Respondents Brief — Jurek v. Texas

Saprome Overt, U. .

g FILED

| Fai © MAR 25 1976

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*

8 MICHAEL RODAK, I. CERA

IN THE E

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

8 * *

NO. 75-5394

* + *

JERRY LANE JUREK,

Petitioner

V.

STATE OF TEXAS,

Respondent

=

ON WRIT OF CERTIORARI TO THE COURT OF

CRIMINAL APPEALS OF TEXAS

BRIEF FOR THE RESPONDENT

JOHN L. HILL

Attorney General of Texas

BERT W. PLUYMEN

Assistant Attorney General

JIM D. VOLLERS P.O.Box 12548, Capitol Station

State Prosecuting Attorney Austin, Texas 78711

—

Attorneys for Respondent

INDEX

Page

A è ...... ee l

ER eee l

EE ES 2

SUMMARY OF ARGUMENT .......ccccccccccccccccscsccees 3

ARGUMENT AND AUTHORITIES. UW. ͥ 6

I. Capital Punishment Per Se Is Not Cruel And

e i ee eee 6

The Discretion Inherent In Our Constitu-

tional System of Justice Does Not Render

Its End Result Unconstitutional................. 7

Capital Punishment Is Consistent With

Evolving Standards Of Decency Under

The Eighth Amendment. 12

Policy Determinations Involving Ques-

tions Of Penological Efficacy Are Not

Of A Constitutional Dimension. 17

II. The Administration Of The Death Penalty

Pursuant To The Texas Capital Punishment

Statutes Does Not Violate The United States

Texas Law Limits The Availability Of

The Death Penalty To Specific Cate-

gor ies Of Murder Involving The Calcu-

lated Killing Of Another Human Being. ........ 21

The Texas Capital Punishment Stat-

utes Direct And Guide The Jury's Delib-

erations At The Sentencing Proceeding......... 25

The Texas Capital Punishment Stat-

utes, In Theory And In Practice, Meet

The Objections Raised In Furman.............. 31

CONCLUBION .nncccccccscdcccdccscdcccosbsndesebssedeuuen 34

CERTIFICATE OF SERVICE ...........csccesccsccevcvvees 35

TABLE OF AUTHORITIES

CASES Page

Brady v. United States, 397 U.S. 742 (19700))ʒ- 9.

Branch v. Texas, 408 U. S. 238 (197 2ꝰ . 6. 19

Coley v. State, 204 S. E. 2d 612 (Ga. 1973) „:ʒ ccc cece eeeeeeees 14

Commonwealth v. O'Neal, 339 N. E. 2d 676 (Mass. 1975) 14. 15

Furman v. Georgia, 408 U.S. 238 (197 2ꝶ cece ees passim

Green v. United States, 355 U.S. 184 (1957 Ʒꝶ·. 6... cece eee e eee 9

Jackson v. Georgia, 408 U.S. 238 (1972) . . oll

Jure, State, 522 S. W. 2d 934 (Tex.Crim.App. 1975) passim

In re Kemmler, 186 U.S. 436 (1890). 0... 6c c cece eee e eee eees 14

Louisiana ex rel. Francis u. Resweber, 392 U.S. 459(1947)....... 14

MeGautha v. California, 402 U.S. 183 (197117). 26, 32

People v. Anderson, 493 P.2d 880, 100 Cal. Rptr. 152 (Cal. 1972) .. 15

Rose v. Hodges. U. S. 96 S.Ct. 175 (1975) 10

Santobello u. New York, 404 U.S. 257(19717/7/777-7777y). 9

Schick v. Reed, 419 U.S. 256 (1974) . 0... r 10

Spencer v. Texas, 385 U.S, 554 (1987 ꝶ )))))))))) 31

State v. Burns, No. B- 7459, 16 Ist Judicial Dist. Ct. of Tarrant

County, Texas, May 24, 1976... 27

State , Corley, No. 75-291-C, 54th Judicial Dist. Ct. of

McLennan County, Texas, Nov. 10. 1977177 27

State u., Dickerson, 298 A.2d 761 (Del. 1972). 14

-ii-

State v. Dizon, 281 So.2d 1(Fla. 1973)))⸗ 60. cece cee eeee 14

State v. Franklin, No. 76CR-37-D, 105th Judicial Dist. Ct.

dl Nueces County, Texas, March 8, 197. 28

State v. Granviel, No. 4111, 213th Judicial Dist. Ct. of

Tarrant County, Texas, Nov.6, 197/ũ 5. 27

State v. Jennings, No. 48,991, 147th Judicial Dist. Ct. of

Travis County, Texas, Nov. 18. 197 .. 30

State v. Kleason, No. 48,462, 167th Judicial Dist. Ct. of

Travis County, Texas, June 4, 197 27

State v. Moore, No. C-74-3180-PH, 1st Judicial Dist. Ct.

of Dallas County, Texas, May 15, 197 ꝶũ .. 27

State v. O Bryan. No. 220323, 209th Judicial Dist. Ct. of

Harris County, Texas, June 5, 1975 ...... 2.2... 2 2c cece 27

State v. Selman, 300 So.2d 467 (La. 197łh ee eee 14

Trop v. Dulles, 356 U.S. 86 (1958)... 2... ccc .. 13, 18

United States v. Sisson, 399 U.S. 267 (19 70)ꝝ/ʒꝛ::t ee cence. 10

Weems v. United States, 217 U.S. 349(1910).............. 12, 13, 18

Wilkerson u. Utah, 99 U.S. 130(1879) ... 2.2... cc ccc cece ce eeee 14

Williams v. New York, 337 U.S. 241 (194ù0õ⸗99999y9)/ 24

CONSTITUTION & STATUTES

U.S.CONST. amend. V LV 6,8,9

rere eee ese eee eee 8

U.S. CONST. amend. VIill[db»mnsnsnsnnmnmnmnm .. passim

U.S. CONST. amend. XICœL“Sn¶Lnsnsnsnsnsnsnsnnn .. 8

CAL. PENAL CODE §§ 190.1, 209, 219, 4500

(West Supp. 197 )))))):: n cece ees bed. 16

TEX. CIV. STAT. ANN. art. 2328a (Supp. 1976)................ 2

TEX. PENALCODE ANN. arts. 84, 309, 1189 and 1408(1925) .. 19

TEX. PENALCODE ANN. art. 1256(1927) .................. 21

-iii-

IN THE

TEX. PENALCODE ANN. art. 1257 (1927) 19, 21

„ . 5 SUPREME COURT OF THE UNITED STATES

TEX. A art. 1 reer 1, 22, 23, }

OCTOBER TERM, 1975

TEX. PENALCODE ANN. 6 19.02 (197) 21 ahah

TEX. PENALCODE ANN. §19.03(1974) .............000- 21, 28

: NO. 75-5894

TEX. CODE CRIM. PROC. ANN. art. 35.22(1965) ............ 34 a wate

TEX. CODE CRIM. PROC. ANN. art. 37.071(1973) ...... im

— JERRY LANE JUREK,

OTHER AUTHORITIES Page Petitioner

BEDAU, THE DEATH PENALTY IN AMERICA V.

r sdaesacttel bbnegutivoawiad: 15 STATE OF TEXAS,

Ehrlich, The Deterrent Effect of Capital Punishment: Respondent

A Question of Lifeand Death,65 AM.ECON.REV. 397 * „„

1 a ie ee ee

ö ON WRIT OF CERTIORARI TO THE COURT OF

Goldberg and Dershowitz, Declaring the Death Penalty CRIMINAL APPEALS OF TEXAS

Unconstitutional, 83 HARV.L.REV. 1773(1970)........... 17 5

PRESIDENT’S COMMISSION ON LAW ENFORCEMENT

AND ADMINISTRATION OF JUSTICE, REPORT: BRIEF FOR THE RESPONDENT

THE CHALLENGE OF CRIME IN A FREE SOCIETY 8

enen EONS FS be 23, 26

ROYAL COMMISSION ON CAPITAL PUNISHMENT, OPINION BELOW

REPORT 1949-53, CMD No. 8932 (19539) 24 The opinion of the Texas Court of Criminal Appeals

SELLIN, THE DEATH PENALTY (19599))9)9)9)) 24 is Jurek v. State, 522 S.W.2d 934 (Tex.Crim. App. 1975)

TEXAS JUDICIAL COUNCIL, CAPITAL MURDER (hereinafter cited as Jurek).

STUDY (1976) Coco „6 6 „66 „6 „„ „„ „„ „ 0 6 „ 60 2. 28. 30, 32, 33 QUESTION PRESENTED

WEBSTER’S NEW WORLD DICTIONARY . a ;

G 5... ccccvceccccicbceus PRE hee Ron 29 Whether the imposition and carrying out of the

-jv-

to the Constitution of the United States.

a

sentence of death for the crime of murder under the laws

of Texas violate the Eighth or Fourteenth Amendment

STATEMENT OF THE CASE

In view of the paramount issue of law before the

Court, Petitioner’s “Statement of the Case” sufficiently

relates the facts of his case relevant to that issue. To the

extent, if any, that Petitioner’s statement casts any

doubt on the accuracy of the factual summary contained

in Jurek v. State, 522 S.W.2d 934 (Tex. Crim. App. 1975),

Respondent, of course, relies on that opinion.

Respondent has further provided this Court with

information relating to the overall administration of the

capital punishment statutes challenged by Petitioner.

In that regard, Respondent has lodged with the Court

copies of a recent study on the operation of the

challenged statutes conducted by the Texas Judicial

Council, an independent state agency created for the

continuous study of and report upon, inter alia, the

procedure and practices of the judicial system of the

State of Texas, the work accomplished and the results

produced by that system and its various parts, and

methods for its improvement. TEX.CIV.STAT.ANN.

art. 2328a (Supp. 1976).

In regard to the instant case, Respondent would call

the Court’s attention to the argumentative nature of

Petitioner’s “Statement of the Case” with respect to

issues which are not before the Court. For example,

Petitioner impliedly argues the inadmissibility of his

confessions. (Petitioner’s Brief at 12 and n.8). Though

Respondent could cite the Court to testimony and

exhibits in the record soundly rebutting Petitioner’s

erroneous characterization of the facts relating to the

confessions, that is not necessary in view of the Court’s

refusal to grant certiorari on that issue. Petitioner also

impliedly argues the insufficiency of the evidence on

-2-

rape and/or kidnapping and on _ identification.

Notwithstanding the irrelevancy of such issues,

Respondent would apprise the Court that Petitioner

twice admits that a kidnapping was established by the

evidence (Petitioner’s Brief at 17-18, 72), and that the

record is replete with evidence which establishes

beyond all doubt Petitioner’s perpetration of the capital

murder charged. Indeed, Petitioner accurately sums up

the record in this case by candidly admitting that Ihle

— a horrendous crime.” (Petitioner’s Brief at

SUMMARY OF ARGUMENT

I.

Capital punishment per se is not cruel and unusual

punishment. First, it is beyond doubt that the Eighth

Amendment was not originally intended to bar capital

punishment. Second, capital punishment is consistent

with the “evolving standards of decency” under that

constitutional provision. The acceptability of capital

punishment under a progressive Eighth Amendment is

demonstrated by the overwhelming weight of judical

precedent, by public opinion measured in polls and

referendums, and by the state and federal legislatures—

the institutions most directly responsible to public

opinion and society's standards of decency. The

suggestion that Eighth Amendment standards are

enlightened, rather than citizen, standards is nothing

more than a thinly veiled opportunity for judical

imposition of personal convictions upon the entire

nation under a constitutional rubric. Third, policy

determinations involving questions of penological

efficacy are not of a constitutional dimension.

Proponents of the constitutional invalidation of capital

-3-

punishment per se contend that the punishment is

unconstitutional if it is more severe than necessary to

further legitimate state interests such as retribution,

incapacitation and deterrence. Such a test not only is

completely without precedence in Eighth Amendment

jurisprudence, but also invites the court to serve as a

super-legislature, sitting in judgment on the wisdom of

numerous legislative enactments. Most importantly,

any such test would necessarily incorporate into the

Constitution itself the vagaries of new and competing

theories in the science of human behavior. In short, it is

constitutionally permissible for the Texas legislature to

determine that the imposition of the death penalty

pursuant to the challenged statutes furthers important

social goals. Fourth, the “discretion” inherent in our

constitutional system of criminal justice does not rénder

its end result unconstitutional. Each of the

opportunities for choice in the criminal justice system is

either compelled or permitted by the United States

Constitution. Each such opportunity was designed

expressly to shield an accused from unjust conviction or

punishment. Notwithstanding the inherent possibility

of an “erroneous” exercise of judgment, the authors of

the Constitution placed these safeguards in that

document at the same time as the prohibition against

cruel and unusual punishments. Yet Petitioner argues

that the guarantees so created render the criminal

justice system incapable of producing a constitutional

sentence. Surely the Constitution is not so inherently

and fatally inconsistent.

II.

The administration of the death penalty pu suant to

the Texas capital punishment statutes does not violate

the United States Constitution. These statutes restrict

the availability of the death penalty to narrowly

circumscribed categories of murder from which Texas

citizens desperately need protection. The categories

focus on the killing of human beings in situstions where

the most salient features of the circumstances

surrounding the act are calculation and conscious risk

assessment. The imposition of the death penalty in these

types of cases can reasonably be thought to maximize

the deterrent effect of that penalty and fulfill a

significant need for retribution. Upon conviction of a

murder within the confines of these statutory

cagetories, the jury is asked several questions which

direct and guide the deliberations on sentencing by

focusing their attention on the need for incapacitation

and the possible existence of mitigating factors. If the

jury unanimously answers these questions in the

affirmative, the court must impose the death penalty; if

ten or more jurors answer any question in the negative,

the court must impose a sentence of life imprisonment.

In sum, the Texas capital punishment statutes rectify

the judicially criticized defects of the statutes struck

down in Furman v. Georgia, 408 U.S. 238 (1972). In

addition to rectifying these defects in theory, the Texas

statutes have in fact done so in practice.

ARGUMENT AND AUTHORITIES

I. Capital Punishment Per Se Is Not Cruel And

Unusual Punishment.

It is clear from the plain language of the

Constitution itself that its framers had no thought of

eliminating capital punishment. The Fifth Amendment

three times extends its protections to circumstances in

which an accused stands to forfeit his life. It therefore

cannot be argued that the prohibition of “cruel and

unusual punishments” in the Eighth Amendment was

originally intended to bar capital punishment.

Furthermore, in its most recent pronouncement on

capital punishment, Furman v. Georgia, 408 U.S. 238

(1972),? four members of this Court expressly rejected

and three refused to pass upon the proposition that

capital punishment, in any and all circumstances, is

cruel and unusual in contravention of the Eighth

Amendment to the United States Constitution.

Nevertheless, Petitioner again urges the Court to reach

this result by imputing to “cruel and unusual” a

meaning inconsistent with historical usage,

contemporary understanding, and judicial self-

restraint. The argument against per se constutionality is

of three genres. First, there is the incredible assertion

that the death penalty can never be constitutionally

imposed under the prevailing criminal justice system

because that system does not require the blind

prosecution, conviction and execution of every person

who initially, arguably falls within the scope of the

capital punishment statutes. Second, it is urged, on the

The Fourteenth Amendment some 77 years later likewise

specifically recognized the death penalty.

The companion cases of Furman v. Georgia, Jackson v. Georgia

and Branch v. Texas will be referenced to hereinafter as Furman.

6-

basis of subjective morality, that the death penalty

violates those “evolving standards of decency” from

which the Eighth Amendment draws its meaning.

Third, policy arguments of penological inefficacy. are

elevated to a proposed constitutional defect of “excessive

severity.” All of these arguments are untenable under

sound principles of constitutional interpretation.

A. The “Discretion” Inherent In Our

Constitutional System Of Justice Does Not

Render Its End Result Unconstitutional

One of Petitioner’s basic assertions is that the

“discretion exercised at alls stages of capital

prosecutions under procedures common to Texas and

other jurisdictions” invariably results in an arbitrary

application of the death penalty. (Petitioner’s Brief at

33, cited hereinafter as Pet. Br. .). Petitioner goes so

far as to state that such discretion is “uncontrollable”

and would thus render unconstitutional any death

penalty obtained pursuant to the criminal justice

system extant in our nation. Id. However, since each

avenue of discretion is either compelled or permitted

by the Constitution, it is rather anomalous to conclude

that these constitutionally mandated or approved

choices made at each stage of the criminal justice

process render its end result unconstitutional.

Moreover, such a challenge to the operation of our

system of criminal justice by necessity assails the end

’Respondent does not address the issue of discretion at the

punishment stage at this point because of organization, because it is

the only area of “discretion” relevant to Furman, and because it is

unnecessary to Petitioner’s instant assertion since he explicitly

adopts the argument in Fowler u. North Carolina, No. 73-7031,

Petitioner's Brief at 41-101, which reaches the same conclusion in

the absence of a punishment stage.

7.

result, whether that be the imposition of the death

penalty, life imprisonment without parole or a term of

years.‘ Finally, the presence of some discretion within

the criminal process is undoubtedly a necessity if that

process is to serve the ends of justice.

1. Each of the Sources of “Discretion” in our

Present Criminal Justice System is Either

Mandated or Permitted by the Constitution.

Petitioner attacks each of the areas of our criminal

justice system where choice is permitted. Thus,

Petitioner assails the prosecutor’s power (in conjunction

with the grand jury) to decide whom to charge and with

what offense, and his power to engage in plea

‘Petitioner would, of course, assert that the death penalty is

unique. Though that is true in a general sense, it is unquestionably

false in the constitutional context of the criminal process assailed

by Petitioner. The Fifth Amendment guarantees that Inh person

shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury;] . nor

shall any person be compelled in any criminal case to be a witness

against himself, nor be deprived of life [or] liberty without due

process of law . . . (emphasis supplied). The Sixth Amendment

extends its guarantee to trial by jury, among others, to “all criminal

prosecutions.” (emphasis supplied). Thus, the Constitution itself

negates any distinction between capital and noncapital cases vis-a-

vis the process wherein they must be prosecuted. It is significant to

note that no such distinction is recognized in two of the

constitutional guarantees, indictment and trial by jury, which

Petitioner attempts to utilize as a basis for his present argument.

References made are to the United States Constitution. Since

this section of the brief is based on the internal consistency of that

document, it is irrelevant whether the constitutional provisions

cited have been made applicable to the states through the

Fourteenth Amendment.

-8-

bargaining, the jury’s power to convict of a lesser offense

or acquit, and, finally, the executive’s power to exercise

clemency.

The Constitution itself inevitably creates the

opportunity for choice at the charging stage, when it

guarantees that (for present purposes) the criminal

process cannot even be invoked against an individual

except by “indictment of a Grand Jury.” U.S. CONST.

amend. V. It would be highly unreasonable to conclude

that a grand jury’s® exercise of this constitutionally

mandated opportunity for choice impugns to any degree

the constitutionality of the penalty which is ultimately

imposed. Yet, this is the substance of Petitioner’s

argument.

Though the exercise of choice in plea bargaining,

unlike the grand jury’s option to charge, has not been

explicitly mandated by the Constitution, it has been

approved and encouraged by this Court as an integral

part of our criminal justice system. Santobello v. New

York, 404 U.S. 257, 260 (1971); Brady v. United States,

397 U.S. 742, 751-52 (1970).

The right to trial by jury is explicitly guaranteed by

the Sixth Amendment. Thus, the power of the jury to

acquit a defendant of the offense charged, either by a

finding of not guilty or by conviction of a lesser included

offense,’ is a power explicitly protected by the

„To the extent that a federal prosecutor has control over the

charging decision, that power inheres in the constitutional

separation of the executive and judicial functions. See Fowler v.

North Carolina, No. 73-7301, Brief for the United States as Amicus

Curiae at 63-64.

7A conviction for a lesser included offense is an acquittal of the

greater offense charged. Green v. United States, 355 U.S. 184

(1957).

-9-

Constitution in allowing no review of jury acquittals.

United States v. Sisson, 399 U.S. 267, 289 (1970).

Moreover, the power of the executive to exercise

clemency is also created by the Constitution itself and is

not subject to judicial review. Schick v. Reed, 419 U.S.

256 (1974).®

In sum, Petitioner argues that these opportunities

for choice in the criminal justice system, though either

compelled or permitted by the Constitution, render its

end result unconstitutional. In doing so, he ignores the

inherent necessity of such “discretion” within the

criminal process. More importantly, Petitioner’s

incredible assertion ignores the fact that each such

opportunity for choice was designed expressly to shield

an accused from unjust conviction or punishment. The

authors of our Contitution were cognizant that the

creation of an opportunity for choice inherently granted

the opportunity to exercise “erroneous” choice.

Notwithstanding this defect, they chose to place these

safeguards in the Constitution at the same time as the

prohibition against cruel and unusual punishments. Yet

Petitioner argues that the guarantees so created render

the criminal justice system incapable of producing a

sentence which passes muster under the Eighth

Amendment. Surely the Constitution is not fatally

inconsistent within itself, and this Court should not

adopt such an approach.

2. The Presence of Some “Discretion” Within

The Criminal Process Is A Necessity If That

Process Is To Serve The Ends Of Justice.

‘Significantly, this Court has recently held that a challenge toa

governor's commutation of the death penalty presents no federal

constitutional question. Rose v. Hodges, U. 8. 96 S.Ct.

175 (1975).

10

Not only are the opportunities for choice in the

criminal process compelled or permitted by the

Constitution, their existence is undoubtedly necessary

to avoid totally arbitrary and unjust results.

The underlying premise of Petitioner’s assault on

the opportunities for choice is that since their exercise is

inherently “uncontrollable” (Pet. Br. 33), they must be

eliminated if the end result is to be deemed

constitutional. Thus, the prosecutor (in conjunction with

the grand jury) must charge a capital offense whenever

a killing has occurred, the accused must not be

permitted to plead to any lesser offense, the jury must

convict on the capital charge and impose the death

penalty, the Governor cannot exercise clemency and the

accused must be executed. Though it seems ludicrous to

comment, the obvious sincerity with which Petitioner

makes his contentions necessitates Respondent to state

that such a system would be the epitome of arbitrariness

and injustice.

Notwithstanding the foregoing, this Court should

recognize that each opportunity for choice in the

criminal justice system serves the express purpose of

discriminating : .nong the accused individuals and their

alleged acts. Our society long ago recognized that the

punishment should be tailored to fit both the criminal

and the crime. Hence, we do not hang pickpockets nor

punish the insane.“ Moreover, given the infinite variety

of the circumstances of offense and offender plus the

imprecision of the English language, it would be

impossible to inculcate each desired disposition into a

It is interesting to note that Petitioner cites insanity as another

“offramp from the road to capital conviction.” (Pet. Br.54n.70). It

is surprising that Petitioner did not mention innocence as yet

another offramp. 11

criminal statute. Thus, the necessity for the exercise of

discretion in the administration of justice.

B. Capital Punishment Is Consistent

With “Evolving Standards Of Decency”

Under The Eighth Amendment.

The concept of “evolving standards of decency,” as

applied to the constitutional ban on cruel and unusual

punishment, is an established part of our jurisprudence.

Respondent does not contend that the meaning of tlie

Eighth Amendment is forever confined to the practices

of the Stuarts. But the use of this catch phrase in the

manner urged by the petitioner is incongruous with the

careful and restrained analysis of this Court in past

decisions.

The idea that the meaning of “cruel and unusual

punishment” might change with society and its values

was first accepted by a Supreme Court majority in

Weems v. United States, 217 U.S. 349, 378 (1909):

“(Cruel and unusual punishment] in the opinion

of the learned commentators may be therefore

progressive, and is not fastened to the obsolete

but may acquire meaning as public opinion

becomes enlightened by a humane justice.”

The Court proceeded to condemn as cruel and unusual a

Phillipine punishment of cadena temporal (a sentence to

hard and painful labor in chains from twelve to twenty

years) for falsification of a public record. This

constitutional judgment was, however, firmly rooted on

public opinion manifested in countless statutes

prescribing punishments for violations of the criminal

laws. The Court compared the Phillipine punishment

for falsification of a public record with punishments for

similar crimes such as embezzlement, and more

12

egregious crimes such as robbery, inciting rebellion,

and various degrees of homicide. Id. at 380. Comparing

the punishment in question with these concrete indicia

of public opinion, the legislatively prescribed punish-

ments of the federal and state governments, the Court

concluded that it was unconscionably severe.

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

again applied a progressive concept of cruel and

unusual punishment to strike down expatriation as

punishment for desertion. Chief Justice Warren’s

opinion for the Court emphasized that statelessness lay

outside traditional modes of punishment such as fines

and imprisonment, Id. at 100, and noted that a nearly

unanimous international consensus of civilized nations

proscribed the use of this punishment. Even though this

opinion is perhaps the high water mark of the “evolving

standards” principle, the Court specifically upheld the

constitutionality of capital punishment in dicta:

At the outset, let us put to one side the death

penalty as an index of the constitutional limit

on punishment. Whatever the arguments may

be against capital punishment, both on moral

grounds and in terms of accomplishing the

purposes of punishment -- and they are

forceful -- the death penalty has been

employed throughout our history, and, in a day

when it is still widely accepted, it cannot be said

to violate the constitut nal concept of cruelty.”

Id. at 99. (Emphasis supplied).

Thus, it is quite apparent that the cruel and unusual

punishment clause is not a judicial harbinger in

penological innovation. It takes its meaning from

objective indicia such as history and tradition,

contemporary opinion, and the laws of various

jurisdictions.

-13-

A number of Supreme Court cases dealing with

attacks on the manner of execution have implicitly

denied also that capital punishment is impermissibly

“cruel” in the constitutional sense. E. g., Louisiana ex rel.

Francis v. Resweber, 329 U.S. 459, 464 (1947); In re

Kemmler, 136 U.S. 436, 447 (1890); Wilkerson v. Utah,

99 U.S. 130 (1879). Although these decisions did not

technically address the constitutionality of capital

punishment per se, since such attacks lay beyond the

legal imagination of past decades, they were squarely

premised on the basic assumption that capital

punishment was not in itself cruel and unusual.

The long and undisputed (until Furman) history of

Supreme Court approval of the death penalty is

developed in more detail by Chief Justice Burger and

Mr. Justice Powell in their dissenting opinions in

Furman, at 380-84, 421-28. Suffice it to say that until

1972, long after the Supreme Court accepted the idea of

a progressive Eighth Amendment, our Supreme Court

Justices unanimously found capital punishment per se

compatible with “evolving standards of decency.”

This considerable Supreme Court precedent is

supplemented by the holdings of numerous state courts.

As pointed out by Mr. Justice Powell in Furman, the

appellate courts of twenty-six states had passed on the

constitutionality of the death penalty under the Eighth

Amendment and similar state provisions in the five

years preceding that decision. Only one, however, had

found it unconstitutional. Jd. at 442. Moreover, state

courts have been virtually unanimous in upholding the

constitutionality of the capital statutes drafted

subsequent to Furman. E.g., State v. Dickerson, 298

A.2d 761 (Del. 1972); State v. Dixon, 283 So.2d 1 (Fla.

1973); Coley v. State, 204 S.E.2d 612 (Ga. 1973); State v.

Selman, 300 So.2d 467 (La. 1974). Contra,

Commonwealth v. ONeal, 339 N.E.2d 676 (Mass. 1975).

14

Thus, the state and federal judiciaries to this day have

overwhelmingly rejected Petitioner’s argument that the

death penalty per se violates the progressive meaning of

the Eighth Amendment.

Respondent submits that no changes have been

wrought which would lead this Court to conclude that

capital punishment is presently inconsistent with

“evolving standards of decency.” At the time of Furman,

forty-one states, the District of Columbia, and the

United States authorized the imposition of the death

penalty.'° Furman, at 341 (Marshall, J. concurring).

Subsequent to that decision, at least thirty-four states

ar.d the United States!! have enacted capital statutes to

comply with its requirements. In view of this

unequivocal response by the people through their

legislators, it would be practically impossible to

conclude that capital punishment at this date violates

the “standards of decency” to which our society has

evolved. Moreover, in California, one of the two’? states

in which the death penalty was judicially abolished as

violative of the state ban on cruel and unusual

punishments, People v. Anderson, 493 P.2d 880 (Cal.

1972), the state constitution was subsequently amended

by initiative of the people to permit the penalty.

‘Furthermore, no trend existed towards its abolition, such

impetus having halted after World War I. This fact is supported by

the singular lack of success by abolitionist forces in those state

legislatures where such bills have been put to a vote. Furman, at

435 (Powell, J., dissenting) citing H. BEDAU.THE DEATH

PENALTY IN AMERICA 232 (1967).

See Appendix 4 to Petitioner’s Brief and Appendix A to the

Brief of Petitioner in Fowler „. North Carolina, No. 73-7301.

The other state was Massachusetts. See Commonwealth v.

ONeal. supra.

-15-

Pursuant to that expression of will by its constituency,

the California legislature enacted a new capital statute,

CAL. PENAL CODE §§190.1, 209, 219, 4500 (West

Supp. 1974). If we assume that legislatures represent

community values in their enactments, and our form of

government is premised on this assumption, there is no

question that capital punishment passes constitutional

muster.

Opinion polls and state referendums in recent

years, with which this Court is now familiar, Furman at

386 n.9, 438-439, indicate a difference of national

opinion over the wisdom of capital punishment as a

policy matter.!“ Such differences of policy are not

uncommon in a large and heterogeneous society. Very

large segments of our society also doubt the wisdom of

imprisonment for marijuana users and alcoholic

motorists, to name but two examples. Yet it is unlikely

that this Court would hold imprisonment in such

circumstances to violate a progressive Eighth

Amendment. Differences over policy simply do not rise

to the level of a constitutional ban under “evolving

standards of decency.”

Thus, the acceptability of capital punishment under

a progressive Eighth Amendment is demonstrated by

the overwhelming weight of judicial precedent, by

public opinion measured in polls and referendums, and

by the state and federal legislatures - the institutions

most directly responsive to public opinion and society’s

standards of decency. If the words “cruel and unusual

punishment” are in any way related to standards of

More recent polls and referendums suggest that overall

public support for capital punishment is rising. In a 1972

referendum in California, over 67% of the voters favored restoration

of the death penalty (after judicial abolition) in that jurisdiction.

-16-

*

decency, then all objective indicia place capital

punishment outside the constitutional ban. Even the

most articulate opponents of capital punishment

concede that the death penalty satisfies any objective

tests of constitutionality. E. g., Goldberg & Dershowitz,

Declaring tiie Death Penalty Unconstitutional, 83

HARV. L. REV. 1773, 1781 (1970). Therefore, they

suggest that the Court look “not to actual standards of

decency, prevailing in society, but to enlightened

standards,” Id. at 1783, in other words, the value of

judgments that would be made by citizens were they as

decent and enlightened as their betters. However, such

cr‘teria provide only a thinly veiled opportunity for a

judge to impose his personal convictions upon the entire

nation under a constitutional rubric.

C. Policy Determinations Involving

Questions Of Penological Efficacy Are Not

Of A Constitutional Dimension.

Proponents of the constitutional invalidation of

capital punishment per se, including the Petitioner,

propose that the Court consider the utility of the death

penalty in evaluating its constitutionality. Thus, they

contend that the punishment is unconstitutional if it is

more severe than necessary to further legitimate state

interests such as retribution, incapacitation and

deterrence. Respondent submits that such a test not only

is completely without precedent in Eighth Amendment

jurisprudence, but invites the Court to serve as a super-

legislature, sitting in judgment of the wisdom of

numerous legislative enactments. Most importantly,

any such test would necessarily incorporate into the

Constitution itself the vagaries of new and competing

theories in the “sciences of human behavior.” See

Petitioner’s Petition, Appendix B at 45.

-17-

Proponents of the “excessive severity” test

generally attempt to base it upon Weems v. United

States, supra and Trop v Dulles, supra, and the

other cases interpreting “cruel and unusual

punishments”. See Furman at 324-28 (Marshall, J.,

concurring). There are considerations of excessiveness

in Weems and Trop. Indeed, it is impossible to separate

the excessiveness of any punishment from its

unacceptability under contemporary standards of

decency. The fact that no other jurisdiction punishes the

same crime with anywhere near the same degree of

severity, asin Weems, is obviously indicative that society

regards such a punishment as unacceptable. Likewise

in Trop, Cnief Justice Warren noted the severity of

expatriation in his discussion of its total rejection by the

civilized world. However, this Court has never elevated

observations of severity to an independent principle of

“excessive severity” -- a judgment to be made by the

Court solely on the basis of whether it considers the

particular punishment a wise exercise of legislative

power. Furthermore, not only are excessive severity

considerations covered by the “evolving standerds of

decency” test, but the latter avoids inculcating the latest

social science debate into the Constitution.

This Court is well acquainted with the foregoing

debate, which has raged for generations in the

literature and the legislatures, and which continues to

this day, particularly in regard to the deterrent effect of

capital punishment. Respondent will only say that it is

difficult to believe that an extremely complex, mathe-

matical debate on the existence of this effect has reached

the Court, and it is frightening to think that it might

find its way into the Constitution. See Pet. Br. Appendix

C, Appendix E, and Appendix 3 at 3-2 and 3-3.

-18-

II. The Administration Of The Death Penalty

Pursuant To The Texas Capital Punishment

Statutes Does Not Violate The United States

Constitution.

The Texas capital punishment statues were

designed to rectify the constitutional defects in the

statutory scheme invalidated by this Court in Branch v.

v. Texas, 408 U.S. 238 (1974), sub nom. Furman .

Georgia. Since an omniscient representative of the

people would have great and perhaps insurmountable

difficulty in succinctly stating the meaning of the

pivotal concurring opinions in Furman, Respondent

will not attempt to do so.“ However, it is possible to

glean some insight by concentrating on the salient

features of the statutory schemes considered in Furman

and the judicial condemnation of the results produced

thereby.

A primary attribute of those statutes was that they

permitted imposition of punishment ranging from short

term imprisonment to death for broadly defined

categories of crime ranging from routine armed

robbery to murder. Such statutory schemes led Mr.

“The only authoritative holding of Furman, contained in this

Court’s brief per curiam opinion, was that “the imposition and

carrying out of the death penalty in these cases constitute cruel and

unusual punishment in violation of the Eighth and Fourteenth

Amendments.“ Id. at 239. (Emphasis supplied).

isUnder prior Texas law, the death penalty was available as

punishment for treason, perjury resulting in the execution of

another, rape, robbery by firearm, and undifferentiated murder.

TEX. PENALCODE ANN. arts. 84, 309, 1189, 1408 (1925) and art.

1257 (1927), respectively. Moreover, under these statutes, the

minimum permissible punishment for conviction of these offenses

was imprisonment for life for treason, death for perjury resulting

in the execution of another, and imprisonment for 5 years for rape, 5

years for robbery by firearm, and 2 years for murder. Id.

-19-

Justice Stewart to object that the death sentences

actually imposed thereunder “excessively go beyond,

not in degree but in kind, the punishments that the state

legislatures have determined to be necessary” and that

only a “capriciously selected random handful” were

sentenced to death out of the vast number of people for

whom the penalty was statutorily available. Furman at

309-310. Mr. Justice White also concluded that under

such broad categories of offense and permissible

punishment, not only is there “no meaningful basis for

distinguishing the few cases in which (the death

penalty) is imposed from the many cases in which it is

not,” Id. at 313, but the “legislative will is not frustrated

if (that) penalty is never imposed.” Jd at 311. Moreover,

the death penalty had been ordered with such

infrequency in relation to its all-encompassing

availability that it ceased realistically to further the

“social ends it was deemed to serve.” Id. at 312.

Texas has remedied these defects in the

administration of the death penalty. The legislature has

restricted the availability of the death penalty to

narrowly circumscribed categories of murder from

which its citizens desperately need protection and in

which the utility of its imposition could reasonably be

thought to be maximized. Moreover, the punishment

upon conviction of a murder within the confines of these

categories has been circumscribed to either life

imprisonment or death. Either a punishment of life

imprisonment or death is mandated by the jury’s

determination of several sentencing questions which

direct and guide their deliberations by focusing their

attention on the characteristics of the accused and the

nature of his conduct.

The Texas capital punishment statutes were not

only designed to remedy the constitutional defects

condemned in Furman, they have in fact done so in

practice. -20-

A. Texas Law Limits The Availability Of

The Death Penalty To Specific Categories

Of Murder Involving The Calculated

Killing Of Another Human Being.

Effective June 14, 1973, Article 12571 of the Texas

Penal Code provided, in relevant part:

“(a) Except as provided in Subsection (b) of

this Article, the Punishment for murder shall

be confinement in the penitentiary for life or for

any term of years not less than two.

(b) The punishment for murder with malice

aforethought shall be death or imprisonment

for life if:

(1) the person murdered was a

peace officer or fireman who was

acting in the lawful discharge of

an official duty and who the

defendar' knew was a peace

officer or .;sreman;

16 As amended, Acts 1973, 63rd Leg., p. 1122, ch. 426, Article 1,

Sec. 1, eff. June 14,1973. Article 1257 was superseded by Section

19.03 of the new Texas Penal Code, Acts 1973, 63rd Leg., ch. 399,

eff. January 1, 1974. Section 19.03 of the new Penal Code is

substantially similar to Article 1257 of the old code. The indictment

alleged the date of the offense as August 16, 1973.” Jurek v. State,

supra, original opinion of the Texas Court of Criminal Appeals at 1

n.1. (Emphasis suplied). (This footnote is incorrectly printed by

West Publishing Company). Note that “substantially ” similar

refers to the change in the definition for capital murder from a

“voluntary” killing with “malice aforethought” under the

delineated circumstances, TEX. PENAL CODE ANN. arts. 1256,

1257(b\ 1927), to “intentionally or knowingly caus(ing) the death of

an individuai” under identical circumstances. TEX. PENAL

CODE ANN. §§ 19.02(aX1) and 19.03(a) (1973).

21

(2) the person intentionally

committed the murder in the

course of committing or

attempting to commit kidnapp-

ing, burglary, robbery, forcible

rape, or arson;

(3) the person committed the

murder for remuneration or the

promise of remuneration or

employed another to commit the

murder for remuneration or the

promise of remuneration;

(4) the person committed the

murder while escaping or

attempting to escape from a penal

institution;

(5) the person, while incarcer-

ated in a penal institution,

murdered another who was

employed in the operation of the

penal institution.“

The remainder of Article 1257 stated:

e) If the jury does not find beyond a reasonable doubt

that the murder was committed under one of the circumstances or

conditions enumerated in Subsection (b) of this Article, the

defendant may be convicted of murder, with or without malice,

under Subsection (a) of this Article or of any other lesser included

offense.

(d) If one of the circumstances or conditions

enumerated in Subsection (b) of this Article is charged in an

indictment, the prospective jurors shall be informed that a sentence

of either death or imprisonment for life is mandatory on conviction

for the offense charged. No person is qualified to serve as a juror

unless he states under oath that the mandatory penalty of death or

imprisonment for life will not affect his deliberations on any issue of

fact.”

-22-

Thus, the death penalty in Texas is not only no longer

available for crimes other than murder, but is even

restricted to narrowly circumscribed categories within

the class of murder. “This insures that the death penz ty

will only be imposed for the same type of offenses which

occur under the same type of circumstances.” Jurek,

supra at 939.

It is significant to note that death is presently not a

permissible punishment for standard barroom killings

or murders of acquaintances,'* which are generally

recognized as the least deterrable form of homicide.

Instead, the categories in Article 1257(b) focus on the

killing of human beings in situations wiiere the most

salient features of the circumstances surrounding the

act are calculation and conscious risk assessment. Thus,

Article 1257(b\2) applies to murder in the course of

committing or attempting to commit robbery,

kidnapping, burglary, forcible rape, or arson -- acts

which are frequently planned in advance and which

present the opportunity and motivation to kill witnesses

whose testimony could readily lead to arrest, conviction

and incarceration. Section (b\3) covers the most cold-

blooded and calculated killing known to society -

murder for hire. The other three sections deal with

situations normally involving conscious risk

assessment - murder of a policeman or fireman,

murder of a prison official, or murder in the course of

prison escape.

The traditional statistical studies on the deterrent

effect of the death penalty have not tested its

'8Murders of acquaintances are by far the most prevalent

homicides. PRESIDENT’S COMMISSION ON LAW

ENFORCEMENT AND ADMINISTRATION OF JUSTICE,

REPORT: THE CHALLENGE OF CRIME IN A FREE

SOCIETY 39 (1967).

-23-

effectiveness in deterring the limited categories of

murder in which calculation eclipses passion. E. g.

SELLIN, THE DEATH PENALTY (1959). In view of

the prior statutory schemes, it has not yet been possible

to measure adequately the deterrent effect of capital

punishment statutes which are applicable only to such

murders and which are invoked on a fairly regular

basis. Given the absence of such data and the great need

for society to protect itself from these calculated

killings, plus the legitimate %intuitive feeling that the

ultimate sanction will be given the greatest weight

when the calculated taking of human life hangs in the

balance, the legislature can reasonably determine that

the imposition of the death penalty in such

circumstances furthers the social purpose of

deterrence.”

Furthermore, it is unquestionable that retribution

“is a constitutionally [permissible] ingredient in the

imposition of punishment.”2! Furman, 408 U.S. at 308

(Stewart, J., concurring). It would seem that the

retributive aspect of punishment varies directly with

the magnitude of the crime and the degree of

calculation. Thus, the need for retribution increases

with the amount of harm inflicted on society, its moral

fiber and its members. Similarly, the greater the

conscious infliction of that harm, the greater the need

for retribution. Hence, the retributive aspect of

See ROYAL COMMISSION ON CAPITAL PUNISH-

MENT, REPORT 1949-53, CMD. No. 8932, at 24, par. 68 (1953).

~The legislature could also choose to believe Professor

Ehrlich’s conclusion that every execution deters approximately

eight murders. Ehrlich, The Deterrent Effect of Capital

Punishment: A Question of Life and Death, 65 AM. ECON. REV.

397 (1975).

21See e.g., Williams v. New York, 337 U.S. 241, 248 (1949).

-24-

punishment would be significant when dealing with

offenders who have committed the calculated killing of

another human being.

In sum, the Texas legislature has purposely limited

the availability of the death penalty to categories of

murder wherein the deterrent effect can reasonably be

thought to be maximized and wherein there is a

significant need for retribution. However, the

legislature did not stop here by making the death

penalty mandatory for all convicted killers within these

categories. Instead, it continued to tailor the imposition

of the death penalty so that it would be of greatest

service to society by focusing the jury’s attention at the

punishment proceeding on the need for incapacitation of

the killer and the possible existence of mitigating

factors. The Texas legislature can reasonably make

these determinations without offending the United

States Constitution.

B. The Texas Capital Punishment Statutes

Direct And Guide The Jury’s Deliberations

At The Sentencing Proceeding.

Article 37.071 of the Texas Code of Criminal

Procedure establishes a separate jury sentencing

procedure which results in the imposition of

punishment of either life imprisonment or death. If the

jury responds unanimously in the affirmative to several

questions, the court must impose the death penalty; if

ten or more jurors respond negatively to any one of the

questions, the court must impose a sentence of life

imprisonment. The questions were written against the

background of Furman which left unclear whether this

Court might possibly condemn a pureiy mandatory

death penalty” even though its application were limited

2Furman at 402 (Burger, C. J., dissenting), 413 (Blackmun, J.

dissenting).

-25-

to narrowly circumscribed categories of murder, and

with the knowledge that an exhaustive and precise list

of factors to be considered would be too complex to be

compressed within the limits of a workable formula for

the jury. ROYAL COMMISSION ON CAPITAL

PUNISHMENT, REPORT 1949-53, CMD. No. 8932,

par. 498, p. 174 (1953); McGautha v. California, 402 U.S.

183, 204 (1971). Indeed, Article 37.071 is the product of a

compromise reached between two such statutes, each of

which had been passed by one house of the Texas

legislature. The House version was purely mandatory

(TEX. H. B. 200, 63rd Leg., 1973); the Senate version

contained a list of aggravating and mitigating factors

(TEX. H. B. 200 as amended by S., 63rd Leg., 1973); and

the final version was prepared by a joint House-Senate

conference committee. Thus, questions were written to

direct and guide the jury’s deliberations and to focus

their attention not only upon the presence of any possible

mitigating factors but also upon the need for

incapacitation.

The first and third questions asked are as follows:

“(1) whether the conduct of the defendant that

caused the death of the deceased was

committed deliberately and with the

reasonable expectation that the death of the

deceased or another would result;

* ** *

(3) if raised by the evidence, whether the

conduct of the defendant in killing the deceased

was unreasonable in response to the

provocation, if any, by the deceased.” TEX.

CODE CRIM. PROC. ANN. art. 37.071(b)\1),

(b) (1973).

Petitioner attacks the submission of these questions on

the ground that the jury has already answered them by

answering similar questions in the allirmative in

-26-

finding the accused guilty of capital murder. (Pet. Br.

59-60, 65-66). Even if this were true in a given case, it

would not he illogical to rephrase substantially the same

question another way before imposing the death

penalty, given the infinite variety of human conduct and

the imprecision of the English language. It is a way to

reinforce that the killing was in fact the calculated

elimination of a human being, in the absence of

mitigating factors, at which the imposition of the death

penalty in Texas is aimed.” Moreover, at the sentencing

hearing, evidence may be presented as to any matter

deemed relevant to sentence, Article 37.071(a), and the

23) nquestionably, the Texas capital punishment statutes hit

their mark. Among those sentenced to die are Kenneth Granviel,

who murdered two small children, raped and murdered their

mother and aunt, and murdered a second aunt; and who, two

months later, raped three more women and murdered two of them,

State v. Granviel, No. 4111, 213th Judicial Dist. Ct. of Tarrant

County, Texas,Nov. 6, 1975; Mark Moore, who abducted a secretary

during a robbery, raped her, unsuccessfully attempted to sink acar

with her in the trunk, and then shot her with a shotgun in the face,

chest and vagina, State v. Moore, No. C-74-3180-PH, Ist Judicial

Dist. Ct. of Dallas County, Texas, May 15, 1974; James Burns, who

abducted a welfare recipient, forced him to submit to anal sodomy,

forced him to eat excrement and kicked him to death, State v.

Burns, No. B-7459, 161st Judicial Dist. Ct. of Ector County, Texas,

May 24, 1974; Edward Corley, who broke into a trailer house,

shotgunned the woman and child who lived there, entered achurch

one month later and abducted the organist, then took the organist to

an abandoned road where he raped her and shot her twice in the

head with a shotgun; State v. Corley, No. 75-291-C, 54th Judicial

Dist. Ct. of McLennan County, Texas Nov. 10, 1975; Ronald

O’Bryan, who murdered his own son with poisoned Halloween

candy in order to collect on large insurance policies, State v.

O'Bryan, No. 220323, 209th Judicial Dist. Ct. of Harris County,

Texas June 5, 1975; and Robert Kleason, who murdered two

Mormon missionaries at his house, cut up their bodies with a

hacksaw and disposed of them, State v. Kleason, No. 48,462, 167th

Judicial Dist. Ct. of Travis County, Texas, June 4, 1975.

-27-

Texas Court of Criminal Appeals has ruled that, inter

alia, evidence of mitigating factors such as action under

duress, or the domination of another, or an extreme

form of mental or emotional pressure could be

considered by the jury. Jurek, supra at 939-40. Thus, the

jury may have access to information at the sentencing

phase which it did not have at the guilt or innocence

phase. One prevalent example of this would be the

defendant’s failure to testify prior to conviction because

of trial strategy. In any event, Petitioner’s argument

that the submission of these two questions is a guise

under which juries permit the “erratic escape” of other

capital murderers is resoundingly rebutted by the

statistics. In the fify-eight (58) cases to date in which the

first question has been submitted to a jury, it has

been answered in the affirmative on all but three (3)

occasions; and all three (3) of those times the second

question was also answered in the negative. In the

twenty-seven (27) cases in which question three was

submitted, it was answered in the affirmative on every

occasion.

TEXAS JUDICIAL COUNCIL, CAPITAL MURDER

STUDY, June 14, 1973 - February 4, 1976 (1976) (hereinafter

cited as TJC STUDY). Subsequent to February 4, 1976, Donald G.

Franklin, a previously convicted rapist, was convicted of the brutal

rape-slaying of a nurse under TEX. PENAL CODE ANN. §

19.03(aX2) (1974). State v. Franklin, No. 76 CR-37-D, 105th Judicial

Dist. Ct. of Nueces County, Texas, Mar. 8, 1976. Franklin attacked

the nurse when she left work at midnight. Though he was identified

by an eyewitness and though blood was found at the scene, on his

clothes and in his apartment, Franklin refused to tell the police the

whereabouts of the victim when he was arrested several hours

later. The victim was found alive four days later in a field, but died

in a hospital from seven stab wounds. Jury questions one and two

were answered in the affirmative (question three was not

submitted), and Franklin was sentenced to death by the court.

Respondent has incorporated this case into the TJC STUDY figures

cited in this brief. 28.

The second question submitted to the jury is:

2) whether there is a probability that the

defendant would commit criminal acts of

violence that would constitute a continuing

threat to society;” Article 37.071(b\2).

This question focuses the jury’s attention on the need for

incapacitation, thereby directly addressing the issue of

whether the imposition of the death penalty in a

particular case serves yet a third social purpose.

Petitioner first attacks the submission of this

question on a statistical interpretation of the phrase “a

probability” that was not only rejected in theory by the

opinion of the Court of Criminal Appeals in Jurek, but

also in practice by the jury determinations to date. (Pet.

Br. 64-65) In discussing the factors which a jury may

consider in regard to the second question, the court’s

opinion speaks of the “likelihood™ that the defendant

would be a continuing threat to society,” Jurek, supra at

939-40 (emphasis added), thereby rejecting the

technical, mathematical definition argued by

Petitioner. It is patently absurd to assume that a lay jury

would interpret these words in the technical sense.

Indeed, Petitioner’s assertion that question two “could

25Mr. Justice Marshall in Furman observed that:

“With respect to those who are sentenced

to die, it is critical to note that the jury is

never asked to determine whether they

are likely to be recidivists.” Jd. at 355.

(Emphasis added).

“Likelihood” is commonly defined as “something that is likely to

happen.” WEBSTER’S NEW WORLD DICTIONARY 849

(College ed. 1968).

-29-

not have been answered in his favor” due to the technical

meaning of the phrase, (Pet. Br. 64, emphasis im

original), is conclusively rejected by the “no” answers

returned by juries in fifteen (150 other capital murder

cases.

Next, Petitioner asserts that question two grants to

the jury an impermissible and impossible power to

predict future behavior. Such an argument strikes at

the heart of our system of justice. Judges and juries time

and time again make assessments in both criminal and

civil cases coucerning events which are likely to occur.

For example, in the area of tort law, juries must deal

with the concept of “foreseeability.” Every time a court

issues an injunction, it is based on the likelihood that

certain conduct is likely to occur again. In the area of

civil commitments, jury assessments must frequently

be made as to whether a person will likely be a danger to

himself or to others. In criminal sentencing

proceedings, juries must frequently decide whether the

need for incapacitation calls for a sentence running

anywhere from five (5) years to life imprisonment.

TJC STUDY at 4. The 15 cases in which juries answered the

second question “no” involved 8 black defendants, 6 white

defendants and 1 Spanish surnamed defendant. See Appendix to

TJC STUDY. The last such case involved a black defendant who

was convicted of murdering a policeman. State v. Jennings, No. 48,

991, 147th Judicial Dist. Ct. of Travis County, Texas, Nov. 18, 1975.

27Petitioner questions the meaning of the remaining words in

question two. However, such an attack could be mounted against

any given phrase out of hundreds contained in a jury instruction.

Moreover, the legislature made a reasonable choice in directing

and guiding the jury’s deliberation on the need for incapacitation

instead of giving the jury an unworkable formula by attempting the

impossible task of identifying before the fact all factors which could

enter into that consideration. See page 26, supra.

-30-

When the need to protect society through

incapacitation is considered a legitimate goal of the

death penalty, why should it be impermissible to ask the

jury to determine that issue directly in an individual

case so that the punishment may indeed be tailored to fit

the criminal? One could argue forcefully that such an

approach would be less objectionable than that used in

numerous “habitual” statutes whereby a much greater

punishment is imposed automatically upon the offender

whenever he has one or two prior felony convictions.

Such statutes have been ruled constitutional by this

Court, see Spencer v. Texas, 385 U.S. 554 (1967), even

though they embody a seemingly arbitrary, conclusive

presumption as to the likelihood of future criminality

and the need to incapacitate for the protection of society.

A fortiori, a statutory scheme permitting the jury to

make such a determination on an individual basis would

be constitutional vis-a-vis predictability.

In sum, the Texas statutes not only limit the

availability of the death penalty to narrowly

circumscribed categories of murder, but also direct and

guide the jury’s deliberations at the sentencing

proceeding.

C. The Texas Capital Punishment

Statutes, In Theory And In Practice, Meet

The Objections Raised In Furman.

Without attempting to reiterate all the remedial

aspects of the present statutes, Respondent will

“Such statutes ... have been sustained in this Court on

several occasions against contention that they violate constitutional

strictures dealing with double jeopardy, ex post facto laws, cruel

and unusual punishment, due process, equal protection, and

privileges and immunities. (Citations omitted)” Id. at 559-60.

-31-

compare the substance and operation of these statutes

with those condemned in Furman, with emphasis on the

criticism contained in the pivotal concurring opinions.

It is difficult, if not impossible, to separate two

important features of the statutes struck down in

Furman, which formed significant bases for the Court's

ruling: one being the extreme infrequeney with which

juries in their discretion imposed the death penalty

under such statutes, the other being the breadth of that

sanction’s availability.“ Whether separable or not,

neither of these features presently exists under Texas

law. First, the Texas capital punishment statutes

confine the availability of the death penalty to narrowly

circumscribed categories of murder. Second, Texas

juries, directed and guided in their deliberations

pursuant to Article 37.071, have imposed the death

penalty with some regularity within these limited

categories. Of the 61 cases (out of 75 tried) in which the

defendant was found guilty of capital murder, 43

received the death penalty.*!

To the extent that the extremely infrequent

imposition of the death penalty on those convicted under

Indeed McGautha v. California, supra, and Furman together

might be read to permit juries to impose the death penalty purely on

the basis of their own judgment pursuant w statutes reasonably

circumscribing its availability. Under such an interpretation, it

would certainly be permissible to direct and guide the jury's

considerations at the sentencing proceeding.

„Of the 14 remaining cases, 6 resulted in convictions for a

lesser included offense, 5 resulted in mistrials because of hung

juries, and 3 resulted in verdicts of not guilty. TJC STUDY at 4.

31d.

32

the Furman statutes created a presumption of

“capricious” and “random” selection, ⁊ present evidence

is convincing that the present Texas statutes are applied

in an even-handed, non-arbitrary fashion.“

There are other judicially criticized features of the

Furman statutes and their administration that are

remedied under present Texas law. First, as delineated

on pages 23-25, supra, the present statutes limit the

availability of the death penalty to categories of murder

wherein the deterrent effect can reasonably be thought

to be maximized and wherein there is a significant need

for retribution. Consequently, these social aspects of

capital punishment are enhanced by the regularity of its

imposition experienced in trials conducted to date. See

Furman at 311-13 (White, J., concurring). Second, the

statistics on the operation of the Texas capital

punishment statutes show that no correlation exists

between the race/ethnic background of a defendant and

the probability that he will be either convicted of capital

murder or given the death penalty. TJC STUDY at 7-8.

Finally, the “legislative will is frustrated” and the

jury “violat{es] its trust,” Furman at 311, 314 (White, J.

concurring), every time it refuses to impose the death

penalty when it is satisfied that the prosecution has

proven the case beyond a reasonable doubt under the

See, e.g., Furman at 293 (Brennan, J., concurring), 309-310

(Stewart, J., concurring).

For example, 20 whites, 23 blacks and 9 Mexican-Americans

were defendants in the capital murder cases involving robbery-

killings, and such trials resulted in 10 death penalties, 10 death

penalties and 6 death penalties, respectively. See Appendix

annexed to TJC STUDY. For another example, see n.26, infra.

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provisions of Articles 1257 and 37.071.“

CONCLUSION

The citizens of the State of Texas urgently need and

deserve protection from the horrendous, brutal, and

inhuman life-taking actions that occur with increasing

frequency. The Texas legislature, as the duly elected

representative body of the people, has responded to that

need by enacting capital punishment statutes which

meet the criticisms raised by the majority of this Court

in Furman v. Georgia, and which offend no clause of the

United States Constitution. It is urged that this Court

refrain from taking away the people’s power to respond

in this manner to the atrocities so frequently visited

upon them.

“The legislature has prescribed the death penalty for every

offender who meets the criteria set out in these Articles. In

addition, each juror has taken an oath that he “will a true verdict .

render according to the law and the evidence,” TEX. CODE CRIM.

PROC. ANN. art. 35.22 (1965), and “that the mandatory penalty of

death or imprisonment for life will not affect his deliberations on

any issue of fact.” TEX. PENAL CODE ANN. art. 1257(d) (1973).

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For all of the foregoing reasons, the judgment of the

Texas Court of Criminal Appeals should be affirmed.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

BERT W. PLUYMEN

Assistant Attorney General

JIM D. VOLLERS P.O. Box 12548, Capitol Station

State Prosecuting Attorney Austin, Texas 78711

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, John L. Hill, Attorney General of Texas and a

member of the Bar of the Supreme Court of the United

States, do hereby certify that three copies of the

foregoing Brief for Respondent have been served by

placing same in the United States Mail, First Class,

Certified, and Postage Prepaid, on this the 24th day of

March, 1976, addressed to: Mr. David E. Kendall,

Attorney for Petitioner, 10 Columbus Circle, New York,

New York, 10019.

JOHN L. HILL

Attorney General of Texas

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