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
Anthony G. Amsterdam - for petitioner
Ronald M. George - for respondent
Facts of the case
Media for Aikens v. California
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.