FURMAN v. GEORGIA

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Argument of Melvyn Carson Bruder

Chief Justice Warren E. Burger: We will hear arguments next in number 69-5031, Branch against Texas.

Mr. Bruder.

Mr. Melvyn Carson Bruder: Mr. Chief Justice and may it please the court.

This case is here on writ of certiorari to the Court of Criminal Appeals to review a death penalty rape conviction in Wilbarger County District Court in the State of Texas.

The evidence produced by the State which was uncontroverted by any other evidence put on by the defendant, petitioner in this case, indicated that in the early morning hours, a young negro male, later identified to be the petitioner, forced his way into the home of the complainant, and assaulted her, raped her, conversation ensued thereafter for sometime, he then left and was arrested, convicted and given the death penalty.

There was absolutely no medical testimony showing any type of injury of any sort to the complainant in this case.

We feel that capital punishment in this case is unusual under the Eighth Amendment for two basic reasons.

First of all, the standards by which we suggest this Court to gauge whether or not capital punishment is unusual in any case, indicate that it is unusual in terms of frequency of use.

The fact that it is used on identifiable minority and the fact that it has a historical pattern of use in the South upon blacks.

We respectfully submit that the standards which are appropriate, pardon me, for this Court’s use are those laid out in Baker versus Car, Brown versus Board of Education, and Jacobellis versus Ohio.

That is to say, national standard must be employed to determine whether or not the use of any punishment in any one case in any County or State is unusual or is not unusual.

Applying the national standards, we see that there are a very limited number of States that use capital punishment as punishment for the offense of rape.

In going to Texas, we have some statistics in an article by Koeninger which I have cited in the brief.

I think these statistics go farther than most statistics that have been presented to the Court.

Koeninger studies go not only to the number of blacks who have received the death penalty for rape, but they also cover the frequency with which any defendant accused of rape can expect to receive the death penalty.

So, the fact that 89% or 90% of all persons convicted of rape and given the death penalty in Texas are black, might be a convincing argument, but we feel that a more convincing argument is the fact that when a black man in Texas is convicted of rape, he has an 88% chance of receiving a death penalty, and this is in contradiction to the 22% chance that any white or Chicano faces in the same situation.

Justice William O. Douglas: And where did you get that percentage?

Mr. Melvyn Carson Bruder: This percentage is based on Koeninger’s article in which he says the ratio –

Justice William O. Douglas: I do not find that in your brief.

Mr. Melvyn Carson Bruder: Here is in the brief at pages 19 and 20 Justice Douglas.

Justice William O. Douglas: Thank you.

Mr. Melvyn Carson Bruder: The amazing thing that I found in the Koeninger studies is, there has been some instances in Texas of joint trial, a negro and a white defendant accused of raping the same person at the same time, and Koeninger studies indicate that in these type of cases, the negro invariably will get the death penalty, whereas the white or the Latin American will be spared that fate.

Now, the State has attempted to refute some of these statistics by saying that Negros commit more rapes.

They cite some sort of in Denver’s statistics, I do not think these are applicable in view of Koeninger's thoroughness, because Koeninger uses pure statistics.

The expectancy of the death penalty on a racial basis as opposed to the percentages of race who get death and who do not get death and then another interesting point that concerns this case only; in Texas, the legislature has seen fit to create a number of offenses, all of which conceivably could be charged in a rape situation.

There is the offense of aggravated assault, male or female to the offense of murder or assault to murder with or without malice.

The only --

Justice William O. Douglas: The point of discrimination that aggravates this trial and then assuming this is?

Mr. Melvyn Carson Bruder: Your Honor, I believe it was briefed very generally in the brief, I did not participate until after the conviction was affirmed.

I have a problem where no statistics or no proof introduced at the trial level or on any hearings or motion for new trial.

It was, I believe mentioned in the brief filed by the petitioner’s court appointed Attorney in the Court of Criminal Appeals.

The only difference between an assault to rape or assault to murder or aggravated assault and rape is the act of intercourse.

The punishment for any man who assaults any woman in the state of Texas cannot exceed 25 years, unless he accomplishes the act of rape, in which case, the punishment goes from 25 years to death.

We feel that this is certainly an inconsistency within the legislative penalogical system in Texas which ought to be considered in determining whether or not the use of the death penalty for rape coupled with what I consider to be light punishment in assault cases of similar nature is unusual because of this distinction.

In the State of Texas, there is another consideration that sheds light and at this point I might say that it perhaps was improperly briefed as my fifth point, I think that the mention of the facts under that fifth point has bearing an issue to be decided here not whether or not Article 1 14 authorizing the prosecutor to seek a way of the death penalty is unconstitutional.

Clearly, that was not raised the below, however, the grant of legislative authority to all the prosecutors in Texas which enables them to select who will be candidates for the death penalty and who will not be candidates, obtains as a forceful argument in this case in support of this petitioner's point.

I think the argument made by the District Attorney in this case points out this.

He told the gentleman of the jury that the responsibility lies with me and solely with me for you being qualified on the death penalty.

The State allows me, the law allows me as state’s attorney to waive the death penalty, but it also directs me in a case, I am going to insist in the death penalty that I give written notice to the defendant.

I do not know how much confidence you folks have in me as your District Attorney, but I am telling you gentlemen, had I not thought that this case that justified the supreme penalty I would have waived the death penalty.

Justice William H. Rehnquist: Mr. Bruder is that not a provision that is common to a number of other States besides Texas?

Mr. Melvyn Carson Bruder: Frankly, Your Honor, I do not know.

I have seen some statutes which do not have it and I have not investigated all of the statutes, that a lot of them of course were not tied into rape statutes and I was unable to get all of it.

I would say that if it is common to all the other states then it would have to suffer the same defect in other states as it does in Texas, that the grant of this authority to the District Attorney to in effect change the range of punishment, depending upon any number of factors which he alone controls such as the race of the defendants, the facts of the case.

Justice William H. Rehnquist: But how would you distinguish that in the situation where the prosecutor decides to prosecute for a lesser rather than a greater offense?

Mr. Melvyn Carson Bruder: Because when the prosecutor makes a decision, he could make a decision based on facts that are available to him, whether or not he thinks he can prove up to the case, whether or not he thinks he can get a conviction for burglary as opposed to breaking and entering a private property or something like this.

The difference, the main difference is that the legislature has assigned a range of punishment for this crime, but that range of punishment is really very nebulous until the defendant knows with certainty whether or not the prosecutor is going to seek the death penalty.

The prosecutor instead of choosing the offense based on the law and based on the facts of the case, is changing the range of punishment.

Justice Thurgood Marshall: Under the laws of Texas, how final is that (Inaudible) either or neither the judge or the jury?

Mr. Melvyn Carson Bruder: Once the judge -- well, once the state has decided not to seek the death penalty, the death penalty cannot be given.

Justice Thurgood Marshall: Once he decides to go for the death penalty, how final is that?

Mr. Melvyn Carson Bruder: He certainly can waive his right to go for it by asking for something less or by withdrawing his notice prior to trial, but the point is that unless he asks for the death penalty as prescribed by statute, it cannot be given by the jury.

Justice Thurgood Marshall: That hurts the defendant?

Mr. Melvyn Carson Bruder: I think it does, Your Honor because perhaps if he does not have this authority, a jury is not going to be told what this prosecutor told this jury.

Mr. Renthro (ph) is an elected public official and he is elected by those people on the jury.

He is telling them that it is my decision, the legislature has given this decision to me and I have decided to the exclusion of all the other cases, this is the one that I want you to --

Justice Thurgood Marshall: Well, assuming that he is wrong in saying this, how does that reach the issue of this case?

Mr. Melvyn Carson Bruder: I do not think we can assume -- if we assume he was wrong in saying it, we would have a jury that did not believe in him and we would not have a death penalty case.

I mean, he is right in saying that the legislature does give him the authority because the District Attorneys in Texas have the absolute authority to seek and waive the death penalty.

Justice Thurgood Marshall: Well, I guess you would say that some of your lawyers will say that the prosecutor prosecutes the case and the man is guilty but that is not what we have had is not issue as that the Court right.

It does say that the prosecutor and Attorney, I do not see what is so great about it.

Mr. Melvyn Carson Bruder: I do not think it is a question of their faith and it is the question of whether or not the prosecutor ought to have a right to change the range of punishment for any reason that he desires.

Justice Thurgood Marshall: Well, I do not -- do you know of any States that prohibits the prosecutor for he is a -- or makes the prosecutor to make the choice of whether he goes for the death penalty or not. Do you know of any State?

Mr. Melvyn Carson Bruder: Well, Your Honor in the State of Texas, if one is charged with of burning of the State Capital, there is a mandatory death penalty.

So --

Justice Thurgood Marshall: Do you know of any State in which there is not a mandatory death penalty, it does not give the prosecutor the right to either go to for the death penalty or not?

Mr. Melvyn Carson Bruder: If I understand the question correctly, my answer would be I do not know of any State that does not give the prosecutor the choice.

Justice Thurgood Marshall: So any prosecutor in this country can make the same statement and if so what is so different about Texas?

Mr. Melvyn Carson Bruder: Because in some other State where the prosecutor does not have the requirement to impose to file a notice, the jury could override the prosecutor's will and still assess the death penalty.

In Texas --

Justice Thurgood Marshall: They can do that in Texas?

Mr. Melvyn Carson Bruder: In Texas, the jury cannot, once the prosecutor has given notice not to seek the death penalty.

The jury may not assess the death penalty, if they do it is a void judgment.

Justice Thurgood Marshall: It is what?

Mr. Melvyn Carson Bruder: It is a void judgment and the court of criminal Appeals would either remand it or a reverse it.

Justice William H. Rehnquist: But if the prosecutor seeks the death penalty, the jury is perfectly free not to return death penalty?

Mr. Melvyn Carson Bruder: That is correct.

That is correct, the full range of punishment then applies and we have briefed in the brief the point that this can be used against identifiable racial minority by the prosecutor and I think it is a valid consideration in support of the fact that identifiable racial minorities in Texas do receive the death penalty.

The fact that perhaps Whites and Chicanos do not get death penalty as frequently as Blacks is due in large part for the fact that the prosecutor simply does not ask for it.

He will waive it, thinking that he cannot get it or just not wanting to get it for any number of good reasons.

I do not think that the issue of capital punishment in a rape case such as this need to hang on all the arguments made for abolition of capital punishment in any case.

I think the opinion in Ralph against Warden clearly points out that the infrequency of its use, the infrequency of its availability across this nation indicates that it is not a fit punishment and I think that the argument which would be urged in support of an Equal Protection argument or Due Process argument would obtain in an argument to show that it was unusual.

As far as the question of whether or not unusual should be defined by new or old standards, I would cite the Court to the case Mr. Justice White's dissent in Weems which is the third objective of unusual -- definition of unusual delayed downwards operation in usual prohibition operates to restrain any law making power from endowing the judiciary with the right to exert an legal discretion as to the kind and extent of punishment to be inflicted, but that has to be measured in contemporary terms by contemporary standards, not by standards of two centuries ago.

Otherwise, the word unusual has no meaning because it restricts by what occurred back in the 1700’s.

Please I would like to reserve the remainder of my argument for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Wright.

Argument of Jr. Charles Alan Wright

Mr. Jr. Charles Alan Wright: Mr. Chief Justice and may it please the Court.

I would endeavor not repeat arguments that have been presented in the three cases that have preceded and lend myself to those points that have not been raised and I think that it is maybe helpful to Court.

My own analysis of the case begins with the question of the Chief Justice put to Mr. Amsterdam, the argument in the Furman Case, and which I say with respect I do not think there was a complete answer.

Chief Justice pointed out that many of the jurisdictions that Mr. Amsterdam and those associated with him regards abolitions as jurisdictions have in fact not abolished capital punishment entirely.

They have preserved that extreme penalty for somewhat unusual cases.

The murder of a policeman or correction or official or a murder committed by a person already serving a life sentence or in English and Canadian version defined dockyard arson or piracy with violence.

It seems to me that this is extremely important because if one accepts that there is any case, any crime for which death is an appropriate punishment, then I think most of the force of the argument that professor Amsterdam has made vanishes.

If we were to say it for example as Congress said only seven years ago, that the assassination of a President is a crime so heinous that only the death penalty is meet for it, then I cannot see how it can be argued that the penalty is unconstitutional merely because it is a penalty that may not be inflicted in a great many cases because it is somewhat rare as has been suggested to us today.

I would find it very difficult to understand how this Court as a constitutional matter could draw these kinds of shadings and distinctions that anyone in Canada and New York and some other jurisdictions have done.

I do not see how you have read an opinion and say we are persuaded that capital punishment is in general cruel and unusual, but this does not to dissuade the legislature from taking care of presidential assassins or bombers of 747 or other very unusual people of that kind.

But since, the constitution necessary paints with a much broader brush than a legislature can do and Court has to respect these broad differentiations, but if then we can say that the presidential assassins constitutionally can be executed, it seems to me that we have established that death is in itself not inherently cruel.

Now, there is much more than that in my reading of the Eighth Amendment, and also as suggested in the brief that -- the Eighth Amendment bars those things that are inherently cruel and perhaps also those things that are cruelly excessive and I think of course, there would still be ample room to say that the death penalty for some particular crime maybe cruelly excessive, even though we have held that it is not inherently cruel and said that there are some thing’s to which you can apply it.

But I do think that we have progressed partly towards decision, if we can recognize that the death penalty is not at all times for all crimes a constitutionally impermissible punishment because --

Justice Potter Stewart: Could not that argument be directed in other direction Mr. Wright as well.

Here we have generalized statute to the case involving rape.

You say it's established and that's the statute before us in this particular case?

Mr. Jr. Charles Alan Wright: Correct.

Justice Potter Stewart: And we do not have a statute before us involving the penalty that Congress may have imposed for the assassination of the president of the United States and it might be that the death penalty for a highly particularized kind such as that might be constitutional, but that this legislation now before us might not be, is it not?

Mr. Jr. Charles Alan Wright: I would submit in response to that Justice Stewart that perhaps such a position can be made and such an argument presented, but that at least is not the argument that I have understood the petitioners in this case to be making.

Mr. Amsterdam, the two murder cases says that the death is unconstitutional for any civilian based on crime and of course the more blended specialized view is taking of rape to which I would come in a moment, but Mr. Greenberg and Mr. Bruder have, I cannot myself see the constitutional argument that would say murders generally cannot be punished by death and maybe we will find some of the constitutionally it can, that involves reading a certifying the intent of constitution that I cannot detect there.

Justice Potter Stewart: Well, certainly as you were beginning to suggest in your argument, that even if one accepts it, as you just said, that the death penalty per se is not a violation of the Eighth Amendment, it does not follow that the death sentence can be imposed under the Eighth Amendment for anything within the State legislature's whim as well such as petty larceny, does it?

Mr. Jr. Charles Alan Wright: That I think is very clear, yes sir.

But if we have established that the death penalty sometimes is constitutional, it is still open to my friends to challenge any particular application of it, requires a crime by saying that you cannot do and I am willing to read Weems with all the problems it presents as introducing a principle of proportionality and I would say against petty larceny, if we chop the conscience of the community where we today would execute a person who picks a pocket wherever it may have been, our English tradition 300 years ago.

Because in my analysis, the meaning of cruel and unusual is not very likely to be found in the dictionary.

I do not get great deal of help in parsing the words.

I find that even the history of the words here is less helpful than it is in most questions of constitutional construction.

It is clear that they were taken verbatim from the English declaration of rights, a century before.

There was some scholar who thought that the American draftsmen did not understand what the English meant by them.

The concept that the Eighth Amendment seems to me to express, as Chief Justice said in his plurality opinion, “Yes, that we are not going to rule out in human treatment” and I would say that the kinds of things we will not allow are those that the common conscience of America rejects.

My own guess is even if the Eighth Amendment had never been adopted, that this court would not uphold the sentence that man be boiled in oil.

I think that under the Due Process clause, it was impossible to say that taking his life away without Due Process of law and I think that just as Due Process has always been a very difficult concept to interpret, so cruel and unusual is going to be.

It is not easy for non-abuse on that side of the bench to decide what it is that the common conscience of America regards as meet, what it regards as improper.

I do not think that this is as Mr. Amsterdam suggests to say that this is a subjective determination.

It would be subjective if the justices were free to say I think death and any other penalty is bad, therefore, it is unconstitutional, but that is not all the same question as asking yourself to ascertain as best as you can what it is that conscience of the whole country permits rather that relying on your own individual judgments.

I think that if you do ask what I visualize as the proper question but the answer has to be that whatever the future may hold, the capital punishment today is tolerated, accepted by the conscience of America and this is shown not only by the statutes on the books, by the votes of jurors, by votes and referendums, by poles, by the very fact that we have so much to debate about it.

With all the fervor, the crusade that has been waged with to abolish capital punishment, there is still the nos who insist no at this time in society, we need this, we think it is a superior deterrent that we recognize, we can prove that statistically.

We think that it does provide a sense of expression in the community’s moral outrage that it helps make a more peaceful society than a community has to take the law in its own hands.

It is difficult for me to understand, but merely because we do not execute great many people every week, but this in someway show that America has now rejected capital punishment.

I would think that it would be cause for rejoicing, but we become increasingly selective about imposing the ultimate and most severe penalty.

Justice Byron R. White: What if it was shown that only one in a hundred rapists were put to death, out of a hundred cases, approximately, you are getting constitutional claim at that time, does that make any difference to your argument?

Mr. Jr. Charles Alan Wright: It would not trouble me Justice White under the cruel and unusual clause.

It will trouble me immensely under the Due Process clause.

It seems to me it's McGautha all over again.

Justice Byron R. White: I know but you say, it should be (Inaudible) that it becomes increasingly selective.

In my example I would not be any suit activity there it just, you might have arguably say the state is executing only enough people to make the death penalty a credible threat.

You say that would not present any question to you under the cruel and unusual clause?

Mr. Jr. Charles Alan Wright: No not sir under cruel and unusual, it would under the process, it would under equal protection.

It would seem to me arbitrary if a hundred similarly circumstances defendants are convicted, and 99 of them go to prison and one selected by law for process not than executed.

Justice Byron R. White: Better for you if I doubt at the end do you hear arguments on this phase it would be then that no matter how rare the imposition is that the cruel and unusual punishment provision is not implicated?

Mr. Jr. Charles Alan Wright: Unless it came to the point that you put hypothetically that we could satisfy ourselves that the people simply would not tolerate imposition of the punishment more widely that they would be as my friends argue revolt it if we executed even a reasonable proportion of all rapists and murderers.

Justice Potter Stewart: So your argument is that at some point rarity would be relevant, but that point has not been reached yet?

Mr. Jr. Charles Alan Wright: I would rather phrase it this way that I do not know how we can ascertain whether or not we have reached that point.

I do not know how we can say.

Justice William O. Douglas: Is it not discrimination is insisted in this concept?

Is it the one that is unusual?

Mr. Jr. Charles Alan Wright: I think it is certainly one of these ingredients Justice Douglas.

Justice William O. Douglas: And this discrimination is the way of life in your state?

Mr. Jr. Charles Alan Wright: I would submit that it is not the only ingredient.

Justice William O. Douglas: No, but if the ingredient is like this and hundred constitution (Inaudible)

Mr. Jr. Charles Alan Wright: For myself sir, I would still prefer not to rest out on the Eighth Amendment.

It seems to me that there is so clear constitutional barriers to that elsewhere.

Justice William O. Douglas: (Inaudible)

Mr. Jr. Charles Alan Wright: And I don't think that proper guides have suggested and I agree that it is one of the elements in the Eighth Amendment concept of unusualness.

Justice William O. Douglas: (Inaudible)

Mr. Jr. Charles Alan Wright: On the overall figures of number of executions, I simply do not, the racial aspect poses a separate problem that I would like to come to in a moment.

In the first place, I cannot use the figures for the last ten years.

It seems to me there has been too many intervening events that makes those figures unreliable.

I would say you would have to go back to years such as 1962 or earlier, in order to have a figure that is more meaningful.

Unknown Speaker: (Inaudible)

Mr. Jr. Charles Alan Wright: They would show an increasingly infrequent use of capital punishment.

Whether they would show as professor Amsterdam argues, if we use that infrequently because people would be revolted if we used it more frequently, I cannot say.

It seems to me that that aspect of his argument is assertion.

Unknown Speaker: (Inaudible) Is there a way of avoiding incidentally (inaudible)

Mr. Jr. Charles Alan Wright: No, it seems to me that the several of my associates suggested that the burden is on those who are challenging the constitutionality of state legislation to establish that it violates the constitution.

They need to demonstrate that the common conscience will not accept this.

Justice Byron R. White: They tended to figure for the years, since 1962 and say that the imposition of death penalty is so rare that the community has revolted by it and it must be considered to have rejected it.

Mr. Jr. Charles Alan Wright: Yes that is what is fit to that.

Justice Byron R. White: Now, that is just to give you, let us assume the figure are out that we can rely on.

What would you say to that?

Mr. Jr. Charles Alan Wright: Well, I still do not see how the figures establish the second part, they do not establish what the cause is, just is like.

Justice Byron R. White: So that I gather then that rarity then just is not enough to invoke the Eighth Amendment (Inaudible)

Mr. Jr. Charles Alan Wright: Rarity as I have suggested I think one element of the Eighth Amendment problem but it is not the only element, we need more, we need to know more that we can than we do know.

Chief Justice Warren E. Burger: Not just another way of saying on your part is it not that the term unusual in the Eighth Amendment does not mean or at least does not voice (Inaudible)

Mr. Jr. Charles Alan Wright: That is precisely my submission Mr. Chief Justice.

Chief Justice Warren E. Burger: There are other -- another element is quality of the punishment as well as the frequency is (Inaudible)

Mr. Jr. Charles Alan Wright: I guess that this Court would have found the cadena temporal to the cruel and unusual punishment, no matter how frequently it is imposed to control things.

That it was the quality, the nature of the punishment that was so shocking to a court that it has grown up and used to other concept of punishment.

Chief Justice Warren E. Burger: (Inaudible).

Mr. Jr. Charles Alan Wright: No, it was the punishment that was involved in the Weems v. United States in which it simply poses a number of disabilities on a person in essence that it is not physically cruel to him.

Chief Justice Warren E. Burger: About say the guarantee, there would be a physical aspect that you can sometime -- you say that is the time of unusualness in which the constitution would address?

Mr. Jr. Charles Alan Wright: I would say certainly it is yes and I feel I can see one of the -- I must have just missed upon it, that we do have changing concepts here, but what is cruel and inhuman is not a static concept, but it for example tomorrow, someone were to have been done away of executing, condemned people that was far superior to the methods now used in the United States, so far superior that they bore no comparison, I think that it might be said that it is cruel to continue use the electric chair if you now have this marvelous new invention available.

The constitution, though the constitution itself does not change in response to change in circumstances unless to be applied to particular context.

I would like to turn if I may to the racial aspect of these cases particularly if they apply in the rape cases.

The figures are undoubtedly very troubling.

The figures from Georgia I think perhaps better than those from the place of Texas but utmost from Georgia, but still anyone reading the various statistics that 97 persons executed for rape in Texas, 80 had been Negro.

If I am to be considerably worried that racial prejudice has played its part and I think it would be disingenuous deny that over the 47-year period covered by those figures, probably it did.

As pointed out in our brief until 1954, segregation was a crime in Texas and undoubtedly an interracial rape was thought to be a particular traumatic event, particularly great disturbance of the peace of the state and therefore likely to be punished more severely.

The figures are small being the total number of cases of this kind it is sufficiently small, but whether we look only to the rapes or even to the murders as Mr. Amsterdam concedes in his brief, but it is very difficult to form any firm statistical conclusion firmly.

This at least has been the view of both Fourth Circuit and Eighth Circuit.

You cannot be more than suspicious in the figures.

There is I think an explanation one may not be happy to make, but the history requires that we make about the incidence of the death penalty in an earlier time in my State with the customs that it one time had.

And, I think that finally, it would be little up to me that is a very important principle that race is utterly irrelevant in sentencing convicted persons.

If we were to bring that principle in today, rape cases under the Eighth Amendment and say yes we think that race has been impermissibly used in Texas and Georgia in the past, therefore, we are going to outlaw the death penalty for rape cases.

To the extent that there is prejudice among those who impose sentence whether it be jurors who sentence or judges who sentence or prosecutors who make the initial choice of going to the death penalty or not or going to the other crime, to the extent that there is prejudice, that prejudice is going to appear not only in cases in which death is the sentence but in which other sentences are given.

Professor Bullock’s study cited in our brief of persons who were given prison sentences shows that that is so, but among those given prison sentences for rape are figures that make us wonder if race was impermissibly taken into account by Texas jurors and in years past, it seems to me that we honor the principle on which all of us would agree much better.

If we regard these as being as they really are Equal Protection argument.

It is a denial of Equal Protection of the laws.

If a man because of his color suffers a different punishment than someone else with a different color, we agree this violation of the constitution but I think that that is what we are facing squarely rather.

Justice Potter Stewart: Faced squarely in any individual case under the Equal Protection clause?

Mr. Jr. Charles Alan Wright: I suggest Justice Stewart that you can do what as Mr. Greenburg has told us has been done in schools and other things where Equal Protection argument is made, you bring forth statistics, you make a prima facie showing and you say to the state can you justify?

Justice Potter Stewart: Well, but this will arise in the context of an individual prosecution, an individual conviction and an individual sentence of death and how possibly can you show, given the secrecy of the trial jury deliberation, how possibly can you show us denial of Equal Protection, merely by showing that a disproportionate number of Negro’s have had the death sentence imposed on to them in the past and it has nothing to do with this case, does it, I mean, with my hypothetical case?

Mr. Jr. Charles Alan Wright: I would think of it certainly, it would have something to do with an injection on this ground just as the fact that a particular jury is alright.

Maybe challenged and when they go back in the past history and show what historical practice has been in order to establish a pattern of discrimination.

Justice Potter Stewart: I still do not understand your answer in my hypothetical case.

How would it begin to show a deprivation of Equal Protection in an individual case to merely show that in the past, more Negros than white people have been given the death penalty in rape cases?

Mr. Jr. Charles Alan Wright: Well, it might lead one to conclude that we ought not allow the present practices that we have for sentencing.

Justice Potter Stewart: And what would the result be, to set aside that conviction and say henceforth no Negros can be sentenced to death or white people can be?

Mr. Jr. Charles Alan Wright: No, of course it would not be like that.

Justice Potter Stewart: What -- how could you get out the Equal Protection clause?

Mr. Jr. Charles Alan Wright: I think you might have to reexamine your decisions of last term in the Goff (ph) and Compton (ph), Goff in particular.

I think you might have to see if jury sentencing is a permissible method or whether jury sentencing is not so suspect because of the likelihood, the bias will play a part that you have to take this far away from juries, but the court having decided so recently and so decisively that the jury sentencing is proper but the jury does express the confidence in the community.

I would think it needs quite a powerful showing to change the court's mind.

Justice Byron R. White: Professor, you indicate that it would be quite proper under view of the Eighth Amendment at least you say you except in prior cases suggesting the proportionality principle.

So, I take it that it is a legitimate question presented to this Court as to whether for example, rape where there has been no bugling harm or rape as justified as it calls for the death penalty.

Mr. Jr. Charles Alan Wright: Oh that it is certainly the question yes.

Justice Byron R. White: Basically very straightforward --

Mr. Jr. Charles Alan Wright: Absolutely, that seems to me properly what the parties are here.

Justice Byron R. White: This is what this case is all about?

Mr. Jr. Charles Alan Wright: Yes, this is what this case is all about.

Justice Byron R. White: And what your argument about rape as it distinguishes from others --

Mr. Jr. Charles Alan Wright: My argument first goes that one can or a state legislature reasonably can say that there are some rapes sufficiently serious, but for purposes of retribution and deterrence the state ought to be allowed to provide the death penalty.

But it would be not familiar in the extreme to say that no rape is so bad we can take the very end of the case as Justice Marshal put to counsel in the case preceding, I suppose we have the rape victim who is traumatized for life and a cripple psychologically as a result of this experience that the legislature would not be acting irrationally or improperly to say that for this kind, a very serious case, death is not an appropriate penalty.

If that is so, then the question becomes can one constitutionally draw a line to separate some rapes from others.

I think that everyone of us would be horrified if every rapist were given the death penalty because some rapes as Justice Stewart has suggested earlier are not aggravated affairs or in any sense.

This is what the Fourth Circuit has undertaken in Ralph v. Warden.

I think that the position taken there by the majorities speaking for Judge Butsner, that you can impose death only for rapes in which life has been in danger is a wholly unworkable position, that life is endangered in substantially any rape and that this would become a question of very arbitrary proof to develop that line in our brief, I cannot repeat what was said there.

Clearly there is more for us to the position taken by Chief Judge Hangward (ph) in the Fourth Circuit that you can impose death for rapes only if serious physical or psychological harm as a result.

This is at least the more objective test.

My difficulties were two.

First, I think that in the present imperfections of knowledge that it is very difficult to say with confidence whether or not serious psychological harm has resulted.

Second, I cannot think that the constitution permits drawing of lines with that reforms.

Justice William H. Rehnquist: Does the rape under Texas practice is the evidence as to the element of damage to the prosecutors ordinarily introducing evidence in a rape prosecution, is that a necessary element of the crime?

Mr. Jr. Charles Alan Wright: I think not Justice Rehnquist and that is why there was no record of it here that the fact is that the rape occurred and how it occurred that was enough to establish a complete case under Texas law therefore it never occurred to anyone to put on evidence one way or the other whether or not Mrs. Stowe (ph) suffered any harm.

Chief Justice Warren E. Burger: Right.

In higher term, I think two years ago and earlier in this term, we have had arguments of jury in Wisconsin (ph), there had been in those instances all are all tended to emphasize as many of them did, that the jury is the barrier between the individual citizen independence and the portions of the law as considered to be (Inaudible) having a judge do it alone and on this case, it seems to be having arguments that the jury fixing the penalty do not consume almost as prescribed to them.

The jury fixing the penalty maybe a dangerous thing for the defendant.

Mr. Jr. Charles Alan Wright: I would -- I would be hard put Mr. Chief Justice to form a judgment on whether overall it is a good thing or a bad thing for a criminal defendant to have a jury trial.

I take it that the Sixth Amendment is simply to present the ways to resolve the position, they all have one if you want one.

I do think that there is a possibility of prejudice not only racial grounds and other grounds, when you have a jury setting the sentence and perhaps judges can be better disciplined and less likely to do that, but I note that the pressure is now for appellate review of sentences in the federal system where we do not use jury sentencing so that I guess that even judges are hardly acting scientifically.

Justice Byron R. White: Well, is it not jury sentencing arise out of some desire to litigate the (Inaudible) considering the --

Mr. Jr. Charles Alan Wright: True.

That is the argument of Justice White.

Justice Byron R. White: And historically it has been -- or would you say that it is the central and basic argument.

Mr. Jr. Charles Alan Wright: I would say that it was successful, whether we need jury sentencing today to achieve that purpose given our advances in other logical matters --

Justice Byron R. White: But in the (Inaudible) specifically in the context of the death penalty that has been resolved.

Mr. Jr. Charles Alan Wright: Oh yes.

Yes.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Wright.

Mr. Bruder do you have any further?

Rebuttal of Melvyn Carson Bruder

Mr. Melvyn Carson Bruder: Yes Mr. Chief Justice, a few answers.

Mr. Justice Rehnquist asked about the evidence with respect to the harm done to prosecute -- in a rape case it has consistently been held admissible by the Court of Criminal Appeals as part of the (Inaudible).

I believe the record in this case shows that Mrs. Stowe (ph), the complaining witness went to her home with her son, took a bath and never even sought the aid of the doctor, consequently I would assume from that there was no medical testimony available as the state decided to put some on.

The answer is they could have put some on.

Justice William H. Rehnquist: If your position is clear, I take it they do not require in order to prove any essential element of the crime?

Mr. Melvyn Carson Bruder: No, the Court of Criminal Appeals has consistently held that the prosecutor's testimony concerning penetration and so forth is sufficient and need not be collaborated.

In answer to the other question about the frequency of application of article 1 14, it is the precise application of article 1 14 is unusual and is not common outside of the State of Texas.

There are two points that Mr. Wright has made, I think there is some searching.

First of all he says, Professor Amsterdam’s argument that society is now repulsed by these -- of the death penalty is refuted because the majority of the States have the death penalty, ergo the death penalty was acceptable to the majority of Americans.

However, no argument is advanced in support of the proposition that a minority of the State has the death penalty for rape only ergo it is unusual.

I think that the fact that the minority of the states have retained death penalty for rape only leads to the conclusion drawn by the majority in Ralph v. Warden.

The other point that is made by the briefs and not made quite so strongly is the fact that retribution is recognized by the State of Texas as a very important part of punishment.

I would think that it would be extremely hard to justify retribution where the purpose of retribution is pure vengeance.

If you have not got a life taken, how do you justify the taking of life?

Are you doing something greater, punishing greater than the crime itself.

This is where the proportionality of (Inaudible) comes into play and this is where I believe this Court has the right to determine proportionality of punishment and to draw lines with respect to (Inaudible) and to work out standards, and if standards cannot be worked out, then in any event to at least send the cases back to the state legislatures and let them establish standards such as Nevada did.

Justice Harry A. Blackmun: And you would argue that the capital punishment for treason is cruel and unusual?

Mr. Melvyn Carson Bruder: Exactly.

Justice Harry A. Blackmun: Where life is taken?

Mr. Melvyn Carson Bruder: Or armed robbery.

Justice Harry A. Blackmun: Kidnapping and hijacking?

Mr. Melvyn Carson Bruder: Anything where there is no real threat endangering the life of the accused, to me you are taking a life for something less that what has occurred.

There is absolutely no reason based on retribution in that point and of course the other purposes of punishment do not apply.

Justice Harry A. Blackmun: Then your answer to my question is (Inaudible)

Mr. Melvyn Carson Bruder: It would be cruel and unusual in any case except homicide or another capital case where more than simply showing a gun at the victim is proved by the state.

I would --

Justice Thurgood Marshall: What about treason that resulted in (Inaudible) 10,000 soldiers?

Mr. Melvyn Carson Bruder: If that was provable, I would say that the death penalty would not be cruel and unusual.

Texas --

Justice Thurgood Marshall: Well you can't and it says you are lying and he says yes.

If it does not involve death person in this so far.

Mr. Melvyn Carson Bruder: If it involves any death or endangering any person, now that is not to say that you may not have more than an immediate victim.

You may have a victim once or twice removed in the case of treason, the delivery of secret plans which may cost a life of other men, you would have victims which are -- in fact, that they are not dead or injured can be shown from the act.

Justice Thurgood Marshall: Attempt on the President’s life?

Mr. Melvyn Carson Bruder: Unless there are facts but I can see.

Justice Thurgood Marshall: The fact seems unloaded with 50 caliber machine guns, bullets and somebody is grabbed just before it pulls the trigger?

Mr. Melvyn Carson Bruder: I can see no real distinction between the attempt on the President’s life and the attempt on any person’s life, and unless there are medical facts in a record showing some sort of injury to the person, I can see no reason for the taking of life.

The taking of life in my opinion and I think in the opinion of the majority in the Ralph case must necessarily depend upon the harm which is done.

The punishment must be made to fit the harm done not exceed it.

To taking the life --

Justice Potter Stewart: (Inaudible) this theory when he gets a prison sentence.

Mr. Melvyn Carson Bruder: I am sorry I did not.

Justice Potter Stewart: What if you are not, telling him about, you are putting capital punishment to one side, how does your theory apply to terms of imprisonment (Inaudible)?

Mr. Melvyn Carson Bruder: I think very nicely because taking into recognition the advanced techniques that we are now aware of and that are being used in prison systems, I think sentencing now has become more function of parole boards and experienced people in the penitentiary system.

Justice Potter Stewart: My question Mr. Bruder is this.

You suggest that at least arguendo at least to the secondary argument in this particular case that whatever maybe the constitutionality of them imposing the death sentence for deliberate and premeditated murder, it cannot be imposed for rape or indeed for any other offense unless a life has been taken.

So that is the argument is it not?

Mr. Melvyn Carson Bruder: Or endanger to such a degree that medical attention was necessary to save the life.

Justice Potter Stewart: And I guess -- I wondered where that theory directed with respect to something like assault battery, unless the constitutional outer limit to the punishment for that to the Eighth Amendment.

Mr. Melvyn Carson Bruder: Under the Eighth Amendment, I see no limitation as far as what the legislature of the states may do because --

Justice Potter Stewart: Not an important question.

Mr. Melvyn Carson Bruder: The main thing is the taking of the life.

That is the thing that distinguishes the rape case from the murder case and the rape case from anything.

That taking the life without demonstrable evidence that the taking of the life is necessary and flows from the act, it is unusual and that may make it cruel as well.

Justice Harry A. Blackmun: Mr. Bruder I want to make sure I get the distinction.

You said that no death penalty for rape unless there is a substantial medical evidence?

Mr. Melvyn Carson Bruder: I did not say necessarily substantial.

Medical evidence showing that some harm had occurred.

Justice Harry A. Blackmun: Some harm had occurred.

Mr. Melvyn Carson Bruder: Some harm had occurred, some physical harm and that perhaps sought for medical attention that would have been problems, how serious the problems maybe is I do not think, it may not even be a question for this Court.

It may really be a question for the legislature.

I think—

Justice Harry A. Blackmun: There is a, some physical harm, you are not excluding mental breakdown is it?

Mr. Melvyn Carson Bruder: I am sorry I should have not excluded it no.

If there is testimony of some disorder of the mind has resulted of it, I think that would also be a very important factor whether or not the death penalty was permissible.

Justice Harry A. Blackmun: And you are not drawing any distinction between the three harms to his life as long as it is not a harm, it it, you were not aware?

Mr. Melvyn Carson Bruder: No, I would draw a line at some point.

The harm would have to be of such a nature that it might lead to incapacity or even death.

For instance, in the Branch case, the mere pressing of the arm across the throat which did not necessitate medical attention, I do not see how that could possibly be a serious crime such as to justify the taking of the life because as I have said originally, in Texas, a man could beat a woman to the brink of death and still only get 25 years if she recovered, under our assault statutes.

But if he beat her to the brink of death and raped her, perhaps he could life.

It would be inconsistent and thus it might be a question for the Texas legislature to resolve because of the internal inconsistency there, but I think the necessity of drawing that line is clear under the cruel and unusual provision of the Eighth Amendment and that the least this Court should do in this case is to remand the case so that this line can be drawn much as Nevada did and much has been proposed by the model draft in Texas which has not been enacted.

Justice William H. Rehnquist: Mr. Bruder, under your theory of the Eighth Amendment, would a court marshal be constitutionally entitled to impose the death penalty upon a member of the military for desertion in the face of the enemy?

Mr. Melvyn Carson Bruder: There are two interesting problems.

First of all, you are dealing with a non-civilian and probably non peacetime crime and the second problem is obviously how do you show whether or not that act contributed to death or injury to somebody else.

I would think if there is any prohibitive evidence showing a contribution to injury or death, the answer would be yes.

Justice William H. Rehnquist: But if not, no?

Mr. Melvyn Carson Bruder: If not, by using these standards, if the standards apply to civilian peacetime crimes and wartime military crimes, the answer would be it would be cruel and unusual.

Chief Justice Warren E. Burger: Thank you Mr. Bruder, thank you Mr. Wright.

The case is submitted.

Print this transcript Transcript: 

Argument of Anthony G. Amsterdam

Chief Justice Warren E. Burger: Arguments next in 69-5003, Furman against Georgia.c

Mr. Amsterdam you may proceed whenever you are ready.

Mr. Amsterdam: Thank you Mr. Chief Justice.

One thing I perhaps should make clear, it's our position on the question asked by Mr. Justice Stewart as to whether if there were shown today any legitimate legislative basis for a punishment that would itself in the Eighth Amendment is referring, the answer in my judgment is unmistakably no.

The argument about whether there is a legitimate base for a legislative judgment has a very, very small part in our brief as I am sure the Court has noted.

We have essentially, simply pointed out that one of the reasons why a Court need not hesitate to strike down a rare and harsh punishment like capital punishment is that it is not taking away anything that is very important to the State, both in the sense that the only thing is really an issue here is whether instead of killing 20 or 15 people randomly selected a year, they are going to keep them in prison and the impact of that from all available determiners is in current to punishment, but we do not urge that legislature could not, we do not urge in this forum at this time that the legislature could not find that there is a basis for boiling an oil.

That I think really presents the question very squarely.

Mr. George said and I think the State generally takes the position that if boiling an oil came before this Court, even though it had a legitimate legislative base, even though a legislature might find the boiling in oil was a deterrent that somehow the Court could say that that was a cruel and unusual punishment because it is “unnecessarily cruel.”

I want to simply point out to the Court, who is arguing subjective standards here and who is arguing objective standards.

How could this Court say or how could Mr. George say that boiling an oil is unnecessary if a legislature finds that in order to deter some particularly serious crime that the horrible prospect of being boiled in oil is all that we do it.

I think that it is the respondents and not the petitioners who are urging the Court to react to that visceral level.

Our proposition is I think the much more objective one.

It looks not to what society says, but to what it does and we do not reject the fact that 41 States have it on the statutes, but that is certainly a phenomenon with which one must start, but one must also ask what did they do with it.

Now, let us look at this thing if we may for a moment in the world picture and we are not talking about Mozambique and Liechtenstein.

We are not talking about a progressive trend which has brought virtually every nation in the western hemisphere with a possible exception of Paraguay and Chile to abolish the death penalty.

We are talking about a progressive trend which has caused all of the English speaking nations of the world except some of the American States and poor states in Australia to abolish the death penalty.

We are talking about a --

Chief Justice Warren E. Burger: Did they do it?

What process did they do it in most these places.

Mr. Amsterdam?

Mr. Amsterdam: It is different in different places.

In many places, the legislature have abolished it and in many places exactly the same thing has happened as has happened in the United States, that it has simply ceased being applied in fact and we think that the fact that --

Chief Justice Warren E. Burger: But it is not the process that could generally won -- done by a Court in these countries?

Mr. Amsterdam: No, no, no unquestionably not and in most countries, of course, Your Honor Courts do not have this kind of constitutional supervision --

Chief Justice Warren E. Burger: Now, if the Courts understook to accept your general composition on the cruel and unusual aspect, could a Court make exceptions to it for a certain crime or would it -- would the Court be obliged to follow an all or nothing approach?

Mr. Amsterdam: If -- Mr. Chief Justice, if Your Honor means, could the death -- could the Court find that the death penalty is unconstitutional for some crimes and not for others, I believe that it could rationally, although I do not think it should or can on the indicators available to the Court in this country.

Chief Justice Warren E. Burger: But could the Court for example make an exception as to homicides committed by a life term prisoner here of a fellow prisoner or the guards?

Mr. Amsterdam: I might --

Chief Justice Warren E. Burger: (Voice Overlap) that kind of a narrow exception as a legislature could?

Mr. Amsterdam: Well, that -- it seems to me that is a different question whether the legislature could.

I do not think the Court could under a general statute as I do not think that the Court could take a statute like California which says any first degree murder imposed the death penalty or statute like Georgia’s which says any murder the death penalty may be imposed and say, well, they can it apply it in some cases and not in others.

But I do think that a different question would be presented if they are different and now our statute represents, there is no doubt about that.

Chief Justice Warren E. Burger: You are well aware of course that great many opponents of capital punishment, among them James Bennett, the former Director of the U.S. Prison Bill, very strongly against capital punishment as a matter of policy, but referring to retain it for homicide of a fellow prisoner or a prison guard and I am sure you will cover that in some detail (ph).

Mr. Amsterdam: I have no doubt that a statute of that sort would present a different question for the Court because what we have is a general statute which proscribed death as the penalty for murder or in the subsequent cases, right.

Now, we have had historical experience with that.

We know what our --

Justice Thurgood Marshall: Is it true that New York, there is such a statute, that is restricted the killing of a prison guard?

Mr. Amsterdam: Oh! Yes.

As a matter of fact there are several different statutes Mr. Justice Marshall, in different States.

California has a mandatory death penalty statute for killing by life termers.

It need not be a guard but it is any non-inmate.

There are five States though that have a statute such the Chief Justice suggests which limit the penalty to killings of guards in the course of their duty and that sort of thing.

Chief Justice Warren E. Burger: Do you think we would then could accept your general argument and still find such a statute, one that did not offend the constitution?

Mr. Amsterdam: Your Honor, I think a line might be drawn.

I do not urge that it be drawn and I see no occasion in these cases because no such statute is presented.

The problem with those statutes is that we had insufficient experience with them.

The essence of our submission here, I think it is perfectly coined that we have had a very considerable experience with general statutes punishing the crime of murder or the crime of rape with death.

And what we find when those statutes are applied, actually applied by juries in particular cases is that almost never is the penalty of death in fact inflicted.

I think that is not an exaggeration.

Now, one does not know what juries would do with different kinds of statutes, but one darn well knows what the testimony of public opinion, of enlightened public opinion in this country is with regard to general statutes punishing murder with death.

The -- what juries do -- we are in a little disagreement with I think the respondents on the significance of that.

To start with it as we have pointed out, juries really only do return about a hundred death verdicts a year.

Now, to understand how small that is, you have to compare it with the number of crimes punishable by death.

It is a very difficult thing to do.

We have attempted to do it in one of the appendage to our brief in which you point out is that juries do not apply the death penalties perhaps to more to more than one out of 12 or 13 at the very most cases in which they could and maybe a half or a third of those people are actually executed.

Now, notice that the non-acceptance, indeed the repudiation which this imply.

We have a country in which 43 jurisdictions have the death penalty on the books in which hundreds and hundreds and hundreds and hundreds of people are prosecuted for crimes and convicted of crimes in which death penalty is available.

Under the best of circumstances for capital punishment where the -- what is involved in an execution is a secret or indefinite kind of the jury does not proceed or fully understand where the people get the death penalty, are disproportionately the pariahs, the poor and racial minorities, it's a point I want to come back to in one second, and where in addition the juries are death qualify, the juries are returning a hundred death verdicts here.

Justice William H. Rehnquist: Mr. Amsterdam, you have said that one out of 12 or 13 death verdicts is returned as what -- as what might be returned, in each of the 12 or 13 were those cases which the prosecution had asked for death or was it just the death could have been returned under the statute if the prosecution had asked for it?

Mr. Amsterdam: It is impossible to know in what percentage of the case if the prosecution asked for it.

It is however perfectly clear in a number of jurisdictions that the prosecution has no control over the matter.

In a number of jurisdictions it is entirely up to the jury.

The prosecutor cannot waive it and the prosecutor cannot ask for it, simply a matter if the jury’s discretion.

I think no figures are available on the question of whether the prosecutor asked for it although I would say that even the prosecutors’ decision not to ask for it is a reflection of the sentiment of the total community so that I would not discount those cases even if I knew how many there were.

The point --

Justice Potter Stewart: Also your statistics, you cannot tell even from those fragmentary statistics whether, as you put it, juries are imposing the death penalty in only one out every 12 defendants or does it mean that only one out of every 12 juries imposing the death sentence?

You do not know which is the constant and which is the varying factor (Voice Overlap)

Mr. Amsterdam: No.

No, that is certainly clear Your Honor.

Justice Harry A. Blackmun: Mr. Amsterdam is the -- are your most recent remarks also directed to judge imposed penalties?

Mr. Amsterdam: The figures that are available do not discriminate so that the one out of 12 or 13 figures is a total figure that does not discriminate between a judgment and jury sentencing where prosecutors have or have not asked.

All we know is that out of that number of capital cases that is the number of death sentences that are in fact imposed by the sentencing.

One important factor is that the figures we have, the figures I am talking about a hundred year, run through 1968, when Witherspoon was decided.

So what we are talking about is the number of sentences imposed principally by juries because although there are some judge sentences in there, most of these are plainly jury sentences, by juries from whom all persons against capital punishment had been excluded.

Now this is the group that Mr. George wants us to take as the indicators of public symptom.

You are already crooning out all of those people who oppose the capital punishment.

Justice Harry A. Blackmun: But Mr. Amsterdam in that connection, how many States have penalties of this kind imposable by a jury as been contested by those imposable by a judge, do you know?

Mr. Amsterdam: I am -- how many jurisdictions --

Justice Harry A. Blackmun: In how many jurisdictions the -- does the judge impose sentences in custom and how many if a jury impose a sentence, do you know?

Mr. Amsterdam: To my knowledge there are 2 jurisdictions, Maryland and Illinois where the imposition of the death penalty requires the concurrence of the judge with the jury, that is the jury’s verdict is either advisory or the judge must concur in the jury’s verdict before it can be imposed.

In all other jurisdictions, it is the jury which makes the sentencing decision unless the jury is waived.

Justice Harry A. Blackmun: Now this is not true in my home state?

Mr. Amsterdam: Oh! I am -- I am then quite misinformed.

I had understood that it was.

If -- this is rather thoroughly canvassed in the briefs in Maxwell versus Bishop and I think the statutory section is set out there.

If the Court should want to refer to them for reference, I had understood that it was true in all States that the jury made the determination except those two but there may be local differences of -- that I am not aware of.

The --

Unknown Speaker: (Inaudible)

Mr. Amsterdam: On sentences, yes.

Justice Potter Stewart: Except on those of states where or except where a jury is waived and which is then I suppose in some States at least the judge could impose a death penalty?

Mr. Amsterdam: Oh! It is since United States v. Jackson and it is common that if the jury is waived the judge may impose the death penalty, yes, that certainly is true.

The jury is sort of primary sentencing instrument in practice because it's generally -- jury does not interact with.

Justice William O. Douglas: Is there anything in the Georgia record that indicates what kind of cases Georgia executes?

Mr. Amsterdam: There are, again, judicially noticeable figures on this.

There is nothing in the record.

There is no evidence that was presented, but the figures that perfectly frames the national prison statistics, judge executes black people.

Unknown Speaker: In Georgia?

Mr. Amsterdam: I want to make some reference to the -- as to the State of the record generally because there is an awful lot of talk here about facts, about what the Los Angeles Police Department says about deterrence, about who gets the death penalty, unpublished figures in the Georgia Bureau of Prisons, unpublished figures in the California Department of Corrections, I make very point that, we have been asking for an evidentiary hearing from all of these factual, a lot of Courts for a long time.

Nobody has ever given one to it.

The California Supreme Court Judge (Inaudible) Evans rests upon a record in which the California Supreme Court decided that case on authority, other case in which we had asked for such a hearing and had not been given to him.

We are very far from satisfied with the nature of the factual evidence presented here, but we think from the factual evidence that is judicially noticeable which does not include corrections, departments, or courts in an unpublished forum, that enough appears so that the Court can call the death penalty cruel and unusual punishment.

Now, if however the Court has any concern with any of this factual questions, for instance, from deterrence to who gets the death penalty, any of these things, an evidentiary hearing would be the proper way to resolve that matter and in the Akins case, at least the case can be taken in such a way to get that hearing.

Now, the -- I would turn to this subject of rarity and discrimination because the significance of both rarity and who -- and the question, who gets the death penalty is twofold.

First of all, when a nation decides with a growing crime scare, burgeoning population, sentences a few people to death, were in fact sentenced to death and execute the people you fear of and does this against the background where the ideological debate where the content of this debate about capital punishment makes unmistakably clear why this is happening historically because capital punishment is regarded as indecent, as inconsistent with civilized standards today then that manifests a repudiation.

It's quite different from what is manifested by the maintenance of the statutes on the books.

That is the second aspect of it.

The very fact that capital punishment comes to be as rarely and is infrequently and is discriminatorily imposed as it is, takes the pressure of the legislature quite simply to do anything about it.

For one reason why the Eighth Amendment must be measured not only by legislative disapproval, but by popular disapproval in terms of what juries and judges and prosecutors do in fact is that there are in fact more than one way to skin a cat.

And that a penalty can be repudiated by public opinion, every bit as thoroughly by the legislatures making it optional and then nobody has ever applying it as by the legislature's repeal of it and this goes back to the Chief Justice’s question, how has it been done internationally?

In some places it has been done by legislative repeal.

In other places what has happened is exactly what happened in this country, it simply falls into disputes and when it falls into disputes, when there are only a very, very few people and those predominantly poor black, personally ugly and socially unacceptable, there simply is no pressure in the legislature to take it off.

Justice Thurgood Marshall: Let us ask them to the last case, how many are there in death row in California?

Mr. Amsterdam: How many in death row?

A hundred and five on death row in California to my -- to my knowledge at the moment.

Justice Thurgood Marshall: At the time the last time the legislature was used to abolish the death penalty (Inaudible)?

Mr. Amsterdam: Oh! About, I would say 85 to 90.

Justice Thurgood Marshall: Well, how can you say that it is because they are so few?

If you take the State of California and there is one that you try to get numerous mileage on the frame?

Mr. Amsterdam: Well, there are number of -- I think of essential points here, few is of course a relative matter.

What you are talking about is an accumulation on death row over a period of time for 12 or 13 years.

You are talking about 80 people in a prison system that houses thousands and thousands and thousands of people.

You are talking about and I think this is relevant, you are taking about 80 people of whom at that time 25 or 30, actually probably up around 30 were members of minority groups.

This by the way is not a factor in California’s figures.

One of the reasons why I have great concern about California’s putting them forward as though they were judicially noticeable, but the only racial figures California give are for 1970.

It is very strange that thinking -- very clearly the 1970 was strange here in California because the last published national figures show that out of 59 people on death row in California, 25 were black.

Now, the California figures show that out of a hundred now, 25 are black.

There is something, you know, strange going on there which you --

Justice Potter Stewart: How does that compare to the prison population of California?

Is that out of line with the basic prison population in California?

So far as racial composition of --

Mr. Amsterdam: It is very difficult to know.

There are no published figures to tell us that.

What California does compared to the received from Court 1970 and one year is no basis for making any kind of a judgment.

It is true though that California counts Chicanos as white for these purposes, something which for one who lives in California, I point rather strange in terms of the question, who there is that brought on the penalty?

The point essentially is that when it is this group of people who in fact suffer, realistically the pressure on the legislature is not the same.

However, little we are willing to bear the death penalty in its general application, we are still less willing to bear it as applied to us.

Now, the Court has been --

Chief Justice Warren E. Burger: Mr. Amsterdam you were speaking of pressures on the legislature.

What are the figures now, the total number, something over 600 in death row?

Mr. Amsterdam: The latest available figure to me Your Honor is 697.

Chief Justice Warren E. Burger: Now 700 people on death row would be quite an enormous pressure on public opinion, would it not?

Mr. Amsterdam: No, I do not think so.

I think as a matter of fact, public opinion has been low in a very significant way by the failure of executions in recent years.

I think the public has -- as in large measure stopped thinking about the problem.

I think that it is --

Chief Justice Warren E. Burger: Well, I was addressing myself at least suggesting the possibility that if you did not prevail here that pressure would be reactivated, would it not?

Mr. Amsterdam: I do not know whether it would or would not if you actually started killing people.

I am quite confident it would not until you start killing people.

Public is quite graphic in a way it thinks about things.

Put one execution out there, take one life, people get very excited, but tell them that tomorrow or the next day a life maybe taken when one has not been taken since June 2 of 1967 and they don't think about it.

I think it would cost, I think it would be constitutionally intolerable to us, the resumption of execution, to activate any kind of public sentiment.

But even if you had that public sentiment activated, the point essentially remains that it is not, you are not capable of generating the kind of legislative or public disapprobation of a penalty which is asking a forum so as to be applied and which is in fact applied to very, very relatively and to essentially ugly minority group members as you are to a generally applicable penalty.

Now, I would like to serve -- save some time for rebuttal in this matter, but the point made by several of the respondents said that the death penalty somehow -- the fact that the institution in the society would fall apart if this Court laid it hands on it, is not new.

If I may read just for a moment from --

Justice Potter Stewart: Is not what, I did not hear you.

You said that that point is not what?

Mr. Amsterdam: Is not new.

Justice Potter Stewart: New?

Mr. Amsterdam: Is not new.

Justice Potter Stewart: I see, thank you.

Mr. Amsterdam: If I may read for a moment from Lord Ellenborough speaking in the House of Lords in 1813 on a Bill for abolishing the death penalty for the crime of privately stealing the amount of five shillings from a shop, Lord Ellenborough after saying, how but by the enactment of this capital punishment law, the cottages of the industrious poor to be protected, what other security has a poor peasant when he and his wife come home that his clothing would be safe other than the death penalty.

Those are on to say, your Lordships have told what is extremely true that the number of people actually put to death for stealing five shillings from a shop is very small.

And this circumstance is urged as the reason for the repeal of the law.

But before your Lordships are induced to consent to such repeal, I beg to call to your consideration the number of innocent persons who might have been plundered of their property or destroyed by midnight murderers if the law now sought to be repealed had not been in existence, a law upon which all the retailed trade of this commercial country depends in which I for one do not consent to be put in jeopardy.

Nevertheless, the Bill making it a capital offense to steal five shillings from a shop was in fact repealed, England did not fall there.

I think that all of the available evidence which is judicially noticeable makes it perfectly point that a judicial ruling by this Court applying the Eighth Amendment in the way in which we believe it was meant to be applied and in judging this repudiated penalty, a cruel and unusual punishment to take from the State nothing to which they are entitled.

If I may save the rest of my time for rebuttal Your Honor?

Chief Justice Warren E. Burger: Very well Mr. Amsterdam

Justice Potter Stewart: Before you sit down Mr. Amsterdam, I just want to be sure that I understand your ultimate argument.

Is it this that even if assuming that retribution as a -- is a permissible ingredient of punishment, even assuming that rational people could conclude that the death sentence is the maximum deterrent with the minimum unnecessary cruelty, death in electric chair.

Even assuming we are dealing with somebody who is not capable of being rehabilitated, an incorrigible person.

Even assuming that rational people can conclude that this punishment under these circumstances is the most efficient and the most inexpensive and the most -- and that it assures the most complete isolation of a convicted man from ever getting back in the society.

Even assuming all of those things which are the basic arguments made by your brothers and sisters on the other side, you say it is still violative of the Eighth Amendment, am I right in my understanding of that?

Mr. Amsterdam: That is correct, Your Honor.

The Eighth Amendment we see is a limitation somewhat like before.

It is a limitation on means that says that the legislature may not use cruel penalties, cruel and unusual penalties, even though they may serve legitimate cause, so just because men engage in unlawful searches and seizures even though there may be a purpose for them.

Now, we are -- I ought to point out we are limited to that on this record because of this ineluctable fact that we cannot get an evidentiary hearing on all of the issues Your Honor raises.

I think on evidence which could be presented, we could show that none of the judgments Your Honors supposes could rationally be made.

Justice Potter Stewart: Well, maybe so.

(Voice Overlap)

Mr. Amsterdam: But on this record it is our submission that accepting each and every one of those propositions, the death is a cruel and unusual punishment.

Justice Potter Stewart: That is what I understood to be your argument.

Chief Justice Warren E. Burger: Mrs. Beasley.

Argument of Dorothy T. Beasley

Mr. Beasley: Mr. Chief Justice and may it please the Court.

The question in this case is and particularly in the case now before the Court that is Furman versus Georgia involves the Fourteenth Amendment first.

I think that petitioner has in all of these arguments and all of these cases given way to the proposition that the Fourteenth Amendment hasn't anything to do with these cases and the argument is made simply that in this cruel and unusual punishment to deprive a man of his life, due process of law is not really looked that at all.

However, as it affects the State that is exactly is the most important point.

The Fourteenth Amendment provides that life, liberty that no State may deprive any person of life, liberty or property without due process of law.

Now, that was written in 1968 long after the fifth -- the Eighth and the Fifth Amendment were written.

So that when the restrictions was made on the State by way of the Fourteenth Amendment, the death penalty was already recognized and the restriction on the State was only that they not deprive a man of his life or liberty or property without due process of law.

And I would submit that if the Court in these instances rules that the death penalty a cruel and unusual punishment and may not be enforced by the State then it would take a constitutional amendment because the Fourteenth Amendment as well as the Fifth could be rewritten so that we would have a proposition that no State may deprive any person of life nor may any State deprive any person of liberty or property without due process of law.

Justice Thurgood Marshall: Could the State flaw in the law (Inaudible)?

Mr. Beasley: I think not Your Honor because the terms of due process of law and this taking of life or property does not include corporal punishment of that type.

The State may not deprive him of life, liberty or property without due process of law, but what we had at the beginning where a country -- was the understanding that it may not impose torture and that of course would be torturous as would a horse with an essence that Justice Stewart mentioned.

So if things were taken out of the realm of punishment at the very beginning, with the constitution being enacted and the Bill of Rights so --

Unknown Speaker: What is the standard would you use to determine whether any part of the Bill of Rights, is that what you mean it would be?

Mr. Beasley: I think whether it is the claims that has been used by this Court in so many cases in applying the Due Process Clause.

Is it a matter of fundamental standard, is it a concept of our ordered liberty, that is where full -- that is where a punishment period comes in, I think and whether it is cruel and unusual punishment comes in to the concept of ordered liberty, a fundamental fairness and I think that so long as the State utilizes fundamental fairness in dealing with it, you know, Fifth Amendment posing penalties that those penalties may be used, particularly since the States were specifically permitted by the Fourteenth Amendment to utilize the taking of life so long as it was done with due process of law and I think that is one of the basic frailties in most of the arguments that are made by petitioner because he talks about rarity and discrimination.

Well, obviously then it is not with due process of law, is it all the jury and that is the limitation of the State.

It is not to say as to the penalty.

Justice Thurgood Marshall: Mrs. Beasley, did the (Inaudible) that the State would not impose unnecessary change, the plaintiffs of this Court?

Mr. Beasley: Yes sir.

I am --

Justice Thurgood Marshall: They recognized a little more than just due process, it is not?

Mr. Beasley: But that was --

Justice Thurgood Marshall: Even just thought in that case recognized that the Eighth Amendment was a part, well, applicable to the case?

Mr. Beasley: Yes, insofar --

Justice Thurgood Marshall: And you are now saying it is not?

Mr. Beasley: No sir, I am not saying that at all.

What I am saying is that it comes into the restrictions on the State by way of the Due Process Clause, not that in and of itself and apart for many consideration of due process is applicable to the State.

That is very clear because without the Fourteenth Amendment the Eighth Amendment would not be applicable to the States at all because that is not how it was written.

So that in the concept of due process is where the considerations of how we deal with punishment come in and I would submit that a State may impose a punishment so long as it is not out side of what we regard in our concept of ordered liberty and fundamental fairness and I think that is exactly where the standards come in.

The standards are not so close aligned that you can measure them by polls taken today or by the number of people executed within the last ten years.

That is -- assume a -- close to the line as far as that concept of ordered liberty are concerned.

Moreover, I think that the standards that ought to be viewed are the ones that because the courts have used throughout the country in recognizing what cruel and unusual punishment means and the cases that come out of the State Courts now, the Lower Federal Court and of this Court indicate that it means barbarous or uncivilized or torturous and that type of thing and certainly the penalty of death per se does not come within that prohibition or that understanding.

Mr. Justice Marshall, you asked about whether the meaning of unusual has changed, I would submit that it has not.

The meaning of unusual has not changed from the time that the Eighth Amendment was written, but the application of it perhaps has and I think, as I have said before that the death penalty itself be outside of a consideration of that measure because it specifically reserves the state in the Fourteenth Amendment.

However, if we are going to measure whether in our contemporary deciding, the death penalty is to be regarded as cruel an unusual punishment, I think petitioners are using the wrong guideline.

I think there are three basic ones that are compelling with respect to what is the current sentence of this specific regard to punishment and he talked about the world community, but we do not know why these countries did waive the death penalty.

We do not know for example whether it was the legislature or the petitioner, but even more we do not whether it was because they have regarded it as cruel and unusual punishment or for some other authority nor what the crime is what?

Nor what the punishment where the crime has been displaced with.

For example if it -- it is quite that life imprisonment, if the death penalty so much more severe that in and of itself, is grossly disproportionate as a matter of degree.

Let me go back to the -- I have mentioned that there were three areas, I thought, should control insofar as measuring standards of decency, jury--

Justice William O. Douglas: What if the standards of decency comes up?

Mr. Beasley: I think it comes primarily from the Trop versus Dulles, that being the last pronouncement in this area.

Justice William O. Douglas: But ever since there were no opinions of the Court, (Inaudible)?

Mr. Beasley: No, there was not.

That is correct but I think a standard of course would have to come into play, I do not think it is that far removed from fundamental standards which to me is the basic standard that is to be used in this cases.

Justice William O. Douglas: Did you say that a statute that allows the death sentence to be imposed except on those people who make more than $50,000.00 a year, would that be (Voice Overlap) --

Mr. Beasley: I think that would be the discriminatory.

That is not looking at the crime.

That is looking at the circumstances of the criminal.

Justice William O. Douglas: Do you think that cruel and unusual carries with it a connotation of non-discrimination?

Mr. Beasley: Oh! Yes, indeed.

It should be applied a non-discriminatory manner.

Justice William O. Douglas: Are there any statistics on what kind of people Georgia executes?

Mr. Beasley: Mr. Justice Douglas we submitted in our brief, a chart that I obviously made up from the statistics the we were able to gather from the Department of Corrections, showing those people now under death penalty in Georgia.

Justice William O. Douglas: And is that under --

Mr. Beasley: And I do not think that you could say that there is anyone class for that class has been discriminated against.

Moreover, even if it were shown to be discrimination and we submit that it was not shown to discrimination that that would not invalidate the death penalty per se but it would be a violation of the Equal Protection Clause not the Eighth Amendment.

In other words, you may have discrimination in the sentencing and largely that only black people get the maximum for larceny.

Well, obviously that would be discriminatory, but that would not mean that you could not sentence anybody to 20 years imprisonment for larceny.

It would simply mean that in no occasion where there was discriminations those sentences were invalid.

Justice William O. Douglas: It's case by case --

Mr. Beasley: Yes indeed and I think their proof falls far short of making out the kind of a prima facie case that this Court has considered in cases like (Inaudible) with regard to discrimination by virtue of rape.

And -- but even if -- I say, even if they could make it out, it would not invalidate the death penalty because the same thing would apply to any other punishment when it does not make the death penalty anymore cruel and unusual than life imprisonment or 20 years in jail or even 1 day in jail is to provide that in a discriminatory manner and of course that then goes back to the Due Process Clause.

Obviously it has to be like that, it has to be in proceedings which of course in fact --

Justice William O. Douglas: Has your court ever considered the question of discriminatory aspects of the death sentence as applied in Georgia?

Mr. Beasley: I think not because I do not think it has had the opportunity to do so.

Mr. Amsterdam suggested that it has not had the opportunity, he has not had the opportunity to present statistics to our Courts, but that certainly is not true in the instant case.

There was no effort made to bring any statistics or make any argument as a matter of fact.

In Furman the argument was not even made in the lower court.

It simply was stated, but no argument was made and there was a very, very short argument to point out in our brief, in the brief to the Supreme Court of Georgia, citing merely the whole statistics of how many white people and how many black people had been executed since 1930 up to 1968.

But that does not prove that the death penalty is cruel and unusual punishment.

Moreover, those statistics which talks about the period of time since the 1930 to 1968 in Georgia case or the old, since it's the only state failed to take account of the exact changes in criminal justice that had taken place under decisions of this Court as well as the decisions of State Court so that we are safeguarding not only criminal generally, but people who are subject to the death penalty with greater due process so that when do arrive at a consideration that they are ready to be executed we are sure that they are -- it was arrived at in manner of comporting with due process.

And I think that is one of the great fallacy in utilizing the statistics with regard to the number of executions that they had then.

How many of them have not been executed because of jury discrimination where group of jurors or illegals confessions or illegal search and seizure or something else and that has nothing to do with the penalty that was imposed by the jury.

But again let me just return to -- for a moment to what I regard as measurements of what the standard should be.

The standards of fundamental fairness and standards of an ordered society.

As I have said I think that should be the jury is the one, the juries across the country are still imposing the death penalty and certainly they are representatives of the community as stated in Williams versus New York by Mr. Justice Murphy in his dissent, in our Criminal Court the jury is the representative of the community, its voice is that of the society against which the crime was committed.

Its verdict is a community expression.

Witherspoon also refers to the jury representative of the community and so does Trop versus Dulles and I think that it cannot be overlooked that the jury are still imposing death penalty and did in the 650 or how many other cases resulted in persons now under the death penalty offenses.

They express the community feelings and standards and that was recognized in Trop.

They speak for the community if we are going to look at what the standards are here.

In this two cases where Georgia has standings for the Court, as a matter of fact the internment in the instant case right now before the Court, there was only one person of the total panel of 48 which means one out of 49 because one has to be added who will -- said that they were so against the death penalty that they could never encourage it in any case and that it would affect their determination of guilt.

One out of 49, so that cannot show that there is an overwhelm -- these people are selected at random and moreover, their feet are put to the fire.

There was some questions in one of the earlier arguments about, well, juries are perhaps just imposing the penalty now because they know it is not going to be imposed.

I would submit that if it is supposed to be, the overwhelming repudiation of the death penalty that petitioners talk about, then why would jurors take the unpopular stand in imposing a penalty which the world has repudiated.

And secondly, how can we presume that a juror sitting in the place of judgment is going to take a chance on a penalty not being imposed when he knows that his expressing as well as the community.

I would submit that no one with a conscience would do so and in certain point his arguing presumption of that sort.

Secondly, we speak also of the second measurements then of what -- who measures the standards and I would say, the judiciary.

And it is particularly appropriate to look there because the jury -- the judiciary is measuring the death penalty in terms of whether it is cruel and unusual punishment not whether it is why or not whether as restriction or not whether it can be without it but is it cruel and unusual punishment and reading all those recent cases from around the country I find almost none, I find none, there are probably are some but none where the Court had declared that it is cruel and unusual punishment and talking of the State High Court and the Lower Federal Court where -- so that we have the judiciary taking this very question of whether it is cruel and unusual punishment and giving it consideration and saying in our opinion and applying the constitution, we consider that it is not.

So certainly they too express the standard of decency.

We have talked in others situations of this conscience of the Court that is for example the test that used in the (Inaudible) raised in the Fifth Circuit.

Does it check the conscience of a Court?

That is what we are talking about with regard to standards.

It is not something so close to the line that can be measured as 51% today and 49% tomorrow and that certainly is not the way in which our constitution used to be utilized or to be construed.

Again, it is the question we think for the legislature to determine certainly in Witherspoon, the Court noted that the power of a State to execute a sentence -- sentenced to death by a jury does not be -- has no bearing in what the Court does with respect to whether the State can select who the person so long as it is done with due process.

And also we would like to point out that there is in many of the cases before this Court, Allied Stores of Ohio versus Bowers to light this constitution which were in 1866 and cases since then a presumption of regularity and a presumption of constitutionality of legislative enactment and that has been overlooked I think that petitioners’ argument and position.

He has the burden to show that the legislative enactment is unconstitutional and I think that he has done so, not with respect to the death penalty per se in the abstract which is what he contend should be declared unconstitutional.

Thank you.

Chief Justice Warren E. Burger: Thank you Mrs. Beasley.

Mr. Amsterdam, you have three minutes left.

Rebuttal of Anthony G. Amsterdam

Mr. Amsterdam: Thank you Mr. Chief Justice.

May it please the Court.

We -- on one point I essentially do not disagree with Mrs. Beasley.

I think juries are in many ways the conscience of the community although I think other organs of government, prosecutors and judges are as well and our whole case rests on what juries and prosecutors and the other agencies of government have done.

What they have done is to refuse to impose the death penalty.

The question then arises, well, why do we not leave them that way.

If they are refusing then why should Court step in.

Why should not it just die of its own way?

The answer to that is the case like Furman versus Georgia.

Where what you have is a regular garden variety, burglary, murder.

Unintended killing, somebody shot through the door, a case submitted on the theory that it was an unintended killing, there are thousands of these.

The jury comes back with death, the defendant is black, the victim is white, it is all the aggravation in the case.

The State which distinguishes between torture and the mere extinguishment of human life cannot see that this case is different from the aggravated cases.

But the jury is allowed in every case to return a death penalty.

There are Georgia figures in this record.

I do not think they are judicially noticeable but they are in this record, 33 people on death row, 27 of them of black, six whites.

The reasons why a juries cannot be permitted go on doing what they have done and slowly, inexorably do away with the death penalty themselves, is that an individual in particular cases there is going to be a regression and depending largely on the color of the defendant and in the ugliness of his person --

Justice William H. Rehnquist: Mr. Amsterdam --

Mr. Amsterdam: And it is that kind of selectiveness which we think that the death penalty forbids.

Now, I believe the lower court cases somewhat differently than Mrs. Beasley does, I would say that the real development in the Eighth Amendment area throughout this century has been very pointedly development in the prison cases which has the Court just recognized in Haines and Kerner.

What has happened there is that the Eighth Amendment has been taken and given a whole new meaning to respond to a new problem and new conditions.

What we have in the capital punish plenary is the exactly the same thing.

And our point, I repeat again with regard to race is not or poverty is not discrimination, we have not proved it.

On these records, it could not be.

What I am saying is to exactly what is happening in capital punishments, the rare arbitrary, usually discriminatory but unprovably discriminatory infliction of a punishment, escapes all other kinds of constitutional control, due process, equal protection and escapes the public pressure that keep legislatures acting decently unless there is something in the constitution that degrades.

Justice William H. Rehnquist: Mr. Amsterdam, you have mentioned a couple of times and I think Mrs. Beasley also mentioned a comparison between the type of statistics that you have used in your brief and the type of statistics that the State has used and you would state in your brief and you would say that, here is -- yours are judicially noticeable whereas you feel the States are not.

I could not find in your brief so perhaps I am in position unfamiliar with it anything other than just the statement to that effect, do you cover in your brief why the jurors are judicially noticeable?

Mr. Amsterdam: No, no.

We do not but I think the basis of it can be fairly simply stated.

The Court -- the concept to judicial notice is essentially that when a writing is put to there in the public domain which people may rebut, which people may study and answer that if a crime is judicially noticeable because its availability for professional criticisms makes it reliable.

Now, when a State takes figures out of the State Department of Correction records, that has never been printed anywhere which was (Inaudible) is un-ascertainable, whose significance is not subject to criticisms, that is not judicially noticeable.

But when you have --

Chief Justice Warren E. Burger: I think your time is up Mr. Amsterdam.

Print this transcript Transcript: 

Argument of Jack Greenberg

Chief Justice Warren E. Burger: We will hear arguments next in 69-5030, Jackson against Georgia.

Mr. Greenberg you may proceed whenever you are ready.

Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.

This case is hereon certiorari to the Supreme Court of Georgia and it raises in another context the questions of the preceding case and that is whether the imposition in carrying out of the death penalty in the case that one convicted of the crime of rape constitutes cruel and unusual punishment in violation of the Eight and Fourteenth Amendment to the United States Constitution.

A petitioner, Lucious Jackson was sentenced to death for the crime of rape by the Superior Court of Chatham county Georgia in 1968.

His conviction was upheld by the State Supreme Court against Eight and Fourteenth Amendment policies.

Petitioner was 21 year old, black escaped convict who has been sentenced for three years apparent to automobile’s theft.

He is out of captivity for a period of three days and while out of captivity he allegedly committed several crimes as well as the rape for which he was convicted.

The State evidence was that he broke into the home of a white housewife, the wife of a physician, threatened her with a pair of scissors, doles $5.00 and some change, engaged in a physical struggle with her, raped her, escaped when the maid arrived and hid in the neighbors garage for several hours till he was found.

The prosecutrix in addition to having been raped, suffered from abrasions and lacerations but no additional injuries appeared.

The petitioner was indigent and represented by court-appointed counsel, apart from pretrial motions asking for appointment of a psychiatrist, a change of venue and a continuance to allow time to prepare the case.

The Defense presented no evidence.

The trial including a separate proceeding held in the morning the determined the petitioner is competent to stand trial, last but one day.

Procuring only the base evidence and the petitioner is a Negro and on this record they sentenced him to death.

The jury acted under Georgia Law, Section 26-1302 which appears in page 1A of our brief which is that -- was at that time, it has been changed slightly.

The crime of rape shall be punished by death unless the jury recommends mercy in which event punishment shall be imprisonment for life.

Provided however the jury in all cases may fix the punishment by imprisonment and labor in the penitentiary for not less than one year or more than twenty years.

In the two cases just argued Akins and Furman, the petitioners urged that the death penalty in cases of homicide constitutes cruel and unusual punishment.

Hereto in this case, we urge that the death penalty in the case of rape constitutes cruel and unusual punishment.

And for a moment, I would like to focus on the word unusual.

Infliction of capital punishment for rape is indeed the most unusual of punishments for any crime in the United States or indeed in the world.

At this point, I am going to speak for a moment too about racial statistics, there have been some questions about racial statistics and statistics that may or may not be judicially noticeable.

All the statistics that I will relate come from National Prisoner Statistics, their publication of the United States Department of Justice.

The figures are so overwhelming that at a minimum if they are not conclusive, they have kept the burden upon the respondents who explained them.

This is not strange in a racial case, in cases involving juries, schools, employment, voting, figures speak at the Fifth Circuits, have another context and Judges listen and sometimes the figures are not persuasive, sometimes they are conclusive.

At a minimum if they are sufficiently persuasive they have kept the burden of explanation upon the other side.

Our opponent just said in their brief and have said in argument with regard to other aspects of statistics in these cases that there many questions of the statistics leave unanswered, for example in a rape case, has a death penalty been inflicted because the defendant is a particularly viscous person.

Was the crime committed by a group of people?

Was a weapon used?

Was an injury inflicted?

Does the victim have a particular reputation for chastity?

Was there a child involved and so forth?

We have attempted to answer these questions in another litigation in the State of Georgia.

Williams against Georgia in which petitions for writ of certiorari is now pending before this Court, The law of the State of Georgia as declared by the Supreme Court of Georgia in the Williams case is, that the explanations are inadmissible, Williams against Georgia might say is purported to 173 Southeast Second, 72.

The explanations of the statistics which we have attempted to put into evidence by testimony and analysis of a representative sample of the rape cases in State of Georgia over a 20 year period, is that it is inadmissible and we would say that the figures that I am about to discuss are probably undoubtedly conclusive on their face but if there are any explanations to be made they should come from the State of Georgia, not from the respondents who have made an effort as to these figures.

The crime of rape is punished capitally in the Southern state only, is or was an exception in the State of Nevada which was punished by death where bodily harm was done, that statute has been invalidated and so it is Southern phenomenon only.

Justice Potter Stewart: How was that statute invalidated?

By the Court or by the --

Mr. Jack Greenberg: By the court.

Justice Potter Stewart: On what basis?

Mr. Jack Greenberg: I believe it was invalidated on the campaign against the U.S. Executive Branch.

It is visited upon black people in the south overwhelmingly, there have been 455 executions for rape.

Since statistics have been kept and of the 445 men put to death, 405 had been black.

At the moment, there are 73 men on death row awaiting execution for the crime of rape.

Of the 73, 62 are black, one is the Mexican, one is an Indian and the race of three is not known to us.

That means that historically since figures were kept and at the present time the execution rate for the crime of rape run approximately at the rate of 90% black defendants put to death were being held on death row to be put to death.

In the State of Georgia, 61 men had been put to death for the crime of rape since statistics were kept.

Of those 61, 58 have been black and the Georgia statistics run somewhat higher at about a rate of 95%.

Now, in the case of Williams against the State of Georgia and in two other cases pending in the State of Georgia, there have been efforts to examine these statistics in considerably more detail.

All this matters are pending in Court in the State of Georgia and Williams case is pending here as a matter of fact.

In the case of Mitchell against Smith published pending in the Court of Caswell County.

The statistics were developed at a very considerable length and it was demonstrated that in cases where a black man raped a white woman, 38% of the defendants were sentenced to death.

In a case where any other racial combination was involved, one half of 1% of the defendants were sentenced to death.

Now, these are the States where it is well-known, I need not elaborate on this where there has been for many years until outlawed by this Court, in other Courts racial segregation in schools and various aspects of public life are required or permitted, these were also the States and I think it is much more appropriate to the point which had Anti-miscegenation laws until they were outlawed by the Loving case, and there is a long footnote in Loving case which detailed which of the States had those laws.

Also with considerable overlap of State which have capital punishment for rape.

Now, in the rest of the world and I think that an inadmissible consideration is taken to account.

Capital punishment for rape is authorized only in South Africa, Malawi and Taiwan.

That is throughout the entire world, certainly across the entire western world which shares our culture, that the entire English speaking world which hears our jurisprudence, throughout the entire United States, throughout the southern part of the United States with the exception of black men, there is slight exception for some small ants and the white ants who suffered death penalty.

Capital punishment for rape is a penalty so rare that I think the word “unusual” is perhaps an understatement of the frequency which it appears difficult to think of a punishment which is more unusual than capital punishment for rape.

It is unusual in -- look at in other points of view, in Ralph against Warden, the case that tried by the United States Court of Appeals for the Fourth Circuit which invalidated capital punishment for rape in certain circumstances.

Judge Butzner sets forth the fact that between 1960 and 1968 there were 190,790 reported cases of rape, by 1971 and 1972, of course the figures are higher.

Yet at that time, there were only 70 men on death row for the crime.

And the disproportion is to say stagnant as though the punishment is cruel and unusual in any sense of those words.

Now, the State of Georgia particularly, the outcome which I have described here, I may not be strange, in fact maybe in entirely it is speculated.

There is a legislative history to the Georgia statute which casts considerable life on its reasons for its enactment and the way it is operated.

Before the Civil War in the State of Georgia there were two sets of statutory penalties for the crime of rape.

If a slave or a free person of color raped a white woman, he was to get the death penalty.

Any other rape was punishable by a term of one to 20 years.

After the Civil War, the statutory scheme which was on the books in the State of Georgia was repealed and the offense would essentially statutory scheme that we have at this point was reenacted to take its place and we have all these statutes set forth verbatim in the appendix at the end of our brief.

And the discretionary death penalty for the crime of rape was enacted into Georgia law and what has happened in the administration of the Statute, this discretionary statute has been essentially what was required under the particular language of the Georgia legislation that existed prior to the Civil War.

Looking at capital punishment in general, as for as the crime of rape and the crime of homicide, we find that while it is authorized for a one purpose or another in most of the States, it is in fact almost never applied except in random, unstandardized way against the poorest, the least educated and disproportionately against racial minority.

The figures can be put together in various ways, it might be said that, it has been said by some counsel this morning that most of the States authorized capital punishment for one crime or another.

Another way of looking at it is that if one takes the past decade, 1962 and takes the State where there have been no executions and going to the past decade, one does not -- one is not confined to the period of time, I mean, judicial stage have been dominating the scripture.

If one takes the past decade, one finds that in 24 States in which there has not been an execution or executions might be permitted.

One finds nine States in which capital punishment has been completely abolished making 33 States or 60% of the -- 66% of the State of the States of Union which means they have exercised or permit capital punishment for any crime and overwhelming number of jurisdictions in the free world including invalid in England, the judicial chair upon the jurisprudence.

Justice Potter Stewart: Mr. Greenberg, there are now as I understand, 41 States which impose capital punishment under one circumstance or another plus the Federal government, that makes 42 to mention here.

Out of those 42, how many -- in how many of those 42 jurisdictions are there now, men awaiting under sentence of death, there are 700, almost 700 people, men and women who are under sentence of death, do you know, in those 42?

Mr. Jack Greenberg: I think we have a table here, how many men under sentence of death or --?

Justice Potter Stewart: No, not how many, I know they are about 700 men and women although.

Mr. Jack Greenberg: Yes, right, yes.

Justice Potter Stewart: Of those -- in how many States --?

Mr. Jack Greenberg: In how many states are there people under sentence of death?

I think we have statistics on that here.

I just do not have the statement in front of me.

There is just so many statistics in all these States.

Justice Potter Stewart: Well, I know but there is (Voice Overlap)

Mr. Jack Greenberg: Someone they have not (Voice Overlap)

Justice Potter Stewart: (Voice Overlap) What you are talking about right now is to it.

Mr. Jack Greenberg: Yes.

Well --

Unknown Speaker: Give me, I can get it later.

Mr. Jack Greenberg: It hadn't spoken of the question of unusualness -- just awarded to about the issue of cruelty, we will submit that if the word means anything at all in plain English and analysis of a constitution of legislative provision while it does not end with the men with -- but must start with the reading of the plain language.

The intentional taking of a life of a prisoner who is held in captivity and has been held there for years, years by any plain understanding of that word “cruel” and I think that the framers of the Bill of Rights recognized that, they may not have thought it was unusual but Mr. Livermore in the debate on the Bill of Rights, in our brief, it is set forth on 7 (d), some of this very little legislative history, spoke about the Cruel and Unusual Clause then it is said that no cruel and unusual punishment is to be inflicted.

It is sometimes necessary to hang a man, villains often deserve whipping and perhaps having their ears cut off but are we in the future to be preventive from inflicting the punishments because they are cruel, I mean if they were recognized to be cruel, whipping and cutting off the ears, would not recognize to be unusual.

Now, it is unusual for any cause and even more unusual for the crime of rape.

As to -- sometimes, the meaning of the term is confined to mode of punishments that is gassing or electrocution or hanging cruel?

After that, there are materials set forth in our brief but if the case is reduced to the issue of whether or not the particular mode of execution is cruel, the minimum ought to be made an evidentiary hearing which had been at point some of these cases have discussed that somewhat at length in the last footnote, in 328.

In some cases and indeed historically we have looked at the question of proportionality or disproportionality, is it excessive to take a man’s life for any crime or for the crime of rape.

And that raises the questions submitted the common view of the death penalty of rape that throughout this country or through out the world.

That is the fitness or the unfitness of the punishment.

And in this sense through the and unusualness we believe merge and we get back to the question particularly in the rape cases of -- is it disproportionate to take a life for this crime when -- so few countries in the world, no other countries in the world and so few States with this punishment for this crime and then confine it essential to the black people and the note here saying that on death rows there are now thirty men on death row in 34 States.

There is one man in Arkansas and 105 in California.

Unknown Speaker: Total of 34?

Mr. Jack Greenberg: 34 states.

Unknown Speaker: We do not know if that includes federal government, I think there are two and is that -- thank you.

Other the one in Arkansas, some to be there, is that -- since the Governor Rockefeller's through --

Mr. Jack Greenberg: I would think that must be --

Chief Justice Warren E. Burger: His amnesty can be, the 20th --

Mr. Jack Greenberg: I think there it's 24, yes.

Chief Justice Warren E. Burger: Those commendations would have been more accurate?

Mr. Jack Greenberg: Yes, I believe so, yes.

And these cases while they involve this with capital punishment, also involve role of the Bill of Rights in our constitutional scheme.

There are faithful cases for racial minorities and not only for the reason for -- disproportion in which capital punishment is inflicted upon black men and Mexican-Americans or particular unit just confined to this case applied with rape.

More than the life of a miserable hand from individuals who are involved.

No matter how these cases come out, if they are lost, there will be only a few unfortunates put to death out of our national population of more than 200 million souls.

The question is what end.

Taking a life in the name of the law has no practical effect than the regular administration of justice.

It is symbolic act perhaps the kind of a ritual sacrifice which held many things but to racial minority, the black people have held something that how much the law values their own individual lives.

It would not be strange if the oppressiveness, the unevenness, the cruelty, the unusualness with which the supreme penalty is inflicted works in effect on how are those minorities use the legal system.

The Bill of Rights of which the Cruel and Unusual Punishments clause to the part has long assured that our legal system is just poor and beneficial to all our citizens.

The purpose of the Bill of Rights, one of which is welding this nation into a people of equal respect for the reasons for the rule of law can be served only we submit by outlawing the barbarity of gassing, hanging and electrocution in the name of the law.

It is suggested that the judgment below should be reversed.

I would like to reserve the balance of my time for rebuttal.

Chief Justice Warren E. Burger: Thank you Mr. Greenberg.

Mrs. Bea1sley?

Argument of Dorothy T. Beasley

Ms Dorothy T. Beasley: Mr. Chief Justice and may it please the Court.

This Court has said in Stein versus New York in 1947 that it would not apply the Fourteenth Amendment to standardize the administration of justice has stagnate local variations and practice.

And in 1959 in Williams versus Oklahoma, it was said neither the Due Process Clause or the Fourteenth Amendment nor anything else in the Federal Constitution requires the State to physically impose any particular penalty for any crime it may define or to impose the same or “proportionate sentences” for separate and independent crime.

That was in 1959.

If the death penalty for the crime of rape is cruel and unusual then I would submit that it is an imposition upon the legislative enactment which has been enacted and has been the law in Georgia since -- before in 1851.

Rape has consistently taken the death penalty in Georgia and just in 1960, the legislature again considered the penalty for rape.

I think it is significant to note that when it did consider the penalty in 1960, it was not whether it should or should not do away with the death penalty for a rape but rather should it leave it to the discretion of the jury to make it in or current sentencing of one year to life or should it be rather one to twenty years or a life and the latter was what went out.

But there was no question either in 1960 as to whether the maximum penalty should be the death penalty or not.

That is the will of the people of Georgia and there has been nothing shown in this case which would indicate that that will should be overborne by a construction of the United States constitution.

The main argument that is made is that the legislative history of the rape statute in Georgia shows that it must be based on racial considerations and I would submit that what Mr. Justice Blackmun said in Stevens when he was the Circuit Judge quoting “Brown versus Allen,” a 1953 case is applicable here.

The quotation was former errors cannot invalidate through retrial and I think that is very legitimate here because most of the statistics that are taken by the petitioners brief allegedly show that the only factor which goes to indicate the death penalty for rape in Georgia cases must be rape.

I think that those factors or those statistics are used from a period of time in 1930’s, in 1920’s and 1940’s, 1950’s when perhaps there was racial discrimination.

We do not know.

But the cases are now looked at as to what their circumstances are.

Or how heinous they are in comparison to other rape or the proportion of persons, white or black who commit rape and what in factual circumstances of the cases are.

And I think that they cannot make the presumption which they indicate here that the jury are looking at rape cases in determining that a man should suffer the death penalty in the last analysis because only of his race.

And that is the presumption which the petitioner asked this Court to make, I think there is valid basis for that whatsoever.

Moreover, they do not apply it to the circumstances in this case.

Their argument is based on generality that well, there are so many Negro men who have been executed for rape in Georgia and there are so many Negro men now on death row in Georgia for rape that it must be because they are black.

I think that they have put -- offered no support whatsoever to forward that contention.

Moreover, I point out that among those who are now on death row or really not even on death row, they are kept on a different floor.

We do not have a death row for prisoners until they have a date set.

There are two white men that are now under death penalty for the crime of rape in Georgia and I would question the particulars whether the penalty should be imposed upon them because after all their rape could not possibly have been involved.

So, is it not cruel and unusual punishment to them too?

It could not be if the consideration is only one of rape.

Moreover, if it is a racial consideration, the contention is again a lack of equal protection perhaps, the discrimination that has the reading.

But that is not shown, it is not proved, they do not meet the quality of proof that requires to make a prima facie case of discrimination.

Secondly, it would be instead an indictment against the jury system.

It would be a presumption that the jurors are using a prejudice against rape to indicate what would be an appropriate penalty.

That again does not fit to the death penalty per se but rather attacks the jury system and I think there is no basis whatsoever dealing in this case or in this brief by the petitioner to show that that would be so.

I would like to point out also that he makes no claim of discrimination in this case.

There certainly would be many opportunities to show it.

We have the voir dire in which any indications of prejudice could have been shown.

It was the motion for a new trial and that would have been an absolutely perfect place to show that a penalty was excessive under the circumstances of the case.

The usual practice, to file a motion for a new trial to indicate that the penalty or the verdict was unjust or that it lacked equity so that the Court would have an opportunity to look at the penalty and see where in circumstances of the case which was before it.

It was a very lively before it not on an appellate record.

The Court itself could measure whether the penalty was excessive in that particular case.

Unknown Speaker: Could that be done in Georgia?

Ms Dorothy T. Beasley: Yes sir and it is a usual practice.

Unknown Speaker: In other words the jury comes in with a binding of the conviction and then imposing a sentence for 19 years in penitentiary, counsel of the defendant can say that it is way too much under the circumstances that the defendants consider -- (Voice Overlap)

Ms Dorothy T. Beasley: Yes.

Under that we call as --

Unknown Speaker: Does the Court have the power to change the verdict, does he?

Ms Dorothy T. Beasley: That would be under what we call the general grounds for a motion for a new trial which should be that either the verdict was not supported by the evidence or the verdict was contrary to the evidence --

Unknown Speaker: I am talking about the sentence, I thought you were --

Ms Dorothy T. Beasley: Yes, but, well the verdict of course should be, both the finding of guilt and the sentence and that it was unjust or without equity.

Unknown Speaker: Does the trial judge have power to change it or only to grant a new trial?

Ms Dorothy T. Beasley: He would have to grant a new trial in that circumstance and also a question would go upon in appeal in a such a situation, the same.

Unknown Speaker: But the jury’s -- the sentenced imposed by the jury is final so far as that the sentence.

The trial judge does not have power, does he?

If the tort has to be changed the sentence, is that a fact?

Ms Dorothy T. Beasley: That is right.

In this -- that is correct.

That is the province of the jury and of course, the statute was written at the penalty for rape would be death unless it was recommended by the jury that it would be like or that it would be one to twenty.

Unknown Speaker: Or I thought alternatively could be for one to twenty years in penitentiary.

Ms Dorothy T. Beasley: Or life, it would be the second alternative.

Unknown Speaker: As I understand Georgia, is this and you tell me if I am wrong, if the jury finds some defendant is guilty of rape, it can impose, a sentence of imprisonment anywhere from one to twenty years in the penitentiary or it can impose a death sentence or it can impose a sentence of life.

Ms Dorothy T. Beasley: That is right.

Unknown Speaker: Is that right?

Ms Dorothy T. Beasley: That is right but it starts off --

Unknown Speaker: Nothing between 20 years and life?

Ms Dorothy T. Beasley: No, that was the question that arose in the legislature in 1960.

Unknown Speaker: That is what I thought in 1960.

Ms Dorothy T. Beasley: Right.

Moreover, that not only was the question raised in 1960 but we had a complete criminal code revision in 1968, so that the question of penalties and the appropriateness of penalties will be then taken up by a special criminal code commission which was reported to the legislature and of course penalty for each of the crime was considered by that commission, so that there was a reflection certainly of the will of the people in that instance.

I think that you would have to also presume if you agree with the presumption that race is included that the juries have some kind of conspiracy.

Again, Negro races for it to be consistent for that reason only but I think petitioner show no dissimilarity between those cases which was the only factor being raised, show that it was that factor which made him to go to the penalty and again I would say that that would not go to the invalidation of the penalty but as per se but rather to the invalidation of the county in a particular case and that there is no evidence whatsoever in this case which was 1958, when Witherspoon was applied and certainly they would offend enough to show any jury discrimination in the State.

Petitioner says and by the way one of the white men on the death penalty in Georgia proposed, made a proposition that the penalty of death was discriminatorily imposed upon him because he was a white man and only three out of 66 white men had been executed for rape.

So that -- it just goes the other way too, it just depends upon you want to look at it and pre-sentence, the question was upheld.

Unknown Speaker: I understood Mr. Greenberg’s argument on this branch of the case to be directed primarily to the submission that this is a highly unusual punishment.

Highly unusual with that -- in that after all was the grant of certiorari was in these cases.

We do not have here before us any protection plan.

Ms Dorothy T. Beasley: That is right.

Unknown Speaker: But whether or not this is a cruel and unusual punishment in his argument in this branch of the cases was directed as I understood it to submit into the Court and what an unusual punishment so rarely imposed, it would impose on an identifiable fraction of the defendant.

Ms Dorothy T. Beasley: I think his argument with regards to it being unusual is that, it is unusual because most of the nations of the world or most of the States in the country do not impose it for race but I think that it has to take into consideration what do they impose?

If they imposed life imprisonment, that in itself is a very severe penalty and it is a distinction between life imprisonment and death so great that the death penalty prosecutes a grossly disproportionate penalty for the crime of rape, is rape -- you have to look at the nature of the crime and I think that is one of the great fallacies in the argument that had been presented by the petitions in this case.

They look only at the criminal, they do not look at the totality, at society too and I think that Mr. Justice Cardozo in Florida versus Massachusetts pointed this out, very clearly he said but justice so to the accused is due to the accuser also.

The concept of fairness was not restrained.

It is narrowed to a (Inaudible).

We ought to keep the balance and I think that that exactly is the answer to the question of whether it is excessive in these cases.

That --

Justice Thurgood Marshall: Under the State provides that death, I mean, provides execution?

Ms Dorothy T. Beasley: I do not know Mr. Justice Marshall.

Justice Thurgood Marshall: (Inaudible).

Ms Dorothy T. Beasley: That is true.

Justice Thurgood Marshall: It is true there are others too.

Ms Dorothy T. Beasley: I am sure there are others but I do not know how many there are and those that have -- there has been other States that had the death penalty for rape, that have changed it so that they did not regret through anything, a great deal of lesson I believe.

And I do not think that petitioners lay out a case and that is grossly disproportionate with the county particularly to the crime, particularly when we take into consideration and I think you must take into consideration the severity of the crime.

Nobody has made a point that armed robbery should not be a capital crime but there the thing is overweight.

It is done but whereas a rape is lot -- it leaves a lasting impression on a woman and it certainly is a very severe and very (Inaudible) crime.

It is one that does not arrive, if someone lost property but it is invasion of something very, very personal and it is a completely over forbearing of another person’s will and an invasion of someone’s body and I think that when you look at the nature of the crime itself, I think that you could not say that it is grossly disproportionate to provide that kind of a penalty where that thing is a crime.

Justice Thurgood Marshall: What if you shoot a man and make a vegetable out of him, you cannot kill it?

Ms Dorothy T. Beasley: Not at all, I think --

Justice Thurgood Marshall: It is completely emphasized that they did it, he is out of his mind and anything out of the standing?

Ms Dorothy T. Beasley: If he is just shot, that is threat.

Justice Thurgood Marshall: You just cannot have hang him.

Ms Dorothy T. Beasley: That is right but that that fact does not make any less severe to the crime of rape and that the is the question if the only one that we are measuring now as to whether the penalty in this case was --

Justice Thurgood Marshall: I think our problem is to get to the Equal Protection clause.

Ms Dorothy T. Beasley: If there was a lots of Equal Protection then of course that would have to be shown and if there was lack of Equal Protection that goes to that argument and does not anything to do with the abstract penalty itself.

Unknown Speaker: What percentage of defendants who are convicted of rape are given the death penalty in Georgia?

Ms Dorothy T. Beasley: Mr. Justice, well I do not know what the percentage would be.

Unknown Speaker: Let us assume it was 1 in a hundred, let us just assume, let us just assume that it was 1 in a hundred rapist, convicted rapist who got the death penalty.

I am not saying those are the figures but let us assume that.

Ms Dorothy T. Beasley: If that were true then I think we would have to look at the circumstances of the crime.

Rape is --

Unknown Speaker: Well, let us assume, let us think a further assumption that in all the circumstances of all hundred cases were identical?

Ms Dorothy T. Beasley: That still leaves it up to the jury under our system.

Unknown Speaker: Well, I know it does but would say then that the infliction of the death penalty was unusual?

Ms Dorothy T. Beasley: I think not.

It would depend on what the other punishments were.

I think it were if the other punishments that were given were a term of 20 years then perhaps the death penalty would be unusual for that one case.

But if --

Unknown Speaker: Let us make that assumption that everyone else were given 20 years, I am not talking Equal Protection, I am just talking about whether imposition of death penalty is unusual.

Ms Dorothy T. Beasley: It may very well be, if there was only one out of a hundred and that was consistent through our history.

Unknown Speaker: Why would that be, why would you deem that unusual?

Ms Dorothy T. Beasley: Because it was so rare that it never came up except once.

Unknown Speaker: But what is the -- would it not --

Ms Dorothy T. Beasley: But again I would say that that would not make it constitutionally unusual, cruel and unusual because again it would be within the legislative boundaries that were set for that punishment.

Unknown Speaker: So you would say no matter how rare, no matter how rare the imposition of the death penalty is, the State has the power to impose it.

Ms Dorothy T. Beasley: Yes, so long as Due Process is accorded.

Unknown Speaker: Well, those are substantive process and the sentence could be too apparent.

Ms Dorothy T. Beasley: Yes sir.

Then I think it would not be constitutionally cruel and unusual punishment.

Unknown Speaker: Do you give any simple content of cruel and unusual punishment?

Ms Dorothy T. Beasley: Yes, I think it has a different meaning.

It indicates pain rather than how often a particular punishment is imposed that the context in which cruel and unusual one, indicating lingering death for example or torture.

Unknown Speaker: But what about management?

Ms Dorothy T. Beasley: Since that is not used at all, it would be unusual.

Unknown Speaker: If it were used in one set of a hundred, the State would have the stand.

It would have the power to do it?

Ms Dorothy T. Beasley: I am not sure whether it would or not.

The Fourteenth Amendment says that the State may not because a question of life, liberty or property without due process of law which means to me that it may deprive him with due process of law -- of life, or a living or a property and banishment would not be included.

As it would not be an acceptable form of punishment in the context of our system of justice.

Unknown Speaker: So you are --

Ms Dorothy T. Beasley: That type, it would be a type of punishment that is outside of our reach.

Unknown Speaker: So your answer to the rarity of the imposition of capital punishment, to rape is first but even if it is very rare, the State has the power to retain it?

Ms Dorothy T. Beasley: Yes indeed.

Unknown Speaker: And is there -- do you have another level to your argument secondly what?

Ms Dorothy T. Beasley: I am not sure there is a second.

Unknown Speaker: Well, that is what I wonder, there is not, is it not?

Ms Dorothy T. Beasley: If the State has the power to retain it then it may be obtained.

Unknown Speaker: Well, I take it, do you say that it is rare also except Georgia.

Ms Dorothy T. Beasley: I that is correct.

Oh!

Yes sir.

Indeed, I do not think that it is rare because they do have a number of persons like do not at the moment have the exact reform but is in our brief.

Unknown Speaker: Is it unidentifiable?

Is not that kind of information available in Georgia, out of so many convictions for rape, how many of them in the death penalty?

Ms Dorothy T. Beasley: No.

No we do not -- I do not have the information but we do have in our brief the number of those convictions.

Unknown Speaker: I thought your opponent purported you would give us the number of death penalties imposed in rape cases.

Ms Dorothy T. Beasley: I think that was in southeastern basis or on the national basis but I have not seen the figure on Georgia itself, State by State.

Unknown Speaker: Well, he purported you would give us the figure on Georgia as well?

Ms Dorothy T. Beasley: I do not recall him doing so, if he did, I would like to know what it is.

But I do not expect that there has been a recent figure and of course that would only be a recent figure that would show how unusual it would be in terms of this case.

Unknown Speaker: But even if it were one in a hundred, only one in a hundred, you would say that they would have the power to impose it.

Ms Dorothy T. Beasley: Yes indeed.

Unknown Speaker: I kind of understood you to say that there was -- you did have a second string to your constitutional argument unless if I have misunderstood you and I did not respond to the question just now, my Brother White, I thought you have told him that unusual did not as a constitutional matter within the phrase used in the Eight Amendment did not mean simply grant.

And you said that yes it would be if it were only one in a thousand that would be the extraordinary rarity.

That did not mean that was unusual within the meaning of the Eight Amendment.

And I gather that you meant that that word in the Eighth Amendment meant something other than just rare, that it meant something like some sort of an exotic course off beat sort of method of punishment and used and --

Ms Dorothy T. Beasley: I think it does.

Unknown Speaker: Banishment, I thought you would get a second string, you used both.

Ms Dorothy T. Beasley: I think it would be --

Unknown Speaker: And did I misunderstand you?

Ms Dorothy T. Beasley: No, I think indeed that is exactly what It means because we thought in both the Fifth and the Fourteenth Amendment of taking life, and taking property and taking liberty, which of course imprisonment.

But we do not talk about anything else.

So it implies the limitation of illustrating from the defense of our system of criminal justice and other things like torture or banishment would be outside of it.

In most instances but by the same token the things that are within the deprivations of life or liberty or property would not be unusual unless of course it was never used for that particular crime.

For example, if you use the death penalty for larceny and only one state used it that might be unusual because it was not a common law, well it was.

But that is not a good example.

But I think you see what I mean the usefulness of the three types of penalty was taken for granted and was certainly even more than that would put right into the constitution.

Unknown Speaker: Three types, you mean deprivation of life –

Ms Dorothy T. Beasley: Life.

Unknown Speaker: Deprivation of property, deprivation of liberty?

Ms Dorothy T. Beasley: Liberty.

Right.

And here we are talking about deprivation of life and then it becomes only a matter of degree.

The petitioners here say that its excessive for rape although they do go that further and say not only is it excessive but the only reason that they are imposing it in itself is because of rape.

But I do not think that is the statistics.

Certainly, the statistics don't show that.

There maybe of some indication that more Negroes have imposed upon them the death penalty but you again would have to look at the facts of the crime involved to see whether it was excessive and he has made no indication here, has made no claim and no allegations that it was excessive in this case but only if excessive in that sentence.

Unknown Speaker: Well, the excessive in this case and in all cases?

Ms Dorothy T. Beasley: It is an abstract principle, that is right.

But it does not go as so far as to say well if it is not excessive in all cases then it is excessive in this one.

And I think it would reach and I tihnk it would show that it was.

Justice Thurgood Marshall: What would you be -- your answer to the petition in Georgia shows that the only people under the history of Georgia ever given the death penalty in rape or in Mexicans where Mexicans (Inaudible) would your argument be the same?

Ms Dorothy T. Beasley: If that were true I would say that we would again have to look at the circumstances of the crime that if he could show, make out what this Court in terms of prima facie case of discriminations in sentencing, then of course it would be on an individual case basis, the penalty would be invalid and if as a result, no jury convicted or sentenced to white man or no jury sentenced to black man again for the crime of rape.

Justice Thurgood Marshall: Oh!

My answer is this that no jury has ever sentenced any white man with rape, and every Negroes convicted rape has been sentenced to death, you would have any problem with that.

Ms Dorothy T. Beasley: That probably would be a prima facie case.

Justice Thurgood Marshall: That is not this case, does it not?

Ms Dorothy T. Beasley: That is not this case and moreover it has nothing to do with whether the death penalty is cruel and unusual punishment.

I think in all of this, I mentioned that just a moment before that we have to look also at the crime and not only at the criminal and it was said in the recent case of State versus (Inaudible) in New Jersey in 1971, I think it was pertinent.

The first right of the individuals to be protected from attack, that is where we have government as the preambles of the federal constitutional plainly said, in the words of Chicago versus Sturges a 1911 United States Supreme Court case primarily governments exists for the maintenance of social order.

Hence it is that the obligation of the government to protect life, liberty and property against the conduct of the indifferent, the careless and the evil minded maybe regarded as long at the very foundation of the social compact.

The Bill of Rights was not intended to be neither a primary mission.

This is not to belittle the inestimable rights that is consecrated but rather to say that those rights may not be related to speech.

The very reason of government itself.

Government in these cases has determined that rape and murder under the circumstances of these cases.

There, the death penalty as the maximum and we maintain that they should be retained as penalty, thank you.

Chief Justice Warren E. Burger: Thank you, Beasley.

Mr. Greenberg?

Rebuttal of Jack Greenberg

Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.

Counsel for respondent has conceded that of the 61 persons put to death for the crime of rape, all 61 had been black then there would be what you call a prima facie case that there was some sort of specific racial incidents to the penalty.

Well, the facts are it is 58 out of 61 and I submit that is different but it is just de minimus.

Chief Justice Warren E. Burger: Mr. Greenberg, did she not add to that?

I should follow her to say that would make a prima facie case out of the Fourteenth Amendment, perhaps.

Mr. Jack Greenberg: Yes, I was about to come to that that would make a prima facie case under the Fourteenth Amendment.

That is correct.

Now we are –

Chief Justice Warren E. Burger: But not up here.

Mr. Jack Greenberg: We are here under the Cruel and Unusual Punishment Clause of the constitution, not the Equal Protection Clause in which all the questions that might arise on Equal Protection case as to explanation we would submit do not arise when the only issue is, is it unusual, not why is it unusual, how is it unusual, what are the possible explanations and so forth.

Here, it is not unusual.

Chief Justice Warren E. Burger: Well, do you suggest Mr. Greenberg on its terminology, I am little puzzled by, could any of the argument, do you consider that punishment is unusual simply because it is infrequent, is it?

The term in the constitution is synonymous with the frequency or infrequency?

Mr. Jack Greenberg: Well I won't say that is exclusively the meaning, the terms have been used in a variety of ways but one meaning certainly is frequency or rarity on this case.

I would say yes that if a death penalty for rape is something that is, you know, almost never used, then it is extremely unusual and we would submit would be under doubt that it is cruel.

Chief Justice Warren E. Burger: But historically it has been used.

Mr. Jack Greenberg: Yes.

But nowadays almost not at all, either -- I mean, it is confined to a part of the country, to a part of the population of that part of the country in a world in which it is totally non-existent with very rare of a sentence that is the meaning of unusual.

Chief Justice Warren E. Burger: Do you have the figures on Georgia Mr. Greenberg.

Mr. Jack Greenberg: Yes.

I have some figures.

Chief Justice Warren E. Burger: As to how many people have been convicted of rape?

Mr. Jack Greenberg: The only Georgia figures we have been able to find are in, I might say, are set forth in our brief in the Akins case on page 9f, they are not comprehensive.

Chief Justice Warren E. Burger: Well, it is – of course 61 people, and everyone convicted of rape in Georgia, that would not be very unusual about it about –

Mr. Jack Greenberg: That is right.

Chief Justice Warren E. Burger: That is about 61 cases.

Mr. Jack Greenberg: Right.

Chief Justice Warren E. Burger: So what is the current –-

Mr. Jack Greenberg: Well, we have figured only, we have been able to find figures only from July 1964 to December 31,1968. during that period of time there were 299 commitments for the crime of rape, now that does not include for example probation, sentences and the variety of other things but 299 commitments of which 8 men was sentenced to death but the large of those eight men obviously now only obviously were not taken.

It should be – none of them actually were taking the figure with circumstances stage of that period of time.

That and the citations to all available, that are on page 9f of the brief in paragraph 3.

Now, as to all the possible explanations, why it turns out to be 58 out of 61, respondent says that the circumstances of the crime are to be considered.

The Georgia Courts will not contemplate that evidence, they will not consider that evidence.

There has been an effort to introduce that kind of evidence into the Courts of the State of Georgia.

Unknown Speaker: In what kind Mr. Greenberg?

Mr. Jack Greenberg: Well, we conducted a very extensive study of capital punishment of it as 20 years in most of the southern States including the State of Georgia and every possible factor that could occur to human imagination that might affect a juror in coming to over crucial penalty was putting to the study of every single record in all of these states.

They were all examined.

The viciousness of the crime whether a group of –

Unknown Speaker: I understand that.

Mr. Jack Greenberg: Or something.

This was subject to the statistical analysis and an effort was made to introduce it in number of Georgia cases including Williams which is now pending here and one of the issues in the Williams case now pending here is the fact that Georgia Courts would permit a specific evidence.

Justice Potter Stewart: But may I Miss. Beasley on the other hand had told us and as I understood it that in any given case, not only the trial Courts but the reviewing court will consider a claim that the punishment imposed in that case was inequitable as the words you use.

I do not know that is the jurisprudence in Georgia and if it was found that it was, it will examine a new trial.

Mr. Jack Greenberg: Well, it would not – but the evidence we are talking about in this case is whether or not the penalty is unconstitutional because it violates the cruel and unusual clause, it is very extensive and I think if with the persuasive evidence which if I might say pending in Courts in the State of Georgia would show that 38% of Black man convicted of raping white woman are sentence to death.

One half of 1% of all other racial combination.

Justice Potter Stewart: My Question is only processed by what I am sure you would concede that the crime of rape covers a very wide spectrum.

It can go from extremely as sort of a crime.

To the other extreme involving would say as adult woman or a former boyfriend, something like that and at the heinous extreme it does generally involve a stranger.

Mr. Jack Greenberg: On the matter of evidence that goes to the penalty, in Georgia’s single verdict procedure, that sort of evidence as we understand the Georgia law is not admissible.

What maybe considered out a motion for new trial is the evidence in the case generally alleged.

Justice Potter Stewart: Circumstances of that particular case.

Mr. Jack Greenberg: Circumstances of that particular case but other evidence might possibly go defensively such as let us say the mental stage of the defendant in the case.

That is not admissible under Georgia law of this case.

Justice Thurgood Marshall: If you decide to get it in this case?

Mr. Jack Greenberg: No, there was no evidence put on in this case.

There was an effort to get a --

Justice Thurgood Marshall: It was not presented.

Mr. Jack Greenberg: Well, I would say, yes we were in this sense.

Justice Thurgood Marshall: Do you distinguish?

Mr. Jack Greenberg: Mr. Justice Marshall what occurred in this case, there was an application to the Court to reform to the psychiatrist to examine this defendant and testify after the question of his sanity.

The appointment of Psychiatrist was denied.

The Court appointed a psychiatrist solely under question of this competence for the trial.

Justice Thurgood Marshall: Last thing I was talking about was Psychiatrist.

I was talking about these figures.

Mr. Jack Greenberg: We did not tended these figures in this case.

The Georgia Courts upheld it there and it is admissible in Georgia in other two or cases that are now pending.

Justice William H. Rehnquist: But you do not have no ruling under in this case.

Mr. Jack Greenberg: We have no ruling in this case.

There is no doubt however that this very exhaustive, time consuming and expensive examination of Georgia practice.

If our contentions were upheld in any case, it would be applicable to all similar case.

But there was nothing pending in the States.

Chief Justice Warren E. Burger: Thank you Mr. Greenberg, thank you Mrs. Beasley.

The case is submitted.