Petition for Writ of Certiorari — Alvarez v. Nebraska

Supreme Court brief1968

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Ix THE APR 26 1969

Gupenine Court of the Buite SHAPE scum

OcTOBER Saiki 1966

‘Tuomas A, ALvAREz,

Petitioner,

—v.—

Srare or NeprasKa,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEBRASKA

MELVIN ‘) Woutr

Joun C. Gray, Jr.

- 156 Fifth Avenue

New York, N. Y.°

Ricuarp L. Goos

3601 Calvert Street

Lincoln, Nebraska

AntTHony G. AMSTERDAM

3400 Chestnut Street

Philadelphia, Pa.

Attorneys for Petitioner

Patrick W. HEALEY

1640 L Street -

Lincoln, Nebraska -

- Of Counsel

ania

—

Citations to Opinions Below pei 3 : as ee

Jurisdiction ...... ue 2

Questions Presented ..... sy _ jomaciieieiilals eg

Statute Involved’... , ; 3 |

‘Statement of the Case | = aa secces > S

Reasons for Granting the Writ : 6

I. The sentence of death was imposed on peti-

tioner in violation of the due process.clause of

the Fourteenth Amendment, because petitioner

was denied the opportunity to comment on and

rebut by his own evidehce prejudicial allega-

tions which were contained in a presentence .

report put in evidénce by the trial judge on his

own motion. | ha 7

II. The sentence of de&th imposed on petitioner

pursuant to section 28-401 violates the due proc-

ess clause of the Fourteenth Amendment: be-

_ ¢ause it is vague and lacks reasonably certain

. Standards for decision - : 12

III. Imposition of. the death penalty pursuant to

* section 28-401 inflicts loss of life without any

compelling justification in violation of the due

process clause of the Fourteenth Amendment .... 19

PAGE

IV. The sentence of death imposed on defendant

pursuant to section 28-401 constitutes a cruel

_and unusual punishment in violation of the

' Highth and Fourteenth Amendments ........:..... cee

CoNcLUSION

APPENDIX:

Judgment of Death of the County Court of Lan-

easter County, State of Nebraska, made on

. March 31, 1967 and the Opinion « the re

~ Court of Nebraska

TaBLE OF AUTHORITIES —

Cases: re, |

Bates v. Little Rock, 361 U. S. 516 (1950) .

Cline v. Frink Dairy Co., 274 U. S: 445 (1927) ..........

‘ * Connally v. General Construction Co., 269 U. S. 385

(1926) “

_ Cox v. Louisiana, 379 U. S. 536 (1965)

Cryderman v. State, 101 Neb. 85, 161 N. W. 1045 (1917) |

Dombrowski v. Pfister, 380 U. S: 479 (1963) .......:.......

Freedman v. Maryland) 380 U.S. 51 (1965) ececcwn-

Giaccio v. Pennsylvania, 382 U. S. 399 (1966) ....12, 14, 15

Griswold v. Connecticut, 381 U. S. 479 (1965) ............

. 2

* a

‘PAGE

Hamblin v. State, 81 Neb. 148, 115 N. W.-850. (1908) .. adhe

Herndon v. Lowry, 301. U. S. 242 (1937) raed “s

| Tn Re Gault, 387-U, S. 1 (1967) ae nenenenenrtnenincneel6T

Joint Anti-Faseist Refugee Committee v. - McGrath,

341 U. S. 123 (1951) seneese aan 9

Kent v. United States, 383 U. 8. 541 (1966) 2... 17

Louisiana v. United States, 380 U. S. 145 (1963) .. ea

P Menge v. Rhay, 389 U. S. 128 (1967) ...16, 17

. Muzik v. State, 99 Neb. 496, 156 N. W. 1056. (1916) ..... 14

N. A. A. C. P. v. Alabama, 377 U. S. 288 (1964) ........... ° 20

N. A. A. C. P. v. Button, 371 U. S. 415 (1963) .. ABYSE ° 12

Schneider v. State, 308 U. S. 147 (1939) , 20

Shelton v. Tucker, 364 U. S. 479 (1960), 2.0.2... 20 -

Sherbert v. Verner, 374 U.S. 398 (1963) ........... —_ 0, 21

Skinner v. Oklahoma, 316 U. S. 535 (1942) ................ 18

Smith v. Cahoon, 283 U. 8.553 (1931) doses, AB > *

Specht v. Patterson, 386-U. S. 605 (1967) ” 18 .

State v. Hall, 176 Neb. 295, 125 N. W. 2d 918 (1964) ..... 14

“Swartz v. State, 118 Neb. 591, 225 N. W. 766 causes 14

“Thomas v. Collins, 323 U. 8. 516 (1945) on eeeen 20

Townsend v. Burke, 334 U. S. 736 Om) = soi ke

Trop v. Dulles, 356 U. S. 86 (1958). ..022....... sasoeDBy 24

:* ste 6. : o : ia ae ‘ fa

a 2 _ PAGE

_ Weems v. United States, 217 U. S. 349 (1910) .........23,25

‘West Virginia State Board of Edncation v. Barnette,

319 U. S. 624 (1943)

Williams v.-New York, 337 U. S. 241 (1941) saclay 8, 9, 16

Other Authorities:

American Law Institute, Mode} Penal Code

_§7.07 (5) . ; "tem

§210.6 (P. O. D. May 4,.1962) 128

Bennett, Countdown for Judicial Sentencing, Fed.

' Prob. 22 (Sept. 1961)

. Berman, “Capital Punishment Is on the Way Out, Ps

The Progressive (Apr. 1, 1960)

Davis, 1 Administrative Law

§7.02 (1958) :

§7.04 (1958) ... iaiieisinieaaia

$7.16 (1958) .

Dorsen, “The Death Pae~t Civil Liberties | Issue?”

Civil Liberties (No. 221, December, 1964) 0...

Gettlieb, Capital Punishment: The Legal Challenge,

_ ACLD Open Forum, 4 (Feb. 1966)

Gottlieb, “Testing the Death Peaaity," 34 8. Cal. Law

Rev. 268 (1961) aie ?

Graves, “The Deterrent Effect of Capital Punish-

ment in California,” in Bedau, The Death Pefiulty

in America, 332 (1964)

ei. os

Higgins| Confidentiality of Pre-sentence Reports, 28 .

Albany L. Rey. 12 (1964) .... , 9

i J ohnson, “Executions and Connintatinin in North

. Carolina” i in Bedaun, The Death wonenty ! in America, J

452 (1964) - i 13

Lewis, The Sit-In Cases: Great, Expectations, 1963 *

Supreme Court Review 101 ...:.. 12

MacNamara, “Statement Against Capital Punishmtent,” :

in Bedau, The Death Penalty in America, 182 (1964) 21

* Memorandum on Capita] Punishment 2, ACLU (Feb.

1967) ils 25 »

New York Committee to Abolish Capital Punishment, :

Special News Report, J an., 1964, at 2 (1967) —....... . 2

Note, “409\U. Pa. L. Rev. 78 (1960) , 14

Note, Due Seen and ‘Legislative Standards in Sen-

tencing, 101 U. Pa. L. Rev. -257 (1952) | 9°

N ote, Due Process in Sentencing, 81 Harv. L. Rev. ;

* 821, n. 27 (1968)...... a 9,10

Note, “Procedural Due Process at J udicial Sentencing

’ for Felony,” 81 Harv. L. Rev. 821 (1968) ........ 15.

Ranson, I Want to Live (1958) - : 3 |

Roche, The Position for: Confidentiality of the Pre- ©

sentence Investigation Report, 29 Albany L. Rev.

206 (1965) , ‘ 9

‘Sellin, The Death Penalty (‘The ahetien tow Insti-

_ Phila elphia, reach - 21

Dad

| ‘The New York Times, June 20, 1964, at 2, col. 3... 24

_ The New York Times, July 24, 1965 at 1, col. 5 ............ 22

The Task Force Report on The Courts of the, Presi-

dent’s Commission on Law Enforcement and Ad-

ministration of Justice (1967) - 17, 18, 21-22

Time, July 7, 1967, at 47 (1966) 24

~ United Nations, Department of Economic and. So-

cial Affairs, Capital Punishnient (ST/SOA/SD/9)

(1962) ae sal, 24

United Nations, Department of Economic aad Social

» @ffairs, Capital Punishment—Developments 1961-

1965 (ST/SOA/SD/10) (1967) age

U. S. Department of Justice, National Priccner Sta- .

9 tistics, No. 39 “Executions 1930-1965” (1966) ........ 24

Van Dusen, Trends in Sentencing Since 1957 and

_ Areas of Substantial Agreement and Disagreement

‘Sin Sentencing Principles, 395 (1964) ae 17

Webster, New International peetenney 636 (unabr.

2d ed., 1954) : 24

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

mutations in. Pennsylvania,” in Bedau, The Death

Penalty in America, 466 (1964) : 13

Youngdahl, Remarks Opening the Sentencing Int

_ Program, 35 F. R D. 387 ne | ee

| _ PAGE

U.S. Constitution: a

Fifth Amendment , 19 -

Eighth Amendment 2, 5, 20, 22

Fourteenth Amendment ..: 2, 5, 7, 19, 20, 22

Statutes: | |

28 U.S. C: See. 1257(3) | —

'~ B.R.S. of Nebraska

Sec..28-401 (1943) 2, 3, 5, 12, 13, 19, 22

See. 29-2306.01 (1943) aR SS

Sec. 29-2308 (1943) 5, 14

R.S.of Nevada = = | wr ~

Sec. 200.360 (1963) .. Spar i 19°

Sec. 360 (1963) . 19

5 .

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‘

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*¢é

° In THE

Supreme Court af the United Ptates

Octoser Term, 1967

I cocaes

THomas A. ALVAREZ,

Petitioner,

—V.—

_ Tue Stare or Nepraska, ©

_ Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEBRASKA

Petitioner prays that a writ of certiorari issue to review

the: judgment of the Supreme Court of the State of Ne- .

braska entered in the above-entitled case on December 8,

1967.

Citations to Opinions ‘Below .

The judgment of death of the County Court of Lancaster

- County, State of Nebraska, made on March 31, 1967, is

unreported. It is contained in the record at.p. 19 and is

printed in the Appendix, infra, pp. 29-30. The opinion

of the Supreme Court of Nebraska is reported at 182 Neb.

358 (1967) and is set forth in the Appendix, infra, pp. 31-40.

jurisdiction —

The judgment of the Supreme Court of Nebraska was

- entered on December 8, 1967. Motion for Rehearing was

denied on January 29, 1968. The jurisdiction of this Court

is invoked under 28 U.S. C. Sec. 1257(3)., : :

Questions Presented

1; Whether the denial to petitioner of an opportunity

to comment on and rebut by his own evidence preju--

_dicial allegations contained in a presentence report

put in evidence at the sentencing hearing by the trial

judge, violates the due process clause of the Four-

teenth Amendment? |

2. Whether the imposition of the death penalty pursuant

- to Section 28-401, R. R. S. of Nebraska (1943), vio-

lates the due process clause of the Fourteenth Amend-

“ ment because the statute is vague and lacks reason-

ably certain standards for decision? |

' 8. Whether the imposition of the death penalty on peti-

tioner pursuant to Section 28-401. inflicts loss of life

without any compelling justification in violation of

the due process clause of the Fourteenth Amendment?

4. Whether the sentence of death imposed on pétitioner

pursuant to Section 28-401 is a cruel and unusual pun-

ishment in violation of the EKighth and Fourteenth

Amendments?

aE EERE ee -

ERTS PIV ITPA D LE BTS DIT I TE I RIOR eT,

| _ Statute Involved —

Section 28-401, B. R! S. of Nebraska (1943): -

Whoever shall purposely and of deliberate and pre-

meditated malice or in the perpetration of or attempt

to perpetrate any rape, arson, robbery or burglary,

+ or by administering poison, or causing the same to be

done, kill another; or, whoever by willful and corrupt

perjury or subornation of the same, shail purposely

procure the conviction and execution of any innocent

person, every person so offending shall be deemed

guilty of murder in the first degree and upon convic-

tion thereof shall suffer death or shall be imprisoned

‘in the Nebraska Penal and Corrections Complex dur-

ing life. If the accused is found guilty by a jury, they

shall fix the punishment by their verdict; upon‘a plea

of guilty, after the defendant has been fully informed

of his constitutional rights, the punishment shall be

fixed by the court. “

\ ‘Statement of the Case -

é fa |

Petitioner, born in 1947, iy a young man of Mexican-

American ancestry. State v. Alvarez, 182 Neb. 358, 359 |

(1967), Appendix, infra, p. 31, A criminal proceeding.

brought by an information (R. 5), charged petitioner with |

premeditated murder, killing in the perpetration of a rape,

and killing in the perpetration of a robbery (R. 5). Peti-

tioner waived preliminary hearing and was bound over to

the. District Court of Lancaster County on September 29,

1966 (R. 10). On December 22, 1966, petitioner was ar-

raigned on Count I and pleaded guilty (R. 17). The Court

suspended further proceedings -pending an. investigation —

4 |

by the adult probation: officer. (R. 17). On January 16,

1967, Counts II and III were dismissed (R. 18). In March,

1966, petitioner was-given a psychiatric examination: by

a 'Uz S.Navy physician who reported that although de- ©

fendant was an “Emotionally Unstable Personality” he

was “fully responsible for all his actions.” State v. Alvarez,

supra, at 361, Appendix, infra, p. 34. Two doctors for

the defendant concluded jointly that he was .temporarily ,

insane, unable to tell the difference between right and

wrong at the time of the alleged acts. Id. at 362-63, Ap-

pendix, infra, pp. 35-36.

The pre-sentence report contained a number of allega-

tions prejudicial to petitioner including, but not limited to, a

~statement-by.a_police sergeant that he believed petitioner

guilty of a previous murder, Presentence Investigation Re-

port, p. 31,1 a statement by the five-year-old son of the de-

ceased that defendant had entered the home uninvited (id.

at 26, 27 [Petitioner consistently maintained that: he had

been invited”in. See, e.g., Presentence Investigation Re-

port, p..105.]), and a statement: by a police polygraph ex-

aminer that “It is definitely the opinion of this examiner

that Thomas Alvarez was also responsible for other sex

_erimes at other places.” Presentence Investigation Report,

p. 24. ie |

_ At the sentencing hearing, the trial court considered and

placed into evidence on its own motion the 198-page pre-

sentence investigation report, which, apart from material

submitted in petitioner’s behalf, contained police records

and investigation reports, defendant’s | statements, psy-

° 1A copy of the Presentence Investigation Report is part of the

record filed with the Clerk of the Court. It is separately paginated. .

eee i 5

chiatric reports, and statements about the petitioner by

people who had known him. Petitioner was given no op-

portunity either to comment on the contents.of the report

or to offer his own evidence in rebuttal of the allegations

which it contained. State v. Alvarez, supra, at 363, Ap-

pendix, infra, p. 36.+

- On March 31, 1967, the trial Judge sentenced petitioner

to death without any statement of reasons (R. 19).

On automatic appeal to the Supreme Court of Nebraska,

that Court concluded that the sentence was not “excessive” .

under Section 29-2308, R. R. S. of Nebraska (1943). The

Court also rejected the arguments that the death penalty

was a cruel and unusual punishment under the Eighth

Amendment and was unnecessary in violation of the due

process clause of the Fourteenth Amendment. 182 Neb.

at 366, Appendix,-infra, p. 39. The Court further held

‘that the defendant had no state or federal constitutional

right to review, rebut or comment on the contents of the

pre-sentence report. Id., at 363, Appendix, infra, p. 36.

The Court did not deal explicitly with the argument pre-

sented by petitioner that Section 28-401 violated the due

process clause of the Fourteenth Amendment because it

was vague and lacked “rational guidelines” for decision.

_ This point was re-raised in a motion for rehearing, together

with the claim of cruel and unusual punishment under the

Eighth and Fourteenth Amendments. The motion was ©

denied on January 29, 1968. ~ :

Reasons for Granting the Writ

Certiorari should be granted in this case because it in-

volves substantial federal constitutional issues concern-

ing the procedures by which a state may deprive a man of

his life. While this case involves directly only one man, its.

‘implications affect the lives of over four hundred people

now -under sentence of death. : ,

This Court has always given special attention to all

issues presented in death cases because of the finality of

the punishment. Here, where capita] punishment itself, as

well as its traditionally discretionary method of application,

are under constitutional attack, plenary consideration is all

the more appropriate.

This case presents four substantial contentions of con-

stitutional law which should be determined by this Court.

The sentence of death was imposed on petitiouer in

violation of the due process clause of the Fourteenth

Amendment because petitioner was denied the oppor-

tunity to comment on and rebut by his own evidence

prejudicial allegations which were contained in a pre-

sentence report. put in evidence by the trial — =

_ his own motion. -

In Williams h. tai York, 337 U..S. 241 (1941), this —

Court rejected the argument that due process required the

presentation of all evidence at a sentencing hearing by

witnesses in open court subject to cross-examination. With

respect to pre-sentence reports by probation workers, the

Court said, inter alia, that, “To deprive sentencing judges

of this kind of information would undermine modern

penological procedural policies that have been cautiously

adopted throughout the nation after careful consideration -

and experimentation.” 337 U. S. at 249-50.

Petitioner need not quarrel with the result in Williams,

see Davis, 1 Administrati¥e Law §7.16 (1958), to assert

that the procedures used in sentencing him to death—com-

‘ ,pilation by the trial judge of a 198-page pre-sentence re- —

port that petitioner was not permitted to see prior to the

sentencing hearing when it was received in evidence, and

whose contents petitioner was given no opportunity to ©

comment upon or to rebut—denied him the fundamental

fairness required by due process. Indeed, the rejection by .

Williams of any right on the part of a defendant in a

sentencing hearing to confront and cross-examine all per-

sons giving information unfavorable to him lends added

importance to the very different right claimed here: the

right merely to adequate notice of the contents of a pre-

sentence report, and to some fair chance

and attempt to.refute by his own evidenc ee % S con-

tained in a report which is received in evjdence. e court

as the basis for its decision wheth shfll live or die.?

The requirements of fair notice and of opportunity to ex-

plain and rebut, unlike a requirement of confrontation and

cross-examination, do not effectively deny to the court any

information, -gathered by any investigative method, which

the court may wish.to eonsider. It does not even impose the ~

‘ burden of bringing into open court the witnesses on whose

ex parte communications the court may choose to rest -its

life-or-death determination. It. demands only that the de-

. fendant, with his life at stake, have some warning of, and

a chance ‘intelligently to rebut prejudicial allegations con-

tained in the pre-sentence. report. Petitioner contends that

this is the minimal demand which due: process imposes on

capital sentencing.

While it is true.that the “due process clause should not

be treated as a device for freezing the evidential procedure

of sentencing in the mold of [criminal] trial procedure,”

Williams v. New York, supra, at 251, the mere fact that a

proceeding involves sentencing should not shield it from the

‘ more flexible requirements of due process as they are ap-

2 Petitioner was allowed to aati material for inclusion in the

| pre-sentence report (Presentence Investigation Report, pp. 142-

198), but at. the time he was permitted to offer such material he

did not and could not know of theprejudicial allegations contained |

other material in the report, and he was given no opportunity to

ent on or rebut those allegations when the report was. entered

in evidence at the sentencing hearing. ,

plied in administrative hearings.’ See Davis, 1 Administra-

tive Law §§7.02, 7.04 (1958), ef. Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 171-72 (1951) (Frank.

’ furter, J., concurring). Even in a ‘sentencing procedure,

the defendant has a right not to be acted against on the

basis of inaccurate information. See Townsend. v. Burke,

334 U. S. 736 (1948). But this right is illusory unless the

_ ‘defendant can know and challenge in some way the in- -

formation on the basis of which the decision is to be made, .

_ See Note, Due Process in seit ten 81 Harv. L. a. 821,

* 826 n. 27 (1968).

‘The refusal to allow a defezidant to see or. contest in-

formation contained i in a pre-sentence report has ordinarily

been based for the most’part on an alleged need for. confi-

dentiality to protect the continuing supply of information

from secret informants. See, e.g., Roche, The Position for

Confidentiality of the Pre-sentence Inv estigation Report,

29 Albany L. Rev. 206, 212 (1965). The rule of complete

_ eonfidentiality has recently been the subject of much criti-

cism.* But on the record of the present case, the policy

of protecting the confidentiality of secret sources was not

invoked. The pre-sentence report was fully disclosed by

the court itself, apparently i in order to allow the Supreme

_ Court of Nebraska to consider the information it contained

“upon its automatic review of the case. Petitioner, however,

* Even in Williams itself, the Court indicated that sentencing

was not “immune from scrutiny under the due process clause.”

337 U. S. at 252 n. 18. .

.* See, e.g., Note, Due Process in Sentencing, 81 Harv. L. Rev.

821, 835-41 (1968) ; Note, Due Process and Legislative Standards

‘in ‘Sentencing, 101 U. Pa. L. Rev. 257, 277-78 (1952); Model

Penal Code §7.07(5) ‘(Proposed Official’ Draft 1962) ; Higgins

ase) of Pre-sentence Reports, 28 } Abang L. Rev: 12, 2-53

1 a,

a ee

was given no opportunity to comment on or contest its

-allegations.

The only possible justification for such a procedure is con-

cern about time-consuming proliferation of minor issues.

But this problem could easily: be controlled through rea-

sonable limitations orfpresentations by defense counsel,

see Note, Due Process in Sentencing, 81 Harv. L. Rev.

821, 841 (1968); and in any event, in a capital case, the

concern is an inadequate justification for the substantial

‘prejudice to defendants likely to result from denial of

fair notice and opportunity to rebut unfavorable informa-

tion. °

The danger of prejudice implicit in a system of denying

defendants the chance to contest allegations against them in

pre-sentence reports is made palpable in the present case.

The pre-sentence report here included three assailable and

exceedingly prejudicial statements. The first was the writ-

ten ‘report of a Lincoln, Nebraska police detective who

related a telephone conversation he had had with one

Sergeant Montoya of the Denver police department. Pre-

_ sentence Investigation Report, p. 31. Sergeant Montoya

had said that his department had arrested petitioner on

August 19, 1966, for investigation in the apparent murder

of a Denise Bargas in Denver. The sergeant continued that

he felt “definitely in his own ‘mind” that petitioner was

. responsible for the killing and that he “definitely” knew

_ that petitioner had to be at the address when the murder

took place|butthat he “could not prove any of this.” Ibid.

In short, Sergeant Montoya accused petitioner of a prior

_ murder even though the investigation of his relationship to

' thé crime had been dropped. It is significant that even

the Supreme Court of Nebraska relied upon petitioner’s

supposed involvement in the Bargas murder as an aggra-

vating circumstance supporting the imposition of the

death penalty upon him. 182 Neb. at 360; App., infra, p.

33. ss

Another prejudicial statement was that of the five-year-

old son of the deceased, recorded in the police reports, that

petitioner had entered the deceased’s home uninvited: (See .

.Pre-sentence Investigation Report, pp. 26, 27, and an un-

numbered page between pages 42 and 43.) This story was

directly contrary to petitioner’s version of the events. See

State v. Alvarez, supra, at 359; App., infra, p. 32. Peti-

tion@r maintained that he had been invited in, buit—for

want of adequate notice of the issue—developed no evi-.

dential support beyond his own professions to this effect.

The third prejudicial statement which petitioner had no

opportunity to rebut was that of a police polygraph ex-

aminer that “... . Alvarez was also responsible for other

sex crimes at other places.” Presentence Investigation Re-

‘port, p. 24.

These statements involved grave and obvious preju-

dice to the defendant.- We submit that the question is sub-

stantial whether a procedure is constitutional that allows

the sentence of death to be based on such statements, with-

out the slightest opportunity. for rebuttal.

il.

The sentence of death imposed on petitioner pursu-

ant to section 28-401 violates the due process clause of

the Fourteenth Amendment because it is vague and lacks

reasonably certain standards for decision.

Whatever else due process of law may encompass, it has

always been thought to impose some demand of fyndamen-

tal procedural regularity in decision-making, some insist-

ence upon the rule of law, some adherence to the principle

established by Magna Carta that the life and liberty of the

subject should not be taken but by the law of the land.

‘This Court has long condemned a degree of vagueness in

criminal statutes which allow the fatt-finder to éreate its

own standard in each case. See, e.g., Herndon v. Lowry,

301 U. S. 242, 263 (1937); Smith v. Cahoon, 283 U. S. 553

(1931); Cline v..Frink Dairy Co., 274 U. S. 445 (1927);

Connally v. General Construction Co., 269 U. 8. 385 (1926).

See also Giaccio v. Pennsylvania, 382 U. S. 399 (1966).

The vice of such statutes is not alone their failure to give

fair warning of prohibited conduct, but the breadth theys,

leave for arbitrariness and suasion by impermissible con-

siderations. See N. A. A. C. P. v. Button, 371 U. S. 415,

432-433 (1963); Freedman v. Maryland, 380 U: S. 51, 56.

f (1965) ; Lewis, The Sit-In Cases: Great Expectations,

‘ 1963 Supreme Court Review 101, 110, including racial

considerations, see Louisiana v. United States, 380 U. S. .

145 (1963); Dombrowski v. Pfister, 380 U. S. 479 (1963) ;

Cox v. Louisiana, 379 U. S. 536 (1965), and every other

insidious urging of caprice or prejudice.

_ The dangers implicit in unbridled discretion in imposing

punishment are illustrated in the grim history of the dis-

. ptr ier: rane se OO PEE CIR ~ og GPT, cial FLOP ELMER LE AE 8 SLOPE LS LILLIA LIES FS SPIN

. 13 ;

criminatory ‘use of the death penalty in the United States.

Of those convicted of intentional homicide only about one

per cent are executed.’ This one per cent is‘almost uni-

versally. poor and friendless.* Even if judges and juries

do not intentionally. favor the rich, the wealthy men can

afford to pay for a superior presentation of his case.

’ Negroes, Puerto Ricans, and Mexiéan-Americans con-

victed of capital crimes are more often sentenced to death

than whites. In New York State, for example, 85 per cent

of those sentenced to death were Negroes. See Dorsen,

“The Death Penalty—A Civil Liberties Issue?”, Civil

Liberties (No. 221, December, 1964). Negroes sentenced to

. death are more likely to be executed than whites. See

Wolfgang, Kelly, and Nolde, “Executions and Commuta-

tions in Pennsylvania,” in Bedau, The Death Penalty in -

America, 466, 473-77 (1964). Thus it is not completely by

_ chance that this defendant is of Mexican-American descent.

Under “vagueness” decigions cited above, it could scarcely

be contended that a statute would be valid which provided:

“Whoever is found condemnable in the discretion of a judge

shall be guilty of an offense.” Yet a parallel standard has

been found an acceptable basis for a judicial decision of

“death” for petitioner rather than “life” by % Nebraska

Supreme Court. Section 28-401, R. R.: S. thy jpPrasis

(1943), provides i in part,

“upon a plea of guilty, after the defendant has been

fully informed of his constitutional rights, the punish-

ment ~~ be fixed by the court.”

* Berman, “Capital Punishment Is on the Way Out,” The Pro-

gressive, Apr. 1, 1960.

Carolina” in Bedau, The “an Penalty in America, 452, 459-61

(1964).

The trial court has no guides or standards; it need give

no specific reasons for its decision and it did not do so in

this case (R. 19). On appeal, which is automatic after a~

sentence of death [R. R. S. §29-2306.01 (1943)],

“... the Supreme Court . ... may reduce the sentence

rendered by the district court against the accused,

when in the opinion of. the court the sentence is ex- —

cessive, and it’shall be the duty of the Supreme Court

’ to render such semtence against the accused as in its

opinion may be warranted by the evidence...” R. R. S.

§2308 (1943). ‘

The decision on.appeal is merely a repetition of the trial

court’s unconfined and undefined sentencing discretion.

Many possible factors are potentially relevant, yet the final

decision ultimately being uncontrolled except by the indi-

vidual consciences of the members of the court. See State

v. Alvarez, supra, Appendix, pp. 31-40, infra. Compare,

_e.g., Hamblin v. State, 81 Neb. 148, 115 N. W. 850°(1908) ;

Muzik v. State, 99 Neb. 496, 156 N. W. 1056 (1916) ; Cryder-

man v. State, 101 Neb. 85, 161 N. W. 1045 (1917); Swartz

_y. State, 118 Neb. 591, 225 N. W. 766 (1929); State v. Hall,

- 176 Neb. 295, 125 N. W. 2d 918 (1964).

Procedures like Nebraska’s are justified on the theory

that standards are not necessary in the sentencing process

' because no issue of fair warning to potential defendants

is involved. But in Giaccio v. Pennsylvania, 382 U. S. 399

(1966), this Court squarely held what its earlier decisions

had plainly implied, see Note, 109 U. Pa. L. Rev. 78, 80-85

_ (1960): ‘that the eoncern of the due process clause for

fundamental regularity in the process of judicial decision-

making—for the rule of law, rather than the arbitrariness

se MEME M De ws, APY RWS FAM MONEE ETON Se CR OPES FEIT OT He A LY CN x . ELBE BEERS ITE mi

PT ON ae POE DE

a eel Ae Lowy a, . ie

15 °

of unprincipled ad hoc judgment—is not confined to situa-

tions in,which arbitrariness may also present the problem

of fair warning. Plainly, an initial finding of guilt. is: an

inadequate basis for exempting all further decision-making

proceedings from the requirement of procedural regularity —

imposed by rational standards, and for exposing defendants

to the whims and prejudices of judges and juries. Giaccio

teaches that sanctioning, like all other judicial processes

bound by the Due Process Clause, must conform to °the

principle of governance by rules of law, not men. And

more is at stake in a ‘sentencing choice between life and

death than in the assessment.of costs in a minor misde-. _

’ meanor matter like Giaccio.

In fact, the present lack of reasonable standards and

other procedural due process protections for defendants at

sentencing has béen tolerated because of a fortuitous com-

bination of historical circumstances. In the Eighteenth

Century, the defendant, would not have been aided by pro- |

- eedural protections ‘at sentencing, because the penalty for

a crime was usually fixed inflexibly by common law or stat-

ute. See Note, “Procedural Due Process at Judicial Sen-

tencing for Felony,” 81 Harv. L. Rev. 821 (1968). Pardon

“ was the only way of obtaining mitigation of sentence. Thus

when individualization of sentence became possible with

Statutory changes in the nineteenth century, “Cejourts .

may well have continued to take the view that the solpiiian

was still asking for mercy rather than ‘justice’. . . that the

primary burden of the role formerly charged by thé execu-

tive had now shifted to the judges.” Jd. at: 822-23. — |

Later in the nineteenth century the “new” penology be-

gan to develop corrections theories which called for the

individualization of punishment based on the opinions of _

experts as to the need of the defendant for specialized

“treatment.” With this change of theory, however, proce-

- dural due process requirements continued to be ignored on

the grounds that they would interfere with the use of

scientific opinion and that they would make sentencing an

unduly burdensome procedure. See, e.g., Williams v. New

York, supra, at 250-51.

Substantial doubt, however, has been thrown on the tradi-

tional needlessness of due process requirements at the

sentencing stage by three cases decided by this Court

within the past year. In Mempa v. Rhay, 389 U. S. 128

(1967), In Re Gault, 387 U. S. 1 (1967), and Specht v. Pat-

terson, 386 U. S. 605 (1967), this Court applied to areas

previously marked by unfettered judicial discretion the

principle that procedural protections for defendants must. °

be afforded commensurately with the extent to which the

defendant’s interests are realistically affected.at any stage

of-the criminal process.

In Mempa v. Rhay, supra, the Court explicitly recognized

“the critical nature of sentencing in a criminal case”, 389

U. S. at 134, and made provision of counsel mandatory at

that stage, even if it is delayed by provisional release.

389 U. S. at 137. But to guarantee the defendant counsél

‘at a sentencing procedure without requiring that the sen-

tencing decision be based on intelligible principles may pro-

vide the defendant with an illusory right. While a lawyer

can be of significant use to the defendant in challenging

those facts which he is permitted to know, see Williams v.

New York, supra, and Point I, supra, and in preserving

various procedural rights, see Mempa v. Rhay, supra, the

lawyer cahnot provide his most important service—effective

argument to a court for an appropriate disposition on the

basis of neutral principles—unless there are intelligible

. standards, known to both judge and lawyer, by which the

decision is to be made. Without the possibility of argument

from and to neutral principles, it is hard to call a decision-

making process a legal one at all. :

Just as significant as Mempa is the Gault case in which

this Court applied the requirements of procedural due

process to juvenile court proceedings, which had previously

been left uncontrolled in order, inter alia, to maximize the

use of discretionary, but expert decision-making. See also

Kent v. United States, 383 U. S. 541 (1966). Citing evi- |

dence of the failure of juvenile courts to live up to their

“scientific” goals, 387 U. S. at 18 et seq., this Court imposed

_ upon them the basic elements of a due process hearing.

‘387 U. S. at 31-59. Authoritative evidence now indicates

that sentencing courts across the country have failed as

badly as the juvenile courts. The history of discretionary

sentencing, like juvenile court history, “has again demon-

‘strated that unbridled discretion, however benevolently mo-

tivated, is frequently a poor substitute for principle and

procedure.” 387 U. S. at 18.. The Task Force Report on

The Courts of the President’s Commission on Law Enforce-_

ment. and Administration of Justice (1967) concluded (at

p. 23) that “[t]he existence of unjustified disparity [in

_ sentencing] has been amply demonstrated by many studies.’

It is a pervasive problem in almost all jurisdictions.” The

7The Report cites Bennett, Countdown for Judicial Sentencing,

Fed. Prob. Sept. 1961, pp. 22, 26; Youngdahl, Remarks Opening

the Sentencing Institute Program, 35 F. R. D. 387, 390-91 (1964) ;

Van Dusen, Trends in Sentencing Since 1957 and Areas of Sub-’

‘stantial Agreement and Disagreement in manne we

id., at 395 (1964).

Task Force Report recommended “enactment of criteria for

sentencing” and educational programs for judges. Id. at 24.

~The gross injustice which, the ‘President’s Commission

“found at all levels of sentencing is peculiarly intolerable

when it infects the application of the death penalty. Even

if the i imprecision of the. sentencing art and complexity of

sentencing goals must allow for-some degree of judicial dis-

cretion in deciding between different fines or terms of years,

the degree of arbitrariness allowed a State is not so liberal

where grave and irremedial.punitive exactions are at stake,

see Skinner v. Oklahoma, 316 U. S. 535 (1942), and none is

graver or more irremediable than the sentence of death.

Moreover, the decision to impose the death penalty is

more than a choice among divers instruments of correc-

_ tional policy whose common, if individualized, objective is

to treat the offender in.a fitting fashion with a view to

rehabilitation, incapacitation and deterrence. The decision

to impose the death penalty withdraws a defendant from

this ordinary sentencing regime, and subjects him to an-

. other, cf. Specht v. Patterson, swpra, whose goals (assum-

ing them to be rational at all) eschew rehabilitation, inca-

pacitate beyond. any arguable need for incapacitation, and

focus exclusively on the limited deterrent concern of treat-

ing the defendant as an object, to be killed “pour decour-

ager les autres.” Concededly, the goals of sentencing are

complex and in designing devices for achieving them the

States must. have: some tolerance. But to concede the com-

plexity of sentencing goals is no reason to sustain the Ne-

braska procedure which is not tied by reasonable standards —

to their fulfillment.* Inevitably under such a sentencing ~

8 We ai not take the stand in this case, of ¢ course, that the due’

process clause ery forbids the exercise of discretion i in sentenc-

19 '

regime, capital punishment in the few, arbitrarily selected

cases where it is applied is both unjustifiable and lawless. .

The question of its constitutionality under the due process

use, we submit, is substantial. |

~ TOL.

Imposition of the death winuiiey pursuant to section

28-401 inflicts loss of life without any compelling jus-

tification in violation of the due process clause of the

Fourteenth Amendment.

- Life is a fundamental right. Jefferson considered this

proposition self-evident. “Life” heads his list of “inalien-

able” rights; it also heads the list of enumerated rights

in the Fifth Amendment to the United States Constitution.

Indeed, characterizing the right to life as “fundamental”

verges on grotesque understatement, Existence is a mY '

» requisite to the exercise of any rights.

When the state attempts to extinguish the right to exist

it imposes a burden or a restriction on the exercise of that

right. Again, conventional constitutional expression is woe-

fully inadequate. If the greater ever included the lesser,

exterminating life “restricts” its exercise.

_ ing even in a capital case. Ways: may be found to delimit and

guide discretion and narrow its scope; and these may bring 4 grant

of discretion within constitutionally tolerable limits. Whether the

approach taken by a State such as Nevada, which makes certain

’ reviewable findings of fact the indispensable "condition of im ;

capital punishment,.see Nev. Rev, Stat. 200.360. (1963) ; or that

-of the Model Penal Code, which both: establishes prerequisite’ find-

_ ings and enumerftes aggravating and mitigating circumstances, see

American Law Institute, Model Penal Code, 210.6 (P. O. D..May

4,. ne pp. saaitin. is not the sherman: ened nape. an het

|’

When the state attempts to denioleh a Sindeanentel per-

sonal right it can do so only-on the showing of a “com-

pelling interest”. Sherbert.v. Verner, 374 U. S. 398, 406

(1963); Bates v. Little Rock, 361 U. S. 516, 524 (1950);

U.S. 624, 644 (1943); Griswold v. Connecticut, 381 U. S.

479, 497 (Goldberg, J., concurring) (1965). In order to sat-

isfy the requirement of “compelling interest” the state must

demonstrate each of the following: (1) That the restriction

imposed rationally relates to legitimate governmental objec-

tives sought; (2) that the benefit to the public outweighs

the impairment of the constitutional right and that (3) no

alternative means less subversive of the constitutional] right

are available. See Griswold v. Connecticut, supra, at ‘497:

+ (Goldberg, J., concurring) ; ;N. A. A. C. P. v. Alabama, 377

U.S. 288, 307-08 (1964) ; Sherbert v. Verner, supra at 407;

Shelton v. Tucker, 364 U. S. 479, 488 (1960); Thomas v.

Collins, 323 U. S. 516, 530 (1945) ; Schneider v. State, 308

U. S. 147, 161 (1939). '

The State’s “interest” in the death penalty is the pun-

ishment of criminal offenders, under which four possible

legislative ends are subsumed.’ They are: (1) vengeance;

(2) rehabilitation; (3) incapacitation and (4) deterrence.

Vengeance is not a legitimate legislative purpose. It is by

nature irrational and if it were countenanced as an objec-

tive it would justify all cruel and unusual punishments,

which are unconstitutional under the Eighth and Four-

teenth Amendments. See Point IV, infra. The death penalty

obviously has nothing to do with rehabilitation, ex¢ept to

render it impossible. Capital punishment does serve the

goal of incapacitation, of course—and dtastically. But this

purpose can be served equally effectively by life imprison-

‘

ment, which is obviously less subversive of the constitu-

tional rights of defendants.° . :

This leaves deterrence as the remaining possible legiti-

mating purpose of the extreme penalty. But statistical

studies have established beyond question that capital pun-

ishment is not a more ‘effective deterrent than life im-

prisonment. The most authoritative studies in. the area

have been done by Professor Thorsten Sellin. Sellin, The

Death Penalty (Philadelphia, The American Law Institute,

1959). Comparing socially and economically similar States

having capital punishment and lacking it, he found that

their trends in homicide rates were indistinguishable. He

made similar findings for periods before and after aboli-

tion in States which had abolished the death penalty. A

special study of homicides of municipal policemen found

no significant difference between abolitionist states and

others. Accord: Graves, “The Deterrent Effect of Capital

Punishment in California,” in Bedau, The Death Penalty in

America, 332 (1964). See the recent authoritative inter-

national studies: United Nations, Department of Beonomic

and Social: Affairs, Capital Punishment (ST/SOA/SD/9).

(1962); United Nations, Department of Economic and So-.

cial Affairs, Capital Punishment—Developments 1961-1965

(ST/SOA/SD/10) (1967); President’s Commission on Law

* Life imprisonment is said by some to be less satisfactory than

capital punishment because it is more expensive. This calculus is

unproved and may be doubted in view of the legal expenses which

_ normally accompany the imposition of the death penalty. See

MacNamara, “Statement Against Capital Punishment,” in Bedau,

The Death Penalty in America, 182, 192-93 (1964). But even if

the expense: allegation is true it hardly represents a “compelling”

state interest justifying the taking of human life. See Sherbdert v.

Verner, supra, at 406-07. ;

(

Enforcement and the Administration of Justice, Task Force

Report: The Courts 27 (1967 ”

If the death penalty has not been shown to deter*in

general, the deterrence claim is certainly no stronger in

the State of Nebraska, where a total of four persons have

been executed since 1930 out of the many convicted of.

crimes potentially carrying the death penalty. In Nebraska

_-capital punishment serves no significant purpose at all;

it is not an integral part of the law enforcement process; -

it is simply an irregular, aberrant and draconic hyper-

penalty imposed once in ten years on some haphazardly .

- chosen individual.

a IV. .

‘The sentence of death imposed on defendant pursuant.

to section 28-401 constitutes a cruel and unusual pun-

ishment in violation of the Eighth and Fourteenth

Amendments.

' The phrase “cruel and unusual punishment” has never

been free from ambiguity. It was initially intended to

outlaw the gross tortures sometimes imposed in Stuart

England. Gottlieb, “Testing the Death Penalty,” 34 S. Cal.

~ Law Rev. 268, 281 (1961). But this Court tas made

‘ clear that the phrase is to be viewed in the light of “the

‘ 10 The Sitios Department has. taken the position that the death

. penalty fails to serve social interests better than other punishments.

This, position ‘was stated by then Deputy Attorney General Ramsey

-Clark, in a letter to the Honorable John L. McMillen, Chairman,

District of Columbia Committee, House of Representatives : ;

' : “We favor the abolition of the death penalty. Modern penology

with its correctional and rehabilitation skills affords greater

protection to society than the death penalty which is incon-

sistent 5 its azul The New York Times, July 24, 1965,

at ) co .

evolving standards of decency that mark the progress. of

‘a maturing society.” Trop v. Dulles, 356 U.S. 86, 101

(1958) (plurality opinion of Mr. Chief Justice Warren).

As Mr. Justice McKenna stated for the Court in Weems

v. United States, 217 U. S. 349, 373 (1910):

“Time works changes, brings into existence new con-

ditions and principles. . Therefore, .a prineiple to be

vital, must be capable of wider application than, the

mischief which gave it birth. This is particularly true

of constitutions. They are not ephermeral enactments,

designed to meet passing occasions. They are to use

‘the words of Chief Justice Marshall, ‘Designed to

approach immortality as nearly as human institutions

can approach it.’”

The question of what punishments violate our “evolving

standards of décency” is a difficult one, but some consid-

erations are clearly relevant to the answer. First, cruelty

in the constitutional sense is not limited to the infliction

of physical pain. In Trop v. Dulles, swpra, this Court held

that loss of citizenship was a cruel and unuéual punish-

‘ment because, inter alia, “[i]t subjects the individual to

a fate of ever increasing fear and distress.” 356 U.S. at 102.

Whether or not the execution would be carried out in a

physically painful manner in this case, there is no doubt

that condemned men and women suffer immense mental

torture. See, e.g., Ranson, J Want to Live (1958). The .

average period between sentence and execution was 26.8 .

months in 1964. See Gottlieb, Capital Punishment: The

Legal Challenge, ACLU Open Forum, 4-5 (Feb. 1966).

This period cannot be described as other than one of

“ever increasing fear and distress.” 356 U. S. at 102. Ulti-

. mately, of course, deprivation of life’is a penalty whose

ne eimmeninen ie meena tami, |

cruelty uniquely cannot be measured solely in terms of

the victim’s sensations. Capital. punishment is not only

inherently brutal to-its victims, but brutalizing to its

' . inflictors.

Second, the discussion under Point III, supra, with -re-

_ spect to the ‘need for capital punishment is critically rele-

vant to deciding whether it is cruel and unusual. Lack of

justification or necessity for the infliction of suffering is

an integral part of the definition of cruelty.”

Perhaps. the most important indication of its cruelty is

‘the contemporary disuse of the death penalty in the United

States.”* Over the last four decades capital punishment

has progressively ceased to become a regular part of the

American system of criminal justice. Although a signifi-

cant number of individuals are sentenced to death, the

number of actual executions per year has declined dra-

' matically from over one-hundred-and-fifty. a year in the

thirties to only one in 1966 and two in 1967:" . |

38 “Cruelty : 1. Quality or state of being cruel, disposition to

- inflict or enjoy unnecessary pain or suffering; inhumanity .

Webster, New International Dictionary 636 (unabr. 2d ed., 1954).

2 In Trop v. Dulles, supra, the Court also looked to the practices

of the other nations to help define cruelty. 356 U. S. at 102-03. In

this case we note that the death penalty has been abolished in

almost ‘all of the countries of Western Europe, including Great

Britain, Denmark, Finland, Italy, Monaco, Norway, Netherlands,

Portugal, San Marino, Sweden, Switzerland, ‘and West Germany.

See United Nationg Department of Economics and Social Affairs,

Capital Punishment, Document ST/SDA/9. Monaco was added

to the list in 1964. New York Times, June 20, 1964, at 2, col. 3.

18U. S. Department of Justice, National Prisoner Statistics, No.

39 “Executions 1930-1965” (1966); Time, July 7, 1967, at p. 47

(1966); New York Committee to Abolish Capital Punishment,

Special News Report, Jan., 1964, at p. 2 (1967). Thirteen. states

have entirely or substantially eliminated the death penalty: Michi-

Year | Amount ~

“1930-1934 776

1935-1939 890

1940-1944 = ~ 645 |

1945-1949 - 639 -

1950-1954 413

1955 oe

1956 65

1957 65

1958 49

1959 49

1960 co 56

1961 sig, 42

1962 47

1963 21

1964 15

1965 7

1966 1

1967 2

As noted above, in Nebraska itself, only four persons

have been executed since 1930.

The long-standing disuse of the death penalty in Nebraska

and its increasing disuse in the rest of the country raise

sharply the relationship between the words “cruel” and

“unusual.” The phrase has sometimes been interpreted to

mean either cruel or unusual. See Weems v. United States,

217 U. S. 349, 401 (White, J/., dissenting) (1910). By this

gan, Rhode Island, Wisconsin, Maine, Minnesota, North Dakota,

Alaska, Hawaii, Oregon, Iowa, West Virginia, Vermont, and New

York, American Civil Liberties Union, Memorandum on Capital

Punishment 2 (Feb. 1967). In several other states executions have

been rare over the last thirty years, Bedau, supra, at 31.

26°

_ standard, capital punishment is clearly an “unusual” pun-

ishment today in the United States. But even if the words

are taken together, the unusualness of a punishment is |

surely important evidence of its cruelty, for cruelty in-

heres in a procedure in which a very few, fortuitously

selected individuals are arbitrarily given different treat-

ment than others in a similar position.

This consideration, in turn, suggests the intimate rela-

tion between the constitutional concept of cruel and unusual

punishment and the vagaries inherent in the unsystematic

_ and irregular procedure for choosing men to die, complained

of in Point II, supra. Even assuming arguendo that the

death penalty is not per se a cruel and unusual punishment,

it is one as-it is applied under Nebraska’s procedure. A’

tion by the trial and Supreme Courts is cruel and unusual

because, imposed without standards, it is erratic, lacking a

structured relationship to any alleged social purpose.

Any death inflicted in such an absence of standards is

fundamentally and irremediably whimsical, however con-

* scientious the efforts made to be fair; it is cruel and un-

- usual not only because it is extreme, but also because it is

wanton in its extremity.

CONCLUSION

For the reasons set forth above, certiorari should be

granted.

Respectfully submitted,

Metvin L. Wutr

Joun C. Gray, Jz. -

156 Fifth Avenue |

(we . 7 New York, N. Y.

Ricuarp L. Goos

3601 Calvert Street

Lincoln, Nebraska

ANTHONY G. AmsTeRDAM

' 3400 Chestnut Street

Philadelphia, Pa.

Attorneys for Petitioner

Patrick W. HEaLey

1640 L Street

Lincoln, Nebraska

Of Counsel

April 1968

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