Amicus Curiae Brief — Aikens v. California

& JF FILED.

NG 27 1971

E. ROBERT SEAVER, CLERK

In Tue 8

Supreme Court of the Auited States

Ocroszr Tan,, 1971

No. 68-5027

EARNEST JAMES AIKENG, JE.,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the Supreme Court of California

Marsnatzt J. Hantwan

American Bar Center

1155 East 60th Street

Chicago, Illinois 60637

(312) 684-2727

Counsel for Amicus Curiae

NarioxaL Lecat Am Anp

Derexper AssociaTIon

— — —

lee OC. enen ne

INTEREST OF AMICUS CURIAE

OPINION BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED _.....

QUESTION PRESENTED

STATEMENT OF THE CASE

ARGUMENT

The Cruel And Unusual Clause Of The Eighth

Amendment Is A Dynamic Concept Which Now

Must Be Applied To Render The Death Penalty

Unconstitutional 4

A. Punishments less severe than the death pen-

alty have been held cruel and unusual under

2 co ee et ® 88

the Eighth Amendment 5

B. The incidence of the death penalty renders it

cruel and unusual 8

C. Policy considerations—the effect of the death

penalty upon other aspects of the criminal

justice system 9

CONCLUSION 11

Last Or Avrnorrrms Crrep

Cases

r 90

Ex Parte Wilson, 114 U.S. 417 :

Holt v. Sarver, 309 F. Supp. 362 0)

Jackson v. Bishop, 404 F. 2d 571 (1968) 5,7

Jordan v. Fitzharris, 257 F. 674 (1969) . 6, 7,8

Lollis v. New Tork State t of Social Serv.

ices, 322 F. Supp. 473 (1970)

Robinson v. California, 370 U.. 660

Tot v. U. S., 319 U.S. 463, 467

Trop v. Dulles, 356 U.S. 86 (1958)

Workman v. Commonwealth, 429 S.W. 2d 374, 378

(1968)

Wright v. MeMann, 321 F. Supp. 127 (1970)

Texts and Reports

Bedau, The Death Penalty in America, Review d

Forecast XXXV Federal Probation 32, 33, 35 (June,

(1971) 8, 10

The Challenge of Crime in a Free Society at 143 _ 9,10

Criminal Justice Cases and Comments, Inbau, Thomp-

son and Sowle, Vol. 1, Ch. 5 at 448 10

H. Mattick, The Unexamined Death, 7-9, 31 (1963) — 8

Uniform Crime Reports at 6, 9 (1969) 8, 9

45 National Prisoner Statistics at 1 —̃

Is Tue

Supreme Court of the United States

Ocroszr Tzxm, 1971

No. 68-5027

EARNEST JAMES AIKENS, n.

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the Supreme Court of California

BRIEF OF THE

NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

AS AMICUS CURIAE

The National Legal Aid and Defender Association files

this brief Amicus Curiae pursuant to the written consent

of the parties.

INTEREST OF AMICUS CURIAE.

The National Legal Aid and Defender Association is

m organization composed of over 1,000 legal aid and de-

ender offices in America. In addition 3,000 individual

nembers, most of whom are private practioners, are

umbered among their ranks. The main concern of the

organization is with the rights of the indigent in oy

legal and criminal justice systems.

The Defender offices elect a nine man defender com

mittee composed of public defenders from Florida to

California to set policy and supervise the Defender com.

fender Committee, meeting in New Orleans, i

adopted a resolution condemning the use of capital pun.

ishment. Among the grounds urged for the abolition of

tional as violative of the cruel and unusual provision

OPINION BELOW.

The opinion of the California Supreme Court in People

v. Atkens is reported at 70 Adv. Cal. 383, 74 Cal. Rptr.

882, 450 P. 2d 258 (1969).

JURISDICTION.

-_

Petitioner invokes this Court’s jurisdiction pursuant to

28 U.S.C. See. 1257 (3).

eR

STATUTORY PROVISIONS INVOLVED.

This case involves the Eighth and Fourteenth Amend-

ments to the Constitution of the United States. The rele-

vant California statutory provisions are: (1) California

Penal Code Sec. 190 and (2) California Penal Code Sec.

190.1.

QUESTION PRESENTED.

Does the imposition and carrying out of the death pen-

alty in this case constitute cruel and unusual punishment

in violation of the Eighth and Fourteenth Amendments?

STATEMENT OF THE CASE.

The National Legal Aid and Defender Association

wopts Appellant’s Statement.

ARGUMENT.

THE CRUEL AND UNUSUAL CLAUSE OF THE Nan

AMENDMENT IS A DYNAMIC CONCEPT WHICH Now

MUST BE APPLIED TO RENDER THE DEATH PENALTY

UNCONSTITUTIONAL.

In Trop v. Dulles, 356 U.S. 86 (1958) this Court held

that the Eighth Amendment prohibition against cruel and

unusual punishment was a dynamic concept dependent

upon the “evolving standards of decency that mark the

progress of a maturing society.”

Although it is true that at the time of the adoption

of the Eighth Amendment capital punishment was prac-

ticed in colonial America, our notions of what consti-

tutes cruel and unusual punishment have undergone sig.

nificant changes.

In Ex Parte Wilson, 114 U.S. 417 Mr. Justice Gray

noted,

“What punishment may be considered as infamous

may be affected by the changes of opinions from one

age to another. In former times, being put in the

stocks was not considered as necessarily infamous.

. . But at the present day it might be thought an

infamous punishment.”

Robinson v. California, 370 U.S. 660 held the cruel and

unusual clause of the Eighth Amendment applicable to

the states. Since that time there has arisen a significant

body of law construing that clause and reflecting con-

temporary notions of what is or is not “cruel and un-

usual punishment.“

3

These cases make it clear that contemporary standards

of human decency have evolved to the point where im-

position of the death penalty must now be held to vio-

late the cruel and unusual clause of the Eighth Amend-

ment.

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

Blackmun, writing for the Eighth Circuit Court of Ap-

peals, held that the use of a prison strap as a disciplinary

measure in the Arkansas Penitentiary constituted cruel

and unusual punishment under the ‘Eighth Amendment.

Reviewing this Court’s decisions on the issue, Justice

Blackmun stated,

“In summary then so far as the Supreme Court

cases are concerned, we have a flat recognition that

the limits of the Eighth Amendment’s proscription

are not easily or exactly defined, and we also have

clear indications that the applicable standards are

flexible, that disproportion, both among punishments

and between punishment and crime, is a factor to

He went on to say that

“the strap’s use, irrespective of any precautionary

conditions which may be imposed, offends contem-

porary concepts of decency and human dignity and

precepts of civilization which we profess to possess;

and that it also violates those standards of good con-

science and fundamental fairness enunciated by this

—

— ne ee

Justice Blackmun relied in part on Jordan v. Fitzharris,

257 F. Supp. 674 (1969), in which the District Court for

the Northern District of California had held that condi.

tions of confinement in the California Correctional Train.

ing Facility at Soledad constituted cruel and unusual

punishment. Those conditions consisted of the prisoner

being confined in a small cell 6 feet by 8 feet 4 inches

for a period of 12 days in solitary confinement, naked for

seven of those days, generally without any light or ade

quate ventilation, and without implements to clean him

self.

Since those cases there have been many others in this

area, all concluding that such treatment of prisoners con

stituted cruel and unusual punishment under the Eighth

Amendment. The reasoning employed in the Fitzharris

case was, first to ask whether under all the circumstances

the punishment in question was of such character as to

shock general conscience or to be intolerable to funds

mental fairness. Secondly the Court noted that a punish

ment may be cruel and unusual if greatly disproportion

ate to the offense for which it is imposed. And finally,

a punishment may be cruel and unusual when although

applied in pursuit of a legitimate penal aim, it goes be

yond what is necessary to achieve that aim; that is, when

a punishment is unnecessarily cruel in view of the pur

pose for which it is used. (at p. 679) Accord: see Wright

v. McMann, 321 F. Supp. 127 (1970) (Prisoner confined

nude in isolation cell); Holt v. Sarver, 309 F. Supp. 38

(1970) (General conditions and practices in the Arkanss

state prison system); Lollis v. New York State Depart

ment of Social Services, 322 F. Supp. 473 (1970) (Chil

dren confined in isolated room in state training schook

a

with no recreational or reading programs); Dearman v.

Woodson, 429 F. 2d 1288 (1970) (Prisoner not given

food for 50% hours).

There are several conclusions to be drawn from the

reasoning of these cases.

The first is that if whipping (Jackson v. Bishop supra)

or even statelessness (Trop v. Dulles supra) are cruel

and unusual punishments within the meaning of the

Eighth Amendment, then it follows that the extreme pen-

alty, death, is also cruel and unusual punishment. See

Mr. Justice Frankfurter’s dissent in Trop v. Dulles, supra

at 125.

The second conclusion that may be drawn from these

cases derives from the Jordan formula (Jordan v. Fitz-

harris swpra), where the Court notes that a punishment

may be cruel and unusual if it goes beyond what is nec.

esary to achieve a legitimate penal interest. Compare

Workman v. Commonwealth, 429 S. W. 2d 374, 378 (1968).

That brings us to the question of the purpose for which

the death penalty is designed and whether the imposition

of the death penalty is necessary for that purpose.

Modern. penology rejects the doctrine of vengeance.

Its goals in this day and age are rehabilitation and de-

terrence. There is no question but that the death penalty

does not rehabilitate the offender, and so the remaining

question is that of deterrence.

On that score Dr. Hugo Bedau points out in his most

decent article on the Death Penalty that the majority

report of the Special Commission of the Massachusetts

legislature To Investigate The Effectiveness of Capital

Punishment as a Deterrent to Crime concluded in its in-

America, Review d Forecast XXXV Federal

32, 35 (June, 1971). See aleo H. Mattick,

ment within the meaning of the Eighth Amendment.

B. THE INCIDENCE OF THE DEATH PENALTY RENDEM

IT CRUEL AND UNUSUAL ‘*

There were 13,650 homicides recorded in the United

States in 1968. Uniform Crime Reports at 6 (1969). lh

that same year 102 defendants received the death pa

alty, 96 of whom were charged with murder. 45 Nation’

Prisoner Statistics at 1 (1969).

According to J. Edgar Hoover, Director of the FBI,

86% of the criminal homicides occurring in 1968 wen

1 747i,

1

in its efforts in non-capital cases. . . Criminal Justice

Cases and Comments, Inbau, Thompson and Sowle 1%

Vol. 1 Ch. 5 at 448.

This position is supported by the President’s Commis

sion on Law Enforcement and Administration of Justice

which noted that the death penalty “clearly has an

desirable effect on the administration of criminal i

tice.” The Challenge of Crime in a Free Society at 10

Por the above and foregoing several reasons, the Amicus

Curiae National Legal Aid & Defender Association

Chicago, Illinois 60637

(312) 684-2727

Counsel for Amicus Curiae

NatiowaL Leoat Am Awp

Derewper Association

ust 25, 1971