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 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 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 . 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. A more direct posture would be, quite simply, to ask that in the process of reading the capital punishment language out of the Fifth and Fourteenth Amendments, and of reading into the Eighth Amendment a meaning never intended, we should overrule a long line of prior decisions. Such a posture would have the appealing virtue of complete candor. It is also true that numerous decisions have been overruled in the past, although it is rare that any court has taken such liberty with the £ieaoLx- clear and unequivocal meaning of the Constitution itself.

The first death case in which the Eighth Amendment was invoked was Wilkinson v. Utah, 99 U.S. 130 (1878), where the issue - involving territorial law of Utah - was whether death by shooting was cruel and unusual punishment for a convicted murdered. A unanimous court said: 7.

"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 the Eighth Amendment." (p. 134)

The next case was In re Kemmler, 136 U.S. 436

( 1889 ), heard on an application for a writ of error from the judgment of the Supreme Court of New York. The question was whether electrocution, then newly prescribed, was cruel and unusual in violation of the Fourteenth Amendment. The Constitution of New York contained both due process and cruel and unusual punishment clauses comparable to those of the Federal Constitution. In denying the writ (and thereby in effect affirming the state court's decision) Chief Justice Fuller, speaking for the entire Court, said:

"Punishments are cruel when they involve or a lingering death; 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. (p. 447) * * * * * "The enactment of thisS:atute was in itself within the legitimate sphere of the legislative power of the state, and in the observance of those general rules pre­ scribed by our systems of jurisprudence; and the legis­ lature 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 petitioner, or deprived him of due process of law. " (p. 449) 8.

A third death case was Francis v. Resweber, 329 U.S. 459

(1947), where a first attempt to electrocute a convicted murderer failed and he filed writs of habeas corpus and prohibition to prevent a second execution attempt. Petitioner invoked the Eighth and

Fourteenth Amendments as well as double jeopardy. In a plurality opinion by Justice Reed, concurred in by Chief Justice Vinson and

Justices Black and Jackson, the denial of relief by the Supreme Court of Louisiana was affirmed. On the Eighth Amendment question, the plurality 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 method 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. 436)

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, in a concurring opinion, said:

.. , .-, 9.

"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).

Mr. Justice Burton, with whom Justices Douglas, Murphy and

Rutledge joined, thought that a second electrocution would offend the due process clause, and accordingly dissented. But the dissenting opinion expressly recognized the validity of capital punishment:

"In determining whether the proposed procedure is unconstitutional, we must measure it against a law­ ful electrocution. The contrast is that between instantaneous death and death by installments-caused by electric shocks administered after one or more intervening periods of complete consciousness of the victim. Electrocution, when instantaneous can be inflicted by a state in conformity with due process of law. In re Kemmler; 136 U.S. 436. " (p. 474)

The most recent case in which the sentence of death was discussed and affirmed by this Court was McGautha v. California,

402 U.S. 183 (May 3, 1971). The case involved the sentencing

procedures in ~:· California and in Ohio, with petitioners from each of those states having been convicted of first degree murder and sentenced to death. * The precise issue before the Court was whether

~ *In California there was a two-stage procedure with a separate jury consideration of the penalty following determination of guilt. In Ohio guilt and punishment were determined by the jury in a single proceeding. 10. the delegation of absolute discretion to the jury, either in unitary or in two stage proceedings, violated procedural due process safeguards of the Bill of Rights. In addressing this issue both the majority and dissenting opinions necessarily assumed the validity of the death sentence. Mro Justice Harlan, speaking for the Court, reviewed the history of capital punishment at the outset of his opinion.* The Court held:

"In light of history, experience, and the present limita­ tions of human knowledge, we find it quite impossible to say that commiting to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. " (p. 207)

Mr. Justice Black, concurring in a separate opinion, was even more specific:

. "The Eighth Amendment forbids 'cruel and unusual punishments. ' In my view these words cannot be read to capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punish­ ment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power. " (p. 226)

Although not addressing directly the capital punishment issue, it is fair to say that the lengthy dissenting opinions of Justices Douglas,

Brennan and Marshall assumed that the death sentence could be validly

*McGautha v. California, supra, 197 et seq. ll.

imposed. They found the procedures delegating complete discretion to juries, without prescribing standards, to be a denial of procedural due process.*

Each of the four cases discussed above involved, in effect, the affirmance of a death sentence where its validity was attacked either as violative of due process or the Eighth Amendment or of both.

In the narrowest sense it is correct to say that in none was there a frontal attack upon the constitutionality of the death sentence. Yet,

the opinions in these cases were '~ "singularly academic exercises" if the Constitution proscribes that penalty in all cases.** The Court in each case went beyond an unarticulated assumption of validity. The power of the states to impose capital punishment was repeatedly and expressly recommended.

The precedents overturned or ignored by today's majority decision are not limited to those cited above. In a number of other cases this

*The opinions in McGautha are of particular interest as they were rendered at the last term of this Court, less than a year ago, McGautha was most carefully considered, with the majority, concurring and dissenting opinions requiring 127 printed pages of volume 402 of our report. There is no hint in these lengthy opinions of any doubt as to the constitutionality of the death sentence per se.

**See Respondent's Brief in Branch v. Texas, No. 69-5031, at p. 6. 12.

Court, or members of it in concurring or dissenting opinions, have stated or assumed the constitutionality of capital punishment.

Witherspoon v. Illinois, 391 U .S. 510 (1968); Robinson v. California,

370 U.S. 660 (1961); Trop v. Dulles, 356 U.S. 86 (1957); and Weems v. United States, 217 U.S. 345 (1910).

The plurality opinion in Trop is of especial interest. Written by Chief Justice Warran, and joined by Justices Black, Douglas and

Whittaker - with Mr. Justice Brennan concurring in the result -the opinion contains the following language which is the foundation - indeed, virtually the sole judicial support - for the present assertion of unconstitutionality:

"The Court recognized in that case (Weems v. United States, supra) that the words of the (Eighth) 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. " (p. 101)

That the foregoing larguage was never intended by Chief Justice

Warren, and those who joined him, to lay the foundation for judicial termination of the death sentence is crystal clear from the context. fu the identical paragraph, and only three sentences removed from the glancing reference to "evolving standards of decency", the opinion states: 13.

1 '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. " (p. 100)

Similarly, in the preceding paragraph, Chief Justice Warren said:

"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. " (p. 99)

The issue in Trop was whether the forfeiture of citizenship of a deserter in wartime, who has gone "over the hill" for less than a day and had willingly surrendered, was cruel and unusual. Although it was reocgnized expressly in both the plurality and dissenting opinions that desertion in wartime "may merit the ultimate penalty"* the question on which the Court divided was whether divestment of citizenship under the circumstances of the case was unconstitutionally disproportionate to the offense.

Perhaps enough has been said, without further analysis of prior dreisions, to establish that in no less than eight cases, extending from

1870 to May 1971, this Court has affirmatively recognized the validity

*Trop v. Dulles, supra, at p. 92 and 125. 14. of capital punishment and the power of the legislative branch to authorize it. In at least four of these cases, where specific death sentences were sustained against constitutional attack, the assumption of con- stitutionality was essential to the Court's holding. In two of these cases the Court held explicitly that the death penalty did not offend the due process clauses. These four decisions were joined in by Chief

Justices,* and by --- Justices of this Court. ** No Justice of this

Court, until today, has dissented from this consistent reading of the

Constitution. The doctrine of stare decisis is not confined to prior decisions precisely in point. If it is a doctrine founded in principle, as I have supposed, it :is: surely applies where there is a long line of cases accepting, endorsing or necessarily assuming the validity of a particular rule, legal position or interpretation. Far less violence is done to stare decisis in overruling a single ancient square precedent than in repudiating the opinions expressed and joined in by ---

Justices of this Court for nearly a century.

*Name the Chief Justices.

**Name the Justices who so joined. 15.

III.

Petitioner seeks to rationalize and avoid the authority of the

foregoing cases, without expressly overruling them, by reasoning which

will not stand analysis. Petitioner's brief in this case (Aikens) sets the

pattern. Relying primarily on Weems and Trop* for the view that the

meaning of the Eighth Amendment is derived from "evolving standards o f decency," it is said that the controlling standards must be determined

r as of 1972 rather than 1 71:

"If 1791 is indeed the constitutional benchmark and if the Constitution does not forbid capital punishment today upon the theory that it was widely allowed by law and practice in 1791, then the Eighth Amendment also does not forbid today- and will never forbid­ the stocks and the pillory, public flogging, lashing and whipping on the bare body, branding of cheeks and forehead with a hot iron, and the slitting, chopping, nailing and cutting off of ears." (Petitioner's Brief, p. 17, 18)

* * * * *

"Nor can we believe that the Amendment's pro­ hibition is restricted to live disembowelment and similar long gone butcheries. . . . " (Petitioner's Brief, p. 20).

The fallacies in this exaggerated'kll or nothing" reasoning

would seem too obviou.s to merit discussion were it not for the zeal

*Petitioner cites other authorities also for the familiar view that the general clauses of the Constitution are "not static" and express principles which may be applied differently as conditions change. Brown v. Board of Education, 347 U.S. 483 (1954); Cardozo, "The Nature of the Judicial Process" (1921) 83. 16. with which it is urged. No one suggests that every form of punishment sanctioned in 1791 would be permissible today. Nor does anyone - in this case or in any literature with which I am familiar - assert that the Amendment's prohibition is "restricted to live disembowelment and similar long gone butcheries. "*

The decisions of this Court have applied evolving standards E gradually on a case-by-case basis. In Weems, for example, a 15 year sentence to "hard and painful labor", bound in irons hand and foot, was adjudged to be unnecessarily cruel and disproportionate to the relatively minor offense of falsifying a public record. In Trop the depriving of citizenship permanently for less than one day's desertion was held to be so grossly disproportionate to the offense as to violate the Eighth

Amendment. Similarly, in O'Neil v. Vermont, 144 U.S. 323 (1892), a sentence of 54 years imprisonment at hard labor for violating intoxicating liquor laws was held to be disproportionate, severe and excessive. In none of these cases - nor in any other - did the Court adopt the absolutism advocated by Petitioner. It did not hold that 54 years of imprisonment is always excessive or that withdrawal of

*The reference to butcheries bring; to mind the nature of the for which Petitioner was convicted. All three of Aiken's victims were stabbed to death with knives - two after being raped - from the victims' kitchens. 17. citizenship is always a cruel and unusual punishment. Indeed, in Weems the Court did not hold that 15 years of imprisonment in irons is always, under all circumstances, a per se violation of the Constitution, although had the case been decided in 1972 rather than 1910 it may well have so held.

Standards as to what constitutes cruel and unusual punishment do evolve. But the concept of "evolving" - is one of gradualism and progression. This is especially true with respect to imposing punishment.

Neither the Congress nor the legislature of any state would today authorize execution by burning at the stake. Certainly no court would validate that method or any other deemed to be unnecessarily cruel in the imple- mentation of a death sentence. Similarly, there may well be an evolving attitude with respect to the application of the death sentence with respect to various types of crime. This is already reflected in the laws of the various states and of foreign countries which are increasingly discriminating in the type of crime to which the sentence may be applied.*

But in this case Petitioner eschews the traditional case-by-case process

*Two of the cases before the Court, namely Branch v. Texas and Jackson v. Georgi~, involve the crime of rape. The Fourth Circuit has held that under certain circumstances the death penalty for rape is cruel and unusual. Ralph v. Warden, 438 F. 2d 786 ( 4 th Cir. 1970). 18. i(X

of evolution. Indeed, he repudiates the basis of his own premise that

standards do evolve. He insists upon an end of this process and the

substitution of a new dogma of absolutism.

But the illogic of Petitioner's position is not its principal

infirmity. The "evolving standards concept" cannot be applied to amend

the Constitution. The validity of capital punishment is :e:mqx implicitly

affirmed by the Constitution itself. No evolution of "standards of decency"

can remove from the Fifth and Fourteenth Amendments the explicit

references to capital crimes and to the taking of life pursuant to due

process of law. These can be removed only be amendment to the

Constitution in the manner prescribed. No court has authority to strike

these provisions from the Constitution or to ignore them.

If capital punishment can be read out of the Constitution so also

may the punishment of imprisonment. The two forms of punishment

specifically mentioned in the Fifth and Fourteenth Amendments are

deprivation of life and liberty.* In view of conditions reported to exist

. in some of oor prisons, perhaps a case could be made that imprisonment

*There is an unclear reference in the jeopardy clause of the Fifth Amendment to "life or limb", but this ambiguity with respect to "limb" is not repeated in the due process clauses of the Fifth and Fourteenth Amendments. 19. under certain primitive conditions is cruel and unusual. We have seen above that imprisonment in chains or for grossly excessive periods of time may be invalid. * But I am not aware that anyone has asserted seriously that all confinement in prison is per se unconstitutional.

Yet, logically this would be the next step.**

IV.

As the evolving standards theory cannot be squared with the

Constitution when applied as a rule of absolutism, it is unnecessary to consider whether in fact standards of decency commonly accepted today are incompatible with the imposition of the death sentence under any and all circumstances. But even if the Constitution were not as clear, and it be assumed that Petitioner's theory is meritorious, there has been no showing in this case that such standards have evolved to the level of general consensus that the theory subsumes.

Petitioner acknowledges that subjective judgments as to the wisdom or the "morality" of the death sentence are not enough.

Accordingly, Petitioner relies on purportedly "ofjective indicators"

:**Weems and O'Neil, supra.

**There is some support among criminologists for the view that all forms of punishment should be abolished.

. ~ 20. as to "society's prevailing standards of decency."*. These indicators briefly summarized, inci11de the assertion of (i) a "worldwide" trend toward disuse of the death penalty;(ii) a "progressive rejection" thereof growing out of an ideological and moral debate concerning with the

"principle of civilized treatment"; (iii) values which oppose capital punishment and which "lie very close to the roots" of our conception of a free society; (iv) a "decreasing trend of executions" which has been

e "consistent and dramatic" despite public agitation about and far of crime;

(v) "secrecy with which we hide away our executions" which prevents the public from being fully informed; and (vi) the view that executions tend to fall discriminatorily upon "minorities, the poor and the powerless."

The foregoing is an incomplete summary of Petitioner's presenta- tion of the "objective indicators" upon which he relies.** But these will suffice to convey the flavor of an argument which, if addressed to a legislative body, could be profoundly convincing. But it can hardly be said that in sum they constitute proof, acceptable to a court, of the proposition for which they are asserted. ***

*Petitiemer's Brief, p. 27.

**See Petitioner's Brief, pp. 27-61 for a full and eloquent exposition.

***Nor are all of the "indicators" relied upon as "objective" as Petitioner seems to believe. The principles of "civilized treatment" and the values of a "free society" are widely applauded until precise and specific definitions are require d. 21.

Moreover there are other indicators which - if a balancing were appropriate by this Court -would suggest as a minimum that standards

of contemporary judgment have not evolved to a point of general rejection.

Certainly, there is not the magnitude of rejection portrayed in Petitioner's

brief. In a balancing process, it would be the duty of this Court also to consider the following: (a) the Congress has retained on the statute books of our country no less than 10 provisions for the imposition of the death sentence, in addition to the various offenses for which it may be decreed under the Code of Military Justice; (b) as recently as 1965 the

Congress added the death penalty for presidential and vice presidential

assassinatiorr,;* (c) the legislatures of 41 states have retained this

penalty for a variety of offenses; (d) eight states, after experimenting

with abolition for various periods, restored it selectively; (e) although

some states have abolished the penalty in all cases others - including

New York as recently as 1967 - retained it for the murder of a police

officer or by a life term prisoner; (f) similarly, although a substantial

number of countries have severely limited or abolished the death

penalty, a number of these have retained it for certain extraordinary

*l8 U.s. C. Section 1751. 22. civil offenses and other countries have retained it in wartime or under military law;* and (f) state referenda indicate a trend of public opinion against abolition of capital punishment. **

The jury system is the basic guarantee against wide departure from prevailing community standards in the enforcement of criminal

penalties. As Mr. Justice stewart said, speaking for the Court in~

Witherspoon:

"When a jury 'must choose between life imprisonment and capital punishment' it can do little more - and must do nothing less - 'than express the conscience of the community on the ultimate question of life or death."\***

There is no indication that juries are unwilling to impose the death sentence when they consider the crime warrants it. Although the data

*England which first acted in 1965 on a trial basis, and again in 1969, retained the penalty for , piracy with violence, dock yards arson and certain military offenses. Other countries which have retained the penalty selectively include Canada, the four Australian jurisdictions, New Zealand, and Nepal. See Petitioner's Brief, Appendix 2E, n. 4E; see also Ibid., Table I.

**Although 60% of the vote in Oregon in 1964 favored abdition, the two most recent state referenda suggest a contrary trend. In a 1966 Colorado referendum, 66% of the votes were for retention of the death penalty. Similarly, as recently as 1970in Illinois, the vote for retention in a statewide referendum was 64%. See Respondent's Brief in Branch v. Texas, No. 69-5031, p. 8. This Court referred in a footnote in the opinion in Witherspoon v. Illinois, 391 U.S. 510, 520, n. 16 (1968) to a 1966 national poll indicating that 42% of the people favor capital punishment while 47% oppose it. Althou_gh public opinion polls seem of little relevancy, a 1968 poll reports 51% then in favor of retention of the death penalty. See Goldberg and Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1781, n. 39 (1970).

***Witherspoon v. Illinois, supra at p. 519, cited and quoted with approval by the Court in McGautha v. California, supra, at p. 202. 23. presented in this case is not adequate to support firm conclusions as to trends on a national basis, statistics submitted by the Attorney General of California indicate a fairly consistent imposition of the sentence in that state over the past 11 years.*

Petitioner does argue that jury verdicts and judgments are not as significant as the fact that actual executions have trended steadily downward and been at zero level since 1967. The force of this argument is diluted by the conceded fact that a virtual de facto moratorium has existed since 1967 awaiting the outcome of the numerous court challenges with respect to the procedures for imposing and the constitutionality of capital punishment. **

*See Respondent's Brief in Aikens v. Ca~ifornia, No. 68-5027, Table C at p. 64. This table, based on California Department of Corrections statistics, reports 36 prisoners were received under the death sentence in 1970 as compared with 20 received in 1961, with the intermediate years ranging from a low of 14 to a high of 27. The same table reports national statistics derived from the latest available publication of the U.S. Bureau of Prisons, National Prison Statistics Bulletin: Capital Punishment 1930-1968, which show 102 sentences in 1968 as compared with 140 in 1961, with the number in intermediate years ranging from a low of 85 to a high of 118. Petitioner argues, again without proof that juries have been willing to continue :tkR to award the death penalty because they do not expect it actually to be imposed. Decisions of constitutional dimension can hardly be predicated upon suppositions as unsupportable as this.

*The mortaotirum has been effectuated through judicial stays as well as executive clemency. Moreover, in addition to the impact of the de facto moratorium pending :xJmX resolution of the test cases, decisions of this Court given retroactive effect have - over the past decade - required the vacation of convictions (as well as the aborting of prosecutions) that would have led to executions. Such cases include Mapp v. Ohio, U.S. , ( ); and Miranda v. , U.S. , (w-). In additio-n,-­ landmark cases such as Fay, Tow"'ii"Seiid and Sanders have greatly enlarged and encouraged collateral attacks on convictions, with consequent delays in the carrying out of death sentences as well as the vacation of convictions. 24.

In any event, in the face of the action of the Congress, the legis- latures of an overwhelming majority of the states and the parliaments and legislatures of foreign countries, it can hardly be said that Petitioner has carried the burden which he assumed of showing even a consensus - and certainly not an overwhelming community judgment - in favor of the abolition of capital punishment in all cases. * In Francis, where the validity of a second electrocution was at issue, Mr. Justice Frankfurter drew a distinction between imposing punishment "in a manner that violates standards of decency more or less universally accepted" as compred with

:!~:me standards as to which "opinion is fairly divided. "**Perhaps it can be said that "opinion is fairly divided" as to the dealth penalty in most types of cases. It would be difficult to conclude, if general public opinion is the test, that there is even a fair division of opinion as to whether capital punishment should be outlawed in all cases under all circumstances, with the legislative branch of government forbidden to prescribe it selectively or experimentally. It does violence to reason to say that there is a "universally accepted" view to this effect.

*

**Francis v. Resweber, supra, at p. 469, 470. 25. v.

Although not presented by Petitioner as a constitutional issue on its own merits, the argument of discriminatory application of the death sentence is forcefully urged. It is presented as affording collateral support to the "evolving standards of decency" concept which is the central theme of Petitioner's case. It is argued that although the statutes imposing capital punishment are of general application, they are applied in fact most frequently and discriminatorily against

"the poor, the illiterate, the underprivileged, and the members of minority groups."* As persons in these categories are said to be relatively uninfluential**, it is contended that the public generally - and their representatives in legislative bodies - are either uniinformed as to the merits of capital punishment or simply do not care. This argument concedes the unsoundness of Petitioner's basic contention as to alleged

not prevailing community standards. It is now said, in effect,/that the death sentence offends existing community standards; rather, that it offends standards that would exist if such sentence were enforced in a discriminatory manner.

*See Petitioner's Brief, p. 51 et seq.

**In terms of the balance of political power, one might well disgree with the premise that the minority groups or "the poor" (as defined for welfare law benefits) are either uninfluential or unheard in this country. 26.

I will put aside this inconsistency for the purpose of addressing briefly the "discrimination" argument, as it has a certain emotional appeal. Persons charged with crimes of violence (including assault, robbery, burglary, rape and murder) are for the most part from the lower economic strata of society. This is not to say that such persons are inherently more disposed to crime. They are subject to fewer constraints and to greater pressures to commit crime. It is therefore inevitable that the death penalty falls more heavily on persons from these walks of life. The same can be said of life imprisonment and of the longer prison sentences. But the inevitable relationship between the higher incidence of crime among certain segments of our society and the penalties imposed therefor is not discrimination in a constitutional sense. If so, most of the prescribed panalties for crimes of violence would lack validity. There is a confusion of problems in Petitioner's argument. The root causes of the impact of penalties more heavily on "minorities and the poor" are not the criminal laws or their sanctions. They go far deeper and to more fundamental social, economic and political causes. 27.

A different argument can be made, although not pressed by

Petitioner in this case, predicated on the Fourteenth Amendment. This was the contention made in Maxwell v. Bishop, 398 F. 2d 138 (1968), *

where a federal court was urged to set aside a death penalty on the ground that it was discriminatorily imposed on a systematic basis in the

particular jurisdiction. In that case substantial statistical evidence

was introduced on behalf of the accused to support the position that in

Arkansas there was a consistent pattern of such discrimination. The

court did not hold such evidence to be improper. It did note that "we

are concerned ... only (with) Maxwell's case," and that the evidence

of discrimination was not sufficient to show a Fourteenth Amendment

violation with respect to Maxwell and his trial. Mr. Justice Blackmun,

then on the Eighth Circuit Court of Appeals, said:

"We do not say that there is no ground for suspicion that the death penalty for rape may have been discrimina­ torily applied over the decades in that large area of states whose statutes provide for it. There are recognizable indicators of this. But, as we have noted be:tiOre , with respect to the issue of j;ury selection, improper state practice of the past does not automatically invalidate a procedure of the present. Brown v. Allen, 344 U.S. 443, 479 S. Ct 397, 97 L. Ed. 469 (1953); Bailey v. Henslee, 287 F. 2d 936, 943 (8 Cir. 1961), cert. denied 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78. We do say that nothing has been presented in Maxwell's

*Vacated on grounds not here relevant, 398 U.S. 262 (1970). 28.

case which convinces us, or causes us seriously to wonder, that with the imposition of the death penalty, he was the victim of discrimination based on race. " (p. 148)

I agree that discriminatory application of the death sentence in the past, admittedly indefensible, is no justification for holding capital punishment to be invalid in all cases. There is even less reason

for saying, as was argued in Maxwel~ that because of a consistent pattern of discrimination "it would be constitutionally impossible for a Negro defendant in Arkansas ever to receive the death penalty" for the crime involved.* In any event, the discrimination issue is not before the Court in this case. It was not asserted in the Court below nor assigned as error by Petitioner. But Maxwell does point the way to a mears of raising thellpli!X equal protection issue in any case where the death penalty may be imposed.

If a genuine possibility of discrimination can be shown in the particular case, due to a demonstrable record of discrimination in the trial jurisdiction or other circumstances, we must assume that the

Fourteenth Amendment rights of such a defendant will be protected.

*Maxwell v. Bishop, supra, at p. 148. As noted by the 8th Circuit Court of Appeals in commenting on this argument, the result would be that non-minority group persons could receive the death penalty whereas members of minorities could not. 29.

If such doubts could be shown in pretrial procedures, change of venue is one possible remedy among others which may be available. The

jury system itself, properly administered~ should constitute the best safeguard against discrimination. The day is past when jury panels do not include a representative cross section of the community. This assures in most cases representation of minority and low income groups.

If one were to apply the "evolving standards concept" to the argument that the death sentence is discriminatorily applied, it is evident that such standards have evolved in a manner favorably to accused persons.

The assurance of fair trials for all citizens today is greater than at any

previous time in our history. O:t; putting it differently, the~ chance of a discriminatory application of the death sentence today is far less than in the past.

VI.

One of the arguments advanced against capital punish:.Jil ent is that it no longer serves rational legislative interests. Even if this submission were supported by the requisite evidentiary showing, it would not justify a holding that the Constitution does not authorize such punishment in appropriate cases. Legislation may fall where no permissible end or 30. purpose is served, but this Court has no authority to revise the

Constitution for such a reason. *

The argument, however, is not supported in this case on any theory of its application. The inconclusive statistical data and secondary authority cited by counsel fall far short of proving that the

Congress and state legislatures have acted irrationally by enacting and retaining penal laws which serve no legitimate aim or objective of society.

-+ The traditional objectives through to be served by capital punish- " ment are retribution and deterrence.** Let us consider briefly whether there is any rational basis for capital punishment either as a deterrent or as a reflection of the revulsion felt by the community for the type of crime committed.

It is true that "reformation and rehabilitation of offenders have become important goals of criminal jurisprudence" Williams v. New York,

337 U.S. 241, 248 (1949). But we have not held, and few would contend, that these are the only goals. Mr. Justice Brennan concurring in Trop, said:

* Larry: Any authority for this view?

**The r emoval or isolation of a dangerous person is also an objective, although this can be attained - at least in theory - by life imprisonment. Theaverate term served by persons sentenced to life is not said to be about 20 (?) years. (Larry - I think that Wright's Brief says this) 31.

"Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrence of the WX61~ wrongful act by the threat of punishment and XmDdt insulation of society from dangerous individuals by imprisonment or execution. " 356 U.S. 86, Ill.

Similarily, it was noted in the plurality opinion in Powell v. Texas, 396

U.S. 514, 530 (1967) that this Court "has never held that anything in

the Constitution requires that penal sanctions by. designed~ solely to achieve therapeutic or rehabilitative effects. . "

Reasonable men certainly may differ on these matters. The concept of retribution - though popular for centuries - is now widely criticized as unworthy of a civilized people. This view would have appeal to me if I were in a legislature. It is, however, by no means a unanimous view and there is certainly nothing in the record before this Court to indicate that it is even a majority view. Moreover, it can hardly be said that the case for retribution is not rationally arguable. Lord Justice

Denning, Master of the Rolls of the Court of Appeal in England, testified on this subject :itm before the British Royal Commission on Capital

.Punishment as follows:

"Many are inclined to test the efficacy of punishment solely by its value as a deterrent: but this is too narrow a view. Punishment is the way in which society expresses its denunciation of wrong doing: in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the

.., ... ;. 32.

revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. If this were so, we should not send to prison a man who was guilty of motor manslaughter, but only disqualify him from driving; but would public opinion be content with this? The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not. "*

The view expressed by Lord Justice Denning has some support from scholars, **and we know from everyday experience that many members of the public think that some crimes are so offensive - so shocking and revolting - that no penalty less than death satisfies community standards.

Whether the death penalty has merit as a deterrent is also subject to de bate. Statistical studies, based primarily on states which have abolished the penalty, tend to support the view that it is not a superior deterrent. The validity of conclusions drawn from these studies is disputed by some, and at most they cannot be accepted as proof that

*Statement of The Rt. Han. Lord Justice Denning, Royal Commission on Capital Punishment, Minutes of Evidence, 1949-53, p. 207.

**See Hart, The Aims of the Criminal Law, 23 Law and Contemporary Problems 401 (1958); Cohen, Reason and Law 50 (1968), and Packer, The Limits of the Criminal Sanction, 36-37 (1968). (Note to Larry: These citations come from Prof. Wright's brief, p. 14, and need to be checked out and verified. ) 33. the penalty does not deter certain types of crime under certain circumstances.*

It is not necessary for this Court to weigh the competing scholarly opinions or such statistical information as has been presented, largely in the briefs and without benefit of cross examination. Most opinions on a subject as emotionally oriented as this are likely to be subjective - whether they be opinions by ordinary citizens, scholars or even judges. Those who insist that there is no rational basis for the stated objectives of capital punishment have a heavy burden to carry.

They would have to show that reasonable men could not differ as to whether there are legitimate ends to be served by capital punishment - not just with respect to some crimes but as to all crimes without exception.**

*For discussions indicating divergency of opinions, see H. L.A. Hart, Murder and the Princi les of Punishment: England and United States, 52 N. W. Univ. L. Rev. 433, 457 957 ; Cohen, Law Without Order, 49-50 (1970); Bedo, The Death Penalty in America, 266-267 (2 ed. 1967); Cf. Goldberg and Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1796, n. 105 (1970). In addition see Royal Commission on Crime Punishment, Reports 1949-195~, Cmd. No. 8932, at 21, ~61 and at 24 ~68; 2 Working Papers of the National Commission on Reform of the Federal Criminal Laws, 1356 (1970).

*There might be wide agreement that capital punishment does not deter the type of murder resulting from family or love affair quarrels. No such level of agreement exists, however, as to murders which are premeditated -whether for personal gain, or to kill a policeman, or simply to gratify a lust to kill. 34.

There has been no such showing in this case. Cf. Ginsburg v. New York,

309 u.s. 629, 641-43 (1968). *

VII.

I now return to the overriding question in this case: Whether, with due regard to the separation of powers doctrine and the respective roles of the legislative and judicial branches, this Court has the power to abolish capital punishment for all crimes and under all circumstances, denying to the Congress and to the several states all power to legislate with respect thereto. The language of the Constitution itself, as consistently interpreted and applied by this Court over the years, afford for me a conclusive answer to this question. But even if the Constitution itself were ambiguous and there were no relevant decisions of the

Court supporting the validity of capital punishment where prescribed by the legislature, it is difficult to perceive how recent notions* as

*It is impossible to say with certainty ·whether capital punishment significantly reduces the incidents of heinous crimes." President's Commission on Law Enforcement and Administration of Justice, 1967, p. 143.

**That the absolutist view is of contemporary origin is demonstrated by the views of this Court and its members expressed in the cases cited, the most recent being McGautha decided May 3, 1971.

v • .; .. 35. to the meaning of the ancient "cruel and unusual" language can confer upon the judiciary a power traditionally exercised by the legislature.

It is important to keep in focus the enormity of the decision proposed. We are not asked to conclude,as in Weems and Trop, that the punishment decreed in a particular case is constitutionally cruel and unusual.* Rather, the demand is that we hold that neither the

Congress nor any state legislature may authorize capital punishment in any case.

No court in this country has assumed that the judicial power reached so far. Nor have we been cited to analogous judicial action in any other country, although counsel for Petitioner emphasized that most countries of the western world have abolished capital punishment in whole or in part. We know that in the countries most comparable to ours that abolition came only after careful legislative study, **and:tkxk certain crimes were excepted.

It is also well to remember that the consequences of judicial abolition are vastly more far-reaching than those of similar legislative

to s the separation of powers, action. Quite apart from due reference im~XXimB!OO~mddlm:xieq~K2d!dxzle

*(Larry - add note about the rape cases)

**Royal Commissions in England and Canada ( ?) 36. there are sound reasons for pursuing a less authoritarian course.

If this Court holds that capital punishment is unconstitutional, a decision will have been made by a majority of nine Justices that is me binding

upon the federal government and the 50 states unless and until reversed

by the laborious and cumbersome process of constitutional amendment.

Meanwhile, all flexibility will have been foreclosed. All opportunity for

experimentation will have been shut off. The normal process of

democracy, as well as the opportunities of the several states to respond to the will of their people (as in Illinois and Colorado, for example) will

be denied. It would be far wiser to follow the course of England and

other countries which have first enacted proscribing legislation for

trial periods, and thereafter OOBpEK excepted certain type.s of crimes.

The overriding merit of legislative action is that it is not irrevocable

and mistaken judgments can be corrected by the democratic process.

We are asked, in a judicial proceeding and on the basis of briefs,

a few hours of oral argument and limited records, to~ make a judgment

of "all or nothing", and to make it li7XKl without the benefit of exhaustive

investigation and study which can be accomplished only through presidential

commissions and legislative committees.

.-'! ,'... 37.

As recently as 1967 a Presidential Commission did consider, as

a part of an overall study of crime in this country, whether the death

penalty should be abolished. The Commission's unanimous recommenda-

tion was as follows:

"The question whether capital punishment is an appro­ priate sanction is a C~( policy decision to be made by each state. Where it is retained, the types of offenses for which it is available should be strictly limited, and the law should be enforced in an evenhanded and nondis­ criminatory manner, with procedures for review of death sentences that are fair and expeditious. When a State finds that it cannot administer the penalty in such a manner, or that the death penalty is being imposed but not carried into effect, the penalty should be abandoned. "*

The thrust of the Commission's recommendation, as presently

relevant, is that this question "is a policy decision to be made by

each state." There is no hint that this decision could or should be

· made by the Judicial Branch.

*President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, p. 143 (1967~ chaired by Nicholas Katzenbach, then Attorney General of the U.S. The text of the Report stated, among other things, that the abolition of the death penalty "is being widely debated in the states"; that it is "impossible to say with certainty whether capital punishment significantly reduces the incidence of heinous crimes"; that "whaever views one may have on the efficacy of the death penalty as a deterrent, it i3: clearly has an undesirable impact on the administration of criminal justice"; that "some members of the Commission favor the abolition of capital punishment, while other members favor its retention; and that "all members of the Commission agree that the present situation in the administration of the death penalty in many states is intolerable ... " Ibid. p. 143. As k a member of this Presidential Commission I subscribed then, and do now, to the recommendation and views above quoted. 38.

The National Commission on Reform of Federal Criminal Laws also considered the capital punishment issue. The introductory commentary of its final report states that "a shart division (existed) within the Commission on the subject of capital punishment, although a majority favored its abolition." Again, the consideration of the question was directed to the propriety of retention or abolition as a legislative matter. There was no suggestion that the difference of opinion existing among Commission members, and generally across the country, could be resolved at one stroke - and with utter finality - by a vote of this Court.**

Mr. Justice Holmes noted that consideration of the constitutionality

of~ legislation'x "is the gravest and most delicate duty that this court is called on the perform. ~~1 Blodgett v. Holden, 275 U.S. 142,

148 (1927). If this can be said with respect to a single price of legis-

*National Commission on Reform of Federal Criminal Laws (Larry: provide correct citation to the Report and to the Working Papers, pp. 1347-76).

**The American Law Institute, after years of study, recommended a Model Penal Code xDt for the states. Before the proposed "official draft" was approved, there were nine tentative drafts. Although both the Advisory Committee and the Council favored abolition of the death sentence, it was not suggested that this was a judicial rather than a legislative matter. The focus of the opposition centered on doubt as to the deterrent usefulness and the harmful effect :m1 of the death sentence on the administration of the court system. (Larry: Please provide the correct citation.) 39. lation, perhaps recently enacted, it surely applies with geometric progression in this case. This Court has repeatedly announced its allegiance to juducial restraint.*

With deference and respect for the views of Justices who differ, it seems to me that as a matter both of policy and precedent this is a classic case for the exercise of restraint as well as respect for the role of the Legislative Branch. It also seems to me that sweeping judicial action, which will be thought to be precipibwus by many, reflects a lack of faith and confidence in democracy itself. We may regret, as I do, the failure of legislative bodies to address the capital punishment issue frankly and effectively and the failure either to abolish the penalty entirely or selectively, or to establish appropriate and nondiscriminatory standards for its enforcement and insist that these be observed. But impatience with the slowness and even the unresponsiveness, of legislatures is no justification for jjdicial intrusion upon their historic powers. Perhaps we can gain comfort from the view so confidently expressed by Petitioner's counsel that capital

*(Larry You may pick up a few~ citations here, in addition to those so frequently attributable to Mr. Justice Frankfurter, such as his opinion in Trop - p. 119 and in 'ixxB Francis v. Resweber at 470, 471.

...... 40. punishment "affronts the basic standards of decency of contemporary society" and "is inconsistent with the self respect of a civilized people".

If counsel is even approximately right, it should not be much longer before the Congress and the legislatures of our states take action. lfp/ss 2/10/72

MEMORANDUM

TO: Mr. Larry A. Hammcmd DATE: February 10. 1972

FROM: Lewis F. Powell, Jr.

In my memo to you coocemlng the Aikens case, I mentioned the omission - in my draft memo - of reference to relevant state and Circuit Court decisions.

If you find a particularly strong decision, please bring it to me attention.

L. F. P., Jr. F.ve.t. ;. ·'· Yc.l!NG'.n Ai r~~~ • ··r r. ·tzc...-'1.!...

Febrvary 22, 1972 AIR MAIL/SPECIAL DEL IVERY --·-·------I I Th~ Honorable E. Robert Seaver, Clerk Supreme Court of the United States I Washington, D.C. 20 543 I

Attention: Michac 1 Rodak, Jr. ) )hie f Deputy Clerl-:: --.. Re: AH::ens v. Cali__for·n :~~ (No . 68-5027) People v. And~_Tson (C al. SupJ.'eme Court No. 13617, decided 2/18/ 72) Dear Mr. Ro

In accordance with our t e l ephone convcrsat1on t n:L::> mornine;, I am forwar·d:i.ng to the Cour t the fo1loviing :LnJ':'or·ms.tion which may be2r upon the Aike n~ case. On February 18, 1972, the California Supreme Cou rt r endered an opinion in the Anderson case , which opinion I und erstanct is already avaiJ abietOthe Court. In that opinion the court declared the death penalty to be unconstitutional under Article I, section 6, of the California Constitution, v.1hich proscribes nc ruel or' unusual punishments." The undersigned , counsel for respondent in both the Aikens case and. the Anderson case, represents as follmvs: 1. Respondent on or before March 3, 1972, will file a petition for rehearing :i.n the An~e-~S<2__12_ case . (See Cal. · Rules of Court, Rule 27.)

2. The decision of the California Supreme Court in the ~~~e1~ son case is not a fina l deci:=;ion , nor· will it become final until, at the earliest, thirty days after the date of decision (i.e., by March 19, 1972). (See Cal . Rules of Court, Rule 24.) -- --

3. By reason of the filing of the contemplated pet i ti.on for 1:ehe8.ring, or for any other reo. ;:; on , the California Supreme Court may extend by up to an additional Hen. E. Robert Seaver, Clerk Supreme Court of the United States February 22, 1972

Re: Aikens v. CalifOJ·nia (No. 68-)02'7) people v. Ande!:~on (C al. Supreme Court No. 13617)

2. sixty days the date upon which its decision is to become final. (Sec Cal. Hules of Court, Rule 214. ) 4. In the event respondent's petition for rehearing is denied by the California Supreme Court, respondent intends to file with this Court an appeal or a petition for writ of certiorari in the Anderson case. 5. Such an appeal or petition for writ of certiorari would present a substantial federal question, despite the California Supreme Court's basinB of its decision on a purportedly state constitutional ground. (a ) Legal and semantic authority indicates that the words "and" and "or" are haphazardly and interchangeably used in statutory and constitutional drafting, in particular with reference to the problem of 11 crue 1 and/ or unusual punishment." 'rhus the meaning of the federal and California constitutional provisions must be identical. (See letter of Respondent to the California Supreme Court, attached her·eto. ) (b) The op1n1on of the California Supreme Court in thA Anderson case decides specifically that the death penalty is both "cruel" and "unusual. " Therefore, the California Supreme Cou rt 's decision on this matter must of necessity be governed by this Court's decision in Aikens on the issue whether the death penalty constitutes "cruel and unusual punishments." 6. As is indicated in the aforementioned attachment to the present letter, there are nineteen States whose constitutional provisions against cruel and unusual punishment employ "or,'' twenty-two States employing "and, 11 and six employing only "cruel . 11 Thus it can be anticipated that there will be other States, regardless of which wording is employed Hon. E. Robert Seaver, Clerk Supreme Court of the United States February' 22, 1972

Re : JUkens v . Californi0 (No. 68-502'7 ) . reop_J~ v. AD.dcrsonTCal. Supreme Court No. 13617)

3. i n tl1eir constitutions, that will reach decisions contrary to t hat reached by the California Supreme Court. Respectfully submitted, EVELLE J. YOUNGER, Attorney General Of the State of California

By @,e.('(!f(J!//e/0f, RONALD M. GEORGE, Deputy Attorney General Of the State of California

Rl'1G : cw Attach ,

Encl: 1 0 cc w/ Attach . STATE OF CALIFO F~NIA .,

OFFICE OF T!lE ATTO:::>. EY .GE1\EIUL :p, ~· ~·t~ ·f1'11'1tf ·1·~ :; flTf"~1rt\ - '4{··" ...... t · ~ .. -~ ! i. d , .. ll '"'-· r.

S TATE E UILOi i': G, LOS A N G ELES QOOIZ January 5, 1972

The Honorable Dona l d R. Wright Chief Justice of the Supreme Court of California 217 West First Street Room 1005 Los Angeles, California 90012 Re: People v. Anderson Crim.--No. 13617 Dear Chief Justice Wr i ght: Purs uant to orders of the Court filed De cemb e r 21 , 1971, and December 23, 1971, respondent in the above ca se was granted leave to file a response to briefs amici curiae. Said amici brief3 have been filed, as has a supplemental brief by appellant. In light of respondent's prior lodging with the Court of ten copies of Respondent's Brief in Aikens v. California, there i s only one point which at this time appears to merit further response by respondent: the argument by appellant and amici that use of' the word "or" i n California's prohibition against the infliction of "cruel or unusual punishment s " (Cal. Const. art. I, § 6) ~

2.

The Constitutions of ~ ·.. .-:: nty-two States prohibit "cruel and unusual punishment C: Alaska, Arizona, Colorado:-Georgia, Idaho, India: '- , Iowa, Louisiana, Missouri, Montana, Nebraska, New Jersey, :. .ew , New York, Ohio, Oregon, South Carolina, Tennessee, Utah, Virginia, West Virginia, and Wisconsin. Ibid. Six States have constitutional provisions barring only "cruel" punishment: Delaware, Kentucky, Pennsylvania, Rhode Island, South Dakota, and Washington. Ibid. Illinois' Constitution of 1970 provides: "All penalties shall be determined both according to the serious­ ness of the offense and with the objective of restoring the offender to useful citizenship," this provision b~ing viewed as identical in meaning to the former constitutional mandate that 11 penalties shall be proportioned to the nature of the offense." (Ill. Const. art. I, § 11, ~nd commentary (Smith-Hurd Ill. Ann. Stats. 1971).) Only Connecticut and Vermont have no constitutional provision. But Connecticut makes cruel or unlawful punish­ ment a crime (Conn. Gen. Stats. Ann. § 53-20 (West 1960), and Vermont incorporates into local law the common law of England, which in turn prohibits cruel and unusual punish­ ment. (Vt. Stats. Ann. tit. 1, § 271 (Equity Pub. 1958); State v. O'Brien, 106 Vt. 97, 107-08 [170 A. 98, 102] (1934).)

With reference to the relative rn~aning of the words "cruel 11 and "unusual, 11 Chief Justice Warren's opinion in Trop v. Dulles , 356 U.S. 86, 100 (n. 32), noted: ttWhether the -­ word 'unusual' has any qualitative meaning different from 'cruel' is not clear." However, Justice Mosk has written that "since the California Constitution employs the disjunctive, we must assume each word has a distinct meaning." r·1osk, The Eighth Amendment Rediscovered, 1 Loyola L. Rev. 4, 18 (1'9b8). Justice i>Iosk' s article suggests that the difference in wording between the federal and California constitutional provisions 11 may be of significancP. 11 (id., 17) and discusses some of the possible definitions of the words "cruel 11 and 11 unusual." (Id., 17-20.) The history of the adoption of the Bill of Rights and of the Eighth Amendment in particular, suggests that the composition of the language of that amendment was less than a hi~hly deliberate act. (See Respondent's Brief The Honorable Donald R. Wright January 5, 1972

3. in Aikens v. California, pp. 40-42, in particular fn. 22 quotlnf" Granucci, 'fiTor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839, B1f(f:"4Trn:ln-o9-o 9) . ) In turn, nineteen States' use of the word "or", twenty-two States ' use of the \'lord "and", and six States' phrasing t heir limit ation on punishments in terms of only cruelty, indicate that the variance in phraseology among the different provisions is probably totally fortuitous. Can it be seriously envisaged that No rth Carolina's use of the word "or 11 was intended to impose limitations upon that State' s Legislature greater than those intended by the people of South Carolina to apply to its Legislature by t'1e use of the word "andlt? The constitutional history of California's pro­ vision, oet forth at length by appellant (App. Supp . Br. pp. ~-8(n.l2 )), reflects an unexplained-- and apparently haphazard -- change in the wordin ~ of the proposed provision from "and" to "or 11 one month subsequent to the Constitutional Con vention's rejection of a constitutional provision that wou ld have expressly forbidden capital punishment. Respondent's position is that there is no differ­ ence in meaning between the Eighth Amendment's prohibition against ncruel and unusual punishments" and Article I, section 6's prohibition against ''cruel or unusua l punish­ ments." See In re Anderson, 69 Cal. 2d 613, 629-32. Respondent's conclusion is buttressed not only by the foregoing constitutional history, which militates against ascribins any substance to the difference in conjunctions, but also by other legal treatment of the semantic problem 11 11 11 11 of and and or • The late Justice Harlan wrote for the United States Supreme Court in the context of a problem in statutory construction in the Copyright Act: "He start with the proposition that the v:ord 'or' is often used as a careless substitute for the word 'and'; that is, it is often used in phrases where 'and' would express the thought with greater clarity. That trouble with the word has been with us for a long time . . 11 De Sylva v. Ballentine , 351 U.S. 570, 573.

'·. I The Honorable Donald R. Wright January 5, 1972

4.

Similarly on ~ of the foremost authorities in the field of ~tatutory co~ ~ ruction has written with respect to the use of "and" and ··_:'": "There has been, however, so great laxity in the use of these terms that courts have generally said that the words are interchange­ able and that one may be substituted for the other, if to do so is consistent with the legis­ lative intent. [Footnote omitted.] Courts have ••. frequently misjudged the legislative intent and substituted one term for anoth~r, usuallY. restrictively . . • . " Sutherland, 2 Statutes and Statutory Construction 451-52, § 4923 (3d ed. 1943). This principle appears to guide statutory and constitutional interpretation in California. '''When necessary to harmonize the provisions of a statute or give effect to all of its provisions, the word "and" may be read as "or 11 and conversely. [ Citation.]' . . . " People v. \.fright, 131 Cal. App. 2d Supp. 853, 862. By way of further illustra­ tion, section 64012 of the California Agricultural Code, enacted in 1967, provides: "'Or' and 'and,' may be construed as interchangeable, as the context may require. 11 And in People v. Mattson, 51 Cal. 2d 777, 791-92, this Court interpreted the constitutional rieht "to appear and defend, in person and with counsel'' (Cal. Const. art. I, § 13, emphasis supplied) to provide only the alternative of representation by counsel or in propria persona. For the foregoing reasons respondent submits that there is no legal significance in the different wording of the United States and California Constitutions regarding cruel and unusual punishment. Respectfully submitted, EVELLE J. YOUNGER, Attorney General

By R§~a£~E~( ~ifk . Deputy Attorney General RMG: cw cc: J. Falk, Esq. A. Amsterdam, Esq.