MEMORANDUM TO: Mr. Larry A. Hammond DATE: February 8, 1972 FROM: Lewis F .. Powell, Jr. Death Penalty Cases Here 1s a draft memorandum on the death eases. I would like to turn this over to you to put in appropriate form for some circulation. As you work on this, I would appreciate your keeping In mind the following: 1. As you will observe, there is a threshold question as to what I am writing: is it a possible opinlon for others to consider joining, an opinion expressing my own views concurring in m oplnion of someone else, or is it merely - at this time - a memorandum? As I do not know how the Court wlli finally line up, I am assuming that my view wW be in the minority. I suppose the best posture for the present is to write this as a "memorandum", which could be converted to an oplnion to be joined by others or filed as representing my own views. 2. A second question which needs to be resolved is whether I am writing primarily with respect to Aikens or addressing all four eases together 1n a sweeping opinion.. I would prefer - and have so - \ ~ 7 .... 1-.. ' .. 2. undertaken - to write the Aikens type optnlon. The issue can be stated moat sharply this way. A brief sapplemental oplnloo could be written, addreaed to eaeh of the other cases. While I can ecmeeive of rape cues tn which the death sentence would, to me, be cruel and 1Dlusual pmlsbment, I am not prepared as a judge to say that it is never permissible. 3. You w1ll note that my memoraDdum is not internally eon .. 8l8tent Jn its approach. In some places I ban spoken of the majority posJtion of the Court (wlrlch is an assumption that I will be 1n the minority, a« yet ver1fted). In most of the memoraadum I have met the arguments of. Petltlaner AJkenL Perbape the next draft should be conststent ln this respect. I would welcome your advice as to the best approach. 4. I have not read either Justice Marshall'• or Justice Douglas' aubmlsslon. I thoaght 1t beat to put down my own thoagbts without attempting to meet these optntona. Perhaps, as yoa rework my memorandum, you. will be able to Incorporate such addltloaal points or arguments as may be necessary to meet the views - where they differ from mine - of these Justtees (of. course, I wW read their dra1ts carefully In due time). ,, 3. 5. I am sure that you can buttress - by revision or expansion of the text or by additional footnotes and citations - the arguments I have made. While I do not want to write an encyclopedia (and there­ fore do not wish to labor the op1nlc:m, or even the footnotes with all possible arguments and citations), I would like to address fairly the principal issues. Also, any product of our chambers should be scholarly. 6. I am sure there are many omissions of important matter. One which comes to mind - as I dictate this is that I failed to emphasize, and to cite, the numerous State Supreme Court decisions and Federal Circuit Court cases which have affirmed the validity of the death sentence. I believe Prof. Wright stated that there were eight such decisions "last year". 7. I would appreciate your speclal consideration of my language­ choice .of words and mode of expression - with respect to what a majority of this Court may do. If they should ultimately vote in favor of total UJJConstltutionality, I will certainly want to ftle a strong dissent - not because I think capital punishment is desirable generally - but because it seems to me that such a decision is beyond the institutional role of the Court. I do want to be careful, however, with the language I use. I certainly do not want to offend other members of the Court. ,. 4. I suppose that other members of the Court .. perhaps all of them - are writing similar memoranda or q>inlons. There is some merit, I suppose, in getting ours out fairly early. L. F. P., Jr. 88 ..... ; ~z onstitutionally valid in any case under any circumstances and regard- 11' ~ess of the enormity of the crime. No appellate court, state or federal, 0 has heretofore reached such a conclusion. Not only is this the first appellate decision of constitutional invalidity of the death sentence; it reverses the Court's assumption of validity reiterated as recently as McGautha v. California, 402 U.S. 183, 197-203 (May 3, 1971) and consistently adhered to for nearly a century. This departure from long established precedents is shattering in terms of its effect on federal and state legislation heretofore deemed to be valid. No less than twelve provisions of the Criminal Code of the United States* and ten sections of the Uniform Code of Military Justice, approved by the Congress, will be voided. ** In addition, capital punishment laws of the District of Columbia and 41 states will be nullified. The striking down of this vast body of federal and *The Sections of the United States Code are set forth in Appendix lg of Petitioner's brief. (Cite references to Code). **Ibid. (Cite references to Code). 2. state legislation by a single decision of this Court is startling enough. But the greatest impact of this decision - by a majority of this Court - will be upon the doctrine of separation of powers. The decision denies to the Congress and to the legislatures of the 50 states the power - heretofore deemed a legislative power in this country and in • other democratic xxxmti1oas: countries -to impose capital punishment selectively even for the most heinous crime. Indeed, it denies to the people of each of the states the right, by duly adopted constitutional provision~ to make judgments on this policy question contrary to that of this Court. I can recall no subordination of legislative and electoral power on such a scale in any other democratic society. I. It is said by the majority that the Constitution requires this result, although it has not been so construed in the 181 years since the adoption of the Bill of Rights. The relevant provisions include the Fifth, Eighth and Fourteenth Amendments. The first of these provides in part: "No person shan be held to answer for a capital, or otherwise infamous offense, unless on a presentment or indictment of a Grand Jury .••; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . nor be deprived of life, liberty or property without due process of law; . " 3. The Eighth Amendment, adopted the same day as the Fifth, proscribes "cruel and unusual punishments". The Fourteenth Amendment, adopted in 1868 -. some 77 years later - repeats, as a limitation on state action, the due process clause of the Fifth Amendment. Much has been written, in opinions of the Court and elsewhere, about the history of the Eighth Amendment. This need not be repeated here. * It is asserted, apparently with justification, that the founding fathers misapprehended the purpose and meaning of the "cruel and unusual punishment" provision of the English Declaration of Rights. Whether this be true or not)seems of no consequence. There cannot be the slightest doubt that the framers of the Constitution and Bill of Rights intended to authorize the death sentence, a penalty then widely imposed in England, the American colonies and in other countries. It is true that the phrase "cruel and unusual punishments" is not susceptible of precise definition. ** But there was no possible *For informative discussions of this history see Weems v. U.S., 217 U.S. 349 (1910) and especially the dissenting opinion of Justices White and Holmes (Ibid. p. ); Robinson v. California, 370 U.S. 660 (1962); McGautha v. California, 402 U.S. 183 (1972); O'Neil v. Vermont, 144 U.S. 323 (1892) and especially Mr. Justice Field's dissent at p. 340, et seq. See also Granucci, "Nor Cruel and Unusual Punishments"; The Original Meaning, 57 Cat L. Rev. 839 (196_ ). **This Court has so stated a number of times (cite cases). 4. ambiguity as to capital punishment. The Fifth Amendment, no less than three times, recognized that the taking of life by the state was a valid punishment when imposed pursuant to due process of law. II. It is asserted that whether the death sentence is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. is an "open' question, "uncontrolled by any prior decision of this Court. "* It is further said that "while this Court has several times assumed" the constitutionality of the death sentence, "it has never focused squarely upon that issue. " Let us test the soundness of this position by a review of what this Court has actually decided and said. It may be noted at the outset that a "raure holding" of constitutionality would have been redundant. A Courts normally do not hold something to be "constitutional" which is plainly authorized by the Constitution. The Fifth and Fourteenth Amendments are as clear with respect to the death sentence as if their language had been: "The death sentence may be imposed pursuant to due process of law. " *Petitioner's Brief in Aikens, p. 7. 5. The Court on numerous occasions has both assumed and asserted the constitutionality of the death sentence. fu several cases this assumption was necessary to the decision, as the issue was whether a particular death sentence would be allowed to stand. One would have thought it impermissible, both as a matter of logic and authority, to argue that the question raised in this case is "an open one," not fore- closed by prior decisions of this Court.