,

:1\l" ~DRAFT

SUPREME COURT OF THE UNITED STATES

No. 68- 5027

Earnest James Aikens, Jr. , On Writ of Certiorari to the Petitioner,

Supreme Court of Cali-fornia.

v. State of California.

[May - , 1972]

Memorandum of MR. JusTICE PowELL.

The Court granted certiorari in these cases to con­sider whether the death penalty is any longer a per­missible form of punishment consistent with the constitutional prohibition against cruel and unusual punishments. 403 U. S. 952 (1971). The question is one of grave importance. Our decision, whatever the ultimate resolution, will affect directly the lives of some 700 persons presently under sentence of death in state and federal prisons. It will likewise affect all those throughout the country awaiting trial on charges for which capital punishment is a potential alternative. The impact on these countable few, however, consti­tutes only the most visible consequence which will flow from the resolution of the question we are now called on to decide. Less measurable, but of no less signifi­cance, are the potentially shattering effects these cases may have on the root principles of stare decisis, federal­ism, judicial restraint and- most importan tly- separa­tion of powers.

We are urged to reject as not decisive the clearest evidence that the Framers of the Constitution and the authors of the Fourteenth Amendment believed that those documents posed no barrier to the death penalty. We also are asked to set aside an unbroken line of precedent reaffirming the heretofore virtually unq ues-

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2 AIKENS v. CALIFORNIA

tioned constitutionality of capital punishment. Because of the pervasiveness of the constitutional ruling sought by these petitioners, this suggested departure from estab­lished precedent would of necessity invalidate a stag­gering number of state and federal laws. The capital punishment laws of no less than 40 States and the Dis­trict of Columbia would be nullified. In addition, a dozen provisions of the Criminal Code of the United States and 10 sections of the Uniform Code of Military Justice would be voided. The judgment we are asked to make would not only wipe out laws presently in existence, but would hereafter deny to Congress and to the legislatures of the 50 States the power to adopt new policies on this most difficult question contrary to the policy selected by this Court. Indeed, it would deny to the people within each State the prerogative to amend their own constitutions to provide for capital punishment even selectively for the most heinous crimes.

In terms of the constitutional role of this Court, the impact is all the greater because the decision we face arises in an area. squarely within the historic preroga­tive of the legislative branch- both state and federal­to protect the citizenry through the designation of pen­alties for prohibitable conduct. It is the very sort of j uclgment that the legislative branch is competent to make and for which the judiciary is ill-equipped .. Throughout our history, Justices of this Court have­emphasized the gravity of decisions invalidating legisla­tive judgments, admonishing the nine men who sit on this Bench of the duty of self restraint, especially when called upon to apply the expansive clue process and cruel and unusual punishment rubrics. I can recall no case in which, in the name of deciding constitutional questions, this Court has been asked to subordinate na­tional and local democratic processes to such an extent.

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AIKENS v. CALIFORNIA · 3

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t The Constitution itself Jtlain~ica~ tha~t ~apital 1 punishment is§ per se unconstitutio11al. The relevant

provisions arc the Fifth, Eighth , and Fourteenth Amend-ments. The first of these provides in part:

"No person shall 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 .... "

Thus, the Federal Government's power was restricted in order to guarantee those charged with crimes that · ~ the death penalty could not be exacted without du~ ~ ~ process or " ·ithout the i.mpramatc.1:l-F'of a grand jury, c:t=_ and that the prosecution would have only a single op-portunity to convict. The Fourteenth Amendment, adopted some 77 years after the Bill of Rights. imposrci these due process limitations of the Fifth Amendment upon the States' po,Yer to impose capita.] punishment.

The Eighth Amendment, adopted at the same time as the Fifth, proscribes "cruel and unusual" punish­ments. In an effort to discern its meaning, much has bren written in the opinions of the C'ourt and elsewhere about the history predating the passage of the Eighth Amendment.' That history need not be restated here

1 For a thorough prrsrntation of ihc history of the Cruel and Unusual Punishment Cl::tusc sre l\TR . .TURTrcg MARSHALJ}s opinion todny, at 3-9. Srr nl:;:o Weems v. United States, 217 U.S. 349, 389-409 (1910) (\rhitr, .T ., di~~rntin!!;) ; O'Neil v. Vermont. 1-!4 U. S. 323, 337 (1892) (Firlcl , J ., cli~srnting) ; Robinson v. California, 370 U. S. GGO (1962); Granurci. Nor Crud and Unusual Punishments Inflicted: The Originnl Meaning, 57 Cnlif. L. Rev. 839 (1969).

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4 AII\:E~S v. CALIFORNIA

since, whatever the Framers of the Constitution may have intended to prohibit under the "cruel and unusual" language, there cannot be the slightest doubt '~~e¥-~­t 1ry intended ts }'rsvide an absolute bar on the Gov­ernment's authority to impose the death penalty. McGautha v. California, 402 U. S. 183, 226 (1971) (Black, J., concurring). As much is made clear by the three references to capital punishment in the Fifth Amendment.~ Indeed, the same body that proposed the Eighth Amendment also provided, in the First Crime Act of 1790, for the death penalty for a number of

---.£ffenses including murder. 1 Stat. 112. Of course, the specific prohibitions within the Bill

of Rights are limitations on the exercise of power; they are not an affirmative grant of power to the Govern­ment. I, therefore, do not read the several references to capital punishment as foreclosing this Court from considering whether the death penalty in a particular case offends the Eighth and Fourteenth Amendments. Nor are "cruel and unusual punishment" and "due process of law" static concepts whose meaning and scope were sealed at the time of their writing. They are designed to be dynamic and to gain meaning through application to specific circumstances, many of which

2 Additionally, Arf. I , § 9, of the Constitution, prohibiting bills of attainder, buttresses the conclusion that capital punishment was an ingrained element of criminal punishment when the Constitution was written. A bill of attainder, as it was primarily known at common law, was a legislative declarat ion of guilt calling for the punishment of death. While IC'gislative punishments less than death were also prohibited by our Constitution, the primary thrust of the prohibition was to bar legislative death sentences. The bar was against the· forum of punishment ; not against the punishment itself. See Ex 1mrte Garland, 71 U. S. (4 Wall.) 333 (1867) ; Cummings v. Mis­souri, 71 U. S. (4 Wall.) 277 (1867 ) ; Norville, Bill of Attainder­A R ediscovered ·w ea pon Against Discriminatory LegiRlntion, 26 Ore. L. R ev. 78, 86-89 (1947).

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AIKENS v. CALIFORNIA 5·

were not contemplated by their authors. While flexi­bility in the application of these broad concepts is one of the hallmarks of our system 0 gQ.v th

~ourt in the HliP'Y.Q ef "QvelYing sta,nEiaPEit11r is not

ree to read into the Constitution a meaning which is .-J .1~· plainly at variance with its ma~-tif9~t iHten~Both the language of the Fifth and Fourteenth Amendments and the history of the Eighth Amendment confirm that the aeath Sel'lteBQe is ll6t. a pro~Qrib~ form of punishment.

----- 'f'V! et Yl I?G ~ Its imposition in some barbaric fefm:-or as a penaicy-wholly disproportionate to the particular criminal act may be adjudged to be cruel and unusuaP In making such a judgment in a case before it, a court may con-sider contemporary standards to the extent they are relevant. While this weighing of a punishment against the Eighth Amendment standard on a case-by-case basis is within the historic process of constitutional adjudi­cation, it is not what petitioners demand in these cases. They seek nothing less than the total abolition of capital punishment by judicial fiat.

II

Petitioners assert that the constitutional issue is an open one uncontrolled by prior decisions of this Court. They view the several cases decided under the Eighth Amendment as assuming the constitutionality of the death penalty without focusing squarely upon the issue. I do not believe that the case law can be so easily cast aside. The Court on numerous occasions has both as­sumed and asserted the constitutionality of capital pun­ishment. Ill several cases that assumption provided a necessary foundation for the decision , as the issue \vas v.:hether a particular sentence would be allowed to stand. _

The first death case in which the Eighth Amendment

a See Pnrts II nnd VII , infra.

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was invoked was Wilkinson v. Utah, 99 U.S. 130 (1878). A defendant in a territorial court in Utah was found guilty of first degree murder and the judge sentenced him to be "publicly shot until ... dead." I d., at 131. The question before the Court was whether that form of car­rying out a death sentence was cruel and unusual pun­ishment. Noting first that the punishment itself, as distinguished from the mode of its infliction, was "not pretended by the counsel for the prisoner" ( id., at 136-137) to be cruel and unusual, a unanimous Court held:

"Cruel and unusual punisluncnts arc forbidden by the Constitution, but the authorities ... are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category .... " /d., at 134-135.

Several years later, in In re Kemmler, 136 U. S. 436 (1890), the Court again faced a question involving the

h,J_ method of carrying out a capital sentence. A New York \ jury ha~found the Jle,titioner guilty of first-degree mur- -

11 ,·...., '--aer ancll~sentenceCl' f1 die by electrocution. On review /l of a denial of habeas ~orpus relief by the Supreme Court

of New York, this Court was called on to decide whether electrocution, which had only very recently been adopted by the New York Legislature as its means of execution, was impermissibly cruel and unusual in violation of the Fourteenth Amendment:) Chief Justice Fuller, speaking

• The Court pointed out thnt thr Eighth Amendment npplird only to C'ongre~s nnd not to thr Stntr~. Thr Court's powrr in relntion to stnte action waR limit rei to prot ret ing priYilrgrR and immunities nml to nm1ring; dur procr"" of lnw, both within the Fourtrrnth Amendmrnt. Tlw tr~t-for purpo~r~ of clue procei'~-wns hrld to­br whether the State hnd exrrtecl it~ authority, "within the limits of tho~e fundamental prineiplr~ of librrty and j11sticr which lie n,t the bnse of ::Ill our ei,·i! and politieal in~titulions." 136 U.S., at 448. The Stntc of Georgia, in No. 69-5003 and No. 69-5030, has placed

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AIKENS v. CALIFORNIA 7

for the entire Court, ruled in favor of the State. Electro­cution had been selected by the legislature, after careful investigation, as "the most humane and practical method known to modem science of carrying into effect the sen­tence of death." !d., at 444. The Court drew a clear line between the penalty itself and the mode of its execution:

"Punishments arc cruel when they involve torture or a lingering death; but the punishment of death is llOt cruel, within the meaning of that word as used in the Constitution. It implies something inhuman and barbarous. something more than the mere ex.=-­tinguishmcnt of life." !d., at 447.

A third case exploring the relationship between capital punishment and the Eighth Amendment is Francis v. Reswebet, 329 U. S. 459 (1947). The petitioner, a con­victed murderer, was sentenced to death by electrocution. Due to a mechanical failure, the State's first attempt to electrocute him failed. He sought to block a re­execution of the sentence on the ground that to subject him again to the sentence would constitute cruel and unusual punishment. In the plurality opinion written by Mr. Justice Reed, concurred in by Chief Justice Vin­son and Justices Black and Jackson, relief '"as denied. Again the Court focused on the manner of execution,

great rmpha~is on thi~ di~ru~~ion in Kemmler and ha~ urged that the instant. eases ~hould all!)(' dericlrd under the more expansive tests of duE' prorr~~ mlhP!' thrut thr Crurl and Ptnt~tl1tll'uui~ilmrnt Clau~r per se. IrrE>sprrt in whet hrr thr drei~ion~ of this Court arc '-ir\\'cd as "incorporating" thr Eighth Amendment (,;rc Robinson v. Cali­fo.rnia, 370 U.S. 6()0 (19()2); Pmcell v. Texas, :392 U.S. 514 (1968)), it seems clear that the trsts for applying these two provi.~ions arc· fundamental!)' idrnlirnl. Compare Mr. Ju~tirr Frankfurter's test in Francis Y. Res!l'eb!'.1', 329 U.S. 458, 471 (1947), with Chief Justice­Warren's tetit in Trop v. Dulles, 356 U.S. 8G, 100-101 (1958).

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never questioning the propriety of the death sentence itself.

"The case before us does not call for an exam­ination into any punishments except that of death. . . . The traditional humanity of modern Anglo-American law forbids the infliction of un­necessary pain in the execution of the death sentence ....

"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." !d., at 463-464.

711'".J!stice Frankfurter, unwilling to dispose of the case

"'under the Eighth Amendment's specific prohibition, ap­proved the second execution attempt under the Due Process Clause. He concluded that "a state may be found to deny a person clue 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." !d., at 469-470.

The dissenting opinion, authored by Mr. Justice Bur­ton, with whom Justices DouGLAS, Murphy, and Rutledge joined, found re-execution to be impermissibly cruel. Yet the opinion expressly recognized the validity of cap­ital punishment:

"fn determining whether the proposed procedure_ is unconstitutional, we must measure it against a lawful electrocution. . . . Electrocution, when in­stantaneous, can be inflicted by a state in conformity with due process of law. . . .

"The all-important consideration is that the exe­cution shall be so instantaneous and substantially painless that the punishment shall be reduced, as

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AIKENS v. CALIFORNIA

nearly as possible, to no more than that of death itself." !d., at 474.

Each of these cases involved the affirmance of a death sentence where its validity was attacked as violative of standards underlying the Eighth Amendment. Five opinions were written in these three cases, expressing· the views of 23 Justices. While in the narrowest sense it is correct to say that in none was there a frontal attack upon the constitutionality of the death penalty, each opinion went well beyond an unarticulated assumption of validity. The power of the States to impose capital punishment was repeatedly and expressly recognized. _

In addition to these cases in which the constitu­tionality of the death penalty was a necesssary founda­tion, those who today would have this Court abolish the death penalty also must reject the opinions in other·

AS/ cases stipulating or aluming the constitutionality of cap- -

ital punishment. Tr~p v. Dul~es, 356 U. S. 86, 99, 100 (1957); Weems v. United States, 217 U.S. 349,382,409 (1910) (White, J. , joined by Holmes, J. , dissenting).6

See also M cGautha v. California, 402 U. S. 183, 226 (1971) (Black, J., concurring); Robinson v. California, 370 U.S. 660, 676 (1962) (DouGLAS, J., concurring).

The plurality opinion in Trap v. Dulles, supra, is of especial interest since it is this opinion, in large measure,'"':, h • ~ ~ provides the foundation for the present attack on the"' death penalty.() It is anomalous that the standard pegged by petitioners--"evolving standards of decency that

5 Mr. Justice White stated :

"Death was a well-known method of punishment pre;;cribed by law, . and it was of course painful, and in that sense it was cruel. But the infliction of thi;; punishment wa · clearly not prohibited by the word cruel, although that word manifestly was intended to forbid the resort to barbarous and unnecessa ry met hods of bodily torture, in executing eYcn the penalty of death." 217 U. S., at 409.

G See Part III, infm.

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\ mark the progress of a maturing society" (356 U. S., at L IOl)-should be derived from an opinion which so un­

qualifiedly rejects their arguments. Chief Justice War­ren, joined by Justices Black, Dol:GLAS, and Whittaker, stated flatly:

"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 clay when it is still widely accepted, it can not be said to violate the constitutional concept of cruelty." !d., at 99.

The issue in Trap \\"as whether forfeiture of citizenship was a cruel and unusual punishment when imposed on a wartime desertert who had gone "over the hill" for less than a day and had willingly surrendered. In exam-­ining the consequences of the relatively novel punish­ment of denationalization/ Chief Justice Warren drew a line bet\wen "traditional" and "unusual" penalties:

"While the state has the power to punish, the fEighth] 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." !d., at 100. --The plurality's repeated disclaimers of any attack on

'capital punishment itself must be viewed as more than

7 In footnote 32, at 100-101 the plurality opinion indicates thnt denationalization "was neyer explicitly snnrtioned by this Govern­ment until 1940 and ne1·er tested np:ainst the Constitution until this day."

9. 398 U.S. 936 (1970); 402 U.S., at 306 (Mr. JUSTICE

BRENNAN'S dissenting opinion). While the constitutionality

per se of capital punishment has been assumed almost without

1- Ge;t"'\~\"( question, members of this Court have expressed iM~ the desire

1 :t'eoestly dl~l#l~~~~~ to consider the constitutionality of the death

pemalty with respect to its imposition for specific crimes.

Rudolph v. Alabama , 375 U.S . 889 (1963) (dissent from the

denial of certiorari).

f.

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AIKENS v. CALIFORNIA 11

off-hand dicta since those views were written apparently as a rebuttal to the strong language in Mr. Justice Frank­furter's dissent arguing that denationalization could not be a disproportionate penalty for a concededly capital offense.R

The most recent precedents of this Court-Wilher­spoon v. Illin01:s, 391 U. S. 510 ( 1968), and M cGaulha v. California, 403 U. S. 183 (1071)-are also premised to a significant degree on the constitutionality of the death penalty. While the scope of review in both cases " ·as limited to questions involving the procedures for

10 selecting~ries and regulating their deliberations in cap-V ital cases, those opinions were "singularly academic exer-~~ if the members of this Court were prepared at

those times to find in the Constitution the complete prohibition of the death penalty. This is especially true of Mr. Justice Harlan's opinion for the Court in M c­Gautha, in which, after a full review of the history of capital punishment, he concluded that "we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the/ . (}_. Constitution." /d., at 207. '-' /

Perhaps enough has been said to demonstrate the unswerving position that this Court has taken in opin­ions spanning the last hundred years. On virtually every

8 "It ~ccms srnrecly :ugunblc thnt loss of ritizrnship is within thl' Eip;hth Amrndmrnt's prohibit ion bceau~r di~proportionatc to an J, ,QJ.L ~ ()Jt.fo.chc:~ ofJ'enRe that is rnpi1al and has bren so from thr fir~t year of Indr­prndrnrc . . . . Is Constit111 ional dinlretie so empty of rca:on

~ that it ran be sNiou~l.v urged that loss of eilizcnRhip is a fate wor!'C' ·-~n drath?" !d., :1t 125. 10 -t Brief for Rrspondent in Bmnch v. Texas, Ko. 69-5031, at 6. "" ~rhill'l thll !!;1'1\nt gf (>~fi.K»'a+i ln thc.:c, Cru;eJ; W J~ID<'RJbr

liw.itlliJ1 20S II S Q3G (lQ7Q..}; 402 U,.S,, W;..300 (Mn . .J(ft,J'J'ICE Bq:r­:MAN's.. disscntin~~; opinion), they are noncthelc " indicativ of t~ here.to.ia.t.c ... almo.~l unquestioned belief thtt the penall,y was not Pf¥'

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12 AIKENS v. CALIFORNIA

occasion that any opinion has touched on the question of the constitutionality of the death penalty, it has been asserted affirmatively or tacitly assumed that the Con­titution does not prohibit the penalty. No Justice of the Court, until today, has dissented from this consistent reading of the Constitution. The petitioners in these cases now before the Court cannot fairly avoid the weight of this impressive body of precedent merely by assert­ing that there is no prior decision precisely in point. Stare decisis, if it is a doctrine founded on principle, as I have supposed, surely applies where there exists a long line of cases endorsing or necessarily assuming the validity of a particular matter of constitutional interpretation.___... Green v. United States, 356 U. S. 165, 189-193 (1958) (Frankfurter, J., concurring). While these oft-repeated expressions of unchallenged belief in the constitutional-ity of capital punishment may not justify a summary disposition of the constitutional question before us, they are views expressed and joined in over the years by no less than 29 Justices of this Court and therefore merit the greatest respect.n Those who now urge us to set those views aside indeed have a heavy burden. -

11 This number includes all the Justices who participated in Wil­kir~-Son, Kemmler, and Francis as well as those who joined in the plurality and dissenting opinions in Trop and the dissenting opinion in Weems. TlHl ~fll'eE~i"~ li~t sf J'l'itices who luws jsiRE'fl jQ E:ll' i;:;!' 0 I 0 0 0 1 0 0 I 'f'l 0 I * 0 ~c.. UJJng t )18 H]QlU JS vz:or1 1 rgc,hn~'C!'Q 10J' Q !'0 ]]1 (? ll'9B8 8PJe8

; ' " J <... ~

'fford

Strong Bradley Hunt Waitp.­}:hirlan Gray

Blatchford Lamar Fuller Brewer White Holmes Black Reed Frankfurter DOUGLAS -

Murphy Jack~on

Rutledge Burton Vinson Clark Harlan Warren 1Vhittakcr

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III

Petitioners seek to avoid the authority of the fore- _ going cases, and the weight of express recognition in the language of the Constitution itself, by reasoning which will not withstand analysis. The thesis of petitioners' case derives from several opinions in which members of this Court have recognized the dynamic nature of the prohibition against cruel and unusual punishments. The final meaning of those words was not set in 1791. Rather, to use the words of then Chief Justice Warren speaking for a plurality of the Court in Trap v. Dulles, 356 U. S., at 100-101:

"[T]he words of the Amendment are not precise, and . . . their scope is not static. The Amendment must draw its meaning from the tevolving standards of decency that mark the progress of a maturing society."

But this was not new doctrine. It was the approach to the Eighth Amendment taken by Mr. Justice McKenna in his opinion for the Court in Weems v. United States, ----217 U. S. 349 (1910). Writing for four Justices sitting· as the majority of the six-man Court hearing the case, he concluded that the clause must be "progressive"; it is not "fastened to the obsolete but may acquire mean-ing as public opinion becomes enlightened to human justice." !d., at 378. The same test was offered by Mr. Justice Frankfurter in his separate concurrence in Francis v. Resweber, 329 U. S., at 469. While he rejected the notion that the Fourteenth Amendment made the Eighth Amendment fully applicable to the States, he nonethe-less found as a matter of due process that the States were prohibited from "treating anyone guilty of a crime in a manner that violates standards of decency more or less generally accepted."

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14 AIKENS v. CALIFORNIA

·whether one views the question as one of due process or of cruel a.nd unusual punishment, as I do for purposes of convenience in this case, the issue is essentially the same. 1 ~ The fundamental premise upon "·hich either rationale is based is that standards as to " ·hat consti­tutes cruel and unusual punishment or clue process do evolve. Neither the Congress 110r the legislature of any_.

rtatc would today tokrate pillorying, branding, ~ ~ or cropping or nailing of the cars-punishments which were in existence during our colonial era. 1

'1 But

hould any such punishment be prescribed the courts would eertainly enjoin its execution. See Jackson v.

I Bishop, 404 F. 2d 571 (CAS 1968). Likewise no court would validate any method of implementation of the death sentence found to involve unnecessary cruelty in

J light of presently available alternatives. Similarly, there r may well b~,f~ttt-e-¥olving cmnmullity attitude with respect

Uo the application of the death sentence for particular rimcs. 11 Sec 111 cGaul ha v. California, 402 U. S., at 242 DorGLAS, J., dissenting).

~ But the concept-uf-an--evoh·ing meaning-to be ffitttrtl n these expansive provisions of the Constitution con­

notes consideration of facts and circumstances as \Yell as 'Jrogressive changes in community standards. The pro­hibition of cruel or cli~proportionatc punishments as

1offcnsive to standards of decency reflecting the basic "dignity of man" 1

" calls for a discriminating case-by­case evaluation of particular crimes and punishments. Y ct petitioners' principal argument in the name of evolv­ing standards, paradoxically, eschews this traditional process of case-by-case inclusion and exclusion. Instead ~argument insists upon the absolute prohibition of

1 ~ Src n. 4, su7n·a. 1 3 Src, e. g., Ex 7Jarte Wilson, 114 U.S. 417, 427-428 (1885). 14 Sec Part VII, infra . .,r. Trop Y. Dulle.~ , 85fl F . 1'., at 100.

~

Rider A, p. 14 (Death Penalty Cases) 5/10/72

But we are not asked to consider the permissibility of

any of the several methods employed in carrying out the death

sentence. Neither are we asked, at least as part of the core

submission in these cases, to determine whether the penalty

might be a grossly excessive punishment for some specific

criminal conduct. Either inquiry would call for a discriminating

evaluation of particular means, or of the relationship between

particular con duct and its punishment. . ~

Petitioners' prmcip:ritl 3

"'\

argument goes far beyond the traditional processes of case-by-case

inclusion and exclusion. Instead the argument insists on an

unprecedented constitutional rule of absolute prohibition of

capital punishment for any crime, regardless of its depravity

and impact on society. In calling for a~ precipitous

and final judicial end to this form of penalty as offensive to

evolving standards of decency, petitioners would have this

1-n::uL~~ Court abandon the!\ more refined approach consistently followed

in its prior Eighth Amendment precedents. lndsect ftt their 2~

2.

are saying, in effect, is that the evolutionary process has come

suddenf ly to an end; that the ultimate wisdom as to the appropriateness

of capital punishment under all circumstances, and for all future

generations, has some how been revealed.

point The prior opinions of this Court/with great clarity to

reasons why those of us who sit on this Court at a particular time

should act with restraint before assuming, contrary to a century

of precedent, that we now know the answer for all time to come.

This is especially true when we are urged to adopt an absolutist

construction of the Eighth Amendment which as a matter of

language and history simply is not absolute in meaning.

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capital punishment for any crime from henceforward. lling for a judicial end to this form of penalty al­

togeth · petitioners repudiate the basic premise of their case that u 1dards do evolve.

The prior opin· s of this Court upon which the claims in this case are foun counsel against this absolutist approach to the Eighth Amen<h11ent. To the contrary, they point with great clarity to the reasons which should compel lifetime Justices of this Court to act with re­straint in a)) ·n(T th ruel and Unu ual Punishment

L __ ""'~~. First, where, as here, the language of the appli­cable provision provides great leeway and where the un­derlying social policies are felt to be of vital importance,. the temptation to read personal preference into the Con­stitution is always great and judges m.ust temper their .i udgmen ts with special caution to avoid bending to that temptation. It is too easy to propound our subjective standards of wise policy under the rubric of more or less universally held standards of decency. See Trop v. Dulles, 356 U. S., at 103 (Chief Justice vYarren), 1H! (Mr. Justice Frankfurter); Francis v. Resweber, 329 U. S., at 470-471 (Mr. Justice Frankfurter); 1Yeems v. Un'ited States, 217 U. fl., at 378-37!) (Mr. Justice McKenna).

The second consideration dictating judicial self-re-­straint arises from a proper recognition of the respective roles of the legislative and judicial branches. The des­ignatiorl of punishments for crimes is a matter peculiarly "·ithin the sphere of the state and federal legislative bodies. See, e. g., In re Kemmler, 136 U. S., at 447; Trop v. Dulles, 356 U. S., at 103. When asked to en­croach on the legislative prerogative we arc well coun­seled to proceed with the utmost reticence. The review of legislative choices, in the performance of our duty to enforce the Constitution, has been characterized most appropriately by Mr. Justice Holmes as "the gravest

........--

•

IV

Of eeurse., presence of the Cruel and Unusual

~ 1--P-~ :..~4-j Punishment Clause within the Bill of Right~~dates that,

when called upo~)in the context of a specific case, -it is ~

J..f.,-"' u_~

t;he duty of the courts to decide whether given expressions \

of federal legislative will with respect to criminal punish-

[-<.rL ( (.'

ments offend that Amendment. The Due Process Clause of the ·\

Fourteenth Amendment imposes on the judiciary a similar

obligation to scrutinize state legislation. The proper

exercise of that constitutional obligation in the cases

before us today must be founded on a full recognition of

the several considerations set forth above--the affirmative

references to capital punishment in the Constitution, the

prevailing precedents of this Court, the limitations on the

exercise of our power posed by tested principles of judi-

cial self-restraint, and the duty to avoid encroachment

on the powers conferred upon state and federal legis-

latures. In the face of these considerations, only the most

conclusive of objective -ef eajgc;:t;iV@_ demonstrations could

warrant this Court in holding capital punishment per se

unconstitutional. The bu~den of seeking so sweeping a

decision against such formidable obstacles is almost insuper-

able. Viewed from this perspective, as I believe it must be,

the case against the death penalty falls far short.

:...• r

"

( ~ Petitioners 8 contentions are premised, as indicated above,

on the long-accepted view that concepts embodied in the Eighth

and Fourteenth Amendments do evolve. They present, with skill

and persistence, a list of "objective indicators'' which

are said to demonstrate that prevailing standards of human

decency have progressed to the final point of requiring the

Court to hold, for all cases and for all time, that capital

punishment is unconstitutional.

I

Jj

GS-5027-lVIEMO (A)

18 AIKENS v. CALIFORNIA

submitted factual basis of petitioners' argument. Their contentions are premised, as indicated above, on the long-accepted vimY that the concepts embodied in the Eighth and Fourteenth Amendments do evolve. Peti­tioners then assert, in effect, that the process of evolu­tion on the issue before the Court has ended. Petitioners present, "·ith skill and persistence, a list of "objective indicators" which are said to demonstrate that prevailing standards of human decency have progressed to the final point of requiring this Court to hold, for all cases and

~~1.

While these factors might prove profoundly convincing if addressed to a legislative body, it can hardly be said that in sum they constitute proof, acceptable to a court,

the )0 · tion for which the are asserted. Briefly summarized, these pro erred mdicia of con­

e nporary standards of decency 1nclude the following: (i) a worldwide trend toward the disuse of the death penalty; 1

n (ii) the reflection in the scholarly literature of a progressive rejection of capital punishment founded essentially on moral opposition to such treatment; 17

(iii) the decreasing numbers of executions over the last 40 years and especially over the last decade;, , (iv) the

tr. Scr, c. g., Srllin, Thr De:1th Prnalt~ ·, in ALI, Model Penal Code (Tent. Draft No. 9) (Hl59): Unitrd N:ltions Department of Eco­nomic and Social Affnir~, Cnpital Puni~hment (196S); 2 National Comm'n on Tieform of Federal Criminal Lmr~, \Vorkinp; Pnpcrs, 1351 n. 13 (1970).

1·7 Tho literature on the moral question is legion. Repre~entniive

collrctions of the strongly held ,·ie\rs on both sides may be found in H. Bcclau, Thr Death Penalty in Amcrica (1967). :m in Hoyal Comm'n on Captinl Punishment, l\1inutc~ of EYidencc (1949-1953).

18 United State,.; Depnrtmrnt of Ju~ticr, Bureau of Pri~ons, Na­t.ional Pri~oner Stati,-tics Ko. 46, Cnpital Puni~lnnrnt 19:30-1970 (Aug. 1971) (191 execution~ during the 1960'~; no executions since .Tunc 2, 1967); Prc~idrnt'~ Comm'n on Law Enfor(·ement :1nd Admin. of .Jn.·tiro, Rrport, The Challenge of Crime in a Free Society 143

/

68-5027- MEMO (A)

AIKENS v. CALIFOH.NJA 1!)

small number of death sentences rendered in relation to the number of cases in which it might have been im­posed; "' and ( v) the indication of public abhorrence of

(1!)fl7). ("The mo~t ~a li rnt rh;trartrri~tir of c:tpital puni~hmrnt is that it i ~ infrrquentl~· applird.")

Petitioner~ ronrrdr. ns tlw~· mu~ t. that littlr \\·r ight can br gil'rn to thr lark of rxrcution~ in recent yr;tr~. A de facto moratorium h:u; r'\i~trd for fi\'!' ~ ·l·a r~ now while l':t~rs rhnllrnging the procedmrH for implrnwnting the rapitn l srntrnrr hn1·r been n.'-rxaminrcl by this Coml. McGautha v. California. supra; Witherspoon v. lllirwis,

tn An rx:1rt figure for the number of denth ~rntrnrrs impo~ed h~·

thr srntrncing nuthoritie~-.iudgr or jurr-in the \'nriouR juri~clirtion ~

i~ cliffi rult. 1o drtrrminr . But thr :\T:tt ional Pri~onr r Stnti.-<tics show the numbrr,; of prr:-;ons recci1·rd at thr ~ t atr and fedNnl pri~om'

1111drr srntrncr of clrath . Thi~ number, hoi\'CI·rr. docs not account for thoRr who mny hnYr hrrn RPntrncrd and retained in lorn! facili­tir~ during the prnclrnr~' of thrir apprak Arrrpting with this rr:''Pn·:tt ion the NPS fi~~:mr,; a~ a minimum , the moRt rrccnt s tnti~tirH show that at lrast 1.057 prr"onR wrre ~rntcnc·rd to death during the clcradr of thr 19fl0'~. NPS, su7Jra, n. 18, nt 9.

No fully rrlinble s tati~ties arr ::tl'nil:tblr on thr nntiomriclr ratio of dmth Rrntrnrr:-: to ca~rR in which drath wns a sta tutorily prr­mi~~ible puni:-;hmrnt. At oral argmnrnt, coun~rl for petit ionrr in N'o. 69-5003 r~timatecl that thr ratio i~ 12 or 13 to one. Tran~rript

of oral arg:ument in Furman" · Georgia, N'o. 69-5003, nt 11. Othrrs ha1·r found a highrr correlntion. Srr l\1('Grr , Capitnl Punishment

It

lr:

ns Srrn b~· n Corrretional Aclmini~ trator , 2Fl Frcl. Prob. (~o. 2) 11,_...- I 12 (19(\.J.) (onr oul of r\·cry fil'(', or 20% of prr~n~ ronl'ictccl of W mnnlrr rrrri1wl the clrn th penalty in Califom ia) ; Brclnu , Drnth Scntrnrr~ in N'cll' Jrm'y 1907- 1960, 19 Hutgrr~ L. Rev. 1 (1964) (between 191fl nncl1955, 157 out of 652 prr~ons chnrgrcl with murder

The infrequency of executions during the years before the

moratorium became fully effective may ~j~~ be attributable

in part to decisions of this Court giving expanded scope

to the criminal procedural protections of the Bill of Rights,

especially under the Fourth and Fifth Amendments. ~.

Miranda v. Arizona, 384 U.S. 436 (1966); Mapp v. Ohio,

367 U.S. 643 (1961). Additionally, decisions of the early

1960's amplifying the scope of the federal habeas corpus

remedy also may help account for a reduction in the number

of executions. ~. Fay v. Noia, 372 U.S. 391 (1963);

Townsend v. Sain, 372 U.S. 293 (1963). Of course, the

major effect of either expanded procedural protections or

extended collateral remedies may well have been simply to

postpone the date of execution for some capital offenders,

thereby leaving them ultimately in the moratorium limbo.

68-5027-MEl\'IO (A)

16 AIKENS v. CALIFORNIA

and most delicate duty that the Court is called on to perform." Blodgett v. Holden, 275 U. S. 142, 147- 148 (1927) (separate concurrence in '"hich Justices Brandeis, Sanford, and Stone joined).

How much graver is the duty ·when we are not asked to pass on the constitutionality of a single penalty under the facts of a single case but instead are urged to over- _ turn the legislative judgments of 9en~F8SS a~ 40 state legislatures In so doing would we be able to claim, as did the Court in Weems, that we appreciate "to the fullest the wide range of power that the legislatur~ possesses to adapt its penal laws to conditions as they exist and punish crimes of men according to their forms and frequency"? 217 U. S. , at 379. I think not. No __..­more cogent statement of the essential separation of powers limitations on our prerogative can be found than the admonition of Mr. Justice Frankfurter, dissenting in Ttop. His eloquent statement of the traditional view takes on added significance where we are asked to nullify the legislative judgments of the Congress and four-fifths of the States.

"What is always basic when the power of Con­gress to enact legislation is challenged is the appro­priate approach to judicial review of congressional legislation . . . . When the power of Congress to pass a statute is challenged, the function of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judg­ment of the action of a co-ordinate branch of the Government while keeping unto itself- as it must under our Constitutional system-the final deter­mination of its own power to act. . . .

"Rigorous observation of the difference between limits of power and the wise exercise of power-

68-5027-MEMO (A)

AIKENS v. CALIFORNIA 17

between questions of authority and questions of prudence-requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined \vill to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce· policy. It must observe a fastidious regard for lim-~ itation of it.s own power, and this precludes the­Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Con­stitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do." 356 U. S., at 119-120.

See also Mr. Justice White's dissenting opinion, in which Mr. Justice Holmes joined, in Weems v. United States, 217 U. S., at 382.

IV The considerations set forth above- the affirmative

references to capital punishment in the Constitution, stare decisis, judicial restraint, separation of powers in both a state and federal context-are dispositive of this case. In the face of these considerations, I can perceive of no basis for this Court assuming the power in 1972 to hold as per se unconstitutional what almost every judge and legislator has considered to be constitutional since 1791. This expression of my views, therefore, properly could end at this point. Yet, in these cases which have· attracted national attention and in which prominent ele­ments of the legal profession as well as other groups in our country are urging the Court to do what the legis­lative branch and the people have declined to do, it may be appropriate to express my opinion as to the ·

- 7

Although they are not appropriate for consideration as

objective evidence , petitioners ifjd strongly urge two

additional propositions. They contend, first , that the penalty

petitioners' presentation . o 1- p,.: p/ ~ Dt f!,

B8z the !ltt 8 t1 ~ly \!l ~O!i qn8}HiEJ tii iO tefi ; irBl; Mutt tlto }?QBO ltJDil o.J.el Otft:#- r 0

survives public condemnation only through the infre- ~~cia~ quency, arbitrariness and discriminatory nature of its application, and, second, that there no longer exists any legitimate justifications for the invocation of the ultimate

U)enalty. These contentions deserve separate consiclera­ion and will be addressed in the ensuing sections.

Any attempt to discern contemporary standards of­decency through the review of objective factors must take into account several overriding considerations which._ petitioners choose to discount or ignore. In a democracy the first indicator of the public's attitude must always be found in the legislative judgments of the people's chosen representatives. MR. JusTICE MARSHALL's opin-ion today catalogues the salient statistics. Forty States, n

the District of Columbia, and the Federal Government

received the denth sentencr in NciY Jer;:;ry-about 20%; between 1956 and 1960, 13 out of 61 recrivrd the dcat h sentence-also about 20%); H. Kalvrn & H. Ziesel, The American Jury 435-436 (1966) (21 of 111 murdrr casrs resulted in death sentcncrs during three representative years during the mid-1950's); sec al,;o Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Drlinq. 132 (1969).

20 See, e. g., Califomia v. Anderson, No. 13,617 (Calif, S. C., Feb. 18, 1972), cert. denird,- U. S.- (1972) (slip op., at 17-19); Goldberg & Dersho\Yitz, Declaring the Death Penalty Unconstitu­tional, 83 Harv. L. Rev. 1773, 1783 (1970). But src F. Frank­furter, Of Law and Men 97-9 (1956) (reprint of testimony brfore the Royal Comm'n on Capital Punishment).

21 Nine States haw abolishrd capital punishment without resort to the courts. See H. Bedau, supra, n. 17, at 39. California has been the only State to abolish capital punishment judicially. Cali­fornia v. Anderson, No. 13,617 (Cnlif. S. C., Feb. 18, 1972), ccrt. denied,- U. S. - (1972).

68-5027-MEMO (A)

AIKENS v. CALIFORNIA 21

still authorize the death penalty for a wide variety of crimes. That number has remained relatively static since the end of World War I. Opinion by Mn. JusTICE

MARSHALL, at 26. That does not mean, however, that capital punishment has become a forgotten issue in the legislative arena. As recently as 1965 Congress added the death penalty for presidential and vice presidential assassinations. 18 U. S. C. § 1751. A bill proposing the abolition of capital punishment for all federal crimes was introduced in 1967 but failed to reach the Senate fl.oor. 22 The State of New York, in reconsidering its capital crimes, has recently restricted the use of capital punishment to the crimes of murder of a police officer and murder by a person serving a sentence of life im­prisonment. N. Y. Penal Code § 125.30 (McKinney's 1967). -I pause here to reiterate that I am at a loss to under-stand how those urging this Court to pursue a course of absolute abolition as a matter of constitutional judg­ment can draw any support from the New York ex­perience. As is also the case with respect to recent _ legislative activity in Canada 23 and Great Britain,24

New York's decision to restrict the availability of the

22 Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedure of the Senate Committee on the Judiciary (1968).

23 Canada has recently undertaken a five-year experiment-similar­to that conducted in England-abolishing the death penalty for most crime~. I Acts of Canada (16 & 17 Eliz. II) 145 (1967). However, capital punishment is still prescribed for some crimes, including murder of a police officer or corrections official, treason, and piracy.

24 Great Britain, after many years of controver::;y over the clrath penalty, undertook a five-yrar experiment in abolition in 1965. Murder (Abolition of Death Penally) Act 1965, 2 Pub. Gen. Acts, c. 71, p. 1577. Although abolition became final in 1969, the penalty was retained for sevrrn l crimes, including treason, piracy, and clock­yard~ arson.

fiS-5027-1\lEl\10 (A)

22 AIKENS v. CALIFORNIA

death penalty is a product of refined and discriminating legislative judgment, reflecting not the total rejection of capital punishment as inherently cruel, but indicating a desire to limit it to those circumstances in which legis­lative judgment deems retention to be in the public interest. No such legislative flexibility is permitted by the contrary course petitioners urge this Court to follow."" _ _

In addition to the New York experience, a number of other States have undertaken reconsideration of capital punishment in recent years. In four States the penalty has been put to a vote of the people through public referenda-a means likely to supply objective evidence of community feeling. In Oregon a referendum seeking abolition of capital punishment failed in 1958 but "·as subsequently approved in 1964."r. Two years later the penalty was approved in Colorado by a wide margin."' _ In Massachusetts, in 1968. in an advisory referendum, the voters there likewise recommended retention of the penalty. In 1970, approximately 641r of the voters in Illinois approved the penalty."' In addition, the Na- ­tional Commission on Reform of Federal Criminal Laws ' reports that legislative committees in Massachusetts, Pennsylvania, and Maryland recommended abolition, while committees in )ifew Jersey and Florida recom­mended retention."\) The legislative views of othet· States have been summarized by Professor Hugo Bedau in his compilation of sources on capital punishment en­titled The Death Penalty in America: -"What our legislative representatives think in the

two score states which still have the death penalty

:!"SeC' n. G1, injm. 2r.Src H. BrchHl. supra, n. 17, ::tl 2:~3.

" 7 Ibid. (approximatrl)· G5 % of till' ,·otrrs appro,·cd thr dC'ath prnnlt)·).

28 See Bedan, The DPath Pcn:tlt)· in ArnC'rira, 35 Fed. Prob. (No .. 2) 32, 35 (1971).

29 Nat!. Comm'n , S'U]Jra, n. 1G, al 13G5.

6~-5027-l\fEl\fO (A)

AIT\J~NS v. CALIFORNIA 23

may be inferred from the fate of the bills to repeal or modify the death penalty filed during recent years in the legislatures of more than half of these states. In about a dozen instances, the bills emerged from committee for a vote. But in none except Dela\Yare did they become la''"· In those states where these bills were brought to the floor of the legislatures, the vote i.n mo t instances ''"asn't even cl oee." "''

This recent history of activity with respect to legislation concerning the death penalty provides no support for the abolitionist position.

The second and even more direct source of information reflecting the public's attitude toward capital punish­ment is the jury. In Witherspoon v. Illinois, 391 U. S. 510 (1968), Mn. JusTICE STWWAH'l', with whom Justices _ BrmNNAN and MARSHALL joi11ecl, characterized the jury's historic function in the sentencing process in the follmY-ing terms:

"lT]he jury is given broad discretion to decide whether or not death is 'the proper penalty' in a given case, and a juror's general vie\\·s about capital punishment play an inevitable role in any such decision.

"A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. . . . Guided by neither rule nor standard, ... a jury that must choose between life imprisonment and capital pun- /

::o H. Brdau. supra, n. 17, at 2~2. Sre, e. g., Connectifut v. Davis, 158 Conn. ~41, ~56-~59, 260 A. 2d 587, 595-596 (1969), in which the Connerticut Suprenw Conrt points out that the state legi~laturl' had ronsidrrrd thr quC'~tion of abolition during 1lw 1961, 1963, 1965, 1967, and 1969 se~~ion~ and had "specifically declined to abolish the death penalty" every time.

24

68-5027-MEMO (A)

AIKE:XS v. CALIFORNIA

ishment can do little more-and must do nothing less-than express the conscience of the community on the ultimate question of life or death.

"[O]ne of the most important functions any jury can perform in making such a selection is to main­tain a link between contemporary community values and the penal system-a link without 'vhich the de­termination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' Trap v. Dulles, ... " :n

Any attempt to discern, therefore, where the prevail-ing standards of decency lie must take careful account of

..__

the jury's response to the question of capital punish­ment. During the 1960's juries returned in excess of a_ thousand death sentences, a rate of approximately two per week. Whether it is true that death sentences were returned in less than 10% of the cases as petitioners estimate or whether some higher percentage is more accurate,3 ~ these totals simply do not support petitioners' assertion at oral argument that "the death penalty is virtually unanimously repudiated and condemned by the conscience of contemporary society." "" It is also worthy of note that the annual rate of death sentences has remained relatively constant over the last 10 years · and that the figure for 1970-127 sentences-is the

31 Id., at 519 and n. 15. See also McGautha v. California, 402 U.S., at 201-202; Williams v. New York, 337 U.S. 241, 253 (1949) (Murphy, J., dissenting) ("In our criminal courts tho jury sits as the representative of the community."); W. Douglas, We the Judges 389 (1956); Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 460 (1899).

82 See n. 19, supra. 33 Transcript of Oral Argument in Aikens v. California, No. 68-

5027, at 21.

~ ,.....

"' v ::/...._ ...... I

"' "' <0 ,....

C3--........

l 1 ~

~

........ \Q

~> 4. )

68-5027-MEMO (A)

AIKENS v. CALIFORNIA

highest annual total since 1961.a~ It is true sentencing rate might be expected to rise, rather than

Cremain constant, when the cPin'le rat8 :ilccolera+Qi: as it. l:mdonhteEJly has in this country.~And it may be con­ceded that the constancy in these statistics indicates the unwillingness of juries to demand the ultimate pen-alty in many cases where it might be imposed. But these considerations fall short of indicating that juries are imposing the death penalty with such rarity as to justify this Court in reading into these sentences a public _ rejection of the death penalty.-tt 3~

One must conclude, contrary to petitioners' submis­sion, that the indicatoxs most likely to reflect the pub­lic's view-legislative bodies, state referenda and the juries which have the actual responsibility-do not sup­port the contention that evolving standards of decency require total abolition of capital punishment.~ 7Indeed,

a...s- J-t-

-34 The annual totals provided by the Bureau of Pri~ons are re­

~rinted in footnote 19 of Mn. JusTICE BnENNAN's opinion, at 32. 1

" '~ ~1" .,(&Public opinion polls, while of little probative relevance, cor.:­roborate substantially the conclusion drrived from examining legis­lative activity and jnry sentencing-opinion on capital punishment is "fairly divided." Francis v. Resweber, 327 U. S., at 470 (Mr. Justice Frankfurter, concmTing). See, e. g., Witherspoon v. Illinois, 391 U. S., at 520, n. 16 (1966 poll finding 42% in favor of death penalty and 47% OJ)posed); Goldberg & Dershowitz, supra, n. 15, at 1781 n. 39 (1969 poll shows 51% in favor of retention-the same· percentage as in 1961); H. Bedau, The Death Penalty in America 231-241 (1967); Brcl:lU, The Death Penalty in America, 35 Fed. Prob. (No.2) 32, 34-35 (1971). 31~ If, as petitioner~ suggest, the judicial branch itself reflects the -

1 11 ~vailing standard2 of human decenc r in our societ it . rna~ _, 1- <-0..C. ~ t.cJl, h y

{

relevant to note ;:fi!r conclusion ate courts .hove rg~~ on the . question of the acceptability of capital punishmenkiB FeeeHt )etu•a. -... 1 -..1 ~e'-VI"l.,_ -ye.~I-J In the last fin' years alone, since the de facto ''moratorium" on I executions brgan (sec n. 18, supra), 26 8Ltt~\have pas::;ed on the

\ ronstitutionality of the dea1 h penalty under the Eighth Amendment l t-he, o.. n~ e./ I(). t-e <.6 u ~-- -k.s

0 .f. .:l ' s "f-()..~

-

J'.Q fa. j.=:

k/tWi ce: f-d-fJ'""' -f /, () p; I 0 .f.

GR-5027-~LEl\10 (A)

t the periphery · y ues a

this type of inqutr

_not the

h )·udicial proces core - oft e

t ·tutional cases. sin cons 1

.~

1\

J.He assessment of popular opinion(ii•,.Jel Toe~ eT' ••~" ,,..~ L 1s~a legislative, not a judicial, function.

v Petitioners seek to salvage their thesis by arg;uing

that the infrequency and discriminatory nature of the

and undrr ~imi l ar proYi~ion~ of most ~lnte conBtitutions. Every court, except the Californin Ruprrmc Court (California v. Anderson, sttpra, n. 20), hns ruled · thr penalty to br constitutional. Those State~ , and the yrar of the. mo~t recent derision on the issue, arc: Al:1bama (1971); Arizonfl (1969); Colorndo (1967); Connertirut (1969); Delawnrr (1971); Florida (19fi9); Gror~ia (HJ71); Illinois (1970); Kamas (1068); Kenturky (1971); Loui~inna (1971); 1\lnry­l:md (1971); Mi~~ouri (1971); Nebrnsb (1967); Nr,·ada (1970); New Jersry (1071); New Mexic·o (1969); North Carolina (1972); Ohio (1971); Oklahoma (1971); South Cnrolinn (1070); Texas 1

(1971); Utah (1969); Vir~inin (1971); Y\'n~hington (1971). "'bile the majority of these stale rourt opinion~ do not give the i~Hw more than summary rxpo~ition, m:tn~· hnxe ronsidrrrd the que~tion at some len~th, and, indrrd. some ha,·e ron~idered the i~sue under the "el'olving stanclarcb" rubrir. Srr, e. (!., Connecticttt v. Davis, 158 Conn. 3-IJ, 356-359. 2GO A. 2d 587, 595-595 (1969); Louisiana v. Crook, 253 La. 061 , 967-970, 221 So. 2d 473, 475-476 (1969); 13artholomey v. !lfaryland, 260 1\Td. 50-J., 273 A. 2d 164 (1971); Nebraska v. Almrez, 1R2 Nrb. 358, 866-367, 154 N. W. 2d 746, 751-752 (1967); New Me:rico v. Pace, SO N. M. 364, 371-372, 456 P. 2d HJ7, 204-205 (1969). Of rour.>r, C'\' <'IT frdrral court whirh has pn~.>ed on the i~~11r has r11lrd th:lt the death penalty i~ not per se unronstitntionnl. Sre, e. (1., Ralph \'. Warden, 438 F. 2d 78(), 793 (CA4 1971) ; Jackson v. Dickson, 325 F. 2d 578, 575 (CA9 HJ63), rrrt. denied, 377 U.S. 057 (196-l:).

68-5027-l\IEMO (A)

AIKENS v. CALIFORNIA 27

actual resort to the ultimate penalty tends to diffuse public opposition. We are told that tho penalty is imposed exclusively on uninfluential minoritios-"the poor, tho powo~oss, the personally ugly and socially un- _ acceptable."~ It is urged that this pattern of appli­cation assures that large segments of tho public will be..,....__ either uninformed or will have no reason to measure the punishment against prevailing moral standards.

This argument concedes tho unsoundness of peti-.::­tioners' contention, examined above under Part IV, that objective evidence shows a present and widespread com­munity rejection of the death penalty. It is now said, in effect, not that capital p_!.lnishment presently offends our citizenry, but that the public would be offende,d if the penalty were enforced in a nondiscriminatory manner against a significant percentage of those charged with capital crimes and if the public were thereby made aware of the moral issues surrounding capital punish­ment. Rather than merely registering the objective in­dicators on a judicial balance, we are now asked to rest a far-reaching constitutional determination on a pre-­diction regarding the subjective judgments of the mass of our people under hypothetical assumptions that may or may not be realistic.

Apart from the impermissibility of basing a consti­tutional judgment of this magnitude on such speculative assumptions, the argument suffers from other defects. If, as petitioners urge, we are to engage in speculation it is not at all certain that the public would experience deep-felt revulsion if the States were to execute as many sentenced capital offenders this year as they exe­cuted in the mid-1930's.~ It seems more likely that =-

~ Petitioner's Brief in No. 68-5027, at 51. .fee. f(, C /a.,.kJ C1-imc. .J~ ~In 1935 available statistics indicate that 184 persons were exe-~uted. That is the highest annual total for any year since statistics

GS- .5027-MEl\10 (A)

~ 28 AIKENS v. CALIFORNIA ~ ....

.... -

public reaction, rather than being characterized by un­differentiated rejection, would depend upon the facts and circumstances surrounding each particular case.

We who sit on this Court know, from the petitions and appeals which come before us regularly, that brutish and revolting murders continue to occur with disquiet-ing frequency. Indeed, murders arc so commonplace in our society that only the most sensational receive significant and sustained publicity. It could hardly be suggested that in any of these highly publicized murder cases-the several senseless assassinations or the too numerous shocking s mur ers 1at have stained this country's recent history-the public has exhibited any signs of "revulsion" at the thought of executing the convicted murderers. The public outer , as we all know has been quite to the contrar:r:/ N or is there any ra-

~ional basis for arguing 1at the public reaction to any

of these crimes would have been muted if the murderer has been "rich and powerful." The demand for the ultimate sanction might well have been greater ur-:_-thermore, there is little reason to suspect that the pub­lic's reaction would differ significantly in rcspomc to other less mblicized murders. It is certainly arguable that many such murders would evoke a public demand for the death penalty rather than a public rejection of that alternativc.v='While there might be speer c cases in which capital punishment would be regarded as ex­cessi\·e and shocking to the conscience of the community, one rationally may doubt that the public's dissa tisfac-

h::we become n1·nilnblc. NPS, SU]Jro, n. 18. 19::!5 is the ycnr chosen by petitioners in stating their thesi~:

"If, in f:1et, 184 nnmlerC'l',;; were executed in thi~ ~~mr 1971, lYe sub- ­mit it i~ pnlpnble that thr public con~rienrr of the Nation would be profoundly and funcbmrntnll.v re1·olled , nnd t hnt the death penalty for murder would be nboli~hed forthwith ns the nt:11·i . .:tic horror that it is." Petition!'l"s Brief in No. 68- 5027, at 20.

-

t

•

68-5027-MElVIO (A)

AIKENS v. CALIFORNIA 29

L tion with the penalty in particular cases would translate _ into a demand for absolute abolition.

In pursuing the foregoing speculation, I do not sug­gest that it is relevant to the appropriate disposition of these cases. The purpose of the digression is to in­dicate that judicial decisions cannot be founded on such ~uicl;·sa nd'i 'l£ speculations and assumptions however appealing they may seem.

-But the discrimination argument docs not rest alone -

on a projection of the assumed effect of more frequent executions on public opinion. Much also is made of the undeniable fact that the death penalty has a greater impact on the lower economic strata of society, which includes a relatively higher percentage of persons of minority racial and ethnic group backgrounds. The ar­gument drawn from this fact is two-pronged. In part it is merely an extension of the speculation approach

~ pursued by petitioners, i. e., that public revulsion is _.

[

uppresscd ifi1apathy because the penalty does not affect he vocal and powerful. This aspect, however, adds ittle to the infrequency rationalization for public apathy \·hich I have found unpersuasive.

As MR. JusTICE MARSHALL's opinion today demon­strates, the argument does have a more troubling as-pect. It is his contention that if the average citizen were a\\'are of the disproportionate burden of capital punishment borne by the "poor, the ignorant, and the underprivileged," he would find the penalty "shocking to his conscience and sense of justice" and would not stand for its further use. See ) . 49-54 hile t u

; 11 s-howtn:J ih~ ~ 1/,,ku.~fflt~ "P"~"" whu.h W<: .etJ-"(...

J,H J.., fo ho.. t (!;

h t s cl ec, r ,;n

Rider A, p. 29 (Death Penalty Cases) 5/10/72

This argument, like the aparthy rationale, calls for further

speculation >®fil*":lli:ion on the part of the Court. It also illuminates the

quicksand~ character of the grounds upon which we are asked

to base this decision. Indeed, the two contentions seem to

require contradictory assumptions regarding the public's

moral attitude toward capital punishment. ~~

The •; #Jsy argument

is predicated on the assumption that the penalty is used against

the less influential elements of society, that the public is fully

aware of this, and tolerates use of capital punishment only

+O ~,4~ because of a callous indifference ~llaPQS tlle ~ssee Qf

offenders who are sentenced. Mr. Justice Marshall's argument,

on the other hand, rests on the contrary assumption that the

public does not know against whom the penalty is enforced and

that if the public were educated to this fact it would find the

punishment intolerable. See p. 48. Neither assumption can

claim to be an entirely accurate portrayal of public attitude;

2.

for some acceptance of capital punish:ment might be a consequence

of hardened ~ased on the knowledge of infrequent and

"" ueven application, while for others acceptance may grow only A

out of ignorance. More significantly, however, :ex neither

supposition acknowledges what, for me, is a more basic flaw.

Certainly the claim is justified that this criminal x sanction

falls more heavily on the relatively impoverished and under-

privileged elements of society.

68-5027--MEMO (A)

AIKENS v. CALIFORNIA

l

The "have-nots" in every society always have ~::::::::--~ cen subject to greater pressure to commit crimes and

to fewer constraints than their more affluent fellow ~--_c. itizens. This is, indeed, a tragic byproduct of social

and economic deprivation, but it is hardly an argument­of constitutional proportions under the Eighth or Four­teenth Amendment. The same discriminatory impact argument could be made with equal force and logic with respect to those sentenced to prison terms. The Due Process Clause admits of no distinction between the deprivation of "life" and the deprivation of "liberty." If discriminatory impact renders capital punishment cruel and unusual, it likewise renders invalid most of the prescribed penalties for crimes of violence . . The root causes of the higher incidence of criminal penalties on "minorities and the poor" will not be cured by abol­ishing the system of penalties. Nor, indeed, could any society have a viable system of criminal justice if sane-/

68-5027-MEI\10 (A)

AIKENS v. CALIFORNIA 31

tions were abolished or ameliorated because most of those who commit crimes against their fellow citizens happen to be underprivileged. The basic problem re­sults not from the penalties imposed for criminal conduct but from social and economic factors which have plagued humanity since the beginning of recorded history, frus­trating all efforts to create in any country at any time the perfect society in which there are no "poor," no "minorities" and no "underprivileged."~ '~0The causes underlying this problem are unrelated to the constitu­tional issue before the Court.

Finally, yet another theory for abolishing the death ­penalty- reflected in MR JusTICE DouGLAS' opinion today-is predicated on the discriminatory impact argu­ment. Quite apart from measuring the public's accept­ance or rejection of the death penalty under the "standards of decency" rationale, MR. J usTICE DouGLAS finds the punishment cruel and unusual because it is "arbitrarily" invoked. It is argued that "the basic theme of equal protection is implicit' ' (p. 8) in the Eighth Amendment, and that Amendment is violated when jury sentencing may be characterized as arbitary and discriminatory. Whatever may be the facts with respect to jury sentencing, this argument calls for a

1./0 eNot all murder~, and certainly not all crimes, arc committed by _ persons classifiable as "underprivileged." A not insignificant per­centage of crimeH of violence, ranging from murder to street mug-ging, arc committed by professional criminals who willingly choose to prey upon society as an easy and remunerative way of life. More-over, the terms "underprivileged ," the "poor" and the "powerless" are relative and inexact, often conveying subjective connotations which vary widely depending upon the viewpoint and purpose of the user. T "

G8- 5027-MEMO (A)

32 AIKENS v . CALIFORNIA

reconsideration of the "standards" aspects of the Court's decision in McGautha v. California, 402 U.S. 183 (1971). Although that is the thrust of Mn. JusTICE Dot:GLAS' opinion today, I see no reason to reassess the standards question considered so carefully in Mr. Justice Harlan's opinion for the Court last Term. Having so recently recognized and sanctioned the jury's "untrammelled dis­cretion" (id., at 207) to impose the death penalty, it is difficult to see how the Court can now hold the entire process constitutionally defective under the Eighth Amendment. For all of these reasons I find little merit in the various discrimination ar ·uments at least in the several lights in '"hich · cases.

~

Although not pressed by any of the petitioners today, a different argument, predicated on the Equal Protec-tion Clause's prohibition against discriminatory systems-­of punishment, might well be made . . If a Negro de­fendant , for instance, could demonstrate that members of his race were being singled out for more severe pun­ishment than others charged with the same offense, a constitutional violation might be established. This was the contention made in Maxwell v. Bishop, 398 F. 2d 138 (CAS 1968) , vacated and remanded on other grounds, 398 U. S. 262 ( 1970), in which the Eighth Circuit "·as asked to issue a writ of habeas corpus setting aside a death sentence imposed on a K egro defendant convicted of rape. In that case substantial statistical evidence was introduced tending to show a pronounced dispro­portion in the number of Negroes receiving death sen-tences for rape in parts of Arkansas and elsewhere in the South. That eveidence was not excluded but was found to be insufficient to show discrimination in sen­tencing in Max",;ell's trial. lVIn. Jus·riCE BLACKMt:N, /

/

.f ...,... \i .~ '

-~ ' ..a

" ~ ~ ........ . ~ ~ ~

-4. \

tJ .J! ;.; ....

"" ~ " ~

~ ~

'? ~ ~ \:) u \} Q)

L,

~ .f" ·~

~ ~ .....0 ~

~ .... Q.

68-5027-MEMO (A)

AIKENS v. CALIFORNIA 33

then sitting on the Eighth Circuit Court of Appeals, concluded:

"The petitioner's argument is an interesting one and we are not disposed to say that it could not­have some validity and weight in certain circum­stances. Like the trial court, ho\\·ever ... we feel that the argument docs not have validity and per­tinent application to Maxwell's case ....

"W c are not yet ready to condemn and upset the result reached in every case of a Negro rape defendant in the State of Arkansas on the basis of broad theories of social and statistical injustice ....

"We do not say there is no ground for suspicion that the death penalty for rape may have been discriminatorily applied over the decades in that large area of states whose statutes provide for it . There arc recognizable indicators of this. But ... improper state practice of the past does not auto- _ matically invalidate a procedure of the present .... " !d., at 146-148.

I agree that discriminatory application of the death­penalty in the past, admittedly indefensible, is no jus­tification for holding today that capital punishment in invalid in all cases in which sentences were handed out to members of the class discriminated against. But Maxwell does point the way to a means of raising the equal protection challenge in any case in which the_

rdeath penalty may have been in;posed.~ ' The possibility of racial diSCl·imfnailrue-in the trial and sentencing process has diminished in recent years. The

. ·, ')2g. U. ~. 4fi9. Hi5 tHH'i , ·n wh~

he Court ini imai eel that n showing that a Stn te wns permitting i h

(

impo,-it ion of more scYcre puni~hmcnts on some cmwietcd defend '--"--.,_..., ants thnn on other~ simil:uly situated would constitute a denial o equal protection.

68--502i-?11El\10 (A)

34 AIKENS v. CALIFORNIA

total segregation of our society in decades past, which contributed substantially to the severity of punishment for interracial crimes, is now no longer prevalent in this country. Likewise the day is past when juries did not represent the minority group elements of the commu­nity. The assurance of fair trials for all citizens is greater today than at any previous time in our history. Because standards of criminal justice have "evolved" in a manner favorable to the accused, discriminatory imposition of capital punishment is far less likely today than in the past. -

VI Petitioner in Branch v. Texas, No. 69-5031, and to

a lesser extent the petitiOIJCrs in the other cases before us today, urge that capital punishment is cruel and unusual because it no longer serves any rational legisla­tive interests. Before turning to consider whether any

-

of the traditional aims of punishment justify the death -1-he.. c.vn ~ ey. f 1 ,.,

penalty,"'E?n :prfiatGry remailrs are appropria~. First, I find no support-in the language of the Con- ~hie:. h I tJ.pprotAJ,

stitution, in its history, or in the cases arising under -t-h;u aJp cf ,., .C. it-for the view that this Court may invalidate a cate-gory of penalties because we deem less severe penalties -th (;.,lt.f"C Jh1~JJ

~I adequate to serve the ends of pen~logy. While the cases -~ '\ affirm our authority to prohibit punishments which are he n?A J t.... c./~~.."'·

cruelly inhumane (e. g., Wilkinson v. Utah, 99 U. S., at 135-136; In re Kemmler, 136 U. S., at 447) , and punishments which are cruelly excessive in that they are disproportionate to particular crimes (see Part VII, infra) , the precedents of this Court afford no basis for r- striking down ~ a particular form of punishment -because we may be persuaded that means less stringent would be equally efficacious.

Secondly, if we ·were free to question the justifications for the use of capital punishment, a heavy burden would rest on those who attack the legislatures' judgment to

GS-5027-l\1El\10 (A)

AIKENS v. CALIFORNIA 35-

prove the lack of rational justifications. This Court has long held that legislative decisions in this area, which lies ·within the special competency of that branch, are entitled to a presumption of regwlaritf See, e. g., Trap v. Dulles, 356 U. S., at 103; Francis v. Resweber, 329 -U. S., at 470 (Frankfurter, J., concurring); TVeems v. United States, 217 U. S., at 378-379; In re Kemmler, 136 U. S., at 449.

I come now to consider, subject to the reservations above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution-though popular for centuries-is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions and has never heretofore found it an impermissible basis. In Williams v. New York, 337 U. S. 241 (1944). Mr. Justice Black stated that,

"Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation -of offenders have become important goals of crim-inal jurisprudence." !d., at 247-248.

That the Court did not, however, reject retribution alto­gether, is made clear by the fact that the record in the case indicated that one of the reasons compelling the trial judge to impose the death penalty was the sense of revulsion he experienced because of the "shocking details of the crime." !d., at 244. It was quite clear that the trial judge's sentence-upheld by this Court-was not motivated by goals of "reformation and rehabil­itation." tl Similarly, MR. JusTICE MARSHALL noted in --

41 In Morissette v. UnitPd States, 342 U.S. 24G (1952), Mr. Jus:_-~ tice Jackson spoke of "the t~ ancl unfinishea sLilistTtuhon of de- j}iJ terrrnre and reformation in place of retaliation and Yengeance as the motiYat ion for public prosecution." I d., at 250-251. He al~o noted that the prnalt ics for im·asion~ of the right· of property arc

68-!'\02i-MEMO (A)

36 AIKENS v. CALIFORNIA

his plurality opinion in Powell v. Texas, 392 U. S. 514, 530 ( 1968), that this Court "has never held that any­thing in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilita­tive effects."~~

While retribution alone seems an unworthy justifica­tion in a moral sense, its utility in a system of criminal justice requiring public support long has been recognized. Lord Denning, Master of the Rolls of the Court of Ap­peal in England, testified on this subject before the British Royal Commission on Capital Punishment:

"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 'vhich 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 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

high ns n. conscqurnre of thr "public demnnd for retribution." !d., nt. 260. _..

1 ~ Sec nlso Robinson "· California, 370 U. S. 660, 674 (1962) (Dour.LM;, J., concurrinl!:); Francis v. R('stveber, 329 U. S. 459, 470-471 (1947) (Mr . .Ju~tire Frnnkfurtcr's ndmonition that the Court is not empowered to act simply bcC'nuRc of "feelings of rc,·ubion against the State's insi~tenrc on its pound of flesh"); United States , .. Lovett, 328 U. S. 303, 324 (1946) (Frnnkfurtrr, .J., concurring). ("Punishment prc~uppo~e~ nn offense, not. necc~Rnrily nn nrt prcvi- I ously derlnrrd criminal, but an :1rt for which retribution is exnclcd."} A

~ / ,1

68-5027-MEMO (A)

AIKENS v. CALIFORNIA 37

on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deter­rent or not." .:l

The view expressed by Lord Denning was cited approv­ingly in the Royal Commission's Report, recognizing "a strong and widespread demand for retribution." •• The view, moreover, is not without respectable support in the jurisprudential literature in this country,•" despite a substantial body of opinion to the contrary.•n And

.~

it is conceded on all sides that not infrequently cases arise which are so shocking or offensive that the public demands the ultimate penalty for the transgressor.

Deterrence is a more appealing justification, although opinions again differ widely. Indeed, the deterrence issue lies at the heart of much of the debate between the abolitionis·ts a.nd rctentionists.'" Statistical studies, based primarily on trends in States "·hich have abolished the penalty. tend to support the view that the death penalty has not been proved to be a superior deterrent.48

..__.

The validity of this conclusion has been disputed by _

1 ~ Ro~·nl Comm'n on Cnpti:ll Punishment, Minutes of E\·idence, 207 (1949-1953) (Stntcment of Lord Dennin!);).

11 Ro~·nl Comm'n on Cnpitnl Punishment, Report, at 18, ~53 (1949-1953) (Cmd. No. 8932).

4 " M . Cohen, Reason llnd L:nv 50 (1950); H. Pncker, The Limits of the Criminnl Snrwtion 11-12 (1968); I-Inrt, The Aims of the Criminnl Law, 23 Lnw & Contemp. Prob. 401 (1958).

1 G The authorities nrc rollected in Comment , The Denth Pcnnlty Cnses, 56 Calif. L. Rev. 12G8, 1297-1301 (19G8) . The competing contentions are summnrized in the Working Papers of the Nat!. Comm'n on Reform of Fedcrnl Crim. Ltws, SU]n·a. n.ll , at 1358-1359. Sec al~o the pcrsunsivc trentmrnt of this issue by Dr. Karll\Tenninger in The Crime of Punishmrnt 190-218 (1966).

"Sec c. g .. H. Bednu , The Death Penalty in America 260 (1967); Nat!. Comm'n, supra, n. 16, nt 1352.

18 See Sc·llin, The Death Pennlty, supra, n. 16, at 19-52.

68-5027-MEMO (A)

38 AIKENS v. CALIFORNIA

some,4n as the studies do not support the proposition that the death penalty has no deterrent effect on any crime. On the basis of the literature and studies cur­rently available, I find myself in agreement with the conclusions drawn by the Royal Commission following its exhaustive study of this issue:

"The general conclusion which we reach, after care­ful review of all the evidence we have been able to obtain as to the deterrent effect of capital pun­ishment, may be stated as follows. Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not op­erate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. It is accordingly important to view this question in a just perspective and not bas-e a penal policy in relation to murder on exaggerated esti­mates of the uniquely deterrent force of the death penalty.50

Only recently this Court was called on to consider the deterrence argument in relation to punishment by fines for public drunkenness. Powell v. Texas, 392 U. S. 514 (1968). The Court was unwilling to strike down the Texas statute on grounds that it lacked a rational foun­dation. What MR. JusTICE MARSHALL s·aid there would seem to have equal applicability in this case:

"The long-standing and still raging debate over­the validity of the deterrence justification for penal

4n The countervailing considerations, tending to undercut the force of Professor Sellin's statistical studies, arc collected in Natl. Comm'n, supra, n. 16, at 1854 ; H. Bcdau, supra, n. 47, at 265-266; Hart, Murder and the Principles of Puni~hmcnt: England and the United States, 52 Nw. U. L. Rev. 433, 455-460 (1957).

50 Report of the Royal Comm'n, supra, n. 44, at 24, 168.

As f stated at the beginning of this section, I find no

basis for the proposition that this Court may strike down

punishments under the Eighth Amendment~

eemed to be because rational justifications are lacking or/less severe penalties

might serve the same legislative purposes. Even if such

judgments were within the judicial prerogative, petitioners

-?-ht:: ,' have fail ed to show that exist no justifications for the

A

51 legislative enactments challenged in these cases. While

the evidence and arguments affi~ee~ might prove profoundly

persuasive if addressed to a legislative body, they do no

approach the showing traditionally required before a court

declares that the legislature has acted irrationally.

' I '.

68-5027-MEMO (A)

AIKENS v. CALIFORNIA 39

sanctions has not reached any sufficiently clear con­clusions to permit it to be said that such sanctions are ineffective in any particular context for any par-ticular group of people who are able to appreciate the consequences of their acts .... " I d., at 531.

state above,~ ~· ;:::I~t&::tt;:::I:;~~.@d:J(lt;::m~~H£ the-explicit..language.. ~~ nizing the- pern · ssibility of c ·tal punishment. and t.h repeated affirman e there9f by this we are free to ke .,..~judgment petitioners. But even if I hel a could not conclu e that petiti ners requisite burden of showing }hat ther is no r ·Ol l justification for the legislat}~e enactm nts th would strike down. 51 If 'the eviclince and ar men were ad-drrssed to a legislfl,tive/ body they w uld eserve and cpmmand respect aittvS'upport. But t fall far short of the showing traditionally required before a court de­clares that the legislature has acted irrationally.

---"-----~

VII

In two of the cases before us today juries imposed sentences of death upon convictions for rape. 5 ~ In these cases we are urged to hold that even if capital punish-.....

p;:· 0., ment is permissible for some crimes, it is a cru~ __ II)_~-_· --...x.:t:U...k~C- _ _[~musual punishment for this crime. ~·ewfJ9~

· • ' ~'---- J,oart nf the argument here-that

I 'Hiio theor-i r~~ . J -

8 ~1 lT4iQ from t:f '"11 le e"*Pres~ t~tz-e-~~~ ~ ~ some-of this .

A Court's opinions that the Eighth A mendment, in addition to

prohibiting punishments deemed barbarous and "nh 1 umane, also a..... •

condemns those . ~ pun1shmentJ h" h

{ W 1C ape greatly d" 1sproporti onate to the crime~ .. h ;,. ~ '-

68--5027-MEMO (A)

40 AIKENS v. CALIFORNIA

the Eighth Amendment. prohibits punit~hme-H-tt3-which,

arc deemed dis-proportionate finds some suppru: in .QJ iuions. construing th rm "en1el and unusual " This reading of the Amendment was first expressed by Mr. Justice Field in his dissenting opinion in O'Neil v. V er­mont, 144 U. S. 323, 337 ( 1892), a case in which a_ defendant charged with a large number of violations of Vermont's liquor laws received a fine in excess of $6,600. And, if the fine was not paid, he " ·as to serve a 54-year jail sentence. The majority refused to consider the ques­tion on the ground that the Eighth Amendment did not apply to the States. The dissent, after carefully exam- · ining the history of that Amendment and the Fourteenth~ concluded that its inhibition was binding on Vermon~ and that it was directed against "all punishments which

\ by their excessive length or severity are greatly dispro-l '\ ~ portionate to the offenses charged." I d., at 339- 340."'\ r _y--- The Court, in Weems v. United States , 217 U. S. 349

"" ( HllO), adopted Mr. Justice Field's vie\Y. The defend­ant in this case, charged with falsifying Govemmen t documents, had been sentenced to serve 15 years in cadena temporal, a punishmcn t which included C"arrying chains at the wrists and ankles. and the perpetual loss of the right to vote and hold office. Finding tho seu­tcnce grossly excessive in length and condition of im­prisomnent, the Court struck is down. These expressions of disproportionality-that particular sentences may be cruelly excessive for particular crimes-have been cited with approval in more recent decisions of this Court. See Robinson v. California, 370 U. S. 660, 667 (1962); Trop v. Dulles, 356 U. S. 86, 100 ( 1958); see also Howard v. Fleming, 141 U. S. 126, 135- 136 (1903).

-r.o Mr. Justice Harlan, joined by Mr. Justice Brewer, di~srnted

separately in thiR cn.<e but conrmrcd in the conclusion that the State hnd inflicted :1 cruel and unusual punishment. Jd., at 371.

~II p lfl

~~~ These cases, wh,ile providing a basis for gauging the

,·m pe-~r•J constitutionality of capital sentences meted e~ for rape,

also indicate the existence of necessary limitations on

1111 ~ the judicial prerogative conferred by~~ proportionality

test. ~ ~~

The eareful use of adjectives in the various expressions ·'\

of this test found in the opinions--grossly excessive, greatly

~ disproportionate--!"efleQ:t: that. not 1 lt:llilee t:he "barbarousness"

ot- "inhum.anQneao" branch of the L\mendmenu.,.. the Court's power

to strike down punishments as excessive must be exercised

with the greatest circumspection. Nothing in the history

trf ~~~~~~~~~~~~~~-o~f~the Cruel and Unusual Punish-

ment Clause indicates that it ~tzed by the 1\.

judiciary to strike down punishments--authorized by legis-

latures and imposed by juries--in any but the extraordinary

~

case. Ce~tainl7 t his Court is not empowered to sit as a

court of sentencing review ,frooly implementing the personal

views of its members on the proper role of penology. To

a eleaA y do so would be - to usurp i~l function/committed to the

and legislative branch and beyond the power d# competency of

this Court. ~~~ -these ':ft:W:Q~ ..

Operating within i~l narrow it quite • ~ ~:.&· · Lv"i:Z Yt'i wi:..y impo~~ible to declftre the death sentence grossly excessive

A

to all rapes. Rape is widely recognized as among the most

serious of violent crime~ as witnessed by the very fact that

' . . ' <

it is punishable by death in sixteen state and by life

imprisonment in most other states. The several reasons

why rape stands so high on the list of serious crimes

are well known It is widely viewed as the most atrocious of

~ intrusions upon the privacy and dignity the victim; never

1\

is the crime committed accidentally; rarely can it be said to

be unpremeditated; often the victim suffers serious physi-

cal injury1 the psychological impact can often be as great

as the physical consequences; in a real sense, the threat

54 of both types of injury is always present. For these reasons,

and for the reasons precluding the Court from striking down

the death penalty altogether, the excessiveness rationale

. ~b . f . f prov1des no as1s or reject1on o the penalty for rape in

all cases.

for rape Of-e@u~~ -rhe argument that the death penalty/lacks

rational- justification because less severe punishments

might be viewed as accomplishing the proper goals of

penology is as inapposite here as it was in considering ~~~ per

se abolition. See Part VI supra. At= e.ay ratt:\,~

state of knowledge with respect to the deterrent value

55 of the sentence for this crime is indecisive. Moreover,

what has been said about the concept of retribution

applies with equal force where th~crime is rape. There

¥ -. j

are many cases in which the sordid, heinous nature of a

particular crime, demeaning, humiliating and often

physically traumatic, will call out for public reprobation.

In a period in our country's history when the frequency of

c~~>56 this crime is steadily increasi~ it would be a grave

event if the Court were to take from the States whatever

deterrent and retributive weight the death penalty retains.

Other , less sweeping . applications of the dispropor-

tionality concept have been suggested. Recently the Fourth

Circuit struck down a death sentence in a rape case. Ralph

v. Warden, 438 F.2d 786 (CA4 1970). Short of holding that the

IJ. I I

death penalty was excessive to every rape conviction, the I

only court held the punishment impermissible /where life is not

"endangered." Chief Judge Haynesworth, who joined in the

panel's opinion, wrote separately in denying the State of

~clear Haryland's petition for rehearing in order tO J~/the

~ .. kt..

basis for his vote. He stated that, for him, the appropriate

test was not whether life was endangeredp but whether the

victim in fact suffered "grievous physical or psychological

harm." Id., at 744. See Rudolph v. Alabama, 375 U.S. 889

(1963) (dissent from the denial of certiorari).

the particular proponent's view of sound policy.

Furthermor9, 'both altornativEis raise serious practical

problems. How are those cases in which the victim's life

is endangered to be distinguished from those in which no

danger is found? The threat of~serious injury is implicit

in the definition of rape: the victim is either forced into

submission by physical violence orblhe threat of violence.

" ~ d Cert~nly that test would provide little ~or either '\

of the rape defendants in the cases presently before us.

Both criminal acts were accomplished only after a violent

struggle. Petitioner Jackson held a scissors blade against

his victtim's neck. Petiitioner Branch had, less difficulty

subduing his 65-year-old victim. Both ~ssailants threatened

to kill their victims. See Mr. Justice Douglas' opinion,

at 11-12. The alternative test, limiting the penalty to

cases in which the victim suffers physical or emotional

·~

harm, ~present/ even greater problems of application.

While most physical effects may be seen and o~jectively

Cu=zi:jJ-;;:;yol 1' ~ measured, the emotional impact may be impossible to gauge

* ~~~.J!..,.~ at any particular point in time. The impact ef e8¥ere

if(; ---te ~}A/~~~ ~ psychological trauma may not .man] fest itself prior to the

date of trial. Jlf~ victim or her physician testifies

psychological impact, is the accused

mental examination in order to refute the victim's claims.

;.,;. ·'..!t

t q #1 J t ss ~" JS ~~ While I r ject each ~ th; s attemptt to establish

specific categories of cases in which the death penalty

may be deemed excessive, I view them as gropping toward

~,opllc.o.+;I)Y) what is for me the appropriate ~i4iBati~ of the Eighth

,.. Amendment. While the disproporti anality test may not be

""' used either to strike down the death penalty for rape

altogether or to install the Court as a tribunal for sentencing

review, that test may find its application in the peculiar

r.AII,..J'~-t/,rJ ~ circumstances of specific cases. Its ~lioat~ is~limited

rare to the#i!l, aberrant case in which the death penalty is

rendered for a crime technically falling within the

legislatively defined class but factually falling outside

the category. Specific rape cases (and specific homicides

~~~~~ as \vell) JIH,ght 'bQ cc~d in which the conduct of the

accused under the circumstances would render the ultimate

penalty a grossly excessive punishment. Although this

~~ case-by-case approach may seem painfully inadequate to

a....,.._ 4-c::..~ A

~~~~~~ those who wish the Court to..\ take a lGiiiuier8iri:~~ in

reforming criminal punishmantsp it is the approach

o-u-J- prior dictated both by t-OO ~/opinions of this Conv-t and by

~,til~ a ~ recognition of the limititations of judicial power.

•

G8-5027-MEi\IO (A)

AIKENS v. CALIFORNIA 41

ecently the Fourth Circuit relied on the concept of disproportionality to strike down a death sentence for rape. Ralph v. Warden, 438 F. 2d 786 (CA4 1970). Unwilling, however, to abolish the death penalty for every rape conviction, the court held the punishment excessive where life was not "endangered." Chief Judge Uaynsworth, who joined in the panel's opinion, ·wrote separately in denying the State of Maryland's petition for rehearing in order to make clear the basis for his vote. He stated that, for him, the appropriate test was not whether life was endangered, but whether the victim in fact suffered "grievous physical or psychological harm." !d., at 744. His separate statement is based in pa.rt on the recognition that to some extent life is always en­dangered by forcible rape."1

We are presented then with a range of choices: should death be permitted only where the victim is in fact in­jured, or where the victim is threatened with injury, or should we preclude usc of the penalty altogether? This is precisely the sort of choice that, in my view, this Court is not qua.lified to make. For the same rea­sons that we cannot upset laws calling for the death sentence for homicide and other serious crimes, we are precluded from wiping away the penalty for this par­ticular crime. The state of knowledge with respect to the deterrent value of the sentence is indecisive."" Moreover, what has been said about the concept of retribution applies with equal force where the crime is rape. There are many cases in which the sordid, heinous nature of a particular crime, demcaHing, humiliatin

M MftcDonftld, Hnpe-Offendcrs nnd Their Victims G3-G4 (1971); Pncker, Making the Punishment Fit the CrimP, 77 Harv. L. Rev. 1071, 1077 (19G-l).

r,r. Sec 1\IacDonald, sup1"a, n. 54, at 314; Chambliss, Types of Deviance and the Effect i1·enPss of Legal Sanctions, 1967 Wis. L. Rev. 703.

68-5027-MEMO (A)

42 AIKENS v. CALIFORNIA

and often physically traumatic, will call out for public reprobation. In a period in our country's history when the frequency of this crime is steadily increasing GG it would be a grave event if the Court were to take from

/ the States whatever deterrent and retributive weight the death penalty retains.

The cases establishing the foundation for the test of ' excessiveness under the Eighth Amendment uniformly

teach that the Court is not empowered to sit as a court of sentencing review to determine fine shadings of sever­ity in the sentences handed down by juries. We do not sit to second-guess their decisions. Nothing in the history of this country's adoption of the Cruel and Un­usual Punishment Clause indicates that it was ever viewed as a tool to be invoked by the judiciary in any but the extraordinary case. Only when the Court has found a punishment grossly excessive has it deemed affirmative action to be appropriate."7 Without this restraint on our review of sentences, little would stand in the way of the free implementation of our personal evaluations of the proper role of penology. We then 'would.. have successfully_u~urned _nQt onl the legisl - --uG FBI, Uniform Crime Reports .i'GP- thc United Sldl l(!$ 1970, 14 (1971) (during the 1960's the incidence of rape rose 121 % ). . . . . .

st il~e down the death penalty for rape altogether or to insl<1ll thi Couii~ a tribunal of sentencing review, in my view j.hat"'tcst rna u:we app1lea,tion to specific cases. Its application should be limited o the rare, abC'rrant rase in which the de~nalty may be deemed rossly excessive. ·· · · ·

s~/ sr

68-5027-MEMO (A)

AIKENS v. CALIFORNIA 43'

tive function, but a_ko I over ~.ucl ents of sentencing a ~untry. _ _

I now return to the overridi g question in these cases:

Cvhether this Court 1

acting in conformity with the Constitution,., . bolish capital punishment for all crimes and under al circumstances from hence­forward. It is important to keep in focus the enormity of the decision proposed. Not only would it invalidate hundreds of state and federal laws, it would deprive those jurisdictions of the power to legislate with respect to capital punishment in the future. Nothing short of an amendment to the United States Constitution could reverse our judgment. Meanwhile, all flexibility will have been foreclosed. The normal democratic processes, as well as the opportunities for the several States to respond to the will of their people expressed through

'\.. ball?t. r~:Jerenda (as in Massachusetts, Illinois, and Col-~will.be shut off.

The sobering disadvantage of constitutional adjudica­tion of this magnitude is the universality and perma­nence of the judgment. The enduring merit of legislative action is its responsiveness to the democratic process, and to revision and change: mistaken judgments may be corrected and refinements perfected. In Eng­land l£ and Canada U these critical choices were made after studies canvassing all competing views, and revi-

t (} / sions may be made in light of experience:-s- ~ ..l

( 7 ~Sec text accompanying nn. 27 & 28, supra. !'S' Sec n. 24, supra. r 1 G See 11. 23' supra. t 0 6 Recent legislative activity in N cw York State serves to under­

line the preferability of Jegisln1 iYc action over constitutional adjudi­cation. New York abolished tbe death penalty for murder in 1965, leaving only a few crimes for which the penalty is still available. See text accompanying n. 25, supra. On April 27, 1972, a bill, which

/c:

'I

uS-502i-l\1El\10 (A)

44 AIKENS v. CALIFORNIA

As recently as 1967 a presidential commission did consider, as part of an overall study of crime in this country, whether the death penalty should be abolished. The commission's unanimous recommendation was as follows:

"The question whether capital punishment is an appropriate sanction is a 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 nondiscriminatory 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 Leing imposed but not carried into effect, the penalty should be abandoned."., ~I

would ha\·e restored the death penalty was con~idered by the Stnte Assembly. After Re\-cral hours of heated dcbat~ihe bill was nar­rowly defeated b~· a Yote of 65 to 59. N. Y. Tir-Je.·, April 28, 1972, at 1, col. 1. After se\·en ~·cars of dist& of the death penalty the reprcsentnti\·es of the JWOplc in that St~te had not rome finally to rest on the quest ion of rnpital puni~hment. Because the 1965 decision had been the product of the popular will it could h:we been undone by an exrrci~e of the ~arne democratic processes. No such flexibiltiy would be permitted if abolition were to flow from con­s! itutional adjudicntion.

..c1President's Commi~Rion 011 Law Enforcement. and Administra­tion of Justice, The Chnllrnge of Crime in a Free Society 143 (1967) (chaired by Nic·hob~ Katzrnbnrh, then Attorney General of the United Stnte~). The text of the Report stated, among other things, thnt. the a,bolition of the death penalty "is being widrly debated in the states"; that it i~ "impo8sible to Ray with rertninty whether rapitnl punishment signifirnntly reduces the inridence of heinous crimes"; that "whnteYer views one mny ha\'e on the effirnry of the de:1th penalty ns a deterrrnt, it clearly has nn undesirable impact on the ndministration of criminal jnstirc"; that "some members of the Commi~sion fn\·or the abolition of rnpital puni~hment, while other members favor its retention"; nnd that "all members of the

J~ ;

...

& 2. I tJ I

68-5027-MEi\10 (A)

AIKENS v. CALIFORNIA 45

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.

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 sharp division [existed] within the Commis­sion on the subject of capital punishment, although a majority favored its abolition."-e' Again, 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 genera1ly across the country, could or should be resolved in one stroke by a vote of this Court. Simila.r activity is evident at the state level with re-evaluation having been undertaken by spe­cial legislative committees in some States and by public ballot in others.-6t t'/

We are now asked to put an end to this laudable trend of public concern. With deference and respect for the views of the Justices who differ, it seems to me

Commission agree that the present situation in the administration of the death penalty in many states is intolerable." !d., at 143. As a member of this Presidential Commission I subscribed then, and do now, to the recommendations and views above quoicd.

~J ~Final Report of the Natl. Comm'n on Reform of the Federal Criminal Laws 310 (1971).

U ~The American Law Institute, after years of study, derided not to take an official position on the question of capital punishment, although the Advisory Commii tee favored abolition by a vote of 18-2. The Council was more eYenly divided but all were in agreement that many States would undoubtedly retain the punishment and that, therefore, the Institute's efforts should be directed toward providing· standards for its implementation. ALI, Model Penal Code, 65· (Tent. draft No.9, 1959).

~sec text accompanying nn. 26 through 30, SU]Jra.

68-502i-MEMO (A)

46 AIKENS v. CALIFORNIA

that all of these studies-both in this country and else­" ·here--suggest that as a matter of policy and precedent this is a classic case for the exercise of our oft-announced allegiance to judicial restraint. I know of no case in which greater gravity and delicacy has attached to the duty that this Court is called on to perform whenever legislation-state or federal-is challenged on constitu­tional grounds·.-G&-tf It seems to me that the sweeping judicial action sought in these cases reflects a basic lack of faith and confidence in the democratic process. Many may regret, as I do, the failure of some legislative bodies to address the capital punishment issue with greater frankness or effectiveness. Many might decry their fail­ure either to abolish the penalty entirely or selectively, ~to establish nondiscriminatory standards for its en­forcement. But impatience with the slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic powers. Rarely has there been a more appropriate opportunity for this Court to heed the philosophy of Mr. Justice Oliver Wen­dell Holmes. As Mr. Justice Frankfurther reminded the Court in Trap:

"the whole of [Mr. Justice Holmes'] work durillg his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the act of government, it stood as the sole bulwark against unwisdom or excesses of the moment." 356 U. S., at 128.

t.f-llftBlodgett v. Ilolden, 275 U. S. 142, 148 (1927) (Mr. Justice Holmes, concurring). See also Trap v. Dulles, 356 U. S., at 128 (Mr. Justice Frankfurter, di~senting):

"The awesome power of this Court to invalidate ... legislation, because in practice it is bound only by our own prudence in discern­ing the limits of the Court's Constitutional function , must be exer­cised with the utmost restr:1int."

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