# Amicus Curiae Brief — Boykin v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0106%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 238 ## Text „ 1 — * 4 i * * * * ‘e 4 A a; . a“ oa S * * * 7. e — * — 5 — — a 7 4 — = a un “@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 * . > , — 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 „ 5 2 5 es 1 * e : * ‘ . . ‘ ’ as 7 8 * ee * . 4 « x 8 : 2 7 . + 5 : 5 N : ‘ ° . * . 8 8 2 0 5 5 . 8 ue) 4 0 i . a e * 5 ¥ 8 ‘ + * . ’ . 8 A we : at ‘ . * . . 8 . — i e . 10 2 * 5 = n \ j - ad : . 8 ( é . * * e 2 =" — . 22 -“ 2 — . - N —. > . 2 | 3 4 * ‘ - , ’ > ‘ * 8 . oe * 2 x 5 * — ‘ a „ 3 . \ 8 . i * v i 5 . > % 3 5 A ~ * e . * * * . r e 2 ‘ 8 : ” y 8 + . «ft a . * 0 9 0 rg 8 ; 0 3 i . . „ * = N — 5 cee hae ees . „ : 8 i g 8 8 — — — * U N — . > ; 0 8 ü „ * 1 2 * 4 ° 5 . 4 ~ = . * PS . 8 ; 5 3 i a AN 53 ea . 5 — 3 8 . 1 . — e ode * - & 8 és . * 72 ed ie . — * ve 8 — — 8 — 0 . — 5 she 7 33 * i ne ‘ — ; * . * * 5 . . 5 5 . 8 . * . * . — mp Ne > — — - py ~ 8 > . 9 . 7 oe N N 8 * * 8 3 . e 4 > * . . . * . 2 » ° . ie . . 2 — ‘ . — * ** . . „ * ‘ . — - . . — — é . ; 8 : ee 15 . : ar a bebt of the Amici Orisa’ — a . e sides Al eet „ eee 8 Questions Presented - us | e — BG xx: 11 5 3 Constitutional ang Staatory Provisions Involved fee gl = VG om 2 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. 0 : 25 5 8 ; be AS f 2 2 0 5 — TE 7 * K 224 1 * 32 7 3 AN 95 atts jh? 7s) 110 pee * 721 ay 1 12 — 2 22 3 Sr i in be — : 2 - my * : — © — 22 Sr r 7 77 2" 37 8 5 5 ° 3 er 3 ° * — r * 8 ‘ 4 ; 0 re pedis at 8 * — — ay. Opinions of the 83 Geert of {Californias ea, I 8 3 ; 1 B18 18 1 : 25 e Aaderiz h Tainws MD. Fla, No. 67-298-Civ-J . 9 8 eee wb. Pe WS 2 hav eves ® Brockhart v. Tunis, 84 U. 1 vei 14 Fee . iad 0 U8, . N „ Bis iA i 3 0 fas #4 . * = * . N ee a 1 , che v Fir Dairy Oo, 2% UB. 44 60h BRIS Sort gets © 9h Sere Ue 536 (56) oe pasa, 80 n d . 8 m „ ey bete bag c- e Set Oe 4 4861) —5—5— — oa 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 19 Hague ¥ LO, an v8. 496 (1989) — 2 1 <. Hamilton v. Alabama, 368 U.S. 32 age) - 555 5 é y 63 12. 9. ¢ Herndon v. Lowry, 201 U. 242 (1987), 5 Higgs v. a 8 iim . Nas, ND. du, ue rt — 3 un re den 507 U8. 1 (U Ini ro Kenimier, 136 U. 496 (890). — 2 — (2 -, Toknson . ‘Virginia, or. ‘1968, ‘No. in i 88% ° “5 | 735 ee eee ee : cs 2 i 3 8 . t x 7 * 25 : 3 f . . he : 7 * . » + a 4 = — yp =z g — Kerr eek vs 156 meri Uae, (1801) — ee Keren. . ae eee 8 : 250 5 (1962) = 5 2 6 * Ls i« — 1 v. „ ue 71 US. cis d 3), 7 nnn "3 Syst 4 Niemotho dnss 340 U.S: 268 ( oY) 8 2 N 0 4 . ae , ° — eee. et 2 ae SA ae 9 US 18 (ET) — — ee ; 8 * N * 25 * N l 1 . “ 0 ws 23 au N . N 1 2 7 5 > eet . ‘ a : — * A 8 Aan BE, ROR: a See „Ber, 5 — , Nex crab: — — et 955 besen. Alben, 2 US. 4 (198) — e — 5 We United Staton, 201 1.24856 (an Cir b. \ “ae Waren eee = „ „ et oe Chee V4 — oe - Skinner v. cabs ta OB 58 04% Dad | Smith v. ‘Cahoon, 283 U.S. 552 (1931) — ei . 86 U8. 608 (iSery 222 ano 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) * eren v. ete pe we ol — 1 1 weg i . en e N 5 7 5 13 1 } 2 ö ante States v. iat $90 Us 704968) Zs) 1890 weg at Main Pd e . 2 (1988) eee ak aba) 55 . 118 ef gy 5 i Pa fey, “Von Molt v. Gillies, 2 08. ede — aoe sat PAs | Waaler v. Johnston, 816 Us. 101 n * „ e f — 8 5 9m oie Sn ees | 1 3 Aer pO ‘ 0 eee Fee sous (1968). 215 — 3 2 e (194) — 1 ae . . 2 2. ete + a ; r ( 2 ay 2 ai ‘ 3 * 5 f *. ö be tA 1 ee re 4 4 4 4 é 5 * * "Ve te 2 * 0 . b a : g 22 . pa : ; ‘ 25 4 Be 2 1 Oey a a Viale EA * tah 2 25 * 1 3 ee - 7 — 7 | 7 4 * . 7 I Ann Sts hb 8 (ih rd ee e 3 = nd. Anh, Stat. $10-4101 (1966) wpe SD 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 he. Bev. 2 e 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 age = —) ; 8 : * — 0 2 , 1 : 4 1 — 5 * ry 2. - | — 0 . 1 te 4 . } * 5 — To } 32 2 1 — é * — — — ae —— * 1 se " ett x. * hg ‘ - — * d, du, ak 148-198) — 9 1 ; . 4 et FSGS ish . ; 1 7 ‘ A ; iy VE 8 5 2 e DADE Oh le ee ee eee sm Die Nen. 9 ode / . fe J Bapp. 12 2) Heat 4 Be, Utah Code. Ana, §§76-813, (1968) ian i 4 aay V Va-ode Asn. 8.0 (1960) - es aie Laat hin, ee a _ Yo Blak le. ft. $609, (1988)... aoe wb Rad? Ce Gd ais dm he ee V. ve Gold ln Ann! 50.212 Salle — 8, 00 Wis, Stat. Ann, $943.32 (1968) - 59, c Wyo: Siem Re 2 — 2 25 Wye. Bint Any ae e inane sd ste) (1864) os artnet Tate) oy, 2 1.80 $2055: (1964): 2 Bumm enge r . Ne „ tek. Aue! “The Problem’ be be dees Ponty een. ; 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 alta : — ; oe 5 2 e ee 7 7 . ares ee ae ? 80 . 4 s 2 e = * —— — 7 * agi :* Wises — 2 25 hd . os: ae: : -. > 5 . . | Garfinkel, Research Note on falar and. dard ae ; 8 . . 8 : é ‘ : : — 1 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 ** e eee e (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 “++ 1 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. * 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 * —— yy eee. — 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: seuss eis oar bn Gi > = P 4 rT R. ae 2 — er oe ‘Sin, ip nee dof Copa Pans a sap 5 Sellin, Capital Punishment (1967) — 4 i 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 ————ů — oe . „ 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 e — ee. Tae Sees = 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 re 7 y rat esis GOT ‘ = 7 a ts * 7 ; : . 2 5 z 2 a MLS te n 27 28 4 rr i e e ‘ 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 “! 1 hel et — of 4 . e 114 ee ae ee , — V 5 e has 44 . (6 Me view objects’ of capital sol dette. tl Our 2 li 1 0 4 r oe. 1 2 * ; 1 eximinal . 0 15 Se 5 4 & 0 oy © “i 2 a K ; on . like-foot:the-stendardeof from the minimuin 4 2 „ , » a “4 we DM Ve Pye Pes, ag nee e « =» 7 * ° un his, 52 M Lat 6 ” Pits 0 5 * Cee 1 i 83 7 ~ J 13 * 4 Ss =. 5 * : “ . Dn em . 5 7 7 * 2 „ 0 n 2 et f ‘ — — * l 7 N = * x 7 * > ‘ n * a n 5 — 1 5 4 * vee — 3 Dr 2 — 4 " ve ¢ . — 2 * “| - » ee it + — Be - . N 7 te, . © . ¢ : : c ' 2 A. g * 2 3 +s . : 7 he : ne ¢ : & 8 ee : ‘ sda - . : : * . . a — e 5 > — 28 , * : * 3 5 ** . * Ms * — 8 1 2 N a : ° 2 2 4 . * at, N . * * Hl 7 5 é 2 U . 1 7 * ry ew 1 2 1 * * se 221 rigs TL. * e Nor tha 8 bar 9 cx 4 „„ ble n 4, — 2 = 5 n 72 ooh E e “i “wit 72 1 4 bumon . 1 F 1 leas do eer iu 445 FE . 1177 a es 4 * wer: ore as Age, ae peut 42 4 4 2 at a “on 1 « 1 1 a 4 4 3 905 210 f ne e 4 n 2 5 ; * 2 455 aie 25 A 2 az: mie 0. tate al & A a et . - : 2 2 e 1 . at on . 8 . Fa ‘2 cad wt} “Ry baie Ww. st Nagle — Pas g 3 ied 0 Pr ; * on ' g Pad * A 4 4 2 . . . 2 3 f 7 1 . J 8 I 1 . 9 . N 4 7 * * „ 4 ‘i ‘ 1 . | oP the Dus Pi pe ie * 2 7 223 * 1 32 ; 7 10 ; Due Fi 1 4 ** . 7 : 1 *. d — 3 * 7 ; * — 8 * 1 BA * a 4 — ot) 1 oes F * 4 0 or E 4 ' 2 1 1 2 e 1 * l N dee Ae piven Ke ry Gacrtmtnatiiig ‘riaiatly + too. give . 7 N y * * * Ess ‘ 7 1 , : é Oe é „ * „„ 1 e e ee eee Peonmious, mentally deficient, unrepresented and therefore * = 1 f tas, 1 172 ae & : . a 348? «+ 77) & “aN 944 of 2s “ 1 8 2 = —— 7 7 . * ¥ * * > * > 4 ra , a4 / eee va c +s b . —— 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]; [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0106%3A2. Public record. Not legal advice.