Jurek v. Texas – Oral Argument – March 31, 1976 (Part 2)

Media for Jurek v. Texas

Audio Transcription for Opinion Announcement – July 02, 1976 in Jurek v. Texas
Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Warren E. Burger:

We will resume arguments in Roberts against Louisiana.

Mr.(Inaudible) you have 16 minutes.

James L. Babin:

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

To briefly just restate our position, right before we finished yesterday afternoon, after the Furman decision the Louisiana legislature at a special session, which requires two thirds vote to bring up the normal type of legislation, which this was, brought the Louisiana murder statute from the plain murder which would have previous to that time, first degree and second-degree murder, placing in the first degree murder statute, those crimes which are somewhat initiated by the defendant himself.

In other words, those that happen with specific intent, when he is in the perpetration of aggravated rape, aggravated burglary, armed robbery, such as that or people who are hired to kill, people who kill policemen while they are engaged in their duties and the more serious crimes and the crimes that defendants actually initiate and start themselves.

As I stated before, the second-degree murder statute, while it does carry with it some instances, specifically takes care of those killings where you may have a man who is in a bar, he is drunk, he is in a fight, he does have the intent to kill and he may kill someone, but it is not the type that you will find in the first degree murder statute, which this case involves.

In Louisiana, the legislature also amended the responsive verdict statutes and the responsive verdict to first degree murder no longer contains the guilty without captive punishment responsive verdict.

It is either guilty or guilty of the other crimes, such as second-degree murder or man slaughter.

Now, when the judge gives the jury, who are sworn members of that Court, the instructions as to what they are to do, he will instruct them that you must find every element which is in first degree murder.

In other words, you must find specific intent to kill.

You must find every element in this case of armed robbery.

Then and if you do find such elements and it is proven to you by the prosecutor beyond a reasonable doubt, you are to return a verdict of guilty.

If the verdict of guilty is returned in such a case, no longer does the jury nor the judge have any control of what the sentence will be.

It is a mandatory death sentence at that stage.

The juries in the Louisiana and in the United States, if the argument of the respondent were to be believed or not dependable, that they will not attempt to follow their duties that they are sworn to do, that they have taken an oath to do.

This goes further even if you were to follow his argument than the murder statute.

It does not necessarily involve the death penalty.

If the jurors are suspect, if the jury is not going to follow his instructions, he has said that he would follow the law of the state and he has taken an oath to do so.

There is nothing further you can do to make him do that and if jurors are suspect, then the jury system can no longer exist and I certainly think — I do not think that this Court in the Furman decision intended such a thing or a change in the system, such as that.

The juries that I have had any experience with or the juries that I have tried cases before or I have seen cases tried before, appear to me to be the average person and the person who feels a seriousness, especially in a murder case of the job that he has before him and one that he would give his best ability that he is able to give to that particular job and to the facts that are presented to him.

The system that is set in Louisiana, takes away from the judge or the jury any arbitrariness in the verdict or the sentence that it will give.

The jury is instructed by that judge that whatever is proven to him, beyond a reasonable doubt, if it is a crime of first degree murder as in this case and the elements are proven to them, then it is their sworn duty to return a verdict of guilty.

Therefore, we do not have — we have guidelines first of all for a jury to reach a verdict.

Then, once it has reached its verdict, that it no longer has any control over that case or that defendant.

The respondent as I understood also says that since the District Attorney of the various districts or the prosecutors have control over the cases, then you have another human element involved.

It is true that district attorneys and prosecutors in Louisiana and in all other states, I believe, have the right to try cases (Inaudible) as they see right, see fit or to charge.

But in a death penalty case in Louisiana, the district attorney cannot charge by Bill of Information.

He can only charge by Bill of Indictment returned by a jury of 12 grand jurors.

Therefore, he has to way to be arbitrary in the initiation of a death penalty charge.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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James L. Babin:

It must be brought by jury of 12.

Once the charge of first degree murder has been brought, as it was in this case by jury of 12 in Calcasieu Parish and once the defendant is tried and if he is found guilty, that district attorney loses control of the defendant, the sentencing and the charge itself, he no longer has any control, whatsoever.

So, the only control that a district attorney or prosecutor has is prior to the finding of the final guilt of an individual, but once in Louisiana this man is found of any crime, no matter what it maybe, but particularly in a death case, he has no control whatsoever.

It is true in Louisiana that the governor has the right to commutate sentences.

Potter Stewart:

Before we get there, what is open on appeal in Louisiana from a —

James L. Babin:

Direct to the US Supreme Court, Mr. Justice.

Potter Stewart:

Well, I mean what —

James L. Babin:

To the Louisiana’s Supreme Court.

Potter Stewart:

What subjects are open on appeal from conviction of a death sentence in Louisiana?

May the Appellate Court review the degree of guilt and may it review the sentence or —

James L. Babin:

The Supreme Court of Louisiana, first you will have your Bills of Exception —

Potter Stewart:

Can he be in the Appellate Court?

James L. Babin:

No sir, not for criminal cases.

(Voice Overlap)

Potter Stewart:

— appeal as a right?

James L. Babin:

Yes sir, and it has a right or does review those particular Bills of Errors that the defense attorney has brought during the trial of the case, plus it has the right to review anything that is in the face of record of it is own right, that is the Louisiana Supreme Court.

Potter Stewart:

Would it have a right to reduce the sentence?

James L. Babin:

No sir.

It does not.

It can remand, reverse, but it cannot reduce a sentence.

Potter Stewart:

Would it have a right to reduce the degree of guilt from first degree to second-degree?

James L. Babin:

No sir.

Potter Stewart:

You have to remand for a new trial?

James L. Babin:

Right.

Potter Stewart:

You found the evidence insufficient to support a first degree conviction?

James L. Babin:

It does not have a right to find the evidence

Potter Stewart:

(Voice Overlap)

James L. Babin:

Yes, sir.

It does not.

Potter Stewart:

It does not have what?

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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James L. Babin:

It does not have the power just to reduce to review again that jury’s verdict at the final outset.

Potter Stewart:

Does not it have the power to (Voice Overlap)

James L. Babin:

Unless there is an error of patent on the face of the record or there was an error which was brought by the defense attorney and a Bill of Exception were brought by him.

Potter Stewart:

How about the sufficiency of the evidence?

James L. Babin:

No sir.

That is within the jury’s prerogative.

Thurgood Marshall:

(Inaudible) this is a second degree and not first degree, as I read the record?

James L. Babin:

No sir.

Thurgood Marshall:

And, is that by a specific statute?

James L. Babin:

They just do not have that authority, Your Honor, that is the jury’s prerogative only.

Potter Stewart:

Let us assume a case, where there just was not sufficient evidence to sustain a first degree conviction and for one reason or another, the jury went haywire and so did the trial judge, you mean to say the Supreme Court of your state have absolutely no power to set aside that conviction?

James L. Babin:

That is correct sir.

Now, unless Your Honor, Mr. Justice said there was an error patent on the face of the record that it could tell, but not just to say that it reviewed the evidence and it does not agree with the jury.

Warren E. Burger:

A reversal for sufficiency of evidence is based on — are you telling us that if the Supreme Court in its review determines that there is no evidence to support the verdict, they cannot do anything about it?

James L. Babin:

Well, by that time Your Honor, there would have been a motion for a new trial with the trial judge and if there was new evidence or if new evidence was produced before the trial judge, he has a right to grant a new trial.

Potter Stewart:

My question was not directed to that.

I was not talking about new evidence, I was talking about a hypothetical case, where the record clearly shows there was insufficient evidence to sustain a verdict of guilty of first degree murder and you have told me, I think very clearly that the Supreme Court of Louisiana has no power to set aside a conviction in such a case?

James L. Babin:

It is my understanding that they do not, Your Honor.

Thurgood Marshall:

This is just by judicial PR?

James L. Babin:

This is the jury’s decision, based on the evidence alone, as I understand your question.

Thurgood Marshall:

Was that true before Furman?

James L. Babin:

Yes sir.

Thurgood Marshall:

So, that just has not changed at all?

James L. Babin:

Not that I know of, Your Honor.

Warren E. Burger:

(Inaudible) the Supreme Court of the State on review could on its own initiative, sua sponte determined that there was some error, now what is the scope of hat kind of sua sponte review?

James L. Babin:

(Inaudible) Your Honor, Mr. Chief Justice.

Warren E. Burger:

Because, you have said that the Supreme Court could notice an error that was apparent on the face of the record?

James L. Babin:

Yes sir.

Warren E. Burger:

That does not include, you already told us that does not include the power to say, there is not sufficient evidence here, upon which reasonable men and women could find a verdict of guilty, they cannot review that.

James L. Babin:

They do not review that.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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James L. Babin:

If they have some error that has been made by the court or the attorneys or any error on the patent of the face of the record, they review that of their own, on their own right.

Byron R. White:

Well, if the federal constitutional rule, of course is that there is not any evidence at all, that the conviction is going to stand.

Now, I suppose the — do you suppose the Supreme Court of Louisiana is foreclosed by your own rules from following that standard?

James L. Babin:

Your Honor, it has a right to review motion for a new trial, which would have been filed in the District Court.

Byron R. White:

That can be made on the grounds of insufficient evidence, can it?

James L. Babin:

Well, you can ask for a mistrial after the state has put on its evidence, then if that is not granted, then at the end of that you are allowed to put on evidence or to say that there was not sufficient evidence here and ask for a new trial —

Byron R. White:

How about a verdict, after verdict you can make a motion for new trial?

James L. Babin:

Yes, sir and —

Byron R. White:

You can make it on the ground that there was insufficient evidence?

James L. Babin:

Correct, sir.

Byron R. White:

Now what if — and if the motion denied, the denial of that motion can be reviewed in the Supreme Court of —

James L. Babin:

Right.

Byron R. White:

And hence the Supreme Court of Louisiana may review the trial court’s judgment that there was sufficient evidence?

James L. Babin:

That is what I was saying earlier sir.

Once that motion has been made, the Supreme Court can review that motion that was made for a new trial, yes sir.

Warren E. Burger:

(Inaudible) if the appropriate motion for a new trial on that ground is made then they have the same review, this petitioner in other state courts?

Yes sir.

They then can review that motion if were denied, yes sir.

They would grant a new trial, if they thought the district court should granted —

James L. Babin:

There should have been a new trial, then they would grant it.

Warren E. Burger:

Then it is just a difference in the mechanism, not the difference in the substance?

James L. Babin:

Yes sir.

I thought you may have, but they could take it up on their own right, just to look at the evidence or thought that was the first question and say, “Well, there is not enough evidence here.”

Potter Stewart:

Now assume this it has been grounded it, that when a person appeals, he tells the court his grounds for appeal, I am assuming that?

James L. Babin:

Yes sir.

The governor of the State of Louisiana does have the right of commutation after there has been a review by the Board of Pardons.

However, this is only to the benefit of the defendant.

The State of Louisiana sees no way, where it cannot be to the determinant of the defendant himself.

Therefore, we do not see how it could be used in anyway to do away with this statute, which the State of Louisiana has for first degree murder, second-degree murder or homicides, which occur.

John Paul Stevens:

Mr. Attorney General, could I just clear up one thing?

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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James L. Babin:

Yes sir.

John Paul Stevens:

On the different responsive verdicts, first degree, second-degree and man slaughter, does the trial judge — you may have answered this, but I do not remember, instruct the jury as to he differences between those offenses?

James L. Babin:

First, the trial jury instructs the jury as to the elements of the crime, which a defendant is charged with and informs them that hey must find that each element has been proven beyond a reasonable doubt.

Then, he informs them of the law of other responsive verdicts.

John Paul Stevens:

What is he, what —

James L. Babin:

If he says —

John Paul Stevens:

What does he say on that part of the subject?

James L. Babin:

He says that if you do not find that the state has proven this defendant guilty beyond a reasonable doubt of all the elements of first degree murder then you are to return a verdict of not guilty, but if you find that they have not proven all of the elements of first degree murder, but they have proven all of the elements of second degree murder which is already given them the definition of, he gives them the definition also, then you ought to find him guilty of second degree murder and down the line, giving the definition of the crime and also the elements that they ought to find.

The State of Louisiana is not here arguing in a general sense as the respondent understands today and is, we have a case which was involved here, where a man killed another man when he was engaged in the perpetration of an armed robbery.

The fact he killed him when it does not appear to the state that he even need not to kill him.

This is a killing, which has been presented to our grand jury and laid it to our jury.

Your Honor, we asked that or Your Honors we ask that the honorable Supreme Court affirm this decision.

Warren E. Burger:

Thank you, Mr. (Inaudible) but along with consideration of all the rebuttal material that will subsequently come in.

We will hear next 75-5491 and 6257 and 5706, that is Woodson and Waxton against North Carolina and we will take these up seriatim.

Is the counsel ready in 5491?

You are going to rebut at this point.

I think Mr. James is next on and Mr. Solicitor General.

Mr. James.

William E. James:

Mr. Chief Justice and may it please the Court.

The State of California is here as Amicus Curiae and our concern and interest has been set forth, of course, in our brief with the interest of those who have joined with us.

We are concerned that these petitioners are not going to be content with trying to get this Court to hold unconstitutional the statutes that are presently before the Court in these states, but that they also want an all encompassing decision of this Court declaring the death penalty unconstitutional per se and invalidating all statutes.

They seek to hold that this Court should state that the death penalty is cruel and unusual punishment in violation of Eight and Fourth Amendment and that it is impermissible as to any crime, as to any circumstances and as to all times it is impermissible.

We submit, as we had pointed out in our brief that there are number of obstacles to this holding, not the least of which is the Constitution of the United States and its Amendments, particularly the Fifth and the Fourteenth Amendments.

Also there are the many decisions of this Court in which impliedly or expressly the Court has accepted this punishment as a permissible form of punishment.

We would urge that at this time the Court take the opportunity to hold in a case in which an issue is presented to them that the death penalty is not unconstitutional per se and is not in violation of the cruel and unusual clauses in the Eighth and Fourteenth Amendment.

We would also urge that this Court take this opportunity, if it deems it advisable, to lay down guidelines to aid the states and other and the legislatures of Congress in devising acceptable standards for the imposition of this punishment.

We think that this will certainly aid the case load in the Court and prevent the states and the parties from coming back constantly for clarification and guidance in this difficult area.

Now, California has had an unique experience in this field.

In 1972, the people of the State of California were faced with the legal and constitutional dilemma that these petitioners would like to have reflected on a nationwide scale.

The California Supreme Court, contrary to the line of the decisions in that Court, some of very recent origin, held that the death penalty was rejected by society, that it was not serving a proper penal purpose and that it was in violation of the cruel or unusual provisions of the state constitution.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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William E. James:

The response of the people was fairly quick.

Within a few months a petition was circulated for an initiative and this petition obtained the signatures of almost a million qualified electors.

This initiative would enable the constitution to have a provision that would hold that the death penalty was not to be deemed cruel or unusual punishment.

In November 1972, the electorate passed this initiative by approximately 67% of those voting over 5,300,000 people voting to have this initiative ratified and the Amendment made to the State Constitution.

Now, we are certain that these petitioners are not going to be satisfied with the declaration, that the death penalty is unconstitutional just for their crimes of murder.

We are sure that they are going to demand that it is entirely unconstitutional for any crime, regardless of an enormity of the crime and regardless of the legislative determination that there would be some penal purpose served by its availability.

Potter Stewart:

After the Amendment of your State Constitution by initiative petition, Mr. James, did the legislature act then?

William E. James:

Yes.

Potter Stewart:

And, what kind of a law, without going into minute detail, that it enact?

Similar to any one of these five we have before us?

William E. James:

Well, I think it is so much similar to a group that were mentioned yesterday.

It provided that the death penalty would be imposed, where a person was convicted of a first degree murder and special circumstances had been alleged and proved and those special circumstances covered, murder for hire, killing of a witness to prevent his testimony, killing of a police officer knowing that he was a police officer in enforcement of his duties, a killing that was perpetuated, deliberately and intentionally in the commission of certain felonies, such as rape, robbery, burglary, child molestation and kidnapping and multiple murderers.

Potter Stewart:

A single face proceeding or a bifurcated?

William E. James:

It was a bifurcated hearing —

Potter Stewart:

By the same jury or –?

William E. James:

The same jury would ordinarily hear both after the proceedings relating to the determination of guilt and any plea as to sanity.

Potter Stewart:

Then, in the second phase of this proceeding, there is another evidentiary hearing, is there?

William E. James:

Yes, it can be evidence presented by both sides on the special circumstances issue and the statute also covered other crimes, for which a death penalty might be imposed.

Potter Stewart:

Such as — what are they?

William E. James:

The kidnapping for robbery, where there is a death, train-wrecking where there is a death and killing by a life-termer, where there is a non-inmate killed and —

Potter Stewart:

They all involve homicide?

William E. James:

They all involve homicide.

Potter Stewart:

Or the death?

William E. James:

Your Honor, there are two other statutes that were not amended that called for the death penalty.

They were mandatory penalties; treason, Penal Code Section 37.

(Inaudible)

William E. James:

The determination of the truth of the allegations of the special circumstances, which is involved whether it was a murder for hire, whether —

(Inaudible)

William E. James:

No and the jury comes back with a verdict true or false or not true on the special circumstances and the penalty is imposed by the judge, according to the verdict.

If the verdict comes back that the special circumstances alleged are true and the judgment is pronounced accordingly.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Potter Stewart:

It has not to do with the particular character of the defendant, but rather the circumstances of the offense?

William E. James:

Yes, that is right.

The particular type of the homicide that is involved.

Potter Stewart:

Would not that had been before the jury in the first phase of the trial showing his guilt?

William E. James:

It could well be.

Potter Stewart:

Well, why would it not always have been, inevitably?

William E. James:

You mean, the special circumstances?

Potter Stewart:

Yes.

William E. James:

Well, in addition to proof of guilt of first degree murder, in the special circumstances, the defendant must have personally committed the crime.

There must be a willful, deliberate killing and —

Potter Stewart:

That would have been before the jury in the guilt phase, would it?

William E. James:

Not necessarily on a felony murder, where the defendant maybe guilty of first degree murder, but not a —

Potter Stewart:

Normally, the evidence show what actually happened in this particular case?

William E. James:

Normally, it would, yes, Your Honor and frequently in the cases that have come up, very little, if any evidence has been presented at the second phase and the jury has been instructed that they considered the evidence.

Pardon me?

Byron R. White:

(Inaudible)

William E. James:

Yes.

Byron R. White:

(Inaudible)

William E. James:

It is limited to the special circumstance of issues.

Byron R. White:

(Inaudible)

William E. James:

Not unless it relevant to some aspect of the case.

Warren E. Burger:

Could the person only testify in the second proceeding?

William E. James:

Oh! Yes, he certainly can testify.

Potter Stewart:

But, what would he have to say, as I understand that what supports a death sentence in your state under this new legislation is not at all anything to do with the defendant, personally, his background, his education, his previous record, but only the circumstances of the offense for which he has been found guilty, is that correct?

William E. James:

That is correct, Your Honor.

Warren E. Burger:

There is a wider scope of evidence, citations?

William E. James:

There would be.

John Paul Stevens:

I take it, it would cover a case where there were two people convicted of murder and only one of them fired the fatal shot and you might have dispute as to which one fired it, they both be guilty of murder.

A separate second hearing will determine that the one who actually fired the shot would accept the capital punishment, is that the kind of thing you had?

William E. James:

Yes, Mr. Justice Stevens.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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William E. James:

In fact, that was the first case that was tried, under the statute.

Potter Stewart:

(Inaudible) consider continuing into the second phase, if the conflict between the co-defendants would certainly continue if one is going to be electrocuted and the other not?

John Paul Stevens:

But the jury would have to resolve the issue in the second and need not resolve in the first place, I suppose?

William E. James:

They would be both guilty of first degree murder and the question be whether under the special circumstance allegation, it was shown that the particular defendant personally committed the crime deliberately and with premeditation.

Potter Stewart:

Some 43 defendants under sentence of death in your state now?

William E. James:

Approximately.

I was advised last Thursday that another one was convicted and jury returned a true verdict in San Diego County, so there maybe 44.

They are all under the sentence under the first degree murder.

Byron R. White:

(Inaudible) hearings have been held — how many (Voice Overlap)

William E. James:

You mean is —

Byron R. White:

How many capital convictions have there been?

William E. James:

There have been 43 or 44 capital convictions.

Byron R. White:

Well, I mean —

William E. James:

Whether at the trials were they special circumstances —

Byron R. White:

How many instances have somebody have been found guilty of a crime for which death could be imposed, in the second hearing or put it the other way, in how many instances has the second phase turned out that death sentence was not imposed?

William E. James:

I do not have the figures on that, Your Honor.

There were a numerous ones, there are instances, where the jury hung on the second phase —

Byron R. White:

There must be some where — are there any, where they did not impose death and were not hanged?

William E. James:

Where they did not impose death?

No, there ordinarily be a second trial on the special circumstance hearing.

A new jury selected under 190.2 —

Byron R. White:

I know, but what if — I take it in the second phase, the jury can come back and say the special circumstances are not present?

William E. James:

Well, then there is the —

Byron R. White:

Cannot they — oh, I know, but they may do that, cannot they?

William E. James:

On the second?

Byron R. White:

Yes.

William E. James:

Yes.

Byron R. White:

Well, how many times has that happened?

William E. James:

I really would hesitate to tell you, because I do not know if there is any statistics from the 58 counties on that.

I know there are quite a number in Los Angeles county, where I came from and there were quite a number from up North and I have been advised of instances where there is a second special circumstance hearing, because of an initial first jury being hung on the issue.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Warren E. Burger:

What you are telling that the second jury does not rubber-stamp the process and simply declare all of them are subject to the death penalty?

William E. James:

That is correct.

That is —

Warren E. Burger:

in other words, a hung jury, in the second proceeding —

William E. James:

Yes and the second —

Warren E. Burger:

(Voice Overlap)

William E. James:

You mean the same jury in the second proceeding?

That is right, they have found the defendants guilty and then have found not true the special circumstances.

The second juries, where there has been a hung jury on the first, in some instances have found the special circumstances not true, but I have no accurate figures on that matter at this time Your Honor.

We would submit that the death penalty is not impermissible under the Eighth or Fourteenth Amendment and that is not unconstitutional per se that it is our concern.

We know that the respondents in these cases are going to discuss their particular statues in relation to the attack on it, but we fervently urge the Court to say that the death penalty is not an impermissible punishment, that it is at least available to society in appropriate cases for its protection.

And we would sincerely urge that if the death penalty is to be declared unconstitutional, that the Court consider these various arguments and we also urge that if the death penalty is to be abolished, we trust that it will be abolished in the manner contemplated by the founding fathers and that is by the expression of the people, through their elected representatives in Congress and in the State legislatures.

Unless the Court has any further questions, I will submit.

I appreciate the opportunity to appear before you.

Warren E. Burger:

Very well, Mr. James.

Mr. Solicitor General?

Robert H. Bork:

Mr. Chief Justice and may it please the Court.

The United States appears amicus curiae in these cases because the Congress has enacted in various precedents of signing the law statutes that permit capital punishment for various serious crimes.

The constitutional argument made by petitioner’s counsel in challenging capital punishment generally, I think it is rather diffused and in fact, I think part of its power or part of its persuasiveness arises from its diffuseness and I will try to sort out these various propositions that are being urged and attempt to show their inadequacies, either singly or collectively to outlaw capital punishment.

To begin with, we know as fact, that the men who framed the Eighth Amendment did not intend as an original matter to outlaw capital punishment because it has been mentioned, they prescribed the procedures that must be used in inflicting it in the Fifth Amendment.

We know that the men who framed and ratified the Fourteenth Amendment did not to intend to outlaw capital punishment because they also discussed to frame the procedures which must be followed in inflicting it.

So, we know that as an original matter, as a matter of original intention, it is quite certain that the Eighth Amendment was not intended to bar the death penalty and the that Constitution contemplates its infliction.

Now, the petitioners respond to this in their brief, by pointing out that the Fifth Amendment also refers to the infliction of — report twice in jeopardy of life or limb, which they say obviously the Eighth Amendment would bar disfigurement today.

And, of course it would, but I do not think that avoids the argument from Constitutional text, because punishments for disfigurements are today regarded as cruel and unusual precisely because the American people came to that conclusion and legislatures stopped enacting such punishments.

So that today, I think the Court, if some legislature and an aberration tried to resurrect such a punishment, would find it cruel and unusual.

But the point is it was not judicial movement that made that change.

It was an evolution of the standards of decency in American society.

Now, the Eighth Amendment, like some other provisions of the Constitution does have a principle of evolution.

The intention of the framers, it seems to me, it is entitled to an enormous respect, but one cannot exclude the possibility that cruel or unusual punishment means something different today than it meant them, but the principle is one of controlled evolution.

The Amendment is not an uncontrolled delegation of power to the judiciary to adjudge punishments.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Robert H. Bork:

There are criteria, by which the judiciary adjudges punishments and I will try to demonstrate that the principle of evolution is applicable here, which controls the case here, not only does it outlaw the death penalty, but in fact, affirmatively supports it.

Having done that, I will urge three other propositions that are raised in Eighth Amendment context by counsel, but I do not think belong there and hence has no proper place in this case, but I would nevertheless discuss them.

I will suggest first that capital punishment is rationally related to legitimate legislative goals for the deterrence of crime and the special moral outage among them.

Secondly, that capital punishment has not been shown to be inflicted on the basis of race and that in any event, that question is irrelevant to the issue of the type of punishment.

And thirdly, I would argue that capital punishment is not outlawed, because the criminal justice system, which is mandated and permitted by the Constitution has elements of discretion in it, which are intended to be a safeguard of the system.

The principle of evolution that controls the meaning of the cruel and unusual punishments clause, is that punishments may not be used, which fall far outside the main stream of our jurisprudence and which are rejected by the current moral consensus.

That is consistent with a history of the clause and the cases that this Court has decided under the clause.

Apparently, the cruel and unusual punishments clause of the Eighth Amendment, like the rest of the Bill of Rights was adopted because the anti-federalists, who objected to ratification of the Constitution, posed a series of terrible imaginings about the coming attorney that the federal government would impose upon the citizens of states.

And, one part of the rhetoric employed was the suggestion that the federal government would use torture, the screw in the rack in enforcing its laws.

The Eight Amendment promised that that would not happen and since the federal government, of course, had no such intention and did no such thing, the Eight Amendment became dormant from its adoption, which strongly indicates an understanding at the time that the clause was not to alter existing practices, but was to prevent intolerable innovations or reversions.

Punishments native to our jurisprudence and still unused were simply not touched by the clause.

The cases reflect that, we have discussed them at some length in our brief, but it was not until 1909 in Weems against United States that this Court struck down a punishment and that punishment was cruel and unusual in every sense.

It was very cruel Spanish punishment of incredible severity, imposed there for false entries in official accounts and this Court said in that case, such penalties for such offenses amaze those who have formed their conception of the relation of the state to even as offending citizens, from the practice of American Commonwealths and believe that it as a precept of justice that punishment for crime should be graduated and apportioned to offense and I think that is the test of the cruel and unusual punishments clause.

Byron R. White:

You are do accept that principle under the Eighth Amendment that punishments that are disproportionate or sufficiently disproportionate are impermissible under the —

Robert H. Bork:

I do Mr. Justice White, I think that is — I think that is quite correct.

And, I think in this case, Weems tells us what those words mean, cruel and unusual.

Unusual means amazing in the light of the practice of the American Commonwealths, well outside the mainstream of our jurisprudence that was putting it before,

Byron R. White:

(Inaudible)

Robert H. Bork:

I beg your pardon.

Byron R. White:

That is a little different than just dis-proportionality?

Robert H. Bork:

No, no that is unusual.

I think cruel is where this proportionality comes in Mr. Justice White.

Warren E. Burger:

But you are saying I take it is that the frequency or infrequency has nothing to do with the term unusual as used in the Eighth Amendment?

Robert H. Bork:

I think that is right Mr. Chief Justice.

I think it is the infrequency of the type of punishment.

That is in Weems we had a cadena temporal, an extraordinary Spanish punishment unknown to our jurisprudence and that was why it was unusual and not because it was only rarely inflicted.

Potter Stewart:

How frequently is inflicted in the Philippines, do you know?

Robert H. Bork:

I do not know, Mr. Stewart, but the Court did not make a point on that.

The Court made a point on the type of punishment it was.

Now, I think cruel, as the Court suggested in Weems, means a punishment which is amazing in its lack of proportion to the offense.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Robert H. Bork:

I do not think the Court judges the fine calibrations, whether there is an exact proportion, I think it has to be so wildly out of proportion that becomes cruel.

Byron R. White:

It means that perhaps, but it does not only mean that.

I mean, in other words, you would concede I suppose that if a state imposed or inflicted capital punishment for jay walking, it would be a cruel and unusual punishment, even though if you submitting to us, capital punishment per se is not cruel and unusual.

But, it means and that is your point now, but also what if a state said for the most heinous kind of first degree murders, we are going to inflict the breaking a man on the wheel and then disemboweling him, while he is still alive and then burning him up.

What would you say to that?

Robert H. Bork:

I would say that, that practice is so out of step with the modern morality and modern jurisprudence that the state cannot return to it.

That is — that kind of torture was precisely what the framers thought they were outlawing, when they wrote the cruel and unusual punishments clause.

Potter Stewart:

So, it is not just dis-proportionality, is it?

Robert H. Bork:

No, no it is also that it is foreign to our jurisprudence and that has become for some time and completely out of step with our morality, which has that become.

So, the state could not revert to those kinds of punishments.

Byron R. White:

So, you also accept the judging the cruelty in the light of contemporary morality?

Robert H. Bork:

I do, in deed Mr. Justice White.

I accept that and I think, however, that once we have 35 legislatures and Congress of the United States adopting a penalty, it is impossible to say that it is in conflict with current morality.

I think there is no other source of morality to which a Court may properly look, that it is may not look to the writings of more enlightened professors.

Byron R. White:

You say the same to the question of proportionality or does — or do Courts have some independent input into that question?

Robert H. Bork:

I would think the proportionality would have to judged for objective standards as well that is not a — for example, proportionality would be judged by the frequency with which legislatures choose it.

If one jurisdiction only, suddenly imposed death for jaywalking or flogging for jay walking, I think looking across the spectrum of the American Commonwealth and seeing that that was wildly out of proportion with every other jurisdiction, would be one way of judging proportionality.

Byron R. White:

So, that if enough legislatures passed the law, you would say the Courts have no basis to say that the penalty is disproportionate?

Robert H. Bork:

I doubt very much, Mr. Justice White, whether the Court could say dis-proportionateness depends in a great part, upon the moral understanding of the community.

If the moral understanding of the community is so — in a very wide spread way, views the punishment as proportionate, I do not know what independent source the Court would have to look to.

Warren E. Burger:

I think I have not seen this matters in original argument, but simply response to the suggestion of the petitioners in these cases and in the prior cases that capital punishment is indeed out of step with present day thinking?

Robert H. Bork:

I am indeed, Mr. Chief Justice.

Byron R. White:

You do not need to defend it affirmatively and nor the states need to defend it affirmatively on that concept, does it?

Robert H. Bork:

No, no, Mr. Chief Justice, that is precisely my point.

I think once it is seen that it is within the moral standards of the community as shown by the legislatures of America, including the Congress and once it is recognized that it is a traditional penalty in our jurisprudence, I think the Eight Amendment inquiry is not an end.

In fact, I think this case is not an end.

Byron R. White:

You think we should over turn Furman then, on your basis?

Robert H. Bork:

I was preparing to suggest that later in my argument, Mr. Justice White —

Byron R. White:

That may be so, but then you think it is required by your argument?

Robert H. Bork:

No, I do not think — when I have said yet requires it nor do I think that sustaining the validity of the statute is now before this Court requires it.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Robert H. Bork:

But I think other reasons make it desirable.

I would like to develop those, when I discuss discretion.

Byron R. White:

That is consistent with the position of the United States in prior years?

Robert H. Bork:

Indeed.

Now, I think the things that I have just said, it may have been possible, it was possible to think differently about the moral standards of the American community, when Furman against Georgia was decided.

I do not think it is no longer possible to think differently.

There were factual estimates, empirical judgments made in various concurring opinions in Furman against Georgia, which were fairly made, but which subsequent events has shown to be incorrect.

And, those proportions in Furman are now I think no longer available as premises for constitutional judgments.

I would like to mention them briefly.

First it was said because the statutes in Furman provided for discretion, whether or not to impose capital punishment in a particular case, the legislative will is not frustrated if capital punishment is never imposed.

We know now I think that, that was not the meaning to be drawn from the existence of discretion in the statutes.

By re-enacting death penalty statutes, many of them mandatory under certain circumstances, Congress in 35 States have shown that the legislative will is frustrating, if the death penalty is never imposed.

Discretion was built into the prior statutes to distinguish between types of killings and types of killers.

Congress and the legislators, legislatures of the states have shown that if Furman presses them to the choice, they prefer a mandatory death penalty to none.

Secondly, it was said in Furman that capital punishment is cruel because it goes beyond what is necessary, not only in degree, but in kind.

We now know that legislature after legislature thinks that capital punishment is necessary in degree and in kind.

Though I think that this Court cannot really look behind that legislative determination, in a moment I will try to show that the legislatures have every reason to think it was necessary that they made an eminently rational judgment.

Third it was said, in Furman again, that the penalty is unusual because it is infrequently imposed.

As I have just in response to the Chief Justice, that seems to me not the constitutional meaning of unusual.

That unusual refers to the type of penalty rare in our jurisprudence.

Like cadena temporal in Weems or like the denationalization in Trop against Dulles.

Indeed, I do not think that the death penalty is unusual in any relevance sense.

It is imposed in a number of cases each year.

It is true that legislatures and juries and judges restricted to the most outrageous crimes, but I do not see how it can become unconstitutional, because it is used carefully, and sparingly rather than across the board.

Would it be, the petitioners’ argument seems to me to suggest that very broad categories of crime for which the death penalty was mandatory, would make it somehow more constitutional.

I think that is a very odd conclusion.

Now, we submit, therefore, that the death penalty is clearly not a cruel and unusual punishment under the meaning of the Eight Amendment and I submit that it is not — the Eighth Amendment is not a warrant for requiring the states or the Congress to come here and justify affirmatively, the punishment which they wish to use, once it has been seen that the punishment is traditional, the American —

Byron R. White:

Mr. Solicitor General what is your understanding of the meaning of dis-proportionality?

You say that is one of the principles under the Eighth Amendment?

Could you spell out what is your understanding is of that rule?

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Byron R. White:

Disproportionate to what and what difference does it make?

Robert H. Bork:

Well, I think it is shown by Weems, in which this Court said that, here a man is given 15 years cadena temporal, which involves painful labor, not hard labor involves wearing a chain on his wrist and ankles, he is not allowed to sit with his family counsel, he is deprived of all rights of his family interest of his life, he has to live with what the government tells him to, even after he is out under surveillance and the Court said to punish, to inflict that punishment for a false entry in official records, which can be done even if it is shown — not shown to harm anyone is just so out of disproportion with what American jurisprudence shows, the American Commonwealth just do not punish that way.

Potter Stewart:

(Inaudible) switch?

Robert H. Bork:

Pardon me?

Potter Stewart:

(Voice Overlap) or does it mean disproportionate to the offense?

Robert H. Bork:

It is disproportionate (Voice Overlap)

Potter Stewart:

It is two quite different things?

Robert H. Bork:

I am sorry Mr. Justice Stewart.

I meant disproportionate to the offense as shown by the proportions to offenses that the American Commonwealths have used and, we look — the Court says, we look at what the American Commonwealths do and they have nothing, this severe for this kind of offense, maybe two years in prison.

Byron R. White:

Apparently, the State together with the government would get out of the imposing that offense, if it gets out of it, whatever, you got out of the imposing punishment and you think disproportionate — you just do not get out of it — the injury inflicted is just disproportionate to what we termed the state can be expected to get?

I mean, deterring false entries just is not worth imposing that kind of —

Robert H. Bork:

Well, it is not worth it and it is regarded as immoral, but those are things that Court determined in Weems not because it had some internal scale of what is worth what, but because the Court looked to the practice of American governments and said, American governments, states and national do not impose penalties, anything like that severe for that kind of an offense, this is just way out of proportion, it is aberrational.

Byron R. White:

That may have been the evidence they looked to, to determine whether what they get out of it is worth it, but that nevertheless determining whether it was worth was part of it, I take it?

Robert H. Bork:

Maybe part of it, but what I am suggesting is that the Court looked to objective external standards, rather than to any subjective feeling about whether it is worth it.

Warren E. Burger:

It was possible that the Court might have come to that same conclusion in Weems, if there have been a more severe crime, that is bank robbery as distinguished from manipulating figures?

Robert H. Bork:

I obviously — I do not know, Mr. Chief Justice because obviously — well, in my conclusion in any event because there is simply was no American punishment like that for any crime.

The wearing of chains and being sentenced to painful labor and being deprived for the right to even to sit in the family councils, being deprived of all civil rights forever, being required to live with what the government told you, forever under their perpetual surveillance, these are just punishments that we do not inflict of any sort.

Warren E. Burger:

Do not you think that the Supreme Court in the Weems case at the time, would have said that about a bank robbery?

If that is a punishment had been inflicted for bank robbery?

Robert H. Bork:

You mean it was cruel and unusual?

Warren E. Burger:

Yes.

Robert H. Bork:

That is what I was suggesting Mr. Chief Justice, by saying that —

Byron R. White:

(Inaudible) it was cruel, I do not know about the disproportionate?

Robert H. Bork:

Well, it is unusual certainly —

Byron R. White:

Sure, but it might have been unusual, (Voice Overlap) not in — what about murder?

Robert H. Bork:

Well, I have been suggesting, Mr. Justice White, that these judgments are made by two factors.

Is it a traditional punishment in our jurisprudence, so that is not unusual and the answer to that is no that is not a traditional punishment in our jurisprudence for any crime and secondly is it disproportionate and that the disproportionate question is also judged by the practice of the American States and the American national government and it is disproportionate by those practices, even for murder.

It is just a terribly unusual crime, but I do not think I have to argue that Weems would have gone the same way, had murder been involved.

Harry A. Blackmun:

Am I correct in my understanding that even in Weems, the Court was not unanimous?

Robert H. Bork:

There was a dissent by Justice White and Justice Holmes, I believe.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Harry A. Blackmun:

(Inaudible) joined the dissent?

Robert H. Bork:

Yes, he did, he did.

I said I would, having said I think, what I said so far, I think disposes of the case because I think there is no Eighth Amendment inconsistency here and to go on to the other arguments, I think is to step into arguments that come from different parts of the constitution are not properly before this Court.

Potter Stewart:

Do you think the Eighth Amendment is raised in the question, is not it?

Robert H. Bork:

I thought it was may be the cruel and unusual clause that we are judging, but perhaps in any event, I will go on to the others.

I would like to discuss the element of discretion because that seems to me to be the crucial part of the petitioners’ counsel’s argument and the argument appears to be that the fact that various stages in the criminal justice system, people are entitled to make judgments, renders the death penalty unconstitutional.

I do not think there is any logic to that and I do not think it is a constitutional proposition.

There are number of difficulties with it.

One is the other implausibility of the idea.

The framers wrote a Constitution that both recognized the death penalty and mandated a criminal justice system with discretion in it.

I do not think it can be that they wrote a constitution in which one part makes another part unconstitutional.

The mind boggles at the thought that the constitution is unconstitutional.

When two features have values which compete, they have to be resolved.

One does not obliterate the other, yet that is exactly what we are being told happens here.

Every element of discretion the petitioners’ counsel complains of, is either permitted or compelled by the constitution, that is true of the charging decision, it is true of the plea bargaining, it is true of the power of the jury to quit, despite of the evidence.

John Paul Stevens:

Mr. Solicitor General, if I may just interrupt for one question?

It would be helpful to me if in discussing the subject of discretion, you would differentiate between meeting the argument that Mr. Amsterdam has advanced and meeting the holding of Furman, if one can identify it, if there is a difference between the two?

Certainly discretion was significant in that holding.

I wonder if you are attacking the decision or merely meeting an argument or to what extent are you doing one rather than other?

Robert H. Bork:

Well, I think I am doing both, Mr. Justice Stevens.

I am going to suggest that McGautha was correctly decided and it is really not quite possible from McGautha and Furman to live together and that though it is not necessary for the decision of these cases that it would be much better to overrule Furman and adhere to McGautha.

The states have been put to a choice by Furman that I think they ought not to be have been put to.

They have been put in the position of choosing their second preference in modes of imposing capital punishment and some of them have moved to mandatory statutes.

I think that is unfortunate and I think they are ought to be allowed to go back to a position in which they choose the form of statutes that they think is just and efficient, so long as it meets due process requirements.

Mr. Amsterdam said yesterday that he thought McGautha and Furman could live together and I take it that the argument that was made was that McGautha holds the jury discretion, meets the requirements of due process, but Furman holds, though while that maybe true the results of the process are intolerable.

I do not understand how a process which produces intolerable results can be due process.

So, it seems to me that there is a necessary contradiction between those two cases.

Potter Stewart:

But it did involved, as you pointed out just a moment ago, two different provisions of the constitution?

Robert H. Bork:

That is quite true Mr. Justice Stewart, but that gets us back into the position, where the constitution mandates discretion in a criminal justice system and that discretion mandated by the constitution renders illegal a punishment which the constitution recognizes as legally allowable.

Potter Stewart:

It is certainly is not unusual situation.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Potter Stewart:

It has something that is perfectly permissible under one provision of the constitution, violate another provision of a constitution, there is nothing unusual about that?

Robert H. Bork:

I think this is unique, Mr. Justice Stewart.

The Fifth Amendment an d Fourteenth Amendment say, use due process of law when you impose the death penalty.

To then say, that the procedure by which you use due process of law makes it cruel and unusual punishment under the Eighth Amendment, so that all along we struggle, all along there was no death penalty.

It seems to me to be a logical impossibility.

John Paul Stevens:

Mr. Solicitor General, let me put another question on the table.

You comment as you see fit as you go on in this matter of discretion.

I asked pretty much the same question to Mr. Amsterdam.

To what extent do you think Furman properly understood rests on the universe of crimes, which merit the capital punishment and is that relevant to try to identify the precise holding of a premise, you understand my question?

Robert H. Bork:

I am not entirely sure that I do, Mr. Justice Stevens.

If you mean —

John Paul Stevens:

Let me rephrase it a little bit.

Is the legal question precisely the same, if you have narrowly defined capital offense in which there are the elements of discretion in the process in a particular case that the granted the prosecutorial stage, affirmance stage and the jury’s stage.

Is that the same legal issue as a case in which the crime for which the defendant was being charged is one of several hundred crimes, which bear a capital offense, all the way ranging from rape to grave offenses, before the Court or have been before the Court from time to time? Is the discretion issue the same in the two different hypothetical cases?

Robert H. Bork:

I would think that it was, Mr. Justice Stevens.

I at least — at the moment I do not perceive any distinction.

Warren E. Burger:

If the state singled out one crime and said that the killing of a police officer in the line of duty and in the context of the commission of the crime by the killer, would that and only that would be subject to mandatory death penalty that there is the same breadth of discretion, the same kind of an approach that were suggested in some of the opinions in Furman would apply?

Robert H. Bork:

No, I do not think it would, Mr. Chief Justice, but I take it that I was being asked whether the narrowness of the definition of a crime or the number of crimes made any difference in the existence of discretion.

I did not think so.

I think the type of statute that you refer to, of course does avoid the objection that was made in Furman.

That is why I say that these cases do not require an overruling of Furman.

John Paul Stevens:

Let me make sure I understand.

Your point is that for your argument, it makes no difference?

Do you understand that it makes a difference in interpreting the effect of Furman in what we have to do with this case?

Robert H. Bork:

I am sorry Mr. Justice Stevens, I —

John Paul Stevens:

Do you think Furman rested it all on the wide variety of crimes which brought the death —

Robert H. Bork:

I did not think so.

I thought it rested upon the number — in part, as well as upon discretion in part upon the empirical judgments I discussed about the legislative will was and that is why I tried to say that those empirical judgments, while they were plausible or arguable at that time, has since been disproved.

So, I think that part of Furman is undermined.

John Paul Stevens:

Can you tell me one thing before you finish? Is it — if it is not necessary to overrule Furman, to decide these cases as the government contends they should be decided, why not?

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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John Paul Stevens:

Why is not Furman controlling?

Robert H. Bork:

Because, I think Furman refers to standardless jury discretion, that is all it really applies to.

I think the statute that have been enacted in response to Furman, now out standards into the process, and therefore, it is not necessary to overrule Furman.

But, I think it — counsel made it plain that he objects to every element of discretion of the system, not just jury discretion.

He directs them collectively and if I understood him correctly yesterday, he objects to that, he would have object to them singly.

The power of an executive to exercise clemency alone would render, if they were the only elements of discretion, would render the death penalty unconstitutional.

There is apparently no way, according to this argument, that anybody can devise a system of justice in which anybody used any judgment about a thing, which could then inflict the death penalty.

The system that — the only system that would meet counsel’s objections would be one that was so rigid and automatic and insensitive that it would be morally reprehensible and then apparently it would meet the moral standards of the constitution.

The incidence of the discretion that McGautha recognized, that are built into our system, were built in progressively to make the system safer and progress in criminal justice has occurred precisely by multiplying the instances and the stages at which discretion can be exercised.

As the system now stands, it is utterly impossible for one person or for several persons acting freakishly or capriciously, out of malice or prejudice or stupidity to inflict the death penalty, at every stage it is possible for a small group and sometimes for one person to prevent imposition of the penalty.

Counsel’s real complaint is not that anybody is freakishly convicted and executed, but rather that some murderers are freakishly spared and given life imprisonment.

In other words, the fault in the system, which makes it unconstitutional though it was inflicted is that it errs, if it errs at all on the side of mercy and on the side of safety and that what we are told makes it unconstitutional.

The more counsel explains that argument, the less I understand it.

Yesterday he said that it was true that all these careful procedures that were worked out by the states and by the Federal government help some defendants, but he said that means by ineluctable logic that the procedure is disadvantaged of this.

I have seldom heard logic, more electable.

It is impossible to see how these procedures disadvantage anybody because the persons who were not spared, are not made worse off.

They were certainly not disadvantaged by the existence of a chance to escape the death penalty.

The argument I think is specious, but there are other defects in it.

These arguments that are made against the death penalty could be made against any other form of punishment.

There is not one of them that does not apply to life imprisonment.

Now, the sole answer that counsel gives to this is that capital punishment is unique.

It is different.

Of course, it is different.

Life imprisonment is different from a year in prison, life imprisonment different from a fine.

Potter Stewart:

But it is different in kind from any term of imprisonment, is it not, in two or three different respects at least that it is wholly irretrievable for one thing —

Robert H. Bork:

Well, I suppose —

Potter Stewart:

— by contrast to any term of imprisonment?

Robert H. Bork:

Mr. Justice Stewart, I do not know how a life spent in prison (Voice Overlap)

Potter Stewart:

Well, may be you made a mistake, you can cancel it.

Robert H. Bork:

Yes, you can cancel.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Potter Stewart:

And undo it.

Robert H. Bork:

You can undo it, to the extent you set him free when you discover the mistake (Voice Overlap) years are going.

Potter Stewart:

That is right and it wholly discards any notion of rehabilitation, of course.

It is different matter and it is different than others, not in degree, but in kind.

It is and —

Robert H. Bork:

Well, I —

Potter Stewart:

But, it is.

Robert H. Bork:

I would suggest to that, Mr. Justice Stewart, there is only one respect in which it is not different and that is in contemplation of the constitution, because the constitution provides for it with imprisonment to us no line between them.

A legislative line can be drawn between them, but I do not think a constitutional line can be drawn between them.

It is the — capital punishment all is different in one other respect, which I would like to come to if I have time.

It is different in that it deters more than any other punishments.

There are some categories of criminals, who cannot be deterred any other way.

For example, a man serving life imprisonment and he knows it is a real life term has no incentive not to kill and some have done so.

A man who has committed an offense, which carries life imprisonment, but is not yet been apprehended has no incentive not to kill to escape with other crimes, except the prospect of a death penalty.

So, that as the ultimate sanction, capital punishment is unique, it is different in the sense that it deters more and thereby saves more innocent lives.

And, it is unique in that it upholds the basic values of our society symbolically and internalizes them for us, more than any other punishment.

So, in its uniqueness, I think it is something that has to weighted in favor of punishment, as well.

But, I return to my point, I do not think it is unique in the constitutional sense.

And, in fact the argument for its uniqueness that was made yesterday was that we recognized it was unique, because we surround it by so many precautions.

So, they are procedural safeguards that other punishments do not have.

Well, it think that is true, although I do not see why the very existence of precautions makes it unconstitutional, that is what we were told.

Presumably the same thing would happen if we began to add the same precautions to life imprisonment.

It would become unconstitutional, because we recognize its uniqueness.

Warren E. Burger:

(Inaudible) precautions, as you described them were generated by the opinion of the Courts in the Furman case, this is now before us?

Robert H. Bork:

It is entirely true Mr. Chief Justice.

I think that the Furman case did took a step and attempt of the legislatures to comply with that case, is now what it said to make their efforts unconstitutional.

Apparently, we are told that the only way that they could had a chance is come back with a sweeping mandatory death statute for all kinds of crimes, which would make it not unique, which puts me in a very strange position.

But, I want to say something about the — I think what I said so far, is sufficient to dispose of this argument that discretion is what makes the statute unconstitutional.

I want to say something else.

We have been assuming and petitioners’ counsel has been assuming that discretion means arbitrariness and capriciousness, in using those incentives, they are not.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Robert H. Bork:

There is really no reason to assume, certainly McGautha did not assume, but certainly our criminal jurisprudence does not assume it is, there is no reason to assume that the men and women, lawyers and judges who man our criminal justice system and the ordinary people who man the grand juries and the petit juries do not take their responsibilities in capital cases seriously.

And if they do not share and reflect a general, social understanding of when a crime is serious or heinous, petitioners’ counsel’s argument really requires him to convince this Court that the more serious the issue, the more capricious would be the jury and that the more standards that are given to a jury, the less they will heed any standards.

I think that is a reverse argument.

As I said our system of justice, rests upon the thought that people do take their obligations seriously in this system.

McGautha specifically rested upon that point and the evidence suggested that the framers were right to require a jury as a way of eliminating caprice and arbitrariness.

We cited the Standford bar view note in our brief, which discusses jury behavior and capital cases and finds irrational, inconsistent pattern.

We have discussed the book by Professor Calvin and (Inaudible), the American Jury.

Now, to support his argument that there is caprice and freakishness and arbitrariness throughout the system at every time a judgment is to be made, petitioners’ counsel really ought to have more than assertion than adverse.

He ought to come in here with a study for the entire nation, comparable in seriousness and scope and depth to that what Standford did for California and he ought to come in to study only for the juries, but for every stage in the discretionary process, if we are be told to believe that there is no sense to this process.

The evidence is there that there is sense of the process.

The assumption of our system is the sense of the process and we have nothing indicated that they are not.

John Paul Stevens:

Mr. Solicitor General did not the Standford’s study show a bias against the blue collar workers (Voice Overlap) white collar —

Robert H. Bork:

In the — they thought so.

Professor Calvin, who wrote the introduction to that study noted that he thought that the judgment on that issue was corrupted somewhat by their desire to find a constitutional argument against capital punishment and he thought that, that was not really an accurate conclusion to draw other explanations for it.

In any event, I do not think that – you see if we found a bias of any kind in the system, I know we do, it would not be an argument for this case.

In this goes to the racial bias, as well as any other, because if it is true, that capital punishment is inflicted disproportionately by sex or by race or by social economic group, because of bias not because of other reasons, then and that is not shown around here, then it must also be true that all other punishments are inflicted with equal bias, because it is the same prosecutors, the same jurors, the same people drawn from the same community, same judges, the same governor and I doubt that if we saw a skewing of the system according to some bias that any Court without law all punishments for all crimes.

We would attack the bias institutionally and in other ways to try to eliminate the effects of the system, but it is an irrelevant question, it is question of what punishment you will use.

And, indeed in our brief I doubt that I will have time to reach the point, but we do discuss and petitioners’ counsel was back with an attack upon our discussion, which I still think it is correct, the evidence of racial biased, I think it is not here.

There is some — in some studies in the past, in this deep south, at the time when blacks were systematically excluded from grand and petit juries.

I do not think there is enough here anyway to carry the bias argument.

But in any event, and I would point out that the Aerlex study on deterrence, which we are told is so worthless that it would be utterly disregarded, a point which I disagree, it is we are told that is worthless.

That study is a master piece of sophistication compared to these, rather trivial studies of racial discrimination that one has to rely upon, but I do not want to get on to that point, because I wish to conclude the point about discretion.

I would examine the discretion point and I have suggested that I think a state should be free to make their first choice about how the death penalty should be decided upon and I have suggested that I do not think Furman and McGautha can live together and that Furman — I suggest although it is not necessary, should be overruled.

The odd thing about this case is the petitioners’ counsel argues that if the criminal justice system is too imperfect to permit the death penalty at precisely that moment in our history, when the system has more procedural safeguards than any other time in history of Anglo American law, indeed that is his complain about it, too many safeguards.

The better our system becomes, the angry our opponents become.

The real claim here is that the criminal justice system cannot inflict the death penalty so long as human beings are running the system and making any judgments.

I do not — whatever that maybe that is not a constitutional argument.

Ultimately, these five cases, are cases about democratic government.

The right of various legislatures of the United States to choose or reject, according to their own judgment, according to their own moral sense and that of their people, the death penalty in accordance with the constitution.

This Court, speaking through Mr. Justice Black, once before I think gave the correct answer to that question, in Robinson against United States.

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Robert H. Bork:

The Court said, “It is for Congress and not for us to decide whether it is wise public policy to inflict the death penalty at all.

We do not know what provision of law, constitutional or statutory gives us power wholly to nullify the clearly expressed purpose of Congress to authorize the death penalty, because of a doubt as to the precise Congressional purpose and regard to hypothetical cases that may never arise.

That Statement of the Court, we submit was true throughout our history and it is true today as it was when Robinson was decided.

The large majority of the American States and the Congress of the United States have reaffirmed that in their judgment that capital punishment is both moral and necessary and all that it is said here by petitioners’ counsel is that these legislatures and the people they represent have behaved immorally and unwisely.

That is not the test of the Eighth Amendment.

This case is merely the latest in a continuing series seeking to obtain from this Court a political judgment that the opponent’s of capital punishment have been unable to obtain from the political branches of government.

The United States as to the constitutionality of the death penalty be upheld.

Lewis F. Powell, Jr.:

Mr. Solicitor General, you have now an opportunity to address in your oral argument the issue of the deterrence.

I recognize of course that the statistical data can be construed in various ways and I would agree to this, perhaps not controlling or conclusive, yet, I would invite your attention to some figures and then ask you a question.

I have the before me the 1973 report of a Federal Bureau of Investigation.

It states that in 1968, 15,720 people were murdered in this country.

In 1973, the latest year reported in this report, 19,510 people were murdered that is an increase of 42%.

In gross numbers that is an increase of 5,790 people.

I do not have the more recent figures.

I think I have read in a press that they show some slight downward trend.

It is perfectly obvious from these figures that we need some way to deter the slaughter of Americans.

I use the word slaughter, because that word was used in connection with the disaster in Vietnam in which 55,000 Americans were killed, over a 6 to 7-year period.

If the FBI figures are correct, there were more Americans killed in this country, more than there were in the battle fields of Vietnam.

Would you care comment or elaborate your views with respect to, did they at all affected any of the death sentence?

Robert H. Bork:

Mr. Justice Powell, it seems to me that it cannot rationally be questioned that the death penalty has a deterrent effect.

Mankind has always thought that throughout its history.

We know as a matter of common sense and common observation.

We know that all other aspects of human behavior as you raise the cost and the risk, the amount of the activity goes down.

I do not know why murder should be any different.

I would have not thought that anybody would have doubted that or listened to a couple of academicians who doubted it and we introduced the Aerlex study and the Yonkers (ph) study, only to show that there is respectable academic evidence on the side of deterrence, but I would have thought that it is common sense and I would thought that in fact, the judgment of the legislatures of this country that they think it deters is enough — it is irrational judgment.

I think it is enough for this Court and I must say, at the time when international and domestic terrorism is going up, at a time when brutal murders are going up, it is an awesome responsibility to take from the states, what they think is a necessary deterrence and save a few hundred people and thereby, probably condemn to death, thousands of innocent people, that is truly awesome responsibility.

Thurgood Marshall:

Granting all that, Mr. Solicitor, that is not the matter in this case, but the death penalty for drug dealers has not much done, has it not, you can just put that as an exception to the rule, would not it?

Robert H. Bork:

Oh, no, no.

Mr. Justice Marshal, many things affect —

Thurgood Marshall:

(Inaudible) figures, they did not deter that drug people at all, does it?

Audio Transcription for Oral Argument – March 30, 1976 (Part 1) in Jurek v. Texas

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Robert H. Bork:

I do not know how one can say that it did not.

You cannot deter perhaps an existing addict, which maybe the reason for Robinson against California, but it is not at all clear that you cannot deter people from becoming addicts, from taking the first step.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Amsterdam —