Alabama, Arkansas, Delaware, Florida, Geor-

ia, Kentucky, Louisiana, Maryland, Mississippi, Missouri,, Nevada,

Korth Carola, Oklahoma, South Carolina, Tennessee, Texas and

Virginia. Vedau, p. 43; United Nations Report, Capital Punish-

ment (ST/SOA/SD/9-10), p. 40 (hereinafter referred to as UN

Keport). The latter includes West Virginia but in 1965, after the

UN conspilation, that state abolished capital punishment in all cases.

United States Department of Justice, National Prisoner ° Statistics,

No. 42, June, 1968, p. 32 (heremafter referred to as NPS). In Ne-

vada, rape is putnshable by death only where committed with substan-

tial Ixalily harm to the victim. Nev. Kev. Stat. Sec. 200.363 (1967).

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

24. See Adamson v. California, 332 US. 46 (1947) (opinion by

Mr. Justice Keed, concurring opinion by Mr. Justice Frankfurter

and disseming opinion by Mr. Justice lack). :

25. 268 U.S. 652 (1925)

‘the Court or even modified to the extent of according

greater liberality to the states in interpreting the seope

of the right.*”

The principle underlying Gitlow and its suecessors is

that we are one indivisible nation with liberty and justice

for all, and not merely for those fortunate enough to reside

in some rather than other regions of the country. It is

the principle that where the fundamental freedoms of the

Bill of Rights are concerned (one of which is the freedom

from cruelly excessive punishments) accidents of geog-

raphy are irrelevant. So long as we are one nation, it is

unacceptable that the right of a man, even a rapist, to live

should depend on whether he committed the offense five

fect north or five feet south of the Mason-Dixon line,

It is not merely in the many incorporation cases that

the judicial policy negating geographical factors in apply-

ing constitutional freedoms is manifest. In Brown v. Board

of Education, supra, the Court held that a Negro child

attending public school in Topeka, Kansas has as much

right not to be segregated as his cousin attending school in

Denver or Minneapolis. In Loving v. Virginia, 388 US. 1

(1967), it held that the right of a Negro and white to marry

each other is not dependent on whether they live in Rich-

mond or in New York.

The thrust of Baker v. Carr, 369 U.S. 186 (1962) and its

manifold progeny is that not only. the right to vote but the

value of one’s vote may not be made dependent upon the

26. As suggested by Mr. Justice Jackson in Beauharnais v. Iili-

nois, 343 U.S. 250, 288-295 (1952) and Mr. Justice Harlan in Roth

v. United States, 354 U.S. “6 (1957).

geographical accident of whether he lives on a farm or in

a city.

Perhaps most germane is Jacobellis v. Ohio, 378 U.S.

184 (1964). In Roth v. United States, 354 U.S. 476, 489

(1957), this Court had held that the test for constitutionally

unprotected obscenity is ‘‘whether to the average person,

applying contemporary community standards, the dominant

theme of the material taken as a whole appeals to prurient |

interests.’’ In Jacobellis, the Court held that the term

‘‘community standards’? does not imply a determination of °

the constitutional question of obscenity in each case by the .

standards of the particular community from which the case

arises, but that it refers to national rather than local stand-

ards. What the Court said in Jacobellis is, we submit, par-

ticularly relevant here (378 U.S. at 194-5) :

It is true that local communities throughout the

land are in fact diverse, and that in cases such as this

one the*Court is confronted with the task of reconciling

the rights of such communities with the rights of in-

dividuals. Communities vary, however, in many re- °

spects other than their toleration of alleged obscenity,

_ and such variances have never been considered to re-

quire or justify a varying standard for application. of

the Federal Constitution. The Court has regularly

been compelled, in reviewing criminal convictions chal-

lenged under the Due Process Clause of the Four- |

teenth Amendment, to reconcile the conflicting rights

of the local community which brought the prosecution

and of the individual defendant. Such a task is ad-

mittedly difficult and delicate, but it is inherent in the

Court’s duty of determining whether a particular con- ,

viction worked a deprivation of rights guaranteed by

the Federal Constitution. The Court: has not shrunk

from discharging that duty in other areas, and we see

no reason why it should do so here. The Court has

explicitly refused to tolerate'a result whereby ‘‘the

constitutional limits of free expression in the Nation

would vary with state lines,’? Pennekamp v. Florida,

supra, 323 U.S., at 335, we see even less justification.

for allowing such limits to vary with town or county

lines. We thus reaffirm the position taken in Roth to

the effect that the constitutional status of an allegedly

obscene work must be determined on the basis of a

national standard. It is, after all, a national Consti-

tution we are expounding. (Emphasis added.)

If a community may not determine for itself what is.

obscene, it may not detérmine what is cruel and unusual.

If restrictive local or-regional standards may not determine

the right of an American to speak, it certainly may not, we

submit, ‘determine his right to live. -

It may be coneeded that these decisions as well as one

that forbids a state to impose the death penalty for rape

impinge somewhai upon federalism strictly construed. But

federalism, like government, is not an end but a means.

We declared our independence of England because we be-

lieved that governments are instituted among men to secure

their inalienable rights, of which first and foremost is the

right to live, and that when a particular form of govern-

ment fails to secure these rights, it is the form of govern-

ment and not the rights which must yield.

It is no answer to say that application to particular

geographie regions of national concepts of the meaning of .

freedoms secured by the Bill of Rights should be effected

by constitutional amendment rather than court decision,

- 21

for it is the teaching of all the post-Gitlow decisions. that

this’indeed is what was done in 1868. If the Fourteenth

Amendment means anything, it means that a man’s right

to life or liberty cannot be made dependent upon local or

regional standards but must be judged according to the

standards of the entire nation. It is, after all,-a national

Constitution which secures this right.

F. Applicable Standards of Cruelty

As we have indicated, the ultimate authority to deter-

mine what constitutes constitutionally impermissible pun-

ishment rests with the courts. This is so becausé in a

Federal. system based upon a written constitution there

must be some single agency which has the final responsi-

bility of determining for the whole nation the meaning of

that constitution. Ever since Marbury vy. Madison, 1 Cranch

137 (1803), it has been established that this responsibility

has been delegated to the judiciary. It is therefore the

responsibility of this Court to adjudicate the appropriate-

ness of the death penalty for rape.

In discharging this responsibility, members of the C ‘ourt

are not left without guides other than their own subjective

predispositions. We do not urge the Court to reverse in

the present case merely because its members may not like

the idea of a person being put to death for a non-lomicidal

rape. We do not even urge that the penalty be adjudged

unconstitutional because the Court deems it shocking to

the conscience, although there is ample authority for this.**

We believe that there are standards or criteria available -

27. See, e.g., Rochin v. California, 342 U.S. 165 (1952); Loui-

. siana ex rel. Francis v. Resweber, 329 U.S. 459, 471 axed ) (con-

curring opinion of Mr, Justice Frankfurter ).

‘22

to the Court as reasonably objective as can be expectgd of

a constitutional provision whose words necessayf¥ ‘‘are

not precise.’”*

We have heretofore urged rejection of such criteria as

acceptability’ in 1789 or 1868, effectiveness as a deterrent,

and contemporary acceptability in .a particular geographic

region. There are, however, other: standards or criteria .

which are appropriate and it is to these that we. now

address ourselves.

Preliminarily, we note that the over-all principle was

expressed by Mr. Chief Justice Warren in his plurality

opinion in Trop v. Dulles (256 U.S. at 101). ‘*The Amend-

ment,’’ he said, ‘‘must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society.’’ The criteria we now propose will, we submit,

aid the Court in determining whether the death penalty

for non-homicidal rape is consistent with these ‘‘evolving

standards of decericy.’’:

1. The cruelty of non-deterrent punishment

We have pointed out above (p. 16) that punishment

may be constitutionally cruel even if it is effective as a

deterrent and that accordingly if the death penalty were

effective to deter rapes it nevertheless could still be viola-

tive of the Eighth Amendment. But, we suggest here, the

converse does not follow; punishment which does not deter

and does not serve any valid purpose at all (such as ref-

ormation) or any valid purpose which cannot effectively

be served by less harsh means (such as isolation) is, we

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

sybmit, cruel and inhumane. This is so because its only

purpose is vengeance,”® and vengeance is forbidden by the

Constitution.

‘Mr. Justice Brennan did not join in the Chief Justice’s.

plurality opinion in Trop v. Dulles, but he expressed this

principle well in his own concurring opinion. After con-

29. There is considerable empiric evidence to support the be-

lief that vengeance is the purpose of the death penalty. Prison au-

thorities uniformly search and guard condemned prisoners closely |

to prevent suicide. Should a prisoner in attempting suicide injure

himself, no medical effort is spared to keep him alive for the sched-

‘uled execution. _ Gottlieb, Capital Punishment, 15°-Crime AND De-

JINQUENCY 8 (1969). It is apparently not the prisoner’s death but

the putting him to death that the state demands. Moreover, the

“prisoner must be conscious. and sane at the time of the execution.

Dr. William F. Graves, for many years medical officer at San Quen-

tin, made some fifty visits on death row, examining each condemned

inmate to determine his physical and mental status and to recom-

mend any treatment that might be needed to keep him alive and sane

for execution. Dr. Graves reportsgas follows regarding one con-

demned prisoner: ¢“During his stay in Death Row, McCracken be-

camé no more than a vegetable. On one occasion, I found him wal-

lowing on the floor of his cell in his own excreta babbling in¢o-.

herently. I arranged to have him transferred to the prison hospital *

where he was given electric shock therapy—this to bring him to a

point of sanity at which he might be considered able to understand

that hé was being punished at the time of his execution.” Jbid.

That this practice is not limited to the United States is shown

by the following-from the UN report cited above (at p. 101): “There

are provisions in the laws of many countries which allow the post-

ponement of an execution in the event of cither serious physical ill--

ness or insanity which appears after sentencing; the execution then

takes place when the condemned man is in good health. Ironically,

this practice sometimes results in the fact that the state expends con-

siderable effort and funds to save the life of the man it will then

proceed to kill. * * *” All this makes sense only in terms of ven-

geance; the culprit must be sane and conscious when the state puts

him to death, else the state’s vengeance would not be Yall.

The practice in ancient Israel, during the time when capital pun-

ishment was still effected, was the reverse. The condemned prisoner

was given wine spiced with frankincense to drink in order to be-

numb his senses. Talmud, Sanhedrin 43a. ' ers,

o4 ?

eluding that denationalization for desertion during'wartime

is ineffective as a deter rent, he stated (356 U.S. at 112):

ee cannot be denied that there is implicit in this

a certain rough justice. He who refuses to act as an

American should no longer be an American—what

could be fairer? But I cannot see that this is anything

_ other that. forcing retribution from the offender—

naked vengeance, * * * — aa

Mr. Justice Brennan did not join in the plurality opinion

based on the Eighth Amendment ‘presumably because the

Government had ‘‘understandabl[y] *.* * not pressed its”

‘ease on the basis of expatriation of the deserter as punish-

ment for his crime.’’ (Jbid.) Had it done so, the tenor of

his opinion and his joinder in the Court’s opinion in Robin- .

son v. California, supra, indicate quite clearly that he would

likewise have held that non-deterrent, vengeful punishment

is violative of the Eighth Amendment’s pr ohibition of cruel

and unusual punishment.

Mr. Justice Brennan pointed out in Trop that because

of the novelty of expatriation as punishment no one can

judge its precise consequences and he accordingly could

not rely on any studies to establish its inefficacy as a de-

t wO

terrent... Nevertheless, he coneluded that since its. efficacy

had not been established, so grave a penalty could not con-

stitutionally be imposed by Congress.

30. He did, however, note that, from the fact that in two-thirds

- of the cases of the 21,000 soldiers convicted of desertion during

World War II and sentenced to be dishonorably discharged, review-

ing atthorities remitted. the dishonorable discharges, ‘“‘it is ‘possible

to infer that the military itself had no firm belief in the deterrent

effects of expatriation.” 358 U.S. 112, n. 8.

' 25

In respect to capital punishment, however, substantial

studies have been made by competent scholars and their

conclusion: is overwhelming that statistical research does .

not support the assumption that the death penalty is more |

effective as a deterrent than life‘or Jong-term imprisonment

and that it is the certainty rather than the eravity of the

punishment that is critical in deterrence."' (Indeed, the

only contrary assertions. are unsupported, impressionistic

statements mainly from law enforcement officials.*) Some

of the scholars assert flatly that the death penalty, as dis-

tinguished from imprisonment, is not a deterrent ;°* or may

even have a contrary effect and actually incite commission -

‘ol. Sellin, The. Death , Penalty, 19-63 (1959); Sellin, Capital

Punishment, 135- 186 (1967): Calvert, Capital Punishment in the

Twentieth Century, 51-90 (1928) ; Mattick, The Unexamined Death,

8-28 (1966); Koeninger, Capital Punishment in Texas, 1924-1968,

15 Crime anv DeLinguency (1969) 132; Sellin, Does the Death

Penalty Protect Municipal Police? in Bedau, 284+; Campion, Does

the Death Penalty Protect State Police? in ibid. 301; Savitz, The

Deterrent Effect of Capital Punishment in Philade Iphia, in ibid., p.

"- 315; Graves, The Deterrent Effect of Capital Punishment in Cali-

fornia, ibid., p. 322; R@al Commission on Capital Prnishment, Re-

port (1953), sections 67-68: Reckless, The Use of the’ Death

Penalty, 15 CRIME AND DELINQUENCY 52-56 (1969); McCafferty,

Major Trends in the Use of Capital Punishment, FeperaL PRopa-

TION, Sept. 1961, pp. 15-21.

32. Hoover, Statements in Favor of the Death Penalty, in Be-

dau, 130; Allen, Capital Punishinent: Your Protection and Mine,

id., 135. But not all law enforcement Officials agree. See, e.g., State-

ment. of Attorney General Ramsey Clark .on S$. 1760, Dept. of Jus-

tice Release, July: 2, 1968. Correction officials, moreover, appear

very predominantly to be of the opinion that capital punishment has

no significant: deterrent effect; Thomas, Attitudes of Wardens To-

wards the Death Penalty, in Bedau, 242; Gottlieb, C apital Punish-

ment, 15 CRIME AND DELINQUENCY 13 (1969).

33. Professor Sellin, for example, has asserted positively that

there is evidence for the view that imprisonment is as good a, de-

terrent as the death penalty. Bedau, 264. So too has Koeninger, s

Crime and Punishment in Texas, 15 CRIME AND DELINQUENCY 132,

141 (1969) (“The death penalty for murder in Texas has not been

a deterrent.” )

. J ° ®

of the very crime it etek» to deter." More cautious schol--

are say only that there is ne evidence to support the theory

that the death penalty i is a deterrent superior to imprison.”

ment” 4 But even acevpting the, latter view, we submit, in

harwoiy wih Mr Jostice Brennan's position in Trop v. .3

Jidles, that where the consequences of a choice of pronation:

is @ grave, the Constitution reydites some evidence to

support the cheite male and dees got sanction the «taking

of a man’s life On a guess, | es. °

i a

In sun, we eudenit that in the absence of at least some

convincing evidence Hat the death pountty. for rape does

netnally abeter othe oY tapes to dn expent greater than life or

Kew term imprisomment, the death penalty constitutes crack

satnel wrasual qunishenes nt in Violation of the Kighth Aamend

inert, 4 4

2. The death penalty for rape as a. bedge of shavery

Every relevant study inmdicates on tes relation be. ‘

tween the death ponalty amd poverty; for {he crime that

cette the poor man te the death chamber, tha welltoddee, if

con teetesl ai", i> teen likely te oe of inaone, Dean Mae

namara of the New Vork Institute of Criminolomy was per. +

hiciges sewer, Haat tie in otating that * Ht may dee eQeoedingly > ’

‘litical es a teh man-to enter the Kingdom o Mewven

bout igowe after case bomen wilternn Sheet if ox Virtually imagens

Si. Seflin, Thee Peath Memalty (198), 65-49, Scotty 1 Distory ;

A Capital Punishment | WtAS49 9, ye 2Me Mawsacthametts, Keqent ct the -

Iheath Movs ct 1S», 27 2K 4 He, Keport on Capital lumsh

(Wael) 49. Kewte? i'n sy heaters? Looks at the Vegth " raeeath we

Dew ol jonas Were PSK) ge 47, \

25. Sew autlunieies Need ve Jette 25. Vevlaw sums it up as

bthews “Velat dhe all theese studies, cahken Qapether, sewn tr show ?

Dhe ropults ane megatige, there te ae evedence to eagqpert the theory

that the death pomalty te a deternen a ah a! te puapocennmees haa

the comme of der” ‘p dot)

—_

Mins, in Mevdaw, 14K >

2 e ad e

; ae

* sible for him to enter the exesution chamber," but the

substantial trath of the statement is supported boy aol the

authorities,” and is conceded even by those favoring rete

tion of capital punishment.”

The death penalty in not only a function of poverty, it

is also a function of race. There is subsfanitial evideroe

and agreement among the authorities. that racisal sliseriond

mation isa significant factor in the imporition and execution

of the death sentence.” Attorney General Ramey Clark

M. Macnauara, Svatiant Acaxsr Caria Puxissiwent

i Hevlan, INK See also, Phonan, Tie Miwan Som ov Carina

Dewieen seed, tee Mevdaes, po SHO Nt be dlifficult to find caste where

perege of’ nleans ot sacial potion haye heen execute! baton

ante nelicted for capatal idleness whey ate able to cons eXpert heal

coameel threaghiad the trials ar® abiwet corthin te avedd death

penaltios. Jn the fansaw Fih Tregett case on Caltiormia, ther

wete three trials, two hung juries, amd finally verdicts of gusty baw

avthout the death genaliy. Wt ts cotineted that the cot ef thes

trials was cover SP ragMlicns Mast tee the triad of came chedenedants woth

ait fammls, juries have deter sted tir as littl as nineteen mines cd

att bent nate ot lew, aml then teturied wendts of guilty ated cleath”

37. Duty aged Miselibery, 88 Mis anne Wapma’e (Iti op 28,

» iSalle, Capital Pumshuwnt and Clonency, 25 Cw Sis th 171,

F240 Dhevlvas, heath Senlomrs in Nim Siavey Jar; fen,

Kew A, Mae 1 Cpt: Pedi, Selection Factors on (apital

Punishincnt, MY Semin Fomrs 16S (Ua: Kooninger, Capital

Vumishincnt im Teaas, 19241908, 18 Caine ano Detiwori nes it}

(ia), S rote at Miter Canetal Kanes Chath oa Steal,

July 2, aw» W idigang, belly al Nokde, Passi tions any tow

MUTATIONS O% Me A rovtw nen, te Medes, ANZ ANS. Plime, Pane’

“Hewan Stile on Cart Posiuwens, io Below, S051 Maatly

gan, Death, The Voor, Mani Vemelty, Var Auiwican Wisacy,

May 15, 6a), po - .

a “f : . "

SX Bg, Vile. ¢ arsine ntentions. Youn Maori any

DP) Wedigang, Kelly mad Nok, Vassevions anu Comme ns

(tons IN Penwoviwanen, to Mevhew, IS 027, Mactmre, Saute

tet Agatoet Capetal Uusneloet, in efod 188, Marta, Tecotecnt

Condemicd Mrionns, US Come ano INdiana ney) Sele,

(1m0)) , Cogstinkel, Nescanh Note om later wud lutra Kacial Hous

ides, Be Semine Peteae MOP 10) fd, TAP Newre. and

Crnme, 271 Anaale 4S (VT) See aber authawities cited mi haamote

Sl, supra. : via

2 o

. .

: stated ‘quite categorically in testifying before the Senate

Subcommittee Of Tie Titiciry on S. ite (July 2, 1968)

“that, ‘racial discrimination oecurs in the administration

of capital punishment.” By no sovans untypieal is the

follow ine filini dna study of capital punishment in Texas:

“In several instances where a white and a Negro were eo-

defemlants, the white was sentenced to life imprisonment

or a term of years, and the Negro was given the death

jprumalty.-""

The positive relationship between the death peasalty and

race ix strong, but where the, crime involved is rape and

nite purtioularly, as in the present case, the pipe of a white

Wcetenan bey a Negro, the relationship i i” aaltnveost uncontrovert-

ible. The statistics of the Department of Justice show

thet ite the Cnttesl States an thie porriend from 1900 to

1F the pareentage wf whites and Negroes among those

exetitedewas, respectively, for murder, 49.9 aml 48.9; for

crimes other than mutder and rape, 55.7 amd 44.3; for rape,

lon and soa”

ben Dd, thee (oniet in Brown v. Board of Education,

cuprdodeclangl racial segregation in the public schools to

sheild te death for the rape of a white woman, A com-

“peitioon of the atts Whites statutes in 14 required or

ut herrasend racial’ seogrenatin TT thie wabiemels and I hierme

’ *

i) Kegs, Capital Mantshment im Texas, allie 15

(eine ante Detencre mew DAE Cree)

PONDS. ge 7. Ate tenleqeete lense stiwly made 14 Texas for the

sects POP Dae DS ewe be nader the te Lative prreentage of whites

14 aed MS Keatneget, C apetel Muntchment in Tevas, 1921-19068, 15

(wine Ante drei ines Be ld .

whieh in 1962 authorized® the death penalty (and witli the

exception of West Virginia still

of great significance :

Segregation States®:

Alabama

Arizona -

* Arkansas

* Delaware

District of Columbia

Florida

Civorgia

Kansas

Kentucky

Louisiatia

Maryland:

* Mississippi

Missouri

New Mexico

North Carolina

Oklahoma

_ Carolina

TAitiessece

“Texas

Virginia

West Virginia

Wyoming.

Death Penalty States“

Alabama

Arkansas

Delaware

District of Columbia

' Florida

Georgia

Kentucky

Iauisiana

Maryland *

Mississippi

Missouri .

Nevada”

North Carolina

Oklahoma

South Carolina

Tennessee*

Texas’

Virginia

West Virginia

do) for rape is, we believe,

P 42 In my styte is the death sentence for rape mamlatery > other-.

wise a white gharged with rape *wotld have to be either acquitted or,

as rarely happens, be sentenced to death. See Bedau, p. 413.

a . »-

43, Murray, States Laws ow Kact anv Coron, Supp. (1955),

44. Supra, wae 22.

“45. In 1915, Tennessee dhelishit’ capital prnishment for all

Ties creep rape

Hevlan, p. 413.

With the exceptionof Nevada (wheré the death penalty

is permissible only if the rape is accompanied by substan-

tial bodily harm to the vietim™ and where in any event the

statute is a dead letter, no person having been executed

under it at least sinee 1930)" every state (including the

District of Columbia) which authorizes the death penalty

for rape required or authorized racial segregation.in the

pibtic shiols aitil it was declared unconstitutional, Con-

versely, of the 22 states which required or authorized racial

segregation in the publie schools, all but three (Arizona,

Kansas and Wyoming) authorized the death penalty for

rape. :

= ‘

This almost one for one relationship between racial

segregation and death penalty statutes for rape as well as

other statistical and empiric evidence, can be explained in

no other way than in terms of racial discrimination. This

is the practically unanimous conclusion of the competent

scholars who have studied the problem.” Thus, Koeninger,

reporting ‘on & Texas study, asserts; “The Negro con-

vieted of rape is far more likely to get the death penalty

than a term sentence, whereas the whites and Latins are

far more likely to get a term sentence Mian the death pen-

alty."" Bedan states (at p. 418 ) that

ote Do iis the N ational Sila Statistics shows of the

nineteen jurisdictions that have executed inen for rape

. . * *

since 1990, a third of them have executed only Negroes.

* Me, Supra, mae 22.

47, NPS, p. 11.

iS Bedaw. p. OO: Ehrmann, Tate Hesan Sipe or Punjsu-

went, in Bedau, p. SIL See abo authorities cited in note 39, supra.

> 15 Cuiss any Detinoue’ncy IAl 4 LOOM).

In these six states, the very existence of rape asa

crime with optional death penalty is, in the licht of

the waf it has been used, a strong evidence of an

original intent to discriminate fesiust nonwhites.

At the request of the NAACP Leval Defense and Edu-

cation Fund, Professor Marvin BK. Wolfeane undertook an

independent investigation of the relationship of the death

‘ penalty to race in rape cases. Dr. Wolfeane’s findings,

which accorded with those of all-the other Scholars, were

presented to the District Court in this exse in support of a

claim of denial of eqi&!l protection, but that court and the

Court of Appeals werd unpersnaded, primarily because the

study did not encompass the particular county (Garland)

wherein the present case was tried. The courts apparently

believ ed that the fact that juries in ' othe ‘vy counties act dis-

criminatorily in nnposing th the death sentence does not jus-

tify an inference that the jury in the preset case followed

the general pattern.

meee of the limited nature of the certiorari allowed

i this case, the equal protection question and the correct-

ness of the decision of the lower courts on, that specifie

: question are not how open to review, Petitioner » however,

offers Dr. W olfgang’ s findings to this Court’ on another

ground which is before it, namely, that unbridled discre-

lion on the part of a jury in fixing the penalty for rape’

usually if not inevitably results in racial diserimination

and hence is arbitrary and a deprivation of due process.

We offer Dr. Wolfgang's findings as well as the statix-

tietl and other scholarly studies to this Court on an anal-

ogous but somewhat different basie. AVe suekest that if a

white man found guilty of rape is rarely sentenced to death,

or if sentenced is rarely executed, then the death sentence .

for a Negro convicted of the same crime may truly be said

to be an ‘‘unusual’’ punishment, and hence violative of the

Kighth Amendment. We suggest too another approach.

In Robinson vy. California, supra, the Court held that to

_ punish a person for a status (drug addiétion) which he

cannot control violates the Eighth Amendment.” The

same reasoning makes violative of the Amendment the im-

position on a person of a penalty harsher than ordinarily

imposed simply because of a status (the color of his skin)

which he eaumot control.

It is true, of course, that neither the Wolfgang study nor

the National Prisoner Statistics or the scholarly studies

which have been cited herein specifically pinpoint Garland

County in Arkansas, and it is conceivable that the jury

which condemned the petitioner to death did not share the

general feelings regarding the rape of a white woman by

a Nexro prevalent in all the states which-authorize the

death penalty for rape. But the Constitution does not

require the courts to ignore what everyone knows or to

close their eyes to what everyone sees. Certainly, when

human life is at stake the courts have not merely the right

but an obligation to act on the basis of probability rather

than remote possibility.

In Brown vy. Board of Education, supra, the Court in

holding racial segregation in all schools to be unconstitu-

50. In Powell v. Texas, 392 U.S. 514 (1968), the Court found

an absence of evidénce in the record to support the claim that being

drunk in a public place was a status entirely uncontrollable by the

defendant, but in no way impaired the authority of Robinson.

“ .

tional relied upon scholarly studies that such segregation *

causés psychological harm to Negro children. Yet, none of

the cited s®udies pinpointed Topeka, Kansas, nor was any

other evidence presented to show that the Negro children

in that school district suffered any hurt frem the com-

pulsory segregation. The Court had held at least a prona

facie denial of equal protection on the basis of statistical

evidence of the exclusion of minority groups frem juries

even though there was no evidence that the particularly all-

white jury which convicted the defendant whose case was

being considered was motivated by racial considerations.”

The genius of the Anglo-American system of law is that

in a criminal case every reasonable doubt must be resolved * .

in favor of the accused. This is especially true, where a

human life is.at stake. Here far more than a reasonable

doubt is pres@rmthat the petitioner’s death sentence was

unmotivated by racial considerations. This should be more

than enough to bar the extinguishment of his life.

3. The death penalty and the national conscience

We have suggested (supra, pp. 17-21) that local or

regional standards are not the appropriate measure to de-

termine whether the death penalty constitutes ertiel and

unusual punishment within’ the purview of the Kighth:

Amendment, and that fundamental rights secured by a Na-

tional constitution must be applied nationally. We submit

that viewed nationally ‘‘the evolving standards of deceney

that mark the progress of a maturing society’ clearly

point to the elimination of the death penalty in the United

States. i

51. See, e.g., Hernandez v. Texas, 347 US. 475 (1954).

52. Trop v. Dulles; 256 U.S: at 101.

Although general public opinion jhas fluctuated over the

years, the trend is strongly toward abolition. Where in-

formed publie opinion is concerned, opposition to capital

punishment is overwhelming (with the exception of pro-

fessional law enforcement officials, but not correction offi-

}

cials). Bedau (at p. 236) summarizes the publie opinion

and attitude surveys as follows:

*** Tt seems fairly probable that: (1) psychiatrists,

penologists and possibly social scientists and social

workers generally, as well as higher government offi- '

_cials, tend to oppose the death penalty in this eountry

at this time; law enforcement officers tend to favor it.

The strength of these divergent attitudes is about.

_ equally pronounced. The general public shows a steacl-

ily growing trend to doubt the death penalty and to

favor abolishing it. * * * “

Better,than any other agency in a society its religions

groups reflect its conscience. The six constituents of the

Synagogue Council of America, in whose behalf this brief

is submitted, can fairly be said to represent Ameri¢an

Judaism, and all favor abolition of capital punishment.

Some of the others in the rapidly growing number of re-

ligious groups-on reeord as opposed to capital punishment

are: American Baptist Convention; American Evangel-

ical Lutheran Church; Augustana Kvangelical Lutheran

Church of North America; California-Nevada Conference

of Methodists; Christian Churches (Disciples of Christ)

International Convention; Church of the Brethren; Church

Federation .of Greater Chicago; Congregational Confer-

ence of Southern California and. the Southwest; Connect-

ieut Valley Presbytery; Connecticut Valley Quarterly

Meeting of Friends (Quakers); Connecticut Universalist

Convention; Greater Red Bank Area Council of Churches;

Massachusetts Baptist Convention; Massachusetts Council

of Churches; New York State Council of Churches; North-

ern California and Nevada Council of Churches; Protestwnt:

Episcopal Church in the United States of America; Prot-

estant Episcopal Church, Diocese of Massachusetts ; South;

ern California Council of Churches; Southern California-

Arizona Conference of the Methodist Church; United

Presbyterian Church ih the United States of America-Gen-

eral Assembly; Universalist Church of America.”

Legislative action reflects this trend. _in the past five

years, five states (lowa, New York, Oregon, West Virginia

and Vermont) have abolished the -death penalty." In ad-

dition, the United States Department: of Justice has urged

Congress to abolish the death penalty in places under its

jurisdiction.” But the statute books do not teil‘the full

story. Nevada, as we have noted, has never legislatively

abolished the death penalty for rape; yet not a single per- —

son has been executed in that state for rape in at least

forty years. Tliere is hardly a state in the Union which

‘ does rot carry on its books laws which have long become

archaic and obsolete. In gauging’standards, the de facto -

is more significant ‘than the de jure.°

6 a

An examination of what actually has been happening

shows clearly that the death penalty has really become an

* 53. Ehrmann, Tue HuMAN Sipe or CAPITAL PUNISHMENT, in

Bedau, pp. 515-516. This listing is far from exhaustive.

54. Bedau,p. 12.

55. Statement by Attorney General Ramsey Clark on S. 1760

(July 2, 1968). a

“56. Cf. Poe v. Ulbnan, 367 U.S. 497 (1961). -

36 °

‘‘unusual’”? punishment. The number of persons executed

within the United States in the years 1930, 1940, 1950 and

from 1960 to the present as reported by the Federal Bu-

reau of Prisons” are shown in the following table:

1930—155

1940—124

-1950—- 82 °

1960— 56

1961— 42

1962— 47

1963— 21

1964— 15

1965—

1966—

1967—

1968—

1969—

Coonrsn

It is true that some of the decrease may be explained

by decisions of this Cour:** and the activities of such organ-

izations as the NAACP Legal Defense and Educational |

' Fund and the National Office for the Rights of the Indigent

seeking to make available.to poor persons some of the legal

services available to the well-to-do, so that some who earlier

would have gone to the death chamber with little legal

opposition are now better able to use the law to preserve -

their lives. It is also true that, as of the beginning of

M68, there were 435 persons on death rows throughout

the nation” and that since then many ‘additional death

57. NPS, p. 7 (updated).

58. E.g., Griffin v. Illino’s, 351 U. $.12 (1956) ; Gideon v. Wain:

wright, 372 U.S. 335 (1963).

59. NPS, p. 13.

_37

sentences have been handed down, so that’ in the event the

present appeal and others that are on their way to this

° e ~

Court are unsuccessful some of these persons will be exe-

euted. Nevertheless, the steady decline in the number of

persons executed during the past four decades can be ex-—

plained only in terms of 4 widely held belief that the death

penalty is basically cruel and morally unacceptable.

- ’ ’ : °

The conclusions drawn in this section ‘and the statistical

and other factual information cited to Support them all

deal with the death. penalty generally, that is even for pre-

meditated murder. We do not in this brief urge a decision’

. . . . o .

that capital punishment is in all cases cruel and unusual

punishment violative of the Eighth Amendment. We urge

only that the death penalty for non-honiicidal rape does

violate the Constitution. In considering this narrower:

‘issue, it should be noted that, even if measured by what’

the statute books say rather than by what is attually done,

the national standard quite clearly rejects capital punish- 7

ment for rape; the overwhelming major ity of Americans

live in states whose laws do epee a judge or fury to

sentence a person convicted of rape t0~death. Measured

by the test set forth in Trop v. Dulles, this Court, we sub-

mit, can come to no other conclusion than that the time has

arrived judicially to-declare ,that*the death penalty for

non-homicidal rape does not comport with the present

standards ‘of national decency and therefore is violativ e of |

- the Eighth Amendment.

4. International standards — |

a ad .

A democracy, our Declaration of Independence asserts,

- imposes upon its people an obligation to accord a decent

respect to the opinions of mankind. We suggest that in

5 aa vanereenn

deciding whether capital punishment for rape is consist-

ent with evolving standards of decency, this Court ‘ean

and should accord respect to the opinion of mankind. This

is by no means unprecedented. In Trop v. Dulles, Mr.

. Chief Justice Warren noted that ‘‘The civilized nations of . |

the world are¢ in virtual unanimity that statelessness is not

to be imposed as punishment for crime,’’. 356 U.S. at 102.

He referred to a United Nations’ survey of the nationality .

laws of 84 nations of the world which revealed that only »

two countries, tlie Phillippines and Turkey, imposed de-

‘nationalization as a penalty for desertion, and at least

partly on the basis of this fact he held denationalization to

constitute cruel and unusual punishment. 356 U.S. at 103.

# What is true of cenationalization is equally true at

‘least in respect to’ capital punishment for noti-homicidal

rape.

We have quoted Bedau’s summary of American atti- —

tudes to the death penalty generally.” World opinion, as

indicated in a survey made under the auspices of the De-

»partment of Economic and Social Affairs of the United

Nations, is almost exactly the same. The UN reports as

follows :™ |

In the first sida it will be noted that, among the ,

leading authorities in penal science, the. supporters of

abolition appreciably outnumber those who favor the

retention of capital punishment. The specialists of

the social sciences, criminologists, socidlogists, penolo-

gists, psychologists, doctors, and writers on social

_ &, Supra, p. 34.

61. UN Report, p. 64. See, also, Ancel, Capital Prides in

the Second Half of ‘the Twentieth Century, Tue Review (Interna-

tional Commission of Jurists), June 1969, 33.

39. :

seiénce and criminology are, in their great majority,

abolitionists: The supporters of capital punishment,

apart from a number of political figures and persons.

holding high public office, are generally jurists with a

traditional training and judges.

It should be noted that here too the reference is. to

-* eapital punishment generally, even for premeditated mur-

" der. ‘When capital punishment for non-homicidal -rape is

involved, world revulsion is‘ even clearer, The United

Nations’ survey shows that of the sixty-five nations that

responded to its inquiri¢s, only four (other than the seven-

teen states in the United States cited above)® still permit

imposition of the death penalty. for rape.* There is, we

_ suggest, significance in the identity of the four which still

maintain the death penalty for rape. The four are the

Republic of China, N orthern Rhodesia, Nyasaland, and the

Republic of South Africa. In respect to.South Africa and

- Rhodesia whose policy of apartheid and discrimination is

_ notorious, it is fairly certain that’ racial considerations are

the prime factor in the imposition of the penalty of death

for rape. | fn

. We submit that the evolving standards of civilized dg-

cency in the nations of the world no less than in the United

States call for a declaration by this Court that the death

_ penalty for non-homicidal rape constitutes constitutionally

impermissible cruel nud vnusual punishment.

62. Supra, p. 29.

63: UN. Report, p. 40.

40 .

| Conclusion

All the evidence points to the conclusion that capital

punishment is on its way out. It is but a matter of time

before the laws authorizing it are repealed or become dead

letters. The reason for this is that it no longer comports

with ‘‘the evolving standards of decency that- mark the

progress of a maturing society,’’ and this will become in-

" Why, then, should not the Court abstain and let time

resolve the issue? First, because when constitutional rights,

particularly those that are fundamental, are violated, they.

should be vindicated promptly. _

Thus, in 1966,.it was quite clear that the poll tax in state

elections was on its way out and had but few years of °

survival; yet that fact did not deter this Court from de-

claring it unconstitutional in the very few states which still

retained it.“ Occasionally, as in the case of racial segrega-

tion in the schools, the Court has felt that prompt vindica-

tion is impracticable and has contented itself with decreeing

effectuation of its decision with all deliberate speed. *5 Look-

ing backwards, it is by no means certain that a judgment

ordering reasonably prompt compliance with the constitu-

tional mandate would not have worked better. -

But whatever the case may be with respect to school

segregation, no practical considerations dictate delay in

declaring “constitutional rights under the Eighth Amend-

ment. “The Court’s judgment will require no complex re-

structuring of communal institutions. As in the case of

the poll tax, the judgment will be self-executing.

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

(1966). |

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

But, more important by far, until such time as the slow

/ wheels of legislative reform catch up. with the national

conscience, human lives in an amount which cannot be fore- |

told, will have been extinguished. We who submit this .

brief borrow from our Jewish tradition in noting that our

Rabbis taught us that he who destroys one life, it is as

though he destroyed the whole world; while he who sustains

one life it as though he sustained the entire world.” This,

we believe, applies even to the life of a rapist.

In Trop v. Dulles, 356 U.S. at 100, Mr. Chief* Justice

Warren stated that ‘‘the basic concept underlying the

Eighth Amendment is nothing less than the dignity of man.

While the State has the power to punish, the Amendment

stands to assure that this power be exercised within the

limits of civilized standards.’’ These standards, we sub-

mit, require the Court to declare at this time that the death

penalty for non-homicidal rape affronts the dignity of man,

- does not comport with civilized standards and cannot be ~ -

sustained under the Eighth Amendment.

fo ST el Respectfully submitted,

Lro PFEFFER

15 East 84th Strect

New York, New York 10028

Marvin BralreRMAN

Morris DersHow1Tz

Wr Masiow

Henry A. Rapaport

JosePH B. Rosison

Gerorce Sout .

_ Attorneys for Amici Curiae

Leo PFEFFER :

Of Counsel

September, 1969

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

sed 2S PE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.