PROFFITT v. FLORIDA

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Argument of Clinton A. Curtis

Chief Justice Warren E. Burger: We will hear arguments next in 5706, Proffitt against Florida.

Mr. Curtis, when you are ready.

Mr. Clinton A. Curtis: Thank you Mr. Chief Justice.

May it please the Court.

Court has already heard arguments relating to the discretionary elements and features of the pre and post sentence procedures which are basically the same as those that exist in Florida.

I therefore, limit my remarks to the procedure under the Florida’s post Furman statutes as they relate to the actual structuring of the sentencing procedure itself.

Florida’s Death Penalty Act became Law on the 8th of December of 1972 and since that date, some 70, have been sentence to die, 19 of the sentences have thus far been reviewed.

12 sentences including the petitioners have been affirmed and seven vacated.

Now, I understand there might be one or two more that have been added to the number since this information was obtained approximately 30 days ago but that is as close as I could get.

The statutes of Florida provide for a life sentence upon conviction of a capital felony.

Excuse me.

Unknown Speaker: Seven were vacated, was that in connection with the convictions or --.

Mr. Clinton A. Curtis: Vacated on death sentence.

Unknown Speaker: Just on the sentence?

Mr. Clinton A. Curtis: Yes, sir.

The statutes of Florida, provide that a life sentence will be imposed upon a conviction for a capital felony and consisting of not less than 25 years without the hope of parole, and this capital felony is defined as premeditated murder or murder during the commission of eight enumerated felonies and there is another capital felony which is rape of a child 11 years or under.

But, the imposition of the life sentence is mandatory unless the death penalty is determined and imposed pursuant to the New Death Penalty Act.

This Act provides for a bifurcated procedure.

Upon conviction for a capital felony, a sentencing hearing this conducted before the same Trial Jury, in order to obtain advice and advisory recommendation of life or a death sentence.

No reasons need to be given in the verdict returned by the Jury.

It simply is a statement that we the majority have determined to recommend either life or death, and that is basically the form of the verdicts giving to the Judge.

The Trial Judge may not withstanding the Juries recommendation and/or either a sentence of life or death, if he imposes death, he is required to file written findings in support of his sentence.

The statute requires review of all death sentences by the Supreme Court of Florida, eight aggravating and seven mitigating circumstances is set forth from the statute for the consideration of the sentencer.

The Jury for advisory purposes, the Trial Judge for sentencing purposes.

On the 26th of July of 1973, the Supreme Court of Florida held this particular act constitutional, acknowledging that there was discretion in the sentencing procedure but this discretion possible and necessary was reasonable and controlled and thereby, complied with the test of Furman versus Georgia.

The petitioner was charged in July of 1973 and was convicted in March of 1974, a premeditated murder of Joel Medgebow by stabbing.

The Jury recommended and the Trial Judge imposed a death sentence.

The petitioners claimed that statute was unconstitutional and was rejected on the authority of the early decision on State versus Dixon.

We submit that death sentences imposed under the statute are arbitrary, because they may be and have been based on non-statutory enumerated factors, and at the uncontrolled discretion of the sentencer is permitted and required to interpret or valuate and apply the statutory circumstances.

Now, in the petitioners case, the Trial Judge found and set forth in his written findings four aggravating circumstances.

One of these circumstances was that the defendant had the propensity to commit the crime for which he was charged and that he was a danger and menace to society.

This is not one of the statutory enumerated aggravating circumstances.

By affirming this death sentence, the Florida Supreme Court approved the concept, Chief Justice.

Chief Justice Warren E. Burger: Is that known?

Mr. Clinton A. Curtis: By the affirmance itself, and in an earlier case in Sawyer versus State, the defendant was convicted of murder and robbery and the Supreme Court of Florida affirmed the sentencers, the Trial Judge sentence of death.

Citing among other things that the defendant had certain -- excuse me, sir

Chief Justice Warren E. Burger: Be specific that you said the Jury made this --

Mr. Clinton A. Curtis: If I said Jury, I intended Judge

Chief Justice Warren E. Burger: When you did say it but I got an impression.

It is not the Jury you are talking about now?

This is—.

Mr. Clinton A. Curtis: That is correct.

You see, all the Jury does under this system is to return a verdict of recommendation.

Then the Trial Judge in the event and only in the event, he determines to impose a death sentence, he prepares a series of written findings in support of death sentence.

I must point out, I think it is only fair to do so that in State versus Dixon, there was a statement to the effect that Supreme Court would urge the lower Courts to file written findings in the event that they determined to impose life sentences also.

But, I found as a matter of practice, this is not done.

But in any event, returning to the point your Honor in this respect.

Unknown Speaker: Mr. Curtis, while you were interrupted there, there were four aggravating circumstances here.

One of which was a non-statutory, is it not?

Were the other three found by the Trial Judge be statutory?

Mr. Clinton A. Curtis: There were three statutory aggravating circumstances, and one non-statutory.

The non-statutory is one that I have related to you.

Unknown Speaker: But why was not the fourth, simply superfluous and I do not quite understand the course of argument there?

Mr. Clinton A. Curtis: Well, the course of the argument is this.

If the Trial Judge felt that the three aggravating circumstances were sufficient to support his position that the death sentence should have been imposed.

Why was it necessary for him to come forward and come with a non-statutory aggravating circumstance and this will become more relevant as we get into the discussion of sufficiency which is this weighing process that Florida requires, and it is some what different than any of the other statute that had been thus far presented.

Chief Justice Warren E. Burger: (inaudible) for the extra one articulated?

Mr. Clinton A. Curtis: In the written findings of the Trial Judge --

Chief Justice Warren E. Burger: Your position is that now, the reviewing Court then and now had no way of knowing whether that might have been the dominant one or the decisive one, is that your point?

Mr. Clinton A. Curtis: I think that is a fair assessment of it Your Honor, yes.

Now, as I said Sawyer versus State stands for the same proposition, where there were additional non aggravating, non statutory aggravating circumstances cited and with approval when the Trial Judge cited as a matter fact, the Supreme Court of Florida took these facts and placed them in a notion or in the form of aggravating circumstances, and those facts were pending robbery charges against the defendant.

The defendants demeanor and conduct during the course of a Trial as well as defendants alleged incurable drug habit.

Now, the Supreme Court has also approved and relied on a non statutory mitigating circumstances in the form of a defendants or record, emotional strain of the defendant as well as sentences that have been administered to accomplices or co-defendants which are less than death.

Now, we advance to the Court, the notion that since the sentencer may relay on statutory factors, of course his discretion can not be controlled by the statute.

Now, to the point of weighing, the statute permits the sentences are through evaluation of the enumerated circumstances.

Now, according to the statute, the sentencer determines whether sufficient aggravating, or mitigating circumstances exist, and whether the mitigating outweigh the aggravating circumstances.

Nowhere in the statute, do we have a definition of the term sufficient.

The weight or relative significance of a circumstance or a combination there is likewise rather not in the statute.

Well, I told that this, this circumstance has more weight or is entitled to more weight than any other.

In other words, the presence or absence of any said circumstance or combination, does not compel a particular result, this is somewhat different than the Federal Statute where you have aggravating circumstances and if that is found to exist, such and such result will occur and then if a mitigating circumstances to exist, such and such result will recur.

There is no such definition in our statute.

Unknown Speaker: A pre Furman did the Jury sentence?

Mr. Clinton A. Curtis: Yes.

Unknown Speaker: What was the instruction to the Jury then about sentencing, do you remember?

Mr. Clinton A. Curtis: Yes

Unknown Speaker: What was it?

Mr. Clinton A. Curtis: It was basically, the statute provided that in the event of conviction; death would follow unless the Jury recommended mercy and the Judge had absolutely had nothing to do with.

Unknown Speaker: And what did they say to the Jury about mercy, anything?

Mr. Clinton A. Curtis: That was last day --

Unknown Speaker: Within your discretion or what?

Mr. Clinton A. Curtis: Yes.

Unknown Speaker: Did they expressly say that?

Mr. Clinton A. Curtis: I am not, I can not answer quite that way because vagueness has been sometime.

But I would have to say that it was left to their determination.

Chief Justice Warren E. Burger: (Inaudible) assuming that the Judge in Furman that discretion?

Mr. Clinton A. Curtis: Yes, oh yes.

But, as to whether or not there was expanded instruction on it, yes, I really do not recall it your Honor.

Now, the Supreme Court has stated that its responsibility in this overall process and mind you, the statute is not define what the Supreme Court’s responsibility is but the Supreme Court is defined that it is to review a death sentence case in the light of facts presented in evidence, as well as other decisions, and determine whether or not the sentence of death is too great.

And, no opinion that has been rendered by the Supreme Court of Florida, thus far affirming a death sentence explains why, a less harsh penalty would not be sufficient, nor does any opinion compare a death sentence case with the many life sentences imposed for basically the same or substantially the same type of conduct.

Such a comparative review is impossible.

It is frankly impossible since the many life sentences are reviewed if at all not by the Supreme Court of Florida but by the District Courts of Appeal.

Unknown Speaker: Does that death sentence go directly to the Supreme Court of Florida?

Mr. Clinton A. Curtis: Yes.

Chief Justice Warren E. Burger: And as of right?

Mr. Clinton A. Curtis: As of statutory direction, it goes all death sentences whether, I assume, the defendant wishes or not.

It will be automatically reviewed by the Supreme Court of Florida.

But in the situations where life sentences were imposed for Capital Felonies, if they were reviewed and I say, if at all they go to the District Courts of Appeal.

Unknown Speaker: (Inaudible) was there any possibility of afterwards going to the Supreme Court?

Mr. Clinton A. Curtis: Only in the event of a constitutional question or you have --.

Unknown Speaker: A certiorari jurisdiction here or roughly so.

Mr. Clinton A. Curtis: That is basically correct.

Unknown Speaker: The Florida Statute prescribed any special standards for review by the Supreme Court of Law

Mr. Clinton A. Curtis: No, it is not.

Unknown Speaker: Comparable to those in Georgia?

Mr. Clinton A. Curtis: None whatsoever.

There is an absence of expression on the statute on that point.

Unknown Speaker: (Inaudible) review?

I understand, I am not --

Mr. Clinton A. Curtis: Well, a customary review, as I said the Supreme Court of Florida has defined its review as something more than just customary, I would say it.

It has taken upon itself not only to review the sufficiency of the evidence or what have you but also, to determine in the -- to take upon itself to a way whether or not, this death sentence is, as they say, too great; and whether a less harsh punishment would be adequate under the circumstances.

Unknown Speaker: Do the questions on the merits go with the review on the sentence?

Mr. Clinton A. Curtis: It is a total review.

Unknown Speaker: Do you know whether and to what extent, the convictions have been upset in cases --

Mr. Clinton A. Curtis: I do not believe that any of seven and as I say it, this is my recollection.

I do not believe any of the seven that were reversed, were reverse because of insufficiency of evidence.

It was directed totally at vacation of the death penalty and I am sure, Attorney General, Shevin will correct me if I am adhering that regard.

As I say a review of the 19 opinions rendered by the Supreme Court reflected, there is no meaningful basis for distinguishing the death sentence cases from the life sentence cases.

That is the seven that have then vacated and I realize we could engage in a discussion that this case means this and that case means that, and this circumstance should be interpreted this way.

But I suggest to the Court that -- we can demonstrate and our brief does discuss just this.

Each aggravating circumstance and each mitigating circumstances, we feel is relevant to a consideration of the statute that lends itself to the vagueness charge.

But to give you an idea, of what the Supreme Court of Florida thinks of its procedure and how it assesses this particular statute, I invite the Court’s to page 86 of our brief and I would only quote only three sentences from that quoted material, and this is from the Alvord case: “The law does not require the capital punishment be imposed in every conviction in which they particular state, the facts occur.

Certain factual situations may warrant the infliction of the capital punishment but nevertheless, would not prevent either the Trial Jury, the Trial Judge or this Court from exercising reasoned judgment and reducing the sentence to life imprisonment.

Such an exercise of mercy on behalf of the defendant in one case does not prevent the imposition of death by capital punishment in the other case.

Without legislative formulation of the circumstances or combination, there are which warrants executing or not executing a defendant the decision to execute is nothing more than the function of the sentencer.”

We respectfully submit that the Florida Death Penalty Act permits the arbitrary imposition of the death penalty and is therefore violated the Eight and Fourteenth Amendments of the Constitution.

Thank you.

Unknown Speaker: May I just ask one question.

Would you say that statute will be less vulnerable if it did not have any appellate review?

Mr. Clinton A. Curtis: Less vulnerable if it did not have any --

Unknown Speaker: As I understand you, you are pointing out that the Supreme Court is without a reasoned basis granted mercy in seven out of nineteen cases when some of the other 12 are really comparable--

Mr. Clinton A. Curtis: (Voice overlap).

Excuse me for interrupting.

Unknown Speaker: I was just wondering if your argument was death disparity could be removed by removing a appellant review entirely?

Mr. Clinton A. Curtis: No, I do not think the removal of review is what we are directing ourselves to, it is not having meaningful standards to guide that review, so that everyone knows where they are.

In other words, if they are going before the Supreme Court of Florida on this issue, you are going to be talking about this, this, and this and it is going to be fit within a frame work.

So that, if a particular decision is affirmed or reversed, it is affirmed or reversed because of a clear reason and that is the problem we have with the review that is we have here.

There is no standards really that truly guide the sentencer and there is an absence standards to guide the Supreme Court of Florida in its review.

So, I am not urging that we can make this statute good by eliminating review, quite the contrary.

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

Chief Justice Warren E. Burger: Very well.

Mr. Attorney General.

Argument of Robert L. Shevin

Mr. Robert L. Shevin: Thank you.

Mr. Chief Justice, may it please the Court.

I would like to comment on about five different areas in the time that I have.

One is to look at the death penalty itself, secondly, the Eight Amendment question I know you have heard a lot on it today but I do want to comment on that question per se.

I want to comment on Mr. Amsterdam’s attack on the system because I think that is pivotal and I do not care what he calls it.

What he is really doing is attacking the whole system.

He is really talking about Due Process regardless whether he calls it Eight Amendment or not.

Because he says he is concern about the fairness of the system and that is due process, it is nothing else.

I would like to talk about our statute; I would like to talk about our case.

Counsel quoted just before he sat down from the Alford case, the Alford or the Alvord case, both of them are in this Court.

The Alvord case involve in upholding of the death sentence by the Florida Supreme Court.

That case involved a mass murder, a man who wiped out an entire family, he raped and then killed a grandmother, a mother and a daughter.

So, I do not think that case speaks to the issue of any discrimination or arbitrariness in the application of the death sentence.

Mr. Justice Stewart, you inquired on each of the statutes as to whether they provided full appellate review.

The Florida statute does provide full appellate review.

The Florida statute, under Florida Law, the Supreme Court can reverse for insufficient evidence, the Supreme Court has the inherent power to reduce a charge from first degree murder to second degree murder to even man slaughter.

So, the Supreme Court of Florida has that authority, the Supreme Court of Florida also reviews the sentence.

Now, this may be the only case that it is before you in which the sentence is specifically reviewed by the Supreme Court and has been demonstrated in some 19 cases.

They have upheld the death penalty in 13 cases and changed it from death to life in six cases, hardly an arbitrary selectivity.

When one third of those has resulted in a bringing down of the penalty from death to life.

Also, the Supreme Court is required to read the entire record whether or not there is error alleged and all of this we contend is in response to Furman.

It was in response to Furman that we created a bifurcated system, that we created standards for the Jury on the basis of aggravating and mitigating circumstances and that we created appellate review of the sentence.

Mr. Amsterdam says, death is different.

We recognized death as different that is why we provided all these safeguards in death penalty cases, because it is different.

And, I suggest to you that he does not want us to treat it different, he wants a different result, not a matter of treatment, a matter of result.

I would also point out that our bifurcated hearing goes to aggravation and mitigation and it does involve not just the facts of the murders itself but the unique qualities of the defendant.

All of the factors concerning each particular defendant and in each of this cases and I intend to review them, there is a reason why the Supreme Court changed it from death to life, either it had to do family squabble or it affected the age of the defendant or it involved a case in which the defendant had no prior criminal record.

With regard to the question of how many cases we had in Florida, Mr. Justice White asked that question several times today.

In Florida, we have had in the past three years under the new death penalty law, some 239 cases that have been tried that that could result either in death or life, 239 capital cases.

Of those 239.

Unknown Speaker: 239 convictions?

Rebuttal of Clinton A. Curtis

Mr. Clinton A. Curtis: 239 conviction.

Yes, sir.

Of those 239, 64 are on death row, 64 accounts for about 29%.

Again, hardly arbitrary selectivity, by the same token, Mr. Justice Burger, it is hardly a rubber stamp, it is not a rubber stamp when we have at least, we have 29% of the cases resulting in death.

It is not a rubber stamp when the Supreme Court reverses in one third of the cases and reduces it to life but by the same token it is not arbitrary selectivity.

Unknown Speaker: General Shevin.

Rebuttal of Robert L. Shevin

Mr. Robert L. Shevin: Yes.

Unknown Speaker: You said that, there were 239 convictions.

You do not mean convictions with sentence of death, do you?

Mr. Robert L. Shevin: No, convictions of 239 cases that went to a Jury where the death penalty could have been returned.

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: Yes, 239 convictions, they made -- some of those convictions might have been --

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: That is correct.

Alright, Counsel mentioned the written findings, and I do want to make it clear that the Supreme Court of Florida in the maturing case law on this death penalty statute has required Judges below to enter detailed written findings even when they conclude life imprisonment rather than death.

The concept being to allow the Supreme Court to be able to look at those cases as well.

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: No, sir.

I do not believe at this point that you could point anything that would indicate whether it is going up or down.

I think as far as the number of cases that are going to trial, we have more murders in Florida and as a result we have more cases going to trial and we probably have more men on death row now.

And, in response to your question of Mr. Justice Stevens asked, we probably have a few more men, it is not much difference than we did pre Furman.

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: I have not asked in our brief for you to overrule Furman.

I do think there is an inherent conflict between McGautha and Furman.

I do not think you can reconcile those two cases because in McGautha, you say basically that Juries are going to make the right decision.

In Furman you say basically that they may not.

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: Your Honor, the reason why we do not say that is because we came back and adopted the statute with standards and appellate review.

We did not adopt the mandatory death penalty statute.

We think, we have met Furman and therefore, since we feel we have met Furman.

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: No, we are satisfied with the system that we have adopted post Furman.

Chief Justice Warren E. Burger: But if your case can not clear Furman hurdles. Do you then asked the chairman the overruled? .

Mr. Robert L. Shevin: If it can clear Furman hurdles, we would ask it to be overruled but we really do believe that we provided a system that meets the arbitrariness that has been outlawed in Furman.

Counsel talked about propensity, and he said this was an issue that came to the attention of the Judge and the Jury and had nothing to do with the aggravating circumstances enumerated in the statute, and the Chief Justice at that point said, well, how did they determine propensity or whether he would be a danger to society, very simply he said, he will kill again.

We have a testimony in the record of the psychiatrist of the doctor, and he was asking him, this was subsequent to the trial, the Psychiatrist at the hearing testify this was after they waved confidentiality.

He felt that he would do damage to people in the future that he already had done damage to the people that he had killed and as a matter of fact on page 423 of the testimony, “Further more, he was having similar feelings beginning to build up in the cell in which he was confined, and he felt this degree of hostility being directed towards a specific inmate.

He told the doctor and this was part of the testimony that the Judge and Jury heard on whether or not he should get death or life.

He told the doctor he was going to kill again.

That he had this urge to kill again, that he might even kill an inmate in the jail cell.”

Now, where, why should not the Judge be able to consider that?

Why should not the propensity to kill?

Now, when that came to the Florida Supreme Court.

They recognized that was not one of the enumerated aggravating circumstances but the Florida Supreme Court through maturing case law on this subject has in effect in several of this cases expanded the aggravation and expanded mitigating circumstances.

As a matter of fact, in the Gardner case, they say that a PSI saying that someone is going to be a menace to a society can be considered.

In the Hallman case, they said fact that the defendant was non-rehabilitable, can be considered, in our case in the Proffitt case, the propensity to commit another crime was added aggravating circumstances.

In the Sawyer case, Sawyer said he was going to kill the judge, he said, when I get back out of the prison, I am going to kill the Judge, I am going to kill the Prosecutor.

So, this judicial threat was considered as an additional aggravating circumstance.

Unknown Speaker: Mr. Attorney General,just so I understand, the non-statutory additional aggravating circumstances is not a substitute for statutory circumstance, just additional fact that may be considered.

Mr. Robert L. Shevin: Your Honor, the statute says that they can consider all relevant material, the Supreme Court has said anything that it is relative of probative value and has not been admitted in violation of a Constitution of the United States or Florida can be considered as long as it deals with either aggravation or mitigation.

Unknown Speaker: But it remains true that one of the ten statutory, or whateve the number is, aggravating circumstances must be filed

Mr. Robert L. Shevin: Oh yes, I think so.

In this case there were four, only one of them was non-statutory.

Unknown Speaker: I understand.

Mr. Robert L. Shevin: As a matter of fact, I want to point out the fairness of this procedure because the Supreme Court of Florida has also found some non enumerated mitigation circumstances.

Again, relevancy is the key.

In this Slater case, they reduce it from death to life because a co conspirator had gotten life and they felt it was unfair to give one of them death when the other one got life.

So, that was the basis of reducing it by the Florida Supreme Court.

In the Taylor case, there was question as to whether he actually pulled the trigger.

They were not sure he pulled the trigger and as a result they reduced it because they were not sure he was the trigger man.

In the Gardner case, they said intoxication is an unenumerated mitigating circumstance.

In the Swan case, it was a non deliberate killing.

It was a felony murder and they beat this woman but they said there was no evidence that they intended to kill her.

They put her in a closet and because of a preexisting medical condition she died in the closet and the Supreme Court of Florida said that it was basically a non deliberate felony killing and as a result it could be mitigated.

In the Proffitt case, what we are dealing with here is a danger to society.

He will kill again by his own statement.

He has a propensity to kill.

He has an uncontrollable appetite to kill which has not been -- which is not synonymous with diminished mental capacity.

There has been testimony in the record by two Psychiatrists that he understood the criminality of his act.

There was not one mitigating circumstances and there were four aggravating circumstances.

Now, Mr. Chief Justice Powell, you asked in the last case what kind of review can be held by the Supreme Court and is there any basis, any standard for that review.

In the Dixon case which is our leading Florida case, the Supreme Court of Florida said review by this Court guarantees that the reasons presented in one case will reach a similar result to that reached under similar circumstances in another case.

No longer will one man die and another live in the basis of race or a woman live and the man die on the basis of sex.

If the defendant is sentenced to die, this Court can review that case in light of all the other decisions and determine whether or not the punishment is too great.

They go on in the case to say that we consider at reasonable to require the Trial Judge to emulate detail written finding even when he imposes light.

Even though the statute said it was only required when he imposed death.

So, I think that the Supreme Court of Florida has matured this law, has rounded out the circle and has set forth under what circumstances the death penalty can be applied and under what circumstances, it cannot be applied and all of this we contend has been done subsequent to Furman in order to meet Furman.

Justice William H. Rehnquist: How about your opponent's contention that there is the finding in the life cases that they really never get to the Supreme Court of Florida because they entered the District Court of Appeal.

Mr. Robert L. Shevin: Well, the, as I point out a moment ago Sir, Mr. Justice Rehnquist, the Supreme Court of Florida has said, we want the Judges to enter written findings, even in the life cases and they have been traditionally argued.

Every time someone comes to the Supreme Court of Florida, if they think, there is a life case similar to theirs that ought to get them life rather than death.

They rely on it very heavily and those are reported cases in the Southern reporter and they are available to the Supreme Court of Florida.

Even though they are not reviewed by the Supreme Court of Florida, we contend they are available and are considered by the Supreme Court of Florida.

Justice William H. Rehnquist: An attorney with a capital sense, arguing in the Supreme Court of Florida And could rely on the District Court of Appeal decisions which have never gone to the Supreme Court of Florida is representing Trial Judges findings as to what justify the capital --

Mr. Robert L. Shevin: Absolutely, and as a matter of fact, let me relate to the cases they referred to, because I think this is very significant.

On page 85 of their brief they say, “there appears no rational explanation as to why petitioner must suffer death while the convicted murderers Swan and Halliwell and Taylor were spared”.

Now, in this case, it was spared after the discretionary review of the Supreme Court, so it is a little different than the question you asked but, let me talk about those three cases.

In the Swan case there was a beating, the woman was beaten, again, he did not beat her to try to kill her, he put her in a closet and she died.

The Supreme Court said, it was a non-deliberate homicide and that is why they reduced it to life in the Swan case.

In the Halliwell case, it was a love triangle, a family squabble no prior record, the defendant in the case was a Vietnamese or a Vietnam war veteran, excuse me, he was a Green Beret, the Supreme Court said he has been desensitized, he was a Green Beret, he had severe emotional disturbance and it is true, after he killed this person, after he killed this man, he cut the body up in to a little pieces and dispose off it and the Supreme Court had to consider was that heinous, was that atrocious?

And they concluded that he cut the body up after the killings.

So therefore, it was not particularly heinous, atrocious and cruel and that is, I think, a logical position that the Court could have taken in light of the fact that the killing had already occurred.

So, there were circumstances concerning the defendant in the Halliwell case.

In the Tedder case, again, it was a domestic squabble, there was a killing in this case of a mother-in-law, the Supreme Court of Florida said, it was not particularly heinous, there were no prior circumstances.

In the Thompson case, which they rely upon, the defendant was a 17 year old boy, again, with no prior criminal record.

Now, the one case they point out, where if I was sitting, I might have reached the different conclusion was the Powers case, the Powers case was a young man in their appendix, I think it is very convenient that they said, his age was not available from the record, his age was available, and his age happened to be 18 and obviously that was the basis on which the Lower Court, this was the case where the Lower Court, the Jury recommended the death, the Judge, imposed life, and in this case it was rather a heinous crime.

He broke or he came in to a store, he showed no remorse afterward, he sat the man down on a chair, and he shot three bullets in his head.

Now, if I were sitting on that case, perhaps I would have reached a different conclusion and perhaps I would have imposed death.

But, what is interesting about the Powers case it does involve a young man who the Court felt below had been culturally deprived, it did involve a young man who was less than 18 years old, who had less than a fifth grade education and under those circumstances, the Judge felt that life was sufficient and the other interesting point, is that at the time, the Power’s case was decided the Supreme Court of Florida had not yet decided Dixon.

So, the Lower Court judge did not have the benefit of the Dixon case or any of the maturing case law at the time he imposed life on Powers.

The Gentry case is another case, involving a domestic quarrel, no criminal record, fifth grade education.

Those are the cases he refers to and we contend that there has no showing of discrimination that in each of those cases, there was not arbitrary selectivity, that in each of those cases it involves cases in which there was ample reasons for mitigation.

He does not tell you about a case which is pending in your Court.

The Alford case, a case involving the rape and murder of a 13 year old girl in Palm Beach, who was both vaginally and anally assaulted and then shot eight times, twice in the head.

He does not tell you about another case pending in your Court involving an 11 year old boy, who happened to be riding his bicycle on the wrong street at the wrong time and was mutilated, torn limb from limb.

And, these are the kind of cases, these are the kinds of heinous cases that we have pending has a result of the crimes that are committed in the State of Florida.

Mr. Justice Blackman, you asked at the very beginning of this proceeding, you asked, would not the kind of elaborate statutes that Mr. Amsterdam was complaining about the so called winnowing devices, would not they have been predicted or expected under Furman, and he said, well, we might have predicted mandatory death.

Well, let me mention, let me talk about that for just a moment.

When I first read Furman and everybody is going through the same throws.

What did Furman mean?

What did it say?

What is required?

I was concerned that may be we were required to pass a mandatory death penalty; I did not like that, because I do not think that mandatory death penalties in and of themselves are the fairest kinds of justice.

And then, when we reread Furman, we particularly read what the Chief Justice said, when he said that “legislative bodies may now seek to bring their laws in to compliance with the Courts ruling by providing standards for Juries and Judges to follow in determining the sentence by more narrowly defining the crimes for which there to be imposed or determining or providing standards for Juries and Judges.

Well, that is exactly what Florida did, Florida eliminated rape from its capital crime category accepted that it involves the rape of a young child less than 11.

So, it narrowed the crimes and Florida for the first time, provided standards.

It provided aggravating circumstances and providing mitigating circumstances, and provided by bifurcated hearing, and provided a review, all of these things precisely what the legislature did in response to Furman.

But, I think this is more important, when I went to the Legislative Committees and in their brief they quote my statements saying that “mandatory is probably the safest way to go”.

And, when I went to the Legislative Committee that is the position I took after having read Furman once or twice, and when I went to the Legislative Committees, the expression of the legislative body was this: “we would rather pass a good law, a fair law, that might be suspect than to pass mandatory death penalty even if it is allowed by Furman” because it is harsh, and that is the kind of legislation that the Florida legislature passed.

They did not pass mandatory death.

They have attempted to remove the arbitrariness from the system, they have attempted to remove the discretion so that we have reasoned judgment which is the conclusion of the Supreme Court of Florida and they have attempted to have review, which is so very, very important.

They agreed, Mr. Justice Blackman, and with you Mr. Chief Justice, that to provide mandatory death was a step backward.

Now, every State had to do their own thing, and had to make their own decision but, that was a decision of the Florida legislature and we have responded to Furman.

The petitioner in his brief even though he did not mention it today, in his brief he says, that the death penalty is still being applied dis proportionally to blacks and to poor people.

Now, may be that was true prior to Furman, maybe that was true.

But, it is not true under Florida’s New Death Penalty Law.

In 1973, '74, and '75, those three years since we have had our new law, more blacks have been arrested for killing, for murder than whites.

About one third more, and yet on death row today, today, not when the brief was filed, but, today we have 64 people on death row and out of those 64, 34 of them are white and 30 of them are black.

So, we actually have more people who happen to be white on death row than black people.

Yet, the proportionate numbers of those kinds of crimes being committed happen to be about a third higher going the other way.

We think this demonstrates that we have even handed justice in Florida and incidentally, one third, one third of all those on death row in Florida retain their own Counsel, not Court appointed Counsel.

So, we do not have just poor people on death row.

We do not have just black people on death row.

We have even handed justice.

Let me comment on the deterrent aspects, if capital punishment does not deter, then punishment does not deter.

The whole pain, pleasure philosophy of society is based on the theory that punishment does deter, and the ultimate punishment deters the most.

It obviously deters that individual who cannot kill again.

It deters the robbers and the rapist who will sustain a greater punishment for murder than for rape or robbery, and therefore may not eliminate, the only eye witnesses to the crime in order to avoid apprehension and we think, it deters homicides generally.

Mr. Justice Powell, you commented earlier about the increase in homicides, which you were amazed that had gone over 50%.

The figures are really quite higher than that.

If you go back and look at the murder rate in this country, in 1930, 1940, 1950, all the way up to 1965, you will find that there were approximately 7,000 to 9,000 murders committed each and every year.

That figure has jumped from between 7,000 and 9,000 up to 22,000.

This is the decision, the legislature made.

This is the decision that they had the right to make and we contend that this is basically a legislative decision that contemporary standards of decency are determined by what the legislature and what the people want.

Since, I only have a few moments left, I want to direct my attention, if I may to the question of the system.

What they are saying is, that because of this discretion, the system is wrong.

Now, obviously, they do not want a system in which only capital offenses can be charged, in which only first degree murder charges can be brought back, in which no clemency can be exercised.

But that is exactly what they are saying to us today.

Mr. Justice White, in an Argersinger versus Hamlin, you told the State of Florida that it did not make any difference, whether a man was facing a misdemeanor charge or a felony charge, the inside of a jail looked the same.

And, I contend that the inside of the jail looks the same, to someone under life imprisonment or five years or 99 years as it does to someone facing the ultimate punishment.

If the Eight Amendment argument, if—.

Unknown Speaker: (Inaudible)

Mr. Robert L. Shevin: The Court said that, yes sir.

I was talking about during the discourse of the argument.

If the Eight Amendment argument, if the Eight Amendment argument that he says applies only in capital cases.

Logically, legally you cannot apply that only in capital cases.

True death is different but the Eight Amendment does not apply, just the capital cases, the Eight Amendment applies and has traditionally been applied to less than capital cases, and the Due Process provision talks about life, liberty or property, and if you are going to deprive somebody of life, and you are going to say we cannot do that because there is prosecutorial discretion, Jury discretion, executive clemency.

I submit to you that same argument applies to a lifer, and even though Mr. Amsterdam stands before this Court and says, I am only trying to apply it in death cases, there is no way he can foreclose someone who is under a life sentence, coming back to this Court and saying, give me that same protection, equal justice under law.

That is what the front of the building says, and that is exactly what a lifer is going to say.

That is exactly what a man under five years, 20 years or 99 years is going to say.

He is going to say, that if you say the whole system is wrong, then it is wrong as to him as well, and for those reasons, we urge you to affirm this conviction to state in effect that the whole system is not wrong, to state, the capital punishment is not cruel and unusual per se, and that it cannot be applied as an Eight Amendment violation just in capital cases, so as to attack in effect, the entire criminal justice system.

Chief Justice Warren E. Burger: Thank you Mr. Attorney General.

Do you have anything, further Mr. Curtis?

Rebuttal of Clinton A. Curtis

Mr. Clinton A. Curtis: Mr. Chief Justice Burger, just one or two comments --

Chief Justice Warren E. Burger: I have a question before you start, the growing rate of homicides in Florida at the present time, how many thousands a year or hundred?

Mr. Clinton A. Curtis: Off hand, I do not.

There has been a number of statistics submitted in the one or more or several of these briefs and that is one of the matters, I would like to address my self to.

Chief Justice Warren E. Burger: There is hardly a large city in America including Washington that does not have more homicides every year than all the European Countries this side of the Iron Curtain.

I do not know whether that would be emerged in these briefs?

Mr. Clinton A. Curtis: Mr. Chief Justice, if you say it, I will accept that as so.

I have never thought about of comparing the two -- I would like to point out that while we have this alleged rate of increase and the number of murders and none of this here, any place in this room is suggesting that we approve of it and every one is uphold by it, but to say that because of the absence of this form of punishment that somehow we are going to effectively treat that particular problem, disallows for the fact that every other form of serious crimes has accelerated -- far greater proportionate and assume, we assume that appropriate punishment is being meted out in terms of what the legislature thinks ought to be done with it.

But I do not wish to get in exchange about statistics and what they mean or what the effect will be, but I would like to comment on two things, one Attorney General referred the equal justice under the law.

Well, I think that is what this whole argument is about and that is why we are here for.

It seems inconceivable to me, that in Swan versus State, where you have what is describe by the Trial Judge, as an outrageous wicked, wild, atrocious, cruel and heinous crime, committed during the course of a robbery, that was the beating death of an elderly house keeper and the Supreme Court in light of those two aggravating circumstances, takes the position that and I quote, “there were insufficient aggravating circumstances to justify the imposition of a death penalty.”

Now, if we are going to have standards, which Attorney General Shevin is suggesting that these are supposed to be, we are going to have standards.

What is good for Mr. Swan, is good for Mr. Proffitt and if we are going to be measured, if we are going to be measured by the Jury, the Sentencer, or the Supreme Court of Florida.

We are being measured by the same rules and that is what we are talking about when we see justice under the law.

I thank you very much.

Chief Justice Warren E. Burger: Thank you Gentleman.

The case is submitted.