# Amicus Curiae Brief — Maxwell v. Bishop > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1441%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 262 ## 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 ; . . ? 7 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... A. B. 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 It 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 Vi 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. N 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 <9 _ 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. 3 . 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 ; x. 4 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). 3 5 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 4 ~ == agree tees 6 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 7 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). % oe 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. . 12 ‘ 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). 13 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. Register 225, queted in Weems v, United States,” 217 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, 4 st be dbubted that no American court would today sanction these methods of punishment in the face of the- mighth Amendment?" 4 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. 15 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 eS ge ' 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) 18 ‘the Court or even modified to the extent of according greater liberality to the states in interpreting the seope of the right.*” te 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). 19 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 20 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. 7 23 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 e 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 Ine yasneeonnetitentivonscal, © Boe 19M, the petitioner herein was con 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 tel Newtees eete tepent sesety Me aewd SS, whale for tay, they were © 14 aed MS Keatneget, C apetel Muntchment in Tevas, 1921-19068, 15 (wine Ante drei ines Be ld . « 29 * 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. a “45. In 1915, Tennessee dhelishit’ capital prnishment for all Ties creep rape Hevlan, p. 413. . a 30 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). * ad 31 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 32 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. “ . 33 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. 34 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 yz 4 ee 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 ay 5 aa vanereenn 38 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- creasingly obvious in the coming years. © " 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). 41 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1441%3A10. Public record. Not legal advice.