..

i6u.p-rrmc ~o-urt cf t~t ~nililt i6tni:ts

~aslrittgton, Ifl. <!J. 2llgtJ.t,~

January 8, 1 976

MEMORANDUM TO THE CONFERENCE

Subject: Capital Cases

There are now 48 capital cases on the Court's docket:

Fowler

39 holds for Fowler 2 cases listed for Conference 6 cases not yet listed

48 1/ --Seven of these cases have been added to the docket since

my last memorandum of November 6. Of the seven, five are from North Carolina ?:_/ and all involve that State's pre -Furman capital punishment statute as judicially construed in State v. Waddell, 194 SE 2d 19 (1973). And, two of those cases, Avery and Thompson, are non-jurisdictionally out-of-time, 165 and 116 days, respectively. ~/ One of them, Thompson, does not raise a capital punishment issue!

Of the other two recent filings, one, Songer v. Florida, 7 5-5800, involves Florida's jury-advisory, "aggravating-mitigating" statute. As discussed in some detail in my early memorandum of L-June 10, 1975, the F1oridacapital punishment statute is uniqu~,

!_/See Status of Capital Cases, attachment A. ~ ~

?:_/Bock v. North Carolina, 75-5728; King v. North Carolina, 75-5792; Avery v. North Carolina, 75-5949; Carey v. North Carolina, 75-5960; and Thompson v. North Carolina, 75-5983. Bock is listed for the January 9 Conference, List 2, Sheet 3.

~/Counsel for Avery notes in his affidavit in support of peti­tioner's indigency that appointed counsel in North Carolina are not required to take their client's case beyond the State Supreme Court and are not entitled to compensation for such representation if they do. In this instance, counsel further notes, he was directed to file a peti­tion for certiorari by Chief Justice Sharp. I understand that the Chief Justice has now made her directive applicable to all capital cases .

- 2 -

in certain respects and does not appear appropriate for plenary review of the death penalty issue. Otherwise, the case would appear appropriate for review. Petitioner, a 23-year old white male, was convicted of the murder of a Florida State trooper who at the time petitioner shot him was investigating the car petitioner was in as being stolen. Petitioner raised a very weak defense that he had been taking drugs and was hallucinating at the time of the shooting. Messrs. Greenberg ari.d Amsterdam are on the brief and attack the Florida statute on both Furman and per ~grounds. A second issue involving the trial judge 1 s refusal to permit the defense to see a 11confidential 11 portion of the pre-sentencing report is also raised.

The remaining recent f~ling, Roberts v. Louisiana, l-tL-~ 75-5844, involves that State's 1 ~andatory 11 death penalty statute ~ . and raises only the capital punishment issue. (Petitioner did -~~ raise a Taylor issue in the Lou1siana upreme Court, but ~-- 1 appears to have abandoned it on certiorari, apparently in light of Daniel v. Louisiana, 420 U.S. 31 (1975).) Roberts, a young __./ black male, was convicted of the first degree murder of a gas station attendant during the commission of an armed robber • It is not set forth in e plea 1ngs, ut it appears that petitioner's co-perpetrator was not convicted of first degree murder and may have testified against petitioner at trial. (Although counsel does argue prosecutorial discretion, he does not make this point in his petition. )

To recapitulate briefly some of the matters covered in prior memoranda, there are now thirty-four states and the federal government which have enacted post-Furman capital punishment statutes. 4/ As discussed in my memorandum of June 10, 197 5, it is possible to identify four basic approaches taken by state legislatures in enacting these st~tes-- 11aggra­vahng on y ; agg ava 1ng-mitigating 11

; "quasi-mandatory aggravating-mitigating"; and "mandatory. 11 5/ Half of those

- ----states enacting post-Furman statutes have chosen the 11mandatory 11

approach. - - --

Some states have not enacted new capital punishment I statutes, believing, I assume, that their statutes do not violate

4/See schedule, attachment B.

E./See, Note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv. L. R. 1690 (1974).

. o'

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the "holding" of Furman. One of these states, Massachusetts, recently declared its pre -Furman statute unconstitutional under its own constitution. I have attached a digest of the Supreme J~decision for your information. Attaclunent C.

My June 10 memorandum suggested that ideally, the capital punislunent issue should be given plenary consideration in a single -is sue case involving a "mandatory'' death penalty statute which presents facts raising little doubt as to the other­wise constitutional appropriateness of the sentence. Given the pre sent state of the docket, this would l~mit the choice to the two Louisiana cases 6/ and the single North Carolina case involving that State's "n~-:-11 post-Furman, "mandatory" statute. The --------------- -Court has considered two of these cases, Selman and Woodson, and ordered them held for Fowler. The Roberts case, discussed supra, is not yet listed for Conference action. Roberts is, at ' this stage, a single issue case, although it does suffer somewhat under the pale of Taylor. §_/ The case also suffers somewhat on the facts, particularly the hint (and I am not sure of this) that Roberts' co-perpetrator was permitted to plead to a lesser offense in return for his testimony. Woodson and Waxton, an otherwise appropriate case, suffered this drawback and is being held.

I understand that several capital cases are on their way to the Court and will be filed shortly. One is from Louisiana and another possibly from Oklahoma, bo~pital purus en Sta es. ev a r h Carolina cases are a so scheduled to Beliled soon, some of which will involve that State 1 s post-Furman "mandatory" statute.

As of November 5, 1975, 376 persons in 28 states were under sentence of death. 9/

' - I . rL. -· ~-C.._~ __ v~ ~

James B. Ginty

6/ Selman v. Louisiana, 74-6065; Roberts v. Louisiana, 7 5-5844.

]_/Woodson and Waxton v. North Carolina, 75-5491.

"~

§_/My memorandum of September 10 also discussed what effect, if any, the Court's decision last term in Mullaney v. Wilbur, 421 U.S. 684 (1975), might have in selecting a case.

9__/ See breakdown by states, Attaclunent D •

.1

STATUS OF CAPITAL CASES (As of January 8, 1976)

Held for reargument (1)

Fowler v. North Carolina, 73-7031

>!< Cases being held for Fowler (39)

Henderson v. North Carolina, 73-6853 Dillard v. North Carolina, 73-6875 Noell v. North Carolina, 73-6876 Jarrette v. North Carolina, 73-6877 Crowder v. North Carolina, 73-6878 Honeycutt v. North Carolina, 73-7032 Sparks v. North Carolina, 74-669 Eberheart v. Georgia, 74-5174 House v. Georgia, 74-5196 Hooks v. Georgia, 74-5954 Selman v. Louisiana, 74-6065 Hallman v. Florida, 74-6168 Ross v. Georgia, 74-6207 Gregg v. Georgia, 74-6257 Ward v. North Carolina, 74-6263 Sullivan v. Florida, 74-6377 Moore v. Georgia, 74-6547 McCorquodale v. Georgia, 74-6557 Sawyer v. Florida, 74-6563 Gardner v. Florida, 74-6593 Lampkins v. North Carolina, 74-6673 Alford v. Florida, 74-6717 Lowery v. North Carolina, 75-5032 Stegmann v. North Carolina, 74-6735 Jarrell v. Georgia, 74-6736 Mitchell v. Georgia, 75-5022 Armstrong v. North Carolina, 75-5076 McLaughlin v. North Carolina, 75-5077 Woods v. North Carolina, 75-5091 Spenkelink v. Florida, 75-5209 Gordon v. North Carolina, 74-6733 Simmons v. North Carolina, 75-5262 Young v. North Carolina, 75-5281 Vinson v. North Carolina, 75-5384 Jurek v. Texas, 75-5394

Attachment A

*Vick v. North Carolina, 75-5075, was dismissed under Rule 60 on October 31.

.. ·

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Robins v. North Carolina, 75-5426 Coker v. Georgia, 75-5444 Woodson v. North Carolina, 75-5491 Proffitt v. Florida, 75-5706

Cases listed for Conference action (2)

Bock v. North Carolina, 75-5728 (Jan. 9 Conference, List 2, Sheet 3)

Wetmore v. North Carolina, 75-5697 (Jan. 16 Conference, List 2, Sheet 2)

Cases not yet listed (6)

Kings v. North Carolina, 75-5792 Songer v. Florida, 75-5800 Roberts v. Louisiana, 75-5844 Avery v. North Carolina, 75-5949 Carey v. North Carolina, 75-5960 Thompson v. North Carolina, 75-5983

Breakdown of cases by States

North Carolina Georgia Florida Louisiana Texas Capital cases

on docket

27 10

8 2 1

48 -

>'' POST-FURMAN DEATH PENALTY STATUTES,.

"aggravating only"

Georgia Illinois Montana South Carolina Utah

- (34 States and Federal)

''aggravating -mitigating' 1

Alabama (advisory) Arizona Arkansas Florida (advisory) Maryland Nebraska Tennessee

See Model Penal Code §210. 6 (1962).

''quasi-mandatory aggravating-mitigating''

California (partial) Colorado Connecticut Ohio Pennsylvania Texas (?)

''mandatory''

California (partial) Delaware Idaho Indiana Kentucky Louisiana Mississippi Missouri Montana Nevada New Hampshire New Mexico New York

Federal Anti-hijacking Act of 1974, 88 Stat. 409.

See Model Penal Code, supra.

North Carolina (eff. April 8, 1974) Oklahoma Rhode Island Wyoming

Attaclunent B

>!~Breakdown per 89 Har. L. R. 1690. See memorandum of June 10.

\ptcrcsts, the Sup~emc.: Court reached the conclusion that newsmen II'Cre not unmunc from subpoena by a properly func­tioning grand jury. Uranzburg v. ll ayes, ,108 U.S. 6rl5, II CrL 1333. Such weighing of comJ~ding interests led tiH.: Co1trl to the ondusion that re;.~son:lblc regulations denying :tcccss to in-

- di\·ictual state and federal prisoners may be ~ustained . Pel! v. Procunicr, ·fl7 U.S. 1817, 15 CrL 3202: Saxbc v. \V:1shington Post Co., 417 U.S. 843, 15 CrL 3210. In both instances thc Court reco~.!nized the caveat of Branzburg set out above.

As applied to this l'a sc, the competing legitimate intcrcsts arc clear <ind important. The first lcgit irn;-~tc interest to bc con­sidered is the.: people's right to know. This intcrcst is particular­ly sensitive and important as applied to police activity. * * *

The City and Stale have a legitimate interest in preserving the secrecy of their rcc o rrl~ from the (:yes of dl·fcnd:l nls :1ncl their coun~d in crimin;.~l actions.*"'* \\ 'lwtcvcr ll'e hold to bc available to the press must also be available to the public. At the present time the records contained in the Offensc Report are not available to crimin~d ddense counsel except in ca~es where good cause is shown in a motion undc.:r the discovery provisi~ns of the.: Code of Crimin al Proccdure. * * * Discovery of sud1 reports has been denied. * * *

Furthermore, the State has a legitimate interest in preventing exce~s publicity which might lead to a denial of due process and endanger the prosecution. * * *

The Chronicle makes a strong case for the usefulness of the availability of Offense Reports in the discharge of its obligation to inform the public. These reports enable the reporters to evaluatc the neWS\\Orthi no:s~ nf the occurrence and the prominence of the.: victims or perpetrators, which may make the crime newsworthy.

With respect to the Offe:-~~e Report. it ~ccms to us that these legitim ate competing interests can be reconciled by the finding . of a constitutionally protected right of the press and public to the front page (or an e .~ act copy thereof) of the Offense Report structured to include the offense committed, location of the crime, identification and description of the complain<Jnt, the premises involved, the time of the occurrence, property in-

lived, vehicles involved, description of the weather, a detailed ~scription of the offense in question, and the names of the in-

-;;estigating officers and otherwise seeking additional informa­the press is entitled as a matter of constitutionally p:otected right, will not prc.:clude the press from interviewing the in­ve~tigation officers and otherwise seeking additional informa­tion conccrning a newsworthy crime.:. Along with the other records held in this opinion to be public records under the Open Records Act, the activities of the City of Houston law enforce­ment agencies will be open to public scrutiny. This con­stitutional right of access to information should not extend to such matters as a synopsis of a purported confession, officers; specula! ions of a suspect's guilt. officers: views as to the credibility of witnesses, statements by informants, ballistics reports, fingerprint comparisons. or blood and other laboratory tests. To open such material to the press and public in all cases mieht endanger the position of the State in criminal prosecutions by the.: usc.: of such materials to the disadvantage of the prosecution . To have such material open to the press and public in a ll cases might reveal the names of informants and pose the threat of intimidation of potential prosecution witnesses. In any case.:, the press has available effective means of finding out most of such details thr uugh intervic\IS with the par­ticipant s, officers, ami witnesses. * * *

The Personal History and Arrest Record is an entirely differe,Jt matter. * * * Some efforts have been made both by statute and decision to compel the purging or correction of such records. Sec Tarlton v. Sa:..!Jc, 507 F.2d 1116, 16 CrL 21 16; !\'Ienard v. M''.chel l, 430 F.2d 486 (D .C. Cir. 1970); Davidson v. Dill, ~03 P.2d 157 , 12 CrL 2197: Eddy v. Moore, 487 P.2d 211, 9 CrL 2463. * * *

The importance of maintaining this record is obvious. Giving full credit to the presumption of innocence. it would he naive to assume.: th:1t an individual' s arre ~ t history is irrelevant to police

tivity. \Ve cannot ignore the truth that many guilty men go ~c and :trc.: not even char:;ed in so me cases. * * * It is not un­

heard of to find some fire where there is much smoke.

12-31-75

.... .

.ft:!;~acnrnent v

\ \Vhik rcCO[! niting that law enforcement agcncics nwy hao.,_ mi~u~ed the~e records in some C:l\CS, we thtnk then maintenance is t:ssen tial to the in1·estigation of crime. * • *

We cn:dit the.: Chronirle's claim that the Personal ll istory and Arrest Record is useful to rcporters for "hackgnJilnd infor­mation ." We furthc.:r recogn;ie tlwt lcgitimatc public inquiry into the operation of the crimin:li justice system include\ .'ucli matters as n:lcasc from jail on pcrsunal rc~.:ognizancc or on per­sonal bond, bond policies with rc.:spccl t•J repeal offenders, pka bargaining, and sentencing practices.

A holding that the Per~:o nal11i~tory and Arrest Record tnu st he opcn to in spection by the press and public would contai :1 the p•Jtential for m:1ssive and unjustifi~d damage to the individu :il . The same recognition ofrcality that compels u-; to ackllO\\kdgc the 1·allll: of these rcco1rl«, tlc;.rite ih•: pr(·sumption of tJI­nocencc, also compels us to notc that many persons who arc arrested by the police arc wholly innocent. * * *

It is ·noteworthy that the rnp sheet in qu.;stion may or may not rcnect a di sposition of the charge if, indeed, charges were filed. No effort is made to "purge" inaccurate or misleading en­tries. While not controlling, 42 U.S.C. §3701 (Supp. 1974) and 42 U.S.C. §3731(a) and 377 1(h) (1973). which arc part of the act known as the Crime Control Act of 1973, m ~1st be con­sidered. It is of legitimate.: interest to the prcvcntion of crime that the law enforcement agcncics have available the informa­ti on provided by the National Crime Info1m:ition Ceiilt.:r system. which has been partially funded by the Law Enforce­ment Assistance Administration system. Wcighin!I the n~cd of the media for b<>ckcround in form atio n on it :Jincit::! :s (whici1 may be obtained thr~Jugh interviews and other soun;es) against the legitimate competing interest of individual priv:tcy II'Ould seem to compel the conc-lusion that the constituti on;-~ ! right of the press and public.: to information should not include access to the Personal History and Arrest Record. [End Tex1]-Brown, J. ( llouston Chronicle Publishing Co. 1. City of Houston; Tcx Ct-CiiApp, 1-lthSupJudDist, ll/26/75) \

i

Pi'Ass~oT.'i3s 'o'E'ArHP.ENALrv~oF? B./\_PE -MURDER UNCO.NSJliUTJ.C?!'J.~

Disse.nters aitac·f du~·j;rocess analysis, see no constitutional bar to death penalty.

Last spring, the Massachusetts Supreme Judicial Court ordered prosecutors and defense attorneys to brief and argue the question whether the sta te's mandatory death penalty for rape-murder could pass a compelling statt: interest..:._ least restrictive means analysis under the state constitution's due process clause. Cornmonweath v. O'Neal, 327 NE.2d 662, 17 CrL 2144. A majority of tht: court now decides that the statute is unconstitutional.

In his lead opinion, Chief Justice Tauro says that the concepts of due process and cruel and unusual punish­ment are so close as to merge. He concludes that the state has failed to meet its burden of establishing that the death penalty is the least restrictive means available to accomplish its legitimate interest in deterring and punishing murders committed during the course of rape or attcmrted rape. There is no convincing evidence that mandatory death penalty deters such crimes, he says, and society's goal of removing the rare-murderer from cir­culation can be realized by less onerous means. finally, he believes it incompatible with the dignity of an cnlightened socit:ty to attempt to justiJ'y the taking or life solely for the purpose of vengeance.

Justice Hennessy, concurring, sees no rcason•to wait, as the dissenters suggest, until the U.S. Supreme Court

18 Crl 230~~

decides· Fowler v. North Carolina, argument reported 17 CrL 4030, argument rescheduled this Term. "We have a · •ty to face these issues, at least with reference to the or.stitution of the Commonwealth, without regard to

cases pending in the Supreme Court." Justice Wilkins bases his concurrence in the resu lt sole­

ly on the ground th at the statute constitutes cruel and un­usual punishment. While th<.:re are some crimes which the death penalty would deter, he says, rape-murder isn't one of them.

1\lso concurring in the result, Justice Kaplan agrees with Justice Wilkins that the death penalty for rape­murder is cruel and unusual punishment. He wonders whether the death penally can be administered "without caprice edged with di scrimination against racia l minorities and the poor, and whether, judged by evolved standards, the penalty itself is not so brutal and brutaliz­ing as to be proscript."

Justice Braucher concurs in the result solely on statutory grounds. In light of Furman v. Georgia, 408 U.S. 238, II CrL 3231, and Commonwealth v. Harrington, 16 CrL 2506, the death penalty statute has been so emasculated that the only sentence which can be imposed is life imprisonment.

In a lengthy dissent, Justice Reardon, joined by Justice Quirico, argues that the court should await the outcome of Fowler before deciding the case on state constitutional grounds. The dissenters also characterize the lead opinion's due process analysis as "both unwise and con­stitutionally unsound." Cruel and unusual punishment is t 1 · ~ only constitutional basis for evaluating the statute, '-....-- i maintain, and punishment of death for rape-murder is neither cruel or unusual. (Commonwealth v. O'Neal, 12/22/75)

J>igesl o_( Opinion: (7 'ex1 ] Pursuant to our order in Com­monwealth· .. O'l':eal, .Mass. Adv. Sh. (1975) 1086, 1100.1101 , the partie-;; .:.:rJ amici ha1·e presented arguments as to whether the State h;!s a compelling interc~t in retention of the death penalty. \ \'c now address the issue whether the mandatory death penalty for murder committed in the course of rape or attempted rape, G. L. c. 265, *2, is constitutional. For the reasons staccd in the concurring opin ions which follow, \vc hold that the mandatory death penalty for murder committed in th e course of rap.: or attempted rape viola tes the l\1assachu.,etls Dcc:laratio;1 of Right ' <H~d is unconstitutional. Accordingly. th;; judgment, in so far a> it imposes the death sentence, is reversed, and the case is remanded to the Superior Court where the defendant i., to be resentenced to imprisonment for life. [End Tex1] - Per Curiam

Concurrence: I divide my analysis into two parts: one relying on due proc..:~s concepts embodied in articles I, 10, and 12 of the i\lassachusetts Dccl:tration of Rights, the other on the cruel and unusual punishment clause of Artie'-: 26. This dual analysis is pos~ibk because these two concepts arc so close as to merge: the clu e process argument reiterates what is essentially the primary purpose of the ban on cruel and unusual punishment.

In orcla to with stand a due process ch:dlcngc, a statute affec­ting a fundamcn,~l ri[!ht muq b;.; shown to serve a cOI11J'~lling gnv.:rnmcntal interest. Additional!;.·, it must be shown tint the statutory sch~;;me is the least onerous means of' serving th <\ t in· tcrest.

Tht:re can be little doubt th at life is a fundamenul rip.ht '\~x­plicitly or implicitly guar;Jr,tccd by the constitution." San An­t lndcrc:ll(knt Schoo l Di ,; trict 1·. Rodrigue?, 41 I U.S . I. ·1'----"' t:forc. I bciil:l·c th,,t capital punisl!lncnt, which irl\'o!l·cs the C':tinction of lif'c. the: most fundamental of all rights. trir'gers scrutiny untkr th e comp::llin !', state interest kast restrictive mea ns test. Tht~>. the sta te can ;dlow the taki ng of lif"c by

18 Crl 2304

legislative mandate only if it can demonstrate that such action is the least restrictive means toward furtherance of that interest.

The compelling slate analysis is equally relevant in deter­mining wheth er the death pcrwlty for rape-murder constitutes cruel and unu sual punishment.

[Text} (Although I base my decision here on the Constitution of the Comm(lllWc<tlth. I have reli ed to some extent on C<tsc:s construing the United States Constitution. I bel ieve that analysis of the issues raised in this case under our State Constitution bears strong resemblance to th e an:.J!ysis under the Federal Constitution. See Pugli ese v. Commonwealth, 335 Mass. 471,475 (1957). Howeve r, I need not reach the Federal constitutional questions in light of the result I reach under arts. I, 10, 12 and 26.) * * *

Capital punishment, involving as it does the takin g of life, is qualitatively different from other punishments. See Furman v. Georgia, .[at) 287 (Brennan, J ., concurring). "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind." Furman v. Georgia, a t 306 (St t:war t, J., concurring). "[I)n assessing the cruelty of capital punishment , .. we are not concerned only with the 'mere extinguishment of life' ... (In re Keri1mkr (1890) 13G U.S. 436, 447) ... but with the total impact of capital punishment, from the pronounce­ment of the judgment of death through the execution itself, both on the individu al and on the society which sanctions its use." People v. Anderson, 6 Cal. 3d 628, 646, I I CrL 2053 (I 972), ccrt. den. sub nom. California v. Anderson, 406 U. S. 958, II CrL 4056 (I 972).

While the actua l physical and psychological pain of execution itself is, of course, immeasurable, there is a sha rp conflict of ex­pert opinion regarding whether electrocution produces in stan­taneou s loss of consciousness. * * * "Although our information is not conclusive, it appears that there is no method availab le that guarantees an immediate and painless dea th." Furman v. Georgia at 287 (Brennan, J. , concurring).

The convicted fel on suffers extreme anguish in a ntici p:.1~io n of the extinction of his existence.* * *Studies describe confine" ment under sentence of death as exquisite psychological torture, wherein many inm ates suffer obvious deterioration and severe personality di stortion s, including denial of reality. * * *

In order to uphold th e constitutionality of punishment which inflicts such su ffering and absolutely extinguishes a ll rights. the Statt: must advance a substantial justification to demon;.trate that the penalty of death is not disproportionate or unnecessary and is not, thus, cruel in a constitutional sense. * * * I believe that the required showing is that of a compelling State interes t. * * *

I recognize at the outset that the Commonwealth has a vital interest in protecting society from rape-murderers and in deterring rape-murder. My inqui ry must look beyond these vital interests, howe1·er, to determine whether th e means chosen. usc of the death pcnal~y as punishment for convictc:d rape-murderers, is compelled as the least restrictive means availabk to furth er these ends. In order to achieve the proper balance, I must dcter111ine whether these interests can be effec· lively served by means which do not imp:.tir fundamental con­stitutional rights, here the right to life, to the cxt~:nt th at the death penalty docs.

It is not difficult to identify the discrete intcre,;ts tl10u!!ht to be scn·ed· by our p~n:1l policy. The Commonwc:altll id entities three )a re<ts of vital interest: (I) sJving li1·es. (2) protecting citizl' v.; from crime;; of ,·iolcnce, and (3) ensuring justict: and diminishing recourse to vigilantism . Tr:1nslated into the more familiar jargon of reno logy and correction>, these interests are , respecti,·cly. (I) clctcrn:nce , (2) isoi:.Jtionjincapacitation. and (3) rl:trihuti onjmclr:d rc:in forc cmcnl. [!:."lui Te.\1]

1\. Dderrcnce. Dc~pitt.: the most c:xhat1stivc research by noted expert$ in tile

fields, there is sim ply no con1·incing c1idcnec that the death penalty is a delt::rrcnt superior to ksscr punishment. In fact, the most convincing stt1dic; point in the opposite direction. Sec Chambliss , Types of J),·,·ianct: and th e Ufcctive;,cs~ l.lf l. c~~:1 l Sanctions, 1%7 \Vi s.L.ncv . 70 _); !'dorris and Zimrin~. Dt:tcrrcnce :1nd Corrl~ctions. 381 The Annals 137 (1969); Schuesslt:r, The D;.;terrcnt J nfluencc of" the: Death Pcn <tl ty. 2~4 The Annals 54 (1952); and Sellin. Capital Punishment, 138

12·31 ·75

(

(1967): Sellin. The Death Penalty, Appcndix to Am. Law Ins!., Model J>cn<.d Codc (Tent. Draft No.9. 1959) at 24; and othcrs.

[1e.\tl The studies pre1·iously cited make no distinctions ''etwecn mandatory :Jnd di scretionary use <)f c:1pital punish-

,ent. In fact. howc1·er, most were conducted in situations in­•o lvint; the di~cretionary usc of the death pcn;ilty. and thus thcir rekvance to the m:.Jndatory dc:1th penalty at issue here could be que~ti oncd. Huwe1·er, a recent study conducted by Prof..:ssor \\'illi :lm .J. B<.ll•·c.:rs . .1 noted sociologist, concludes tlwt there.: is "no imlication thct the mandatory death penally ... [is) a more cffecti·.-e deterrent of homicide thJn dis..:rctionary capital punishment." Bowers, Executions in America, at 160. [End Text)

\\'hile the overl'. helming majority of serious studies in this <!rca li:Jve CJJJ;cluc.!.::J th:.!t cq·i::tl pt::;ish:n.:nt has no spc.:ci:d deterrl'nt eff<:ct. thne are some studies reaching the opposite conclu;;ion. Howe1·er. my review of the a1·ailab lc st udies and ·oiher mJterial re1·ea ls r.o firm indicJtion that capital punish­ment <!cts :-ts a superior <.kterrent to homicide than o: '1cr avail:lhk punisht~ients. At best the tl·idence is equi1·ocal. i

[TexrJ I am thus unable to find that the Commonwealth has a C<.)lllpclling int.::rest in deterrence 11hich canr.ot adequately be sen·ed by other less n:stricti1·e means of punishment.

B. Isolation/ In .:apa..:itation While isolating convicted murderers from society in order to

prevent their commission of similar crimes in the future is a legitima te objecti1·e of punishment, it seems clear that this goa l can be cffecti1·elv >ern:d bv means less rcstrictil'e than death. ''The sufficient ;.inswo:r [to the c!Jim that the inniction of death is necessary to stop those con1 icted of murder from committing further crimes) ... is that if a criminal con1·icted of a capital crime poses a danger to society, effective administration of the State's pardon and pa role !all's can delay or deny his release from prison. and techniques of isolation can eliminate or minimiz.:: the dan:::er 11hilc he remains confined." Furman v. Geor~ia [a t) 300-!01 ( 1972) (Brennan, J., concurring).

Addition a l!y, it ~!10uld be stressed that "murJcrers in general have been sh011 n to be among the least recidivistic of

Tenders." Packer. The Limits ot' the Criminal Sanction, 52 .963).*** It is true that in the Eighteenth and early Nineteen\h Cen­

turies, before cre::;tion of an effecti1·e pri~on system, tlie death pen ;!lty II'<.!S considered necessJry for the protection of society. See Bed:-w, The Courts. the Constitution, and Capital Punish­ment, i968 Utah L. Rev. 201, 232. Holl'ever, "(n]ationally, there is substantial information now available to show that murderers c;~n b;; ir.carccratcd and paroled with safety, nnd that there is no discernible difference in this r\:QJrd between thos<! who are fot.:nd guilty of one rather than another kind of crimin 2l homicide." B~dau, Death Sentences in New Jersey, 1907-1960, 19 Rutgers L. Rev. I, 47 (1964). \\'hile this may be somewh:l.t less tn:e of convicted rape-murderers. ll'ho are more likely to act as a result of uncontrolled or uncon trollable desires. measures arc anlilabh: to ensure the safe care and custody of such pasons where a real danger to society is in­dicated. (The recidil'i sm rate for com·inc<:d rap ists released on parole is almost three times greater than that for convicted murde rers. * "'"' To the extent that the statistics for rape may be more reb an t in determining tbe appropr iate recidivism rate for r~;'c-murdere~>. it is r ossibk thut this class of murderers is more li~ely !O beccme in1·oln~d in subsequent criminal activity if released than murderers in genera l.) See, for example, the statute pro,·iding for care and treatment of "se.\ually dangerous per~on s," G. L. c. 123.·\ .

According:y. I am not con1·ir.ccd tkt the death penalty is neces>uy as the l.J.:,t means of protc.:ting society from the con­victed rape-m:Jrdcr.:r, ::llld I beliel'e that the Commonwealth's interest in i< o l<~tio n/ incapacitation, wl1ilc vital. ca n be ade­quat<.:ly ser1·~J by k~s un<:rous means.

C. Retri~ution j .\l ora l Reinforcement The Comm onwealth cuntends that it has a compelling in­

terest in emuring ju~tice and n:a intainin!! the social compact, i th::t utili z ~tinn of propor:iunal punishment is ncn;ssary to

~ 'lieve :h:tl ~o<.J I. It further contenJs tlw t under this scheme the death ren;llt~ is the 3ppropriate puni -; hment fur rape-murd..:r . * * *The de:m;nd for punishment docs not ddinc the nature of

12-31-75

the puni~hment necessary for 1 etributivc purposes, and it can­not be shown that any particular penalty is more supportable in light of th~:se purposes than any other. Furthermore. I beliel'e that "it is incompatible with the dignity of an enlightened socie­ty to attempt to justify the taking of life [merely) for purposes of vengeance." Peorle v. Anderson * * *. * * *

The Commonwe<Jith also suggests tlwt capital punish ment is necessary to prc1·ent recourse to vigilantism. llowever. it should be noted that "(r]eliable st<Jtistics now pretty definitely show that the stat..:s that have had the most homicides and the most legal executions have <Jlso had the most illc.:gal c.x .:cutions, in th..: form of lynchings." 13cd<Ju, The Death Penalty in America, at 335.

[Text) I Jm compelled to the conclusion th Jt the Com ­monwealth has not sustained its burden of e .,t~tblishin ::: that the death penalty is a necessa ry und least restricti1e mc~1ns for ac­complishment of whatever valid interests it may hal'e in en­suring justice and maintJining the social compact. Whatever marginal benefit use of capital punishment might h:r;e in se r­ving the interests of retribution or moral reinforcement is not sufl'icient to withstand the strict constitutional scrutiny required here.

On the basis of the for egoi ng analysis, I conclude. as I must, that the Commonwealth has not offered an adequate ju>tifi ca­tion for retention of the mandatory death penalty for rape­murder. * * * Accordingly, I believe that the mand2.tory death penalty for murder committed in the course of rape or attemptt'd rape 1·iolates both the "clue proce~ s " cLol:<.:s of the Mass:tchusetts Constitution, ar ts. I, 10 and 12, and the crue l or unusual punishments clause of art. 26, and I concur in the judg­ment of the court. [End Text) - Tauro, C.J.

Concurrence: [Text] I concur with the opinion of the Chief Justice, in result and reasoning, and in his conclusivn that the mandatory death penJity for rape-murder violates both the due process guaranty of arts. I. 10 and 12 of the .\l:.:ss:: chusctts ConstitutiOtl and the cruel punishments proscript ion ;~.r art. 26.

I of course disagree with the two dissenting Justices'·' ho urge th:.1t our deci sion in this case should await the decis ;·J :l of the United States Supreme Court in similar pendi ng c~~s es. \\'e ha1·e a duty to face th..:se issues, at kast with reference to the Constitution of the Commonwealth, without regard to cases pending in the Supreme Court. * * *

A further reason why this court should proceed decisi1·e Jy at this time, ll'ithout regard to the pace of the United St:1tes Supreme Court, is that MassJchusctts is unique in the context of the death penalty controversy. Between 1947 and 1972 (the Furman case was decided in 1972) no person ll'as e.\ecuted in this Commonwealth. During that same period I take notice th at the death sentences of twenty-five persons were commuted or reduced by executive action. During this time span seven different Gol'ertlors served. There is the best of reasons to believe that the Constitution of the Commonll'ealth. J viable document, does not now permit capital punishment in rape­murder c::tses. There may be some kind oi murders 11 hich may be shown to meet the test of compelling StJt<.: interest which we have said is constitutionally required; perhaps crimes which in their characteristics are a peculiar and serious threat to public orde r and safety (e.g., murders rel ated to terrorism ::tnd kidn:tp­ping) are of that order. Beyond that, if the prese nt 11 ill of the people of the Commonwealth is that capital punishment shou ld be permitted in some or all cases of murder in the fir st degree, procedures for amendment of the State Constitution 11 hich arc relatively speedy, but sti ll require time for reasonable r..:llcc­tion, are Jl'ailable to accomplish that end. [End Text) -1-lcnnc~scy,J.

Concurrence In rhe Rt!sult: [Text) I agree that the defendant should be resentenced to imprisonment for life. * * *

The Commonwealth has not established that the imposition of the dea th penalty for this crime serves any purpos..: 11 hich cannot b.: <tchi<.:v..:d as well by a scntcne..: of imprisonm.:nt fvr life. Therefore, tlic scntcnce of dc<tth constitutes "cruel or un­usu:ll punislim..:nt'' in vi<)LJtion uf art. 26 of th..: D~cltra tion of Rdlls. Because of thi s conclusion, I need tll't addn.:ss arguments resting on any oth..:r portion of th..: State Constitu-

18 CrL 2305

tion or any arguments based on provisions in the Constitution 'the United States. * * * From the di scussion in the Chief .Justice's opinion it seems

ckar that if the do.:ath po.:nalty, as opposed to life imprisonment, could he sustained in these circumstances deterrence would be the principal ground of support. There arc crimes as to which the cktcrrent effect of the threat of death may ~erve a purpose which cannot be achic,·ecl by the threat of life imprisonment. *"'*One cannot infer 11ith confidence from the naturo.: of the crimes that the threat of the death penalty, as aga inst life im­prisonmen t, elders the commission of murder in the course of rape or attempted rape, and at thi s time there are no legislative findings or a report of a commission on which the Com­monwealth may rely in support of the death penalty. [bu/ Text] -Wilkins, J .

Concurren_cr In The Result: [Text] I agree with Justice Wilkins that the result in the present case should b:;: pitched on art. 26 of the Declaration of Rights, and I join in the sub~tancc of his opinion. I add a note, howcn:r, about a propos.ition which in Justice Wilkins\ opinion is put more as a question than an assertion. but which emerges perhaps more definitely as an im­plication from the opinion of the Chief Justice. The proposition is thi s: If there arc crimes (or perhaps homicidal crimes?) to which the prospect of punishment of dea th could he shown to serl'c as a strong.cr deterrent th an life imprisonment (how much stronger?). then tho~e cri111cs may he constitutionally amenable to that pu nishment. The "if' clause is a high ly specu lative one. But suppc•sing that the condition is satisfied, I note that the con­stilution:.tl qut:stion would hardly be concluded. Among other matters, a court would th en have to consider whether any lcgislati1 e rule authoriting capital punishment, even a nomi nal­ly "mandatory" ruk. can he administered without caprice edg­ed with discrimination against racial minorities and the poor, and whether, judged by evolved standards, the penalty it self is not so brutal and brutalizing as to be proscript. I mean to ""'1phasiLO that "deterrence" is only one of the se1·eral factors

t hear on the constitutional issue. [End Text]-Kaplan, J. - Concurrence In Thr Rrsu /t : [Text ] On the constitutional issues di scus~ed in the opinions of my brothers, I find myself in agrcem~:li with the disscntin12 opinion of Justice Reardon. The latter o:~inion reco_!!ni;cs, however, that a substantial Federal and Sta~e con'ilituti0n:tl que,tion is presented. I therefore think we shou!:! fir,;t ascertain whether a construction of the statute is fairly po"ibk by 11 hich the question may be avoidcd. * * *

In my 0pinion such a construction is not only fairly possible hut plaint~ ri,!!ht. I therefore concur in the result reach ed by the court, though not in the rcasons given for th at result. * * *

[W)e h:~1·e before us a question exprcs~ly left open in the I hmingt o:1 case. By implication a bare majority of the Jw,ticcs take the ,·ic11 lh :tt the pro1·ision for a jury recommendation is s~;·cr;•b:c. :·.nd th:ll 11 h~!t rem:~ ins is a nwnddtury pro'.·i,inn for ti1 .:: deat!, )'lt:r.alty applicable only in cases or first dcgro.:c rape murder . In all other cases whcr.:: no jt:r~ recommenda tion is nwd c, the statutory prol'i-;ion for the punishment of death, "as matter of statutory con_truction,'' means imprisonment for life, but in rare murder caso.:s it means death. An isol:.!ted fragment of what 11 as once an intelligible policy is thus preserved. This rl'Stdt i' C·Jiltr:try to the clear Sl<ilutory direction that rape· murd.::r ca,cs b..: treated like other c<Jscc; in which no juty recommenda tion is mack. The majoritv Justices attribute to the Lel,!is lat ure an intention which is th en held unconstitutional. Worse. th e m<~jority opinions cast scrious doubts on the con­stitutionality of any death penalty which qe enacted hae:~fler. In ord..:r to prel'..:nt re1·i..: 11' hy the Supr..:rnc Court of the United State-;, till· l',l~t' i ~ mack !<J turn on thl: r'>las·:achu-;ctts Cun~titu­ti t•il r;:thc·r than •HI the sub;t:tnti:tliy ~imi l ar pr01 isi,li l!> of the Unitc·d S::Jtc:' Constitutilln. Reli ance is plac..:d on a California dcri -;ion '' hic·h '''"~ pn•rnptly <tnnulled by the people of Califor­ni :.~. Comr.!re Pe,>pk 1' . t'\ndcrson * * * with Californi;~ Cntb tituti nn. art. I.~ 27, athlpt.:d i'\o1·emher 7, 19 7~.

'far a' lean di~cu1·er. no I egi~l.iturc a:1ywhere h;p; c1·er cs­th-ftShc,l a ~~ ~t<.:fll in '' hi..:h r<tpe 11111rd..:t is pttni,hed b) a tnan­datl>ry dc;:tl! ~ctllcnce and no ntil..:r crim..: is su hj cc t to any death s..:nll'nec. Certainly our Lcgislatttr ..: did not vote for ~ uch a ~)Stem in 1')5 1. Reco.:nt proposa l\, 1dm:cl by thc (imcrnor, to cnat:t a mand.ttlH) death penalty have IWt ctnhodiL·d ~11ch a

18 CrL 230G

_ ....

system. * * * The logic of our do.:cisions since the Furman case is opposed to our cstabli-;hmc:nl of ~uch a system. Indeed, the syst..:m i; now established on ly a~ a ~traw rnan, so tlwt it can he dc;troyed. I would prefer tu adopt the "construction which oper<ttes in favor of lif<.: or liberty."

The legislative hi ~tory or the 1951 amcndm..:nl confirms my vie11·. * * *

In sum. we should gil'e great w~.:ight to a lcgislati•,e judgment on what sentence: is appropriate, b~Jt 11·e arc not bound to d..:fcr to a judp. ment the Legislature nc1·cr made. When an intelligible lcg·is lati,·c j>olicy is tortun·cl beyond recogn ition hy constitutiona del·clopmcnls, it may be the part of wisdom to await e.xrlieit new legislation, taking account of the new situa­tion . rather than to prcscn·e a remnant of the former policy. * • *

One final thouf! hl. To sen tence a man today to be executed, if at all, at an indefinite time se1·eral years from now may well be to innict a cruel and unusunl punishmt:nl. No one desires that result, but in the presen t situation it seems as a practical matter to be the almost incl'itabk resu lt of a death sentence. for the reasons I have already stated, I cannot bring myself to attribute to the Legislature of 1951 an intention which would produce that resu lt in the case now before us . [End Text]-Braucher, J .

Dissent: A majority of the court. having avoided in O'Neal I the cruel and unusual punishment question which was squarely presented there, has now decided a new issue which the parties neither raised nor argued in their original briefs and were given only thirty days to file briefs thereon.

I believe that we would do well to await the results of Fowler v. North Carolina before launching another excursion in this case. Even aside from the fac t that the core of Chief Justice Tauro's 0'1\'ealll opinion rest s on federal precedent, we should not be _!!oing off on one tangent 11hile the U.S. Supreme Court may soon go off on quite another. Common sense dictates that 1vc wait until Fowler is decided.

[Tc.\'1] Nothing 1\hich I ha1·c sa id abo1·e i~ intended to be an expression of my personal 1·iews on the highly controv<!rsial subject cf capital punishment. or on the present statutes of thi s Commonwealth on that subject. Indeed, a judge's personal philosophies on that subjc:ct cannot prevail over constitutional mandat es or prohibi tions, nor should they he permitted to affect constitutional judgments. I am quite famili :tr with the literature now adl'crtcd to in the m2in opinion. It is a sample of much more. But in evaluating the ··evidence" contained therein we must be careful not to e~\cc:cd the authority or abuse the power entrusted to us as a court. [End Text]

Due Proct:ss Chief Ju stice Tauro's "compelling state interest- least restric­

tive means" test under the due process clause [Tnt] is both un­wise and constitutionally uns ound. [End Text]

The: rok played by th .: rourU:<!nt~l r\m ..:ndmen t Du..: l'roc.:ss Clause 11ith respect to a state death penally is that of incor­porating the Eighth t'\mendmt:nt. which is the appropriate al'enue for consideration of thi s qu;:stion but which, standing by itself. is not applicahl:.: to the st~ttes. Robinson v. Califomi a, 370 L: .S. 660. In re Kcmmkr, 136 lJ .S. 436, 448-4-19, \Veerns v. U.S .. ~17 U.S. 3-19, 372-7J . and \l r. Juqicc Drenn:t;J's con­curn:nc'e in furman. -lOI'i U.S. at 2()3. all make clear [Tcxl] that the Due: Process Claus~ does not sub,tan ti,·c ly limit the se1·.:ri ty of Iegisl<!til·..:ty impl)SCd puni,hmcnts except insofar a~ they arc crud and unusual • **.***The Eighth Amendment wns designed spct:ific.tll~ to circumscribe the rower of the Lcgislatur..: to im­po.;e crimin <.ll punishments. Surely in interpreting the alro.:ady brl':td prvl·i,ions of ;1 constitutio:l "..: sh01dd f:tvor tht; ~p.:.::iiic LH·cr the general. c>pccially hc·rc: 11herc we are len only to ponckr ''the l'a!!u<.: contours" of thc due process clau se. [End r .. xl]

Chief .Ju ~ ticc Tauro's suhjectin,!! the death pc~nalty to "strict scrutiny" under the f!en..:ral lan )!u:tge of the due prnc..:;s clau;;c rai sl·~ di .;turbing implication<;. :\o cases arc citcl) . for thc proposit ion that life i'i a "fundamental interL'<;t " within the meaning of d11e proc..:ss or equal prl>to.:ction. Once life has hccn Sl1 ch:tractcrited for purposes of e\cr.:;i,ing strict scrutiny over ):!OI'c:rllllll'ntal deci;ions. we abandon proper r..:straints on judicial rc1·iew.

12-31-75

(

(

(

1 1 Text~ Without doubt there is a basic, personal right to life scc111ed by the United Stat..:s and :\lassachusctts Constitutions; but rccor.nition of this right do~.:s not r~.:quir~.: that the con-

'utionulity of capital punishment for the crime of rape­ml..:r be tested by the wooden and largely conclusory stan­

dards of ''l:ompclling slate intcr..:st" and "least rcstricti1·e means."

A further difficulty with the two step an~liysis is discoverable in th~.: l'ollowing quo.:~ ! ion: If "life" is a fundam..:ntal interest un­der the Constitution, why is not ''liberty" also a fundamental interest? Ccrtainly liberty is explicitly gu:1rantced by the Constitution to the same extent that lifo.: is explicitly guarantL'<.:rJ. "'**It may be arg~.:ed of course that no thing is so l'undam e1;tal as tli..: right to life, that it is an i'ltcrest un another ph;ne alto~;ether. Dut in my view the interest in not serving the remainder of one's life in prison is also enormously significa nt and could just as ll'ell be deemed "fundamental" for the pur­pose of triggering strict scrutiny. Yet arc we then to invoke t( e Jess rest rieti\·c alternative test for a sentence of life imprisu\1-ment, and, if so. what about a twenty-year sentence, and so on down the line? Also, wlwt if the governmen t is never able to ad­duce convincing proof that any punishment is a necessary means to a compelling State interest - docs it then Jack the power to punish at all? * * *

The problematic nature of the analysis proposed in O'Neal I demonst rates to me the dangers inherent in the court's app~nent willin!.!ncs~ to im·ite vet o:1c mo1e ;:venue of xtt:1ck against the State''s criminal lmvs under the banner or sub~•tan tive due process. The constitutional theory proposed is most remini scen t of the era of Lochner v. New York, 198 U.S. 45 ( 1905), when statutes were thought to be violative of due process merely because they were considered unwise, that is, offensive to the judge's "personal preferences." * * *

Furthermore, the substantive due process analysis here ac­tually goes well beyond the theory of judicial intervention employed in the Lochner line of cases, for not even in those -· ·isions did the court purport to shift the burden of proof on

validity of statutes to the Legislature.*** Apparently the 'concept of judicial restraint in striking down State legislation is now to evaporate when the challenge can be fitted into the' mold of substantive due process, and I fear we have not seen the last of this tantalizing device. (End Text]

Cruel and Unusual Punishments The federal and sta te proscriptions of cruel and unusual

punishment present the real issue in the case. l am not persuaded by the California Supreme Court's

emphasis in Anderson on the fact that its constitution, like ours, spoke of crud or unusual punishment rather than cruel and un ­usual punishment, the Eight Amendment phrase. More per­suasive is Chief Justice Holmes' observation on this point in Storti v. Commonwealth, 178 Mass. 549 (1901).

(Text] Furthermore, there is nothing in our case law which suggests that art. 26 imposes a more rigorous limitation on punishments thun the Eighth Amendment. Indeed, if anything, art. 26 imposes Jess restriction on possible punishments. * * *

Thus I conclude that for purposes of this analysis art. 26 * * * imposes a standard no more restrictive than that exprcss..:d in the * * " Eighth Amt:ndrnent.

The question whether the death penalty constitutes "cruel and unusual" punishment within the meaning of the Eighth Amendment was recently and exhaus tively discussed in Furman v. Georgia . * * * Three of the five m:1jority Ju stices expressly limited the decision to discretionary imposition of the death

12·31-75

sentence by judge or jury, and refused to considcr whet her a mandatory death sentence would vitiat.: the fight h ;\mend­men!. [/:'nd 'li•.\t]

Furth.:rmore, as Mr. Justice Blackmun's dissenting opini<Jn pointed out, the concurring Furman opinion~ rccouniled. as they had to, that the Court in numerous oninions hac! accepted capital punishment and assumed its constitutionality. 408 U.S. at 407-403.

While the sheer infrequency of d.:ath sentences 11 ill not be decreas..:d under the statute we are consid.:rinl!, the Qr­bitrariness !'actor, which was the real es~encc of the Furman holdinu. will not be presen t. Thus Furman docs not decide the question before us.

0/or can it be said tlwt the [i[!hth Amendment p;ohihih mandatory death penalties. II iqory presents strom! arl!ulllcnts for finding that death is not a "cruel and unusual"~pun~i~hment und..:r the Eighth Amendment. Sec Trop v. Dulles, 356 U.S. 86, 99. .

(Text] Evidence internal to tht.: Constitution such as the Eighth a.nd F?urtccnth Amendment guaranties against depriva­tion of life Without due process suggests that the fram ers nevl:r contemplated that the death penalty per se was a cruel and un­usual punishment. It seems without doubt that the framers of the Eighth Amendment (and of the :•.,.Jassachusetts Constitution as well) had as their principal intention the elimination of the tortures of the Stuart regime in England. In all the elaborate literature dealing with this subject, which has rccein:d e\tensive trc:llment in Furman and t\r.dcrson, there is no e·. idci'CC on the drafting of our fundamental documents whi~h di~ck1,es any in­tent ion to open the way fort he abolition of capital pu::ishment. * * *

[l'en if we move beyond purely historical considerations, and recognize that clauses such as "cruel and unusual" drJ\1' their meaning "from the el'olving standards of decency th:H :t;3rk the progress of a maturing society," Trop v. Dulles at I 0 I. it is far !rom clear what those standards of decency arc. or that the n:andatnry imposi tion of the death pen alty in a cast.: s:;.::~ as this l'iOiates them. When such a standard is uprouted f:·o m its hi storica l origins, and where there is little indica:ic):l. either from the language itself or in the circumstances of its enact­ment. what the content of those words should be now. the temp­tation is great for a court simply to use a vague standard as a vehicle for its own moral values. [End Text]

The term "cruel and unusual punishment'' has had se1·eral meanings attached to it. One is thutno illegal punishments may b~ imposed. Another is that a punishment may not be grossly disproportiOnate to the offense. Weems v. U.S., 217 U.S. at 36 7 ( 191 0). While we may not wholeheartedly endorse an eye­for-an-eye or life-for-hie morality, the death penalty is not grossly dispr1)portionate to the crime of murder committed dur­ing a rape.

[Text]lt has also been said that a punishment must not be ex­cessil'ely painful, or demeaning to human dignity. Presumably it is these considerations which lie behind our intuitive rejection of torture. burning at the stake, and drawing and quartering, as "cruel and unusual. " * * * ~

A not her fuctor which may be taken into account in assessinl! the meaning of "cruel and unusual'' is whether there is e.\tcrnal evidence that in fact a punishment does not meet contempor~HY standards of decency. * * * Trop v. Dulles, 356 U.S. at 102. [End Text]

But this test requires virtual unanimity of opinion with resp.:c:t to the punishment to be prohibited, and [Text] [!]here is nothing even approaching unanimity of opinion in opposition to the death penalty. [End Tex1] -Reardon and Quirico, JJ . tCommomH':J lth \', O'Neal, i\Llss SupJudCt, 12/22/75)

18 Crl 2307

PERSONS SENTENCED TO DEATH (As of November 5, 1975)

Alabama 1 Arizona 13 Arkansas 3 California 27 Colorado 1 Delaware 1 Florida 50 Georgia 31 Idaho 1 Indiana 5 Louisiana 27

):~Massachusetts 3 Mississippi 16 Montana 1 Nebraska 1 Nevada 1 New Mexico 10 North Carolina 89 Ohio 27 Oklahoma 20 Pennsylvania 4 Rhode Island 1 South Carolina 5 Tennessee 7 Texas 20 Utah 5 Virginia 2 Wyoming 4

376 =

Attachment D

)~The Massachusetts Supreme Judicial Court declared the Common­wealth's death penalty statute unconstitutional under the Massachusetts Constitution on December 22. Commonwealth v. O'Neal, 18 Cr. L. 2303.

CHAMBE RS OF

THE CHIEF JUSTICE

,,

.itt.pt'tutt Q}tmrl of t4t ~~ .itaftg ._uqmgtcn. ~. (!}. 21lp~~

January 9, 197 6

MEMORANDUM TO THE CONFERENCE:

I now find my commitment at Williamsburg for the Virginia Bar Association is Saturday evening, January 17. I will defer my departure until afternoon and suggest that our Conference on the death cases be scheduled for 9:30 a.m. (or as soon thereafter as a Court can be assembled.)

' .

CHAMBERS O F

("c..~' 0-0.._ Ch.r.,Q,.Q ~u:prtnrt OJcurt cf tqt ~ttitt?t ~tattg

JlTag!p:ngtcn, ~. ~· 2LlpJ1.'

JUST ICE WM . J . BRE N NA N . JR.

January 12, 1976

RE: Conference of January 17

Dear Chief:

Any hour of the day will suit me.

W.J.B.Jr.

The Chief Justice

cc: The Conference

'•,

FYt - Conference, Saturday, Jan. 17, 1976

Subje

j5u.preme <!Jonrt nf t4t'Jlinilib ~hdts

~a.&Irmshm.l!l. <!J. 2.a~Jt~ ·i;: ~~::yr.: G

January

t::_9-fl

My review of the capital cases thus far has been directed towards identifying a case or cases permitting the narrowest focus on first, the per se unconstitutional issue and, secondly, on the arbitrariness issue raised by certain Justices in Furman. A single-issue case involving a mandatory type statute and con­taining no factual distractions would appear to be the ''model" case for focusing on the per se question. Other cases involving other types of statutes but also',)ingle issue and involving no factual problems could be taken together with a case involving a "mandatory" statute in order to provide a perspective in which to consider the arbitrariness issue.

Of the 48 cases available on the Court's docket, 26 involve North Carolina 1 s pre -Furman, Waddell construed statute. And, there are oe:ly five states represented out of the. ~4 which have enacted post-Furman statutes. The sample available then is rather limited and I am not sure representative. Nevertheless, there is a need to get on with the matter and to select a case or cases from those available. I have listed my suggested selections below, indicating my reservations about each case. The cases are listed according to the category of statute involved.

"Mandatory" statutes:

S~enteen of the states have attempted to remove all sen­tencing disc-;etion from the judge. or jury 'ty requiring death for those convicted of a limited and well-defined number of crimes. These statutes generally would seem to avoid the faults found by Justices Stewart and White in Furman. 408 U.S. 306-14.

,.. . PA1 Of the five states represented on the Court's docket, only ~-, ,.r North Carolina and Louisiana both have 'mandatory" statutes. , ~ I' • There is only one case on the docket from ort ro 1na lnvolv-'-.......- "' v- ) ing that State 1 s post-Furman, post-Waddell statute: Woodson

}-P..·

+~~~-

- 2 -

and Waxton v. North Carolina, No. 75-5491. In that case, peti­tioners were convicted of first-degree (felony) murder and sentenced to death under North Carolina 1 s "new" capital statute which prescribes the deathpenalty for atl classes of first degree murder which the statute defines to include murders committed in the perpetration of a robbery. In this instance, four blacks robbed a convenience store and without apparent provocation shot and killed the white woman shop attendant. Woodson waited in the "get-a-way" car. Waxton entered the store with one of the other perpetrators, but did not fire the fatal shot. The other two perpetrators, including the "trigger man," were permitted to plead to lesser charges in return for their testimony, Mr. Greenberg and Mr. Amsterdam are on the brief and raise only the capital punishment issue. My

! reservations here ar~. ~~!~~~e "deal" st';uck with the accomplices highlights the prosecutona~(arbitrariness issue and the case has racial overtones.

There are two cases from Louisiana; Selman v. Louisiana, No. 74-6065 and Roberts v. Louisiana, No. 75-5844, which has not yet been listed. Selman, as discussed in my June 10 memoran­dum (pp. 6 -8) highlights the extremely fine distinction made in Louisiana between aggravated and simple rape and, accordingly, is factually not an acceptable case. Roberts involves a young black man convicted of the first degree murder of a gas station attend­ant (race unknown) during a robbery. There was a co-perpetrator and it is not clear what he was convicted of or whether or not he turned State 1 s evidence in return for being allowed to plead to a lesser offense. It is a single iS,!Ue _£ase. My reservations here are again the possible existence of tb; prosecutorial discretion/ arbitrariness issue; possible racial overtones; and the pale of the Court's decision last term in Taylor which, of course, is common to all pre-Taylor cases coming out of Louisiana.

11Quasi-Mandatory Aggravating-Mitigating" statutes:

Six states and the federal government have enac ed s~tute s res,uiring_ e ~at pena!ty w en statutorily specified aggravating circumstances and no specified mitigating circum­stances are found, and forbidding such punishment in all other cases.

Only one case involves this type of statute: Jurek v. Texas, NO.~S-5394. The Texas statute is n~t a typical

example of this type of statute (compare Federal Anti-hijacking

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statute) and I have reservations about the statute's uniqueness.

l However, consideration together with a mandatory statute would add perspective to the arbitrariness issue. The facts are appro­priate--a sex slaying of a 10-year old white girl by the 25-year old white petitioner. The petition raises a rather serious voluntari-ness of confession issue, but which at this level may not be cert­worthy (there was a Jackson v. Denno hearing and the issue was submitted to the jury on the facts). If the Court takes this case, it might wish to resolve the confession issue in Conference and, if warranted, limit cert to the capital punishment is sue.

"Aggravating-Mitigating" statutes:

Seven states have enacted capital punishment statutes which· require the sentencer, either jury or judge, to find one or more specified aggravating circumstances and also prescribe the factors which may be considered in mitigation once an aggravating cir­cumstance has been proved.

The only State having cases on the docket involving this type of statute is Florida. Again, the Florida statute is not a typical example of the "aggravating-mitigating" statute. I pointed out the uniqueness of the Florida statute in my 5emorapd~ ofe June 10 (pp. 5-6). Most particular'iy~ ' ~hf~h.~sp~-ci~~c tli~ b~'{aric~ to be struck between the aggravating and mitigating circumstances, the Florida statute merely requires the sentencer to "weigh" the aggravating and mitigating evidence presented. The statute also fails to delimit the mitigating factors a sentencer may consider in its provision that the sentencers may hear evidence unrelated to statutory criteria, so long as it is "relevant to sentence. 11

j And, in Florida, the jury's determination is not binding on the judge but is merely a recommendation which the judge, after similarly "weighing" the evidence, is free to disregard.

Of the eight Florida cases on the docket, the Court's selection would appear limited to:

Sullivan v. Florida, No .. 74-6377, which involves the first

I degree murder conviction of petitioner, a white man, for the execution style slaying of a Howard Johnson manager (also white) during a robbery. A co-perpetrator was allowed to plead to a lesser offense in exchange for his testimony, however, and the petition does raise a serious prosecutorial mi!.conduc~ue-­the proseCutor elicited l'rom the accomplice-turned-witness that he had passed a polygraph test. The issue does not appear independently "certworthy, 11 however, and the Court could limit its grant.

..

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)

Proffitt v. Florida, No. 75-5706, a single issue case involving the conviction of petitioner, a 28-year old white male, of murder during a breaking and entering.

Songer v. Florida, No. 7 5-5800, (listed for the January 23 Conference) which involves the shooting of a Florida State trooper by petitioner, a white male, during the trooper's investigation of a stolen car would appear to be the "best" Florida case. Mr. Greenberg and Mr. Amsterdam are on the brief and in addition to the capital punishment issue, raise only a rather weak issue regarding the confidentiality of a portion of the pre-sentencing report. It would seem that a grant here could be limited.

"Aggravating Only" statutes:

Five states have enacted statutes which provide the sen­tencer, either jury or judge, with a list of aggravating circum­stances, one of which must be found before death can be imposed. No mitigating factors are specified, or considered. These statutes most often are very similar to "mandatory" statutes, in that if the sentencer makes a factual determination as to existence of an aggravating circumstance11, the death penalty is mandated by statute. There is no "weighing" of factors.

Georgia is the only State represented on the Court's docket having an "aggravating only" statute. There are five possible candidates from among the ten Georgia cases:

House v. Georgia, No. 74-5196, in which the petitioner, a 28-year old white male, was convicted of the brutal strangulation deaths of two seven-year old boys after he had sexually assaulted them. In a separate hearing, the same jury made the statutorily required finding that the crimes involved "torture, depravity of mind, or aggravated battery to the victim. 11 This is a single issue case and Mr. Greenberg and Mr. Amsterdam are on the brief.

In Ross v. Georgia, 74-6207, petitioner, a black male, was convicted of the murder of a police officer during a bungled kidnapping and robbery attempt joined in by three accomplices.

Aside from a weak Witherspoon issue, petitioner questions only the constitutionality of the Georgia statute.

McCorquodale v. Georgia, 74-6 557, involves a particularly sadistic slaying of a young white girl by the white petitioner in which

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the jury found that her murder was "outrageously and wantonly wild (sic), horrible and inhuman in that it involved torture ... (and) depravity. 11 Mr. Greenberg and Mr. Amsterdam are on the brief with local counsel and in addition to the capital punish­ment issue raise a Witherspoon issue regarding the excusal of 17 veniremen because of their mute expression of conscientious scruples against the death penalty; a lack of probable cause to arrest and a related 4th Amend. issue; and prosecutorial mis­conduct in referring to the appellate court's responsibility in reviewing sentence.

In Gregg v. Georgia, 74-6257, petitioner, a white male hitchhiker, was convicted of the execution style shooting of a driver and companion to the driver who gave petitioner and his accomplice a ride. Petitioner raises several issues in addition to the capital punishment issue but which appear to have little merit, the most serious one being that several hours passed between his Miranda warning at which time he signed a waiver of rights and his subsequent interrogation and confession.

Mitchell v. Georgia, 75-5022, involves the unprovoked and wanton shooting of a 14-year old boy and the wounding of the boy1 s mother (both white) during a robbery by the young black petitioner. This is a single issue case, but there are racial overtones that petitioner was not well represented at trial or on appeal by his appointed white counsel.

My choices of Georgia cases are, House, Mitchell or McCorquodale, if certiorari can be limited.

One last comment on the capital cases: Fowler is being held for reargument. If one or more of the above cases are granted, I see no reason to reargue Fowler. Fowler adds nothing to these cases.

I am available to do any further work you may wish.

~ .1·-r James B.~~

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