* * * * * * * * * * lee lfp/ss 1/25/72 DEATH PENALTY CASES: IN RE KEMMLER, 136 U.S. 436 (1889)

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1 lee lfp/ss 1/25/72 DEATH PENALTY CASES: IN RE KEMMLER, 136 U.S. 436 (1889) This was heard on an application for writ of error from a judgment from the Supreme Court of New York. The question was whether electrocution, then newly prescribed by New York law, was cruel and unusual in violation of the due process clause of the Fourteenth Amendment. The Constitution of New York contained both due process and cruel and unusual punishment clauses comparable to the federal Constitution. In denying the writ of error (and thereby in effect affirming Fuller said: New York), the Supreme Court s peaking through Chief "This Declaration of Rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question as used in the constitution of the State of New York was intended particularly to operate upon the legislature of the State, to whose control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition. And we think this e qhally true of the Eighth Amendment, in its application to Congress. 0 * * * * * "Punishments are cruel when they involve torture or a lingering dealth; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. * * * * *

2 "The enactment of this statute was in itself within the legitimate sphere of the legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence; and the legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the State has thereby abridged the privileges or immunities of the petitio er, or deprived him of due process of law."(!' j My Connnent It Gmuld be argued that this case involved only "due process" although the opinion of the Court treated it as if the "cruel and unusual" clause was a part of due process. It is clear that the Court considered the Eighth Amendment language to apply only where "the punishment prescribed (is) manifestly cruel and unusual, (such) as burning at the stake, crucifixion, breaking on the wheel, or the like... " (p. 446). In the second passage quoted above the Court referred to punishments that "involve torture or a lingering death", and implies something "inhuman and barbarous, something more than the mere extinguishment of life". The Court had to hold - necessarily - that extinguishment of life was not cruel and unusual punishment. The last paragraph quoted above is significant in its emphasis of the "legitimate sphere of the legislative power of the state". Justices Concurring The opinion was unanimous, written Chief Justice Fuller, and concurred in by Justices Miller, Field, Bradley, Harlan, Gray, Blatchford, Lamar and Brewer.

3 1/25/72 lee lfp/ss DEATH PENALTY CASES Pervear v. Commonwealth, 5 Wall 475 (1866) The Eighth Amendment was invoked, unsuccessfully, by a defendant who had been convicted in a state court of violating a law regulating the sale and possession of intoxicating liquors. The Court held that the Eighth restricted the federal government and not the states, but went on to say - by dictum - that the "fines and penalties" imposed by Massachusetts - involved in the case - would not violate the Eighth as they were not cruel and unusual. The case has no relevancy to the present one.

4 l/25i72 lee lfp/ ss DEATH PENALTY CASES WILKINSON v. UTAH, 99 U.S. 130 (1878) A territorial law of Utah provides, with respect to one convicted of first degree murder, that he shall "suffer death by being shot, hung or beheaded, as the court may direct, or as the convicted person may choose". This law was superseded by one which simply provided that the "convicted murder shall suffer death". The issue in the case was whether the trial judge, following jury trial and conviction of first degree murder, could sentence the defendant to death by shooting. In affirming the judgment of the Supreme Court of the Territoty of Utah, an unanimous court - speaking through Justice Clifford - said: "Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite; sufficient to show that the punishment of shooting as a mode of executing the death penalty of murder in the first degree is not included in that category, within the meaning of that the Eighth Amendment." "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted; but it is safe to affirm that the punishment of torture, such as those mentioned by the commentator referred to, and all others referred in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution. Cooley, Constitutional Limitations (4th ed.) 408". --

5 2. My Connnent: It was assumed, as a matter of course, that the death penalty was appropriate for first degree murder. The only issues were whether the trial court had the power under Utah Territorial Laws to determine the method of capital punishment, and whether shooting was cruel and unusual. It is clear that the brief opinion that this Court considered the Eighth Amendment to be directed against "unnecessary cruelty" - such as some of the examples cited in the opinion and described as "atrocities" - ~ "where the prisoner was drawn or dragged to the place of execution... of where he was embowled alive, beheaded and quartered, and where 1 burning alive for a treason connnitted by a female". Participating Justices The opinion in Wilkinson v. Utah was written by Mr. Justice Clifford. It was unanimous, being concurred in by Chief Justice Waite, and Associate Justices Miller, Strong, Hunt, Swayne, Field, Bradley and Harlan.

6 l/25/j2 lee lfp/ss DEATH PENALTY CASES WEEMS v. UNITED STATES, 217 U.S. 349 (1910) Weems, a disbursing officer of a bureau of the Phillipine government, was convicted of falsifying accounts. Pursuant to a provision of the Phillipine Criminal Code (in existence at the time the Phillipine Islands were ceded to the United States and not thereafter changed when the Phillipines became a territory of the United States), Weems was sentenced to 15 years imprisonment "together with the accessories of Section 56 of the Penal Code." This Code required "hard and painful labor", with the prisoner require "always (to) carry a chain at the ankle hanging from the wrist"; and that he "shall receive no assistance whatsoever from without the institution". "Accessory penalties" also included "civil interdiction"; "perpetual absolute disqualification" and "subjection to surveillance during life". The Bill of Rights of the Phillipine Island included the cruel and unusual punishment clause. A majority of the Court (by Justice McKenna) held the statute and the penalty void. The opinion is too long to abstract. It contains (i) a detailed description of the "degradation" of the sentence (p. 366); (ii) a consideration of the definition of "cruel and unusual punishment", concluding that there is no exact definition (368 ~ ~.); (iii) a discussion of previous Eighth Amendment cases in this court (Pervear v. Commonwealth, 5 Wall 475; Wilkerson v. Utah, 99 U.S. 130; In re Kemmler, 136 U.S. 436, 447; O'Neill v. Vermont, 144 U.S question raised but not decided ; (iv) a discussion of what the law writers have said (Storey and Cooley,

7 2. 371, 37~; (v) a review of some state cases (375 et seq.*). When Justice McKenna concluded his review of the authorities, he said among other things: "There are degrees of homicide that are not punished so severely (as this offense in the Phillipines)." Judge McKenna then compared penalties under various other penal statutes in the Phillipines and in the United States, and concluded: "This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual... The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, serverity, its repetition is prevented, and hope is given for the reformation of the criminal." and Dissenting Opinion by Justices White/Holmes In a very long dissent, concurred in by Holmes, Justice White reviewed extensively the history of the Eighth Amendment - the English history, the early.._... history in this country and early state court decisions. He considers the words"cruel"and "unusual" to be disjunctive rather than conjunctive. At p. 409 he discusses the meaning of "unusual". The basic point of the White-Holmes dissent was, however, that the Eighth Amendment did not "endow the courts with the power to review the decision of the law-making body in prescribing sentence of imprisonment for crime". p *I should read the Virginia case of Aldridge v. Commonwealth, 2 Va. Cs. 447, in which the Virginia court said that the Virginia Bill of Rights was "never designed to control the legislative right to determine ad libitum upon the adequacy of punishment, but is merely applicable to the mode of punishment".

8 - 3. My Connnents: Weems does represent a holding by the Court - perhaps departing from the precedents of earlier state cases , that courts review the severity of the punishment in addition merely to determining whether its "method" is cruel and unusual. The technique employed by the majority opinion was to compare penalties imposed by the Congress and by state legislatures for similar offenses and particularly for offenses which obviously were far more serious than the relatively minor offense of "falsifying a public and official document". ~ c There was not the slightest intimation that the death sentence was cruel and unusual. In discussing Wilkinson v. Utah, Justice McKenna said: "The Court pointed out that death was an usual punishment for murder that it prevailed in the territory for many years, and was inflicted by shooting, also that that mode of execution was usual under military law. " Justice McKenna also quoted from In re Kemmler to the effect that "the punishment of death is not cruel within the meaning of that word as used in the Constitution". Thus, Weems can be cited as recognizing expressly, by dict( um, the validity of the death sentence. *Weems was decided by only seven Justices, Justice Moody being absent on account of sickness and Justice Lurton not having taken his seat. Brewer died before the opinion was delivered. Justice McKenna was joined by Chief Justice Fuller and Justices Harlan and Day. White and Holmes dissented.

9 1/25/72 lee lfp/ss DEATH CASES TROP v. DULLES, 356 U.S. 86 (1957) A soldier who deserted for "less than a day" was convicted by a court-martial, and sentenced to dishonorable discharge from the service, plus three years at hard labor. Under Section 40l(g) of the Nationality Act of 1940, the defendant also lost his citizenship by reason of the dishonorable discharge for wartime desertion. In an opinion by Chief Justice Warren (joined by Black, Douglas and Whittaker -with Brennan concurring in the result), the punishment was held to violate the Eighth Amendment. The essence of CJ Warren's opinion on this issue is as follows: "Section 40l(g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment. Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment. "At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment - and < they are forceful - the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the

10 2. Government to devise any punishment short of death within the limit of its imagination. "The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. \ Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. The Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surpr1s1ng. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." My Comments: 1. The Court stated that: "Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime." This clearly indicates that the Court did not base its opinion on the view that the penalty was "excessive" - although some of the law review writers cite Trop as having been decided on the issue of "excessiveness". 2. The Court's statement of "the question" is interesting: "The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment." (p. 99).

11 r'j~ The Court then goes on to say that the exact scope of the phrase has not been "detailed by this Court". But "the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice.. The basic concept... is nothing less than the dignity of man." But in the very next sentence, the Court recognized that capital punishment is a "traditional penalty": sl "Finds, imprisonment and even execution may be imposed ( depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect." Thus, it is clear that the Court was concerned with the method or technique of punishment, and considered deprivation of citizenship - not to be excessive - but to be a nontraditional technique or method of punishment. Yet, in the same paragraph- in referring to Weems v. U.S., the Court characterized the penalty there as "cruel in its excessiveness and unusual in its character". Thus, the opinion does have some ambiguity as to whether excessiveness alone is the test. (Note: My tentative view is that "excessiveness" may be a basis for invalidating a penalty,~ ~ suppose a statute imposed a life sentence for some minor crime. The excessiveness argument would apply to the death sentence in many conceivable situations. But it can hardly apply to the death sentence in a murder case, which have been the traditional situations for its application. Thus, unless history, tradition and precedent are to be discarded, the issue in a first degree murder case is not whether the death sentence is excessive; rather, whether the method of its implementation is cruel and unusual.

12 4. 3. The language with respect to "evolving standards of decendy" is in the same paragraph in which the Court expressly recognized that "execution" is a "traditional penalty". 4. The Court recognized in two separate places the validity of the death penalty (p. 99) where it said that "the death penalty has been employed throughout our history, and... cannot be said to violate the Constitutional concept of cruelty (p. 99); and on the next page - and in a different paragraph - where execution was deemed to be a "traditional penalty" (p. 100).

13 DEATH PENALTY CASES Concurring Opinion - Justice Brennan - Trop v. Dulles After speaking of the advantages of "rehabilitation" as a goal of penal laws, Mr. Justice Brennan said: "Of course rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrence of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution." 356 U.S. 86, 111 -

14 lfp/ss lee 1/25/72 DEATH PENALTY CASES ROBINSON v. CALIFORNIA, 370 U.S. 660 (1961) A California statute, under --- which the defendant was convicted of being "addicted to the use of narcotics" was held violative of the Eighth ~ and Fourteenth Amendments. The Court's opinion turned exclusively on the view that addicition to narcotics is a "status or condition and not an act". :-- There is no relevant discussion - indeed no mention of capital punishment or the history of the Eighth - in the majority opinion, written by Justice Stewart. Justice Douglas, in a concurring opinion, said: "The corrnnand of the Eighth Amendment, banning 'cruel and unusual punishments,' stems from the Bill of Rights of See Francis v. Resweber, 329 U.S. 459, 463. And it is applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Ibid. "The historic punishments that were cruel and unusual included 'burning at the stake, crucifixion, breaking on the wheel' (In re Kerrnnler, 136 U.S. 436, 446), quartering, the rack and thumbscrew (see Chambers v. Florida, 309 U.S. 227, 237), and in some circumstances even solitary confinement (see Medley, 134 U.S. 160, ). "The question presented in the earlier cases concerned the degree of severity with which a particular offense was punished or the element of cruelty present. A punishment out of all proportion to the offense may bring it within the bank against 'cruel and unusual punishments.' See O'Neil v. Vermont, 144 U.S. 323, 331. So may the cruelty of the method of punishment, as, for example, disemboweling a person alive. See Wilkerson v. Utah, 99 U.S. 130, 135. But the principle that would deny power to exact capital I punishment for a petty crime would also deny power to punish a person by fine or imprisonment for being sick.

15 2. "The Eighth Amendment expresses the revulsion of civilized man against barbarous acts - the 'cry of horror' against man's inhumanity to his fellow man. See O'Neil v. Vermont, supra, at 340 (dissenting opinion); Francis v. Resweber, supra, at 473 (dissenting opinion). My Connnent The majority opinion, based on "status" is essentially innnaterial in these death cases. Justice Douglas' concurring opinion contains no criticism of capital punishment. By implication, it could be said to have recognized it -when he said: only in the result. "But the principle that would deny power to exact capital punishment for a petty crime would affiodeny power to punish a person for being sick." Justices Clark and White dissented, and Justice Harlan concurred '.

16 1/26/72 lee lfp/ss DEATH PENALTY CASES O'NEIL y. VERMONT, 144 u.s 323 (1892) O'Neil was sentenced under Vermont laws regulating intoxicating liquors - for offenses thereof - to imprisonment at hard labor for a term -- of 19,914 days, or 54 years and 204 days. A majority of the Court dismissed the writ of error for want of jurisdiction. The Eighth Amendment was not deemed applicable to the states, and it was found that the record presented no federal question. Justice Field, in an elaborate and lengthy dissent, held that,..._._. the punishment was cruel and unusual. He seemed to rely primarily on the 14th Amendment provision with respect to abriding "privileges or immunities". Field said: "The inhibition (of the Eighth Amendment) is directed, 1 not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses c arge. ' p. 34o Justice Field also said, near the beginning of his opinion: "Had he (the accused) been found guilty of burglary or highway robbery, he would have received less punishment than for the offenses of which he was guilty. It was six times as great as any court in Vermont could have imposed for manslaughter, forgery or perjury. It was which, in itsseverity, considering the offenses of which he was convicted, may justly be termed both unusual and cruel" (p. 339).

17 2. My Connnents It is interesting to note Justice Field's comparison of penalties which may be imposed for other o f fenses. He used this as an objective standard for determining whether it was crue l and unusual. This, as I recall, was similar to the approach in Weems (the Phillipine case) where the Court compared the sentence with sentences in various other types of crimes. (I should check this). Thus, the objective standards used in these two opinions (Field in O'Neil) and the Court in Weems, is what punishment are authorized either for lesser crimes or for similar crimes in other jurisdictions. This is to be compared with the "objective criteria" relied upon in the present cases. In addition to Justice Field's dissent, Justice Harlan -with Brewer concurring - also dissented, holding that the Fourteenth Amendment provides "innnunity from cruel and unusual punishment".

18 1/27/72 lee lfp/ss DEATH PENALTY CASES FRANCIS v. RESWEBER, 329 U.S. 459 (1947) Petitioner, convicted of murder in Louisiana and sentenced to be electrocuted, survived the initial attempt to electrocute him. He filed writs of habeas corpus and prohibition to prevent a second attempt at execution - claiming, double jeopardy, violation of the Eighth, and the Fourteenth Amendments. The plurality opinion was written by Justice Reed, concurred in by Chief Justice Vinson, and Justices Black and Jackson. It affirmed the Supreme Court of Louisiana, denying the relief sought. On the Eighth Amendment question, Mr. Justice Reed's opinion said: "The case before us does not call for an examination into any punishments except that of death." (p. 463) "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the wethod of punishment, not the necessary suffering involved in any method employed to extinguish life humanely". (p. 464) "We find nothing in what took place here which amounts to cruel and unusual punishment in the constitutional sense". (p. 463) The plurality opinion assumed "without so deciding" that a violation of the Eighth Amendment would also be a violation of the due process clause of the Fourteenth. Mr. Justice Frankfurter, concurred in affirming the Louisiana court, but wrote at some length to avoid even assumption of the incorporation

19 ~~ -1. v.. ~..-:, of the Eighth Amendment. He predicated his decision on the due process clause as embodying the "concept of ordered liberty". Frankfurter said: In addressing the cruel and unusual punishment point, Justice "Again, a state may be found to deny a person due process by treating even one guilty of crime in a manner that violates standards of decency more or less universally accepted though not when it treats him by a mode about which opinion is fairly divided." (p. 469, 470) "I cannot bring myself to believe that for Louisiana to i e ave to executive clemency, rather than to require, mitigation of a sentence of death duly pronounced upon conviction for murder because a first attempt to carry it out was an innocent misadventure, offends a principle of justice 'rooted in the traditions and conscience of our people.' See Snyder v. Massachusetts, supra, at 105. Short of the compulsion of such a principle, this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh. One must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. Strongly drawn as I am to some of the sentiments expressed by my brother Burton, I cannot rid myself of the conviction that were I to hold that Louisiana would transgress the Due Process Clause if the State were allowed, in the precise circumstances before us, to carry out the death sentence, I would be enforcing my private view rather than that consensus of society's opinion which, for purposes of due process, is the standard enjoined by the Constitution." (p ) Justice Burton, with whom Justices Douglas, Murphy and Rutledge joined, filed a dissenting opinion in which they held that a second electrocution would offend the due process clause. The dissenting opinion went on to say: "The capital case before us presents an instance of the violation of constitutional due process that is more

20 3. My Comments clear than would be presented by many lesser punishments prohibited by the Eighth Amendment or its state counterparts. Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people. Abhorrence of the cruelty of ancient forms of capital punishment has increased steadily until today, some states have prohibited capital punishment altogether. It is unthinkable that any state legi slature in modern times would enact a statute expressly authorizing capital punishment by repeated applications of an e l ectric current separated by intervals of days or hours until finally death shall result. The Legislature of Louisiana did not do so. The Supreme Court of Louisiana did not say that it did. The Supreme Court of Louisiana said merely that the pending petitions for relief in this case presented an executive rather than a judicial question and, by that mistake of law, it precluded itself from discussing the constitutional issue before us." (p ) * * * * * This is an interesting case, it involved a direct holding by five members of the Court that a second electrocution did not violate the due process clause of the Fourteenth Amendment. Four of the Justices assumed incorporation of the Eighth into the Fourteenth, HHX with Mr. Justice Frankfurter not making that assumption. The four minority Justices - including Justice Douglas - held the second electrocution would violate due process, and their opinion makes it clear it would also violate Eighth Amendment standards. But the minority opinion is equally clear that the death sentence is violative of neither. After noting that some states have "prohibited the capital punishment altogether", mar~ minority opinion stated flatly that: "Electrocution, when instantaneous, ~be inflicted by a state in conformity with due process. In re Kemmler,

21 U.S The all important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself." There was no hint in any of the opinions that the death sentence itself violates either the Eighth or the Fourteenth Amendments.

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23 lfp/ss lee 1/25/71 DEATH CASES Goldberg and Dershowitz 83 Harvard Law Review 1769 This article enunciates "a set of principles by the which the Court has tested those punishments challenged as cruel and unusual". The authors argue that should the Court "for institutional reasons" decline to decide the issue, legislators and executives share the responsibility to make the constitutional determination that capital punishment violates the Eighth Amendment." - p This memorandum will include my notes on the above article: Executions Halted "For three years official executions have been halted pending the outcome (of the 'the great national debate"')- p prisoners on death row - p Legislative Abdication Legislative and executive policy makers seem to feel that their role is not to make their own constitutional interpretations, but to look to the courts". p Lower Court Cases In 1969 alone, courts in at least eight states upheld the constitutionality of capital punishment - footnote 6, p For the large number of lower federal court cases, see note 7, p

24 2. Precedent and Principled Decision Two familiar constraints which apply to judicial interpretation of the Constitution are those imposed "by respect for precedent" and "the \ requirement of principled decision making". p Precedent and established principle "are somewhat meager" under the Eighth Amendment clause. The Court "has not consistently and explicitly applied any one test ". p The clause has been substantially discussed - either by the Court or in dissent - "on only ten occasions". (footnote 17, p. 1777). Only three decisions since the adoption of the Bill of Rights have interferred with the Government's choice of punishments, and in only one of these were five Justices willing to invoke the clause" p. 1778, notes 18 and 19. Evolving Standards of Decency Relying on Trap v. Dulles, the authors describe the reference in Trap to "evolving standards of decency" as a "formula". They compare it to the "procedural due process doctrine" which sought to protect " principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". (The authors then go on to discuss the "subjectivity" of such a test, and Frankfurter and Cardozo's disapproval of subjective tests). But the authors come back to what they call the "formula" applicable to the Eighth Amendment, and say that there are objective standards - not purely subjective ones: "Most Supreme Court opinions (involving the Eighth Amendment) have emphasized at least one of three objective indicia of sentiment actually prevailing among civilized people: (i)

25 3. historic usage of particular punishments, statutory authorization in other jurisdictions, and general public opinion." p The authors admit that "if these three criteria of the prevailing standards of decency were the final test of constitutionality under the Eighth Amendment, the death penalty would probably survive constitutional scrutiny." p The authors recognize that "long usage" of the death penalty, its retention by 41 states and the federal government, and the support - according to the polls - of "about half of the public" tend to support the constitutionality of the Eighth Amendment. They argue, however, that "if the Eighth is to retain independent moral force, these tests... cannot be the final arbiters of constitutionality". - pp In Trop, dictum by four Justices said that "the death penalty has been employed throughout our history and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty". The authors argue that Robinson v. California, 370 U.S. 660 indicates "that the Court may now be ready to reject the approach underlying the Trop dictum". In Robinson, imprisonment for being a "narcotics addict" was held to violate the Eighth. p In Robinson, the Court said: "In light of contemporary human knowledge, a law which made a criminal offense of such a disease (drug addiction, mental illness or leprosy) would doubtless be universally thought to be an infliction of cruel and unusual punishment." The authors construe this as meaning that "the Court looked not to actual standards of decency prevailing in society, but to enlightened standards" - p

26 4. The authors then make the following interesting statement: "The Robinson approach to the evolving standards of decency is suggestive of the unconstitutionality of the death penalty. Were capital punishment, like criminal punishment of narcotic addiction, better understood, prevailing moral standards might well condemn it." p ''Degrading" and "Wantonly Imposed" The authors say that the Court has interpreted the clause to "forbid punishments which are 'degrading' in their severity and 'wantonly imposed'" (no cases are cited for this statement) - p The authors then undertake, by analysi s of Court decisions, to support their position. They state that the two earliest Supreme Court decisions on the subject (Wilkinson v. Utah and In re Kemmler) sustained "shooting" arrl "electrocution" as being relatively painless means of execution, the Court rejecting means that might be regarded as "inhuman and barbarious". These decisions implicitly recognized the validity of the death penalty itself. They directed judicial scrutnity to the method - p (Note to LFP: I should read these cases, having i n mind, the distinction between "method" and the penalty itself.) The authors then cite Weems v. U.S., 217 U.S. 349 (1910), as representing an "expansion of the constitutional proscription beyond physical torture". There, a fifteen-year sentence at hard labor "in ankle chains" and with''lifetime civil disabilities", was held invalid where the crime was falsification of a public record in the Phillipines. The Court held the penalty to be unconstitutionally disproportionate to so minor a crime, but suggested also that the punishment was suspect under Eighth Amendment standards - p

27 5. (Note: It seems to me that the authors stretch Weems considerably. Weems did not hold that imprisonment is proscribed. It merely held that the length and method of imprisonment imposed (in chains) were invalid - another example of the "method" test.) The authors next rely on Trop - the one case in which the Court has declared a punishment to be cruel and unusual"without regard to the seriousness of the crime." There, expatriation - for one day's desertion was held to violate the Eighth. The Court, according to the authors emphasized "the sheer enormity of the punishment" - p An expatriate is subject to untold physical abuse, the Court said, and is also subjected to "a fate of ever increasing fear and distress". It is interesting to note that the authors recognize that Trop, as interpreted by them (and as expressed in Justice Brennan's concurring opinion) might be "extended" without knowing where "the extension would stop". They commented: "Life imprisonment, for example, destroys an individual's 'political existence' nearly as much as does expatriation; indeed, an expatriate out of prison clearly has far more opportunity to enjoy the advantages of a free society than inmate. Even if their levels of psychological distress could be reliably compared, it is not at all certain whose would be greater." p The authors argue, however, that there is a "latent" principle in the Trop decision which can limit its application - namely, the "sheer enormity of the punishment". p (Note: But the "sheer enormity" concept is subjective, and could apply to imprisonment for life or any lesser term. Thus, the reasoning of the concurring opinion in Trop would open the door to the same arguments

28 6. against imprisonment as those now made against the death sentence.) "Unusual" is Equated with Arbitrary and Irregular Imposition of Penalty The statistics on the death penalty from 1960 are cited - p It is stated, however; "Of course, the figures on actual executions are affected by current stays of execution and post conviction proceedings, and almost 500 individuals are now on death row". p It is still argued that the sentence is "disproportionately imposed" on the poor and on minority groups. This is called the "unstructured discretion" p. 1793, although one could say this about any system of justice administered by juries and hundreds of different courts. Disparity in sentencing is certainly not limited to the death sentence.

29 1/25/72 lee lfp/ss DEATH PENALTY CASES Granucci, "Nor Cruel and Unusual Punishments": The Original Meaning, 57 Calif. L. Rev. 839 This article attempts to demonstrate that the views of the framers of the Eighth Amendment were based on a misinterpretation of the English Bill of Rights. The article analyzes the position of the American framers, and then traces the legal developments which resulted in the English Bill of Rights of My notes on the article follow: Views of the American Framers On June 12, 1776, a Virginia convention adopted George Mason's Declaration of Rights, Section 9 of which prohibited infliction of "cruel and unusual punishments". The wording was a"verbatim copy of a prohibition in the English Bill of Rights of p Eight other states adopted the clause, and it became the Eighth Amendment in It became, in effect, "constitutional boilerplate" of the time. When the Virginia delegates met to consider the Constitution, Patrick Henry objected to the absence of a Bill of Rights - being fearful of the use of "tortures" and "barbarious" punishments. In ansering a statement that torture was not prohibited by the Virginia Constitution, George Mason responded as follows: "George Mason replied that the worthy gentleman was mistaken in his assertion that the Bill of Rights did not prohibit torture... the Bill of Rights provided that no cruel and

30 2. unusual punishment shall be inflicted; therefore torture was included in the prohibition." p. 842 (citing Elliot Debates at 452). Expressions in the First Congress confirmed the view that the cruel and unusual punishments was directed at prohibiting "certain methods of punishment" - p The author states also: "Following adoption, state and federal jurists accepted the view that the clause prohibited certain methods of punishment. Since the 'barbarities' of Stuart England were not used often in America, the clause was rarely invoked in the courts. Attempts to extend the meaning of the clause to cover any punishment disproportionate to the crime were rebuffed throughout the 19th Century, and commentators believed the clause to be obsolete." - p But in Weems v. U.S. (a seven-judge Court), a majority of four "took the position that the clause should be expanded beyond its original reach to cover any instance of disproportionate punishment". Mr. Justice White, joined by Holmes, took the position that English history supported a narrow view of the clause". p. 843 The Prohibition of "Excessiveness" in Punishment The author - reviewing English authorities - concludes: "Thus, prior to adoption of the Bill of Rights in 1689 England had developed a common law prohibition against excessive punishments in any form. Whether the principle was honored in practice or not is an open question. It was reflected in the law reports and charters of England. It is indeed a paradox that the American colonists omitted a prohibition on excessive punishments and adopted instead the prohibition of 'cruel methods of punishment' which has never existed in the English law." p (~: The above author recognizes that we adopted language which prohibits "cruel methods" of punishment. One may argue that this

31 3. is controlling, regardless of any possible misconception of English law.) "The American Misinterpretation" The author, with elaborate documentation - including long quotations from Blackstone - finds that American framers misinterpreted the English Bill of Rights provision. He believes that Blackstone (see pp ) has been misinterpreted - not only by the framers but as recently as 1963 by the Delaware court in State v. Cannon, 190 Atl. 2d 514. The author concludes as follows: "It is submitted that such a reading (of Blackstone) explains the American framers' interpretation of the cruel and unusual punishments clause; an interpretation which spawned the American doctrine that the words 'cruel and unusual' proscribed not excessive but torturous punishments". p. 865.

32 lfp/.. lee 1/25/72!Ch Mr:. Larry A.. ~d DA!E: January 25, 1972 Lewis r. Powell, Jr.. Death CAtes Iu connection with my atu4y of the above cases. I would like to see the fouo-..ting: 1. What the co-.t aion. chaired by for r Governor Brow of california, on :the propohd new Federal Crt.~ainat Code rec01111aencled in tbe way of c.&pital puutabment. That. b, dtd it reconanend retention ad teeodification of preeent federat taw the violation of which may invoke the death penalty? 2. \~bat does the Allertean La" Institute Model Criminal Code provide that 'ID&Y be relevant! 3. What ezceptt.ona, if any, are eoneatned to the Engl tab atatute which aboliahed t.be death penalty for 110at cr:tmest My recollection t that there was au. exeepttoo. tfith Yea.pect to murder of a police officer.. If the report c.f the Royal C01DII'd8aton on.capital Puniabulent ia not too volusidoua, we eight take a look to e«e whether there i.e any particularly relev«nt dtscw;eion. Sere, % have i.n atnd 'ftt'mther tbe C~taeion c:onsic!ered it neceaaaxy for Parlta.nt to act or whether it thought the eourta had jurisdtc:tton... undew the.. evolving tandard of decency theory"... to bold the death aentence twali.d under c~n law due procea prineiples7

33 lfp/ss lee l/25/72 MEMORANDUM TO: Mr. Larry A. Hammond DATE: January 25, 1972 FROM: Lewis F. Powell, Jr. Death Cases In connection with my study of the above cases, I would like to see the following: 1. What the Commission, chaired by former Governor Brown of California, on the proposed new Federal Criminal Code recommended in the way of capital punishment. That is, did it recommend retention and J ~ ~. ~ recodification of present federal laws the violation of which may invoke ~ the death penalty? 2. What does the American Law Institute Model Criminal Code vi' provide that may be relevant? 3. What exceptions if any, are contained in the English statute which abolished the death penalty for most crimes? My recollection is that there was an exception with respect to murder of a police officer. If the report of the Royal Commission on Capital Punishment is not too voluminous, we might take a look to see whether there is any particularly relevant discussion. Here, I have in mind whether the Commission considered it necessary for Parliament to act or whether it thought the courts had jurisdiction - under the "evolving standard of decency theory" - to hold the death sentence invalid under common law due process principles? L.F.P., Jr.

34 lfp/~s lee 1/27/72 Miscellaneous Notes DEATH PENALTY CASES Miscellaneous Comment on Argument that D/P and the Oppressed is Applied Only Against the Poor It is argued strongly - especially in the rape cases - that the D/P is applied inequitably and almost solely against blacks, the poor and the oppressed - against those without influence or friends. An answer to this argument - not stated in the briefs, as I recall may be that this is not a "recent development". It is not something new that has appeared in the process of "evolving standards of decency". - Certainly, the discriminatory situation existed more acutely at earlier dates than at the present time. It surely existed - if it is factually supportable - at the time this Court decided Trop v. Dulles and the cases which preceded it. Perhaps a more fundamental argument is that "if there is discrimination,"this is an equal protection/14th Amendment problem; not an 8th Amendment one. Query, also, whether this issue was presented to or considered by the Courts below. F 13~

35 1/27/72 Judge a Attached are the products of my examination of the four questions you raised in your 1/25/72 memo to me concerning the Death Cases. I have all of the texts which I cited if you would like to review any of the material. LAH

36 ITEM!--Recommendation of the Nat'l Commission on Reform of Federal Criminal Laws (Gov. Brown's CommissionJ The National Commission devoted substantial consideration to the question whether the death penalty ought t o be retained for the eight crimes for which it may be imposed. The Working Papers (Pp ) present, effectively, both sides of the debate. As I find to be the case with the ALI debates, the arguments tend not to run along Constitutional lines but to be directed to the -propriety of retention or abolition as a legislative matter. course, depending on the view one adopts of the 8th Amendment, the same considerations may become relevant in the constitutional context. The Final Report of the Commission, in its section dealing with sentencing, indicates that the majority view of the body is that the death penalty should be abolished. The introductory commentary statesa This Chapter reflects a sharp division within the Commission on the subject of capital punishment. The principal text embodies the view of those favoring abolition of capital punishment. expresses the.strongly held.views of some Commissioners that capital punishment should bet etained for certain grave ) offenses. Of The (following) provisional Chapter I l The majority view treats as crimes punishable by life imprisonment,intentional murder and treason. As stated above no offenses entitled the Government to seek the death penalty. The minority \ view adopts the procedure established in the Model Penal Code \ (which is briefly discussed under ITEM 2). NB.

37 . ~ Ll ITEM 2--ALI - View of Death Penalty In the most recent full draft of the Model Penal Code--the "Proposed Official Draft (May )--the - American Law Institute has devoted section to the death penalty. That section is the product of study and proposal made in May, 1959 and incorporated in Tentative Draft No. 9. On the precise question whether the ALI favors or rejects the abolition of the death penalty, the commentary to the 1959 / Draft state at page 65 q On balance, the Reporter favors abolition. The Advisory p.\-\ ~ CE,!mitt~e recommended by a vote of 17-3 that the Institute 1./ express itself upon the issue, whatever its opinion proves ~ ~ to be; and by a vote of 18-2 that it favor abolition. The Council was divided - on the issue of retention or abolition but substantially un1ted in the view that the Institute cannot be influential on its resolution and should not, therefore, take a position either way. Even if the Institute should take a position on the - question and should favor abolition, it is clear that many jurisidictions will retain sentence of death for some forms of murder in the years to come. Hence, on any hypothesis, it is essential that the Model Code address itself to the probl em presen t e d 1n. sue h Jur1s1... d ct1ons. '\ It should be noted that, as I read the commentary, the vote of the Committee strongly favoring abolition~ ~ generally premised on a conviction that it is unconsti( utional. Rather, the focus would appear to be on such considerations as its lack of deterrent usefulness and its harmful effects on the administration of the court system. The system envisioned by the MPC is one in which, from the outset, the death sentence is to be the exception rather than the rule even for murder. Initially, the trial judge is instructed to determine whether any aggravating circumstances exist. - If he finds,.'...

38 none, he proceeds to impose an imprisonment sentence. If the question is not foreclosed, a separate proceeding is then invoked. This is an acceptance of the clas\c concept of } bifurcation in which guilt and sentencing processes are kept separate with the full impact of rules of evidence in the former but with a much wider inquiry in the sentencing phase. most cases this supplemental proceeding will be conducted before a jury (in all states where juries participate in sentencing for capital crimes--a practice approved by the Reporter). In The jury is then permitted to consider the presence of aggravating circumstances or the absence of mitigating circumstances. Institute thinks that the jury should be instructed that it must such circumstances and that the jury s$buld ~ be informed that it may not impose the penalty in the absence of find some particul~ such a finding. Finallyp the ALI recommends that the jury decision to impose the penalty must be unanimous. The If it is unable to agree then the case should be returned to the judge for imposition of a prison term.

39 . ITEM 3--English statute restricting the death penalty Under the "Murder Act" of 1965,England abrogated the death penalty for murder for a 5-year experimental period. (2 Pub. Gen. Acts., ch. 71 (11/8/65)). In 1969, - the House of Lords and House of Commons agreed to make the abolition permanent. Under those laws, capital punishment is still provided for the following offensesa (1) treason (2) piracy with violence (3) arson committed in a dockyard (4) some rare military offenses I have found no mention of retention of the death penalty for a killing of a policeman. As I read the statutes, all murders, no matter the circumstances or the victims, are not crimes for which the death penalty may be invoked. I note that Tony Amsterdam's discussion in footnote 58, page 32 of his Aikens brief supports this reading. (I do believe, however, that the ~ New York partial abolition retained the sentence of death for the killing of a policeman.) ~ ~ \,.JII' ~ ~.._,..""""" 'I).& 4Y..< t' f VllooW' - ~ 12, p 7 ~- ~... ~ ~...

40 ITEM 4--Focus of the Royal Commission on Capital Punishment You have asked whether there is any indication as to the particulr focus of the Royal Commission on Capital Punishment in its examination of the question of abolition. Specifically, you asked whether it was possible to discern whether the Commission felt that the question was one for Parliament or whether it was a matter within the power of the judiciary under common law standards. My review of the materials considered by the Royal Commission indicate that, while its focus was clearly on the legislative question, the body did not appear squarely to face the question of judicial abolition. I think the Commission s emphasis was restricted to the legislative question by the "Terms of Reference"- the directions given to the Royal Commission by Parliament. That isv the Commission was instructed only to consider legislative restriction rather than judicial abolition. The assumption throughout the testimony and in all of the written submissions, and in the Commission's report, is that the death penalty is permissible but that its utilization should be restricted..

41 lfp/s lee 1/31/72 DEATH PENALTY CASES Miscellaneous Note Frankfurter - Restraint on Exercise of Judicial Power See Frankfurter's dissent in Trop- 356 U.S. 86 at p for excellent statement of need for judicial restraint in declaring Acts of Congress unconstitutional. Frankfurther also cites Holmes.

42 2/3/72 DEATH PENALTY CASES Presumption of Constitutionality See Brandeis' opinion in O'Gorman and Young v. Hartford Fir e Insurance Co., 51 S. Ct. 130 (1931). Also see 31 Columbia Law Review, 1136 (1931) (the presumption of constitutionality).