sign in sign up
<<
Home , Capital punishment, Guilt (law)

Journal of Criminal and

Volume 60 | Issue 3 Article 10

1970 Capital Controversy, The William O. Jr. Hochkammer

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Commons, Criminology Commons, and the Criminology and Commons

Recommended Citation William O. Jr. Hochkammer, Controversy, The, 60 J. Crim. L. Criminology & Police Sci. 360 (1969)

This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THM JOURNAL OF CRnAMAL LAW, CRIMINOLOGY AND POLICE ScIEcE Vol. 60, No. 3 Copyright © 1969 by Northwestern University School of Law Printedin U.S.A.

CRIMINAL LAW COMMENTS AND CASE NOTES

Prepared by students of Northwestern University School of Law under the direction of the student members of the Law School's Journal Editorial Board.

JujAN D'EsposiTo ROBERT GREE WA i STEPHEN G. SELIGER RIcHARD P. VOGELMAN Editors-in-Chief Associate Editors

JOEL E. BASSETT DAvID E. BENNETT WnixA 0. HOCEAmmER, J3. JoEL B. MEYER JOSEPH SANDERS Board of Editors

THE CAPITAL PUNISHMENT CONTROVERSY

WILLIAM 0. HOCHKIAMMER, JR.

The penalty has been the subject of heated Retentionists attempt to emphasize the logic of debate in the for over 150 years. this argument by observing that people, when During this period, both retentionists2 and abo- they are absolutely determined to get results, litionists' have developed ritualistic arguments frequently resort to the threat of death. 6 Abo- on the key issues of the controversy. Even though litionists note that some people commit most arguments are based on opinion unsup- for which they may be executed because of a con- ported by facts, both groups have used statistical scious or subconscious desire to commit suicide, a data and studies to prove the correctness of their motivation that offsets any deterrent effect the respective positions. Confusion has resulted because death penalty might have.7 The retentionists re- the line between unsubstantiated opinion and fact ply that few criminals, especially hardened crimi- has not been clear. This comment will consider some nals, want to and expect to be punished for their of the major areas of disagreement between re- crimes. 8 tentionists and abolitionists and assess the use of Some abolitionists believe that the death penalty the factual proof presented. increases the level of serious because those who have already committed a capital crime will THE DETER-RENCE ISSUE not hesitate to commit others since they feel they A major element of the controversy is whether have nothing to lose.9 Retentionists counter that capital punishment, as claimed by retentionists, if a life is substituted for the death pen- is a unique deterrent to crime.4 Their argument is alty, a man who has committed a crime for which that most people will not commit a crime if they he may be sentenced to life would be know they may be executed as a result; this is an just as likely to commit other serious crimes outgrowth of man's instinct for self-preservation.' because he would also know he was already sub- 0 ' For a discussion of the historical background of the ject to the maximum penalty.' Neither position controversy see BEDAU, DEATH PENALTY IN AmERICA is persuasive. 7-13 (1st ed. 1964). 2This term is used to designate those who favor the To the extent it is true that a criminal does not use of the death penalty. 'This term is used to designate those opposed to the 6 Id. at 254. use of the death penalty. Of course many individuals 7 See Comment, In Defense of Capital Punishment, involved in this controversy do not fit neatly into 54 Ky. L.J. 743 (1966). either the abolitionist or retentionist classification. 8 See Schmidelberg, The Offender's Attitude Toward 4 See, e.g., Sellin, CapitalPunishment, 25 FED. PROB. Punishment, 51 J. CuR. L.C. &P.S. 328,332-33 (1960). 3 (Sept. 1961). 9See, e.g., BEDAU, supra note 1, at 273. 5 See Gerstein, A Prosecutor Looks at Capital Punish- 10See Comment, In Defense of CapitalPunishment, ment, 51 J. CraM. L.C. & P.S. 252 (1960). supra note 7, at 744. 19691 CAPITAL PUNISHMENT CONTROVERSY

expect to be caught" or, if caught, to be convicted Recent studies with improved methodology or, if convicted, to be the recipient of the maxi- have to some extent quelled this uncertainty. For mum sentence, it is also true that the criminal example, it may now be possible to ascertain will not be deterred by the most severe sentence more accurately the effect of capital punishment the law may impose on him. in a comparison of crime rates. Abolitionists The few attempts which have been made to have, in the past, relied on unrefined statistics to validate these arguments have failed to establish show that the rates in states without the conclusively the existence of a deterrent effect. death penalty do not differ substantially from Consequently abolitionists have concluded either rates in death penalty states i Retentionists have that such an effect does not exist or, if it does, countered that factors other than the deterrent that it is negligible." Retentionists have, however, effect of the death penalty-race, heredity, re- ,disputed the validity of these studies8 by noting gional lines, and standards of housing and educa- that most were conducted by the opponents of tion-have an effect on crime rates." Grouping capital punishment (apparently making them the states according to similarities in the charac- immediately suspect) and that these studies do ter of the population, urban and industrial devel- not take into account the number of crimes which opment, and geographical proximity, a comparison were actually deterred. 4 The fact that two states, was made between states in the group which have one with capital punishment and the other with- and those which do not have capital punishment. out, have similar rates of crime does not prove This study supported the conclusion that those that there is no deterrent effect. It may be that the states which fell into each group have similar homi- factors contributing to a high crime rate are so cide rates, whether or not they have the death much stronger in the capital punishment state penalty." Nevertheless, this study is inconclusive that they are not offset by the death penalty since it does not consider crimes actually deterred deterrent effect. and it assumes there is a relationship between Since these studies contain potentially serious capital and homicide rates. defects, they should be accepted only with reser- The information presently available does not vations. They are suspect to the extent they are provide an adequate basis for deciding whether based on assumptions which, unfortunately, can- there is a deterrent effect. When the inconclusive not satisfactorily be tested. For example, most surveys are discounted, all that remains are state- studies assume that the rate of capital murder ments of opinion which must be treated with varies proportionally to the fluctuations in the scepticism. homicide rate. The statistics are based on data for THE DIscIMINATioN IssuE total , rather than for capital murder rates, which are generally unavailable.' 5 Thus, Some aspects of the controversy are susceptible when a study indicates that the homicide rate to valid statistical analysis. An example is the did not increase after the abolition of the death abolitionist criticism that the death penalty has penalty, this does not eliminate the possibility been discriminatorily applied since it is imposed of an increase in the rate of capital . An more frequently on the poor, the ignorant, and minority group members than on other convicted increase in the capital murder rate might simply 19 have been offset by a decrease in the rate of non- criminals wiho do not fit into these categories. negligent homicides. If capital'punishment is not uniformly applied, some say, it should be abolished. 1 See Schmidelberg, supra note 8, at 332-33, and text accompanying note 8. Studies indicate that such 2See Sellin, supra note 4. exists. For example, even though women commit 'aSee Reichert, Capital Punishment Reconsidered, about one of every seven murders,20 of the 3,298 47 Ky. L.J. 397 (1958). 14 Gerstein, supra note 5 at 252-53. See also, Van people executed for murder from 1930 through Den Haag, for comment On and the Death 1962, only 30 were women." There are also clear Penalty, 60 J. Cm. L. C. & P. S. 141 (1969), a recent article, in which the author argues for the retention of " Id. at 264. the death penalty. The author notes that the actual 17See Gerstein, supra note 5, at 252. number of persons deterred by the penalty is still un- IsSellin, supra note 4, at 6. known. " See, e.g., Comment, Capital Punishmen, 29 TENN. 15Most available statistics On include L. REv. 534, 542-45 (1962). the category of homicide, but do not break this into 20 Id. at 542. sub-categories. See BEDAU, supra note 1, at 277. 21BEDAU, supra note 1, table 6 at 116-117. WILLIAM G. HOCHKAMMER, JR. [Vol. 60 indications of discrimination on the basis of race. crimes." Abolitionists counter that there is no From 1932 through 1957, twice as many Negroes indication that people who have committed capital as whites were executed in the South.22 While crimes are more likely to commit other crimes than crime rates for different races are not equal, the those who are guilty of lesser crimes.2 Further- difference in the numbers of executions cannot more, many who commit repeated capital crimes be explained on this basis." The factor of dis- are adjudged legally insane and are not executed, crimination becomes especially clear when the even in a capital punishment jurisdiction. 9 Be- numbers of whites and nonwhites who are exe- sides this, boards do not release criminals cuted for are compared. From 1930 through unless they consider them unlikely to commit 1962, 446 people were executed under civil au- additional crimes."° thority in the United States for rape. Of these, 45 To counter this, the retentionists claim that were white, 399 Negro, and 2 American Indian. personnel and inmates are put in a position 436 of these executions were in the South-42 of danger when the life sentence is substituted for white, 392 Negro, and 2 American Indian.2 capital punishment. Criminals under a life sentence This discrimination also appears in a comparison (especially those for whom the possibility of parole of the success with which Negroes and whites are is remote) are likely to kill in an attempt to escape able to obtain commutations. Between 1914 and since they know their sentences cannot be in- 1958 in Pennsylvania, whites received commuta- creased if the attempt fails. Even though this has a 5 tions three times as often as Negroes.2 surface plausibility, retentionists have been un- Yet, even if the existence of discrimination can able to offer proof in support of it. Some people satisfactorily be proven, it would be a mistake to experienced in the handling of prisoners have argue that capital punishment should be rejected concluded that murderers, for example, are among because some discrimination exists. The proper the best behaved prisoners." In addition, this approach is to remedy the defect, not abolish the argument fails to recognize that nearly all pris- system. Emphasis should be on insuring uniform oners, including those given a life sentence, will at 2 application in the future. 1 If there is any justifi- some time be eligible for parole. It is likely that cation at all for the death penalty it may well the loss of the possibility of parole would also be a overcome the objection of unequal application deterrent against killing to escape from prison. which can be remedied by more conscientious Statistical information available is limited to administration. that concerning the dangers of paroling life pris- oners. Most prisoners sentenced to life imprison- PROTECTION OF SOCIETY ISSUE ment will at some time be eligible for parole,82 Retentionists argue that only the death penalty and statistics show that most such prisoners can adequately protect society; the life sentence become successful parolees. Of 36 prisoners under alternative does not provide adequate protection life sentence who were paroled between 1943 and because criminals who are given a life sentence 1958 in New , only two were returned to are often paroled and thus able to commit other prison-one for a technical offense and the other

22 Data indicating racial discrimination in the imposi- for burglary. Most of these prisoners would have tion of the death penalty is presented in Comment, been executed if their sentences had not been supra note 19. 23 See BEDAU, supra note 1, at 74-90 for an analysis commuted.n Some retentionists emphasize that a of criminal homicide by Marvin E. Wolfgang. On the basis of all criminal homicides recorded by the Phila- "See Gerstein, supra note 5 at 255. delphia Homicide Squad between January 1, 1948 and " See Comment, supra note 19 at 550. December 31, 1952, the rate per 100,000 by race and 2"See In Defense of CapitalPunishment, supra note 7, sex of offenders was: Negro males (41.7), Negro females at 246-47. (9.3), white males (3.4), and white females (.4). BEDAu, 30 Whether or not parole boards can make accurate supra note 1, at 78. decisions in this regard is open to question. 24 Id. at 116-117. "See Comment, supra note 19, at 548; and Sellin, 25 Comment, supra note 19, at 543. supra note 4 at 6-7. 26 Some steps which result in greater uniformity of "See Comment, supra note 19 at 549. application have already been taken. The indigent are 3Id. at 550. Paine also reports other examples of appointed counsel. Gideon v. Wainwright, 372 U.S. success in paroling convicted murderers. For example, 335 (1963). They are also notified of their right of in Ohio 94.1% of such were successful as com- counsel and having this counsel available before . pared with a 74% success level for other paroles in that Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. state. Of the 164 first-degree murderers paroled in Arizona, 384 U.S. 436 (1966). between 1938 and 1961, only four were re- 1969] CAPITAL PUNISHMENT CONTROVERSY parole board may make a mistake--it may release alternatively, that if these tests are inadequate, a person who is in fact very likely to commit other the appropriate solution is to devise better tests, crimes. While this possibility cannot be denied, it not to abolish the death penalty. does not provide a convincing reason for continued "Pragmatic" arguments also enter the capital use of the death penalty. One would hardly argue punishment controversy. Retentionists claim that that the right to a trial should be suspended it is less expensive to execute a criminal than to in serious cases because the jury might make a confine him for a long period. The abolitionists mistake and allow a guilty person to go free. answer that if there is no possibility of a death sentence, more with fewer delays wil OXIER ISSUES result; thus less money and effort will be expended 4 One of the oldest and most popular arguments on appeals designed only to delay and hinder. for abolition is that innocent people are convicted Further, as an incidental effect, fewer guilty people and may possibly be executed. Retentionists will be freed because will no longer have the respond that mistakes are unlikely; the presence reluctance to bring in guilty when there of the at trial and the impartial review upon Thus each group 36 is no possibility of execution. appeal provide adequate protection. Further- claims the least expensive solution, but neither can more, abolitionists have been unable to show many produce factual support. instances in which it has been established that an These arguments must be carried on at the level innocent person actually was executed, although of opinion rather than fact, since proof is almost they have pointed to numerous cases in which impossible to obtain. The adequacy of existing persons sentenced to prison were later to be found tests of insanity cannot be proven except by 6 innocent. Perhaps the reason executions of reference to some standard which is in essence innocent persons seldom come to light is because nothing more than an opinion which is widely there is little impetus for a continued investigation accepted.4' It might be possible to compare the once a person has been executed for a crime. costs of keeping a criminal in prison with the costs Also, where the innocence of an executed person of bringing one to execution, but it would be is later established, the police are understandingly difficult to test the accuracy of such a comparison. hesitant to publicize the fact. But since the death There are difficulties in comparing criminals in penalty is in fact imposed for only those capital different states and in comparing those in the same crimes which shock the public and where is state at different times. The cost of executing a dear,n and in light of the existing safeguards of criminal is increased by delays. The extent of such review and the possibility of commuta- appellate 40 tion, execution of the innocent is unlikely. See McGee, Capital Punishment as Seen by a CorrectionalAdministrator, 28 FED. PROB. 11, 13 (June Another argument is that continued use of the 1964). Some writers have suggested that effective use death penalty has resulted in the execution of the of prison labor power could be made and the cost to the agree that the public of imprisonment thus reduced. See, e.g., Sellin, mentally disturbed." Retentionists supra note 4 at 3. execution of such persons is undesirable, but argue 41Both theM'Naughtenand Durham rules have come that the mentally disturbed are adequately pro- under frequent criticism. The objection has often been 9 made that many dangerous offenders are medically tected by the existing tests of legal insanity, or insane but do not qualify as legally insane under these new tests. For example, in Frigillana v. United States, 307 turned; just one of these four was returned for a court noted: . See also Sellin, supra note 4 at 6-8. F. 2d 665, 667 (D.C. Cir. 1962) the of CapitalPunishment, supra note 7 "We submit that under a standard or test based 3 See In Defense upon the basic concepts of criminal responsibility at 745. -that is cognition and volition or capacity to 35 d control behavior-there might be some meaningful 36 See BEDAu, supra note 1, at 434-52. supra note medical testimony.... a7 See In Defense of Capital Punishment, it the difficulty of the experts in this 7 at 745. "As we see Pun- case arose in large part because they did not under- 'sSee, e.g., Gaetz, Should Ohio Abolish Capital in our rule, ishment?, 10 CiavE.-MAt. L. R1v. 365, 371-72 (1961). stand what 'product' means as stated or for the term 'product' has no special generally ac- 89Most jurisdictions use either the M'Naughten it has Durham rule to determine legal insanity. The cepted meaning in medicine. And of course defendant did no special meaning in law." M'Naughten rule provides that if the these rules present not know the nature of his act or that it was wrong, he For a discussion of the problems will be declared insane. The Durham rule provides for the psychiatrist "expert witness" called on to testify responsible if his as to insanity, see Halleck, The Psychiatrist and the that one accused is not criminally 9 at 24 unlawful act was the product of a mental disease or Legal Process, PSYcHOLOGy ToDAY, Vol. 2, No. defect. (Feb. 1969). WILLIAM 0. HOCHKAMMER, JR. [Vol. 60

delays depends upon the skill of attorneys and at legislatures, actually favors the death penalty. times the sympathy of public officials. Because of In the short run, however, it does not matter which differences in the importance of these factors in of these reasons is correct; the fact remains that individual cases, cost comparisons are nearly im- the death penalty has not been abolished in many possible. Such areas of the controversy are likely jurisdictions. to remain at the level of conflicting opinions for Inconclusive of public opinion is lack of a factual basis on which they can be re- available from those states where a referendum to solved. abolish the death penalty has been taken. A 1958 Oregon referendum was defeated by a close vote, PUBLIC OPINION but in 1964 the referendum Was carried by a vote The death penalty has been abolished or severely of 455,654 to 302,105 and'the death penalty was restricted in only thirteen states.4 But the aboli- abolished. But in 1966 capital punishment was tionist movement has had an effect in those states retained in Colorado by a vote of 389,707 to which have retained it since, in spite of increases 193,245.46 in population and. crime rates, the number of Most opinion polls are inconclusive, although annual executions has decreased. 0 From 1930 they do indicate-that opposition to capital punish- through 1964 there were 3,848 executions in the ment is increasing. A Gallup. Poll conducted in United States. A comparison of the average annual 1953 showed 68% favored the death penalty for executions in selected five year periods shows con- persons convicted of murder, 25% opposed it, and 4 siderable decrease. There was an average of ap- 7% were undecided. The same group conducted proximately 110 executions each year during the similar surveys posing the same question in 1960 period. But in the years 1930 through 1934, the and 1965. In 1960, 51% favored the death penalty, 4 average was 155.2; from 1940 through 1944, an 36% opposed it, and 13% were undecided. In average of 129; from 1950 through 1954, an average 1965, 45% were in favor, 43% opposed, and 12% of 82.6; from 1960 through 1964, an average of undecided., 36.2." Since 1964 the level of executions has These surveys are not as significant as they might 4 decreased further. appear. Since the question asked only for a reac- It is upon state legislatures that primary re- tion fo the use of death as a penalty for murder, sponsibility for the decision to abolish or retain the results are suspect when used as an indication capital punishment finally rests. When abolition of support for the use of the penalty for other has been considered, the legislatures have generally crimes. More people might have favored it if con- voted to retain the death penalty. This might be fronted with a specific gruesome crime. On the explained either on the basis that legislators lag other hand, more people might have opposed it if behind the opinion changes of their constituents, the question used had been framed in terms of an or that the public, as accurately reflected in the opinion on capital punishment with regard to the broad spectrum of crimes for which this penalty 4 These states are Michigan, Rhode Island (which permits capital punishment only for life term convicts can be imposed. A 1958 Roper Poll bears out this who commit murder), Wisconsin, Maine, Minnesota, uncertainty. Asked whether the heaviest penalty North Dakota (which retains the death penalty for given people convicted of the "worst" crimes murder by a prisoner serving a life term for murder), Alaska, Hawaii, Oregon, Iowa, West Virginia, Vermont, should be death or , 42% favored and New York (which retains the death penalty for the death penalty, 50% favored life imprisonment, murder of a on duty, or of anyone by a 5 prisoner under life sentence). For a discussion of the and 8% were undecided. " use of capital punishment in the United States and in It is unlikely that most state legislators would foreign countries, see Patrick, The Status of Capital continue to oppose abolition if a substantial ma- Punishnent: A World Perspective, 56 J. Csnr. L.C. & 46 P.S.4 397 (1965). BEDAU, DEATH PENALTY IN AmEniscA 233 (rev. ed. 1It has not been established whether this decrease 1967). is primarily due to the reluctance of juries to bring in a 47Id. at 237. The question asked was: "Are you. in which might result in an execution, the re- favor of the death penalty for persons convicted of luctance of (where they have discretion) to murder?" impose the death penalty, or the fact that more such 48Id. at 239. sentences are reversed on appeal or commuted. 49 BEDAU, supra note 46, at 238. 44 Based on figures reported by the U.S. Bureau of '0 BEDAU, supra note 1, at 234. This poll is of doubt- in National Prisoner Statistics-. ful significance because of use of the word "worst." 45 For example, there were no executions in 1968, two The individuals polled may have had widely divergent in 1967, and one in 1966. views on which crimes are worst. 1969] CAPITAL PU2USHMRNT CONTROVERSY jority-of people were, in fact, strongly:'opposed to An argument has been-made that societvdemands capital punishment. It is not illogical to conclude, the death penalty for certain criminals -and that if then, that the public has not been convinced by they are not executed, private, action will result. existing studies and the abolitionists' criticismof But experience m states which abolished capital the deterrence andprotection-of society arguments. Dunishment has shown, no increase inlynchings or It may be that the public feels a need for retribu- similar action has resulted. The South, which has tion which the death penalty satisfies and which the -greatest incidence of private action, is char- serves to justify it in spite of its lack of benefits in acterized by a high execution level.P other respects. An important aspect of the capital punishment -, ECWT LEGAL IssuEs, controversy is centered about the relative, im- Although the battle.over the death penalty has portance which should be attributed to,the factors been carried out primarily in- the legislatures,' the of rehabilitation and retribution." If retribution controyersy has recently been brought tot1he is its primary aim and the public feels thatonly courts. witk-bgreater frequency. The argument: that the death penalty can achieve it, the likelihood execution is cruel and unusual punishment pro- that any specific criminal can be rehabilitated is hibited by the Eighth Amendment has been un- irrelevant. For those who consider rehabilitation s uccessful."Historically the Eighth, ,Amendment the primary aim of punishment and, feel it is has been.used to prohibit punishment which is possible to rehabilitate even those-criminals who inherently, cruel55 or cruelly excessive.5 6 But committed capital crimes, the death penalty must punishment by -death-at least where it does not appear harmful. Some criminals can behelped and add unnecessary,pain-has consisteaftly been held. 7 others cannot. But the mere fact. that the only. outside- of the. Eighth Amendment, prohibition. effective way to handle some criminals may be Courts have also rejected the contention .that life imprisonment without eligibility for parole does capital punishment is per sea denial of . not provide justification for their execution. For example, the Washington Supreme Court There is no proof that the level of support for the recently held that:, death penalty in the legislatures is due to an over- * * * The Fifth Amendment reters specifically riding concern for retribution. To the contrary, to "capital cases", and also states... that a there is some indication that large segments of the -person may not be deprived -ofhis life without' population have repudiated vengeance as a pri- due process. The mary aim of punishment. Most religious groups Fifth Amendment also pro- vides that a person oppose capital punishment and have taken a may not be twice put in jeopardy stand against measures motivated by desire for of his life. Implicit in these are their revenge.2 corollaries-that the state may deprive an- individual of his But it is not necessary to conclude that rehabili- life if the proceedings are in tation and suitable retribution are mutually exclu- accord with the requirements of due process and- may place him in jeopardy once sive. Confinement alone qualifies as punishment for a given offense. Certainly, if the state can call and society's demand that criminals be punished upon the most responsible and law abiding of can certainly be met by imposition of prison terms. its young 51Opinion on the issue of whether retribution is a men to sacrifice their lives in battle, proper aim of punishment splits three ways. One posi- it has the power, under the , to tion is that it is never a proper aim and should be execute one who, in a proceeding in which the avoided in all cases. A second position is that punish- requirements of due process have been strictly ment for the sole purpose of vengeance is undesirable, but that this is one of numerous permissible aims of observed, has been found by a jury of his peers punishment. The third position is that retribution is a to have committed a crime so heinous that, in proper aim for all punishment and may become the primary concern in appropriate cases, e.g., a person who 5Comment, supra note 19, at 538-39. has committed a crime particularly shocking to the "See Bell v. Patterson, 279 F.Supp. 760 (D.Colo. public. 1968). 2See, e.g., Milligan, A Protestant'sView of the Death 5See, e.g., Rosenberg v. Carral, 99 F.Supp. 630 Penalty, reprinted in BEDAU, supra note 1, at 175, and (S.D.N.Y. 1951) (confinement in awaiting Kazis, Judais-m and the Death Penalty, reprinted in execution is not inherently cruel). BEDAU, supra note 1, at 171. Whether the official 11See, e.g., State v. Evans, 73 50, 245 P.2d 788 position of such groups is a reflection of its members' (1952). opinions or is at attempt to "lead" these opinions is 5 See, e.g., In re Storti, 178 Mass. 549 60 N.E. 210 open to question. (1901). WILLIAM 0. HOCHKAMMER, JR. [Vol. 60

its opinion, his life should be exacted as a Supreme Court held that a provision making the penalty.53 death penalty mandatory upon a rape While the United States Supreme Court has not unless the jury specifically ruled otherwise was recently considered whether capital punishment is constitutional. This court distinguished Jackson. per se unconstitutional, recent decisions have The Federal Act allowed an accused restricted the use of the death penalty by holding kidnapper to escape the possibility of a death unconstitutional some of the procedures by which sentence either by pleading guilty or by requesting its imposition was determined. a bench trial. The North Carolina provision In United States v. Jackson,59 a six-Justice ma- allowed the avoidance of a possible death sentence jority held the death penalty provision of the only by a guilty ; if the plea was accepted by Federal Kidnapping Act, 60 which limited the death the state with the approval of the court, it had the penalty to cases where the jury recommended it, effect of a guilty verdict with a life recommenda- violated the Fifth and Sixth Amendments. Since tion. The court characterized this provision as 6 the death penalty could be imposed only on de- benefitting the defendant. ' 66 fendants who asserted their right to a , In Witherspoon v. Illinois the Supreme Court the provision needlessly discouraged defendants held that putting the power to impose the death from pleading innocent and demanding a jury penalty in the hands of a jury from which there trial. The majority did not rest its decision upon had been excluded all persons expressing general the assumption that the only purpose of this objections to or religious scruples against capital provision was to limit the assertion of basic con- punishment was violative of the Sixth and Four- stitutional rights. The majority was concerned with teenth Amendments. Unless a venireman states un- the effect rather than the purpose of the provision. ambiguously that he would vote against the death To them, it was irrelevant whether the chilling penalty regardless of what the trial might reveal, effect of these rights was incidental or intentional; he cannot be excluded. If veniremen are excluded the question was whether the chilling effect was on any basis broader than this absolute refusal to unnecessary and thus excessive. 61 impose the death penalty under any circumstances, In spite of the fact that some states have pro- the imposition of the death penalty is unconsti- 6 visions similar to the one held unconstitutional in tutional and the sentence cannot be carried out. 7 Jackson, the effect of this decision has been limited. If it is true that persons with conscientious or The highest courts of some states have distin- religious scruples against the death penalty will guished Jackson. In State v. Laws6' the New Jersey seldom if ever vote to impose it (as Justice Black Supreme Court reasoned that the Jackson holding suggests in his dissent to Witherspoon"), this was not relevant where the power to reverse and decision will undoubtedly decrease the number of nullify a death sentence is vested in an appellate such sentences returned. Since the decision is court. Thus it held that a death sentence resulting retroactive, it will require resentencing of some from the failure of the jury to recommend mercy defendants now awaiting execution. But Justice in a first degree murder conviction was not un- 65 Even if the North Carolina court was correct in constitutional since it had the power to reduce such characterizing this provision as for the benefit of the a sentence.6 In State v. Peele" the North Carolina defendant, it is still objectionable under the Jackson reasoning. Since under this provision the possibility of 11State v. Smith, 446 P.2d 571, 589 (Wash. 1968). a death sentence could be avoided only by a guilty plea, 59390 U.S. 570 (1968). it has an even stronger chilling effect on basic constitu- 60 18 U.S.C. §1201 (a). tional rights than the Jackson situation. To avoid the 61 United States v. Jackson, 390 U.S. 570, 581-583 possibility of the death penalty, a defendant need not (1968). only waive his right to jury trial but must also plead 62 51 N.J. 494 242 A.2d 333 (1968). guilty. 63 But it does not appear from Jackson that the con- 66 391 6 U.S. 510 (1968). stitutionality of the death penalty provision of the This decision does not prevent the exclusion from Federal Kidnapping Act would have been saved by the the jury of veniremen who make "unmistakably clear power in an appellate court to reverse or reduce the ... that they would automatcally vote against the penalty. In Jackson, the Court was concerned with a imposition of capital punishment without regard to needless chilling effect on the exercise of the right to a any evidence that might be developed at the trial of jury trial. This objection is not eliminated by such a the case before them, or ... that their attitude toward power in an appellate court. A death penalty is still the death penalty would prevent them from making an possible only when the right to a jury trial has been impartial decision as to the defendant's guil." 391 asserted. Thus the objectionable needless chilling effect U.S. at 522-523 n.21. But a high standard for permis- is still present. sible exclusion of veniremen has obviously been set. 274 N.C. 106, 161 S.E.2d 568 (1968). 63391 U.S. at 532. 1969] CAPITAL PUNISHMENT CONTROVERSY

White, dissenting in Witherspoon,69 has suggested .recently been attacked as lacking standards for in that the future effect of this decision could easily imposition of the death penalty, thus resulting of due process and equal protection. This be avoided by the legislature in any state where the a denial rejected by at jury now has the power to impose the death penalty contention was raised before and by requiring only majority agreement rather than least two state supreme courts. The Washington unanimity by the jury on the question of the Supreme Court reasoned that it was permissible particular punish- sentence. for a jury to decide whether a -ment should be imposed as long as it did not, in The majority in Witherspoon did not go as far 72 70 doing, determine the nature of the offense. as the Fourth Circuit did in Crawfordv. Bounds. ,so a minority of the Supreme Court That court held the exclusion of prospective jurors But that without standards for imposi- on the basis of their capital punishment views argued violate due process voided both the sentence and the conviction. The tion of the death penalty because, without standards, no meaningful review majority in Crawford was unable to agree on a is possible. It also considered such statutes to be rationale for this decision. Two judges felt that a denial of equal protection since they allow a jury the systematic exclusion of any identifiable group to practice invidious discrimination-persons who within the community from which the jury venire be classi- is drawn violates the equal protection clause, commit the same crime and who cannot 7 fied differently on any reasonable basis can be irrespective of a showing of prejudice.3 Two other given fundamentally different sentences.7 8 judges felt it was wrong to rely so heavily on the With these increasing statements by the courts, equal protection ground. They reasoned that due it is probable that the United States Supreme process was violated simply because the issue of eventually have to face the question of guilt was submitted to a jury from which every Court will se constitutionality of the death penalty. juror with scruples against the death penalty was the per The contention that capital punishment is un- excluded without inquiring whether these beliefs constitutional, under the Eighth Amendment is would preclude a fair consideration of the guilt frequently raised. issue. Three judges apparently based their de- It has long been recognized that the Eighth cision flatly on the essential unfairness of excluding Amendment was not designed to eliminate merely every juror professing an "unexplained scruple" physical brutalities.74 The Supreme Court of the against capital punishment while seating every United States has, by reference to "standards of juror who professed a belief in it. decency more or less universally accepted" 75 and Jackson and Witherspoon are significant not "the evolving standards of decency that mark the only because of their effect on the imposition process of a maturing society," 76 recognized that of the death penalty, but also because they show the definition of inherently cruel and cruelly exces- the United States Supreme Court is now willing sive punishment is not static. Since the Court to take a constitutional stand in the capital punish- apparently believes that the purview of this ment controversy. Perhaps as a result of these Amendment changes with the societal standard for decisions, death penalty provisions have since acceptable punishment, the courts may be expected come under increased attack in the state courts; the bases for these attacks have not been limited 72State v. Smith, 446 P.2d 571 (Wash. 1968). to the arguments which were successful in Jackson 73 In re Anderson, 73 Cal. Rptr. 21, 447 P.2d 117 and Witherspoon. While these attacks have gen- (1968). the defendant's death sen- may signal a new The majority set aside erally not been successful, they tence on the basis of Witherspoon, but held that the era: The capital punishment controversy is in- death penalty statutes themselves were not unconstitu- creasingly being carried on in the courts. tional. It felt that absolute discretion as to sentence could be left to the trier of fact and, since the Some state death sentence provisions have did this, the appellate courts could not substitute their judgment on penalty for that of the trier of fact. The 9391 U.S. at 540. majority felt there was adequate protection against 70 395 F.2d 297 (4th Cir. 1968). arbitrary abuses since the trial judge could review and 71Apparently this is also the position taken by justice reduce a sentence on a for a new trial and the Douglas in his separate opinion in Witherspoon. 391 governor could grant a or commutation. 7 Weems v. United States, 217 U.S. 349 (1910). U.S. 510, 523 (1968). He would not require a showing 75 of prejudice with respect to guilt since he is willing to Louisiana ex rel Francis v. Resweber, 329 U.S. 459, 469 (1947). assume than in many, if not most, cases of class exclu- 76 Trop v. Dulles, 356 U.S. 86, 101 (1957). sion some prejudice does result. WILLIAM 0. HOCHKAMMER, JR. [Vol. 60

to look to data relevant to that standardY. The contradictory to the idea that the scope of this standard used will probably be based, either di- amendment changes with societal standards-an rectly or tacitly, on public opinion. At least some idea which this court purports to accept. The justices of the Supreme Court have shown an court remarked that "[T]he decisions upholding acute awareness of public opinion on the capital the validity of the death penalty have not been punishment issue. overruled or even determined. Hence the law of But a court may invalidate a particular punish- the land as of the present moment is that the ment only when there is an obvious societal stand- death penalty does not ,violate the Constitution ard which has been violated.79 Existing public of the United States." 8 It would seem that if the opinion surveys80 do not provide an adequate scope of the Eighth Amendment is not considered indication of a societal standard with regard to static, earlier decisions on its scope are significant use of the death penalty. Thus, unless polls which only to the extent that societal standards have not convincingly show the existence of a societal changed. standard rejecting capital punishment can be CONCLUSION offered, such legal attacks must fail and the resolu- tion of the controversy must, by necessity, be left The 150 year old controversy over the death to the legislatures. The legislatures are presumably penalty is in need of settlement. But it is unlikely more responsive to public opinion than the courts. that such settlement will be reached through Consequently, if the controversy is to be decided another "logical" analysis of the arguments which on the basis of what the public thinks is appro- are as old as the controversy. Nor will settlement priate, the courts should defer to the legislative be likely to come through the development of judgment unless public opinion is obvious. new arguments. Some members of the Supreme Court of the Whether the controversy is ultimately settled United States have indicated a willingness to use, in the legislatures or in the courts, the resolution as evidence of a societal standard, the results of will depend upon public opinion. Thus the ap- polls. In Rudolph v. Alabamag the Court refused to proach to the controversy of rephrasing the old grant certiorari to consider whether the imposition arguments, changing the emphasis to those cur- of the death penalty for rape was prohibited by rently in vogue, and adding emotional appeals in the Eighth Amendment. Justice Goldberg, joined current fashion must be abandoned, and more by Justices Douglas and Brennan, dissented from emphasis placed on determining what the public the refusal. One of the questions the minority would actually thinks about capital punishment. have considered was whether the punishment by But this does not mean that other issues such as death for rape was violative of societal standards, the existence of a deterrent effect, existence of and in doing so, would have considered the results discrimination in application, and the necessity 82 of a survey of sixty-five countries. of protecting society can be ignored. Both reten- At this time, the Goldberg dissent in Rudolph tionists and abolitionists can contribute to the has not been used as precedent for a decision on the resolution of the controversy by presenting em- merits. For example, while the court in Bell v. pirical evidence to sustain their position on each Patterson83 noted that the scope of the Eighth of these issues. It is by presenting such evidence Amendment was not static, it concluded that it that public opinion can be changed. was not broad enough to proscribe the death Recent experience may indicate that the death penalty as cruel and unusual punishment. Interest- penalty is fast becoming a thing of the past. In ingly, the basis for this'court's holding is somewhat spite of the fact that attempts to abolish capital punishment in the legislatures have generally 7 See Note, Constitutional Law-Cruel and Unusual failed, that attempts to have it declared uncon- -Capital Punishment,42 N.C. L. REv. 909 (1964): 78See notes 81-82 infra and accompanying text. stitutional are unsuccessful, and that many death 8790 See Note, supra note 77. sentences are still being returned, very few crimi- See notes 46-50 supra and accompanying text. it is 81375 U.S. 889 (1963). nals have been executed in recent years. But 8 The Goldberg dissent in Rudolph was critically unlikely that the controversy over capital punish- analyzed in Parker, Making the Punishment Fit the ment will so easily disappear. Crime, 77 HARv. L. REv. 1071 (1964). 83279 F.Supp. 760 (D.Colo. 1968). 84279 F.Supp. at 765.