Aikens v. California

PETITIONER:Aikens
RESPONDENT:California
LOCATION:Georgia State Capitol

DOCKET NO.: 68-5027
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of California

CITATION: 406 US 813 (1972)
ARGUED: Jan 17, 1972
DECIDED: Jun 07, 1972

ADVOCATES:
Anthony G. Amsterdam – for petitioner
Ronald M. George – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – January 17, 1972 in Aikens v. California

Warren E. Burger:

027 Aikens against California.

Mr. Amsterdam you may proceed whenever you are ready.

Anthony G. Amsterdam:

Thank you Mr. Chief Justice, may it please the court.

This case and the three cases to follow, present the question whether the infliction of the penalty of death on each of the petitioners.

There is a cruel and unusual punishment within the Eight and Fourteenth Amendment to the constitution.

The cases present a range of factual situations.

In this first Aikens case, the death penalty was inflicted upon a multiple murderer for an intentional killing of the particularly atrocious sort.

In the second case, the Furman case, we have a killing in the course of the burglary murder which may or may not have been intentional and it is not attended by the same aggravating circumstances and in the third and fourth cases Jackson and Branch, we have the infliction of the death penalty for the crime of rape.

The briefs of the parties and of the amici canvas a broad range of considerations under the Eight and Fourteenth Amendments.

But I think there are mergers from the briefs, the clear impression that the central issue in this case, the real nerve of this controversy, is the scope and indeed the propriety of judicial review of legislatives, State legislative determinations to use the penalty of death.

The briefs on behalf of the respondents primarily support the death penalty on the ground that it exists on the statute books of 41 States and of the Federal Government.

And that it has been put there by the legislatures of 41 States in the Federal Government and that those legislatures are the primary keepers of the national conscience in penal matters.

And the elected representatives of the people whose judgment is entitled to respect.

I agree with all of that, but for me I think that is the beginning and not the end of analysis under the Eight Amendment because judicial review of legislative judgment is just as inevitable as it is difficult.

Under a constitution which commits to the courts, protection of the individual under guarantee such as Cruel and Unusual punishment or Due Process or Equal Protection of the laws, precisely because these guarantees are fundamental statements of the most basic principles of our society.

The least conferring to the narrow historical circumstances that gave them birth.

They are cast in general terms their generality makes them difficult to interpret and it also creates the risk which Mr. Justice Frankfurter frequently warned the court about that the court may read its own dispositions in the constitution.

But at the same time, these very general prescriptions or the bedrock of a constitution designed to endure for time and to give continuing and constant expression to the notion that there are limitations on the power of government to deal with individuals.

Guarantee such as cruel and unusual punishment and Due Process and Equal Protection are broad statements in grand form, cash for an unforeseeable future and intended to be construed to give continuing protection to limitations upon governmental power.

Such protections to the individual are not likely often to be added to the constitution by the amending process because when they most needed they are least likely to commend the political approval necessary to add so they are put in general form and they are committed the courts to construe as times change during the life of the nation and visit by the constitution.

I conclude from that that although difference and circumspection the legislative judgment is vital.

That abnegation of judicial, the legislative judgment is impermissible because the very existence of a clause like the Eight Amendment prohibition of cruel and unusual punishment, belies the idea that legislatures are totally free in their choice of penalogic methods.

The important thing is plain.

It is that the Cruel and Unusual Punishment clause is a restriction on legislation.

In the context of American government where penal sanctions are primarily legislative.

It can only have meant to limit legislative means and this court has in fact pretty times appied it to invalidate legislation and the only cases and fact in which it has applied the clause to vindicate any plan.

The question is what are those limitations on legislative judgment?

How stringent are they?

Where does this court get the standards by which to determine?

The problem of standards is critical because of the generality of cruel and unusual punishment that I described.

Anthony G. Amsterdam:

The language is not crystalline it is not clear you cannot look at the punishment and see whether the cruel you cannot look at it to see whether it is unusual.

And history although relevant cannot be controlling because of the evolutionary nature of the guarantee and its projection into the future as I described.

The state of California, State of Georgia and Texas to some extent in their briefs have all made the point that at the time of the Eight Amendment was written, Capital punishment was widely used.

The Fifth Amendment clearly envisages that there will be capital cases.

The Federal Congress put capital statutes on the books.

All of these misconceived I think our submission to the court which is not that when the Eight Amendment was ratified in 1791 it was intended then and there to do with capital punishment, anymore than it was intended then and there to do away with whippings or brandings or cutting off the beers or anymore than Equal Protection clause when originally put in to the constitution, it is intended to give equal rights to indigents or to women.

In your view Mr. Amsterdam would Congress have authority to legislation in the field concerning the State with Eight Amendment?

Anthony G. Amsterdam:

Would Congress have the power to prohibit the death penalty under the Eight Amendment? Oh! Surely Your Honor.

In the State?

Anthony G. Amsterdam:

In the State, yes Your Honor but we go further than that —

I know you do but I say would the Congress — has Congress done anything in the intent.

Anthony G. Amsterdam:

With regard to capital punishment in the State?

Yes.

Anthony G. Amsterdam:

No Your Honor there has been bills submitted by a Senator Hart, Congressman Seller which would impose a moratorium on execution.

Was it in to past.

Anthony G. Amsterdam:

It has not even come to committee hearing, Your Honor.

Potter Stewart:

Congress’s power would be under Section Five or the Fourteenth Amendment would it?

Anthony G. Amsterdam:

That is correct Mr. Stewart.

The problem of construing the Eight Amendment emerges I think from what I have said that if the language isn’t clear and if history is not controlled where does the court get standards, where does it find the basis for judgment in determining whether legislation is cruel and unusual.

The primary problem with formulations, that you frequently find in Lard Port cases such as announcement of punishment may shot the conscience of the court or be unnecessarily cruel or some such thing in that in wide subjective judgment and one thing I think all the parties here may Your Honor, it is not the purpose of the constitution to allow the judges to write their own penalogical reflections into it.

The arguments made by the state in these case to sustain capital punishment, would I think equally sustain branding of confidence meant on the forehead with the letter C or cutting the hands off the pickpockets or any atrocious punishments.

And these punishments I think would plainly be condemned by the Eight Amendment but it beholds us to ask why.

Is it simply because we would be shocked, we would be in testimony uphold to those punishments more than the punishment of death, if they are.

I do not think so; I think it is because there are objective and judicially cognizable basis for making a determination under the Eight Amendment.

And in our brief we have tried to set forth what are those standards, what those objective standard for judicial judgement are?

Specifically we think that the question under the Eight Amendment is whether the punishment applied to a particular individual would by all available objective indications be unacceptable to general, contemporary, conscience and standards of decency.

It if were generally and uniformly applied to any reasonable proportion of persons subject to penalty for that crime.

William O. Douglas:

In my standing statute in the first case the judge had the discretion to impose that it is not concluded, is that right?

Anthony G. Amsterdam:

That is true Mr. Justice Douglas, that is true in all for these cases that the death penalty is discretionary with either Judge or Jury depending on who tries —

William O. Douglas:

Do you mean each of the four.

Anthony G. Amsterdam:

Each of the four.

William O. Douglas:

So there is no Statement or State Policy and now you are arguing that all people who (Inaudible)

Anthony G. Amsterdam:

No indeed the State Policy is simply that the penalty of death be available not that it be imposed on any particular murder or any particular class of murder.

William O. Douglas:

Is there anything in this method that shows the Congress people to which the death penalty is — on which the death penalty is imposed?

Anthony G. Amsterdam:

There is nothing in this —

William O. Douglas:

Their annual income, their race, their religion and social status.

Are we just in the dark on that?

Anthony G. Amsterdam:

There is nothing in this record nor indeed in the record of any of the cases before the court which discloses that.

Judicially noticeable findings I believe set out in our brief reflect with some in precision.

Those factors but there is nothing in the record that supports and the State of California has thrown into which brief they could deal of material which is neither in the record nor judicial noticeable.

There are some published materials such as the racial statistics, which I think our judicially noticeable but there is nothing in the record Mr. Justice Douglas on that.

The reason why we urge that the standard I just described is a proper standard under the Eight Amendment.

What this court must do?

Is to look and see whether the punishment inflicted in a particular case would be tolerable, acceptable to prevailing standards to decency generally applied.

Is the essentially treatable I have three considerations commend that standard to the court.

And I should say I take the court’s time at this point to talk about the Eight Amendment standard because this court has very little developed theory and a concept to the Eight Amendment.

And the parties are I think more in disagreement about the theory of the Eight Amendment and they are about any other aspect to the case.

Any good three reasons to this; first of all our conception of the theory of the Eight Amendment picks appropriate count of the different nature and the different roles under the constitution of legislature in the courts.

Legislatures are not primarily concerned with the application of penalties in this particular cases.

As Mr. Justice Douglas’s question suggests the legislature with regard to capital punishment has simply said the death an available penalty.

It may never be used; it may rarely and infrequently be used.

Potter Stewart:

Are there any States left that in which the legislature has said that the death penalty inexorably follows from the conviction of the certain offense.

There used to be many, are there any left?

Anthony G. Amsterdam:

There are a number of them left, to my knowledge s there is only one capital crime in the United State in which there are any men on death row.

Most of them are obsolete such as prison against the State and that sort of thing Mr. Justice Stewart.

The one crime is the California crime.

4500 in California penal crime is resolved by life time inmate upon non-inmate where the person assaulted dies.

That is the only mandatory capital crime as to which I know there is anyone on death row at this standard.

Potter Stewart:

But there are other statutes on the Court

Anthony G. Amsterdam:

There are other statutes essentially absolute which impose.

Potter Stewart:

In many states this used to be true of first degree or deliberate murder.

Anthony G. Amsterdam:

Oh yes.

It has been a development that the death penalty has been made discretionary.

Potter Stewart:

And there is no State left where that is longer — any longer to except in the exceptional kind of certain statute —

Anthony G. Amsterdam:

That is correct there is no State yet left which has a mandatory capital punishment for murder or rape either of the crimes involved here or any other of the ordinary crimes capital punishments.

Warren E. Burger:

It was about 10 years ago isn’t it?

The congress abolished the mandatory death penalty in the District of Columbia?

Anthony G. Amsterdam:

That is about right.

Warren E. Burger:

(Inaudible)

Anthony G. Amsterdam:

Pardon me.

Warren E. Burger:

Under the (Inaudible).

Anthony G. Amsterdam:

That is correct.

The District of Columbia and New York were the last two in the United States, — less than mandatory — a capital sentencing provision.

The second—

William O. Douglas:

Are there any standards, or any cases for the exercise of the discretion by the Judge nor Jury.

Anthony G. Amsterdam:

None Mr. Justice Douglas it is entirely—

William O. Douglas:

As a matter of California law is the discretion reviewable, exercise of the discretion reviewable?

Anthony G. Amsterdam:

The Aikens case was tried and sentencing done by a judge.

In a jury tried case in California, the trial judge may set aside the jury’s verdict.

The California Supreme Court may not review the sentence whether imposed by a Judge or Jury.

The second reason why I think our theory or standard of the Eight Amendment commends itself to the court, is that it assigns a proper function to the Eight Amendment in the constitution of the democracy because in a Democracy it is not at all likely that the legislature will put on to the statute books a penalty which is cruel, which is unacceptable to public conscience in a generally applicable uniform fashion.

A Stature which is going to be generally applied, which would be repugnant to public conscience if generally applied will not commend enough public acceptance to get on the statute for in the first place.

The problem in Democracy is that legislation maybe inactive in such a form, that it can be arbitrarily, selectively spottily applied to a few outcast thrive, whose political positions are so weak and with personal situation is on popular and were so ugly that public revulsion which would follow the uniform application of the penalties applied to them, does not follow in its few outcast creatures are condemned to that punishment.

What we are saying essentially is that a punishment cast in a form so that it can be used this way, comes to the court suspect under the Eight Amendment and when it is actually applied so infrequently, so incredibly relict as the death penalty is that the suspicion materializes and the penalty is identified as the cruel and unusual punishment.

This is no new constitutional conception.

I am really saying nothing more than what Mr. Justice Stone said in footnote 4 of Carolene products which is that where legislation is cast in the form such as unlikely to make it politically remediable, such as to sterilize the ordinary political processes that keep the legislature acting decently and keep legislation reflective of the public conscience.

Then a particular obligation devolves on the court to assess the constitutionality of that legislation.

The third reason why I think our theory of the Eight Amendment amends itself to the court.

Is that it does not imbibe subjective judicial judgment.

It does not ask this court to put itself in the position of super legislature and decide matters of penalogical policy.

Anthony G. Amsterdam:

In fact our theory, I believe offers the only alternative to subjective judicial judgment because if one looks for a moment at the grounds on which the State seek to support capital punishment that it is the retribution of the permissible legislative aim and that in some cases retribution requires killing people that deterrence is a permissible legislative aim and legislature could find the capital punishment had something deterrent efficacy.

You immediately see that the same arguments could and that would be made if the legislature for fraud boiling in oil as a punishment for crime.

Legislature might say that is a horrible curse.

Let it boiling in oil if they do that.

That could only fit retribution for that crime and the legislature might direct at an awful thing.

We got to stop that and the only way to really make it a horrible and prevent this from doing it if we correct them in boiling in an oil.

Boiling in oil if they do it.

And the State could be able to make essentially same arguments that they are making here against capital punishment.

In favor of capital punishment, those arguments would not be sustained but why would they not be sustained, is it because boiling in an oil was somehow more shocking to the digestive system, to the intestinal reaction of people or particular judges I do not think so.

I think it is because an objective standards which we invite this court to apply the capital punishment generally, would be offended by boiling in oil.

And I think it is offended by any form of infliction of the death penalty debt.

William O. Douglas:

You do not raise the question of the due process clause in the Fourteenth Amendment?

Anthony G. Amsterdam:

Only in the limited sense Mr. Justice Douglas that the Fourteenth Amendment applies the guaranty of the Eight Amendment in State.

There is not within the scope of the grant of certiorari in this case any independent due process question and the question is not raised below.

William O. Douglas:

At no State (inaudible).

Anthony G. Amsterdam:

No.

Potter Stewart:

But now that you are interrupted, let me interrupt you with the due process clause in the Fourteenth Amendment.

One of the — I think it bothers me in this case.

I think it is more than just a matter of semantic is a fact that in that Due Process clause the deprivation of life is expressly mentioned, and at least by negative implication is expressly permitted of the State to deprive any person of his life, liberty or property without due process of law.

It is another expressed almost identical mention in the Fifth Amendment of the United States constitution and indeed I think in the Fifth Amendment that in reference to capital cases with implicit approval, explicitly in the constitution of United States.

And this as I say, for me it is more than just this semantic problem.

There at least three and there maybe other places in the constitution that do not know occur to me, one is the death penalty is mentioned and with implicit approval.

Anthony G. Amsterdam:

Mr. Justice Stewart, I think I agree, I think it is more than a semantic problem, I think it is a —

Potter Stewart:

And this now, we are not talking about what was the practice at the time, the constitution was adopted.

I am talking about the word of the constitution of the United States which you are invoking in this case.

Anthony G. Amsterdam:

Yes I think that is right Your Honor but I think there is a difference between an explicit permission and simply a negative inference from the fact that there are certain guarantees that say that if the death penalty is to be imposed.

Certain procedures must be followed, there must be a grand jury indictment, there must be due process of law.

I do not think that one can say that the language in the constitution which by inference permits a death penalty.

Meant to project a continuing permission of it I think all that one can say is that so long as the death penalty could be imposed at all or was imposed at all, it could only be imposed within these restrictions and that I think takes us back to the initial question.

I do not think and I am not urging that when anybody put any of this language into the constitution, they meant to provoke our capital punishment I think it what they meant to do was to put in several guarantees of rights.

Anthony G. Amsterdam:

One guaranty against cruel and unusual punishment which would grow and involve as society grew and involve.

Another is the guaranty of the right to life, liberty and property, not to have it taken away without due process of law, the right to prosecution by indictment and that sort of thing, what they said there was in describing what a legislature could not do.

They said if it is seeks to take away light, the only inference that there is this—then it was conceived at that time that the State might take away life.

It can only do it by these procedure.

There in no projection forward of the notion that the taking of life is permissible.

They is simply a statement that we know now that the taking of life is permissible so long as it is permissible, these guarantees must obtain.

I think there is no inconsistency in that.

If one simply recognize the historical fact that the cruel and unusual punishment clause does grow and evolve.

Potter Stewart:

Thank you.

Anthony G. Amsterdam:

A last point that I think is that some significance before I turn to the capital punishment itself is that our theory of the Eight Amendment is also without historical support.

The Eight Amendment seems to advent the result of a confluence of three primary concerns.

A concern against the excessive punishments which you see in English Laws far back and that is a part of a concern against the selective imposition of harsh punishments, and a concern without right for a better.

The most immediately relevant one I think is the second.

The concern against the selective use of harsh criminal punishment which immediately led to the English Bill of Rights provision in 1689, that is now the language of the Eight Amendment.

The English Bill of Rights provision was put there largely as a result of the (Inaudible).

And if you look back at the trial of vote, what you see is that the actual punishment imposed on earth, it was not barbaric.

It was — that he was to be divested as a clergy man, that he was to be imprisoned for life and then he was to be pilloried and whipped annually on the occasion that the perjuries because of his conviction.

And the complaint lodged against that judgment which led to the Bill of rights was not that it was harsh at the time when they were still killing thousands of people.

It wasn’t intrinsically barbaric, it was it was selective.

One fellow was singled out and given unprecedentedly harsh punishment.

Now, capital punishment in its functioning today is a precise reflect of what happenned to (Inaudible) and the waking of the life leads me to mention that, because I will be arguing both of the selective cases, I would have to develop part of my constitutional argument in the second.

But, will simply state in this first that the essence of our argument applying this theory to the Eight Amendment, is that the exceeding contemporary rarity of capital punishment.

The fact that the death penalty although allowed by law in overwhelming majority of American Jurisdiction is in fact applied more infrequently than any penalty on frauds and against the background of an ideological debate that makes it clear that the attrition and use of the death penalty is a repudiation.

That circumstance presents for us the primary objective indicator by which this Court can say that not only is it no longer true, as the Court suggested in Cope v. Dallas (ph) that the death penalty is still generally accepted.

But to the contrary, the death penalty is virtually unanimously repudiated and condemned by the conscience of contemporary society.

Now, developing that point factually I think it is not difficult.

The national crime commission in its study, three years ago pointed out that the most salient characteristic of capital punishment was infrequency of its use.

And every inform commentator who has studied, perhaps accepting the respondents from these cases come to the same conclusion and if I may just read Professor Herbert Wechler’s description which I think is a fair one.

There is a striking contrast between the broad extent to which the penalty of death is authorized by law and the relative infrequency with which the sentence is actually imposed or carried out.

Despite the imperfections in the data, it is clear that capital punishment is executed only in a fraction of the cases where it can be legally imposed.

Anthony G. Amsterdam:

A fraction that is trivially infirmity and has been steadily diminishing in recent years I should say that we do not rely on the dwindling to zero of the death penalty in the last few years.

That is of course in large measure the result of judicial status.

But what I would point out is that even before the national campaign began which secured those judicial status in 1967.

During the decade of the 60’s executions is in the United State dropped to an average of about 20 a year down from a high of almost 200 and an ordinary normal 175 or 150 during previous decades.

I should also point out that the number of death sentences returned by juries during the decade of the 60’s and before 1968 is about a 100 year.

Now, what you are talking about is a country where there are 52 jurisdictions competent to impose capital punishment and the population of 200 million people.

43 jurisdiction which actually use the death penalty for some crime and only 100 people convicted of capital punishment and only 20 actually executed.

I will — it will be the court’s pleasure to serve the continuation of this theme for the argument.

Warren E. Burger:

Very well Mr. Amsterdam.

Mr. George.

Ronald M. George:

I will try to anticipate the remainder of Professor Amsterdam’s argument just to follow on that case.

The basic issue before the court is of course not whether the death penalty is socially, morally, or politically desirable or advantageous but instead, whether there is some specific provisions in Federal constitution that bars the people of the State of California, in this case from determining through their elected representative, that for death penalty should be available as a possible form punishment would be offense of murder.

Do you have any information as the kind of people that California executes.

Ronald M. George:

Yes, I certainly do in the appendix to our brief, we have summarized in very short manner that the case have reached the California Supreme Court in the last six years, well, since 1965, we also have certain table in our brief indicating the ratio make up of the persons receiving death sentences or rather who are on death row now and also some data regarding their social economic status and we will get into that in some detail.

The petitioner comes here bearing indeed a heavy burden that of establishing that the California legislature lacks any permissible basis upon which to conclude that the protection of the society requires the availability of the death penalty for the most serious of crimes, the willful and malicious taking of human life, that is the punishment of death.

A form of punishment is all that the history of man itself.

Now, Professor Amsterdam takes the position at least he did 10 ago when he and I were before the California Supreme Court on the very same issue here that even if it could conclusively be established that the death penalty does deter and it saves innocent peoples lives thereby that the death penalty would still be cruel and unusual punishment.

That it would be an impermissible form of punishment.

Potter Stewart:

Certainly you would agree I should impose that argument insofar as it says that deterrence is not the sole criteria of whether the punishment is cruel and unusual.

Ronald M. George:

Well.

Potter Stewart:

Well, in other words I suppose that disemboweling, burning of the State, drawing and quadering might all be simply deterrence, that if you follow the petty larceny with and that would of have answer the question was it.

Ronald M. George:

Well, the one qualification on my remark or one explanation would be that of course the execution will have to be done in a humane manner and—What I would like to develop at some length is this court’s treatment of the concept of cruel and unusual punishment I think one of the key aspects of cruel.

The term as defined from the Wilkerson Case through Francis versus Restwaiver is the definition of cruelty in terms of unnecessary cruelty, unnecessary pain, the want and infliction of pain.

Potter Stewart:

Well then is it your submission that if it can be shown that a punishment served a deterrent and if in a rational persons judgment, that is the appropriate deterrent and then if no more form pain or torture is inflicted in imposing that deterrence, then is necessary then it is automatically constitutionally valid?

Ronald M. George:

Yes.

Potter Stewart:

And then it would be true horsewhipping or —

Ronald M. George:

No, unnecessary cruelty I think.

Potter Stewart:

No, but if rational people could conclude that the best deterrent for petty larceny was 50 lashes, then it would not be cruel and unusual so long as 51 lashes were not imposed, that is in fact the argument.

Ronald M. George:

If rational people could so conclude, I think that the enactment of the Eight Amendment was intended to bar certain torture of punishment and I do not think that capital punishment and tortures have the standards altogether just because they do both existed in 1791.

And I think we start with the proposition that the death penalty is clearly constitutional during the period in which the Eight Amendment was adopted, Your Honor pointed out there is specific mention in the Fifth Amendment of the taking of life, capital offense and of course there were capital offenses enacted both in the Federal Government and the State Legislatures immediately preceding and following the adoption of the cruel and unusual punishment, so one must ask rhetorically can the constitution be unconstitutional.

Ronald M. George:

And it is the recognition of capital offenses and the taking of taking of life.

Now over the years–

Thurgood Marshall:

Do you say the unusual means what it meant then or what it means now, the word unusual.

Ronald M. George:

Some scholars particularly the Article that we cited by Mr. Branuchi, seemed to indicate that there was a very definite lack of precision and it uses the term that they might have meant something different at the time that they were first adopted and threatened and why is it mistaken to mean something different at the time they were used.

Thurgood Marshall:

What do you mean by that?

Ronald M. George:

I think that cruel and unusual means two things basically as defined by this court’s opinion trying to synthesize the various opinion from Wilkerson in 1878 to Francis versus Restriver weiver in 1947 and that is as follows that a punishment will be held unconstitutional as it is both true on unusual either have first a punishment inherently cruel and inherently unusual in its form.

Now, Wilkerson as I stated speak in terms of punishment of torture and all others involving unnecessary cruelty.

Now, this was cited with approval in Henry Camler which decision added the definition that punishments are cruel where they involve torture or a lingering death but the punishment of death is not itself cruel, cruelty implies something barbarous more than the extinguishment of life.

Now, in Wing, this court quoted with proof of Oath.

The Wilkerson definition and the language from Hemler and then in Francis versus Restweiver preceded to define cruelty in terms of the infliction of Walton or unnecessary pain and said the cruelty against which the constitution protects the convicted man is cruelty inherent in the method of punishment.

Not too necessary surfing involved in any method employed to extinguish life humanely.

Thurgood Marshall:

All do respect Mr. George, I am talking about the cruel and unusual rules.

Ronald M. George:

In unusual, I think what we mean in and unusual is something that is not customary for that height of offense.

Thurgood Marshall:

As of then or as of now.

Ronald M. George:

As of 1791 I would like to in some detail a deal with this argument as Professor Amsterdam that the word somehow change their meaning from year to year.

Thurgood Marshall:

As my question is you say that whatever was not unusual, It is only one is not unusual to date.

Ronald M. George:

I think that whatever was not unusual and cruel, there might have been certain things that were usual in 1791 that subject of cruel.

Thurgood Marshall:

You are just the not cyclic and you have to back the law this time.

Ronald M. George:

I think that the two concepts are intervention.

Thurgood Marshall:

But why are unusual in that?

Ronald M. George:

I get unusual in there because I think that it was not customary punishment such as Wing that is a very good example—it was a punishment less than life perhaps one might call it cruel but the Court expressed that it was highly unusual, something totally out of the keeping with our concept of common law punishment, it involves certain civil disabilities and find for white collar crime and change the —

Thurgood Marshall:

Get back to the word unusual, is there any (Inaudible)

Ronald M. George:

I believe that that is an in option in the State of Utah.

Thurgood Marshall:

Any other States—

Ronald M. George:

I am not sure of which States do have but I think Utah even has shooting as an option.

Thurgood Marshall:

(Inaudible).

Ronald M. George:

That is right and It think that the terms—

Thurgood Marshall:

(Inaudible).

Ronald M. George:

Pardon me.

Thurgood Marshall:

How might I measure to get it there?

Ronald M. George:

Speak —

Thurgood Marshall:

(Inaudible) instead of what was not unusual in 1791 and I cannot do that again here.

Ronald M. George:

We are not talking I think about methods of execution.

We are talking about a certain kind of proportionality.

Now, there maybe certain types of tortures that were not available either in 1791 and that does not mean that they are not covered but I think basically the Eight Amendment was intended to apply against the same types of things in 1791 as it is today and in fact as recently as 1958, this Court in Cope v. Dallas (ph) regarded that the death penalty has been employed throughout our history and again which is still widely accepted.

It cannot be said to violate the constitutional concept of cruelty.

The court noted the imprecision certainly in the use of those words that I think that through its opinion, it has come up with this definition I gave the first part of it, the second principle I think as far as cruel and unusual is concerned would involve punishment that is not inherently cruel and unusual in its form but it is unconstitutional as grossly excessive as applied either to in relationship to the seriousness of particular offense or in relationship to a status which does not involve an un-compelled act such as it was involve in Robinson versus California case and I think that these tests are applied for the offense of murder, it is clear that there is no cruel and unusual punishment.

Certainly under our humane method there is no intentional cruelty and in fact that death that comes to such a prisoner it perhaps frequently less cruel than the death by natural process that comes to us all eventually.

So—

Thurgood Marshall:

Except nobody knows.

Ronald M. George:

Nobody knows but with the State of our medical knowledge today, I think that we can assume that since death comes within a matter of second that whatever might be the physical reflex actions that Professor Amsterdam has chosen.

Thurgood Marshall:

Is there death sentence (Inaudible).

Ronald M. George:

I do not think speed is the only criterion apparently according to medical authority, it does involve less pain than any other method and this court has certainly found that in the past and I do not think that there is anything that petitioner has been able to show that would lead us to believe that they are involve — it involves some necessary intentional torturing.

The test is whether there is any cruelty beyond the threat, all punishment is cruel, putting a man behind bars might be cruel, especially for life but that is not the test.

The test is unnecessary cruel.

Now, although this Court in Cope v. Dallas (ph) went out of its way to uphold the constitutionality of the death penalty, petitioner ceases upon certain language than opinion.

The evolving standards of decency that marked a progress of a maturing society as some sort of talismanic death knell to 300 years of capital punishment.

Those words did represent the opinion of four members of the board at that time, one member of who makes a part of the constituency of the present form but certainly, the meaning of cruel and unusual is not static but we emphasize that these words cannot change from year to year.

I do not know if Professor Amsterdam has in mind the meaning of cruel and unusual in 1962 or 65 when petitioner committed his crime or 1969 when the judgment of the California Supreme Court below was affirmed or 1972 but we vigorously rejected a notion that these terms cruel and unusual can change affirmatively from year to year.

Where this is the case, indeed our evolving standards of decency might regress.

As they did in Germany in the 1940s and 50s.

What if a burning in oil or some other tortures did in fact become a popular vote in the mind of our populous.

Would that mean that they were suddenly constitutional under a fluid and meaningless Eight Amendment, I do not think so and just because some rather primitive corporal punishments were in use at the time, the Eight Amendment was enacted does not mean that they and capital punishment stand or fall together.

The framers of the Eight Amendment may very well have intended to outlaw some of those punishments and indeed those punishments although they might have survived some time after the enactment of the Eight Amendment were never sanctified as constitutional by any decision of this court, unlike capital punishment with method of inflictions, at least have been sanctified.

And there was never any sanctifying of tortures in the constitution as there is a capital punishment in the Fifth Amendment use of capital offenses and its use of taking life.

Potter Stewart:

The course that fifth Amendment also talks about that jeopardy of Limb and the double jeopardy provision, the first and shall be applying with capital life or Limb and I suppose you would not use that to argue that today government could cut off that arm of the thief would you and without violating the Eight Amendment?

Ronald M. George:

No but I do not think that is what the framers of the Eight Amendment attempts to sanctify either, I think they were—

Potter Stewart:

Where do you find the word limb then?.

Ronald M. George:

I think they were speaking broadly of corporal punishment I do not think they would necessarily mean the taking off of the limb, I think they would mean perhaps certain corporal punishment that survives and that might survive today though.

I do think that—

Potter Stewart:

Just as like under the limb.

Ronald M. George:

I am not convinced that let us say any form whipping would necessarily be unconstitutional, 20 lashes for maybe murdering somebody might not be unusual today I certainly do not think it would be and that is perhaps what they have in mind.

I think the petitioner therefore is quite incorrect in stating that if we say that the death penalty is alright, that means just burning in oil and other tortures were necessarily alright too.

Now, I would like to take a second factor.

Even if we assume that the meaning of cruel and unusual can change from decade to decade, progress and perhaps regret I would submit that our standards have not evolved to the point where the imposition of the death penalty could be the offensive murder, in inconsistent with our standards.

I do not know what is change from 1791 or since the 1958 decision of this Court in Cope v. Dallas (ph) to alter the fact that capital punishment is part of our moral and religious and philosophical heritage and has always been recognized as such and indeed Professor Amsterdam’s fixation with that phrase evolving standards is quite understandable, as it provides the only arguable escape from the historical reality of capital punishment being recognized that the legitimate form of punishment, 300 years in this nation and thousands of years in our heritage.

Now, it is not clear again at which point that petitioner wants us to focus on in determining the standard but one thing is clear he conveniently chooses to ignore the fact if 41 of our 50 State have capital punishment that Federal Government does that eight States have exempted with abolition of the death penalty and rejected it.

The fact that there was widespread support to the death penalty, if not confined to bill editors, prosecutors or eventual police officers.

We cited religious authorities to think that capital punishment is permissible.

The polls certainly show a majority of our population in favor but also ignored is the almost annual ritual in the California legislature and by which a bill is produce to abolish the death penalty and the exempt defeated usually in committee sometimes on the floor.

Also ignored as the fact that the California legislature in 1970 added a new capital offense.

Federal government did in 1961 and 65.

So what does Professor Amsterdam choose to focus his attention on.

He cites at great length in his brief what (Inaudible) are doing.

What relevance does this have to determine what are provisions adopted in 79-1791 means with reference to cruel and unusual punishment.

Different countries have different social conditions, necessitating different forms of punishment.

Keeping in mind their own needs for the protection of their society and most significantly non of those nations have abolished the death penalty judicially, none to my knowledge.

Petitioner fails to even show any trends in this regard.

There have not seen in recent years a great flurry of jurisdiction to rejecting capital punishment.

To quote Professor Patter this is not a time for due process by head count.

And what is particularly ridiculous is for petitioner in his brief although I know that he sort of abandoned the position here today to focus upon the small number of executions.

This is a posed indication of the declining popular acceptance of the death penalty.

Now, at most the number of execution which has been declining is an indicator perhaps of the evolving standards of our judiciary, you chose judicial state but it is not an indication of the popular feeling, much more accurate parameter of the evolving standards of our times.

The juries who consistently steadily and even increasingly in California are returning death penalty verdicts and I think this is key because and there were 36 in 1970.

A prisoner under sentence of death in California.

And the key thing here is that Whitherspoon teaches us one of the most important function any jury can perform in making a selection between life and death is to maintain a link between the temporary community values and the penal system.

And that is what our jury system is doing.

Potter Stewart:

It is suggested at some place in the brief (Inaudible) that one reason, juries these days are (Inaudible) death penalty (inaudible).

The morality is that they think that the penalty will not be carried out.

(Inaudible).

Potter Stewart:

It is a statement of the prosecutor and the jury of Pennsylvania as we read in the brief?

Ronald M. George:

I read that some place too in the center of the briefs.

I do not agree with that at all.

I do not think that has to assume that the jury violates their own, and I do not think that there is any basis and fact, that there are a lot of allegations made by Professor Amsterdam, that fact and other facts that I think was not —

Potter Stewart:

Was is it there is some prosecutors that —

Ronald M. George:

I do not agree with his observation on that, these are my own experience or anything I have read support that and I think the key flaw in this whole approach of petitioners to the evolving standard form is this — if there is a great trend, this great movement away from capital punishment as far as our values are concerned why is that not reflected in our democratically and active legislation.

Why is it that 41 States have chosen to — even now.

Professor Amsterdam would have you believe that these people are so unpopular that nobody is going to act on their behalf.

Well, I do not think that is the case Bills are introduced to abolished the death penalty all the time.

In fact Congress will often act at the behest of one single individual perhaps an alien subject to deportation without any great resources and will enact special legislation allowing that alien to stay in to this country.

We all know of such bills.

So there some such situation these people are so unpopular, they have no full —

(Inaudible)

Ronald M. George:

I will with respect to the–

Thurgood Marshall:

The right of a man to live on the level on the level of a private bill and let an alien stay in the country.

You do not have to do this well.

Ronald M. George:

I will put it on this level with all due respect Your Honor as far as the ability of a solitary individual whether it is for his right to remain in the country or his right to remain alive he get legislation enacted for his benefit under our democratic process of government.

I think that they basically what Professor Amsterdam chooses to do here in ignoring all these indicias of the popular acceptance of the death penalty.

He seeks to consider himself, some sort of self appointed guardian of the evolving standards of decency.

He and his co-counsel, they know what the truth is and we are wrong they have to prove the evolving standards and all this other indications should be disregarded I think in his opinion.

Now, I also object when it comes to the issue of burden of proof to petitioners attitude that somehow the State has no obligation to establish affirmatively that there is some aim of punishment accomplished by the death penalty that would not be served equally well by the imposition of a life term.

I do not think that this is the question.

I think to get into that ticket you will have the problem of deciding, can a State justify that a life term without possibility of parole, and I think that life will not — that life accomplish something of a fixed term of years, prison accomplished something that (Inaudible).

I think this is really asking this court to become a super legislature on a Federal State relationship.

Now, the basis of petitioner’s argument must be indeed that there is no permissible reason for the legislature been to conclude that there is a permissible aim of punishment served by the death penalty and I think that it is clear that a reasonable basis does exist I want the labor at length, the matter that we set forth in our brief in great detail.

Obviously, the first aim of punishment rehabilitation is not served but those persons have been found, unread a bill of (Inaudible) as Aikens is according to unanimous testimony of the psychiatrist.

We have set forth evidence of deterrence.

Our burden is to establish deterrence but we have shown that there is a reasonable basis upon which the legislature can conclude that the death penalty does deter.

Prisoners have made statements not only to police officers but to reporters or to each other.

The defendants have said one to the other during a whole of that.

Ronald M. George:

Don’t shoot the victim you will get us both fried.

Well, there is a man who is alive today because of the death penalty and the legislature had considered these things and the opinion of the State Supreme court, the dissenting justices and the Love opinion which we cite relies very much on the important statistical figures which Professor Amsterdam undissentingly refers to it anecdotal impressions of law enforcement.

He would like to have you believe, his authority professor perhaps to have a certain bias, but to disregard some of this pragmatic information.

Now, I would submit of course that the death penalty would be a greater deterrent of execution were being carried out.

In fact, the rise in crime rate as execution stops might bail that out although I do not choose to rest our position on statistics.

It is clear that the third aim of punishment incapacitation or isolation is not served by a life term.

Prisoners kill fellow prisoners, guard, they escape, they are out on parole.

I think that retribution is something that can be considered as well.

Now, I would like to briefly point out to the court that our briefs do graphically refute the statements by petitioners that there is discrimination in the imposition of the death penalty against the mentally deficiently uneducated the poor ratio minority.

Figures show very graphically that 38% of the first degree murder convictions were poor Negroes and only 25% of those got first degree murder convictions who received the death penalty were Negroes.

So there is no discrimination.

It is difficult to understand anything discriminatory and what Professor Amsterdam says that only a small portion of condemned murders receive the death penalty would he prefer that they all do it discretion were abolished, I cannot see how it is unfair that the mass killers like the Manson family, political assassins like Sirhan and a three time killer like Aikens receives the death penalty and some people do not and receive only life.

Now, in conclusion, I would like to state, petitioners offered us no objective standard for what is cruel and unusual.

He would have this court become a super legislature to enact his own personal views of what the evolving standards of our society should be.

Make no showing regarding the supposed lack of protection afforded by the death penalty and if his argument were to prevail, indeed many persons might lose their lives innocently because of the removal of the protection of the death penalty.

I do not have to dwell at length upon Mr. Aiken’s crimes.

They are concededly by petitioner terribly brutal no remorse, no mental problem.

He was intelligent, having education but he committed three brutal murders.

So in effect what I would close with is the statement of Justice Homes in the Jackman case.

If a thing has been practiced for 200 years with common consent will lead strong case for the Fourteenth Amendment to effect it and Respondent submits that petitioner has not made a strong case.

He has made no case at all.

Respondent joins the comment that we quoted of Justice Shower, former Justice of the California Supreme Court has all of us involved in the whole process of the death penalty.

Even if the appellate level to validly wish that the death penalty were no longer necessary but we have not yet reached that utopian state.

Meanwhile putting aside whatever personal feelings we might have nothing has happened in the 180 years history of our constitution or the 300 year history of capital punishment in this country which would preclude the people of the various states from even considering the question, from concluding that society protection requires the availability of the death penalty as s permissible form of punishment in certain of our most aggravated offenses and indeed the cases that we have set forth here indicate that it is the aggravated offense to receive the death penalty.

Juries are being discriminating, not discriminatory and petitioner is really seeking to have this court re-litigate what was decided only last year in the McGartha issue.

So with that plea, that we consider things on a constitutional level without the emotional rederick of political personal or moral feeling such as to the desirability for death penalty.

We would submit that the judgement should be affirmed in this case and the death penalty is clearly not cruel and unusual punishment.

Warren E. Burger:

Thank you Mr. George, thank you Mr. Amsterdam.

The case is submitted.