Amicus Curiae Brief — Boykin v. Alabama

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“@tPREME COURT. u. &

In THe, |

Supreme Court nf the Aulted

October Term, 1968

No. 642 a :

> 1 A

Ewan Borkix, In.,

Petitioner,

—v.—

- Srate oH ALAB AMA,

5 , 5 ‘ Respondent.

: - 0 2 3 4 . „

ON WBIT OF CEBTIORARK TO THE SUPREME COURT OF ALABAMA

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— 2 =

BRIEF FOR THE N. A. A. C. P. LEGAL DEFENSE AND

"AMICI CURIAE

—

f. Jack GREENBERG 2

. Jas M. Nasert, III

. MIoRHARL MLrsxRR

Metvyn Zane

0 i a Jack HIMMELSTEIN

J | 0 Columbus Circle

89 | g

ee ) | oa AntHony G. AmsTERDAM

ae 3400 Chestnut Street

, „ Philadelphia, Pa. 19104

Attorneys. for the N. A. A. C. P.

Legal Defense and Educational

Fund, Inc., and- National Office

for the Rights of ay | Indigent

UCATIONAL FUND, INC., AND THE NATIONAL

ae. OFFICE FOR THE,.RIGHTS OF THE INDIGENT, AS.

* New York, New York 10019

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bebt of the Amici Orisa’ — a . e sides Al eet

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8 Questions Presented - us | e — BG xx: 11 5

3 Constitutional ang Staatory Provisions Involved fee gl =

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8 8 L The W Gn of items Priel eo,

‘Affirming Boykin’s Convictions of Five Capi-

tal Offenses ind Five Death Sentences Upon a

. oo "Quilty Plea, Where the Record Does Not Show

I That the Trial Court Made Constitutional.

5 Requisite Inquiry to Assure That the Plea -

Was l and d Understanding DO Pe |

S. ; Na

Hl. Boykin’s Death Sentence Offends the Bighth 1

. Amendment - | a — 24

= Bua The Alabama Procedure: Under Which Boykin ‘spire

Coe Was Sentenced 10 Die in the Unregulated, 5

2 Lawless Disęretion of the Jury Violates the -

; e Due Process -

0

V. Danes Not Presented .

- Comnciusios a 5 3 — ee.

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; 1 B18 18 1 : 25 e

Aaderiz h Tainws MD. Fla, No. 67-298-Civ-J . 9

8 eee wb.

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Brockhart v. Tunis, 84 U. 1 vei 14

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dee een va . 1960) . 18

‘Douglas v, Alabama, 280 U.S. 415 (965) 38

~ Dukes.y. State, 248 S c 297,149 Sn 696 (1966) — 50

Tora, and Funictllo¥. New wee o No. ed

ee ME, e on 1

fe Fresiman Maryland, 80 ba. 51 (3965) + iB

3 0 be., Louidans, 968 U. 157 (06l) - .

on Pennsylvania, 382 U.S. 390 (1966) OIE —6 6

5 4 Glasser v United States, 315 US. 26 — 5

66

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Hague ¥ LO, an v8. 496 (1989) — 2 1

<. Hamilton v. Alabama, 368 U.S. 32 age) - 555

5 é y 63

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Herndon v. Lowry, 201 U. 242 (1987), 5

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Ini ro Kenimier, 136 U. 496 (890). —

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S Spencer-v. Texas, 385 U.S. 584 (97) 96

| Btately. Mathis, 52. NJ. aver ee a

State: Stewart, 255 N.C. nen IY

Stein V. New. York, 8 U.S. 456 (1962) *

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Towa! Code Aun. $711, 3 (1950) .. — en

Kan, Gen. Stat. Amn, 621-597, ta 0 864) 4

Ey. Ber. Stat. 3488 450 (1962) %

Ky. Rev. Stat. Ann. $6433.140, 150 den den 8.8

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I. Ber. Stat. tit 14 $65 (a1): 1

Me. Rev. Stat, Ann; fit-17. 01 (864) Jue voll oy

Md. Ann. Code art. 27 66486, 488 (1587) 58,60

Mass. Gen. Laws Ann. ch, 265 §19°(1959) , 30

| Mich. Comp. Laws Ann, 57506 (1968) 2 69-66

‘Minn. Stat. Ann. 6609.24 (1964) 22 4. wer . 5

Miss. Code Ann. G88, 2967 (1987) 8 n

Mo, Ani. Stat. §§560.120, 185 (1963) ——.—.—85 6

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ae - © Capital: Punishment: er) Ee —— N : 67

n 5 l Testers, New: Bee, ia: » Criminology |

ad ed. 1959) . 4 1 n

= Baer, W. Goan, Tin oe td duns genes

Sook “Bitnishment, 1968°Utah 1. Bev. 50 (19 eso .

Vedau⸗ The Death Penalty de (4864) 8, 28, 7, 46.

1 tee ek ig | M1, $8, $9, 32,51, 58, 59, 60

Bedau, Death See in, New Jersey. ks A940, ae)

‘ 19 Butgers IL. Rev. 1 (860 = 7, 41,82, *

: ; Seid a The eee, Capital eng us Current, ee)

| 8S Histesy: (No- 812) 82 (Aug. 1967) ot *.

35 .

Penalty, 123 Am. J. 2 = sale A 52, 57 ;

Bek, Star Wormwood: (1959) 5 30 ee .

Bye, Capital Punishment’ in the United ob Slaten, (1919), 20 2:

; “Calvert, 0 Capital Punishment the l Com: Roe

en Ged ed. 1928) ————— . N

. Ate teh ae ——

„bene, Reflections on the Guillotine, in Reyistance, . —

', Rebellion ond Death (1961) . 81, 32, 88, 34, 85 Oe

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N Capital Punighminte eee doing u Bie Pen NR

v pose ond Valise: (compiled by Hon. Guy Favreau, 555

Canadian Minister. of See een .

Ottawa, 1965) — — 8

_ Chessman, Trial by Ordeal (1955) ie kati **

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(March 1, 1962) : — : 5 8 os :

Darrow, 5 „ on “Capital Punishment, i in W.

Laurence, History of Gppital a Punishment (60s 5

. Dawtry, The Abolition of the Death Penalty i a.

Britain, 6 Brit. J. Crim. 183 (1966) ne 25

Disalle, Commenio on Capital Punishment and Ce-

mency, 25 Ohio St. I,J. 71, 1964) — py % |

: DiSalle, The Power of Life and Death. (1965) - ob Pak

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Dostoyevsky, The Idiot (Modern. Library, 1985) Se. fy: BE

8 Duffy & Hirshberg, 68 Nes und 2 Women (1962) 2 29, 50,

a : e N 545 57.

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Behe, Death Row Chaplain de . 20 =

Filler, Movements to AbolisK the Death Penalty in

.. the United States, 284 Annals 124 (1952) - rent 32

Homioides, 26 Social Forces: 369 949)

Gerald H. Gottlieb On Capital Punishment Gai

for the-Study of ‘Democratic: Institutions, 1967,

r hg r a ee Wag

ae 19579 eee eee *

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— eat’ We gees ae? 1 TRO:

Selective. pec in a Capital ‘Punishment,

1 86 Social Foress 165 (1957) eee

e Mere nk ie e Amt :

9 12 — ‘ setae 25 a 52 ;

: 3 Problems 5 pee ‘Discretion in ‘Capital :

ce gg OOM 101 U. VL. Rev. 1099 (1988) — 49

‘Koestler, Beflections on Hanging (Amer. od. 1957) 2, 46,57

Koestler & Rolph, Hanged by the Neck (4861) 28, 45, 56, 60 la

Lawes, Life ond Death in Sing Sing (1988) 380

e ene, ‘Thousand Ye ears in “Bing Sing

(1988) 4 . 7,48, 50

l The Sit-In Cases: eal e 1963 i

@ , Supreme Court Review 101 ‘ be

‘Mattick, The Unexamined Death (866) 4,51, 57, 60

: McGehee & Hildebrand, os, The bn Polly

(1964) —— 80

Movement to “Abolish the Death ‘Penalig ir the | .

8 United States, 204 Annals 124 (4962) „

New Jersey Commissi ion to — Capital Punib.

ment, Report (1964) — — 84

ve Zork Law dee ver. 1.

BN:

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oe ‘Sin, ip nee dof Copa Pans a sap

5 Sellin, Capital Punishment (1967) — 4

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Note, 108, ure E Bor bee e 62,

8 <4

Feo he .

5 Par, Makin he Pine PU Cin 5 5

Harv. L. Bev. 1071 (1884) — 5,7

Patrick, The Status of Capital NA 4 World

Perspective, 56 J. Waun L. Wach & Pol. Sci. 307

dach e e eee e

Pennsylvania, Joint eee e on Capi- .

5 tal Punishment, Report, (1961) — 12

Phillipson, Three Criminal Lato Reformers 1923)— 5

President's Commission on ‘Law Enforcement and 3

22 of Justiee, Report (The Challenge

| of Crime in a Free Sogiety) (1967) 4g 43, *

— 4 History of English Criminal Law

and Ite ‘Administration from 1750 (1948) . N

Royal Commission on: Capital Punishment 1949-1953, 8

: Report so. 1988) LOmd. 80321 — 2 56,87, 58

Scott, The History of Capital 8 (1960) a

Selin, Capital Punishment (1967) 725 N

Sollin, The Death Penalty. (1959), published as an

appendix to American Law Institute, Model

Penal Code, Tent. Draft No. 9 (May 8, 1959)

AS 26, 4,7

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pore 1 8 e tt 19 5 5 AU

Song. id 2 Ach de Den Dealt, July 2. yf

190s, Deplirtinant of dene, kee ee er,

Titebe The CrusadhAgainst —— „*

| Great Britain (1961) . — c—— 25, 31

5 United ‘Nations, ‘Department beni and Social

"Affaire, Capital Punishment (ST/SOA/SD/9-10)

(868) , ul, a, 49, 52 5%, 61

5 United states Department of Justice, Bureau of

Prisons, National. Brigoner. Statistics; No. 42, Ea-. .

ecutions 1990-1967 ‘a — 43,44, 51, 52, 54

United States Department of J uation, Federal Bureau

ot Investigation, Uniform Crime Repgrts (Crime

in the United e 1967 n * A,

: 1968) Fe i 40

| United States Senate, e on Criminal

Laws and Procedures of the: Committee on the

Judiciary, ‘Heatitigs on 3. 1760, to Abolish the -

Death Penalty (Unprinted Reng of shine eee ue

3 March 20, 1968) * 30,51

9

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5 Wet Yous J; MD., “A Pei Loa 1 :

Death Penalty,” Paper presented at the 122d

~ Annual’ ‘Meeting of the American Psychiatric As-

sociation, Atlantic ty New J seal May 11, |

1966 . 2, 50

— Wolfgang, Kelly & Nolde, Comparison of ‘thé E-

ecuted and the Commuted AD) Ad missions. 10

Heat) Row, 85 J. Ci. L. Cry Pl Ba 90

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‘ OFFICE: FOR THE RIGHTS OFTHE.

— —

The NAACP, Lern Bales’ l Hiebe Ws

Ino, is a. non-profit. corporation, ‘i under the

laws of the State of New York in 1999, ‘Tt was formed to

assist Negroes'to secure their constitational rights by the

prosecution of lawsuits. Under its charter, one of ifs pur-

" poses is to provide free legal assistance to N. Negro s suffer-

ing injustice by reason of race who dre 1 „ On account

5 of poverty, „eee eme * aeg yor tho

E inde 1 n a

e ees e

B 60 the Fan's te Yepel orutiention tas

dot practices in ‘our Soeiéty that bear With discriminatory

harshness upon Negroes and aon the poor, deprived) and

“who too often ‘are Negros ‘To further mis ä

purpose, the Fund in 1968 established & separate corpora- 5

| tion, ‘the National Office for the Rights of the Indigent “!

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trequeney

‘by’ Rav. Star. §1977 (1875), 42 USC.

N. enth Amendment. See Petition for

| men were, —

— — nes

Sling forth group e oe at Yost (ob

Andinate completed). These

*. fons: Ming

adequat ere

2 ur Siva Am 192

—

—

For Wiese reason, ortet Legal Defense Fund and NORI «”

have undertaken a major campaign of litigation challenging

dhe death penalty as a aruel and uniéual punishment, and

. aseailing on federal constitutional grounds several ef the

mast “vicious common practices if its administration."

J. Came. Lj Canc. & For. Ber 01 (1962).

1¢ National Offiée for the Rights

v. is, O. T. 1967, No. 1015 and

> .

*

—

Fund and NORI attorneys, with the cooperation of other,

_ lawyers, institutéd class actions on behalf of the approxi- —

‘ately 60 condemned men on death row in Florida (Ad-

deri v. Wainwright, M.D. Fla., No. 67-298-Civ-J)' and

the more than 80 condemned ma. on death row in Cali-

~.. fornia (Hill v. Nelson, N.D. Cal., No. 47318; In re Ander-

« son and Saterfield, Cal. S. C., Crim. Nos. 11572, 11573),

which have resulted in initerloettory class stays of execu-

tion for all men under sentences of death in both States.

In addition to the 140 inmates represented in these. class

actions, our attorneys @ major responsibility for han-

dling almost half a hudred pending cases of men sen-

tenced to death in ten other States, d are cooperating —

with, or providing: services to, attorneys handling half a

hundred more across the country. Counsel for amici have

pending on petitions for certiorari in this Court, inter alia,

| tive n

the following death cases: : Maxwell v. Bishop, O. T. 1968, No.

622; Johnson v. Virginia, O. T. 1968, No. 307 Misc.; Mathis

v. Now Jersey, O, T. 1968, No. 683 Misc.; McCants v. Ala-

bama, O. T. 1968, No. 937 Misc.; Forcella and Funicello v.

New Jersey, O. T. 1968, No. 947 Misc. In each of these

cases, at least one issue involved in the present Boykin

case is. presented. 1

The issues raised in Boykin are of Meral vital signif.

_ ieance to the more than 400 men on death row in the

u bn November 18, 1968, the California Se Court delivered

its opinions in the Anderson and _Saterfield cases, rejecting. by 4

4-3 vote all federal constitutional ‘attacks on the death penalty in

California. The court vacated Anderson’s and Saterfield’s death

sentences for constitutional error in the selection of their trial: —

juries } under Wither: v. Illinois, 391 U.S. 510 (1968), however;

and its previously — ed stay of execution for all condemned men

in the State remains in effect at this date. See Appendix B infra.

The numbers of eondemned men in California and Florida are

given as of this time, me oF Sin. Sieh, Serato, MS Peer

5 5

@

—

‘The several opinions of the Justices of the Supreme f

Court of Alabama affirming by a divided court Edward

Boykin’s conviction and sentence of death are reported at

| 5 281 Ala. 659, 207 So.2d 412. They are found in the Appendix

(hereafter cited App. —- at 36-41,

tered on February 8, 1968, App. 42. Rehearing was denied

by order of March 7, 1968, App. 43. Tha petition for certio-

ng

/ at —

four „

a i „ 5 *

ae . Presented” ye

1. Whether the Supreme Coutt of of Alabama chine in ‘af. }

firming Boykin’s capital conviction and sentence of death -

upon a guilty plea, where the record does not reflect that

the trial court made appropriate inquiry to assure that

the plea was voluntary and understanding N by |

| the Fifth and Fourteenth Amendments! ;

: . Whether Boykin’s senténed of death for the crime of

simple robbery, upon this record, violates the prohibition -

against cruel and unusual punishments contained in the

Highth and Fourteenth Amendments? . ‘

8. “Whether Alabama’ 8 practice of hen ES the trial 2

jury absolute discretion, uncontrolled by standards or di-

rections of any kind, to choose between the punishments:

of death or imprisonment for the crime of robbery violates

the rule, of law fundamental to the Due ee Clause of

the Fourteenth Amendment?

| Constitutional and — Nera Involved

The case involves the Fifth, Eighth and ‘Fourteenth

Amendments to the Constitution of the United States.

It also involves Copz or Aus, tit. 14. 9415 re,

a which is as follows:

. “Any person who is convicted of: robbe shall. be

punished; at the ( cretion of the jury, by death, or by

Atop. 69.78 infra; = may ap-

SE ta Neaneen re eee

1 :

~ Edward Boykin, Jr., was charged in five separate indict-

ments, filed in the Cireuit Court of Mobile County, Ala-

bama, with the orime of robbery. App. 1, 36. Under Ala.

Code, tit. 14, §145 (1959); set out at p. 11, supra, simple

robbery is punishable-by death or by imprisonment for not

less than-ten years, in thé discretion of the jury. Section

415 fixes the penalty for the crime of robbery but does not

define it; the elements of simple robbery are defined in

Alabama by the commen law.: Pursuant to the common-

law definition, each indictment eharged Boykin with felo-

niously taking a sum of money from the person of a named

complainant against the complainant’s will, by violence ‘to

the complainant’s person or by putting the complainant in

duch fear as unwillingly to part with the money. App. 1.

July 11, 196 Boykin was interrogated hy the court and

found to unrepresented and indigent. He said he did

not want counsel, but the court deemed counsel necessary

and appointed a lawyer. App. 2-3. July 14, Boykin ap-

_ peared With appointed.counsel for arraignment on the five

robbery charges, pled guilty to each, and was remanded

for sentencing. The minute éntry for this date consists of

eleven lines reciting his appearance, the presence of his

lawyer, and his plea. App. 4. Unlike the minute entry of

July 11, it does not reflect that Boykin ‘was addressed or

questioned by the court, or that he said a word. 5 42

September 30, 1966, Boykin's five robbery charges were

Presented to a jury. for trial and sentencing on his guilty

_ pleas. App. 4-5. The prosecution presented seven witnesses

who testified concerning the events of five robberies com-

Ses Morris. v. Siete, 97 Ala. 82, 12 80. 276 (1893); Higgs v.

- Btate, 113 Alz. 36, 21 So, 353 (1897); Panstil v. State, 33 Ala

App. 460, 84 85.24 857 (1948).

~*~

5 1

mitted in Mobile between April 23 and May 8, 1966. Each

identified Boykin as the robber. In each of the five rob-

~ beries, Boykin was apparently armed with a gun. Three

times he had an accomplice; twice he did not. ban Hee

he did not fire his gun; once he fired a warning sh 7

hit no one; once he fired a shot that ricochetted and hit a

girl in, the leg. The sole witness to this: last episode testi-

fied that she did not think Boykin. intended to shoot the

girl. App. 20, 21. The amounts taken in the robberies

ranged from $140 to 6373.“ a : — —

In general, the re cg out eyewit-

ness e dene o several robberies. Cross examina-

tion was . The defendant did not testify and pre-

sented no witnésses. No evidence was proffered or received

relating to the defendant’s character or background. In

short, the jury knew nothing @pout. Edward Boykin except

his conduct during five robbery episodes, each lasting a few

minutes, occurring within a period of about two weeks. The

court’s entire charge was as follows:

10 The flve robberies were as ‘follows:

On April 23, the Dairy Castle was robbed. ‘Witnesses were “Mr.

Smith (App. 22) and Mr. Hersh (App. 24). About $209 was taken.

The robber was alone. He had a gun, did not fire it.

On May 3, a service station was robbed. Witness was Mr. Pugh

(App. 29). About $158 was taken. The robber had an accomplice.

He had a gun, di not fire it.

complice. He had a gun, did not fire it. 2

On May 6, a drug store was robbed. ‘Witness war Mrs. Faweett

(App. 16). About $363.was taken. The Fo gadis greene

He had a gun, fired a shot which ricochetted from the floor and hit

; not was fired to

4

14

ee Conse: Some of you gentlemen were on the

„ e yesterday, but Pe got to briefly restate the law g

*

robbery, once again gentlemen, is the felonious. taking

af money ‘or goods of value from another against his

will and without his permission by violence) or by put-

3 him in fear. That boils it down in a n t shell just

at your verdict.” (App. 32.)

5 When it arrived at its verdict, the jury used the death

orms. It thereby found Edward Boykin guilty of five

robberies and sentenced him severally to die for each.

App. 32-33. Judgment of fe death sentences was en-

‘tered. App. 45, 3% } Sati

On appeal, the Supreme Court of Alabama affirmed the

: death sentences., An opinion having the concurrence of

15

— iy 4

tour Justices rejected Boykin’s e claim that he had been |

subjected to eruel and unusual punishment forbidden by

1 federal Constitution. App. 36, 37-39. The opinion made

mention of none of the other federal claims urged in

Boykin’s behalf. Three: Justices dissented and voted to

reverse the five judgments of death because the record

did not show that Boykin’s plea, of guilty to five: capital

. charges had been made kn and understandingly.

App. 40-41. A fourth Justice, whoge concurrence was neces-

sary to the affirmance, addressed this issue in a separate

opinion which expressly denied that “when a defendant

ee guilty in a capital case the record must affirmatively

t the trial judge did not accept the guilty plea

— after determining that thé plea was voluntarily and

‘knowingly entered and that the defendant fully realized

and was competent to know the consequences of such 2

plea.” App. 39-40. The plurality opinion for affirmance

did not discuss this e

The: pons Chis . in a 0

Boykin’s ‘Convictions of Five Capital Ofiesises and Five

Death Sentences Upon «Guilty Plea, Where the Record

tionally Requisite Inquiry to Assure That the Plea i

Voluntary and Understanding. 7

The issuer JJ io thle: wae, aad ioe i

which amici are principally interested, are the questions

whether Edward Boykin’s sentenoe of death for simple rob-

bery violates the Eighth and Fourteenth Amendment pro-

hibition against cruel and unusual: punishments (discussed

in Part II, infra, of this brief), and whether its imposition

in the unfettered discretion of a jury, which was empowered

by Alabama law to choose between the penalties of death

and imprisonment arbitrarily, , capriciously, for am reason,

or for no reason, violates the rule of law basic to the Due

Process Clause (discussed in Part III, infra). We must note

ät the outset, however, that in ous.view the judgment of

conviction and sentence below cannot be sustained on this

record consistently with the Constitution, and that reversal

is required for a reason quité independent of the two im-

portant issues presented relating to the validity of the

death penalty. That reason may be briefly. stated: the rec-

ord below does not show compliance with requirements of

e tn the taking ‘of |

Boykin’s guilty ples. | |

P Three days after the first appointment of counsel, this

indigent defendant was arrgiyned on five separate capital

. Ades ciremn-

. ; 17

a a0 ef Wes hed ow in ee (eit: einteaien the. —

death penalty, it is simply inconeeivable that on three

days total time to investigate five distinet robbery charges

- a plea could be entered which exposes the defendant to

electrocntion. One cannot say, and eannot imagine, what

could have been in the mind of Boykin or his appointed law-

yer. The record contains not one word concerning the cir-

_ cumstances of the plea, except that Boykin was in court and

also “Thereupon in open court on this day, Defendant’s

Attorney, Evan Austill, was in court.” App. 4. No inquiry

was put on the record as to whether the plea was entered

sy understandingly or ignorantly, freely or under inducement.

The inference is strong that no such inquiry was made, for

the minute entry reciting Boykin’s plea- no interro-

gation of the defendant by the court, whil similar minute

; entry on the oceasion of Boykin’s earlier appearance for 7

appointment of counsel relates in detail questions put by .

the court and answers by Boykin, App. 2-3, 4. On the date

of his plea, there is no indication that the court addressed

Boykin, or that he himself said anything. For aught that

appears, the judicial confessions by which his life became

forfeit were made on his behalf without his personal. par-.

thin Cont Cr. Brookhart v. Janis, 384 U.S. 1 (1966). As

"Wit hat l Ossis ain bssel i Wook ub

mary procedure for the taki of a guilty plea in a capital ©

case. Boykin’s plea. of eourse, a waiver af his

rights. to. contest guilt and. to insist that the” prosecution:

prove him guilty at a trial. These are: federal rights, ene

by. both -the Fifth Privilegs- agai

crimination * the Fourteenth Amendment

\

.

*

9 101 pasate Lachib Be a 368 U.S. 487

i — apa perp WEDS. 26 (1968)

Mirando 7. Arne, 884 Us 468 (1908), erempdes the

* 2 de wind Chich ‘this Oourt Bas bar:

Founded ‘the Privilege and which govern its waiver: Sig-

| iitfledtitly; “Miréndg holds that & prosscutor ‘cannot intro-

de a b ne station house confentot ntl the me.

cation ‘has affirmatively: prend on the récord all of the

prerequisites’ for a valid waiver of the Privilege. This

holding marked an enlargement of the acctised’s safeguards

in ‘the station house, but it was no donstitutional innovation. |

Well before Miranda, the Cétrt had insisted that the waiver

federal constitutional ie te ain erento bp

. record. Oaratey v. Cochran, 369

pron srg tte Hasen, 576 Uf. 20a (1004)

(mem). That continues to be ‘applied. Bee Swanson v.

Boaler, 886 U.8. 258 (1967) ; Burgett v. Texas, 880 U.. 10,

4115. Q967);.Mempa v. Ra, 389; U.. 1 bun) 5

| 5 ze SH ut Ho 2 5

— A vi Te: awh a

/ ‘

o mM

ids sienna Keaton etait types

dered. by a guilty”piéa: The reasons, in oath tase, for ro-

r that the circtimatances relied upon to constitute a

| waiver-of-wital federal rights appear affirmatively,on the

| record are the same. re either s-waiver of counsel’

* or a guilty plea is received in open court, only the affirma-

3 uption, by the trial judge of responsibility to bring

out the f. indi the waiver or the plea can protect

| the apgnsed’s constitutional interes This is 60 because in 1

both ¢ ase e, very circumstances at would render the

waiver or. 0 plea unconstitutional~-ignorance, incompre-

hension, eoercien, terror, induce! would also operate

2 to cover up any apPearance ot unéonstitntionality, and to

» stifle the ac ensed’s ability to complain of it. 7%

Tt ia no, aecifient Gant thie: ˙ kas atopeatedity trenbed

the affirmative duty of a trial judge to make adequate in- 0

quiry of the aecused before a Waiver of counsel.

“This protecting duty i pmo pasado and weighty re:

upon the trial-judge of determining whether :

, eee by the accused.”

Johnson v. Zerbst, 304 U.S. 458, 465 ( J Von Moltke v.

Gillies, 832, UB, 708, 729,723 (1948) (plurality. opinion);

Carnley v. Cochran, supra, 369 U. g. at 514-515; Westbrook

v. Arizona, $64. U8. 150 (1966). No less stringent d 92

nee . - sutely; devolves upon-the jndge taking a guilty plea. U. Me

‘the trial judge rests the he yo ing nh ps

ducted 1 with. solicitude for, the ts of thesac-

—“.ensed,” any Unies Soe, 1,08, 1.9. 5

_In a guilty-plea case, the plea is the trial, ah soe co.

siderati ions es Il. tor the court's special solicitude, ts Ar

1 dee iret: nun an d enters a p «waite it ms

| 7 8 | a productiot

2 5 deinents or foath) It is hot then In his in-

e ee ye, oe wn den

5 — suspicion, and 1 possibly “queer” the taking of the

plea: Unless the ‘judge makes affirmative i inquiry, no pro:

. zee been aer sconsed by the proceeding: *

,

0 a 7

the plea i is ‘the be-all and the end-all of the ace

. right to defend. Once it is accepted, his guilt is

determined; and the only remaining question concerning

the guilt determination i is whether the plea was valid. On

this dispositive question, the accused has the right to an

adequate record, and to such appellate review as the State

affords. Denial of an adequate record for review would it-

self be a denial of due process. Garner v. Louisiana, 368

U.S. 157, 173 (1961); Specht v. Patterson, 386 U.S. 605, 610

_ (1967). But, as a practical matter, for the reasons we have

stated no such record can be made unless the presiding

judge undertakes to make it.

We do not say. that a. fied of. guilty could not constitu-

tionally be taken in traffic court in the manner in which

Boykin’s plea yas taken. The matter would be more ques-

tionable if the plea were to a minor misdemeanor. eg

a capital case, Surely, fitting federal standérds fo

waiver of the federal. right to contest guilt demand some-

thing more. For, as this Court recognized in United States

NY Jackson, 390 U. S. 570 (1968), the pressures of a capital

exert unique stress on the accused to waive his rights

indnéement, or in the mistaken hope that he will

thereby adwid the death sentence. Also, it can hardly be

denied that what-is at stake for the: facing. death

demands the utmost itude of which courts are capable.

More than ‘ordinary care in e handling of death cases has

long been the ons

ititutional rule. For its Ae . exempli-

fitations, sex; 8g Powell’ v. Alabama, 287 U.S. 45 (1932);

‘ Hamilton. v. Alabama, 368: U8. 52 (1961); Stein v. New

York; 346 U. 8. 156, 196 (1952) „Tha differentiation be-

e e ede the: ae tus, dit.

* —

8 below does not speak to the Point, and

*

ferentiation i in lav i in diverse ways in which the distinction N

becomes relevant.” Williams v. Georgia, 349 U.S. 375, 391

(1955). We submit that it is plainly. relevant where a judge

takes an accused’s guilty plea to five capital charges with

no more concern for his protection tha would attend 4 plea

to a vehicle-code violation.

We might add although we khink the point Bardi i. nec-

essary—that there is demonstrably nothing to be said

against a requirement that a judge who takes a capital plea

in open court must establish on the record the prerequisites

to its validity. Objectors to Miranda have complained, at

least, that legitimate police investigative practices were im-

peded by the rules laid down in that ‘decision. But no one

has ever supposed that it is a legitimate judicial practice,

.or one in the interest of the State, to take ignorant or in-

voluntary pleas of guilty in a death case. There i is, indeed,

hardly even an interest of: convenience in permitting the

judge to take his pleas without inquiry, for inquiry is a

simple enough matter in most cases. Here it might well

have taken little longer than the time consumed by the

court's belated and futile inquiries: “do you have anything

to. say as to why the sentence should not be imposed,” re- re-

peated five times. at the prosecutor’s instance just before

the entry of the five judgments of death that capped Kd-

ward Boykin’s unexamined plea. App. 34-35.

For all-of these reasons, we submit that the three dis

senting Justices below were ‘plainly right, as a matter of

federal constitutional law, in ‘concluding that the “judg-

ments in these five death cases should be reversed and the

causes, remanded to the trial court because: the record does

not disclose that the defendant voluntarily and understand-

ingly entefed his pleas of guilty.” The plarality opinion

* F „

. ¢ « g

0 2 1 n ,

* ;

wd > * 2 22 N

t Tantied Lawson. App. 89-40.* Justice Lawson rejects the

view of the dissenters because they “presume that the-trial

judge failed to do his duty.” App, 40. Unhappily, it is in

ts nature of a silent record that / Me can draw conclusions

trom it only by presuming one thing or another; and the

contrary presumption that the trial judge did do his duty

is firmly foreclosed by Carnley v. Cochran, supra.

AJustioe Lawson takes the position, alternatively, that.

there is no need for the trial judge who accepts a guilty plea

2 to put on record his inquiries into the constitutional requi-

sites of the plea because the defendant who complains of

the plea can later “raise all of [his] ... questions in a peti-

tion for writ of error coram nobis. In such a proceeding, of

“course, the petitioner would be required to produce evidence

in support. of his contentions.” App. 40. We can see no

virtue whatever to u pleajtaking procedure that would cast

the burden of determining the validity of guilty pleas en-

ftirely on the post-conviction courts. Cf. In re. Gault, 387

V. S. 1, 58 (1967). But, however this may be, the principle

proposed by Justice Lawson as a rule to govern waiver of

Fifth and Fourteenth Amendment rights has two over-

whelming vices which require its rejection here. First, even

in a non-capital case it throws an unacceptable burden on

; % There seems to be no question th issue was properly be-

*

es

| “Nor is it an answer to say that he may counter.

such presumptions on collateral attack by showing

Lit he can— that he had not [validly waived his fed-

eral ‘constitutional right]. ... To cast such a burden

on the accused is wholly ne war with the standard of

proof for waiver which we laid down in Johnson v.

Zerbst... (Carnley v. Cochran, supra, 369 U.S., at

514.) é

. Second, it is indefensibly cloak with roar 6 the pecu-

liar plight of the capital accused. bama practice—like 25

that in most States — affords an indigent condemned man

no right to the appointment of counsel beyond the stage

f the direct appeal. There is therefore no assurance that

coram nobis or other post-conviction petition will ever

be filed, or that the accused will survive long enough to

file it. A man in Boykin’s position, whose guilty pleas

have never been examined by any court prior to the ter-

mination of his appeal, is promised an examination if,

unaided, he can get a stay of execution and bring his claims

to court, upon preper allegations, before the State kills

him. We suggest that such 4 N is constitutionally

. — 12 :

* See notes 8, 9 supra,

18 This Court need not now decide whit would be the andi if,

in a post-conviction proceeding, a petitioner demonstrated that his

- plea of guilty to a capital charge was taken without the _constitu- |

~ tionally requisite inquiry. See the decisions holding that, in federal

post-conviction proceedings under 28 U.S.C. § 2255 (1964), a show-

ing of non-compliance Fed. Rule. Crim. Pro. 11 in the taking

of a guilty. plea casts the burden of proof on the Government to

show. retrospectively that the plea was voluntary and understand-

, 292 F.2d 483 (Ist Cir: 1961); Reed v. United

States, 291 Fc 856 (4th Cir. 1961). The present ease is before

this Court not on collateral attack, but on direct review. If there

was érror below, by federal-constitutional stan as we submit .

there obviously: was, the judgment of the Alabama Supreme Court

. affirming Boykin’s conviction and sentence cannot stand, ‘and must

be reversed. 0 5

.

.

does not per se require the vacating of the plea. Domenica © |

* Boykin’s Death Sentence Offends the Kighth Amcad

mca 0 i : rt a 3

*

5 come to the question whether Edward Boykin's

Sanden of death by electrocution for simple robbery vio-

lates the Eighth Amendment e of cruel and un-

usual punishment.” —

Me venture to suggest that the answer to , that .

would appear easy enough to à student of Anglo-American

history and contemporary culture, untrained in the law.

If he were told that the Eighth Amendment contained a

“basic prohibition against inhuman treatment,” that its

underlying concept. was “nothing less than the dignity of

man,” that the Amendment was designed to assure that

. the state’s punishing‘ power “be exercised within the. limits

of civilized standards,“ and that the Amendment must

draw its weaning from the evolving standards of decency |

that mark the progress of a maturing society,“ w we sub-

mit that he ould only conclude the Eighth Amendment

forbade court-ordered killings of human beings, long after.

their apprehension and incarceration, as 4 punishment :

for the crime of robbery in Twentieth Century America.

He would come to the same conclusion if. he were told,

less elegantly, that “the question inherent in the“ eighth

amendment [is]: is what the legislature has done, how-

n . ͤ v5

Process Clause. of the Fourteenth Amendment. : Robinsomh v Vali-

fornia, 370 U.S. 660 (1962).

er The quoted passages are all from Trop v. Dulles, 956 U.S. 86

190.101 (1968) Gee opinion of the Chief Taste) Z

= *

*

*

25

ever rationally supportable it may be, too ‘offensive to

stomach?” ne d

The considerations which would stake it ts thinking of

our hypothetical non-legal scholar are not, of course,

legally dispositive,:but they are also not legally irrelevant.

We enumerate a few of them as a means of framing

be systematically what we see as the legal nub of this case:

(1) Our scholar would look first at history; and, ac-

- Ceustomed to the adage that the lessons of history are

never clear, he would be surprised. For the lesson of

Anglo-American history is clear beyond all mistaking that.

the: advance of civilization has been marked precisely by

the progressive abandonment of the death penalty. Our

scholar would examine thé course of England from the

bloody code“. of the Eighteenth and Nineteenth .Centuries

to nearly total legal abolition in the mid-Twentieth, and

the parallel history of the United States abutting, as we

shall see, in virtually total abolition de facto. Such

an examination could only Landes ‘his intuitive —

a Packer, Making the Punishment Fit the Crime, 7 Harv, i:

Rev. 1071, 1076 (1964).

* Concerning the English experience, see , 1 PHILLIFSON, Times

CeminaL Law — (1923); Rapzinowicz, A History or

Eneuisa CIMAL Law AN Its Apministaetion From 1750

(1948); Scorr, Tae History. or Capra. PUR ur (1950);

TUTTLE, Tun CrusaDe Adamer CAPrraL PUNISHMENT IN? GREAT

Brrrain {igen}. Final abolition (except for a few obscure =

for which the death penalty is not in fact used) came on

1965. Dawtry, The Abolition of the Death Penalty in Brin,

6 Barr. J} Crm. 183 (1966).

_Soncerning the American experience, see Brx, Carrral Pmmn-

(MENT IN THE-UnrTEep States (1919) ; BD, Toe DATA Penauty

. Aalen (1964) [hereafter eited as Bunav], chapa” 1-2; Filler,

‘| Movements to Abolish the Death Penalty in the United 8 lates, 284

pe 124 9 The most recent developnients—legal -

tion in e Vermont, Iowa, West Virginia, and (with

servations) New Tork —are reported in Bedau, The Issue ¢ opi-

tal Punishment, 53 Cn HRronr (No. oe 82 (Aug. 1967).

**

*

; — to. uso death’as ® ponishrien for

erime is—in Albert Camus’. phrase—“a great civilizing

step.” Is this intuition not frankly obvioust Can any-

one who thinks about it as a human being—(we: postpone _

for a moment the more subtle task of legal judgment)— 5

doubt the rightnęgs of the same insight recently voiced

by the Attorney General of the United States: “Surely

the abolition of the death penalty is a major milestone in :

the Jong road up from barbarism”? *

(2) Our ‘scholar would notice the history of thought as

4 well as the history of events, and would be struck by the

conceptions and ideals with which opposition to, and sup-

port for, the death penalty have e been long

associated : 2 °

ä . the struggle shock, Chis: e :

one ee ancient and deeply rooted beliefs if retri-

bution, atonement or vengeance on the one hand, and,

on the other, beliefs in the personal value and dignity

7 of the common man that were born of the democratic

f a movement.of the eighteenth century, as well as beliefs

in the scientific approach to an understanding of the

motive forces of human conduct, which are the result

of the growth of the sciences of behavior et the

nineteenth and twentieth centuries.” **

* derte Reflections dn the’ Guillotine, 1

LION AND Dark (1961) 173 Thereafter eff cited as x. at ‘a

„ Statement by Attorney General Ramsey’ Clark, Before the Süb-

. Committee on Criminal Laws and Procedures of the Senate Judi-

8. 1760, 7 Abolish the Death P 7

1968, Department of J 0 me 9 uly 2,

zun Seu, Tae DET Pasar (1959) as an a

dix to Aud Law n Tent.

Fo. ler 8, 1969) 18. — —

D

85). 8

4 - =

- : 27 4 =

aie to say, of course, that no one does or can

‘support the death penalty for other reasons than belief

in retribution, atonement or vengeance; but it is signifi-

cant that these beliefs have been historically the main-

stays of support for the institution of capital puiiishment,

while the movement for abolition has been spearheaded

by concerns derived from conceptions of “the dignity of

man,” Trop v. Dulles, 356 U.S. 86, 101 (1958). (plurality

opinion. of the Chief Justice). )

(3) A related perception focuses upon ‘he Meteo

identification of thodé*who have traditionally opposed, or.

‘supported, gapital punishment: 3

| “In the first place, it will be noticed tet, among

the leading authorities in penal science, the supporters

of abolition appreciably outnumber those who favour

the retention of capital punishment. The specialists

of the social sciences, criminologists, sociologists,

penologists, psychologists, doctors and writers. on

social science and criminology are, in their great

majority, abolitionists. The supporters of capital pun-

” ishment, apart from a number of political figures and

persons holding high public office, are generally jurists

with a traditional training and jndges. ( Unrrin Na-

TIONS, DaraRTMENT or Economic AD ‘Socran Arrams,

Carrral, Powwument (ST/SOA/SD/9-10) mg?

[hereafter cited as Unsrrep Nations} :

(Again, we postpone for later discussion the e

question why judges, particularly, as distinguished from

students al the human sciences and of - ‘Penology, should

: 7. Accord: id., at 124; Brpaw 122.1283 Louis J. West, M, “A

Paychiatriat Looks at the Death Penalty,” aper Presented af the

Annual Meeting of the*American Psychiatrie Associa

tion,

Atlantic City, New Jersey, May 11, 1966 [hereafter cited as West],

p. 2. And REFLECTIONS ON Hanamna. (Amer. ed. 1957)

- [hereafter cited as Koestler] 21-40.

*

ae

20

| . among the hsv ppt of

|: the death penalty.)

(4) Our suppositious scholar, of course, would also giv

attention to what is really involved in the tion of

a human being. He would have in mind Koestler’s

admonition that the question of the cruelty of killing men

is not one that gains clarity from 2 * wrapped in

ns.

„ Sow. could hardly ao a nobler example of the

true function: of words, namely the partial conceal-

ment of fundamentals. The phrase ‘capital punish-

_ ment? itself is a less obvious instance—less obvious

because we have got so used to it. It means (in Eng-

land). disclocating a,man’sneck by tying a six-foot

> rope around it and suddenly dropping him ‘through —

a trap door with his arms and legs tied. If his neck

. happen tot to break—it is certain at least to dislo-

cate— then he would strangle, which takes longer. and

turns his face dark blue. In either case he often defe-

catos, since people usually want to do this when they

are frightened, and the huge shock to his nervous

system when the rope tightens removes the last ves-

tige of eg eee e with the social need for

it.

A l 551 ‘a ‘ikon ‘plotuiné und tow t's’ care ts

be reminded of it. Many of us can think calmly

‘enough, of capital punishment, because the phrase

embodies what The Times would gall ‘a decent reti-

_peence.’ The reticence has been growing decently for-

about a century, beginning in 1868 with the decision

enn people in private instead of making it & pubs.

„ ene ee sx sus Mace

(1961) 11-12,

|

Camus makes the point vividly: “The man who enjoys his

xe while reading that justice has been done would spit

_, Comaesston]

it out at the least detail.” Camus 187. 5

In candor, we must say that this question of presenfing

the reality of capital punishment to the Court\has given

us deep concern in the writing of this brief. We would

consider it both logically and legally absurd for the Court

to deliberate the question whether Edward Boykin’s death

was~averuel and unusual punishment in terms of such

decorous abstractions’ as “capital punishment” and the

death penalty.” For a while we were inclined to append

to the brief at the least a few descriptions of the methods

of American executions by electrocution and by gas. (Lest

the description just given by Koestler be thought wide of

the mark, it should be recalled that the Royal Commission

in 1953 recommended that England\ retain hanging 8 A

means of legal execution, because it was more humane and

certain than the American methods.“) But, as we prepared

the materials for the appendix, we ed that their

inclusion here would certainly cause us to b charged with |

sensationalism and an appeal to passion and repulxion.

Such is the character of this institution of killing men

that it forces one who attacks it legally either to describe

with particularity what he is attacking, and bs bitterly

resented, or to kéep silent about it, and risk being mis-

understood. Finally, we have decided to join in the general

“decent reticence,” and to do no more than provide the

Court with citations to descriptions of the methods of

- a

a *

7 Roral, Och on Garrral, Powmenceny 1949-1958, Re-

PORT 1 [Cmd. 8932] [hereafter cited as Roya.

281, particularly at 256. . 66, 5

‘

*

“4 e e e e .

_ grading experience, ‘If only those who have partici-

pated in an execution could vote on the death penalty,

it would be ‘abolished tomorrow.” (West, 3 2.)

(5) Wnts shat eatin lode antaaslic to a cesnasnsd

one, the ‘significance of our modern practice of secret

executions, and to Justice Bok’s trenchant question: “Why

is the State so ashamed of its process that it must kill at

dead of night, in an isolated place, and on an unnamed

‘day?’ Box, Stan Wormwoop (1959) 197. Notwithstand-

ing that virtually the only argument made in support of

the death penalty in the Twentieth Century is its efficacy

as a general deterrent (an argument which we shit] later

note: is 2 wnfounded),’* the] men killed for deter-

rence’s sake r out of publie

Mew Au 2 Wottzn. (1962) : 68-70,

100-106; Lawna, ap Darn m Bunte Amte (1928) 162-190:

Tue Daarn Penaury (1964) 81-85;

Dr Salza, Toe Power or Lare anp Deira (1965). 84-85; E

man, Darn Row ᷣC Ham (1962) * 159.164; my:

, Trial BY OnpegL (1955) 195-202; Te of Clinton

|

I

view.” Camus forthright analysis of all that this implies

“Ag an example an or the sake of security, it would -

de wiser, instead of hiditg the “execution, to hold ap

the severed head in front of aif who are shaving in

the morning. ie >

“Nothing of the sort happens. The State disguises

executions and ner ent about these statements and

eyewitness accounts:-“[describing the death scene].

Henee it doesn’t y believe in the exemplary value

of the penalty, except by tradition and because it has:

never bothered to think about the matter... . A. law

is being applied, without being’ thought out and the

condemned die in the name of a theory in which the

_ executioners do not believe, If they beligved in it, a

this would be obvious to all. But the publicity not

only arouses ‘sadistic inatincts with incalculable re-

percussions eventually leading to another murder; it

also runs the risk of provoking revolt and disgust

in the public opinion.*It would become harder to exe-

cute men one after another, as is done in our country

today, if the executions were translated into vivid

Fy

8

.

c

Ivania, ih 1894, eco Filler, Movements — —

alty in the United States, 284 Annais 124, 127 (1952), the year

which also Great Britain abolished gibbeting by 445 Will IV,

images in the popular imagination. This is why

Penn-

111

28

:

125

ri

|

i

:

i

f

|

ij

3

:

E

|

i

— approve of the — ot 8 who, 0

nas an adversary of the death penalty, voted against

35 bill involving suppression of publicity, for executions,

. declaring: 41 you suppress the hotror of the spet-

se dacle, if you “execute inside prisoris, you will smother

dhe public outburst.of revolt that has taken place of

late and you will strengthen the death penalty.

eb “Indeed, one must kill publicly dr confess that one

does: not, feel authorized to kill. If society justifies j

the death penalty by the necessity. of the example, it

must justify itself by making che publicity nepessary. ö

It must show the executioher’s hands each time and

foroe everyoné to look at them—the ever-delicate cith

. * zeng and all those who, had any responsibility in

| bringing the, executioner into. being. Otherwise, society

admits that it Kills without Kiowing what it is saying a

or doing, Or else it admit ‘that such revolting cere-

monies. can only excite crime ® or nen upeet

opinion. 2 (Canes: 196-188) 1

: 14

The relation between this practice ot 06. executions

and the “evolving standards of deceney that mark the

progress of a maturing society,” Trop v. Dulles, au gupra,

356 U.S. at 101, should be obvious. We hide our execu-

tions because we are ashamed to show them, because they

make men sick. Wa jump 6 ahead for a moment to consid-

* oration of the matter in constitutional terms, one wonders _ -

whether this Court would. sustain toflay a public execution

Aa consistent: with the Eighth Amendment? - We suggest

that it:would not; that constitutional law as well as.public |

entiment would condemn, such barbarous shows. Does

hiding the mattor of execution make it any the more con-

-distent with dur bonstitutzonal und public standards of

dedeney? Our legally untrained scholar would, we a,

kes, with. Gottlieb: thet it docs not? mae |

0

8

*

* „ 5 2 .

ccc

2 ere „

8

*

executions are carried out away from the public eye

=)

* 155

e himself in che position of the condemned man for an

34

hour prior to his execntion,.in order to appreciate the

cruelty, the intolerable inhumanity, of the event that is

Hecurring. Dostoyevski, who was Alpena in that n 5

ts deere it: 4 }

ut the chief’ and ‘ta 3 Joint pain may not be in

the bodily suffering but in one’s knowing for certain

that in an hour, and then in ten minutes, and then in

half a minute, and then how, at the very moment, the |

Soul will leave the body and that one will- cease to

de a man and that that’s bound to happen; the worst

part of it is that : it's certain. When you lay your

head down under the knife and hear the knife slide

over your head; that quarter of à second is the most

terrible of all.“ Dosroyzvexy, TAN Ipror (Modern Li-

brary,- 1935) 20 (original emphasis).

Again: Camus has put the matter i in characteristically clear

perspective: Sa

In considering the argunjent from lex talionis]

let us leave aside the fact that the law of retaliation _

is inapplicable and that it would seem just as exces-

sive to punish the incindiary by setting fire to his

house as it would be insufficient to punish the thief

by deducting from his bank account a sum equal to

his theft. Let as admit that it is just and ‘necessary —

to compensate for the murder of the victim by the

death of the murderer. But beheading is not simply

„death. It ia just as different, in, essence, from the ö

privation of life, as a concentration p is from

prison. It is a murder, to be sure, and ghe that arith-

mustically pays for the murder committed. But it adds ~

05 tor death a rule, 3 publio ‘premeditation known. to the

A Le

. —

9

35

2 source of nial sufferings more » terzible than death

Hence there is no ‘equivalence. Many laws consider

a premeditated crime more serious than a crime: of

Pure violence. But what therf is capital punishment

but the most premeditated of murders, to which no

criminal’s deed, however ‘calculated it may be, can be

compared? For there to be an equivalence, the death

penalty would have to punish a criminal who had

warned his victim of the date at which he would inflict

a horrible death on him and who, from that moment

onward, had confined him at his mercy for months.

Such a monster is not encountered in Private life.“

(Camus 199.) N

(7) Finally, our scholar would consider thecasivaniente |

which are put forward today in support of the death

penalty. These rest for the most part upon the proposition

that death is the most efficacious: deterrent which—if used

suffieiently infrequéntly and within the hiding of prison

walls—a non-totalitarian society can stomach. % Reading

between the lines, he would come to the obvious conelu-

sion of Clarence Darrow: That capital punishment is

horrible and cruel is the reason for its existence.” Darrow,

4 Comment on Capital Punishment, in Lavrence, A H-

tory or Carrran PounisHMEnT (1960), xv, xvii. And coming

to his own conclusion, on the basis of all that we have

said above, our scholar wonld most firmly disagree that

death is a punishment which a non-totalitarian society can

stomach: at all.

Aye, but there's of course the rub. ‘Our hypothetical

student of culture i is free to reach his own independent con-

— — eited as — —

FP ‘Mite a

oH 2 To 1s Purpose anp. Vat H

_ Favreau; Canadian Minister e Justice) (Oed, Printer —

*

clusions about the death penalty in a manner that would

de altogether inappropriate as a principle for decision by

an

‘Punishment or Due Process, much deference must be given

by the Court to. eee judgment. See Spencer v. Texas, .

this Court construing the Eighth Amendment. For. this

Court does not sit to make the personal views of its Jus-

. tices the rule of the Eighth Amendment or the Fourteenth;

and, as it has often said, in matters of constitutional adjudi-

cation under such broad clauses as Cruel and Unusual

385 8. 554 (1967).

We come, therefore, to ‘what we think lies at the heart

of the question whether Edward Boykin’s sentence of death

is a constitutionally forbidden cruel and unusual punish-

. mént. That is a dilemma which is inherent in the Eighth

Amendment. It derives from the circumstance that the

. Amendment plainly is a restriction upon the legislative

enactment of cruel penalties, as well as upon the judicial

imposition of them’ This Court has so held by voiding

‘statutes under thé Cruel and Unusual Punishment Clause.

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

Dulles, 356 U.S. 86 (1958) « (by a plurality); Robinson v.

California, 370 U.S. 660 (1062). And the force of the

Clause is not limited to prohibition of punishments that

would have turned the stomachs of the Framers in tie

Eighteenth Century.9 The clause of the Constitution.

may therefore be progressive, and is not fastened to the

obsolete, but may acquire meaning as public opinion be-

comes enlightened by a humane justice.” Weems v. United

States, supra, 217 U.S. at 378; see generally id., 369-373.

We repeat the important observation with which Trop v. ,

Dulles outlawed the hoary penalty of banishment: “The -

Amendment must dra its meaning from the evolving -

age e ee lee eee e

1 ee ee e ee

.

” —

- „ 7 . meee G4

a % es 4 2 rr „

But * * there lies the most e diffonlty 4 in

a process of constitutional adjudication by which this Court

must subject ‘legislation to the test of enlightened public —

opinion, and must judge the validity of a legislature’s _

product according to society’s standards of decency. For,

after all, both in constitutional contemplation and in fact,

it is the legislature, not the Court, which responds to public .

opinion and immediately reflects the society’s standards of

decency. If the question asked by the Eighth Amendment

really be whether our democratic society, can tolerate the

existence of any particular penal law that is on the books,

the Eighth Amendment’s answer will always be that it can

Land for the simple reason that the law is on the books of

a democratic Bociety. So éither the Eighth Amendment i is

not a judicially enforceable restriction upon legislation; or

the Weems-Trop test referring to contemporary public

standards of decenc is not a usable measure of the Amend-

ment; or else the question which we have just posed is not

the proper question to which the Amendment and the

Weems-Trop test respond.

ö As this way of putting the matter 3 we think

that the question which at first blush may appear to be the

question presented by Boykin’s attack on Ala. Code, tit. 14,

6415 (1959)—is the wrong question.. We suggest What we

think is the right one below. For we cannot believe that

the Eighth Amendment is not a restriction upon inhuman

penal legislation rightfully enforceable by this Court. Nor

do we believe that the Amendment’s prohibition is re-

stricted. to drawing and quartering, and similar antiquated 8

butchéries—nor, on the other hand, that it invokes the un-

assisted penological impressions of particular Justices.

The Weems-Trop test is, we submit, the proper one. Com-

mon standards of decency in our contemporary. society: do

set the limits of punishment allowable. under the Fichth

* The problem i is how those: standards are to

~

38 :

ae b t ‘int — what specific question.

; 1 ein Wien ‘the ‘specific question. When a man such

Ww rd Boykin coffies before the Court ‘claiming that

{ ander which he was sentenced provides for an

tincons tional cruel and unusual punishment, the ques-

tion is not: will contemporary standards of decency allow

the existence of such a law on the books? The question is,

rather: will eontemporary standards of decency allow the

execution of the law’s penalty in fact? By this we do not

mean that the Court is to review the penalty decision & the

sentencing judge or jury in particular cases. Our concen-

tration upon the question whether public conscience will

support the law’s application in fact does not mean to draw

the distinction between general and specific applications of

2 penalty. It means to draw the distinction between what

public conscience will allow the law to say and what it will

allow the law to what public decency will per-

mit a penal statute to threaten and what it will allow the

law to carry oüt-— between what common. revulsion will

forbid a government to put on its statute books as ‘the ex:

treme, dire terror of the State (not to be-erdinarily, regu

in er than a few fredkecases enforced), and what

: revulsion would forbid a government to do to its

citizens if the penalty of the law were generally, even

’ handedly, ee, s in all of the cases 1

which it applied. .

This last Point regarding general, ori ands, non- .

arbitrary application—is critical. For in it lies, we think,

a large part of the need to have a Cruel and Unusual Pun-

ishment Clause in the Constitution, and of the need to have

courts enforce it. The government envisaged for this

cotmtry by the Constitution is a democratic one, and in a

democracy there is little reason to fear that penal laws\will

be ‘placed upon ‘the books which, 8 applica-

1

concerning cruel and-inhuman laws is that they will be en-

tion, would affront the public conscience. The real danger

acted in a form such that they can be applied sparsely and

' spottily to unhappy minorities, whog@ numbers are so few,

. whose plight so invisible, and whose persons so unpopular,

that society can readily bear to see them suffer torments

which would not for a moment be accepted as penalties of

general application to the populace.

Herein is found’ the difference between the judgment

which. the legislator makes, responding politically to public

conscience, and the judgment which a court must make

under the obligation which the Eighth Amendment imposes:

upon it to respond rationally public conscience. A leg-

islator may not scruple to put a law on the books whose

general, even-handed, non - arbitrary application the public

would abhor— precisely because both he and the publie

know that it will not be enforced generally, even-handedly,

non: arbitrarily. But a court cannot sustain such. a law

under the Eighth Amendment. It cannot do so because

both the Ann

endment itself and our most fundamental prin-

ciples of due-process and equal protection forbid American :

governments the devices of arbitrariness and irregularity

—even as a sop to public conscience. |

To put the matter another way, there i is nothing in the

7 political process by which public opinion manifests, itself

in legislated laws that protects the isolated individual from

being eruelly treated by the state; and public conscience

often will support laws enabling him to be so mistreated,

provided that arbitrary selection can be made i in such a

fashion as to keep his numbers small and the-horror of his

condition mute. Legislators neither must nor do take ac-

count of such individuals. But it is the precise business

of courts to take account of them, and to disallow under

the Eighth Amendment the application to them of penalties

80 harah that public conscience would be e. thal :

less arbitrary application.

7

tellow, with to the death ee, But we have said

enough, at @ point, to enable us to state our major sub-

mission on of Edward Boykin. His sentenes of death

for simple robbery is, we think, a eruel and unusual punish- Bee

ment because it affronts contemporary standards of de-

cency, universally felt, that would condemn the use of death

as a penalty for the crime of robbery if such a penalty were

7 unifermly, regularly, and- even-handedly applied either to

all robbers or to any non-arbitrarily selected sub-class of.

robbers. .

One may take any rational | standard one wishes for selec-

tion among the perpetrators of the crime of simple robbery,

apply it fairly, and imagine the execution of all the robbers

Who fall within the class. Since there were 202,053 eae

known to the police in the United States last year,“

assume that our rational selection. standard would née us

at least a hundred robbers for the year—say, exactly one

hundred. Imagine, now, their electrocutions and gassings

in a single year. The number.we have hit upon proves to

be, as we shall see, four times the number of robbers actu- 5

ally executed in the United States during the thirty-eight

years between 1930 and 1967. It! is twelve and a half times

the number of robbers, actually executéd in the eighteen

years between 1950 ahd 1967. If these one hundred robbers

were actually executed in the year 1968, we submit. it is

palpable that the public conscience of this Nation would be

profoundly and fundamentally revolted, and ‘that the death

penalty for robbery would be abolished overnight for the

a tavistie horror that it is. Our reasons for this submission

follow. First we pause for one additional n to

make our legal point clear.

Ure !! 98 2 a5 N

1 Unrrorm Cn Reports at gc

ere nia price neta D 60.

We disagres-not, pith the reasoning ‘process; but ether

| _ with the factual premise, of a statement made by this Court

ten years ago in Trop v. Dulles, supra, 356 U.S., at 99: . -

“Whatever the arguments may be against capital

punishment—and they are forcef e death penalty

has been erfiployed throughout our history, and, in a

da when it is still widely accepted, it cannot be said

to violate the constitutional concept of cruelty. 9 (Em, .

phasis added.) g 375

We think that today it is simply not correct that the death

„penalty is “still widely accepted.” We speak, for the

‘reasons which we have just stated in detail not of its ac-

ceptance on the pages of the statute books, but of its ac-

ceptance in actual usage and of such acceptance as it does

not illegitimately obtain by being irregularly and arbitrarily ‘

applied. Far from being “widely accepted,“ the death pen-

alty today is with rare public unanimity, rejected and re-

pudiated—particularly for such crimes as robbery. We

proceed next to demonstrate this point and to develop its

constitutional implications. 5 .

(1) All informed observers of the ‘death penalty agree - .

in describing a world-wide trend toward its disuse that i is

nothing short of drastic. See Ustrzp Natiows 81-82, 96-97;

; Sni (1959) 414; Marripx, Tun ULI ID Duizn

i (1966) [hereafter cited as Marriox] 5-6; Hartung, Trends

in the Use of Capital Punishment, 284 Awwats 8 (1952) ;

Sellin, The Inevitable End of Capital Punishment, in Smax,

~ Caprran PUNISHMENT (1967) 239.240; Bedau, Death Sen-

tences · in New Jersey 1907-1960, 19 Rur hs I. Rev. 1, 9-11

(1964). ‘There are probably fewer legal @escutions per year

| . 9

cꝗ:;tands in the way way of holding Boykin’s death sentenos invalid under

tho Kighth Amendment. Wilkerson v. 1 99 0.8. 130 (1878),

oe

„

8 42

u the entire world today than the number estimated

„eee of Copital Punishment: A World Perspective, 56

J. Cams.;L., Cum. & Por. Sct. 307, 408 (1965) [hereafter

eited as Patrick]. Although Patrick reports more than one

hundred vapital crimés on the statute books of 107 different

nations, id., at 406-407, nearly all of the crimes which result

in actual execution are murder in some form, whether as-

sassination, premeditated murder or felony murder. In

act, of the pat eee executions {for the period 1961- ‘

1965], some 929 ap

Nations 97. 1170 E E. etoayt +

In the United States, the decreasing eral i deset |

has been especially dramatic. The National Ctime Commis-

sion recently noted that: 1

17272 most saltant characteristic of capital punishment

is that it is infrequently applied. . [AJll available

data indicaté that judges, juries and governors are

becoming increasingly reluctant to impose or authorize

ar to have beeh for murder.” Unrrep

es c# 5

the out. of a death sentence.” nern

Co Aon Law Exroncr mn A Apurmisraation

or Jvsrice, Rerort (TRA r or On 3

Fare Soorerr) (1967) 148.)

: JJ ·˙— eanincacala a .

the highly reliable figures on executions. maintained by the

Federal Bureau of Prisons since 1930. Ttiplatest cumulative

report shows that 8,859 persons were under civil: *

authority in the United States between 19 ‘and 1967.

Unsrizp Stires Derazrment or J ustics, Burezav ¢ NB, . 7

Nariawal. Paso Statistics, No. 42, Executions 1 ree.

(June 1968) [hereafter cited as NPS (1968) ], p. these

3,859, only 191 were executed between 1960 and 1067; only

25 during the years 1964-1967. Tbid, The tren shown

- - quite adequately by setting out the figures for the number

of executions during each of the following eee 9

years: 8 5 1

5 os —

BEEEgE EE

}

8

spore and paar atest

i aie nota i

(We shall e later to the racial Hgures.). “ft,

Hane ests ere eee 3

executions are 28 follows: e e eee States

i sli; north - oentral States—21; western States—48; out.

8 ern States and D. C. 104. NPS (1968), pp. 8.9. As k ».

Decade: Bl, WMG, se orien e dow 8

throughout the entire country. Two of these were federal

‘prisoners; 62 were in the northeastern States; 55 werd in

the north-central States; 91 were in the 3 States; and.

225 were in the southern States and D.C. Id., pp. 22-28.

Ot the 3,959. persons ‘dxeouted between 1930 and 1967,

3,334 died for the ‘crime of murder, 455 for the crime of

rape, and only 70 for other crimes. Id., p. 7. Twenty-five

of these seventy died for robbery-like crimes, usually ag-

gravated forms of robbery. Id., pp. 10-11 *. Two of the 25

Vero executed by the federal government; the remaining

1 23, by six southern S bid. Alabama has executed a

me men for ta! Aico eld, | — ae ae Tes

There have been only: Bi 7 * bery-like

crimes oy United. Btatea:s since: 4960 one ie . 1

f r

aye tants C

: Hand one in 1962 e deen dabese d ei Gerti bye

only one received that, sentence for a robbery-like crime.

NPS (1968), p. 13. Of the 435 men on death row as of .

December 31, 1967, only four were there for tubbery-like e

crimes. Mid. These four ‘came from two southern 0

| Alabama and Texas. Id, pp. 22:23.

2) We summarize our a From the amie | 8

data as follows: Actual use of the death penalty throughout

the ‘world is on the decline; and, in the United States,

precipitously on the decline. ‘te this country, sentences of 8

death and executions are predominately. a southern phenom-

. enon. Sentences of death and executions for other crimes ~

dan murder are virtually exclusively a southern phenome- |

non.“ Since 1960, at the least, executions in the United —

States for any crime have been rare, During the last few. °

years they have been ‘freakishly rare. Executions for

robbery. like crimes in the United States have been freak

. ishly rare since 1930. In the nine years from and including

1960 until today, there were two of them. At the last re-

: ported count, four men in the Nation were on death row

Se: for erimes in the nature vf robbery : Edward Boykin and

three others. Boykin alone was on the row for simple fob-

a Bie Pit 3 a

re These tivo executions | are reflected in Bevav 96, 108. Wat

there have been no others since 1960 is established by examination

ie of the yearly National. Prisoner Statistics Bulletins on Neu

ines that 1 ij

1 Of 525 persons e Gioia 1930 om 1967. erime

other than murder, 482 were executed in sixteen gotithern States

and the District of Columbia. NPS (1968), pp 11. Of 78 per-

sons on death row as of December 31, 1967 mes other than

murder, r were in the same sixteen

8 0 of Trop ps Dalles, —

? e derne Ni, de Corot look This is 80 be.

cause opinions tapped in this fashion are notoriously x

fickle ;# and also because the citizen who deals with a poll-

- taker—like the legislator who puts or maintains a capital |

- statute on the books“ can have his cake and eat it too. He

can afford to approve the principle of killing because in

practice the persons selected to die will be so few as to go

unnoticed. The real measure of. American moral attitudes

about the death penalty is reflected in what this Nation of

200 million people. does. What it has done, in the years

1966-1968 is to execute three people—none for robbery.

at course, stays of execution. and state and federal post-

‘conviction proeedings dn behalf of condemned men affect

these figures, but not very much. At tlie end of 1967, there

were only 435 men on death row, ; notwithstanding the near’ ae

geasation of executions.since 1964. At the same date, there Bets

were only four men on death row for robbery-like crimes,

wi j America, has executed no one for such a

>

e Amerie. bee an Cour ted pao opinion

i than half of the American people ‘coe

nity. bined uaa Thmois,'391 °

Th f e —

a

7 Artis Use 1088: tay, us ess d, mei

through which the consciene

nh are sending very, very few men onto death row, « 0

most of them off again before execution day. What Ameri- -

dan acceptancs of the death penalty now boils down 15

_ that Amerios ann stomach u fer legal killings u ver- i

most horrible 3

* * re: 5 eo

bead * . N $k). . —

* * a - 6 8 0 6 are 5

2 . ‘ 2 f 4 * 7

> — es 7 ; : . 5 e ae -

~ .

; owt

N 40 One may look ‘at these figures from another direction |

as well. No one knows or can estimate accurately how matty 4

convictions of capital erimes are returned in the United

States yearly. But we do know that thirty-nine States, the

District of Columbia, and the federal jurisdiction all retain |

on their books statutes of. general apy

one or more offenses with death. In

tal armament in arsenal of a Nation of enormous and

burgeoning population, with a growing crime rats and a

going crime scare, only a few, rare men are‘sentenced to

death and fewer" executed. This phenomenon reflects, we

"suggest, an overwhelming national repulsion against the

2 3 Such a repulsion is all the more striking

en one takes into account: (a) that for the past several

‘ years the country, has undergone one of the most intense.

, of its recurring rern of public e about and on

| of crime; (b) that for a number of ye

few executions as to provide almost no grb tor the mobili- a ee

zation of. public sentiments against the death penalty; zu (o)

that during these years, and many more before them,

American executions have been conducted in secret, their

Linie 55

rig creer pera cdi ain

a yon mayb pe

n States, half a

dozen or more crimes may be 80 punishable. (Appendix A

to this brief sets: out the penal provisions of the several

States carrying th death penalty.) Let, with all this capi-

sane carefully concealed from public vier;

: N , ö

18

„ . 7 ‘

. se F K

t is it not obvious, as Warden Lawes observed long ago,

ee eee e

: See e,

„What would be the attitude ot the. 3 e

eee eee ee eee,

i!!! ont henreeesat

manslaughters in these: United States, would all ‘be :

75 | convicted of murder, sentenced to death, and that pun-

| ishment actually inflicted? ‘What, indeed, but an al-

most universal ery for abolition?” = (Lawes, Twurrr

. Saye Sows (182) 206-97.) 5

ra

11 is, certainly, te ob eben pattie e , 8

7FCCCCTCTCT0TCTCCTT aerate ddan de 3

; Dee e gore sober where tml

As edt ye

. sce eran ee tray

eat. YG! A

: ate sae ar death

ä ase 8 , |

———ů ie death 1 gene

thes, appear o be poche by both legal end pret ö

concessions to arbit

(6) We have ae sketched, at. pp. 38-40 supra, the 1

| general reasons why we believe that a “legislated penalty

cannot survive ath Amendment scrutiny if its accept-

ability to public conscience rests $n such concessions. We

shall develop the point further below, with specific refer-

ence to the death penalty, after we state here the reasons

for our assertion that the Hy ge is in foot 1 ap-

22

Tue very rarity of ‘death 3 and exeentions, | cer-... 5

tainly, gives rise to a strong inferenes of arbi

since it is virtually impossible to conceive non; arbitrary.

0

standards by which the very few men chosen tb die it

America should have been singled out from the enormous

dlass of their death-sligible peers. That inference is heicht-

ened by the fact that the selective judgments made at the

three most critical stages-of a capital proceeding—the prose-

cutor’s decision whether to seek the death penalty, the

5 Wee ‘whether to impose it, and the Seeger

* —

i

9

* i 25

+! 17. . d

F 3

4 brainless lottery.” rea, p. 12 25 8

dom ales in die matter of lite er death. eo tf 5

| eaten tah Agee Na ir ma ! — .

g ;

‘

Cc

SS 3

5 2 * 4 * 7

Ve. 4 25 2 : : :

. ; * 5 a N ‘

„ 3 en bee 4.

N eme ps eee And eee Been dib,

*

Becond, the death Penalty Aumaeg always: kite. the

little man, who is not only poor in material possessions but

e patie eee ee

oe for 85 poor, En and legally e of-

fender.” Durrr & scares bi . Supra, 256-257. ous

ys. But it is strongly suggested by the National Prisoner \

2 difficult or ‘impossible to prove in judicially cognizable ,

tatistics ;* it can been borne out in a number of discrete

OEE Lars abicn oeidaind I spent Deere; dink ten: idee

San Quentin Prison or to Sing Sing, Leavenworth or Atlanta Pri-

=. °, sons and I can pick out prisoners in each institution se i 5

N Os, life sentences or less, can prove that their crimes were just as 3

AS affocioys, and sometimes more so, than most of those men on the

2 FON ear yao *

4° The following are the total number of persons executed between

1930 and 1967 ( ), broken down by offense and race, as they

‘<5... sppear in NP§.(1968),p. 7: Ge e say

murder Rape ~~ Other Total

es | 135 (499%) ($8 (5 1 89 (56.7%) 1751 27 5

Be 0 n (89.0%) 31 (44

2 2 2 (04%) 0 ( 00%) 2 2 ( 11%)

1 2 51 15570 25 15075) 70 (1007) 5880 (100%)

5 A 1967, there were 25 exeentions in the United

1

aner

I

i 4

15 : IE!

f 1

8

rg Fowons en dee: eee

— Bout, Fomcan 108 (

2

. Stor teh ten ne

eee r

Dr. Wolter Terre es eee

ae interraciel- Tape trials as 4 group over a long’ period of

time. dik, ot 2. eee ee recen 2

el 75 py —

ee ee eee eee

South as ‘whole may/not be true for Alabama, and what,

is true for rape. may not be trne for robbery.) The ren..

r "seg en . — * ~

tees 91 f 7 WE: ene

e eee a * :

$0, the procedure io which ‘the life-death sentencing 6

8 0 in principally made, unfettered jury discretion, is V

ae d same. throughout the South und in Arkansas and Ala. 3

. bama, for both rape and. robbery. From these circum-

gtances, one micht infer r chat if the opportunity it gives

for racial discrimination is is being jeized upon in rape cases

8 throughout the South, it is also seized upon in robbery:

cases in Alabama. But we are quick to admit that this

"Bu inferenee;and that in Boykin’s case, unlike the ease off

a Southern N Negro sentenced to die for rape, strict scientific .

Proof racial discrimination is hard to come me by.

—— — ht —

dau sporadically, not too ‘oft, 2. W being arbitrary in

selectin “the -vietims of discrimination, a State can get

wi “erbitrarines and discrimination. Gr, to

ta

. 8

9

7 é

2

.

. or and disadvantaged; but it surely will be acting

in a way that éscapes. the safeguards of the Cotistitation,

J unless the Eighth Amendment forbids. Equal Protection

Jud Due Process provide 10 judicially usable devices to

*\ protect the individual from the arbitrariness of the freak-

S This is all the more reason, we

for application of the constitutional guarantee

— N

(8) But there are other consequences, as well, of the x

- freakishly rare use of a harsh criminal penalty. We have

pointed out above that such use edcapes not only meaning: a

control under the constitutional guarantees ol Equal

otection and Due Process; it escapes also the fair

rutiny of public conscience, with its attendant pressure -

keep the legislature acting decently. A public can r

a ir the rare, random occurrence of a punishment which;

if applied regularly, would make the common gorge rise:

< [It seems to us thet this is just the kind of penatty at

Hana a prohibition of cruel oe unusual punishments must

ms:

ba

The unusual character of the death . pene for ies.

permits public and political acceptance of its cruelty, but, :

‘for that very reason, requires judicial condemnation under

the Eighth Amendment. ‘Rare and arbitrary usage which

evades the public conscience politically demands the super?

: Vision, by. the publie conscience, speaking through the

‘courts, which-the Eighth Amendment promises. This is

oie S

ron eee rm

*

1— — with Sénusaal” punishments’ iz

ae ‘no Toga eden within the Amendment. When harsh

1 „they inevitably become ar-

.

What would this Court say, under the Eighth Amendment,

of an Alabama ‘statute. that condemned: convicted robbers -

tte play Russian‘ roulette with a thousand-chambered re-

Volver, or to draw long straws for electrocution, one in

every thousand to die? In actuality, of ‘course, this is

precisely what sree has done, and Edward oe

, drawn the long aoa ig

(9) It is also. important. we ‘think, that the rare, unt

usual, arbitrary i use of a:harsh penalty operates to deprive

it of any functional place in the rational scheme of a

state’s penal law. Punishment used in this manner ceases

to be an instrument of public justive or of reasoned penal

bpoliey, and henee it ceases to have any claim to l :

—

that might be set off against the commands of

Amendment. As it is, capital punishment generally can

be shown to have no particular efficacy, in achieving the

legitimate aint of criminal law, less harsh penalties

do not 8 * 1 at has any such cacy. with 9 to

(1980), ro mg Oliver, n peaan 151 N.Y:8.2d 367,

378, 134 N.E.2d 197, 201-202 (1956). So also must the Eichth

Amendment discount retribution in the Sans of «vengeance for

_ the propriety of yengeanes, if recognised, would authorise all crue

(1) Moral i or reptobation doubtless requires that

ee *

we

>

alternatives are ample. Sram (1959) 69-79 ;

7 i

—

| the crime. of ‘simple robbery, Alabama alone among the

“Grading punish: ments ‘according to the severity of the crime does a

not require that the upper limit of severity be the death penalty.“

Brau 268. The reprobation function, therefore, hardly needs or

‘warrants . capital. punishment, See Ancel, The Problem of the

~ Death Penalty, in SIM, Carrrat, Putsemne (1967) 8, 16-17, 19..

„ (2). “[R]eformation ..... can have no application where the

death penalty is exacted.” Roya Commassion 18. As for isdla--*

tion, the evidence is élear and overwhelming that, for. ‘bo class of

. criminals, is death required to render them i gta

Brau 395-405; Bedau, Death’ Sentences in New ersey 1907-1960,

19 Rurerrs L. Rav. 1, 47 (1964).

This, notably, is the Gimeno in which Twentieth Ceatary

society differs tadicalty from he society of two hundred or even

A ein ae eebaaial Dee

an humane or econ r feasible cer or Exe to capital pun-

The Courts, 2 Conatittion and Capital

1. Rav. 201, 282 (1968). toed i rag bg hy hy ol

drawn by the Attorney: General in these words: “There was a

time when .self-preservation necessitated [the] .. . im position [of

the death penalty], Later inordinate sacrifices by the innocent

would. have been required. to isolate dangerous pérsons from the.

public. Our civilization has no such excuse.” Statement by Attot-

ney General Clark, Before the. Subcommittee on Criminal ©

Laws and Procedures of the Senate Judiciary Committee, on 8.

1760, To Abolish the Death 2 July 2 25 1968, Department ot

Justioe Release, p. 2.

(3) Aa for deterrenee, there is simply no evidence—despite the

most exhaustive inquiry into the subject — that the death

19-63; Sim, Carrran: PUNIBEMENT . (1967) 185-186, 244.2583;

Marrick 8-28; Korsrian 4861, 171-178 ; CaLverr, Carrral. —

MENT IN THE TWENTIETH Cenrury (8d ed. 1928) 51-90; Bzpav -

214, 258-343; Bedau, A Social Philosopher. Looks at *he Death

Penalty, 123 Ax. J. Psyontarey 1361, 1362 (1967); Hook,

re Sentence, in Bepau 146, 147-148, 151. A few law enrforce- -

ment ctcials and others wht Sipport Gin death fenelig- wontons

appear that this proposition is debatable: It is.

ps teeth esperdtnr a ta of capital punishment admit. It

is generally the retentionists and abolitionists, what-

ever their hout the value of comparative studies of de-

terre dee, that eee

1

—

2 5 * 58

* *

.

7 °

— *

N perceived a nee 5 But ties may Saag aside

tween xiste ‘oh cal Say 2 per hy Uses cade oat.

2 Barn Nara 123. Every serious inquiry into the

iow accepted this conclusion. Unrrep Nations 55.

ss TEL, Fig itera ag yates Preswent’s

re obo oir ne aL Cobn, Specia, Report on

Caprray PURE (1965) 2; Pennsyiyanua Jom LEGisLative

4 ComMrrrex ‘ow: C Capra, PUnmH xxx, Rrronr (1961) 9, 20-29;

* Pavers 86.87; and ‘see the debates collected in Skin, bara.

PUNISHMENT (1967 ) 55-104, and in Favegav, passim. :

: L vot e condi sing have found some

> ffapport for t capi t may have greater

, deterrent efficacy than imprisonment, that support has been found

in the impressionistic opinions of police, prosecutors and other law

| enforcement officials, unstistained by objective evidence. See Can-

apa, Jontr Commortes or THE Sznire AD Hob or ComMons

on. CaprraL PUNISHMENT, REePorT ( 956) paras. 29-33, 43-52; New

a, — To Srupy Caprrau PUNISHMENT, Report

some weight 2 such ae oleae opinions, while — hom. Ror rec- -

lar

e l inton T. Duffy, in Hearings, vol. 1,

; Thomas, Attitudes of Wardens Toward the Death

Pe. in Brau 242. : 4

There are nine States which A guconide thiglenih ‘pen- eee

sity as the maximam punishment for some form of robbery. Only — ä ——

if

1

11

le

10

aga

8

1170

lat

Sit

8485

8

2

7555

if

F

15

l

aE

if

‘Ere

HE

robbery with the death penalty as of July. 1, 1969. Ga: Code Ann.

Kentucky makes cupital the o (assault with intent to

f while armed with u deadly weapon, Ky, v. tat. 5483150 (Supp. -

bee ane in several other states, train robbery is capital, see

AU f : 1 g ; ‘

„There ure wixteen states which punish simple robbery with a

', maximum term of ten years or Jess, Conn. Gen. Stat. Ann. §53-67

' (1960); Towa‘ Code Ann. 3711.3 (1950); Kan. Gen. Stat.

321.528, 529 (1968); Ky. Rev. Stat. §433.120 (1962); La. Rev.

tat., tit. 14, 5665 (1951) ; Md. Ann. Code, 27, 5486 (1957);

Minn. Stat. Ann. 5809.24 (1964) ;; NM. Stat. §§40A-16-2,

40A. 29.3; N.Y. Pen. Law 55160.05, 70.00 (1967) ; N.C. Gen. Stat.

robbery. Ataska Stat. §11.15.240 (1962) ; C. Z. Code, tit. 6, $2361

(1963) ; Colo. Rev. Stat. Ann. §405-1 (Supp. 1967); D.C. Code

Amn. §22-2001 (1967); Ga. Code Ann. §26-2502 (Supp. 1967) .

(ane Ga. Code Ann. 928.1901 (1968)) ; Bavaii Rev. Laws §§306.

Stat, 8-1 (Smith. Hurd 1964),

1968), Miss. Code Ann. §3264 —

Ore. Stat 163 290-7 “PR Ls : *

(1937) ore Rev. Stat. $163.290 11967); P.R. Laws Ann,, tit. A.

. 13.2601-03 ‘Tenn. Code

75

4 Loe * 5 1

4 1

vd 1 n,

ee 7

2

4 \ i : 2 „e 1 0 4 1 }

# 2 ea ~ 7 1 yn: a 4 S

2 ‘ 22 ‘ * d 8 4 4 - 2

1 134 * 2 * 9 — ** un,

* 1 11 * 1 on E 2

e Ae 4 > a 1 N

~ * . they Bee -~ 5 ee: 5 5 E : —

— . 1 1

| 4 iat. 5 Big:

PS eae eee Paes ie wep 1

a

1

1 d 5

i * ‘ee 3 4 1 a m — *

* ee of SNP, Fin Nase : ~

5 3 See) * Mee ae 3

oun 3 : °

* a > * 4 —

e ed “oe : > ° .

* “ * * 2

* 5 wie } SO he * . 5 ; 2 !

5 : N Op

2

se forbidden by the Eighth Amendment, :

itrarily-—to execute five men'in thirty-nine years, capi-

. robbery palpably: hea to’ sich valid

5 u I ul od! lot rl 1 e face

(10) We must conclude, then, that thé death penalty for

, imposed by Alabama upon Edward Boykin is nq.

_Bert of the regular'criminal-law machinery of tho State,

_” Visibly arbitckry, probably racially discriminatory—a pen-

alty reserved for wholly arbitrary application because, if

it were regularly used against robbers, it would affront

universally shared standards of public deceticy, Such ä

_penalty—not Law; but Tertor—is'the instrument of totali-

tarian government. It croel and unusual punishment.

1 7 fr

22 4 = ;

1 ote

N

x

7 > z aie - 0

3 4 ; ‘ 2 &

— —

ups (1968), pp. 80-82; 108 Come 226. 5800 8806 ech Cong,

2d Seas. (March 1, 1962). ee iter

It appears that, outside of the United States also, capital pun-

7

few asin e

4 25 2 Bere 2 e de ~y sade Pe

— ‘at ody abuts 2 aos ; 42 1 8 4 F

1 K 2 5871 1 ba cet EA ese eircad atts

ie ied in Ea ot . —.—

b ‘Boykin’s

. life was submitted to t Jury. Pp. 13-14, supra, The trial

and a farm for dea a told chem: “You can use either

one form or 25 other when you ‘arrive at oil verdict.”

| we think there can be no doubt e the

: 1 Sy Ke 725 1 3. 7 333 4

ee Seater ee WS 2° wa 2 descent)! 3 1

e e , r nd Sethu eee, ee n gg

I “Bee the documents cited in note 7, para. (2), supra. :

tent er mere fundamental. For, whatever ee “due process 5

of m mee . Hine eee deen thought to. g

anker soiie dere of fitidatnental prectiutal reyelarity

in it some: deere upon the rule of law,

2 Gaar, Ee be

U. AE OMe). The ioe of such. statutes u not

alone their failure to. give tair wersing o ted.

duct, but the breadth af room they leave for ery agutrar

nem and (the imfuenaa of i i otha

5 : “as :

— BP.

eee ae Dut dyonction: that ler-

Aires the» intedrity.:. : ana at the sentencing

| the guilt-determining process, ‘Witherspoon-. Illinois, 391.

.. 610 (1968); Herpa v. Rhay, 389 U.S. 128 (1967);

MoComnell v; Rhay and Stitiner v. Rhay, 37 U.S. L. Week

1 Oet. 14, 1968). In Witherspoon,’ 891, U.S. at

n. , this Court noted that while sentencing choico—

find, in particelar, the choice of life or death may be:

“different in kind from a finding thatthe defendant com-

nmitted a’ specified criminal offene, . . this does not

‘mean that basic requirements of procedural fairness

ean be ignored simply because the determination in-

volved in this case differs in some from the

4 traditional assessment of whether the t en-

_™ gaged in a proscribed course of conduct.”

Nele nen, of soared! it why have been thought that

Hair otied” questions were raised by regulations defining

offenses but not by those prescribing punishient. Yet, is it

. not apparent that the vies of the “whoever-is-found-con-

deninabl#”’ statute has little to do with notice?’ The statute

_sistently with it, but because, however he behaves, he may be

arbitrarily and capriciously taken by the heels. The precise

is bad not because a man does not know how to behave con-

„55

S

as *

fs e. 4“

eee Say

1% . : Pe. 3

N 2 “agi ° :

2 a

6 “

1 5

See ee bed bus bin ie bh rte f

————— —-—„— jury J

8 cretion in capital sentencing is unconstitutional. What Was

at issne there, as here, was a state practice governing dis-

position. No “fair no problem was involved—except,

of course, the prob noted by the Court, thet it was im-

4 possible for defense el at trial to know what issues he

was trying, as it is in a capital case tried to a jury having

‘limitless sentencing power.“ That decision turned squarely

on the proposition that the Fourteenth Amendment forbade

Pennsylvania to leave its “jurors free to decide, without

any legally fixed standards,” 382 U.S. at 402-403, whether

to impose upon a defendant a rather small item of costs.“

It is not evident why, in the infinitely more significant mat-

ter of sentencing men to death, Alabama juries can be per-

mitted the same lawless and standardless freedom.

Nor does footnote 8 in the Giaccio opinion blunt the

implications of the Giaccio holding for our present pur-

poses. In that footnote, a majority of this Court noted.

that it intended to cast no doubt on the constitutionality

of leaving-to juries finding defendants guilty of a erime

C — 4

t there we

limits.” The precise problem in this case is

no Legal prescribed limits,” in any realistic sense, to

— ot a —

was only one of the standardlees Ia

1 i

2 be understood tt as re N. Wedel

a sim 2 Sica tes ‘af sentence. The

eee Wid Gacy i Ol cake to enbver

| . fee F

he 5 “was fit to live“ r 510,

Ne sse)

>

ior e eee e bes when por.

Seite — see Tignes v. Terus, 310 U.S. 141, 148.

49 (1940), it may well be that jariew can constitutionally

— Do given some disdretion if selecting a smaller or larger

mne, a longer or shorter term of years, particelarly where

tte range of cheice is relatively circumseribed and the

effect of the choice somewhat qualified by parele stafutes

ä and the eontinning availability of post-conviction process to

.-Tectify. after-discovered. mistakes made at tha trial. But

the degree of arbitrariness allowed a State is nat 80 liheral

where grave ind inremediable punitive exactions: are at

: v. Oklakama, 316 U.S. 535. (1942); and

10% TW

3 ' ster Chics les Dalle i had bes bees |

* en fact the 8 .

Yes

We do nat eogtend here that the Due Process Clause

"forbids entirely the exercise of discretion in sentencing —

even by a jury and even in a capital case. Ways may be

found to delimit and guiddbdiscretion, narrow its scope,

and subject it to reviews and these may bring a grant of.

discretion within constifutionally taferable limits. Whether

the approach taken by a State such as Nevada, which

makes certain reviewable findings of fact the indispensable

condition of imposing capital punishment (see Nev. Rev.

Stat. 5200.36 (1967)); or tha approach of California, .

which, has adumbrated by judicial decision at least some

But as the issue of petitioner’s sentence was submitted

to the jury in its sole discretion under Alabama procedure; /

the attention of the jurors was directed to none of ‘the

Purpose of br ant, nor to any pertinent an-

0 tie 7 | 66 0

| jwited: to com⁰ifder the extent of harm to the robbery |

Weins, e moral” ot che defendant's acts,

bis susceptibility or lack of susceptibility.to reformation,

, _ the extent 6f a ‘deterrent oftect af} illing the defendant =

“pour. décourager les autres.” Ct. Packer, Making the

: t Fit the, Crime} 77 Harv _ Ter. 1071 (1964).

They. were permitted to chaose. 5 death upon

conviction for any reason, rational or ional, or for no

reason at all; at a whim, a vague caprice, or or because of the

. color o Boykin’s skin. In making the determination to .

= impose the death sentence, they wilfully and unre-

viewably, without standards and without. direction. Noth-

assured that there would be the. slightest, thread of con-

jon between the sentence they exacted aid any rea-

scale jontteation for cancting tt Of. Skinner v. Okla~-

oma, supra. To concede the complexity and interrelation

of sentencing 5 goals, see Packer, supra, is no reason to sus-

tain a procedure which ignores them all. It is futile to put

’ forward -justification for.a death so inflicted; there is no

-. ssuranes that the infliction responds to the justification

or will conform to it-in operation. ‘Inevitably, under such

~~ a sentencing regime, capital punishment i in ‘those few, ar-

bitrarity selected cases where it is applied, is both un-

5 able and lawless, and, ag shown by Alabama's record,

pp. 58.84, supra, conventionally imposed only on the mem- :

bers ‘of minority. groups.

ä 3

tion of jury violates the rae of law that ia fundamental 497

to Due Process. peel

8 > . 4 2 2 a 4 75 — . r i

* 223 8 4 2 8 5 ‘ * ;

‘ * * sae ay 4 N. * . 5 n „ * 4 14 ey 0 /

6 „ 1 5 2 N oe g :

2 * * . « — “i 0 . * * 5 0 i}

oe 4 a — at 2459 <\e 4 2 — ~ * 7 8 — r 2 te

~ : — — & Mee oh ¢ a at. ~ * * oie . f 3

— 2 * — ee N owen — 1 ae ae ee *

2 ; 12 + -* as 2 ** J — 322 7

—— - ed 2 Oe ad ~ — = ose a n- „ 9 2 2 2

— — 8 — Sar 2 “eo 2 2 23 a 2 he ‘

7 „

PI / 2

6 5 wee .

. oe vit ap bein So

: Before diiing thie brief, we: think’ it 45 5 imperative to

notice explicitly several issués which, in our judgment, the

Court is not now called upon to decide. We venture with

the utmost deference to identify ‘these issues because of

‘their extreme importance to the many condemned men

whom we represent. Numerous of thuse men have ‘Stays

of execution granted upon post-conviction. petitions raising

the issues. If, as we submit, none of the issues is presented

in this Boykin case, we know that the Court would not want’.

inadvertently. to prejudice their subsequent presentation.

Because of the nature of the issues and their relation to

those briefed herein, there is some danger of this if we are

negligent in failing to W to the Court's attention pre-

cisely what these i issues axe. e Bg e

22

First, the Court i is not now called. upon tos: determine

Whether the death penalty i is ernelAnd unusual punishment.

for the crime of murder. Most. of the men on death row

today are there for murder, and they are presenting to a

number of courts varying contentions attacking their death

- -senvences under the Eighth Amendment. ‘Some of these

contentions. stress the physical and psychological, eruelties

of execution, or its indignities; others focus upon the for-

tuity and apparent purposelessness of its application; still

others press the unnecessary severity of ~eapital punish-

ment in view of the alternative means. available to the

state for achieving all of the legitimate ends of criminal,

sanctioning, either in particular cases or generally. We =

— rn

for Boykin is that the death sentence for robbery is con-

stitutionally disproportionate, Our Own, Eighth Amend-

ee, is

—

sect argument euppart of Boykin takes a different ap:

10 II. 1 But, if the Court

‘ving the, Wiehth Amandinant to. — we, earn-

var hape that it will make.clear what 5 proportionality

intionale doce not imply, Specifically, if the death penalty

Violates the Eighth Amendment becauad ii is dispropor ·

tionately severe for the dime af robbery, that does nat

imply that the death penalty in canetitulionally acooptable

: for the crime of murder.

i nS st init to Heat ‘aay vite ee

pertionality theory the fall measure of the Eighth Amend-

ment, this’ Court is net new in a position to determine

Whether the death penaify is proportioned to the crime of

murder. The determination that it is, dispropertioned to

“robbery does notengcessariy establish that it ig propor-

tioned to murder; and there are seme very geed reasons to

believe that it is not. A few reasons are suggested at pp.

33-35; supra, but they cut hardly be adequately developed —

or considered in x case where the issue is not presented.

.

eee ee eee wee eee

den to determins aber the dest ‘penalty might bs

down to be u ue and junesual prinishment en other

| grounds than those -urgéd bers, and oti other record;

nor to determine the right of a condemned man to make

auch à record. In this peumection,:we note that ae ve

actual physical end peychologizal effects of vapited penish-

ment might be reegived, together with similar testimeny—

relating to the validity- of the several state interests usn-

ally asserted to justify the state-ordered éxecntions which |

have these effects. The refusal of one court to allow, us

such a hearing is at issue in one pending petition for certio-

rari hete. Forcella and Fumicello v. New Jersey, O. T. 1968,

No. 947 : ain AY RISO ALS eee

Whatever the disposition’ uf tit particular petition, we

dectine to hear constitutionally relevant evidence. But-no

such evidence is contained im the remarkahly spare Boykin

_ tecord, and none was profféred by Buykin's court-appointed

counsel. We think it importemt that this be made cleat, so

that nothing in the Court's deliberations here prezudiees

the right to offer evidence of the sort descrihed, or_pre-

judges the constitutional case which could be made hy evi-

ird, Boykin’s petition for certiorari presents as a dis-

.- tinct question (number 6 among fhe Questions Presented)

a claim of racial discrimination in the application of the

death penalty to Alabama Negroes. In Boykin’s brief, he

claim and the evidence supporting it are put for ird as

part of his argument that the death penalty, in his case, is

a cruel and unusual punishment. We agree that the appar-

ent racial discrimination in the sélection of the few, other

wise arbitrarily chosen men sentenced 10. die for robhery in

Alabama and the handful or Southern States. which retain

capital punishment for this crime is highly -relévant io he

aim of erdet and unusual punishment, for reffsons--which

‘We have developed in ‘Part TI, aupru, éf this brief ‘Racial

—

—

f ‘

72 5

- 12777

e n e 5

tention that ynfettered jury discretion in capital sentencing

‘ violates the rule of law fundamental to the Due Process

Clause, as we have shown in Part III, supra.

But these ‘submissions—properly resting upon. eyidence

of racially differencial sentencing less exact and scientific

than that which would be rte Ae a claim of

— diserimination under the Equal Protec ion Claiias should —-— —

not be confused with the latter claim. Judicihlly noticeable

indications of pervasive racial discrimination in the admin-

idtraticg, of the death penalty throughout the United States

abo see pp. 51-53, supra), and are quite legitimately

noticed as matters of “constitutional fact” going ‘to the.

_ Bighith: Amendment argument. They would not generally,

and without more, suffice to prove an out-and-out Equal

Protection violation by a eee State, under Y: ick Wo

v. Hopkins, 118. US. 356 (1886).

Hlaborate- and exceedingly expen: cientific re-

search efforts may, however, result i dof which (to-

gether with the noticeable publications) amply carries the

day under the Equal Protection Clause. Our Petition for

Oertiorari, in Maaweli v. Bishop, O. T. 1968, No. 622, sub-

mits that such a case was proved i in Arkansas relating to

78 capital sentencing for the crime of rape. A still more con-

_.vinajng case might be made in Alabama with regard to cap-.

ital rape sentencing. But ‘that evidence is not in this rec-

ord. We have pointed out above that—apart from the fact

that its procurement would have been beyond Boykin's re-

sources —acientifle analysis of racial patterns for capital

robbery sentencing in Alabama would be virtually i impos-

sible, by reason of the infinitesimally small number of per-

sons sentenced to death for robbery in that State (or any

State) in recent years. This latter circumstance highlights

the force of Boykin’s contention under the Cruel and Un-

_urnal Punishment Clana also makse imp tive mm ap.

preciation of the distinction between the ‘Amend--

ment contention ' ‘and an Equal: Protection claim. . 5

Finally Boykirs Peil for cortiorsii ee (as

question number 4 among the Questions Presented) a con-

stitutional challenge to the “anitary” or single-verdict

method of trying the issues of guilt and punishment in a

n a proper record, that question would be a

very substehtial one. See the petitions for certiorari i in the

Johnson, Mathis and Maawell 3 cited at note 7, para.

(3), supra. : ot * 5

But the issue is not briefed by counsel for Boykin, for

the reason, we would think, that it is hardly presented on #

this record. Boykin pleaded guilty; and, for aught that

appears, the jury trial which followed his plea was for the,

sole purpose of fixing punishment. At the most, the guilt

question was tried in a formal sense, on judicial oonfes-

sion.

And s0o- although, again, „ Boykin’s case might look dif-:

ferent on a different record it is apparent that the present

8 record raises no question of the constitutionality of trying

guilt and punishment simultaneously in a capital case.

That question will properly arise in a . case where

guilt is tried.

„„ 1

tt n mud . eee

Hani agi

ere

5 “safeguards required by ‘tHe Due Process Clause. His sen-

tence bo death for the crime of robbery violates the Bighth

- dcmendnbent’s prohibition of crnel and amusnal panishment.

The method by which his sentence was determined, in the ;

anregulated and lawless discretion of the jury, violates

the rte of lew fendemtntal 40 dns process. e

e e a

Respectfully subenitted, BIG

Java Genmmane 85

June M. Naur, III

Mona. MEI

Murs ann

„Jack HmN]⁰ rr

10 Columbus Cirele

New York, New York 10019

Anvuoryr d. Awerumax

3400 Chestnut Street

Philadelphia, Pa. 19104

y , Attorneys for the V. A. A. O.

Legal mer and Educational

.

la °

*

APPENDIX A 5

Provielons of thé Criminal Statutes of the Fifty American

UF

" Code of Ala., (Recomp. Vol. 1958): 614.7 (kidnapping for

ransom) ; §14-8 (attempted kidnapping for ransom) ; 614.23

(first degree arson with loss of life or maiming); §14-26.

(second degree arson with loss of life or maiming) ; §14-39

(aseault on prison guard or any murder by life term pris-

oner); §14-84 . (burglary); 614.97 (sabotage); 614-123

(eynamiting under or near inhabited area); §14-315 (kill-

ing in duel); §14-316 (killing with concealed weapon);

4.318 (murder); 614355 (lynching); 614-395 (rape) ;

§§14-397, 14-398 (carnal knowledge); 14415 (robbery);

eee n robbery) ; $144%4 een

5 ARIZONA

ere (1956) : 613.250 (armed Assault 3 life term pris-

oner); 613-453 (murder); 613-492 (kidnapping for ransom

where victim is harmed); 613-572 (perjury in capital case

resulting in death of innocent 1 2 . rob-

bery) ; ee (treason).

ARKANSAS

Ark. Stat. Ann., (1947): §41-502 (arson of prison by con-

viet); 641.2213 (killing in duel) ; 641.2214 (captain of boat

causing death by deliberately ramming into craft); §41-

oe

2216 (police officer causing death by exceeding bounds of

moderation) ;.§41-2223 (causing death of woman by abor-

tion); 141.227 (murder) ; §41-2304 (kidnapping for ransom

or victim harmed); §41-3403 (rape); §41-3405 (carnal

- knowledge of woman intentionally drugged) ; §41-3411

en woman 0 N 22 5

a

3 \

Apes A. |

oe CALIFORNIA Ci

“West's Ann, Cal. Penel Code (1954): 637 (treason) ; 5128 *

> (perjury i in capital case resulting in death of innocent per-

on); 5190 (murder); 5209 (kidnapping for ransom or

‘| ‘robbery where victim is harmed) i §219 (train wrecking) ;

eur — assault by life term R

* *

e

ol. Rev. St. (1968): 640, 28 (murder); 640.245 (kidnap:

ping where vistim suffers bodily harm); 540.251 (causing

5 death of woman by abortion) ; 540-7-3 (perjury in capital

85 eee in death of innocent victim) ; §40-7-49 (armed

5 assault | scaped life prisoner) ; §40-23-14 (causing death

a during Ve of criminal anatehy).

=e “CONNECTICUT © ~Ngp tS

= 0 ae 196%): dog 1 Ns. 1 (treason) ; 653.3 ey, ae

3 ambdssador) ; 9538.10 (cagsi ing,death by train wrecking); ..

5 853.10 (causing dedth by arson or bombing); 953-20 1 27 85 ee

aa 853.27 one: meee victim). sie vere

E le „

es | bel 0. (1967 Cum. Supi): $107 (murder

“Sos 8 plone “FLORIDA as :

.S. A. (1965) 6782.04 (murder); 6782.05 (killing in m dite);

78206 (céusing death by train wrecking) ; §790.16 (throw- “~-

uu bombe or discharging. machine gun. in public Place):

790.16 irowi bombs damaging private property where

Adssth results) 1 5754.01 (rape or carnal knowledge where

J +. yiotim Kase’ bee 3. e Giänsrping for. ransom).

3 . ee

. 4

en:. 112 t

;

" of . = é me * : . Me een” * =. N

—— 5. 8 ea 33 TRY eS * * 3 * 8 0 Hos

1 — — 0 7 * — — . bd 7 1

—

=

bery); 526-4007 (perjury in capital case resulting in death

of accused); §26-5203 (killing in duel) ; ¢ 1 (mob vio-

oe gill

= GEORGIA” Z

da. Code Ann. (1953) : §26-801 (treason) ; §26-903 (insur-

rection including attempts) ; 926-105 (murder); §26-1103

_ (feticide) ; 628.1104 (advising woman to kill child before

birth or after delivery); §26-1208 (castration) ; §26-1302

(rape); 526-1304 (carnal knowledge where victim under

fourteen); §26-1603 (kidnapping for ransom); §26-2204

(burning or attempting to burn railroad bridge) ; §$26-2206

(arson resulting in death); 626-2301 through 626-2303

(dynamiting inhabited structure); 626.2502 (armed rob-

lence resulting in death); 626.7314 (train wrecking result-

ing in death); 628.7320 (causing death. by mishandling’

poisonous reptiles); §26-8117 (desecration of burial place

with intent to rob, molest or mutilate). 5

N IDAHO, . 5

Ida. Code (1947): 618.4004 (murder); 618-4504 (kidnap-

ping for ransom where victim harmed) ; 518.5411 (perjury ~

in capital case resulting in death of innocent person);

518-6007 (causirfg death by train wréckihg). |

- UfLLINOIS—

Ul. Ann. St, (1961): ©. 38, 69.1 (murder); e. 38, v0.2

*

(kidnapping for ransom); c. 38, §30-1 (treason).

INDIANA

| Burns Ind, St. (1956) 1. -§10-307 (arson causing death) ;

8.10.3306 (mob lynching causing death) ;410-3401 (murder);

$10-3402 (killing in duel) ; §10-3902 (causing death by train

wrecking); §10-2903 (kidnapping for ransom) ; §10-4401

(treason).

4

8 So

‘ums

KANSAS |

K. A. (1963): 621.201 (treason) ; 624.403 (murder): 621.

449 (kidnapping for ransom where victim harmed) ; §21-702

— in 0 case resulting i in death * en

_ KENTUCKY.

Ky. Rev. Stat. Ann. (1963): 10 "(aioe chere ;

armed burglary) ; §433.150 (assar to rob or intent to rob);

§433.390 (causing death by train wrecking) ; §435.010 [mur-

der); 6435.040 (causing death of woman by abortion);

9435. 030 (killing during advocacy of criminal syndicalism) ;

_ . §435.070° (lynching); §§435.080 435.090 (rape) ; §435.140

_ {kidnapping for ransom) ; §435.190. e anne into :

8 n or motor vehicle).

i : LOUISIANA - |

L. S.A. (1950): 814 230 (murder); §14:42 (aggravated

rape); §14:44 e Kidnapping) ; §14:113 (treason). -

Anh. Code of Md. (1957): 627.142 (aseadit with intent to

commit rape); 627-337 (kidnapping) ; 827-410 (killing any

person while attempting to escape prison); 527-413. (mur-

der); 527-453 (causing death by train wrecking) ; 527-461

(rape); — (carnal knowledge of child ‘under: ae

MISSISSIPPI

© Wiss. Code. 1 (Recomp. vol. 1956) : 62006 (killing in

„ Quel); §2143. (bombing in or near inhabited aréa) ; 62217

~ (mmurder) ; 62222 (causing death of woman by abortion);

— — *

han .° me 19 24

e tte Pe deere

§2238 (kidnapping) ; 62858 (rape bands attempts); 62367

5 (armed robbery) ; $2397 (treason).

“MISSOURI

| W Mo. ‘Stat. Ann. (1953) : 6557 020 (perjury i in cap-

ital case resulting in death of accused); §559.030 (murder);

§559.230 (kidnapping for ransom); 6559. 260 (rape);

559.300 (carnal knowledge under sixteen) ; §560.135 (armed

robbery); §560.140 (train mar sad §562. 610 W game dy 1

8564. 560 (bombing).

| MONTANA ;

Rev. Code of Mont. (1947): 594.2505 (murder); 604 2601

(kidnapping for ransom) ; 694-3207 (causing death by train

wrecking); §94-3207, 594-3813 (perjury in capital case re-

sulting in death of innocent person) ; §94-4501 (treason). ä

NEBRASKA A.

Neb. Rev. St. (1948) : §28-401 (murder).

“NEVADA

N. R. S. (1967): §196. 010 (treason) ; §199.160 (perjury re-

sulting in death of innocent person); §200.030 (murder);

§200.363 (rape with substantial bodily harm); §$200.320

_ (kidnapping for ransom with ‘bodily . harm to. victim) ;

§200.400 (assault with intent to rape ‘accompanied with

acts of violence and bodily harm); §200.410 {killing in

duel) ; §202.270 (dynamiting) ; §212. 060 Us 8 Hill

ing person while attempting escape).

NW HAMPSHIRE

NH. Rev. St. 8 (1955): 9585.4 banner).

„

Appendio I

NJ. Stat. Ann. (1999): 624 13 4 (murder); §2A:1181

(kidnapping for ransom); §2A :148-1 (treason) ; (2A 148.6

(attempt or conspiracy to assault chief of state),

N. Mex. St. (1964 Repl?Vol.) : §40A-2-1 (murder); §40A-4.1

(kidnapping for ransom with bodily harm).

„„ dept y YORK |

McKinney’s Con. Penal Laws (1967): §125.60 (murder of

police officer or by life term prisoner).

‘3 _ NORTH CAROLINA

Gen. St. of N.C. (1953): §14-17 (murder); 614.20 (killing

in duel) ; 414-21 ( rape); 614-52 (burglary) ; 514.58 (arson) ;

§14-278 (causing death by train wrecking). . |

„„ Ras

Rev. Code Ann. (1953) : §2901.01 (murder) ; §2901.02 (caus-

ing death by train wrecking); §2901.03 (convict killing

guard) ; $2901.04 (killing police officer on duty); §2901.09

' (killing federal or state chief of state); §2901.27. (kidnap-

| ping for ransom) ; §2901.28 (abduction resulting in death).

OKLAHOMA

Okla. St. Ann, (1958), Tit. 21: §707 (murder); 6745 (kid.

napping for ransom); 9801 (armed robbery) + §1115 (rape).

0

20

q@ « 9 : * Ta

Appendia 4

PENNSYLVANIA —

Purdon’s Pa. St,. Ann. (1962) : -§4701 (murder) ; 647102

(assault with intent to kill by life term prisoner); .

(lynching) ; §4919 (causing death by train e

SoOov¹rEH CAROLINA A

8. 0. Code Ann. (1962) : 916-52 (murder); §16-54 (killing by

stabbing); 616-57 (lynching); 516-63 (killing in duel) ;

§§16-72, 16-80 (rape as well as assault with attempt to rape,

also carnal knowledge); §16-91 (kidnapping where victim

is not. released alive before. trial); §16-92 (conspiracy to

- kidnap) ; 517-553 (third conviction for crimes optionally

punjshable by death); $§44-353, 44-354 (giving information

or _ — in time of war).

SOUTH DAKOTA

S.D. Code of 1939: 613.2012 (murder); au 2701 (snap

ping where victim is bodily harmed). | 2

‘TENNESSEE

Tenn. Code Abin: (1955) : 639.2405 0 639.2603 (kid-

napping for ransom) ; §39-2803 (assault with: deadly weapon

while in disguise) ; §39-3702 (rape); §§39-3703 through 39-

3706 (carnal knowledge) ; et, (armed robbery).

Tex. Pen. Code Ann. BB aren $38. (insti Gon. of a minor

by a relative or spouse to commit a 2 erime); 884 :

. (treason) ; .§309 ‘(perjury in capital case ‘resulting in an

execution) ; 51177 (a) (kidnapping for ransom); 91183 (car-

nal knowledge); 61189 (rape); * *

nt), 51408 ae robbery).

8 s e oe

ben Code Ann. (1953): 676-712 ‘dnt assault by life

term prisoner) ; $76-16-2 (killing in duel) ; §76-304 —

we der); * a for _—

VERMONT

13 vA (1968 Cum. suppl.) : 62303 (sesona first degree

murder offense and murder of prison guard or police

ne: 1125

mier teva VvROINIA

Code of Va. (Bepl. Vol. 1960): 618444 Mttempt to commit

rape); 4181-22 (murder); §18.1-38 (kidnapping for ran-

som or immoral purposes) ; §18.1-44 (rape and carnal knowl-

edge); §18.1-75. (arson) ; §18. 1-86 (burglary) ; §18.1-90

(armed bank robbery); §18.1-91 (aggravated robbery) ; j

8.1259 (machine gun used in perpetration of orie of

*

violence); 618.1418 (treason).

WASHINGTON |

B.C. W.A. (1961): §9.48.030 (causing death 2 train wreck-

ing); §9.48.030 (murder) ; §9.2. 010 an for 1 ran-

som); we 010 (treason). ©

| WYOMING |

at Wyo. St. (1957) : §6-54 (murder) ; 66.56 (killing in duel) ;

86-59 (kidnapping for ransom or robbery where victim

harmed); §6-61 (child stealing) ; 637.248 (causing death by

train wrecking or boarding train with intent to commit a

1 5

APPENDIX A

5 In THE

SUPREME COURT |

OF THE STATE OF CALIFORNIA |

1 In Bank

Crim. 11572

In re Ronxxr Pon AmpEnson

on ee Corpus.

Crim. 11573

. ———

on Hakeas .

(two Cases)

Opinion by Burke, J.]

The issue here presented is whether the death a

and the procedures followed in imposing it are constitu- -

tional, and.not whether it should be retained or abolished

in California. Retention or abolition raises,a question of

legislative policy which under our system of division of

powers falls within the competence of the Legislature or

the electorate. .. .

_ Ajory found Frederick Saterfield guilty on two counts

of first degree murder and fixed the penalty on each count

at death; the judgment was affirmed (People v. Saterſteld,

65 Cal.2d 752 [cert. den. 389 U.S. 942 and 964]), A jury

also found Robert Page Anderson guilty of degree

murder, attempted murder of three other men, and first

4 ae 3

agree ebe h f 108 i r death for the

murder; the judgment was affirmed (People v. Anderson,

64 Cal. 2d 633).

. Baterfield and 1 now seek habeas corpus on the

grounds that (1) it was improper to excuse for cause venire-

men conscientiously opposed to the death penalty; (2)

Penal Code sections-190 and 190.1 are unconstitutidnal ‘be-

cause they contain no standards to assist the trier of fact.

in determining whether to impose death or life imprison-

ment; (3) the death penalty, per se and as applied, con-

stitutes cruel and unusual punishment; and (4) petitioners

have been denied their right to counsel in post-state-appeal

proceedings. We issued orders to show cause and pending

* final determination of the instant proceedings stayed all

‘judgments of death in California. Counsel in all pending

automatic appeals and other attorneys were afforded an

_ opportunity. to file amicus curiae briefs, in which additional

arguments have been presented challenging the constitu-

tionality of the death penalty as applied in California.

We hold that the death penalty is constitutional and does

not constitute cruel or unusual punishment, that Penal Code

sections 190 and 190.1 are valid, and that in keeping with

a newly declared policy of this court petitioners, and all

other indigent defendants in capital cases, in the interests

of justice, will be afforded the services of counsel in all

proceedings between the termination of their state appeals

and their execution. We have further concluded that under

the compulsion of the June 3, 1968, decision of the United

States Supreme Court in Witherspoon v. Nlinois, 391 U.S.

510, the death penalties in the two cases now before us

must be set aside because certain prospective jurors were

improperly excused for cause. It is necessary, therefore,

W

Appentia io B

that petitic ee be- remanded to the trial ill for new

75 trials limited to the issue of penalty.

Excusing Lonitomen Opposed To Death Penalty

Petitioners argue that excusing for cause veniremen con-

écientiously opposed to the death penalty deprived them

of a jury which fairly represented a cross section of the

community and tended to assure the state a jury whose

members were favorable to the prosecution at each phase

of the trial. At Saterfield’s trial two prospective jurors

were excused for cause on the ground of their opposition

to the death penalty. Likewise at Anderson’s trial seven

prospective jurors and one prospective alternate juror were

excused for cause on that same grotind.

At each trial one or more of the prospeetive jurors ex-

cused on that ground did not make it “onmistakably clear

(1) that [he] would automatically vote against the imposi- .

tion of capital punishment without regard to any evidence |

that might be developed at the trial.. . or (2) that [his]

attitude toward the death penalty would prevent {him]

from making an impartial decision as to the defendant’s

guilt,” as mandated by the Witherspoon decision. (391 US.

510, 522-523, fn. 21.) For example, at Saterfield’s stain one

prospective juror stated, “I am opposed to the dea

alty,“ and was thereupon excused fot cause; at Anderson’s

trial one prospective juror in response to the question “Do

you know of any reason you couldn’t be a fair and impar-

tial jgror in this case?” replied; “Yes, sir, I do. I don't

- believe in capital punisl ent” and was immediately excused

for cause. In néither~ixistance had the court made it clear

to that particular-prospective juror that opposition to the

death penalty or conscientious scruples against that penalty

would ben ueient by itself to disqualify such a juror

pen-

eae ee Aren,

5 e eee

preceded the deeision of the United States Supreme Court

in Witherspoon v. Illinois, supra, 391 U.S. 510, which sets

| forth new rales that the states ‘are not only compelled to

follow. but must apply retroactively (see fn. 22, at p. 523).

..., Witherspoon held that a.sentence of death can not be

carried out if the jury that imposed or recommended it

was chosen by. excluding veniremen for cause simply be-

cause they: voiced general objections to the death penalty.

or expressed conscientious or religious scruples against its

infliction.” Witherspoon further stated that No defendant -

can constitutionally be put to death at the hands of.a tri- :

bunal so selected” but that “nothing we say today bears

upon the power of a State to execute a defendant sentenced

| to death by a jury from which the only veniremen who were

in fact exeluded for cause were those who made

takably clear (1) that they would automatically vote

against the ixaposition of capital punishment withou re-

gard to any evidence that might be developed at the i

of the case before them, or (2) that their attitude to

the death penalty would prevent them from making an i

partial decision as to the defendant’s guilt.”

: ih yi peg requires us to set aside the death

imposed on petitioners and to have the issue of

| _retried.. There is no merit to the Attorney Gen-

eral’s contention that, since, assertedly, the California law

at the time of petitioners’ trials was not materially differ-

ent from the rules in Witherspoon, defense counsels’ failure

to object to the exclusion of the prospective jurors in ques-

tion bars petitioners from naw claiming error. At the time

el petitioners’ trials, under decisions interpreting Penal

Code section 1074, subdivision {8),.it was proper to excuse

for cause prospective 3 jurors who. “did not believe in h

— B 25

punishment” or who were “onscieritionaly of opposed to ae

tal punishment” as well as those “whose consciences would

‘ preclude them from imposing [the death penalty]. (Eg.

People v. Shipp, 59 Cal. 2d 845, 858 [cert. den. 377 U.S. 999) ;

People v. Love, 56 Cal. 2d 720, 726; People v. Duncan, 53

Cal. 2d. 803, 816 [pet. for cert. granted, 363 U., 840; writ ea

diamissed 366 U.S. 417]; People v. Wein, 50 Cal. 2d 383, 394

(cert. den. 358 U.S. 866]; People v. Riser, 47 Oal.2d 566.

573-576 [app. dism. 358 U.S. 646]; People v. Hoyt;,20 Cal.2d

306, 316; People v. Kynette, 15 Cal.2d 731, 744-745 [eert.

den. 312 U.S. 703]; see People v. Carter, 56 Cal.2d 549, 573,

fn. 10.) It is obvious that Witherspoon made.a material

change in the Jaw in this state. Since petitioners were .

tried before itherspoon, failure to object to the exclu-

sion of the prpspective jurors in question ‘does not bar

petitioners from now claiming error. (Cf. People v. Nye,

63 Cal. 2d 166, 175; People v. Love, supra, 56 Cal. 2d 720,

731-782; People v. Kitchens, 46 Cal.2d 260, 262-263.)

The Attorney General also contends that any error under

Witherspoon in excusing for cause prospective jurors op-

. posed to the death penalty-is nonprejudicial where, as

bere, the prosecution had sufficient peremptory challenges

to remove All such jurors. The Attorney General asserts

that since che chances of a jury’s being able to determine

the penalty impartially are diminished if the jury contains

even one person who is hostile to, or has reservations con-

cerning, the death penalty, it may be assumed thét, if the

challenges for cause had not been available, the prosecutors

would have excluded the veniremen in.question by way of

peremptory challenge; that a prosesutor may constitution-

ally exercise his peremptory in a particular case

ig fret per (Swain v. Alabama, 380

: \ 5 ac ane B

mor cause ‘the veniremen in ‘question. did not affect the

Composition of the juries at petitioners’ trials and i is not

ground for vacating the death sentences. .

4 We do not agree. Witherspoon did not discuss the stioct |

Of, the existence of remaining peremptory challenges of the

* “prosecution, but the broad language of the opinion estab-

lishes without doubt ¢ that i in no case can a defendant be put

ee es to death’ where a veniréman was excused. for cause solely

on the ground he was. ‘conscientiously opposed to the death

penalty. According to our understanding of Witherspoon,

15 5 reversal pT automatically required a venireman was im-

properly excused for eguse on the basts of his opposition

to the death penalty. may be noted that in Witherspoon

a the defense had three remaining peremptory challenges

When it accepted the jury, but that fact was not viewed as

showing that the jurors who were impaneled were impar-

and that therefore no harm resulted from improperly

5 8 for cause some prospective jurorg. Furthermore,

in arguing that it may be assumed that the prosecutor .

would have used his peremptory. challenges to remove ve-

nirenién who under Witherspoon were improperly excused

for cause, the Attorney General bases his argument on a

concept of an impartial: jury that is in ‘gonflict with the

majority opinion in Witherspoon. Under the view of the

; Witherspoon. ‘majority a jury from which all “prospective. 1

: , Jarors opposed the death paiialty have been excluded is not

an impartial Ljury hut rather constitutes a Hanging jury,“

one that is Luncommonly willing to oondemn a man to die

and ene that eannot speak for the community” but can

"speak ik ‘nly for a distinct and dwindling minority.” We can-

a not’ engage in conjecture’ that tha prosecutor would have

used his peremptory challenges to exeuge all such jurors.

si : ; 8 te 1 *

=

ey „„

„„ Appeidio n

Witherspoon left undecided the question whether the ex-

"clusion of veniremen opposed to capital punishment neces-

sitates setting aside the judgment as to guilt. The opinion

noted (fn. 11, p. 517) that during the post-conviction pro-

coCeedings there under review no request was made to submit

* , evidence on the matter. The petitioner in that case pointed

do eertain materials, but the United States Supreme Court

stated, We simply reo conclude, either on the basis

1 of the record now before us)or as a matter of judicial notice,

* that the exclusion of jnrofs opposed to capital punishment

- ‘results in an unrepresentative jury on the issue of guilt.

or substantially increases the risk of conviction.” 4

In the instant cage petitioners made a motion for an evi:

dentiary hearing regarding their claim that the exclusion

of veniremen opposed to capital punishment results in an

8 *

| | 3 . hearing and ask that we reconsider the moter te: tis light

bad exeluded only those prospective jurors who stated that they

would not even consider. returning a death penalty “might still

sibility of accommodating both interests by means of a bifurcated

trial, using one jury to decide guilt and another to fix punishment.”

In Witherspoon one of the three dissenting justives similarly’

stated (fn. 1, 1 @ would not wholly foreclose the Possibility -

‘of a showi t certain restrictions on jury membership: imposed

because of jury participation in penalty determination produce a

jury which is not constitutionally constituted for the purpose of

determining. guilt. “ 3 14 wif

8

*

*

| Appendia B

of Witherapoon. They state that ioe hive arranged: with

Louis Harris and Associates to condyct a described study

and that the result of this study “is suggestive of the kind

of factual inquiry whose. product. ean be presented at an.

evidentiary hearing.” They further state that the Harris

study has not yet been finished and that preparation for

an evidentiary h¢aring will require “several more months

at the least.” t was stated by the New Jersey Supreme

Court in response to a request for the same type of evi-

dentiary hearing is applicable, namely, . . ve cannot

suspend the judicial process until projected stadies are

made at the behest of a litigant. This is especially true

when the studies are of a sociological or psychological na-

ture, for the prospect is remote that such studies will yield

views of human behavior of such incontestable, eternal

truth that existing constitutional doctrines in have to

8 retreat before them. Such studies hold too little promise

to ‘warrant what would amount to ah indeterminate stay

of the judicial process in a critical area.” (State 0? New

Jersey v. Forcella (July 1968) —— A.2d.-——.) It is thus

unnecessary to consider at this time vayious arguments of

the Attorney General in support of his position that vel

. toners ars not entitled to an evidentiary hearing. =

*

\

Penalty Discretion: Standards | i. ee

Petitioners further Sten that Penal Code sections 190

. and 190.1 violate the due process and equal protection

he

Lu of the United States Constitution because those

sections, allegedly without. specifying any standards, im- .

Poss on the trier of fact the duty of selecting the penalty.

It is. asserted that the absence of standards prevents a

‘defendant from knowing how to defend himself at the pen-

eh 85 e * the trier at fact to impose the death

1

9 5

Appendia B

penalty for arbitrary reasons, and precludes-a meaningful

review of the penalty impose e. e

Section 190, as enacted in 1872, specified the death pen-

alty as the Bie punishment fot first degree murder. By

the amendments of 1873-1874, the section vested in the trier

of fact discretion to fix the penalty at death or life impris-

onment, and from that time to the present date no amend-

ments to the section have modified or limited in any way

the absolute discretion of the trier of fact to determine

which of the two penalties to impose.“ Section 190.1, as

enacted in 1957 and amended in 1959, likewise does not

limit that discretion. be 55

This court has held répeatedly that under sections 190

and 190.1 the Legislature has entrusted te the absolute

discretion of the trier of fact the awesome decision between

. _ * Section 190 provides: Every person guilty of murder in the

first. degree shall suffer death, or confinement in ‘the state prison

for life, at the discretion of the court or jury trying the same, and

>

charged with-an offense for which the penalty is in the alternative

death or imprisonment for life shall first be determin without a

finding as to penalty. If such person has been foutid ty of an

enge punishable by life imprisonment or death, and

found sane on any plea of not guilty by reasqn of insanity, there 2

*

10b

Appendix B

life imprisonment and death for first damon — sas g.

People v. Polk, 63 Cal. 2d 443, 454 [cert. den. 384 U. S. 1010];

People v. Hines, 61 Cal. 2d 164, 168-169; People v. Purvis,

56 Cal.2d 93; 96; People v. Brice, 49 Cal. 2d 434, 437; People

v. Green, 47 Cal. 2d 209, 218), and that the law does not

prescribe or authorize the court to innovate any rule cir-

cumscribing the exercise of that discretion—that. the jury

need not find ameliorating circumstances to impose life im-

prisonment, nor need they find aggravating circumstances 7

to impose death (e.g. People v. Hamilton, 60 Cal.2d 105,

136; People v. Lane, 56 Cal.2d 773, 786; People v. Green,

supra, 47 Cal. 2d 209; People v. Friend, 47 Cal. 2d 749, 767).

An instruction directing the jury to fix the penalty at death.

unless they found extenuating circumstances was held con-

- trary to the statute and erroneous in People v. Green,

supra, 47 Cal. 2d 209, 217, which overruled a line of cases

originating with People v. Welch (1874) 49 Cal. 174, that

approved such an instruction.

Although the jury has absolute 8 in in

any e gourd of arbitrary action. In disposing Of a de-

fendantꝰs motion for a new trial, the trial judge h

duty to review the evidence to determine whether in his

which penalty to impose, safeguards exist to protect of a

independent judgment the weight of the evidence supports

the jury’s verdict, and if he decides-it does not, he has the

power to reduce the periatty to life imprisonment. (Pen.

Code, 51181, subd. 7; People v. Hill, 66 Cal.2d 536, 567-568

leert. den. 389 U.S. 1009]; People v. Love, supra, 6 Cal.2d

720, 727-729 ; People v. Moore; 53 Cal. 2d 451, 454.) In addi-

. tion, the Governor has the power to grant a pardon or

commutation. (Cal. Const., art. V, 513; Pen. Code, 54800

et sey.) This court, however, has consistently and repeat-

edly held that it has no power to substitute its judgment vie

" Compe menage

the

1 ny

Appendia B

as to choice of penalty for that ‘of the trier of fact. (Eg. |

People v. Lookadoo;.66 Cal.2d 307, 327; People v. Mitchell,

63 .Cal.2d 805, 821 [cert. den. 384 U.S. 1007]; People v.

Howk, 56 Cal.2d 687, 699-701; People v. Monk, 56 Cal. d

288, 300; People v. Rittger, 54 Cal.2d 720, 734-735; People PA

v. Cash, 52-Cal.2d 841, 845; People v. Linden, 52 Cal.2d J,

26 [cert. den. 364 U.S. 849]; People v. Green, supra, 47

Cal.2d 209, 235; People v. Harrison, 41 Cal. 2d 276, 219;

People v. Dessauer, 38 Cal. 2d 547, 555 [cert. den. 344 U.S. .

858] ; People v. Thomas, 37 Cal.2d 74, 77-78; People v. Odle,

37 Cal. 2d 52, 58; People v. Danielly, 33 Cal. 2d 362, 383

‘2 [cert. den. 337 U.S. 919]; People v. Tuthill, 32 Cal. 2d 819;

| 827.) or \ a

The gonstitutionality of sections 190 and 190.1, as con-

strued by this court, has been upheld. Repeated previous

attacks upon one or both of the sections on the ground that

their failure to provide standards rendered them unconsti- .

tutional or impermissibly vague or a violation of due proc-

ess consistently have been rejected. (E.g. People v. Hill,

supra, 66 Cal.2d 536, 568-569 [cert. den. £89 U.S. 993];

People v. Seiterle, 65 Cal.2d 333, 340 [cert. den. 387 US.

912]; People v. Mason, 54 Cal.2d 164, 169.) Es

he auggestion that the previous decisions of this court assumed”

that constitutional doctrines applicable to statutes regulating con-

duct did not govern statutes prescribing penalties is devoid of merit.

Not only in Hill, Seiterle, and Mason, but in other cases involving

various constitutional attacks on penalty ‘statutes we have not as-

sumed constitutional doctrines were inapplicable but rather have

held that the statutes complied with the Constitution and have

rejected the attacks on their merits, (E.g. People v. Turville, 51

Cal.2d 620, 638; In re Watkins, 64 Cal.24 866, 869-870.) Nor is

reexamination of Hill, Seiterle, and Mason required by the state -

ment in Witherspoon that It should be understood that much more

is involved here than a simple determination of sentence.” Mani-

kestly at the time of our cited cases we were fully ‘aware of what

was there involved. 7 r : f eo i

*

12b

Appendiæ B |

ts F jurisdictions courts have Ukawise pasested claims |

25 that due process or equal protection was violated by stat-

utes vesting in the trier of fact unguided diseretion in the

x choice between: ‘the penalties of death and life imprison- ö

ment. (Maaqoell v. Bishop, 398 F.2d 138, 148-150; In re

Erna Petifton, 294 F. 2d 556, 560.561 Loert den. 268 U. 8.

9171; State v. Walters (Conn.) 138k. 2d 786, 792-794 Lapp.

dism. and cert. den. 358 U.S. 46]; State v. Latham (Kan.)

375 P.2d 788, 796-799 [cert. den. 373 U.S. 919] ; Chatterton

v. Dutton (Ga.) 154 8. E. 2d 213, 215 [cert. den. 389 U.S.

914]; State v. Forcella, supra, (N.J.) ——-A2d ——; State

v. Johnson (N. J.) 168 A.2d 1, 10-11 [app. dism. “for want

of a substantial federal question,” 368 U.S. 145, cert. den.

368 U.S. 933]; see also Ex Parte Sullivan, 83 F. 2d 796, 798.)

The stätutes in State v. Latham, supra, and Eæ Parte

Sullivan, supra, are similar in form to our sections 190 and

190.1. In the other out-of-state cases the statates specify

that the penalty for first degree murder shall be death

unless the jury recommends life imprisonment. It has been

suggested that this difference has constitutional significance

because such statutes empower the jury to mitigate the

death penalty whereas under our statutes the jury selects

between two alternative penalties neither of which is given

preference by the Legislature (see People v. Green, supra,

47 Cal. 2d 209, 218). In effect, however, both forms confer

unguided diséretion upon the jury as to the choice of pen-

alties and it would exalt form over substance to conclude.

that one violates due process and equal protection and the

_ other. does not. As we shall see, in one sense both ap-

3 proaches serve to mitigate capital punishment, and both

have been widely used throughout the United States (see

American Law Institute, Model Penal Code Tentative Draft

No. 9 — pp. 121-126; -Knoviton, Problems of Jury

*

13b

Appendix B

Discretion in Capital Cases (1958) 101 U-Pa.L.Rev. 1099,

1101-1103).

- Vesting in the trier of fact unguided discretion in the

—

_ choice between penalties for first degree murder has long

deen characteristic of the laws of the United States and

of many states. (See In re -Ernst’s Petition, supra, 294

N F. 2d 596, 560; see generally Knowlton, Problems of Jury

Discretion in Capital Cases, supra, 101 U. Pa.L. Rev. 1099,

;

1101-1103.) The Legislature, by entrusting to the absolute

discretion of the jury the decision between. life imprison-

ment and death has indicated its belief that jurors under-

stand the factors that are relevant to such a decision. |

(People v. Polk, supra, 63 Cal. 2d 443, 451.) b

It may be neither practicable nor desirable that any

rigid formula control a trier of fact in determining whether

to extend merey by imposing life imprisonment or to deny

294 F. 2d 556, 560.561; State v. Johnson, supra, 168 A. 2d

1, 10-11 ; Royal Commission on Capital Punishment 1949-

_ practicable and desirable to have such a formula it does

4

not follow that the Legislature’s failure to provide one

‘their right to be tried by a jury, réasoning. that » effect of the

provision was to needlessly penalize the asertion of the Fifth

— OF

Appendir BO 5

have as an objective the avoidance of “the more. drastic

alternative of mandatory capital punishment in every case.

In this sense, the selective death penalty procedtte estab- —

lished by the Federal Kidnapping Act [or California Penal

Code sections 190 and 190.1] may be viewed as ameliorating

the severity of the more extreme punishment that Con-

gress [or the state Legislature] | might have wished to

provide.“ ,

Tube discretion ‘conferred upon the pent jury is simi-

lar to that conferred on the trial court to punish certain

crimes as either felonies or misdemeanors. Many sections

of the Penal Code vest in the trial court discretion to sen-

tence defendants convicted of such crimes to state prison

or to jail, without mention of standards for exercise of

that discretion. (E.g. Pen. Code, 5517, 476a, 489, 496, 525.)

Such sections have been held not to violate due proces

equal protection. (In re Watkins, supra, 64 Cal. 2d

869-870; In re Rosencrantz, 211 Cal. 749, 750-751; People

v. Widener, 220 Call. App. 24 826, 830; cf. Smith v. Rhay,

254 F. 2d 306, 308; Daloai v. Rhay, 252 F. 2d 768, 770-771.)

In re -Watkins, supra, at page 870, states, ‘Since every

person charged with the offense has the same chance for

leniency as well as the same possibility of receiving the

maximum sentence, there is ‘nothing ene in the

statute.’ ” |

It has been 1 that the similarity . the

‘discretion conferred on a penalty jury to choose between

life imprisonment and death and the discretion conferred

on a trial court to sentence a defendart to state. prison or

to jail is only superficial because (1) the trial court, un-

- like the penalty jury, does not select between two legis-

latively. neutral alternative penalties; (2) the trial court’s

_ sentensing- discretion is eiroumsoribed by standards in-

u

: Appendia Bo ‘

herent in the penological regime of rehabilitation, whereas

the penalty: jury’s discretion is not so circumscribed;. (3)

the decision rendered by the trial-court is of less gravity

than that rendered by the penalty jury;,and (4) the trial

court’s discretion is not absolute since the defendant may

seek appellate review on the ground of. abuse of discretion,

whereas the penalty jury’s discretion is absolute.

The asserted distinctions are not persuasive. In both

cases the Legislature has prescribed the punishmients avail-

able; in both it has authorized a specified body to make a

choice within the legally prescribed limits. The fact that

a crime punishable as a felony or a misdemeanor is re-

garded as a felony unless and until the trial court im-

poses a misdemeanor sentence (Pen. Code, §17; People .

Banks, 53 Cal. 2d 370, 380-383; People v. Finley, 219 Cal.

App. 2d 330, 341) does not show that the Legislature pre-

fers a felony sentence to be imposed by the trial court.

Although the form of the choice by which the discretion

conferred is to be exercised differs, this difference does

not warrant contrary conclusions concerning the constitu-

tionality of the respective statutes.

A defendant's potential for rehabilitation is but one of

several factors the trial court coffSiders in determining ae

_ whether to sentence a defendant to jail or fo s prison.

The trial court also considers matters such the com-

munity’s. need for protectiof# (see People v. Smith, 259

AC. A. 923, 928), and no specific standard controls the

exercise of the trial court’s discretion. A defendant’s po-

tential for rehabilitation is similarly an ‘appropriate fac-

tor for the penalty jury to consider in determi oie

penalty to impose. (See People v. Morse, 60 C

647; sée also People v. Polk, supra, 63 Cal.2d 443, ey =

The trial court’s een Sst ee ET et

* .

— 4

, 16b

5 N Appendiæ B

that of the penalty jury, but both decisions involve grave

consequences to the individuals involved. And finally, al-

though the penalty jury has absolute discretion to deter-

mine which penalty to impose, such discretion, aa we have

seen, is absolute only in the first instance since the trial

judge in ruling on a motion for a new trial, has the power

to reduce the penalty to life imprisonment if in his in-

dependent judgment the weight of the evidence does not

support the death penalty. 4

It should also be noted that Witherspoon v. Illinois, -

supra, 391 U. S. 510, mentions lack of standards in sefect-

ihg between death and life imprisonment and gives no in-

timation that the procedure is therefore unconstitutional.‘

Reliance by petitioners upon Giaccio v. Pennsylvania,

382 U.S. 399, is misplaced. As we pointed out in People v.

Seiterle, supra, 65 Cal.2d 333, 340 (cert. den, 387 U.S. 912),

Giaccio is not contrary to the cited cases [which held

8190.1 constitutional]. Giaccio held that a statute. permit-

ting a jury to assess costs against an acquitted defendant

was constitutionally invalid because of vagueness and the

absence of any standards sufficient to enable defendants to

5 themselves — arbitrary and eee

- ae — states Gis p. p. 610 den by neither rule nor

standard, free % sel select or reject as it [sees] fit,’ a jury that must

choose between life imprisonment and capital punishment can do

little more—an@ must do nothing less—than express the conscience

of the community on the ultimate question of life and death,“

and footnote 15 reads in part“ IIIlinois] has deliberately made.

the death penalty. . . an optionah form of punishment which (the

jury remains free to select or a it 2 sor fit.’ [Citation.]

And one of the most important N ean perform in

making sucli a selection is to i, Cm eygel. ti

community values and the link without whiclr the .

— of eould — reflect’ the — a

24 ie 17 *

Appendtx B

imposition of costs. The court expressly stated in Giaccio

that ‘In so holding we intend to cast no doubt whatever

on the constitutionality of the settled practice of many

states to leave to juries finding defendants ‘guilty of a

crime the power to fix punishment within legally prescribed

limits.’, (382 U.S. at p. 405, fn. 8.)” (See also Macwell v.

Biahop, supra, 398 F. 2d 138, 149-150; State v. Forcella,

supra (N. J.) Bucs, 5 .

The instant case differs from Skinner v. Oklahoma, 316

U.S. 535, cited by petitioners. Skinner held that a statu-

tory classification requiring sterilization under specified

circumstances of persons convicted of larceny but not those

convicted of embezzlement was a violation of equal pro-

tection. The court stated in part (at p. 541) “When the

law lays an unequal hand on those who have committed

intrinsically the same quality of offense and sterilizes the

one and not the other, it has made as invidious a dis-

crimination as if it had selected a particular race or na-

tionality for oppressive treatment.” ‘Penal Code sections

190 and 190.1, however, do not contain an unconstitutional

classification, and, since under like circumstances every

person convicted of first degree murder has the same

chance for leniency as well as the same possibility of re-

ceiving the maximum sentence, there is nothing discrimina-

tory in the sections. ¢

There is, of course, a presumption . in favor of constitu-

tionality, and ‘the invalidity of a legislative act must be

clear before it can be declared unconstitutional. (Eye

Dog Foundation v. State Board of Guide Dogs for the

Blind, 67 Cal.2d 536, 549; Ratton v. La Free, 60 Cal. 2d

606, 609; In re Oregler, 56 Cal. 2d 309, 311.)

‘ie authority has been cited holding that statutes like

Penal Code ‘sections 190 and 190.1 Violate due r

„„ 2 * Are 3B . Pos

2 * : : : 92 *

ele besen For the: reasons 0 forth ‘above we

are satisfied that we should not der from ‘our =

jury a legislative function i in a manner t vio- fe

‘lates the section of the state Constitution providing 1

separation of powers (art. III, 61). It is argued that the

members of the jury have ‘been delegated legislative

powers because they must resolve basic policy questions

eee with regard to the type of punishment to be imposed, as :

0 opposed to the extent of punishment to be imposed. ‘That

Sales is said to be improper because the sections do

not contain standards sufficiently certain to preclude ar-

bitrary exercise of that power by. the jury, or to insure

a reasonable opportunity of securing redress by judicial

- review if that power is abused. The same oontentioaunn

with regard to a statute similar to ours was rejected by

the Supreme Court of Kansas in State v. Latham, supfa,

375 P.2d 788, 798: “The legislative power was :exercised

‘when’ the legislature’ fixed thé punishment for murder in

the first degree. The statute does uo more than empower

a jury, upon 4 consideration of all- the evidence and

the court's instructions, to assess extent of punish-

mant prescribed -beforehand in accor ) With the hei-

Bnonsness or grevity of the homicide. In performing that

Aduty, the jury in no sense exercises’ legislative power,”

„5% iG eh Oe sor power to

Mas gest ‘within degislatively . ‘fixed limits

6 ted: in several noncapital cases.

le: 5 Pryor, 17 — 147, 152; Ia re O'Shea, eee

: bee

1 CaL:App. 968 5723 8 iz.) 403 Pd

200; People v, Reid (IL) 72 N f 4u 612 fort den 992 2

WS. 776.) . |

Het Ong Or Unusual Punishment g er >

It is next contendtd that for various reasons the death

. penalty for first degree murder constitutes eruel and

unusual punishment in violation of the Eighth Amend-

ment of the United States Constitution and section 6, |

1 article I, of the California Constitution.“

1 Numerous cases have rejected claims that thé death

penalty for first degree murder constitutes eruel and un-

.. usual punishment per se. (E.g. Wikerson v. Utah, 99

„U.S. 130; People v. Thomas, 65 Cal. 2d 698, 708 [cert. den.

389 U. S. 868]; People v. Bashor, 48 Cal. 2d 763, 765; Peo-

_ ple v. Lazarus, 207 Cal. 507, 514; see Trop v. Dulles, 358

U.S. 86, 99 [plurality opinion]; 21 Am.Jur, 2d pp. 544-545,

553.555; 25 C. J. S., p. 555; 5 Wharton’s Criminal Law

. oe vend Procedure (1957) p. 494; Mosk, .The “Eighth Amend

„„ „ Rediscovered 1968) Loyola L.A. L. Rev., pp. 20.223

see also Francis v. Resweber, 329 . S. 459, 463-464 4

(plurality opinion.) SiN

. Petitioners’ urge us to reconsider the matter. They

: argue that the death penalty is cruel and unn gal punish-

ment because it. “inflicts the loss of life without commen-

: . surate justification.” They assert that life is a fundamental

ected that before the. 11115 may ‘restrict a fundamental

*

, ide Bighth Amendment of the United States Constitution pro

hibits “cruel and anusual punighment.” This amendment i 5 01

JC; Se ene. oe etre 2. Caerrae, MY. 8.

ee r

ne e eee

Or

2

a eee m 86

Gdaoingz und- that to show auch an interest the state must

establich that (1) the restriction imposed rationally‘ relates

to legitimate governmental objectives sought; (2) the

185 benefit to the public far*ottweighs the impairinent of the

Ae - senstitutional. richt, and (3). no alternative means less _-

| subversive of the constitutional richt are available. Peti-

is r e e the

2 : n famotions ot

ani 12 72 745), and. that isolation and eee

bean better be achieved by life imprisonment than. execu- ee

tion. They offer to establish at an evidentiary hearing

that

—— capsiogmenent. Petitioners cite cases applying

compelling interest test in contents other than the

the death penalty is not a more effective deterrent

5 - question of the validity of a statute imposing a penaltj f

fox a crime. (E. g. Sherbet > v. Verner, 874 U. S. 398, 406;

NAACP. v. Button, 471 U.S. 415, 488-444; Parrish v.

5 24 Ge er Commission, 66 Cal. 2d 260, 271.)

ae The denne of f penalties. for crime. is 2 legislative

: 2 will, pot, jv wa mains ‘the penalty

: is early. and. manifestly eruel. and unusual.” .

| (People. . Lanner, 3: Cal ad 279, 298; People v. Keller,

. 245, Cal.App.2d_ 711, 714-715.) In Trop y. Dulles, supra

ees eS) 0,8. 86, 99..(plurality opinion), which con-

.- -luded. that. denat ) for, wartime desertion con-

: et erte ‘and dne punishment within the

meanir i 1 b it. was. .

Ab — „ < a

man oak

Vy : 8 8

eee Mei si Whabecee:dheianges

ments may be against capitdl punishment, both an moral

eee Cee ae ones! of

han biden. sanpleyeid ene

unn ene ee Atria ened ee bee ber.

late the constitutional concept of eruelty ?“?“

. Petitioners further argue that the death penalty is cruel

and unusual in that it is imposed. without standards and ve

ean be imposed regardless of extenuating circumstances.

e eee eee f meg, ante ree

discussed. It seems clear that the death penalty, which

has been repeatedly upheld a t claims that it consti-

' tutes eruel and unusual panishment per ze, does not be-

come cruel or unusual as a result of the Legislatur s

vesting in the trier of fact disoretjpn to enger sc to

a convicted first degree murderer. =: *

In contending that the death penalty 0 Abet .

amici point to the ment in Trop v. Dulles) supra, 356

| US. 86, 101, that the Eighth Amendment nage draw its

meaning from the evolying standards of decency. that "mark

the progress of a maturing society.“ An ‘amicus curiae

brief also contends that the death penalty violates the

_ Kighth Amendment because it drives men mad - and to

suicide.“ In support of these contentions amici point to

Oourt No. 328445, and to various documents. The matters

pointed to do not disclose the percentage of prisoners ‘on

death row who during any recent period, as a result of

being under the death sentence, attempted. suicide. or be-

came insane. In any event, in a day. when the death penalty

Bein „%%% ͤ

ray - testimony. in Peo ple v. Thornton, Los Angeles Superior

ati tut ats onli Pe 3 tee frog v. Dulles,

eur 2 U.S. 86, 99 {plurality opinion ].) sae

elde Les chat under Penal Gode section: 3604 the death

| penalty is inflicted by the administration of “a lethal gas”

does · not render. the punishment cruel or unnsual. (People

V. Daugkerty, nnen 827

; reh, den. 346 U.S. 880].) »

“Stari erte x mae Gat the “ani ft

1,000 day wait death row and the attendant deteriora-

tion of p renders: the death penalty cruel and

unusual. To · aup the assertion of such anguish and

deterioration from books and: testimony in People 3

v. Thornton, a, Los Angeles Superior Court No.

328445, o set forth in an brief. A similar con-

= tention: rejected in Pec v. Chessman, 52 Cal.2d 467,

499.499 (cert. den. 361. U.S. 985; pet. for reh, den. 361

U.S. 941). There the defendant was detained pending

execution of sentence of death for more than 141 years

during which period various matters of which he com-

Plained were litigated. He contended that such confine-

ment constituted . crtel and unusual punishment. We

recognized that mental suffering undoubtedly attended his

detention, indicated that there had not been unreasonable

delay by California in the proceedings, concluded that

ewe e cruel or unusual punishment had not

‘Basie Due Process Not Violated.

Amiel next contédd that,’ . e ee os

tional prohibition against cruel and unusual punishment, cer

life i mental right pre ted from ‘state int .

ut 172 Fae of = is 7

ee They et a . ‘

3 5 24 322, 3863 People v. Ta n ‘supra, 3 Cal. 2d 279, 298;

e People v. Quilon, 245 Cal. App.

. 178 Cal App 2d 535, 536-537), and we will not nullify the

2 legislative judgment as to the appropriate penalties for

the heinous crime of first degree murder. It is for the

v (People u. Wade, 53 Cal.

629; People v. Olson,

Legislature und not this court to decide whether it is sound ae

publio police to empower the imposing of the death penalty.

Gee Robinso SNe a ae OS re :

Counsel For Indigent Defendimts.

. Petitioners further contend that the due. process and

— equal protection clauses of the United States Constitution

e eaonfer upon indigent defendants in oapital bases the right

d appointed counsel throughout thé’ period between the.

termination of their state appeals and. their tion:

They argue that the state must appoint counsel f such

| defendants to represent them with respect to appeals or

petitions for certiorari to the United States. Supreme Court,

‘habeas corpus petitions to federal courts, and applications

+ for executive clemency, and to institute and represent such

om: defendants ut sanity hearings ¢ ene adler Riemer

2 sections 3700 et seq

Petitioners had 1 N on appeal (People v. Gater eld,

supra, 65 Cal. 2d 752; People v. Anderson, supra, 64 Cal.

2d 633), and no.claim is made that they were denied their 8

richt to counsel at any stage prior thereto, Their argu-

ment is directed to the post. |

‘Tt is “andisputed that petitions for a were filed |

by 0 propria persona; that — were |

* VAC ;

Seo Se ane Sao me

be Sa ip W 1 72

. 2 & ie 2

Pee — * ® * f a

* oO a ty "

8 a “a3 2b *

— a 4

% AAS 2

ons in & federal sourt, he is otherwise unrepresented by -

"> eoiatael;. and that: Anderen is nen represented. for all

a purposes by an attorney. Tum court has determined that ö

the appointment of aes represent indigent defen-

b pital « pr ages between the ter-

best serve the cause of justice, evi

dants and this court.’ 2 ty

4 in the future in all such cases as a matter. of: ilicy.

In view of this policy no purpose wouls eter by

our giving further i ERE AA aims

: a matter of right. Suelf fer ves

ni

| amici, are 2 relevant to the n. mae in wege i

_ amendment to Penal Code

after the adjournment of the

. wmendment provide: "At the defendant: (in a capital se 2.

5 to represent him in any appeal the Supreme Court,

T

3

„

Pe

tao ick merit ere airs Ghat mayo aise

— wisdom’ of legislation: It is, of course, our duty to strie

down tmeonstitutional statutes, but we are not: entrusted

with their wisdom. The constitutionality of sections 190

ae eer

“properly so. ‘Petitioners were found’ guilty of the heinous

7% dma gr oral

Under the eompal on of Witherspoon v. de ee

391 U.. 510, the are granted as to the een.

The remittiturs issued in Crim. 10126, People v. err

and Crim: 9817 Pagple v. Anderson, ; ‘recalled and the

8 judgments imposing the death penalty reversed inso-—

far as they relate to the penalty. In all other respects they

are affirmed: Saterfield is remanded to the custody of the |

a e Sn Bw Gt Be Ct for ee aA

of the San Diego County itt Court kor mm. gas

N

2 e he Teme, salle

ara fee : | Pa 5.

Wis deres: bon) EERE

‘eho ER bs J

ah

—

— 0

—

oe. — by, Moab J.)

i i ofa’ ot ils 5

* * ears. 5 ney General ‘of California (2960 f

4), I frequei ated a personal belief in the social

i Wa ae . „ notably in testimony be-

8 fore Califorsa lgilative rnit in March 1060, N 5

185600, and April, 1963.

Niaturaſhy, therefore, I am ‘tempted by the invitation of

7 petitioners 10 join in jndidally terminating ‘this anachro-

Aistig penalty. However, to yield to my predilections would Ses

be to act, wilfully “in the sense of enforcing individual

views instead of speaking humbly as the voi of law by

which society presumably consents to be rul „(Frank-

kfurter, The Supreme Conrt in the Mirror of the ‘Justices

(4957) 105 U. Pa. L Rev. 781, 3%) 8⁸n pe

‘a jndge, I am bound to the law as.I find it to. be

eee I conclude

— tat Justice Burke has properly stated the current law of

: , California and of every other-American jurisdiction that

Wannen

eee 9 og

: I éoneur with the opinion of Justice Burke insofar ab it

hols’ that “Witherspoon v. Ilinois (1968) 391 U.8. 510,

requires that we set aside the penalty previously imposed

min che two ces now before 4s.’ I agree that indigent de-

„ femilants in capital casos diowld be entitled to appointed

| corhsel throughout the period betwéeni' thé’ termination of

their state appeals and their execution, I submit, however,

: - that sections 190 and 190 of the ‘Penal Céde of California

RR 85

>

45

eee nr e nie seatialtieas

tat eee to gad, e fury to ded hy «| |

one convicted ‘Capital: ‘defendant should dis and anothér

should. live. The California

The present \peti fas for habeas

Hurt ‘fot the rst time: to. conduet u Ynll-ecale inquiry

into the tutionlality of ration of the

in California. “ Although me Legielaturs

bears the responsibility for fixirig the penalty for a

ö given erima, we cannot avoid our own obligation to decide

8 ‘whether the present process of decreeing the penalty of

death conflicts. with the Constitution. ‘The hard task of

reaching such s decisien must be a judicial one; we can:

shit Vella Ode ne ee

other branch of government. a ng.

Two recent decisions of

Court, United, States v. J

and et ——

.

tectiön of the la prior decisions’ have ‘hssumed

that constitutional d applicable to statutes regu-

wi sel eo er

Stina

eee eee Ae 2 ‘bat emitted

Ait ‘yp tlassifeation: (580, e. g, In re Newbern (1960)

: 5 People: v. MeCaughan : (1957) 49 Cal. 2d

e ee infinity.

44 Jackson and Witherspoon the United States Supreme

©

—

.

p (1948) 32 Cal. 2d 71) but we sus-

i of the nente at: death by. statutes

Gourt for the first time adjudged the ‘constitutitnality

dere the procedure for imposition of the.death penalty in

itutional doctrines traditionally ‘applied to.

Bight, of ern

_ statutes -proscribing 0

- mination . process. gJackson and ‘Witherspoon, therefore

conduet or involving the guilt-deter-

require u to reject the distinction ‘implicit. in ‘our. prior :

ons ae ag the. death: penalty; progedure, on the

ra psi 2 differ A a —.—

BR notes significant 1 manner from guilt-determination proc-

of the death penalty bannot be

een the img

Se treated. as simply, another form of senteneing when it

— 5 involves, constitutional rights basie to procedural. fair-

Se ness... We ust therefore consider afresh the constitu

_ ¢ tionality. of. e of, thd death penalty. in

California in ligh io

Bie of cases holding |

b the dna eee 3 equal protection. clayges of the

Nr funda -

mental. rig P

N ot decision. decision. * * 2 ¥ rer

N N a United 2 nne Court + iat

mant doctrine: which thé court applied to ‘statutes tutes regü.

lating conduct, to nullify ‘the penalty provision of ‘the |

\ First Amendmeny The req

| broad" in their 3

unnecessar i in

b v. Button (1868), 271 U.S. Mis, 428 1

The Supreme Court: relied upon two First Amerdment: cass —

applying the “overbreadth” do

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